UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

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THE CATHOLIC DIOCESE OF

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NASHVILLE; CATHOLIC CHARITIES )

OF TENNESSEE, INC.; CAMP

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MARYMOUNT, INC.; MARY, QUEEN )

OF ANGELS, INC.; ST. MARY VILLA, )

INC.; DOMINICAN SISTERS OF ST.

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CECILIA CONGREGATION; and

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AQUINAS COLLEGE,

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Plaintiffs,

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v.

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KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

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Department of Health and Human

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Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S.

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Department of Labor; JACOB J. LEW, in )

his official capacity as Secretary of the

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U.S. Department of Treasury; U.S.

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DEPARTMENT OF HEALTH AND

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HUMAN SERVICES; U.S.

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DEPARTMENT OF LABOR; and U.S.

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DEPARTMENT OF TREASURY,

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Defendants.

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CASE NO.:

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COMPLAINT

1. This lawsuit is about one of America's most cherished freedoms: the freedom to

practice one's religion without government interference. It is not about whether people have a

right to abortion-inducing products, sterilization, and contraception. Those products and services

are widely available in the United States, and nothing prevents the Government itself from

making them more widely available. Here, however, the Government seeks to require

Plaintiffs-all of which are Catholic entities-to violate their sincerely held religious beliefs by

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providing, paying for, and/or facilitating access to those products and services. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act ("RFRA"), safeguard religious entities from such overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights.
2. Plaintiffs provide a wide range of spiritual, educational, and social services to members of their communities, Catholic and non-Catholic alike. For example, Plaintiff The Catholic Diocese of Nashville (the "Diocese") not only provides pastoral care and spiritual guidance for approximately 79,000 Catholics, but also serves individuals throughout Middle Tennessee through its schools and various charitable programs. The Diocese's programs serve those who are most often overlooked and marginalized in the community, including individuals who are poor, elderly, disabled, and others in need. Plaintiff Catholic Charities of Tennessee ("Catholic Charities") offers a host of social services to thousands in need. Its services feed the hungry, place children in adoptive families, improve the welfare of children from high-risk backgrounds, and provide assistance to refugees and new immigrants. Plaintiff Camp Marymount, Inc. ("Camp Marymount") provides a spiritual summer camp experience for schoolage children from the Nashville Diocese and around the world. Plaintiff Mary, Queen of Angels, Inc. ("MQA") provides housing to low-income, elderly individuals and seniors needing care, including those suffering from Alzheimer's Disease. Plaintiff St. Mary Villa, Inc. ("St. Mary Villa") provides affordable daycare options to a diverse range of families with parents who are either working or in school. Plaintiff Dominican Sisters of St. Cecilia Congregation ("Dominican Sisters" or "St. Cecilia Congregation") is a congregation of religious sisters who own and operate multiple Catholic schools on The Dominican Campus in Nashville as well as Saint Rose of Lima
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Academy in Birmingham, Alabama. For its part, Plaintiff Aquinas College ("Aquinas College" or the "College") educates over 600 students annually, charging tuition well below the average private college in Middle Tennessee. And the College's School of Nursing is uniquely positioned to respond to the critical shOliage of licensed nurses and nursing educators in Tennessee and the United States.
3. Plaintiffs' work is in every respect guided by and consistent with Roman Catholic belief, including the requirement that they serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: "Preach the Gospel at all times. Use words if necessary." As Pope Benedict XVI expressed it, "[LJove for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word." Or as Cardinal James Hickey, former Archbishop of Washington, once commented on the role of Catholic educators: "We do not educate our students because they are Catholic; we educate them because we are Catholic." Thus, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
4. Catholic Church teachings also uphold the firm conviction that sexual union should be reserved to married couples who are open to the creation of life; thus, artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine.
5. Defendants have promulgated various rules (collectively, "the U.S. Government Mandate" or "Mandate") that force Plaintiffs to violate their sincerely held religious beliefs. These rules, first proposed on July 19, 2010, require Plaintiffs and other Catholic and religious
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organizations to provide, pay for, and/or facilitate insurance access to abortion-inducing products, sterilization, and contraception, and related counseling services (the "objectionable products and services") in violation of their sincerely held religious beliefs. In response to the intense public criticism that the Government's original proposal provoked, including by some of the current Administration's most ardent supporters, the Government proposed changes to the rules that, it asserted, were intended to eliminate the substantial burden that the U.S. Government Mandate imposed on religious beliefs. In fact, however, these changes made that burden worse by significantly increasing the number of religious organizations subject to the U.S. Government Mandate, and by driving a wedge between religious organizations, such as Plaintiff Diocese, and their equally religious charitable and educational arms, Plaintiffs Catholic Charities and Camp Marymount. Reversing course from its original form, the U.S. Government Mandate now prohibits the Diocese from ensuring that its religious affiliates provide health insurance consistent with Catholic doctrine.
6. In its final form, the U.S. Government Mandate contains three basic components: 7. First, it requires employer group health plans to cover, without cost-sharing requirements, all "FDA-approved contraceptive methods and contraceptive counseling"-a term that includes abortion-inducing products, contraception, sterilization, and related counseling. 8. Second, the U.S. Government Mandate creates a narrow exemption for certain "religious employers," defined to include only organizations that are "organized and operate[] as a nonprofit entity and [are] referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." The referenced Code section does not, nor is it intended to, address religious liberty. Instead, it is a paperwork-reduction provision that addresses whether and when tax-exempt nonprofit entities must file an annual informational tax return, known as a Form 990.
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As the Government has repeatedly affirmed, this exemption is intended to protect only "the unique relationship between a house of worship and its employees in ministerial positions." 78 Fed. Reg. 8,456, 8,461 (Feb. 6,2013). Consequently, the only organizations that qualify for the exemption are "churches, synagogues, mosques, and other houses of worship, and religious orders." ld. This is the narrowest "conscience exemption" ever adopted in federal law. It grants the Government broad discretion to sit in judgment of which groups qualify as "religious employers," thus favoring certain religious organizations over others and entangling the Government in matters of religious faith and practice.
9. Third, the U.S. Government Mandate creates a second class of religious entities that, in the Government's view, are not sufficiently "religious" to qualify for the "religious employer" exemption. These religious entities, deemed "eligible organizations," are subject to a so-called "accommodation" that is intended to eliminate the burden that the U.S. Government Mandate imposes on their religious beliefs. The "accommodation," however, is illusory: it continues to require "eligible organizations" to participate in a new employer-based scheme to provide, pay for, and/or facilitate access to the objectionable products and services for their employees.
10. In particular, Plaintiffs Catholic Charities, Camp Marymount, MQA, St. Mary Villa, and Aquinas College do not qualify under the Government's narrow definition of "religious employers," even though they are religious organizations under any reasonable definition of the term. Instead, they are "eligible organizations" subject to the so-called "accommodation." But notwithstanding the "accommodation," these Plaintiffs are required to enter into a contract with a third party (either an insurance company or, for self-insured organizations, a third-pmiy administrator), which, as a direct result, is required to provide or procure abortion-inducing products, contraception, sterilization, and related counseling for Plaintiffs' employees.
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Consequently, the religious organizations' actions are the trigger and but-for cause of the provision of the objectionable products and services. Plaintiffs cannot avoid facilitating the provision of the objectionable products and services-for example, by contracting with an insurance company that will not provide or procure the objectionable products and services or even dropping their health-insurance plans altogether-without subjecting themselves to crippling fines and/or lawsuits by individuals and governmental entities.
11. Plaintiffs, moreover, must facilitate the provision of the objectionable products and services in other ways that further exacerbate their religiously impermissible cooperation in the provision of the objectionable products and services. For example, in order to be eligible for the so-called "accommodation," Plaintiffs must provide a "certification" to a third patiy setting forth their religious objections to the U.S. Government Mandate. The provision of this "certification," in turn, automatically triggers an obligation on the part of the third party to provide or procure the objectionable products and services for Plaintiffs' employees. A religious organization's self-certification, therefore, is a trigger and but-for cause of the provision of the objectionable products and services.
12. In addition, notwithstanding the "accommodation," the U.S. Government Mandate "requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage." Comments of U.S. Conference of Catholic Bishop (Mar. 20, 2013), at 3, available at http://www.usccb.orgl aboutlgeneral-counsellrulemakingl uploadl 2013-NPRMComments-3-20-jinal.pdJ The Government asserts that the provision of the objectionable products and services will be "cost-neutral." This assertion, however, ignores the regulatory and administrative costs that will inevitably force insurance companies and third-party administrators to increase the prices they charge religious employers subject to the "accommodation." The
6
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Government's assertion of "cost neutrality" is also based on the implausible (and morally objectionable) assumption that "lower costs" from "fewer childbirths" will offset the cost of the contraceptive services. 78 Fed. Reg. at 8,463. More impOliantly, even if the Govermnent's assumption were correct, it simply means that premiums previously going toward childbirths will be redirected to contraceptive and related services in order to achieve the (objectionable) goal of "fewer childbirths."
13. In short, the "accommodation" requires non-exempt religious organizations, including Plaintiffs, to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related counseling, contrary to their sincerely held religious beliefs.
14. Plaintiffs Diocese and St. Cecilia Congregation appear to qualify as "religious employers," and, as such, are eligible for the "religious employer" exemption. Nonetheless, the U.S. Government Mandate likewise requires the Diocese and St. Cecilia Congregation to act in violation of their Catholic beliefs. In particular, the Diocese makes fully-insured health insurance benefits plans available not only to individuals directly employed by the Diocese itself but also to individuals employed by affiliated Catholic organizations including, but not limited to, Plaintiffs Catholic Charities and Camp Marymount. Likewise, St. Cecilia Congregation sponsors a fullyinsured healthcare plan that is offered to employees of Plaintiff Aquinas College and other affiliated organizations. Because Plaintiffs Catholic Charities, Camp Marymount, and Aquinas College (and other affiliated organizations) themselves do not appear to qualify as exempt "religious employers," the U.S. Government Mandate requires that the Diocese and St. Cecilia Congregation must either (1) sponsor plans that will provide, pay for, and/or facilitate the provision of the objectionable products and services to the employees of Plaintiffs Catholic
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Charities, Camp Marymount, Aquinas College, and other organizations, or (2) expel these organizations from the healthcare plans of the Diocese and St. Cecilia Congregation, which, in turn, will require Plaintiffs Catholic Charities, Camp Marymount, and Aquinas College to provide, pay for, and/or facilitate access to the objectionable products and services.
15. This aspect of the U.S. Government Mandate reflects a change from the Government's original proposal of July 19,2010. That proposal allowed Plaintiffs Catholic Charities and Camp Marymount to remain on the Diocesan plans and Plaintiff Aquinas College to remain on St. Cecilia Congregation's plan, which, in turn, would have shielded Catholic Charities, Camp Marymount, and Aquinas College from the U.S. Government Mandate if the Diocese and St. Cecilia Congregation were exempt. See 77 Fed. Reg. 16,501,16,502 (Mar. 21, 2012). The Final Rule, however, removes this protection and thereby increases the number of religious organizations subject to the U.S. Government Mandate. And in so doing, the U.S. Government Mandate seeks to divide the Catholic Church, artificially separating its "houses of worship" from its faith in action, directly contrary to Pope Benedict XVI's admonition that "[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word."
16. The U.S. Government Mandate is irreconcilable with the First Amendment, RFRA, the Administrative Procedure Act, and other laws. The Government has not demonstrated any compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortioninducing products, sterilization, and contraception. Nor has the Government demonstrated that the U.S. Government Mandate is the least restrictive means of advancing any interest it has in increasing access to these products and services, which are already widely available and that the Government could make more widely available without conscripting Plaintiffs' health plans as
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vehicles for the dissemination of the objectionable products and services to which they so strongly object. The Government, therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these products and services in violation of their sincerely held religious beliefs.
17. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the U.S. Government Mandate. I. PRELIMINARY MATTERS
18. Plaintiff The Catholic Diocese of Nashville (the "Diocese") is an unincorporated religious association with its principal place of business in Nashville, Tennessee. It is organized exclusively for religious, charitable, and educational purposes within the meaning of Section 501 (c)(3) of the Internal Revenue Code.
19. Plaintiff Catholic Charities of Telmessee, Inc. ("Catholic Charities") is a nonprofit Tennessee public benefit corporation with its principal place of business in Nashville, Tennessee. It is organized exclusively for religious, charitable, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
20. Plaintiff Camp Marymount, Inc. ("Camp Marymount") is a nonprofit Tennessee public benefit corporation with its principal place of business in Nashville, Tennessee. It is organized exclusively for religious, charitable, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
21. Plaintiff Mary, Queen of Angels, Inc. ("MQA") is a nonprofit Tennessee public benefit corporation with its principal place of business in Nashville, Tennessee. It is organized exclusively for religious, charitable, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
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22. Plaintiff St. Mary Villa, Inc. ("St. Mary Villa") is a nonprofit Tennessee public benefit corporation with its principal place of business in Nashville, Tennessee. It is organized exclusively for religious, charitable, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
23. Plaintiff Dominican Sisters of St. Cecilia Congregation ("Dominican Sisters" or "St. Cecilia Congregation") is a nonprofit Tennessee public benefit and religious corporation with its principal place of business in Nashville, Tennessee. It is organized exclusively for religious, charitable, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
24. Plaintiff Aquinas College ("Aquinas College") is a nonprofit Tennessee public benefit corporation with its principal place of business in Nashville, Tennessee. It is organized exclusively for religious, charitable, and educational purposes within the meaning of Section 501 (c)(3) of the Internal Revenue Code. It is also an educational organization under Section 170(b)(l)(A)(ii) of the Internal Revenue Code.
25. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services ("HHS"). She is sued in her official capacity.
26. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor ("Labor"). He is sued in his official capacity.
27. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury ("Treasury"). He is sued in his official capacity.
28. Defendant U.S. Department of Health and Human Services ("HHS") is an executive agency of the United States within the meaning ofRFRA and the Administrative Procedure Act ("APA").
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29. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
30. Defendant U.S. Department of the Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
31. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702; 28 U.S.c. §§ 2201,2202; and 42 U.S.C. § 2000bb-1.
32. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Plaintiffs will be required to provide, pay for, andlor facilitate access to objectionable products and services in contravention of their sincerely held religious beliefs, as described below.
33. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
34. This Court has subject-matter jurisdiction over this action under 28 U.S.c. §§ 1331, 1343(a)(4), and 1346(a)(2).
35. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1). A. The Catholic Diocese of Nashville
36. Plaintiff Diocese is the civil law entity for the local body of the Universal Roman Catholic Church, a community of the baptized confessing the Catholic faith, sharing in sacramental life, and entrusted since February 2006 to the ministry of Bishop David R. Choby. The Diocese encompasses thirty-eight (38) counties, including Davidson County, and covers over 16,300 square miles in Middle Tennessee. Its missions include seeing to the spiritual, educational, and social needs of the Middle Tennessee community.
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37. The Diocese, through its fifty-three (53) local community parishes and three (3) missions situated throughout the Diocese, serves the spiritual needs of its Catholic population of approximately 79,000 individuals. Through its parishes, the Diocese ensures the regular availability of the sacraments to all Catholics living in or visiting the Middle Tennessee area. The Diocese also provides numerous other opportunities for prayer, worship, and faith formation. In addition to overseeing the sacramental life of its parishes, the Diocese coordinates Catholic campus ministries at eight (8) colleges and universities within its borders.
38. The Diocese also serves the needs of its communities with a variety of social welfare, educational, and charitable programs. These programs are largely carried out through the work of the parishes of the Diocese and through the separately incorporated entities affiliated with the Diocese (including Plaintiffs Catholic Charities, Camp Marymount, MQA, and St. Mary Villa). The parishes ofthe Diocese serve an indeterminate number of persons who are homeless, hungry, elderly, sick, or otherwise in need of material assistance.
39. In accord with Canon Law, the Diocese also fulfills an educational mission. See Code of Canon Law, Canons 802 § 1 and 803 § 2. The Diocese conducts its educational mission through the schools it sponsors, currently including eighteen (18) private Catholic schools within the Diocese: two (2) high schools and sixteen (16) elementary schools. Through its schools, the Diocese strives to provide an exceptional Catholic educational experience that is open to all in Middle Tennessee.
40. Presently, the Diocese has approximately 7,000 students enrolled in its schools. Many of the Diocesan schools serve a significant minority population. Pope John Paul II High School, for example, has a student body composed of over 20% minority students.
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41. To make a Catholic education available to as many children as possible-no matter their faith, means, or heritage-the Diocese expends substantial funds in tuition assistance programs. For the 2011-2012 academic year, the elementary and high schools of the Diocese granted approximately $3 million in financial aid.
42. The Diocese, including its parishes and schools, has over 1,200 employees, with approximately 1,000 employees classified as full-time (i. e., working an average of at least thirty (30) hours per week) and approximately 200 employees classified as pali-time.
43. Consistent with Church teachings on social justice, the Diocese makes health insurance benefits plans (the "Diocesan Health Plans") available to its religious personnel, seminarians, and full-time employees and subsidizes the cost of those plans. The Diocesan Health Plans include a preferred provider option (the "PPO plan") and a high-deductible option (the "HDHP plan"). Both are fully-insured plans offered and administered by Blue Cross Blue Shield of Tennessee.
44. Plaintiffs Catholic Charities and Camp Marymount also offer insurance coverage through the Diocesan Health Plans.
45. Consistent with Church teachings regarding the sanctity of life, the Diocesan Health Plans specifically exclude coverage for abortion-inducing products, contraceptives, and sterilization. The Diocese cannot, without violating its sincerely held religious beliefs, offer coverage for these or other devices, products, procedures, or services that are inconsistent with the teachings of the Catholic Church. In limited circumstances, the Diocesan Health Plan's Pharmacy Benefit Manager can override the exclusion of certain drugs commonly used as contraceptives if a physician certifies that they were prescribed with the intent of treating certain medical conditions, not with the intent to prevent pregnancy.
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46. The PPO plan meets The Patient Protection and Affordable Care Act's ("Affordable Care Act's") definition of a "grandfathered" plan and includes a statement in plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.98151251T(a)(2)(i).
47. The HDHP plan does not meet the Affordable Care Act's definition of a "grandfathered" plan. The Diocese has not included and does not include a statement in plan materials provided to participants or beneficiaries that it believes the HDHP plan is a grandfathered plan within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i).
48. The plan year for the Diocesan Health Plans begins on January 1st. B. Catholic Charities of Tennessee, Inc.
49. Plaintiff Catholic Charities was created in 1962 for the purpose of providing coordinated service to all of God's people in need, especially the poor, regardless of race, culture, or religion. Catholic Charities is an affiliated corporation of the Diocese.
50. Catholic Charities offers a variety of services to meet the needs of a diverse population in the Middle Tennessee area. These programs include feeding the hungry, adoption and pregnancy counseling, child welfare services, refugee and immigration services, family counseling, and services for seniors. Various Catholic Charities programs see to the basic needs-food, clothing, and shelter-of individuals in Middle Tennessee.
51. Catholic Charities provided social services to over 69,000 Middle Tennesseans in 2011 alone. Each year, Catholic Charities serves thousands of meals to the hungry in Middle Tennessee through its Loaves and Fishes and its North Nashville programs. In 2011, Loaves and Fishes served approximately 22,000 hot midday meals, while food distributed by NOlih Nashville
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provided approximately 88,000 meals in 2012. The North Nashville program also provides clothing and housing assistance and recently added a job training center to its services to address one cause of poverty.
52. Catholic Charities has a long history, dating back to its founding, of helping refugees and immigrants transition to life in the United States. One of the organization's first major initiatives following its founding focused on assisting Cuban refugees of all ages fleeing from Cuba. Catholic Charities found foster homes for forty-three Cuban refugee children who arrived in the United States without parents. By 1995, over 10,000 refugees had received assistance from Catholic Charities, including refugees of many different faiths and more than thirty-five different countries. More recently, in March 2008, Catholic Charities was selected by the Federal Office of Refugee Resettlement to manage and disburse federal funding for refugee services throughout Tennessee, after the Tennessee Department of Human Services ceased its participation in the statewide refugee program. As the designated interim replacement for the State of Tennessee in providing refugee services, Catholic Charities' Refugee and Immigration Services program offers classes to help newly arriving refugees attain self-sufficiency and financial sustainability, including classes in financial literacy, cultural orientation, and English as a Second Language. Catholic Charities has assisted 3,200 refugees over the last decade alone.
53. Catholic Charities also assists seniors and the elderly in Middle Tennessee. It offers a licensed adult daycare program with supervised activities aimed at enhancing independence and self-esteem while providing respite for caregivers. Fees for the program are subsidized for lower income families.
54. Catholic Charities runs a variety of programs to make adoption an affordable and realistic option for families in Middle Tennessee, place children in need into loving homes, and
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encourage stability in adoptive families. It operates a state-licensed adoption agency, Caring Choices, that places infants, including special medical needs infants, into adoptive homes. Caring Choices serves families of all faiths, and its services are offered on a sliding scale to make adoption possible for lower income families. Finding Our Children Unconditional Support ("FOCUS") is another Catholic Charities adoption program designed to place older children in need of adoption into foster care and then assist families in adopting these children. Finally, Catholic Charities' Adoption Support and Preservation Program ("ASAP") is an innovative program that supports children and families as they create and maintain connections and access services that support permanency. ASAP gives families the tools to overcome obstacles they might face in bringing adopted children into their homes, seeks to increase the availability and accessibility of adoption support services in Telmessee, and seeks to decrease incidences of disrupted or dissolved adoptions.
55. Catholic Charities also offers counseling services to parents and families. Its CHAP Program provides parenting education, crisis intervention, and case management designed to develop effective parenting skills through work with professional counselors. Catholic Charities also sponsors the HOPE Program, which provides counseling services to children and teens who are secondary victims of violent crimes. HOPE helps children learn to normalize their experiences, understand their feelings, and develop coping skills and support systems to deal with traumatizing experiences.
56. Catholic Charities' Angel Tree program provides gifts, food, and/or household and personal care items to approximately 1,200 people, many children and seniors, each year around Christmas time.
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57. Catholic Charities has also provided aid to Middle Tennesseans in times of natural disaster. In May 2010, the city of Nashville was plagued with a major flood that caused thousands to be displaced for months. Catholic Charities responded by opening a warehouse center to distribute household goods, clothing, food, and other needed supplies. With the aid of Diocesan parishes and community groups, Catholic Charities developed an Adopt-a-Family program whereby individuals and groups could provide assistance to families or individuals in need of assistance during the flood.
58. Catholic Charities has approximately 115 full-time (i. e., working 30 hours or more per week) employees.
59. Catholic Charities does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Catholic Charities does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate.
60. Catholic Charities is an affiliated corporation of the Diocese. 61. Catholic Charities full-time employees are offered health insurance through the Diocesan Health Plans; thus, Catholic Charities' plan year begins on January 1st. C. Plaintiff Camp Marymount, Inc. 62. Plaintiff Camp Marymount provides a spiritual summer camp experience for children of the Nashville Diocese and from all over the world on its 340 acres in Middle Tennessee. 63. Camp Marymount-originally known as Camp Happy Hollow-was established in 1939 as a Catholic residential camp by the Diocese of Nashville in Joelton, Tennessee. Camp Marymount moved to its present location in Fairview, Tennessee in 1945 and hosted its first campers in the summer of 1946.
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64. The mission of Camp Marymount is to develop and renew faith, character, and community in a rustic Christian environment. According to its creed, Camp Marymount gives a total experience in true living, forceful, inspirational and lasting in its impression on the body and soul of its campers. The summer camp experience is filled with community, faith, fun, and simplicity without the pressures of the outside world or technology.
65. While attending Camp Marymount, campers can experience traditional camp activities such as horseback riding, nature, arts and crafts, gardening, riflery, and swimming. The camp also instructs youth in self-control and self-discipline using the wonder of the outdoors to foster deep spirituality. In addition, a prayer service is held at least every other day and mass is celebrated every Sunday in addition to other times during the camp session. All Camp Marymount programs seek to develop the whole person-mind, body, and spirit.
66. Camp Marymount is accredited by the American Camp Association, meeting or exceeding over 300 industry-accepted standards. Camp Marymount currently offers four overnight summer sessions-two for girls and two for boys-to rising first through eleventh graders of all faiths. More than 600 campers experience Camp Marymount between mid-May through August each year with the assistance of seventy (70) counselors and support staff.
67. Today, Camp Marymount consists of eighteen (18) rustic camper cabins, four (4) cabins for support staff and retreats, an infirmary, office lodge/dining hall, arts and crafts hut, outdoor amphitheater, nature center, a five-acre spring fed lake, an outdoor chapel, and the St. George Chapel, an enclosed, year-round place of worship. In the non-summer months, Camp Marymount hosts a variety of events including luncheons, retreats, and weddings in its year-round facilities as well as a team building program called The Sun Trail Program that primarily serves Catholic schools. Camp Marymount also serves as a regular meeting place for Catholic groups
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and as a location for celebrating mass. In fact, mass is celebrated at the St. George Chapel approximately forty (40) weekends out of the year.
68. Camp Marymount has five (5) full-time employees (i.e., working 30 hours or more per week) and approximately ten (10) part-time employees. Camp Marymount also has sixty (60) seasonal employees during the summer months.
69. Camp Marymount does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Camp Marymount does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate.
70. Camp Marymount is an affiliated corporation of the Diocese. 71. Camp Marymount's full-time employees are offered health insurance through the Diocesan Health Plans; thus, Camp Marymount's plan year begins on January 1st. D. Mary, Queen of Angels, Inc. 72. PlaintiffMQA is an assisted living facility located in Nashville, Tennessee. 73. The mission ofMQA is to provide top-quality, affordable assisted living services to elderly persons in Middle Tennessee. MQA is designed to meet the physical, psychological, and spiritual needs of its residents in a safe, stimulating, and dignified environment. The average age ofMQA's residents is approximately eighty-four (84) years. 74. MQA is the second largest assisted living facility in the Nashville area. It has a total of 98 apartments housing 110 residents, on average. Sixteen (16) of its apartments are located in a secure unit that serves residents who are memory-impaired or who have Alzheimer's disease. 75. In addition to providing residence, MQA offers a meal program, as well as nursing, personal care, physical therapy, housekeeping and maintenance services, and assistance with the activities of daily life for those who need it. It also offers a rich and engaging program
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of activities. Mass is held daily in the MQA chapel, and there are regular church and prayer services available to residents of other denominations.
76. MQA's mission is driven by the Catholic belief that all human life is equally valuable and worthy of respect and support, and its living facilities are made available to all, regardless of race, creed, or national origin. Residents are admitted on a first-come, first-served basis.
77. Consistent with its Catholic mission and affiliation, fees for MQA's services are based upon its residents' abilities to pay. MQA provides some level of financial assistance in the form of rent discounts to approximately 45% of its residents. In its first ten years of operation, MQA provided an average of $640,000 in total rent assistance per year. No enrolled resident of MQA is denied care or residence due to the resident's inability to pay for those services.
78. MQA employs approximately eighty-five (85) employees, including approximately sixty-five (65) full-time (i.e., working thirty hours or more per week) and twenty (20) part-time employees.
79. Plaintiffs MQA and St. Mary Villa (together, the "Mary Entities"), along with Villa Maria Manor, Inc., collaborate with one another and pool their resources in order to provide a health benefits plan to their employees (the "Mary Entities' Health Plan"). Their plan is separate and distinct from the Diocesan Health Plans.
80. Each of the Mary Entities subsidizes the premiums for its eligible employees who enroll in the Mary Entities' Health Plan. The Mary Entities provide subsidized health insurance for their full-time employees, at least in part, in order to fulfill their duty as Catholic employers to provide a "living wage" to their employees. The Mary Entities' Health Plan is a fully-insured plan, offered and administered by Blue Cross Blue Shield of Tennessee.
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81. Consistent with Church teachings regarding the sanctity oflife, the Mary Entities' Health Plan does not include coverage for abortion-inducing products, contraceptives (except when prescribed for non-contraceptive purposes), and sterilization.
82. The Mary Entities' Health Plan does not meet the Affordable Care Act's definition of a "grandfathered" plan. The changes necessary to remove objectionable products and services services from the plan precluded the Mary Entities' Health Plan from receiving "grandfathered" status. See 26 C.F.R. § 54.9815-1251 T(a)(2)(i). Also, the Mary Entities' Health Plan has not included and does not include a statement in any plan materials provided to participants or beneficiaries that it believes its plan is a grandfathered health plan within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.98151251 T(a)(2)(i).
83. MQA does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, MQA does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate.
84. MQA is an affiliated corporation of the Diocese. 85. The plan year for the Mary Entities' Health Plan begins on August 1st. E. St. Mary Villa, Inc. 86. Plaintiff St. Mary Villa is an educational child care provider that supports families with employed parents and parents in school. 87. St. Mary Villa has a long history of providing child care responsive to the social needs of the Middle Tennessee community. St. Mary Villa began operations in the midnineteenth century in response to family and social disruption following the American Civil War. It was operated as a residential orphanage until the mid-1970s, when family and social needs changed from alternative placement to family suppOliive services. In response to the
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changing needs of the community, St. Mary Villa transformed to its current focus as an educational child care provider.
88. St. Mary Villa's mission, derived from the teachings of Jesus Clu'ist and the Catholic Church, is to support families by providing affordable, quality day care, after school care and educational programs in a safe, healthy, nurturing and multi-cultural environment, promoting intellectual, physical, social and moral development of the child. St. Mary Villa embraces diversity in socio-economic status, race, ethnicity and religion.
89. St. Mary Villa has been a long-time, continuous recipient of United Way Outcome-Based Investments, which are awarded based on findings of measurable and documented results. It has also consistently earned a "Three Star" rating from Tennessee, the highest score in the State's Quality Rating Program.
90. St. Mary Villa serves over 300 children and their families annually, at four locations in Davidson County, including locations at three Catholic schools affiliated with the Diocese. Approximately 60% of the families it serves tlu'ough its preschool program participate in the Tennessee "Child Care Certificate" program or have annual incomes below $38,000.
91. A portion of St. Mary Villa's funds come from the Diocese. Other sources of its funding are the United Way of Nashville, the federal Government, endowments, community grants, and private donations. These funds are used to subsidize the cost of St. Mary Villa's services, up to 50%, for families who need assistance in affording childcare.
92. Motivated by the teachings of Jesus Christ and in the tradition of the Catholic faith, St. Mary Villa offers services to all members ofthe community. It also offers instruction in the Catholic faith and practices, on a voluntary basis, to those it serves.
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93. St. Mary Villa employs approximately thirty-two (32) full-time (i. e., working thirty hours or more per week) and eighteen (18) part-time staff.
94. St. Mary Villa collaborates with PlaintiffMQA and Villa Maria Manor, Inc., in order to provide a health benefits plan to their employees. St. Mary Villa is the plan sponsor. The Mary Entities' Health Plan is separate and distinct from Diocesan Health Plans.
95. The Mary Entities' Health Plan does not meet the Affordable Care Act's definition of a "grandfathered" plan. The changes necessary to remove objectionable products and services from the plan precluded the Mary Entities' Health Plan from receiving "grandfathered" status. See 26 C.P.R. § 54.9815-1251T(a)(2)(i). Also, the Mary Entities' plan has not included and does not include a statement in any plan materials provided to participants or beneficiaries that it believes its plan is a grandfathered health plan within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.P.R. § 54.9815-1251T(a)(2)(i).
96. St. Mary Villa does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, St. Mary Villa does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate.
97. St. Mary Villa is an affiliated corporation of the Diocese. 98. The plan year for the Mary Entities' Health Plan begins on August 1st. F. Dominican Sisters of St. Cecilia Congregation 99. Plaintiff St. Cecilia Congregation is a Roman Catholic religious community composed of nearly 300 women that live a contemplative-apostolic life of community, study, and apostolic service in a monastic framework that fosters contemplation. 100. St. Cecilia Congregation owns the facility and operations that constitute a "Motherhouse" for the Dominican Sisters in Tennessee. It was founded in 1860 following the arrival in Nashville, Tennessee of four sisters who were members of the religious order known
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under Roman Catholic Canon Law as the Order of Preachers or, in the vernacular, as the "Dominicans." These sisters arrived in Nashville at the request of the Right Reverend James Whelan, Nashville's second bishop and a member of the Dominican order, who had petitioned the sisters at St. Mary's in Somerset, Ohio to send sisters to establish an Academy for the higher education of young women in the Diocese of Nashville.
101. The four Dominican Sisters immediately began work to create a convent and a school for young women in Nashville. From its beginning, St. Cecilia Academy-the all girls school founded by the four original Nashville Dominican Sisters-emphasized music and art while providing young women an education of the highest religious, academic, and cultural standards. Today, St. Cecilia Academy is the oldest continuously operated school in the city of Nashville.
102. The Dominican Sisters combine a monastic communal lifestyle of contemplation with an active apostolate in Catholic education. The essence of what it means to be a Dominican Sister of St. Cecilia is summarized in the community's Ratio institutionis, which outlines the program of initial and ongoing formation. The following characteristics define the charism of St. Cecilia Congregation: (1) Contemplative Focus, (2) Active Apostolate, (3) Strong Community Life, and (4) Love of the Church.
103. One of St. Cecilia Congregation's mottos is "to contemplate and to give to others the fruits of our contemplation." The Dominican Sisters contemplate Truth and share that same Truth with others through their educational mission. The driving truth behind the Dominican Sisters' educational work is the principle of the dignity of the human person.
104. In 1936, the Dominican Sisters founded Overbrook School with just nine students and a mission to establish a school with traditional Catholic values and academic excellence.
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Today the Dominican Sisters still own and operate Overbrook school, which includes more than 230 boys and girls in grades pre-kindergarten through eighth. In 2010, Overbrook was recognized by the United States Department of Education as a Blue Ribbon School of Excellence.
105. In addition to the oversight and operation of St. Cecilia Academy and Overbrook, the Dominican Sisters operate The Dominican Campus-an eighty-three (83) acre campus that includes St. Cecilia Academy, Overbrook, and Plaintiff Aquinas College.
106. Plaintiff Dominican Sisters sponsor The Dominican Campus Health Plans, which cover the lay employees of The Dominican Campus (including the lay employees of St. Cecilia Academy, Overbrook, and Plaintiff Aquinas College) as well as the lay employees of Saint Rose of Lima Academy in Birmingham, Alabama, and the lay employees employed at the Motherhouse.
107. Eligible employees are offered two health benefits plans from which to choose. Both are fully-insured plans offered and administered by Blue Cross Blue Shield of Tennessee. St. Cecilia Congregation maintains a separate health benefits plan for the sisters of St. Cecilia Congregation.
108. Plaintiff Dominican Sisters has ensured that The Dominican Campus Health Plans it sponsors do not include coverage for elective abortion-inducing products, sterilization, or contraception (when prescribed for contraceptive purposes).
109. The Dominican Campus Health Plans have undergone a number of changes and amendments since March 23, 2010, and, accordingly, do not meet the Affordable Care Act's definition of a "grandfathered" health plan. Additionally, The Dominican Campus Health Plans have not included and do not include a statement in any plan materials provided to participants or
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beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. See 26 C.F.R. § 54.9815-1251T(a)(2)(i).
110. The plan years for The Dominican Campus Health Plans begin on September 1st. G. Aquinas College
111. Aquinas College is an independent Catholic and Dominican college located in Nashville, Tennessee that confers undergraduate and graduate degrees. Founded in 1961 by St. Cecilia Congregation, Aquinas College is the only four-year Catholic liberal arts college in Eastern and Middle Tennessee.
112. Aquinas College is incorporated as a nonprofit Tennessee corporation, and the corporation's sole member is St. Cecilia Congregation. The College is governed by a Board of Directors, whose chairman is the Prioress General of St. Cecilia Congregation.
113. Aquinas College's mission is to provide an atmosphere of learning permeated with faith, directed to the intellectual, moral, and professional formation of the human person. The College's academic programs are rooted in the liberal arts and the Dominican tradition. Among the College's core values are the sanctity of human life, respect for the human person, and fidelity to Church teaching. Its curriculum emphasizes the dignity of the human person and is directed toward the development of the whole person through the acquisition of knowledge, the pursuit of Truth, and the integration of faith with daily life.
114. Aquinas College recognizes that its identity and mission spring from Ex Corde Ecclesiae, the apostolic constitution which governs and defines the role of Catholic colleges and universities. Ex Corde Ecclesiae provides that "the objective of a Catholic University is to assure . .. Fidelity to the Christian message as it comes to us through the Church."
115. In accordance with Ex Corde Ecclesiae, Aquinas College believes and teaches that "besides the teaching, research and services common to all Universities," it must "bring[] to
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its task the inspiration and light of the Christian message." "Catholic teaching and discipline are to influence all university activities," and "[a]ny official action or commitment of the University [must] be in accord with its Catholic identity." "In a word, being both a University and Catholic, it must be both a community of scholars representing various branches of human knowledge, and an academic institution in which Catholicism is vitally present and operative."
116. Aquinas College's Catholic educational mission is furthered by its leadership. Each of the College's Presidents has been a Dominican Sister, including its current President, Sister Mary Sarah Galbraith, O.P. At the beginning of her term, the President makes a Profession of Faith and takes the Oath of Fidelity in accord with Ex Corde Ecclesiae.
117. Other members of the College's leadership are also affiliated with St. Cecilia Congregation. The Prioress General of St. Cecilia Congregation serves as the Chairperson of the College's Board of Directors, and two of the four Vice Presidents of the College are Sisters ofSt. Cecilia Congregation. Sisters also serve in positions among the faculty and staff of the college.
118. Theological study is a part of the liberal arts education offered to all Aquinas College students. Every teacher of theology at Aquinas College has the Mandatum, an acknowledgement by Church authority that a Catholic professor of a theological discipline is a teacher within the full communion of the Catholic Church. The Mandatum recognizes the professor's commitment and responsibility to teach authentic Catholic doctrine and refrain from putting forth as Catholic teaching anything contrary to the Church's Magisterium (the official teaching of the Catholic Church).
119. Sensitivity to both the permanent and the changing needs of the Nashville community and to the needs of the Church led to the establishment of the degrees that Aquinas
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offers today: degrees in nursing, education, business, and liberal arts and sciences. Aquinas College graduates enter the workforce prepared to serve the Nashville community and beyond.
120. Aquinas College maintains a long-standing tradition of educating competent and qualified nurses-regardless of their religious backgrounds-to care for the sick. Tennessee is projected to have a shortage of nearly 15,000 nurses by 2020 and an even more critical shOliage of qualified nursing faculty, estimated at approximately 450 vacancies by 2020. To respond to the critical shortage, Aquinas College's School of Nursing began offering an innovative competency-based Master of Science in Nursing Education in 2012, and it is planning to implement a new four-year residential baccalaureate nursing program and expand enrollment in its nursing programs by 100% in the next four years. With one of the largest nursing programs in the state of Tennessee, Aquinas College is uniquely positioned to respond to the growing demand for qualified nurses and nursing faculty in the coming years.
121. The College also serves others directly through the education of its students and through its students' contributions to the community. For instance, students from the School of Nursing spend approximately 85,000 hours per academic year caring for the sick, regardless of age, race, or faith. Many of these hours are spent caring for patients suffering from acute and chronic illnesses in traditional institutional settings (e.g., hospitals, special care facilities, etc.).
122. Nursing students and faculty also participate in health fairs, where they educate Middle Tennesseans about issues of health, wellness, and nutrition and provide health assessment screenings to the public. Consistent with the College's Catholic mission, these services are provided to anyone who needs them, free of charge.
123. Aquinas College students and faculty contribute to the Nashville and greater Tennessee communities through other community service projects as well. Faculty, students,
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and alumni have volunteered at a local homeless shelter, made donations to Angel Tree programs, and participated in food drives, among other efforts.
124. Aquinas College also serves its community by providing a forum for intellectual and spiritual thought and discourse. Its annual Lecture Series offers the Nashville community the opportunity to learn from respected leaders from within the College and across the country, offering free lectures on a variety of topics. Past lectures have discussed financial planning, Jewish-Christian relations, music and fine arts, and parenting.
125. While committed to remaining a distinctly Catholic and Dominican institution, Aquinas College opens its doors to students, academics, prospective employees, and people in need, from all faiths and creeds.
126. Aquinas College costs over $2,000 less than the average private college in Telmessee and offers comprehensive financial aid programs to its students. Approximately 92% of its students receive financial assistance annually.
127. Aquinas College currently educates nearly 600 graduate and undergraduate students annually, and it is rated among the top Catholic colleges in the nation. Approximately 45% of its students are Catholic and 17% of its students are minorities. Aquinas College students are not offered a health plan.
128. Aquinas College maintains a faculty of approximately 130 professors, who are recognized as leaders in their fields. An additional fifty-two (52) staff members are employed by the College. Eighty-nine (89) of the College's employees are classified as full-time (i.e. working thirty hours or more per week), including sixteen (16) Dominican Sisters.
129. Aquinas College offers its eligible employees health insurance through The Dominican Campus Health Plans sponsored by Plaintiff Dominican Sisters. Eligible employees
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are offered two health benefits plans from which to choose. Both are fully-insured plans offered and administered by Blue Cross Blue Shield of Tennessee. The College subsidizes health plan premiums for its eligible employees. Full-time employees of Aquinas College who are also Dominican Sisters receive employee health benefits through the Dominican Sisters' separate health benefits plan.
130. The health plans offered by Aquinas College to its employees do not meet the Affordable Care Act's definition of a "grandfathered" plan. Aquinas College has not included and does not include a statement in plan materials provided to participants or beneficiaries informing them that it believes its plans are grandfathered health plans within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i).
131. Aquinas College does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Aquinas College does not qualify as a "religious employer" under the exemption to the U.S. Government Mandate.
132. The plan year for Aquinas College (and The Dominican Campus Health Plans) begins on September 1st. II. STATUTORY AND REGULATORY BACKGROUND
A. Statutory Background 133. In March 2010, Congress enacted the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the "Affordable Care Act" or the "Act"). The Affordable Care Act established many new requirements for "group health plan[s]," broadly defined as "employee welfare benefit plan[s]" within the meaning of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1002(1), that "provide[] medical care ... to employees or their dependents." 42 U.S.C. § 300gg-91 (a)(1).
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134. As relevant here, the Act requires an employer's group health plan to cover certain women's "preventive care." Specifically, it indicates that "[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 ... with respect to women, such additional preventive care and screenings ... as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph." 42 U.S.C. § 300gg-13(a)(4). Because the Act prohibits "cost sharing requirements," the health plan must pay for the full costs of these "preventive care" services without any deductible or co-payment.
135. "[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was emolled on March 23,2010." Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19,2010) ("Interim Final Rules"); 42 U.S.C. § 18011. These so-called "grandfathered health plans do not have to meet the requirements" of the U.S. Government Mandate. 75 Fed. Reg. at 41,731. HHS estimates that "98 million individuals will be emolled in grandfathered group health plans in 2013." Id. at 41 ,732.
136. Federal law provides several mechanisms to enforce the requirements of the Act, including the U.S. Government Mandate. For example:
a. Under the Internal Revenue Code, certain employers who fail to offer "full-time employees (and their dependents) the opportunity to emoll in minimum essential coverage under an eligible employer-sponsored plan" will be exposed to
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significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
b. Under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to a penalty of $1 00 a day per affected beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Congo Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the "preventive care" provision of the Affordable Care Act).
C. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Congo Research Serv., RL 7-5700.
d. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Congo Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the "preventive care" provision of the Affordable Care Act). 137. Several of the Act's provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the "preventive care" required by § 300gg-13(a)(4) should exclude all abortion-related services. 138. For example, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, prohibits certain agencies from discriminating against an institution based on that institution' s refusal to provide abortion-related services. Specifically, it states that "[n]one of the funds made available in this Act [to the
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Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." Consolidated Appropriations Act of2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). The term "health care entity" is defined to include "an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan." ld. § 507(d)(2) (emphasis added).
139. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abOliion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abOliion services. See H.R. 3962, 111 th Congo § 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, 111th Congo (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as "budget reconciliation" that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed to adequately prohibit federal funding of abortion. In an attempt to address these concerns, President Barack Obama issued an executive order providing that no executive agency would authorize the federal funding of abOliion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24,2010).
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140. The Act, therefore, was passed on the central premise that all agencies would uphold and follow "longstanding Federal laws to protect conscience" and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
B. Regulatory Background - Defining "Preventive Care" and the Narrow Exemption 141. In a span ofless than two years, Defendants promulgated the U.S. Government
Mandate, subverting the Act's clear purpose to protect the rights of conscience. The U.S. Government Mandate immediately prompted intense criticism and controversy, in response to which the Government has undertaken various revisions. None of these revisions, however, alleviates the burden that the U.S. Government Mandate imposes on Plaintiffs' religious beliefs. To the contrary, these revisions have resulted in a final rule that is significantly worse than the original one.
(1) The Original Mandate 142. On July 19,2010, Defendants issued interim final rules addressing the statutory requirement that group health plans provide coverage for women's "preventive care." 75 Fed. Reg. 41,726 (July 19,2010) (citing 42 U.S.C. § 300gg-13(a)(4». Initially, the rules did not define "preventive care," instead noting that "[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1,2011." Id. at 41,731. 143. To develop the definition of "preventive care," HHS outsourced its deliberations to the Institute of Medicine ("10M"), a non-governmental "independent" organization. The 10M in turn created a "Committee on Preventive Services for Women," composed of 16 members who were selected in secret without any public input ("10M Committee"). At least eight of the
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Committee members had founded, chaired, or worked with "pro-choice" advocacy groups (including five different Planned Parenthood entities) that have well-known political and ideological views, including strong animus toward Catholic teachings on abortion and contracepti on.
144. Unsurprisingly, the 10M Committee invited presentations from several "prochoice" groups, such as Planned Parenthood and the Guttmacher Institute (named for a former president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization. Instead, opponents were relegated to lining up for brief open-microphone sessions at the close of each meeting.
145. At the close of this process, on July 19,2011, the 10M Committee issued a final report recommending that "preventive care" for women be defined to include "the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity." lnst. Of Med., Clinical Preventive Services for Women: Closing the Gaps," at 218-19 (2011) ("10M Report").
146. The extreme bias of the 10M process spurred one member of the Committee, Dr. Anthony Lo Sasso, to dissent from the final recommendation, writing: "[T]he committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee's composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy." Id. at 232.
147. At a press briefing the next day, the chair of the 10M Committee fielded a question from a representative of the U.S. Conference of Catholic Bishops regarding the "coercive dynamic" of the U.S . Government Mandate, asking whether the Committee considered the "conscience rights" of those who would be forced to pay for coverage that they found
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objectionable on moral and religious grounds. In response, the chair illustrated her cavalier attitude toward the religious-liberty issue, stating bluntly: "[W]e did not take into account individual personal feelings." See Linda Rosenstock, Chair, Inst. OfMed. Comm. On Preventive Servs. For Women, Press Briefing (July 20, 2011), available at http://www.iom.eduiReports/20 11 IClinical-Preventive-Services-for- Women-Closing-theGaps.aspx. The chair later expressed concern to Congress about considering religious objections to the U.S. Government Mandate because to do so would risk a "slippery slope" that could occur by "opening up that door" to religious liberty. See Executive Overreach: The HHS Mandate Versus Religious Liberty: Hearing Before the H. Comm. On the Judiciary, llih Congo (2012) (testimony of Linda Rosenstock, Chair, Inst. OfMed. Comm. On Preventive Servs. For Women).
148. Less than two weeks after the 10M Report, without pausing for notice and comment, HHS issued a press release on August 1, 2011, announcing that it would adopt the 10M's definition of "preventive care," including all "FDA-approved contraception methods and contraceptive counseling." See U.S. Dept. of Health and Human Services, "Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost," available at http://www.hhs.gov/news/press/2011 pres/08/20 11 0801 b.html. HHS ignored the religious, moral and ethical dimensions of the decision and the ideological bias of the 10M Committee, and stated that it had "relied on independent physicians, nurses, scientists, and other experts" to reach a definition that was "based on scientific evidence." Under the final "scientific" definition, the category of mandatory "preventive care" extends to "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." See "Women's Preventive Services: Required Health Plan Coverage Guidelines," http://www.hrsa.gov/womensguidelines.
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149. The Government's definition of mandatory "preventive care" also includes abortion-inducing products. For example, the FDA has approved "emergency contraceptives" such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.
150. Shortly after announcing its definition of "preventive care," the Government proposed a narrow exemption from the U.S. Government Mandate for a small category of "religious employers" that met all of the following four criteria: "(1) The inculcation of religious values is the purpose of the organization"; "(2) The organization primarily employs persons who share the religious tenets of the organization"; "(3) The organization serves primarily p.ersons who share the religious tenets of the organization"; and "(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." 76 Fed. Reg. at 46,621,46,626 (Aug. 3,2011) (codified at 45 C.F.R. § 147.130(a)(iv)(B».
151. As the Government itself admitted, this narrow exemption was intended to protect only "the unique relationship between a house of worship and its employees in ministerial positions." Id. at 46,623. It provided no protection for religious universities, elementary and secondary schools, hospitals, and charitable organizations.
152. The sweeping nature of the U.S. Government Mandate was subject to widespread and withering criticism. Religious leaders from across the country protested that they should not be punished or considered less religious simply because they chose to live out their faith by serving needy members of the community who might not share their beliefs. As Cardinal Wuerl later wrote, "Never before has the government contested that institutions like Archbishop Carroll
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High School or Catholic University are religious. Who would? But HHS's conception of what constitutes the practice of religion is so nalTOW that even Mother Teresa would not have qualified. "
153. Despite such pleas, the Government at first refused to reconsider its position. Instead, the Government "finalize[d], without change," the nalTOW exemption as originally proposed. 77 Fed. Reg. at 8,729. At the same time, the Government announced that it would offer a "a one-year safe harbor from enforcement" for religious organizations that remained subject to the U.S. Government Mandate. Id. at 8,728. As noted by Cardinal Timothy Dolan, the "safe harbor" effectively gave religious groups "a year to figure out how to violate our consciences. "
154. A month later, under continuing public pressure, the Government issued an Advance Notice of Proposed Rulemaking ("ANPRM") that, it claimed, set out a solution to the religious-liberty controversy created by the U.S. Government Mandate. 77 Fed. Reg. 16,501 (Mar. 21,2012). The ANPRM did not revoke the U.S. Government Mandate, and in fact reaffirmed the Government's view at the time that the "religious employer" exemption would not be changed. Id. at 16,501-08. Instead, the ANPRM offered hypothetical "possible approaches" that would, in the Government's view, somehow solve the religious-liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507. As the U.S. Conference of Catholic Bishops soon recognized, however, any semblance of relief offered by the ANPRM was illusory. Although it was designed to "create an appearance of moderation and compromise, it [did] not actually offer any change in the Administration's earlier stated positions on mandated contraceptive coverage." See Comments of U.S. Conference of Catholic Bishops (May 15,2012), at 3, available at http://www.usccb.org/about/general-
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counsellrulemaking/upload/comments-on-advance-notice-of-proposed-rulemaking-on-preventiveservices-12-05-15.pdf.
(2) Plaintiffs' First Lawsuit and the Government's Promise of Non-Enforcement 155. The first lawsuit filed by Plaintiffs (except for Camp Marymount and Dominican Sisters) was dismissed by this Court, without prejudice, based on the Government's express promises that it would never enforce the then-current regulations against Plaintiffs and the Government's commitment to amend the regulations to accommodate the concerns of entities with religious objections like those of Plaintiffs before the expiration of the safe harbor in August 2013. 156. Specifically, Plaintiffs filed their first lawsuit on September 12,2012 in the U.S. District Court for the Middle District of Tennessee. Plaintiffs' Complaint sought to enjoin the U.S. Government Mandate on the grounds that, among other things, it violated their rights of religious conscience under RFRA and the First Amendment. See The Catholic Diocese of Nashville v. Sebelius, Docket No. 3:12-cv-0934 (M.D. Tenn.) [Dkt. #46]. 157. In response to this and similar litigation, the Government cited the ANPRM and promised that "[i]n light of the forthcoming amendments [to the regulations], and the opportunity the rulemaking process provides for plaintiffs to help shape those amendments, there is no reason to suspect that plaintiffs will be required to sponsor a health plan that covers contraceptive services in contravention of their religious beliefs once the enforcement safe harbor expires." Mem. in Support ofDefs.' Mot. to Dismiss [Dkt. # 29] at 12-13. 158. The Government also represented that "the forthcoming amendments [were] intended to address the very issue that plaintiffs raise here by establishing alternative means of providing contraceptive coverage without cost-sharing while accommodating religious
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organizations' religious objections to covering contraceptive services." Id. at 17. Indeed, the Government assured this COUli, "[0]nce defendants complete the rulemaking outlined in the ANPRM, plaintiffs' challenge to the current regulations likely will be moot." Id. at 18-19.
159. In response to the Government's motion to dismiss, Plaintiffs made clear that even if the ANPRM were enacted, it would still require them to provide, pay for, and/or facilitate the provision of objectionable insurance coverage for their employees and, therefore, would not relieve the burden on their religious exercise. See PI. Mem. in Opp. [Dkt. #35]. Indeed, Plaintiffs submitted uncontested factual affidavits expressly so stating. See, e.g., PI. Mem. in Opp. [Dkt. #35-1], Robinson Aff., Director of Human Resources of the Catholic Diocese of Nashville, at 10 (noting that the ANPRM "will not alter the core requirement of the Mandate that forces the Diocese to pay for or facilitate the provision of abortion-inducing drugs, contraception, and sterilization, in contravention of its religious beliefs").
160. On November 15, 2012, a hearing was held on the Government's motion to dismiss in which the Government assured the Court that "defendants are amending the challenged regulations to address the very type of religious concerns that plaintiffs raise in this case." Mot. to Dismiss Tr. at 3 [Dkt. #45]. The Government further represented that "Plaintiffs' allegation or argument that they will be injured by being excluded from the religious employer exemption presupposes that their concerns will not be addressed by the forthcoming accommodation even though plaintiffs [] have an opportunity now to participate in the ongoing regulatory process. And even though plaintiffs say that they will be unsatisfied with the ideas that were listed in the ANPRM, those ideas do not encompass the full range of considerations that defendants are taking into effect." Mot. to Dismiss Tr. at 41 [Dkt. #45].
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161. Based on the Government's representations, on November 21, 2012, the district court granted the Government's motion to dismiss for lack of standing " [b]ecause an amendment to the final rule that may vitiate the threatened injury is not only promised but underway." The Catholic Diocese ofNashville v. Sebelius, Docket No. 3:12-cv-0934 (M.D. Tenn.) [Dkt. #46] at 7.
(3) The Government's Final Offer and the Empty "Accommodation" 162. On February 1,2013, the Government issued a Notice of Proposed Rulemaking ("NPRM"), setting forth in further detail its proposal to "accommodate" the rights of Plaintiffs and other religious organizations. Contrary to the Government's previous assurances, however, the NPRM adopted the proposals contained in the ANPRM. The NPRM, like the Government's previous proposals, was once again met with strenuous opposition, including over 400,000
comments. For example, the u.s. Conference of Catholic Bishops stated that "the
'accommodation' still requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage. Such organizations and their employees remain deprived of their right to live and work under a health plan consonant with their explicit religious beliefs and commitments." Comments of U.S. Conference of Catholic Bishop (Mar. 20, 2013), at 3, available at http://www. usccb. orglaboutlgeneral-counsellrulemakingluploadl2013-NPRMComments-3-20-final.pdf. Likewise, Plaintiff Archdiocese noted that the NPRM's proposed "accommodation" was nothing more than "an accounting maneuver" and did not redress the burden that the U.S. Government Mandate imposes on religious liberty and that, as a result, the Archdiocese had no choice but to "continue[] to strenuously oppose the Mandate, including the proposed changes." Comments of Archdiocese of Washington, at 2 (Apr. 4, 2013), available at http://www. becketfund.org/wp-content/uploads/20 13/04/Comments-4-4-13-Archdiocese-ofWashington. pdf.
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163. Despite this opposition, on June 28, 2013, the Government issued a final rule that adopted substantially all of the NPRM's proposal without significant change. See 78 Fed. Reg. 39,870 (July 2, 2013) ("Final Rule").
164. The Final Rule makes three changes to the Mandate. As described below, none of these changes relieves the unlawful burdens placed on Plaintiffs and other religious organizations. Indeed, one of them significantly increases that burden by greatly increasing the number of religious organizations subject to the U.S. Government Mandate.
165. First, the Final Rule makes what the Government concedes to be a nonsubstantive, cosmetic change to the definition of "religious employer." In particular, it eliminates the first three prongs of that definition, such that, under the new definition, an exempt "religious employer" is simply "an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." 78 Fed. Reg. at 39,874 (codified at 45 C.F.R. § 147.131(a)). As the Government has admitted, this new definition does "not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules." 78 Fed. Reg. at 8,461. Instead, it continues to "restrict[]the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders." Id. In this respect, the Final Rule mirrors the intended scope of the original "religious employer" exemption, which focused on "the unique relationship between a house of worship and its employees in ministerial positions." 76 Fed. Reg. at 46,623. Religious organizations that have a broader mission are still not, in the Goverrunent's view, "religious employers."
166. The "religious employer" exemption, moreover, creates an official, Governmentfavored category of religious groups that are exempt from the U.S. Government Mandate, while
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denying this favorable treatment to all other religious groups. The exemption applies only to those groups that are "referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code." This category includes only (i) "churches, their integrated auxiliaries, and conventions or associations of churches," and (iii) "the exclusively religious activities of any religious order." The IRS has adopted an intrusive fourteen (14)-factor test to determine whether a group meets these qualifications. See Foundation ofHuman Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009). Among these fOUlieen (14) factors is whether the group has" a recognized creed and form of worship," "a definite and distinct ecclesiastical government," "a formal code of doctrine and discipline," "a distinct religious history," "an organization of ordained ministers" "a literature of its own," "established places of worship," "regular congregations, "regular religious services," "Sunday schools for the religious instruction of the young," and "schools for the preparation of its ministers." Jd. Not only do these factors favor some religious groups at the expense of others, but they also require the Government to make intrusive judgments regarding religious beliefs, practices, and organizational features to determine which groups fall into the favored category.
167. Second, the Final Rule establishes an illusory "accommodation" for certain nonexempt objecting religious entities that qualify as "eligible organizations." To qualify as an "eligible organization," a religious entity must (l) "oppose[] providing coverage for some or all of [the] contraceptive services," (2) be "organized and operate[] as a non-profit entity"; (3) "hold[] itself out as a religious organization," and (4) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance company or, if the religious organization is self-insured, to its third-party administrator. 26 C.F.R. § 54.98162713A(a). The provision of this self-certification then automatically requires the insurance issuer
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or third-party administrator to provide or arrange "payments for contraceptive services" for the organization's employees, without imposing any "cost-sharing requirements (such as a copayment, coinsurance, or a deductible)." Id. § 54.9816-2713A(b)(2), (c)(2). The objectionable coverage, moreover, is directly tied to the organization's health plan, lasting only as long as the employee remains on that plan. See 29 C.F.R. § 2590.715-2713; 45 C.F.R. § 147.131(c)(2)(i)(B). In addition, self-insured organizations are prohibited from "directly or indirectly, seek[ing] to influence the[ir] third party administrator's decision" to provide or procure contraceptive services. 26 C.F.R. § 54.9815-2713.
168. This so-called "accommodation" fails to relieve the burden on religious organizations. Under the original version of the U.S. Government Mandate, a non-exempt religious organization's decision to offer a group health plan resulted in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling. Under the Final Rule, a non-exempt religious organization's decision to offer a group health plan still results in the provision of coverage-now in the form of "payments"-for abortion-inducing products, contraception, sterilization, and related counseling. Id. § 54.9816-2713A(b)-(c). In both scenarios, Plaintiffs' decision to provide a group health plan triggers the provision of "free" contraceptive coverage to their employees in a manner contrary to their beliefs. The provision of the objectionable products and services are directly tied to Plaintiffs' insurance policies, as the objectionable "payments" are available only so long as an employee is on the organization's health plan. See 29 C.F.R. § 2590.715-2713 (for self-insured employers, the third-party administrator "will provide or arrange separate payments for contraceptive services ... for so long as [employees] are enrolled in [their] group health plan"); 45 C.F.R. § 147.131(c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must "[p]rovide separate payments
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for any contraceptive services ... for plan participants and beneficiaries for so long as they remain enrolled in the plan"). For self-insured organizations, moreover, the self-certification constitutes the religious organization's "designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits." 78 Fed. Reg. at 39,879 (emphasis added). Thus, employer health plans offered by non-exempt religious organizations are the vehicle by which "free" abortion-inducing products, contraception, sterilization, and related counseling are delivered to the organizations' employees.
169. Needless to say, this shell game does not address Plaintiffs' fundamental religious objection to improperly facilitating access to the objectionable products and services. As before, Plaintiffs are coerced, through threats of crippling fines and other pressure, into facilitating access to contraception, abortion-inducing products, sterilization, and related counseling for their employees, contrary to their sincerely held religious beliefs.
170. The so-called "accommodation," moreover, requires Plaintiffs to cooperate in the provision of objectionable coverage in other ways as well. For example, in order to be eligible for the so-called "accommodation," Plaintiffs must provide a "certification" to their insurance provider setting forth their religious objections to the U.S. Government Mandate. The provision of this "certification," in turn, automatically triggers an obligation on the part of the insurance provider to provide Plaintiffs' employees with the objectionable coverage. A religious organization's self-certification, therefore, is a trigger and but-for cause of the objectionable coverage.
171. The U.S. Government Mandate also requires Plaintiffs to subsidize the objectionable products and services.
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172. For organizations that procure insurance through a separate insurance provider, the Government asserts that the cost of the objectionable products and services will be "cost neutral" and, therefore, that Plaintiffs will not actually be paying for it, notwithstanding the fact that Plaintiffs' premiums are the only source of funding that their insurance providers will receive for the objectionable products and services.
173. The Government's "cost-neutral" assertion, however, is implausible. It rests on the assumption that cost "savings" from "fewer childbirths" will be at least as large as the direct costs of paying for contraceptive products and services and the costs of administering individual policies. 78 Fed. Reg. at 8,463. Some employees, however, will choose not to use contraception notwithstanding the U.S. Government Mandate. Others would use contraception regardless of whether it is being paid for by an insurance company. And yet others will shift from less expensive to more expensive products once coverage is mandate and cost-sharing is prohibited. Consequently, there can be no assurance that cost "savings" from "fewer childbirths" will offset the cost of providing contraceptive services.
174. More impOliantly, even if the Government's "cost-neutral" assertion were true, it is irrelevant. The so-called "accommodation" is nothing more than a shell game. Premiums previously paid by the objecting employers to cover, for example, "childbirths," will now be redirected to pay for contraceptive products and services. Thus, the objecting employer is still required to pay for the objectionable products and services.
175. For self-insured organizations, the Government's "cost-neutral" assumption is likewise implausible. The Government asserts that third-party administrators required to provide or procure the objectionable products and services will be compensated by reductions in user fees that they otherwise would pay for pmiicipating in federally-facilitated health exchanges. See 78
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Fed. Reg. at 39,882. Such fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third-party administrators. Such regulatory regimes, however, do not fully compensate the regulatory entities for the costs and risks incurred. As a result, few if any third party administrators are likely to participate in this regime, and those that do are likely to increase fees charged to the self-insured organizations.
176. Either way, as with insured plans, self-insured organizations likewise will be required to subsidize contraceptive products and services notwithstanding the so-called "accommodation. "
177. For all of these reasons, the U.S. Government Mandate continues to require Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related education and counseling, in violation of their sincerely held religious beliefs.
178. Third, the Final Rule actually increases the number of religious organizations that are subject to the U.S. Government Mandate. Under the Government's initial "religious employer" definition, if a nonexempt religious organization "provided health coverage for its employees through" a plan offered by a separate, "affiliated" organization that was "exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees." 77 Fed. Reg. at 16,502.
179. For example, Plaintiff Diocese offers fully-insured health plans that cover not only the Diocese itself, but other affiliated Catholic organizations-including Plaintiffs Catholic Charities and Camp Marymount. Under the religious employer exemption that was originally
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proposed, if the Diocese was an exempt "religious employer," then Plaintiffs Catholic Charities and Camp Marymount received the benefit of that exemption, regardless of whether they independently qualified as "religious employers," because they could continue to participate in the Diocese's exempt plan. These affiliated organizations, therefore, could benefit from the Diocese's exemption even if they, themselves, could not meet the Government's unprecedentedly narrow definition of "religious employer." The same is true for Plaintiffs St. Cecilia Congregation and Aquinas College-Aquinas College would have received the benefit of The Dominican Campus Health Plans' exemption.
180. The Final Rule eliminates this safeguard. Instead, it provides that "each employer" must "independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respect to its employees and their covered dependents." 78 Fed. Reg. at 39,886. See also 78 Fed. Reg. at 8,467 (NPRM). Because Plaintiffs Catholic Charities, Camp Marymount, and Aquinas College do not appear to meet the Government's narrow definition of "religious employers," they are now subject to the U.S. Government Mandate.
181. Although Plaintiff Diocese is a "religious employer," the U.S. Government Mandate still requires it either to (1) sponsor a plan that will provide Plaintiffs Catholic Charities and Camp Marymount, and other affiliated Catholic organizations, with access to the objectionable products and services, or (2) no longer extend its plans to these organizations, subjecting these organizations to massive fines if they do not contract with another insurance provider that will provide the objectionable coverage.
182. The same is true for Plaintiff St. Cecilia Congregation-an exempt "religious employer." The U.S. Government Mandate forces St. Cecilia Congregation to either (1) sponsor
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a healthcare plan that will provide Plaintiff Aquinas College, and other affiliated Catholic organizations, with access to the objectionable products and services, or (2) no longer extend The Dominican Campus Health Plans to Plaintiff Aquinas College and other equally religious organizations, subjecting these organizations to substantial fines if they do not contract with another insurance provider to offer the objectionable coverage.
183. The first option forces the Diocese and St. Cecilia Congregation to act contrary to their sincerely held religious beliefs.
184. The second option not only makes the Diocese and St. Cecilia Congregation complicit in the provision of objectionable coverage, by forcing its affiliates out of its plans and to obtain the objectionable coverage through another insurance provider, but also compels the Diocese and St. Cecilia Congregation to submit to the Government's interference with their structure and internal operations by accepting a construct that divides churches from their ministries and religious vocations.
185. In this respect, the U.S. Government Mandate seeks to divide the Catholic Church. The Church's faith in action, carried out through its charitable and educational arms, is every bit as central to the Church's religious mission as is the administration of the Sacraments. In the words of Pope Benedict XVI, "[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word." Yet the U.S. Government Mandate seeks to separate these consubstantial aspects of the Catholic faith, treating one as "religious" and the other as not. The U.S. Government Mandate therefore deeply intrudes into internal Church governance.
186. In sum, the Final Rule not only fails to alleviate the burden that the U.S. Government Mandate imposes on Plaintiffs' religious beliefs; it in fact makes that burden
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significantly worse by increasing the number of religious organizations that are subject to the
u.s. Government Mandate. The u.s. Government Mandate, therefore, requires Plaintiffs to act
contrary to their sincerely held religious beliefs or submit to the Government's interference with their structure and internal operations-both of which severely burden Plaintiffs' exercise of religion. III. THE U.S. GOVERNMENT MANDATE IMPOSES A SUBSTANTIAL BURDEN
ON PLAINTIFFS' RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiffs' Religious Beliefs
187. Responding to the u.s. Government Mandate, Donald Cardinal Wuerl has
declared that "what is at stake here is a question of human freedom." And indeed it is. Since the founding of this country, our law and society have recognized that individuals and institutions are entitled to freedom of conscience and religious practice. Absent a compelling reason, no govenm1ent authority may compel any group or individual to act contrary to their religious beliefs. As noted by Thomas Jefferson, "[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority."
188. The U.S. Government Mandate violates Plaintiffs' rights of conscience by forcing them to participate in an employer-based scheme to provide insurance coverage to which they strenuously object on moral and religious grounds.
189. It is a core tenet of Plaintiffs' religion that abortion, contraception, and sterilization are serious moral wrongs.
190. Plaintiffs' Catholic beliefs therefore prohibit them from providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization.
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191. As a corollary, Plaintiffs' Catholic beliefs prohibit them from contracting with an insurance company or third party administrator that will, as a result, provide or procure the objectionable products and services to Plaintiffs' employees.
192. Plaintiffs' beliefs are deeply and sincerely held. 193. The U.S. Government Mandate, therefore, requires Plaintiffs to do precisely what their sincerely held religious beliefs prohibit-provide, pay for, and/or facilitate access to objectionable products and services or else incur crippling sanctions. 194. The U.S. Government Mandate therefore imposes a substantial burden on Plaintiffs' religious beliefs. 195. The U.S. Government Mandate's exemption for "religious employers" does not alleviate the burden. 196. The "religious employers" exemption does not apply to Plaintiff Catholic Charities, Camp Marymount, MQA, St. Mary Villa, or Aquinas College. 197. Although Plaintiffs the Diocese and St. Cecilia Congregation are "religious employers," the U.S. Government Mandate still burdens their sincerely held religious beliefs by requiring them either to (1) sponsor a plan that will provide employees of Plaintiffs Catholic Charities, Camp Marymount, Aquinas College, and their other affiliated Catholic organizations, with access to the objectionable products and services; or (2) expel these affiliates from their insurance plans, thereby forcing their affiliates into an arrangement with another insurance provider that will, in turn, provide or procure the objectionable products and services. 198. The first option forces the Diocese and St. Cecilia Congregation to act contrary to their sincerely held religious beliefs.
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199. The second option not only makes the Diocese and St. Cecilia Congregation complicit in the provision of objectionable coverage, by forcing their affiliates out of their plans and to obtain the objectionable coverage through another insurance provider, but also compels the Diocese and St. Cecilia Congregation to submit to the Government's interference with their structure and internal operations by accepting a construct that divides churches from their ministries and religious vocations.
200. The so-called "accommodation" does not alleviate the burden on Plaintiffs' sincerely held religious beliefs.
201. Notwithstanding the so-called "accommodation," Plaintiffs are still required to provide, pay for, and/or facilitate access to the objectionable products and services.
202. Plaintiffs' Catholic beliefs do not simply prohibit them from using or directly paying for the objectionable coverage. Their beliefs also prohibit them from facilitating access to the objectionable products and services in the manner required by the U.S. Government Mandate.
203. Finally, Plaintiffs cannot avoid the U.S. Government Mandate without incurring crippling fines. If they eliminate their employee health plans, they are subject to annual fines of $2,000 per full-time employee. If they keep their health plans but refuse to provide or facilitate the objectionable coverage, they are subject to daily fines of $1 00 a day per affected beneficiary. The fines therefore coerce Plaintiffs into violating their religious beliefs.
204. In short, while the President claims to have "found a solution that works for everyone" and that ensures that "religious liberty will be protected," his promised "accommodation" does neither. Unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiffs' religious beliefs.
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B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability 205. The U.S. Government Mandate is not a neutral law of general applicability. It
offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing products, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with Plaintiffs' religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
206. For example, the U.S. Government Mandate exempts all "grandfathered" plans from its requirements, thus excluding tens of millions of people from the mandated coverage. As the Government has admitted, while the numbers are expected to diminish over time, "98 million individuals will be enrolled in grandfathered group health plans in 2013." 75 Fed. Reg. at 41,732. Elsewhere, the government has put the number at 87 million. See "Keeping the Health Plan You Have" (June 14,2010), http://www.healthcare.gov/news/factsheets/201 0106/keeping-the-health-plan-you-havegrandfathered.html. And according to one district court last year, "191 million Americans belong[ed] to plans which may be grandfathered under the ACA." Newlandv. Sebelius, 881 F. Supp. 2d 1287, 1291 (D. Colo. 2012).
207. Similarly, small employers 0. e., those with fewer than 50 employees) are exempt
from certain enforcement mechanisms to compel compliance with the U.S. Government Mandate. See 26 U.S.C. §§ 4980D(d) (exempting small employers from penalties imposed for failing to provide the objectionable services), 4980H(a) (exempting small employers from the assessable payment for failure to provide health coverage).
208. In addition, the U.S. Government Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the
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Internal Revenue Code. The Government cannot justify its protection of the religiousconscience rights of the narrow category of exempt "religious employers," but not of Plaintiffs and other religious organizations that remain subject to the U.S. Government Mandate.
209. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long supported abortion rights and criticized Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America fundraiseI', stating: "Wouldn't you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much." In addition, the U.S. Government Mandate was modeled on a California law that was motivated by discriminatory intent against religious groups that oppose contraception.
210. Consequently, Plaintiffs allege that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
211. The U.S. Government Mandate is not narrowly tailored to serve a compelling governmental interest.
212. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely held religious beliefs by requiring them to participate in a scheme for the provision of
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abortion-inducing products, sterilization, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plaintiffs do inhibits any individual from exercising that right.
213. Even assuming the interest was compelling, the Government has numerous alternative means of furthering that interest without forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable products and services itself through other programs established by a duly enacted law. Or, at a minimum, it could have created a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
214. The U.S. Government Mandate, moreover, would simultaneously undermine both religious freedom-a fundamental right enshrined in the U.S. Constitution-and access to the wide variety of social and educational services that Plaintiffs provide. The Diocese serves a wide variety of people in need-including the poor, elderly, and disabled. Catholic Charities provides a range of social services to the citizens of Middle Tennessee. Camp Marymount provides a spiritual and educational summer camp experience to school age children. MQA provides housing to low-income, elderly individuals while St. Mary Villa provides affordable daycare options to a diverse range of families in need of quality childcare. Likewise, as part of its vocation, St. Cecilia Congregation administers The Dominican Campus which educates students
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from preschool through college level in the Dominican tradition. Aquinas College provides its students with a high-quality education in numerous fields of study while addressing the critical nationwide shortage of nurses. As President Obama acknowledged in his announcement of February 10, 2012, religious organizations like Plaintiffs do "more good for a community than a government program ever could." The U.S. Government Mandate, however, puts these good works in jeopardy.
215. That is unconscionable. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate camlot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the U.S. Government Mandate. IV. THE U.S. GOVERNMENT MANDATE THREATENS PLAINTIFFS WITH
IMMINENT INJURY THAT SHOULD BE REMEDIED BY A COURT 216. The U.S. Government Mandate is causing serious, ongoing hardship to Plaintiffs that merits relief now. 217. On June 28,2013, Defendants finalized the U.S. Government Mandate, including the narrow "religious employer" exemption and the so-called "accommodation" proposed in the NPRM. By the terms of the Final Rule and its transitional safe harbor, Plaintiffs must comply with the U.S. Government Mandate by the beginning of the next plan year on or after January 1, 2014. 218. For Plaintiffs the Diocese, Catholic Charities, and Camp Marymount, the next plan year begins on January 1,2014. 219. For the Mary Entities (MQA and St. Mary Villa), the next plan year begins on August 1, 2014. 220. For St. Cecilia Congregation and Aquinas College, the next plan year begins on September 1,2014.
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221. Defendants have given no indication that they will not enforce the essential provisions of the U.S. Government Mandate that impose a substantial burden on Plaintiffs' rights. Consequently, absent the relief sought herein, Plaintiffs will be required to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related education and counseling, in violation of their sincerely held religious beliefs.
222. The U.S. Government Mandate is also harming Plaintiffs in other ways. 223. Health plans do not take shape overnight. A number of analyses, negotiations, and decisions must occur each year before Plaintiffs can offer a health benefits package to their employees. For example, Plaintiffs the Diocese, the Mary Entities, and St. Mary Villa-as employers using outside insurance issuers-must work with actuaries to evaluate their funding reserves, and then negotiate with the insurer to determine the cost of the products and services they want to offer to their employees. 224. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year at least one year before the plan year begins. The multiple levels of uncertainty surrounding the U.S. Government Mandate make this already lengthy process even more complex. 225. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they may be subject to government fines and penalties. Plaintiffs require time to budget for any such additional expenses. 226. The U.S. Government Mandate and its uncertain legality, moreover, undermine Plaintiffs' ability to hire and retain employees, thus placing them at a competitive disadvantage in the labor market relative to organizations that do not have a religious objection to the U.S. Government Mandate.
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227. Plaintiffs therefore need judicial relief now in order to prevent the serious, ongoing harm that the U.S. Government Mandate is already imposing on them.
V. CAUSES OF ACTION COUNT I
Substantial Burden on Religious Exercise in Violation of RFRA
228. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 229. RFRA prohibits the Government from substantially burdening an entity's exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 230. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise. 231. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 232. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to products, services, practices, and speech that are contrary to their religious beliefs. 233. The U.S. Government Mandate substantially burdens Plaintiffs' exercise of religion. 234. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate. 235. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
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236. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
237. Plaintiffs have no adequate remedy at law. 238. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 239. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 240. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity's exercise of religion. 241. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 242. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs. 243. The U.S. Government Mandate substantially burdens Plaintiffs' exercise of religion. 244. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling. 245. The U.S. Government Mandate is not a neutral law of general applicability because it was passed with discriminatory intent.
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246. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech, free association, and freedom from excessive government entanglement with religion.
247. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
248. The U.S. Government Mandate is not nalTowly tailored to further a compelling governmental interest.
249. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiffs' religious exercise in violation of the Free Exercise Clause of the First Amendment.
250. Plaintiffs have no adequate remedy at law., 251. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III Compelled Speech in Violation of the Free Speech Clause of the First Amendment 252. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 253. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 254. The First Amendment protects organizations as well as individuals against compelled speech. 255. Expenditures are a form of speech protected by the First Amendment. 256. The First Amendment protects against the use of a speaker's money to support a viewpoint that conflicts with the speaker's religious beliefs.
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257. The U.S. Government Mandate would compel Plaintiffs to provide health care plans to their employees that include or facilitate access to products and services that violate their religious beliefs.
258. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these objectionable products and servIces.
259. The U.S. Government Mandate would compel Plaintiffs to issue a certification of its beliefs that, in turn, would result in the provision of objectionable products and services to Plaintiffs' employees.
260. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs, and compelling Plaintiffs to engage in speech that will result in the provision of objectionable products and services to Plaintiffs' employees.
261. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
262. The U.S. Government Mandate furthers no compelling governmental interest. 263. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 264. Plaintiffs have no adequate remedy at law. 265. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV
Official "Church" Favoritism and Excessive Entanglement with Religion in Violation of the Establishment Clause of the First Amendment
266. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 61
Case 3:13-cv-01303 Document 1 Filed 11/22/13 Page 61 of 70 PageID #: 61

267. The Establishment Clause of the First Amendment prohibits the Government from adopting an official definition of a "religious employer" that favors some religious groups while excluding others.
268. The Establishment Clause also prohibits the Government from becoming excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices, and organizational features to determine whether they meet the Government's favored definition.
269. The "religious employer" exemption violates the Establishment Clause in two ways.
270. First, it favors some religious groups over others by creating an official definition of "religious employers." Religious groups that meet the Government's official definition receive favorable treatment in the form of an exemption from the U.S. Government Mandate, while other religious groups do not.
271. Second, even if it were permissible for the Government to favor some religious groups over others, the "religious employer" exemption would still violate the Establishment Clause because it requires the Government to determine whether groups qualify as "religious employers" based on intrusive judgments about their beliefs, practices, and organizational features. The exemption turns on an intrusive fourteen (14)-factor test to determine whether a group meets the requirements of section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) ofthe Internal Revenue Code. These fourteen (14) factors probe into matters such as whether a religious group has "a distinct religious history" or "a recognized creed and form of worship." But it is not the Government's place to determine whether a group's religious history is "distinct," or whether the group's "creed and form of worship" are "recognized." By directing the
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Government to patiake of such inquiries, the "religious employer" exemption runs afoul of the Establishment Clause prohibition on excessive entanglement with religion.
272. Plaintiffs have no adequate remedy at law. 273. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V Interference in Matters ofInternal Church Governance in Violation of
the Religion Clauses of the First Amendment 274. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 275. The Free Exercise Clause and Establishment Clause and the RFRA protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. 276. Under these Clauses, the Government may not interfere with a religious organization's internal decisions concerning the organization's religious structure, ministers, or doctrine. 277. Under these Clauses, the Government may not interfere with a religious organization's internal decision if that interference would affect the faith and mission of the organization itself. 278. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 279. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. 280. Plaintiffs have abided and must continue to abide by the decision of the Catholic Church on these issues.
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281. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views.
282. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortion, sterilization, or contraception.
283. Plaintiff Diocese has further made the internal decision that its affiliated religious entities, including Catholic Charities and Camp Marymount, should offer their employees healthinsurance coverage through the Diocesan plan, which allows the Diocese to ensure that these affiliates do not offer coverage for services that are contrary to Catholic teaching.
284. The U.S. Government Mandate interferes with Plaintiffs' internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic beliefs.
285. The U.S. Government Mandate's interference with Plaintiffs' internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
286. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiffs in a manner that affects Plaintiffs' faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment and the RFRA.
287. Plaintiffs have no adequate remedy at law. 288. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Illegal Action in Violation of the APA 289. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
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290. The APA condemns agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
291. The U.S. Government Mandate, its exemption for "religious employers," and its so-called "accommodation" for "eligible" religious organizations are illegal and therefore in violation of the APA.
292. The Weldon Amendment states that "[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program ... if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions." Consolidated Appropriations Act of2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(l), 125 Stat. 786, 1111 (2011).
293. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans that include coverage for abortion-inducing products, sterilization, contraception, or related education and counseling should be required to provide such plans.
294. The U.S. Government Mandate nevertheless requires employer-based health plans to provide coverage for abortion-inducing products, contraception, sterilization, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the Weldon Amendment requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
295. The U.S. Government Mandate violates the Weldon Amendment, RFRA, and the First Amendment.
65 Case 3:13-cv-01303 Document 1 Filed 11/22/13 Page 65 of 70 PageID #: 65

296. The U.S. Government Mandate therefore is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A).
297. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
298. Plaintiffs have no adequate remedy at law. 299. Defendants' failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Failure to Conduct Notice-and-Comment Rulemaking in Violation of the APA 300. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 301. The Affordable Care Act expressly delegates to an agency within HHS, the Health Resources and Services Administration, the authority to establish guidelines concerning the "preventive care" that a group health plan and health insurance issuer must provide. 302. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the "preventive care" guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments. 303. Defendants promulgated the "preventive care" guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law. 304. Defendants, instead, wholly delegated their responsibilities for issuing "preventive care" guidelines to a non-governmental entity, the 10M.
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305. The 10M did not permit or provide for the broad public comment otherwise allowed under the APA concerning the "preventive care" guidelines that it would recommend. The dissent to the 10M report noted both that the 10M conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
306. Within two weeks of the 10M issuing its women's "preventive care" guidelines, HHS issued a press release announcing that the 10M's guidelines regarding women's "preventive care" were required to be covered under the Affordable Care Act.
307. Defendants have never indicated reasons for failing to enact the "preventive care" guidelines through notice-and-comment rulemaking as required by the APA.
308. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
309. Plaintiffs have no adequate remedy at law. 310. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief. VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully pray that this Court:
1. Enter a declaratory judgment that the u.s. Govermnent Mandate violates
Plaintiffs' rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs' rights under the First Amendment;
3. Enter a declaratory judgment that the u.s . Government Mandate was
promulgated in violation of the APA; 4. Enter an injunction prohibiting the Defendants from enforcing the U.S.
Government Mandate against Plaintiffs; 67
Case 3:13-cv-01303 Document 1 Filed 11/22/13 Page 67 of 70 PageID #: 67

5. Enter an order vacating the U.S. Government Mandate;
6. Award Plaintiffs attorneys' and expert fees under 42 U.S.C. § 1988; and
7. Award all other relief as the Court may deem just and proper.
Respectfully submitted, this the 22nd day of November, 2013.
(\,=tlu;?~!l~(~~ - ) --~.
Matthew A. Kairis, Trial Attorney (Ohio Bar No. 55502)* Brandy H. Ranjan (Ohio Bar No. 86984)* Melissa D. Palmisciano (Ohio Bar No. 80027)* JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus,OH 43216 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 makairis@jonesday.com branjan@jonesday.com mpalmisciano@jonesday.com Counsel for Plaintiffs
L. Gino Marchetti, Jr. (Tenn. BPR No. 005562) Matthew C. Pietsch (Tenn. BPR No. 024659) Antonio 1. Aguilar (Tenn. BPR No. 029743) TAYLOR, PIGUE, MARCHETTI & BLAIR, PLLC 2908 Poston Avenue Nashville, Tennessee 37203-1312 Telephone: (615) 320-3225 Facsimile: (615) 320-3244 marchetti-dc@tpmblaw.com Local Counsel for The Catholic Diocese of Nashville; Catholic Charities ofTennessee, Inc.; Camp Marymount, Inc.; Mary, Queen ofAngels, Inc. ; and St. Mary Villa, Inc.
68 Case 3:13-cv-01303 Document 1 Filed 11/22/13 Page 68 of 70 PageID #: 68

Robb S. Harvey (Tenn. BPR No. 11519) Lauran Sturm (Tenn. BPR No. 030828) WALLER LANSDEN DORTCH & DAVIS, LLP 511 Union Street, Suite 2700 Nashville, Tem1essee 37219 Telephone: (615) 850-8856 robb.harvey@wallerlaw.com lauran.stunn@wallerlaw.com Local Counsel for St. Cecilia Congregation and Aquinas College
* pro hac vice applications forthcoming
69 Case 3:13-cv-01303 Document 1 Filed 11/22/13 Page 69 of 70 PageID #: 69

CERTIFICATE OF SERVICE I hereby certify that on November 22, 2013, I filed the foregoing Plaintiffs' Complaint

with the Clerk of the United States District Court for the Middle District of Tennessee and, upon

receipt of the returned summonses, will mail the foregoing by registered mail via the United

States Postal Service to the following:

Kathleen Sebelius, Secretary U.S. Department of Health & Human Services 200 Independence Ave., S.W. Washington, D.C. 20201

U.S. Department of Health & Human Services 200 Independence Ave., S.W. Washington, D.C. 20201

Thomas Perez, Secretary U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210

U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210

Jacob J. Lew, Secretary U.S. Department of Treasury 1500 Pennsylvania Ave., N.W. Washington, D.C. 20220

U.S. Department of Treasury 1500 Pennsylvania Ave., N.W. Washington, D.C. 20220

Department of Justice Room BI03 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001

David Rivera, Acting U.S. Attorney clo Civil Process Clerk United States Department of Justice United States Attorney's Office Middle District of Tennessee 110 Ninth Avenue South, Suite A961 Nashville, TN 37203

llfrraanuM.dSturAm /IA~ One a/the Attorneys/or Plaint(iJs

70 Case 3:13-cv-01303 Document 1 Filed 11/22/13 Page 70 of 70 PageID #: 70

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

)

THE CATHOLIC DIOCESE OF

)

NASHVILLE; CATHOLIC CHARITIES )

OF TENNESSEE, INC.; CAMP

)

MARYMOUNT, INC.; MARY, QUEEN )

OF ANGELS, INC.; ST. MARY VILLA, )

INC.; DOMINICAN SISTERS OF ST.

)

CECILIA CONGREGATION; and

)

AQUINAS COLLEGE,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

)

Department of Health and Human

)

Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S.

)

Department of Labor; JACOB J. LEW, in )

his official capacity as Secretary of the

)

U.S. Department of Treasury; U.S.

)

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; U.S.

)

DEPARTMENT OF LABOR; and U.S.

)

DEPARTMENT OF TREASURY,

)

)

Defendants.

)

)

Case No.: 3:13-CV-01303 Chief Judge William J. Haynes, Jr. Magistrate Judge E. Clifton Knowles

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND REQUEST FOR ORAL ARGUMENT

Pursuant to Federal Rule of Civil Procedure 65, Plaintiffs hereby move for preliminary

injunctive relief, without bond, enjoining Defendants from continuing to require Plaintiffs to

provide coverage for contraception, abortion-inducing products, sterilization, and related

counseling in their employee health plans.

COI-1499752
Case 3:13-cv-01303 Document 14 Filed 11/26/13 Page 1 of 4 PageID #: 302

A preliminary injunction is justified, as discussed in Plaintiffs’ accompanying Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction1, because (1) Plaintiffs have a strong likelihood of success on the merits of their claims; (2) Plaintiffs are suffering a continuing, irreparable harm in the absence of preliminary relief; (3) an injunction will not cause substantial harm to others, including Defendants; and (4) an injunction furthers the public interest. Accordingly, Plaintiffs respectfully move this Court to adjudicate this motion on an expedited basis and grant Plaintiffs’ request for a preliminary injunction exempting Plaintiffs from application of, and enforcement of, the Mandate.
Plaintiffs respectfully request that the Court order that Defendants are enjoined from any application or enforcement against Plaintiffs, their employee health plans, participants in their employee health plans, or their third party administrators or insurers of the requirement under 45 C.F.R. § 147.130(a)(1)(iv), corresponding Guidelines, and corresponding press releases that Plaintiffs provide coverage for FDA-approved contraceptive methods, abortion-inducing drugs, sterilization procedures, and patient education and counseling, including the substantive requirement imposed in 42 U.S.C. § 300gg-13(a)(4).
Plaintiffs also request oral argument on this motion, which involves important and complicated issues of constitutional and statutory law.
1 Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction is to be filed pending the Court’s ruling on Plaintiffs’ Motion for Leave to File Memorandum in Support of Motion for Preliminary Injunction in Excess of Page Limit.
COI-1499752v2
Case 3:13-cv-01303 Document 14 Filed 11/26/13 Page 2 of 4 PageID #: 303

Respectfully submitted, this 26th day of November, 2013.
/s/ Robb S. Harvey Robb S. Harvey (Tenn. BPR No. 11519) Lauran Sturm (Tenn. BPR No. 030828) WALLER LANSDEN DORTCH & DAVIS, LLP 511 Union Street, Suite 2700 Nashville, Tennessee 37219 Telephone: (615) 850-8856 robb.harvey@wallerlaw.com lauran.sturm@wallerlaw.com Local Counsel for St. Cecilia Congregation and Aquinas College
Matthew A. Kairis, Trial Attorney (Ohio Bar No. 55502)* Brandy H. Ranjan (Ohio Bar No. 86984)* Melissa D. Palmisciano (Ohio Bar No. 80027)* JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus, OH 43216 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 makairis@jonesday.com branjan@jonesday.com mpalmisciano@jonesday.com Counsel for Plaintiffs
L. Gino Marchetti, Jr. (Tenn. BPR No. 005562) Matthew C. Pietsch (Tenn. BPR No. 024659) Antonio J. Aguilar (Tenn. BPR No. 029743) TAYLOR, PIGUE, MARCHETTI & BLAIR, PLLC 2908 Poston Avenue Nashville, Tennessee 37203-1312 Telephone: (615) 320-3225 Facsimile: (615) 320-3244 marchetti-dc@tpmblaw.com Local Counsel for The Catholic Diocese of Nashville; Catholic Charities of Tennessee, Inc.; Camp Marymount, Inc.; Mary, Queen of Angels, Inc.; and St. Mary Villa, Inc.
* pending pro hac vice admission
COI-1499752
Case 3:13-cv-01303 Document 14 Filed 11/26/13 Page 3 of 4 PageID #: 304

CERTIFICATE OF SERVICE I hereby certify that on November 26, 2013, I electronically filed the foregoing Plaintiffs’ Motion for Preliminary Injunction and Request for Oral Argument with the Clerk of the United States District Court for the Middle District of Tennessee using the CM/ECF system and mailed the foregoing by first class mail via the United States Postal Service to the following:

Kathleen Sebelius, Secretary U.S. Department of Health & Human Services 200 Independence Ave., S.W. Washington, D.C. 20201

U.S. Department of Health & Human Services 200 Independence Ave., S.W. Washington, D.C. 20201

Thomas Perez, Secretary U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210

U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210

Jacob J. Lew, Secretary U.S. Department of Treasury 1500 Pennsylvania Ave., N.W. Washington, D.C. 20220

U.S. Department of Treasury 1500 Pennsylvania Ave., N.W. Washington, D.C. 20220

Department of Justice Room B103 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001

David Rivera, Acting U.S. Attorney c/o Civil Process Clerk United States Department of Justice United States Attorney’s Office Middle District of Tennessee 110 Ninth Avenue South, Suite A961 Nashville, TN 37203

/s/ Robb S. Harvey One of the Attorneys for Plaintiffs

COI-1499752
Case 3:13-cv-01303 Document 14 Filed 11/26/13 Page 4 of 4 PageID #: 305

 
 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

____________________________________

)

THE CATHOLIC DIOCESE OF

)

NASHVILLE; CATHOLIC CHARITIES )

OF TENNESSEE, INC.; CAMP

)

MARYMOUNT, INC.; MARY, QUEEN )

OF ANGELS, INC.; ST. MARY VILLA, )

INC.; DOMINICAN SISTERS OF ST.

)

CECILIA CONGREGATION; and

)

AQUINAS COLLEGE,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

)

Department of Health and Human

)

Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S.

)

Department of Labor; JACOB J. LEW, in )

his official capacity as Secretary of the

)

U.S. Department of Treasury; U.S.

)

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; U.S.

)

DEPARTMENT OF LABOR; and U.S. )

DEPARTMENT OF TREASURY,

)

)

Defendants.

)

)

Case No. 3:13-cv-01303 Chief Judge William J. Haynes, Jr. Magistrate Judge E. Clifton Knowles

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

COI-1498942v6
Case 3:13-cv-01303 Document 26 Filed 12/02/13 Page 1 of 56 PageID #: 376

TABLE OF CONTENTS

Page

INTRODUCTION ......................................................................................................................... 1 BACKGROUND ........................................................................................................................... 4
I. STATUTORY AND REGULATORY BACKGROUND..................................... 4 II. PLAINTIFF’S BACKGROUND........................................................................... 8 ARGUMENT ................................................................................................................................. 9 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ...................... 10
A. The Mandate Violates RFRA................................................................... 11 B. The Mandate Violates the Free Exercise Clause ..................................... 32 C. The Mandate Violates the First Amendment Protection Against
Compelled Speech ................................................................................... 35 D. The “Religious Employer” Exemption Violates the Establishment
Clause....................................................................................................... 36 E. The Mandate Unconstitutionally Interferes with Plaintiffs’ Rights
of Internal Church Governance................................................................ 40 II. PLAINTIFFS ARE SUFFERING ONGOING IRREPARABLE HARM........... 42 III. THE BALANCE OF HARMS WEIGHS IN FAVOR OF PLAINTIFFS ........... 43 IV. GRANTING A PRELIMINARY INJUNCTION WILL SERVE THE
PUBLIC INTEREST ........................................................................................... 44 CONCLUSION............................................................................................................................ 45

COI-1498942v6

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TABLE OF AUTHORITIES

CASES

Page

Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Co., 274 F.3d 377 (6th Cir. 2001) ...............................................................................................9, 44

In re Eagle-Picher Industries, Inc., 963 F.2d 855 (6th Cir. 1992) ...............................................................................................9, 10

Int’l Resources v. N.Y. Life Ins. Co., 950 F.2d 294 (6th Cir. 1991) .....................................................................................................9

Jeffreys v. My Friend’s Place, Inc., 719 F. Supp. 639 (M.D. Tenn. 1989).......................................................................................42

Planned Parenthood of Greater Memphis Region v. Dreyzehner, No. 3:12-0139, 2012 WL 529811 (M.D. Tenn. Feb. 17, 2012)...........................................9, 10

Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S.Ct. 2321 (2013) ..............................................................................................................35

Agostini v. Felton, 521 U.S. 203 (1997).................................................................................................................38

Am. Pulverizer Co. v. HHS, No. 12-cv-3459, 2012 WL 6951316 (W.D. Mo. Dec. 20, 2012).............................................12

Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013) ..................................12, 25

Beckwith v. Sebelius, No. 8:13-cv-0648-T-17MAP, 2013 WL 3297498 (M.D. Fla. June 25, 2013).........................28

Bick Holding, Inc. v. Sebelius, No. 4:13-cv-00462 (E.D. Mo. Apr. 1, 2013) ...........................................................................44

Bick Holdings Inc. v. HHS, No. 4:13-cv-00462 (E.D. Mo. Apr. 1, 2013) ...........................................................................12

Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) .......................................................................................................28, 29

Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012)..............................................8

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TABLE OF AUTHORITIES (Cont’d.)

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Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)...............................................................................................26, 32, 33, 34

Church of the Visible Intelligence v. United States, 4 Cl. Ct. 55 (1983) ...................................................................................................................40

Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) ...................................................................................37, 38, 39

Cutter v. Wilkinson, 544 U.S. 709 (2005).................................................................................................................15

Dunn v. Blumstein, 405 U.S. 330 (1972).................................................................................................................29

Elrod v. Burns, 427 U.S. 347 (1976).................................................................................................................42

Emp’t Div. v. Smith, 494 U.S. 872 (1990)...............................................................................................13, 14, 32, 34

Evergreen Ass’n v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011)......................................................................................36

Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) .............................................................................................................30

Found. of Human Understanding v. United States, 88 Fed. Cl. 203 (Fed. Cl. 2009) .........................................................................................39, 40

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999).....................................................................................................33

Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402 (W.D. Pa. 2013)......................................................................................26

Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 56087 (W.D. Pa. Apr. 19, 2013) .................12, 44

Gilardi v. HHS, No. 13-5069 (D.C. Cir. Mar. 29, 2013) ...................................................................................12

Gilardi v. HHS, No. 13-5069, 2013 WL 5854246 (D.C. Cir. Nov. 1, 2013) .....................................................25

Gonzales v. O Centro Espírita Beneficente União Do Vegetal, 546 U.S. 418 (2006)......................................................................................................... passim

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TABLE OF AUTHORITIES (Cont’d.)

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Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) ...................................................................................................12

Grutter v. Bollinger, 539 U.S. 306 (2003)...........................................................................................................30, 32

Hall v. Sebelius, No. 13-00295 (D. Minn. Apr. 2, 2013) ..............................................................................12, 44

Hartenbower v. HHS, No. 1:13-cv-2253 (N.D. Ill. Apr. 18, 2013) .............................................................................12

Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) ...................................................................................................16

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) ....................................................................................... passim

Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004) .................................................................................................29

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S.Ct. 694 (2012) ..........................................................................................................40, 41

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557 (1995).................................................................................................................35

Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).................................................................................................14, 15

Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) .....................................................................................16, 19, 29

Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) .................................................................................................44

Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008) .............................................................................................13, 14

Korte v. Sebelius, No. 12-3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012).............................................. passim

Korte v. Sebelius, Nos. 12-3841, 13-1077, 2013 WL 5960692 (7th Cir. Nov. 8, 2013) ................................24, 31

Larson v. Valente, 456 U.S. 228 (1982).................................................................................................................37

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TABLE OF AUTHORITIES (Cont’d.)

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Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) ...............................................12

Lindsay v. HHS, No. 13-1210 (N.D. Ill. Mar. 20, 2013).....................................................................................12

Mitchell v. Helms, 530 U.S. 793 (2000).................................................................................................................38

Mobil Oil Corp. v. Henriksen Enters., 490 F. Supp. 74 (W.D. Mich. 1980) ........................................................................................43

Monaghan v. Sebelius, No. 12-15488, 2013 WL 1014026 (E.D. Mich. Mar. 14, 2013) ..............................................12

Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009) ...................................................................................................13

New York v. Cathedral Acad., 434 U.S. 125 (1977).................................................................................................................40

Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012)............................................................................. passim

NLRB v. Catholic Bishop of Chi., 440 U.S. 490 (1979).................................................................................................................38

O Centro Espírita Beneficente União Do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) ...........................................................................................42, 44

O’Brien v. HHS, No. 12Ǧ3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012) .............................12, 25

Patrick v. LeFevre, 745 F.2d 153 (2d Cir. 1984).....................................................................................................14

Persico, et al. v. Sebelius, et al., No. 1:13-cv-00303 (W.D. Pa. Nov. 21, 2013) .......................................................12, 22, 23, 27

R.J. Reynolds Tobacco Co., et al., v. FDA, 696 F. 2d 1205 (D.C. Cir. 2012) ..............................................................................................35

Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380 (7th Cir. 1984) ...................................................................................................43

Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47 (2006)...................................................................................................................35

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TABLE OF AUTHORITIES (Cont’d.)

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Sharpe Holdings, Inc. v. HHS, No. 2:12-CV-92, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) .......................................12, 44

Sherbert v. Verner, 374 U.S. 398 (1963)...........................................................................................................11, 29

Sioux Chief Mfg. Co. v. Sebelius, No. 13-0036 (W.D. Mo. Feb. 28, 2013) ............................................................................12, 44

Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011) .........................................................................................36

Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981).....................................................................................................14, 19, 20

Tonn & Blank Constr., LLC v. Sebelius, No. 1:12-cv-00325 (N.D. Ind. Apr. 1, 2013) ...........................................................................12

Triune Health Grp., Inc. v. HHS, No. 12-6756 (N.D. Ill. Jan. 3, 2013) ........................................................................................12

Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012) .............................................................................12, 26, 42

United States v. Ali, 682 F.3d 705 (8th Cir. 2012) ...................................................................................................13

United States v. Lee, 455 U.S. 252 (1982).................................................................................................................14

United States v. Seeger, 380 U.S. 163 (1965).................................................................................................................14

United States v. United Foods, Inc., 533 U.S. 405 (2001).................................................................................................................35

Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) .........................................................................................37, 39

Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ...................................................................................................30

Washington v. Klem, 497 F.3d 272 (3d Cir. 2007).....................................................................................................30

Wisconsin v. Yoder, 406 U.S. 205 (1972)......................................................................................................... passim

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TABLE OF AUTHORITIES (Cont’d.)

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Zubik, et al. v. Sebelius, et al., No. 2:13-cv-01459 (W.D. Pa. Nov. 21, 2013) ................................................................. passim

STATUTES

26 U.S.C. § 4980D .....................................................................................................................4, 20

26 U.S.C. § 4980H .........................................................................................................................20

42 U.S.C. § 300gg-13 ......................................................................................................................4

42 U.S.C. § 2000bb........................................................................................................................11

42 U.S.C. § 2000bb-1 ..........................................................................................................3, 11, 29

42 U.S.C. § 2000bb-2 ....................................................................................................................13

42 U.S.C. § 2000cc-5 .....................................................................................................................13

42 U.S.C. § 18011............................................................................................................................4

Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).........4, 20

OTHER AUTHORITIES

26 C.F.R. § 54.9815-1251T .............................................................................................................4

26 C.F.R. § 54.9815-2713A...................................................................................................7, 8, 17

29 C.F.R. § 2590.715-2713A.........................................................................................................17

45 C.F.R. § 147.130 ............................................................................................................... passim

45 C.F.R. § 147.131 ...................................................................................................................6, 17

75 Fed. Reg. 41,726 .......................................................................................................................28

76 Fed. Reg. 46,621 .....................................................................................................................5, 6

77 Fed. Reg. 8,725 ...........................................................................................................................5

77 Fed. Reg. 16,501 .....................................................................................................................5, 6

78 Fed. Reg. 8,456 ................................................................................................................. passim

78 Fed. Reg. 39,870 ............................................................................................................... passim

102d Cong. 192 (1992) ..................................................................................................................11

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139 Cong. Rec. 9,685 (1993) .........................................................................................................11

Carl H. Esbeck, Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 WASH. & LEE L. REV. 347 (1984) ..............................................39

Helen M. Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 VILL. L. REV. 379 (2013)....................................................................................29

USCCB’s Papal Visit Blog, “Benedict XVI’s Plea: Put the Poor at the Heart of Catholic Life” (Mar. 25, 2008)...............................................................................................................41

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Plaintiffs—Catholic Diocese of Nashville (“Diocese”); Catholic Charities of Tennessee (“Catholic Charities”); Camp Marymount; Mary, Queen of Angels (“MQA”); St. Mary Villa; Dominican Sisters of St. Cecilia Congregation (“Congregation”); and Aquinas College submit this memorandum of law in support of their motion for preliminary injunction on Counts I-V of their Complaint, alleging violations of the Religious Freedom Restoration Act and the Religion and Free Speech Clauses of the First Amendment.
INTRODUCTION Plaintiffs, as part of the Roman Catholic Church, believe that life begins at conception and that artificial interference with life and conception is immoral. Accordingly, Plaintiffs believe that they may not provide, pay for, and/or facilitate access to abortion, sterilization, or artificial contraception. The Government has promulgated regulations that coerce Plaintiffs to violate this sincerely held religious belief by requiring them, under threat of punitive fines and other negative consequences, to facilitate access to abortion-inducing products, artificial contraception, sterilization procedures, and related counseling. See 45 C.F.R. § 147.130(a)(1)(iv) (“Mandate”). Despite repeated pleas from the religious community, the Mandate narrowly defines “religious employers” as “houses of worship and religious orders,” excluding Catholic charitable, health, education, elder care, childcare, and other ministries, including Plaintiffs Catholic Charities, Camp Marymount, MQA, St. Mary Villa, and Aquinas College. More specifically, the Mandate divides the Catholic Church into two wings: (1) a “religious” wing limited to “houses of worship and religious orders” that provide religious services; and (2) a “charitable” wing that provides what the Government views as secular services. But this artificial distinction ignores the reality that many entities in the Catholic Church engage in charity as an exercise of religion. By excluding Catholic charitable
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organizations from the category of exempt “religious employers,” the Mandate forces a substantial wing of the Church to act in contravention of its sincerely held religious beliefs.
The Government claims that its recent revisions to the Mandate address the concerns of religious organizations. They most emphatically do not. Indeed, the Government knew these revisions would not resolve Plaintiffs’ concerns, because Plaintiffs and other religious organizations repeatedly informed the Government that the now codified proposals were inadequate. Like its predecessors, this iteration of the Mandate narrowly defines “religious employers” so as to exclude Catholic charitable and educational organizations, including Plaintiffs Catholic Charities, Camp Marymount, MQA, St. Mary Villa, and Aquinas College.
The Mandate’s so-called “accommodation” for “non-religious employers,” moreover, is illusory because it addresses fundamental religious objections through accounting gimmicks. As a result, Plaintiffs remain the vehicle through which the objectionable products and services are delivered to their employees. Indeed, the Final Rule is significantly worse than the Government’s original rule because it eliminates an important prior protection that allowed “religious employers” (e.g., the Diocese and the Congregation) to shield their affiliated religious organizations (e.g., Catholic Charities, Camp Marymount, and Aquinas College) from operation of the Mandate by including such organizations in the insurance plan of the “religious employer.” Now, although the Diocese is exempt from the Mandate, the ministries that share its plans—Catholic Charities and Campt Marymount—are not exempt. Similarly, although the Congregation is likely exempt from the Mandate, it can no longer shield Aquinas College from the Mandate. The Final Rule, therefore, actually increases the number of religious organizations subject to the Mandate.

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This oppressive Mandate is irreconcilable with the Religious Freedom Restoration Act (“RFRA”), the First Amendment, and other federal law. First, under RFRA, the Government may not impose a substantial burden on Plaintiffs’ exercise of religion without showing that it is the least restrictive means to advance a compelling governmental interest. See 42 U.S.C. § 2000bb-1(a), (b). The Government has excluded tens of millions from the Mandate through a series of exemptions; thus, it cannot show a compelling interest in forcing the Mandate on the much smaller band of employers that seek an exemption on the basis of religious hardship. Nor is the Mandate narrowly tailored because the Government could easily advance its goals without using Plaintiffs to deliver objectionable products and services to Plaintiffs’ employees.
Second, the Mandate violates the First Amendment’s Free Speech and Religion Clauses. It infringes on Plaintiffs’ freedom of speech by requiring them to facilitate “counseling” in favor of abortion, contraception, and sterilization. It violates the Free Exercise Clause by targeting Plaintiffs’ religious practices, offering a multitude of exemptions to other employers for nonreligious reasons, but denying any exemption that would relieve Plaintiffs’ religious hardship. It violates the Establishment Clause by creating a state-favored category of “religious employers” based on intrusive judgments about their religious practices, beliefs, and organizational structure. And, it violates the First Amendment’s protection of internal church governance by splitting the Catholic Church in two and denying “religious employer” status to those entities carrying out the Church’s religious mission through charitable, health care, childcare, and education ministries.
In sum, there is no legal justification for the Government’s gratuitous intrusion on Plaintiffs’ religious freedom. Plaintiffs urgently need injunctive relief now, without which they will be forced to decide between violating their religious beliefs or violating the law—the epitome of irreparable harm. By contrast, a preliminary injunction will impose no substantial

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harm on the Government, which has refrained from mandating contraceptive coverage for more than two centuries. Accordingly, Plaintiffs respectfully request a preliminary injunction to preserve the status quo while this Court adjudicates this vital question of religious liberty.
BACKGROUND I. STATUTORY AND REGULATORY BACKGROUND
The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (the “Act”) requires employer “group health plan[s]” to include insurance coverage for women’s “preventive care and screenings,” 42 U.S.C. § 300gg-13(a)(4), which has been defined by the Department of Health and Human Services (“HHS”) to include “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Women’s Preventive Services Guidelines (Ex. A). FDA-approved contraceptives include the morning-after pill (Plan B) and Ulipristal (HRP 2000 or Ella), which can induce an abortion. Failure to provide these services exposes Plaintiffs to fines of $100/day per affected beneficiary. 26 U.S.C. § 4980D(b). Dropping health plans subjects Plaintiffs to substantial annual penalties of $2,000 per employee over 30 employees. Id. § 4980H(a), (c)(1).
From its inception, the Act exempted health plans covering millions of people. See WhiteHouse.Gov, “The Affordable Care Act Increases Choice and Saving Money for Small Businesses” (Ex. B) at 1 (“exempt[ing] 96[%] of all firms . . . or 5.8 million out of 6 million total firms”); Id. §§ 4980D(d); 4980H(a). Plans that have not changed certain benefits or contributions are “grandfathered” and exempt. See 42 U.S.C. § 18011; 26 C.F.R. § 54.98151251T(g)(1)(v). By one estimate, the Act exempts “over 190 million health plan participants and beneficiaries.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298 (D. Colo. 2012).

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From the start, however, the Government refused to exempt religious entities other than those satisfying its narrow definition of “religious employer”—intended to “accommodate” only “the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). Despite intense criticism, the Government finalized the narrow definition “without change.” 77 Fed. Reg. 8,725, 8,727–28, 8,730 (Feb. 15, 2012).
Five weeks later, under increased pressure, the Government issued an Advanced Notice of Proposed Rulemaking (“ANPRM”), suggesting accommodations to religious objections, yet reaffirming that the “religious employer” exemption would not change. 77 Fed. Reg. 16,501, 16,501–08 (Mar. 21, 2012). Religious entities explained in detail why proposals in the ANPRM would not relieve the burden on their religious freedom. See, e.g., Comments of U.S. Conf. of Catholic Bishops (May 15, 2012) (Ex. C) at 3 (“[The ANPRM] create[s] an appearance of moderation and compromise, [but does] not actually offer any change in the Administration’s earlier stated positions on mandated contraceptive coverage.”). Yet, on February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”) adopting the ANPRM’s proposals. The NPRM was opposed in over 400,000 comments, largely reiterating previous objections. See, e.g., Comments of U.S. Conf. of Catholic Bishops (Mar. 20, 2013) (Ex. D) at 3 (noting that religious entities are still required “to fund or otherwise facilitate the morally objectionable coverage”).
Ignoring opposition, the Final Rule adopted substantially all of the NPRM’s proposals without significant change. See 78 Fed. Reg. 39,870, 39,899 (July 2, 2013) (“Final Rule”). Thus, the Mandate will be in effect for plan years beginning on or after January 1, 2014. The Final Rule’s three changes to the Mandate fail to relieve the unlawful burdens imposed on Plaintiffs, and one change significantly increases the number of religious organizations subject

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to the Mandate. First, the Final Rule made a cosmetic change to the original “religious employer”
exemption by replacing the first three prongs of the “religious employer” definition with “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. 39,870, 39,896 (July 2, 2013) (codified at 45 C.F.R. § 147.131(a)). The Government admits that this change does “not expand the universe of employer plans that qualify for the exemption beyond that which was intended in the 2012 final regulations,” but “restrict[s] the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders.” 78 Fed. Reg. 8,456, 8,461 (Feb. 6, 2013). Thus, the Final Rule mirrors the original definition’s focus on “the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). Religious entities with broader missions are still not considered “religious employers.”
Second, the Final Rule increases the burden imposed on religious entities by expanding the number that are subject to the Mandate. Under the original “religious employer” definition, if a nonexempt religious entity provided health coverage to its employees through a plan offered by a separate but affiliated entity that was exempt, “then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.” 77 Fed. Reg. at 16,502. For example, Plaintiff Diocese operates a plan that covers its own employees as well as those of Plaintiffs Catholic Charities and Camp Marymount. Under the original religious employer definition, if the Diocese was an exempt “religious employer,” then Catholic Charities and Camp Marymount received the benefit of that exemption. But the Final Rule eliminates that protection, providing instead that “each employer [must] independently

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meet the definition of religious employer . . . in order to avail itself of the exemption.” 78 Fed.
Reg. at 39,886; see also 78 Fed. Reg. at 8,467 (NPRM). As a result, the Diocese is foregoing
cost savings and premium increases to maintain the grandfathered status of one of its healthcare
plans that protects its non-exempt affiliated entities from the Mandate.1
Third, the Final Rule establishes an illusory “accommodation” for nonexempt objecting
religious entities that qualify as “eligible organizations.” To qualify as an “eligible organization,”
a religious entity must (1) “oppose[] providing coverage for some or all of [the] contraceptive
services”; (2) be “organized and operate[] as a non-profit entity”; (3) “hold[] itself out as a
religious organization”; (4) self-certify that it meets the first three criteria; and (5) provide a copy
of the self-certification either to its insurance company or, if self-insured, to its third party
administrator. 26 C.F.R. § 54.9815-2713A(a), (b). An eligible organization’s self-certification
requires the insurance issuer or third party administrator to provide “payments for contraceptive
services” for the objecting organization’s employees. See 78 Fed. Reg. at 39,895 (codified at 26
C.F.R. § 54.9815-2713A(a)-(c)). This “accommodation” fails to relieve the burden on religious
organizations’ religious beliefs because a non-exempt organization’s decision to offer a group
health plan still results in the provision of coverage—now in the form of “payments”—for
1 Other options are to (1) provide Catholic Charities and Camp Marymount employees with access to “free” objectionable products and services; or (2) expel Catholic Charities and Camp Marymount from the plan, subjecting them to massive fines if they does not contract with an insurer that will provide the objectionable coverage. The Congregation faces the same dilemma. Under the original rule, the Congregation could shield Aquinas College from the Mandate by sharing its health plan with the College’s employees. That is no longer an option. Karlovic Decl. ¶¶ 12, 14. The Congregation, moreover, does not have the benefit of a grandfathered plan, so its options are limited to (1) providing Aquinas College employees with the objectionable services or (2) expelling Aquinas College from its plan. The first option forces the Diocese and the Congregation to act in contravention of their sincerely held religious beliefs, and the second option would make the Diocese and the Congregation complicit in providing objectionable coverage and compel them to submit to Governmental interference with their structure and internal operations. Choby Decl. ¶ 27-40; Robinson Decl. ¶ 9-11; Karlovic Decl. ¶¶ 15.

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abortion-inducing products, contraception, sterilization, and related counseling. Id. § 54.98152713A(b)-(c). Plaintiffs’ provision of group health plans triggers the provision of “free” objectionable products and services to their employees in a manner contrary to their beliefs.
In sum, the Final Rule does not address Plaintiffs’ religious objections to facilitating access to the objectionable products and services. This should not surprise the Government, which was repeatedly notified well before it issued the Final Rule that its “accommodation” would not relieve the burden on Plaintiffs’ religious beliefs. Despite representations that it was making a good-faith effort to address those religious objections—including before this very Court in a previously filed case by some of the same Plaintiffs2—the Government issued the Final Rule that it knew would do no such thing. Plaintiffs are still coerced, under threat of crippling fines and other negative consequences, into being the vehicle to deliver contraception, abortion-inducing products, sterilization, and related counseling to their employees, contrary to their sincerely held religious beliefs. II. PLAINTIFF’S BACKGROUND
Plaintiffs are part of the Catholic Church and, as such, sincerely believe that they have a religious duty to provide educational, spiritual, health, and charitable services to individuals of all faiths. Just as sincerely, they believe that life begins at the moment of conception, and that “preventive” services covered by the Mandate that interfere with life and conception are immoral. See Choby Decl. ¶¶ 7-10; Robinson Decl. ¶ 4; Sinclair Decl. ¶ 7; Hagey Decl. ¶ 10;

2 Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796, at *4 (M.D. Tenn. Nov. 21, 2012) (dismissing action for lack of standing because “Defendants announced their intention to develop alternative means of providing contraceptive services free of charge to employees of non-exempt, nongrandfathered organizations with religious objections to contraceptive coverage” and “published their plan to amend the Rules to address the exact concerns Plaintiffs raise in this action”; noting that “the Government’s actions are entitled to a good faith presumption”).

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Glascoe Decl. ¶ 12; Miller Decl. ¶ 10; Karlovic Decl. ¶¶ 6-8; Galbraith Decl. ¶ 5. Accordingly, Plaintiffs believe that they may not provide, pay for, and/or facilitate access to contraception, sterilization, abortion, or related counseling, including by contracting with a third party that will, as a result, provide or procure the objectionable products and services for Plaintiffs’ employees. See Choby Decl. ¶¶ 12-26; Robinson Decl. ¶¶ 15, 19; Sinclair Decl. ¶¶ 13-15; Hagey Decl. ¶¶ 15-20; Glascoe Decl. ¶¶ 16-19; Miller Decl. ¶¶ 13-17; Karlovic Decl. ¶¶ 18-22; Galbraith Decl. ¶¶ 10-13.
It is a cruel irony that the Mandate—promulgated under a statute that was intended, at least in part, to help the poor and needy—imposes on Plaintiffs the impossible choice of either abandoning their religious principles or else violating the law and facing crippling penalties. For example, Catholic Charities and MQA, organizations that provide critical services to the most vulnerable in the community, may be forced to limit these critical services if it were to incur the Mandate’s draconian fines. Sinclair Decl. ¶¶ 3, 23-24; Glascoe Decl. ¶¶ 6, 23-24. That is money that could have otherwise supported those entities’ charitable programs and services.
ARGUMENT A court should grant a preliminary injunction if, after considering four factors, it determines that the balance of equities favors such relief. See In re Eagle-Picher Indus., Inc., 963 F.2d 855, 858 (6th Cir. 1992). The four factors courts should consider are:
(1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff may suffer irreparable harm absent the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of an injunction upon the public interest. Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001); Int’l Res. v. N.Y. Life Ins. Co., 950 F.2d 294, 302 (6th Cir. 1991); Planned Parenthood of Greater Memphis Region v. Dreyzehner, 853 F. Supp. 2d 724, 732 (M.D. Tenn.

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Feb. 17, 2012). These factors do not all need to be met and instead merely “guide the discretion of the court.” Eagle-Picher, 963 F.2d at 859; Dreyzehner, 853 F. Supp. 2d at 734. In other words, “they are not meant to be rigid and unbending requirements,” because “‘[a] fixed legal standard is not the essence of equity jurisprudence.’” Eagle-Picher, 963 F.2d at 859 (citation omitted). Here, a preliminary injunction is warranted because Plaintiffs meet all four factors for such interim relief. I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
To satisfy the “likelihood of success” factor, “it is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Dreyzehner, 853 F. Supp. 2d at 734 (quoting Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997)).
Applying this standard, Plaintiffs are likely to succeed on the merits of all of their claims, including that the Mandate: (1) violates RFRA because it substantially burdens Plaintiffs’ exercise of religion without being the least restrictive means to achieve a compelling government interest (Compl. Count I, ¶¶ 228-38); (2) violates the Free Exercise Clause of the First Amendment because it is not a neutral and generally applicable law (Compl. Count II, ¶¶ 23951); (3) violates the First Amendment prohibition on compelled speech because it compels Plaintiffs to support and/or facilitate “counseling” that contradicts their religious viewpoint (Compl. Count III, ¶¶ 252-65); (4) violates the Establishment Clause of the First Amendment because it establishes an official category of Government-favored “religious employers,” which excludes some religious groups based on intrusive judgments regarding their beliefs, practices, and organizational structure (Compl. Count IV, ¶¶ 266-73); and (5) violates both Religion Clauses of the First Amendment because it interferes with Plaintiffs’ rights of internal church

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governance (Compl. Count V, ¶¶ 274-88). A. The Mandate Violates RFRA Under RFRA, the Federal Government is prohibited from “substantially burden[ing] 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 is (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a), (b); Gonzales v. O Centro Espírita Beneficente União Do Vegetal, 546 U.S. 418, 423 (2006). Thus, once Plaintiffs demonstrate a substantial burden, the Government bears the burden of proving that application of the Mandate to Plaintiffs furthers “a compelling governmental interest” and is “the least restrictive means of furthering that compelling governmental interest.” See 42 U.S.C. § 2000bb-1(b); O Centro, 546 U.S. at 423, 428. Here, the Government cannot make such a showing.
RFRA was enacted to prevent the type of regulation codified in the Mandate. Congress passed RFRA “to restore [and codify] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and . . . guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb; O Centro, 546 U.S. at 430-31. Nadine Strossen, then-President of the American Civil Liberties Union, testified in support of RFRA’s enactment to safeguard “such familiar practices as . . . permitting religiously sponsored hospitals to decline to provide abortion or contraception services.” The Religious Freedom Restoration Act: Hearing on S. 2969 Before the S. Comm. on the Judiciary, 102d Cong. 192 (1992); see also 139 Cong. Rec. 9,685 (1993) (statement of Rep. S. Hoyer) (noting that, post-Smith, a “Catholic teaching hospital lost its accreditation for refusing to provide abortion services” and that RFRA would “correct th[is] injustice[]”); id. at 4,660 (statement of Rep. Green) (noting that RFRA prevents the Government from “enact[ing] laws

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that force a person to participate in actions that violate their religious beliefs”).
Here, the Mandate cannot possibly survive scrutiny under RFRA because: (1) it imposes
a “substantial burden” on Plaintiffs’ free exercise of religion; (2) the Government has no
compelling interest in imposing this burden; and (3) it is not the least restrictive means to achieve
the Government’s interest. It is not surprising, then, that the only court to have reached the
merits of similar RFRA claims brought by Catholic Dioceses and affiliated organizations
concluded that plaintiffs have a likelihood of prevailing on their RFRA claim and granted
preliminary relief enjoining the Government from enforcing the Mandate. See Zubik, et al. v.
Sebelius, et al., No. 2:13-cv-01459 (W.D. Pa. Nov. 21, 2013) and Persico, et al. v. Sebelius, et
al., No. 1:13-cv-00303 (W.D. Pa. Nov. 21, 2013), Mem. Op. Re: Pls.’ Mot. for Exp. Prelim. Inj.
(Ex. I) (“Zubik/Persico Slip Op.”) at 4, 61, 65.3
1. The Mandate Substantially Burdens Plaintiffs’ Exercise of Religion.
Under RFRA, courts must first assess whether the challenged law imposes a “substantial[]
3 Courts have also issued preliminary injunctions against the Mandate in the majority of cases brought by for-profit companies with religious owners. If anything, a preliminary injunction is even more appropriate in this case involving non-profit entities. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc); Gilardi v. HHS, No. 13-5069 (D.C. Cir. Mar. 29, 2013) (Doc. 24); Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013); Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013); Korte v. Sebelius, No. 12-3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012); O’Brien v. HHS, No. 12Ǧ 3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012); Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 56087 (W.D. Pa. Apr. 19, 2013); Hartenbower v. HHS, No. 1:13-cv-2253 (N.D. Ill. Apr. 18, 2013) (Doc. 16); Hall v. Sebelius, No. 13-00295 (D. Minn. Apr. 2, 2013) (Doc. 12); Bick Holdings Inc. v. HHS, No. 4:13-cv-00462 (E.D. Mo. Apr. 1, 2013) (Doc. 21); Tonn & Blank Constr., LLC v. Sebelius, No. 1:12-cv-00325 (N.D. Ind. Apr. 1, 2013) (Doc. 43); Lindsay v. HHS, No. 13-1210 (N.D. Ill. Mar. 20, 2013); Monaghan v. Sebelius, No. 12-15488, 2013 WL 1014026 (E.D. Mich. Mar. 14, 2013); Sioux Chief Mfg. Co. v. Sebelius, No. 13-0036 (W.D. Mo. Feb. 28, 2013) (Doc. 9); Triune Health Grp., Inc. v. HHS, No. 12-6756 (N.D. Ill. Jan. 3, 2013) (Doc. 50); Sharpe Holdings, Inc. v. HHS, No. 2:12-CV-92, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012); Am. Pulverizer Co. v. HHS, No. 12-cv-3459, 2012 WL 6951316 (W.D. Mo. Dec. 20, 2012); Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012); Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012); Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012).

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burden” on the plaintiff’s “exercise of religion.” Id. This initial inquiry requires courts to (1) identify the particular exercise of religion at issue, and (2) assess whether the law substantially burdens that religious practice. See, e.g., Koger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008) (applying this two-part test under RLUIPA, RFRA’s sister statute); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1140 (10th Cir. 2013) (en banc) (stating that the court must (1) “identify the religious belief in this case,” (2) “determine whether this belief is sincere,” and (3) “turn to the question of whether the government places substantial pressure on the religious believer”). Here, the Mandate imposes a substantial burden on Plaintiffs’ religious exercise by forcing them to do what their religion forbids: facilitate access to abortion-inducing products, contraception, sterilization, and related counseling. See Zubik/Persico Slip Op. at 53.
(i) “Exercise of Religion” RFRA defines “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc5(7)(A). Because the exercise of religion has been interpreted to include a diverse array of conduct, ranging from refusing to give children a formal education, see Yoder, 406 U.S. at 21019, to eating only certain foods, see Nelson v. Miller, 570 F.3d 868, 878-89 (7th Cir. 2009), RFRA protects “not only belief and profession but the performance of (or abstention from) physical acts.” Emp’t Div. v. Smith, 494 U.S. 872, 877 (1990). Protected religious exercise includes any act or practice that is “rooted in the religious beliefs of the party asserting the claim or defense.” United States v. Ali, 682 F.3d 705, 710 (8th Cir. 2012) (internal quotation marks and alteration omitted). Whether an act or practice is rooted in religious belief, and thus entitled to protection, does not “turn upon a judicial perception of the particular belief or practice in question.” Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 714 (1981). Instead, courts

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must accept plaintiffs’ description of their beliefs and practices, regardless of whether the court, or Government, finds them “acceptable, logical, consistent, or comprehensible.” Id. at 714–15 (refusing to question plaintiff’s moral line); see also United States v. Lee, 455 U.S. 252, 257 (1982); Koger, 523 F.3d at 797 (plaintiff’s “dietary request [was] squarely within the definition of religious exercise”); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (rejecting efforts to dispute plaintiff’s representation that a medical test would violate his religion).
“Courts,” as the Supreme Court has put it, “are not arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716. Thus, “[r]epeatedly and in many different contexts,” the Supreme Court has “warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Smith, 494 U.S. at 887. Instead, the judicial role is limited to “determining ‘whether the beliefs professed by [the plaintiff] are sincerely held and whether they are, in his own scheme of things, religious.’” Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984) (quoting United States v. Seeger, 380 U.S. 163, 185 (1965)). By necessity, this is a modest inquiry that is restrained by the need to avoid excessive entanglement in religion. See Jolly, 76 F.3d at 476. The purpose of the sincerity inquiry is simply to screen out manipulative claims based on sham beliefs that can be readily identified as such, for example, a high-school student who suddenly proclaims a religious objection to Math. Courts need not accept claims that are “so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection.” Thomas, 450 U.S. at 715.
“While it is a delicate task to evaluate religious sincerity without questioning religious verity, . . . free exercise doctrine is based upon the premise that courts are capable of distinguishing between these two questions.” Jolly, 76 F.3d at 476 (emphasis omitted). By screening claims for religious sincerity, and by allowing the Government to impose burdens that

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are truly necessary to serve a compelling interest, courts can apply RFRA to grant bona fide religious exemptions without “allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” Yoder, 406 U.S. at 216. Based on this approach, the Supreme Court has repeatedly reaffirmed “the feasibility of case-by-case consideration of religious exemptions to generally applicable rules,” which can be “‘applied in an appropriately balanced way’ to specific claims for exemptions as they ar[i]se.” O Centro, 546 U.S. at 436 (quoting Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)).
Here, there can be no doubt that Plaintiffs’ refusal to comply with the Mandate is a protected exercise of religion under RFRA. It is undisputed that Plaintiffs have a sincerely held religious belief that they may not provide, pay for, or facilitate access to abortion-inducing products, contraception, sterilization, or related counseling, including by contracting with an insurance company or third party administrator that will, as a result, provide or procure the objectionable products and services for Plaintiffs’ employees. See Robinson Decl. ¶¶ 15, 19; Sinclair Decl. ¶¶ 13-15; Hagey Decl. ¶¶ 15-20; Glascoe Decl. ¶¶ 16-19; Miller Decl. ¶¶ 13-17; Galbraith Decl. ¶¶ 10-13. While courts are bound to accept Plaintiffs’ description of their beliefs without resort to any independent religious authority, here the sincerity of Plaintiffs’ beliefs is buttressed by repeated confirmations from the U.S. Conference of Catholic Bishops. See supra at 5. These authoritative statements of Catholic belief make it unmistakably clear that Plaintiffs’ objection to the Mandate is “not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living.” Yoder, 406 U.S. at 216.
Nor do Plaintiffs seek to impose their religious beliefs on anyone else, or “to require the government itself to conduct its affairs in conformance with [their] religion.” Kaemmerling v.

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Lappin, 553 F.3d 669, 680 (D.C. Cir. 2008). On the contrary, Plaintiffs recognize that notwithstanding their religious objections, they have no legal right to prevent individuals from procuring the objectionable products and services from the Government or anywhere else. Plaintiffs simply invoke RFRA to enforce the law that the Government may not force them, in their own conduct, to take actions that violate their religious conscience. In particular, the Government may not require Plaintiffs to provide, pay for, and/or facilitate access to abortioninducing products, contraception, sterilization, and related counseling. Nor can the Government force Plaintiffs to contract with a third party that will, as a result, provide or procure the objectionable products and services for Plaintiffs’ employees. By imposing these requirements, the Mandate is a straightforward effort that “forces [Plaintiffs] to engage in conduct that their religion forbids.” Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001).
It is no answer to claim that Plaintiffs, unlike the Hobby Lobby litigants and other forprofit corporations, may be eligible for the Government’s so-called “accommodation.” For purposes of the RFRA analysis, what matters is whether the Government is coercing entities to take actions that violate their sincerely held religious beliefs. Hobby Lobby, 723 F.3d at 1137 (“Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.”). The fact is that the “accommodation” compels Plaintiffs to contract with an insurance issuer or third party administrator that will, as a result of that contract, provide or procure the objectionable products and services for Plaintiffs’ employees. Indeed, the insurance issuer or third party administrator’s obligation exists only so long as Plaintiffs’ employees remain on Plaintiffs’ insurance plan.4

4 See 29 C.F.R. § 2590.715-2713A(d) (for self-insured employers, the third party administrator “will provide or arrange separate payments for contraceptive services . . . for so long as [employees] are enrolled in [their] group health plan”); 45 C.F.R. § 147.131(c)(2)(i)(B)

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As Plaintiffs have explained to the Government, they believe their involvement in this scheme would constitute impermissible facilitation of access to the objectionable products and services. See Choby Decl. ¶¶ 12-26; Robinson Decl. ¶¶ 15, 19; Sinclair Decl. ¶¶ 13-15; Hagey Decl. ¶¶ 15-20; Glascoe Decl. ¶¶ 16-19; Miller Decl. ¶¶ 13-17; Karlovic Decl. ¶¶ 18-22; Galbraith Decl. ¶¶ 10-13. See also Zubik/Persico Slip Op. at 47-49 (“[T]he ‘accommodation’ requires [plaintiffs] to shift the responsibility of purchasing insurance and providing contraceptive products, services, and counseling, onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that ‘shifting responsibility’ does not absolve or exonerate them from the moral turpitude created by the ‘accommodation’; to the contrary, it still substantially burdens their sincerely-held religious beliefs.”).
Because Plaintiffs object to facilitating the objectionable products and services in the manner required by the Mandate, it is irrelevant whether the Mandate also forces them to directly subsidize these products and services. For example, it makes no difference that insurance issuers are required to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 26 C.F.R. § 54.98152713A(c)(2)(ii). It also makes no difference whether payments for objectionable products and services will be “cost neutral” to Plaintiffs. 78 Fed. Reg. at 8,463. Indeed, Plaintiffs would be willing to pay increased premiums if that would allow them to avoid serving as the vehicle by which the objectionable products and services would be delivered to their employees. It is, in short, the impermissible facilitation of access to objectionable products and services that violates

(continued…)
(for employers that offer insured plans, the insurance issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan”).

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Plaintiffs’ sincerely held religious beliefs. And it is undisputed that the Mandate forces Plaintiffs to engage in impermissible facilitation.
In any event, it is also clear that, under the Mandate, Plaintiffs will almost certainly be required to subsidize the objectionable products and services, thereby further exacerbating the already impermissible substantial burden. This is so, even if the Government’s dubious costneutrality assumption is true. Take, for example, religious organizations that procure insurance from an insurance company, wherein the insurance company must provide or procure the objectionable products and services for the religious organization’s employees. According to the Government, the cost to the insurance company of doing so will be offset by, among other things, “fewer childbirths” that result from the use of contraception, sterilization, abortioninducing products, and related counseling. 78 Fed. Reg. at 8,463. But even if the Mandate succeeds in reducing “childbirths” in high enough numbers to achieve cost-neutrality, the premiums previously going toward childbirths will now be used to provide the objectionable products and services necessary to obtain that reduction in childbirths. After all, obtaining that reduction is the very basis upon which the Government’s cost-neutrality assumption is premised.
As noted, however, the Government’s cost-neutrality assumption is implausible. It depends on the questionable assumption that the cost of contraception will be offset by “lower costs from improvements in women’s health and fewer childbirths,” 78 Fed. Reg. at 8,463, which in turn depends on the assumption that the Mandate will induce large numbers of women who do not currently use contraception to begin doing so. This, of course, demonstrates why Plaintiffs so vehemently object to the Mandate: It forces them to participate in a scheme specifically designed to lure women to engage in practices contrary to Plaintiffs’ sincerely held religious beliefs. More important for present purposes, the Government has adduced no evidence

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that women will change their behavior in sufficient numbers to achieve cost-neutrality. The same is true for self-insured organizations, for whom, the Government asserts, third party administrators will be permitted to recoup their costs through reductions in user fees on federally facilitated health exchanges. See 78 Fed. Reg. at 39,882. These fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third party administrators. Such regulatory regimes, however, invariably fail to fully compensate regulated entities for the costs and risks incurred. As a result, few if any third party administrators are likely to participate in this regime, and those that do are likely to increase fees charged to self-insured organizations. Consequently, the costs of providing objectionable products and services will be passed back to religious organizations.
For these reasons, Plaintiffs’ refusal to facilitate the objectionable products and services in the manner required by the Mandate is a protected exercise of religion. Accordingly, the only relevant question for this Court under the “substantial burden” analysis is whether the Mandate puts substantial pressure on Plaintiffs to act in a manner that is contrary to this religious practice.
(ii) “Substantial Burden” Once Plaintiffs’ refusal to facilitate contraception is correctly identified as a protected religious exercise, the “substantial burden” analysis is straightforward. As the Supreme Court has made clear, a federal law “substantially burdens” an exercise of religion if it compels one “to perform acts undeniably at odds with fundamental tenets of [one’s] religious beliefs,” Yoder, 406 U.S. at 218, or “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas, 450 U.S. at 717-18; Kaemmerling, 553 F.3d at 678 (same). In Yoder, for example, the Court found a substantial burden imposed by a $5 penalty charged to the Amish plaintiffs for refusing to follow a compulsory secondary-education law. In Thomas, the Court similarly held that the denial of unemployment compensation substantially burdened the pacifist

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convictions of a Jehovah’s Witness who refused to work at a factory manufacturing tank turrets. 450 U.S. at 716-18. Thus, it is clear that even the threat of withholding unemployement benefits, or a $5 penalty, exerts enough pressure on a religious believer to qualify as a “substantial burden.”
Here, the Mandate imposes enough pressure on Plaintiffs to constitute a “substantial burden.” If Plaintiffs refuse to facilitate the objectionable products and services through their health plans, they will be subject to fatal fines of $100 a day per affected beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 75700, Enforcement of the Preventive Health Care Services Requirements of the Patient Protection and Affordable Care Act (Feb. 24, 2012) at 7 (asserting that this fine applies to employers that violate the “preventive care” provision of the Act). On the other hand, if Plaintiffs seek to exit the insurance market altogether, they could be subject to an annual fine of $2,000 per full-time employee after the first thirty employees. See 26 U.S.C. § 4980H(a), (c)(1). These penalties, which would amount to millions of dollars and inflict significant competitive harms, clearly impose the type of pressure that qualifies as a substantial burden under RFRA— far outweighing, for example, the $5 penalty that was a substantial burden in Yoder. There is no doubt that the threat of such penalties compels Plaintiffs to facilitate access to abortion-inducing products, contraception, sterilization, and related counseling, which their religion forbids.
The only federal district court to address substantial burden with respect to similarly situated plaintiffs has applied binding Supreme Court precedent and Korte to hold that the Mandate “places a substantial burden on plaintiffs’ right to freely exercise their religion – specifically their right to not facilitate or initiate the provision of contraceptive products, services, or counseling.” Zubik/Persico Slip op. at 53.

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First, the court applied the test from Korte that “[a]t a minimum, a substantial burden
exists when the government compels a religious person to ‘perform acts undeniably at odds with
fundamental tenets of [his] religious beliefs. Id. at 46 (quoting Korte v. Sebelius, Nos. 12-3841,
13-1077, 2013 WL 5960692, at *22 (7th Cir. Nov. 8, 2013)). This test analyzes the plaintiffs’
sincerely held religious beliefs as articulated, without questioning their scope:
. . . the test for substantial burden does not ask whether the claimant has correctly interpreted his religious obligations. See (sic) Lee, 455 U.S. at 257; Thomas, 450 U.S. at 715-16. Indeed that inquiry is prohibited. “[I]n this sensitive area, it is not within the judicial function and judicial competence to inquire whether the [adherent has] . . . correctly perceived the commands of [his] . . . faith. Courts are not arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716. It is enough that the claimant has an ‘honest conviction’ that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion.
Id. at 48 (quoting Korte, 2013 WL 5960692, at *22). Thus the Court must accept Plaintiffs’
articulation of their sincerely held religious beliefs, if unchallenged by the Government, that
prohibit them from signing the self-certification and participating in the accommodation process.
See Choby Decl. ¶¶ 12-26; Robinson Decl. ¶¶ 15, 19; Sinclair Decl. ¶¶ 13-15; Hagey Decl. ¶¶
15-20; Glascoe Decl. ¶¶ 16-19; Miller Decl. ¶¶ 13-17; Galbraith Decl. ¶¶ 10-13.
Second, the court determined that the accommodation substantially burdens plaintiffs’
religious exercise because it requires them “to sign a form which thereby facilitates/initiates the
provision of contraceptive products, services, and counseling.” Zubik/Persico Slip op. at 48; see
id. at 48-53. Despite the clear legal standard, in that case the Government argued that the
accommodation did not require plaintiffs to violate their religious beliefs or modify their
behavior because eligible entities “merely [had to] sign a piece of paper” and inform their third
party administrator (“TPA”) of the same religious objections they had prior to the issuance of the
Mandate. Id. at 47. The court rejected that argument, however, because plaintiffs sincerely

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believe that the accommodation requires action that violates their religious beliefs. See, e.g., id.
at 49 (“The Government is asking Plaintiffs for documentation for what Plaintiffs sincerely
believe is an immoral purpose, and thus, they cannot provide it.”). Although plaintiffs may be
engaging in the same conduct as they did before the Mandate, the effect is significantly different:
“in the past, such actions barred the provision of contraceptive products, services or counseling.
Now, this type of information previously submitted to an insurer or TPA will be used to
facilitate/initiate the provision of contraceptive products, services or counseling – in direct
contravention of their religious tenets.” Id. at 48 (emphasis added). Moreover, the participation
of the TPA does not affect the analysis, nor “absolve” plaintiffs:
the “accommodation” requires [plaintiffs] to shift the responsibility of purchasing insurance and providing contraceptive products, services, and counseling, onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.
Id. at 49. This is especially true because the Government acknowledged the effect of signing the
self-certification and conceded plaintiffs’ sincerely held religious beliefs. See Slip op. at 47.
Third, the court in Zubik and Persico also rejected the Government’s attempt to
distinguish for-profit cases like Korte. For example, during oral argument in Zubik and Persico,
Defendants asserted:
unlike the for-profit cases where the regulations do actually require the employers to provide contraceptive services in their employee plans, here again it’s a third party that provides payment for contraceptive services. So the burden in these cases, in these nonprofit cases, is accommodated, really this entity is far more attenuated and unsubstantial.
Zubik and Persico Nov. 13, 2013 Oral Arg. Tr. at 52:17-24 (excerpt attached at Ex. J). The
district court disagreed, however, and “found the recent decisions pertaining to secular, for-profit

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organizations to be instructive . . . .” Zubik/Persico Slip op. at 39 (emphasis added).
Finally, the court in Zubik and Persico found a substantial burden in the distinction
between exempt and accommodated entities: by dividing the Catholic Church into a “worship
arm” and “‘good works’ arm[]”, “the Government has created a substantial burden on Plaintiffs’
right to freely exercise their religious beliefs.” Id. at 53. The court questioned: “Why should
religious employers who provide the charitable and educational services of the Catholic Church
be required to facilitate/initiate the provision of contraceptive products, services, and counseling,
through their health insurers or TPAs, when religious employers who operate the houses of
worship do not?” Id. at 50-51. The court found the religious employer exemption “enigmatic”
in the manner in which it “allows the same members of the same religion to completely adhere to
their religious beliefs at times (when the ‘exemption’ applies), while other times, forces them to
violate those beliefs (when the ‘accommodation’ applies).” Id. at 52 (emphasis in original). The
Bishops “while wearing their ‘house-of-worship’ hats, are not in any moral peril; yet, when they
wear their ‘head-of-the-“good works”-agencies’ hats, they must take affirmative actions which
facilitate/initiate the provision of contraceptive products, services, and counseling in violation of
their religious tenets.” Id. at 51-52. Additionally, the court was “constrained to understand”
why charitable, social services agencies
would not be treated the same as the Church itself with respect to the free exercise of that religion. If the contraceptive mandate creates such a substantial burden on the Dioceses’ exercise of religion so as to require the religious employer “exemption,” the contraceptive mandate obviously creates the same substantial burden on the nonprofit, religious affiliated/related organizations like Plaintiffs . . . , which implement the “good works” of the Dioceses. Id. at 52. The same applies here.
As noted and relied upon by the Western District of Pennsylvania, the Seventh and Tenth

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Circuits recently addressed challenges by for-profit companies against the Mandate and found that the religious exercise of for-profit entities is substantially burdened by the Mandate. The Seventh Circuit in Korte held that the Government may not force a for-profit company to contract with a third party that would provide contraceptive coverage to the company’s employees over the owners’ religious objections. That holding applies with even greater force here, where Plaintiffs are non-profit religious organizations. Korte makes clear that “the substantial-burden test under RFRA focuses primarily on the ‘intensity of the coercion applied by the government to act contrary to religious beliefs,’ [the inquiry] evaluates the coercive effect of the governmental pressure on the adherent’s religious practice and steers well clear of deciding religious questions.” 2013 WL 5960692, at *23 (emphasis added). Thus, the court was bound to accept the plaintiffs’ sincere religious belief that complying with the Mandate “would make them complicit in a grave moral wrong.” Id.; see also id. at *5 (“As the [plaintiffs] understand their religious obligations, providing the mandated coverage would facilitate a grave moral wrong.” (emphasis added)). In light of that sincere belief, the only question for purposes of the substantial burden analysis was whether the Government had imposed “substantial pressure” to force plaintiffs to comply with the Mandate, id. at *22 (quoting Thomas, 450 U.S. at 718), to which the court found it easy to answer. By threatening such “ruinous fines,” the Mandate “placed enormous pressure on the plaintiffs to violate their religious beliefs and conform to its regulatory mandate,” thus imposing a “direct and substantial” burden on plaintiffs’ religious exercise. Id. at *23. The Tenth Circuit, sitting en banc, likewise recently held that a for-profit religious company was likely to succeed on the merits of a RFRA claim because the Mandate imposed a substantial burden on religious exercise by “demand[ing],” on pain of onerous penalties, “that [plaintiffs] enable access to contraceptives that [they] deem morally

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problematic.” Hobby Lobby, 723 F.3d at 1141.5 The same is true here. In sum, the Mandate leaves no way for Plaintiffs to continue their operations in a manner
consistent with their sincerely held religious beliefs. Instead, it forces them to either abandon their beliefs by facilitating access to objectionable products and services, or violate the law and face severe penalties. See Choby Decl. ¶¶ 12-26; Robinson Decl. ¶¶ 15, 19; Sinclair Decl. ¶¶ 1315, 17; Hagey Decl. ¶¶ 15-20; Glascoe Decl. ¶¶ 16-19; Miller Decl. ¶¶ 13-18; Karlovic Decl. ¶¶ 13, 18-22; Galbraith Decl. ¶¶ 10-13, 17. Imposing this impossible dilemma constitutes a substantial burden on Plaintiffs’ religious exercise. This burden is exacerbated by the fact that the Mandate will almost certainly require Plaintiffs to subsidize the objectionable products and services.
2. The Government Cannot Demonstrate that the Mandate Furthers a Compelling Government Interest.
Under RFRA, the Government must “demonstrate that the compelling interest test is satisfied through application of the challenged law [to] the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430–31 “[B]roadly formulated” or “sweeping” interests are inadequate. Id. at 431; Yoder, 406 U.S. at 221. Rather, the Government must show with “particularity how [even] admittedly strong interest[s]” “would be adversely affected by granting an exemption.” Yoder, 406 U.S. at 236; see also O Centro, 546 U.S. at 431. The Government, therefore, must show a specific compelling interest in forcing “the particular claimant[s] whose sincere exercise of religion is being substantially burdened” into serving as the instruments by which its purported goals are advanced. Id. at 430-31; Tyndale
5 See also Gilardi v. HHS, No. 13-5069, 2013 WL 5854246 (D.C. Cir. Nov. 1, 2013) (affirming grant of injunction); Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013) (granting injunction pending appeal); O’Brien v. HHS, No. 12Ǧ3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012) (granting injunction pending appeal).

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House Publishers, Inc. v. Sebelius, 904 F .Supp. 2d 106, 125-26 (D.D.C. 2012). The Government cannot begin to meet this standard.
At the most basic level, “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 the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (internal quotation marks and alteration omitted); see also O Centro, 546 U.S. at 433; Newland, 881 F. Supp. 2d at 1297-98. Here, the Government cannot claim an interest of the “highest order” where it exempts millions of employees from the Mandate through grandfathering provisions and small-employer exemptions. The Government cannot plausibly maintain that Plaintiffs’ employees must be covered by the Mandate when it already exempts millions of women receiving insurance through grandfathered plans simply to fulfill the President’s promise that “Americans who like their health plan can keep it.” HHS.gov, “U.S. Departments of Health and Human Services, Labor, and Treasury Issue Regulation on ‘Grandfathered’ Health Plans [U]nder the Affordable Care Act” (June 14, 2010) (Ex. E). An interest is hardly compelling if it can be trumped by political expediency. Such a broad exemption “completely undermines any compelling interest in applying the preventive care coverage mandate.” Newland, 881 F. Supp. 2d at 1298; see also Hobby Lobby, 723 F.3d at 1144; Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402, 434 (W.D. Pa. 2013), injunction granted 2013 U.S. Dist. LEXIS 85107 (W.D. Pa. June 18, 2013); Tyndale, 904 F. Supp. 2d at 128.
The Mandate’s narrow “religious employer” exemption further undermines the Government’s claim that its interests are “compelling.” In O Centro, a religious group sought an exemption from the Controlled Substances Act to use hoasca—a hallucinogen—for religious purposes. When granting the exemption, the Supreme Court refused to credit the Government’s

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alleged interest in public health and safety when the Act at issue already contained an exemption for the religious use of another hallucinogen—peyote. “Everything the Government says about the DMT in hoasca,” the Court explained, “applies in equal measure to the mescaline in peyote.” O Centro, 546 U.S. at 433. Because Congress permitted peyote use in the face of concerns regarding health and public safety, “it [wa]s difficult to see how” those same concerns could “preclude any consideration of a similar exception for” the religious use of hoasca. Id. Likewise, “everything the Government says” about its interests in requiring Plaintiffs to facilitate access to the mandated products and services “applies in equal measure” to entities that meet the Mandate’s definition of “religious employer,” as well as the numerous other entities that are exempt from the Mandate for non-religious reasons.
That the Government’s own religious employer exemption undermines its alleged compelling interest was confirmed in Zubik and Persico, where the court reasoned that the religious employer exemption “is an acknowledgment of the lack of a compelling governmental interest as to religious employers who hire employees for their ‘houses of worship,’” and the Government’s claim that there is such a compelling interest as to “a different religious affiliated/related employer fails.” Zubik/Persico Slip op. at 55-56. Indeed, the court concluded that the Government’s justification for the distinction between exempt and accommodated entities is “speculative and unsubstantiated by the record and, therefore, unpersuasive.” Id. at 56-57.6 Ultimately, the court court found there was no compelling interest because of the religious employer exemption:
If there is no compelling governmental interest to apply the
6 The court also explained that recognizing such a compelling interest “would be to allow the Government to cleave the Catholic Church into two parts: worship, and service and ‘good works,’ thereby entangling the Government in deciding what comprises ‘religion.’” Zubik/Persico Slip op. at 56; see also infra at Sect. I.D.2.

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contraceptive mandate to the religious employers who operate the ‘houses of worship,’ then there can be no compelling governmental interest to apply (even in an indirect fashion) the contraceptive mandate to the religious employers of the nonprofit, religious affiliated/related entities, like Plaintiffs in these cases. Slip op. at 56. Finally, the Government’s interest cannot be compelling where the Mandate would only fill, at best, a “modest gap” in contraceptive coverage. Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2741 (2011). The Government acknowledges that contraceptives are widely available at free and reduced cost and are also covered by “over 85 percent of employer-sponsored health insurance plans.” 75 Fed. Reg. 41,726, 41,732 (July 19, 2010); HHS.gov, “A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius” (Jan. 20, 2012) (Ex. F). The Government, moreover, has adduced “no empirical data or other evidence . . . that the provision of the FDA-approved emergency contraceptives . . . would result in fewer unintended pregnancies, an increased propensity to seek prenatal care, or a lower frequency of risky behavior endangering unborn babies.” Beckwith v. Sebelius, No. 8:13-cv-0648-T-17MAP, 2013 WL 3297498, at *17 (M.D. Fla. June 25, 2013). To the contrary, recent scholarship confirms that a modest increase in coverage for contraception is unlikely to significantly impact contraceptive use, “because the group of women with the highest unintended pregnancy rates (the poor) are not addressed or affected by the Mandate [because they are unemployed], and are already amply supplied with free or low-cost contraception,” and “because women have a true variety of reasons for not using contraception that the law cannot mitigate or satisfy simply by attempting to increase access to contraception by making it ‘free.’” Helen M. Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 VILL. L. REV. 379, 380 (2013). As such, the Government cannot claim to have “identif[ied] an actual problem in need of solving,” Brown, 131 S. Ct. at 2738

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(internal marks and citation omitted), much less that its proposed solution will address the alleged problem in any meangful way. See Zubik/Persico Slip Op. at 57 (holding that the Government provided no evidence that “women who receive their health coverage through employers like plaintiffs would face negative health and other outcomes”). Simply put, the Government “does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Brown, 131 S. Ct. at 2741 n.9.
3. The Government Cannot Demonstrate that the Mandate Is the Least Restrictive Means to Achieve Its Asserted Interests.
Under RFRA, the Government must also show that the regulation “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b)(2). Under that test, “[i]f there are other, reasonable ways to achieve those [interests] with a lesser burden on constitutionally protected activity, [the Government] may not choose the way of greater interference. If it acts at all, it must choose less drastic means.” Dunn v. Blumstein, 405 U.S. 330, 343 (1972) (internal quotations marks omitted). “A statute or regulation is the least restrictive means if ‘no alternative forms of regulation would [accomplish the compelling interest] without infringing [religious exercise] rights.’” Kaemmerling, 553 F.3d at 684 (quoting Sherbert, 374 U.S. at 407). “Nor can the government slide through the test merely because another alternative would not be quite as good.” Hodgkins v. Peterson, 355 F.3d 1048, 1060 (7th Cir. 2004).
The “least restrictive means” test “necessarily implies a comparison with other means.” Washington v. Klem, 497 F.3d 272, 284 (3d Cir. 2007). “Because this burden is placed on the Government, it must be the party to make this comparison.” Id. The Government must demonstrate that “it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.” Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir.

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2005); see also Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013) (explaining that strict scrutiny requires a “serious, good faith consideration of workable . . . alternatives” that will achieve the government’s stated goal) (quoting Grutter v. Bollinger, 539 U.S. 306, 339 (2003)).
The Western District of Pennsylvania found that in light of the Government’s failure to meet its burden on compelling interest it “need not consider whether the ‘accommodation’ was the least restrictive means of meeting the stated compelling interests.” Zubik/Persico Slip op. at 58. “Nevertheless,” the court concluded that “the Government failed to present any credible evidence tending to prove that it utilized the least restrictive means of advancing those interests.” Id. at 58, 60. Indeed, “there is nothing in the record to establish, or even hint, that a broader ‘religious employer’ exemption, to include Plaintiffs . . . , would have any impact at all on ‘the entire statutory scheme’”, id. at 60, despite the Government’s assertion that the “accommodation” was the “‘only possible means’ of furthering the two [alleged] compelling governmental interests . . . .” Id. at 58. In that case, all the Government could point to in support of its least restrictive means argument was one page of the Federal Register (78 Fed. Reg. 39,888 (July 2, 2013))—a page that “clearly announces that the alternatives to the current regulations— including the contraceptive mandate—would not advance the Government’s interests ‘as effectively as’ the contraceptive mandate and the ‘accommodation.’” Id. at 60 (emphasis in original). But, as the court noted: “Greater efficacy does not equate to the least restrictive means.” Id. at 60.
The Seventh Circuit in Korte has also recently held that the Government “has not come close to carrying its burden of demonstrating that it cannot achieve its policy goals in ways less damaging to religious-exercise rights.” Korte, 2013 WL 5960692, at *26. By asserting sweeping interests in “public health” and “gender equality,” the Government has “guarantee[d]

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that the mandate” will fail strict scrutiny because it is “impossible to show that the mandate is the least restrictive means of furthering” those broad interests. Id. at *25. Moreover, even assuming the Government has a compelling interest in the more specific goal of “broaden[ing] access to free contraception and sterilization”—an assumption that is “both contestable and contested”— the Mandate still fails strict scrutiny because “there are many ways to increase access to free contraception” without forcing Plaintiffs to participate in the effort. Id. at *25-26.
Here, the Government has myriad ways to achieve its asserted interests without forcing Plaintiffs to violate their religious beliefs. Plaintiffs in no way recommend these alternatives and oppose many of them as a matter of policy, but the fact that they are available to the Government shows that the Mandate cannot survive RFRA’s narrow-tailoring requirement. For example, the Government could: (i) directly provide contraceptive services to the few individuals who do not receive it under their health plans; (ii) offer grants to entities that already provide contraceptive services at free or subsidized rates and/or work with these entities to expand delivery of the services; (iii) directly offer insurance coverage for contraceptive services; (iv) grant tax credits or deductions to women who purchase contraceptive services; or (v) allow Plaintiffs to comply with the Mandate by providing coverage for methods of family planning consistent with Catholic beliefs (i.e., Natural Family Planning training and materials). Indeed, the Government is already providing “free contraception to women,” including through the Title X Family Planning Program. Newland, 881 F. Supp. 2d at 1299. The Government’s utter failure to consider these alternatives is fatal, because strict scrutiny requires a “serious, good faith consideration” of workable alternatives. Grutter, 539 U.S. at 339; Zubik/Persico Slip Op. at 59 (holding that the Government could not meet its burden to establish that the “accommodation” is the least restrictive means because it failed to “offer[] any evidence [in the administrative record]

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concerning: (1) the identity of all other possible ‘least restrictive means’ considered by the Government; (2) the analysis of each of the ‘means’ to determine which was the ‘least’ restrictive; (3) the identity of the person(s) involved in the identification and evaluation of the alternative ‘means’; or (4) ‘evidence-based’ analysis as to why the Government believes that the ‘accommodation’ is the ‘least restrictive means’”).
B. The Mandate Violates the Free Exercise Clause The Free Exercise Clause of the First Amendment embodies a “fundamental non-persecution principle” that prevents the Government from “enact[ing] laws that suppress religious belief or practice.” Lukumi, 508 U.S. at 523. “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Id. at 532. While the Free Exercise Clause does not require heightened scrutiny of laws that are “neutral [and] generally applicable,” Smith, 494 U.S. at 881, it does require strict scrutiny of laws that disfavor religion. See Lukumi, 508 U.S. at 532. Thus, “[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Id. at 546. In Lukumi, for example, the Supreme Court invalidated a municipal ordinance that imposed penalties on “[w]hoever . . . unnecessarily . . . kills any animal.” Id. at 537. Although the ordinance was not facially discriminatory, the Court found that its practical effect was to disfavor religious practioners of Santeria because it allowed exemptions for secular but not for religious reasons. Once the city began allowing exemptions, the Court held that the law was no longer “generally applicable,” and the city could not “refuse to extend [such exemptions] to cases of ‘religious hardship’ without compelling reason.” Id. at 537 (internal citation omitted). Likewise, in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359,

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365-67 (3d Cir. 1999) (Alito, J.), the Third Circuit invalidated a police department policy that prohibited a Sikh police officer from wearing a beard because it contained an exemption for officers who were unable to shave for medical reasons but not for religious reasons. Relying on Lukumi, the court found that the “decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny.” Id. at 365.
The same reasoning applies here. The Mandate is not “generally applicable” because it is riddled with exemptions, see supra at 4, and yet there is no such exemption for religious employers like Plaintiffs. It makes no difference that the Mandate contains an exemption for a narrow subset of religious groups—namely, those that meet the Government’s limited definition of a “religious employer.” Because it offers so many secular exemptions, the Government must give equal consideration to all claimants who seek similar exemptions on religious grounds. The Free Exercise Clause does not merely require equal treatment for some religious entities. Thus, the Mandate fails the test of general applicability, and the Government may not “refuse to extend [exemptions] to cases of ‘religious hardship’ without compelling reason.” Lukumi, 508 U.S. at 537.
In addition, the Mandate is not “neutral” because it is specifically targeted at Plaintiffs’ religious practice of refusing to provide or facilitate access to contraception. When the Government promulgated the Mandate, it was acutely aware that any gap in coverage for contraception was due primarily to the religious beliefs and practices of employers such as the Catholic Church. Indeed, the Government itself concedes that 85% of health plans already cover contraception, and it asserts that adding contraception to the remaining 15% is cost-neutral. If so, then the only conceivable reason why the latter plans would not include contraceptive

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coverage is a religious or moral objection. But instead of pursuing a wide variety of options for increasing access to contraception without forcing religious groups like Plaintiffs to participate in the effort, the Government deliberately chose to pick a high-profile fight by forcing religious groups to provide or facilitate access to contraception in violation of their core beliefs.
The record, moreover, establishes that the Mandate was part of a conscious political strategy to marginalize and delegitimize Plaintiffs’ religious views on contraception by holding them up for ridicule on the national stage. For example, at a NARAL Pro-Choice America fundraiser, Defendant Sebelius stated, “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely affordable contraceptive services? Not so much.” (Compl. ¶ 209). Thus, the Government went out of its way to impose an unnecessary burden on Plaintiffs’ religious practices. Not only the “real operation,” but also the intended effect, of the Mandate has always been to target and suppress Plaintiffs’ religious practices. Lukumi, 508 U.S. at 533-35.
Finally, the Mandate is subject to strict scrutiny because it implicates the “hybrid” rights of religious believers. In Employment Division v. Smith, 494 U.S. 872, 881-82 (1990), the Supreme Court noted that the Free Exercise Clause can “reinforce[]” other constitutional protections, such as freedom of speech and association, which are particularly important when religious beliefs and practices are at stake. The present case illustrates why. In order to carry out their religious mission, Plaintiffs must enjoy the freedom to associate in religious schools and charities without being forced to violate their core beliefs. The Mandate denies them this freedom by effectively prohibiting them from forming schools and charities unless they (a) provide or facilitate access to contraception, and (b) sponsor Government speech in the form of contraceptive “counseling.” Thus, not only does the Mandate violate Plaintiffs’ rights of free

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speech and association, but the effect of these violations is to deny Plaintiffs their ability to engage in religious schooling, health care, and charity—essential components of their faith.
C. The Mandate Violates the First Amendment Protection Against Compelled Speech
It is “a basic First Amendment principle that ‘freedom of speech prohibits the government from telling people what they must say.’” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S.Ct. 2321, 2327 (2013) (quoting Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47, 61 (2006)). Thus, “[a]ny attempt by the government either to compel individuals to express certain views, or to subsidize speech to which they object, is subject to strict scrutiny.” R.J. Reynolds Tobacco Co., et al., v. FDA, 696 F. 2d 1205, 1211 (D.C. Cir. 2012) (citing United States v. United Foods, Inc., 533 U.S. 405, 410-11 (2001)). Protection against compelled speech “applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.” Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 573 (1995).
The Mandate violates the First Amendment prohibition on compelled speech in two ways. First, it requires Plaintiffs to provide, pay for, and/or facilitate access to “counseling” related to abortion-inducing products, contraception, and sterilization for their employees. Because Plaintiffs oppose abortion and contraception, they strongly object to providing any support for “counseling” that encourages, promotes, or facilitates such practices. Indeed, opposition to abortion and contraception is an important part of the religious message that Plaintiffs preach, and they routinely counsel men and women against engaging in such practices. Consequently, forcing Plaintiffs to support “counseling” in favor of such practices, or even to give details about the availability of such practices, imposes a serious burden on their freedom of speech. In short, Plaintiffs cannot be forced to act as mouthpieces in the Government’s

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campaign to expand access to abortion and contraception. Second, to qualify for the so-called “accommodation,” the Mandate requires Plaintiffs to
provide a “certification” stating their objection to the provision of abortion-inducing products, contraception, sterilization, and related counseling. This “certification” in turn triggers an obligation on the part of Plaintiffs’ third party administrator (or their insurance provider, if they do not self-insure) to provide or procure the objectionable products and services for Plaintiffs’ employees. Plaintiffs object to this certification requirement both because it compels them to engage in speech that triggers provision of the objectionable products and services, and because it deprives them of the freedom to speak on the issue of abortion and contraception on their own terms, at a time and place of their own choosing, outside of the confines of the Government’s regulatory scheme. See, e.g., Evergreen Ass’n v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011) (striking down law requiring crisis pregnancy centers to issue disclaimers that they did not provide abortion-related services); Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456, 459, 462 n.6 (D. Md. 2011), aff’d 722 F.3d 184 (4th Cir. 2013) (en banc) (enjoining enforcement of law requiring crisis pregnancy centers to post notice “encourag[ing] women who are or may be pregnant to consult with a licensed health care provider”).
D. The “Religious Employer” Exemption Violates the Establishment Clause The “religious employer” exemption violates the Establishment Clause of the First Amendment in two ways. First, it creates an artificial, Government-favored category of “religious employers,” which favors some types of religious groups over others. Second, it creates an excessive entanglement between government and religion.
1. Discrimination Among Religious Groups The principle of equal treatment among religious groups lies at the core of the Establishment Clause. Just as the Government cannot discriminate among sects or

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denominations, so too it cannot “discriminate between ‘types of institution’ on the basis of the nature of the religious practice these institutions are moved to engage in.” Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008) (McConnell, J.). Because religious liberty encompasses not only the freedom of religious belief, but also the freedom to adopt different practices and institutional structures, official favoritism for certain “types” of religious institutions is just as insidious as favoritism based on creed.
For example, in Larson v. Valente, 456 U.S. 228 (1982), the Supreme Court struck down a Minnesota law imposing special registration requirements on any religious organization that did not “receive[] more than half of [its] total contributions from members or affiliated organizations.” Id. at 231-32. The state defended the law on the ground that it was facially neutral and merely had a disparate impact on some religious groups. The Court, however, rejected that argument, finding that the law discriminated among denominations by privileging “well-established churches that have achieved strong but not total financial support from their members,” while disadvantaging “churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members.” Id. at 246 n.23 (internal quotation marks omitted). The D.C. Circuit has followed similar reasoning, stating that “an exemption solely for ‘pervasively sectarian’ schools would itself raise First Amendment concerns—discriminating between kinds of religious schools.” Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1342 (D.C. Cir. 2002) (emphasis added).
Here, the Mandate violates this principle of neutrality by establishing an official category of “religious employer” that favors some religious groups over others. The exemption is defined to include only “nonprofit organization[s] described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code [of 1986, as amended].” As the

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Government has explained, those provisions of the tax code include only “churches, synagogues, mosques, and other houses of worship, and religious orders.” 78 Fed. Reg. at 8,461. This definition favors religious groups that fit into the traditional categories of “houses of worship” or “religious orders,” while disadvantaging groups that exercise their religious faith through alternative means—including religious ministries, like Plaintiffs Catholic Charities, Camp Marymount, MQA, St. Mary Villa, and Aquinas College, which express their faith by providing other various charitable services to the elderly, poor, and needy and educating young people. As Cardinal Donald Wuerl stated, “[n]ever before has the government contested that institutions like Archbishop Carroll High School or Catholic University are religious. Who would? But HHS’s conception of what constitutes the practice of religion is so narrow that even Mother Teresa would not have qualified.” Cardinal Wuerl: Defending Our First Freedom In Court (Ex. G).
2. Excessive Entanglement “It is well established . . . that courts should refrain from trolling through a person’s or institution’s religious beliefs.” Mitchell v. Helms, 530 U.S. 793, 828 (2000). “It is not only the conclusions that may be reached . . . which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.” NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 502 (1979). “Most often, this principle has been expressed in terms of a prohibition of ‘excessive entanglement’ between religion and government.” Colo. Christian, 534 F.3d at 1261 (citing Agostini v. Felton, 521 U.S. 203 (1997)). “Properly understood, the doctrine protects religious institutions from governmental monitoring or second-guessing of their religious beliefs and practices, whether as a condition to receiving benefits . . . or as a basis for regulation or exclusion from benefits (as here).” Colo. Christian, 534 F.3d at 1261 (citing Carl H. Esbeck, Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 WASH. & LEE L. REV. 347, 397 (1984)).

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In determining eligibility for a religious exemption, the Government may not ask
intrusive questions designed to determine whether a group is “sufficiently religious,” Univ. of
Great Falls, 278 F.3d at 1343, or even whether the group has a “substantial religious character.”
Id. at 1344. Rather, any inquiry into a group’s eligibility for a religious exemption must be
limited to determining whether the group is a “bona fide religious institution[].” Id. at 1343-45
(approving of a religious exemption that would include any non-profit group that “holds itself
out” as religious, but reserving the question of whether groups could be required to show that
they are “affiliated with . . . a recognized religious organization”).
Here, the Government’s criteria for the “religious employer” exemption go far beyond
determining bona fide religious status. By its terms, the exemption applies to groups that are
“described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue]
Code.” This category includes (i) “churches, their integrated auxiliaries, and conventions or
associations of churches,” and (iii) “the exclusively religious activities of any religious order.”
78 Fed. Reg. at 8,458. The IRS, however, has adopted an intrusive 14-factor test to determine
whether a group meets these criteria. See Found. of Human Understanding v. United States, 88
Fed. Cl. 203, 220 (Fed. Cl. 2009). The fourteen (14) criteria ask whether a religious group has
(1) a distinct legal existence; (2) a recognized creed and form of worship; (3) a definite and distinct ecclesiastical government; (4) a formal code of doctrine and discipline; (5) a distinct religious history; (6) a membership not associated with any church or denomination; (7) an organization of ordained ministers; (8) ordained ministers selected after completing prescribed studies; (9) a literature of its own; (10) established places of worship; (11) regular congregations; (12) regular religious services; (13) Sunday schools for the religious instruction of the young; and (14) schools for the preparation of its ministers.
Id. (citing Church of the Visible Intelligence v. United States, 4 Cl. Ct. 55, 64 (1983)).
Not only do these factors favor some religious groups over others, but they do so on the

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basis of intrusive judgments regarding religious beliefs, practices, and organizational structure. For example, probing into whether a group has “a recognized creed and form of worship” not only requires the Government to determine which belief systems will be deemed “recognized creed[s],” but also demands inquiry into which practices qualify as “forms of worship.” In answering such questions, the Government cannot escape being “cast in the role of arbiter of [an] essentially religious dispute.” New York v. Cathedral Acad., 434 U.S. 125, 132-33 (1977). Similarly, in determining whether a religious group has had “a distinct religious history,” the exemption not only favors long-established religious groups, but also requires the Government to probe into potentially disputed matters of religious history. Any dispute as to whether a group’s history is sufficiently “distinct” or “religious,” should not be resolved by the Government. Indeed, “church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment.” Id. at 133.
E. The Mandate Unconstitutionally Interferes with Plaintiffs’ Rights of Internal Church Governance
The Supreme Court has recognized that the Religion Clauses of the First Amendment prohibit the Government from interfering with matters of internal church governance. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S.Ct. 694 (2012), the Court held that the Government may not apply anti-discrimination laws to interfere with religious groups in the hiring and firing of ministers because the First Amendment prohibits “government interference with an internal church decision that affects the faith and mission of the church itself.” Id. at 707. Indeed, because “the autonomy of religious groups . . . has often served as a shield against oppressive civil laws,” the Court has “long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.” Id. at 712 (Alito, J., concurring).

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Here, the Mandate violates this principle by artificially splitting the Catholic Church in two and preventing the Church from exercising supervisory authority over its constituents in a way that ensures compliance with Church teachings. See, e.g., Choby Decl. ¶¶ 27-40; Robinson Decl. ¶¶ 9; Karlovic Decl. ¶¶ 11-17. In particular, the religious employer definition treats the Catholic Church as having two wings—a religious one and a charitable one—and treats only the former as a religious employer, when, in fact, the Church’s religious and charitable arms are one and the same: “The Church cannot neglect the service of charity anymore than she can neglect the sacraments and the word.” USCCB’s Papal Visit Blog, “Benedict XVI’s Plea: Put the Poor at the Heart of Catholic Life” (Mar. 25, 2008) (Ex. H). Thus, by refusing to recognize the Church’s charitable functions as those of a single, integrated “religious employer,” the Mandate directly interferes with Catholic Church structure. See also Zubik/Persico Slip Op. at 53 (holding that by dividing the Catholic Church into a “worship arm” and a “good works arm[]”, “[t]he Government has created a substantial burden on Plaintiffs’ right to freely exercise their religious beliefs”); id. at 50-52.
The Mandate, moreover, compounds this error by interfering with the Church hierarchy’s ability to ensure that subordinate institutions, including various charitable and educational ministries, adhere to Church teaching through participation in a single insurance plan. Such an arrangement is currently in place in the Nashville Diocese, where the Diocese makes its health plan available to the employees of its religious affiliates, including Catholic Charities and Camp Marymount. By serving as the insurance provider for these organizations, the Diocese can directly ensure that these organizations offers its employees a health plan that is in all ways consistent with Catholic beliefs. The Congregation has adopted the same arrangement, insuring its lay employees as well as the employees of Aquinas College and other schools on the same

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plan. The Mandate disrupts this internal arrangement by forcing the Diocese to either maintain its plan’s grandfathered status to protect Catholic Charities and Camp Marymount; sponsor a plan that will provide the employees of Catholic Charities and Camp Marymount with access to “free” abortion-inducing products, contraception, sterilization, and related counseling; or expel Catholic Charities and Camp Marymount from the Diocese’s plan, thereby forcing them to enter into a different contract for the objectionable coverage. Similarly, the Congregation must either sponsor an objectionable plan or expel Aquinas College from its plan. Either way, the Mandate directly undermines the Diocese’s and the Congregation’s ability to ensure that their religious affiliates remain faithful to Church teaching. II. PLAINTIFFS ARE SUFFERING ONGOING IRREPARABLE HARM
Plaintiffs are entitled to injunctive relief because the Mandate is causing them substantial irreparable harm. “It is well settled that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Tyndale, 904 F. Supp. 2d at 129 (D.D.C. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)) appeal dismissed, No. 13-5018, 2013 WL 2395168 (D.C. Cir. May 3, 2013). “By extension, the same is true of rights afforded under the RFRA, which covers the same types of rights as those protected under the Free Exercise Clause of the First Amendment.” Id. (citing O Centro Espirita Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 995 (10th Cir. 2004), aff’d 546 U.S. 418 (2006)) (“[The plaintiff] would certainly suffer an irreparable harm, assuming of course that it is likely to succeed on the merits of its RFRA claim.”)); cf. Jeffreys v. My Friend’s Place, Inc., 719 F. Supp. 639, 647-48 (M.D. Tenn. 1989) (citing EEOC v. Chrysler Corp., 733 F.2d 1183, 1186 (6th Cir. 1984)).
The forced violation of Plaintiffs’ faith is the epitome of irreparable injury. See, e.g., Mobil Oil Corp. v. Henriksen Enters., 490 F. Supp. 74, 77 (W.D. Mich. 1980) (holding that

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irreparable harm occurs when monetary damages are inadequate). The Mandate forces Plaintiffs to violate central tenets of their religious beliefs. See Choby Decl. ¶¶ 12-26; Robinson Decl. ¶¶ 15, 19; Sinclair Decl. ¶¶ 13-15; Hagey Decl. ¶¶ 15-20; Glascoe Decl. ¶¶ 16-19; Miller Decl. ¶¶ 13-17; Karlovic Decl. ¶¶ 18-22; Galbraith Decl. ¶¶ 10-13. Absent an injunction, the Government can begin enforcing the Mandate against Plaintiffs before the final resolution of this case, while there is a serious question as to whether the Mandate violates the Constitution and other applicable law. Thus, every moment that passes without relief inflicts ongoing irreparable harm to Plaintiffs’ religious freedoms, confronting them with the impossible choice of violating their religious beliefs or violating the law. Because this is not the type of harm that can later be remedied by monetary damages, the injury is irreparable. See Mobil Oil Corp., 490 F. Supp. at 77; Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984) (“[Irreparable] harm . . . cannot be prevented or fully rectified by the final judgment after trial.”). III. THE BALANCE OF HARMS WEIGHS IN FAVOR OF PLAINTIFFS
Any harm that may result from granting preliminary relief to Plaintiffs necessarily “pales in comparison” to the serious harms to their religious freedoms that will be continued absent that relief. Newland, 881 F. Supp. 2d at 1295. On the one hand, as described above, enforcement of the Mandate will plainly cause Plaintiffs irreparable harm by forcing them to violate their religious beliefs of pay oppressive fines until the merits of this suit are conclusively resolved. On the other hand, preliminary relief would not cause the Government appreciable harm because it has not mandated contraceptive coverage for over two centuries, and there is no urgent need to enforce the Mandate against Catholic groups before its legality can be adjudicated. In addition, given that the Mandate already contains exemptions that by some estimates are available to “over 190 million health plan participants and beneficiaries,” Id. at 1298, the Government cannot possibly claim that it will be harmed by this Court granting a temporary exemption for Plaintiffs.

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Indeed, any claim of harm is fatally undermined by the Government’s acquiescence to preliminary injunctive relief in several other cases challenging the Mandate. See, e.g., Sharpe Holdings, Inc. v. HHS, No. 2:12-cv-00092 (E.D. Mo. Mar. 11, 2013) (Dkt. 41); Sioux Chief Mfg. Co. v. Sebelius, No. 4:13-cv-0036 (W.D. Mo. Feb. 28, 2013) (Dkt. 9); Hall v. Sebelius, No. 130295 (D. Minn. Apr. 2, 2013) (Dkt. 11); Bick Holding, Inc. v. Sebelius, No. 4:13-cv-00462 (E.D. Mo. Apr. 1, 2013) (Dkt. 19). The Government “cannot claim irreparable harm in this case while acquiescing to preliminary injunctive relief in several similar cases.” Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 56087, at *41 (W.D. Pa. Apr. 19, 2013).
In short, when balanced against the irreparable injury to Plaintiffs if the Mandate is enforced, any harm the Government might claim from a temporary injunction is de minimus. IV. GRANTING A PRELIMINARY INJUNCTION WILL SERVE THE PUBLIC
INTEREST Preliminary relief also serves the public interest. For one thing, the Sixth Circuit has recognized that “it is always in the public interest to prevent violation of a party’s constitutional rights.” Deja Vu, 274 F.3d at 400 (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). This same reasoning should also apply to the rights protected by RFRA, which is meant to give religious exercise even greater protection than that provided under the First Amendment. Cf., e.g., Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001). In particular, there is a “strong public interest in a citizen’s free exercise of religion, a public interest clearly recognized by Congress when it enacted RFRA.” O Centro, 389 F.3d at 1010, aff’d 546 U.S. 418 (2006). Here, public interest in a preliminary injunction is especially high because enforcement of the Mandate will threaten or diminish the continuation of Plaintiffs’ charitable, health care, childcare, and educational activities, which serve thousands of needy individuals. See, e.g.,

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Sinclair Decl. ¶¶ 6, 23-24; Hagey Decl. ¶¶ 7-9, 24-25; Glascoe Decl. ¶¶ 6, 23-24; Miller Decl. ¶¶ 5, 20-21. If the Government goes ahead with the enforcement of the Mandate, Plaintiffs may be forced to shut down or restructure their operations, leaving a gap in the network of critical social services relied on by so many in their communities. By contrast, no public harm would come from simply preserving the status quo pending further litigation. Even if the public interest were served by widespread free access to abortion-inducing products, contraception, and sterilization—a highly dubious assumption—these products and services are widely available, and the Government has adduced no evidence that the Mandate will make them more widely available in the relatively short period of time that will be required to adjudicate this case on the merits.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court adjudicate this motion on an expedited basis and grant Plaintiffs’ request for a preliminary injunction exempting Plaintiffs from application of, and enforcement of, compliance with the Mandate.

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Respectfully submitted, this 26th day of November, 2013.
/s/ Robb S. Harvey Robb S. Harvey (Tenn. BPR No. 11519) Lauran M. Sturm (Tenn. BPR No. 030828) WALLER LANSDEN DORTCH & DAVIS, LLP 511 Union Street, Suite 2700 Nashville, Tennessee 37219 Telephone: (615) 850-8856 robb.harvey@wallerlaw.com lauran.sturm@wallerlaw.com Local Counsel for Dominican Sisters of St. Cecilia Congregation and Aquinas College
Matthew A. Kairis, Trial Counsel (Ohio Bar No. 55502)* Melissa D. Palmisciano* (Ohio Bar No. 80027)* Brandy H. Ranjan (Ohio Bar No. 86984)* JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus, OH 43216 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 makairis@jonesday.com mpalmisciano@jonesday.com branjan@jonesday.com Counsel for Plaintiffs
L. Gino Marchetti, Jr. (Tenn. BPR No. 005562) Matthew C. Pietsch (Tenn. BPR No. 024659) Antonio J. Aguilar (Tenn. BPR No. 029743) TAYLOR, PIGUE, MARCHETTI & BLAIR, PLLC 2908 Poston Avenue Nashville, Tennessee 37203-1312 Telephone: (615) 320-3225 Facsimile: (615) 320-3244 marchetti-dc@tpmblaw.com Local Counsel for The Catholic Diocese of Nashville; Catholic Charities of Tennessee, Inc.; Camp Marymount, Inc.; Mary, Queen of Angels, Inc.; and St. Mary Villa, Inc. * pending pro hac vice admission
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CERTIFICATE OF SERVICE

I hereby certify that on November 26, 2013, I filed the foregoing Memorandum of Law in

Support of Plaintiffs’ Motion for Preliminary Injunction with the Clerk of the United States

District Court for the Middle District of Tennessee using the CM/ECF system and and mailed the

foregoing by first class mail via the United States Postal Service to the following:

Kathleen Sebelius, Secretary U.S. Department of Health & Human Services 200 Independence Ave., S.W. Washington, D.C. 20201

U.S. Department of Health & Human Services 200 Independence Ave., S.W. Washington, D.C. 20201

Thomas Perez, Secretary U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210

U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210

Jacob J. Lew, Secretary U.S. Department of Treasury 1500 Pennsylvania Ave., N.W. Washington, D.C. 20220

U.S. Department of Treasury 1500 Pennsylvania Ave., N.W. Washington, D.C. 20220

Department of Justice Room B103 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001

David Rivera, Acting U.S. Attorney c/o Civil Process Clerk United States Department of Justice United States Attorney’s Office Middle District of Tennessee 110 Ninth Avenue South, Suite A961 Nashville, TN 37203

/s/ Robb S. Harvey One of the Attorneys for Plaintiffs

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

THE CATHOLIC DIOCESE OF NASHVILLE, et al.
Plaintiffs, v. KATHLEEN SEBELIUS, et al.,
Defendants.

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Case No. 3:13-CV-01303

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DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JURGMENT

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendants hereby move to dismiss this action. In the alternative, defendants move for summary judgment on all of plaintiffs’ claims pursuant to Rule 56. The grounds for these motions are set forth in the accompanying memorandum, which also responds to plaintiffs’ motion for a preliminary injunction.

Dated: December 11, 2013

Respectfully Submitted,
STUART F. DELERY Assistant Attorney General
KATHLEEN R. HARTNETT Deputy Assistant Attorney General
DAVID RIVERA Acting United States Attorney
JENNIFER RICKETTS Director, Federal Programs Branch
SHEILA M. LIEBER Deputy Director

Case 3:13-cv-01303 Document 38 Filed 12/11/13 Page 1 of 3 PageID #: 751

/s/ Jacek Pruski JACEK PRUSKI California Bar No. 277211 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, D.C. 20530 Tel: (202) 616-2035 Fax: (202) 616-8470 jacek.pruski@usdoj.gov Attorneys for Defendants
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CERTIFICATE OF SERVICE I hereby certify that on December 11, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Jacek Pruski JACEK PRUSKI
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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

THE CATHOLIC DIOCESE OF NASHVILLE, et al.
Plaintiffs, v. KATHLEEN SEBELIUS, et al.,
Defendants.

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Case No. 3:13-CV-01303

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DEFENDANTS’ STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Civil Rule 56.01, defendants hereby submit the following statement of facts as to which defendants contend there is no genuine issue in connection with their motion for summary judgment under Rule 56(b) of the Federal Rules of Civil Procedure:
1. Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111148, 124 Stat. 119 (2010), due largely to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”), AR at 317-18, 407.
Response:

2. Section 1001 of the ACA requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).
Response:
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3. Because there were no existing HRSA guidelines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) tasked the Institute of Medicine (IOM) with developing recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300.
Response:
4. After conducting an extensive science-based review, IOM recommended that HRSA guidelines include, among other things, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10-12, AR at 308-10.
Response:
5. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105, AR at 403.
Response:
6. Coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01 (Tab 5).
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Response:
7. On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, encompassing all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider, subject to an exemption relating to certain religious employers authorized by regulations issued that same day (the “2011 amended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84.
Response:
8. To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets
of the organization; (3) the organization serves primarily persons who share the religious tenets of
the organization; and (4) the organization is a nonprofit organization as described in section
6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220. Response:
9. Group health plans established or maintained by religious employers, and associated coverage, are exempt from any requirement to cover contraceptive services consistent
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with HRSA’s guidelines. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84 (Tab 7); 45 C.F.R. § 147.131(a).
Response:
10. In February 2012, t he government adopted in final regulations the definition of “religious employer” contained in the 2011 amended interim final regulations while also creating a temporary enforcement safe harbor for non-grandfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8 726-27 (Feb. 15, 2012), AR at 213-14.
Response:
11. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, A R at 215 (Tab 10).
Response:
12. The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,870, A R at 1-31; see also 77 Fed. Reg. 16,501 ( Mar. 21, 2012) (Advance Notice of Proposed Rulemaking (ANPRM)), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.
Response:
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13. Under the 2013 f inal rules, a “religious employer” is “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended,” which refers to churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a) (Tab 9).
Response:
14. The 2013 final rules establish accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations” (and group health insurance coverage provided in connection with such plans). Id. at 39,875-80, AR at 7-12 (Tab 12); 45 C.F.R. § 147.131(b) (Tab 9).
Response:
15. An “eligible organization” is an organization that satisfies the following criteria:\ (1) The organization opposes providing coverage for some or all of any
contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the Secretary, that it s atisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b) (Tab 9); see also 78 Fed. Reg. at 39,874-75, AR at 6-7 (Tab 12). Response:
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16. Under the 2013 f inal rules, an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 F ed. Reg. at 39,874, AR at 6 (Tab 12).
Response:
17. To be relieved of any such obligations, the 2013 final rules require only that an eligible organization complete a self-certification form stating that it is an eligible organization and provide a copy of that self-certification to its issuer or third party administrator (TPA). Id. at 39,878-79, AR at 10-11 (Tab 12).
Response:
18. Its participants and beneficiaries, however, will still benefit from separate payments for contraceptive services made by the issuer or TPA, without cost sharing or other charge. Id. at 39,874, AR at 6 (Tab 12).
Response:
19. In the case of an organization with an insured group health plan—such as all of the plaintiffs here—the organization’s health insurance issuer, upon receipt of the selfcertification, must provide separate payments to plan participants and beneficiaries for contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,875-77, 39,881, AR at 7-9, 13.
Response:
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20. In the case of an organization with a self-insured group health plan, the organization’s TPA, upon r eceipt of the self-certification, will, among other things, provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan without cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12 (Tab 12).
Response:
21. Any costs incurred by the TPA will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12 (Tab 12).
Response:
22. The government “propos[ed] to make the accommodation or the religious employer exemption available on an employer-by-employer basis” in the NPRM. 78 Fed. Reg. 8456, 8467 (Feb. 6, 2013), AR at 176 (Tab 12).
Response:
23. The 2013 f inal rules generally apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4 (Tab 12), except the amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3 (Tab 12).
Response:
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24. The primary predicted benefit of the preventive services coverage regulations is that “individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215 (Tab 10); 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19 (Tab 12).
Response:
25. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increase access to and utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233 (Tab 24); see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significant barrier to access to contraception.” (citation omitted)), AR at 5 (Tab 12).
Response:
26. Although a majority of employers cover FDA-approved contraceptives, see IOM Rep. at 109, AR at 407 (Tab 1), many women forgo preventive services because of cost-sharing imposed by their health plans, see id. at 19-20, 109, AR at 317-18, 407 (Tab 1).
Response:
27. Unintended pregnancies have proven in many cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4 (Tab 12).
Response:
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28. Unintended pregnancy may delay “entry into prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02 (Tabs 1, 5).
Response:
29. Contraceptive coverage further helps to avoid “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103, AR at 401 (Tab 5); see also 78 Fed. Reg. at 39,872, AR at 4 (Tab 12).
Response:
30. “Contraceptives also have medical benefits for women who are contraindicated for pregnancy, and there are demonstrative preventive health benefits from contraceptives relating to conditions other than pregnancy (for example, prevention of certain cancers, menstrual disorders, and acne).” 78 Fed. Reg. at 39,872, AR at 4 (Tab 12); see also IOM Rep. at 103-04, AR at 401-02 (Tab 5).
Response:
31. “[W]omen have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) (statement of Sen. Feinstein); 78 Fed. Reg. at 39,887, AR at 19 (Tab 12); IOM REP. at 19, AR at 317 (Tab 1).
Response:
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32. These costs result in women often forgoing preventive care and place women in the workforce at a disadvantage compared to their male coworkers. See, e.g., 155 C ong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) (statement of Sen. Murray); 78 Fed. Reg. at 39,887, AR at 19 (Tab 12); IOM REP. at 20, AR at 318 (Tab 1).
Response:
33. The grandfathering of certain health plans with respect to certain provisions of the ACA is not specifically limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140.
Response:
34. The effect of grandfathering is not really a permanent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preventive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at 19 (Tab 12).
Response:
35. A majority of group health plans will have lost their grandfather status by the end of 2013. See 75 Fed. Reg. 34,538, 34,552 ( June 17, 2010); see also Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190, AR at 663-64, 846.
Response:
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36. 26 U.S.C. § 4980H(c)(2) does not exempt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a) (Tab 2); 78 Fed. Reg. at 39,887 n.49, AR at 19 (Tab 12).
Response:
37. Instead, it e xcludes employers with fewer than fifty full-time equivalent employees from the employer responsibility provision, meaning that, starting in 2015, s uch employers are not subject to the possibility of assessable payments if they do not provide health coverage to their full-time employees and their dependents. See 26 U.S.C. § 4980H(c)(2).
Response:
38. Small businesses that do of fer non-grandfathered health coverage to their employees are required to provide coverage for recommended preventive services, including contraceptive services, without cost-sharing. 78 Fed. Reg. at 39,887 n.49, AR at 19 (Tab 12).
Response:
39. The only exemption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a) (Tab 9).
Response:
40. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on r eligious grounds are more likely than other employers to employ people of the
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same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, AR at 6 (Tab 12).
Response:
41. Congress did not adopt a single (government) payer system financed through taxes and instead opted to build on the existing system of employment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010).
Response:
42. Defendants are constrained by statute from adopting the alternative administrative schemes proposed by plaintiffs. See 78 Fed. Reg. at 39,888, AR at 20 (Tab 12).
Response:
43. Plaintiffs’ proposed alternatives are not feasible because they would impose considerable new costs and other burdens on the government and would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20 (Tab 12).
Response:
44. Nor would the proposed alternatives be equally effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20 (Tab 12).
Response:
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45. Plaintiffs’ alternatives would require establishing entirely new government programs and infrastructures or fundamentally altering an existing one, and would require women to take burdensome steps to find out about the availability of and sign up f or a new benefit, thereby ensuring that fewer women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20 (Tab 12).
Response:
46. “Nothing in the[] final regulations prohibits an eligible organization from expressing its opposition to the use of contraception.” 78 F ed. Reg. at 39,880 n.41, A R at 12 (Tab 12).
Response:
47. The Women’s Health Amendment, which contained the requirement to provide coverage for recommended preventive services for women without cost-sharing, was intended to fill significant gaps relating to women’s health that existed in the other preventive care guidelines identified in the Affordable Care Act. See 155 Cong. Rec. S12021-02, S12025 (daily ed. Dec. 1, 2009) (statement of Sen. Boxer); 155 Cong. Rec. S12265-02, S12271 (daily ed. Dec. 3, 2009) (statement of Sen. Franken).
Response:
48. The Weldon Amendment denies funds made available in the Consolidated Appropriations Act of 2012 to any federal, state, or local agency, program, or government that “subjects any institutional or individual health care entity to discrimination on the basis that the
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health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Pub. L. No. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011).
Response:
49. “Abortifacient drugs are not included” in the preventive services covered by the regulations. HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited Dec. 11, 2013); see also IOM REP. at 22 (recognizing that abortion services are outside the scope of recommendations), AR at 320 (Tab 1).
Response:
50. The list of FDA-approved contraceptives includes emergency contraceptives such as Plan B. See IOM REP. at 105, AR at 403 (Tab 5).
Response:
51. The basis for the inclusion of such drugs among safe and effective means of contraception dates back to 1997, when the FDA first explained why Plan B and similar drugs act as contraceptives rather than abortifacients. See Prescription Drug Products; Certain Combined Oral Contraceptives for Use as Postcoital Emergency Contraception, 62 F ed. Reg. 8610, 8611 (Feb. 25, 1997); 45 C.F.R. § 46.202(f).
Response:
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52. In light of this conclusion by the FDA, HHS informed Title X grantees, which are required to offer a range of acceptable and effective family planning methods—and, except under limited circumstances, may not offer abortion—that they “should consider the availability of emergency contraception the same as any other method which has been established as safe and effective.” Office of Population Affairs, Memorandum (Apr. 23, 1997) , http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Dec. 11, 2013); see also 42 U.S.C. §§ 300, 300a-6.
Response:
53. Representative Weldon, the sponsor of the Weldon Amendment, did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of contraceptive services has never been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as the morning-after pill. . . . [U]nder the current FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”).
Response:

Dated: December 11, 2013

Respectfully Submitted,

STUART F. DELERY Assistant Attorney General

KATHLEEN R. HARTNETT Deputy Assistant Attorney General

DAVID RIVERA Acting United States Attorney

JENNIFER RICKETTS Director, Federal Programs Branch
15

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SHEILA M. LIEBER Deputy Director /s/ Jacek Pruski JACEK PRUSKI California Bar No. 277211 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, D.C. 20530 Tel: (202) 616-2035 Fax: (202) 616-8470 jacek.pruski@usdoj.gov Attorneys for Defendants
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

THE CATHOLIC DIOCESE OF NASHVILLE, et al.
Plaintiffs, v. KATHLEEN SEBELIUS, et al.,
Defendants.

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Case No. 3:13-CV-01303

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DEFENDANTS’ COMBINED MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION, AND IN SUPPORT OF MOTION TO
DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

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INTRODUCTION Plaintiffs—the Catholic Diocese of Na shville (“Diocese”); Catholic Charities of Tennessee (“Catholic Charities”); Camp Mar ymount; Mary, Queen of Angels (“MQA”); St. Mary Villa; Dominican Sisters of St. Ce cilia Congregation (“Congregation”); and Aquinas College—challenge regulations related to the provision of contrac eptive coverage that do not burden their reli gious exercise and, i ndeed, require them onl y to take the de minimis step that they would have to take in the absence of such regulations: convey to their insurers that the y object to providing contraceptive services. The Diocese and C ongregation are ent irely exempt from the contraceptive coverage requirement. And the remaining plaintiffs are eligible for a regulatory accommodation that relieves them from having to contract, arrange, pay or refer for contraceptive coverage, and that in no wa y prevents them from cont inuing to voice their disapproval of contra ception or from encouraging their employees to refrain from using contraception. To avail themselves of this significant accommodation, plaintiffs need do nothing more than provide their insurers with a copy of a self-certification that they are eligible for the accommodation and do not wish to provide con traception. Such a mini mal requirement is no “burden” at all, let alone one sufficient to invalidate the regulations. Specifically, plaintiffs ask this Court to preliminarily enjoin regulations that are intended to accommodate religious exercise while helping to ensure t hat women have ac cess to health coverage, without cost-sharing, for preventive services that medical experts deem necessary for women’s health and well-being. Subject to an exemption for houses of worship and their integrated auxiliaries, and accommodations for c ertain other non-p rofit religious organizations, as discussed below, the regulations that plaintiffs challenge require certain group health plans and health insurance issuers to provid e coverage, without cost-sha ring (such as a copayment, coinsurance, or a dedu ctible), for, amon g other things, all F ood and Drug Administration (FDA)-approved contraceptive methods, steriliza tion procedures, and p atient education an d counseling for women with reproductive capacity, as prescribed by a health care provider.
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When the contraceptive -coverage requirement was first established, in August 2011, certain non-profit religious organizations—including some of the plaintiffs here—objected on religious grounds to h aving to provide contraceptive coverage in the group health plans the y offer to emplo yees. Although, in the g overnment’s view, these org anizations were mistaken to claim that an accommodation was required under the First Amendment or the Religious Freedom Restoration Act (R FRA), the de fendant Departments decided to accommodate the con cerns expressed by these organizations. First, they established an exemption for the group health plans of houses of worship an d their integrated auxiliaries (and any associated group health insurance coverage). Two of the plaintiffs—the Diocese and Congregation—qualify for this exemption. In addition, defendants established accommodations for the group health plans of eligible non-profit religious organizations, like the remaining plaintiffs here (and any associated group health insurance coverage), that relieve them of respons ibility to contract, arr ange, pay, or r efer for contraceptive coverage or services, but that also ensure that the women who participate in these plans are not denied a ccess to contraceptive coverage without cost-sharing. To be eligible for an accommodation, the organization merely needs to certify that it meets the eligibility criteria, i.e., that it is a non-profit organization that holds itself out as religious and has a religious objection to providing coverage for some or all contraceptives. Once the organization certifies that it meets these criteria, it need not contract, arrange, pay, or refer for contraceptive coverage or services. For those organizations with a third-party insured group health plan—like all plaintiffs here—the third-party insurer takes on the r esponsibility to provide c ontraceptive coverage to the organization’s employees and cov ered dependents. The objecting employer does not bea r the cost (if any) of providing contraceptive coverage; nor does it administer such coverage; nor does it contract or otherwise arrange for such coverage; nor does it refer for such coverage.
Remarkably, plaintiffs now declare that these accommodations themselves violate their rights under RFRA and the First Amendment. They contend that the mere act of certifying that they are eligible for an accommodation is a substantial burden on t heir religious exercise because, once they make the c ertification, their employees will be able to obtain contra ceptive
2
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coverage through other parties. At bottom, plai ntiffs’ position seems to be that an y asserted burden, no matter how de minimis, amounts to a substantial burden under RFRA. That is not the law. Congress amended the initial version of RFRA to add th e word “substantially,” and thus made clear that “ any burden” would not suffi ce. Although these regulations require virtuall y nothing of them, plaintiffs cl aim that the regulations run afoul of their religious beliefs prohibiting them from providing or facilitating health coverage for certain contraceptive services, and that the challenged regulations violate RFRA, the First Amendment, and the Administrative Procedure Act (APA). Because all of plaintiffs’ claims fail, this case should be dismissed in its entirety; alternatively, the Court should enter summary judgment in favor of the government.
With respect to plaintiffs’ RFRA claim, plaintiffs cannot establish a substantial burden on their religious exercise—as they must—because the regulations do no t require plaintiffs to change their behavior in any significant way. Plaintiffs are not required to contract, arrange, pay, or refer for contraceptive coverage. To the contrary, plaintiffs are free to continue to refuse to do so, to voice their disappr oval of contraception, and to encourage their employees to refrain from using contraceptive services. Plaintiffs contend that the need to self-certify in order to obtain the accommodation is itself a burd en on t heir religious exercise. But the challenged regulations require plaintiffs only to self-certify that they have a religious objection to providing contraceptive coverage and otherwise meet the cr iteria for an elig ible organization, and to share that self-certification with their insurers. In other wor ds, plaintiffs are required only to inf orm their insurers that the y object to providing contraceptive services, which they have done or would have to do volunt arily anyway even absent these regulations in order to ensure that that they are not responsible for contractin g, arranging, paying, or refe rring for such cove rage. Plaintiffs can hardly claim that it is a violation of RFRA to r equire them to do a lmost exactly what they would do in the ordinary course, absent the regulations.
Further, plaintiffs’ challenge rests largely on the theory that even the extremely attenuated connection between them and the ind ependent provision by insurers of payments for contraceptive services to which the y object on religious grounds—but for which plaintiffs pa y
3
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nothing—amounts to a substantial burden on their religious exercise. This cannot be. Regardless of how plaintiffs fram e their relig ious beliefs, courts must independently consider whether a given law imposes a substan tial burden on thos e beliefs. See Autocam Corp. v. Sebelius , No. 1:12-CV-1096, 2012 WL 6845677, at *6 (W .D. Mich. Dec. 24, 2012), aff’d, 730 F.3d 618 (6th Cir. 2013). The regulations impose, at most, on ly the most de minimis burden on plaintiffs ’ religious exercise, too slight and attenuated to be “substantial” under RFRA, and little differ ent from plaintiffs’ payment of salaries to their employees, which those employees can also use to buy contraceptive services if they so choose.
Moreover, even if the challenged regulations were deemed to impose a substantial burden on plaintiffs’ religious exercise, the regulations would not violate RFRA becaus e they are narrowly tailored to serve two compelling interests: improving the health of women and newborn children, and equalizing the provision of preventive care for women and men so that women can participate in the workforce, and society more generally, on an equal playing field with men.
Plaintiffs’ First Amendment claims are equally meritless. Indeed, nearly every court to consider similar First Amendment challenges to the prior version of the regulations rejected the claims, and their analysis applies here. Plaintiffs’ APA claims also fail. The regulations are not contrary to law and were promulgated in accordance with the APA’s procedural requirements.
Thus, and as explained below, the Court should deny plaintiffs’ preliminary injunction motion and grant defendants’ motion to dismiss or, in the alternative, for summary judgment.
BACKGROUND Before the Patient Prote ction and A ffordable Care Act (“ACA”), Pub. L. No. 111-148 , 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or dela y the onset of dise ase, lead productive lives, a nd reduce health care costs. Due lar gely to co st, Americans used p reventive services at about half the re commended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-
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20, 109 (2011) (“ IOM REP.”), AR at 317-18, 40 7.1 Section 1001 of the ACA—which includes the preventive services coverage provision relevant here—seeks to cur e this problem b y making preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health covera ge to provide coverage for certain pr eventive services without costsharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).
Because there were no existing HRSA guidelines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) requested that the Institute of Medicine (IOM) develop recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300.2 After conducting an extensive science-based review, IOM recommended that HRSA guidelines include, among other things, well-woman visi ts; breastfeeding support; domestic violence screening; and, as relevant here, “the full range of [ FDA]-approved contraceptive methods, sterilization procedures, and pa tient education and counseling for women with reproductive capacity.” Id. at 10-12, AR at 308-10. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives, and intrauterine devices (“IUDs”). See id. at 105, AR at 403. IOM determined that coverage, without cost-sharing , for these services is necessary to increase access to such services, and thereby reduce unintended
1 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR), on file with the Clerk’s Office and the Court. 2 IOM, which was established by the National Academy of Sciences in 1970, i s funded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv, AR at 289.
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pregnancies (and the neg ative health outcomes that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.3
On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exemption relating to certain religious employers authorized by regulations issued that same day (the “2011 amended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84.4 Group health plans established or maintained by these religious employers (and associated group health insurance coverage) are ex empt from any requirement to c over contraceptive services consistent with HRSA’s guidelines. See id.; 45 C.F.R. § 147.131(a).
In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 amend ed interim final r egulations while also cr eating a temporary enforcement safe ha rbor for non- grandfathered group health plans sponsored b y certain non-profit organizations with religious objections to contraceptive coverage (and an y associated group health insurance coverage). See 77 Fed. Reg. 8725, 8 726-27 (Feb. 15, 2012), AR at 213-14. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215 . The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,870 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar.
3 At least twenty-eight states have laws requiring health insurance policies that cover prescription drugs to also provide coverage for FDA-approved contraceptives. See Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives (June 2013), AR at 1023-26. 4 To qualify for the religious employer exemption contained in the 2011 a mended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and (4) the organization is a nonprofit organization as described in section 6033(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
6
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21, 2012) (Advanc e Notice of Proposed Rulema king (ANPRM)), AR at 186-93; 78 F ed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.
The 2013 final rules re present a si gnificant accommodation by the government of the religious objections of certain non-profit religious organizations while promoting two important policy goals. First, the regulations provide women who work for non-profit relig ious organizations with access to contraceptive coverage without cost sharin g, thereby advancing the compelling government interests in safeguarding public health and ensur ing that women h ave equal access to health care. Second, the regulations advance these interests in a narrowly tailored fashion that does not r equire non-profit religious organizations with relig ious objections to providing contraceptive coverage to contract, pay, arrange, or refer for that coverage.
The 2013 final rules simplify and clarify the religious employer exemption by eliminating the first three criteria and clarifying the fourth criterion. See supra note 5. Under the 2013 final rules, a “reli gious employer” is “an or ganization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended,” w hich refers to churches, t heir integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a). The changes made to the definition of religious employer in the 2013 final rul es are intended to ensure “that an otherwise exempt plan is not disqualified because the employer’s purposes extend beyond the inculc ation of religious values or because the emplo yer hires or serves people of different religious faiths.” 78 Fed. Reg. at 39,874, AR at 6.
The 2013 final rules als o establish accommoda tions with respect to the contraceptive coverage requirement for g roup health plans established or maintained by “eligible organizations” (and group health insurance coverage provided in connection with such plans). Id. at 39,875-81, AR at 7- 13; 45 C.F .R. § 147.131(b), (f) (student he alth plans). An “ eligible organization” is an organization that satisfies the following criteria:
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(1) The organization opposes providing coverage for some or all of any contraceptive services required to be c overed under § 147.130(a)(1)(iv) on account of r eligious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in para graphs (b)(1) through (3) of this section, and makes such sel f-certification available for examination upon request b y the first day of t he first plan year to which the accommodation in paragraph (c) of this section applies.
45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. Under the 2013 final rules, an e ligible organization is not required “to contract, arr ange,
pay, or refer for contraceptive coverage” to which it has relig ious objections. 78 F ed. Reg. at 39,874, AR at 6. To be relieved of any such obligations, the rules require only that an eligible organization complete a self-certification form stating that it is an eligible organization and provide a copy of that self-certification to its iss uer or TPA. Id. at 39,878-79, AR at 10-11. Its participants and beneficiaries, however, will still be nefit from separate payments for contraceptive services without cost sharing or other charge. Id. at 39,874, AR at 6. In the case of an organization with an insured group health plan—such as some o f the plaintiffs h ere—the organization’s health insurance issue r, upon re ceipt of the self- certification, must provide separate payments to plan participants and ben eficiaries for contraceptive services without cost sharing, premium, fee, or other charge to pla n participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,875-77, 39,881, AR at 7-9, 13.5
The 2013 final rules g enerally apply to group he alth plans and health ins urance issuers for plan years beginning on or after J anuary 1, 2014, see id. at 39,872, AR at 4, e xcept that the
5 Although it is not relevant to these plaintiffs, in the case of an organization with a self-insured group health plan, the organization’s third party administrator (TPA), upon receipt of the self-certification, must provide or arrange separate payments for contraceptive services for participants and beneficiaries in t he plan; again, without costsharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See 78 Fed. Reg. at 39,879-80, AR at 11-12. Any costs incurred by the TPA will be rei mbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
8
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amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
STANDARD OF REVIEW Defendants move to dismiss the Complaint in its entirety for failure to state a claim upon which relief may be granted pursuant to F ederal Rule of C ivil Procedure 12(b)(6). Unde r this Rule, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to le gal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Defendants also move to dismiss one claim, infra Section I.D, under F ederal Rule of Civil Procedure 12 (b)(1) for lack of subject matter jurisdiction. Th e party invoking federal jurisdiction bears the burden of establishing its existence, and the Court must determine whether it has jurisdiction before addressing the merits of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 104 (1998). To the extent that the Court must c onsider the administrative record in addition to the face of the Complaint, defendants move, in the alternative, for sum mary judgment pursuant to Federal Rule of Civil Procedure 56. A party is entitled to summary judgment where the administrative record demonstrates “that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This memorandum also responds to plain tiffs’ motion for a pr eliminary injunction. A preliminary injunction is an “ex traordinary remedy that may only be awarded upon a cl ear showing that the plaintiff is e ntitled to such relief.” Winter v. Natural Re s. Def. Council, Inc. , 555 U.S. 7, 22 (2008). A plaintiff “must establish that he is likel y to succeed on the merits, tha t he is like ly to su ffer irreparable harm in the a bsence of preliminary relief, that the balance of equities tips in his f avor, and that an injunction is in the public interest.” Id. at 20; Obama for
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Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012).6
ARGUMENT
I. PLAINTIFFS’ CLAIMS FAIL
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit
1. The regulations do not substantially burden plaintiffs’ exercise of religion
Under RFRA, Pub. L. No. 103-141, 107 Stat . 1488 (1993) (codified at 42 U.S.C.
§ 2000bb-1 et seq.), the federal government “shall not substantially burden a person’s exercise of
religion” unless that burden is the least restrictive means to further a compelling governmental
interest. 42 U.S.C. 2000bb-1. Importantly, “only substantial burdens on the exercise of religion
trigger the compelling interest requirement.” Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir.
2001) (emphasis added). “A substantial burden exists when government action puts ‘substantial
pressure on an adherent to modif y his behavior and to violate his beliefs.’” Kaemmerling v.
Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec.
Div., 450 U.S. 707, 718 (1981)). “An inconsequential or de minimis burden on religious practice
does not rise to this leve l, nor does a burden on activit y unimportant to the adher ent’s religious
scheme.” Id. at 678; see also Braunfeld v. Brown , 366 U.S. 599, 606 (1961); Combs v. Homer-
Center Sch. Dist., 540 F.3d 231, 262 (3d Cir. 2008) (Scirica, C.J., concurring).
For two reasons, plaintiffs c annot show that the challenged regulations substantially burden their religious exercise.7 First, because the regulations require virtually nothing of
6 Plaintiffs incorrectly suggest that they need not show a likelihood of success on the merits if the Court determines that the remaining factors strongly favor plaintiffs. See Pls.’ Mem. of Law in Supp. of Pls.’ Mot. for Prelim. Inj. at 910, ECF No . 26. This is i n significant tension with the Supreme Court’s requirement that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits.” Winter, 555 U.S. at 20 (emphasis added); Obama For America, 697 F.3d at 428. Further, where a plaintiff’s alleged harm is a deprivation of RFRA or First Amendment rights, as h ere, see Pls.’ Mem. at 42, the merits and irreparable harm prongs merge. See Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., No. 11-1538, 2012 WL 5258999, at *2 (6th Cir. Oct. 25, 2012). In this respect, plaintiffs cannot show irreparable harm without also showing a lik elihood of success on the merits. See id.; McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012) (“Because [plaintiff] does not have a likelihood of success on the merits . . . hi s argument that he is irreparably harmed by the deprivation of his First Amendment rights also fails.”); Autocam, 730 F.3d at 624 (“Because RFRA claims are, as a procedural matter, very similar to First Amendment claims, ‘the likelihood of success on the merits often will be the determinative factor’ in analyzing whether the district court should have issued the preliminary injunction.”).
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plaintiffs, and certainly do not require plaintiffs to modify their behavior in any meaningful way,
the regulations cannot be deemed to impose any more than a de minimis burden on plaintiffs—let
alone a substantial one. Second, even if this Court finds that the regulations impose some burden
on plaintiffs’ religious exercise, any such burden would be far too attenuated to be substantial.
a. The regulations impose no more than a de minimis burden on plaintiffs’ exercise of religion b ecause the r egulations require virtually nothing of plaintiffs
To put this case in its simplest terms, plaintiffs challenge regulations that require them to
do next to nothing, except what the y would have to do even i n the absence of t he regulations.
The Diocese and Congregation are entirely exempt from the contraceptive coverage
requirement.8 And the remaining plaintiffs, as eligible organizations, are not required to contract,
arrange, pay, or refer for contraceptive coverage. To t he contrary, these plaintiffs are free to
continue to re fuse to do so, to voice their disapproval of contraception, and to encour age their
employees to refrain from using contraceptive services. These plaintiffs need only fulfill the self-
certification requirement and provide the completed self-certification to the ir issuers. Plaintiffs
7 Plaintiffs rely heavily on two out-of-circuit cases—Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), and Korte v. Sebelius, __ F .3d __, 2 013 WL 5960692 ( 7th Cir. Nov. 8, 2013)—both of which involve for-profit companies and which conflict with the Sixth Circuit’s Autocam decision. See, e.g., Pls.’ Mem. at 12-13, 16, 21-24. Those cases are inapposite because for-profit corporations—unlike plaintiffs—do not qualify for the religious employer exemption or the accommodations for eligible organizations. See 78 Fed. Reg. at 39,875, AR at 7. T hus, for example, the regulations require for-profit companies to contract or otherwise arrange and pay for contraceptive coverage for the participants and beneficiaries of their group health plan. Plaintiffs, by contrast, are in a markedly different position than the Hobby Lobby and Korte plaintiffs. As previously explained, in order t o be relieved of the obligation to contract or otherwise arrange and pay for contraceptive coverage, plaintiffs must take the simple step of completing the self-certification—which reiterates what they have already stated repeatedly in this case; that they are non-profit religious with religious objections to providing contraceptive coverage—and provide a copy of the self-certification to their issuers. Similarly, the district court in Zubik v. Sebelius, Nos. 13cv1459, 13cv0303, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013), was wrong to rely on cases involving claims of for-profit employers. The Zubik court’s conclusion that the regulations at issue in that case (and in this one) impose a substantial burden on the plaintiffs in that case—which was rendered without citation to any legal authority, id.at *24-27—is unpersuasive.
8 Plaintiffs repeatedly suggest, without support, that the religious employer exemption adopted in the 2013 f inal rules is narrower than that contemplated in the ANPRM. See, e.g., Compl. ¶ 15. This contention is not only false, 78 Fed. Reg. at 39,886, AR at 18, but irrelevant: Even if the scope of the exemption in the final rules were different from what was set forth in the ANPRM—which it is not—plaintiffs have not indicated why that would be improper. In fact, it is the very purpose of the rulemaking process to subject a proposal to public comment and potentially alter the proposal accordingly. See, e.g., Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 951 (D.C. Cir. 2004).
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need not pay for contraceptive services to their employees. Instead, third parties—plaintiffs’

issuers—provide payments for cont raceptive services, at no cost to plaintiffs. In short, with

respect to contraceptive coverage, the non-exempt plaintiffs need not do anything more than they

did prior to the promulg ation of the challen ged regulations—that is, to in form their issuers that

they object to providing contraceptive coverage in order to ensu re that they are not responsible

for contracting, arranging, paying, or referring for such cover age. Thus, the regulations do not

require plaintiffs “to modif y [their] religious behavior in an y way.” Kaemmerling, 553 F .3d at

679. The Court’s inquir y should end here. A la w cannot be a substantia l burden on relig ious

exercise when “it invol ves no a ction or fo rbearance on [ plaintiffs’] part, nor . . . otherwis e

interfere[s] with any religious act in which [plaintiffs] engage[].” Id.; see also Civil Liberties for

Urban Believers v. City of Chi., 342 F .3d 752, 7 61 (7th Cir. 2003) (hold ing, in the context of

RLUIPA, that “a substantial burden on religious exercise is one that necessarily bears direct,

primary, and fundamen tal responsibility for rendering religious exercise . . . effectivel y

impracticable”).

Because the regulations place no bu rden at all on plaintiffs, the y plainly place no

cognizable burden on their religious exercise. Plaintiffs’ contrary argument rests on an

unprecedented and sweeping theory of what it means for religious exercise to be bu rdened. Not

only do plaintiffs want to be free from cont

racting, arranging, paying, or re ferring for

contraceptive services f or their employees—which, under thes e regulations, they are—but

plaintiffs would also prevent anyone else from providing such coverage to their employees, who

might not subscribe to plaintiffs’ religious beliefs. That this is the de facto impact of plaintiffs’

stated objections is made clear by their suggestion that RFRA is violated whenever they are a

“but-for cause” of the provision of th e objectionable products and servi ces. See, e.g., Compl.

¶ 10, ECF No. 1. This theory would mean, for example, that even the government would not

realistically be abl e to provide contrac eptive coverage to plaintiffs’ employees (as plaintiffs

elsewhere suggest), because it would be “trigger[ed],” id.; Pls.’ Mem. at 8, by plaintiffs’ refusal

to provide such covera ge themselves. But RFRA is a shield, not a sword, see O’Brien, 894 F .

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Supp. 2d at 1158-60, and accordingly it does not prevent the g overnment from providing alternative means of achieving important statutory objectives once it has provided a reli gious accommodation. Cf. Bowen v. Roy, 476 U.S. 693, 699 (1986) (“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.”).
Plaintiffs’ RFRA challenge is simila r to the claim that the D.C. Cir cuit rejected in Kaemmerling. There, a federal prisoner objected to the FBI’s collection of his DNA profile. 553 F.3d at 678. In concluding that this collectio n did not substantiall y burden the p risoner’s religious exercise, the court concluded that “[t]he extraction and storage of DNA information are entirely activities of the FBI, in whic h Kaemmerling plays no role and which occur after the BOP has taken his fluid or tissue sa mple (to which he does not object).” Id. at 679. In the court’s view, “[a]lthough the government’s activities with his fluid or tissue samp le after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be said to hamper his relig ious exercise because they do not pressure [him] to modify his behavior and to violate his beliefs.” Id. (internal citation and quotation marks omitted). The same is tr ue here, where the provision of contraceptive services is “entirely [an] activit[y] of [a third party], in which [plaintiffs] play[] no role.” Id. As in Kaemmerling, “[a]lthough the [third party]’s activities . . . ma y offend [plaintiffs’] religious beliefs, they cannot be said to hamper [their] religious exercise.” Id.
Perhaps understanding the tenuous ground on which their RFRA claim rests, given that the regulations do not require them to contract, arrange, pay, or refer for contraceptive services, plaintiffs attempt to circ umvent this problem by advancing the novel theory that the regulations require them to somehow “facilita te access” to contraceptive c overage, and that it is th is “facilitation” that violates plaintiffs’ religious beliefs. See, e.g., Compl. ¶¶ 10, 232, 242; Pls.’ Mem at 13. B ut the challenged regulations do not require the Diocese and Congregation to do anything, and require the remaining plaintiffs only to self-certify that they object to providing coverage for contraceptive services and that they otherwise meet the criteria for an el igible organization, and to shar e that self-certification with their issuers. In other words, plaintiffs are
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required to inform their issuers that they object to providing contraceptive coverage, which they have done or would h ave to do voluntarily anyway even absent these regulations in orde r to ensure that the y are not responsible for cont racting, arranging, paying, or r eferring for contraceptive coverage. The sole differ ence is th at they must inf orm their issuers that their objection is for rel igious reasons—a st atement they have already made repeatedly in this litigation and elsewhere.
Furthermore, any burden imposed by the purely administrative self-certification requirement—which should take plaintiffs a matter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA. The Sixth Circuit and other courts have made clear that the substantial burden hurdl e is a hi gh one. Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App’x 729, 734 (6th Cir. 2007); see also Kaemmerling, 553 F.3d at 678 (“An inconsequential or de minimis burden on relig ious practice does not rise to this le vel [of a substantial burden].”); Washington v. Klem, 497 F.3d 272, 279-81 (3d Cir. 2007); McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir. 2004); Civil Liberties for Urban Believers, 342 F.3d at 761. Indeed, if this i s not a de minimis burden, it is hard to see wh at would be. In fact, plaintiffs’ alternative proposals only confirm that the alleged “burden” of self-certification is de minimis. They contend that, as an al ternative to the accommodations developed b y the Departments, the government should somehow expand or create other public programs so as to provide contraceptive coverage to the women wh o participate in plaintiffs’ group he alth plans. RFRA plainly does not require defendants to expand or create government programs, particularly where, as h ere, there is no statutory authority to do so. See infra Section I.A.2.b. But, in any event, plaintiffs’ o wn proposals would entail the same putative “burden” as the existing accommodations, or an even greater burden: One way or another, plaintiffs would have to certify their eligibility for an accommodation, and the result would be that the women who participate in their plan would get contraceptive coverage through another source such as Medi caid. The government would of course, as it do es with Medicaid, have to ve rify employment and/or dependent beneficiary status with the eligible organization. The current accommodations are thus
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likely to require less of plaintiffs’ involvement than would a government program to sep arately provide contraceptive coverage for their employees and dependents.
Contrary to plaintiffs’ suggestion, the mere fact that plaintiffs claim that the selfcertification requirement imposes a substantial burden on their r eligious exercise by requiring them to “facilitate” access to contraception does not make it so. See Conestoga, 917 F. Supp. 2d at 413 (“[ W]e reject the notion . . . that a plaintif f shows a burden to be substantial simpl y by claiming that it is.” ). Under RFRA, plaintiffs are entitled to the ir sincere religious beliefs, but they are not e ntitled to de cide what does and does not impose a substantial burden on suc h beliefs. Although “[c]ourts are not arbiters of scriptural interpretation,” Thomas, 450 U.S. at 716, “RFRA still requires the court to determine wh ether the burd en a law im poses on a plaintiff’s stated religious belief is ‘substantial,’” Conestoga, 917 F. Supp. 2d at 413. Plaintiffs would limit the Court’s inquiry to two prongs: first, whether plaintiffs’ religious objections to the regulations are sincere, and second, whether the regulations apply significant pressure to plaintiffs to comply. But plaintiffs ignore a critical third criterion of the “substantial burden” test, which gives meaning to the term “substantial”: whether the challenged regulations actually require plaintiffs to modify their behavior in a significant—or more than de minimis—way. See Living Water Church of God, 258 Fed. App’x at 734-36; see also, e.g., Vision Church v. Vill. of Long Grove, 468 F.3d 975, 9 97 (7th Cir. 2006) (noting , in the R LUIPA context, that “the Supreme Court has found a ‘substantial burden’ to ex ist when the government puts ‘substantial pressure on an adher ent to modify his behavior and to violate his beliefs’” (quoting Hobbie v. Unemployment Appeals Comm’n of Fla. , 480 U.S . 136, 141 (1987))) (emphasis add ed); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348-49 (2d Cir. 2007); Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328, 1353-54 (N.D. Ga. 2012). As plaintiffs themselves appear to recognize, a “law ‘substantially burdens’ an exercise of religion if it c ompels acts undeniably at odds with fundamental tenets of [ one’s] religious beliefs,’” Pls.’ Mem. at 19 (quoting Wisconsin v. Yoder, 406 U.S. 205, 2 18 (1972)) (emphasis added), “or ‘put[ s] substantial pressure on an adherent to modify his beh avior and violate his
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beliefs.’” Id. (quoting Thomas, 450 U.S. at 717-18) (emphasis added). This test does not require
the Court to de lve into the theological merits of a be lief, but inste ad requires the Court to examine the operation of the regulations and their impact on plaintiffs’ religious practice.9
Under plaintiffs’ alternative interpretation of RFRA, courts would pla y virtually no role
in determining whether an alleged burden is “substantial”—as long as a plaintiff’s religious
belief is sincere, that would be the end of the inquiry. Plaintiffs would thus be allowed to evade
RFRA’s threshold by simply asserting that the burden on their religious exercise is “substantial,”
thereby paradoxically reading the term “substantial” out of RFRA. See Autocam, 2012 WL
6845677, at *6 (“The Court does not doubt the si ncerity of Plaintiff Kennedy’s decision to draw
the line he does, but the Court still has a dut y to assess whether the claimed burden—no matter
how sincerely felt—really amounts to a substantial burden on a person’s exercise of religion.”).
“If every plaintiff were permitted to unila terally determine that a law burdened their religious
beliefs, and courts were required to assume that such burden was substantial, simply because the
plaintiff claimed that it was the case, then the standard expressed by Congress under the RFRA
would convert to an ‘any burden’ standard.” Conestoga, 917 F . Supp. 2 d at 413-14; see also Autocam, 2012 WL 6845677, at *7; Mersino, 2013 WL 3546702, at *16. 10 The result would b e
9 In Hobby Lobby, a bare majority of the en banc Tenth Circuit concluded that, in determining whether a burden is substantial, a court’s “only task is to determine whether the claimant's belief is sincere, and if so, whether the government has applied s ubstantial pressure on the claimant to v iolate that belief.” Id. at 1137. The government believes that the majority’s ruling in Hobby Lobby was wrong on this and many other points. However, even if this Court were inclined to agree with the Tenth Circuit, the majority proceeded to rely on Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), which makes clear that in order for a law to impose a substantial burden, it must require some actual change in religious behavior—either forced participation in conduct or forced abstention from conduct. See Hobby Lobby, 723 F.3d at 1138 (citing Abdulhaseeb, 600 F.3d at 1315). The Hobby Lobby substantial burden analysis is also inapposite because for-profit corporations are n ot eligible f or the accommodations. For similar reasons, the Seventh Circuit’s substantial burden analysis in Korte—which followed Hobby Lobby—is unpersuasive. See Korte, 2013 WL 5960692, at *23. 10 RFRA’s legislative history makes clear that Congress did not intend such a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, substantial or otherwise. Congress amended the bill to add the word “substantially,” “to make it clear that the compelling interest standards set forth in the act” apply “only to Government actions [that] place a substantial burden on the exercise of” religious liberty. 139 Cong. Rec. S14350-01, S14352 (daily ed. O ct. 26, 1993) (statement of Sen. Kennedy); see also id. (text of Amendment No. 1082).
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to subject every act of Congress to str ict scrutiny every time any plaintiff could articulate a sincerely held religious objection to compliance with that law.
Finally, plaintiffs seem to suggest that the regulations will actually require them to fund or subsidize access to contraceptive coverage because their issuers will find a way to pass on the costs of such covera ge to plaint iffs. See, e.g., Pls.’ Mem. at 17-18. But the regulations specifically prohibit plaintiffs’ issuers from charging any premium or otherwise passing on any costs to plaintiffs with respect to th e issuers’ payments for contraceptive services. See 78 Fed. Reg. at 39,880, AR at 12. An y suggestion that plai ntiffs’ issuers will vio late the law is purel y speculative, and boils d own to the baseless argument that the regulations impose a substantial burden because a third party might violate those same regulations. This contention has no merit.
In sum, the r egulations do not impose a s ubstantial burden on plaintiffs’ reli gious exercise, and thus Count I should be dismissed or summary judgment granted to defendants.
b. Even if the regulations were found to impos e some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA
Although the re gulations do not require plaintiffs to contract, arran ge, pay, or re fer for contraceptive coverage, plaintiffs’ complaint appears to be that the regulations require plaintiffs to indirectly facilitate conduct on the part of their employees that they find objectionable (i.e., the use of certain contraceptives). But this complaint has no limits. An employer provides numerous benefits, including a salary and other fringe benefits, to its e mployees and by doing so in som e sense facilitates whatever use its employees make of those benefits. Plaintiffs not only seek to be free from the requirement to contract, arrange, pay, or re fer for c ontraceptive coverage themselves—which they are under these regulations—but also seek to prevent an yone else from providing such coverage to their employees. But an employer has no right to control the choices of its employees, who may not share its religious beliefs, and who have a legitimate interest in access to the preventive services coverage made available under the challenged regulations.
Indeed, courts have held that claims raised by for-profit companies challenging the
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contraceptive coverage regulations, which—unlike here—actually require employers to contract, arrange, pay, or ref er for the relevant coverage themselves, are too attenuated to amount to a substantial burden under RFRA. Any burden on plaintiffs, which are elig ible for the reli gious employer exemption or t he accommodations, is a fortiori too attenuated to be substantial. For example, the district court in Conestoga reasoned that the ultimate decision of whether to use contraception “rests not with [ the employer], but with [the] employees” and that “an y burden imposed by the re gulations is too attenuated to be considered substantia l.” 917 F . Supp. 2d at 414-15. The Conestoga court further explained that the indirect nature of any burden imposed by the regulations distinguished them from the statutes challenged in Yoder, Sherbert, Thomas, and Gonzales. See Conestoga, 917 F. Supp. 2d at 415; see also, e.g., Autocam, 2012 WL 6845677, at *6; O’Brien, 894 F. Supp. 2d at 1158-60.11
As these courts con cluded, the preventive se rvices coverage regulations result in only an indirect impact on for-profit companies, which must provide contraceptive coverage themselves. Any burden on plaintiffs and similar elig ible organizations that qualify for the accommodations is even more attenuated. Not onl y are plaintiffs separated from the use of contrac eption by “a series of event s” that must occur befor e the use of cont raceptive services to which plaintiffs object would “come into play,” Conestoga, 917 F. Supp. 2d at 414-15, b ut they are also further insulated by the f act that a third party—plaintiffs’ issuers—and not plaintiffs, will ac tually contract, arrange, pay, and refer for such services, and thus plaintiffs are in no way subsidizing— even indirectly—the use of pr eventive services that they find obje ctionable. Under plaintiffs’ theory, their religious exercise is substantially burdened when one of t heir employees and her health care provider make an in dependent determination that th e use o f certain contraceptive services is appropriate, and such services are paid for exclusively by plaintiffs’ issuers, with none of the cost bein g passed on to plaintiffs, and no administration of the payments by plaintiffs,
11 See also Korte, 2013 WL 5960692, *48-52 (Rovner, J., di ssenting); Eden Foods, 2013 WL 1190001; Annex Medical, 2013 WL 101927, at *4-5.
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solely because plaintiffs self-certified that they have religious objections to providing
contraceptive coverage and so informed their issuers.
But a burden cannot be “substantial” under RFRA when it is attenuated. Cases that find a
substantial burden uniforml y involve a dire ct burden on the plaintiff r ather than a burd en
imposed on another entit y. See, e.g., Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir.
2009); see also Conestoga, 917 F. Supp. 2d at 4 13-14. A plaintiff c annot establish a substantial
burden on his relig ious exercise by invoking this type of trickle-down theor y; to constitute a
substantial burden under RF RA, the burden must be imposed on the plaintiff himself. See Conestoga, 917 F. Supp. 2d at 411, 413; Autocam, 2012 WL 6845677, at *7.12 Here, of course,
there is no such direct burden. In fact, given that any payment for contraceptive services is made
by plaintiffs’ issuers, the regulations have even less impact on plaintiffs’ religious exercise than
plaintiffs’ payment of salaries to the ir employees, which those employees can use t o purchase
contraceptives. See O’Brien, 894 F. Supp. 2d at 1160; Conestoga, 917 F. Supp. 2d at 414; Korte,
2013 WL 5960692 at *54-55 (Rovner, J., dissenting); Autocam, 2012 WL 6845677, at *6.
Plaintiffs remain free t o refuse t o contract, arrange, pay, or r efer for contraceptive
coverage; to voice their disapproval of contraception; and to encou rage their emplo yees to
refrain from using contraceptive services. The regulations therefore affect plaintiffs’ religious
practice, if at all, in a most a ttenuated way. In short, because the preventive services coverage
regulations “are several degrees r emoved from imposing a substantial burden on [ plaintiffs],”
O’Brien, 894 F. Supp. 2d at 1160, the Court sh ould dismiss plaintiffs’ RFRA claim, or g rant
12 Thomas is not to the contrary. In Thomas, the Supreme Court recognized that “a compulsion may certainly be indirect and still constitute a substantial burden, such as the denial of a benefit found in Thomas.” Conestoga, 917 F. Supp. 2d at 415 n.15. But that is not so where the burden itself is indirect, as it is here. See id.; Gilardi, 926 F. Supp. 2d at 283. As previously explained, see supra note 10, in Hobby Lobby, 723 F.3d 1114, a bare m ajority of the en banc Tenth Circuit concluded that the word “substantial” in RFRA refers to the “intensity of coercion” rather than to the directness or in directness of the burden, if any, on a p laintiff’s religious exercise. Id. at 1137-40. The Tenth Circuit’s conclusion that the substantial burden requirement relates to the intensity of the coercion, however, is inconsistent with Kaemmerling, discussed above, as well as other decisions that have analyzed “substantial burden” in terms of the degree to which the challenged law directly imposes a r equirement or prohibition on religious practice. See 553 F.3d at 678-79; Living Water Church of God, 258 Fed. App’x at 734; McEachin, 357 F.3d at 203 n.6; Civil Liberties for Urban Believers, 342 F .3d at 761. And, again, the substantial burden analysis in Hobby Lobby and Korte are inapplicable to this case. See supra notes 7 & 9.
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summary judgment to defendants, even if it finds—contrary to the government’s argument—that the challenged regulations impose some burden on plaintiffs’ religious exercise.
2. Even if there were a su bstantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests a. The regulations significantly advance compelling governmental interests in public health and gender equality
Even if plaintiffs were able to de monstrate a substantial burden on their reli gious exercise, they would not prevail because t he challenged regulations are j ustified by two compelling interests, and are the least restrictive means to a chieve those interests. First, the promotion of public h ealth is unque stionably a compelling interest. Mead v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also, e.g., Buchwald v. Univ. of N.M. Sch. of Med. , 159 F.3d 487, 498 (10th Cir. 199 8); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995). And the challenged regulations further this c ompelling interest by “expanding access to a nd utilization of recommended preventive services for women.” 78 Fed. Reg. at 39,887, AR at 19.
The primary predicted benefit of the preventive services coverage regulations is tha t “individuals will experience improved health as a result of reduc ed transmission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 F ed. Reg. at 39,872, 39,887, AR at 4, 19. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to inc rease access to a nd utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significant barrier to ac cess to contraception.” (citation omitted)), AR at 5.
Increased access to FDA-approved contraceptive services is a key part of these predicted health outcomes, as unin tended pregnancies have proven in man y cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4. As IOM concluded in identifying services recommended to “prevent conditions harmful to women’s
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health and well-bein g,” unintended pregnancy may delay “entry into p renatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02. Contraceptive coverage further helps to avoid “the incre ased risk of adverse p regnancy outcomes for pre gnancies that are too closel y spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpre gnancy intervals in particular have been associated with low birth weight, prematurity, and small-for-gestational age births.”) (citing studies), AR a t 4. And “[c]ontraceptives also have medical benefits for women who are contraindicated for pregnancy, and there are demonstrated preventive health benefits from contraceptives relating to conditions other than pregnancy (for example, prevention of certain c ancers, menstrual disorders, and acn e).” 78 F ed. Reg. at 39,872, AR at 4; see also IOM REP. at 103-04 ( “[P]regnancy may be con traindicated for women with serious medical conditions such as pulm onary hypertension . . . a nd cyanotic heart disease, and for women with the Marfan Syndrome.”), AR at 401-02.
Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations: assuring that women have equal access to health care services. 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. As the Supreme Court explained in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), there i s a fundamental “import ance, both to the individual and to societ y, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women.” Id. at 626. Thus, “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interests.” Id. By including in the ACA preventive health services for women, Congress made clear that the goals and benefits of effective preventive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into account in the ACA. As explained by members of Congress, “women have different health needs than men, and these nee ds often generate additional costs. W omen of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) (statement of Sen. Miku lski); 78 Fed. Reg. at
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39,887, AR at 19; IOM REP. at 19, AR at 317. These costs r esult in w omen often forgoing
preventive care and place women in the workforce at a disadvantage compared to their male
coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009); 78 Fed. Reg.
at 39,887, AR at 19; IOM REP. at 20, AR at 318. Congress’s attempt to equalize the provision of
preventive health care services, with the resulting benefit of women being able to contribute to
the same d egree as men as he althy and productive members of so ciety, furthers a compelling
governmental interest. Cf. Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67,
92-93 (Cal. 2004).13
Although the challenged regulations further these two compelling governmental interests,
while simultaneously accommodating the religious objections of eligible organizations, plaintiffs
maintain that the interes ts underlying the regulations cannot be conside red compelling when
millions of people are not protected by the regulations at the moment. Pls.’ Mem. at 26. But this
is not a case where u nderinclusive enforcement of a l aw suggests that the government’s
13 In arguing that the government’s interests are not compelling, plaintiffs suggest the government must separately analyze the impact of and need for the regulations as to each and every employer and employee in America. See Pls.’ Mem. at 2 5. But this level of specificity would be impossible to establish and would render this regulatory scheme—and potentially every regulatory scheme challenged due to religious objections—completely unworkable. See United States v. L ee, 455 U .S. 252, 25 9-60 (1982). In practice, courts have not required the government to analyze the impact of a regulation on the single entity seeking an exemption, but have conducted the inquiry with respect to all similarly situated individuals or organizations. See, e.g., id. at 260 (considering the impact on the tax system if all religious adherents—not just the plaintiff—could opt out); United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (per curiam) (“Oliver has argued a one-man exemption should be made, however, there is nothing so peculiar or special with Oliver’s situation which warrants an exception. There are no safeguards to prevent similarly situated individuals from asserting the same privilege and leading to uncontrolled eagle harvesting.”); Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1398 (4th Cir. 1990) (“There is no principled way of exempting the school without exempting all other sectarian schools and thereby the thousands of lay teachers and staff members on their payrolls.”); see also, e.g., Graham v. Comm’r, 822 F.2d 844, 853 (9th Cir. 1987), overruled in part on other grounds by N avajo Nation v. U.S. Forest Serv., 479 F .3d 1024, 1033 (9th Cir. 2007) (en banc); United States v. Winddancer, 435 F. Supp. 2d 687, 697 (M.D. Tenn. 2006). Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 435 (2006), is not to the contrary. To be sure, the Court rejected “slippery-slope” arguments for refusing to accommodate a particular claimant. See 546 U.S. at 435-36. But it construed the scope of the requested exemption as encompassing all members of the plaintiff religious sect. See id. at 433. Similarly, the exemption in Yoder, 406 U .S. 205, encompassed all Amish children; and the exemption in Sherbert v. Ver ner, 374 U .S. 398 (1963), encompassed all individuals who had a religious objection to working on Saturdays. See O Centro, 546 U.S. at 431. T he Court’s warning in O Centro against “slippery-slope” arguments was a r ejection of arguments by analogy—that is, speculation that providing an exemption to one group will lead to exemptions for other nonsimilarly situated groups. It was not an invitation to ignore the reality that an exemption for a p articular claimant might necessarily lead to an exemption for an entire category of similarly situated entities.
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“supposedly vital interest” is not reall y compelling. Church of th e Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47 (1993). For the most part, the “exemptions” referred to by plaintiffs are not exemptions from the preventive services coverage regulations at all, but are instead provisions of the ACA tha t exclude individuals and entities from other requirements imposed by the ACA. Or they reflect the government’s attempts to balance the compelling interests underlying the challenged regulations against other si gnificant interests supporting the complex administrative scheme created by the ACA. See Lee, 455 U.S. at 259 (“The Court has long recognized that balance must be st ruck between the values of t he comprehensive social security system, which rests on a complex of actuarial factors, and the consequences of allowing religiously based exemptions.”); Winddancer, 435 F. Supp. 2d at 695-98 (recognizing that the regulations governing access to eagle parts “strike a d elicate balance” between competing interests). And, unlike the exemption plaintiffs seek for employers that object to the r egulations on religious grounds, the existing exceptions do not undermine the g overnment’s interests in a significant way. See Lukumi, 508 U.S. at 547; S. Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1208-09 (6th Cir. 1990); see also 78 Fed. Reg. at 39,887, AR at 19.
For example, the grandfathering of certain health plans with respect to certain ACA provisions is not limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140. In fact, the effect of grandfathering is not really a permanent “exemption,” but rather, over the long term, a transition in th e marketplace with respect to several provisions of the ACA, including the preventive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at 19. The gran dfathering provision reflects Congress’s attempts to balance comp eting interests—specifically, the interest in spre ading the benefits of the ACA, including those provided by the preventive services coverage provision, and the interest i n maintaining existing coverage and easing the transition into the new regulatory regime established by the ACA—in the context of a complex statutory scheme. See 75 Fed. Reg. 34,538, 34,546 (June 17, 2010).
This incremental transition does not call into question the compelling interests furthered by the preventive services coverage regulations. Even under the grandfathering provision, it is
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projected that more group health plans will transition to the requi rements under the regulations over time. Defendants have estimated that a majority of group health plans will ha ve lost their grandfather status by the end of 2013. See id. at 34,552; see also Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190, AR at 663-64, 84 6. Thus, an y purported adverse effect on the compelling inter ests underlying the regulations will be quickl y mitigated, which is in stark con trast to the permanent exemption plaintiffs seek. Plaintiffs would have this Court believe that an interest cannot truly be “compelling” unless Congress is willing to impose it on e veryone all at once despite competing interests, but plaintiffs offer no support for that untenable proposition. See Legatus v. Sebelius, 901 F. Supp. 2d 980, 994 (E.D. Mich. 2012) (“[T]he grandfathering rule seems to be a reasonable plan for instituting an incredibly complex health care law while balancing competing interests.”).14
The only true exemption from the preventive services coverage regulations is th e exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a). But there is a rational distinction between this narrow exception and the expansion plaintiffs seek. Houses of worship and their integrated au xiliaries that o bject to contraceptive c overage on r eligious grounds are more likely than othe r employers, including organizations eligible for the accommodations, to em ploy people of the same faith who sha re the same objection, and who would therefore be less likely to use contraceptive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, 3 9,887, AR at 6, 19. In any event, it would be perverse to hold tha t the government’s provision of a limited religious exemption eliminates its compelling interest in the re gulation, thus ef fectively extending the same ex emption to an yone
14 Plaintiffs also allude to a “small-employer exemption[].” Pls.’ Mem. at 26. But 26 U.S.C. § 4980H(c)(2) does not, as plaintiffs suggest, exempt small employers from the challenged regulations. Small businesses that elect to offer non-grandfathered health coverage to their employees are required to provide coverage for recommended preventive health services without cost sharing. See 42 U.S.C. § 300gg-13. And, small employers have business incentives to offer health coverage to their employees; an otherwise eligible small employer would lose eligibility for certain tax benefits if it did not do so. See 26 U.S.C. § 45R.
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else who wants it under RFRA. Such a reading of RFRA would discourage the government from accommodating religion, the opposite of what Congress intended in enacting RFRA.
Granting plaintiffs the much broader exemption they request would undermine defendants’ ability to e nforce the regulations in a rational manner. See O Centro, 546 U.S. at 435. We are a “cosmopolitan nation made up o f people of almost eve ry conceivable religious preference,” Braunfeld, 366 U.S. at 606; see also S. Ridge Baptist Church, 911 F.2d at 1211, and many people obje ct to v arious medical services. If any organization with a relig ious objection were able to claim an exemption from the operation of t he preventive services coverage regulations—even where the re gulations require virtually nothing of the or ganization—it is difficult to see how defe ndants could administer the regulations in a manner that would achieve Congress’s goals of imp roving the health of women and newbo rn children and equ alizing the coverage of preventive services for women. See United States v. Israel, 317 F.3d 768, 772 (7t h Cir. 2003) ( recognizing that granting plaintiff’s RFRA claim “would lead to significant administrative problems for the [ government] and open the door to a . . . proliferation of claims”). Indeed, women who recei ve their health coverage through employers like plaintiffs would face negative health and other outcomes because they had obtained employment with an organization that objects to its employees’ use of cont raceptive services, even when t hose services are paid for an d administered by a third party. See id. (noting consequences “for the public and the government”); 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,887, AR at 19.
b. The regulations are the least re strictive means of advancing the government’s compelling interests
When determining whether a pa rticular regulatory scheme is the “least restrictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme—or whether the scheme can otherwise be modified—without undermining the government’s compelling interests. See, e.g., United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987); United States v. Wilgus, 638 F.3d 1274, 128995 (10th Cir. 2011). The government is not r equired “to do the imposs ible—refute each and
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every conceivable alternative regulation scheme.” Id. at 1289. Instead, the government need only “refute the alternative schemes offered by the challenger.” Id.
Instead of explaining how plaintiffs and similarly situated eligible organizations could be exempted from the r egulations without sig nificant damage to the government’s compelling interests, plaintiffs conju re up, without an y statutory support, several brand new statutor y and regulatory schemes—most of which would req uire the government to pa y for contraceptive coverage—that they claim would be less restrictive. See Pls.’ Mem. at 31. Yet plaintiffs fail to recognize that such alternatives would b e incompatible with the fundamental statutory scheme set forth in the ACA, wh ich plaintiffs do not chal lenge in this lawsuit. Cong ress did not adopt a single (government) payer system financed through taxes and instead o pted to build on the existing system of em ployment-based coverage. See H.R. Rep. No. 111 -443, pt. II, at 984-86 (2010). Plaintiffs point to no statutor y authority for any of their pr offered less restrictive alternatives. Nor i s there any indication that Congress would have contemplated that agency action could b e invalidated under RFRA because the agency in discharging its statutoril y delegated authority failed to adopt an alternative scheme absent any statutory authority for doing so. Thus, even if def endants wanted to adopt one of plaintiffs’ non-emplo yer-based alternatives, they would be constrained by the statute from doing so. See 78 Fed. Reg. at 39,888, AR at 20.
Furthermore, plaintiffs themselves indicate tha t they would “oppose many of” the alternatives that they put forth. Pls.’ Mem. at 31. Indeed, as noted above, i t is not clear why the government’s provision of contraceptive cov erage to women based upon their emplo yer’s objection to pr oviding it would not b e subject to exactly the same RFRA claim that plaintiffs advance here. By their own admission then, plaintiffs’ proposals would do little—if anything—to satisfy their religious objections, and the refore should not be consid ered viable less restrictive alternatives. See New Life Baptist Church Ac ad. v. Town of E. Longmeadow, 885 F.2d 940, 95051 (1st Cir. 1989) (B reyer, J.) (considering the limited e xtent to which an alternative would alleviate a religious burden in r ejecting it a s a “less restrictive alternative,” even though the plaintiff had ex pressed a pref erence for t he alternative over t he challenged requirements). An
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eligible organization’s religious objection to contraceptive coverage would still “facilitate” the availability of such coverage—in this c ase, by the government—and the e ligible organization would likely be called upon to verif y or ce rtify matters such as the r eligious objection to contraceptive coverage, and employment or plan beneficiary status. Plaintiffs cannot pl ausibly contend that the regulations are not the le ast restrictive means while simultaneously asserting that they would oppose their own suggested alternatives.
Finally, even if plaintiff s would be satisfied by their proposed alternative schemes, just because plaintiffs can devise an ent irely new legislative and adm inistrative scheme does not make that scheme a feasible less restrictive means, see Wilgus, 638 F.3d at 1289; Adams v. Comm’r of Internal Re venue, 170 F.3d 173, 18 0 n.8 (3d Cir. 1999), particularly where such alternatives would c ome at enormous administrative and financial cost to the government. A proposed alternative scheme is not an adequate alternative—and thus not a viable less restrictive means to achieve a compelling interest—if it is not feasible. See, e.g., New Life Baptist, 885 F.2d at 947; Graham, 822 F .2d at 852. In determining whether a proposed alternative scheme is feasible, courts often consider the additional administrative and fiscal costs of the scheme. See, e.g., S. Ridge Baptist Church, 911 F.2d at 1206; Fegans v. Norris, 537 F.3d 897, 905-06 (8th Cir. 2008); United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011); New Life Baptist, 885 F.2d at 947. Defendants considered plaintiffs’ alternatives and determined that th ey were not feasible because the agencies lacked statutory authority to implement them; they would impose considerable new costs and other burdens on t he government; and the y would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Lafley, 656 F.3d at 942; Gooden v. Crain, 353 F. App’x 885, 888 (5th Cir. 2009); Adams, 170 F.3d at 180 n.8.
Nor would the proposed alternatives be equally effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888 , AR at 20; see also, e. g., Kaemmerling, 553 F.3d at 684 (finding that means was least restrictive where no alternative means would achieve compelling interests); Murphy v. State of Ar k., 852 F.2d 1039, 1042-43 (8th Cir. 1988) (same ). As discussed above, Congress determined that the best way to achieve the goals of the ACA,
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including expanding preventive services coverage, was to build on the existing employer-based system. The anticipated benefits of the preventive services coverage regulations are attributable not only to the fact that recommended contraceptive services will be available to women with no cost-sharing, but a lso to the fact that these services will be available through the existing employer-based system of health coverage through which women will face minimal logistical and administrative obstacles to receiving coverage of their care. Plaintiffs’ alternatives, by contrast, have none of these adv antages. They would require establishing entirely new government programs and infrastructures or fu ndamentally altering existing ones, and would almost certainly require women to take burdensome steps to find out about the availability of and sign up for a new benefit, thereby ensuring that fewer women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20. Nor do plaintiffs offer any suggestion as to how these p rograms could be integrated with the employer-based system or how women woul d obtain governmentprovided preventive services in pr actice. Thus, plaintiffs’ propos als—in addition to raisin g myriad administrative and logistical difficulties and be ing unauthorized by any statute and not funded by any appropriation—are less likely to achieve the compelling interests furthered by the regulations, and therefore do not represent reasonable less restrictive means. Id.
Because plaintiffs have failed to offer viable less restrictive alternatives, the Court should reject plaintiffs’ argument that the regulations fail strict scrutiny.15
B. The Regulations Do Not Violate the Free Exercise Clause The Supreme Court has m ade clear that a l aw that is neutral and g enerally applicable does not run afoul of the Free Exercise Clause even if it pr escribes conduct that an individual’s religion proscribes or has the incidental effect of burdening a particular religious practice. Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990); see also Lukumi, 508 U.S.
15 Plaintiffs cite extra-record evidence in support of many of their arguments. For example, they cite a law review article for the proposition that the challenged regulations “are unlikely to significantly impact contraceptive use.” See Pls.’ Mem. at 28. The introduction of this and other extra-record evidence is inappropriate and should not be considered by the Court. Plaintiffs are challenging agency regulations, and thus this Court’s review is limited to the administrative record. See, e.g., United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963).
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at 531-32. “Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law is neutral if it does not ta rget religiously motivated conduct either on its face or as applied. Id. at 533. A neutr al law h as as its purpose something other than the disap proval of a particular religion, or of religion in general. Id. at 545. A la w is generally applicable so long as it does not selectively impose burdens only on conduct motivated by religious belief. Id.
Unlike such selective laws, the preventive services coverage regulations are neutral and generally applicable. Indeed, nearly every court to have considered a free exercise challenge to the prior version of the regulations has rejected it, concluding that the regulations are neutral and generally applicable.16 “The regulations were pas sed, not w ith the object of interfering with religious practices, but instead to improve women’s access to health care and lessen the disparity between men’s and women’s healthcare costs.” O’Brien, 894 F . Supp. 2d at 1161. The regulations reflect expert medical recommendations about the medical necessity of contraceptive services, without regard to any religious motivations about such servi ces. See, e.g., Conestoga, 917 F. Supp. 2d at 410 (“It is clear from the history of the regulations and the report published by the [IOM] that the purp ose of the [ regulations] is not to target religion, but instead to promote public health and gender equality.”); Grote, 914 F. Supp. 2d at 952-53 ( “[T]he purpose of the regulations is a secular one, to wit, to promote public health and gender equality.”).
The regulations, moreover, do not pursue thei r purpose “only against conduct motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (concluding law that “punishe[d] conduct within its reach without regard to whether the conduct was religiously motivated” was generally applicable). The regulations apply to all
16 See MK Chambers, 2013 WL 1340719, at *5; Eden Foods, 2013 WL 1190001, at *4-5; Conestoga, 917 F. Supp. 2d at 409-10; Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943, 952-53 (S.D. Ind. 2012), rev’d on other grounds sub nom, Korte v. Sebelius, 2013 WL 5960692; Autocam, 2012 WL 6845677, at *5; Korte v. U.S. Dep’t of Health & Human Servs., 912 F . Supp. 2d 735, 7 44-47 (S.D. Ill. 2012), rev’d on ot her grounds, Korte, 2013 WL 5960692; Hobby Lobby, 870 F. Supp. 2d at 1289-90, rev’d on other grounds, 2013 WL 3216103; O’Brien, 894 F. Supp. 2d at 1160-62; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, 85 P.3d at 81-87 (same). But see Sharpe Holdings, Inc. v. HHS , 2012 WL 6738489, at *5 (E.D. Mo. D ec. 31, 2012); Geneva Coll. v. Se belius, No. 2:12–cv–00207, 2013 WL 838238, at *24-26 (W.D. Penn. Mar. 6, 2013).
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non-grandfathered health plans that do not qualify for the r eligious employer exemption or the accommodations for eligible organizations. Thus, “it is just not true . . . that the burdens of t he [regulations] fall on relig ious organizations ‘but almost no others.’” Am. Family Ass’n v. FCC , 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quotin g Lukumi, 508 U.S. at 536); see O’Brien, 894 F. Supp. 2d at 1162; Autocam, 2012 WL 6845677, at *5; Grote, 914 F. Supp. 2d at 953.
The existence of express exceptions or accommodations for objec tively defined categories of entities, like grandfathered plans, religious employers, and eligible organizations, “does not mean that [ the regulations do] not apply generally.” Autocam, 2012 WL 6845677, at *5. “General applicability does not mean absolute universalit y.” Olsen v. Mukasey, 541 F .3d 827, 832 (8th Cir. 2008); accord Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004); Am. Friends Ser v. Comm. Corp. v. Thornbu rgh, 951 F .2d 957, 96 0-61 (9th Cir. 1991 ) (concluding employer verification statute was generally applicable even though it ex empted independent contractors, household employees, and employees hired pri or to November 1986 because exemptions “exclude[d] entire, objectively-defined categories of em ployees”); Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42, 44 (2d Cir. 1990) (same); Ungar v. N.Y.C. Hous. Auth. , 363 F. App’x 53, 56 (2d Cir. 2010). “Instead, exemptions undermining ‘general applicability’ are those tending to suggest disfavor of relig ion.” O’Brien, 894 F. Supp. 2d at 1162. The ex ception for grandfathered plans is available on equal term s to all emplo yers, whether religious or sec ular. And the relig ious employer exemption and elig ible organization accommodations serve to accommodate religion, not to disfavor it. Id.; see also Conestoga, 917 F. Supp. 2d at 410; Grote, 914 F . Supp. 2d at 953. Thus, thes e categorical ex ceptions and accommodations do not trigger strict scrutiny.
“[C]arving out a n exemption for defined religious entities [also] does not ma ke a la w nonneutral as to others.” Grote, 914 F. Supp. 2d at 953 (quotation omitted). Indeed, the religious employer exemption “presents a strong argument in favor of neutralit y” by “demonstrating that the object of the la w was not to infringe upon or restrict practices because of their r eligious motivation.” O’Brien, 894 F. Supp. 2d at 1161 (quotations omitted); see Conestoga, 917 F. Supp.
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2d at 410 (“Th e fact that exemptions were made for religious employers . . . . shows that the government made efforts to accommodate religious beliefs, which counsels in favor of t he regulations’ neutrality.”). The regulations are not unlawful “merely because the [religious employer exemption] does not extend as far as Plaintiffs wish.” Grote, 914 F. Supp. 2d at 953.
Plaintiffs’ reliance on Lukumi, 508 U.S. 520, is of no help, as this case is a far cry from Lukumi, where the legislature specifically targeted the religious exercise of members of a single church (Santeria) by enacting ordinances that used terms such as “sacrifice” and “ritual,” id. at 533-34, and prohibited few, if any, animal killings other than Santeria sacrifices, id. at 535-36. Here, there is no indic ation that the regulations are anything other than an effort to inc rease women’s access to and utilization of recommended preventive services. See O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2 d at 410; Grote, 914 F. Supp. 2d at 952 -53. Plaintiffs’ unsupported assertion that the regulations are “part of a conscious political strategy to marginalize and delegitimize Plaintiffs’ religious views by holding them up for ridicule on the national stage,” Pls.’ M em. at 34, is m ere rhetorical bluster. And it c annot be disputed that defendants have made extensive efforts—through the religious employer exemption and the eligible organization accommodations—to acc ommodate religion in wa ys that will not undermine the g oal of ensuring that wome n have acc ess to cover age for re commended preventive services without cost sharing.17
Plaintiffs also posit that the regulations must h ave been designed to ta rget plaintiffs’ religious practice of refusing to f acilitate access to contra ception because, prior to the promulgation of the regulations, “85 perc ent of health plans alre ady cover[ed] contraception.” Pls.’ Mem. at 33. As an initial matter, this 85 percent figure represents only large employers, not small employers (only 62 percent of which c overed contraception prior to issuance of the
17 Fraternal Order of Police v. City of Newark, 170 F .3d 359 (3d Cir. 1999), on which plaintiffs also rely (Pls.’ Mem. at 32- 33), addressed a policy that created a s ecular exemption but refused all r eligious exemptions. The preventive services coverage regulations, in contrast, contain an exemption and accommodations that specifically seek to acco mmodate religion. Thus, unlike in Fraternal Order, there is simply no basis here to infer a discriminatory object behind the regulations. See Conestoga, 917 F. Supp. 2d at 409-10.
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regulations) or plans on the individual market. IOM REP. at 109, AR at 4 07. More importantly, many of the plans that covered contraceptive services imposed cost-shar ing requirements that often resulted in women forg oing preventive care. Id. at 19-20, 109. The reg ulations eliminate that cost-sharing. Finally, even i f plaintiffs could show that the re gulations have a disproportionate effect on them (and the y have not), it would not de stroy the regulations’ neutrality. See O’Brien, 894 F. Supp. 2d at 1161 (rejecting identical argument). “[A] neutral and perfectly constitutional law ma y have a disproportionate impact upo n religiously inspired behavior . . . . The F ree Exercise Clause is not violated even thoug h a g roup motivated b y religious reasons may be more likel y to en gage in the proscribed condu ct.” Id. (citing cases). Indeed, by plaintiffs’ logic, the government also was “targeting,” Pls.’ Mem. at 33, thos e with religious objections to vaccinations, as a similar or even greater percentage of he alth plans covered vaccinations prior to promul gation of the challen ged regulations. See 75 Fed. Reg. 41,726, 41,732 (July 19, 2010), AR at 232.
Finally, plaintiffs maintain that the challenged regulations are subject to str ict scrutiny under a “h ybrid rights” theory because they also infringe on plaintiffs’ freedom of spee ch and association. The Sixth Circuit, however, has specifically rejected the theory. See Kissinger v. Bd. of Trs. of Ohio State Univ. , 5 F .3d 177, 180 (6th Cir. 1993). Indeed, the Supreme Court, however, has nev er invoked this so-called “h ybrid rights theory” to justif y applying strict scrutiny to a free exercise claim. See Lukumi, 508 U.S. at 567 (Souter, J ., concurring in part and concurring in the judgment) (noting the hybrid rights exception would either swallow the Smith rule or be entirely unnecessary).18
18 Nevertheless, assuming arguendo that the hybrid rights theory is valid, it applies only where the plaintiff’s nonfree-exercise claims are “independently viable.” Mahoney v. Dist. of Columbia, 662 F. Supp. 2d 74, 95 n.12 (D.D.C. 2009). Here, plaintiffs assert in their brief that the preventive services coverage provision violates both the right to free exercise of religion and their “rights of free speech and association.” Pls.’ Mem. at 34-35. Yet plaintiffs do not even raise a separate free association claim and, as explained next, their free speech claims are meritless. As the D.C. Circuit has noted, “the combination of two untenable claims” does not “equal[] a tenable one.” Henderson, 253 F.3d at 19; see also Civil Liberties for Urban Believers, 342 F.3d at 765 (“‘[A] plaintiff does not allege a hybrid rights claim entitled to strict scrutiny analysis merely by combining a free exercise claim with an utterly meritless claim of the violation of another alleged fundamental right.’” (quoting Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 1999)). Thus, even if the hybrid rights theory were valid, it would not trigger strict scrutiny.
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For these reasons, plaintiffs’ free exercise claim—Count II of the Complaint—fails.19 C. The Regulations Do Not Violate the Free Speech Clause Plaintiffs’ free speech claims fare no better. The right to freedom of speech “prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). B ut the preventive service s coverage regulations do not compel speech—by plaintiffs or any other person, employer, or entity—in violation of the First Amendment. Nor do they limit what plaintif fs may say. Plaintiffs remain free under the regulations to express whatever views they may have on the use of contraceptive services (or any other health care services) as well as their views about the reg ulations. Plaintiffs, moreover, may encourage their employees not to use contraceptive services. Plaintiffs contend that the regulations violate their free speech rights in two ways, neither of which has merit. First, plaintiffs are wrong to contend that the regulations require plaintiffs to “support . . . ‘counseling’ in favor of” preventive services to which they object. Pls.’ Mem. at 35. The regulations simply require coverage of “education and couns eling for all women with reproductive capacity.” HRSA Guidelines, AR at 283-84. Th ere is no requirement that such education and counseling be “in favor of” any particular contraceptive service, or even in support of contraception in general. The conversations that may take place between a patient and her doctor cannot be kno wn or screened in adv ance and may cover any number of options. To the extent that plaintiffs intend to a rgue that the covered education and counseling is objectionable because some of the conversations between a doctor and one of plaintiffs’ employees might be supportive of contracept ion, accepting this theo ry would mean that the First Amendment is violated by the mere possibility of a n employer’s disagreement with a potential subject of discussion between an e mployee and her doctor, and would ex tend to all such interactions, not
19 Even if the regulations were not neutral or generally applicable, plaintiffs’ free exercise challenge still would fail because the regulations satisfy strict scrutiny. See supra.
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just those that are t he subject of t he challenged regulations. The F irst Amendment does not require such a drastic result. See, e.g., Conestoga, 917 F.Supp.2d at 418-19.
Second, plaintiffs note that, in order to avail itself of an accommodation, an organization must self-certify that it meets the definition of “eligible organization.” Pls.’ Mem. at 36. B ut completion of the simple self-certification form is “plainly incidental to the . . . regulation of conduct,” FAIR, 547 U. S. at 62, not speech. Indeed, every court to r eview a Free Speech challenge to the prior contraceptive-coverage regulations has rejected it, in part, because the regulations deal with conduct. See MK Chambers , 2013 W L 1340719 at *6 (“ Like the [ law at issue in FAIR], the co ntraceptive requirement regulates conduct, not speech.” (quotations omitted)); Briscoe v. Sebelius, 927 F. Supp. 2d 1109, 1120 (D. Colo. 2013) (“The plaintiffs cite no authority and I am not aware of any authority holding that such conduct qualifies as speech so as to trigger First Amendment protection.”); Conestoga, 917 F. Supp. 2d at 418; Grote, 914 F. Supp. at 955; Autocam, 2012 WL 6845677, *8; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento, 85 P.3d at 89 (rejecting similar claim); Catholic Charities of the Diocese of Albany, 859 N.E.2d at 465 (same). The accommodations likewise re gulate conduct by relieving an eligible organization of the obligation “to contract, arrange, pay, or refer for contraceptive coverage” to which it has r eligious objections. 78 Fed. Reg. at 39,874, AR at 6.20 Plaintiffs’ suggestion that self-c ertifying their eligibility for an accommodation, which is incidental to the regulation of c onduct, violates their spe ech rights lacks merit. See FAIR, 547 U.S. at 61-63.
The regulations also do not require plaintiffs to s ubsidize any conduct that is “inherently expressive.” FAIR, 547 U.S. at 66; see also United States v. O’Brien , 391 U.S. 367, 376 (1968) (recognizing that some forms of “symbolic speech” are protected by the First Amendment). As
20 Indeed, self-certifying eligibility for a relig ious accommodation is a f ar cry from the laws at issue in the cases plaintiffs cite, which mandated the posting of specific written messages throughout an organization’s building and advertisements, as well as speaking oral messages to the organization’s clients. See Pls.’ Mem. at 3 6 (citing Evergreen Ass’n v. C ity of New York, 801 F . Supp. 2d 197 (S .D.N.Y. 2011) and Centro Tepeyac v. M ontgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011)).
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an initial matter, the regulations explicitly prohibit plaintiffs’ issuers from imposing any cost sharing, premium, fee, or other charge on pla intiffs with r espect to the separate payments for contraceptive services m ade by the issuers. Plai ntiffs, therefore, a re not funding or subsidiz ing anything pertaining to contraceptive coverage. Moreover, even if plaintiffs played some role in an issuer’s provision of payments for contraceptive services (and they do not), making payments for health care services is not the sort of conduct the Supreme Court has recognized as inherently expressive. See Conestoga, 917 F. Supp. 2d at 41 8; Grote, 2012 WL 6725905, at *10; Autocam, 2012 WL 6845677, at *8; O’Brien, 894 F. Supp. 2d at 1166-67; Catholic Charities of Sacramento, 85 P.3d at 89; Diocese of Albany, 859 N.E.2d at 465; see also FAIR, 547 U.S. at 6566 (making space for military recruiters on campus is not conduct that indicates colleges’ support for, or sponsorship of, recruiters’ message).
Accordingly, the regulations do not v iolate the Free Speech Clause, and Count III of the Complaint should be dismissed or summary judgment granted to the government.
D. The Regulations Do Not Violate the Establishment Clause “The clearest command of the Establishment Clause is tha t one religious denomination cannot be officiall y preferred over another.” Larson v. Valente , 456 U.S. 228, 244 (1982) (emphasis added). A law tha t discriminates among religions by “aid[ing] one religion” or “prefer[ring] one religion over another” is subject to str ict scrutiny. Id. at 246; see also Olsen v. DEA, 878 F.2d 1458, 1461 (D.C. Cir. 1989). Th us, for example, the Supreme Court has struck down on Establishment Clause grounds a state statute that was “drafted with the explicit intention” of requiring “particular religious denominations” to c omply with registration and reporting requirements while excluding other religious denominations. Larson, 456 U.S. at 254 ; see also Bd. of Edu c. of Kiryas Joel Vill. Sc h. Dist. v. Grumet, 512 U.S. 687, 703-07 (1994) (striking down statute that created special school district for religious enclave of Satmar Hasidim because it “single[d] out a part icular religious sect for spe cial treatment”). The C ourt, on t he other hand, has upheld a statute that provided an exemption from mil itary service for pe rsons who had a conscientious objection to all wars, b ut not those who ob jected to onl y a particula r
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war. Gillette v. United States, 401 U.S. 437 (1971). The Court ex plained that the statute did n ot discriminate among religions because “no particular sectarian affiliation” was required to qualify for conscientious objector status. Id. at 450-51. “[C]onscientious objector status was available on an equal basis to both the Quak er and the Roman Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (upholding RLUIPA against Establishment Clause challenge because it did not “confer[] . . . privileged status on an y particular religious sect” or “single[] out [any] bona fide faith for disadvantageous treatment”).
Like the statutes at issue in Gillette and Cutter, the preventive services coverage regulations do not g rant any denominational preference or otherwis e discriminate among religions. It is of no mo ment that the religious employer exemption and ac commodations for eligible organizations apply to some employers but not others. “[T]he Establishment Clause does not prohibit the government from [differentiating between organizations based on their structure and purpose] when granting religious accommodations as long as the distinction[s] drawn by the regulations . . . [ are] not based on reli gious affiliation.” Grote, 914 F. Supp. 2d at 954; accord O’Brien, 894 F. Supp. 2d at 1163; see also, e.g., Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1090-93 (8th Cir. 2000); Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995); Diocese of Albany, 859 N.E.2d at 468-69. Here, the distinctions established by the regulations are not so drawn.
The regulations’ definitions of relig ious employer and elig ible organization “do[] not refer to an y particular denomination.” Grote, 914 F . Supp. 2d at 954. The ex emption and accommodations are available on an equ al basis to organizations affiliated with any and al l religions. The regulations, therefore, do not disc riminate among religions in viola tion of the Establishment Clause. Indeed, every court to have considered an Establishment Clause challenge to the prior version of the regulations has rejected it. See, e.g., O’Brien, 894 F. Supp. 2d at 1162 (upholding prior versio n of relig ious employer exemption because it did “not differentiate between religions, but applie[d] equally to all denominations”); Conestoga, 917 F. Supp. 2d at 416-17 (same); Grote, 914 F. Supp. 2d at 954 (same); see also Liberty Univ., Inc. v. Lew, 733
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F.3d 72, 100-03 (4th Cir. 2013) (upholding another religious exemption contained in the ACA against an Establishment Clause challenge), cert. denied, No. 13-306 (Dec. 2, 2013).21
“As the Supreme Court has frequ ently articulated, there is space between the religion
clauses, in whic h there is ‘room for play in the joints;’ government may encourage the free
exercise of rel igion by granting religious accommodations, even if not required b y the Free
Exercise Clause, without running afoul of the Establishment Clause.” O’Brien, 894 F. Supp. 2d
at 1163 (citations omitted). Ac commodations of reli gion are possible because the t ype of
legislative line-drawing to which the plaintiffs object in this case is constitutionally permissible.
Id.; Conestoga, 917 F. Supp. 2d at 417; see, e.g., Walz v. Tax Comm’n of NY, 397 U.S. 664, 666 (1970); Amos, 483 U.S. at 334 (upholding Title VII’s exemption for religious organizations).22
Plaintiffs also claim that the regulations’ definition of relig ious employer violates the
Establishment Clause because, m ore than thirty-five years ago, the Internal Revenue Service
(IRS) developed a non-exhaustive list of fourt een facts and ci rcumstances that may be
considered, in addition to “an y other f acts and circumstances which may bear upon the
organization’s claim for church status,” in assessing whether an organization is a church. See
21 Plaintiffs stretch Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), well beyond its facts in suggesting that the case stands for the proposition that the Establishment Clause prohibits the government from distinguishing among different types of organizations that adhere to the same religion. Pls.’ Mem. at 37. Weaver was limited to “laws that facially regulate religious issues,” id. at 1257, and, particularly, those that do so in a way that denies certain religious institutions public benefits that are afforded to all other institutions, secular or religious. The court in Weaver said nothing about the constitutionality of exemptions from generally applicable laws that are designed to accom modate religion, as opposed to discriminate against religion. A requirement that any religious exemption that the government creates must extend to all organizations—no matter their structure or purpose— would hamper the government’s ability to accommodate religion. See Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Am os, 483 U .S. 327, 334 ( 1987) (“There is ample room under the Establishment Clause for ‘benevolent’ neutrality which will permit religious exercise to exist without sponsorship and without interference.”); Diocese of Albany, 859 N.E.2d at 464 (“To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions – and thus to restrict, rather than promote, freedom of religion.”). And, the manner in which the law at issue in Weaver was administered required the government to make intrusive inquiries into a school’s religious beliefs and practices by, for example, reading syllabi to determine if a school’s theology courses were likely to convince students of religious truths. See 534 F.3d at 1261-62. The religious employer exemption requires no such inquiry: Qualification for the exemption does not require the government to make any determination, much less an unconstitutionally intrusive one.
22 Even if the regulations discriminate among religions (and they do not), they are valid under the Establishment Clause, because they satisfy strict scrutiny. See supra; Larson, 456 U.S. at 251-52.
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Found. of Human Understanding v. Comm’r of IRS, 88 T.C. 1341, 13 57-58 (1987); Internal Revenue Manual (IRM) 7.26.2.2.4. Althoug h plaintiffs do not appea r to have ev er before challenged the constitutionalit y of this non-ex haustive list, the y now co ntend that it acts to require the government to make impermissible “judgments regarding beliefs, practices, and organizational structure.” Pls.’ Mem. at 40. This claim fails for numerous reasons.
As an initial matter, the claim is not ripe a nd therefore should be dismissed for lack o f jurisdiction. The non-exhaustive list that plaintiffs seek to challenge is not set out in an y statute, regulation, or other bindi ng source of law. It is instead contained in the IRM, which serves as a source of guidance for the internal administration of the IRS and is not binding on the IRS or courts. United States v. Will, 671 F.2d 963, 967 (6th Cir. 1982); Capital Fed. Sav. & Loan Ass’n v. Comm’r of Internal Revenue, 96 T.C. 204, 216-17 (1991). A part y can challen ge such guidance “only if and when t he directive has been applied specifically to them.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987); see also, e.g., Home Builders Ass’n of Greater Chicago v. U.S. Army C orps of Eng’rs, 335 F.3d 607, 619 (7th Cir. 2003) (concludin g general statement of policy was not ripe for review). Plaintiffs do not challenge any determination by the IRS that was based on t his IRM provision. Because defendants have not applied a similar nonexhaustive list of facts and circumstances to plaintiffs, plaintiffs’ challenge is not ripe.
Indeed, qualification for the religious employer exemption does n ot require the government to m ake any determination, whether as a result of the application of the nonexhaustive list or otherw ise. If an o rganization “is organized and operates as a nonprofit entity and is referr ed to in section 6033(a)(3)( A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amend ed,” it qualifies for the ex emption, without any government action wh atsoever. 45 C.F.R. § 147.131(a). Plaintiffs, moreover, have no difficulty determining whether they qualify for the exemption. The Diocese and Congregation allege that the y do qualify for the exemption, Compl. ¶ 14, and the remaining plaintiffs alle ge that the y do not, e.g., id. ¶ 10. Any claim— which plaintiffs do not in f act make—that the government will dispute these allegations and
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therefore need to unde rtake any sort of intrusiv e inquiry into wheth er plaintiffs qualify for the exemption is entirely speculative and thus unripe for this reason as well.
Finally, even assuming plaintiffs could mount a facial challen ge to a non- exhaustive list of facts and circumstances that the defendant agencies have never applied to plaintiffs, any such challenge would be meritless. Any interaction between the government and religious organizations that ma y be necessary to enfo rce the religious employer exemption is no t so “comprehensive,” Lemon v. Kurtzman , 403 U.S. 602, 619 (1971), or “pervasive,” Agostini v. Felton, 521 U.S. 203, 2 33 (1997) (quotations omitted), as to r esult in e xcessive entanglement. The Supreme Court has upheld laws that require government monitoring that is more onerous than any monitoring that may be required to enforce the religious employer exemption. See Bowen v. Kendrick , 487 U.S. 589, 615-617 (1988) (no ex cessive entanglement where the government reviewed and monitored programs and materials); Roemer v. Bd. of Pub. W orks of Md., 426 U.S. 736, 76 4–765 (1976) (no excessive entanglement where the st ate conducted annual audits); see also United States v. Corum, 362 F.3d 489, 496 (8th Cir. 2004). And every court to address the issue upheld the prior versio n of the relig ious employer exemption, which contained the sa me requirement that the organization be one that is re ferred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended, against an entanglement challenge. See Conestoga, 917 F . Supp. 2d at 417 ; O’Brien, 894 F . Supp. 2d at 1164-65; Geneva Coll., 929 F . Supp. 2d at 4 39-40.23 For all of t hese reasons, pl aintiffs’ Establishment Clause claim—Count IV of the Complaint—fails.
23 Even if this Court were to conclude that it had jurisdiction to adjudicate a facial challenge to the non-exhaustive list of facts and circumstances set forth in IRM 7.26.2.2.4 and that such nonbinding guidance violates the Establishment Clause, the remedy would be invalidation of the list, not invalidation of the contraceptive coverage requirement or the religious employer exemption. The regulations would survive, with the religious employer exemption being available to any organization that is organized and operates as a nonprofit entity and is a church, integrated auxiliary of a church, convention or association of churches, or the exclusively religious activities of any religious order, as those terms are specifically defined under section 6033 or commonly understood.
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E. The Regulations Do Not Interfere With Church Governance Plaintiffs also assert that, by allegedly requiring plaintiffs to f acilitate practices in violation of their religious beliefs, the regulations interfere with pla intiffs’ “internal church governance” in violation of the Relig ion Clauses. See Pls.’ Mem. at 40-42. But that is merely a restatement of plaintiffs’ substantial burden theor y,24 which fails for reasons explained already. Indeed, the main case cited by plaintiffs on this point, Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 132 S. Ct. 694 (2012), is inapposite. In Hosanna-Tabor, the Supreme Court held that allowing a minister em ployee to sue her church employer under th e Americans with Disa bilities Act—thereby interfering with “ a church’s ability to se lect its own ministers”—violates the Free Exercise and Establishment Clauses. Id. at 704, 706. But this case is not about the selection of cler gy, nor any other matters of church governance apart from plaintiffs’ religious objection to providing contraceptive coverage (which, again, is subsumed by plaintiffs’ substantial b urden argument). Nor is this case about any law that regulates the structure of the chur ch—plaintiffs may choose whatever or ganizational structure the y wish. Thus, Count VI should be dismissed or summary judgment granted to defendants. F. Plaintiffs’ APA Claims Fail
1. The regulations are not contrary to law In Count VI, plaintiffs contend the regulations violate the AP A because they conflict the Weldon Amendment to the Consolidated Appropriations Act of 2012. Plaintiffs are wrong. Plaintiffs appear t o reason that, because t he preventive services coverage regulations require group health plans to cov er emergency contraception, such as Plan B , they require plaintiffs to provide coverage for abortions in violation of federal law. The Weldon Amendment denies funds made available in the Consolidated Appropriations Act of 2012 to any federal, state, or local agency, program, or government that “subjects any institutional or individual health care
24 While the Zubik ruling was incorrect for reasons explained already, supra note 7, that court analyzed arguments about interference with the church under RFRA’s “substantial burden” test. See 2013 WL 6118696 at *27.
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entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or ref er for abortions.” Pub. L. No. 112-74, §§ 506, 507, 1 25 Stat. 786, 1111-12 (Dec. 23, 2011). The regulations, however, do not require that any health plan cover abortion at all, much less as a p reventive service. The government has m ade clear that the preventive services covered by the regulations do not includ e abortifacient drugs.25 Although plaintiffs are certainly entitled to beli eve that emer gency contraceptives and ce rtain IUDs are abortif acient drugs or c ause abortions, neither the g overnment nor this Court is required to accept that characterization, which i s inconsistent with the FDA’s scientific assessment and with f ederal law. While plaintiffs’ religious beliefs may define abortion mor e broadly than federal law, statutory interpretation requires that terms be construed as a matter of law and not in accordance with any particular individual’s personal views or beliefs. E.g., GEICO v. Benton , 859 F .2d 1147, 1149 (3d Cir. 1988).
In recommending what contraceptive services should be covered by health plans without cost-sharing, the IOM Report identified the contraceptives that have been approved by the FDA as safe and effective. See IOM REP. at 10, AR at 308. And the l ist of F DA-approved contraceptives includes emergency contraceptives such as Plan B. See id. at 105, AR at 403. The basis for the inclusion of such drugs among safe and effective means of contraception dates back to 1997, when the FDA first explained why Plan B and similar drugs act as contraceptives rather than abortifacients. See Prescription Drug Products; Certain Combined Oral Contra for Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 8611 ( Feb. 25, 1997); 45 C.F.R. § 46.202(f). In light of this conclusion by the FDA, HHS informed Title X grantees, which are required to offe r a ran ge of acc eptable and effective family planning methods—and, except under limited circumstances, ma y not offer abortion—that they “should consider the availability of emergency contraception the same as an y other method which has b een established as sa fe
25 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited Dec. 11, 2 013); see also IOM REP. at 22 (rec ognizing that abortion services are ou tside the scope of recommendations), AR at 320.
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and effective.” Office of Population Affairs, Memorandum (Apr. 23, 1997), http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Dec. 11, 2013) ; see also 42 U.S.C. §§ 300, 300a-6. The regulations are consistent with over a dec ade of regulatory policy and practice and thus cannot be deemed contrary to any law dealing with abortion. See Bhd. of R.R. Signalmen v. Surface Transp. Bd. , 638 F .3d 807, 815 (D.C. Cir. 201 1) (giving particular deference to an agency’s longstanding interpretation).26
Thus, because the ch allenged regulations are not contrary to law, Count V I of the Complaint should be dismissed or summary judgment granted to defendants.
2. The regulations were promulgated in accordance with the APA In Count VII, plaintiffs assert that defendants failed to comply with the APA’s notice and comment procedures in relation to c hallenged regulations and the HRSA Guide lines. Plaintiffs also appear to allege that defendants improperly delegated their authorit y when they sought the expertise of the IOM. All of these allegations are baseless. The AP A’s rulemaking provisions generally require that agencies provide notice of a proposed rule, invite and consider public comments, and adopt a f inal rule that includes a statement of basis and p urpose. See 5 U.S.C. § 553(b), (c). Defendants complied with these requirements. As to the challenged regulations, defendants issued the ANPRM on March 21, 2012, and solicited comments on it. 77 Fed. Re g. 16,501. Defendants then considered those comments and issued the NPRM on February 6, 2013, requesting comments on the proposals contained in it. 78 Fed. Reg. 8456, 8457. Defend ants received over 400,000 comments, and the preamble to the 2013 final rules contains a detaile d discussion both of the comment s defendants received and of
26 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of contraceptive services has never been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as the morning-after pill. . . . [U]n der the current FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”).
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defendants’ responses to those comments. See 78 Fed. Reg. 38,969, 39,871-39,888 (J uly 2, 2013). The mere fact that the regulations as ultimately issued may not satisfy the preferences of each and eve ry commenter is certainly not evidence that those comments were not considered. Given the range of inter ests and views among commenters, it is unlike ly—if not impossible— that any regulation will be fully in line with the comments made by every commenter.
As to the HRSA Guidelines, because there were no existing HRSA guidelines relating to preventive care and screening for women, HRSA sought the scientific and medical expertise of the IOM. IOM conducted a science -based review and made r ecommendations as to what the HRSA guidelines should include. 27 This is not at all unusual, as entit ies like HRSA frequentl y contract with non- governmental entities, includi ng the IOM, for this t ype of technical input. Seeking such input is n ot a deleg ation of HRSA’s authority, but rather a consultation. After considering the IOM’s recommendations, HRSA independently made the decision to adopt guidelines based on those recommendations, subj ect to the relig ious employer exemption. Moreover, nothing in the APA, or an y other st atute, requires HRSA to have subjected IOM’s recommendations to notice and comment procedures before adopting them in the guidelines. The APA’s notice-and-comment requirements apply only to rulem aking, 5 U .S.C. § 553(b), and a “rule” is d efined in the APA, in r elevant part, as be ing “designed to im plement, interpret, or prescribe law or policy,” id. § 551(4). The guidelines neither do nor are designed to do any such thing, and as such they do not constitute a “rule” within the meaning of the APA; they are simply the clinical recommendations of a scientific body. The substantive obligations that are imposed
27 To the extent plaintiffs question the process that IOM used to develop its recommendations, see Compl. ¶ 305, they have not offered any support for the notion that the APA requires IOM to have provided the public with an opportunity to comment. IOM is a n entity that gives expert advice to the federal government, and it issues recommendations that plainly do not have the force of law of their own accord. In any event, IOM did invite the public to speak at three public meetings and/or to submit written comments. See IOM REP. at 22-23, AR at 320-21.
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on group health plans a nd health insurance issu ers were imposed b y Congress, in 42 U.S.C. §
300gg-13(a) and in corr esponding provisions of ERISA and the Internal Revenue Code, which
expressly and automatically imported the content of various g uidelines (including the HRSA
Guidelines), including new content after a specified period of time. Indeed, in the same
provision, Congress also imported b y reference clinical recommendations of the United States
Preventive Services Task Force and the Advisory Committee on Immunization Practices of the
Centers for Disease Control and Prev ention. Id. The clinical recommendations of these entities
are not generally required to be subject to notice and comment, and there is no suggestion that Congress intended otherwise here for any of the referenced recommendations.28
For the above r easons, plaintiffs’ AP A claims—Counts VI and VII—should be
dismissed, or summary judgment should be entered in the government’s favor on those claims.
II. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC “The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 3 47, 373 (1976). Even assuming arguendo that same rule applies to a statutory claim under RF RA, plaintiffs have not shown that the challenged regulations violate their First Amendment or RFRA rights, so the re has been no “loss of First Amendment freedoms” for any period of time. Id. In this respect, the merits and irreparable injury prongs of the preliminary injunction analysis merge together, and plaintiffs cannot show irrepar able injury without also showing a likelihood of success on the merits, which they cannot do. See supra note 6.
28 In contrast, other provisions of the ACA use clear language when referring to the promulgation of substantive rules. See, e.g., 42 U.S.C. § 300gg-1(b)(3) (“The Secretary shall promulgate regulations with respect to enrollment periods under paragraphs (1) and (2).”); id. § 300gg-14(b) (“The Secretary shall promulgate regulations to define the dependents to which coverage shall be made available under subsection (a).”); id. § 300gg-17(d) (“Not later than 2 years after March 23, 2010, the Secretary shall promulgate regulations that provide criteria for determining whether a reimbursement structure is described in subsection (a).”). That Congress explicitly did not use such language here indicates that it did not intend the HRSA Guidelines to be “rules” within the meaning of the APA.
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Furthermore, as to four plaintiffs—MQA, St. Mary Villa, Con gregation, and Aquinas College, their purported urgent need for injunctive relief suffers from an additional, fatal flaw: The harm that they allege is in no way imminent. See Chacon v. Granata, 515 F.2d 922, 925 (5th Cir. 1975) (“An injunction is appropriate only if the anticipated inj ury is imminent and irreparable.”) (emphasis added); Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 615, 618 (3d Cir. 1969) (“The dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat[.]” (emphasis added)). Because defendants have extended the enforcement safe harbor to encompass plan years that begin between August 1 and December 31, 2013, the challenged regulations will not be en forced by defendants against MQA and St. Mary Villa until August 1, 2014, and against Congregation and Aquinas College until S eptember 1, 2014. There is ample time between now and then for the parties to litigate the merits of these plaintiffs’ claims in the normal course of motions practice, without the “extraordinary relief” of a preliminary injunction. Winter, 555 U.S. at 24. The Court should deny these plaintiffs’ motion for this additional reason alone.
As to the three remaining plaintiffs with a January 1 pla n year—i.e., the Diocese, Catholic Charities, and Camp Marymount, see Compl. ¶¶ 43-44, 48—their claim to irreparable harm is undermined b y their own delay in filing suit. Although the challenged regulations were published in the F ederal Register in e arly July, 78 Fed. Reg. 39,870, th ese plaintiffs waited roughly five months—until late November, just several weeks before their January 1 plan year begins—to file suit a nd seek the extraordinary remedy of preliminary injunctive relief. Such a substantial and unex plained delay seriously undermines these plaintiffs’ claim of irreparabl e harm. See, e.g., Autocam, 2012 W L 6845677, at *9 (noting , in a challenge to the prior contraceptive-coverage regulations, that “the immediacy of the dilemma Plaintiffs face is in no small part of their own making,” because plaintiffs filed suit “less than t wo months before th e deadline Plaintiffs say is critical”); Fund for Ani mals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975) (denying preliminary injunctive relief and noting that a delay of forty-four days after final regulations were issued was “inexcusable”).
45
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Turning to the final two preliminary injunction factors—the balance of equities and the public interest—“there is inherent harm to an agency in preventing it from enforcing regulations that Congress found it in the public interest to direct that ag ency to develop and enforc e.” Cornish v. Dudas , 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also Con nection Distrib. Co. v. Reno, 154 F .3d 281, 29 6 (6th Cir. 1998) (indic ating that granting an injunction against the enforcement of a like ly constitutional statute would harm the government). Enjoining the preventive services coverage regulations as to plaintiffs would undermine the g overnment’s ability to achieve Congress’s goals of improving the health of women and newborn children and equalizing the coverage of preventive services for women and men.29
It would also be contr ary to the public inte rest to den y plaintiffs’ employees (and t heir families) the benefits of the preventive services coverage regulations. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982) (“[C]ourts . . . should pay particular regard for the public consequences in employing the ex traordinary remedy of injunction.”). Man y of the plaintiffs’ employees may not share plaintiffs’ objections to the challenged re gulations. Those employees should not b e deprived of the benefits of payments provided by a third party that is not their employer for the full range of FDA-approved contraceptive services, as prescribed by a health care provid er, on the basis of their em ployers’ religious objection. Man y women do not use contraceptive services because they are not covered by their health plan or requi re costly copayments, coinsurance, or deductibles. IOM REP. at 19-20, 109, AR at 317-18, 407; 77 F ed. Reg. at 8727, AR at 21 4; 78 F ed. Reg. at 39,887, AR at 19. As a result, in man y cases, both women and developing fetuses suffer negative health consequences. See IOM REP. at 20, 102-04,
29 Plaintiffs note that defendants consented to preliminary injunctions in a few cases involving for-profit companies, see Pls.’ Mem. at 44, but defendants’ consent in those cases was nothing more than an effort to conserve judicial and governmental resources. Those cases were in the Seventh, Eighth, and D.C. Circuits, and they were filed after motions panels in those circuits had preliminary enjoined the regulations pending appeal in similar cases. See Mersino, 2013 WL 3546702 at *16 (“[W]here the government has conceded to injunctive relief, it appears that it has generally done so in jurisdictions where the legal landscape has been set against them, and continuing to litigate the claims in those jurisdictions would be a waste of both judicial and client resources.”). The government continues to oppose preliminary injunctions in other circuits regarding for-profit plaintiffs, and opposes in all circuits injunctive relief sought by non-profit plaintiffs like plaintiffs here.
46
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AR at 318, 400-02; 77 F ed. Reg. at 8728, AR at 215. And women are put at a competitive disadvantage due to their lost productivity and the disproportionate financial burden they bear in regard to p reventive health services. 155 Cong. Rec. S12106-02, S12114 (dail y ed. Dec. 2, 2009); see also IOM REP. at 20, AR at 318.
Enjoining defendants from enforcing, as to pla intiffs, the preventive services coverage regulations—the purpose of which is to eliminat e these burdens, 75 Fed. Reg. at 41,733, AR at 233; see also 77 Fed. Reg. at 8728, AR at 215—would thus inflict a very real harm on the public and, in particular, a read ily identifiable group of individuals. See Stormans, Inc. v. Sel ecky, 586 F.3d 1109, 1139 (9th Cir. 2009) (va cating preliminary injunction ente red by district cou rt and noting that “[t]here is a general public interest in ensuring that all citizens have timely access to lawfully prescribed medications”). Plaintiffs employ over 800 people, ETBU/HBU Am. Compl. ¶¶ 34, 48; Westminster Am. Compl. ¶ 25, and the scope of their health plans additionally include those employees’ covered dependents. Accordingly, even assuming plaintiffs were likely to succeed on the merits (which they are not for the reasons explained above), any potential harm to plaintiffs resulting from their o ffense at a third party providing payment for contraceptive services at no cost to, a nd with no administra tion by, plaintiffs’ would be outweighed by the significant harm an injunction would cause these employees and their families.
CONCLUSION For the foregoing reasons, defendants respectfully ask t hat the Court deny plaintiffs’ motion for a preliminary injunction, and grant defendants’ motion t o dismiss or, in the alternative, for summary judgment on all of plaintiffs’ claims.

Dated: December 11, 2013

Respectfully Submitted,
STUART F. DELERY Assistant Attorney General
KATHLEEN R. HARTNETT Deputy Assistant Attorney General

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DAVID RIVERA Acting United States Attorney JENNIFER RICKETTS Director, Federal Programs Branch SHEILA M. LIEBER Deputy Director /s/ Jacek Pruski JACEK PRUSKI California Bar No. 277211 Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, D.C. 20530 Tel: (202) 616-2035 Fax: (202) 616-8470 jacek.pruski@usdoj.gov Attorneys for Defendants
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CERTIFICATE OF SERVICE I hereby certify that on December 11, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Jacek Pruski JACEK PRUSKI
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

THE CATHOLIC DIOCESE OF NASHVILLE, et al. v.
KATHLEEN SEBELIUS, et al.

) ) ) ) No. 3:13-01303 ) JUDGE CAMPBELL ) )

MEMORANDUM

I. Introduction

Pending before the Court is the Plaintiffs’ Motion For Preliminary Injunction (Docket No.

14), the Defendants’ Response (Docket No. 41), and the Plaintiffs’ Reply (Docket No. 57).1 The

Court held a hearing on the Motion on December 23, 2013. For the reasons stated herein, the

Motion For Preliminary Injunction is DENIED.

II. Factual/Procedural Background

This action has been brought by The Catholic Diocese of Nashville (“The Diocese”);

Catholic Charities of Tennessee (“Catholic Charities”); Camp Marymount; Mary, Queen of

Angels (“MQA”); St. Mary Villa; Dominican Sisters of St. Cecilia Congregation (“The

Congregation”); and Aquinas College to challenge certain regulations implementing the Patient

Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010).

(Complaint, Docket No. 1). Plaintiffs allege that they are Catholic religious entities that provide

a wide range of spiritual, educational and social services to individuals in Middle Tennessee and

1 The American Civil Liberties Union and American Civil Liberties Union of Tennessee have also filed an amicus brief opposing the Plaintiffs’ position. (Docket No. 51). Also pending is Defendants’ Motion To Dismiss, Or Alternatively, For Summary Judgment (Docket No. 38), which is not fully briefed for decision.

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beyond, regardless of whether those individuals are Catholic. (Id.) Plaintiffs allege that they uphold and follow the teachings of the Catholic Church. (Id.) Plaintiffs contend that their sincerely-held religious beliefs dictate that it is unacceptable to provide, pay for, and/or facilitate access to abortion2, sterilization, or the use of contraception. (Id.) Plaintiffs claim that the ACA and its implementing regulations require them to violate those teachings. (Id.) Plaintiffs base their challenge on the Religious Freedom Restoration Act (“RFRA”); the First Amendment Free Exercise Clause, Free Speech Clause, Establishment Clause, and Religion Clauses; and the Administrative Procedures Act (“APA”). (Id.) Named as Defendants are Kathleen Sebelius, Secretary of the U.S. Department of Health and Human Services; Thomas Perez, Secretary of the U.S. Department of Labor; Jacob J. Lew, Secretary of the U.S. Department of Treasury; U.S. Department of Health and Human Services; U.S. Department of Labor; and U.S. Department of Treasury. (Id.)
Plaintiffs seek to enjoin Defendants from “application or enforcement against Plaintiffs, their employee health plans, participants in their employee health plans, or their third party administrators or insurers of the requirement under 45 C.F.R. § 147.130(a)(1)(iv), corresponding Guidelines, and corresponding press releases that provide coverage for FDA-approved
2 Defendants strongly dispute Plaintiffs’ characterization of the contraception services in the ACA as including “abortion.” See Administrative Record, at 320 (“. . . abortion services were considered to be outside of the project’s scope, given the restrictions contained in the ACA.”). As Plaintiffs allege in their Complaint, the “Weldon Amendment” to the Consolidated Appropriations Act of 2012 denies funds to any federal, state or local agency, program, or government that “subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Pub. L. No. 112-74, § 507(d)(1), 125 Stat. 786, 1111 (Dec. 23, 2011). Because the Plaintiffs do not raise violation of the Weldon Amendment in their preliminary injunction briefs, the Court considers the argument waived for purposes of the preliminary injunction motion.
2
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contraceptive methods, abortion-inducing drugs, sterilization procedures, and patient education and counseling, including the substantive requirement imposed in 42 U.S.C. § 300gg–13(a)(4).” (Motion For Preliminary Injunction, at 2 (Docket No. 14)).
The ACA, enacted on March 23, 2010, provides in pertinent part as follows: (a) 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–
* * * (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.
42 U.S.C.A. § 300gg-13(a)(4). On August 1, 2011, the Health Resources and Services Administration (“HRSA”) issued
interim final regulations that outlined the preventive care and services for women required by the ACA, and created an exemption for certain religious employers. 76 Fed. Reg. 46621-01 (Aug. 3, 2011). The preventive care and services identified in the guidelines include well-woman visits, breastfeeding support, domestic violence screening, and “[a]ll Food and Drug Administration [“FDA”] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Administrative Record (“A.R.”), at 283284. FDA-approved contraceptive methods include condoms, spermicides, oral contraceptives, intrauterine devices, and emergency contraceptives. A.R., at 402-03.
The interim final regulations defined “religious employer” as one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its
3
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religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. 76 Fed. Reg., at 46623. In final rules issued on February 15, 2012, the definition of “religious employer” was maintained, but a temporary enforcement “safe harbor” was created for non-grandfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage. 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012). During the safe-harbor period, the government developed and proposed changes to the final regulations in an effort to “provid[e] contraceptive coverage without cost-sharing to individuals who want it and accommodat[e] non-exempted, non-profit organizations’ religious objections to covering contraceptive services. . . “ 77 Fed. Reg. at 8727. These final regulations, challenged by Plaintiffs here, were promulgated on July 2, 2013. 78 Fed. Reg. 39870-01 (July 2, 2013); 45 C.F.R. § 147.131; 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2590.715-2713A.
Under the final rules, a “religious employer” is exempt from providing contraceptive coverage, and is defined as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a). That provision refers to “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3)(A)(i), (iii). The other criteria set forth in the interim regulations were not retained. This exemption for religious employers became effective on August 1, 2013. 78 Fed. Reg., at 39871.
In addition, the final rules provide that a group health insurer must expressly exclude contraceptive coverage from the group health plan coverage of “eligible organizations.” 45
4
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C.F.R. § 147.131(b), (c). An “eligible organization” is an organization that satisfies all of the following requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974. 45 C.F.R. § 147.131(b). A group health plan that receives such a self-certification must: (1) “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan;” and (2) “[p]rovide separate payments for any contraceptive services required to be covered . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan.” 45 C.F.R. § 147.131(c)(1), (2)(i). In addition, the insurer “may not impose any costsharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 C.F.R. § 147.131(c)(2)(ii). The insurer is also required to “segregate premium revenue collected from the
5
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eligible organization from the monies used to provide payments for contraceptive services.” Id.3 The regulation governing the treatment of “eligible organizations” is to become effective for plan years beginning on or after January 1, 2014. 78 Fed. Reg., at 39871.4 The exemption for “religious employers” became effective on August 1, 2013.
III. Preliminary Injunction Standard In determining whether to issue a temporary restraining order or a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, the Court is to consider: (1) whether the movant has shown a strong or substantial likelihood of success on the merits; (2) whether irreparable harm will result without an injunction; (3) whether issuance of an injunction will result in substantial harm to others; and (4) whether the public interest is advanced by the injunction. Autocam Corp. v. Sebelius, 730 F.3d 618, 624 (6th Cir. 2013); Michigan State AFLCIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).
IV. Analysis A. Likelihood of Success on the Merits
1. RFRA Under RFRA, government action 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
3 The insurer must provide plan participants and beneficiaries with “written notice of the availability of separate payments for contraceptive services” specifying that “the eligible organization does not administer or fund contraceptive benefits, but that the issuer provides separate payments for contraceptive services.” 45 C.F.R. § 147.131(d).
4 The Defendants indicate that the enforcement safe harbor has been extended such that Plaintiffs MQA and St. Mary Villa will not be subject to the regulations until August 1, 2014, and Plaintiffs Congregation and Aquinas College will not be subject to the regulations until September 1, 2014. (Docket No. 41, at 45).
6
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application of the burden: (1) is in furtherance of a “compelling governmental interest;” and (2)
is the “least restrictive means” of furthering that compelling governmental interest. 42 U.S.C. §
2000bb-1.5 See Autocam, 730 F.3d at 625. “Exercise of religion” includes “any exercise of
religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§
2000bb-2(4); 2000cc-5(7).
The Sixth Circuit recently explained the procedure for evaluating RFRA claims:
RFRA provides that ‘[a] person whose religious exercise has been burdened ... may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government,’ subject to the requirements of Article III standing. Id. § 2000bb–1(c). RFRA claims proceed in two steps. First, the plaintiff must make out a prima facie case by establishing Article III standing and showing that the law in question ‘would (1) substantially burden (2) a sincere (3) religious exercise.’ [Gonzales v.] O Centro Espirita, 546 U.S. at 428, 126 S.Ct. 1211. If the plaintiff makes out a prima facie case, it falls to the government to ‘demonstrate[ ] 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.’ Id. § 2000bb–1(b). The government carries the burdens of both production and persuasion when it seeks to justify a substantial burden on a sincere religious practice. Id. § 2000bb–2(3).
Autocam, 730 F.3d at 625.
The Supreme Court has described a “substantial burden” as one that “conditions receipt
of an important benefit upon conduct proscribed by a religious faith” or “denies such a benefit
because of conduct mandated by religious belief, thereby putting substantial pressure on an
adherent to modify his behavior and to violate his beliefs. . .” Thomas v. Review Bd. of Indiana
Employment Sec. Div., 450 U.S. 707, 717-18, 101 S. Ct. 1425, 1432, 67 L. Ed. 2d 624 (1981).
Plaintiffs argue that the regulations impose a substantial burden on their exercise of
5 Because RFRA claims are similar to First Amendment claims, “the likelihood of success on the merits often will be the determinative factor” in analyzing whether a preliminary injunction should issue. Autocam, 730 F.3d at 624.
7
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religion because they are required to: (1) trigger the facilitation of contraception services via self-
certification; (2) contract with an insurer who will provide contraception services; (3) provide
their insurer with the names of employees and dependents; and (4) sponsor a plan that will
provide contraception services to their employees and dependents. Plaintiffs strongly urge the
Court to adopt the decision of the District Court for the Western District of Pennsylvania in
Zubik v. Sebelius, __ F.Supp.2d ___, 2013 WL 6118696 (W.D. Penn. Nov. 21, 2013) where the court found a RFRA violation based on similar arguments.6
This Court is not persuaded by the reasoning of the Zubik decision. As for the Plaintiffs
that are entirely exempt from contraceptive coverage, The Diocese and The Congregation, the
regulations do not place any burden, much less a substantial one, on the exercise of their
religious beliefs.
As for the remaining Plaintiffs, the Court is not persuaded that the act of self-certification
“facilitates” the receipt of contraceptive services by their employees such that it imposes a
substantial burden on their religious beliefs. Such a “burden” is too attenuated and speculative to be substantial.7 The services to which the Plaintiffs object will only be provided in the event one
6 Plaintiffs have also filed copies of the decisions in Legatus, et al. v. Sebelius, et al., No. 12-12061 (E. D. Mich. Dec. 20, 2013), Reaching Souls Int’l, Inc., et al. v. Sebelius, et al., No. 13-1092 (W.D. Okla. Dec. 20, 2013), Archdiocese of New York, et al. v. Sebelius, et al., No. 1:12-cv-02542 (E.D.N.Y. Dec. 13, 2013), Geneva College, et al. v. Sebelius, et al., No. 12-0207 (W.D. Pa. Dec. 23, 2013), and Southern Nazarene University, et al. v. Sebelius, et al., No. CIV13-1015-F (W.D. Okla. Dec. 23, 2013) (Docket Nos. 59, 60, 62). The Defendants have filed copies of the decisions of Priests For Life v. U.S. Dep’t of Health & Human Servs., No. 1:13-cv01261-EGS (D.D.C. Dec. 19, 2013), University of Notre Dame v Sebelius, No. 3:13-cv-01276PPS-CAN (N.D. Ind. Dec. 20, 2013), and Roman Catholic Archbishop of Washington v. Sebelius, No. 1:13-cv-01441-ABJ (D.D.C. Dec. 20, 2013). (Docket Nos. 58, 61).
7 Although the Court accepts the Plaintiffs’ determination that self-certification is at odds with their sincerely-held religious beliefs, the determination of whether those beliefs are
8
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of their employees independently requests the services, and in the event such a request is made,
the regulation prohibits any costs of those services, directly or indirectly, to be imposed on the
Plaintiffs.8 In other words, Plaintiffs bear no costs for the services and nothing is provided unless
a third party employee independently requests the services from yet another third party – the
insurer. It is only the independent actions of third parties that result in anyone obtaining
contraceptive services. See Priests for Life, supra. Plaintiffs remain free to voice their opposition
to the use of contraception services, and to discourage their use. But Plaintiffs’ inability to
prevent others from acting in contravention of Plaintiffs’ religious beliefs does not constitute a
substantial burden on those beliefs. For these reasons, self-certification does not put substantial
pressure on the Plaintiffs to modify their behavior or violate their beliefs.
As for Plaintiffs’ other arguments, the Court is not persuaded that requiring insurers to
provide contraception services substantially burdens the Plaintiffs’ religious beliefs simply
“substantially burdened” by self-certification is an objective one that RFRA requires the courts to make. In that respect, the Court disagrees with the analysis in Zubik, 2013 WL 6118696, at *14, 24-27, where the court found a RFRA violation by relying on the plaintiffs’ testimony that selfcertification would substantially burden their religious beliefs. Cf. Mersino Mgmt. Co. v. Sebelius, 2013 WL 3546702 (E.D. Mich. July 11, 2013)(“As many courts have noted, permitting Plaintiffs to determine what constitutes ‘substantial’ and then insulating this proposition from challenge, impermissibly converts the ‘substantial burden’ requirement to an ‘any burden’ showing.”) In a more recent opinion, the District of Columbia District Court was similarly unpersuaded by the Zubik court’s analysis. Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 1:13-cv-01261-EGS (D.D.C. Dec. 19, 2013), slip op. at 24 n. 5 (Docket No. 581)(plaintiff cannot establish burden on exercise of religion is substantial “simply because he claims it to be so.”)
8 In that regard, the consequences of self-certification are not unlike an employee’s purchase of contraceptive services on his or her own, without any governmental involvement, by using a portion of the salary paid by Plaintiffs. The actions by any employee to obtain the disputed services are the proximate cause, or at a minimum the superseding cause, for them not the Plaintiffs’ actions. After all, if no employee requests contraceptive services, none are provided.
9
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because Plaintiffs have a contractual relationship with the insurers. And Plaintiffs have not shown that the act of providing a list of employees to their insurers is an additional obligation imposed by the regulations that substantially burdens their religious beliefs.9 Plaintiffs must give the names of their employees to the insurance company anyway to get them covered by any insurance.
The Court concludes that Plaintiffs have not shown a likelihood of success as to their RFRA claim.
2. Free Exercise Clause The Free Exercise Clause of the First Amendment prohibits Congress from making a law “respecting an establishment of religion, or prohibiting the free exercise thereof....” The protections of the Free Exercise Clause apply if a law “discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S. Ct. 2217, 2226, 124 L. Ed. 2d 472 (1993). In applying these protections, the Supreme Court has held that “a law that is neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice.” Id., at 531. A law that is not neutral and of general applicability “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Id., at 531-32.
9 Again, the Court disagrees with the Zubik court that providing employee names constitutes a substantial burden because it is analogous to providing a knife to a neighbor who seeks to use it to kill someone. 2013 WL 6118696, at 24-25. The flaw in the analogy is that it fails to account for all the independent actors involved. As discussed above, the names are provided to a third party insurer who only provides contraceptive services in the event another third party, the employee, requests those services.
10
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A law is not neutral if the object of the law “is to infringe upon or restrict practices because of their religious motivation.” Id., at 533. In determining the object of the law, the Court considers whether it is facially neutral. Id. A law that “refers to a religious practice without a secular meaning discernable from the language or context” is not facially neutral. Id. The Court also considers the intent expressed by the lawmakers in enacting the challenged legislation, and its operation. Id., at 534. In Lukumi, the Court determined that the city council’s stated intention in enacting ordinances prohibiting animal sacrifice was to target the Santeria religion, and that the practices of the Santeria religion was the only conduct prohibited by the ordinances. Id., at 534-35.
A law is not one of general applicability if it “in a selective manner impose burdens only on conduct motivated by religious belief.” Id., at 543. “The Free Exercise Clause ‘protect[s] religious observers against unequal treatment,’ . . . and inequality results when a legislature decides that the government interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.” Id., at 542-43. In Lukumi, the Court concluded that the city’s ordinances were not of general applicability because they pursued the city’s interests in protecting public health and preventing cruelty to animals only against conduct motivated by the religious beliefs of those practicing the Santeria religion. Id., at 543-46.
Plaintiffs argue that the regulations at issue here are not neutral and of general applicability because they offer many secular exemptions, and do not create an exemption for “religious employers like Plaintiffs,” and because they target Plaintiffs’ religious practice of refusing to provide or facilitate access to contraception. (Docket No. 11, at 33).
The record before this Court, however, indicates that the regulations requiring
11
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contraception services are neutral as they were not passed with the intent to target or burden any religious practices, but to advance the goals of safeguarding public health and ensuring that women have equal access to health care. See, e.g., 78 Fed. Reg., at 39872. The creation of an exemption for “religious employers” and of an accommodation for “eligible organizations” further evidences an intent, not to burden Plaintiffs’ religious beliefs, but to recognize and respect them.
The Court concludes that the regulations are also generally applicable. The exemptions for grandfathered plans and religious employers, and the accommodations for eligible organizations, do not undermine the regulations’ general applicability because, unlike the laws in Lukumi, they do not disfavor religion. See, e.g., Autocam Corp. v. Sebelius, 2012 WL 6845677, at *5 (W.D. Mich. Dec. 24, 2012), aff’d 730 F.3d 618 (6th Cir. 2013). See also Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008)(“General applicability does not mean absolute universality.”). Indeed, the “religious employers” exemption and the “eligible organizations” accommodation were created to recognize and respect Plaintiffs’ religious beliefs, not burden them. Unlike the laws at issue in Lukumi, the contraception services requirement cannot be described as creating a burden “society is prepared to impose upon [the Plaintiffs] but not upon itself.” Lukumi, 508 U.S. at 545-46.10
The Plaintiffs have not show a likelihood of success regarding their Free Exercise claim.
10 Plaintiffs also argue that the regulations are subject to strict scrutiny because they implicate the “hybrid rights” of religious believers by burdening both their rights of speech and association. In Kissinger v. Board of Trustees of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993), the Sixth Circuit rejected these so-called “hybrid claims” as illogical and as unreasonably relying on dicta in Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Thus, the Court concludes that Plaintiffs have not shown a likelihood of success on the merits as to such a claim.
12
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3. Free Speech Clause The Supreme Court has held that “freedom of speech prohibits the government from telling people what they must say.” Rumsfeld v. Forum For Academic and Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61, 126 S.Ct. 1297, 1308, 164 L.Ed.2d 156 (2006). The Court has applied this prohibition to a requirement that school children recite the Pledge of Allegiance and to salute the flag, West Virginia Bd. Of Ed. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed.2d 1628 (1943), and to a requirement that automobile owners in New Hampshire display the state motto – “Live Free or Die” – on their license plates. Wooley v. Maynard, 430 U.S. 705, 717, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). The Court has also applied this prohibition to situations in which the government forces one speaker to host or accommodate another speaker’s message. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 566, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995)(Court struck down requirement that parade, a unique form of expression, include a group whose message contravenes that intended by the organizer); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U.S. 1, 20-21, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986)(Court struck down requirement that utility company include the newsletter of a third party in its billing envelopes when it regularly included its own newsletter); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974)(Court struck down requirement that newspaper permit a political candidate a right to equal space to reply to newspaper’s criticism). On the other hand, in FAIR, supra, the Court held that a requirement that law schools receiving federal funds offer military recruiters the same access to its campus and students that it
13
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provides to nonmilitary recruiters did not unconstitutionally compel speech. In reaching its decision, the Court explained that the requirement “regulates conduct, not speech” and “neither limits what law schools may say nor requires them to say anything.” 547 U.S. at 60. The Court also rejected the argument that the law schools could be viewed as endorsing the views of the military. Id., at 64-65. The Court concluded that students would be able to appreciate the difference between speech a school sponsors and speech the school permits because it is legally required to do so. Id. Finally, the Court rejected the argument that the requirement regulates “symbolic speech,” like flag burning, as providing equal access to military recruiters is not “inherently expressive.” Id., at 65-67.
Plaintiffs argue that the regulations compel them to express views with which they do not agree in violation of the First Amendment. Plaintiffs contend that this compulsion occurs in two different ways – by requiring them to provide, pay for,11 and/or facilitate access to counseling relating to contraception services; and by requiring self-certification, which triggers an obligation on behalf of the insurer to provide contraception services.
The regulations at issue here do not resemble those condemned in the Court’s compelled speech cases because they do not require the Plaintiffs to speak the government’s message. The Plaintiffs remain free to convey to their employees and others their vehement objections to the use of contraceptive services, and nothing in the self-certification process restricts that freedom.
11 Plaintiffs’ argument that they are required to pay for or provide contraception services is not supported legally or factually. As explained above, the regulations do not require any of the Plaintiffs to provide or pay for contraception services. Indeed, the regulations clearly state that the insurance plans of “religious employers” are exempt from any requirement to provide contraception services, and the insurance plans of “eligible organizations” that self-certify are prohibited from imposing any direct or indirect cost for contraception services on the organization.
14
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As with the regulation at issue in FAIR, the self-certification requirement neither limits what the Plaintiffs may say nor requires them to say anything. Id. In that regard, the self-certification requirement regulates non-expressive conduct, not the Plaintiffs’ speech. See FAIR, 547 U.S. at 60. Indeed, the speech to which the Plaintiffs object is the speech of those who may provide counseling, which may or may not advocate the use of contraception services, to employees who may or may not seek such counseling. There is little likelihood the Plaintiffs will be viewed as endorsing the views of these third-parties.
Plaintiffs are unlikely to succeed on the merits as to their compelled speech claim. 4. Establishment Clause The Supreme Court has explained that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 1683, 72 L.Ed.2d 33 (1982). In Larson, the Court invalidated a Minnesota statute that imposed special registration requirements on any religious organization that solicited more than 50% of their funds from nonmembers. 456 U.S. at 231–33. The Court concluded that the statute discriminated against religions, like the Unification Church, that depend heavily on soliciting donations from the general public. Id., at 253-255. In Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994), the Court held that the creation of a special school district for an area including a religious enclave violated the Establishment Clause by allocating political power based on religious criterion. See also Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982)(Court struck down statute granting religious bodies veto power over liquor license applications on Establishment Clause grounds).
15
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On the other hand, in Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971), the Court upheld a regulation recognizing an exemption from military service only for those objecting to “all wars,” as opposed to those objecting only to a particular war, to an Establishment Clause challenge because it did not discriminate on the basis of religious affiliation or belief. See also Cutter v. Wilkinson, 544 U.S. 709, 723-24, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005)(Court upheld Religious Land Use and Institutionalized Persons Act (RLUIPA), which provides increased level of protection to prisoners’ religious rights, to Establishment challenge, pointing out that RLUIPA does not differentiate among bona fide faiths).
Plaintiffs argue that the “religious employer” exemption violates the Establishment Clause of the First Amendment by creating a government-favored category of religious employers over other types of religious groups; and by creating an excessive entanglement between government and religion.
The distinction in the regulations between “religious employers” and “eligible organizations,” however, applies equally to all religious denominations, and is based on the structure of the organization, not on its religious affiliation. The Plaintiffs have not shown that this distinction was intended to prefer, or results in a preference for, one denomination over another.
To the extent the Plaintiffs argue that the Establishment Clause prohibits distinctions between “houses of worship,” on the one hand, and non-profit religious ministries, such as church-affiliated schools, on the other, they have cited no persuasive authority to support such a theory. In the case cited by Plaintiffs, Colorado Christian Univ. v. Weaver, 534 F.3d 1245 (10th
16
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Cir. 2008) the Tenth Circuit struck down a Colorado law that provided scholarships to students attending any accredited state college – public or private, secular or religious – except those deemed “pervasively sectarian.” But the distinction in “types of institutions” made in the Colorado law was based on the nature of the organization’s religious beliefs and practices. The distinction challenged here is based on the organizations’s structure, and does not require any inquiry into the organization’s religious beliefs.
Plaintiffs also rely on Weaver, as well as the District of Columbia Circuit Court’s opinion in University of Great Falls v. National Labor Relations Board, 278 F.3d 1335 (D.C. Cir. 2002), in arguing that the regulations create an “excessive entanglement” between religion and government. In Univ. of Great Falls, the court rejected the NLRB’s test for applying the constitutional exemption for church-operated schools, which considered factors, such as the involvement of the religious institution in the daily operation of the school, the degree to which the school has a religious mission and curriculum, and whether religious criteria are used for the appointment and evaluation of faculty. 278 F.3d at 1339-40. The court concluded that such a test required an unconstitutional inquiry and entanglement into the religious mission of the school. Id, at 1342-43 (“Here too we have the NLRB tolling though the beliefs of the University, making determinations about its religious mission, and that mission’s centrality of the ‘primary purpose’ of the University.”) Instead, the court determined, the NLRB should consider only whether the educational institution: (a) holds itself out to students, faculty and community as providing a religious educational environment; (b) is organized as a nonprofit; and (c) affiliated with a recognized religious organization. Id., at 1343-44.
The ACA regulations’ definition of “religious employer” and “eligible organization” are
17
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not unlike the three-part test adopted by the Univ. of Great Falls court.12 Plaintiffs have not shown a likelihood of success on the merits regarding their Establishment Clause claim.
5. Religion Clauses Finally, Plaintiffs argue that the regulations violate the Religion Clauses of the First Amendment by interfering with matters of internal church governance. Plaintiffs contend that the regulation artificially splits the Catholic Church in two and prevents it from exercising supervisory authority over its constituents in a way that ensures compliance with Church teachings. By permitting employees of the Plaintiffs that are “eligible organizations” to access free contraception services, the Plaintiffs argue that the regulation interferes with the ability of the Catholic Church to ensure that their religious affiliates remain faithful to Church teaching. Plaintiffs rely on the Supreme Court’s decision in Hosanna–Tabor Evangelical Lutheran Church & School v. Equal Opportunity Commission, ___U.S. ___, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) where the Court adopted the “ministerial exception” to employment discrimination statutes. In reaching its decision, the Court explained that the “ministerial exception” was grounded in the First Amendment, and “precludes application of [employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.” 132 S.Ct. at 705. The Court concluded that “[r]equiring a church to accept or retain
12 In contending that the regulations’ definition of “religious employer” requires an unconstitutional inquiry into their bona fide religious status, the Plaintiffs rely on a 14-factor test applied by the United States Court of Federal Claims in determining whether an organization qualifies for tax-exempt church status under the Internal Revenue Code, 26 U.S.C. § 170(b)(1)(A)(i). Foundation of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009). Plaintiffs have not demonstrated, however, that this 14-factor test has been adopted as part of the ACA regulation defining “religious employer,” or that it has been applied to them or any other organization under the ACA. Under these circumstances, it is unnecessary and inappropriate for the Court to consider the constitutionality of the 14-factor test.
18
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an unwanted minister, or punishing a church for failing to do so. . . interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Id., at 706.
Unlike Hosanna-Tabor, the regulations at issue here do not purport to regulate Plaintiffs’ internal structure; their hiring, firing or management of employees; or their ability to express their views to employees about contraception services. Furthermore, the regulations do not require employees to seek contraception services, they merely provide that the employees will not be required to pay for such services. As pointed out above, these same employees may currently obtain contraception services, without any government involvement, though they must use their own funds to do so. Plaintiffs’ constitutionally-recognized right to their own internal governance is not implicated by the regulations.
Plaintiffs have not shown a likelihood of success on the merits as to their Religion Clauses claim.13 B. Other Factors for Injunctive Relief
As set forth above, the Court must also consider whether irreparable harm will result without an injunction; whether issuance of an injunction will result in substantial harm to others; and whether the public interest is advanced by the issuance of an injunction. Plaintiffs’ arguments regarding these factors rely heavily on their contention that they are likely to succeed on the merits in establishing a violation of their First Amendment rights. For the reasons described above, the Court finds little likelihood that the Plaintiffs will succeed on the merits.
13 Because the Plaintiffs have not raised the APA claim in their preliminary injunction briefs, the Court considers that claim waived for purposes of the preliminary injunctive motion.
19
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On the other hand, the Defendants argue that there is no urgent need for injunctive relief as four of the seven Plaintiffs will not be subject to the new regulation until August 1, 2014 at the earliest. As for the other three, the Defendants argue that they waited roughly five months to file suit after the challenged regulations appeared in the Federal Register. Defendants also argue that injunctive relief will undermine the government’s ability to achieve the goals underlying the enactment of the contraception services mandate, and consequently, will harm the third parties whom the legislation was designed to benefit.
Since the ACA does not violate the Plaintiffs’ rights, there is no irreparable harm to Plaintiffs, and the public interest will not be advanced by the issuance of an injunction. Because no injunction is being issued, whether the issuance of an injunction will result in substantial harm to others is moot. For these reasons, the Court concludes that the remaining three factors do not weigh in favor of the Plaintiffs.
V. Conclusion Weighing all these factors, the Court concludes that Plaintiffs have not established that a preliminary injunction is warranted. Accordingly, Plaintiffs’ Motion For Preliminary Injunction (Docket No. 14) is denied. It is so ORDERED.
_______________________________ TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE
20
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

THE CATHOLIC DIOCESE OF NASHVILLE, et al. v.
KATHLEEN SEBELIUS, et al.

) ) ) ) No. 3:13-01303 ) JUDGE CAMPBELL ) )

ORDER

Pending before the Court is the Plaintiffs’ Motion For Preliminary Injunction (Docket

No. 14), the Defendants’ Response (Docket No. 41), and the Plaintiffs’ Reply (Docket No. 57).

The Court held a hearing on the Motion on December 23, 2013. For the reasons set forth in the

accompanying Memorandum, the Motion For Preliminary Injunction is DENIED.

It is so ORDERED.

_______________________________ TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE

Case 3:13-cv-01303 Document 66 Filed 12/26/13 Page 1 of 1 PageID #: 1359

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

THE CATHOLIC DIOCESE OF NASHVILLE, et al.,
Plaintiffs, v.
KATHLEEN SEBELIUS, et al.,
Defendants.

Case No. 3:13-cv-01303 District Judge Todd J. Campbell Magistrate Judge E. Clifton Knowles

PLAINTIFFS’ NOTICE OF INTERLOCUTORY APPEAL
Notice is hereby given that all Plaintiffs in the above-captioned action hereby appeal to
the United States Court of Appeals for the Sixth Circuit from the memorandum and order of the
district court denying Plaintiffs’ motion for a preliminary injunction and entered in this action on
December 26, 2013, at docket entries 65 and 66. See 28 U.S.C. § 1292(a)(1).
Respectfully submitted, this the 26th day of December, 2013.
By: /s/ Matthew A. Kairis Matthew A. Kairis (Ohio Bar No. 55502)* Brandy H. Ranjan (Ohio Bar No. 86984)* Melissa D. Palmisciano (Ohio Bar No. 80027)* *admitted pro hac vice JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus, OH 43216 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 makairis@jonesday.com branjan@jonesday.com mpalmisciano@jonesday.com Counsel for Plaintiffs

Case 3:13-cv-01303 Document 67 Filed 12/26/13 Page 1 of 3 PageID #: 1360

L. Gino Marchetti, Jr. (Tenn. BPR No. 005562) Matthew C. Pietsch (Tenn. BPR No. 024659) Antonio J. Aguilar (Tenn. BPR No. 029743) TAYLOR, PIGUE, MARCHETTI & BLAIR, PLLC 2908 Poston Avenue Nashville, Tennessee 37203-1312 Telephone: (615) 320-3225 Facsimile: (615) 320-3244 marchetti-dc@tpmblaw.com Local Counsel for The Catholic Diocese of Nashville; Catholic Charities of Tennessee, Inc.; Camp Marymount, Inc.; Mary, Queen of Angels, Inc.; and St. Mary Villa, Inc. Robb S. Harvey (Tenn. BPR No. 11519) Lauran Sturm (Tenn. BPR No. 030828) WALLER LANSDEN DORTCH & DAVIS, LLP 511 Union Street, Suite 2700 Nashville, Tennessee 37219 Telephone: (615) 850-8856 robb.harvey@wallerlaw.com lauran.sturm@wallerlaw.com Local Counsel for St. Cecilia Congregation and Aquinas College
Case 3:13-cv-01303 Document 67 Filed 12/26/13 Page 2 of 3 PageID #: 1361

CERTIFICATE OF SERVICE I hereby certify that on December 26, 2013, I electronically filed the foregoing Plaintiffs’ Notice of Interlocutory Appeal with the Clerk of the United States District Court for the Middle District of Tennessee using the CM/ECF system, which will send notification of such filing to the following counsel of record: Jacek Pruski U.S. Department of Justice 20 Massachusetts Avenue NW Washington, DC 20530 (202) 616-2035 Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorney for Defendants
/s/ Matthew A. Kairis One of the Attorneys for Plaintiffs
Case 3:13-cv-01303 Document 67 Filed 12/26/13 Page 3 of 3 PageID #: 1362

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

THE CATHOLIC DIOCESE OF NASHVILLE, et al.,
Plaintiffs, v.
KATHLEEN SEBELIUS, et al.,
Defendants.

Case No. 3:13-cv-01303 District Judge Todd J. Campbell Magistrate Judge E. Clifton Knowles

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION PENDING APPEAL Pursuant to Rule 8(a)(1)(C) of the Federal Rules of Appellate Procedure, Plaintiffs
respectfully requests that the Court enter an injunction pending appeal. For all the reasons advanced in Plaintiffs’ original Motion for Preliminary Injunction (Doc. 14), Memorandum in Support (Doc. 26), Declarations (Docs. 15-22), and argument before the Court on December 23, 2013, Plaintiffs request preliminary injunctive relief pending appeal, without bond, enjoining Defendants from continuing to require Plaintiffs to provide coverage for contraceptives, abortion-inducing drugs, sterilization, and related counseling in their employee and student health plans.
A preliminary injunction is justified, as discussed in Plaintiffs’ accompanying Memorandum in Support, because (1) Plaintiffs are reasonably likely to succeed on the merits of their claims; (2) Plaintiffs are suffering a continuing, irreparable harm in the absence of preliminary relief that outweighs any harm the Government may suffer if the preliminary injunction is granted; (3) Plaintiffs have no adequate remedy at law; and (4) an injunction

Case 3:13-cv-01303 Document 68 Filed 12/26/13 Page 1 of 4 PageID #: 1363

furthers the public interest. Accordingly, Plaintiffs respectfully move this Court to issue a
preliminary injunction in the form of the attached Proposed Order.
Respectfully submitted, this the 26th day of December, 2013.
By: /s/ Matthew A. Kairis Matthew A. Kairis (Ohio Bar No. 55502)* Brandy H. Ranjan (Ohio Bar No. 86984)* Melissa D. Palmisciano (Ohio Bar No. 80027)* *admitted pro hac vice JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus, OH 43216 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 makairis@jonesday.com branjan@jonesday.com mpalmisciano@jonesday.com Counsel for Plaintiffs
L. Gino Marchetti, Jr. (Tenn. BPR No. 005562) Matthew C. Pietsch (Tenn. BPR No. 024659) Antonio J. Aguilar (Tenn. BPR No. 029743) TAYLOR, PIGUE, MARCHETTI & BLAIR, PLLC 2908 Poston Avenue Nashville, Tennessee 37203-1312 Telephone: (615) 320-3225 Facsimile: (615) 320-3244 marchetti-dc@tpmblaw.com Local Counsel for The Catholic Diocese of Nashville; Catholic Charities of Tennessee, Inc.; Camp Marymount, Inc.; Mary, Queen of Angels, Inc.; and St. Mary Villa, Inc.
Robb S. Harvey (Tenn. BPR No. 11519) Lauran Sturm (Tenn. BPR No. 030828) WALLER LANSDEN DORTCH & DAVIS, LLP 511 Union Street, Suite 2700 Nashville, Tennessee 37219 Telephone: (615) 850-8856 robb.harvey@wallerlaw.com
Case 3:13-cv-01303 Document 68 Filed 12/26/13 Page 2 of 4 PageID #: 1364

lauran.sturm@wallerlaw.com Local Counsel for St. Cecilia Congregation and Aquinas College
Case 3:13-cv-01303 Document 68 Filed 12/26/13 Page 3 of 4 PageID #: 1365

CERTIFICATE OF SERVICE I hereby certify that on December 26, 2013, I electronically filed the foregoing document with the Clerk of the United States District Court for the Middle District of Tennessee using the CM/ECF system, which will send notification of such filing to the following counsel of record: Jacek Pruski U.S. Department of Justice 20 Massachusetts Avenue NW Washington, DC 20530 (202) 616-2035 Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorney for Defendants
/s/ Matthew A. Kairis One of the Attorneys for Plaintiffs
Case 3:13-cv-01303 Document 68 Filed 12/26/13 Page 4 of 4 PageID #: 1366

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

THE CATHOLIC DIOCESE OF NASHVILLE, et al.,
Plaintiffs, v.
KATHLEEN SEBELIUS, et al.,
Defendants.

Case No. 3:13-cv-01303 District Judge Todd J. Campbell Magistrate Judge E. Clifton Knowles

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION PENDING APPEAL
A court should grant a preliminary injunction if, after considering four factors, it determines that the balance of equities favors such relief. See Am. Imaging Servs., Inc. v. EaglePicher Indus., Inc., 963 F.2d 855, 858-59 (6th Cir. 1992). The four factors that courts should consider are: A plaintiff seeking a preliminary injunction must demonstrate (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest is served. See Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001); Int’l Res., Inc. v. N.Y. Life Ins. Co., 950 F.2d 294, 302 (6th Cir. 1991). These factors are not “prerequisites [to be] satisfied” and merely “guide the discretion of the court.” Eagle-Picher, 963 F.2d at 859. See In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985) (“the four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met.”). In other words, “they are not meant to be rigid and unbending requirements,” because “[a] fixed legal standard is not the essence of equity jurisprudence.” Id. (quotation and citation omitted). Here, a

Case 3:13-cv-01303 Document 68-1 Filed 12/26/13 Page 1 of 4 PageID #: 1367

preliminary injunction is warranted because Plaintiffs meet all four factors for such interim relief
and the balance of harms clearly weighs in their favor.
Plaintiffs incorporate by reference here their arguments advanced in their Memorandum
in Support of Plaintiffs’ Motion for Preliminary Injunction (Doc. 26) and at oral argument on
December 23, 2013. For all those reasons, Plaintiffs respectfully request that the Court
adjudicate their motion for preliminary injunction pending appeal enjoining Defendants from any
application or enforcement of the Mandate against them, their health plans, participants in their
health plans, or their third party administrators or insurers.
Respectfully submitted, this the 26th day of December, 2013.
By: /s/ Matthew A. Kairis Matthew A. Kairis (Ohio Bar No. 55502)* Brandy H. Ranjan (Ohio Bar No. 86984)* Melissa D. Palmisciano (Ohio Bar No. 80027)* *admitted pro hac vice JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus, OH 43216 Telephone: (614) 469-3939 Facsimile: (614) 461-4198 makairis@jonesday.com branjan@jonesday.com mpalmisciano@jonesday.com Counsel for Plaintiffs
L. Gino Marchetti, Jr. (Tenn. BPR No. 005562) Matthew C. Pietsch (Tenn. BPR No. 024659) Antonio J. Aguilar (Tenn. BPR No. 029743) TAYLOR, PIGUE, MARCHETTI & BLAIR, PLLC 2908 Poston Avenue Nashville, Tennessee 37203-1312 Telephone: (615) 320-3225 Facsimile: (615) 320-3244 marchetti-dc@tpmblaw.com
Case 3:13-cv-01303 Document 68-1 Filed 12/26/13 Page 2 of 4 PageID #: 1368

Local Counsel for The Catholic Diocese of Nashville; Catholic Charities of Tennessee, Inc.; Camp Marymount, Inc.; Mary, Queen of Angels, Inc.; and St. Mary Villa, Inc. Robb S. Harvey (Tenn. BPR No. 11519) Lauran Sturm (Tenn. BPR No. 030828) WALLER LANSDEN DORTCH & DAVIS, LLP 511 Union Street, Suite 2700 Nashville, Tennessee 37219 Telephone: (615) 850-8856 robb.harvey@wallerlaw.com lauran.sturm@wallerlaw.com Local Counsel for St. Cecilia Congregation and Aquinas College
Case 3:13-cv-01303 Document 68-1 Filed 12/26/13 Page 3 of 4 PageID #: 1369

CERTIFICATE OF SERVICE I hereby certify that on December 26, 2013, I electronically filed the foregoing document with the Clerk of the United States District Court for the Middle District of Tennessee using the CM/ECF system, which will send notification of such filing to the following counsel of record: Jacek Pruski U.S. Department of Justice 20 Massachusetts Avenue NW Washington, DC 20530 (202) 616-2035 Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorney for Defendants
/s/ Matthew A. Kairis One of the Attorneys for Plaintiffs
Case 3:13-cv-01303 Document 68-1 Filed 12/26/13 Page 4 of 4 PageID #: 1370

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

THE CATHOLIC DIOCESE OF NASHVILLE, et al.,
Plaintiffs, v.
KATHLEEN SEBELIUS, et al.,
Defendants.

Civil Action No.: 3:13-cv-01303 Electronically Filed

ORDER Plaintiffs moved for a preliminary injunction pending appeal to enjoin Defendants from applying and enforcing 45 C.F.R. § 147.130(a)(1)(iv) and any related fines or penalties to Plaintiffs, their employee and student health plans, and their third party administrator and insurer. The Court HEREBY FINDS as follows. 1. Plaintiffs are likely to succeed on the merits of their claims that the imposition of 45 C.F.R. § 147.130(a)(1)(iv) on them violates the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., and the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment. 2. Plaintiffs will suffer irreparable harm in the absence of the preliminary injunctive relief they request. 3. There will be no substantial harm to others, including Defendants, from granting the preliminary injunction. 4. Granting preliminary injunctive relief is in the public interest.

Case 3:13-cv-01303 Document 68-2 Filed 12/26/13 Page 1 of 2 PageID #: 1371

Further, the Court HEREBY ORDERS that Defendants are ENJOINED FROM any application or enforcement against Plaintiffs or their employee or student healthcare plans or their third party administrator of the requirement under 45 C.F.R. § 147.130(a)(1)(iv), corresponding Guidelines, and corresponding press releases that Plaintiffs provide coverage for FDA-approved contraceptive methods, abortion-inducing drugs, sterilization procedures, and patient education and counseling, including the substantive requirement imposed in 42 U.S.C. § 300gg-13(a)(4).
The Court FURTHER ORDERS as follows: 1. Plaintiffs shall not be required to post bond.
BY THE COURT: _________________________________ United States District Judge
Case 3:13-cv-01303 Document 68-2 Filed 12/26/13 Page 2 of 2 PageID #: 1372

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

THE CATHOLIC DIOCESE OF NASHVILLE, et al. v.
KATHLEEN SEBELIUS, et al.

) ) ) ) No. 3:13-01303 ) JUDGE CAMPBELL ) )

ORDER

Pending before the Court are the Plaintiffs’ Motion For Preliminary Injunction Pending

Appeal (Docket No. 68), and the Defendants’ Opposition (Docket No. 69). For the reasons set

forth in the Court’s Memorandum and Order entered December 26, 2013 (Docket Nos. 65, 66),

the Motion is DENIED.

It is so ORDERED.

_______________________________ TODD J. CAMPBELL UNITED STATES DISTRICT JUDGE

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0121p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

MICHIGAN CATHOLIC CONFERENCE and CATHOLIC ┐

FAMILY SERVICES D/B/A CATHOLIC CHARITIES │

DIOCESE OF KALAMAZOO (13-2723); THE CATHOLIC │

DIOCESE OF NASHVILLE, CATHOLIC CHARITIES OF │

TENNESSEE, INC., CAMP MARYMOUNT, INC., MARY, QUEEN OF ANGELS, INC., ST. MARY VILLA, INC.,

││>

DOMINICAN SISTERS OF ST. CECILIA │

CONGREGATION, and AQUINAS COLLEGE (13-6640), │

Nos. 13-2723/6640

Plaintiffs-Appellants, │ │

v.

│ │

│

SYLVIA MATTHEWS BURWELL, Secretary of the │

United States Department of Health and Human │

Services; THOMAS E. PEREZ, Secretary of the United │

States Department of Labor; JACOB J. LEW, Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,

│ │ │ │ │ │ │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids;
No. 1:13-cv-01247—Gordon J. Quist, District Judge.

and

Appeal from the United States District Court for the Middle District of Tennessee at Nashville;
No. 3:13-cv-01303—Todd J. Campbell, District Judge.

Argued: May 8, 2014

Decided and Filed: June 11, 2014

1

Nos. 13-2723/6640 Mich. Catholic Conf. et al. v. Burwell et al.

Page 2

Before: MOORE and ROGERS, Circuit Judges; NIXON, District Judge.*
_________________
COUNSEL
ARGUED: Matthew A. Kairis, JONES DAY, Columbus, Ohio, for Appellants. Adam C. Jed, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Matthew A. Kairis, Melissa Dunlap Palmisciano, Neil Vakharia, JONES DAY, Columbus, Ohio, for Appellants. Adam C. Jed, Mark B. Stern, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Charles E. Davidow, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Washington, D.C., Daniel Mach, Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C., Ayesha N. Khan, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Amici Curiae.
_________________

OPINION _________________

KAREN NELSON MOORE, Circuit Judge. The plaintiffs-appellants in this consolidated appeal are non-profit entities affiliated with the Catholic Church who have religious objections to certain preventive care standards under the Patient Protection and Affordable Care Act. Specifically, the appellants object to the requirement that their employer-based health insurance plans cover all Food and Drug Administration-approved contraception, sterilization methods, and counseling. All of the appellants are eligible for either an exemption from the requirement or an accommodation to the requirement, through which the entities will not pay for the contraceptive products and services and the coverage will be independently administered by an insurance issuer or third-party administrator. Nonetheless, in their complaints filed in the District Courts for the Middle District of Tennessee and Western District of Michigan, the appellants alleged that the contraceptive-coverage requirement violated the Religious Freedom Restoration Act; the Free Speech, Free Exercise, and Establishment Clauses of the First Amendment; and the Administrative Procedure Act. Both district courts denied the appellants’ motions for a

*The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by designation.

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preliminary injunction. We AFFIRM the denials of preliminary injunctions to all appellants on all claims.

A. Factual Background

I. BACKGROUND

The appellants allege that they are Catholic entities that provide “spiritual, educational, social, and financial services to members of their communities, Catholic and non-Catholic alike.” MCC R. 1 (MCC Compl. at ¶ 1) (Page ID #2); CDN R. 1 (CDN Compl. at ¶ 2) (Page ID #2).1

All appellants currently provide health plans to their employees. Michigan Catholic Conference (“MCC”) offers a self-insured group health plan that is “administered by separate third party administrators, 2 Blue Cross Blue Shield of Michigan and Express Scripts.” MCC R. 1 (Compl. at ¶ 41) (Page ID #13). Catholic Charities of Kalamazoo is a “Covered Unit[]” whose employees may participate in the plan that MCC offers its employees. MCC R. 1 (Compl. at ¶¶ 41, 50–51) (Page ID #13, 15). The remaining appellants—the Catholic Diocese of Nashville (“CDN”);3 Catholic Charities of Tennessee, Inc. (“Catholic Charities of Tennessee”); Camp Marymount, Inc. (“Camp Marymount”); Mary, Queen of Angels, Inc. (“MQA”); St. Mary Villa, Inc. (“St. Mary Villa”); Aquinas College; and Dominican Sisters of St. Cecilia Congregation (“St. Cecilia Congregation”)—offer fully-insured group health plans.4 CDN R. 1 (Compl. at ¶¶ 43, 61, 71, 79, 80, 107, 129) (Page ID #13, 17, 19, 20, 25, 30).

1MCC R. refers to documents in Michigan Catholic Confer ence et al. v. Burwell et al. , No. 13-2723, and CDN R. refers to documents in Catholic Diocese of Nashville et al. v. Burwell et al., No. 13-6640.
2“A self-insured plan is one in which benefits are paid from contributions supplied by the employer without the assistance of outside insurance.” 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1 (3d ed. 2013). “An employer is said to have a ‘self-insured’ plan if [the employer] bears the financial risk of paying claims.” Government Br. at 7 n.1. Many companies that offer self-insured plans hire an insurance company or other outside entity, referred to as a third-party administrator, “to administer their plans, performing functions such as developing networks of providers, negotiating payment rates, and processing claims.” Id.
3CDN offers its employees a choice including a preferred provider option (“PPO plan”) and a highdeductible option. CDN R. 1 (Compl. at ¶ 43) (Page ID #13). The PPO plan meets the definition of a “grandfathered plan” under the ACA; thus, at this time, that plan is exempt from the contraceptive-coverage requirement. CDN R. 1 (Compl. at ¶ 46) (Page ID #13).
4“An insured plan, also known as a fully insured plan, is one in which insurance is purchased from a regulated insurance company.” 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1 (3d ed. 2013).

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MCC, CDN, and St. Cecilia Congregation allege that they are eligible for the total exemption from the contraceptive-coverage requirement for “religious employers,” meaning that their health plans need not provide contraceptive coverage. MCC R. 1 (Compl. at ¶ 9) (Page ID #4); CDN R. 1 (Compl. at ¶ 14) (Page ID #7). The remaining appellants allege that they are eligible for the accommodation for certain religiously affiliated non-profits. MCC R. 1 (Compl. at ¶ 11) (Page ID #5); CDN R. 1 (Compl. at ¶ 10) (Page ID #5).

Regulatory Background
The enactment of the Patient Protection and Affordable Care Act (“ACA”) in 2010 established new minimum standards requiring employer-based group health plans and health insurance issuers to cover certain services without cost-sharing through a deductible or other payment by the plan participant or beneficiary. 42 U.S.C. § 300gg-13. The term “group health plan” is broadly defined to include both insured group health plans and self-insured group health plans: “[t]he term ‘group health plan’ means an employee welfare benefit plan . . . to the extent that the plan provides medical care (as defined in paragraph (2)) and including items and services paid for as medical care) to employees or their dependents (as defined under the terms of the plan) directly or through insurance, reimbursement, or otherwise.” 42 U.S.C. § 300gg-91(a)(1). Congressional hearings emphasized the importance of coverage without cost-sharing for women’s specific healthcare needs because “women have different health needs than men, and these needs often generate additional costs.” 155 Cong. Rec. 29049, 29070 (Dec. 2, 2009) (statement of Sen. Feinstein). “Women of childbearing age spent 68 percent more in out-ofpocket health care costs than men.” Id. Additionally, the legislative debates recognized that medical costs disproportionately discourage women from seeking treatment: “[w]omen are more likely than men to neglect care or treatment because of cost.” 155 Cong. Rec. S11985, S11987 (daily ed. Nov. 30. 2009) (statement of Sen. Mikulski). The enacted law thus required coverage for, “with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(4); see also Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under the Patient Protection and Affordable Care Act,

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77 Fed. Reg. 8725-01, 8725 (Feb. 15, 2012) (to be codified at 29 C.F.R. pt. 2590; 45 C.F.R. pt. 147).
For assistance in developing the guidelines for covered “preventive care and screenings,” id., the Health Resources and Services Administration (“HRSA”) asked the Institute of Medicine (“IOM”) to bring together a committee to “conduct a review of effective preventive services to ensure women’s health and well-being.” IOM, Clinical Preventive Services for Women: Closing the Gaps (“Closing the Gaps” ) (2011), 1.5 “The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public.” Id. at iv. The members of the Committee on Preventive Services for Women (“Committee”) included “specialists in disease prevention, women’s health issues, adolescent health issues, and evidencebased guidelines.” Id. at 2. The Committee recommended preventive measures that “met the following criteria:
● The condition to be prevented affects a broad population; ● The condition to be prevented has a large potential impact on health and
well-being; and ● The quality and strength of the evidence is supportive.
Id. at 8. The Committee made eight recommendations6 for preventive services for women, including coverage for “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10; see also 77 Fed. Reg. at 8725. This recommendation was based on the Committee’s concern about the high rate of unintended pregnancy in the United States; forty-nine percent of pregnancies in 2001 “were unintended—defined as unwanted or mistimed at the time of conception,” a rate much higher than comparable developed countries. Closing the Gaps at 102. The rate of unintended pregnancy “is more likely among women who are aged 18 to 24 years and unmarried, who have a low income, who are not high school graduates, and who are members of a racial or ethnic minority group.” Id. The Committee

5The report may be read online for free at: http://www.iom.edu/Reports/2011/Clinical-PreventiveServices-for-Women-Closing-the-Gaps.aspx.
6One of the sixteen members of the Committee, Anthony Lo Sasso, dissented from the report.

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concluded that contraceptive coverage would greatly decrease the risk of unwanted pregnancies, adverse pregnancy outcomes, and other negative health consequences, and significantly reduce women’s medical costs. Id. at 102–07. The regulations promulgated by the agencies implementing the ACA required group health plans and insurance issuers offering group or individual health insurance coverage to provide coverage without cost-sharing for preventive care and screenings provided for in guidelines supported by the HRSA. See 26 C.F.R. § 54.9815-2713A (Tax); 29 C.F.R. § 2590.715-2713A (Labor); 45 C.F.R. § 147.131 (Health and Human Services).7
The regulations provide for a religious-employer exemption from the contraceptivecoverage requirement and an accommodation for certain non-profits that do not qualify for the exemption but that object to contraceptive coverage on religious grounds. The government first developed the religious-employer exemption, under which HRSA is authorized to “establish an exemption . . . with respect to a group health plan established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer) with respect to any requirement to cover contraceptive services under such guidelines.” 45 C.F.R. § 147.131(a). A “religious employer” is defined as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a); see 26 U.S.C. §§ 6033(a)(3)(A)(i), (iii) (referring to “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.”).
Based on objections that the religious-employer exemption as borrowed from the Tax Code was drawn too narrowly, the government developed a special accommodation for certain non-profits. The accommodation was intended to “meet two goals—providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non-exempted, non-profit organizations’ religious objections to covering contraceptive services.” 77 Fed. Reg.

7The Department of Treasury, Department of Labor, and Department of Health and Human Services promulgated identical regulations regarding the framework. See 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2590.7152713A; 45 C.F.R. § 147.131. For the sake of simplicity, we cite only the Department of Labor regulations.

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at 8727. The final regulations permitted “eligible organization[s]” to obtain the accommodation
if the organization “satisfies all of the following requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the
Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request[.]
45 C.F.R. § 147.131(b).
The process by which an organization obtains the exemption and the accommodation will
be discussed as relevant to the appellants’ claims.

B. Procedural History
MCC and Catholic Charities of Kalamazoo (together, “MCC plaintiffs”) filed suit in the District Court for the Western District of Michigan on November 14, 2013. CDN, Catholic Charities of Tennessee, Camp Marymount, MQA, St. Mary Villa, St. Cecilia Congregation, and Aquinas College (together, “CDN plaintiffs”) filed suit in the District Court for the Middle District of Tennessee on November 22, 2013. Both sets of plaintiffs alleged that the contraceptive-coverage requirement violated the Religious Freedom Restoration Act; the Free Exercise, Free Speech, and Establishment Clauses of the First Amendment, and the Administrative Procedure Act. In November 2013, the plaintiffs moved for preliminary injunctions in their respective district courts. The District Court for the Western District of Michigan denied a preliminary injunction on all claims because the plaintiffs had not shown a likelihood of success on the merits of their claims. Michigan Catholic Conf erence v. Sebelius No. 1:13-CV-1247, 2013 WL 6838707, at *13 (W.D. Mich. Dec. 27, 2013). The District Court for the Middle District of Tennessee held that the plaintiffs waived their claims under the Administrative Procedure Act, and denied a preliminary injunction on all other claims because the plaintiffs had not shown a likelihood of success on the merits of their claims. Catholic

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Diocese of Nashville v. Sebelius , No. 3:13-01303, 2013 WL 6834375, at *4–10 (M.D. Tenn. Dec. 26, 2013).
The appellants now appeal the denials of their motions for a preliminary injunction.

A. Standard of Review

II. ANALYSIS

As we recently stated in a unanimous en banc decision, there are:

four factors [the district court] must balance when considering a motion for preliminary injunction: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction. When a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits often will be the determinative factor. Whether the movant is likely to succeed on the merits is a question of law we review de novo. We review for abuse of discretion, however, the district court’s ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief. This standard is deferential, but the court may reverse the district court if it improperly applied the governing law, used an erroneous legal standard, or relied upon clearly erroneous findings of fact.

City of Pontiac Retired Emps. Ass’n v. Schimme l, No. 12-2087, 2014 WL 1758913, at *2 (6th Cir. May 5, 2014) (en banc) (internal quotation marks and citations omitted). “The party seeking a preliminary injunction bears a burden of justifying such relief, including showing irreparable harm and likelihood of success.” McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012).

B. Religious Freedom Restoration Act
The appellants argue that the contraceptive-coverage requirement violates the Religious Freedom Restoration Act (“RFRA”) because it imposes a substantial burden on their exercise of religion by forcing them to provide, pay for, and/or facilitate access to insurance coverage for contraception, and the contraceptive-coverage requirement is not the least restrictive means to further a compelling government interest. Both district courts concluded that the contraceptivecoverage requirement does not impose a substantial burden on the exercise of religion because the plaintiffs were eligible for either the exemption or the accommodation from the requirement.

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To analyze properly the appellants’ claim under RFRA, we begin with the genesis of the

law. In Sherbert v. Verner , 374 U.S. 398 (1963), the Court held that if a state law survived

constitutional challenge, it would be “because any incidental burden on the free exercise of

appellant’s religion may be justified by a ‘compelling state interest in the regulation of a subject

within the State’s constitutional power to regulate . . . .” Id. at 403 (quoting NAACP v. Button , 371 U.S. 415, 438 (1963)). The Supreme Court rejected the compelling-interest test in

Employment Division, Depar tment of Human Resources of Oregon v. Smith (1990), stating that:

, 494 U.S. 872

The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is compelling—permitting him, by virtue of his beliefs, to become a law unto himself—contradicts both constitutional tradition and common sense.

Id. at 884–85 (quotation marks and internal citations omitted). In “direct response” to Employment Division v. Smith, Congress enacted RFRA. City of Boerne v. Flores, 521 U.S. 507, 512 (1997). RFRA’s stated purposes are:

(1) to restore the compelling interest test as set forth in Sherbert v. Verner , 374 U.S. 398 (1963) and Wisconsin v. Yoder , 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

42 U.S.C. § 2000bb(b). Under RFRA, the government may not “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government demonstrates that application of the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 8 42 U.S.C. §§ 2000bb-1(a), (b).

8As a preliminary matter, we note two questions that have not been raised by the parties in this case and that, because we conclude that the contraceptive-coverage requirement does not violate RFRA, we need not address. First, whether the appellants, all of whom are non-profit corporations, are “persons” capable of the “exercise of religion” within the meaning of RFRA. Second, whether RFRA applies to a later-enacted statute. RFRA contains

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We follow a two-step process for analyzing RFRA claims:
First, the plaintiff must make out a prima facie case by establishing Article III standing and showing that the law in question would (1) substantially burden (2) a sincere (3) religious exercise. If the plaintiff makes out a prima facie case, it falls to the government to demonstrate[ ] 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. The government carries the burdens of both production and persuasion when it seeks to justify a substantial burden on a sincere religious practice.
Autocam Corp. v. Sebelius , 730 F.3d 618, 625 (6th Cir. 2013) (internal quotation marks and citations omitted). “Where the state conditions receipt of an important benefit upon conduct
proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by
religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to
violate his beliefs, a burden upon religion exists.” Thomas v. Review Bd. of Indiana Emp’t Sec. Div., 450 U.S. 707, 717–18 (1981). But a government action does not constitute a substantial burden on the exercise of religion even if “the challenged Government action would interfere
significantly with private persons’ ability to pursue spiritual fulfillment according to their own
religious beliefs” if the governmental action does not coerce the individuals to violate their
religious beliefs or deny them the “rights, benefits, and privileges enjoyed by other citizens.”
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988).

an express-reference requirement providing that “[f]ederal statutory law adopted after November 16, 1993 is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.” 42 U.S.C. § 2000bb-3(b). Essentially, RFRA purports to bind all later Congresses unless they specifically reject the application of RFRA by the means specified by the earlier Congress that enacted RFRA. The Supreme Court has questioned the binding effect of express-reference requirements. Marcello v. Bonds, 349 U.S. 302, 310 (1955) (refusing “to require the Congress to employ magical passwords in order to effectuate an exemption from” a previously enacted statute). In Dorsey v. United States, the Court treated a savings statute with an express-reference requirement as:
in effect a less demanding interpretive requirement. That is because statutes enacted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modified. And Congress remains free to express any such intention either expressly or by implication as it chooses.
--U.S.--, 132 S. Ct. 2321, 2331 (2012) (emphasis added) (citations omitted). See al so Lock hart v. Uni ted States, 546 U.S. 142, 149–50 (2005) (Scalia, J., concurring) (identifying RFRA as a statute with an express-reference requirement and remarking that “it does no favor to the Members of Congress, and to those who assist in drafting their legislation, to keep secret the fact that such express-reference provisions are ineffective.”). Thus, Congress may reject the application of RFRA to a later-enacted statute without explicitly stating that RFRA does not apply.

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The exercise of religion that appellants argue is burdened by the contraceptive-coverage requirement is their “refus[al] to take certain actions in furtherance of a regulatory scheme to provide their employees with coverage for abortion-inducing products, contraceptives, sterilization, and related education and counseling.” Appellant Br. at 26–27. The government does not dispute that the appellants’ desire not to participate in the provision of contraception is a sincere religious belief.
The government does argue, however, that the contraceptive-coverage requirement does not impose a substantial burden on the appellants’ exercise of religion. Because the appellants all concede that they are eligible for either the exemption or the accommodation, they need not actually participate in the contraceptive-coverage requirement. Government Br. at 18–19. The appellants respond that the exemption and accommodation do not alleviate the burden of the contraceptive-coverage requirement because the process to obtain the exemption or accommodation forces the appellants “to play an integral role in the delivery of objectionable products and services to their employees.” Appellant Br. at 27–29.
First, we must address the appellants’ argument that the court should defer to their conclusion that the exemption and accommodation arrangement forces them to provide, pay for, and/or facilitate access to contraceptive coverage. See Appellant Br. at 18–20 (describing the district court’s conclusion that the contraceptive-coverage requirement imposes a burden on third parties, not the appellants, as a “foray into the theology behind Catholic precepts on contraception [that] was manifestly improper”) (internal quotation marks omitted); Appellant Br. at 36 (“Whether the accommodation relieves Appellants of moral culpability for their actions (i.e., allows them to opt out) or makes them complicit in a grave moral wrong is a question of religious conscience for [Appellants] to decide.”) (internal quotation marks omitted). Put another way, the appellants appear to ask the court to defer not only to their belief that requesting the exemption or the accommodation makes them complicit in sin, but also to defer to their understanding of how the regulatory measure actually works.
But as was recently explained, “there is nothing about RFRA or First Amendment jurisprudence that requires the Court to accept plaintiffs’ characterization of the regulatory scheme on its face.” Roman Catholic Archbishop of Washington v. Sebelius, --F. Supp. 2d--, No.

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13-1441, 2013 WL 6729515, at *14 (D.D.C. Dec. 20, 2013), injunction granted pending appeal, No. 13-5371 (D.C. Cir. Dec. 31, 2013)). Although we are in no position to determine the moral or theological consequences of appellants requesting the exemption or accommodation, we must determine the legal consequences. Whether a government obligation substantially burdens the exercise of religion is a question of law, not a “question[] of fact, proven by the credibility of the claimant.” Mahoney v. Doe , 642 F.3d 1112, 1121 (D.C. Cir. 2011)). We “accept[ ] as true the factual allegations that [appellants’] beliefs are sincere and of a religious nature—but not the legal conclusion, cast as a factual allegation, that [their] religious exercise is substantially burdened.” Kaemmerling v. Lappin , 553 F.3d 669, 679 (D.C Cir. 2008). Thus, although we acknowledge that the appellants believe that the regulatory framework makes them complicit in the provision of contraception, we will independently determine what the regulatory provisions require and whether they impose a substantial burden on appellants’ exercise of religion.

1. Appellants Eligible for the Exemption
MCC, CDN, and St. Cecilia Congregation allege that they are eligible for the religiousemployer exemption from the contraceptive-coverage requirement. MCC R. 1 (Compl. at ¶ 9) (Page ID #4); CDN R. 1 (Compl. at ¶ 14) (Page ID #7). The government agrees that these three appellants are “exempt from the contraceptive coverage requirement under 45 C.F.R. § 147.131(a).” Government Br. at 9–10, 18; see also Government Br. at 13. The appellants do not object to any specific act that they must engage in to obtain the exemption. Indeed, the government states that these “[p]laintiffs are . . . already exempt from the requirement to provide contraceptive coverage.” Government Br. at 13. Because both parties agree that MCC, CDN, and St. Cecilia Congregation are eligible for the exemption and because the appellants do not identify any particular action that they must take to obtain the exemption that burdens their exercise of religion, appellants have not demonstrated a strong likelihood of success on the merits of this claim.

2. Appellants Eligible for the Accommodation
The contraceptive-coverage framework does not impose a burden on the exercise of religion by those remaining appellants who are eligible for the accommodation. If an entity has an insured group health insurance plan, all that the entity must do to obtain the accommodation is

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“furnish[] a copy of the self-certification . . . to each issuer that would otherwise provide such coverage in connection with the group health plan.”9 29 C.F.R. § 2590.715-2713A(c)(1). If an entity has a self-insured plan, such as Catholic Charities of Kalamazoo, all that the entity must do to obtain the accommodation is “[c]ontract with one or more third party administrators”10 and “provide[] each third party administrator that will process claims for any contraceptive services11 . . . with a copy of the self-certification.” 29 C.F.R. § 2590.715-2713A(b)(1)(i), (ii). That is the entirety of the conduct that the objecting organization must engage in to obtain the accommodation.
The appellants are not required to “provide” contraceptive coverage. They are not required physically to distribute contraception to their employees upon request, and the eligible organization’s health plan does not host the coverage. Upon receipt of the self-certification form, the insurance issuer “must—(A) Expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan.” 29 C.F.R. § 2590.715-2713A(c)(2)(i)(A). In the self-insured context, the self-certification form declares to the third-party administrator that “[t]he eligible organization will not act as the plan administrator or claims administrator with respect to claims for contraceptive services.” 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A). Instead, the third-party administrator “shall be responsible for . . . compliance with” the preventive care and screenings provided for in the HRSA guidelines. 29 C.F.R. § 2510.3-16(b), (b)(1) (referencing obligations in 42 U.S.C. § 300gg-13 and 29 C.F.R. § 2590.715-2713A(b)(1)(ii)). Thus, although the insurance issuer or third-party administrator will provide contraceptive coverage, the appellants will not.

9Nothing in the record indicates that any of the insurance issuers with which the appellants contract has refused to provide contraceptive coverage upon receipt of a self-certification form.
10Catholic Charities of Kalamazoo, the only appellant alleging that it is eligible for the accommodation and has a self-insured plan, already contracts with a third-party administrator. This appellant participates in the MCC Plan, “which consists of self-funded medical and prescription benefits administered by separate third party administrators, Blue Cross Blue Shield of Michigan and Express Scripts, respectively.” MCC R. 1 (Compl. at ¶¶ 41, 50) (Page ID #13, 15).
11Nothing in the record indicates that Catholic Charities of Kalamazoo’s third-party administrator has refused to provide contraceptive coverage upon receipt of a self-certification form.

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The appellants are not required to “pay for” contraceptive coverage. When an insurance issuer receives the self-certification form, it “must . . . Provide separate payments for any contraceptive services.” 29 C.F.R. § 2590.715-2713A(c)(2)(i)(B). The eligible organization’s money will not fund the contraceptive coverage: “[t]he issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 29 C.F.R. § 2590.715-2713A(c)(2)(ii). When a third-party administrator receives the self-certification form, it must “provide or arrange payments for contraceptive services” either by providing the payments itself or arranging for an issuer or another entity to provide the payments. 29 C.F.R. § 2590.715-2713A(b)(2)(i), (ii). In either situation, whoever is providing the payments may not “impose[] a premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.” 29 C.F.R. § 2590.715-2713A(b)(2)(i), (ii); (c)(2)(ii). The accommodated entity does not even need to be the one to tell the employees about the contraceptive coverage. The regulations require the insurance issuer or third-party administrator to provide written notice to plan participants and beneficiaries “specify[ing] that the eligible organization does not administer or fund contraceptive benefits, but that the third party administrator or issuer, as applicable, provides separate payments for contraceptive services.” 29 C.F.R. § 2590.715-2713A(d). Thus, although the insurance issuer or third-party administrator will pay for contraceptive coverage, the appellants will not.
Moreover, the appellants are not required to “facilitate access to” contraceptive coverage. The crux of the appellants’ “facilitation” argument is that providing the self-certification form to the insurance issuer or third-party administrator “triggers” the provision of the contraceptive coverage to their employees. Appellant Br. at 9, 27–31. This argument rests on two assumptions that are, perhaps, two sides of the same coin: first, that the insurance issuer and third-party administrator could not provide the coverage until they receive a self-certification form and second, that the insurance issuer and third-party administrator then provide the coverage because they received the self-certification form.
Submitting the self-certification form to the insurance issuer or third-party administrator does not “trigger” contraceptive coverage; it is federal law that requires the insurance issuer or

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the third-party administrator to provide this coverage. The ACA requires “[a] group health plan12 and a health insurance issuer offering group or individual health insurance coverage” to “provide coverage for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” 42 U.S.C. §§ 300gg-13(a), (a)(4). Thus, under the ACA, the appellants’ health plans and insurance issuers must provide contraceptive coverage without cost-sharing, whether or not the appellants decide to self-certify. “Federal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of selfinsured health plans, to cover contraceptive services.” Univ. of Notre Dame , 743 F.3d at 554. “Because Congress has imposed an independent obligation on insurers to provide contraceptive coverage to Appellants’ employees, those employees will receive contraceptive coverage from their insurers even if Appellants self-certify—but not because Appellants self-certify.” Roman Catholic Archbishop of Washington v. Sebelius , No. 13-5371; Priests for Life v. U.S. Dep’t of Health and Human Servs. , No. 13-5368 (D.C. Cir. Dec. 31, 2013) (Tatel, J., dissenting from injunction pending appeal). The obligation to cover contraception will not be triggered by the act of self-certification—it already was triggered by the enactment of the ACA.
The appellants allege that providing, paying for, and/or facilitating access to contraceptive coverage burdens their exercise of religion. As discussed supra, the exemption and accommodation framework does not require them to do any of these things. The framework does not permit them to prevent their insurance issuer or third-party administrator from providing contraceptive coverage to their employees pursuant to independent obligations under federal law. However, the inability to “restrain the behavior of a third party that conflicts with the [appellants’] religious beliefs,” Michigan Catholic Conference , 2013 WL 6838707, at *7, does not impose a burden on the appellants’ exercise of religion. “[W]hile a religious institution has broad immunity from being required to engage in acts that violate the tenets of its faith, it has

12Group health plan is broadly defined and includes both insured group health plans and self-insured group health plans: “[t]he term ‘group health plan’ means an employee welfare benefit plan . . . to the extent that the plan provides medical care (as defined in paragraph (2)) and including items and services paid for as medical care) to employees or their dependents (as defined under the terms of the plan) directly or through insurance, reimbursement, or otherwise.” 42 U.S.C. § 300gg-91(a)(1).

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no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution.” Univ. of Notre Dame, 743 F.3d at 552.
The government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’ exercise of religion. In Bowen v. Roy, a pre-Smith Free Exercise case, the Supreme Court rejected a Free Exercise claim against the government’s use of a Native American child’s Social Security number. The father of the child “believe[d] the use of the number may harm his daughter’s spirit.” 476 U.S. 693, 699 (1986). The Court concluded that the Free Exercise Clause did not allow an individual to force the Government to conform its conduct to the individual’s religious beliefs. “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.” Id. The family “may not demand that the Government join in their chosen religious practices . . . . As a result, Roy may no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government’s filing cabinets.” Id. at 700. Just as the government’s use of the child’s Social Security number “does not itself in any degree impair [the family’s] ‘freedom to believe, express, and exercise[e]’ [their] religion,” id., the Government’s instruction to insurance issuers and third-party administrators to provide contraceptive coverage does not force the appellants to provide, pay for, and/or facilitate access to the coverage.
Similarly, in Kaemmerling v. Lappin the D.C. Circuit rejected a RFRA claim because the challenged government action did not require anything of the challenger. A prisoner expressed religious objections to the government collecting and analyzing his DNA profile pursuant to the DNA Act. 553 F.3d 669, 678–79 (D.C. Cir. 2008). The court held that the prisoner “cannot identify any ‘exercise’ which is the subject of the burden to which he objects” because the governmental process of extracting DNA “involves no action or forbearance on [the prisoner’s] part, nor does it otherwise interfere with any religious act in which he engages.” Id. at 679. Here, the only thing that the exemption and accommodation framework requires of the appellants is conduct in which they already engage. They will continue to sponsor health plans, contract with insurance issuers or third-party administrators, and declare their opposition to providing

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contraceptive coverage to their insurance issuer and third-party administrator. Michigan Catholic Conference, 2013 WL 6838707, at *7. The only difference in conduct is on the part of the insurance issuer or third-party administrator; appellants “are not required to ‘modify [their] behavior.’ Rather, it is the TPA [or insurance issuer] that is required to modify its behavior and take action by providing contraceptive services—without the assistance of” the appellant. Id. Employees and beneficiaries will receive contraceptive coverage, but that coverage will be “despite plaintiffs’ religious objections, not because of them.” Government Br. at 26. Again, the insurance issuers and third-party administrators are not parties to this suit and have not expressed any opposition to complying with the contraceptive-coverage requirement. The fact that the regulations require the insurance issuers and third-party administrators to modify their behavior does not demonstrate a substantial burden on the appellants.
In addition to the objection to the self-certification form, the appellants raise various procedural objections to the accommodation framework, none of which is meritorious. The appellants object to having to offer enrollment paperwork to allow employees to enroll in the plan overseen by the third party and to sending health-plan enrollment paperwork to the third party. Appellant Br. at 29. The regulations do not require either of these acts; the regulations specifically provide that the third-party administrator or insurance issuer (not the accommodated eligible organization) notifies plan participants and beneficiaries of the availability of payments for contraceptive services. See 29 C.F.R. §§ 2590.715-2713A(d). The appellants object to having to “[i]dentify for a third party which of their employees will participate in the plan.” Appellant Br. at 29. Again, this is not required by the regulations. Moreover, because these appellants already contract with insurance issuers and third-party administrators, the insurance issuers and third-party administrators presumably already have lists of plan participants and beneficiaries. Finally, the appellants object to having to “[r]efrain from canceling their insurance arrangement with a third party authorized to provide the objectionable products and services.” Appellant Br. at 29. Once again, the regulations do not prohibit the appellants from canceling an insurance arrangement, and the appellants have not expressed any actual intent to do so. Because these objections do not go to actual requirements of the contraceptive-coverage framework, they clearly do not demonstrate a substantial burden on appellants’ exercise of religion.

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The appellants argue that the exemption and accommodation mechanism pressures them to modify their behavior and violate their religious beliefs because previously they informed their insurance issuer or third-party administrator of their opposition to contraception and those entities did not cover contraception, but now they will inform their insurance issuer or third-party administrator of their opposition and those entities will cover contraception. But that is an objection to the later independent action of a third party, not to an obligation imposed on the appellants by the government. It is not the act of self-certification that causes the insurance issuer and the third-party administrator to cover contraception, it is the law of the United States that does that. Self-certification allows the eligible organization to tell the insurance issuer and third-party administrator “‘we’re excused from the new federal obligation relating to contraception,’ and in turn, the government tells those insurance companies, ‘but you’re not.’” Univ. of Notre Dame , 743 F.3d at 557. Perhaps the appellants would like to retain the authority to prevent their insurance issuer or third-party administrator from providing contraceptive coverage to appellants’ employees, but “RFRA is not a mechanism to advance a generalized objection to a governmental policy choice, even if it is one sincerely based upon religion.” Roman Catholic Archbishop of Washington, 2013 WL 6729515, at *2.
Because these appellants may obtain the accommodation from the contraceptivecoverage requirement without providing, paying for, and/or facilitating access to contraception, the contraceptive-coverage requirement does not impose a substantial burden on these appellants’ exercise of religion. Therefore, these appellants have not demonstrated a strong likelihood of success on the merits of their RFRA claim.

C. First Amendment 1. Free Speech Clause
“It is . . . a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., --U.S.--, 133 S. Ct. 2321, 2327 (2013) (internal quotation marks omitted). “The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.” Knox v. Serv. Emps. Int’l Union, Local 1000 , --U.S.--, 132 S. Ct. 2277, 2288 (2012). The appellants argue that the contraceptive-coverage requirement

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violates the Free Speech Clause of the First Amendment by forcing them to provide, pay for, and/or facilitate access to contraception counseling; forcing them to speak against their beliefs by filling out the self-certification form; and imposing a “gag order” by prohibiting them from interfering with or seeking to influence a third-party administrator’s decision to cover contraception. We conclude that the contraceptive coverage requirement does not violate the Free Speech Clause of the First Amendment, and will address each of the subclaims in turn.

a. Contraceptive counseling
First, the appellants argue that the contraceptive-coverage requirement unconstitutionally compels speech by forcing them to provide, pay for, and/or facilitate access to counseling about contraception, and that this obligation violates their religious opposition “to providing any support for ‘counseling’ that encourages, promotes, or facilitates such practices.” Appellant Br. at 57–58. The guidelines recommended coverage without cost-sharing for “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Closing the Gaps at 10; see also 77 Fed. Reg. at 8725. Presumably, this counseling would include discussion of the range of contraceptive options, how the various products work, and what may be a good fit for the counseled individual’s health profile and lifestyle.
The regulations certainly do not require the accommodated entity to “provide” this counseling. The accommodated entity need not discuss or acknowledge the existence of the counseling coverage; the regulations require the insurance issuer or third-party administrator to inform plan participants and beneficiaries that separate payments are available for counseling and other contraceptive services. See 29 C.F.R. §§ 2590.715-2713A(d). The regulations make no attempt to stop the appellants’ practice of “counsel[ing] men and women against” using contraception. Appellant Br. at 57, 58. See Rumsfeld v. Fo rum for Aca demic and Institu tional Rights, Inc. (“FAIR”) , 547 U.S. 47, 65 (2006) (upholding a statute against a free-exercise challenge; the statute required law schools to give military recruiters equal access to other recruiters as a condition on receipt of certain federal funds, but “[n]othing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.”). Thus, in no

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way do the regulations compel the appellants’ speech by forcing them to provide contraceptive counseling.
The regulations also do not compel the appellants’ speech by forcing them to pay for contraceptive counseling. As discussed supra, the regulations specifically prohibit an insurance issuer or third-party administrator from passing on the cost of complying with the contraceptivecoverage requirement, which includes the cost of contraceptive counseling. See 29 C.F.R. § 2590.715-2713A(b)(2), (c)(2).
Finally, the requirements do not force the appellants to facilitate access to contraceptive counseling. It is not clear what speech, exactly, the appellants believe is compelled by the facilitation of such coverage; in any event, as discussed supra, it is federal law, not the appellants’ actions, that requires their insurance issuer or third-party administrator to provide insurance coverage for contraceptive counseling. The contraceptive coverage is provided through a government regulation of the insurance issuer and third-party administrator, not through the appellants’ health insurance plan. See 29 C.F.R. § 2590.715-2713A(c)(2)(i)(A) (upon receipt of the self-certification form, the insurance issuer “must—(A) Expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan”); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A) (the self-certification form declares to the third-party administrator that “[t]he eligible organization will not act as the plan administrator or claims administrator with respect to claims for contraceptive services”). Thus, the framework does not require appellants to “host or accommodate another speaker’s message” through their insurance plan. FAIR, 547 U.S. at 63; cf. Hurley v. Iris h-Am. Gay, Lesbian & Bisexual Group of Boston, Inc. , 515 U.S. 557, 566 (1995) (requiring a parade organizer to allow a group whose message it opposes to participate in the parade is unconstitutional forced accommodation of speech); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U.S. 1, 20–21 (1986) (plurality opinion) (forcing a utility company to include a third-party organization’s newsletter with the utility bill is unconstitutional forced accommodation of speech).

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The contraceptive counseling provision does not violate the Free Speech Clause of the First Amendment. Thus, appellants have not demonstrated a strong likelihood of success on the merits of this claim.

b. Self-certification Form
Second, the appellants argue that the requirement that they complete the self-certification form in order to obtain the accommodation “compels Appellants to engage in speech that triggers provision of the objectionable products and services, and [ ] deprives Appellants of the freedom to speak on the issue of abortion and contraception on their own terms, at a time and place of their own choosing, outside of the confines of the Government’s regulatory scheme.” Appellant Br. at 58. As discussed supra, the self-certification form does not trigger the provision of contraceptive coverage, but instead it triggers the entities’ disassociation from what they deem to be the objectionable coverage. Thus, this framework is nothing like the unconstitutional state campaign finance law in Arizona Free Enterprise Club’s Freedom Club PAC v. Be nnett, where the state provided matching funds for publicly financed candidates when a privately financed candidate or independent expenditure group spent over a certain amount on the election, thus making the privately financed candidate’s political expenditures a trigger of funding to his or her adversary. --U.S.--, 131 S. Ct. 2806, 2818 (2011). The self-certification form does not have a similar triggering function. Additionally, the self-certification form does not deprive appellants of the freedom to speak out about abortion and contraception on their own terms. The form requires the appellants to assert their opposition to contraception in order to opt out of a generally applicable government program. Successful compelled-speech cases are those when “an individual is obliged personally to express a message he disagrees with, imposed by the government.” Johanns v. Livestock Mktg. Ass’n , 544 U.S. 550, 557 (2005). Even assuming that the government is compelling this speech, it is not speech that the appellants disagree with and so cannot be the basis of a First Amendment claim. Thus, the self-certification requirement does not compel speech in violation of the First Amendment, and so the appellants have not demonstrated a strong likelihood of success on the merits of this claim.

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c. “Gag Order”
Finally, the appellants argue that the accommodation framework imposes an unconstitutional “gag order” by prohibiting eligible organizations with self-insured group plans from interfering with, or seeking to influence, a third-party administrator’s decision to provide contraceptive coverage. Specifically, the regulation provides:
The eligible organization must not, directly or indirectly, seek to interfere with a third party administrator’s arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrangements.
29 C.F.R. § 2590.715-2713A(b)(iii). A footnote in the commentary to the regulations states that “[n]othing in these final regulations prohibits an eligible organization from expressing its opposition to the use of contraceptives.” Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39870, 39880 n.41 (July 2, 2013) (to be codified at 29 C.F.R. § 2510, 2590; 45 C.F.R. § 147, 156). The regulations thus draw a line between impermissible efforts to interfere with or influence a third-party administrator’s provision of contraceptive coverage and permissible expressions of opposition to contraceptives.
The appellants have presented their objections to this regulation at a very high level of generality and fail to identify what protected speech this regulation chills.13 It is not clear what the appellants want to do or say that they believe this regulation prohibits. Do the appellants feel chilled from having a calm discussion with their third-party administrator about Catholic doctrine, discouraging third-party administrators from entering into or maintaining contractual relationships with religiously affiliated organizations, encouraging the insurance issuer to violate federal law and refuse to provide contraceptive coverage, or something else altogether? We do

13Only the MCC plaintiffs raised this claim in their complaint, where they allege that contraceptivecoverage requirement “impos[es] a gag order that prohibits Plaintiffs from speaking out in any way that might ‘influence,’ ‘directly or indirectly,’ the decision of a third party administrator to provide or procure contraceptive products and services to Plaintiffs’ employees.” MCC R. 1 (Compl. at ¶ 188) (Page ID #44–45). In their motion for a preliminary injunction in the district court, they repeated this general argument and asserted that “[p]laintiffs believe that contraception is immoral, and by expressing that conviction they routinely seek to ‘influence’ or persuade their fellow citizens of that view.” MCC R. 15 (Prelim. Inj. Memo at 38) (Page ID #639). In their brief to this court, the appellants make a brief, general argument that they “believe that contraception is contrary to their faith, and speak and act accordingly. The Government has no authority to outlaw such expression.” Appellant Br. at 55.

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not know. Not all speech is protected by the First Amendment; for example, “an employer is free to communicate to his employees any of his general views about unionism” but may not make “a ‘threat of reprisal or force or promise of benefit.” N.L.R.B. v. Gissel Packing Co. , 395 U.S. 575, 618 (1969). Given the failure to “[tell] us what [they] want[] to say but fear[] to say” and the fact that “the government hasn’t clearly embraced an interpretation of the regulation that would give rise to the [First Amendment] concerns,” Univ. of Notre Dame, 743 F.3d at 561, the appellants have not demonstrated a strong likelihood of success on the merits of this claim.

2. Free Exercise Clause
The Free Exercise Clause is not violated by neutral laws of general applicability, “even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (“Church of the L.B.A.”) , 508 U.S. 520, 531 (1993). A law that is not neutral and of general applicability still does not violate the Free Exercise Clause if the law is “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” Id. at 531–32. The appellants argue that the contraceptive-coverage requirement is not a neutral law of general applicability because they say it was targeted at Catholic entities and has many exemptions. Appellant Br. at 53–54. On the contrary, the contraceptive-coverage requirement is a neutral law of general applicability and does not violate the Free Exercise Clause.
A law is not neutral “if the object of a law is to infringe upon or restrict practices because of their religious motivation.” Church of the L.B.A. , 508 U.S. at 533. “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.” Id. However, “[f]acial neutrality is not determinative . . . ‘The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.’” Id. at 534 (quoting Walz v. Tax Comm’n of New York City , 397 U.S. 664, 696 (1970) (Harlan, J., concurring)). The contraceptive-coverage requirement is a neutral law. Neither the text nor the history of the statute and regulations promulgated pursuant to the statute demonstrate that the requirement was targeted at a particular religious practice. There is no evidence that Congress and the executive branch agencies “had as their object the suppression of religion.” Id. at 542. The record does not “disclose[] animosity” towards the Catholic

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practice of refusing to support access to contraception, the framework does not “by [its] own terms target this religious exercise,” the program was not “gerrymandered with care to proscribe” the Catholic exercise of religion with respect to contraception but not secular opposition to contraception; and the arrangement does not “suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense.” Id. at 542. The appellants argue that the Government was aware of the refusal of Catholic employers to provide contraceptive coverage and enacted the requirement to force Catholic employers to violate their religious beliefs. Appellant Br. at 54. This argument is unpersuasive; the fact that the Government has required a religiously affiliated entity to do something that it does not want to on the basis of religion does not, ipso facto, mean that the law was targeted at religious practice. Accordingly, the framework is neutral.
A law is not of general applicability if it “in a selective manner impose[s] burdens only on conduct motivated by religious belief,” Church of the L.B.A., 508 U.S. at 543. The appellants argue that the requirement is not generally applicable because grandfathered plans, small businesses, and religious employers that obtain an exemption need not comply with the contraceptive-coverage requirement. This argument misunderstands the meaning of general applicability under our Free Exercise jurisprudence. “General applicability does not mean absolute universality.” See Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008). A law need not apply to every person or business in America to be generally applicable. A law is generally applicable if it does not make distinctions based on religion. To determine this, we consider whether the “legislature decide[d] that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.” Church of the L.B.A. , 508 U.S. at 542–43. The requirement at issue here does not pursue the governmental interest in contraceptive coverage only against entities with a religiously motivated objection to providing such coverage; that interest is pursued uniformly against all businesses that are not grandfathered and have more than fifty employees. This includes entities that have no objection to the requirement, entities that object for non-religious reasons such as general opposition to government dictating healthcare requirements, and entities that object to the requirement for religious reasons. See, e.g., Stormans, Inc. v. Selecky , 586 F.3d 1109, 1134 (9th Cir. 2009) (holding a rule was generally applicable because “pharmacists who do not have a religious

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objection to Plan B must comply with the rules to the same extent—no more and no less—than pharmacies and pharmacists who may have a religious objection to Plan B”). In fact, the availability of the exemption and the accommodation means that the law imposes a lesser burden on those who object for religious reasons because they do not have to pay for the coverage. Accordingly, the program is generally applicable.
Because the law requiring contraceptive coverage is neutral and generally applicable, it does not violate the Free Exercise Clause even if it incidentally burdens the exercise of religion. Thus, the appellants have not demonstrated a strong likelihood of success on the merits of this claim.

3. Establishment Clause
“Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I. However, “[the Supreme] Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fl a., 480 U.S. 136, 144– 45 (1987). The appellants argue that allowing some entities with a religious mission to obtain the exemption and others to obtain only the accommodation violates the Establishment Clause because the distinction “favors some types of religious organizations and denominations over others” and creates an excessive entanglement between government and religion. Appellant Br. at 59. Because the law’s distinction does not favor a certain denomination and does not cause excessive entanglement between government and religion, the framework does not violate the Establishment Clause.
“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente , 456 U.S. 228, 244 (1982). “[N]o State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’” Id. at 246 (quoting Everson v. Bd. of Educ. , 330 U.S. 1, 15 (1947)). For a claim such as this based on the allegedly disparate treatment of religions, “the constitutional value at issue is ‘neutrality.’” Gillette v. United Sta tes, 401 U.S. 437, 450 (1971). The line that the exemption and accommodation framework draws between eligibility for the exemption and for the accommodation is based on organizational form and purpose, not religious denomination. Such

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a distinction does not violate the Establishment Clause. “[R]eligious employers, defined as in the cited regulation, have long enjoyed advantages (notably tax advantages) over other entities, 26 U.S.C. §§ 6033(a)(3)(A)(i), (iii), without these advantages being thought to violate the establishment clause.” Univ. of Notre Dame, 743 F.3d at 560 (citing Walz, 397 U.S. at 672–73). The appellants’ reliance on the Tenth Circuit’s decision in Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), is misplaced. There, the Tenth Circuit held that a state law permitting scholarship funding for students attending religious schools only if the school was not “pervasively” sectarian violated the Establishment Clause. Id. at 1258–60. The law did not make distinctions based on organizational form, as here; the Colorado law violated the Establishment Clause because it discriminated based on the nature of religious belief and practice at the university. Accordingly, that case provides no support for the appellants’ argument. The fact that all of the appellants are affiliated with the Catholic Church and some are eligible for the exemption while others are eligible for the accommodation demonstrates that the framework does not discriminate based on denomination. Because the exemption and accommodation arrangement distinguishes between entities based on organizational form, not denomination, it does not express an unconstitutional state preference on the basis of religion.
Further, the provisions do not excessively entangle government and religion. The regulations define a “religious employer” as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a). The referenced sections of the Internal Revenue Code provide exceptions from certain tax-return filing requirements for “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3)(A)(i), (iii). The IRS considers numerous factors to determine if an entity is eligible for the exceptions in § 6033(a)(3)(A)(i), (iii). See Am. Guidance Found., Inc. v. United States , 490 F. Supp. 304, 306 (D.D.C. 1980). The appellants argue that “these factors favor some religious groups over others . . . on the basis of intrusive judgments regarding beliefs, practices, and organizational structures.” Appellant Br. at 63–64. However, the government argues that the “qualification for the religious employer exemption does not require the government to make any determination,

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whether as a result of the application of the non-exhaustive, non-binding list or otherwise.” Government Br. at 54–55. Plaintiffs have not shown how this is not correct.
Because the exemption and accommodation provisions do not prefer a denomination or excessively entangle government in religious practice, they do not violate the Establishment Clause. Thus, the appellants have not demonstrated a strong likelihood of success on the merits of this claim.

D. Administrative Procedure Act
Finally, the MCC appellants14 argue that the contraceptive-coverage requirement violates the Administrative Procedure Act (APA) because the requirement violates the Weldon Amendment and thus is “not in accordance with law,” and because the IOM guidelines recommending that contraception be included as preventive care were not subject to notice-andcomment rulemaking requirements. We conclude that the appellants have not demonstrated a strong likelihood of success on the merits of the Weldon Amendment claim, and we decline to reach the notice-and-comment claim.

1. Weldon Amendment
The MCC appellants argue that the contraceptive-coverage requirement violates the Weldon Amendment and therefore is “not in accordance with law,” as required by the APA. The APA provides that a “reviewing court shall . . . (2) hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Weldon Amendment is a rider to an appropriations bill that denies funding to federal agencies or programs “if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”15 Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div.

14Although the CDN plaintiffs included an APA claim in their complaint, that claim was not raised in the motion for a preliminary injunction, and so the district court correctly treated the claim as waived for purposes of the preliminary injunction. Catholic Diocese of Nashville, 2013 WL 6834375, at *10 n.13.
15It is not clear that any of the MCC appellants who properly raised this claim is an “institutional or individual health care entity” within the meaning of the Weldon Amendment. The Weldon Amendment defines

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F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). The district court held that the contraceptivecoverage requirement does not violate the Weldon Amendment because the FDA-approved emergency contraceptives are not defined as abortion-inducing products under federal law. The appellants argue that this analysis is in error because the court should defer to the plan provider’s definition of “abortion” and the appellants believe that the “morning-after pill (Plan B) and Ulipristal (HRP 2000 or [e]lla)” are “abortion-inducing products.” Appellant Br. at 65.

The appellants are correct that the Weldon Amendment does not define abortion. The appellants argue that the absence of a statutory definition means that the court should defer to their independent interpretation of “abortion.” That is not how statutory interpretation works. Rather, the federal courts will utilize traditional methods of statutory interpretation to determine whether “abortion” in the Weldon Amendment includes FDA-approved emergency contraceptives.

The government notes that the FDA-approved labels for

Plan B and ella describe these products as emergency contraceptives and do

not mention abortion. See FDA-approved label for Plan

B,

available

at

http://www.accessdata.fda.gov/drugsatfda_docs/label/2009/021045s015lbl.pdf; FDA-approved

label for ella http://www.accessdata.fda.gov/drugsatfda_docs/label/2012/022474s002lbl.pdf.

The appellants do not identify any statutory or regulatory definition of abortion that includes

“[h]ealth care entity” as “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(2). The appellants allege that the Michigan Catholic Conference Second Amended and Restated Group Health Benefit Plan for Employees (“MCC Benefit Plan”) is a health plan. MCC R. 1 (MCC Compl. at ¶ 16) (Page ID #7). However, it is not clear that the MCC Benefit Plan is an actual plaintiff in this case. The complaint is captioned “MICHIGAN CATHOLIC CONFERENCE in its own name and on behalf of the MICHIGAN CATHOLIC CONFERENCE SECOND AMENDED AND RESTATED GROUP HEALTH BENEFIT PLAN FOR EMPLOYEES . . . .” MCC R. 1 (MCC Compl. at 1) (Page ID #1). Although the complaint describes MCC and Catholic Charities as “plaintiff[s],” it does not describe the MCC Benefit Plan as a plaintiff. See id. at ¶¶ 16, 17 (Page ID #7). However, because we affirm the denial of the preliminary injunction on this claim, we need not decide this issue at this time.
We also question the appellants’ assumption that MCC is discriminated against for refusing to provide contraceptive coverage. MCC concedes that it is eligible for the religious-employer exemption. MCC R. 1 (Compl. at ¶ 9) (Page ID #4). Consequently, its health insurance plan need not cover contraception or emergency contraception. Thus, it is not clear how MCC is discriminated against for refusing to provide contraceptive coverage. See Rom an C atholic Arch bishop of Was hington, 2013 WL 6729515, at *46 (holding that the contraceptive-coverage requirement is consistent with the Weldon Amendment for entities that are eligible for the exemption or the accommodation).

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emergency contraceptives. Because the burden is on the appellants to demonstrate a strong likelihood of success on the merits, and the appellants have neither asserted nor argued nor presented evidence that the federal government classifies these drugs as abortifacients, they have not shown a strong likelihood of success on the merits of their claim.

2. Notice and Comment
The appellants argue that the government violated the APA because it did not subject the IOM recommendation that preventive services include contraceptive coverage to notice and comment rulemaking pursuant to 5 U.S.C. § 553(b). Appellant Br. 66–68. This claim was not properly raised in or decided by the district court, so we decline to address it for the first time on appeal.
As discussed supra, the CDN plaintiffs did not raise any APA claims in their motion for a preliminary injunction. The MCC plaintiffs’ only reference to a notice-and-comment claim is a single sentence in the introduction section of their memorandum in support of the motion for a preliminary injunction: “Finally, the Mandate violates the Administrative Procedure Act (‘APA’) because Defendants failed to conduct notice-and-comment rulemaking, and it contravenes the clear terms of the Weldon Amendment.” MCC R. 15 (Prelim. Inj. Memo. at 3) (Page ID #604). In the argument section of the memorandum the MCC plaintiffs discussed the Weldon Amendment issue, but did not return to the notice-and-comment issue. See id. at 44–45 (Page ID #645–46). The district court did not address the notice-and-comment argument in its decision. See Michigan Catholic Conference, 2013 WL 6838707, at *13.
We generally do not consider issues raised for the first time on appeal. In re Cannon , 277 F.3d 838, 848 (6th Cir. 2002). “Factors guiding the determination of whether to consider an issue for the first time on appeal include:
1) whether the issue newly raised on appeal is a question of law, or whether it requires or necessitates a determination of facts; 2) whether the proper resolution of the new issue is clear and beyond doubt; 3) whether failure to take up the issue for the first time on appeal will result in a miscarriage of justice or a denial of substantial justice; and 4) the parties’ right under our judicial system to have the issues in their suit considered by both a district judge and an appellate court.

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Id. (internal quotation marks omitted). Accordingly, we decline to exercise our discretion to address this claim.

E. Other Factors for Injunctive Relief
We conclude that the appellants have not demonstrated a strong likelihood of success on the merits of any of their properly raised claims. The other three factors that we consider in evaluating a request for a preliminary injunction are: (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction. City of Pontiac Retir ed Emps. Ass’n , 2014 WL 1758913, at *2. When the alleged injury is to a First Amendment freedom, as here, the strong likelihood of success on the merits factor merges with the irreparable injury factor. “To the extent that [appellant] can establish a likelihood of success on the merits of its First Amendment claim, it also has established the possibility of irreparable harm as a result of the deprivation of the claimed free speech rights.” Connection Distrib. Co. v. Reno , 154 F.3d 281, 288 (6th Cir. 1998). Conversely, if appellant “does not have a likelihood of success on the merits . . . his argument that he is irreparably harmed by the deprivation of his First Amendment right also fails.” McNeilly, 684 F.3d at 615. Because the appellants do not demonstrate a strong likelihood of success on the merits of their claims, they also do not demonstrate that they will suffer irreparable injury without the injunction.
The district courts did not abuse their discretion by denying preliminary injunctions.

III. CONCLUSION
For the foregoing reasons, we AFFIRM the district courts’ denial of preliminary injunctions. We lift the stay temporarily issued by this court pending resolution of this appeal.

 
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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: August 21, 2015
Ms. Brigitte Amiri ACLU 125 Broad Street, 18th Floor New York, NY 10004
Mr. Charles E. Davidow Paul, Weiss, Rifkind, Wharton & Garrison 2001 K Street, N.W. Washington, DC 20006
Mr. Adam C. Jed Ms. Alisa B. Klein Mr. Mark B. Stern U.S. Department of Justice Appellate Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Mr. Matthew A. Kairis Ms. Melissa Dunlap Palmisciano Jones Day 325 John H. McConnell Boulevard, Suite 600 Columbus, OH 43215
Ms. Ayesha N. Khan Americans United for Separation of Church and State 190l L. Street, N.W., Suite 400 Washington, DC 20036
Mr. Daniel Mach American Civil Liberties Union Program on Freedom of Religion & Belief 915 15th Street, N.W. Washington, DC 20005

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Mr. Bernard Eric Restuccia Office of the Attorney General of Michigan P.O. Box 30217 Lansing, MI 48909-7717
Mr. Neil Vakharia Jones Day 901 Lakeside Avenue, E. Cleveland, OH 44114
Re: Case Nos. 13-2723/6640, Mich. Catholic Conference, et al v. Burwell, et al Originating Case No. : 1:13-cv-01247
Dear Counsel,
The court today announced its decision in the above-styled cases.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Ms. Tracey Cordes Mr. Keith Throckmorton
Enclosures
Mandate to issue.

Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0202p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

MICHIGAN CATHOLIC CONFERENCE and CATHOLIC ┐

FAMILY SERVICES D/B/A CATHOLIC CHARITIES │

DIOCESE OF KALAMAZOO (13-2723); THE CATHOLIC │

DIOCESE OF NASHVILLE, CATHOLIC CHARITIES OF │

TENNESSEE, INC., CAMP MARYMOUNT, INC., MARY, QUEEN OF ANGELS, INC., ST. MARY VILLA, INC.,

││>

DOMINICAN SISTERS OF ST. CECILIA │

CONGREGATION, and AQUINAS COLLEGE (13-6640), │

Nos. 13-2723/6640

Plaintiffs-Appellants, │

v.

│ │

SYLVIA MATTHEWS BURWELL, Secretary of the │

United States Department of Health and Human │

Services, THOMAS E. PEREZ, Secretary of the United │

States Department of Labor, JACOB J. LEW, │

Secretary of the United States Department of │

Treasury, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, and UNITED STATES DEPARTMENT OF THE TREASURY,

│ │ │ │ │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids.
No. 1:13-cv-01247—Gordon J. Quist, District Judge.

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
No: 3:13-cv-01303—Todd J. Campbell, Chief District Judge.

Decided and Filed: August 21, 2015

Before: MOORE and ROGERS, Circuit Judges; NIXON, District Judge.*

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*The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by designation.
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_________________
COUNSEL
ON BRIEF: Matthew A. Kairis, JONES DAY, Columbus, Ohio, for Appellants. Adam C. Jed, Mark B. Stern, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
_________________

OPINION _________________
KAREN NELSON MOORE, Circuit Judge. The Patient Protection and Affordable Care Act (“ACA”) requires health insurance plans to provide coverage for contraception—a requirement commonly known as the contraceptive mandate. Religious employers, employers with fewer than fifty employees, and grandfathered plans are exempt from this mandate. Nonprofit entities and closely held corporations who object to the mandate on religious grounds may seek an accommodation. That accommodation effectively insulates these entities from the contraception-provision process: they no longer have to pay for contraceptive coverage, and all individuals under their plans are notified of the entity’s religious objections. The insurance issuers and third party administrators for these entities, however, must continue to provide coverage for contraceptives to individuals insured under these plans.
Plaintiffs in this case include both religious employers eligible for the exemption and non-profit entities eligible for the accommodation. In the first instance, Plaintiffs challenged both the exemption and the accommodation. They sought a preliminary injunction, arguing that these provisions were being enforced in violation of their rights under the Religious Freedom Restoration Act (“RFRA”), the First Amendment, and the Administrative Procedure Act (“APA”). We rejected this challenge, holding that the district courts did not abuse their discretion in denying Plaintiffs preliminary injunctive relief. Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372 (6th Cir. 2014). Plaintiffs then filed a petition for a writ of certiorari; that petition made clear that Plaintiffs were not challenging our decision with respect to the exemption. Nor did the petition make reference to any of the First Amendment or APA arguments that Plaintiffs had previously raised. Rather, the petition focused

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entirely on whether the accommodation violated Plaintiffs’ rights under RFRA. The Supreme Court granted this petition, vacated our judgment, and remanded the case back to us “for further consideration in light of Burwell v. Hobby Lobby Stores, Inc.” Mich. Catholic Conference v. Burwell, 135 S. Ct. 1914 (2015).
In Hobby Lobby, 134 S. Ct. 2751 (2014), the Supreme Court determined that closely held, for-profit companies with sincerely held religious beliefs could not be compelled to provide contraceptive coverage to their employees. In reaching this decision, the Court discussed the accommodation favorably, noting for instance that the accommodation served the government’s interests in providing access to contraception while at the same time not impinging on the religious beliefs of objecting non-profits. The Court did not suggest that the accommodation violated RFRA.
After carefully reviewing the Hobby Lobby opinion, we adhere to our original disposition. This opinion now addresses the impact of Hobby Lobby and the relevant circuit court decisions that have been published since Hobby Lobby. We join our sister circuits in holding (1) that the accommodation provision does not violate RFRA and (2) that nothing in Hobby Lobby changes this conclusion. Accordingly, we AFFIRM the district courts’ judgments denying Plaintiffs preliminary injunctive relief on all of their claims. We also RE-ISSUE and RE-AFFIRM our prior opinion in order to address all remaining issues, including Plaintiffs’ First Amendment and APA challenges to both the exemption and the accommodation.

I. BACKGROUND A. Factual Background1
There are nine Plaintiffs in this case, listed below: • Michigan Catholic Conference (“MCC”) • Catholic Charities Diocese of Kalamazoo (“Catholic Charities of Kalamazoo”) • Catholic Diocese of Nashville (“CDN”)

1We have already set forth background of this appeal in detail, see Mich. Catholic Conference, 755 F.3d at 378–82, and take only a moment to summarize the most salient facts.

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• Catholic Charities of Tennessee, Inc. (“Catholic Charities of Tennessee”) • Camp Marymount, Inc. (“Camp Marymount”) • Mary, Queen of Angels, Inc. (“MQA”) • St. Mary Villa, Inc. (“St. Mary Villa”)
• Aquinas College • Dominican Sisters of St. Cecilia Congregation (“St. Cecilia Congregation”)
Some of these Plaintiffs are eligible for the exemption, others for the accommodation. These provisions work slightly differently from one another. See Little Sisters of the Poor Home for the Aged v. Burwell, __ F.3d ___, 2015 WL 4232096, at *5–*8 (10th Cir. July 14, 2015).

1. The Exemption
Under the exemption, religious employers (as defined by federal law2) do not need to provide contraceptive coverage to individuals covered under their insurance plans. These employers did not need to provide or pay for (or have their insurance issuer provide or pay for) contraceptive coverage prior to the enactment of the ACA, and they do not need to do so now. There is no need for them to object to the contraceptive mandate because, for these entities, nothing has changed. Three Plaintiffs in this case (MCC, CDN, and St. Cecilia Congregation) are eligible for the exemption. See Mich. Catholic Conference, 755 F.3d at 385.

2The regulatory framework behind the exemption is somewhat complex. First, 45 C.F.R. § 147.131(a) provides that “the Health Resources and Services Administration may establish an exemption from such guidelines with respect to a group health plan established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer) with respect to any requirement to cover contraceptive services under such guidelines.”
That regulation, in turn, implicates 76 Fed. Reg. 46,621 (Aug. 3, 2011), “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act.” This provision proposed to define “religious employer” as follows: “a religious employer is one that: (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code.” Id. at 46,623.
After reviewing hundreds of thousands of comments to this proposed definition, the federal government adopted this definition into law in February 2012. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8727 (Feb. 15, 2012).
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2. The Accommodation
The accommodation applies to objecting non-profit entities and—in the wake of Hobby Lobby—to closely held, for-profit corporations as well. None of the remaining Plaintiffs are closely held corporations; they fall within the accommodation because they are non-profits that object to the contraceptive mandate. Of these six Plaintiffs, five offer a “fully-insured group health plan[]”: Catholic Charities of Tennessee, Camp Marymount, MQA, St. Mary Villa, and Aquinas College. Id. at 379. Only one—Catholic Charities of Kalamazoo—offers a self-insured plan. Id. at 386 n.10. Fully-insured group health plans operate somewhat differently from selfinsured health plans—with different implications for the contraceptive mandate. See, e.g., Little Sisters of the Poor, 2015 WL 4232096, at *8–*10; E. Tex. Baptist Univ. v. Burwell, __ F.3d ____, 2015 WL 3852811, at *2 (5th Cir. June 22, 2015).
a. Fully-Insured Plans vs. Self-Insured Plans
Under a fully-insured group plan (also known as a fully-insured plan or an insured plan), “insurance [for the non-profit entity] is purchased from a regulated insurance company.” Mich. Catholic Conference, 755 F.3d at 379 n.4 (quoting 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1 (3d ed. 2013)). Typically, “the employer pays a per-employee premium to an insurance company, and the insurance company assumes the risk of providing health coverage for insured events.” Health Plan Differences: Fully-Insured vs. Self-Insured, EMP. BENEFIT RESEARCH INST., Fast Facts from EBRI (Feb. 11, 2009), http://www.ebri.org/pdf/FFE114.11Feb09.Final.pdf (“Fast Facts from EBRI”).
Under a self-insured health plan, “benefits are paid from contributions supplied by the employer without the assistance of outside insurance.” Mich. Catholic Conference, 755 F.3d at 378 n.2 (quoting 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1). Thus, employers “bear[] the financial risk of paying claims.” Id. (quoting Government Br. at 7 n.1); see also Fast Facts from EBRI (“In a self-insured plan, instead of purchasing health insurance from an insurance company and paying the insurer a per-employee premium, the employer acts as its own insurer.”). “Self-insured plans often contract with an insurance company or other third party to administer the plan, but the employer bears the risk associated with offering health benefits.” Fast Facts from EBRI.

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b. Complying with the Contraceptive Mandate
For entities that offer a fully-insured plan, the contraceptive mandate works by requiring the insurance company to provide contraceptive coverage without cost-sharing to insured individuals. See 42 U.S.C. §§ 300gg-13. The process is straightforward for non-objecting entities: the insurance company provides contraceptive coverage to individuals under the plan, and the non-objecting entity pays for that coverage through the premium that it is charged.
If an eligible non-profit entity objects to such coverage, it must make its objections known, either through a self-certification procedure or by notifying the Secretary of Health and Human Services. See 45 C.F.R. § 147.131(c)(1). We describe these procedures in greater detail below. After the eligible non-profit entity objects, “the [insurance] issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 C.F.R. § 147.131(c)(2)(ii). Instead, “[t]he [insurance] issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” Id. In addition, the insurance company must send notice to plan participants, separately from regular plan materials, explaining that the employer does not administer or fund contraceptives but that the insurance company provides separate payments for these services. 45 C.F.R. § 147.131(d).
Under a fully-insured plan, the obligations of the insurance company remain the same, regardless of whether the non-profit entity that it works with objects to contraceptive coverage. If a non-profit entity does not object, the insurance company must, as a matter of federal law, provide contraceptive coverage to insured individuals without cost-sharing. If a non-profit entity does object, the insurance company must, as a matter of federal law, provide contraceptive coverage to insured individuals without cost-sharing. The sole point of difference between an entity that decides to exercise the accommodation and an entity that does not is who must pay for the coverage: the insurance company (if the entity objects) or the entity (if the entity does not object).

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The contraceptive mandate works differently vis-à-vis self-insured plans. Under these plans, employers bear the risk associated with offering health benefits to their employees. “In [its] simplest form, the employer uses the money that it would have paid the insurance company and instead directly pays health care claims to providers.” Fast Facts from EBRI. Functionally, however, most companies work with a third-party administrator (“TPA”), which “perform[s] functions such as developing networks of providers, negotiating payment rates, and processing claims.” Mich. Catholic Conference, 755 F.3d at 378 n.2 (quoting Government Br. at 7 n.1). Here, Catholic Charities of Kalamazoo works with TPAs Blue Cross Blue Shield of Michigan and Express Scripts.
For non-objecting self-insured entities, compliance with the mandate is fairly straightforward. An insured individual seeks coverage, the TPA processes the claim, and the entity pays for that claim. Objecting self-insured entities, on the other hand, must make their concerns known, through the same procedures provided for fully-insured plans. After the objecting entity does so, responsibility shifts to the TPA: the TPA must now provide contraceptive coverage to insured individuals. The federal government will reimburse TPAs for their expenses for providing such coverage. See 45 C.F.R. § 156.50(d). As with fully-insured plans, the TPAs must give notice to plan participants explaining that the employer does not administer or fund contraceptives but that the services are nonetheless provided for and covered by the TPA. 29 C.F.R. § 2590.715-2713A(d). The table below makes clear where each Plaintiff in this case stands.

Fully-Insured Self-Insured

Eligible for Accommodation Catholic Charities of Tennessee Camp Marymount MQA St. Mary Villa Aquinas College Catholic Charities of Kalamazoo

Eligible for Exemption MCC CDN St. Cecilia Congregation

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c. Exercising the Accommodation
Objecting entities may exercise the accommodation in one of two ways. The first procedure requires the entity to fill out a two-page form, EBSA Form 700. This form requires organizations to list three pieces of information: the “[n]ame of the objecting organization,” the “[n]ame and title of the individual who is authorized to make, and makes, this certification on behalf of the organization,” and the “[m]ailing and email addresses and phone number for the individual listed above.” EBSA Form 700, U.S. DEP’T OF LABOR, available at http://www.dol.gov/ebsa/healthreform/regulations/coverageofpreventiveservices.html. EBSA Form 700 also requires that the organization self-certify that it is eligible for and seeks to exercise the accommodation. See Mich. Catholic Conference, 755 F.3d at 381 (describing criteria for eligibility).3 “The organization or its plan using this form must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.” EBSA Form 700. This completes the selfcertification process.
Objecting entities may also opt for a second approach: providing notice directly to the Secretary of Health and Human Services. This alternative emerged in the aftermath of the Supreme Court’s order on application for an injunction in Wheaton College v. Burwell, 134 S. Ct. 2806, 2807 (2014), where the Court held in an interim order that objecting entities “need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators” in order to obtain the accommodation. As the Court noted, the contraceptive mandate would not be enforced against an objecting entity so long as that entity “informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Id. Federal regulations have since specified that, if an entity opts to take this approach in lieu of self-certification, the notice must include:

3Since we published our initial opinion, the only change to these eligibility requirements has been to expand them to include “closely held for-profit entit[ies],” in light of Hobby Lobby. See 29 C.F.R. § 2590.7152713A(a)(2)(ii); 29 C.F.R. § 2590.715-2713A(a)(4).
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a. “the name of the eligible organization and the basis on which it qualifies for an accommodation,”
b. “its objection based on sincerely held religious beliefs to coverage of some or all contraceptive services,”
c. “the [insurance] plan name and type,” and d. “the name and contact information for any of the plan’s third party
administrators and health insurance issuers.”
29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B) (self-insured plans); 29 C.F.R. § 2590.715-
2713A(c)(1)(ii) (fully-insured plans). As evidenced below, these approaches are remarkably
similar to one another.

Self-Certification

Notice

Must be . . .

An eligible organization with a sincerely An eligible organization with a sincerely

held religious objection to providing held religious objection to providing

contraceptive coverage

contraceptive coverage

Must provide . . .

Name of organization

Name of organization

Name and title of individual authorized to Name and type of insurance plan make certification

Contact information of individual Contact information of TPA or health

authorized to make certification

insurance issuer

Must be delivered to TPA or health insurance issuer

Secretary of HHS

. . .

That is not a coincidence. Consider the actors at play: the non-profit, the insurance issuer (or, for self-insured plans, the TPA), and the government. When a non-profit chooses to exercise the accommodation via self-certification, it essentially says to its insurer, “I don’t support providing contraception coverage and I’m not going to pay for it. You and the government need to figure out what to do from here.” On the other hand, when a non-profit chooses to exercise the accommodation via notice, it essentially says to the government, “I don’t support providing contraception coverage and I’m not going to pay for it. You and my insurer need to figure out what to do from here.” These procedures are functionally equivalent.

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B. Procedural History
This case is a consolidated appeal of two cases, one arising out of the U.S. District Court for the Western District of Michigan and the other from the U.S. District Court for the Middle District of Tennessee. Both district courts denied Plaintiffs’ request for preliminary injunctive relief. Mich. Catholic Conference, 755 F.3d at 381–82. We affirmed. Id. at 398. Plaintiffs then filed a petition for a writ of certiorari. Pet. for Writ of Cert., Mich. Catholic Conference v. Burwell (No. 14-701), 2014 WL 7166539. The Supreme Court granted this petition, vacated our judgment, and remanded the case back to us for further consideration in light of Hobby Lobby. We requested and received supplemental briefing from the parties.
II. ANALYSIS
A. Standard of Review
“We review the district court’s denial of preliminary . . . injunctive relief for abuse of discretion.” Jolivette v. Husted, 694 F.3d 760, 765 (6th Cir. 2012). “In considering whether preliminary injunctive relief should be granted, a court considers four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Id. (internal quotation marks omitted). “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Id. (internal quotation marks omitted).
B. Likelihood of Success on the Merits
We begin our analysis by reviewing Hobby Lobby, as the Supreme Court instructed us to do. We then examine what effect (if any) Hobby Lobby had on our initial opinion, and explain why we adhere to our original disposition. Finally, we survey case law from our sister circuits to show that our conclusions are well supported by the reasoning of our judicial colleagues.

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1. Hobby Lobby
The central issue in Hobby Lobby was whether the federal government may, under RFRA, “demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.” Hobby Lobby, 134 S. Ct. at 2759. The Court answered this question in the negative. This conclusion was the product of a multi-step analysis. First, the Court determined that HHS’s contraceptive mandate “impose[d] a substantial burden” on the corporations’ exercise of their religious beliefs. 134 S. Ct. at 2775–79. Next, it assumed without deciding that the mandate served a compelling government interest. Id. at 2780. Notwithstanding this assumption, however, it held that the regulations were nonetheless not “the least restrictive means of furthering th[is] compelling governmental interest.” Id.
Hobby Lobby tells us, in sum, that the government cannot compel closely held companies with sincere religious objections to provide contraception coverage to their employees. But that issue is fundamentally different from the issue at the heart of this case—whether an entity’s decision not to provide such coverage by exercising an accommodation is, by itself, a violation of that entity’s religious beliefs.4 We upheld this accommodation against a RFRA challenge in our initial opinion. Nothing in Hobby Lobby changes this analysis.
In fact, the Court made abundantly clear in its opinion that it was not going to rule on the legality of the accommodation. Id. at 2782 (“We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.”). There are, however, at least some indications from the Court that this arrangement would pass muster. First, the Court discussed the accommodation favorably when compared alongside the more onerous practices that were being contested by petitioners in Hobby Lobby. See id. (“At a minimum . . . [the accommodation] does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.”). Second, the Court, in responding to the charge that it was adopting an

4Plaintiffs raised a number of other claims in their initial briefs before us, alleging, for instance, that the exemption and accommodation also ran afoul of the APA and the First Amendment. Plaintiffs, however, did not renew these challenges in their petition for a writ of certiorari, focusing entirely on the legality of the accommodation vis-à-vis RFRA. This opinion addresses this central issue. We re-issue and re-affirm our prior opinion on all other issues.

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all-too-expansive reading of RFRA, described its holding in Hobby Lobby as being “very specific.” Id. at 2760.
To be fair, neither of these passages provides us with a definitive signal one way or another. But that should not come as a surprise. As we and other courts have made clear, Hobby Lobby attempted to address a question different from the question that we must now take up. See, e.g., Little Sisters of the Poor, 2015 WL 4232096, at *4 (“In other words, unlike in Hobby Lobby, the Plaintiffs do not challenge the general obligation under the ACA to provide contraceptive coverage. They instead challenge the process they must follow to get out of complying with that obligation.”). Under Hobby Lobby, closely held companies with sincere religious objections cannot be compelled to comply with the contraceptive mandate; indeed, like certain non-profit organizations, they are now eligible for an accommodation. But the availability of an accommodation that allows an organization to refrain from paying for contraception does not negate the underlying federal requirement that some entity must provide contraceptive coverage.

2. Plaintiffs’ RFRA Challenge to the Accommodation
a. Question of Law
We made this point clear in our original opinion, stating at the outset that we were presented with a question of “how the regulatory measure actually works”—i.e., what the law actually requires of the various actors (the non-profit entity, the insurer or the TPA, and the federal government). Mich. Catholic Conference, 755 F.3d at 385. That, we held, was a question of law, separate and apart from “the moral or theological consequences of appellants requesting the exemption or accommodation.” Id. Whether a law imposes a substantial burden on a party is something that a court must decide, not something that a party may simply allege.
Every other circuit court to have addressed this issue has come to the same conclusion. In Geneva College v. Secretary of the U.S. Department of Health and Human Services, 778 F.3d 422, 435 (3d Cir. 2015), for example, the Third Circuit rejected Plaintiffs’ argument “that the accommodation requires them to be ‘complicit’ in sin.” The court noted that, regardless of “the reasonableness of the appellees’ religious beliefs,” the court’s legal analysis would instead focus

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on “how the regulatory measure actually works”—echoing our language. Id. at 436. See also Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 247 (D.C. Cir. 2014) (“Accepting the sincerity of Plaintiffs’ beliefs, however, does not relieve this Court of its responsibility to evaluate the substantiality of any burden on Plaintiffs’ religious exercise, and to distinguish Plaintiffs’ duties from obligations imposed, not on them, but on insurers and TPAs. Whether a law substantially burdens religious exercise under RFRA is a question of law for courts to decide, not a question of fact.”); E. Tex. Baptist Univ., 2015 WL 3852811, at *5 (“[W]e are bound to follow [the Supreme Court’s decisions in] Roy and Northwest Indian Cemetery by deciding, as a question of law, whether the challenged law pressures the objector to modify his religious exercise.”); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 614 (7th Cir. 2015) (“The delivery of a copy of the form to [the insurance issuer] reminds it of an obligation that the law, not the university, imposes on it—the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it.”).
On this point, we are particularly mindful of the Tenth Circuit’s analysis in Little Sisters of the Poor. In that case, the court noted that “whether a law substantially burdens religious exercise in one or more of these ways is a matter for courts—not plaintiffs—to decide.” 2015 WL 4232096, at *18. The court acknowledged that “substantiality does not permit us to scrutinize the theological merit of a plaintiff’s religious beliefs—instead, we analyze the intensity of the coercion applied by the government to act contrary to those beliefs.” Id. at *19 (internal quotation marks omitted). “Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.” Id. (quoting Hobby Lobby v. Sebelius, 723 F.3d 1114, 1137 (10th Cir. 2013)) (emphasis added). “In determining whether a law or policy applies substantial pressure on a claimant to violate his or her beliefs, we consider how the law or policy being challenged actually operates and affects religious exercise.” Id. The Tenth Circuit cited legislative history in support of this point, noting that “Congress added the word ‘substantially’ before passage to clarify that only some burdens would violate the act.” Id. at *18. The court also pointed out that, “[i]f plaintiffs could assert and establish that a burden is ‘substantial’ without any possibility of judicial scrutiny, the word ‘substantial’ would become wholly devoid of independent meaning.” Id.

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We are in accord with this reasoning. If the substantiality of a burden were to turn on the “moral or theological consequences” of Plaintiffs’ religious beliefs, then the substantial-burden analysis would not be much of an analysis at all. Indeed, every party alleging a RFRA violation could state that their religious beliefs were being burdened and that the burden was substantial. This was not Congress’s intent when it drafted RFRA, nor have we found any case law to support this interpretation.

b. The Exemption
After determining in our initial opinion that we were confronted with a question of law, we then noted that all Plaintiffs were either “eligible for the religious-employer exemption” or “for the accommodation.” Mich. Catholic Conference, 755 F.3d at 385.
We held that those entities eligible for the religious-employer exemption—MCC, CDN, and St. Cecilia Congregation—had “not demonstrated a strong likelihood of success on the merits” because they had failed to “identify any particular action that they must take to obtain the exemption.” Id. Their mere status as religious employers meant that they did not need to comply with “the requirement to provide contraceptive coverage.” Id. (internal quotation marks omitted). Plaintiffs did not challenge this determination in their petition for a writ of certiorari. See Pet. for Writ of Cert., 2014 WL 7166539, at *3 (“This case is also not about a challenge to an exemption.”). We see no need to revisit our analysis. For entities entitled to the exemption, the ACA does not change a thing. Religious employers did not need to provide, pay for, or facilitate access to contraceptives prior to the ACA, and they do not need to do so now.

c. The Accommodation
We also, in our initial opinion, rejected Plaintiffs’ argument “that the . . . accommodation arrangement forces them to provide, pay for, and/or facilitate access to contraceptive coverage.” Mich. Catholic Conference, 755 F.3d at 384. We adhere to this disposition today, and elaborate upon our reasoning by examining fully-insured and self-insured plans separately.

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(1) Fully-Insured Plans
Five of the remaining six Plaintiffs—Catholic Charities of Tennessee, Camp Marymount, MQA, St. Mary Villa, and Aquinas College—offer fully-insured plans. Under these plans, the insurance company bears the risk of providing coverage and paying for individual claims. In exchange, the non-profit entity pays a premium for each employee. “[P]remiums vary . . . based on employer size, employee population characteristics, and health care use.” Fast Facts from EBRI. Smaller employers are more likely to be fully-insured because such plans insulate them from having to bear the cost of coverage should their employees have to file a number of significant claims. Insurance companies can offer these types of plans so long as they work with multiple entities, thereby evening out the risk associated with any particular entity. Here, for instance, Plaintiffs MQA and St. Mary Villa “collaborate with one another and pool their resources in order to provide a health benefits plan to their employees.” R. 1 (Compl. at ¶ 79) (Page ID #20) (M.D. Tenn.). This health plan “is a fully-insured plan, offered and administered by Blue Cross Blue Shield of Tennessee.” Id. at ¶ 80 (Page ID #20).
Under federal law, insurance companies that provide fully-insured plans must provide contraceptive coverage—this is an obligation independent and irrespective of the wishes of the non-profit entity that it works with. Mich. Catholic Conference, 755 F.3d at 387–88. This legal requirement applies whether or not the non-profit entity objects. The only difference between objecting and non-objecting entities is the cost of the premium that the entity must pay. If the entity does not object, the premium will include the cost of contraceptive coverage. If the entity does object, the premium will not include the cost of coverage. Importantly, for the insured, the effect is the same: under either scenario, the insured will receive coverage.
The process for making one’s objections known is straightforward, and not substantially burdensome. Consider, for instance, what a plaintiff would need to do in order to self-certify. The plaintiff would complete EBSA Form 700 and deliver this form to its insurer. That form requires the entity to state its name, the name of the individual who has made the authorization on behalf of the entity, and that individual’s contact information. This is not a substantial

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burden. It is, in fact, difficult to think of a more de minimis request: tell us who you are, and tell us how we can contact you.5
Our reasoning tracks the Tenth Circuit in this respect. In Little Sisters of the Poor, that court noted that “[b]y delivering the Form or notifying HHS, an organization with an insured plan does not enable coverage—to the contrary, it simply notifies its health insurance issuer that the organization will not be providing coverage.” 2015 WL 4232096, at *22. “The health insurance issuer then has an independent and exclusive obligation to provide that coverage without cost sharing.” Id. “Because the ACA obligates health insurance issuers to provide contraceptive coverage, they must meet this obligation independently and irrespective of the notification. The self-certification does not impose any responsibility; it merely makes it the issuer’s sole responsibility rather than one shared with the group health plan itself.” Id.
Plaintiffs’ arguments to the contrary are without merit. First, Plaintiffs contend that “[m]ost obviously, if Plaintiffs stopped offering health plans, their insurers . . . would have no obligation whatsoever to provide Plaintiffs’ beneficiaries with the objectionable coverage.” Pls.’ Supp. Br. at 11. This argument is not persuasive. It is true that if Plaintiffs decided not to offer health coverage at all, then they would not have to offer coverage for contraceptives. But they would also be breaking the law.6 RFRA does not give parties license to break the law. See Little Sisters of the Poor, 2015 WL 4232096, at *26.
Plaintiffs’ remaining contentions are equally unavailing. They argue that, “in the context of an insured plan, a religious organization’s insurance issuer has no enforceable obligation to provide the mandated coverage unless the organization submits the self-certification or notification form. Without the form, the regulations purport to require the religious organization itself to pay for the objectionable coverage, an arrangement precluded by Hobby Lobby.” Pls.’ Supp. Br. at 12–13 (citation omitted). This is a clever (but incorrect) sleight of hand.

5Other circuits have compared the accommodation provision to the conscientious-objector process. See Priests for Life, 772 F.3d at 246. This analogy is apt.
6“The ACA requires that employers with 50 or more full-time employees provide health insurance for their full-time employees or pay a penalty on their federal tax return.” Mich. Catholic Conference v. Sebelius, 989 F. Supp. 2d 577, 582 (W.D. Mich. 2013).
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As other courts have made clear, “[w]ith insured plans, the health insurance issuer bears legal responsibility to provide contraceptive coverage whether or not the religious non-profit has opted out.” Little Sisters of the Poor, 2015 WL 4232096, at *24 (emphasis added). In other words, Plaintiffs are fundamentally wrong in their understanding of how the law actually works. Contrary to Plaintiffs’ characterization, the religious organization’s insurance issuer does have an enforceable obligation to provide coverage regardless of whether the organization submits a selfcertification or notification form. To be sure, if an organization decides not to self-certify or decides not to notify HHS, then the organization will have to pay for contraceptive coverage. But that is the entire purpose of having an opt-out process: so that objecting entities can identify themselves and so that other actors can proceed accordingly.

(2) Self-Insured Plans
We turn finally to the one Plaintiff in this case offering a self-insured plan: Catholic Charities of Kalamazoo. In our original opinion, we explained why its assertion that it was being compelled to provide, pay for, and/or facilitate contraceptive coverage was unavailing.
First, we held that Catholic Charities of Kalamazoo was “not required to ‘provide’ contraceptive coverage.” Mich. Catholic Conference, 755 F.3d at 386. After an organization makes its objections clear, “the eligible organization’s health plan does not host the coverage.” Id. “Instead, the [organization’s] third-party administrator ‘shall be responsible for . . . compliance with’ the preventive care and screenings provided for in the HRSA guidelines.” Id. (quoting 29 C.F.R. §§ 2510.3-16(b), (b)(1)). “Thus, although the . . . third-party administrator will provide contraceptive coverage, [Catholic Charities of Kalamazoo] will not.” Id. Nor, we noted, was Catholic Charities of Kalamazoo “required to ‘pay for’ contraceptive coverage.” Id. The TPA must instead pick up the tab. Regulations allow these companies to seek up to 110% reimbursement from the federal government. See Univ. of Notre Dame, 786 F.3d at 609. The accommodation, in other words, essentially shifts the cost of contraceptive coverage from the objecting entity to the federal government. Finally, we stated that Catholic Charities of Kalamazoo was “not required to ‘facilitate access to’ contraceptive coverage.” Mich. Catholic Conference, 755 F.3d at 387. “The obligation to cover contraception will not,” we noted, “be triggered by the act of self-certification—it already was triggered by the enactment of the ACA.”

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Id.; see also id. at 389 (“Self-certification allows the eligible organization to tell the insurance issuer and third-party administrator ‘we’re excused from the new federal obligation relating to contraception,’ and in turn, the government tells those insurance companies, ‘but you’re not.’” (quoting Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 557 (7th Cir. 2014))).
This analysis remains valid. As other courts have acknowledged, the contraceptive mandate works differently with respect to a self-insured plan. See E. Tex. Baptist Univ., 2015 WL 3852811, at *2; Little Sisters of the Poor, 2015 WL 4232096, at *24 (“With selfinsured plans, the TPA shoulders legal responsibility for coverage only after the religious nonprofit has opted out.”). Unlike the insurance issuer in a fully-insured plan, a TPA does not necessarily have an independent obligation to provide contraceptive coverage because, as a TPA, it does not necessarily have an independent obligation to provide any coverage. For nonobjecting entities, all a TPA is supposed to do is assist the entity by, for example, developing provider networks or negotiating discounted rates for services. The TPA is supposed to serve strictly as an administrator; the risk and cost of providing coverage are borne by the entity. With respect to the contraceptive mandate, the TPA steps in only when the entity—here, Catholic Charities of Kalamazoo—makes its objections known.7 According to Plaintiffs, this conditional language means that an action that a Plaintiff takes “triggers the TPA’s obligation to ‘provide or arrange payments for contraceptive services.’” Pls.’ Supp. Br. at 12 (quoting 26 C.F.R. § 54.9815-2713AT(b)(2)).
This assertion is incorrect. As the Tenth Circuit explained in Little Sisters of the Poor, “[b]y opting out, the self-insured plaintiffs shift their duty to provide coverage to a TPA, but they do not change their plan participants and beneficiaries’ entitlement to contraceptive coverage under federal law.” 2015 WL 4232096, at *25. To be sure, “opting out is necessarily a but-for cause of someone else—the TPA—providing contraceptive coverage.” Id. But “that is the point of an accommodation—shifting a responsibility from an objector to a non-objector. That is how a legislative policy choice—here, to afford women contraceptive coverage—can be reconciled with religious objections to that policy.” Id. To put it another way, RFRA allows certain parties

7We noted in our original opinion that “[n]othing in the record indicates that Catholic Charities of Kalamazoo’s third-party administrator has refused to provide contraceptive coverage upon receipt of a selfcertification form.” 755 F.3d at 386 n.11. Plaintiffs have not challenged this determination.

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to request that the government create an exception to the rule for that particular party. It does not, however, allow accommodated parties to challenge the rule itself. See Mich. Catholic Conference, 755 F.3d at 388 (“‘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.’” (quoting Bowen v. Roy, 476 U.S. 693, 699 (1986))). Indeed, Plaintiffs have all but conceded this point. See Pet. for Writ of Cert., 2014 WL 7166539, at *3 (“Although Petitioners . . . oppose the Government’s goal of providing such coverage, they do not challenge the legality of that goal.”).
Despite our attempts to describe how the accommodation actually works, it is perhaps inevitable that some Plaintiffs will still believe that they are morally complicit in sin, by being a part of a system that provides access to contraceptives. See, e.g., id. (“Petitioners ask only that they not be forced to violate their religious beliefs by participating in the regulatory scheme by which the Government seeks to accomplish its ends.”). However, it is not our role to determine a party’s moral complicity; we do not question here Plaintiffs’ “desire not to participate in the provision of contraception.” Mich. Catholic Conference, 755 F.3d at 384. Our role is a more limited one: to determine whether, as a legal matter, the regulation represents a substantial burden to Plaintiffs’ rights under RFRA. That requires us to determine how the law works and what it asks of various actors. On this point, as we held before, “[t]he government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’ exercise of religion.” Id. at 388.
3. Supporting Case Law
Our sister circuits have also arrived at this conclusion. Similar legal challenges have been brought in a number of other federal courts. As of this writing, six other circuits have addressed whether the accommodation passes muster under RFRA. All six have upheld the accommodation, and all six have held that Hobby Lobby does not suggest anything to the contrary.
In Geneva College, the Third Circuit was confronted with a set of three plaintiffs—two that offered self-insured health plans and one that offered a fully-insured health plan. In the course of upholding the accommodation against all three plaintiffs, the court discussed and

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dismissed the plaintiffs’ reliance on Hobby Lobby. 778 F.3d at 436–37; see also id. at 441 (“[C]ase law clearly draws a distinction between what the law may impose on a person over religious objections, and what it permits or requires a third party to do. Although that person may have a religious objection to what the government, or another third party, does with something that the law requires to be provided (whether it be a Social Security number, DNA, or a form that states that the person religiously objects to providing contraceptive coverage), RFRA does not necessarily permit that person to impose a restraint on another’s action based on the claim that the action is religiously abhorrent.”).
The D.C. Circuit likewise rejected plaintiffs’ RFRA challenge to the accommodation in Priests for Life. The court subsequently denied the plaintiffs’ petition for rehearing en banc. The court’s decision to deny rehearing was accompanied by a six-page concurral from Judge Pillard, which she wrote “only to underscore why our court’s [prior] approach accords with the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc.” Priests for Life, No. 13-5368, slip op. at 1 (D.C. Cir. May 20, 2015) (Pillard, J., concurral). Judge Pillard noted that the provisions at issue in Priests for Life were legally “distinct” from those that were challenged in Hobby Lobby. Id. In Hobby Lobby, the petitioners were “accorded . . . a victory in a contest over what religious meaning to ascribe to [their] payment for contraceptive coverage.” Id. at *5. “That holding,” however, “does not require us to credit Priests for Life’s legally inaccurate assertions about the operation of the regulation they challenge.” Id. “[T]he whole point of the challenged regulation is to scrupulously shield objecting religious nonprofits from any role in making contraception available to women”—in other words, to prevent organizations from having to provide, pay for, or facilitate access to contraceptives. Id. at *6; see also Catholic Health Care Sys. v. Burwell, ____ F.3d ____, ____, 2015 WL 4665049, at *10 (2d Cir. Aug. 7, 2015) (relying on Priests for Life, 722 F.3d at 253, and stating that “[v]iewed objectively, completing a form stating that one has a religious objection is not a substantial burden.”).
Next, the Fifth Circuit rejected an accommodation challenge in East Texas Baptist University. The court acknowledged that “the plaintiffs have identified several acts that offend their religious beliefs.” 2015 WL 3852811, at *5. But “the acts they [the plaintiffs] are required to perform do not include providing or facilitating access to contraceptives.” Id. “Instead, the

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acts that violate their faith are those of third parties.” Id. RFRA, however, “confers no right to challenge the independent conduct of third parties.” Id. The court went on to address and reject the plaintiffs’ remaining arguments in short order, noting that federal law, not the accommodation, triggers contraceptive coverage, id.; that the regulations do not require plaintiffs to pay for contraceptive coverage (in fact, they do the exact opposite), id. at *6; and that the accommodation does “not make it easier for [insurers] to pay for contraceptives, and do[es] not imply endorsement of contraceptives,” id. at *7.
Finally, decisions from the Seventh Circuit and the Tenth Circuit are particularly informative, given the procedural similarity between our case and the Seventh Circuit’s Notre Dame case and the thoroughness of the Tenth Circuit’s decision.
As in our case, the Seventh Circuit initially rejected appellants’ challenge to the accommodation, in a decision published before Hobby Lobby. See Univ. of Notre Dame, 743 F.3d at 559. Notre Dame subsequently filed a petition for a writ of certiorari. The Supreme Court granted Notre Dame’s petition, vacated the Seventh Circuit’s judgment, and remanded the case “for further consideration in light of Burwell v. Hobby Lobby Stores, Inc.” 135 S. Ct. 1528 (2015). On remand, the Seventh Circuit once again denied Notre Dame’s request for injunctive relief. 786 F.3d at 619. The court rejected Notre Dame’s allegation that it served as a “conduit between the suppliers of [contraceptive] coverage and the university’s students and employees.” Id. at 612. As the Seventh Circuit explained, “the only ‘conduit’ is between the [insurance] companies and Notre Dame students and staff; the university has stepped aside.” Id.; see also id. at 614 (“[I]n invoking the [accommodation] the university . . . throws the entire administrative and financial burden of providing contraception on the health insurer and third-party administrator, which are secular organizations that unlike the university have no aversion to providing contraceptive coverage. The result is to lift a burden from the university’s shoulders.”). The court also considered various alternative measures proposed by Notre Dame. It rejected all of them. It noted that one alternative was “not contraception at all,” that another alternative “elide[d] all consideration of the costs and complications of the administrative machinery for providing tax incentives to consumers,” and that the remaining alternatives

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“involve[d] cumbersome administrative machinery and . . . impose[d] a burden on Notre Dame’s female students and employees who want to obtain contraceptives.” Id. at 617.
The Seventh Circuit’s recent decision in Wheaton College v. Burwell, __ F.3d ____, 2015 WL 3988356 (7th Cir. July 1, 2015), is likewise informative. This decision came in the aftermath of the Supreme Court’s order, discussed above, where the Court held that Wheaton College need not complete EBSA Form 700, but could instead inform the Secretary of HHS of its objections to the contraceptive mandate. Despite this order, “[t]he college argue[d] that it remain[ed] involuntarily complicit in the provision of emergency contraception because its notification to the Department that it objects to the provision of contraception on religious grounds serves as the ‘trigger’ of the Department’s ordering the insurers to cover emergency contraception.” Id. at *4. The Seventh Circuit rejected this characterization, carefully explaining why the college’s position was incorrect. “To exercise this right of refusal the college has only to notify its health insurers, or if it prefers the Department of Health and Human Services, of its unwillingness to provide coverage. The insurers are then obligated by the Affordable Care Act to provide the coverage directly . . . . The college and its health plans are thus bypassed.” Id. at *3. “So when Wheaton College tells us that it is being ‘forced’ to allow ‘use’ of its health plans to cover emergency contraceptives, it is wrong. It’s being ‘forced’ only to notify its insurers (including third-party administrators), whether directly or by notifying the government (which will forward the notification to the insurers), that it will not use its health plans to cover emergency contraception.” Id.
Finally, and most recently, the Tenth Circuit denied an accommodation challenge in Little Sisters of the Poor. We have referred to its reasoning throughout our opinion, and now take note of only a few of the court’s pertinent observations. First, the court highlighted the unusual nature of the plaintiffs’ claims. As it noted, “[m]ost religious liberty claimants allege that a generally applicable law or policy without a religious exception burdens religious exercise, and they ask courts to strike down the law or policy or excuse them from compliance.” 2015 WL 4232096, at *14 (emphasis added). Yet, in this case, “the Departments have developed a religious accommodation rather than leaving it for the courts to fashion judicial relief.” Id. Thus, “[p]laintiffs not only challenge a law that requires them to provide contraceptive coverage

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against their religious beliefs, they challenge the exception that the law affords to them.” Id. None of the legal precedents cited by the plaintiffs “involve a situation where the government offer[ed] religious objectors an accommodation.” Id. The court then took note of its prior decision in United States v. Friday, 525 F.3d 938 (10th Cir. 2008), where it had stated that, “[l]aw accommodates religion; it cannot wholly exempt religion from the reach of the law.” Id. at *15 (quoting Friday, 525 F.3d at 960). This discussion underscores the atypical nature of Plaintiffs’ claim in this case. No court has invalidated an accommodation that is as simple to comply with as the one at issue in this case. We see no reason to do so now.
The Tenth Circuit’s discussion of the opt-out process also strongly supports our analysis. The court stated that the “[p]laintiffs are not substantially burdened solely by the de minimis administrative tasks this involves.” Id. at *30. “All opt-out schemes require some affirmative act to free objectors from the obligations they would otherwise face.” Id. “Having to file paperwork or otherwise register a religious objection, even if one disagrees with the ultimate aim of the law at issue, does not alone substantially burden religious exercise.” Id. The point of the accommodation is to insulate objecting entities from providing, paying for, or facilitating access to contraception. The process for obtaining the accommodation is not burdensome, as it requires no more effort than would be required for any routine administrative task.
These cases highlight the multitude of reasons why Plaintiffs’ arguments in this case fail: because there is an underlying federal obligation to provide contraceptive coverage, because the opt-out is hardly a burden at all (much less a substantial burden), because the whole point of a federal religious accommodation is to accommodate the beliefs of the religious organization with the valid legislative policy goals set forth by Congress. The consistent reasoning of our sister circuits supports this conclusion.

C. Remaining Factors for Injunctive Relief
The remaining factors that we must consider in evaluating a request for preliminary injunctive relief are: “(2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Jolivette, 694 F.3d at 765 (internal quotation marks omitted). “[A] finding that there is simply no

Case 3:13-cv-01303 Document 80 Filed 08/21/15 Page 25 of 27 PageID #: 1505

Case: 13-2723 Document: 82-2 Filed: 08/21/2015 Page: 24

(26 of 27)

Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al.

Page 24

likelihood of success on the merits is usually fatal.” Id. (internal quotation marks omitted). There is nothing in the three remaining factors that outweighs the clear unlikelihood of success in this case. The district courts did not abuse their discretion by denying Plaintiffs preliminary injunctive relief.

III. CONCLUSION
The accommodation at issue here does not violate RFRA. We RE-ISSUE and REAFFIRM our prior opinion, Michigan Catholic Conference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014), with respect to all other issues raised by Plaintiffs. Accordingly, we AFFIRM the district courts’ judgments denying preliminary injunctive relief to Plaintiffs on all of their claims.

Case 3:13-cv-01303 Document 80 Filed 08/21/15 Page 26 of 27 PageID #: 1506

Case: 13-2723 Document: 82-3 Filed: 08/21/2015 Page: 1

(27 of 27)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Nos. 13-2723/6640

MICHIGAN CATHOLIC CONFERENCE and CATHOLIC FAMILY SERVICES d/b/a Catholic Chartities Diocese of Kalamazoo (13-2723); THE CATHOLIC DIOCESE OF NASHVILLE, CATHOLIC CHARITIES OF TENNESSEE, INC., CAMP MARYMOUNT, INC., MARY, QUEEN OF ANGELS, INC., ST. MARY VILLA, INC., DOMINICAN SISTERS OF ST. CECILIA CONGREGATION, and AQUINAS COLLEGE (13-6640),
Plaintiffs - Appellants,

FILED
Aug 21, 2015
DEBORAH S. HUNT, Clerk

v.

SYLVIA MATTHEWS BURWELL, Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, Secretary of the United States Department of Labor; JACOB J. LEW, Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF TREASURY,
Defendants - Appellees.

Before: MOORE and ROGERS, Circuit Judges; NIXON, District Judge.

JUDGMENT

On Appeals from the United States District Courts for the Western District of Michigan at Grand Rapids
and the Middle District of Tennessee at Nashville.

THIS CAUSE was heard on the records from the district courts and was submitted on the supplemental briefs of counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that this court’s prior opinion, Michigan Catholic Conference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014), is REISSUED and REAFFIRMED, with respect to all issues raised by Plaintiffs. Accordingly, IT IS FURTHER ORDERED that the judgments of the district courts denying preliminary injunctive relief to Plaintiffs on all of their claims are AFFIRMED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk
Case 3:13-cv-01303 Document 80 Filed 08/21/15 Page 27 of 27 PageID #: 1507

 
 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made th is 13th day of October 2017, by and between the entities and individuals listed in Exhibit A ("Plaintiffs") and the United States of America, acting by and through Eric D. Hargan, in hi s offic ial capacity as Acting Secretary of Health and Human Services; R. A lexander Acosta, in hi s offic ial capacity as Secretary ofLabor; Steven T. M nuchin, in his official capacity as Secretary of the Treasury; the United States Department of Health and Human Services; the United States Department ofLabor; and the United States Department of the Treasury (the "Government" or the " D epartme nts") (collectively, the " Parties").
R EC ITALS WHEREAS, there is now pending a series of lawsuits listed in Exh ibit B (collectively, the " Litigation'") in which Pla intiffs a llege that the Government has, among other things, vio lated the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-I et seq., by promulgating and enforcing regulations pursuant to 42 U.S.C. § 300gg-13 that required Plaintiffs to take actions that facilitated the prov is ion, through or in connection with their health plans, of Food and Drug Administration-approved contraceptive methods and abortifacients, as wel I as sterilization procedures and re lated patient education and counseling to which Plaintiffs object on relig ious grounds ("the Objectionable Coverage"). The regulations were found at 26 C.F.R. § 54.98 l 5-27 I 3A (Sept. 14, 20 15), 26 C.F. R. § 54.98 15-27 13(a)(l)(iv) (July 19, 2010), 29 C.F.R. § 2590.7 152713A (Sept. 14, 2015), 29 C.F. R. § 2590.715- 2713(a)(l)(iv) (July 19, 20 10), 45 C.F.R.
I of 10

§ 147.13 1 (Sept. 14, 20 15), and 45 C.F.R. § 147.l30(a)(l)(iv) (July 19, 20 10) (the ·' Regulations' ').
\\'HEREAS, the Departments of Hea lth and Huma n Services, Labor, and T reasury have issued new regulations afford ing Plaintiffs an exemption. 82 Fed. Reg. 47.792 (Oct. 13, 20 17), available at https://www.gpo.gov/ fd sys/pkg/F R-20 17-I 013/pd f/2 017-21851 .pdf.
WHEREAS, those new regulations state that " requiring certain objecting entities or indiv idua ls to choose between the Mandate, the accommodatio n, o r penalties fo r noncompliance imposes a substantia l burden on relig ious exercise under RFRA," that " the application of the Mandate to certa in o bjecting employers [i]s [not] necessary to serve a compelli ng governmental interest,"' and that "alternati ve approaches can further the interest the Departments prev ious ly identified behind the Mandate." 82 Fed. Reg. 47,792, 4 7,800. 47,806 (O ct. 13, 20 17), available at https://www.gpo.gov/fdsys/pkg/FR-20 17- 1013/pdf/20 17-2 185 1.pdf.
WH EREAS, recent Executi ve Orders establish that it is the po licy of the Government •·to vigorous ly enfo rce Federal law's robust protecti ons for re ligious freed om." and to '·exercise al l authority and discretion available ... to waive, defer, grant exem ptio ns from, o r delay the implementation o f any provision o r req uire ment of the [Affordab le Ca re] Act that wou ld impose ... a cost, fee, tax, pena lty, o r regulatory burden on ... health insurers, ... [o r] purchasers of hea lth insurance ." Executi ve Order 13798, Promoting Free Speech and Religio us Liberty 82 Fed. Reg.2 1,675 (May4, 20 17); Executi ve
2of 10

Order 13765, Minimizing the Economic Burden on the Patient Protectio n and Affordable Care Act Pending Repeal 82 Fed. Reg. 8,351 (Jan. 20, 2017).
WHEREAS, after yea rs of liti gatio n, the Supreme Court considered the claims m these cases and, instead of reso lving the legal issues, remanded the cases to allow the parties to "resolve any o utstanding issues between them." Zubik v. Burwell, 136 S. Ct. 1557, 1560(2016).
WHEREAS, the Supreme Court's remand orders provided that "the Government may not impose taxes o r penalties on [Plaintiffs] for fa il ure to provide the ... notice" required by the Regu lations. Id. at 1561.
WHEREAS, the new regulations, the Supreme Court's remand order, and the President's Executive Orders have placed this litigation in an extraordi nary posture.
WHEREAS, it is the desire of the Parties to resolve finally and permanently a ll disputes, asserted or unasserted, arising out o f, or related to the matters set forth , a lleged , embraced by, o r otherwi se referred to in the Litigation.
NOW THEREFORE, in consideration of the Rec itals and mutual promises contained herein, including the discontinuation of the pending Litigation, and fo r other good and valuable consideration hereby deemed rece ived , the Parties agree as follows :
TERMS OFAGREEMENT
I. The Paities agree that, under the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Affordable Care Act's "contraceptive mandate." if applied as set out in 26 C.F.R. § 54.98 l 5-27 l 3(a)(l )(iv) (July 19, 2010), 29 C.F.R. §2590.715- 2713(a)(l)(iv) (July 19, 20 10), and 45 C.F.R. § 147.130(a)( l)( iv) (Ju ly
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19, 2010), would .. impose(] a substantial burden on [Plaintiffs'] exercise of religion," id. at 2779, and "violate[] RFRA," id. at 2785. The Government therefore agrees that the "contraception mandate" as described in Hobby lobby cannot be legal ly enforced. under RFRA, against Plaintiffs or their health plans.
2. The Government agrees, with respect to all Plaintiffs, to abide by the terms of the permanent injunction in Zubik v. Sebelius, 13-cv- 1459, l3-cv-303. 20 13 WL 6922024 (W.D. Pa. Dec. 20, 20 13), as it relates to the Objectionable Coverage. The Government accordingly will treat Plaintiffs and their health plans, including their insurance issuers and/or third party administrators in connection with those health plans, as exempt from the Regulations or any materially similar regulation or agency policy. A materially similar regulation or agency policy includes any requirement that Plaintiffs, their insurance issuers, or their third-pa11y administrators provide any of the Objectionable Coverage through or in connection with Plaintiffs' health plans, wh ich means:
a. Plainti ffs (and their insurers and third-party administrators acting in connection with Plaintiffs' health plans) may provide health coverage without the Objectionable Coverage, and no procedure for providing any of the Objectionable Coverage may require any action by Plaintiffs;
b. If the Objectionable Coverage is provided, it may not be provided as part of any health plan sponsored by Plaintiffs, but instead must be provided through a separate and distinct health plan or other arrangement that is separate and distinct from Plaintiffs' health plan;
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c. Plaintiffs or the ir health plans may not be requ ired to pay fo r the provision of the Objectionable Coverage, either directly or indirectly (though Plai ntiffs are not excused from paying generally appl icable taxes);

d. An insurance or health plan card issued in conjunction with Plaintiffs ' hea lth plans may not be used by any person to obtain any of the products or services included within the Objecti onab le Coverage, or payment or reimbursement therefor:

e. No person may receive the Objectionable Coverage as an automatic consequence of enro llment in any health plan sponsored by Plaintiffs;

f.

If the Government seeks to prov ide the Objectionable Coverage to individuals

partic ipating in Plaintiffs' health plans, such provis ion may only be through

separate enrollments by those individuals in a separate and distinct hea lth pl an

or other separate and disti nct arrangement to obtain the Objectionable Coverage;

a nd

g. Any communications regarding the Objectionable Coverage, other than disc losures in plan documents required by federal law that the Obj ectionable Coverage is not covered by the plan or notice provided for in foo tnote I of this agreement, must be separate from communications relating to Plaintiffs' health plans.

3. The Government further agrees to withd raw any letters sent to Plaintiffs· issuers and/or third-party admini strators. pursuant to 29 C.F.R. §2590.715-27 13A and 45

5 of I0

C.F. R. § 147.1 3 1, as they re late to the provision of any of the Objectionable Coverage with in 14 days of the effective date of this agreement. 1
4. The Government furth er agrees, in light of interim relief ordered by several courts. including the Supreme Court in Zubik, that neither Plaintiffs that are party to this Agreement nor their health plans, insurers, or third-party administrators acting in connection with Plainti ffs' health plans shall be subject to any penalties or other adverse consequences, since August 20 11 , as a result of their non-compIiance with any law or regulati on requiring the provision of the Objectionable Coverage that the government is prohibited from enforcing by the terms of this agreement.
5. Notwithstanding this Agreement, the Plaintiffs retain their full legal rights to challenge any new law, regulation, or other requirement that the government may enact or impose relating to the provision of Objectionable Coverage and to challenge or defend against such action on any grounds they choose (including the Constitution, federal law, and/or this Agreement). Nothing herein shall be construed as an admission or indication that any law, regulation, or other requirement wou ld be lawful or unobj ectionable to Plaintiffs.
6. The Parties agree to resolve all proceedings identified above and to fil e such papers as are necessary to terminate the Litigation. In all cases where appeals are current ly pending, the parties will file dismissals of appea l under Federal Rule of Appellate Procedure
1 The effective date of the withdrawal may be contingent on proper notice being given to participants. If contraception coverage is currently being offered by an issuer or third-party adm inistrator. the cessation of coverage wou ld be effective no sooner than the first day of the first plan year that begins thirty days after the date of this Settlement Agreement (to allow for the provision of notice to plan participants in cases where contraceptive bene fits will no longer be provided). Alternatively, sixty-days advance notice may be given pursuant to 42 U.S.C. § 300ggl 5(d)(4) if app licab le.
6of 10

42(b). After the appea ls are dism issed, the parties agree that they wil ljointly file stipulations of dismissal or motions fo r dismissa l under Federa l Rule of Civ il Procedure 41 (a), except in cases where there is a final judgment in the district court. This agreement shall not be effective until the Parties fil e dismissals of all appeals currently pending.
7. The Government agrees to pay Plaintiffs $3 million in costs and fees . 8. The Parties agree that this Agreement constitutes a good-fa ith settlement of the Litigation for good and va luable consideration and acknowledge that it is entered into freely and voluntarily. 9. The Parties further agree that thi s Agreement has been full y read and understood by them, and that each of them has received independent legal advice from their respective attorney(s) as to the effect and import of its prov isions. The Parties furth er agree that this Agreement is being entered into for the express purpose and intention of mak ing and entering inco a full and final compromise, adjustment, and settlement of all c laims which were or could have been asserted in the Litigation, whether or not referred to therein. I0. This Agreement constitutes the sole and entire agreement between Plaintiffs and the Government. and supersedes all prior agreements, negotiations, and discuss ions between the Parties with respect to the subject matter covered hereby. It is express ly understood and agreed that this Agreement may not be altered, amended, waived, mod ified, or otherwise changed except by writing, du ly executed by authorized representatives of Pla intiffs and the Gove rnment, respectively. The Parties furth er acknowledge and agree that they wi ll make no claim at any time or place that this Agreement has been orally supp lemented, mod ified, or altered.
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11. AII signatories represent that they have authority to enter into this Agreement on behalf of the ir respective clients.
12. This Agreement may be executed in counterparts. IN WITNESS WHEREOF, thi s Agreement is executed as of the date and year first indicated above.
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of!O

ON BEHALF OF THE GOVERNM ENT: Deputy Assistant Attorney General Civil Division, U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, District of Columbia 20530 Counsel.for Defendants
10 of10

EXHIBIT A

EXHIBIT A
The term "Plaintiffs," as used in the attached settlement agreement includes the fo llowing organ izations and individuals; their subsidi ari es, a ffili ates, and s uccessors; and re lated entities that offer coverage through the health plan of any signatory:
• The Roman Catholic Archdiocese of New York • The Roman Catholic Diocese of Rockville Centre, New York • Catholic Health Care System • Catholic Health Services of Long Island • Cardinal Spe llm an High School • Monsignor Farrell High School • Most Reverend David A. Zubik • Roman Catho lic Diocese of Pittsburgh • Catholic Charities of the Diocese of Pittsburgh, Inc. • Most Reverend Lawrence T. Persico • Roman Catholic Diocese of Erie • St. Martin Center, Inc. • Prince of Peace Center, Inc. • Erie Catho li c Preparatory School • Most Reverend Lawrence Brandt • Most Reverend Edward Matesic • Diocese of Greensburg • Catholic Charities of the Diocese of Greensburg • St. John the Evangelist Regional Catho lic School • Catho lic Diocese of Beaumont • Catholi c Charities of Southeast Texas • Catho li c Chari ties, Diocese of Fort Worth, Inc. • Uni versity of Dallas • Catholic Diocese of Biloxi, Inc.

• The Most Reverend Roger P. Morin, Bishop and President of The Cathol ic Diocese of Biloxi, Inc. and hi s successors in office, as Trustee fo r and on behalf of the Resurrection Catholic School and the Sacred Heart Catho lic School.
• De L'Eppe Deaf Center, Inc. • Catholic Social and Community Services, Inc. of Biloxi • Catholic Diocese of Jackson • The Most Reve rend Joseph N. Latino, Bishop and Chief Executive Officer of the
Catholic Diocese of Jackson, and his successors in office, in accordance with the discipline and government of the Roman Catho lic Church;
• Vicksburg Catho lic Schoo l, Inc. • St. Joseph Catholic School • Catholic Charities, Inc. of Jackson • St. Dominic-Jackson Memorial Hospi tal
• Catholic Diocese of Nashville
• Catholic Charities of Tennessee, Inc.
• Camp Marymount, Inc. • St. Mary Villa, Inc. • Mary, Queen of Angels, Inc.
• St. Cecilia Congregation • Aquinas College
• Michigan Catholic Conference
• Catholic Famil y Services d/b/a Catholic Chari ties Diocese of Kalamazoo • Franciscan Universi ty of Steubenville
• University of Notre Dame • Diocese of Fort Wayne-South Bend, Inc. • Catholic Charities of the Diocese of Fort Wa yne-South Bend, Inc. • St. Anne Home of the Diocese off0 11 Wayne-South Bend, Inc. • Franciscan All iance, Inc. • Specialty Physicians of Illinois, LLC • University of Sa int Francis of Fort Wayne, Ind iana, Inc.

• Our Sunday Visitor, Inc. • Archdiocese of St. Louis • Catholic Charities of St. Louis • Diocese of Cheyenne • Catho li c Charities of Wyoming • St. Joseph's Children's Home • St. Anthony Tri-Parish School (a.k.a, St. Anthony's Tri-Parish Catholic School) • Wyoming Catholic College • The Archdi ocese of Atlanta, an association of churches and schools • Archbishop Wilton 0. Gregory • Catholic Education of North Georgia, Inc. • CathoIic Charities of the Archdiocese of Atlanta, Inc. • The Roman Catho lic Diocese of Savannah; • The Most Rev. Gregory J. Hartmayer, OFM Conv., as Bishop and his successors in
office. • Donald W. Wuerl , Roman Catholic Archbishop of Washi ngton, and his s uccessors in
office, in accordance with the discipline and government of the Roman Catholic Church, a corporation sole (the Archdiocese of Washington) • Consortium of Catholic Academies of the Archdiocese of Washington, Inc. • Archbishop Can·o ll Hi gh School, Inc. • Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc. • Mary of Nazareth Elementary School, Inc. • Catholic Charities of the Archdiocese of Washington , Inc. • Victory Housing, Inc. • The Catholic Information Center, Inc. • The Catholic University of America • Thomas Aqu inas College

EXHIBITB

E XHIBIT B

District Court Roman Catholic Archdiocese ofN. Y. v. Sebelius , No. I2-cv-2542 (E.D.N.Y.). Zubik v. Sebelius,No. 13-cv-1459 (W.D. Pa.).
Persico v. Sebelius, No. l 3-cv-0303 (W.D. Pa.)
Brandl v. Burwell. , No. I4-cv-681 (W.D. Pa.).

Court of Appeals Catholic Health Care Sys. v. Burwell, No. 14-427, (2d Cir.)
Zubik v. Sec'y US Dep't of Health & Human Servs. , Nos. 14-1376, 14-1377 (3d Cir.) Brandl v. Burwell, Nos. 14-4087 & 14-3663 (3d Cir.)

Catholic Diocese ofBiloxi Inc. , et al. v. Burwell, No. l 4-cv-00146 (S.D. Miss.). Universily ofDallas v. Burwell, No. l 2-cv-00314 (N. D. Texas) Catholic Diocese ofBeaumont v. Sebelius, No. I :13-cv-709 (E.D. Texas) Michigan Catholic Co1?ference v. Sebelius, No. l 3-cv-1247 (W.D. Mich.) Catholic Diocese ofNashville v. Sebelius, No. 3:13-01303 (M.D . Tenn.)
Franciscan University a_(Steubenville v. Sebelius, No. 12-CV-440 (S.D. Ohio) University ofNotre Dame v. Sebelius No. 13-cv- 1276 (N.D. Ind.)
Diocese ofFt. Wayne-South Bend v. Burwell, No. 12-cv- 159, (N.D. Ind. 2013). Archdiocese ofSt. Louis v. Burwell, No. I3-cv-2300 (E.D. Mo.).

No ne
Catholic Diocese ofBeaumont v. Burwell, Nos. 14-40212, 14-1024 1, 14-1066 I. (5th Cir.),
Michigan Catholic Conference v. Burwell, Nos. 13-2723, 13-6640 (6th Cir.).
None
University ofNotre Dame v. Sebelius, No. 13-3853 (7th Cir.). Diocese ofFt. Wayne-South Bend v. Bunvell, No. 14-1431 (7th Cir.) Archdiocese ofSt. Louis, et al v. Burwell, No. 14-3016 (8th Cir.)

Diocese ofCheyenne v. Sebelius, No. I4-cv-00021 (0. Wyo.) Roman Catholic Archdiocese ofAtlanta v. Sebelius , No. 12-cv-03489 (N.0. Ga.). Roman Catholic Archbishop o.fWashington v. Sebelius, No. l 3-cv-144 l (0 .0.C.).

Diocese ofCheyenne v. Burwell, No. 14-8040 (10th Cir.). Roman Catholic Archdiocese ofAtlanta v. Burwell, Nos. 14-12890, 14-13239 (11th Cir.). Roman Catholic Archbishop ofWashington v. Burwell, Nos. 13-5371 , 14-5021 (0.C. Cir.)

2

 
 APPEAL,CASE−MANAGER−FRENSLEY,MANUAL−FILING,STAYED
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:13−cv−01303

The Catholic Diocese of Nashville et al v. Sebelius et al Assigned to: District Judge Aleta A. Trauger Referred to: Magistrate Judge Jeffery S. Frensley related Case: 3:12−cv−00934 Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 11/22/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

The Catholic Diocese of Nashville

represented by Antonio J. Aguilar Taylor, Pigue, Marchetti &Mink 2908 Poston Avenue Nashville, TN 37203 (615) 320−3225 Fax: (615) 320−3244 Email: aaguilar@tpmmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandy H. Ranjan Jones Day (Ohio Office) 325 John H. McConnell Boulevard Suite 600 Columbus, OH 43216 (614) 469−3939 Fax: (614) 461−4198 Email: branjan@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Gino Marchetti , Jr. Taylor, Pigue, Marchetti &Mink 2908 Poston Avenue Nashville, TN 37203 (615) 320−3225 Fax: (615) 320−3244 Email: gmarchetti@tpmblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew A. Kairis Jones Day (Ohio Office) 325 John H. McConnell Boulevard Suite 600 Columbus, OH 43216 (614) 469−3939 Fax: (614) 461−4198 Email: makairis@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:13-cv-1303

Matthew C. Pietsch Law Office of Matt Pietsch, PLLC 320 Seven Springs Way Suite 250 Brentwood, TN 37027 (615) 669−5888 Email: matt@mplawtn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
As of: 03/14/2017 05:52 PM CDT 1 of 15

Melissa Palmisciano Jones Day (Columbus Office) 325 John H. McConnell Boulevard Suite 600 Columbus, OH 43216 (614) 469−3939 Email: mpalmisciano@jonesday.com TERMINATED: 09/29/2016

Plaintiff Catholic Charities of Tennessee, Inc.

represented by Antonio J. Aguilar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandy H. Ranjan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Gino Marchetti , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew A. Kairis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew C. Pietsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Palmisciano (See above for address) TERMINATED: 09/29/2016

Plaintiff Camp Marymount, Inc.

represented by Antonio J. Aguilar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandy H. Ranjan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Gino Marchetti , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew A. Kairis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew C. Pietsch (See above for address) LEAD ATTORNEY
Case: 3:13-cv-1303 As of: 03/14/2017 05:52 PM CDT 2 of 15

ATTORNEY TO BE NOTICED

Melissa Palmisciano (See above for address) TERMINATED: 09/29/2016

Plaintiff Mary Queen of Angels, Inc.

represented by Antonio J. Aguilar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandy H. Ranjan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Gino Marchetti , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew A. Kairis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew C. Pietsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Palmisciano (See above for address) TERMINATED: 09/29/2016

Plaintiff St. Mary Villa, Inc.

represented by Antonio J. Aguilar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brandy H. Ranjan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis Gino Marchetti , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew A. Kairis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew C. Pietsch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Palmisciano (See above for address)
Case: 3:13-cv-1303 As of: 03/14/2017 05:52 PM CDT 3 of 15

TERMINATED: 09/29/2016

Plaintiff
Dominican Sisters of St. Cecilia Congregation

represented by Brandy H. Ranjan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauran Sturm Tennessee Department of Environmental and Conservation Office of General Counsel 312 Rosa L. Parks Nashville, TN 37202 (615) 253−4169 Email: lauran.sturm@tn.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew A. Kairis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robb S. Harvey Waller, Lansden, Dortch &Davis, LLP (Nashville) Nashville City Center 511 Union Street Suite 2700 Nashville, TN 37219 (615) 244−6380 Email: robb.harvey@wallerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Palmisciano (See above for address) TERMINATED: 09/29/2016

Plaintiff Aquinas College

represented by Brandy H. Ranjan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauran Sturm (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew A. Kairis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robb S. Harvey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Palmisciano (See above for address) TERMINATED: 09/29/2016
Case: 3:13-cv-1303 As of: 03/14/2017 05:52 PM CDT 4 of 15

V.
Defendant
Kathleen Sebelius In her official capacity as Secretary of the U.S. Department of Health and Human Services

represented by Jacek Pruski U.S. Department of Justice 20 Massachusetts Avenue NW Washington, DC 20530 (202) 616−2035 Fax: (202) 616−8470 Email: jacek.pruski@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Shana Saltman U.S. Department of Justice (Civil Division) Federal Programs Branch 20 Massachusetts Ave NW Suite 7136 Washington, DC 20530 (202) 532−4252 Email: julie.saltman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Thomas Perez inhis official capacityas Secretary of the U.S. Department of Labor

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jacob J. Lew in his official capacity as Secretary of the U.S. Department of Treasury

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
U.S. Department of Health and Human Services

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

U.S. Department of Labor

represented by Jacek Pruski (See above for address)

Case: 3:13-cv-1303 As of: 03/14/2017 05:52 PM CDT 5 of 15

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. Department of Treasury

represented by Jacek Pruski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Shana Saltman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union of Tennessee

represented by Thomas H. Castelli ACLU Foundation of TN P O Box 120160 Nashville, TN 37212 (615) 320−7142 Ext. 303 Fax: (615) 691−7219 Email: tcastelli@aclu−tn.org ATTORNEY TO BE NOTICED

Amicus American Civil Liberties Union

represented by Brigitte Amiri ACLU (NY Office) 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2633 Email: bamiri@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Mach ACLU (DC Office) 915 15th Street NW 6th Floor Washington, DC 20005 (202) 675−2330 Email: dmach@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Lee ACLU (NY Office) 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2601 Email: jlee@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas H. Castelli (See above for address) ATTORNEY TO BE NOTICED
Case: 3:13-cv-1303 As of: 03/14/2017 05:52 PM CDT 6 of 15

Date Filed 11/22/2013
11/22/2013 11/25/2013
11/25/2013 11/25/2013
11/25/2013 11/25/2013
11/25/2013 11/25/2013 11/25/2013 11/26/2013

# Docket Text
1 COMPLAINT against Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury, filed by Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Dominican Sisters of St. Cecilia Congregation, St. Mary Villa, Inc., Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Aquinas College. (Filing fee paid, $400, Summons issued) (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(afs) (Entered: 11/22/2013)
2 CORPORATE DISCLOSURE STATEMENT filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (afs) (Entered: 11/22/2013)
3 MOTION for attorney(s) Matthew A. Kairis to Appear Pro Hac Vice (Fee not paid−due within 20 days) by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Attachments: # 1 Attachment Certificate of Service)(Sturm, Lauran) (Entered: 11/25/2013)
4 CERTIFICATE OF GOOD STANDING of Attorney Matthew A. Kairis from the United States District Court for the Southern District of Ohio filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Sturm, Lauran) (Entered: 11/25/2013)
5 MOTION for attorney(s) Brandy H. Ranjan to Appear Pro Hac Vice (Fee not paid−due within 20 days) by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Attachments: # 1 Attachment Certificate of Service)(Sturm, Lauran) (Entered: 11/25/2013)
6 CERTIFICATE OF GOOD STANDING of Attorney Brandy H. Ranjan from the United States District Court for the Southern District of Ohio filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Sturm, Lauran) (Entered: 11/25/2013)
7 MOTION for attorney(s) Melissa D. Palmisciano to Appear Pro Hac Vice (Fee not paid−due within 20 days) by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Attachments: # 1 Attachment Certificate of Service)(Sturm, Lauran) (Entered: 11/25/2013)
8 CERTIFICATE OF GOOD STANDING of Attorney Melissa D. Palmisciano from the United States District Court for the Southern District of Ohio filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Sturm, Lauran) (Entered: 11/25/2013)
9 NOTICE of Initial Case Management Conference set for 2/10/2014 at 02:00 PM in Courtroom A859 before Chief Judge William J. Haynes Jr.(afs) (Entered: 11/25/2013)
10 RECEIPT #34675029308 in the amount of $400 re 1 Complaint. (afs) (Entered: 11/26/2013)
BAR STATUS for Attorneys, Antonio J. Aguilar, Lauran Meg Sturm Louis Gino Marchetti, Jr., Matthew C. Pietsch and Robb S. Harvey of TN and Brandy H. Ranjan, Matthew A. Kairis and Melissa Palmisciano of OH, verified as active on this date. (afs) (Entered: 11/26/2013)

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11/26/2013

11 MOTION for Leave to File Excess Pages Memorandum in Support of Motion for Preliminary Injunction by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Attachments: # 1 Attachment Memorandum in Support of Motion for Preliminary Injunction, # 2 Exhibit A: HRSA − Women's Preventive Services, # 3 Exhibit B: WH−ACA Increase, # 4 Exhibit C: USCCB Comments)(Harvey, Robb) (Entered: 11/26/2013)

11/26/2013

12 SUPPLEMENT filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville re 11 Motion for Leave to File Excess Pages,,. (Attachments: # 1 Exhibit D: USCCB Comments, # 2 Exhibit E: Press Release, # 3 Exhibit F: Statement by HHS, # 4 Exhibit G: 5/21/2012 Letter, # 5 Exhibit H: USCCB's Papal Visit Blog)(Harvey, Robb) (Main Document 12 replaced on 12/3/2013) (af). (Entered: 11/26/2013)

11/26/2013

13 SUPPLEMENT filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville re 11 Motion for Leave to File Excess Pages,,. (Attachments: # 1 Exhibit I: Memorandum Opinion, # 2 Exhibit J: Transcript)(Harvey, Robb) (Main Document 13 replaced on 12/3/2013) (af). (Entered: 11/26/2013)

11/26/2013

14 MOTION for Preliminary Injunction and Request for Oral Argument by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Harvey, Robb) Modified on 12/3/2013 (af). (Entered: 11/26/2013)

11/26/2013

15 DECLARATION of David R. Choby filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville re: 14 MOTION for Preliminary Injunction and Request for Oral Argument, 11 MOTION for Leave to File Excess Pages Memorandum in Support of Motion for Preliminary Injunction. (Harvey, Robb) (Entered: 11/26/2013)

11/26/2013

16 DECLARATION of Terry Robinson filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville re: 14 MOTION for Preliminary Injunction and Request for Oral Argument, 11 MOTION for Leave to File Excess Pages Memorandum in Support of Motion for Preliminary Injunction. (Harvey, Robb) (Entered: 11/26/2013)

11/26/2013

17 DECLARATION of William P. Sinclair filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville re: 14 MOTION for Preliminary Injunction and Request for Oral Argument, 11 MOTION for Leave to File Excess Pages Memorandum in Support of Motion for Preliminary Injunction. (Harvey, Robb) (Entered: 11/26/2013)

11/26/2013

18 DECLARATION of Tommy Hagey filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville re: 14 MOTION for Preliminary Injunction and Request for Oral Argument, 11 MOTION for Leave to File Excess Pages Memorandum in Support of Motion for Preliminary Injunction. (Harvey, Robb) (Entered: 11/26/2013)

11/26/2013

19 DECLARATION of David I. Glascoe filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville re: 14 MOTION for Preliminary Injunction and Request for Oral Argument, 11 MOTION for Leave to File Excess Pages

Case: 3:13-cv-1303 As of: 03/14/2017 05:52 PM CDT 8 of 15

11/26/2013 11/26/2013 11/26/2013 12/02/2013 12/02/2013 12/02/2013
12/02/2013

Memorandum in Support of Motion for Preliminary Injunction. (Harvey, Robb) (Entered: 11/26/2013)
20 DECLARATION of Michael J. Miller filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville re: 14 MOTION for Preliminary Injunction and Request for Oral Argument, 11 MOTION for Leave to File Excess Pages Memorandum in Support of Motion for Preliminary Injunction. (Harvey, Robb) (Entered: 11/26/2013)
21 DECLARATION of Mother Ann Marie Karlovic, O.P. filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville re: 14 MOTION for Preliminary Injunction and Request for Oral Argument, 11 MOTION for Leave to File Excess Pages Memorandum in Support of Motion for Preliminary Injunction. (Harvey, Robb) (Entered: 11/26/2013)
22 DECLARATION of Sister Mary Sarah Galbraith, O.P. filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville re: 14 MOTION for Preliminary Injunction and Request for Oral Argument, 11 MOTION for Leave to File Excess Pages Memorandum in Support of Motion for Preliminary Injunction. (Harvey, Robb) (Entered: 11/26/2013)
23 MOTION for Hearing re 19 Declaration, 22 Declaration, 17 Declaration, 15 Declaration, 18 Declaration, 14 MOTION for Preliminary Injunction and Request for Oral Argument, 11 MOTION for Leave to File Excess Pages Memorandum in Support of Motion for Preliminary Injunction, 21 Declaration, 20 Declaration, 16 Declaration, by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Harvey, Robb) (Entered: 12/02/2013)
24 ORDER REASSIGNING CASE: Upon review, this action is a related action to Case No. 3:12cv 0934, that was before the Honorable Todd J. Campbell, District Judge. Pursuant to Administrative Order No. 176, this action is TRANSFERRED to Judge Campbell. It is so ORDERED. Case reassigned to District Judge Todd J. Campbell for all further proceedings. Chief Judge William J. Haynes, Jr no longer assigned to case. Signed by Chief Judge William J. Haynes, Jr on 12/2/13. (afs) Modified on 12/2/2013 (afs). (Entered: 12/02/2013)
25 ORDER: Pending before the Court is the Plaintiff's Motion For Preliminary Injunction And Request For Oral Argument (Docket No. 14). The Request for Oral Argument is GRANTED. The Motion will be heard on December 23, 2013, at 1:30 p.m. Defendants shall file a Response to the Motion by December 10, 2013. Plaintiffs shall file any Reply by December 16, 2013. No witness shall testify live at the hearing unless such witness has been made available for a deposition prior to the hearing. Plaintiffs' Motion to Set Argument on Motion for Preliminary Injunction During the Week of December 16 (Docket No. 23) is DENIED due to a criminal trial scheduled that week. Also pending before the Court is the Plaintiff's Motion For Leave To File Memorandum In Support Of Motion For Preliminary Injunction In Excess Of Page Limit (Docket No. 11). The Motion is GRANTED. The Clerk is directed to file the Memorandum and related exhibits. This case is REFERRED to the Magistrate Judge for customized case management in accordance with Local Rule 16.01. It is so ORDERED. Signed by District Judge Todd J. Campbell on 12/2/13. (af) (Entered: 12/02/2013)
26 MEMORANDUM in Support of 14 MOTION for Preliminary Injunction and Request for Oral Argument filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Attachments: # 1 Exhibit A−HRSA Women's Preventive Services, # 2 Exhibit B−WH−ACA Increase, # 3 Exhibit C−USCCB

Case: 3:13-cv-1303 As of: 03/14/2017 05:52 PM CDT 9 of 15

Comments)(afs) (Additional attachment(s) added on 12/3/2013: # 4 Exhibit D−H, # 5 Exhibit I−J) (afs). (Entered: 12/02/2013)

12/03/2013

27 NOTICE of RESETTING of Case Management Conference set for 1/16/2014 at 10:30 AM in Courtroom 661 before Magistrate Judge E. Clifton Knowles. (afs) (Entered: 12/03/2013)

12/03/2013

28 RECEIPT #346750293383 in the amount of $225 re 3 Motion to Appear Pro Hac Vice, 5 Motion to Appear Pro Hac Vice, 7 Motion to Appear Pro Hac Vice,. (afs) (Entered: 12/04/2013)

12/04/2013

29 SUMMONS returned executed by Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Dominican Sisters of St. Cecilia Congregation, St. Mary Villa, Inc., Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Aquinas College. Thomas Perez served on 12/3/2013. (Sturm, Lauran) (Entered: 12/04/2013)

12/05/2013

30 ORDER: Pending before the Court are Motions For Admission Pro Hac Vice (Docket Nos. 3, 5, 7)filed by Matthew A. Kairis, Brandy H. Ranjan, and Melissa D. Palmisciano. The Motions are GRANTED. It is so ORDERED. Signed by District Judge Todd J. Campbell on 12/5/13. (af) (Entered: 12/05/2013)

12/05/2013

31 SUMMONS returned executed by Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Dominican Sisters of St. Cecilia Congregation, St. Mary Villa, Inc., Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Aquinas College. Kathleen Sebelius served on 12/2/2013. (Sturm, Lauran) (Entered: 12/05/2013)

12/05/2013

32 SUMMONS returned executed by Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Dominican Sisters of St. Cecilia Congregation, St. Mary Villa, Inc., Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Aquinas College. U.S. Department of Health and Human Services served on 12/2/2013. (Sturm, Lauran) (Entered: 12/05/2013)

12/10/2013

33 MOTION for Extension of Time to File Response/Reply by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Pruski, Jacek) (Entered: 12/10/2013)

12/10/2013

34 ORDER: Pending before the Court is an Unopposed Motion for One−Day Extension of Deadline to Respond to Plaintiffs Motion for Preliminary Injunction (Docket No. 33 ). Due to inclement weather and all federal government offices in Washington, D.C. being closed, the Motion is GRANTED. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 12/10/13. (afs) (Entered: 12/10/2013)

12/10/2013

35 SUMMONS returned executed by Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Dominican Sisters of St. Cecilia Congregation, St. Mary Villa, Inc., Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Aquinas College. U.S. Department of Labor served on 12/4/2013. (Sturm, Lauran) (Entered: 12/10/2013)

12/10/2013

36 SUMMONS Returned Executed as to Eric H. Holder, Jr./USA on 12/03/2013 by Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Dominican Sisters of St. Cecilia Congregation, St. Mary Villa, Inc., Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Aquinas College. (Sturm, Lauran) (Entered: 12/10/2013)

12/11/2013

37 MOTION for Leave to File Excess Pages by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Attachments: # 1 Attachment Defs.' Combined Mem. in Opp'n to Pls.' Mot. for Prelim. Inj. &in Supp. of Defs.' Mot. to Dismiss or, in the Alt., for Summj. J.)(Pruski, Jacek) (Entered: 12/11/2013)

12/11/2013

38 MOTION to Dismiss for Failure to State a Claim (), MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative (), MOTION for Summary Judgment () by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury.

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(Attachments: # 1 Attachment Defs.' Statement of Facts)(Pruski, Jacek) (Entered: 12/11/2013)

12/11/2013

39 NOTICE of Filing by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury of Certified Administrative Record (Attachments: # 1 Exhibit Admin. Record Index, # 2 Exhibit Certification of Rulemaking Record)(Pruski, Jacek) (Entered: 12/11/2013)

12/11/2013

41 DEFENDANTS' COMBINED MEMORANDUM IN OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION, AND IN SUPPORT OF MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT in Support of 38 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative MOTION for Summary Judgment , 14 MOTION for Preliminary Injunction filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (afs) (Entered: 12/12/2013)

12/12/2013

40 ORDER: Pending before the Court is Defendants Unopposed Motion for Leave to File Memorandum in Excess of Page Limits (Docket No. 37 ). The Motion is GRANTED and the Clerk is ordered to file the Memorandum. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 12/11/13. (afs) (Entered: 12/12/2013)

12/12/2013

42 SUMMONS Returned Executed as to David Rivera/MDTN on 12/11/13 by Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Dominican Sisters of St. Cecilia Congregation, St. Mary Villa, Inc., Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Aquinas College. (Sturm, Lauran) (Entered: 12/12/2013)

12/12/2013

43 MOTION for attorney(s) Daniel Mach to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−1660286) by American Civil Liberties Union of Tennessee, American Civil Liberties Union. (Castelli, Thomas) (Entered: 12/12/2013)

12/12/2013

44 MOTION for attorney(s) Jennifer Lee to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−1660330) by American Civil Liberties Union, American Civil Liberties Union of Tennessee. (Castelli, Thomas) (Entered: 12/12/2013)

12/12/2013

45 MOTION for attorney(s) Brigitte Amiri to Appear Pro Hac Vice (paid $75 PHV fee; receipt number 0650−1660336) by American Civil Liberties Union, American Civil Liberties Union of Tennessee. (Castelli, Thomas) (Entered: 12/12/2013)

12/12/2013

46 MOTION for Leave to File Amicus Brief in Support of Defendants re 41 Memorandum in Support,, by American Civil Liberties Union, American Civil Liberties Union of Tennessee. (Attachments: # 1 Proposed Order Proposed Order, # 2 Attachment Proposed Amicus Brief)(Castelli, Thomas) (Entered: 12/12/2013)

12/12/2013

47 Letter from Jacek Pruski to Judge Campbell re DE 39 Notice of Filing of Certified Administrative Record. (afs) (Entered: 12/12/2013)

12/12/2013

NOTICE of Manual Filing of Disk Containing Administrative Record. Received in Clerk's Office on 12/12/13. Forwarded to Judge Cambpell's Chambers. 39 Notice (Other) (afs) (Entered: 12/19/2013)

12/13/2013

BAR STATUS for Attorneys, Jennifer Lee, Brigitte Amiri of NY and Daniel Mach of DC, verified as active on this date. (afs) (Entered: 12/13/2013)

12/13/2013

48 Consent MOTION for Leave to File Excess Pages for Reply Regarding Motion for Preliminary Injunction by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Kairis, Matthew) (Entered: 12/13/2013)

12/13/2013

49 ORDER:Pending before the Court is Plaintiffs Unopposed Motion for Leave to File Excess Pages for Reply Regarding Motion for Preliminary Injunction (Docket No. 48 ). The Motion is GRANTED. IT IS SO ORDERED. Signed by District Judge Todd J. Campbell on 12/13/13. (afs) (Entered: 12/13/2013)

Case: 3:13-cv-1303 As of: 03/14/2017 05:52 PM CDT 11 of 15

12/13/2013

50 ORDER: The motion 46 of the American Civil Liberties Union and the American Civil Liberties Union of Tennessee for leave to submit an amicus brief is GRANTED. Signed by District Judge Todd J. Campbell on 12/13/13. (afs) (Entered: 12/13/2013)

12/13/2013

51 BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE IN OPPOSITION TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION AND IN SUPPORT OF DEFENDANTS MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT filed by American Civil Liberties Union of Tennessee re 38 Motion to Dismiss for Failure to State a Claim, Motion to Dismiss/Lack of Jurisdiction, Motion for Summary Judgment,,, 41 Memorandum in Support. (afs) (Entered: 12/13/2013)

12/13/2013

52 ORDER granting 43 Motion for Daniel Mach to Appear Pro Hac Vice. Signed by Magistrate Judge E. Clifton Knowles on 12/13/13. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs) (Entered: 12/14/2013)

12/13/2013

53 ORDER granting 44 Motion for Jennifer Lee to Appear Pro Hac Vice. Signed by Magistrate Judge E. Clifton Knowles on 12/13/13. (afs) (Entered: 12/14/2013)

12/13/2013

54 ORDER granting 45 Motion for Brigitte Amiri to Appear Pro Hac Vice. Signed by Magistrate Judge E. Clifton Knowles on 12/13/13. (afs) (Entered: 12/14/2013)

12/16/2013

55 SUMMONS returned executed by Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Dominican Sisters of St. Cecilia Congregation, St. Mary Villa, Inc., Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Aquinas College. Jacob J. Lew served on 12/11/2013. (Sturm, Lauran) (Entered: 12/16/2013)

12/16/2013

56 SUMMONS returned executed by Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Dominican Sisters of St. Cecilia Congregation, St. Mary Villa, Inc., Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Aquinas College. U.S. Department of Treasury served on 12/11/2013. (Sturm, Lauran) (Entered: 12/16/2013)

12/16/2013

57 REPLY to Response to Motion re 14 MOTION for Preliminary Injunction filed by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Attachments: # 1 Exhibit A − Excerpts from Deposition Transcript of Gary M. Cohen)(Kairis, Matthew) (Entered: 12/16/2013)

12/19/2013

58 NOTICE by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 14 MOTION for Preliminary Injunction of Supplemental Authority (Attachments: # 1 Attachment Priests for Life v. HHS − Mem. Op.)(Pruski, Jacek) (Entered: 12/19/2013)

12/20/2013

59 NOTICE by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville re 58 Notice (Other), (Attachments: # 1 Exhibit A −− EDNY Slip Op. − Archdiocese of NY v. Sebelius, # 2 Exhibit B −− Zubik/Persico − Order Granting Permanent Injunction)(Kairis, Matthew) (Entered: 12/20/2013)

12/20/2013

60 NOTICE by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville of Supplemental Authority (Attachments: # 1 Exhibit A − Legatus, et al., v. Sebelius, et al., # 2 Exhibit B − Reaching Souls Int'l, Inc., et al., v Sebelius, et al.)(Kairis, Matthew) (Entered: 12/20/2013)

12/21/2013

61 NOTICE by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury of Supplemental Authority (Attachments: # 1 Attachment Univ. of Notre Dame v. Sebelius − Order Denying Prelim. Inj., # 2 Attachment Roman Catholic

Case: 3:13-cv-1303 As of: 03/14/2017 05:52 PM CDT 12 of 15

Archbishop of Washington v. Sebelius − Mem. and Op.)(Pruski, Jacek) (Entered: 12/21/2013)

12/23/2013

Minute Entry for proceedings held before District Judge Todd J. Campbell: Motion Hearing held on 12/23/2013 re 14 MOTION for Preliminary Injunction filed by Dominican Sisters of St. Cecilia Congregation, Camp Marymount, Inc., Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Catholic Charities of Tennessee, Inc., St. Mary Villa, Inc., Aquinas College.(Court Reporter Becky Cole.)(Bush, Doris) (Entered: 12/23/2013)

12/23/2013

62 NOTICE by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville of Supplemental Authority (Attachments: # 1 Exhibit Geneva College, et al., v. Sebelius, et al., No. 12−0207 (W.D. Pa. Dec. 23, 2013), # 2 Exhibit Southern Nazarene University, et al., v Sebelius, et al., No. CIV−13−1015−F (W.D. Okla. Dec. 23, 2013))(Kairis, Matthew) (Entered: 12/23/2013)

12/23/2013 12/24/2013
12/26/2013 12/26/2013

63 ORDER: At a hearing held on December 23, 2013, the Plaintiffs requested that the briefing schedule for the pending dispositive motions in this case be stayed pending the case management conference set for January 16, 2014. The request is GRANTED. It is so ORDERED. Signed by District Judge Todd J. Campbell on 12/23/13. (afs) (Entered: 12/23/2013)
64 RESPONSE filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 60 Notice (Other), filed by Dominican Sisters of St. Cecilia Congregation, Camp Marymount, Inc., Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Catholic Charities of Tennessee, Inc., St. Mary Villa, Inc., Aquinas College, 62 Notice (Other),, filed by Dominican Sisters of St. Cecilia Congregation, Camp Marymount, Inc., Mary Queen of Angels, Inc., The Catholic Diocese of Nashville, Catholic Charities of Tennessee, Inc., St. Mary Villa, Inc., Aquinas College Response to Plaintiffs' Notices of Supplemental Authority. (Pruski, Jacek) (Entered: 12/24/2013)
65 MEMORANDUM Signed by District Judge Todd J. Campbell on 12/26/13. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 12/26/2013)
66 ORDER: For the reasons set forth in the accompanying Memorandum, the Motion For Preliminary Injunction 14 is DENIED. Signed by District Judge Todd J. Campbell on 12/26/13. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 12/26/2013)

12/26/2013

67 NOTICE OF APPEAL as to 66 Order on Motion for Preliminary Injunction, by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. Filing fee $ 505, receipt number 0650−1666917. (Kairis, Matthew) (Entered: 12/26/2013)

12/26/2013

68 MOTION for Preliminary Injunction Pending Appeal by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Attachments: # 1 Attachment Memorandum in support of Plaintiffs' motion for preliminary injunction pending appeal, # 2 Proposed Order Proposed order on Plaintiffs' motion for preliminary injunction pending appeal)(Kairis, Matthew) (Entered: 12/26/2013)

12/27/2013 12/27/2013

69 RESPONSE in Opposition re 68 MOTION for Preliminary Injunction Pending Appeal filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Pruski, Jacek) (Entered: 12/27/2013)
70 ORDER: For the reasons set forth in the Court's Memorandum and Order entered December 26, 2013 (Docket Nos. 65 , 66 ), the Motion for Preliminary Injunction 68 is DENIED. Signed by District Judge Todd J. Campbell on 12/27/13. (DOCKET TEXT SUMMARY ONLY−ATTORNEYS MUST OPEN THE PDF

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AND READ THE ORDER.)(dt) (Entered: 12/27/2013)
71 AMENDED ORDER of USCA: Judge Stranch's dissent from the panel decision granting an injunction pending appeal. as to 67 Notice of Appeal, (afs) (Entered: 01/06/2014)
72 Joint MOTION to Stay District Court Proceedings Pending Appeal and to Postpone Initial Case Management Conference by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Kairis, Matthew) (Entered: 01/08/2014)
73 ORDER: Pending before the Court is a Joint Motion To Postpone Initial Case Management Conference And Stay District Court Proceedings Pending Appeal (Docket No. 72 ). Through the Joint Motion, the parties request that the Court stay proceedings in this case pending resolution of Plaintiffs' appeal to the Sixth Circuit Court of Appeals. The Motion is GRANTED. The parties shall file a notice with the Court within two weeks of the resolution of this matter on appeal. Defendants' Motion To Dismiss Or, In The Alternative, For Summary Judgment (DocketNo. 38 ) is DENIED, without prejudice to refiling, if appropriate, upon conclusion of the proceedings on appeal. It is so ORDERED. Signed by District Judge Todd J. Campbell on 1/8/14. (afs) Modified on 1/8/2014 (afs). (Entered: 01/08/2014)
74 ORDER: Pursuant to Judge Campbells Order entered on January 8, 2014 (Docket Entry No. 73 ), the Initial Case Management Conference scheduled for January 16, 2014, at 10:30 a.m., is CANCELLED. IT IS SO ORDERED. Signed by Magistrate Judge E. Clifton Knowles on 1/9/14. (afs) (Entered: 01/09/2014)
75 Appeal TRANSCRIPT OF PROCEEDINGS filed for date of December 23, 2013, before Judge Todd J. Campbell, re 67 Notice of Appeal, Court Reporter: Becky Cole, 615−830−3386, becky_cole@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM−ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Transcripts.pdf. Intent to Request Transcript Redaction due 1/21/2014. Redaction Request due 2/3/2014. Redacted Transcript Deadline set for 2/13/2014. Release of Transcript Restriction set for 4/14/2014. (bc) (Entered: 01/13/2014)
76 ORDER of USCA: Motion GRANTED to consolidate appeals from separate cases. (afs) (Entered: 01/13/2014)
77 INFORMATION COPY from 6CCA: District Court's denial of preliminary injunctions AFFIRMED. Mandate to Issue. (afs) (Entered: 06/11/2014)
78 NOTICE BY Supreme Court: The petition for a writ of certiorari in the above entitled case was filed on December 12, 2014 and placed on the docket December 16, 2014 as No. 14−701. (afs) (Entered: 12/19/2014)
79 NOTICE of Appearance by Julie Shana Saltman on behalf of All Defendants (Saltman, Julie) (Entered: 06/10/2015)
BAR STATUS for Attorney, Julie Shana Saltman of TN, verified as active on this date. (afs) (Entered: 06/11/2015)
80 INFORMATION COPY from 6CCA: The accommodation at issue here does not violate RFRA. We RE−ISSUE and REAFFIRMour prior opinion, Michigan Catholic Conference &Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014), with respect to all other issues raised by Plaintiffs. Accordingly, we AFFIRM the district courts' judgments denying preliminary injunctive relief to Plaintiffs on all of their claims. (MANDATE TO ISSUE) (af) (Entered: 08/21/2015)

Case: 3:13-cv-1303 As of: 03/14/2017 05:52 PM CDT 14 of 15

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81 SUPREME COURT NOTICE: The petition for a writ of certiorari in the above entitled case was filed on March 9, 2016 and placed on the docket March 11, 2016 as No. 15−1131. (afs) (Entered: 03/14/2016)
82 SUPREME COURT ORDER: The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit in light of Zubik v. Burwell. (af) (Entered: 05/26/2016)
83 MOTION to Withdraw as Attorney (Melissa D. Palmisciano) by Aquinas College, Camp Marymount, Inc., Catholic Charities of Tennessee, Inc., Dominican Sisters of St. Cecilia Congregation, Mary Queen of Angels, Inc., St. Mary Villa, Inc., The Catholic Diocese of Nashville. (Palmisciano, Melissa) (Entered: 09/29/2016)
84 ORDER granting 83 Motion to Withdraw as Attorney. Attorney Melissa Palmisciano terminated. Signed by District Judge Todd J. Campbell on 09/29/2016. (vh) (Entered: 09/29/2016)
Due to the retirement of Magistrate Judge Knowles effective 10/7/16 and pursuant to Administrative Order No. 138 entered on 10/11/16, the magistrate judge now assigned to this case is Magistrate Judge Jeffery S. Frensley. (gb) (Entered: 10/13/2016)
On 12/1/16, U.S. District Judge Todd Campbell will retire. Pursuant to Administrative Order No. 138 entered 11/18/2016 and effective 11/30/16, this case has been randomly reassigned to Judge Trauger. (dt) (Entered: 11/30/2016)

Case: 3:13-cv-1303 As of: 03/14/2017 05:52 PM CDT 15 of 15