Case 1:12-cv-01635-RBW Document 1 Filed 10/02/12 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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TYNDALE HOUSE PUBLISHERS, INC., a Delaware )

Corporation; MARK D. TAYLOR;

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Plaintiffs,

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v.

) Civil Action No. 1:12-CV-1635

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KATHLEEN SEBELIUS, in her official capacity as

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Secretary of the United States Department of Health )

and Human Services; HILDA SOLIS, in her official

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capacity as Secretary of the United States Department )

of Labor; TIMOTHY GEITHNER, in his official

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capacity as Secretary of the United States Department )

of the Treasury; UNITED STATES DEPARTMENT )

OF HEALTH AND HUMAN SERVICES; UNITED )

STATES DEPARTMENT OF LABOR; and UNITED )

STATES DEPARTMENT OF THE TREASURY;

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Defendants.

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VERIFIED COMPLAINT Plaintiffs, Tyndale House Publishers, Inc., a nd Mark D. Taylor (col lectively, hereinafter “Tyndale”), by their attorneys¸ allege as follows:
I. INTRODUCTION 1. This action arises because the federal government has deemed devout publishers of the Bible to be insuf ficiently “religious” to enjoy religious freedom in America. The federal government is m andating that Tyndale House Publis hers violate its and its owners’ beliefs by covering morally objectionable items in their health plan pursuant to th e Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148 (March 23, 2010), and Pub. L. 111-152 (March

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30, 2010) (hereinafter “PPACA”). The government has defined “religious employer” to exclude these Bible publishers from exe mptions that the government otherwise provides. Defendants have already been the subject of a preliminary injunction against the Mandate to protect a company owned by religious believers. See Newland v. Sebelius, 2012 WL 3069154 (D. Colo. July 27, 2012).
2. Tyndale House Publishers or iginated with the vision of Dr. Kenneth N. T aylor, a publisher and Bible translator. To promote his paraphrases and translations of the Bible, he and his wife started Tyndale House Publishers, Inc. in 1962. In 1963, Dr. Taylor assigned his royalties from his books to the religious non-profit entity Tyndale House Foundation, which now owns 96.5% of Tyndale House Publishers, Inc. and has contribu ted more than $76 m illion to charitable causes using proceeds from Tyndale House Publishers. Dr. Taylor structured Tyndale to be prim arily owned by the religious Foundati on, and prim arily directed by Tyndale Trust, whose trustees adhere to a biblical statem ent of faith and are the sam e individuals who serve as the board members of Tyndale House Publishers. Dr. Taylor’s son Mark D. Taylor is President and CEO of Tyndale House Publis hers and is a m ember of the board of directors of Tyndale House Publishers and the Foundation, as well as being a trustee of the Tyndale Trust.
3. Tyndale and its owners are Chris tians who are comm itted to biblical princip les, including the belief that all human beings are created in the image and likeness of God from the moment of their concep tion/fertilization. But D efendants’ recently enacted regulatory mandate under PPACA forces Tyndale to pr ovide and pay for drugs and devi ces that it a nd its owners’ believe can cause the death of hum an beings created in the im age and li keness of God shortly after their conception/fertilization. The governm ent’s mandate exempts what it calls “religious employers,” but denies that status to Tyndale House Publishers through its arbitrary definition.
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4. The mandate challenged in th is case (collectively referred to h ereinafter as the “Preventive Services Mandate” or the “Mandate”)1 was created and is enforced by D efendants
the Departments of HHS, Labor and Treasury and their respective Secretaries.
5. The Mandate illeg ally and unconstitutionally requires Tyndale to violate its and
its owners’ religious beliefs, and it subjects Tyndale to heavy fines and penalties if it chooses not
to violate those beliefs. Defendants’ coercion tramples on the freedom of conscience, freedom of
religious exercise, and freedom of speech of Tyndale and its owners. These believers, as well as
millions of other Americans, simply wish to a bide by religious convictions decreed by God
Himself through His Word, and to c ontribute to society in a way th at is consiste nt with their
religious ethics.
6. Defendants’ refusal to accommodate the conscience of Tyndale is highly
selective. PPACA not only conta ins a m ultitude of exemptions from the Mandate, but one of
those exclusions renders the Mandate in applicable to 191 million Am ericans. Newland, 2012
WL 3069154 at *1. Defendants cannot possibly claim they have a compelling interest to violate
1 The Mandate consists of a conglom erate of a uthorities, including: “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Serv ices Under the Patien t Protection and Affordable Care Act,” 77 Fe d. Reg. 8725–30 (Feb. 15, 2012); the prior interim final rule found at 76 Fed. Reg. 46621–26 (Aug. 3, 2011) which the Feb. 15 rule adopted “without change”; the guidelines by De fendant HHS’s Health Resources and Services Administration (HRSA), http://www.hrsa.gov/w omensguidelines/ , m andating that health plans include no-cost-sharing coverage of “All Food and Drug Adm inistration approved contraceptive methods, sterilization procedures, and patient education and counseling for all wom en with reproductive capacity” as part of required wom en’s “preventive care”; regulations issued by Defendants in 2010 directing HRSA to develop those guidelines, 75 Fed. Reg. 41726 (July 19, 2010); the statutory authorit y found in 42 U.S.C. § 300gg-13( a)(4) requiring unspecified preventive health services generally, to the ex tent Defendants have used it to m andate coverage to which Tyndale and other em ployers have re ligious objections; pena lties existing throughout the United States Code for noncompliance w ith these requirements; and other provisions of PPACA or its implementing regulations that affect exemptions or other aspects of the Mandate.
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Tyndale’s beliefs when they have voluntarily chosen to omit nearly two-thirds of the nation from that interest for secular reasons. The m ultitude of exemptions to which this Manda te is subject further shows it is not generally applicable.
7. Tyndale therefore seeks declaratory a nd injunctive relief from Defendants’ discriminatory violation of its religious beliefs by bringing cl aims under the Religious Freedom Restoration Act, 42 U.S .C. § 2000bb et seq. (RFRA), the F irst and Fifth Amendments to th e United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (APA). Defendants’ actions violate Tyndale’s right to freely exercise religion, protected by the Religious Freedom Restoration Act and the Religion Claus es of the First Amendment to the United Sta tes Constitution. Defendants’ actions also v iolate Tyndale’s right to the freedom of speech, as secured by the Free Speech Clause of the First Amendment to the United States Constitution, and their due pr ocess rights secured by the Fif th Amendment to the United Sta tes Constitution. Additionally, Defendants violated the Adm inistrative Procedure Act by im posing the Mandate with deliberate disregard of public comments, and for other reasons.
8. Tyndale is faced with imminent harm due to Defendants’ Mandate. The Mandate by its terms compels Tyndale to obtain and pay for insurance coverage of the objectionable items in their October 1, 2012 plan. Therefore Tyndale will suffer imminent and irreparable harm by being subject to the Mandate’s draconian pena lties, unless the Court enters d eclaratory and injunctive relief to protect Tyndale against Defendants’ deliberate attack on its and its owners’ consciences and religious freedoms.
IDENTIFICATION OF PARTIES 9. Plaintiff Tyndale House Publishers, In c. (herein “Tyndale”) , is a Delaware corporation located at 351 Executive Drive, Carol Stream, Illinois.
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10. Tyndale asserts its claims on behalf of itself as well as on behalf of its owners, all of whom share Tyndale’s religious beliefs against the Mandate’s application in this case.
11. Plaintiff Mark D. Taylor is a resident of W heaton, Illinois. He is President and CEO of Tyndale House Publishers, and is the son of Tyndale founder Dr. Kenneth Taylor. Mark Taylor is a member of the boards of directors of Tyndale House Publishers and its primary owner Tyndale House Foundation, and is a trustee of Tynda le Trust and the Kenneth N. Taylor Trust, which are also owners of Tyndale House Publishers.
12. Defendants are appointed officials of the United States gov ernment and United States Executive Branch agencies responsible for issuing and enforcing the Mandate.
13. Defendant Kathleen Sebelius is the Secretary of the United States Departm ent of Health and Human Services (HHS). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only.
14. Defendant HHS is an executive agency of the United States governm ent and is responsible for the promulgation, administration and enforcement of the Mandate.
15. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Departm ent of Labor. Solis is sued in her official capacity only.
16. Defendant Department of Labor is an executive agency of the United States government and is responsible for the prom ulgation, administration, and enforcem ent of the Mandate.
17. Defendant Timothy Geithner is the Secret ary of the Departm ent of the Treasury. In this capacity, he has responsibility for the operation and m anagement of the Departm ent. Geithner is sued in his official capacity only.
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18. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the prom ulgation, administration, and enforcem ent of the Mandate.
JURISDICTION AND VENUE 19. This action arises under the Constitution and laws of the United States. The Court has subject m atter jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 & 2202, 42 U.S.C. § 2000bb-1, 5 U.S.C. § 702, and Fed. R. Civ. P. 65, and to award reasonable attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988. 20. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). The United States Defendants are located in this district. FACTUAL ALLEGATIONS 21. Tyndale House Publishers, Inc. is a Christian publishing com pany that was founded by Kenneth and Margaret Taylor. Tyndale was founded in 1962 to publish, at first, a single book called Living Letters, which was Kenneth Taylor’s modern paraphrase of portions of the New Testament. 22. In the ensuing years, Kenneth Taylor paraphr ased the rest of the text of the Holy Bible. Tyndale published the entire project in 1971 as The Living Bible , sales of which have exceeded 40 million copies. 23. In 1996 Tyndale published an entirely new translation of the Holy Bible, called the Holy Bible: New Living Translation, of which 27 million copies have been sold. 24. Tyndale also publishes a wide array of Christian books ranging from Bible commentaries to books about fam ily issues to Ch ristian fiction. Tyndale’s authors include Dr.
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James Dobson (founder of Focus on the Fam ily), the Rev. Dr. Tim LaHaye, Dr. Bill Bright (th e founder of Campus Crusade for Crusade), the Rev. Josh McDowell (a world-renowned Christian apologist), and hundreds of other Christian authors.
25. Tyndale’s Articles of Inco rporation declare that T yndale’s purpose is “1. To engage as a publisher of Christian and faith-enhancing books, periodicals, tracts, pamphlets, and other media of communication; and to engage in any related business that may be lawful.”
26. Tyndale’s Corporate P urpose is “to m inister to the spiritual needs of people, primarily through literature consistent with biblical principles.”
27. Tyndale’s Core Values are to be “Dependent on God’s leading,” “Anchored in the Bible,” “Driven to make God’s W ord accessible,” “Trustworthy,” and “Comm itted to excellence.”
28. Tyndale’s Corporate Goals are to “Honor God,” “Excel in bus iness,” “Sustain controlled economic growth,” “Operate profitably,” and “Help employees grow.”
29. Tyndale holds a weekly chapel service for its em ployees—a practice that was started in 1967. Attendance is voluntary, paid as work tim e, and attended by well over 50% of the employee population each week.
30. Tyndale opens most business meetings with prayer, asking God for wisdom. 31. Since 1984 Tyndale’s executive team has spen t half an hour together in prayer each Tuesday morning. 32. Tyndale House Publishers’ Board of Direct ors’ meetings begin with a devotional prepared by one of the directors, followed by prayer, a practice they started in 1977. 33. Tyndale sends groups of e mployees on m ission projects each year to provide support to Christian mission organizations. Tyndale pays the employee’s salary and expenses for
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these trips b ecause it m odels generosity, one of Tyndale’s core values. This practice began in 2006, and Tyndale has sponsored at least one such trip per year.
34. Tyndale has hosted m onthly “build days” with Habitat for Hu manity each month for the last 3 years for its employees.
35. Tyndale House Publishers makes charitable contributions at the rate of 10% of its pretax profits each year. Most of the contributi ons go to Christian org anizations like Wycliffe Bible Translators, Wheaton College (Illinois), Outreach Community Minis tries, Habitat for Humanity, Casa Viva, and dozens of churches where Tyndale’s employees attend. Tyndale also sponsors a m atching gift program for its em ployees. Since 2005, Tyndale’s corporate contributions have amounted to more than $5 million total.
36. As part of Tyndale’s investm ent portfolio, it has outstanding loans totaling $5.3 million made to a Christian school and to a church in its community.
37. As part of its comm itment to running its business from a bibl ical perspective, Tyndale pays its em ployees well above m inimum wage and provides them with excellent benefits. In addition to a very good health plan, the com pany shares profits with all em ployees through a strong bonus program and a generous 401( k) and profit sharing plan which regularly contributes 9–11% of employees’ salary.
38. Every book Tyndale publishes has to have ministry value, otherwise it will not publish it.
39. The Board of Directors of Tyndale Hous e Publishers has adopted the following statement of belief and policy : “The first of fi ve corporate goals of Tyndale House Publishers, Inc. is to ‘Honor God.’ The company’s corporate purpose is to ‘Minister to the spiritual needs of people, primarily through literatu re consistent with biblical prin ciples.’ Among the biblical
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principles the company is committed to following is respect for the inviolable sanctity of the life of every hum an being as created in the im age and liken ess of God from the mom ent of conception/fertilization (cf. Jerem iah 1:5; Genesi s 1:26). Consistent with this belief, Tyndale House Publishers, Inc. om its from its em ployee health plan any coverage of abortions and of drugs (e.g., Plan B, ella) or devi ces (e.g., intrauterine devices) th at can cause the dem ise of a n already conceived/fertilized human embryo.”
40. Tyndale brings its claims on its own behalf and on behalf of its owners. 41. Tyndale’s primary owner, Tyndale House Foundation (hereinafter “the Foundation”), was incorporated as an Illinois not-for-profit corporation by Kenneth and Margaret Taylor in 1963. 42. The Foundation’s Mission is “to m inister to the spiritual needs of people, primarily through grants to other Christian charities.” 43. Starting with the publication of Living Letters and continuing through the very successful publication of The Living Bible and the Holy Bible: New Living Translation , Kenneth Taylor assigned his author royalties to the Foundation. 44. As Kenneth Taylor wrote in his autobiography, My Life: A Guided Tour, “I had a strong conviction that the ability to write Living Letters was a special gift from God, and, because it was His word, He should get all the royalties. So we called on [an attorney] to set up a foundation with a board of directors who would be responsible to give the m oney away to properly qualified charitable causes.” 45. The Foundation owns 96.5% of all shares of T yndale House Publishers, which includes just over 8.4% of its voting shares.
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46. By virtue of the Foundation’s nearly total ownership of Tyndal e House Publishers, Tyndale’s and the Foundation’s re ligious missions are largely overlapping and mutually reinforcing.
47. The Foundation receives 96.5% of all of T yndale’s distributed profits. Since 2001, the Foundation h as received $38.8 m illion of Tyndale’s $40.2 million in distribu ted profits.
48. Tyndale’s non-distributed profits are reinvested into Tyndale for the benefit of its religious publishing mission.
49. In addition to dividends, Tyndale also pays royalties to the Foundation in amounts exceeding $1 m illion annually, b ecause Dr. Taylor had donated his author rights to th e Foundation.
50. Since its inception, the Foundation has d istributed more than $76 m illion to various charitable causes, primarily through proceeds received from Tyndale House Publishers and from royalties assigned by Dr. Kenneth Taylor.
51. The Foundation’s Board of Directors ha s adopted the following statem ent of belief and policy: “Tyndale House Foundation shar es the religious beli efs of Tyndale House Publishers, Inc., the entity in which it has an ownership interest, including a comm itment to ‘Honor God’ and to act in a m anner consistent w ith biblical principles . Among such biblical principles is respect for the invio lable sanctity of the life of every hum an being as created in the image and likeness of God from the moment of conception/fertilization (cf. Jerem iah 1:5; Genesis 1:26). Consistent with this reli gious belief, Tyndale House Foundation supports Tyndale House Publishers, Inc.’s om ission from its employee health plan of any coverage of
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abortions and of drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo.”
52. Of Tyndale’s other shares, a small percentage is owne d by Tyndale Trust, but those shares include 84% of the voting shares.
53. Tyndale Trust was incorporated as an Illino is trust by Dr. Kenneth Taylor in 1988.
54. The Trust is intended to he lp preserve and continue the biblical focus of Tyndale House Publishers’ mission. To help accom plish this goal, the Trust owns the larg e majority of voting shares.
55. Trustees of Tyndale Trust are required to be the same persons as the m embers of the Board of Directors of Tyndale House Publishers.
56. Trustees of the Tyndale Trust (and ther efore board m embers of Tyndale House Publishers) are required to sign a Statement of Faith each y ear to show that they hold to certain religious beliefs, which are typically described as evangelical Christian beliefs.
57. The statement of faith required of Tyndale Trust’s trustees (and therefore of board members of Tyndale House Publishers), is as follows:
1. I believe in the divine inspiration, truthfulness, and authority of both Old and New Testament Scriptures in th eir entirety as the only written w ord of God, without error in all that it affirms, and the only infallible rule of faith and practice.
2. I believe that there is one God, eternall y existent in three persons: Father, Son, and Holy Spirit.
3. I believe in the deity of our Lord Jesus Ch rist, in his virgin birth, in his sinless life, in his m iracles, in his atoning d eath, in his bodily re surrection, in his ascension to the right hand of the Father, and in his personal return in power and glory.
4. I believe that for the salvation of lost and sinful people, regeneration by the Holy Spirit is absolutely essential.
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5. I believe in the presen t ministry of the Holy Spirit by whose indwelling the Christian is enabled to live a godly life.
6. I believe in the resurrection of both the saved and the lost: they that are saved unto the resurrection of life and they that are lost unto the resurrection of damnation.
7. I believe in the spiritual unity of believers in our Lord Jesus Christ.
58. All of the trustees of T yndale Trust, and all of the m embers of the Board of Directors of Tyndale House Publishers, have subscribed to that statement of faith.
59. Tyndale Trust has adopted the following st atement of belief and policy: “Tyndale Trust shares the religious beliefs of Tyndale House Publishers, Inc ., the entity in which it has an ownership interest, including a commit ment to ‘H onor God’ and to act in a m anner consistent with biblical principles. Am ong such biblical principles is respect for the inviolable sanctity of the life of every hum an being as created in th e image and likeness of God from the moment of conception/fertilization (cf. Jerem iah 1:5; Genesis 1:26). Consistent with this religious belief, Tyndale Trust supports Tyndale House Publishers, Inc.’s omission from its employee health plan of any coverage of abortions a nd of drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo.”
60. The remaining percent of Tyndale’s sh ares, just over 3.4%, are owned by two Illinois trusts that benefit Dr. Kenneth Taylor’s widow and children. The Ma rgaret W. Taylor Trust accrues to the benefit of Mrs. Taylor during her lifetime, and she is the sole trustee of said trust. The trustees of the Kenneth N. Taylor Trust are Margaret W. Taylor and her sons Peter W. Taylor and Mark D. Taylor.
61. Both the Margaret W . Taylor Trust and the Kenneth N. Taylor Tru st share th e beliefs of Tyndale House Publishers, Tyndale H ouse Foundation, and T yndale Trust, in general
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and with respect to Tyndale’s provision of h ealth insurance and omi ssion of abortifacients therefrom.
62. The trustees of the Margaret W . Taylor Trust and the Kenneth N. Taylor Trust have adopted the following statement of belief and policy: “ The trustees of the Kenneth N. Taylor Trust and the Margaret W. Taylor Trust share the religious beliefs of Tyndale House Publishers, Inc., the entity in which they have an ownership interest, including a commitment to ‘Honor God’ and to act in a manner consistent with biblical principles. Among such biblical principles is re spect for the inviolable sanctity of the life of every human being as created in the im age and likeness of God from the moment of conception/fertilizat ion (cf. Jerem iah 1:5; Genesis 1:26). Consistent with thi s religious belief, the Ken neth N. Taylor Trust and the Margaret W. Ta ylor Trust support Tyndale House Publishers, Inc.’s omission from its employee health plan of any coverage of abortions and of drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo.”
63. Mark D. Taylor is the P resident and CEO of both Tyndale House Publishers and the Foundation. He is a trustee of the Tyndale T rust and of the Ke nneth N. Taylor T rust. He is the son of Dr. Kenneth Taylor and Margaret W. Taylor, founders of the Tyndale entities.
64. Mark Taylor is directly familiar with the facts and beliefs affirmed herein relating to Tyndale House Publishers as well as to its owners.
65. As President and CEO of Tyndale Hous e Publishers and the Foundation, Mark Taylor is responsible for thei r overall operations, including th e provision of Tyndale’s health insurance plan.
66. As an employee of Tyndale, Mark Taylor is a participant in its health plan, and his wife is a dependent beneficiary of the same plan.
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67. Mark Taylor shares the religious beliefs of Tyndale House Publishers and its owners, and his constitutional a nd statutory rights are burdene d by the Mandate to the sam e extent.
68. Tyndale’s owners possess religious beliefs against the governm ent’s requirement that their property and sister entity, Tyndale House Publishers, would be forced to offer immoral coverage of abortifacient drugs and devices.
69. Tyndale’s owners exercise that religious belief by virtue of their ow nership, voting rights in and receipt of benefit from an entity, Tyndale House Publis hers, that shares the owners’ same biblical beliefs in the inviolable sanctity of innocent human life.
70. Therefore the Mandate violates Tyndale’s owners’ rights as asserted herein by Tyndale on their behalf.
71. Tyndale has 260 full-time employees. 72. Tyndale provides a generous health insurance plan for its employees. 73. Tyndale’s group health plan for its employees is self-insured, and Tyndale acts as its own insurer. 74. The plan-year for Tyndale’s self-in sured plan begins on October 1 of each year, including 2012–13. 75. Consistent with the religious commitm ents of Tyndale and its owners, T yndale’s self-insured plan does not and has never covered a bortions or abortifacient drugs or devices such as emergency contraception and intrauterine devices (“IUDs”). 76. Tyndale’s self-insured plan is not subject to an Illinois state requirement to cover contraception including abortifacients.
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77. Under the PPACA, e mployers with over 50 full-tim e employees are required to provide a certain minimum level of health insurance to their employees.
78. Many such plans must include “preventive services,” which must be offered with no cost-sharing by the employee.
79. On February 10, 2012, the Department of Health and Human Services finalized a rule (previously referred to in th is Complaint as “the Mandate”) that imposes a def inition of preventive services to include all FDA-approved “contraceptive” drugs, surgical sterilization, and education and counseling for such services.
80. This final rule was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the Mandate.
81. In the category of “FDA-approved contra ceptives” included in the Mandate are several drugs or devices that m ay cause the demise of an already-conceived but not-yetimplanted human embryo, such as “em ergency contraception” or “Plan B” drugs (th e so-called “morning after” pill) as well as IUDs.
82. The FDA approved in this same “contraception” category a drug called “ella” (the so-called “week after” pill), wh ich studies show can function to kill embryos even after th ey have implanted in the uterus, by a mechanism similar to the abortion drug RU-486.
83. The manufacturers of some such drugs, methods, and devices in the category of “FDA-approved contraceptive methods” indicate that they can function to cause the demise of an early human embryo.
84. The Mandate also requires applicable gr oup health care plans to pay for the provision of counseling, education, and other in formation for all wom en beneficiaries who are
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capable of bearing children conc erning and in support of covered devices and drugs, including Plan B and ella and IUDs that cause early abortions or harm to human embryos.
85. The Mandate applies to the f irst health insurance plan-year beginning after August 1, 2012.
86. An entity cannot escap e the Mand ate by self-insuring ; Tyndale’s plan is thu s subject to the Mandate even though it is self-insured.
87. Absent relief from this Court, Tyndale is subject to the Mand ate’s requirement of coverage of the above-described items starting in their October 1, 2012 plan.
88. Tyndale and its owners have a sincer e conscientious religious objection to providing coverage for abortifaci ents and related education and counseling in Tyndale’s health insurance plan.
89. Tyndale and its owners cannot in good c onscience violate their religious beliefs by providing coverage for e mergency contraception, IUDs, or counseling or education in furtherance of the sam e, in Tynda le’s health insurance plan, in cluding starting on October 1, 2012.
90. The Mandate therefore imminently threatens to impose its heavy penalties, fines and lawsuits against Tyndale in violation of the beliefs and rights of Tyndale and its owners.
91. The Mandate makes little or no allowance for the religious freedom of entities and individuals, including Tyndale and its owners, who object to pa ying for or providing insurance coverage for such items.
92. An entity cannot freely avoid the M andate by simply refusing to provide health insurance to its em ployees, because the PPACA im poses monetary penalties on entities that would so refuse.
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93. The exact m agnitude of these penalties may vary acco rding to the co mplicated provisions of the PPACA, but the fine is approximately $2,000 per em ployee per year for employers such as Tyndale.
94. In addition, if Tyndale dropped insurance for its employees, such an action would not only harm Tyndale’s em ployees, but it woul d harm Tyndale financially, it would harm Tyndale’s ability to retain an d attract qualified em ployees, and it would violate Tyndale’s religious commitment to its core value of providing generous employee benefits.
95. PPACA also threatens monetary penalties against Tyndale f or continuing to offer its self-insured plan but continuing to omit abortifacients.
96. The exact m agnitude of these penalties may vary acco rding to the co mplicated provisions of the PPACA, but the fine is approximately $100 per day per employee, with minimum amounts applying in different circumstances.
97. The Mandate also triggers a range of enforcement mechanisms against Tyndale, including but not lim ited to civil actions by the Secretary of Labor or by plan participants and beneficiaries under ERISA, which would include but not be lim ited to relief in the form of judicial orders mandating that Tyndale violate its and its owners’ sincerely held religious beliefs by providing coverage for items to which they religiously object.
98. The lawsuit penalties that the Mandate triggers under ERISA are in no way speculative since Defendants Secretary Solis an d the Department of La bor intend to fully and imminently enforce the Mandate against Tyndale.
99. The Mandate applies not only to sponsors of group health plans like Tyndale, but also to issuers of insurance. Accordingly, Tyndale cannot avoi d the Mandate by shopping for an
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insurance plan that accommodates their righ t of conscience, because Defendants have intentionally foreclosed that possibility.
100. The Mandate does not apply equally to all religious adherents or groups. 101. The Mandate offers the possibility of a narrow exemption to religious employers, but only if they meet all of the following requirements: (1) “The inculcation of religious values is the purpose of the organization”; (2) “The organization prim arily employs persons who share the religious tenets of the organization”; (3) “The organization serves primarily persons who share th e religious tenets of the organization”; and (4) The organization is a church, an integrat ed auxiliary of a c hurch, a convention or association of churches, or is an exclusively religious activity of a religious order, under Internal Revenue Code 6033(a)(1) and (a)(3)(A).
102. Tyndale is not “religio us” enough under this definition in several respects , including because it is n ot a chu rch, integrated auxiliary of a pa rticular church, convention or association of a church, or the exclusively religious activities of a religious order.
103. PPACA and the Mandate grant unbridled discretion to the government to create or modify this four-part “religious employer” definition.
104. PPACA and the Mandate grant unbridled di scretion to the governm ent to grant exemptions to some, all, or none of the organi zations meeting the Mandate’s four-part definition of “religious employers” or any future definition.
105. The Mandate picks and chooses among religions, religious believers and religious doctrines, including on the issue of what constitutes religion and religious exercise.
106. The Mandate is not neutral towards religi on because it allows exem ptions based on religious criteria, and it refuses those exemptions to Tyndale.
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107. The Mandate fails to protect the statutory and constitutional conscience rights of religious Americans like Tyndale and its owners, even though those rights were repeatedly raised in public comments against the Mandate’s regulations.
108. The Mandate requires that Tyndale provide coverage for abor tifacient methods, and education and counseling related to the same, against the conscience a nd in violation of the religious beliefs of Tyndale and its owners, in a manner that is contrary to law.
109. The Mandate constitutes governm ent-imposed coercion on Tyndale and its owners to change or violate their sincerely held religious beliefs.
110. The Mandate exposes Tyndale to draconian fines and other penalties for refusal to change or violate its and its owners’ religious beliefs.
111. The Mandate will im pose a burden on Tyndale’s em ployee recruitment and retention efforts by cre ating uncertainty as to wh ether or on what te rms they will be ab le to continue offering health insuran ce due to the p rospect of su ffering penalties as a result of the Mandate.
112. The Mandate will place Tyndale at a com petitive disadvantage in its efforts to recruit and retain employees, to a ttract Christian authors, and to m aintain the co nfidence of churches and other religious custom ers who trust that the products produced by Tyndale House Publishers are created by a company that follows biblical principles.
113. The Mandate will have a profound and a dverse effect on Tyndale and how it negotiates contracts and compensates its employees.
114. Tyndale has already expended considerable tim e and expense determining the application of the Mandate against its religious beliefs and its options in relation thereto.
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115. Unless relief issues from this Court, Tyndale is forced to take the Mandate into account now as it plans expenditures, including employee contracts, compensation and benefits packages, as well as potential gove rnment fines and lawsuits, for the October 1, 2012 plan year and for the next several years.
116. PPACA and the Mandate are no t generally applicable becau se they p rovide for numerous exemptions from their rules.
117. For instance, the Mandate does not apply to members of a “recogn ized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds. See 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii). Tyndale does not meet this exemption.
118. In addition, as described above, the Mandate exempts certain churches and religious orders narrow ly considered to be re ligious employers. Tyndale does not m eet this exemption.
119. Furthermore, the PPACA creates a system of individualized exem ptions because under the PPACA’s authorization the federal gove rnment has granted discretionary com pliance waivers to a variety of businesses for purely secular reasons.
120. Also, PPACA and its Mandate do not for ce employers having fewer than 50 fulltime employees to provide a health insurance plan to its employees at all.
121. Additionally, the Mandate does not apply to employers with preexisting plans that are “grandfathered.”
122. Tyndale’s plan is not grandf athered under PPACA, nor wi ll its plan year starting on October 1, 2012 have grandfathered status.
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123. Tyndale’s plan lacks grandfathered status b ecause, inter alia, the facts described in the follo wing five paragraphs d eprive the p lan of such status according to th e Defendants’ regulations governing grandfathered status.
124. For financial reasons, between 2011 and 2012 in Tyndale’s health insurance plan, the percentage of in-network covered charges, hospital expenses, non-routine physician fees, and mental health expenses that the plan covered was reduced from 90% to 80%, and the percentage of out-of-network coverage for such covered items was reduced from 70% to 60%.
125. For financial reasons, between 2011 and 2012 in Tyndale’s health insurance plan, the individual deductible was increased from $400 to $500, and the fa mily deductible was raised from $400/person to $500/person with a $1000 maximum.
126. For financial reasons, between 2011 and 2012 in Tyndale’s health insurance plan, the individual in-network co-insurance lim it was increased from $1,500 to $2,000 per calendar year in addition to ded uctible; the family in-network co-insurance limit was increased f rom $3,000 to $4,000 per calendar year in addition to deductible; and out of network co-insurance limits were imposed in the amount of $4,000 per individual and $8,000 per family.
127. For financial reasons, between 2011 and 2012 in Tyndale’s health insurance plan, the maximum out-of-pocket am ount for prescrip tion drug coverage per calendar year in combined retail and mail order pharm acy claims was inc reased from $1,500 to $2,000 for individuals, and from $3,000 to $4,000 for families.
128. Neither Tyndale, its plan adm inistrator, nor its October 2011–12 health insurance plan provided a disclosure to plan participants that the plan possessed grandfathered status under PPACA (because the plan did not possess such st atus). Rather, prior to the October 2011–12 plan year, Tyndale disclosed that the plan would not be grandfathered.
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129. According to the governm ent’s statistics, tens of millions of Americans in 2013 will be cov ered under plans wher e, because they possess grandfathered status, P PACA and Defendants do not subject those plans to the requirements of the Mandate.
130. Despite Defendants’ and PPACA’s choi ce not to im pose the Mandate and its required items to tens of millions of Americans in grandfathered plans, Defendants refuse to allow Tyndale’s plan with less than 300 employees to be exempt from the Mandate.
131. President Obama held a press conference on February 10, 2012, and later (through Defendants) issued an “Advanced Notice of Proposed Rulemaking” (“ANPRM”) on March 21, 2012 (77 Fe d. Reg. 16501–08), claim ing to offer a “com promise” under which som e religious non-profit organizations not m eeting the above defi nition would still have to comply with the Mandate, but by m eans of the em ployer’s insurer offering the em ployer’s employees the same coverage for “free.”
132. This “compromise,” even if clarified and enacted, is not helpful to Tyndale because, among other reasons, Tyndale is not a non-profit entity, and its plan is self-insured.
133. The ANPRM is neither a rule, a proposed rule, nor the specification of what a rule proposed in the future would actually contain. It in no way changes or alte rs the final status of the February 15, 2012 Mandate. It does not even create a legal require ment that Defendants change the Mandate at some time in the future.
134. On February 10, 2012, a document was also issued from the Center for Consumer Information and Insura nce Oversight (CCIIO), Centers for Medica re & Medica id Services (CMS), of HHS, entitled “Guidance on the Tem porary Enforcement Safe Harbor f or Certain Employers, Group Health P lans and Group Health Insurance Issuers with R espect to the Requirement to Cover Contracep tive Services Without Cost Sharing Under Section 2713 of the
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Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code.”
135. Under this “Guidance,” an organization that truthfully declares “I certif y that the organization is o rganized and operated as a non- profit entity; and that, at any point from February 10, 2012 onward, contraceptive coverage has not been pr ovided by the plan, consistent with any applicab le State law, because of the religious beliefs of the organization,” and that provides a specified notice to plan participants, will not “be subject to any enforcement action by the Departments for failing to cover recommended contraceptive services without cost sharing in non-exempted, non-grandfathered group health plans established or m aintained by an organization, including a group or association of employers within the meaning of section 3(5) of ERISA, (and any group health insurance coverage provided in connecti on with such plans),” until “the first plan year that begins on or after August 1, 2013.”
136. The February 10, 2012 “Guidance” categor ically disqualifies Tyndale from making use of this “extra year” because, am ong other reasons, Tyndale is not a non-profit entity, though the Foundation that alm ost entirely ow ns it and benefits from it is a n on-profit entity. Further, Tyndale objects only to the provision of abortifacient contraceptives.
137. On August 15, 2012, in response to litigation against the Mandate that illustrated the February 10, 2012 press conference “Guidance” was sloppily drafted and omitted a variety of organizations, Defendants used their unfettered discretion over the Mandate to issue yet another version of the “safe harbor” Guidance.
138. Under the August 15, 2012 “Guidance,” employers who object to some but not all contraception could be covered, but the “safe harbor” was still limited to non-profit entities.
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139. Thus the August 15, 2012 “Guidance” con tinues to categorically disqualify

Tyndale from making use of this “extra y ear” because, among other reas ons, Tyndale is not a

non-profit entity, though the Found ation that almost entirely owns it and be nefits from it is a

non-profit entity.

140. PPACA and the Mandate conf er unfettered discretion upon Defendants to create

and modify rules such as the Guidances and the ANPRM with respect to their categorization and

treatment of religious entities.

141. The Mandate, Defendants’ two “Guidances,” their ANPRM , and their four-part

“religious employer” definition all omit Tyndale from any protection from the Mandate, despite

the fact that the Foundation whic h owns Tyndale House Publishe rs is a non-profit religious

entity, Tyndale has always existed for the re ligious purpose of publishing Bibles and other

Christian books and providing its proceeds to the Foundation, and Tyndale and its o wners share

the same religious mission.

142. Therefore while Presiden t Obama’s and Defendants’ ever-changing

“compromises” purport to accomm odate the religi ous beliefs of a variety of groups, none of

these measures will s top the Mandate from being im posed on Tyndale’s plan year beginning

October 1, 2012.

143. Any alleged interest Defendants have

in providing free FDA-approved

abortifacient contraception and related educatio n and counseling witho ut cost-sharing could be

advanced through other, m ore narrowly tailored m echanisms that do not burden the religious

beliefs of Tyndale and its owners and do not require them to provide or facilitate coverage of

such items through Tyndale’s health plan.

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144. Unless relief issues f rom this Court, the M andate directly and imm inently threatens Tyndale with its draconian penalties.
145. Without injunctive and declaratory re lief as requested herein, including preliminary injunctive relief, Tyndale and its ow ners are suffering and will continue to suffer irreparable harm.
146. Tyndale and its owners have no adequate remedy at law.
FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 147. Tyndale realleges all matters set forth in paragraphs 1–146 and incorporates them herein by reference. 148. Tyndale’s and its owners’ sincerely held religious beliefs prohibit them from providing coverage for abortifacients, including emergency contraception and IUDs and related education and counseling, in Tyndale’s employee health plan. 149. When Tyndale and its owners com ply with their sincerely held biblical principles and Christian beliefs on abortifacients such as emergency contraception and IUDs, they exercise religion within the meaning of the Religious Freedom Restoration Act. 150. The Mandate imposes a substantial burden on Tyndale’s and its owners’ religious exercise and coerces them to change or violate their sincerely held religious beliefs, or be subject to penalties and harm to their property and livelihood. 151. The Mandate chills Tyndale’s and its ow ners’ religious exercise within the meaning of RFRA.
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152. The Mandate exposes Tyndale to lawsui ts, substantial fine s, and financial burdens, and pressures Tyndale and its owners by threatening their property and livelihood based on their religious exercise.
153. The Mandate exposes T yndale to substantial competitive disadvantages because of uncertainties about Tyndale’s health insurance benefits caused by the Mandate.
154. The Mandate furthers no com pelling governmental interest and is not narrowly tailored to any compelling governmental interest.
155. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
156. The Mandate violates RFRA. WHEREFORE, Tyndale prays for the relief set forth below.
SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 157. Tyndale realleges all matters set forth in paragraphs 1–146 and incorporates them herein by reference. 158. Tyndale’s and its owners’ sincerely held religious beliefs prohibit them from providing coverage for abortifacients, including emergency contraception and IUDs and related education and counseling, in Tyndale’s employee health plan. 159. When Tyndale and its owners com ply with their sincerely held biblical principles and Christian beliefs on abortifacients such as emergency contraception and IUDs, they exercise religion within the meaning of the Religious Freedom Restoration Act. 160. The Mandate is not neutral and is not generally applicable.
26

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161. Defendants have created categorical exemptions and individualized exemptions to the Mandate.
162. The Mandate furthers no compelling governmental interest. 163. Defendants have conceded the lack of a compelling interest in the M andate by virtue of their and PPACA’s voluntary exclus ion and exemption of millions of Americans from the Mandate’s coverage. 164. The Mandate is not the least restrictive means of furthering Defendants’ purported interests. 165. The Mandate chills Tyndale’s and its owners’ religious exercise. 166. The Mandate exposes Tyndale to lawsui ts, substantial fine s, and financial burdens, and pressures Tyndale and its owners by threatening their property and livelihood based on their religious exercise. 167. The Mandate exposes T yndale to substantial competitive disadvantages because of uncertainties about Tyndale’s health insurance benefits caused by the Mandate. 168. The Mandate imposes a substantial burden on Tyndale’s and its owners’ religious exercise and coerces them to change or violate their sincerely held religious beliefs, or be subject to penalties and harm to their property and livelihood. 169. The Mandate is not narrowly tailored to any compelling governmental interest. 170. By design, Defendants framed the Mandate to apply to some religious Americans but not to others, resulting in discrimination among religions. 171. Defendants have created exem ptions to the Mandate for some religious believers but not others based on characteristics of their beliefs and their religious exercise.
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172. Defendants designed the Mandate, the fou r-part religious exemption thereto, and

the “compromise” and guidance allowances ther eto, in a way that m akes it impossible for

Tyndale and other similar religio us Americans to com ply with their sincerely held religious

beliefs.

173. Defendants promulgated both th e Mandate and the

religious

exemption/allowances with the purpose and intent to suppress the religious exercise of Tyndale

and its owners and other religious Americans.

174. The Mandate violates T yndale’s and its owners’ rights secured to them by the

Free Exercise Clause of the First Amendment of the United States Constitution.

WHEREFORE, Tyndale prays for the relief set forth below.

THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 175. Tyndale realleges all matters set forth in paragraphs 1–146 and incorporates them herein by reference. 176. The First Amendment’s Establishment Clause prohibits the establishment of any religion and/or excessive government entanglement with religion. 177. To determine whether religious persons or entities like Ty ndale are required to comply with the Mand ate, are required to con tinue to comply with the Mandate, ar e eligible for an exemption or other accommodations, or will c ontinue to be eligible for the sam e, Defendants must examine the religious beliefs and doctrinal teachings of persons or entities like Tyndale. 178. Obtaining sufficient information for the Defendants to an alyze the content of Tyndale’s sincerely held religious beliefs requires ongoing, comprehensive governm ent surveillance that impermissibly entangles Defendants with religion.

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179. The Mandate discriminates among religions and among denominations, favoring some over others, and exhibits hostility to religious beliefs.
180. The Mandate discriminates against and among religions in refusing to accommodate or exem pt a religious Bible publisher that provides nearly all its pro ceeds to a religious non-profit, while exempting or accommodating others.
181. The Mandate adopts a particular theologi cal view of what is acceptable m oral behavior with respect to provision of abortif acient coverage and im poses that view upon all adherents of religion who must either conform their consciences or suffer penalty.
182. The Mandate violates T yndale’s and its owners’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution.
WHEREFORE, Tyndale prays for the relief set forth below.
FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 183. Tyndale realleges all matters set forth in paragraphs 1–146 and incorporates them herein by reference. 184. Defendants’ requirement of provision of insurance coverage for education and counseling regarding abortifacient drugs and devices such as emergency contraception and IUDs forces Tyndale and its o wners to speak and fund speech in a m anner contrary to their relig ious beliefs. 185. Defendants have no narrowly tailored compelling interest to justify this compelled speech. 186. The Mandate violates T yndale’s and its owners’ rights secured to them by the Free Speech Clause of the First Amendment of the United States Constitution.
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WHEREFORE, Tyndale prays for the relief set forth below.
FIFTH CLAIM FOR RELIEF Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution 187. Tyndale realleges all matters set forth in paragraphs 1–146 and incorporates them herein by reference. 188. Because the Mandate s weepingly infringes upon religious exercise an d speech rights that are constitutionally protected, it is unconstitutionally vague and overbroad in violation of the due process rights of Tyndale and its owners and other parties not before the Court. 189. Persons of common intelligence must n ecessarily guess at the m eaning, scope, and application of the Mandate and its exemptions. 190. This Mandate lends itself to discrimina tory enforcement by government officials in an arbitrary and capricious manner. 191. PPACA and the Mandate vest Defendants with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations, in crafti ng “religious employer” exemptions and chang ing the sam e, in crafti ng and m odifying further “accomm odations” and additional definitions of entities tha t qualify for the sam e, and in enf orcing the M andate and crafting rules regarding the same such as through its repeatedly issued enforcement “Guidances.” 192. The Mandate is an un constitutional violation o f Tyndale’s and its ow ners’ due process rights under the Fifth Amendment to the United States Constitution. WHEREFORE, Tyndale prays for the relief set forth below.
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SIXTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act 193. Tyndale realleges all matters set forth in paragraphs 1–146 and incorporates them herein by reference. 194. Because they did not give proper notice and an opportunity for public comm ent, Defendants did not take into accou nt the full im plications of the regulations by com pleting a meaningful consideration of the relevant matter presented. 195. Defendants did not consider or res pond to the volum inous comments they received in opposition to the interim final rule. 196. Defendants conceded upon issuance of their interim final Mandate in August 2011 that they did not intend to give meaningful consideration to subsequent comments due to the alleged need to finalize the Mandate withou t subsequent change from the for m it took in August 2011. 197. Defendants actually refused to give m eaningful consideration to comme nts when it finalized its Mandate in February 2012 without change. 198. Defendants further conceded in its March 2012 ANPRM that it should have given meaningful consideration to and not finalized its Mandate wit hout change in February 2012, and that the Mandate needed to be amended according to concerns raised in those comments. 199. PPACA requires that the Mandate not be imposed until a year after it is issued in final unchanged form. 200. Yet despite Defendants’ expressed intent in March 2012 to amend the Mandate in the future, which im plicitly conceded that it sh ould not h ave been f inalized without change in February 2012, Defendants have not refrained from imposing the Mandate against Tyndale and others now, as if the August 2011 interim final rule meaningfully considered public comments.
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201. As a result of this violation, Tyndale has been prejudiced by being threatened by and subject to the Mandate’s penalties now, instead of in its f irst plan year tha t commences a year after the Mandate’s issuance with changes that still have not occurred.
202. Therefore, Defendants have taken ag ency action not in accord ance with procedures required by law, and Tyndale is enti tled to relief pursuant to 5 U.S.C. § 706(2)(D) and § 553(b) & (c).
203. In promulgating the Mandate, Defendants also failed to consider the constitutional and statutory implications of the Mandate on Tyndale and its owners and similar persons.
204. Defendants’ explanation (and lack thereo f) for their decision not to exem pt Tyndale and sim ilar religious or ganizations from the Mandate r uns counter to the evidence submitted by religious Americans during the comment period.
205. Thus, Defendants’ issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A ) because the Mandate fails to consider th e full extent of its implications and it does not take into consideration the evidence against it.
206. As set forth above, the Mandate viol ates RFRA and t he First and Fifth Amendments to the U.S. Constitution.
207. The Mandate is also contrary to the pr ovisions of the PPACA which states that “nothing in this title” —i.e., title I of the Act, which includes the provision dealing with “preventive services”—“shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essen tial health benefits for any plan year.” Section 1303(b)(1)(A). Som e drugs inclu ded as “F DA-approved contraceptives” under the Mand ate cause abortions by causing the dem ise of human embryos before and/or after im plantation. By Executive Order, this provision prohibits Defendants from requiring abortion in Tyndale’s plan.
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208. The Mandate is a lso contrary to the pr ovisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, an d Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008), which provides that “[n]one of the funds m ade available in this Act [m aking appropriations for Defendants Department of Labor a nd Health and Hum an Services] may be m ade available to a Federal agency or program . . . if such agency, program , or governm ent subjects any institutional or individual health care entity to disc rimination on the basis that the hea lth care en tity does not provide, pay for, provide coverage of, or refer for abortions.”
209. The Mandate also violates the provisions of the Church Am endment, 42 U.S.C. § 300a-7(d), which provides that “No individual sh all be required to perf orm or assist in the performance of any part of a he alth service program or research activity funded in whole or in part under a program administered by the S ecretary of Health and Human Services if his performance or assistance in the perf ormance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
210. The Mandate is contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A)f.
WHEREFORE, Tyndale prays for the relief set forth below.
PRAYER FOR RELIEF Tyndale respectfully requests the following relief: A. That this Court enter a judgment declaring the Mandate and its application to the Tyndale and its plan, and others sim ilarly situated but not before the Court, to be an unconstitutional and illegal violat ion of Tyndal e’s, its owners’, and others’ rights protected by
33

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RFRA, the Free Exercise, Establish ment, and Fr ee Speech Clauses of the First Amendm ent to the United States Constitution, the Due Process Clause of t he Fifth Am endment to the United States Constitution, and the Adm inistrative Procedure Act, and theref ore invalid in any way applicable to them;
B. That this Court enter a pre liminary and a perm anent injunction prohibiting Defendants from applying the Mandate to Tyndale a nd its plan and others sim ilarly situated but not before the Court in a way th at substantially burdens the reli gious belief of Tyndale and its owners, or any person, in viol ation of RFRA and the Constitu tion, and prohibiting Defendants from continuing to illegally discrim inate against Tyndale and others not before the Court by requiring them to provide or cause to be provided health insuran ce coverage for abortifacients, contraception, sterilization and related education and counseling to employees of entities they own or operate;
C. That this Court award Tyndale court costs and reasonable attorney’s fees, as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988);
D. That this Court grant such other and further relief as to which Tyndale may be entitled.
Tyndale demands a jury on all issues so triable.

Respectfully submitted this 2nd day of October, 2012. Attorneys for Plaintiffs:

David A. Cortman, Esq.

ALLIANCE DEFENDING FREEDOM

1000 Hurricane Shoals Road NE

Suite D-1100

A

Lawrenceville, GA 30043

(770) 339-0774

Washington,

s/ Matthew S. Bowman Steven H. Aden, Esq. Gregory S. Baylor, Esq. Matthew S. Bowman, Esq.
LLIANCE DEFENDING FREEDOM 801 G Street NW, Suite 509
DC 20001

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Case 1:12-cv-01635-RBW Document 1 Filed 10/02/12 Page 35 of 36

(770) 339-6744 (facsimile)

dcortman@alliancedefendingfreedom.org

saden@alliancedefendingfreedom

Kevin H. Theriot, Esq.

Erik W. Stanley, Esq.

m

ALLIANCE DEFENDING FREEDOM

15192 Rosewood

Leawood, KS 66224

(913) 685-8000

(913) 685-8001 (facsimile)

ktheriot@alliancedefendingfreedom.org

estanley@alliancedefendingfreedom.org

(202) 393-8690 (202) 237-3622 (facsimile)
.org gbaylor@alliancedefendingfreedom.org
bowman@alliancedefendingfreedom.org

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Case 1:12-cv-01635-RBW Document 1 Filed 10/02/12 Page 36 of 36

VERIFICATION OF COMPLAINT PURSUANT TO 28 U.S.C. § 1746
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed on October 2, 2012

___ s/ Mark D. Taylor_______________ MARK D. TAYLOR

(Original signature in possession of attorneys for Plaintiffs, pursuant to LCvR 5.4(b)(5))

36

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

TYNDALE HOUSE PUBLISHERS, INC., a

)

Delaware Corporation; MARK D. TAYLOR,

)

No. 1:12-cv-1635-RBW

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, in her official capacity )

as Secretary of the United States Department of )

Health and Human Services; HILDA SOLIS, in )

her official capacity as Secretary of the United )

States Department of Labor; TIMOTHY

)

GEITHNER, in his official capacity as Secretary )

of the United States Department of the Treasury; )

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; UNITED STATES )

DEPARTMENT OF LABOR; UNITED STATES )

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

)

__________________________________________)

MEMORANDUM OF THE AMERICAN CIVIL LIBERTIES UNION AND THE AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL AREA, AS AMICI CURIAE

 

TABLE OF CONTENTS TABLE OF CONTENTS...................................................................................................................i TABLE OF AUTHORITIES .............................................................................................................ii INTRODUCTION .............................................................................................................................1 FACTUAL BACKGROUND ............................................................................................................2 ARGUMENT .....................................................................................................................................5 CONCLUSION ..................................................................................................................................12
i


Cases

TABLE OF AUTHORITIES

*Bob Jones University v. United States, 461 U.S. 574 (1983) ................................................... 6, 7

Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006) ........................... 9

Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004) ....................... 9

*Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990)................................. 5, 7, 10

EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986) ............................................. 9

EEOC v. Kamehameha Schools/Bishop Estate, 990 F.2d 458 (9th Cir. 1993)............................... 5

Erzinger v. Regents of University of California, 137 Cal. App. 3d 389 (Cal. Ct. App. 1982) ..... 11

Goehring v. Brophy, 94 F.3d 1294 (9th Cir. 1996), overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997) .................................................................................................. 11

Hamilton v. Southland Christian School, Inc., 680 F.3d 1316 (11th Cir. 2012) .......................... 12

*Newman v. Piggie Park Enter., Inc., 256 F. Supp. 941 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968) ........................................................................................... 6, 7, 12

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) ..................... 8

Tarsney v. O’Keefe, 225 F.3d 929 (8th Cir. 2000) ....................................................................... 11

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)................................................................... 10-11 Statutes

42 U.S.C. §§ 2000e(b) .................................................................................................................. 10

42 U.S.C. §§ 2000e-1(a) ............................................................................................................... 10

Patient Protection and Affordable Care Act, Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat. 131 (2010) ................................................................................................................................... 2

Regulations

45 C.F.R. § 147.130(a)(iv).............................................................................................................. 3

45 C.F.R. § 147.130(b)(1)............................................................................................................... 3 Other Authorities

ii


155 Cong. Rec. S12019 (daily ed. Dec 1, 2009)......................................................................... 2, 3 155 Cong. Rec. S11979 (daily ed. Nov. 30, 2009) ..................................................................... 2, 3 77 Fed. Reg. 16501 ......................................................................................................................... 4 77 Fed. Reg. 8725 ....................................................................................................................... 4, 9 Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education,
Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941 (2007) ............................. 8 Health Resources and Services Administration, U.S. Dep’t of Health & Human Services,
Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/. ................................................................................... 3 INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (prepublication ed.) (2011)...................................................................................................... 3, 4 Jeffrey F. Piepert, et al., Continuation and Satisfaction of Reversible Contraception, 117 Obstetrics & Gynecology 1105 (May 2011) ............................................................................... 8 Jeffrey F. Piepert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception, Obstetrics & Gynecology (Dec. 2012) (forthcoming) ....................................... 8 Su-Ying Liang et al., Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006, 83 Contraception 491 (June 2010) ...................... 4
iii


INTRODUCTION The American Civil Liberties Union and the American Civil Liberties Union of the National Capital Area (collectively “ACLU”) submit this amicus brief in opposition to Plaintiffs’ motion for a preliminary injunction, specifically on the issue of whether Plaintiffs are likely to succeed on the merits of their claims. The right to practice one’s religion, or no religion, is a core component of our civil liberties and is of vital importance to the ACLU. For this reason, Amici routinely bring cases designed to protect individuals’ right to worship and express their religious beliefs. The ACLU is also equally committed to fighting discrimination and inequality, including discrimination based on gender. Indeed, since 1972, the ACLU has worked to secure gender equality and ensure that women and girls are able to lead lives of dignity, free from violence and discrimination. An important component of gender equality is the ability of women to have full control of their reproductive lives, and to be able to decide whether and when to have children. Amici do not repeat the arguments presented by Defendants. Rather, Amici submit this brief to provide historical context to support Defendants’ argument that Plaintiffs are unlikely to succeed on the merits of their claim that the federal contraception rule infringes on Plaintiffs’ religious liberty. The claims raised by Plaintiffs – that they have a right to discriminate against women and deny them benefits because of the companies’ owners’ religious beliefs – are, unfortunately, not new. Regrettably, not so very long ago, a secular school instituted a “Protestant-only” hiring policy based on the school’s founder’s religious preferences; employers claimed their right to religious freedom entitled them to pay men – who they considered to be the head of household based on their religious beliefs – more than women; businesses claimed that their right to religious liberty entitled them to discriminate against African-American customers
1

in public accommodations; and universities claimed a religious liberty right to discriminate against African-American students. In each of these cases, courts squarely rejected the claims, recognizing that the right to religious liberty does not encompass the right to discriminate against others. This Court should come to the same conclusion here. Indeed, acceptance of Plaintiffs’ claims would not only contravene this clear and consistent precedent, but would also open the door for arguments that countless anti-discrimination and other important laws should be unenforceable in the face of a claim that the discrimination is mandated by a religious belief.
FACTUAL BACKGROUND The Patient Protection and Affordable Care Act (“ACA”) provides that certain preventive services must be provided in health insurance plans without cost-sharing. Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat. 131 (2010). In an effort to help eliminate some forms of gender inequality by equalizing men and women’s health care coverage, Congress added the Women’s Health Amendment (“WHA”) to the ACA, which requires health insurance plans to cover additional preventive services for women. Pub. L. No. 111-148, sec. 1001, § 2713(a)(4), 124 Stat. 131 (2010). The WHA was crucial to ensuring that women receive coverage for preventative services. Indeed, prior to its introduction, coverage for these services were absent from the ACA. See 155 Cong. Rec. S11979, S11987 (daily ed. Nov. 30, 2009) (statement of Sen. Mikulski) (noting that the ACA did not cover key preventive services for women). In passing the WHA, Senator Reid explained that the WHA was necessary for “millions of women who are being discriminated against . . . .” 155 Cong. Rec. S12019, S12020 (daily ed. Dec 1, 2009) (statement of Sen. Reid). As Senator Mikulski noted: “Often those things unique to women have not been included in health care reform. Today we guarantee it and we assure it and we make it
2

affordable by dealing with copayments and deductibles . . . .” 155 Cong. Rec. at S11988 (daily
ed. Nov. 30, 2009) (statement of Sen. Mikulski) (emphasis added). In particular, Congress
intended to address gender disparities in out-of-pocket health care costs, much of which stem
from reproductive health care:
Not only do [women] pay more for the coverage we seek for the same age and the same coverage as men do, but in general women of childbearing age spend 68 percent more in out-of-pocket health care costs than men. . . . This fundamental inequity in the current system is dangerous and discriminatory and we must act. The prevention section of the bill before us must be amended so coverage of preventive services takes into account the unique health care needs of women throughout their lifespan.
155 Cong. Rec. at S12027 (daily ed. Dec. 1, 2009) (statement of Sen. Gillibrand).
To implement the WHA, the Institute of Medicine (“IOM”), an independent, nonprofit
organization that works outside of government to provide unbiased and authoritative advice to
decision makers and the public, “review[ed] what preventive services are necessary for women’s
health and well-being” and developed recommendations for comprehensive guidelines.
INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1
(prepublication ed.) (2011) (“CLOSING THE GAPS”). Among other things, the report
recommended that the preventative services 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.” Id. at 94. On August 1, 2011, the Department of Health and Human Services (“HHS”) adopted these recommendations, including
the recommendation on contraceptive services. See 45 C.F.R. § 147.130(b)(1); Health Resources and Services Administration, U.S. Dep’t of Health & Human Services, Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/.1
 
1 The contraception rule exempts houses of worship, 45 C.F.R. § 147.130(a)(iv)(A) and (B), and the federal government is in process of modifying the rule as applied to religiously affiliated
3

In announcing the final rule, the government recognized that the ability to access
contraception is essential to women’s ability to participate fully in society. Indeed, as the
government explained, the inability of women to access contraception
places women in the workforce at a disadvantage compared to their male co-workers. Researchers have shown that access to contraception improves the social and economic status of women. Contraception coverage, by reducing the number of unintended and potentially unhealthy pregnancies, furthers the goal of eliminating this disparity by allowing women to achieve equal status as healthy and productive members of the job force. . . . The [federal government] aim[s] to reduce these disparities by providing women broad access to preventative services, including contraceptive services.
77 Fed. Reg. 8725, 8728.
In addition, the government recognized that cost is a real barrier to contraceptive access.
The IOM found that “[d]espite increases in private health insurance coverage of contraception
since the 1990s, many women do not have insurance coverage or are in health plans in which
copayments for visits and for prescriptions have increased in recent years.” CLOSING THE GAPS
at 94. Contraceptive copays can be so expensive that women can pay almost as much out-of-
pocket as they would without coverage at all. See, e.g., Su-Ying Liang et al., Women’s Out-of-
Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and
2006, 83 Contraception 491, 531 (June 2010). Cost barriers are aggravated by the fact that
women “typically earn less than men and [] disproportionately have low incomes.” CLOSING THE
GAPS at 19. Women who lack access to contraception face “barriers . . . that prevent women
from achieving health and well-being for themselves and their families.” Id. at 20. The federal
contraception rule, if undisturbed, will ensure that millions of women have access to
    
non-profit employers. The modification will ensure employees will receive contraception coverage but that the employer will not bear the cost, 77 Fed. Reg. 16501.
4

contraception without cost barriers, thereby equalizing the health insurance costs between women and men and ensuring women’s ability to equally participate in society.
ARGUMENT One of the main questions in this case is whether secular, for-profit corporations can discriminate against their female employees by denying them the benefits the government has found to be a critical means of helping promote women’s equality and eradicating discrimination. While today’s controversy centers around health insurance benefits for contraception, the fundamental question – whether religious objections can trump neutral laws designed to eradicate discrimination – is not unique to this context. Indeed, it has arisen in numerous other contexts over the last five decades. For example:  Almost twenty years ago, in 1993, a secular, private school maintained a “Protestant-only” hiring policy based on the school’s founder’s religious beliefs. Based on this policy, the school refused to hire a substitute French language teacher because she was not Protestant. EEOC v. Kamehameha Schs./Bishop Estate, 990 F.2d 458 (9th Cir. 1993).  In 1976, Roanoke Valley Christian Schools added a “head of household” supplement to their teachers’ salaries – but only for heads of household as determined by scripture. For Roanoke Valley, that meant married men. According to the church pastor affiliated with the school, “[w]hen we turned to the Scriptures to determine head of household, by scriptural basis, we found that the Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.” Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392 (4th Cir. 1990). When sued under the Equal Pay Act, Roanoke Valley claimed a right to an exemption from equal pay laws because its “head-of-household practice was based on a sincerely-held belief derived from the Bible.” Id. at 1397.
5

 In 1966, three African-American residents of South Carolina brought a suit against Piggie Park restaurants, and their owner, Maurice Bessinger, for refusal to serve them. Bessinger argued that enforcement of the Civil Rights Act of 1964’s public accommodations provision violated his religious freedom “since his religious beliefs compel[ed] him to oppose any integration of the races whatever.” Newman v. Piggie Park Enter., Inc., 256 F. Supp. 941, 944 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968).
 In the 1980s, Bob Jones University, a religiously affiliated school in South Carolina, wanted an exemption from a rule denying tax-exempt status to schools that practice racial discrimination. The “sponsors of the University genuinely believe[d] that the Bible forbids interracial dating and marriage,” and it was school policy that students engaged in interracial relationships, or advocacy thereof, would be expelled. Bob Jones Univ. v. U.S., 461 U.S. 574, 580 (1983). Bob Jones’s lesser known co-plaintiff, Goldsboro Christian Schools, even opposed integration of the classroom. According to their interpretation of the Bible, “[c]ultural or biological mixing of the races is regarded as a violation of God’s command.” Id. at 583 n.6 (citations omitted).
In each of these cases, entities and individuals tried to invoke the mantle of religious freedom to avoid compliance with laws designed to advance equality, and each time their claims were rejected. As these cases recognized, the right to religious liberty is not absolute. It does not give businesses or individuals carte blanche to discriminate against others, deny others their rights, ignore important laws, or foist their religious beliefs on their employees. As the District Court in South Carolina explained in rejecting the free exercise claim of a restaurant owner who refused to serve African-American customers:
6

Undoubtedly defendant . . . has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs. Newman, 256 F. Supp. at 945. As these cases make clear, because religious liberty is not absolute, religious liberty must yield to laws that were passed to further a compelling government interest. This includes laws designed to promote equality and eradicate discrimination. See, e.g., Shenandoah Baptist Church, 899 F.2d at 1398 (religious school must comply with the Equal Pay Act, which was passed to address “serious and endemic problem of employment [gender] discrimination,” which is a compelling government interest); Bob Jones Univ., 461 U.S. at 604 (religious school could not be exempt from IRS policy that required such schools to have nondiscriminatory policies, because eradication of racial discrimination in education is a compelling government interest). The same is true here. As discussed above, and as the government points out in its brief, in passing the Women’s Health Amendment, Congress sought to eradicate gender discrimination in the context of the provision of health care. See Defs.’ Opp. to Pls.’ Mot. for Prelim. Inj. (“Defs.’ Br.”) at 22. In passing the ACA, Congress recognized that women of childbearing age pay substantially more for out-of-pocket health care than men, in part because of the costs of contraception. See supra at 3-4. These costs are not insignificant and are a true barrier to women’s access to effective birth control; and these financial barriers are aggravated by the fact that women typically earn less than men. Id. As Congress found, ensuring women receive the same benefits as men from their employers, and equalizing the existing health care disparities between men and women, is crucial. Id.
7

This is particularly true where, as here, the benefit at issue is part and parcel of women’s
equality in other aspects of their life. The impact of the inability to access contraception falls
primarily on women. Access to contraception gives women control of their fertility, enabling
them to decide whether and when to become parents, and allowing women to make educational
and employment choices that benefit themselves and their families. Women’s ability to pursue
professional careers because of the ability to control whether and when to have children
significantly closed the wage gap between men and women. Succinctly put, “[w]omen cannot
participate in society, learn, earn, govern, and thrive equally without the ability to determine
whether and when to become mothers.” Cornelia T.L. Pillard, Our Other Reproductive Choices:
Equality in Sex Education, Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941,
976 (2007); see also id. at 975 (recognizing the importance of accessing contraception on the
ability to participate in the work force, and without “the means to control and limit reproduction,
the average woman would bear twelve to fifteen children in her lifetime”). The Supreme Court
has also recognized the direct relationship between women’s reproductive health decisions and
their equal participation in society: “The ability of women to participate equally in the economic
and social life of the Nation has been facilitated by their ability to control their reproductive lives.”2 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992).
 
2 The fact that Plaintiffs object to covering some, but not, all methods of contraception does not change the analysis. For example, Plaintiffs object to including intrauterine devices (“IUDs”) and emergency contraception (“EC”) in its employees’ health insurance plans. IUDs are part of a very limited class of what are known as long-acting reversible contraceptive methods, which have the highest effectiveness rate of any method of contraception other than permanent sterilization. Jeffery Peipert, Continuation and Satisfaction of Reversible Contraception, 117 Obstetrics & Gynecology 1105, 1105-06 (May 2011). Yet many women do not choose IUDs because of the upfront cost. Id. at 1105. When those cost barriers are removed, however, women choose IUDs in high numbers, resulting in fewer unintended pregnancy. Jeffrey Peipert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception, Obstetrics & Gynecology (Dec. 2012) (forthcoming). Plaintiffs also object to including coverage for EC in
8

The federal government is not the only one to recognize and act on these gender disparities and the importance of access to contraception to women’s equality. Indeed, 28 states have passed laws requiring employers to cover contraception. 77 Fed. Reg. at 8728. Two of those states, California and New York, faced legal challenges similar to the one at issue here. The highest courts of both states rejected those challenges in part because the laws were designed to eradicate gender discrimination in the workplace. See Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92 (Cal. 2004) (recognizing that the statue was passed to equalize health insurance costs between men and women); Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 461, 468 (N.Y. 2006) (noting that the purpose of the statute was to advance equal treatment of women). Those courts acknowledged legislative history similar to that here: women pay much more than men in out-of-pocket health care costs, due in part to the cost of prescription contraception. See Catholic Charities of Sacramento, Inc., 85 P.3d at 92; Catholic Charities of Diocese of Albany, 859 N.E.2d at 468. Eradicating gender discrimination and disparities in health care costs is undoubtedly a compelling government interest, as recognized by the line of cases discussed above.3 See also EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) (holding that an insurance plan offered only to “head of households,” namely men or single persons, violated Title VII and the Equal Pay Act, and rejecting the school’s free exercise claim because of the compelling government interest in
    
its employees plans. But EC is the primary method used by a woman to prevent pregnancy after intercourse (for example, in cases of rape or contraceptive failure). See generally http://ec.princeton.edu/. Removing IUDs and EC from health plans hampers a woman’s ability to make decisions about their reproductive lives, including the ability to select a highly effective contraception method to avoid unintended pregnancy. 3 As the government discusses, the rule also furthers the compelling interest in ensuring that women have appropriate health care. Defs.’ Br. at 20-21.
9

eradicating gender discrimination). The federal contraception rule clearly furthers the
compelling government interest of eliminating gender discrimination in the workplace, and ensuring gender equality.4
Not only do these neutral anti-discrimination laws further a compelling government
interest, but as courts have held, they also minimally – if at all – burden religion. For example,
in Shenandoah, the court recognized that it would be – at most – a “limited” burden to require
the school to comply with the Fair Labor Standards Act (“FLSA”) and pay its female teachers
the same as men. As the court recognized, “[t]he fact that [the school] must incur increased
payroll expenses to conform to FLSA requirements is not the sort of burden that is determinative
in a free exercise claim.” 899 F.2d at 1398. So too here. Requiring Plaintiffs to provide their
employees with a health plan that includes coverage for all contraception does not burden
Plaintiffs’ religious exercise. The link between the contraceptive coverage requirement and the
religiously prohibited behavior is simply too attenuated to amount to a substantial burden. See
Defs.’ Br. at 17-20. The contraceptive coverage requirement does not require Plaintiffs to
physically provide contraception to their employees nor does it require them to endorse the use
of contraception. It merely requires Plaintiffs – like the employer in Shenandoah – to provide a
nondiscriminatory benefit to its employees, and some employees may choose to use those
benefits to access birth control. Cf. Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002)
 
4 The federal contraception rule’s constitutionality is not affected by the fact that the ACA requires only those employers with 50 or more employees to provide health insurance, or that the contraception rule exempts houses of worship. See, e.g., Mot. for Prelim. Inj. and Mem. of Law and Supp. at 22-26. Indeed, the same is largely true of Title VII of the Civil Rights Act of 1964. That statute applies to employers with 15 or more employees, and certain religious and religiously identified entities are exempt from the prohibition on discriminating based on an employee’s religion. See 42 U.S.C. §§ 2000e(b), 2000e-1(a). No court has ever intimated that Title VII’s exemptions renders the statute unconstitutional as applied to private business owners that seek to use their religious beliefs to discriminate. The similar, logistical exemptions to the contraception rule also do not undermine its constitutionality. See Defs.’ Br. at 24-28.
10

(holding that school voucher program did not violate the Establishment Clause because parents’ “genuine and independent private choice” to use the voucher to send their children to religious schools broke “the circuit between government and religion.”)
Another line of cases also supports the proposition that Plaintiffs’ claimed injury – an objection to contributing to a health plan that provides coverage for health care services the Plaintiffs find objectionable – is not meritorious. In Goehring v. Brophy, for example, the court addressed and rejected a RFRA claim similar to Plaintiffs’ claim here. 94 F.3d 1294, 1297 (9th Cir. 1996), overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997). In that case, public university students objected to a university’s requirement that they pay a registration fee on the ground that it was used to subsidize the school’s health insurance program, which covered abortion care. Id. The court rejected the plaintiffs’ RFRA and free exercise claims, reasoning that the payments did not impose a substantial burden on the plaintiffs’ religious beliefs. Id. at 1300. Moreover, in Tarsney v. O’Keefe, the Eighth Circuit affirmed the dismissal of a free exercise challenge by taxpayers who objected on religious grounds to the state’s use of their tax dollars to pay for Medicaid recipients’ medically necessary abortions. 225 F.3d 929, 932 (8th Cir. 2000). The payment of taxes that may ultimately subsidize other individuals’ Medicaid abortion coverage, the court explained, was too remote an injury even to accord standing upon the plaintiffs to assert a free exercise claim. Id. at 936; accord Erzinger v. Regents of Univ. of Cal., 137 Cal. App. 3d 389, 393 (Cal. Ct. App. 1982) (“[T]he fact [that] plaintiffs may object on religious grounds to some of the services the University provides is not a basis upon which plaintiffs can claim a constitutional right not to pay a part of the fees.”). Accordingly, just like those who have objected to paying insurance premiums for an insurance plan that others may use to access abortion care, or taxes that pay for Medicaid, which may be
11

used to cover another’s abortion, Plaintiffs here cannot claim any cognizable injury by providing their employees with a health plan that covers contraception, which some employees may use.
CONCLUSION Plaintiffs are attempting to resurrect the long-discredited notion that religion can be used to trump anti-discrimination or other important laws. Unfortunately, others have recently tried to do so in other contexts. For example, a religious school claimed that firing a teacher for asking to take maternity leave was justified by its religious belief that she should not have conceived a child outside of marriage. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316 (11th Cir. 2012). Plaintiffs’ argument is based on the incorrect notion that religion can be used as a license to discriminate. This Court should follow the wise words from the district court in South Carolina five decades ago, and refuse to “lend credence or support” to the position that entities have a constitutional right to refuse to comply with laws designed to eradicate discrimination. Newman, 256 F. Supp. at 945. For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction should be denied.
October 24, 2012
Respectfully submitted, Brigitte Amiri New York State Bar No. 3017167 American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2633 Fax: (212) 549-2650 E-mail: bamiri@aclu.org
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/s/ Arthur B. Spitzer __________________________ Arthur B. Spitzer D.C. Bar No. 235960 American Civil Liberties Union of the Nation’s Capital 4301 Connecticut Avenue, N.W., Suite 434 Washington, DC 20008 Tel: (202) 457-0800 Fax: (202) 457-0805 E-mail: artspitzer@aclu-nca.org Counsel for Amici Curiae
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 Case 1:12-cv-01635-RBW Document 27 Filed 11/16/12 Page 1 of 38

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

TYNDALE HOUSE PUBLISHERS, INC., )

et al.,

)

)

Plaintiffs,

)

)

v.

)

Civil Action No. 12-1635 (RBW)

)

KATHLEEN SEBELIUS, SECRETARY )

OF THE UNITED STATES

)

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES, et al.,

)

)

Defendants.

)

____________________________________)

MEMORANDUM OPINION

The plaintiffs, Tyndale House Publishers, Inc. and its president and CEO, Mark D.

Taylor, challenge the application of the regulations and penalties relating to an employer’s

obligation to cover contraceptives under an employer health plan pursuant to the Patient Protection and Affordable Care Act (the “ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010),1 as

violating the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1 (2006), the

Free Exercise, Establishment, and Free Speech Clauses of the First Amendment, U.S. Const.

amend. I, the Due Process Clause of the Fifth Amendment, U.S. Const. amend. V, and the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 553(b)-(c), 706(2)(A), 706(2)(D) (2006).

See generally Verified Complaint (“Compl.”). Currently before the Court is the plaintiffs’

1 The plaintiffs refer to the “collection of regulations and [] penalties” promulgated under the ACA as outlined in 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012), as well as agency guidance issued in connection with the regulations, as “the Mandate.” Plaintiffs’ Memorandum of Law (“Pls. Mem.”) at 4; see also Compl. ¶ 4 n.1 (specifying the statutes, regulations, and regulatory guidance that comprise “the Mandate”). For the sake of clarity, the Court will refer to these provisions collectively as the “contraceptive coverage mandate.”
1

Case 1:12-cv-01635-RBW Document 27 Filed 11/16/12 Page 2 of 38
Motion for Preliminary Injunction (“Pls.’ Mot.”). For the reasons explained below, the plaintiffs’ motion will be granted.2
I. BACKGROUND
A. The Affordable Care Act Enacted in March 2010, the ACA requires group health plans to provide women with
“preventive care and screenings” without imposing any cost-sharing requirements on the plan
beneficiaries. See 42 U.S.C. § 300gg-13(a)(4) (Supp. 2010). Specifically, the ACA requires that non-grandfathered3 group or individual health plans and health insurance issuers cover without
“impos[ing] any cost sharing requirements . . . such additional preventive care and screenings
[for women] . . . as provided for in comprehensive guidelines supported by the Health Resources
and Services Administration [(“HRSA”)].” Id.
The Department of Health and Human Services (“HHS”) tasked the Institute of Medicine
(“Institute”) with developing recommendations to implement the requirement to provide
preventive services for women. Institute of Medicine, Clinical Preventive Services for Women:
Closing the Gaps 2 (2011) (“Institute Report”). The HRSA adopted the Institute’s
recommendations on August 1, 2011, which included a provision requiring “the full range of
[FDA]-approved contraceptive methods, sterilization procedures, and patient education and
2 In addition to the filings already identified, the Court considered the following submissions made by the parties: (1) the plaintiffs’ Memorandum of Law in support of their motion (“Pls.’ Mem.”); (2) the Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction (“Defs.’ Opp’n”); (3) the plaintiffs’ Reply in Support of Motion for Preliminary Injunction (“Pls.’ Reply”); (4) the Memorandum of the American Civil Liberties Union and the American Civil Liberties Union of the National Capital Area, as Amici Curiae; and (5) the Plaintiffs’ Response to Third Parties the American Civil Liberties Union and the American Civil Liberties Union of the National Capital Area, as Amici Curiae. 3 Grandfathered plans are those that existed as of March 23, 2010, have continuously covered at least one person, and have not since undergone any of the changes outlined in 45 C.F.R. § 147.140(g)(2) (2010). Because of a number of changes to the coverage provided to plan participants under the plaintiffs’ health care plan, Compl. ¶¶ 121-28, the plaintiffs’ plan is not grandfathered.
2

Case 1:12-cv-01635-RBW Document 27 Filed 11/16/12 Page 3 of 38
counseling for women with reproductive capacity.” Id. at 20-22, 109-10. HHS subsequently promulgated regulations implementing the Institute’s recommendations, under which all health insurance plans and policies (except those grandfathered or otherwise exempt) are required to comply with the contraceptive coverage mandate starting with the plan years beginning on or after August 1, 2012. 76 Fed. Reg. 46621-01 (Aug. 3, 2011).
Among other exemptions, the regulations exempt from the contraceptive coverage mandate certain “religious employers,” defined as employers having each of the following characteristics:
(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. (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. 45 C.F.R. § 147.130(a)(1)(iv)(B). In response to concerns from various organizations with religious objections to the contraceptive coverage mandate but which did not fit the definition of religious employer, “the Departments of Health and Human Services, Labor, and the Treasury [] propose[d] amendments to regulations regarding” the contraceptive coverage mandate in an Advance Notice of Proposed Rulemaking (“Advance Notice”). 77 Fed. Reg. 16501-01 (Mar. 21, 2012). The agencies stated in the Advance Notice that the religious employer exemption would be broadened. Id. In addition to the Advance Notice, HHS also issued guidance outlining a safe harbor for certain non-profit employers with religious objections to the contraceptive coverage mandate. See Ctr. for Consumer Info. & Ins. Oversight and Ctrs. for Medicare & Medicaid Servs., Guidance on the Temporary Enforcement Safe Harbor for Certain Employers (February
3

Case 1:12-cv-01635-RBW Document 27 Filed 11/16/12 Page 4 of 38
10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210Preventive-Services-Bulletin.pdf, and (August 15, 2012), available at http://cciio.cms.gov/resources/files/prev-services-guidance-08152012.pdf. The guidance grants certain non-profit employers with religious objections to the contraceptive coverage mandate an exemption from application of the mandate until August 1, 2013, by which time HHS expects to have finalized new rules and regulations broadening the definition of religious employer. 77 Fed. Reg. 16501-01.
Employers subject to the contraceptive coverage mandate face fines, penalties, and enforcement actions for non-compliance. See 29 U.S.C. § 1132(a) (civil enforcement actions by the Department of Labor and insurance plan participants); 26 U.S.C. § 4980D(a), (b) (penalty of $100 per day per employee for noncompliance with coverage provisions of the ACA); 26 U.S.C. § 4980H (annual tax assessment for noncompliance with requirement to provide health insurance).
B. The Plaintiffs’ Factual Allegations The first named plaintiff, Tyndale House Publishers, Inc. (“Tyndale”), is a Christian publishing company founded in 1962 by Dr. Kenneth Taylor and his wife, Margaret Taylor. Compl. ¶ 21. Initially founded to publish “Kenneth Taylor’s modern paraphrase of portions of the New Testament” of the Bible, the company today “publishes a wide array of Christian books ranging from Bible commentaries to books about family issues to Christian fiction.” Id. ¶ 24. The publishing company employs 260 full-time employees, and provides them with health insurance through a self-insured health plan. Id. ¶¶ 71-73.
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Tyndale is 96.5% owned by the Tyndale House Foundation (the “Foundation”), a nonprofit religious entity. Id. ¶¶ 41-42, 45. Of the shares owned by the Foundation, “just over 8.4%” are voting shares. Id. ¶ 45. “The Foundation receives 96.5% of all of Tyndale’s distributed profits,” amounting to $38.8 million of the $40.2 million in profits since 2001. Id. ¶ 47. The Foundation directs much of its proceeds “to various charitable causes.” Id. ¶ 50. In particular, “[t]he Foundation has used proceeds from Tyndale to benefit such ministries as: a Christian community center in the Chicago area . . . ; [the] Cabrini Green Legal Aid Clinic . . . ; and evangelistic work worldwide.” Pls.’ Mem., Exhibit (“Ex.”) 1 (Oct. 8, 2012 Affidavit of Mark D. Taylor) ¶ 3.
In addition to the shares owned by the Foundation, “a small percentage is owned by [the] Tyndale Trust.” Compl. ¶ 52. Because the Tyndale Trust holds “84% of the voting shares,” Tyndale is “primarily directed” by the Tyndale Trust. Id. ¶¶ 2, 52. The same group of individuals serves both as the trustees of the Tyndale Trust and as the board of directors of Tyndale House Publishers, and each individual is “required to sign a Statement of Faith each year to show that they hold certain religious beliefs, which are typically described as evangelical Christian beliefs.” Id. ¶¶ 55-56.
Two additional Illinois trusts established to “benefit Dr. Kenneth Taylor’s widow and children,” own “just over 3.4%” of the publishing company’s remaining shares. Id. ¶ 60. The two trusts “share the beliefs of Tyndale House Publishers, [the] Tyndale House Foundation, and [the] Tyndale Trust.” Id. ¶ 61.
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Tyndale, the Foundation, and the three trusts4 have each adopted almost identical “statement[s] of belief and policy” outlining their religious beliefs, which include “respect for the inviolable sanctity of the life of every human being as created in the image and likeness of God from the moment of conception/fertilization” such that each “supports Tyndale House Publishers, Inc.’s omission from its employee health plan of any coverage of abortions and of drugs (e.g., Plan B, ella5) or devices (e.g., intrauterine devices [“IUDs”]) that can cause the demise of an already conceived/fertilized human embryo.” Id. ¶¶ 39, 51, 59, 62.
The second named plaintiff, Mark D. Taylor, is the son of Tyndale’s founder, Kenneth Taylor. Id. ¶ 2. Mark Taylor is the president and CEO of Tyndale and the Foundation, and a trustee of both the Tyndale Trust and the Kenneth N. Taylor Trust. Id. ¶ 63. In his capacity as president and CEO of the publishing company and the Foundation, Mark Taylor “is responsible for their overall operations, including the provision of Tyndale’s health insurance plan.” Id. ¶ 65. He shares the same beliefs as the entities described above. Id. ¶ 67.
The contraceptive coverage mandate requires the plaintiffs “to provide and pay for drugs and devices . . . [that] violate [their] religious beliefs, and [] subjects [the plaintiffs] to heavy fines and penalties if [they] choose[] not to violate those beliefs.” Id. ¶¶ 3, 5. In particular, the plaintiffs are required to pay for “drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo.” Id. ¶¶ 39, 81-82.
The plaintiffs instituted this action on October 2, 2012. By requiring the plaintiffs to provide for certain contraceptive care, the plaintiffs allege that the defendants have violated their
4 Neither the Foundation, nor any of the trusts, trustees, officers, or directors (with the exception of Mark D. Taylor), are parties to this action. Instead, Tyndale “asserts its claims on behalf of itself as well as on behalf of its owners, all of whom share Tyndale’s religious beliefs against the [contraceptive coverage mandate]’s application in this case.” Compl. ¶ 10. 5 Plan B is commonly known as the “morning after” pill, and ella as the “week after” pill. See Compl. ¶¶ 81-82.
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rights under the RFRA, and the First and Fifth Amendments to the Constitution of the United States. Id. ¶ 7. The plaintiffs further allege that the defendants “violated the [APA] by imposing the [contraceptive coverage mandate] with deliberate disregard of public comments.” Id.
The plaintiffs have now moved for a preliminary injunction. Pls.’ Mot. at i. They assert that they face imminent harm because their refusal to comply with the ACA will subject them “to the [contraceptive coverage mandate’s] draconian penalties.” Compl. ¶ 8. Namely, the plaintiffs claim that they “face[], today, the certain prospect of lawsuits from the Secretary of Labor, fines and regulatory penalties.” Pls.’ Mem. at 43 (original emphasis). The plaintiffs represent that they “cannot afford to sustain the fines threatened by the [contraceptive coverage mandate] at issue in this case.” Pls.’ Mem., Ex. 1 ¶ 4.
II. STANDARD OF REVIEW “‘A plaintiff seeking a preliminary injunction must establish [1] that [it] is likely to succeed on the merits, [2] that [it] is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in [its] favor, and [4] that an injunction is in the public interest.’” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)) (some alterations in original). Because it is “an extraordinary remedy,” a preliminary injunction “should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). The District of Columbia Circuit has applied a “sliding scale” approach in evaluating the preliminary injunction factors. Sherley, 644 F.3d at 392. Under this analysis, [i]f the movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor. F or example, if the movant makes a very strong showing of irreparable harm and
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there is no substantial harm to the non-movant, then a correspondingly lower standard can be applied for likelihood of success . . . A lternatively, if substantial harm to the nonmovant is very high and the showing of irreparable harm to the movant very low, the movant must demonstrate a much greater likelihood of success. It is in this sense that all four factors must be balanced against each other.
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291–92 (D.C. Cir. 2009) (internal
quotation marks and citations omitted).6
III. LEGAL ANALYSIS
Before addressing the merits of the plaintiffs’ claims, the Court first turns to the question
of whether the plaintiffs have standing to pursue their RFRA claim.7
A. Standing
“Because Article III limits the constitutional role of the federal judiciary to resolving
cases and controversies, a showing of standing ‘is an essential and unchanging’ predicate to any
exercise of [federal] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir.
1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “‘The
irreducible constitutional minimum of standing contains three elements: (1) injury-in-fact, (2)
causation, and (3) redressability.’” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C.
6 Several members of the Circuit have read the Supreme Court's decision in Winter to cast doubt on the continued validity of the sliding scale approach. See Davis, 571 F.3d at 1296 (Kavanaugh, J, joined by Henderson, J., concurring) (“[U]nder the Supreme Court's precedents, a movant cannot obtain a preliminary injunction without showing both a likelihood of success and a likelihood of irreparable harm, among other things” (emphasis in original)); Sherley, 644 F.3d at 393 (“Like our colleagues, we read Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free-standing requirement for a preliminary injunction.’” (quoting Davis, 571 F.3d at 1296 (concurring opinion))). But the Circuit has had no occasion to decide this question because it has not yet encountered a post-Winter case where a preliminary injunction motion survived the less rigorous sliding scale analysis. See Sherley, 644 F.3d at 393 (“We need not wade into this circuit split today because, as in Davis, as detailed below, in this case a preliminary injunction is not appropriate even under the less demanding sliding-scale analysis.”). Thus, because it remains the law of this Circuit, the Court must employ the sliding scale analysis here. 7 As will be explained below, the Court finds that the plaintiffs have shown a likelihood of success on the merits of their RFRA claim, and that the remaining preliminary injunction factors weigh in favor of granting the plaintiffs an injunction on the basis of that claim. Accordingly, the Court will not address the merits of the plaintiffs’ other claims.
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Cir. 2011) (citation omitted). “‘Thus, to establish standing, a litigant must demonstrate a personal injury fairly traceable to the [opposing party’s] allegedly unlawful conduct [that is] likely to be redressed by the requested relief.’” Id. (citation omitted).
The parties initially dispute whether Tyndale has standing to raise RFRA and free exercise claims.8 According to the defendants, Tyndale is unable to assert such claims on its own behalf because it is a “for-profit corporation [that] does not exercise religion” within the meaning of the RFRA and the First Amendment. Defs.’ Opp’n at 8. The plaintiffs respond that “[t]here is no business or corporation ‘exception’” to the RFRA or the Free Exercise Clause, and that these provisions protect the religious exercise of any entity, regardless of for-profit status. Pls.’ Reply at 1-2.
This Court, like others before it, declines to address the unresolved question of whether for-profit corporations can exercise religion within the meaning of the RFRA and the Free Exercise Clause. See, e.g., First Nat’l Bank v. Bellotti, 435 U.S. 765, 777-78 n.14 (1978) (recognizing that corporations have First Amendment speech rights, but declining to “address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment”); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (“We decline to decide whether a for-profit corporation can assert its own rights under the Free Exercise Clause . . .”); Church of Scientology of Cal. v. Cazares, 638 F.2d 1272, 1280 n.7 (5th Cir. 1981) (same). Instead, the Court will assess whether Tyndale has standing to assert the free exercise rights of its owners.9
8 The parties’ briefs do not focus on plaintiff Mark Taylor’s standing, so the Court will not discuss that issue either. 9 The RFRA “was enacted to reestablish a constitutional test with the expectation that courts would look to constitutional precedent for guidance.” Vill. of Bensenville v. FAA, 457 F.3d 52, 62 n.3 (D.C. Cir. 2006). Where appropriate, then, the Court will apply free exercise jurisprudence in determining the plaintiffs’ standing to raise
(continued . . . )
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i. Tyndale’s Standing to Assert its Owners’ Free Exercise Rights At least one Circuit Court of Appeals has “held that a corporation has standing to assert the free exercise right of its owners.” Stormans, 586 F.3d at 1120 (citing EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 620 n.15 (9th Cir. 1988)). The Ninth Circuit first recognized this theory of standing in Townley. The plaintiff in that case was a closely-held manufacturing company whose owners made a “covenant with God requir[ing] them to share the Gospel with all of their employees.” Townley, 859 F.2d at 620. It sought an exemption, on free exercise grounds, from a provision of Title VII of the Civil Rights Act that required it to accommodate employees asserting religious objections to attending the company’s mandatory devotional services. Id. at 620. Although the plaintiff urged “the court to hold that it [was] entitled to invoke the Free Exercise Clause on its own behalf,” the Ninth Circuit deemed it “unnecessary to address the abstract issue whether a for profit corporation has rights under the Free Exercise Clause independent of those of its shareholders and officers” because, in its view, “Townley [was] merely the instrument through and by which Mr. and Mrs. Townley express[ed] their religious beliefs.” Id. at 619-20. The court reasoned that “Townley present[ed] no rights of its own different from or greater than its owners’ rights” because the corporation was an “extension of the beliefs” of the owners, and “the beliefs of [the owners were] the beliefs and tenets of the Townley Company.” Id. at 620 (internal quotation marks omitted). The court therefore held that “Townley ha[d] standing to assert Jake and Helen Townley’s [f]ree [e]xercise rights,” and examined the rights at issue as those of the corporation’s owners. Id. at 620 n.15 (citing Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 303 n.26 (1985)).
( . . . continued) their RFRA claims. The Court will also use the phrase “free exercise rights” to refer collectively to rights protected by the Free Exercise Clause and the RFRA.
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The Ninth Circuit subsequently applied Townley’s reasoning in Stormans. There, a pharmacy brought a free exercise challenge to a state regulation requiring it to dispense Plan B, an emergency contraceptive drug. Stormans, 586 F.3d at 1117. In analyzing whether the pharmacy had standing to assert the free exercise rights of its owners, the court emphasized that the pharmacy was a “fourth-generation, family-owned business whose shareholders and directors [were] made up entirely of members of the Stormans family,” and that “Kevin Storman’s opposition to Plan B [was] that of [the pharmacy’s] and all the owners.” Id. at 1120. The court thus found that the pharmacy was “an extension of the beliefs of members of the Stormans family, and that the beliefs of the Stormans family [were] the beliefs of” the pharmacy. Id. Because the pharmacy did “not present any free exercise rights of its own different from or greater than its owners’ rights,” the court held, as it had in Townley, that the company had “standing to assert the free exercise rights of its owners.” Id.
Applying the principles of Townley and Stormans here, as this Court deems it appropriate to do, it is first necessary to dissect Tyndale’s corporate structure. Tyndale is a “closely-held entity” owned by four other entities: the Foundation, the Tyndale Trust, the Kenneth N. Taylor Trust, and the Margaret W. Taylor Trust. See November 7, 2012 Affidavit of Mark D. Taylor [ECF No. 24] (“Taylor Aff.”) ¶ 2; id., Ex. A. All five entities were created by Dr. Kenneth Taylor, the father of plaintiff Mark D. Taylor and Tyndale’s founder. Id. ¶ 2. Dr. Taylor designed Tyndale’s ownership structure to accomplish two goals: “to direct [Tyndale’s] proceeds to religious charity and educational non-profit work” and “to ensure that the direction of [Tyndale] will remain . . . faithful to his religious beliefs and Christian educational vision even after his passing.” Id. ¶ 3. To these ends, Dr. Taylor separated the stock of Tyndale into non-
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voting shares and voting shares. Id. ¶ 5. The Foundation, a “non-profit religious entity,” owns 96.5% of Tyndale’s total shares. Id. ¶ 4; Compl. ¶ 45. Not only is the Foundation the primary recipient of Tyndale’s profits, “Tyndale also pays royalties to the Foundation in amounts exceeding $1 million annually, because Dr. Taylor had donated his author rights to the Foundation.” Compl. ¶ 49. The Foundation distributes the funds it receives from Tyndale “to various charitable causes,” primarily “other Christian charities.” Id. ¶¶ 42, 50. The Tyndale Trust owns 84% of Tyndale’s voting shares, and its trustees must “be the same people as the directors of [Tyndale]” to ensure that Tyndale maintains “its religious identity, beliefs, and mission.” Taylor Aff. ¶ 5. Less than 3.5% of Tyndale’s shares are owned by two trusts created for the benefit of Dr. Taylor’s widow, Margaret Taylor, and their children. Id. ¶ 6. “These family trusts also possess some voting shares so that the religious beliefs of Dr. Taylor’s family will continue to influence [Tyndale’s] direction.” Id.
The plaintiffs’ submissions to the Court indicate that all five Tyndale entities, as well as their directors, trustees, and even many of their employees, share the same religious beliefs:
• Tyndale’s Articles of Incorporation declare that its purpose is “[t]o engage as a publisher of Christian and faith-enhancing books.” Id., Ex. B. And its “Corporate Purpose is ‘to minister to the spiritual needs of people, primarily through literature consistent with biblical principles.’” Compl. ¶ 26.
• Tyndale “holds a weekly chapel service for its employees”; although attendance is voluntary, “well over 50% of the employee population” attends each week. Id. ¶ 29. Christian prayer is also a routine practice at meetings of Tyndale’s executives and board of directors. See id. ¶¶ 30-32.
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• Tyndale’s primary owner, the Foundation, has the mission of “‘minister[ing] to the spiritual needs of people, primarily through grants to other Christian charities.’” Id. ¶ 42. Due to “the Foundation’s nearly total ownership of Tyndale,” the “religious missions” of Tyndale and the Foundation “are largely overlapping and mutually reinforcing.” Id. ¶ 46.
• The Tyndale Trust’s trustees, who are also Tyndale’s board of directors, “are required to sign a Statement of Faith each year to show that they hold to certain religious beliefs, which are typically described as evangelical Christian beliefs.” Id. ¶ 56. By signing this “Statement of Faith,” the trustee-directors agree that, among other things, they “believe in the divine inspiration, truthfulness, and authority of both Old and New Testament Scriptures in their entirety as the only written word of God, without error in all that it affirms, and the only infallible rule of faith and practice.” Id. ¶ 57. These measures are designed to ensure that the Tyndale Trust “continue[s] the biblical focus” of Tyndale’s mission. Id. ¶ 54.
• All five entities—Tyndale, the Foundation, the Tyndale Trust, the Margaret W. Taylor Trust, and the Kenneth N. Taylor trust—share the same religious beliefs “in general and with respect to Tyndale’s provision of health insurance and omission of [certain contraceptives] therefrom.” Id. ¶ 61. Thus, as in Townley and Stormans, the beliefs of Tyndale and its owners are
indistinguishable. Tyndale is a closely-held corporation owned by four entities united by their Christian faith, each of which plays a distinct role in achieving shared, religious objectives. Christian principles, prayer, and activities are pervasive at Tyndale, and the company’s ownership structure is designed to ensure that it never strays from its faith-oriented mission. The
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Court has no reason to doubt, moreover, that Tyndale’s religious objection to providing insurance coverage for certain contraceptives reflects the beliefs of Tyndale’s owners. Nor is there any dispute that Tyndale’s primary owner, the Foundation, can “exercise religion” in its own right, given that it is a non-profit religious organization; indeed, the case law is replete with examples of such organizations asserting cognizable free exercise and RFRA challenges. See, e.g., Jimmy Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378, 381, 384 (1990); Bob Jones Univ. v. United States, 461 U.S. 574, 579-85, 602-04 (1983); EEOC v. Catholic Univ. of Am., 83 F.3d 455, 467-70 (D.C. Cir. 1996). Accordingly, because Tyndale does “not present any free exercise rights of its own different from or greater than its owners’ rights,” it has “standing to assert the free exercise rights of its owners.”10 Stormans, 586 F.3d at 1120.
The defendants argue that nothing in Townley or Stormans suggests that a regulation that burdens a corporation alone can also constitute a burden on its owners. Defs.’ Opp’n at 17-18. But, at least for the purposes of standing in the free exercise context, that is precisely what those cases held. Specifically, Townley and Stormans recognize that when the beliefs of a closely-held corporation and its owners are inseparable, the corporation should be deemed the alter-ego of its owners for religious purposes. See Stormans, 586 F.3d at 1120. In such circumstances, courts must “consider the rights of the owners as the basis for the [f]ree [e]xercise claim” brought by
10 Tyndale’s unique corporate structure serves to distinguish this case from other recent decisions involving free exercise and RFRA challenges to the contraceptive coverage mandate brought by secular, for-profit corporations. See, e.g., Legatus v. Sebelius, __ F. Supp. 2d __, 2012 WL 5359630 (E.D. Mich. 2012); O’Brien v. HHS, __ F. Supp. 2d __, 2012 WL 4481208 (E.D. Mo. 2012); Newland v. Sebelius, __ F. Supp. 2d __, 2012 WL 3069154 (D. Colo. 2012).
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the corporation, even if the regulation technically applies only to the corporation.11 See id. at
1120-22 (emphasis added).
Viewing the rights of Tyndale’s owners (in particular, those of the Foundation) as the
basis for its RFRA claim, the Court finds that Tyndale has made a satisfactory showing of
Article III standing. According to the complaint, Tyndale has been subject to the contraceptive
coverage mandate since it became effective on October 1, 2012, and, based on its noncompliance
with the law on religious grounds, it currently faces heavy fines and penalties that accrue daily,
as well as likely governmental enforcement actions. See Compl. ¶¶ 87-99. The defendants do
not dispute these allegations. Tyndale has therefore shown an “actual or imminent” injury-in-
fact that is “concrete and particularized” and “‘fairly . . . traceable’” to the contraceptive
coverage mandate. Lujan, 504 U.S. at 560 (citations and brackets omitted). This injury would,
moreover, be redressed by a court decision holding the contraceptive coverage mandate unlawful
and enjoining its enforcement against Tyndale. Article III requires no more.
ii. Third-Party Standing
Even if this Court were not inclined to adopt the Townley-Stormans theory of free exercise standing,12 it would nonetheless find that Tyndale has standing to assert its owners’ free
11 The defendants caution that accepting the Townley-Stormans theory of standing “would expand [the] RFRA’s scope in an extraordinary way” by allowing “owner[s’] religious beliefs [to be] automatically imputed to [their] compan[ies].” Defs.’ Opp’n at 16. This, in the defendants’ estimation, would allow “millions of shareholders of publicly traded companies [to] assert RFRA claims on behalf of those companies.” Id. But Townley and Stormans are far more limited than the defendants indicate—the cases only permit a corporation to assert the free exercise rights of its owners when it is closely-held and the beliefs of the corporation are an extension of the owners’ beliefs. See Stormans, 586 F.3d at 1120. Furthermore, Townley has been the law of the Ninth Circuit since 1988, yet nothing has been presented to show that courts in that Circuit have been flooded with free exercise and RFRA claims by for-profit corporations. 12 Although the plaintiffs rely heavily on Townley and Stormans, see Pls.’ Mem. at 10, 14, 20, the defendants do not attack the reasoning of those decisions apart from stating, without elaboration, that the Ninth Circuit’s standing analysis was “probably incorrect[.]” Defs.’ Opp’n at 16. The Court is therefore left to guess where the defendants
(continued . . . )
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exercise rights under the third-party standing doctrine, despite the defendants’ arguments to the contrary. See Defs.’ Opp’n at 14. The standing inquiry “involves ‘both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.’” Kowalski v. Tesmer, 543 U.S. 125, 128 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). One of the standing doctrine’s “prudential limitations” is “the rule that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’” Id. at 128-29 (quoting Warth, 422 U.S. at 499). The Supreme Court has, however, “recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied”: (1) “[t]he litigant must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute”; (2) “the litigant must have a close relation to the third party”; and (3) “there must exist some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (citations omitted).
The Court will thus analyze whether Tyndale has satisfied the third-party standing criteria with respect to its primary owner, the Foundation. As discussed above, Tyndale has shown a sufficient injury-in-fact that is fairly traceable to the contraceptive coverage mandate, and therefore has satisfied the first criterion. Regarding the “close relationship” requirement, Powers states that courts should examine whether the plaintiff and third party have a “congruence of interests” such that the plaintiff will be a “motivated, effective advocate for the [third party’s] rights.” Id. at 414. These conditions are present here, as Tyndale and the Foundation are closely-linked entities that share common religious objections to the contraceptive coverage
( . . . continued) believe Townley and Stormans went wrong. In any event, the Court’s third-party standing analysis provides an independent basis for finding that Tyndale has standing to assert its owners’ free exercise rights.
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mandate. See Compl. ¶ 46 (“By virtue of the Foundation’s nearly total ownership of Tyndale,” the “religious missions” of Tyndale and the Foundation “are largely overlapping and mutually reinforcing.”); id. ¶ 61 (alleging that all five Tyndale entities hold the same religious beliefs “in general and with respect to Tyndale’s provision of health insurance and omission of [certain contraceptives] therefrom”). There can be little doubt, then, that Tyndale will effectively advocate for the Foundation’s rights.
Turning to the “hindrance” prong of the third-party standing analysis, the Court must examine the “likelihood and ability of the third parties . . . to assert their own rights.” Powers, 499 U.S. at 414. The defendants take a perplexing, self-defeating position on this issue. They initially argue that Tyndale’s owners are not “hindered” from asserting their own rights and that the owners’ absence as parties to this action is “[i]nexplicabl[e].” Defs.’ Opp’n at 13. But then, in the same breath, the defendants contend that Tyndale’s owners are not the parties allegedly injured by the contraceptive coverage mandate—Tyndale is. See id. at 14. Thus, by the defendants’ own admission, the Foundation faces a legal impediment to challenging the contraceptive coverage mandate in court, i.e., lack of a direct injury-in-fact. This suffices to satisfy the “hindrance” criterion. See Powers, 499 U.S. at 414-15 (indicating that inability to show a cognizable injury under Article III is one of the potential “barriers to suit” for a third party (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105-110 (1983)).
It bears emphasizing that if the Court accepted the defendants’ position, no Tyndale entity would have standing to challenge the contraceptive coverage mandate—not even the Foundation. This is because, in the defendants’ view, Tyndale—though directly injured by the regulation—cannot exercise religion, and the Foundation—though capable of exercising
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religion—is not directly injured by the regulation. The third-party standing doctrine serves to
avoid such conundrums. Indeed, the Supreme Court has “been quite forgiving with [the third-
party standing] criteria” where, as here, “‘enforcement of the challenged restriction against the
litigant would result indirectly in the violation of third parties’ rights.’” Kowalski, 543 U.S. at
130 (quoting Warth, 422 U.S. at 510) (emphasis in original). Because Tyndale has satisfied all
three requirements of third-party standing, it may assert the Foundation’s free exercise rights in
this case.13
B. Likelihood of Success on the Merits
1. The Plaintiff’s RFRA claim
The RFRA forbids the government from “substantially burden[ing] a person’s exercise of
religion even if the burden results from a rule of general applicability” unless the government
can “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.” 42 U.S.C. § 2000bb-1(a), (b). Congress enacted the RFRA
in response to the Supreme Court’s decision in Employment Division, Department of Human
13 Another one of the defendants’ arguments warrants brief mention: they contend that allowing a for-profit corporation such as Tyndale to assert a RFRA claim would undermine the enforcement of federal antidiscrimination laws—namely, Title VII of the Civil Rights Act of 1964. See Defs.’ Opp’n at 10-11. This contention is based on the defendants’ view that Tyndale does not qualify as an exempt “religious corporation” under Title VII, and is instead a covered “employer” under that statute. Id. at 10. The defendants argue that permitting the corporation to assert a RFRA claim would effectively exempt it from Title VII, thus “overriding the congressionally prescribed scope of the Title VII religious exemption.” Id. The Court finds several flaws in this reasoning. First, it is unclear that Tyndale would not qualify as an exempt “religious corporation” under Title VII. See LeBoon v. Lancaster Jewish Comm. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007) (setting forth several, non-dispositive factors that courts must consider in determining whether an entity qualifies as a religious corporation). Second, even assuming Tyndale is a covered employer under Title VII, allowing it to assert a RFRA challenge (at least on behalf of its owners, as the Court has done here) would not necessarily exempt the corporation from Title VII. That is just the first step in the analysis. If, hypothetically, the corporation were sued under Title VII and then raised the RFRA as a defense, a court would proceed to analyze whether the application of Title VII substantially burdened religious exercise, whether the law advanced compelling governmental interests, and whether the law was the least restrictive means of advancing those interests. See 42 U.S.C. § 2000bb-1(a), (b). In other words, just because a corporation is allowed to assert a RFRA claim does not mean that it will succeed on the claim.
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Resources of Oregon v. Smith, 494 U.S. 872 (1990), in which the Court held that the right to free exercise of religion under the First Amendment does not exempt an individual from a law that is neutral and of general applicability, and explicitly disavowed the test used in earlier decisions, which prohibited the government from substantially burdening a plaintiff’s religious exercise unless the government could show that its action served a compelling interest and was the least restrictive means to achieve that interest. See 42 U.S.C. § 2000bb(a); Smith, 494 U.S. at 879-80, 883-85. In Congress’ estimation, Smith had “virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral to religion.” 42 U.S.C. § 2000bb(a)(4). The stringent requirements imposed by the RFRA reflect Congress’ judgment that “governments should not substantially burden religious exercise without compelling justification” and are intended “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).” Id. §§ 2000bb(a)(3), (b)(1). Accordingly, courts look to pre-Smith free exercise jurisprudence in assessing RFRA claims. See Vill. of Bensenville v. FAA, 457 F.3d 52, 62 (D.C. Cir. 2006).
i. The Substantial Burden Prong Under the RFRA, “exercise of religion” is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” See 42 U.S.C. § 2000bb-2 (defining “exercise of religion” as defined in 42 U.S.C. § 2000cc-5 (2006)). The plaintiffs assert that they “have a sincere conscientious religious objection to providing coverage for abortifacients[14] and related education and counseling in Tyndale’s health insurance plan,”
14 The plaintiffs use the term “abortifacients” to refer to the three contraceptives at issue in this case—Plan B, ella, and intrauterine devices—which they state “cause the demise of an already conceived/fertilized human embryo.” See, e.g., Compl. ¶¶ 59, 75, 81-83.
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Compl. ¶ 88, and that they “cannot in good conscience violate their religious beliefs by providing coverage for emergency contraception, IUDs, or counseling or education in furtherance of the same, in Tyndale’s health insurance plan,” id. ¶ 89. The defendants concede that the plaintiffs’ religious belief is sincere, but dispute that the contraceptive coverage mandate substantially burdens this religious belief.15 Defs.’ Opp’n at 14.
To determine whether the contraceptive coverage mandate substantially burdens the plaintiffs’ religious exercise, the Court must consider whether the government action “puts ‘substantial pressure on [the] adherent[s] to modify [their] behavior and to violate [their] beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (quoting Thomas v. Review Bd. of Ind. Employ. Sec. Div., 450 U.S. 707, 718 (1981)). For example, in Wisconsin v. Yoder, the Supreme Court held that a state’s compulsory school-attendance law substantially burdened the Amish plaintiffs’ religious exercise because the “law affirmatively compel[led] them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” 406 U.S. at 218. Similarly, the imposition of significant added expense to a religious practice can, under some circumstances, rise to the level of a substantial burden. See Jimmy Swaggart Ministries, 493 U.S. at 392 (declining to find that the plaintiff’s religious exercise was substantially burdened, but noting that “it is of course possible to imagine that a more onerous tax rate, even if generally applicable, might effectively choke off an adherent’s religious practices”).
Government action can substantially burden a plaintiff’s religious exercise even if the law only results in the plaintiff being forced to forego a government benefit. In Sherbert, the
15 Because the Court has already held that the plaintiffs have standing to assert their RFRA claim, the Court will confine its analysis in this section to a consideration of whether the circumstances here constitute a substantial burden.
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Supreme Court found that the state had substantially burdened the plaintiff’s religious exercise by denying her unemployment benefits because, in accordance with the tenets of her faith, she was unwilling to work on Saturdays. 374 U.S. at 403-04. The Court held that “the pressure upon [the plaintiff] to forego that practice is unmistakable” because the government’s action “forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404. In Thomas, the Court applied similar reasoning to conclude that the plaintiff’s religious exercise was substantially burdened by the state’s denial of unemployment benefits because the plaintiff, citing religious objections, voluntarily quit his job at a manufacturing plant after the factory began producing weapons. 450 U.S. at 717-18. And, the Court found that the “indirect” nature of the burden did not render the burden insubstantial. See id. at 718.
As in Yoder, the contraceptive coverage mandate affirmatively compels the plaintiffs to violate their religious beliefs in order to comply with the law and avoid the sanctions that would be imposed for their noncompliance. Indeed, the pressure on the plaintiffs to violate their religious beliefs is “unmistakable.” Sherbert, 374 U.S. at 404. The plaintiffs contend that compliance with the contraceptive coverage mandate would violate their sincerely-held religious beliefs, Pl.’s Mem. at 8-9, but if the plaintiffs adhere to their religious beliefs and do not comply with the contraceptive coverage mandate, they are subject to suit, see 29 U.S.C. § 1132(a) (providing for civil enforcement actions by the Department of Labor and insurance plan participants), and to considerable financial penalties, see 26 U.S.C. § 4980D(a), (b) (providing for penalty of $100 per day per employee for noncompliance with coverage provisions of the
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ACA); 26 U.S.C. § 4980H (providing for annual tax assessment for noncompliance with requirement to provide health insurance). And the plaintiffs assert that the penalties to which Tyndale may be subject under the law would result in the ultimate closure of the business. See Compl. ¶¶ 112-15; Pls.’ Mem., Ex. 1, ¶ 4 (“Tyndale House Publishers cannot afford to sustain the fines threatened by the Mandate at issue in this case.”).
In Thomas v. Anchorage Equal Rights Commission, the Ninth Circuit considered an analogous dilemma involving the choice between compliance with a state law prohibiting discrimination in housing based on marital status and the plaintiffs’ exercise of their religious beliefs prohibiting their facilitation of the cohabitation of unmarried couples. 165 F.3d 692, 69697 (9th Cir. 1999), rev’d on other grounds en banc, 220 F.3d 1134 (9th Cir. 2000). The court found that the effect of the law was to “put [the plaintiffs] out of business” by effectively banning them from the rental market due to their inability to comply with the law in accordance with their religious belief, and, relying on the Supreme Court’s reasoning in cases considering the denial of unemployment benefits, held that the law therefore substantially burdened the plaintiffs’ exercise of religion. Id. at 712-14.
The Thomas court’s reasoning is persuasive here. The contraceptive coverage mandate similarly places the plaintiffs in the untenable position of choosing either to violate their religious beliefs by providing coverage of the contraceptives at issue or to subject their business to the continual risk of the imposition of enormous penalties for its noncompliance. Such a threat to the very continued existence of the plaintiffs’ business necessarily places substantial pressure on the plaintiffs to violate their beliefs. Government action that creates such a Hobson’s
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choice for the plaintiffs amply shows that the contraceptive coverage mandate substantially burdens the plaintiffs’ religious exercise.
The defendants nonetheless urge the Court to adopt the reasoning of O’Brien v. HHS, __ F. Supp. 2d __, 2012 WL 4481208 (E.D. Mo. 2012). There, the court considered the application of the contraceptive coverage mandate to plaintiffs Frank O’Brien and O’Brien Industrial Holdings, LLC, “a secular, for-profit company in St. Louis, Missouri, that is engaged in the business of mining, processing, and distributing refractory and ceramic materials and products,” of which Mr. O’Brien is the chairman and managing member. Id. at __, *1. Mr. O’Brien is Catholic and “tries to manage and operate [his company] in a manner consistent with his religion.” Id. The company’s lobby contains a religious statue, the company’s mission and statement of values contain religious references, and the company and its subsidiaries pledge to tithe the earnings generated by the companies. Id. __, *1 n.3. The company also provides health insurance to its employees through a group plan. Id. at __, *2. The O’Brien plaintiffs brought a RFRA claim against the same six defendants currently before this Court, alleging that inclusion of contraceptive coverage in the company’s group plan would violate the plaintiffs’ religious belief that requires the “condemnation of contraception.” Id. at __, *4.
The court dismissed the plaintiffs’ RFRA claim, holding that the plaintiffs had failed to show that the contraceptive coverage mandate substantially burdened their religious exercise. Id. at __, *6-7. Describing the burden at issue as the “funds, which plaintiffs will contribute to a group health plan, [that] might, after a series of independent decisions by health care providers and patients covered by [the company’s] plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion,” the court reasoned that the burden on the
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plaintiffs’ religious exercise was simply too attenuated to qualify as “substantial.” Id. at __, *6 (emphasis in original). The court emphasized that the decision to use contraceptives, the objectionable act, was ultimately in the hands of a third party, the plan participant, and that such a burden was not within the contemplation of the RFRA. See id. (stating that the RFRA “protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others”). The court therefore found that this “slight” burden of requiring the plaintiffs to contribute to a group plan that provides contraceptive coverage “has no more than a de minimus impact on the plaintiff’s [sic] religious beliefs than paying salaries and other benefits to employees.” Id. at __, *6-7.
The Court finds the facts of the instant case to be sufficiently distinguishable from O’Brien to warrant a different result. One crucial distinction lies in the method by which the companies in each case provide health insurance. In O’Brien, the plaintiffs provided health insurance to their employees through a group health insurance policy which was separately administered by an insurance company. See id. at __, *2. Here, the plaintiffs provide direct coverage to Tyndale employees through a self-insured plan in which “Tyndale acts as its own insurer.” Compl. ¶ 73. This difference in the manner in which coverage is provided is significant because while the company in O’Brien contributes to a health insurance plan which ultimately pays for the services used by the plan participants, Tyndale itself directly pays for the health care services used by its plan participants, thereby removing one of the “degrees” of separation that the court deemed relevant in O’Brien, __ F. Supp. 2d at __, 2012 WL 4481208 at *7.
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If O’Brien is intended to stand for the proposition that a plaintiff can never demonstrate that its religious exercise is substantially burdened by a law that forces it to pay for services to which it objects that are ultimately chosen and used by third parties, this Court must respectfully disagree. As noted, a substantial burden exists when government action places “‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Kaemmerling, 553 F.3d at 678 (quoting Thomas, 450 U.S. at 718). The plaintiffs’ specific objection is not simply to the use of the contraceptives at issue, but to “providing coverage for abortifacients and related education and counseling in Tyndale’s health insurance plan.” Compl. ¶¶ 88-89. As discussed at length above, the contraceptive coverage mandate puts substantial pressure on the plaintiffs to violate their religious beliefs against the provision of coverage for the three contraceptives at issue. Therefore, the requirement to provide such coverage directly burdens the plaintiffs’ religious objection to providing such coverage. Because it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties. And even if this burden could be characterized as “indirect,” the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden. Thomas, 450 U.S. at 718.
Finally, the O’Brien court’s statement that the RFRA “is not a means to force one’s religious practices upon others,” __ F. Supp. 2d at __, 2012 WL 4481208 at *6, is not relevant to whether a plaintiff’s religious exercise is substantially burdened, but rather applies to the issue of whether the government’s interest is sufficiently compelling to justify the substantial burdening of a plaintiff’s religious exercise. The statutory language of the RFRA does not contain the limitation suggested in O’Brien, and this Court finds no justification to read such a limitation
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into the statute. Under the RFRA, substantially burdening a plaintiff’s religious exercise is only justified if the law serves a compelling government interest and is the least restrictive means to accomplish that interest. 42 U.S.C. § 2000bb-1(b). Third party harm may rise to the level of a compelling interest, but absent such a showing, it is not the proper role of this Court to question the solicitude given to religious exercise embodied by the RFRA.
The holding in Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011), aff’d, Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), does not change the Court’s analysis either. The RFRA claim in Mead concerned the application of the ACA’s individual coverage mandate to two plaintiffs who asserted a religious belief “that God will provide for [their] physical, spiritual, and financial well-being,” 766 F. Supp. 2d at 42 (citation omitted), and that the individual coverage mandate therefore “conflicts with their Christian faith because it requires them to perform an act that implies that they doubt God’s ability to provide for their health,” id. The Mead court held that the plaintiffs had failed to show that the individual mandate provision substantially burdened their religious exercise because the law provided the plaintiffs the option of making a shared responsibility payment in lieu of obtaining health insurance and therefore did not pressure them to violate their beliefs. Id. Further, the Mead court noted that the plaintiffs “routinely contribute to other forms of insurance, such as Medicare, Social Security, and unemployment taxes, which present the same conflict with their belief that God will provide for their medical and financial needs.” Id.
The circumstances of this case are considerably different. Unlike the plaintiffs in Mead, the only alternative offered to the plaintiffs here is noncompliance with the contraceptive coverage mandate and its attendant risk of suit and enormous financial penalties. The
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availability of a reasonable alternative for the plaintiffs in Mead eliminated the pressure on them to violate their religious beliefs; the plaintiffs here have no such alternative, and therefore, the pressure to violate their religious beliefs remains undiminished. The Mead court’s reasoning regarding the plaintiffs’ contribution to programs such as Medicare and Social Security is irrelevant here. The objection raised in Mead to participation in a health insurance plan is implicated in the exact same manner with respect to the plaintiffs’ participation in other social welfare programs that provide for their medical and financial needs, whereas the objection raised here to directly providing coverage of the contraceptives at issue is easily distinguished from generally contributing to federal programs that provide the contraceptives at issue. As discussed above, one of the reasons this Court declines to adopt the reasoning in O’Brien is that the burden placed on the plaintiffs here is considerably more direct because Tyndale’s health plan is selfinsured.
Moreover, the Supreme Court has cautioned courts to avoid parsing a plaintiff’s religious beliefs for inconsistency, and this Court will heed that warning. See Thomas, 450 U.S. at 715-16 (admonishing that “[c]ourts should not undertake to dissect religious beliefs”). In Thomas, the Supreme Court rejected an argument that the plaintiff’s claimed objection to working in a facility that produced armaments was inconsistent with his prior work in the same facility producing sheet metal that may have been ultimately used in the production of armaments, stating “[w]e see . . . that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.” Id. The plaintiffs here have similarly drawn a line. To hold that the plaintiffs’ belief regarding direct coverage of the contraceptives at issue requires the plaintiffs to also object to contributing to federal programs that provide the same contraceptives is to engage in exactly the
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kind of impermissible interrogation of religious beliefs that the Supreme Court warned against. See Thomas, 450 U.S. at 715-16.
The plaintiffs have therefore shown that the contraceptive coverage mandate substantially burdens their religious exercise. The Court will now consider whether the mandate can nevertheless be applied to the plaintiffs because it serves a compelling interest and is the least restrictive means to accomplish the government’s interest.
ii. The Compelling Interest Prong If a plaintiff demonstrates a substantial burden on its religious exercise, the RFRA requires that the government then demonstrate that it has “a compelling governmental interest” justifying the burden. 42 U.S.C. § 2000bb-1(a), (b). At the preliminary injunction stage, as at trial, the burden is on the government to demonstrate a compelling interest. Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 429 (2006) (citing Ashcroft v. ACLU, 542 U.S. 656 (2004)). “The statute makes clear that the term ‘demonstrates’ means meets the burdens of going forward with the evidence and of persuasion.” Potter v. District of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009) (quoting 42 U.S.C. § 2000bb-2(3)) (quotation marks omitted). The defendants claim that the government has two compelling interests regarding the application of the contraceptive coverage mandate. First, the defendants claim an interest in promoting public health, Defs.’ Opp’n at 20-21, and this Circuit has recognized that the government “has a compelling interest in safeguarding the public health by regulating the health care and insurance markets,” Mead, 766 F. Supp. 2d at 43 (citing Olsen v. DEA, 878 F.2d 1458, 1462 (D.C. Cir. 1989)). Second, the defendants claim an interest in providing employed women with access to health care on par with employed men, Defs.’ Opp’n at 21-22, and the Supreme
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Court has recognized the “importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women,” Roberts v. United States Jaycees, 468 U.S. 609, 626 (1984). There is undoubtedly a compelling interest in “[a]ssuring women equal access to . . . goods, privileges, and advantages” enjoyed by men. Id.
While the defendants have broad, compelling interests in both promoting public health and ensuring that women have equal access to health care, the question that this Court must answer under the RFRA here is whether the government has shown that the application of the contraceptive coverage mandate to the plaintiffs furthers those compelling interests. 42 U.S.C. § 2000bb-1(b)(1). That is, the defendants must show that requiring the plaintiffs to provide the contraceptives to which they object—Plan B, ella, and intrauterine devices (as well as education and counseling regarding the same)—will further the government’s compelling interests in promoting public health and in providing women equal access to health care.
The defendants object to the Court limiting its focus to “the specific characteristics of Tyndale’s work force and health plan.” Defs.’ Opp’n at 22. However, it is upon exactly those specific characteristics that the Court’s RFRA analysis must turn. “[The] RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430 (quoting 42 U.S.C. § 2000bb-1(b)) (emphasis added). The Court is required to “look[] beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” Id. at 431 (emphasis added); see
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also Yoder, 406 U.S. at 236 (“[I]t was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.”) (emphasis added); Kaemmerling, 553 F.3d at 682 (“We must look beyond the broadly formulated interests justifying the general applicability of the [RFRA] to examine the interests the government seeks to promote as applied to [the plaintiff] and the impediment to those objectives that would flow from granting him a specific exemption.”) (internal citation and quotation marks omitted) (emphasis added).16
The defendants primarily rely on the Institute Report as the basis for demonstrating that requiring employers to provide contraceptives to their employees will further the government’s stated interests. Defs.’ Opp’n at 21 (citing the Institute Report for the proposition that “[i]ncreased access to contraceptive services is a key part of these predicted health outcomes, as a lack of contraceptive use has proven to have negative health consequences for both women and a developing fetus.”). The Institute Report, in turn, broadly defines “[p]reventive services for women” as those “that prevent conditions harmful to women’s health and well-being.” Institute Report at 20. Among the conditions discussed in the Institute Report is “[u]nintended pregnancy[, which] is defined as a pregnancy that is either unwanted or mistimed at the time of conception.” Id. at 102. The Institute Report goes on to discuss the health risks associated with unintended pregnancy, including the failure to seek prenatal care in a timely manner as a result of not being aware of the pregnancy and the lack of “motivat[ion] to discontinue behaviors that
16 The defendants try to minimize the RFRA’s demanding requirements by contending that “[i]n practice, courts have not required the government to analyze the impact of a regulation on the single entity seeking an exemption, but have expanded the inquiry to all similarly situated individuals or organizations.” Defs.’ Opp’n at 22. They then go on to cite several cases pre-dating the Supreme Court’s decision in O Centro. See id. at 22-23. Regardless of what those courts held, O Centro made clear that, under the RFRA, “courts should strike sensible balances[] pursuant to a compelling interest test that requires the Government to address the particular practice at issue.” O Centro, 546 U.S. at 439 (emphasis added).
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present risks for the developing fetus,” as well as “depression, anxiety, or other conditions.” Id. at 103. The Institute Report further points to “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced,” id. at 103, as well as the risks that women with certain health conditions might face as a result of becoming pregnant, id. at 103-04. The preventive services prescribed in the Institute Report for unintended pregnancies “include contraception (i.e., all FDA-approved contraceptive drugs and devices, sterilization procedures) as well as patient education and counseling.” Id. at 102. On the recommendation of the Institute, those same services are required to be provided under the contraceptive coverage mandate. 76 Fed. Reg. 46621-01.
Lacking from the Institute Report and from the defendants’ brief is any proof that mandatory insurance coverage for the specific contraceptives to which the plaintiffs object— Plan B, ella, and intrauterine devices—furthers the government’s compelling interests, or that granting the plaintiffs’ requested exemption would meaningfully impede the government’s interests. See Kaemmerling, 553 F.3d at 682. This omission is noteworthy because the plaintiffs do provide coverage of some contraceptives through their health care plan, namely those that do not “cause the demise of an already conceived/fertilized human embryo.” Compl. ¶ 39. The Institute Report states only that, in order to promote public health and equalize access to health care, “[p]reventive services may . . . include the provision of . . . Food and Drug Administrationapproved medications and devices,” Institute Report at 20 (emphasis added), including contraceptives, id. at 102-105. There is no specific finding that the government must ensure that Plan B, ella, and intrauterine devices, as opposed to other forms of contraception, be covered under the plaintiffs’ health plan in order to further the government’s compelling interests. Given
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that the plaintiffs object to providing a very specific subset of contraceptive drugs and devices, while consenting to provide many others, it is not clear, and the defendants have not made it clear, how the government’s compelling interests in promoting health care and equalizing access to health care are furthered by requiring the provision of the contraceptives at issue.17 Because the defendants have failed at this stage to demonstrate why the plaintiffs in this case must be required to comply with the entirety of the contraceptive coverage mandate, the Court is forced to conclude that the government has not shown that the application of the contraceptive coverage mandate to the plaintiffs furthers its compelling interests. “The [g]overnment’s mere invocation of the general characteristics” of contraceptives as promoting public health or of their provision as equalizing access to health care “cannot carry the day.” O Centro, 546 U.S. at 432; see also 42 U.S.C. § 2000bb-1(b)(1).
The defendants point also to the government’s interest in avoiding the potential harm that could “befall female employees (and covered spouses and dependents) who do not necessarily share their employer’s religious beliefs.” Defs.’ Opp’n at 24. They argue that granting an exemption to the plaintiffs would effectively hoist the plaintiffs’ religious beliefs above those of the plaintiffs’ employees. Id. The plaintiffs, in response, point to the fact that “the government itself has voluntarily omitted 191 million people from the” contraceptive coverage mandate. Pls.’ Mem. at 22. In particular, the contraceptive coverage mandate does not apply to grandfathered plans, 42 U.S.C. § 18011; 45 C.F.R. § 147.140, employers with fewer than 50
17 Indeed, the contraceptive coverage mandate makes up only a part of the “comprehensive package of clinical preventive services for women” recommended by the Institute. Institute Report at 22. The recommendations address the need for women to have equal access to preventive services relating to diabetes and gestational diabetes; cervical cancer; sexually transmitted infections; HIV; unintended pregnancy and healthy birth spacing; breastfeeding; interpersonal and domestic violence; and well-woman preventive visits. Id. at 79-134. The plaintiffs here challenge only a portion of the “comprehensive package” meant to further the government’s compelling interests. Id. at 22.
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employees, 42 U.S.C. § 300gg-13(a); 76 Fed. Reg. at 46621-01 n.1, “member[s] of a recognized religious sect or division thereof” who have religious objections to the concept of health insurance, 26 U.S.C. § 5000A(d)(2)(A), or religious employers, as defined above, 45 C.F.R. § 147.130(a)(1)(iv).
“[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 Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (quotation marks omitted). The very purpose of a law is undermined where it is “so woefully underinclusive as to render belief in [its] purpose a challenge to the credulous.” Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002). Indeed, where the government’s proffered compelling interest exists both with respect to employers subject to a law and with respect to those exempt from the law, “it is difficult to see how [the] same findings [supporting the government’s interest] alone can preclude any consideration of a similar exception” for a similarly-situated plaintiff. O Centro, 546 U.S. at 433.
In O Centro, the government sought to enforce the Controlled Substances Act, 21 U.S.C. § 801 (2006), as to an American branch of a Christian Spiritist Sect based in Brazil. 546 U.S. at 425. The plaintiffs there “receiv[ed] communion through hoasca . . . , a sacramental tea made from two plants unique to the Amazon region,” one of which contained a substance regulated by the Controlled Substances Act. Id. The Controlled Substances Act, in turn, imposes “criminal sentence[s] for simple possession” of the substance, which the government conceded imposed a substantial burden on the plaintiffs’ exercise of religion within the meaning of the RFRA. Id. at 425-26. Applying the RFRA’s compelling interest test, the Supreme Court held that “the
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Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the [plaintiffs’] sacramental use of hoasca.” Id. at 439. In so holding, the Supreme Court pointed to the broad exemption for the use of peyote—a drug which also contained a regulated, controlled substance—that the Act granted “for hundreds of thousands of Native Americans practicing their faith.” Id. at 433. The Court observed that “[e]verything the Government says about [the dangers of hoasca] . . . applies in equal measure to . . . peyote, yet both the Executive and Congress itself have decreed an exception from the Controlled Substances Act for Native American religious use of peyote.” Id. Thus, the Court concluded that the existence of an exemption for a similarly dangerous drug undermined the government’s interest in prohibiting the plaintiffs from using hoasca. Id.
As outlined above, and as in O Centro, the defendants have already granted exemptions to other employers—either by way of an explicit “religious employer” exemption or another broad provision that functionally excludes other sets of employers from the scope of the contraceptive coverage mandate. Indeed, the 191 million employees excluded from the contraceptive coverage mandate include those covered by grandfathered plans alone. 75 Fed. Reg. 34538-01, 34,550 (June 17, 2010). The defendants have provided no information whatsoever about the number of employees excluded under the other exemptions or exclusions. From all indications, the government’s findings (through the Institute Report) supporting its compelling interests in the promotion of public health and in equalizing women’s access to health care “appl[y] in equal measure,” O Centro, 546 U.S. at 433, to both the large number of employers and employees falling outside, as well as to those, like the plaintiffs, falling within the
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contraceptive coverage mandate. The existence of these exemptions significantly undermines the defendants’ interest in applying the contraceptive coverage mandate to the plaintiffs.
Thus, because the government has not “assess[ed] the particulars of the [plaintiffs’]” objections, nor “weigh[ed] the impact of an exemption for [their] specific” objection, O Centro, 546 U.S. at 430, and considering the myriad of exemptions to the contraceptive coverage mandate already granted by the government, the defendants have not shown a compelling interest in requiring the plaintiffs to provide the specific contraceptives to which they object. The Court therefore does not reach the third prong of the RFRA test—whether the government has chosen the least restrictive means to further its compelling interest. See generally id. (discussing only the compelling interest prong of the RFRA test where the government failed to show a compelling interest in enforcing the Controlled Substances Act as to the plaintiffs).
In sum, the plaintiffs have shown a strong likelihood of success on the merits of their RFRA claim.
C. Irreparable Harm It is well settled that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). 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. See O Centro Espirita Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 995 (10th Cir. 2004), aff’d, O Centro, 546 U.S. at 429 (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.”). As outlined above, the plaintiffs have established a strong likelihood of success on the
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merits of their RFRA claim. Accordingly, the plaintiffs have adequately demonstrated that they will suffer irreparable harm absent the issuance of a preliminary injunction.18
D. The Balance of Equities
The defendants argue only that granting the plaintiffs’ motion for a preliminary
injunction “would undermine the government’s ability to achieve Congress’s goals of improving
the health of women and children and equalizing the coverage of preventive services for women
and men.” Defs.’ Opp’n at 43. The plaintiffs counter that granting them a preliminary
injunction “will simply preserve the status quo between the parties.” Pls.’ Mem. at 44.
As discussed above, the defendants have not carried their burden of persuading the Court
that the government must ensure that these particular plaintiffs provide their employees with the
specific contraceptives at issue in order to advance the government’s stated compelling interests.
Further, the denial of a preliminary injunction here “would[,] in fact[,] upend the status quo.”
Sherley, 644 F.3d at 398. The plaintiffs currently continue to provide their employees with the
same level and manner of contraceptive coverage as they did before the implementation of the
contraceptive coverage mandate. Compl. ¶ 75 (“Consistent with the religious commitments of
Tyndale and its owners, Tyndale’s self-insured plan does not and has never covered abortions or
abortifacient drugs or devices such as emergency contraception and intrauterine devices.”)
18 The defendants’ argument that the plaintiffs have not suffered irreparable harm due to their “delay” in filing this lawsuit, Defs.’ Opp’n at 42, is disingenuous. The contraceptive coverage mandate did not apply to the plaintiffs until October 1, 2012, and they filed this lawsuit on October 2, 2012. Pls.’ Reply at 24. The plaintiffs state that they filed this case when they did on the basis of the defendants’ representations “[i]n other pending cases against this [contraceptive coverage mandate] . . . that no irreparable harm exists until the date the [m]andate is applicable to the plaintiff.” Id. at 25 (original emphasis) (citing Defendants’ Amended Memorandum in Opposition to Plaintiffs’ Motion for Preliminary Injunction at 57, Newland v. Sebelius, __ F. Supp. 2d __, 2012 WL 3069154 (D. Colo. 2012) (Civ. No. 12-01123, ECF # 26)). In any event, to the extent that the plaintiffs here delayed in filing this case, they did not wait so long as to undermine their showing of irreparable harm; the cases cited by the defendants involved delay much more substantial than the delay here. Defs.’ Opp’n at 42 (citing, among others, delays of fortyfour days, two months, and ten weeks as indicative of a lack of irreparable harm). The plaintiffs here waited only one day after the contraceptive coverage mandate applied to them before filing this action. Pls.’ Reply at 24.
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(emphasis added). Absent a preliminary injunction, the plaintiffs are at the risk of being sued, in addition to either being subject to the considerable financial penalties stemming from the failure to comply with the contraceptive coverage mandate, or being forced to violate their stated religious beliefs by changing the nature of the contraceptive coverage provided under their health care plan. Because any of these consequences would result in a change in the status quo, Sherley, 644 F.3d at 398, the Court finds that the balance of equities tips in favor of the plaintiffs.
E. Public Interest The defendants point to the deprivation of preventive services to the 260 employees covered by the plaintiffs’ health plan, as well as those employees’ spouses and dependents, as harming the public interest. Defs.’ Opp’n at 43. In so arguing, the defendants point to the purpose of the contraceptive coverage mandate, “which is to improve the health of women and children and promote gender equality by equalizing coverage of preventive services for women.” Id. (citing 75 Fed. Reg. 41726-01, 41733 (July 19, 2010) and 77 Fed. Reg. 8725-01, 8728 (Feb. 15, 2012)). However, as discussed above, the defendants have failed to demonstrate a compelling interest in applying the contraceptive coverage mandate to the plaintiffs. They have thus also failed to show the harm to the public that they claim. Although there is arguably a public interest in the uniform application of the ACA and the contraceptive coverage mandate, see, e.g., Allina Health Servs. v. Sebelius, 756 F. Supp. 2d 61, 71 (D.D.C. 2010) (“The public interest is served by the consistent and uniform application of regulations to similarly-situated parties”), there is undoubtedly also a public interest in ensuring that the rights secured under the First Amendment and, by extension, the RFRA, are protected,
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Case 1:12-cv-01635-RBW Document 27 Filed 11/16/12 Page 38 of 38
42 U.S.C. § 2000bb(a) (“The Congress finds that . . . the framers of the Constitution, recognizing free exercise of religion as an inalienable right, secured its protection in the First Amendment to the Constitution[.]”). Indeed, First Amendment rights are among the most precious rights guaranteed under the Constitution. Lee v. Weisman, 505 U.S. 577, 589 (1992). Where, as here, the regulations at issue include exemptions and other provisions excluding a large number of people from the scope of the regulations, and the government has failed to show a compelling interest furthered by the enforcement of those regulations as to the plaintiffs in this case, the public has little interest in the “uniform application” of the regulations. The public interest instead weighs in favor of the plaintiffs.
IV. CONCLUSION For the reasons set forth above, the plaintiffs’ motion for a preliminary injunction is granted.19 SO ORDERED this 16th day of November, 2012.
REGGIE B. WALTON United States District Judge
19 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
38

 
 Case 1:12-cv-01635-RBW Document 6 Filed 10/08/12 Page 1 of 58

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

TYNDALE HOUSE PUBLISHERS, INC., a Delaware )

Corporation; MARK D. TAYLOR;

)

)

Plaintiffs,

)

)

v.

) Civil Action No.

)

1:12-CV-1635-RBW

KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.

) ) ) ) ) ) ) Oral Argument Requested ) ) ) ) ) )

MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT
Pursuant to Fed. R. Civ. P. 65 and L CvR 65.1, Plaintiffs Tyndale House Publishers, Inc., and Mark D. Taylor hereby m ove for a preliminary injunction for the reasons set forth below in the memorandum of law. Plaintiffs’ counsel ha s conferred with Defendants’ counsel, Ethan P. Davis, concerning this motion, and the m otion is opposed. Plaintiffs respectfully request oral argument on this m otion prior on or before October 29, 2012, as provided in LCvR 65.1(d). Plaintiffs respectfully request a decision on th is motion no later than a week the reafter. As described in the accompanying m emorandum of la w, Plaintiffs are al ready subject to the significant penalties under the challenged rules, and urgently need relief.
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Case 1:12-cv-01635-RBW Document 6 Filed 10/08/12 Page 2 of 58
TABLE OF CONTENTS Table of Authorities ............................................................................................................... ii Introduction .............................................................................................................................1 Factual Background ................................................................................................................2 Argument ................................................................................................................................7
I. Tyndale Is Likely to Succeed on the Merits .........................................................7 A. The Mandate violates the Religious Freedom Restoration Act ......................7 1. Tyndale’s abstention from providing abortion-inducing drugs in employee coverage qualifies as “religious exercise” under RFRA ..........8 a. Tyndale House Publishers exercises religious beliefs ........................9 b. Tyndale’s religious owners can exercise religion under RFRA .......13 2. The Mandate substantially burdens Tyndale’s and its owners’ religious exercise ....................................................................................14 3. The Mandate cannot satisfy strict scrutiny .............................................21 a. Defendants cannot identify a compelling interest.............................22 b. There is no “business exception” to RFRA’s compelling interest test ........................................................................................26 c. The government cannot meet its evidentiary burden ........................28 d. Defendants cannot show the Mandate is the least restrictive means of furthering their interests ....................................................32 B. The Mandate violates the Free Exercise Clause ...........................................35 C. The Mandate violates the Establishment Clause ..........................................38 D. The Mandate violates the Free Speech Clause .............................................38 E. The Mandate violates the Due Process Clause .............................................39 F. The Mandate violates the Administrative Procedure Act .............................41
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Case 1:12-cv-01635-RBW Document 6 Filed 10/08/12 Page 3 of 58 II. Tyndale Will Suffer Irreparable Harm in the Absence of Preliminary Relief .......42 III. The Balance of Equities Tips in Tyndale’s Favor. ................................................44 IV. An Injunction is in the Public Interest ...................................................................45 Conclusion ............................................................................................................................45 Certificate of Service ............................................................................................................46
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TABLE OF AUTHORITIES
Cases
Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977)..................................................................................................39
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)..................................................................................................13
Ashcroft v. ACLU, 542 U.S. 656 (2004)....................................................................................................8
Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004)......................................................................................37
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) ......................................................................21, 25–26, 28–30
Cal. Democratic Party v. Jones, 530 U.S. 567 (2000)..................................................................................................21
Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021 (9th Cir. 2009) ..................................................................................37
City of Boerne v. Flores, 521 U.S. 507 (1997)..............................................................................................8, 21
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)..........................................................................13, 21, 23, 35–37
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971)..................................................................................................42
Citizens United v. Federal Election Comm’n, 130 S. Ct. 876 (2010) ..........................................................................................12–13
CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, (D.C. Cir. 1995) ...................................................................................42
Colo. Christian U. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) ................................................................................38
Commack Self-Service Kosher Meats, Inc. v. Hooker, 800 F. Supp. 2d 405 (E.D.N.Y. 2011) ......................................................................11
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Case 1:12-cv-01635-RBW Document 6 Filed 10/08/12 Page 5 of 58
Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009) ..................................................................................7
Dunn v. Blumstein, 405 U.S. 330 (1971)..................................................................................................32
EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) ..............................................................................10, 14
Elrod v. Burns, 427 U.S. 347, 373 (1976)..........................................................................................43
Employment Division v. Smith, 494 U.S. 872 (1990)........................................................................................8, 35, 37
F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) ..............................................................................................40
First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)..................................................................................................11
Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999)................................................................................11, 36
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)........................................................................7–8, 21–27, 32, 34
Grand Canyon Air Tour Coalition v. F.A.A., 154 F.3d 455 (D.C. Cir. 1998) ..................................................................................41
Grutter v. Bollinger, 539 U.S. 306 (2003)..................................................................................................32
Henderson v. Kennedy, 265 F.3d 1072 (D.C. Cir. 2001) ..................................................................................8
Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557 (1995)..................................................................................................39
Jasniowski v. Rushing, 678 N.E.2d 743 (Ill. App. Dist. 1, 1997) ......................................................11, 20–21
Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002) ....................................................................................32
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Case 1:12-cv-01635-RBW Document 6 Filed 10/08/12 Page 6 of 58
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996)........................................................................................43
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ............................................................8, 14–16, 19, 35
Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ..................................................................................43
Knox v. Service Employees Intern. Union, 132 S. Ct. 2277 (2012) ..............................................................................................39
Larson v. Valente, 456 U.S. 228 (1982)..................................................................................................38
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217 (3d Cir. 2007)......................................................................................12
Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002) ..................................................................................8
Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985)..................................................................................................13
Maruani v. AER Services, Inc., 2006 WL 2666302 (D. Minn. 2006) .........................................................................11
McClure v. Sports and Health Club, Inc., 370 N.W.2d 844 (Minn. 1985)......................................................................10, 14, 20
McLouth Steel Products Corporation v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988) ................................................................................41
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) ......................................................................19–20
Mitchell Cnty. v. Zimmerman, 810 N.W.2d 1 (Iowa 2012) ......................................................................................37
Monell v. Dept. of Social Services, 436 U.S. 658 (1978)..................................................................................................13
Morr-Fitz, Inc. et al. v. Blagojevich, No. 2005-CH-000495, 2011 WL 1338081 (Ill. Cir. Ct. 7th, Apr. 5, 2011)........11, 21
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Newland v. Sebelius, 2012 WL 3069154 (D. Colo. July 27, 2012) .................................1, 7 , 22, 34, 44–45
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)..................................................................................................13
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) .............................................................................................20
Nat’l Treasuries Employees Union v. United States, 927 F.2d 1253 (D.C. Cir. 1991) ................................................................................43
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)..................................................................................................36
Norinsberg v. U.S. Dept. of Agric., 162 F.3d 1194 (D.C. Cir. 1998) ................................................................................12
O’Brien v. U.S. Dep’t of Health & Human Srvs., 2012 WL 4481208 (E.D. Mo. 2012)...................................................................17–19
O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) ..........................................................................45
Prima Iglesia Bautista Hispana of Boca Raton v. Broward County, 450 F.3d 1295 (11th Cir. 2006) ................................................................................13
Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996) ............................................................................35
Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988)............................................................................................33–34
Roberts v. Bradfield, 12 App. D.C. 453 (D.C. Cir. 1898)...........................................................................11
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. 547 U.S. 47 (2006)....................................................................................................39
Sampson v. Murray, 415 U.S. 61, 88 (1974)..............................................................................................42
Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011) ................................................................................19–20
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Case 1:12-cv-01635-RBW Document 6 Filed 10/08/12 Page 8 of 58
Sherbert v. Verner, 374 U.S. 398 (1963)............................................................................7–10, 15–16, 28
Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) ..................................................................................44
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ......................................................................10, 14, 20
Thomas v. Collins, 323 U.S. 516 (1945)..................................................................................................21
Thomas v. Review Board, 450 U.S. 707 (1981)......................................................................9–10, 15–16, 18–19
United States v. Amedy, 24 U.S. 392, 11 Wheat. 392 (1826) ..........................................................................13
United States v. Lee, 455 U.S. 252 (1982)....................................................................10–11, 18–19, 26–28
United States v. Philadelphia Yearly Meeting of the Religious Soc’y of Friends, 322 F. Supp. 2d 603 (E.D. Pa. 2004) ........................................................................10
United States v. United Foods, 533 U.S. 405 (2001)..................................................................................................39
United States v. Williams, 553 U.S. 285, 304 (2008)....................................................................................39–40
Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2001) ................................................................................36
W. Presbyterian Church v. Bd. of Zoning Adjustment of Dist. of Columbia, 849 F. Supp. 77 (D.D.C. 1994) .................................................................................43
Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990) ..................................................................................38
Wisconsin v. Yoder, 406 U.S. 205 (1972)....................................................................................7, 9, 16, 28
Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669 (D.C. Cir. 1985) ..................................................................................42
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Wooley v. Maynard, 430 U.S. 705, 714 (1977)..........................................................................................38
W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)..........................................................................................38
Statutes U.S. Const. 1st Am. ...................................................................................................... passim U.S. Const. 5th Am. ...............................................................................................................1, 5 U.S.C. § 553.......................................................................................................................41 5 U.S.C. § 701.........................................................................................................................1 5 U.S.C. § 706.................................................................................................................41–42 20 U.S.C. § 1688...................................................................................................................12 26 U.S.C. § 4980D ............................................................................................................6, 15 26 U.S.C. § 4980H ......................................................................................................6, 15, 27 26 U.S.C. § 5000A ..........................................................................................................23, 27 29 U.S.C. § 1132...............................................................................................................6, 15 42 U.S.C. § 238n...................................................................................................................12 42 U.S.C. § 300a-7................................................................................................................12 42 U.S.C. § 300gg-13 ................................................................................................... passim 42 U.S.C. § 1395w-22(j)(3)(B).............................................................................................12 42 U.S.C. § 1396u-2(b)(3)(B)...............................................................................................12 42 U.S.C. §18023..................................................................................................................11 42 U.S.C. § 2000bb et seq............................................................................................. passim 42 U.S.C. § 2000cc-5 ........................................................................................................8, 10 42 U.S.C. § 2000e-1(a) .........................................................................................................12
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42 U.S.C. § 2996f(b)(8) ........................................................................................................12 IRC § 6033 ..............................................................................................................................4 Pub. L. 111-148, §1563(e)-(f) “Conforming Amendments” ..................................................6 Pub. L. No. 112-74, Title VII, § 507(d) ................................................................................12 Pub. L. No. 112-74, Title VII, § 727...............................................................................12, 17 Pub. L. No. 112-74, Title VII, § 808...............................................................................12, 17
Regulations 26 C.F.R. § 54.9815-2713T ....................................................................................................4 26 C.F.R. § 2590.715-2713.....................................................................................................4 45 C.F.R. § 147.130 ....................................................................................................4, 35, 37 48 C.F.R. § 1609.7001(c)(7) .................................................................................................12 75 Fed. Reg. 34,538 ..............................................................................................................24 75 Fed. Reg. 41,726 ..........................................................................................................3, 41 76 Fed. Reg. 46,621 ...................................................................................................... passim 77 Fed. Reg. 8,725 ......................................................................................................4, 27, 41 77 Fed. Reg. 16,501 ..........................................................................................4–5, 17, 33, 41
Other Authorities American Hospital Association, Fast Facts on U.S. Hospitals,
http://www.aha.org/research/rc/stat-studies/fast-facts.shtml ....................................11 Bible, Matthew 6:24..............................................................................................................10 Cooper, Helene & Laurie Goodstein, “Rule Shift on Birth Control Is Concession to
Obama Allies” (Feb. 10, 2012), available at http://www.nytimes.com/ 2012/02/11/health/policy/obama-to-offer-accommodation-on-birth-controlrule-officials-say.html?pagewanted=all ...................................................................26
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Ctr. for Consumer Info. and Insurance Oversight and Ctrs. for Medicare & Medicaid Services, “Guidance on the Temporary Enforcement Safe Harbor for Certain Employers . . .” February 10, 2012, available at http://cciio.cms.gov/resources/ files/ Files2/02102012/20120210-Preventive-Services-Bulletin.pdf ; and August 15, 2012, available at http://cciio.cms.gov/resources/files/prevservices-guidance-08152012.pdf (“HHS Bulletin”) .......................................4, 27, 44
Ctrs. for Disease Control and Prevention, Morbidity and Mortality Weekly Report, Prepregnancy Contraceptive Use Among Teens with Unintended Pregnancies Resulting in Live Births — Pregnancy Risk Assessment Monitoring System (PRAMS), 2004–2008, 61(02) at 25-29 (Jan. 20, 2012), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6102a1.htm?s_cid=mm610 2a1_e ...................................................................................................................29–30
Duenas, J.L., et al., “Trends in the Use of Contraceptive Methods and Voluntary Interruption of Pregnancy in the Spanish Population During 1997–2007,” Contraception, January 2011, at 82–87. ...................................................................31
Edgardh, K., et al., “Adolescent Sexual Health in Sweden,” 78 Sexual Transmitted Infections 352-56 (2002) available at http://sti.bmjjournals.com/cgi/content/full/78/5/352 ................................................31
FDA Birth Control Guide (Oct. 19, 2011), http://www.fda.gov/downloads/forconsumers/byaudience/ forwomen/freepublications/ucm282014.pdf ..............................................................5
Finer, L. B., and S. K. Henshaw, “Disparities in rates of unintended pregnancy in the United States, 1994 and 2001,” 38(2) Perspectives on Sexual & Reprod. Health 90–96 (2006) available at http://www.guttmacher.org/ pubs/journals/3809006.html......................................................................................31
Girma, Sourafel, David Paton, “The Impact of Emergency Birth Control on Teen Pregnancy and STIs,” Journal of Health Economic, March 2011, at 373–80.........31
Glasier, A., “Emergency Contraception,” British Medical Journal (Sept 2006): 560561.............................................................................................................................31
Guttmacher Institute, Facts on Contraceptive Use in the United States (June 2010) http://www.guttmacher.org/pubs/fb_contr_use.html. ...........................29
Guttmacher Institute, Facts on Publicly Funded Contraceptive Services in the United States (May 2012), available at http://www.guttmacher.org/pubs/fb_contraceptive_serv.html .................................33
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HealthCare.Gov, “Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans, (June 14, 2010) http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-healthplan-you-have-grandfathered.html................................................................23–24, 27
HHS, News Release (January 20, 2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html ...............................17
HHS, News Release (July 31, 2012), available at http://www.hhs.gov/news/press/2012pres/07/20120731a.html ...............................44
HRSA, “Women’s Preventive Services,” available at http://www.hrsa.gov/womensguidelines/ ....................................................................3
Inst. of Med., The Best Intentions, (1995). .....................................................................30–31
Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps (2011) .....................................................................................29–31
Jones, R., J. Darroch & S.K. Henshaw, “Contraceptive Use Among U.S. Women Having Abortions,” 34 Perspectives on Sexual and Reproductive Health 294–303 (2002). ............................................................................................29
Laycock, Douglas & Oliver S. Thomas, “Interpreting the Religious Freedom Restoration Act,” 73 Tex. L. Rev. 209, 224 (1994) .............................................28, 34
Mosher WD & Jones J, Use of contraception in the United States: 1982–2008, Vital and Health Statistics, 2010, Series 23, No. 29, at 14 and Table E (2010) http://www.cdc.gov/NCHS/data/series/sr_23/sr23_029.pdf .....................................29
Wallace, Kelly, “Health and Human Services Secretary Kathleen Sebelius Tells iVillage “Historic” New Guidelines Cover Contraception, Not Abortion,” iVillage (Aug. 2, 2011), available at http://www.ivillage.com/kathleensebelius-guidelines-cover-contraception-not-abortion/4-a369771#ixzz28Z8TIkIH .............................................................................................5
WhiteHouse.gov, “Remarks by the President on Preventive Care” (Feb. 10, 2012), available at http://www.whitehouse.gov/the-press-office/2012/02/10/remarkspresident-preventive-care ..........................................................................................17
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MEMORANDUM OF LAW This action arises because th e federal government has deemed devout publishers of the Bible to be insufficiently “religious” to enjoy freedom in America. For 5 0 years Tyndale House Publishers has not only evangelized through its publishing of the Bibl e and other Christian literature, but it donates nearly all its profits to religious, charitable and evangelistic non-profit causes. Yet Defendants are m andating that Tyndale House Publishers violate its and its owners’ beliefs by covering item s in their health plan that they believe to cause early abortion, in violation of the Good Book they publish. Defendants have al ready been the subject of a preliminary injunction against this mandate, so as to protect a com pany owned by religious believers. See Newland v. Sebelius, 2012 WL 3069154 (D. Colo. July 27, 2012). Defendants’ mandate of insurance coverage subjects Tyndale to draconian penalties, including lawsuits by Defendant Secretary of Labor as well as fines and penalties accruing in the millions. Forcing Tyndale to choose between its faith and such penalties is a blatant violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (RFRA), the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. Defendants cannot satisfy the strict scrutiny required under RFRA and t hese laws. Defendants “completely undermine[d]” their alleged interes ts by exempting tens of m illions of Americans and staying enforcement against many others, Newland, 2012 WL 3069154 at *7–*8 , yet they refuse to exempt Tyndale. And the government could pursue, and already does pursue, the less restrictive means of directly delivering the drug items at issue here. Id. Tyndale is faced with imm inent harm under Defendants’ m andate. The govern ment refuses to consent to this m otion and instead fully threatens its penalties. Immediate injunctive relief is needed to protect Tyndale’s religious freedom and preserve the status quo.
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FACTUAL BACKGROUND As is set forth in Plaintiffs’ Verified Co mplaint (which is evid entiary support for this motion), Plaintiffs Tyndale House Publishers, Inc. and Mark D. Taylor (collectively, hereinafter, “Tyndale”), are a Bible publishing company and its President and CEO. Verified Com plaint (“VC”) ¶¶ 21–24, 63 (Doc. # 1). Dr. Kenneth E. Taylor and his wife, the parents of Mark Taylor, founded Tyndale House Publishers 50 years ag o to publish Bibles and other Chris tian literature and media. Id. The next year, in 1963, Dr. Taylor founded the Tyndale House Foundation (“the Foundation”), a religious non-profit organization, in order to donate the proceeds of Dr. Taylor’s work to religious and charitable causes. VC ¶¶ 41–44. In Dr. Taylor’s words I had a strong conviction that the ability to write Living Letters was a special gift from God, and, because it was His word, He should get all the roy alties. So we called on [an attorney] to set up a foundation with a board of directors who would be responsible to give the money away to properly qualified charitable causes. Id. The Foundation owns 96.5% of Tyndale House Publishers and theref ore receives that percentage of distribu ted profits, in addition to payments from Tyndale House Publishers for royalties on Dr. Taylor’s books. VC ¶¶ 45–49. With the proceeds of Tyndale House Publishers, the Foundation has donated $21.5 million to religious and charitable non-profit causes in the last five years alone. Aff. of Mark D. Taylor at 1, Exh. 1 (attached). The Foundation has used proceeds from Tyndale to benefit such m inistries as: a Christian co mmunity center in th e Chicago area that provides after school programming for children from low-income families and housing for hom eless teens; Cabrini Green Lega l Aid Clinic which provides disadvantaged people with legal assistance; and evangelistic work worldwide. Id. Consistent with these practices, T yndale House Publishers’ articles of incorporation declare that it is organized to “engage as a publisher of Christian and faith-enhancing books, periodicals, tracts, pamphlets, and other m edia of communication; and to engage in any related
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business that may be lawful.” VC ¶ 25. Tyndale House Publishe rs’ operations are extensively religious: their m ission and goa ls are religious, they conduct prayer, Bible studies, charitable and service outreach, they tithe their pre-tax income, and they engage in m any other activities in an attempt to live and operate according to the Book they publish. VC ¶¶ 26–39. Tyndale House Publishers is controlled by another of its co-owning entities, Tyndale T rust, whose trustees adhere to an evangelical Christian statement of faith and who are required to be the same individuals as those who com prise the Tyndale House Publishers’ Board of Directors. VC ¶¶ 52–59. A small percentage of Tyndale House P ublishers is also owned by two trusts benefitting Dr. Kenneth Taylor’s widow and children, who also share Tyndale’s beliefs. VC ¶¶ 60–62.
Despite being a thoroughly re ligious Bible publisher that do nates nearly all its proceeds to religious non-profit efforts, the government in this case ha s deemed it not a “religious employer” so as to justify forcing it to violate it s religious beliefs. This odd classification arose during implementation of the Patient Protection and Affordable Care Act of 2010 (PPACA). PPACA requires health plans to include coverage of preventive health services at no cost-sharing to patients, but does not define what is includes in those servi ces. 42 U .S.C. § 300gg-13(a)(4). Defendants issued regulations ordering HHS’s Health Resources and S ervices Administration (HRSA) to decide what would be mandated as women’s preventive care. 75 Fed. Reg. 41726–60 (July 19, 2010). HRSA issued such guidelines in July 2011, mandating coverage of “All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all wom en with reproductive capacity.” HRSA, “ Women’s Preventive Services,” available at http://www.hrsa.gov/womensguidelines/ .
Thereafter, Defendants issued an “interim final rule” endorsing HR SA’s guidelines as applied to plan years beginni ng after August 1, 2012, and granting “addition al discretion” to
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HRSA to exempt from this requirement what it defined as “religious em ployers.” 76 Fed. Reg. 46621–26 (Aug. 3, 2011). In this regulation, Defendants defined “religious employers” in such a narrow way that Tyndale the Bible publisher is not “religious.” To be a religious e mployer under Defendants’ definition, an entity must meet all of the following four factors:
(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 prim arily persons who share the religious tenets
of the organization; (4) The organization is a nonprofit organi zation 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. 45 C.F.R. § 147.130(a)(1)(iv)(B)(1)–(4) (HHS); see also 26 C.F.R. § 54.9815-2713T (Treasury); 29 C.F.R. § 2590.715-2713 (Labor). Notably, this f ourth factor only includes churches, church auxiliaries, and religious orders. See IRC §§ 6033(a)(1), 6033(a)(3)(A)(i) & (iii). Defendants finalized this m andate and exemption, “without change,” in February 2012. 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012). (This collection of regulations and its penalties is referred to hereinafter as “the Mandate.”). Defendants likewise used their unfettered discretion on at leas t two occasions to issu e rules th at allow m any religious organizations to avoid government enforcement of the Mandate for an extra year. 1 However, both versions of those rules explicitly excluded Tyndale from this “s afe harbor” by virtue of declaring that it only applies to non-profit entities. Id. And Defendants used their discretion to propose even m ore accommodations for some religious entities, bu t not for Tyndale because it is for-profit. 77 Fed.
1 See Center for Co nsumer Information and Insurance Oversight and Centers for Medica re & Me dicaid Services, “Guidance on the Temporary Enforcement Safe Harbor for Certain Employers . . .” February 10, 2012, available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf , and August 15, 2012, available at http://cciio.cms.gov/resources/files/prev-services-guidance-08152012.pdf .
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Reg. 16501 (Mar. 21, 2012). The fact that Tyndale has always been a Bible publisher, pays out nearly all its profits to religi ous non-profit charities, and is ow ned by devout religious believers, still does not qualify it for Defendants’ “religious” exemptions and accommodations.
The Mandate directly conflicts with the re ligious beliefs of Tyndale and its owners. Tyndale House Publishers has 260 full-tim e employees and offers them a gene rous health insurance plan in which Tyndale acts as a self -insurer. VC ¶¶ 71–73. Tyndale and its owners adhere to the centuries-old biblical view of Christians around the world, that every hum an being is made in the im age and likeness of God from the moment of its conception/fertilization, and that to help destroy such an innocent being, including in the provi sion of coverage in health insurance, would be an offense against God. VC ¶¶ 39, 51, 59, 62. But the “FDA-approved contraceptive methods” imposed upon Tyndale’s health plan include products such as IUDs, and “emergency contraceptives” such as Plan B (co mmonly known as the “m orning-after pill”) and Ella (commonly known as the “week-after pill”). VC ¶¶ 81. Tyndale and its owners believe that these “contraceptive” item s can also function—as their F DA-required labeling adm its—in ways that cause the dem ise of recently fertilized em bryos before they can implant into the mother’s uterus.2 VC ¶¶ 81–83. To Tyndale and its owners , this is not morally different than surgical abortion. VC ¶¶ 75. Therefore, based on this sincere religious objection, Tyndale and its owners have never included emergency cont raception, IUDs, or abortion in their em ployee health plan. Id.
2 See FDA Birth Control Guide (Oct. 19, 2011), http://www.fda.gov/downloads/forconsumers/byaudience/ forwomen/freepublications/ucm282014.pdf (last visited October 6, 2012) (describing action of various FDAapproved contraceptives). Defendant Secretary Sebelius herself admits that these it ems, included in the FDA’s “contraceptives” category, “ prevent fertilization and implantation. . . .These covered prescription drugs are specifically those that are designed to prevent implantation.” Kelly Wallace, “Health and Human Services Secretary Kathleen Sebelius Tells iVillage “Historic” New Guidelines Cover Contraception, Not Abortion,” iVillage (Aug. 2, 201 1), available at http://www.ivillage.com/kathleen-sebelius-guidelines-cover-contraception-notabortion/4-a-369771#ixzz28Z8TIkIH (last visited Oct. 6, 2012). The go vernment might believe that fertilized embryos are not persons, but it admits that FDA contraceptives cause their demise by preventing implantation.
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Defendants have now mandated that Tyndale vi olate its deeply held religious beliefs by immediately inserting coverage of abortifacients (and education and counseling in favor of the same) into its em ployee health plan. This is something Tyndale canno t comply with in good conscience. VC ¶¶ 75, 88–89. Tyndale would rende r itself a hypocrite to the world, to its authors, to Christians who hear Tyndale’s message, and to God Himself, if they published God’s Word while using their company to help destroy His image and likeness. VC ¶¶ 112.
Tyndale’s health plan began on October 1, 2012. VC ¶ 74. Therefore the Mandate— applicable to plans beginning after August 1, 2012—presently tr iggers a variety of harsh penalties against Tyndale for not violating it s religious beliefs. VC ¶ 90. Section 1563 of PPACA incorporates the preventive care requirement into the Internal Revenue Code as well a s ERISA. See “Conforming Amendments,” Pub. L. 111-148, §1563(e)–(f). Thereunder, Department of Labor Defendants have autho rized themselves to sue Tyndale for om itting the objectionable mandated coverage, and those suits could specifically force Tyndale to violate its beliefs by providing the abortif acient coverage. 29 U.S.C. § 1132. PPACA also triggers penalties through the Treasury Departm ent Defendants of approximately $100 per employee per day on Tyndale if it continues providing its em ployees with generous health insurance coverage but omits the m andated items to which it and its owners object. 26 U.S.C. § 4980D. Furthermore, the law imposes a $2,000 per em ployee per year penalty on T yndale if it were to injure its employees by dropping health insura nce altogether. 26 U.S.C. § 4980H; VC ¶ 94. Tyndale cannot afford to sustain the Mandate’s penalties. Exh, 1 at 2.
This Court is the only recourse to protec t Tyndale and its owners from the Mandate’s assault on the religious freedom and its absurd definition deeming a Bible publisher as not being religious. VC ¶¶ 87, 144. Tyndal e has no adequate rem edy at law. VC ¶ 146. It faces
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immediate threat of the Mandate’s penalties, and endangerment of its em ployees’ health plan, unless this Court orders prelim inary injunctive relief as soon as possible. Tyndale is suffering irreparable harm by Defendants’ coercion, whic h blatantly violates longstanding religious conscience, speech and other pro tections found in federal statutes and the constitution. VC ¶ 145. Recognizing it had no other options, T yndale filed its com plaint on October 2, 2012 to challenge the Mandate on a variety of federal law grounds and seek injunctive relief.
ARGUMENT In considering whether to gr ant a prelim inary injunction, th e Court balances “(1) the movant’s showing of a substantial likelihood of success on the merits, (2) irreparable harm to the movant, (3) substantial harm to the non-movant, and (4) public interest.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009) . As explained below, Tyndale meets these requirements and is theref ore entitled to a prelim inary injunction. One court has already issued a prelim inary injunction against Defendant s and this Mandate, on behalf of a for-profit entity run by religious belie vers in Denver, Colorado. Newland v. Sebelius, 2012 WL 3069154 (D. Colo. July 27, 2012). I. TYNDALE IS LIKELY TO SUCCEED ON THE MERITS. A. The Mandate violates the Religious Freedom Restoration Act. Congress passed RFRA to subject governm ent burdens on religious exercise to “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).” 42 U.S.C. § 2000bb(b)(1); see generally Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 424, 431 (2006) (describing origin and intent of RFRA, 42 U.S.C. § 2000bb et seq.). Under RFRA, the fe deral government may not “substantially burden” a person’s exercise of religion unless the government “‘demonstrates that
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application of the burden to the person’ represents the lea st restrictive means of a dvancing a compelling interest.” O Centro, 546 U.S. at 423 (quotin g 42 U.S.C. § 2000bb-1(b)); see also Kaemmerling v. Lappin , 553 F.3d 669, 677–79 (D.C. Cir. 2008) (discussing RFRA) .3 Once a plaintiff demonstrates a substa ntial burden on his religious ex ercise, RFRA requires that th e compelling interest test be satisfied not generically, but with respect to “the particular claimant.” O Centro, 546 U.S. at 430–31.4
1. Tyndale’s abstention from providing abortion-inducing drugs in employee coverage qualifies as “religious exercise” under RFRA.
RFRA broadly defines “religious exercise” 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), as amended by 42 U.S.C. § 2000cc-5(7)(A). A plaintiff’s “claimed beliefs ‘must be sincere and the practice[] at issue m ust be of a religious nature.’” Kaemmerling, 553 F.3d at 678 (quoting Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002).
To refrain from morally objectionable activity is part of the exercise of religion. Both the Supreme Court and the D.C. Circuit have recognized that the “exercise of religion” encompasses a belief that one m ust avoid participation in certain acts. See, e.g., Employment Division v. Smith, 494 U.S. 872, 877 (1990) (explai ning under the F ree Exercise Clause that that “the ‘exercise of religion’ often involves not only belief and profession but the performance of ( or abstention from) physical acts”); Kaemmerling, 553 F.3d at 678 (reasoning that “religious exercise” under RFRA embraces “action or forbearance”) (emphases added). Thus, a person
3“[T]he portion [of RFRA] applicable to the federal government…survived the Supreme Court’s decision striking down the statute as applied to the States.” Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. Cir. 2001) (discussing City of Boerne v. Flores, 521 U.S. 507 (1997)). RFRA applies “to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.” 42 U.S.C. § 2000bb3(a) (2000). 4 The government’s burden to satisfy strict scrutiny under RFRA is the same at the preliminary injunction stage as at trial. See O Centro, 546 U.S. at 429-30 (citing Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)).
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exercises religion by avoiding work on certain days ( see Sherbert, 374 U.S. at 399), or by refraining from sending children over a certain age to school ( see Wisconsin v. Yoder , 406 U.S. 205, 208 (1972)). See 42 U.S.C. § 2000bb(b)(1) (incorporating Sherbert and Yoder in RFRA). Similarly, a person’s religious convictions may compel her to refrain from facilitating prohibited conduct by others. See, e.g., Thomas v. Review Bd. , 450 U.S. 707, 714–16 (1981) (recognizing religious exercise in refusing to “produc[e] or dire ctly aid[] in the m anufacture of items used in warfare”).
As explained above, Tyndale’s religious beliefs direct it to not only respect em bryonic human life, but also to refrain from providing and covering m ethods that could cause what they believe to be early abortions (as well as late one s). To offer such coverage through its em ployee insurance policy would violate Tyndale’s faith. As a self-insurer, if Tyndale’s plan covered items that it believes cause early abortions, Tyndale itself w ould be buy ing those abortifacient items for its em ployees. Tyndale cannot credibly maintain its religious identity and integrity as an evangelical Chris tian Bible pu blisher that directs its proceeds to Christian ministry and charity, while at the same time covering and paying for practices contrary to the Good Book that it publishes. See generally VC ¶¶ 39, 88, 89, 112. Accordingly, Tyndale’s abstention from doing what the mandate requires qualifies as “religious exercise” within the meaning of RFRA.
a. Tyndale House Publishers exercises religious beliefs. In several lawsuits against th is Mandate, the government has argu ed that a for-p rofit entity is categorically in capable of exercising religion. This pos ition is flawed on a num ber of levels. First, Tyndale is undeniably and thoro ughly religious and thus can exercise religious beliefs. It is and has always been a publisher of Bibles and other Christian media. VC ¶¶ 21–24. Its articles of incorporation explicitly state its purpose to publish “Christian and faith-enhancing”
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media. VC ¶ 25. Moreover, Tyndale was founded not as an effort to sell things to Christians, but to evangelize through publishing, to share th e “gift” from God that Dr. Kenneth Taylor believed he was given to communi cate the Gos pel’s message to the w orld, and th en to d irect nearly all its profits to religious, charitable and evangelistic non-profit endeavors. VC ¶ 44. And Tyndale has undertaken these efforts from an evangelistic motive and method, making extensive charitable contributions and operating in a Christian workplace. VC ¶¶ 26–38, 44–49.
Second, the “free exercise of religion” in RF RA, and in the First Am endment that RFRA explicitly seeks to enhance, ha s always been recognized as incl uding the exercise of religion in all areas of life including in business and “profitable” enterprise. There is sim ply no “business exception” to RFRA to the First Am endment. RFRA protects “any” exer cise of religion. 42 U.S.C. § 2000bb-2(4); 42 U.S.C. § 2000cc-5(7)(A); see also United States v. Philadelphia Yearly Meeting of the Religious Soc’y of Friends , 322 F. Supp. 2d 603 (E.D. Pa. 2004) (Quaker Church’s refusal to levy its em ployee’s wages was an exercise of religion under RFRA). The government’s proposal that a busin ess corporation has no capability to exercise relig ion is “conclusory” and “unsupported.” McClure v. Sports and Health Club, Inc., 370 N.W.2d 844, 850 (Minn. 1985). Both Stormans, Inc. v. Selecky , 586 F.3d 1109, 1119–20 & n.9 (9th Cir. 2009), and EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 620 n.15 (9th Cir. 1988), recognized that a for-profit and even “secular” corporation could assert free exercise claims.
The government’s premise seems to be that one cannot exercise religion while engaging in business.5 But judic ially the context of free exercise has usually invol ved the pursuit of financial gain. In Sherbert, 374 U.S. at 399, an em ployee’s religious beliefs were burdened by
5 The government appears to adopt a literal interpretation of the Bible’s injunction that you “cannot serve both God and money,” Matthew 6:24. B ut no federal law enacts the government’s particular reading of the Gospel of Matthew as a limitation on religious exercise.
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not receiving unemployment benefits; likewise in Thomas, 450 U.S. at 709. In United States v. Lee, 455 U.S. 252, 257 (1982), the Court held an em ployer’s religious beliefs were sufficiently burdened by paying taxes for workers so as to requi re the government to justify its burden. In Fraternal Order of Police v. City of Newark , 170 F.3d 359, 360 (3d Cir. 1999), an employee’s bid to continue his em ployment was burdened by discriminatory grooming rules. Many other cases have recognized that business co rporations can exercise religion. See, e.g., Jasniowski v. Rushing, 678 N.E.2d 743, 749 (Ill. App. Dist. 1, 1997) (f or profit corporation m ay assert free exercise claim), vacated, 685 N.E.2d 622 (Ill. 1997). Morr-Fitz, Inc. et al. v. Blagojevich , No. 2005-CH-000495, slip op. at 6–7, 2011 WL 1338081 (Ill. Cir. Ct. 7th, Apr. 5, 2011) (ruling in favor of the free exercise rights of thre e pharmacy corporations and their owners); Roberts v. Bradfield, 12 App. D.C. 453, 464 (D.C. Cir. 1898) (recognizing that the right of “free exercise of religion” inheres in “an ordina ry private corporation”). See also Commack Self-Service Kosher Meats, Inc. v. Hooker , 800 F. Supp. 2d 405 (E.D.N.Y. 2011) (analyzing free exercise claims without regard profit motive); Maruani v. AER Services, Inc. , 2006 W L 2666302 (D. Minn. 2006) (analyzing religious First Am endment claims by a for-profit business). A court analyzing a free exercise claim does not ask whether the cl aimant is the right category of person; it asks “whether [the challeng ed statute] abridges [r ights] that the First Am endment was m eant to protect.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978).
Congress has rejected the government’s re strictive view in m any ways. PPACA itself lets employees and “facilit[ies]” assert religious beliefs for or against “provid[ing] coverage for” abortions generally, without requiring them to be non-profits.6 42 U.S.C. § 18023. Congress has
6 One out of every five community hospitals is for-profit. Am erican Hospital Association, http://www.aha.org/research/rc/stat-studies/fast-facts.shtml (last visited October 6, 2012).
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repeatedly authorized similar objections, including to contraceptive insurance coverage.7 These protections cannot be reconciled with the gov ernment’s view that anything connected with commerce excludes religion.
Third, the governm ent has tend ed to confuse the protecti on of “any” “exercise of religion” under RFRA, with narro wer categories su ch as “religious employer” in Title VII employment discrimination. See 42 U.S.C. § 2000e–1(a). This argum ent cannot help the government in this case, for two reasons. Initially, the text Congress used in RFRA did not limit its protections to a “religious co rporation, association, or society” as stated in its previously enacted statute of Title VII. Congress ins tead protected th e “exercise of religion, ” period, b y anyone. To read a “religious em ployer” limit into RFRA would violate the te xt of the statute. Cf. Norinsberg v. U.S. Dept. of Agric. , 162 F.3d 1194, 1200 (D.C. Cir. 1998) (“Congress’ different wording from past i ndicates intent that new wor d has d ifferent meaning”; citation omitted). And m ore specific to this case, Tyndale is a “religious corporation” under Title VII. Cf. LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n , 503 F.3d 217, 226 (3d Cir. 2007) (using totality of the circum stances approach, citing multiple circuits ). The governm ent can point to nothing but Tyndale’s for-profit co rporate status to argue otherw ise—but Tyndale directs nearly all its proceeds to religious charity, negating even that factor. In any event, RFRA protects “free exercise of religion,” which does not turn on whether the plaintiff is a “religious corporation.”
Fourth, to the extent that the governm ent might argue RFRA only protects religious exercise by “persons,” and that persons do not include corporations, this argum ent contradicts clear Supreme Court precedent. “F irst Amendment protection extend s to corporations,” and a
7 See, e.g., Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, Title VII, Div. C, § 727; id. at Title VIII, Div. C, § 8 08; see also 42 U.S.C. § 300a-7; 42 U.S.C. § 2996f(b)(8); 20 U .S.C. § 1688; 42 U.S.C. § 2 38n; 42 U.S.C. § 1396u-2(b)(3)(B); 42 U.S.C. § 1395w-22(j)(3)(B); and Pub. L. 112-74, Title V, § 507(d). See also 48 C.F.R. § 1609.7001(c)(7).
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First Amendment right “does not lose First Amendment protection simply because its source is a corporation.” See Citizens United v. Federal Election Comm’n, 130 S. Ct. 876, 899 (2010). The lead plaintiff in O Centro itself was an entity rather than a natural person, and the Supreme Court vindicated free exercise rights on behalf of Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.520 (1993) (emphasis added). “[I]t is well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis.” Monell v. Dept. of Social Services , 436 U.S. 658, 687 (1978). “That co rporations are in law, for civil purposes, deem ed persons is unquestionable.” United States v. A medy, 24 U.S. 392, 11 Wheat. 392 (1826). “[ C]orporations possess Fourteenth Am endment rights . . . through the doctrine of incorporation, [of] the free exercise of religion.” Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County , 450 F.3d 1295 (11th Cir. 2006). It must be presumed that when Congress passed RFRA to build on the F irst Amendment’s protection of free exercise of religion, it was aware of the centuries-old judicial interpretation that corporations are “persons” with constitutional rights. See Lindahl v. Office of Personnel Management , 470 U.S. 768 (1985) (“Congress is presumed to be aware of an administrative or judicial interpretation . . . .” (quoting Albemarle Paper Co. v. Moody , 422 U.S. 405, 414 n. 8 (1975))). If for-profit corporations can have no F irst Amendment “purpose,” this woul d overturn the Supreme Court’s vindication of First Amendment rights for for-profit companies such as the New York Tim es. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
b. Tyndale’s religious owners can exercise religion under RFRA. Tyndale can and is bringing free exercise of religi on claims on behalf of not only itself but its religious owners. VC ¶¶ 10, 40. Tynda le’s 96.5% owner is Tyndale House Foundation, a religious non-profit organization. VC ¶¶ 41, 42, 45. The governm ent cannot maintain that such
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an entity is not religious or cannot exercise religious beliefs, since it has c onceded as much in its accommodations, exemptions and non-enforcement for religious n on-profit organizations. Tyndale is also controlled by Tyndale Trust, wh ich is an exp licitly religious entity requiring a Christian statement of faith, and which exists to maintain the religious identity of Tyndale House Publishers. VC ¶¶ 52–59. The remaining sm all portion of shares are owned by the widow and children of Dr. Kenneth Taylor as trustees, who are natural persons shari ng Tyndale’s beliefs. VC ¶¶ 60–62. Co-plaintiff Mark D. Taylor, as pr esident/board member/trustee involved in all these entities, is a religious person. VC ¶¶ 64–67. All of these owners share Tyndale’s religious beliefs against abortifacient provision in Tyndale’s health plan. VC ¶¶ 39, 51, 59, 62.
Several cases recognize a corporation can assert religious beliefs on behalf of its owners when the government requires the corporation to do thi ngs in violation of the owners’ religious beliefs. This is becaus e a business is an exte nsion of the moral activ ities of its owners and operators. Both Stormans, 586 F.3d at 1119–20 & n.9, and Townley, 859 F.2d at 620 n.15, affirm that the owners of a for-profit and even “secular” corporation had their religious beliefs burdened by regulation of that corporation, and th at the corporation could sue on behalf of its owners to protect those beliefs. See also McClure , 370 N.W .2d at 850. To the extent the government argues that Tyndale’s owners are “free” to abandon their Bible publishing enterprise and sell it to a secular com pany that will com ply with the Ma ndate, such expulsion from Bible publishing would be an extreme form of government burden.
2. The Mandate substantially burdens Tyndale’s and its owners’ religious exercise. Not only does the Mandate burden T yndale’s and its owners exercise of religious beliefs, but the burden is substantial. The governm ent “substantially burdens” religious exercise when it
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puts “‘substantial pressure on an adherent to modify hi s behavior and to viol ate his beliefs.’” Kaemmerling, 553 F.3d at 678 (quoting Thomas, 450 U.S. at 718).
The mandate directly orders Tyndale to provi de employees with insurance coverage that Tyndale and its owners believe implicate th em in facilitating early abortion. If Tyndale continues to offer insurance l acking the m andated coverage, which it is doing now, it faces a penalty of $100 per day per e mployee, as well as the prospect of lawsuits by the Defendant Secretary of Labor and by its own plan particip ants. 26 U.S.C. § 4980D (a), (b) (financial penalties); 29 U.S.C. § 1132(a) (providing for civil enforcement actions by the Secretary of Labor, as well as by plan par ticipants). Alternatively, if T yndale ceased offering em ployee insurance altogether, this would not only harm its 260 em ployees but subject it to an annual assessment of $2,000 per em ployee. 26 U.S.C. § 4980H. These m andates violate Tyndale’s beliefs and religious integrity, and subject it to competitive disadvantages. VC ¶¶ 108–13.
To call these burdens “substantial” is an unde rstatement. The Supreme Court has struck down religious burdens far less dramatic. For instan ce, Sherbert involved a plaintiff who was not required to work on the Sabbath, but was m erely denied unemployment benefits for refusing such work, and the Court deem ed this an “unmis takable” substantial pressure on the plaintiff t o abandon that observance. Sherbert, 374 U.S. at 404 (reasoning that the law “force[d] [plaintiff] to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the p recepts of her relig ion in order to accept work, on the other hand,” and that “the pressure on her to forego that practice is unmistakable”); see also Thomas, 450 U.S. at 717–18 (finding burden on religious exercise “[w] here the state conditi ons receipt of an important benefit upon conduct proscribed by a re ligious faith. . . thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs”). Sherbert and Thomas
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therefore declared even “indirect” pr essure to be a substantial burden. See Thomas, 450 U.S. at 718 (explaining “[w]hile the com pulsion may be indirect, the infringement upon free exercise is nonetheless substantial”).
With “direct” pressure, the Suprem e Court has been even more exacting. For instance, Yoder struck down a five dollar fine on Am ish parents for not sending their children to high school. See, e.g., Yoder, 406 U.S. a t 208 (observing that the parents were “fined the sum of $5 each”). Th e Court reasoned that “[t]he [law’s ] impact” on religious practice was “not only severe, but inescapable, for the. . . law affir matively compels them , under threat of cri minal sanction, to perform acts undeniably at odds with f undamental tenets of their religious beliefs.” Id. at 218. This exactly describes the Mandate on its face: it “affirm atively compels” Tyndale, under threat of severe consequences—lawsuits by the Defendants, fines, regulatory penalties, a prohibition on providing e mployee health benefits, competitive disadvantage—“to perform acts undeniably at odds with the fundamental tenets of th eir religious belief s.” Yoder, 406 U.S. at 218. Tyndale could avoid this stee p price, of course, by aba ndoning its religious convictions about participating in activities it believes destructive of nascent human life. But it is black letter law that “[a] substantial burden exists when gove rnment action puts ‘substantial pressure on an adherent to modify his behavior and to vio late his beliefs[.]’” Kaemmerling, 553 F .3d at 678 (quoting Thomas, 450 U.S. at 718); see also Lee, 455 U.S. at 254 ($27,000 penalty).
Defendants themselves have acted as if they understand this kind of burden. The Mandate contains an exemption for certain churches and religious orders, in order to “take[] into account the effect on the religious beliefs of certain religious employers.” 76 Fed. Reg. at 46623. And both Defendant Sebelius and P resident Obama have publicly recogni zed that the Mand ate burdens religious believers. In her January 20 announcement previewing the one-year safe
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harbor, Secretary Sebelius stated th at the extension “strikes the appropriate balance between respecting religious freedom and increas ing access to important preventative services. ”8

Likewise, in his Fe bruary 10 press conference Presid ent Obama acknowledged that religious

liberty is “at stake here” because som e institutions “have a relig ious objection to directl y providing insurance that cove rs contraceptive services.”9 The Pres ident explained that th is

religious liberty interest is why “we origina lly exempted all churches from this req uirement.”

Finally, the basic premise of th e Defendants’ m ost recent rule-making on the M andate is to

explore alternate insu rance arrangements that would avoid burdening religious organizations’

consciences. See 77 Fed. Reg. 16501, 16503. These statem ents candidly acknowledge that coercing religious objectors substantially burdens their religious exercise.10

The United States District Court f or the Distr ict of Colorado ruled that the Mandate

threatens a substantial burden on the religious beliefs of a fo r-profit company run by relig ious

believers, such that a preliminary injunction is warranted. Newland, 2012 WL 3069154 at *6. A

court in Missouri disagreed, however, and accep ted the governm ent’s argument that health

insurance provision of abortion-indu cing pills, contraception or ster ilization is not a substantial

burden. O’Brien v. U.S. Dep’t of H ealth & Human Srvs. , 2012 WL 4481208 (E.D. Mo. 2012).

The O’Brien decision is both incorrect and inapplicable to Tyndale.

O’Brien said that payment into a health insurance plan that covers objectionable practices

is merely “indirect financial support of a practice,” in contrast to “dire ctly and inevitably

8 The Secretary’s statement regarding th

e one-year extension can be

found at:

http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited October 6, 2012).

9 A transcript of the President’s remarks is available at h ttp://www.whitehouse.gov/the-press-

office/2012/02/10/remarks-president-preventive-care (last visited October 6, 2012).

10 Congress has elsewhere recognized the need to accommodate the same burden. See, e.g., Consolidated

Appropriations Act of 2012, Pub. L. No. 112-74, Title VII, Div. C, § 727 (protecting religious health plans in the

federal employees’ health benefits program from being forced to provide contraceptive coverage); id. at Title VIII,

Div. C, § 808 ( affirming that the District of Columbia must respect the religious and moral beliefs of those who

object to providing contraceptive coverage in health plans).

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prevent[ing] plaintiffs from acting in accordance with their religious b eliefs.” Id. at *6. This is not factually true regarding Tyndale , because while th e plaintiff in O’Brien paid an insur ance company, Tyndale’s health plan is self-insured. The Mandate is forcing Tyndale to directly pay for objectionable items itself, not to pay an exte rnal insurance company for coverage—there is no factual separation from the payment. And Tynda le contends that covera ge of abortifacients itself— not merely use—is a violation of their religious beliefs. VC ¶¶ 39, 51, 59, 62, 75. More fundamentally, O’Brien is an impermissible judicial decision of moral theology: a determ ination that promotion of abortifacients is morally acce ptable if it is not too proxim ate. The Suprem e Court rejected the same attem pt in Thomas, where the governm ent deemed the arm ament manufacturing activity to which th e plaintiff objected “sufficiently insulated” from his objection to war. 450 U.S. at 715. “Thom as drew a line, a nd it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs . . . .” Id.
O’Brien likewise contradicts Lee, which explicitly he ld that the for-profit religious plaintiff had met its showing to establish a sufficient burden for a free exercise of religion claim. 455 U.S. at 257. In doi ng so, the Court rejected th e government’s attempt to insist that despite the plaintiff’s sincerity of beliefs, there was no substantial burden on “the integrity of the Amish religious belief or observance.” Id. Instead the Suprem e Court found the burden sufficiently “interferes with the free ex ercise rights of the Am ish.” Id. Lee said that determining the burden did not sufficiently violate the faith to satisfy a free exercis e claim would be an in terpretation of faith that is “not within ‘the jud icial function and judicial com petence’” Id. (quoting Thomas, 450 U. S. at 716). O’Brien’s attempt to judge between different levels of mora l culpability is incompatible with the Suprem e Court’s and this Circuit’s definition of substantial burden, by which it is not a m easure of religious beliefs, bu t is a measure of the “pressure” the governm ent
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applies against beliefs. Kaemmerling, 553 F.3d at 678 (quoting Thomas, 450 U.S. at 718). As explained above, the Mandate here explicitly orde rs a violation of beliefs and i mposes intense penalties as pressure to do so.
The Mandate here is even m ore proximate than the substantial burden found in Lee, because the plaintiffs here must provide objectionable coverage directly to other private citizens, whereas in Lee they sent the m oney to a m ulti-trillion dollar budget in W ashington. Likewise, the mere fact that if Tyndale pays for abortifacient drugs, they are first obtained by employees, is a theological distinction that does not underm ine the substantial ity of a burden on religious exercise. O’Brien would constrain free exercise to “rit ual,” the “Sabbath” and child-rearing, but would allow the governm ent to coerce believers to help other people engage in objectionable activities. O’Brien, 2012 WL 4481208 at *6. This idea severely constricts the First Amendment and RFRA (which protects “any” free exercise of religion, not merely freedom of worship). Instead, Lee requires that the Court recogn ize a sufficient burden showing and apply the applicable scrutiny level, which is strict scrutiny under RFRA and O Centro.
Similarly inapplicable to this case is Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011), and Seven-Sky v. Holder, 661 F.3d 1, 5 n.4 (D.C. Cir. 2011) . In Mead, the Court reasoned that because “Plaintiffs routinely contribute to o ther forms of i nsurance, such as Med icare, Social Security, and unemployment taxes,” they cou ld not object to being required to purchase insurance for themselves. 766 F. Supp. 2d at 42. But Mead is distinct for several reasons. First, Mead observed that the law allowed plaintiffs to enter a “health sharing m inistry” and that plaintiffs were willing to do so. Id. Here the g overnment does offer “escape clause s,” even to religious organizations—but it denies them to Tyndale, inst ead forcing Tyndale to choose between violating its conscience and being penalized. In this respect, as noted above, the federal
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government has already conceded that this part icular Mandate substant ially burdens religious exercise. No similar selective regime was considered in Mead/Seven-Sky. Second, in Mead the requirement was deemed no different than paying a tax. Id.; see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2595–97 (2012) (“individual mandate” is s imply a tax, is m ild in cost, is not punitive, involves no other penalties, and non-compliance is not “illeg al”). But th e Mandate in the present case is a substantive Mandate first and foremost (42 U.S.C. § 300gg-13) rendering its viola tion illegal and multiple penalties as discussed abo ve. This M andate is no t analogous to paying taxes, which sustain the government’s own program s—it instead requires Tyndale to buy abortifacient coverage and items for private parties. The Mead plaintiffs’ objection was broader and applied to paying into any insurance, but Tyndale’s objection is not so broad. Third, the fact that everyone is require d to pay taxes does not give the governm ent a license to coerce citizens to do whatever it funds, from capital punishm ent to war to anim al vivisection. Otherwise, Thomas could not have recognized a free exercise right not to manufacture tank turrets, since all citizens pay taxes to purch ase those same tanks. 450 U.S. at 709–11, 718. Lee, too, found the objection to paying taxes a sufficient burden.
The government is also foreclosed from arguing that merely because a corporation provides its owners limited liability, there is no religious burden on the owners. That conclusion does not follow. Limited liability is merely one characteristic of a business corporation, and it is not the morally relevant one here. Tyndale’s relig ious owners have adopted beliefs that m ake it immoral for them to implem ent the Mandate’s commands through the entity they own for religious purposes. This is why Stormans and several other cases concluded matter-of-factly that a government burden on a business corporation is a burden on its close holding fam ily owners and directors. 586 F.3d at 1119–20; McClure, 370 N.W.2d at 850; Jasniowski, 678 N.E.2d at
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749; Morr-Fitz, Inc., No. 2005-CH-000495, slip op. at 6–7. Lim ited liability is not a talism an by which the government may trample on the religious beliefs of business owners.
3. The Mandate cannot satisfy strict scrutiny. Defendants cannot establish that their coerci on of Tynda le is “in furtherance of a compelling governmental interest.” RFRA, wit h “the strict scruti ny test it adopted,” O Centro Espirita, 546 U.S. at 430, i mposes “the most demanding test known to c onstitutional law.” City of Boerne, 521 U.S. at 534. A com pelling interest is an interest of “t he highest order,” Lukumi, 508 U.S. at 546, and is im plicated only by “t he gravest abuses, endangering param ount interests,” Thomas v. Collins, 323 U.S. 516, 530 (1945). Defendants cannot propose such a generalized interest “in the abstract,” but must show a compelling interest “in the circum stances of this case” by looking at the particular “aspect” of the interest as “addressed by the law at issue.” Cal. Democratic Party v. Jones , 530 U.S. 567, 584 (2000); O Centro Espirita, 546 U.S. at 430–32 (RFRA’s test can only be satisfied “through application of the challenged law ‘to th e person’—the particular claimant”); see also Lukumi, 508 U.S. at 546 (rejecting the assertion that prot ecting public health was a compelling interest “in the context of these ordinanc es”). The governm ent must “spe cifically identify an ‘actual problem’ in need of solving” and show that coercing Tyndale is “actually necess ary to th e solution.” Brown v. Entm’t Merchs. Ass’n , 131 S. Ct . 2729, 2738 (June 27, 2011). If Defendants’ “evidence is not compelling,” they fail their burden. Id. at 2739. To be compelling, the government’s evidence m ust show not m erely a correlation but a “ca us[al]” nexus between their Mandate and the grave interest it supposedly serves. Id. The government “bears the risk of uncertainty . . . ambiguous proof will not suffice.” Id.
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Defendants’ interest in coercing Tyndale to provide coverage of abortifacients is not compelling. In other cases the government has attem pted to identify two interests—wom en’s health and equality by reducing unintended pre gnancy—as justifying the Mandate under RFRA. But these interests are generic and abstract. In O Centro Espirita, the Court held evidence to be insufficient showing that Schedule I controlled s ubstances were “extremely dangerous,” because that “categorical” support could not meet the government’s RFRA burden to consider the “particular” exception requested by Tyndale. Id. at 432.
The simple fact is tha t even if abortifacient drugs are assum ed to provide health and equality to women, Defendants have not shown a compelling interest to deliver those benefits by means of c oercing Tyndale itself. As discus sed below, the government already delivers and subsidizes abortifacients to women and could do so here as well without forcing Tyndale to do it.
It is also notable at the outset that Tynda le only objects to abortifacient “em ergency contraception” and IUDs. VC ¶¶ 89, 136. W hatever interests Defendants claim in the generic need to provide women with contraception, they have no evidence to insist that a plan providing most contraception and sterilization still triggers a compelling interest to coerce the remainder.
a. Defendants cannot identify a compelling interest. The most striking obstacle to De fendants’ assertion of a com pelling interest is th at the government itself has voluntarily omitted 191 million people from the Mandate. Newland, 2012 WL 3069154 at *1. Thi s amounts to nearly two-thirds of the nation, and is being offered by the government for secular reasons. But Defendants still refuse to exempt Tyndale. The Mandate does not apply to thousands of plans that are “grandfathered” under PPACA. See 76 Fed. R eg. at 46623 & n.4. Also, the Ma ndate does not appl y to members of a “recognized religious sect or d ivision” that conscientiously objects to acceptance of public o r
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private insurance funds. 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii). A nd the Mandate exem pts from its requirem ents “religious employers” defi ned as churches or religious orders that primarily hire and serve their own adherents and that have th e purpose of inculcating their values. 76 Fed. Reg. at 46626. The federal government has decided that em ployers in any of these categories simply do not have to comply with the Mandate.
These are m assive exemptions that cannot co exist with a com pelling interest ag ainst Tyndale. “[A] law cannot be regarded as protec ting an interest ‘of the highest order’ when it leaves appreciable damage to that su pposedly vital interest unprohibited.” Lukumi, 508 U.S. at 520. Defendants cannot claim a “grave” or “par amount” interest to im pose the Mandate on Tyndale or other religious objectors while allo wing the identical “appreciable dam age” to 191 million people. No compelling in terest exists when the governm ent “fails to en act feasible measures to restrict other conduct producing substant ial harm or alleged harm of the same sort.” Id. at 546–47. The exemptions to the Mandate “f atally undermine[] the Government’s broader contention that [its law] will be ‘n ecessarily . . . undercut’” if Tyndale is exem pted too. O Centro Espirita, 546 U.S. at 434.
Defendants’ immense grandfathering exem ption has nothing to do with a determ ination that those 191 million people do not need contraceptive coverage, whereas Tyndale’s employees somehow do. The exem ption was instead a pur ely political m aneuver to garner votes for PPACA by letting “President Obam a ma[k]e clear to Am ericans that ‘if you like your health plan, you can keep it.’”11 The grandfathering rule is in no wa y temporary. There is no sunset on grandfathering status in PPACA or i ts regulations. Instead, a plan can keep grandfathered status
11 HHS, HealthCare.Gov, “Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans,” available at http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html (last visited October 5, 2012).
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in perpetuity, even if it raises fixed-cost em ployee contributions and, for several items, even if the increases exceed medical inflation plus 15 % every year. Id. The government repeatedly calls it a “right” for a plan to m aintain grandfathered status. See 75 Fed. Reg. 34,538, at 34,540, 34,558, 34,562, & 34,566.
Notably, grandfathered plans are subject to a variety of m andates under PPACA: no lifetime limits on cove rage; extension of dependent coverage to age 26; no exclusions for children with pre-existing conditions; and others. 12 But Congress deem ed the Mandate in this case not important enough to impose it on grandfathered plans. Defendants therefore contradict the text of PPACA when they take a litigation position, contrary to Congress, that the Mandate of abortifacient coverage is an interest “of the highest order.”
The flaw of Defendants’ supposed com pelling interest is even m ore fatal here because Tyndale is a large employer of 260 employees, a nd according to Defendants, “[m]ost of the 133 million Americans with em ployer-sponsored health insurance throug h large em ployers will maintain the coverage they have today.” Id. In other words, Defendants have voluntarily excluded most Americans situated alongside the em ployees of Tyndale. They cannot demonstrate they have a param ount interest to force it to comply in violati on of its beliefs. Defendants are com pletely content to leave 2/ 3 of the nation’s wom en without “health and equality” flowing from this Mand ate. Yet the y would ins ist those same interests can pass th e most demanding test known to constitu tional law. They cannot. If th e government can tos s aside such a m assive group of e mployees for political expediency, their “interest” in mandating cost-free birth control coverage cannot possibly be “paramount” or “grave” enoug h to justify coercing Tyndale to violate its and its owners’ religious beliefs. See O Centro Espirita, 546 U.S.
12 HealthCare.Gov, supra note 11.
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at 434 (“N othing about the unique political st atus of the [exem pted peoples] m akes their members immune from the health risks the Government asserts”).
In O Centro Espirita the Supreme Court held that no compelling interest existed behind a law that had a much more urgent goal—regulating extremely dangerous controlled substances— and that had m any fewer exemptions than the br oad swath of om issions from the Mandate. In that case the Court dealt with the Controlled Substances Act’s prohibition on “all use,” with “no exception,” of a hallucinogenic ingredient in a t ea along with other Schedule I substances. 546 U.S. at 423, 425. But because elsewhere in the statute there was a narrow religious exem ption for Native Am erican use of a different substan ce, peyote, the Court he ld that the governm ent could not meet its compelling interest burden even in its generalized interest to regulate Schedule I substances as applied to the plaintiffs in that case. Id. at 433. Even m oreso here, the government cannot satisfy its burden by pointing to general health benefits of contraception. Halting the use of extrem ely dangerous drugs is far m ore urgent than forcing religious objectors to provide contraception coverage . Defendants’ grant of secula r and religious exemptions for millions of other em ployees betrays any alleged compelling interest they may have in f orcing Tyndale to comply with the Mandate against their religious beliefs.
The government cannot satisfactorily explain why employees of Tyndale must be subject to its Man date while the governm ent itself voluntarily om its 191 m illion people. The government has no data showing how m any religious employers objecting to the Mandate exist, but their total num ber of employees could only cons titute a fraction of a percent of the tens of millions of em ployees the governm ent is voluntarily omitting. T his is a q uintessential illustration of Brown v. Entm’t Merchs. ’s insistence that the “ government does not have a compelling interest in each m arginal percentage point by which its goals are advanced.” 131 S.
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Ct. at 2741. As in O Centro, where governm ent exclusions apply to “hundreds of thousands” (here, millions), RFRA requires “a sim ilar exception for the 130 or so” and even less affected here. 546 U.S. at 433.
The Mandate on its face also is inconsistent with a com pelling interest rationale. Defendants have used their disc retion to wr ite a “ religious employer” exemption into the Mandate for certain churches. 76 Fed. Reg. at 46626. But th ere is no nexus between the Mandate exemption’s criteria and Defendants’ alle ged interest, such that a com pelling interest exists for non-exempt religious entities like Tyndale but is absent for exempt ones like churches. On the contrary, Defendants have sim ply engaged in political line-drawing based on what the president’s political base will accept, weighed against how much election-year resistance he may encounter.13 Under RFRA, Tyndale cannot be denied a religious exemption on the premise that Defendants can pick and choose between religious objectors. See O Centro Espirita, 546 U.S. at 434 (since the law does “not preclude exceptions altogether; RFRA makes clear that it is the obligation of the courts to consider” other exemptions).
b. There is no “business exception” to RFRA’s compelling interest test. In other cases the governm ent has attempted to use United States vs. Lee to characterize RFRA’s scrutiny as not being very st rict in commercial contexts. But O Centro Espirita does not allow the Court to apply a “strict scrutiny lite” for a business RFRA claim, or indeed for any RFRA claim. “[T]he compelling interest test” of “RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test,” such as in speech cases. 546 U.S. at 430. O Centro explicitly cabined Lee to its context of a tax that was nearly universal, and
13 The New York Times describes in great detail the politically-driven deliberation that led to the Mandate. Helene Cooper & Laurie Goodstein, “Rule Shift on Birth Control Is Concession to Obama Allies” (Feb. 10, 2012), available at http://www.nytimes.com/ 2012/02/11/health/policy/obama-to-offer-accommodation-on-birth-control-ruleofficials-say.html?pagewanted=all (last visited Oct. 6, 2012).
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the court did not allow the governm ent to claim “t hat a general interest in uniform ity justified a
substantial burden on religious exercise.” Id. at 435.
Lee does discuss “statu tory schemes which are binding on others in that activity.” 455
U.S. at 261. But the Mandate here is e mphatically not “binding on others in th[e] activity” of
large employers providing insurance. W hereas Lee’s tax contained only a tiny exemption for
some Amish, the Mandate here excludes:
 191 million Americans in “g randfathered” plans are not subject to the Mandate, including “most” large employers, of which Tyndale is one. “Keeping the Health Plan You Have,” supra note 11.
 Members of certain objecting religious gr oups need not carry insurance at all. See, e.g., 26 U.S.C. § 5000A(d)(2)(a) (“recognized religious sect or division”); id. § 5000A(d)(2)(b)(ii) (“health care sharing ministries”).
 Small employers (i.e., those with fewer than 50 employees) can drop em ployee insurance with no government penalty. 26 U.S.C. § 4980H(c)(2).
 Churches, church auxiliaries, and religious orders enjoy a blanket exemption from the mandate. 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012).
 Certain religiously affiliated non-profits were recently given an additional year before the mandate would be enforced against them. See HHS Bulletin, supra note 1.
The Mandate is m any things, but “u niform” is not one of them . O Centro was impatient with
the government’s uniformity argument:
The Government's argument echoes th e classic rejoinder of bureaucrats throughout history: If I m ake an excep tion for you, I' ll have to m ake one for everybody, so no exceptions. But RFRA operates by m andating consideration, under the com pelling interest test, of exceptions to “rule[s] of general applicability.”
546 U.S. at 436. Lee’s universal tax is not comparable to the Mandate and its exceptions.
The law upheld in Lee was a tax to raise governm ent funding. Gove rnments cannot
function without taxes. Lee ruled that if exemptions were allowed “[t]he tax system could not
function.” 455 U.S. at 260. But the United Stat es has functioned for over 200 years without a
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federal mandate compelling Tyndale or anyone else to cover abortifacient s in insurance. The Mandate is not a “governm ent program,” as discussed in Lee. It requires Tyndale to give specific abortifacient services to private citizens, not to pay m oney to the government for use in the government’s own activities. This Mandate is private, not governmental. In fact, the government has decided not to pursue its goals with a government program offering contraception—of which many exist—but instead to conscript religiously objecting citizens.
Lee does not apply the scrutiny te st applicable under RFRA. Lee was a precu rsor to Smith, which expanded on Lee to adopt the standard that RFRA affirmatively rejected. RFRA specifies that it is codifyi ng its tes t “as set f orth in Sherbert, 374 U.S. 398 and Wisconsin v. Yoder, 406 U.S. 205 (1972).” 42 U .S.C. § 2000bb. RFRA om its Lee from this list. Lee itself never says it is requiring a “compelling interest” or “leas t restrictive means.” But Sherbert and Yoder did apply RFRA’s test. Sherbert involved a plainti ff’s bid for financial gain, despite the government’s generally applicable law. As scholars note:
The standard thus incorporated [by RFRA ] is a highly protective one. . . . The cases incorporated by Congress explain “com pelling” with superlatives : “paramount,” “gravest,” and “highest.” Ev en these interests are sufficient only if they are “n ot otherwise served,” if “ no alternative form s of regulation would combat such abuses”. . . . Douglas Laycock and Oliver S. Thom as, “Interpreting the Religious Freedom Restoration Act,” 73 TEX. L. REV. 209, 224 (1994).
c. The government cannot meet its evidentiary burden. The government also fails the co mpelling interest test b ecause its “evidence is not compelling.” Brown v. Entm’t Merchs. , 131 S. Ct. at 2739. It points only to generic interests, marginal benefits, co rrelation not causation, and uncertain methodology. The Institu te of
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Medicine Report on w hich the Mandate is based (“2011 IOM”), 14 does not dem onstrate the
government’s conclusions. At best, its studies argue for a generic health benefit from
contraception. But the Manda te’s evidence must be tailored to the effect of exem pting Tyndale,
not to generic health interests. O Centro, 546 U.S. at 430–31. Tyndale is willing to provide
nearly all “contraception,” just not abortifacients. None of the government’s studies demonstrate
a compelling interest to coerce that small margin of contraception when the rest is provided.
Likewise the governm ent cites no pandem ic of unwan ted births at Tyndale or similar entities,
which cause catastrophic consequences for health and employees. It could be that employees of
such entities experience zero neg ative health consequences absent the Mandate, for any num ber
of reasons. At best, Defendants do not know. But Defendants “bear the risk of uncertainty,”
Brown, 131 S. Ct. at 2739. Speculation and generalizations will not suffice.
Nowhere does the IOM cite eviden ce showing that the Mandate would even increase
contraception use—which is a necessary corollary to saying health and equality from unintended
births would result. Instead, the IOM’s sources show: 89 % of women avoiding pregnancy are already practicing contraception; 15 among the other 11%, lack of access is not a statistically significant reason why they do not c ontracept;16 even among the most at-risk populations, cost is not the reason those wom en do not contracept. 17 The studies cited at 2011 IOM pp. 109 do not
14 Inst. of Med., Clinical Preventive Services for Women:Closing the Gaps (2011), available at http://www.nap.edu/catalog.php?record_id=13181 (last visited October 5, 2012). 15 The Guttmacher Institute, “Facts on Contraceptive Use in the United States (Jun e 2010),” available at http://www.guttmacher.org/pubs/fb_contr_use.html (last visited October 6, 2012). 16 Mosher WD and Jones J, “Use of contraception in the United States: 1 982–2008,” Vital and Health Statistics, 2010, Series 23, No. 29, at 14 and Table E, available at http://www.cdc.gov/NCHS/data/series/sr_23/sr23_029.pdf (last visited October 6, 2012). 17 R. Jones, J. Da rroch and S.K. He nshaw “Contraceptive Use Among U.S. Women Having Abortions,” Perspectives on Sexual and Reproductive Health 34 (Nov/Dec 2002): 294–303 (Perspectives is a publication of the Guttmacher Institute). The Centers for Disease Control released a study this year showing that eve n among those most a ri sk for u nintended pregnancy, only 13% ci te cost as a reason for not using contraception. CDC, “Prepregnancy Contraceptive Use Am ong Teens with Unintended Pregnancies Resulting in Live Births —
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show that cost leads to non-us e generally, but relate only to women switching from one contraception method to another.
The government’s evidence also does not apply universally. W omen who suffe r “unintended pregnancy” are prim arily young, un married, and low incom e. 2011 I OM at 102. Tyndale’s employees by definition have jobs and health insurance. The government asserts that women incur more preventive care costs generally, citing 2011 IOM at 19–20. But the IOM does not say those studies specifically include contraception as part of “preventive care.” Nor, if they do, does the IOM say what percentage of the prev entive care gap contraception accounts for. PPACA erases most if not all of this gap by mandating other coverage to which Tyndale does not object, including most contraception. 42 U.S. C. § 300gg-13. There is no evidence that any gap will remain at Tyndale, much less a compelling one.
The government cannot show that the Mandate would preven t negative health consequences. “Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in m ethodology.” Brown v. Entm’t Merchs., 131 S. Ct. at 2739 (quotation m arks omitted). The IOM adm its that f or negative outcomes from unintended pregnancy, “resear ch is lim ited.” 2011 IOM at 103. The IOM therefore cites its own 1995 repo rt, which sim ilarly emphasizes the funda mental flaws in determining which pregnancies are “unintended,” and “whether the effect is caused by or merely associated with unwanted pregnancy.” 18 The 1995 IOM adm its that no causal link exists for most of its alleged factors. This m akes sense, since the intendedness or unintendedness of a
Pregnancy Risk Assessment Monitoring System (PRAMS), 2004–2008,” Morbidity and Mortality Weekly Report 61(02);25-29 (Jan. 20, 2012), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ mm6102a1.htm?s_cid=mm6102a1_e (last visited October 6, 2012). 18 Institute of Medicine, The Best In tentions (1995) (“1995 IOM”), available at http://books.nap.edu/openbook.php?record_id=4903&page=64 (last visited October 6, 2012).
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pregnancy cannot itself physiologically change its health effect. Thus , a delay in seeking
prenatal care upon unintende d pregnancy is “no longer statisti cally significant” for wom en not
already disposed to delay or who have a “support network” 19—which exists in Tyndale’s plan.
The IOM’s recital of possible health consequences show that the evidence is not compelling:
 The alleged increase in smoking and drinking drops signific antly where studies con trol for other causes; while data on dom estic violence and depression “provide little systematic assessment” and merely “suggest” association (not causation).20
 The alleged reduction in low bi rth weight and prem aturity overlooks the fact that, like other cited factors, these are m erely “associated” with, not caused by, unintended pregnancy (1995 IOM at 70; 2011 IOM at 10 3). Several studies show no connection between it and pregnancy-spacing in the U.S. 21 And several studies show that low birth weight is associated not with cont raception but with shorter pregnancy intervals, further distancing itself from a contraception connection. 2011 IOM at 103
 Evidence is not com pelling that the Mandate against Tynda le would certainly cause pregnancy-prevention. In 48% of all unint ended pregnancies, contraception was used.22 Multiple peer-reviewed studies de monstrate that th ere is no scholar ly consensus that increased contraception use reduces either abortion (which occurs upon pregnancy) or sexually transmitted diseases.23
Notably, no evidence shows that the Mandate is the only m ethod to provide the item s in
question. Tyndale suggests th at such evidence would not be possible, since governm ent-
provided abortifacients are just as free and effective as any other kind.
19 Id. at 68. 20 Id. at 69, 73, 75. 21 Id. at 70–71. 22 Finer, L. B., and S. K. Hen shaw, “Disparities in rates of unintended pregnancy in the United States, 1994 and 2001,” 38(2) Perspectives on Sexual & Reprod. Health 90–96 (2006) available at http://www.guttmacher.org/pubs/journals/3809006.html (last visited October 6, 2012). 23 K. Edgardh, et al., “Ad olescent Sexual Health in Sweden,” Sexual Transmitted Infections 78 (2002): 352-6 (http://sti.bmjjournals.com/cgi/content/full/78/5/352); Sourafel Girma, David Paton, “The Impact of Emergency Birth Control on Tee n Pregnancy and STIs,” Journal of Health Economic, (March 2011): 373-380; A. Gl asier, “Emergency Contraception,” British Medical Journal (Sept 2006): 560-561; 37 J.L. Duenas, et al., “Trends in the Use of Con traceptive Methods and Voluntary Interruption of Pregnancy in the Spanish Population During 1997– 2007,” Contraception (January 2011): 82-87
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d. Defendants cannot show the Mandate is furthering their interests.

the least restrictive m eans of

Even if a c ompelling interest existed, the governm ent could not possibly show that the

Mandate against Tyndale is “the least restrictive means of furthering” it under 42 U.S.C. 2000bb-

1. The fact that th e government could subsidize contraception itself to gi ve it to employees at

exempt entities, and tha t it alr eady does so on a wide scale, shows th at the gov ernment fails

RFRA’s least restrictive means requirement. Defendants bear the burden to show bot h of these

elements—compelling interest and least restrictive means—including at the p reliminary

injunction stage. O Centro Espirita, 546 U.S. at 428–30.

“[I]f there are other, reasonable ways to achieve those goals with a lesser burden on

constitutionally protected activ ity, [the Governm ent] may not choose the way of greater

interference. If it acts at all, it m ust choose ‘less drastic m eans.’” Johnson v. City of Cincinnati ,

310 F.3d 484, 503 (6th Cir. 2002) (quoting Dunn v. Blumstein, 405 U.S. 330, 343 (1971)). Strict

scrutiny requires a “serious, good faith considerati on of workable . . . alternatives that will

achieve” the alleged interests. Grutter v. Bollinger, 539 U.S. 306, 339 (2003). “[W ]ithout some

affirmative evidence th at there is no less sev ere alternative,” the M andate cannot survive

RFRA’s requirements. Johnson, 310 F.3d at 505.

Defendants fail the least restrictiv e means test because th e government could, if the

political will exis ted, achieve its desire for free coverage of birth control by providing that

benefit itself. Rather than coerce T yndale to provide abortifacient coverage in their plan, the

government could possibly create its own “abortif acient insurance” plan covering the few ite ms

to which T yndale objects, and then allow free enrollment in that plan for whom ever the

government seeks to cover. Or the governm ent could directly com pensate providers of

abortifacients. Or the governm ent could offer tax credits or deductions for abortifacient

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purchases. Or the governm ent might im pose a mandate on the abortifacient manufacturing industry to give its item s away for free. 24 These and other options could fully achieve Defendants’ goal while being less re strictive of Tyndale’s beliefs. There is no essential need t o coerce Tyndale to provide the objectionable coverage itself.
Defendants cannot deny that th e government could pursue its goal more directly. This conclusion is not only dictated by comm on sense, but is also prov en because the federal government and many states already directly subs idize birth control cove rage for many citizens through Title XIX (Medicaid) and T itle X (Family Planning Services) funding, among others. 25 Thus the Court’s RFRA inquiry could end here: th e Mandate is not the leas t restrictive means of furthering Defendants’ interest. Other options may be more difficult to pass as a political matter (which further illus trates the public’s d isbelief that the Mandate’s interest is “compelling”). Indeed PPACA itself does not require the Mandat e. 42 U.S.C. § 300gg-13(a)(4). But political difficulty does not exon erate the Mandate’s burdens on Tyndale’s religious beliefs, nor can it allow the Mandate to pass RFRA’s strict scrutiny. The availabil ity of many alternative methods fatally undermines Defendants’ burden under RFRA and the Mandate from applying to Tyndale.
The government cannot propose a watered-down least restrictive m eans test. R FRA requires the Mandate to be “the least restrict ive means,” not the least restrictive means am ong only what the government wants to select. In Riley v. National Federation of the B lind of North Carolina, Inc., 487 U.S. 781 (1988), the Suprem e Court required alternative m eans instead of fundamental rights violations. There, North Carolina sought to curb fraud by requiring
24 And by virtue of Defendants’ recent attempts to quell political backlash by claiming they may create an “accommodation” for some additional reli gious entities (but still not for Plaintiffs), Defendants are necessarily admitting that the Mandate is not the least restrictive means to achieve their goals. See 77 Fed. Reg. 16501–08 (Mar. 21, 2012) 25 See Facts on Publicly Funded Contraceptive Services in the United States (Guttmacher Inst. May 2012) (citations omitted), available at http://www.guttmacher.org/pubs/fb_contraceptive_serv.html (last visited October 6, 2012)
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professional fundraisers to disclose during soli citations how much of the donation would go to them. 487 U.S. at 786. Applyi ng strict scrutiny, the Suprem e Court declared that the state’s interest could be achieved by publ ishing the same disclosures itself online, and by prosecuting fraud. Id. at 799–800. Although these alternatives would be costly, less directly effective, and a restructuring of the governm ental scheme, strict scrutiny demanded they be prioritized. See id. Here RFRA sim ilarly requires full consideratio n of other ways the governm ent can and does provide women free abortif acients. “The lesson” of RFRA’s pedigree of caselaw “is that the government must show something more compelling than saving money.” Laycock at 224.
The government attempted in Newland to argue that it has an alleged need to impose the Mandate within the employer-based insurance market. But this fails the compelling interest/least restrictive means test because it redefines the government’s interest from securing health and equality to accomplishing those go als in a sp ecific way. The government has zero evidence, much less compelling evidence, that it has a “paramount” and “grave” need to achieve its alleged health and equality interests by coercion of Tyndale, instead of by provi ding abortifacients itself. The government does not even have a hint of evidence that its interests would not be served if the government itself provided the abortifacients it desires. In other words, the governm ent cannot possibly show that even if all women in Tyndale’s plan received the Mandated items free from the government, they would still suffer adverse health consequences and an inab ility to be free from work-interrupting pregnancy, solely because th e Mandated items have not been delivered by their religiously objecting em ployers, but by the government’s coverage. “[T]he Government has not offered evidence dem onstrating” compelling harm from an alternative th at is available and less restrictive of religion. O Centro, 546 U.S. at 435–37.
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The Mandate substantially burdens the religi ous exercise of Tyndale and its owners, and Defendants fail strict scrutiny. Tyndale has a likelihood of success under its RFRA claim.
B. The Mandate violates the Free Exercise Clause. In addition to violating RFRA, the m andate violates the Free Exercise Clause because it is not “neutral and generally applicable.” Lukumi, 508 U.S. 20 at 545 (citing Smith, 494 U.S. at 880; see also, e.g., Kae mmerling, 553 F.3d at 677 (discussing Smith). The mandate is therefore subject to strict scrutiny, Lukumi, 508 U.S. at 546, which as discussed above, it cannot meet.26 The mandate is not neutral on its face becau se it explicitly discriminates among religious organizations on a religious basis. It thus fails the most basic requirement of facial neutrality. See, e.g., Lukumi , 508 U.S. at 533 (explaining that “the m inimum requirement of neutrality is that a law not discrim inate on its face”). Ind eed, the m andate is m ore patent violation of neutrality than the ordinances unanimously struck dow n in Lukumi. That case involved ostensibly neutral animal cruelty laws structured to target religiously-motivated practices only. By contrast, on its face the religious em ployer exemption to the m andate divides religious objectors into favored and disf avored classes, forgetting Lukumi’s warning that “[a] law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.” Lukumi, 508 U.S. at 533 (emphasis added). The religious em ployer exemption protects the consciences only of certain religious bodies, which it defines with reference to their internal religious characteristics. Nam ely, it exempts only those organizations whose “pur pose” is to inculc ate religious values; who
26 Neutrality and general applicability overlap and “failure to satisfy one requirement is a likely indication that the other has not been satisfied.” Lukumi, 508 U.S. at 531; see also id. (noting that “[n]eutrality and general applicability are i nterrelated”); id. at 557 (Scalia, J., co ncurring) (observing that the concepts “substantially overlap”). S till, each merits separate analysis, and “strict scrutiny will be trigg ered” if the law at issue “fails to meet either requirement.” Rader v. Johnston , 924 F. Supp. 1540, 1551 (D. Neb. 1996) (emphasis supplied) (citing Lukumi, 508 U.S. at 531-33, 544-46).
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“primarily” employ and serve co -religionists; and who qualify as c hurches or religious orders under the tax code. See 45 C.F.R. § 147.130(a)(iv)(B)(1)–(4). These criteria openly do what Lukumi says a neutral law cannot do: refer to religious qualities w ithout any discernible secular reason. Lukumi, 508 U.S. at 533. There is no conceiva ble secular purpose, for instance, in limiting conscience protection to religious groups that “primarily serve” co-religionists while denying it to those who serve pers ons regardless of their faith. These criteria practice relig ious “discriminat[ion] on [their] face” and therefore trigger strict scrutiny. Lukumi, 508 U.S. at 533; cf. Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1337 (D.C. Cir. 2001) (rejecting “substantial religious character” test for NLRB jurisdic tion as contrary to both the Free Ex ercise and Establishment Clauses because it would effectivel y exempt only “religious institutions with hard-nosed proselytizing, … that limit their enrollment to members of their religion”) (relying on NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)).
The mandate is also subject to strict scrutiny under the Free Exercise Clause because it is not generally applicable. A law is not generally applicable if it regulates relig iously-motivated conduct, yet leaves unregulated sim ilar secular conduct. See, e.g., Lukumi, 508 U.S. at 544–45. As explained above, the Mandate here exem pts 191 million Americans on a variety of grounds, including “most” large e mployer like Tyndale, but refuses to exem pt Tyndale based on its religious objections. In Fraternal Order of Police , the Third Circ uit held th at a police department’s no-beard policy was not generally applicable because it allowed a m edical exemption but refused religious exemptions. “[ T]he medical exemption raises concern because it indicates that the [police departm ent] has m ade a value ju dgment that secular (i. e., medical) motivations for wearing a beard are im portant enough to overcom e its general interest in uniformity but that religious motivations are not.” 170 F.3d at 366 (Alito, J.). See also
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Blackhawk v. Pennsylvania , 381 F.3d 202, 210–11, 214 (3d Cir. 2004) (Alito, J.) (rule against religious bear-keeping violated Free Exercise Clause due to catego rical exemptions for zoos and circuses); Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth , 556 F.3d 1021, 1035 (9th Cir. 2009) (Noonan, J., concurring) (campaign finance requirem ents were not generally applicable where they included catego rical exemptions for newspapers and m edia, but not for churches); Mitchell Cnty. v . Zimmerman, 810 N.W.2d 1, 16 (Iowa 2012) (categorical exemptions for secular conduct allowed Mennonite farmers to use steel-wheeled tractors on county roads).
The religious exemption from the Mandate in particular is not generally applicable because PPACA itself awards Defendants un limited discretion to shape its scope. Defendants “may establish exemptions,” 45 C.F.R. § 147.130 (emphasis added), and pursuant to 42 U.S.C. § 300gg-13 Defendants’ discretion to craft its exemptions is unlimited. 76 Fed. Reg. at 46623 (asserting that § 300gg-13 grants HHS/HRSA “ authority to develop comprehensive guideless” under which Defendants believe “it is appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the re ligious beliefs of certain reli gious employers”) Using their unfettered assessments, Defendants continue to change their exem ptions and accommodations. This is evid enced by two different versions of a “safe harbor” they is sued in addition to the religious exemption itself, and th e fact that in recent rulemaking, yet another category of nonprofit religious entities subject to different treatment than the Ma ndate will be created, 77 Fed. Reg. 16501. This built-in discretion m eans that De fendants have broad discretion to create exemptions based on an “individualized … assessment of the reasons for the relevant conduct,” a feature that deprives the m andate of general appl icability and subjects it to strict scrutiny. Lukumi, 508 U.S. at 537 (quoting Smith, 494 U.S. at 884).
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C. The Mandate violates the Establishment Clause. The Mandate also violates the Es tablishment Clause of the First Amendment. T he Mandate’s “religious employer” exemption, as discussed above, se ts forth Defendants’ notion of what “counts” as religion and what doesn’t fo r the purposes of who wi ll be exem pt under the Mandate. But the government may not adopt a caste system of different religious organizations and belief-levels when it im poses a burden. Inst ead it “m ust treat individual religions and religious institutions ‘without discrimination or preference.’” Colo. Christian U. v. Weaver, 534 F.3d 1245, 1257 (10th Cir. 2008); Larson v. V alente, 456 U.S. 228 (1982); see also Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990) (h olding that section 19 of the National Labor Relations Act, which exempts from mandatory union membership any employee who “is a member of and adheres to established and trad itional tenets or teachings of a bona fide religion, bo dy, or sect which has historically held conscientious objec tions to joining or fina ncially supporting labor organizations,” is un constitutional because it d iscriminates among relig ions and would invo lve an impermissible government inquiry into religious tenets), cert. denied, 505 U.S. 1218 (1992). The Mandate’s four-pronged relig ious exemption deems religious organizations insufficiently “religious” if they do not focus on co-religionists in hiring and service, which would involve the government’s probing of what exactly count as the organization’s religious “tenets.” D. The Mandate violates the Free Speech Clause. The Mandate additionally violat es the First Am endment by coercing Tyndale to provide for speech that is con trary to its and its owners’ religious beliefs. The “righ t to speak and the right to ref rain from speaking are com plementary components of the broader concept of ‘individual freedom of mind.’” Wooley v. Maynard , 430 U.S. 705, 714 (1977) (quoting W.V. State Bd. of Educ. v. Barnette , 319 U.S. 624, 637 (1943)). A ccordingly, the First Amendment
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protects the right to “decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 573 (1995) (internal quotation marks omitted).
The Mandate com pels expressive speech. It requires Tyndale to cover “education and counseling” in favor of abortifacients. Education and counseling are, by definition, speech. As a self-insurer, Tyndale is required to pay for th is speech directly. T he Supreme Court has explained that its com pelled speech jurisprudence is triggere d when the governm ent forces a speaker to fund obj ectionable speech. See, e.g, Abood v. Detroit Bd. of Ed. , 431 U.S. 209, 234– 35 (1977) (forced con tributions for union political sp eech); United States v. United Foods , 533 U.S. 405, 411 (2001) (forced contributions for a dvertising). The S upreme Court recently reaffirmed that “com pulsory subsidies for pr ivate speech” v iolate the First Am endment unless they involve a “mandated association” that meets the compelling interest / least restrictive means test. Knox v. Service E mployees Intern. Union, 132 S. Ct. 2277, 2289 (June 21, 2012). Here there is no “m andated association” because th e government omits many employers from the Mandate, and the Mandate violates the compelling interest test. These factors, and because th e Mandate is not a condition on governm ent funding, distinguish it from Rumsfeld v. Forum for Academic & Inst. Rights, Inc. , 547 U.S. 47 (2006). Rumsfeld does not negate Knox, Abood, and United Foods.
E. The Mandate violates the Due Process Clause. The Mandate violates the rights of Tyndale and its owners under the Due Process Clause of the Fifth Amendment. As referenced in the Free Ex ercise Clause argum ent, the Manda te creates a standardless, blank check for Defendants to discriminatorily select whatever they want to call “religious” and offer or withhold whatever accommodations they choose. That is exactly what Defendants have done. W hen a law is so “standardless that it aut horizes or encourages seriously discriminatory enforcement,” the law does not com port with due process. United
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States v. W illiams, 553 U.S. 285, 304 (2008); see also F.C.C. v. Fox Television Stations, Inc. ,

132 S. Ct. 2307, 2317 (2012). If a law is so vague th at it “fails to provide a person of ordinar y

intelligence fair notice of what is prohibited, ” it f ails to provide constitu tional due process .

Williams, 553 U.S. at 304.

42 U.S.C. § 300gg-13 gives Defendants unlim ited discretion to pick and choose what

religious groups to im pose its Mandate against, and to what extent. 76 Fed. Reg. at 46623 The

statute literally contains no standards regarding these decisions; it offers zero guidance, not even

key words or phrases, about w ho counts as religious and wh at kind o f accommodation such

religious persons or entities should be provided. No person ca n read § 300gg-13 and have any

notion of who Defendants may impose their Mandate against, and to what extent.

Section 300gg-13 is therefore a quintessential la w so “standardless that it author izes or

encourages seriously discriminatory enforcement.” Def endants could literally decide tha t

Buddhists get exem ptions while Sikhs do not, wit hout running afoul of th e standards of that

section, because the section has no standards.

The law practically invites discrim inatory

enforcement, and that is exactly what Defendants have done with it. Defendants have used their

discretion to create: an arbitra ry four-part “religious employer” exemption; two dif ferent “safe

harbors” of non-enforcem ent; and a proposed “accomm odation” for so me non-exempt entities

yet to be determ ined in new rulem aking, 77 Fed. Reg. 16501. Tyndale has suffered exclusion

from all these discretionary decisions. These discriminatory decisions involve the governm ent

deciding who the religious are and what religion is; what levels of m oral participation should be

acceptable to conscience; whose religion gets put into different levels of accomm odation; and

who is allowed to convert to religious views against birth control based on whether they did so

by February 10.

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F. The Mandate violates the Administrative Procedure Act. The Mandate was f inalized while transparently, even adm ittedly, refusing to satisf y Defendants’ statutory duty to act ually “consider” objections issued during the comm ent period. Section 706 of the APA provides that courts “shall hol d unlawful and set aside agency action, findings, and conclusions found to be without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). Defendants must follo w the procedure found in § 553, which requires administrative agencies to: (1) publish notice of proposed rulemaking in the Federal Register; (2) “give interested parties an oppor tunity to participate in the rule making through subm ission of written data, views, or arguments”; and (3) consider all relevant matter presented before adopting a final rule that includes a statement of its basis and purpose. 5 U.S.C. § 553(b) & (c). “An agency is required to provide a m eaningful opportunity for comments, which means that the agency’s mind must be open to considering them.” Grand Canyon Air Tour Coalition v. F.A.A., 154 F.3d 455, 468 (D.C. Cir. 1998) (citing McLouth Steel Products Corporation v. Thomas, 838 F.2d 1317, 1323 (D.C. Cir. 1988)). The Cour t need not engage in any subjective judgment about whether Defendants provided due consideration to objections to the Mandate. In this case Defendants essentially admit that they did not do so. Central to this implicit concession are three facts acknowledged by Defendants themselves: (1) PPACA prohibits the Mandate from going into effect until one year a fter it is
in final, unchanged form. 75 Fed. Reg. at 41726; 76 Fed. Reg. at 46624. (2) Defendants themselves insisted, in August 2011, prior to the comment period,
that they believed the Mandate m ust exist in final form unc hanged from as it was written on August 1, 2011, in order to deliver Mandated item s to college women by August 2012. 76 Fed. Reg. 46621–26. (3) Defendants delivered on their prom ise to ignore comments by finalizing their rule “without change” in February 2012. 77 Fed. Reg. 8725–30 (4) Due to public outcry Defendants then admitted in a new regula tory process in March 2012, 77 Fed. Reg. 16501, that the sa me objections offered in the 2011
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comment period actually did require a lterations that the y had ref used to consider in 2011 but would now pursue.

(5) Yet Defendants continue to im pose their Mandate on Tyndale and others as if

their rule had actually been finalized in August 2011

in a process that

meaningfully considered suggested changes prior to finalization.

If Defendants had not been close-m inded about their Mandate, it would not have been finalized

without change in February 2012, and would s till not be finalized (b ecause the March 2012

process continues indefinitely). Thus if the governm ent had com plied with the AP A, Tyndale

would not be subject to it now; they would be more than a year away from its effect.

Defendants’ mockery of the notice and comm ent process has led to pa lpable injury to

Tyndale. The Mandate’s adoption of HRSA’s prev entive services guidelines against religious

objectors should be vacated and remanded to the Defendant agencies until they actually finalize a

Mandate after meaningful consideration, and then wait an additional year to impose it.

The Mandate also violates the APA for being “contrary to law” and “constitutional right”

under 5 U.S.C. § 706(2)(A) & (B). See Citizens to Pres. Over ton Park, Inc. v. Volpe , 401 U.S.

402, 415–17 (1971). It is contrary to law and constitutional right for all the reasons stated above:

its violation of RFRA, the First Amendment clauses, and the Due Process Clause.

II. TYNDALE WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF PRELIMINARY RELIEF.

Granting preliminary injunctive relief is n ecessary to prev ent Tyndale from suffering

harm that is irreparable and imm inent. See, e.g., CityF ed Fin. Cor p. v. Office of Thrift

Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995) (noting that ‘[t]he basis of injunctive relief in the

federal courts has always been irreparable harm’”) (quoting Sampson v. Murray, 415 U.S. 61, 88

(1974)); Wisconsin Gas Co. v. F.E.R.C. , 758 F.2d 669, 674 (D.C. Cir. 1985) (explaining that

“[t]he injury complained of [must be] of such imminence that there is a ‘cl ear and present’ need

for equitable relief to prevent irreparable harm”).

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Application of the m andate to Tyndale will violate its ri ghts under the Fi rst Amendment

and RFRA. It is settled that “[t]he loss of First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury.” Elrod v. Burns , 427 U.S. 347, 373

(1976); accord Nat’l Treasuries Employees Union v. United States, 927 F.2d 1253, 1254 (D.C.

Cir. 1991) (Thomas, J.). Deprivation of right s secured by R FRA—which affords even greater

protection to religious freedom than the Free Exercise Clause—also constitutes irreparable harm.

See, e.g., Kikumura v. Hurley , 242 F.3d 950, 963 (10th C ir. 2001) (noting that “courts have held

that a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA”); Jolly v.

Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (explaining unde r RFRA that “although the plaintiff's

free exercise claim is statutory rather than constitutional, the denial of the plaintiff's right to the

free exercise of his religious beliefs is a

harm that cannot be ad equately compensated

monetarily”); W. Presbyterian Church v. Bd. of Z oning Adjustment of Dist. of Columbia , 849 F.

Supp. 77, 79 (D.D.C. 1994) (granting a prelim inary injunction against a zoning ordinance

prohibiting a church’s feeding of the homeless based on likely violations of the First Amendment

and RFRA). The District Court in Colorado r eached the same conclusion in the Newland case.

See Newland, 2012 WL 3069154 at *4 (noting “it is well-est ablished that the potential violation

of Plaintiffs’ constitutional and RFRA rights threatens irreparable harm”) (citation omitted).

Finally, these irreparable harm s apply to T yndale already. Tyndale does not qualif y for

any of Defendants’ exemptions or non-enforcement. Tyndale is therefore subject to the Mandate

starting October 1, 2012. VC ¶ 87 . But th eir conscience has forbid them from complying and

violating their commitment to the Bible. VC ¶¶ 88–89. Th us Tyndale faces, today, the certain

prospect lawsuits from the Secret ary of Labor, fines and regulatory penalties. By virtue of the

fact that the law applies to Tyndale now and De fendants have expressed opposition to this very

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motion, Tyndale’s harm is already upon it. De fendants have m ade it clear that they are enthusiastically enforcing the Mandate as of August 1, 2012.27 III. THE BALANCE OF EQUITIES TIPS IN TYNDALE’S FAVOR.
Here, the balance of equities overwhelm ingly favors Tyndale. Granting prelim inary injunctive relief will m erely prevent Def endants from enforcing the Mandate against o ne religious entity. This will simply preserve the status quo between the parties, counseling in favor of granting preliminary relief. Cf. Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) (reasoning that balance of equities tilted aga inst plaintiff where pre liminary injunction would “ upend the status quo”). Defendants have already exem pted a number of churches and church-related entities from the mandate. Even more notably, Defendants have granted what nearly amounts to its own voluntary “injun ction” by granting delayed enforcemen t of the Mandate against a broad array of religious organizations until their first plan years start after August 2013. HHS Bulletin, supra note 1. Om ission of Tyndale from that “safe harbor” is arbitrary and unwarranted in the first place. Defendants cannot possibl e show that applying the Mandate to one other religious entity would “substantially injure” others’ interests.
Balanced against this de minimis injury to Defendants is the real and immediate threat to Tyndale’s and its owners’ in tegrity of religious belief. Tyn dale faces the imminent prospect of penalties that Defendants obstinately declare they intend to apply. In sum, any m inimal harm in not applying the Mandate against one additional entity, in light of Defendants’ willingness to not enforce it a gainst thousands of others, “pale s in comparison to the possible inf ringement upon Plaintiffs’ constitutional and statutory rights.” Newland, 2012 WL 3069154 at *4.
27 HHS, News Release (July 31, 2012), available at http://www.hhs.gov/news/press/2012pres/07/20120731a.html (last visited October 6, 2012).
44

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IV. AN INJUNCTION IS IN THE PUBLIC INTEREST. Finally, a p reliminary injunction will serve the public interest by protecting Tynd ale’s
First Amendment and RFRA rights. The public can have no interest in enforcement of a regulation against a religious co llege that coerces it to v iolate its own faith. See, e.g., Newland, 2012 WL 3069154 at *5 (finding “‘there is a strong public interest in the free exercise of religion even where that interest m ay conflict with [another statutory schem e]’”) (quoting O Centro Espirita Beneficiente Uniao do Ve getal v. Ash croft, 389 F .3d 973, 975 (10th Cir. 2004) (en banc), aff’d and remanded, O Centro, 546 U.S. 418). Furthermore, any interest of Defendants in uniform application of the m andate “is … undermined by the creation of exe mptions for certain religious organizations and employers with grandfathered health insurance plans and a temporary enforcement safe harbor for non-profit organizations.” Newland, 2012 WL 3069154 at *4.
CONCLUSION Tyndale asks the Court to enter a prelim inary injunction against the HHS mandate in accordance with its accompanying motion and proposed order.

Respectfully submitted this 8th day of October, 2012. Attorneys for Plaintiffs:

David A. Cortman, Esq.

ALLIANCE DEFENDING FREEDOM

1000 Hurricane Shoals Road NE

Suite D-1100

Lawrenceville, GA 30043

(770) 339-0774

(770) 339-6744 (facsimile)

dcortman@alliancedefendingfreedom.org

(202)

Kevin H. Theriot, Esq.

Erik W. Stanley, Esq.

gba

ALLIANCE DEFENDING FREEDOM

s/ Matthew S. Bowman _

Steven H. Aden, Esq.

Gregory S. Baylor, Esq.

Matthew S. Bowman, Esq.

(D.C. Bar # 993261)

ALLIANCE DEFENDING FREEDOM

801 G Street NW, Suite 509

Washington, DC 20001

(202) 393-8690

237-3622 (facsimile)

saden@alliancedefendingfreedom.org

ylor@alliancedefendingfreedom.org

mbowm

an@alliancedefendingfreedom.org

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Case 1:12-cv-01635-RBW Document 6 Filed 10/08/12 Page 58 of 58
15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org estanley@alliancedefendingfreedom.org
CERTIFICATE OF SERVICE I hereby certify that the foregoing docum ent was electronically filed with th e Court’s ECF system on October 8, 2012, and was ther eby electronically served on counsel for Defendants who have appeared in the case. Moreover, the docum ent was emailed and mailed to counsel for Defendants as follows:
Ethan P. Davis U.S. Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 6118 Washington, D.C. 20001 (202) 514-9242 Ethan.P.Davis@usdoj.gov
s/ Matthew S. Bowman______________ Matthew S. Bowman
46

 
 Case 1:12-cv-01635-RBW Document 19 Filed 10/25/12 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

TYNDALE HOUSE PUBLISHERS, INC., a Delaware )

Corporation; MARK D. TAYLOR;

)

)

Plaintiffs,

)

)

v.

) Civil Action No.

)

1:12-CV-1635-RBW

KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the United States Department of Labor; TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY;
Defendants.

) ) ) ) ) ) ) Oral Argument Requested ) ) ) ) ) )

REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 1:12-cv-01635-RBW Document 19 Filed 10/25/12 Page 2 of 34
TABLE OF CONTENTS Table of Authorities .............................................................................................................. iii Reply Memorandum of Law ...................................................................................................1
I. Tyndale Is Likely to Succeed on the Merits .........................................................1 A. Tyndale the Bible Publisher Can Exercise Religion.......................................1 B. The Mandate is a Substantial Burden on Tyndale and Its Owners .................8 C. The Mandate Is Not Supported by Even Remotely Compelling Evidence ..11 D. The Government Rebuts None of Its Less Restrictive Alternatives .............16 E. The Mandate Fails Under Tyndale’s Other Claims ......................................19 1. The Mandate Violates the Free Exercise Clause ....................................19 2. The Mandate Violates the Establishment Clause....................................20 3. The Mandate Violates the Free Speech Clause.......................................20 4. The Mandate Violates the Due Process Clause ......................................21 5. The Mandate Violates the Administrative Procedure Act ......................23
II. Tyndale Will Suffer Irreparable Harm In the Absence of Preliminary Relief....24 Conclusion ............................................................................................................................25
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Case 1:12-cv-01635-RBW Document 19 Filed 10/25/12 Page 3 of 34
TABLE OF AUTHORITIES
Cases
Braunfeld v. Brown, 366 U.S. 599 (1961)..................................................................................................18
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) ........................................................................................ 12-16
Cal. Democratic Party v. Jones, 530 U.S. 567 (2000)..................................................................................................14
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)..................................................................................................16
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)............................................................................................12, 14
Coalition for Responsible Regulation v. E.P.A. 684 F.3d 102 (D.C. Cir. 2012) ..................................................................................16
Colautti v. Franklin, 13439 U.S. 379 (1979)..............................................................................................22
Corp. of the Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987)....................................................................................................3
Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir. 1985)......................................................................................24
Citizens United v. Federal Election Comm’n, 130 S. Ct. 876 (2010) ..................................................................................................3
Colo. Christian U. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) ................................................................................20
Commack Self-Service Kosher Meats, Inc. v. Hooker, 800 F. Supp. 2d 405 (E.D.N.Y. 2011) ..................................................................2, 21
EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) .............................................................................. 2, 4-6
Employment Div. v. Smith, 494 U.S. 872 (1990)..................................................................................................19
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Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999)......................................................................................19
Gidatex, S.R.L. v. Campaniello Imps., Ltd., 13 F. Supp. 2d 417 (S.D.N.Y. 1998).........................................................................24
Gjyzi v. Ashcroft, 386 F.3d 710 (6th Cir. 2004) ....................................................................................23
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).............................................................................8, 13-14, 18-19
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) ..................................................................................................7
Humphrey v. Baker, 848 F.2d 211 (D.C. Cir. 1988) ..................................................................................22
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ............................................................................10, 17
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217 (3d Cir. 2007).................................................................................... 6-7
Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989)..................................................................................................16
McClure v. Sports and Health Club, Inc., 370 N.W.2d 844 (Minn. 1985)............................................................................ 2, 4-5
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) ............................................................................10
Mistretta v. United States, 488 U.S. 361, 372 (1989)..........................................................................................22
Monell v. Dept. of Social Services, 436 U.S. 658 (1978)....................................................................................................3
Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30 (D.D.C. 2000) ..............................................................................24
Newland v. Sebelius, 2012 WL 3069154 (D. Colo. July 27, 2012) .............................................. 1, 9-11, 25
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Case 1:12-cv-01635-RBW Document 19 Filed 10/25/12 Page 5 of 34
Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) .......................................................................................10, 22
Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374 (9th Cir. 1985) ..................................................................................24
O’Brien v. U.S. Dep’t of Health & Human Srvs., 2012 WL 4481208 (E.D. Mo. 2012)................................................................... 1-2, 9
Quince Orchard Valley Citizens’ Ass’n v. Hodel, 872 F.2d 75 (4th Cir. 1989) .......................................................................... 1, 3, 9-11
Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988)..................................................................................................17
Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011) ......................................................................................10
Sherbert v. Verner, 374 U.S. 398 (1963)........................................................................................3, 10, 17
Spencer v. World Vision, Inc., 633 F.3d 723 (9th Cir. 2011) ......................................................................................6
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ............................................................................ 2, 4-5
Thomas v. Collins, 323 U.S. 516 (1945)..................................................................................................13
Thomas v. Review Board, 450 U.S. 707 (1981)...................................................................................... 1, 3, 9-11
Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964 (2d Cir. 1995)........................................................................................24
United States v. Lee, 455 U.S. 252 (1982).................................................................................... 3, 9-10, 18
United States v. Playboy Entm’t Group, 529 Y.S. 803 (2000)..................................................................................................14
United States v. Wilgus, 638 F.2d 1274 (10th Cir. 2011). ...............................................................................17
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Case 1:12-cv-01635-RBW Document 19 Filed 10/25/12 Page 6 of 34
Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2001) ..................................................................................6
Whitman v. Am. Trucking Ass’ns, 4531 U.S. 457 (2001)................................................................................................22
Wisconsin v. Yoder, 406 U.S. 205 (1972)..................................................................................................10
Statutes 26 U.S.C. § 4980D ..................................................................................................................9 26 U.S.C. § 4980H ..................................................................................................................9 29 U.S.C. § 1132.....................................................................................................................9 42 U.S.C. § 300gg-13 ..................................................................................................... 19-23 42 U.S.C. § 2000bb et seq................................................................................. 1, 5, 13, 16-17 42 U.S.C. § 2000cc-5 ...........................................................................................................1,5
Regulations 75 Fed. Reg. 34,538 ..............................................................................................................12
Rules FED. R. CIV. P. 12(b)(6) ..........................................................................................................9
Other Authorities
HHS, HealthCare.Gov, “Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans, (June 14, 2010) , available at http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-healthplan-you-have-grandfathered.html. ...........................................................................12
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Case 1:12-cv-01635-RBW Document 19 Filed 10/25/12 Page 7 of 34 Inst. of Med., Clinical Preventive Services for Women:
Closing the Gaps (2011), available at http://www.nap.edu/catalog.php?record_id=13181 .............................. 15
Laycock, Douglas & Oliver S. Thomas, “Interpreting the Religious Freedom Restoration Act,” 73 Tex. L. Rev. 209, 224 (1994) ...................................................17
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REPLY MEMORANDUM OF LAW I. TYNDALE IS LIKELY TO SUCCEED ON THE MERITS.
A. Tyndale the Bible Publisher Can Exercise Religion. There are four elements to a RFRA claim: Is the plaintiff exercising religion? Is the law a substantial burden on that exer cise? Then, under strict scru tiny, can the governm ent show a compelling interest regarding that specific burde n? And, can the governm ent prove its approach is the least restrictive m eans of achieving its interest? 42 U. S.C. § 2000bb-1. In this case the government knows it will fail the strict scrutiny test, just as it did in Newland v. Sebelius, 2012 WL 3069154 at *1 (D. Colo. July 27, 2012). Thus the government’s only path to sustain the Mandate is to propose the unprecedented view that Tyndale, a thoroughly religious Bible publisher, cannot even exercise religion and faces no substantial burden thereon. This argument failed to prevent a preliminary injunction in Newland. It fails here even moreso. The government incorrectly inform s this Court that som ehow Newland, which granted the same preliminary injunction that Tyndale is requesting here, did not even decide whether the Mandate substantially burdens the free exercise of religion of a com pany and its owners. But Judge Kane not only ruled on that question, he rejected “out of hand” the government’s position: [T]he government argues that because Plai ntiffs routinely contribute to other schemes that vio late the re ligious beliefs alleged here, the preventive care coverage mandate does not substantially burden Plaintiffs’ free exercise of religion. This argument requires impermissible line drawing, and I reject it out of hand. See Thomas v. Review Bd. of Ind. Emp't Sec., 450 U.S. 707, 715, 101 S.Ct . 1425, 67 L.Ed.2d 624 (1981).” Newland, 2012 WL 3069154, at *9. Thus the governm ent is wrong when it says “the first court to decide the merits” of these questions was the cont rary decision in O’Brien v. U.S. Dep’t of Health & Human Srvs., 2012 WL 4481208 (E.D. Mo. 2012). Gov. Br. at 3. The government has no basis for asserting that Tyndale “is not . . . a ‘religious organization,’ . . . under RFRA.” Gov. Br. at 8. RFRA contains no cat egory of “religious organizations” to which it applies. RFRA inst ead protects “any” “exercise of religion.” 42 U.S.C. § 2000bb-1, as amended by 42 U.S.C. § 2000cc-5(7)(A). Counsel for the governm ent
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have created a fictitious category for RFRA contrary to the language Congress adopted. No law or case supports the governm ent’s novel proposition that “Tyndale is a fo r-profit employer that cannot ‘exercise religion’ under RF RA and the Free Exercise Clause .” Gov. Br. at 2. There is no business or corporation “exception” in RFRA or the in Free Exercis e Clause. The government cites cases f inding that some companies, though they do exerci se religion, will still be subject to certain laws if the governm ent carries its legal showing. None of those cases say that “free exercis e of relig ion” under RFRA and the Firs t Amendment are incap able of being exercised just because com pany is or ganized as a for-pro fit. Not even O’Brien adopted the government’s unprecedented view. 2012 WL 4481208 at *4 (declining to reach the question).
Tyndale cites m ultiple cases showing exac tly the opposite: a for-profit com pany can exercise religion and bring free exercise claim s on behalf of itself or its ow ners. In this respec t the government’s claim is false that “none of” th e cases cited by Tyndale “held that a for-profit corporation may exercise religi on.” Gov. Br. at 11. Multiple cases did so. The Minnesota Supreme Court called the governm ent’s position “conclusory” and “unsupported” and ruled that a health club and its owners could a ssert free exercise of religion claims. McClure v. Sports and Health Club, Inc., 370 N.W.2d 844, 850 (Minn. 1985). The Nint h Circuit allowed two for-profit corporations to assert free exercise claims on behalf of their owners. Stormans, Inc. v. Selecky , 586 F.3d 1109, 1119–20 & n.9 (9th Cir. 2009) (pharm acy and its religious owners); EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 620 n.15 (9th Cir. 1988) (manufacturer on behalf of its religious owners). In Commack Self-Service Kosher Meats, Inc. v. Hooker, 680 F.3d 194 (2d Cir. 2012), the Court allowed a kosher deli and but cher (“Inc.”), and its owners, officers, and shareholders, id. at 200, to bring Free Exer cise and Establishment Clause claims, and the Court subjected each claim to the applicab le level of scrutiny rather than declaring that the for-profit business and its owners were not capable of exercising religion. The government’s position here would ban Jewish people from exercising religion through preparing kosher foods for profit. See also Tyndale Br. at 11 (citing multiple cases recognizing and sometimes vindicating free exercise of religion claims brought by for-profit companies and their owners).
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The United States Supreme Court has repeatedly recognized that free exercise of religion claims can be brought to protect m oney-making and employment activities. Sherbert v. Verner, 374 U.S. 398, 399 (1963) (an em ployee’s religious beliefs were burdened by the governm ent’s refusal to give her unemploym ent benefits); Thomas, 450 U.S. at 709 (sam e); United States v. Lee, 455 U.S. 252, 257 (1982) (an em ployer exercised religious belief s and was sufficiently burdened by having to pay taxes for objectionable ite ms). The Court has emphasized that “First Amendment protection extends to corporations,” and a First Am endment right “does not lose First Amendment protection simply because its sou rce is a co rporation.” Citizens United v. Federal Election Comm’n, 130 S. Ct. 876, 899 (2010); see also Monell v. Dept. of Social Services, 436 U.S. 658, 687 (1978) (“corporations shou ld be treated as natural persons for virtually all purposes of constitutional and statutory analysis”); Tyndale Br. at 13 (citing multiple cases recognizing the ability of co rporations to bring free exercise claims). Justice Brennan’s concurrence in Amos observes it possible “that some for-profit activities could have a religious character.” Corp. of the Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 345 n.6 (1987).
The government’s error is that it takes non-RFRA rulings—which recognize that companies can exercise religion, but then hold th at some government requirements (unlike this Mandate) are justified anyway—and uses these statem ents to contrad ict those sam e courts b y saying the companies and their owners are incapable of exercising religion in the first place. The government does this because it knows that th e Mandate here can not pass R FRA’s strict scrutiny. But none of the cases the governm ent cites for this novel idea say that commercial employers cannot exercise religion. In this re gard the government directly mischaracterizes Lee, Gov. Br. at 1, where the Suprem e Court decided that an Amish em ployer does exercise religion and a tax does sufficiently burden that religion. 455 U.S. at 257. Only thereafter did the Court apply a balancing test (not RF RA’s standard) to uphold the unive rsal tax (not the m uch more burdensome, more arbitrary Mandate at issue here). Id. at 261. But Lee is clear that the Cour t
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must apply the applicable scruti ny level. It cannot refuse to do so on the th eory that the employer is not capable of exercising religion in the first place.1
The government further contradicts caselaw wh en it contends Tyndale ’s owners have no free exercise interest that Tyndale can assert here. Stormans, Townley, McClure and the other cases referenced above all recognize that when the government burdens a business in violation of the religious owners’ b eliefs, that in itse lf is a burden on the religious be liefs of the owners. Those cases ruled that because th e owners exercise their relig ion through the com pany, a government burden impacts the owners’ religious ex ercise to the sam e extent. The governm ent simply disagrees with Stormans, Townley, McClure and these other cases. But it does not even cite a case holding the opposite. The governm ent is left to merely recite corporate law distinctions between a com pany and is owners. Th is is irrelevant, because in free exercise of religion contexts the question is not whether the company and its owners are identical, the question is whether for moral and religious purposes a governm ent coercion on an owner’ s personal business is a violation of his own beliefs. Every case to discuss this question answers it affirmatively. The government claims that following these cases “would expand R FRA’s scope in an extraordinary way,” Gov. Br. at 16, but Stormans, McClure and the other cases represent settled free exercise law.2 It is the government’s view that would radically alter free exercise.
The government’s novel argum ent is even less applicable here, because Tyndale is not just a com pany with religious owners, it is a thoroughly religious com pany. The governm ent does not and cannot rebut any of Tyndale’s f actual allegations in that regard. See Verified Complaint (“VC”) ¶¶ 21–69. To this extent the government concedes the “sincerity” of
1 The government similarly misrepresents McClure, Gov. Br. at 12 n.7. That court called it “unsupported” to say a sports club and its owners cannot exercise religion. 370 N.W.2d at 850. The court then applied its scrutiny level. 2 The government’s melodramatic warnings about authorizing “millions of shareholders of publicly traded companies [to] assert RFRA claims” are entirely unfounded. Gov. Br. at 16. Tyndale is not publicly traded and has four shareholders. It is n early entirely owned by one religious non-profit entity that its founder created to funnel Tyndale’s funds to charity; and by one entity h e created to maintain its religious identity; and a small factio n is owned by two small trusts benefitting the founder’s widow and children. VC ¶¶ 41–62. Stormans’, McClure’s and other cases’ recognition that a company can assert its religious owners’ free exercise claims have opened the door to exactly zero claims by “millions of shareholders,” and the government cites no case showing otherwise.
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plaintiffs’ beliefs. Gov. Br. at 2, 14. But to concede the sincerity of Plaintiffs’ beliefs is to concede that they actually possess religious beliefs. This is incompatible with the government’s position that Tyndale and its owners do not exercise religion through their company.
The government cannot claim that Tyndale’s owner, Tyndale House F oundation, is not religious, because it is in fact a religious non- profit. The government has already recognized as much through its “religious em ployer” exception and its non-enforcem ent safe harbor. Since companies can bring religious exercise claims on behalf of their religious owners, that fact alone precludes the governm ent’s argument that Tyndale cannot bring its free exercise claim s. See, e.g., Stormans, 586 F.3d at 1119–20. There is no way to distinguish between this case, where Tyndale asserts that the burden on it violates th e beliefs of itself and its owner Tyndale House Foundation, and Stormans, Townley, and McClure, where the courts recognized that governm ent burdens on those incorporat ed businesses constituted to the same extent a sufficient burden on the beliefs of their religious ow ners. The gover nment even proposes the breathtaking view that because the Foundation is not an “individu al,” the burden on its relig ious beliefs is “further attenuate[ed]” in a way that ne gates its free exercise claim. Gov. Br. at 16. A dopting this approach would let the governm ent force even non- profit entities to viol ate their beliefs just because they are not individuals. This flies in the face of Free Exercise Clause caselaw.
The government incorrectly contends that a wholly immaterial statute to this case governs RFRA’s protection of religious exercise, namely Title VII employment discrimination’s narrow category of “religious corporati ons.” This view is doubly wrong. First, by their plain texts, RFRA and the First Amendment do not limit their protections to “religious corporations” as does Title VII. They protect “any” free exercise of religion. 42 U.S.C. § 2000bb-2(4), as amended by 42 U.S.C. § 2000cc-5(7)(A). The fact that Cong ress created an entirely different category in Title VII in no way m eans that RFRA is lim ited to that category. Quite the opposite: Congress could have, but did not, adopt th e narrower category it previously used in Title VII. Congress instead chose to protect “any” free exercise in RFRA. Congress also said in RFRA that it applies to other statutes even if there is a conflict. 42 U .S.C.A. § 2000bb-3. But Title VII is irrelevant.
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See also Townley, 859 F.2d at 619–20 (after deciding com pany was not “religious corporation”
under Title VII, it could still bring free exercise claims on behalf of its owners).
Second, Tyndale is a “religious corporation” under Title VII . No case says that being
for-profit alone disqualifies a com pany from being a religious corporation under T itle VII. On
the contrary, multiple circuits use a non-exclus ive, multi-factor test in which for-profit statu s is
only one factor, “no t all factors will be relevan t in all cas es, and the weight giv en each factor
may vary from case to case.” LeBoon v. Lancaster Jewish Cmty. Ctr. A ss’n, 503 F.3d 217, 226–
27 (3d Cir. 2007). The governm ent failed to cite this test in its brief. Instead it cites only two cases, one of which is not even a Title VII case. 3 The Ninth Circuit did not exclude for-profits
from Title VII’s exemption in its three -way split-decision Spencer v. World Vision, Inc. , 633
F.3d 723 (9th Cir. 2011). Judge O’Scannlain followed the Supr eme Court in leaving the for-
profit status question open, while Judge Kleinfeld declared that th e relevant inquiry is how an entity spends its m oney—not its non-profit or for-profit status. Id at 734 n.4, 746. 4 Here,
Tyndale directs a tithe of its pre-tax profits, nearly all of its dividends, and m illions in other
payments to religious charities. VC ¶¶ 35–36, 45–50. The company is entirely structured so that
its money either furthers evangelization through its publishing, or funds religious charity with the
remainder.
3 The government’s citation to University of Great Falls v. N.L.R.B., 278 F.3d 1335 (D.C. Cir. 2002) is not relevant. That case considered only the meaning of a “substantially religious” exception to the National Labor Relations Act, not Title VII. Id. at 1340–41. And it explicitly exercised “constitutional avoidance” so as not to re define the free exercise of religion. Id. 4 The government is incorrect that “the Ninth Circuit has explicitly held that a for-profit entity can never qualify for the Title VII exemption. See Spencer v. World Vision, Inc., 633 F.3d 723, 734, 748 (9th Cir. 2011).” Gov. Br. at 10. World Vision said no such thing. Th e panel was sp lit three ways. Of the two judges agreeing on the holding— finding that World Vision was in fact religious—Judge Kleinfeld explained that non-profit or for-profit status has almost nothing to do with the question, and instead this factor asks whether the thrust of the organization’s goals and activities are financial gain or religious: “For profit’ and ‘nonprofit’ have nothing to do with making money. As the CEO of National Geographic said, ‘[n]onprofit means non-taxable—it doesn't mean you don't make a profit.’” 633 F.3d at 746 (Kleinfeld, J., concurring). Judge Kleinfeld also proposed that it would be a “narrowness problem” if “[a]bsence of . . . nonprofit status would defeat the exemption.” Id. at 745. His focus was on how money and profit are used, not on corporate status. Id. at 746. Judge O’Scannlain’s opinion similarly declared that non-profit status was significant but not dispositive (noting that the Supreme Court left the question open), and found it significant specifically regarding where the organization directs its profits. Id at 734 & n.4. Under both Judge Kleinfeld’s and Judge O’Scannlain’s view, it is highly relevant here that Tyndale’s proceeds and even a substantial portion of its pre-tax income are directed to religious charity. This is consistent with other cases’ flexible approach.
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Tyndale’s structure is thoroughly religious, and no case has rule d that such a com pany is not religious. Nearly all the flexible factors used interpret Title VII counsel in Tyndale’s favor: its religious purpose in its f ounding documents; its religious goa l since its inception to the present; its thoroughly religious po licies; its statement of faith requirement for board m embers; its ownership by a religious non-profit entity; its massive institutional charitable giving; its direction of nearly all its proceeds to its non-profit religious owner. Cf. LeBoon, 503 F.3d at 226.
Whether Tyndale is a religious co rporation under Title VII is ultim ately irrelevant here, because the plain lang uage of RFRA and the First Amendment protect all free exercis e of religion, not only for “religious or ganizations” or “religious cor porations.” But if the Court considers the question germane, Tyndale passes the Title VII test.
The government wrongly contends that under Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC , 132 S. Ct. 694, 706 (2012), “a co mpany must be a ‘religious organization’ to assert free exerci se rights.” Gov. Br. at 16. This principle does not exist in Hosanna-Tabor or in any other case. Th ere is no limit in the First Amendment or RFRA that restricts exercise of religion to only the governm ent’s arbitrarily-defined category of religious organizations (which, under its “religious employer” test, enco mpasses only churches). Free exercise claims have been allowed to proceed many times in the Supreme Court and other cases cited above on behalf of a com pany or its owners, em ployers, employees, and other business interests. The fact that Hosanna-Tabor says that religious organizations are protected does not suggest or imply the negativ e view that if one is not a church the Free Exer cise Clause doesn’t apply. Hosanna-Tabor’s discussion related to a context not relevan t to this cas e: the fact that certain kinds of organizations receive special prot ection in “freedom of a ssociation” to protect state interference in their internal governance. 123 S. Ct. at 706. It did not even im ply that only “religious organizations” have free exercise rights generally, and no cas e says so. Moreover, Tyndale is unquestionably a religious organization under any rational definition. Tyn dale is and has always been an evangelism -focused Bible pub lisher that directs is proceeds to religious charity. All the cases that Defe ndants cite saying that the Firs t Amendment protects religious
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groups would cover Tyndale, and those cases impl y that to have and exert religious beliefs itself makes an organization religious for free exerci se purposes. The governm ent is attem pting to impose a “r eligious organization” category, and a nar row definition thereof, where it doe s not exist in RFRA or the First Amendment. No case has said free exercise of religion does not apply to a “for-profit” entity. Plenty have said otherwise.
The government finally resorts to the scare tact ic of claiming that if for-profit companies can exercise religion, this would let a com pany “impose its owner’s religious beliefs on its employees in a way that den ies those employees the protection of general laws,” and “would permit for-profit companies and their shareholders and officers to become laws unto them selves, claiming countless exemptions from an untold num ber of general com mercial laws . . . .” Gov. Br. at 2, 10. This is the slippery slope ar gument that the Supre me Court has rejected under RFRA as the “classic rejoinder of bureaucrats throughout history” that should not be heeded. Gonzales v. O Centro Espirita Beneficente U niao do Vegetal , 546 U.S. 418, 436 (2006). The above-cited cases have allowed businesses and thei r owners to assert free exercise claim s without any danger ensuing to so ciety or civil rights. On th e contrary, the only civil rights protections in danger in this case are the ones pr otected by the First Amendm ent, if this Court adopts the government’s unprecedented view that re ligion cannot be ex ercised in business. This case has nothing to do with “im posing” Tyndale’s beliefs on a nyone—Tyndale is not asking for the ability to force anyone to do anything. It is the governm ent that is im posing its views to force Tyndale to violate the very Bible that it publishe s. Title VII is in no danger by this Court following the view th at corporations can bri ng free exercise claim s. Ruling that a Bible publisher can exercise religion in this cas e does not s trike down any laws, and the federal government is still able to try to justify its law under the strict scrutiny test. The governm ent knows that while Title VII has survived, this Mandate will not.
B. The Mandate is a Substantial Burden on Tyndale and Its Owners. Not only does the Mandate burden T yndale’s and its owners exercise of religious beliefs, but the burden is “substantial.” The governm ent argues that if a burden is m orally “indirect,” as
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it defines that concept, then th e burden is not “substantial.” G ov. Br. at 17. This is false on many levels. First, there is nothing indirect ab out the Mandate. It orders Tyndale to provide coverage that Tyndale says violat es its religious beliefs. Then it subjects Tyndale to m onetary fines and lawsuits by the Departm ent of Labor forcing it to violate its beliefs. 26 U.S.C. § 980D(a), (b); 26 U.S.C. § 4980H; 29 U.S.C. § 1132(a). That is not even arguably indirect. When Defendants Solis and her Departm ent sues Tyndale to coerce com pliance with the Mandate, it will sue Tyndale directly, not “indirectly.”
The only way the governm ent can claim this Mandate is “indirect” is by inviting the Court to engage in improper moral theologi zing, and rejecting the specifically pleaded allegations that Tyndale does in fact object to coverage of these item s. The governm ent argues that the moral burden is indirect b ecause Tyndale won’t use abortifacients, it will only cov er other people’s use. T his contradicts the comp laint in violation of Fed. R. Civ. P. 12(b)(6), because Tyndale pled that the coverage, not merely its use, violates its beliefs. VC ¶¶ 39, 51, 59, 62, 75. The governm ent invites this Court to engage in moral theology line drawing that the Supreme Court has explicitly rejected. In Thomas, where the government deemed the armament manufacturing activity to which th e plaintiff objected “sufficiently insulated” from his objection to war. 450 U.S. at 715. “Thom as drew a line, a nd it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs . . . .” Id. In Lee, likewise, the Court rejected the governm ent’s attempt to insist that despite the plaintiff’s sincerity of beliefs, there was no substantial burden on “the in tegrity of the Am ish religious belief or observance.” 455 U.S. at 257. Lee rejected the same proposal the governm ent offers here, because it would be an interpretation of faith that is “not within ‘the judicial function and judicial competence’” Id. (quoting Thomas, 450 U. S. at 716). As a result of this clear Suprem e Court caselaw, Newland rejected the governm ent’s view “out of hand.” 2012 W L 3069154, at *9. In contrast, the District Court in O’Brien violated Thomas and Lee.
The Supreme Court and the D.C. Circuit declare that even where a burden is “indirect” it is still substantial, if the law merely imposes “substantial pressure on an adherent to modify his
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behavior and to violate his beliefs.” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (quoting Thomas, 450 U.S. at 718). As explained above, the Mandate here is as direct as a requirement can be. But in Lee, the Suprem e Court found a suffi cient burden in a less direct circumstance. Tyndale is being forced to buy objectionable coverage directly, whereas in Lee the plaintiff paid taxes that the govern ment spent objectionably. In Sherbert, there was no “direct” order to work on the S abbath, but the burden was substantial merely because the plain tiff was denied unemployment benefits for refusing such work. 374 U.S. at 404 (reasoning that the law “force[d] [plaintiff] to choose between following the precepts of her religion and forfeiting benefits”). In Thomas, 450 U.S. at 717–18, likewise, there wa s no “direct” government order to manufacture armaments, instead the plaintiff was denied unem ployment benefits. 450 U.S. at 718 (“the compulsion may be indirect [but] the infringement upon free ex ercise is nonetheless substantial”). Here “the compulsion” is direct. Even mild forms of “direct” pressure constitute a substantial burden where, as here, the “law affirm atively compels.” Wisconsin v. Yoder, 406 U.S. 205, 208 (1972) (parents were “fined the sum of $5 e ach”); see also Lee, 455 U.S. at 254 ($27,000 penalty).
The government makes a false statem ent of fact when it insists that T yndale “’routinely contribute[s] to other’ schem es that present the s ame conflict with their religious beliefs alleged here present the sam e conflict with their r eligious beliefs alleged here,” relying o n Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011), and Seven-Sky v. Holder, 661 F.3d 1, 5 n.4 (D.C. Cir. 2011). This “routin ely contribute to other sch emes” rationale constitutes im permissible line drawing under Thomas, 450 U.S. at 715 (as cited in Newland, 2012 WL 3069154, at *9). This is also factually false because the burde n from the “individual m andate” in Mead and Seven-Sky was merely a tax, and was not a command to do something unlawful. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2595–97 (2012) (“individual mandate” is s imply a tax, is m ild in cost, is not punitive, involves no other penalties, and non-compliance is not “illegal”). Here the government directly makes it unlawful for Tyndale to not provide abortifacient coverage, and it imposes massive rather than mild financial penalties for not doing so, along with direct lawsuits
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compelling Tyndale to com ply. Tyndale is not participating in any “sim ilar” scheme. Taxes

spent on abortifacients involve none of the directness of this Mandate’s buy-coverage-for-

private-citizens legal requirement, or its rendering of Tyndale’s activity unlawful, or the kinds of

penalties in this Mandate. Tyndale “drew a line” between paying mere taxes, and being forced to

buy abortifacient coverage directly for other citizens, “and it is not for us to say that the line

[they] drew was an unreasonable one. Courts

should not undertake to dissect religious

beliefs . . . .” Thomas, 450 U.S. at 715. The burden is substantial.

C. The Mandate Is Not Supported by Even Remotely Compelling Evidence.

The government’s interests do not rem otely satisfy the compelling interest test, because:

(1) the government cannot claim that the Mand ate’s specific goals are “com pelling” when it

freely lets 191 million Americans, and most large employers like Tyndale, out of th e Mandate;

(2) none of the evidence even purports to show an urgent ne ed for merely morning after pills,

“ella” and IUDs (the only things Tyndale objects to covering), rather than contraception as a

whole; (3) none of the evidence sho ws that the generic benefits of contracep tion for health an d

equality will actually be achieved by the Mandate itself; and (4) none of the evidence shows that

if Tyndale is exempted, a causal connection exists showing grave harm as a result.

First, the governm ent does not really beli eve that wom en’s health and equality are

“compelling interests” in this case, because through PPACA and De fendants’ own regulation s

the government is cont ent to omit two-thirds of the nation—191 m illion Americans—from the

health and equality it claims flow from this exact Mandate. See Newland, 2012 WL 3069154 at

*1. Moreover, the governm ent has allowed thous ands of religious en tities one year of non-

enforcement from this very Mandate. It cannot claim that it has a compelling interest to refuse a

preliminary injunction to Tyndale. The govern ment decided that som e interests are com pelling

enough to impose on grandfathered health plan s encompassing 191 m illion Americans, and

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encompassing “most” large em ployers such as T yndale, but this Mandate is not one of the m.5 Counsel for Defendants are actually contradicting this decision by Congress when they tell this Court that the Mandate is com pelling. “[A] law cannot be regarded as protecting an interest ‘of the highest order’ when it leav es appreciable dam age to th at supposedly v ital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 520 (1993). The government in this case has left far m ore than “appreciable” damage to its “supposedly vital” interest. It has no basis to claim Tyndale’s 260 e mployees represent a “paramount” need to impose the Mandate, while 191 million other Americans present no such need. Tyndale’s em ployees represent a m ere fraction of a “m arginal percentage point” of persons supposedly within the governm ent’s interest—this cannot raise a compelling interest. Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2741 (June 27, 2011).
The government’s attempt to distinguish Lukumi by claiming that the grandfathering exception “is not limited to the preventive services coverage regulations” is irrelevant. Gov. Br. at 25. It doesn’t m atter how the government characterizes its non-application of the Mandate to two-thirds of the nation, because the question is not how the exclusion is labeled, the question is whether the rule “leaves appreciab le damage to th at supposedly vital interest.” In f act, the government admits that the interest behind the Mandate can be and has been trum ped (“balanced”) by “other significant interests supporting the com plex administrative scheme created by the ACA.” Id. The gov ernment therefore admits that if another compelling interest exists, the Mandate should give way. RFRA requires that Tyndale’ s religious exercise be considered no less compelling an interest . The governm ent cannot, under RFRA, dee m “complex administrative” interests sufficient to trum p the Mandate, but re ligious exercise insufficient. By dee ming administrative interests sufficient to relieve 191 m illion Americans
from the Mandate and to give em ployers a “rig ht” to m aintain plans outside the Mandate (75
5 HHS, HealthCare.Gov, “Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans,” available at http://www healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered html (last visited October 5, 2012).
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Fed. Reg. 34,538, at 34,540, 34,558, 34,562, & 34,566), the government has conceded that
the Mandate is not a compelling interest “of the highest order,” Lukumi, 508 U.S. at 520, so as to deny Tyndale’s “unalienable ri ght” to a RFRA exem ption, 42 U.S.C. § 2000bb. Other “orders” of interests are higher than the Mandate, by the government’s own admission. Thus the Mandate does not implicate “the gravest a buses, endangering param ount interests,” so as to satisfy RFRA’s exemption requirement. See Thomas v. Collins, 323 U.S. 516, 530 (1945).
Second, the government’s “evidence is not co mpelling” because it does not even address Tyndale’s situation. Id. at 2739. Tyndale provides its em ployees with all contraception except the morning after pill (e.g., “Pla n B”), “ella,” and IUDs. VC ¶¶ 89, 136. Every piece of the government’s evidence, however, purports only to say that contraception in its en tirety may cause health benefits for wom en. But Tyndale is not refusing to cover contraception writ large. Tyndale is providing its e mployees nearly all contraception. The governm ent does not even point to evidence s aying that the f ailure to provide these few item s causes com pelling harm. Therefore the government’s alleged interest has no nexus to this case—it has failed to demonstrate an interest tailored to “the particular claimant.” O Centro Espirita, 546 U.S. at 430– 31. The government also does not show scientific evidence showing a “caus[al]” nexus between their Mandate and the grave in terest it supposedly serves. Brown, 131 S. Ct. at 2739. It cannot meet this burden against Tyndale showing merely a correlation between good effects and contraception (not even correlating to the Mandate itself). Id. The governm ent does not even purport to show health effects with respect to morning after pills, “ella,” and IUDs alone, which are the only items at issue in this case. The government is not permitted to claim “a compelling interest in each marginal percentage point by which its goals are advanced.” Id. at 2741. The government claims that wom en suffer inequality in preventive services costs generally, but Tyndale provides all mandated preventive servi ces and even all m andated contraception and sterilization, with the exception of morning after pills, “e lla” and IUDs. The governm ent cites zero studies showing that wom en receiving 99.9% of preventive services, as Tyn dale’s plan beneficiaries do, still suffer inequality to a compelling extent justified by this Mandate.
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Third, the governm ent admits that 28 states have already i mposed some form of a mandate of contraceptive coverage, but it prov ides this Court with zero studies showing that even one of those m andates has actually led to a reduction in unintended pregnancy a mong employees. See United States v. Playboy Entm’t Group, Inc. , 529 U.S. 803, 821 (2000) (“Without some sort of field survey, it is impossible to know how widespread the problem in fact is”). The governm ent cannot claim that wom en’s health and equality are advanced by the availability of contraception to reduce unint ended pregnancy, but fail to produce any studies showing that a m andate on employer insurance actually achieves these goals. The governm ent likewise admits that a vast majority of employers already offer contraceptive coverage. Thus the Mandate is not yielding all the benefits of contraception, sin ce it is already 90% or m ore accessible. The governm ent therefore does n ot show that this particular Mandate coercing Tyndale is “actually necessary to the solution.” Brown, 131 S. Ct. at 2738.
Nor does the governm ent “specifically identify an ‘actual probl em’ in need of solving” by the Mandate. Id. No studies show an “actual problem” of women being less healthy and less equal at workplaces where abortifacients that Tyndale objects to are not covered. But RFRA imposes a burden on the government to satisfy st rict scrutiny, including at the prelim inary injunction stage, O Centro Espirita, 546 U.S. at 428–30, and it must present compelling evidence to do so, Brown, 131 S. Ct. at 2739. It has not done so . Instead the government’s alleged interests reside in th e generic categ ories of women’s health and equality. Defendants cannot propose such a generalized interest “in the abstract,” Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000). RFRA’s test can onl y be satisfied “through appli cation of the ch allenged law ‘to the person’—the particular claim ant,” not through “broadly form ulated interests.” O Centro Espirita, 546 U.S. at 430–32; see also Lukumi, 508 U.S. at 546. The governm ent argues against this clear directive from O Centro to tailor its interest to the plaintiff, but this Court should decline to follow the government’s invitation to ignore Supreme Court precedent.
Fourth, the government’s evidence nowhere show s that absent this Mandate on Tyndale, grave health consequences will result. The government does not connect health effects of
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contraception generally (much less regarding abortifacients alone) with any studies showing that the Mandate yields those effect s on Tyndale’s beneficiaries. In other words, even if contraception did generally provide health to women, the government hasn’t shown that the lack of this Mandate of abortifacients is yielding an “actual problem” at Tyndale. Brown, 131 S. Ct. at 2738. To cite one of a m ultitude of examples, recited more fully in Tyndale’s initial brief: the government incorrectly asserts that “m any women forgo recomm ended preventive services, including contraceptive services, because of co st-sharing imposed by thei r health plans,” citing the Institute of Medicine Report6 at 19–20 and 109. Gov. Br. at 23. This is sim ply unsupported with respect to contraception (to say nothing of abortifaiceints). The IOM report at pages 19–20 and 109 do not even claim that any of its studies show wom en forgo contraceptive services specifically because of cost; the report only references “mammograms and Pap smears,” and says that women already using contraception might use something more permanent. This is a failure to provide compelling evidence that the Mandate will yi eld any result at all. It m ight be that if women want these products they are obtaining them on their own, or are able to amply afford it, and that Tyndale’s beneficiaries are amply protected through Tyndale’s offering of all preventive services and all contraception be sides abortifacients. The govern ment presents no studies even purporting to prove a “causal” connection to the contrary. Brown, 131 S. Ct. at 2739. There is no reason to think women at em ployers with religious objections experience health or equality consequences absent the Mandate. If they did, there would be no justification for the government to voluntarily subject 191 million Americans to such “grave” harm. The government “bears the risk” of this “uncertainty” and “am biguous proof will not suffice,” id., nor will its generic assertions of health and equality.
The government falsely declares that even though its evidence in the IO M report doesn’t show a causal connection either between abortifaci ents and grave health consequences, or this Mandate and the prevention of grave health con sequences, the “scientific recommendations are

6 Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps http://www nap.edu/catalog.php?record_id=13181 (last visited October 5, 2012).

(2011), available at

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entitled to deference” under Chevron U.S.A., Inc. v. Natu ral Res. Def. Council, Inc. , 467 U.S. 837, 843 (1984) and Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 376-77 (1989). Gov. Br. at 23 n.16. The governm ent relegated this point to a footnote because it is plainly false. Chevron and Marsh on their face only apply deference to an agency’s interpretation of an ambiguous law. But Tyndale doesn’t challenge the interpretation that “preventive services” include abortifacients. They challenge the subsequent imposition of that inte rpretation against Tyndale’s religious beliefs, and whether it passes RFRA’s strict scrutiny. This is not a matter for Chevron. No case declares that u nder Chevron and Marsh, whatever an agen cy says is “compelling” is compelling under strict scrutiny. That would negate RFRA ’s strict scrutiny test. Instead RFRA declares that it ap plies to al l subsequent laws, which includes PPACA. 42 U.S.C.A. § 2000bb-3. As a result, even if Chevron and Marsh applied, they would yield no deference to Defendants because the clear langu age of RFRA trum ps PPACA and requires the government to show compelling ev idence to coerce Tyndale, not affording agency “deference” for insufficient ev idence. See, e.g., Coalition for Respons ible Regulation, Inc. v. E.P.A. , 684 F.3d 102, 116 (D.C. Cir. 2012) (“if the intent of Congress is clear, that is th e end of the m atter” under Chevron). The Suprem e Court insists that th e government has the burden to establish compelling “evidence”, and the Cou rt scrutinizes and rejects non-compelling scientific evidence even when the governm ent relies on it in passing a law. Brown, 131 S. Ct. at 2739. The government cannot negate its burdens under RF RA by derisiv ely calling s trict scrutiny “flyspecking.” Gov. Br. at 23 n.16. Its evidence is generic, remote and inapplicable.
D. The Government Rebuts None of Its Less Restrictive Alternatives. The government fails to show that it could not fully achieve women’s health and equality from free abortifacients by the gov ernment giving women those things itself instead of forcing Tyndale to violate its religious beliefs to do the same. The government already gives these items away on a massive scale. See Tyndale Br. at 3 3. If abortifacients advance women’s health and equality by enabling them to avoid unintended pr egnancy, such a result can be fully achieved by abortifacients provided by the government. No study says that Tyndale must be the conduit.
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The government seeks to redefine the least restrictive means test to be something entirely different: merely asking whether an exem ption would undermine the government’s interest, and saying that the governm ent needs only to consider its chosen m eans rather than alternatives. Gov. Brief at 28–29. T he government’s test therefor e would not consider ei ther restrictiveness or means. RFRA, in contrast, requires the Mandat e to b e “the least res trictive means,” not th e least restrictive means the government chooses. And it imposes its bu rden on the governm ent, not the Plaintiffs. 42 U.S.C. § 2000bb-1. In the D.C. Circuit, the least restrictive means test does not mean that the government need only show its c hosen alternative is the best or most efficient one: it means that “no alternative forms of regulation” can exist that accomplishes the proffered interest. Kaemmerling, 553 F.3d at 684 (quoting Sherbert, 374 U.S. at 407). Here, the option of women getting abortifacients from the government fully achieves the health and equality interests that the government asserts. Not an iota of those interests would be left unaccomplished.
The government’s view is inconsistent with Riley v. National Fede ration of the Blind of North Carolina, Inc. , 487 U.S. 781 (1988), where the Court insisted that seve ral alternatives caused the government to fail its test even though th ey were costly, less directly effective, and a restructuring of the governm ental scheme. Id. at 799–800. Here RFRA si milarly requires full consideration of other ways the government can and does provide wom en free contraception. “The lesson” of RFRA’s pedigree of caselaw “is that the government must show something more compelling than saving money.”7
The government also misinterprets cases such as United States v. Wilgus, 638 F.3d 1274, 1284–95 (10th Cir. 2011). Gov. Br. at 28–29. The government contends that under Wilgus, least restrictive means need only consider the government’s chosen means. But according to Wilgus, a less restrictive m eans does not have to work within the existing governm ental scheme or be equal or less in cost than the challenged policy. See 638 F.3d. at 1289. Instead, Wilgus requires
7 Douglas Laycock and Oliver S. Thomas, “Interpreting the Religious Freedom Restoration Act,” 73 TEX. L. REV. 209, 224 (1994)
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the government to “support its choi ce of regulation” and “refute the alternative schemes offered by the challenger,” not to assume its choice and refuse to contemplate alternates.
The government fails this standard, for at leas t two reasons. First, exemptions would not undermine the government’s intere st if it adopted other m eans. The governm ent already provides free contraception to women, and provid es health insurance including contraception outside the “employer-based” system (such as by Title X funding and Medica id). There is no compelling reason that the governm ent cannot do so for wom en working at exempt entities, without coercing religiously objecting em ployers. O Centro shows that th e least restrictive means test means what it says when it distingu ishes cases such as Lee and Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion). 546 U.S. at 435–37. The presen t case is not like Lee, wherein taxes cannot be raised if people opt out of paying them; here, the interest of providing abortifacient contraception can easily be done a nd is done by the governm ent directly without any need to coerce T yndale. Nor is it like Braunfeld, wherein the interest of closing all businesses on Sunday cannot be pursued if som e businesses are open; here the interest is m erely that women get abortifacients, not how they get them. The government could achieve its interest of providing women free contraception in many ways, even when Plaintiffs are exempt.
The government falsely claim s that honor ing Tyndale’s rights under RFRA would involve the government in “subsidizing private religious practices.” This is a seriously flawed view. Tyndale is not asking the government to subsidize it or any religious group or practice. It is not even asking the governm ent to buy abortifacients. It is si mply asserting the self-evident fact that if the government wants to give private citizens abortifacient contraception, it can do so itself instead of forcing Tyndale to do it, and su ch an alternative renders the Mandate a violation of RFRA. To call Tyndale’s freedom from coercion “subsidizing private re ligious practices” is an Orwellian attempt to characterize coercion as the default in America. This would render the First Amendment itself a governme nt “subsidy.” The D eclaration of Independence instead emphatically declares that the right to Liberty belongs to citizens as “endowed by their Creator,” not “subsidized by their government.” ¶ 2.
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The government’s assertion that it has an interest not m erely in wom en getting abortifacients but m aking sure they com e from Tyndale actually redefines the governm ent’s interest. But this new inte rest has no eviden ce to supp ort it. Health and eq uality from abortifacients do not depend on where the abor tifacients come from. The gove rnment has presented zero evidence saying that even if women have f ull access to as many free abortifacients as they w ant, they still suffer he alth or equality harm s. No such study even attempts to establish that im possible proposition. T he government has not even “offered evidence demonstrating” harm from alternatives. O Centro, 546 U.S. at 435–37.
E. The Mandate Fails Under Tyndale’s Other Claims. Tyndale’s primary brief explains the errors in the governm ent’s views regarding its claims under the Free Exercise Clau se, the Establishment Clause, the Free Speech Clause, Due Process, and the Administrative Procedure Act. Several points are worth noting in reply.
1. The Mandate Violates the Free Exercise Clause. The government’s own analys is shows that the Mandate ’s Swiss-cheese array of exceptions is not “generally applicable” under the Free Exercise Clause. The governm ent summarizes Fraternal Order of Police v. City of Newark , 170 F.3d 359, 366 (3d Cir. 1999) (Alito, J.), as “finding that a m edical exemption to a police depart ment’s no-beard policy indicated that the department accepted secular motivation s but rejected religious ones.” Gov. Br. at 33. This is exactly what the governm ent admits here: it accepted secular “administrative” motivations for non-application of th e Mandate to 191 million Americans, Gov. Br. at 25, while rejecting the religious motivation of Tyndale and sim ilar objectors under RFRA. The government has explicitly deem ed secular mo tivations “balance” (trum p) the Mandate, but religious motivations such asserted by Tyndale and its owners do not. Id. Similarly, the government concedes that a re gulatory scheme is not “neutral” under the Free Exercise Clause where it “enables the gove rnment to m ake a subjective, case-by-case inquiry of the reasons f or the releva nt conduct.” Gov. Br. at 34 (citing Employment Div. v. Smith, 494 U.S. 872, 884 (1990)). This is exactly wh at 42 U.S.C. § 300gg-13 enables, and what
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the Defendants in this case hav e done. They have m ade subjective, case-by-case decisions determining what factors count for a “religious exemption,” what factors count for entities to receive “accommodations” under fo rthcoming regulatory changes, what factors count for the “safe harbor” of non-enforcem ent, and what fact ors count for repeated reinterpretations or amendments to the safe-harbor, all as to excl ude Tyndale and others. These subjective and constantly changing determinations are driven by no restriction on the discretion of Defendants in 42 U.S.C. § 300gg-13. The governm ent is picking and choosing what religion is, who exercises it, and in what context it can be exercised. The scheme is not religiously neutral.
2. The Mandate Violates the Establishment Clause. The government’s argument against Tyndale’s Establishment Clause claim is incorrect when it c alls Colorado Christian University v. Weaver , 534 F.3d 1245 (10th Cir. 2008) “inapposite.” Gov. Br. at 35. Weaver is directly applicable, since it deemed a law invalid when the law did not discriminate against “denominations,” which the government incorrectly says the Establishment Clause is only concerned about. Weaver’s statement that laws m ust abide by the Establishment Clause if they “f acially regulate religiou s issues” is directly relevant to the Mandate and its regulations in this case, which on their face pick and choose wh at a “religious employer” is according to various factors, and fu rther subjectively select who will b e recipients of the non-enforcement safe harbor and additio nal regulatory accommodations. This is exactly the kind of situation that existed in Weaver, wherein the non-“religious issue” of school funding was deemed to “facially regulate re ligious issues” when it deigned to decide that some religious entities qualified and others did not. Like in Weaver, the government’s decision that some kinds of religion are favored over others (the ones that consider business non-religious, or that only inculcate values”) constitutes discrimination “among religions,” and because of different types of religious practice, itself violates the constitution. 534 F.3d at 1256, 1259.
3. The Mandate Violates the Free Speech Clause. The government is incorrect in its v iew on Tyndale’s Free Speech Clause claim when it declares that “Plaintiffs appear to concede that they are not required to spea k.” Gov. Br. at 37.
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Tyndale makes no such concession; on th e contrary, the Mandate requires it as an insurer to cover and f und speech contrary to its beliefs. The govern ment’s contention that the Mandate does not involve coverage of speech by a doctor in favor of abortifacients is implausible. If that were true, Tyndale could put an exclusion in its insurance plan that said the required “education and counseling” could be against, but not for, abortifacients. Of course Defendants would permit no such exclusion. The Mandate requires co verage of speech in fa vor of abortifacients even though Tyndale exists to evangelize a Gospel that rejects the destruction of nascent life.
4. The Mandate Violates the Due Process Clause. The government misstates Tyndale’s Due Process Clause argument when it declares that Tyndale does not “prim arily” challenge PPACA statutory section in question, 42 U.S.C . § 300gg-13. Gov. Br. at 39. Th is is fals e. T yndale’s complaint explicitly challenges “the Mandate” including § 300gg-13 as its statutory authority, VC ¶ 4 n.1, and Tyndale’s Due Process Claim explicitly declares that “PPACA and” the Mandate
vest Defendants with unbridled discre tion in deciding whether to allow exemptions to som e, all, or no organi zations, in crafting “religious employer” exemptions and changing the sam e, in crafting and m odifying further “accommodations” and additional definitions of entities that qualify for the same, and in enforcing the Mandate and crafti ng rules regarding the same such as through its repeatedly issued enforcement “Guidances.” VC ¶ 191. Tyndale has squarely raised a Due Process claim against § 300gg-13. That section literally contain s no lim its on Defendants’ unbridled discretio n to discriminate against the religion and speech. Defendants have done so in their own words: in the Mandate, the ANPRM, the safe har bor, and interpretations thereof. The governm ent cites cases generally saying that Congress can delegate authority to agencies . But not one of those cases, nor any other case cited by the governm ent, declares that if the delegated authority is unbridled, and if it im pacts First Amendment rights and religious freedom, it need not satisfy the Due Process Clause. Contrary to the go vernment’s assertion, Tyndale cites multiple cas es that in no uncertain terms restrict the government’s grant of discretion when it impacts fundamental rights. “[L]aws that might infringe constitutional rights” are subject “to the s trictest of all” leve l of
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scrutiny under the Due Process Clause. Commack, 680 F.3d at 213; see also Northland Family Planning Clinic, Inc. v. Cox , 487 F.3d 323, 341 (6th Cir. 2007) (“Due process provides heightened protection against vague statutes ‘w here the uncertainty induced by the statute threatens to inhibit the exercis e of constitutio nally protected rights.’” (quoting Colautti v. Franklin, 439 U.S. 379, 390 (1979))).
Thus the governm ent’s string of case citati ons recognizing the le gitimacy of agency discretion are inapposite, because none of those cas es involved First or Fifth Amendment rights. Gov. Br. at 39–40, citing Mistretta v. United States , 488 U.S. 361, 372 (1989) (no Firs t Amendment or religious rights implicated); Whitman v. Am. Trucking Ass’ns , 531 U.S. 457, 474 (2001) (same); Humphrey v. Baker, 848 F.2d 211 (D.C. Cir. 1988) (same).
In other words, Tyndale’s claim is not a non- delegation doctrine claim. It is a Due Process Clause unbridled discreti on claim impacting First Amendment and RFRA free exercise protections, owing to 42 U.S.C. § 300gg-13’ s vagueness over the sc ope of religious accommodations. Even if Congress’s delegation of discretion satisfies the con stitutional separation of powers doctrine, it must also satisfy the Fifth Amendment with respect to freedoms protected in the First an d in RFRA. Otherwis e, any duly enacted law would be immune from First and Fif th Amendment scrutiny solely bec ause it was passed by a cons titutional process. But the First and Fifth Am endments still apply to those laws, and the governm ent does not offer a single defense of the unbridled discretion harming religious exer cise that is inherent in § 300gg-13. The Supre me Court just declared that “[o]ther provisions of the Constitution als o check congressional overreaching” in PPACA specifi cally, such that “[a] mandate to purchase a particular product would be unconstitutional if, for example, the edict imperm issibly abridged the freedom of speech, interfered with the free exercise of reli gion, or infringed on a liberty interest protected by th e Due Process Clause.” Nat’l Fed’n of Indep. B us., 132 S. Ct. at 2624 (Ginsburg, Sotomayor, Breyer, Kagan, JJ., conc urring). Constitutional provisions are cumulative—the government cannot ignore the Due Process Clause.
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Section 300gg-13 is quintessen tially vague because it says nothing about the scope of religious accommodations, but inhe rently grants unlim ited discretion on enforcem ent officials. The fact that Defendants enforce the Mandate as agencies, instea d of as “policem en, judges and juries,” Gov. Br. at 40, is irrelevant. Agency bureaucrats are not superior to police officers nor to the First or Fifth Am endments. Cf. Gjyzi v. As hcroft, 386 F.3d 710, 714 (6th Cir. 2004) (“as a matter of due process, assigning complete discretion to an agency to apply the law does not allow that decisionmaker to ignore the law,” citing McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991)). In this case Defendants have assumed the role of judge, jury and executioner.
5. The Mandate Violates the Administrative Procedure Act. The government mischaracterizes Tyndale’s clai m when it asserts that “[t]he m ere fact that the regulations were not altered in the manner plaintiffs seek does not underm ine the thoughtfulness of defendants’ consid eration.” Gov. Br. at 41. Tyndale’s claim is not prem ised on this “mere fact”: it is premised on the government’s own admitted public activity, wherein it (1) declared in August 2011 that it could not ch ange its rule after comments because otherwise college women would not get free contracepti on by August 2012; (2) c onfirmed that illegal close-mindedness when it adopted its rule in Fe bruary 2012 “without change,” (3) essentially admitted in March 2012 that it should not have finalized its rule without change but really ought to have had an open m ind to the 200,000 comm ents, and therefore in tended to start new rulemaking, but (4) still insists that its rule was final as of August 2011, when it really is still not final at all and still should not apply to Tyndale until m ore than a year after it is eventually finalized. The governm ent offers no rebuttal to these governm ent admissions. Nor does it reconcile its view that the Ma ndate cannot legally apply to T yndale until a ye ar after it is finalized, with its claim that the rule will not be finalized until August 2013 but the governm ent insists on applying it now. The prelim inary injunction that Tyndale seeks would likely not even last long enough to give Tyndale the full year of post-finalization tim e to which it is entitled under PPACA. Yet the government opposes gran ting even a prelim inary injunction. Its opposition is unjustified.
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II. TYNDALE WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF PRELIMINARY RELIEF. The government’s position against “delay” is wrong for two reasons. First, Tyndale’s
actual injury did not begin when the Mandate was finalized in August 2011; by its own terms the
Mandate did not apply to Tyndale u ntil October 1, 2012. So Tyndale d id not delay at all during
the injury it seeks the injunction to prevent, because it f iled suit pr omptly on October 2 and
immediately moved for relief. Not only was there no delay, there is no “two month rule” against
“delay” as the government contends. None of the cases the government cites complaining of
delay are applicab le, because all o f the dela ys those pla intiffs permitted were d elays during which the injury was occurring.8 Gov. Br. at 42–43. But in this case Tyn dale has not permitted
the injury it seeks an injunction against—the Mandate as it applied to Tyndale—any delay.
Tyndale filed this case on October 2 and file d its injunction reques t on October 8. The
government cites zero cases saying that if you sue the day after a regulation applies to you, and
seek a preliminary injunction a week after, you ha ve subjected yourself to i mpermissible delay.
Moreover, since October 1 Tyndale is not providing abor tifacient items to its employees, so it
has succumbed to no violation of its conscience. But Tyndale does face irrep arable injury—that
did not start until October 1, 2012, that Defe ndants have authorized themselves to presently and
fully enforce the Mandate against Tyndale. That is irreparable harm without any delay. The
8 The delay undermined the harm in Fund for Animals v. Frizzell, 530 F.2d 982, 984 (D.C. Cir. 1975), because the challenged regulations only authorized a couple months of hunting certain animals, so much of the opportunity for relief had passed by the delay, and on appeal the hunting seasons were “pretty well over.” Here, in contrast, the Mandate is p erpetual, and Tyndale sought an injunction right when it was sub ject to it. Tyn dale’s harm is in the future, not the past. Delay similarly eviscerates the harm in trademark and intellectual property cases when, during the delay, the injury is ongoing. In Mylan Pharm., Inc. v. Shalala, 81 F. Supp. 2d 30, 42 (D.D.C. 2000), the plaintiff only sought relief to protect its market share for a single month—January 10–February 9, 2000—but the delay took away months of market share during the same injury. Here Tyndale did not delay at all in suing and seeking an injunction once the Mandate applied, and the injunction will avert injury perpetually. See also Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 968 (2d Cir. 1995) (trade dress infringement had been occurring for over a year); Citibank, N.A. v. C itytrust, 756 F.2d 273 (2d Cir. 1985) (trademark infringement occurring during the delay); Oakland Tribune, Inc. v. Chronicle Publ’g Co., 762 F.2d 1374, 1375 (9th Cir. 1985) (challenged newspaper feature exclusivity contracts had been occurring “for many years”); Gidatex, S.R.L. v. Campaniello Imps., Ltd., 13 F. Supp. 2d 417, 419 (S.D.N.Y. 1998) (trademark infringement occurred for two years during delay). The delay itself also harmed plaintiffs in Quince Orchard Valley Citizens’ Ass’n v. Hodel, 872 F.2d 75, 75, 80 (4th Cir. 1989), because the road project they challenged began many months before they sought relief, during which time Defendants spent money on the project. Here the defendants have no sunk costs with respect to Tyndale or their October 1 plan.
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Case 1:12-cv-01635-RBW Document 19 Filed 10/25/12 Page 32 of 34
government cannot date “delay ” back to Aug ust 2011, b ecause the Mandate d id not apply to Tyndale until October 1, 2012.
Second, the government’s assertion of delay is duplicitous. In other pending cases against this Mandate, the governm ent has asserted that no irreparable ha rm exists until the date the Mandate is applic able to the plaintiff . The Mandate here was not applicable to T yndale until October 1, 2012, upon which Tyndale expeditiously sued and sought an injunction. But in Newland, Defendants’ attorneys here contended that asking for an injunction before the Mandate went into effect was too early, stating :
Here, plaintiffs have failed to establis h any actual or imm inent statutory or constitutional injury resulting from the preventive services coverage regulations. Plaintiffs do not dispute that the challenged regulations will not apply to Hercules Industries until November 2012. . . . Plaintiffs therefore have not met their burden to establish imminent irreparable harm. Defendants’ Amended Memorandum in Oppos ition to Plaintif fs’ Motion f or Preliminary Injunction at 57, Newland, No. 1:12-cv-01123-JLK, Doc. # 26 (D. Colo. filed July 13, 2012). Tyndale relied on this representation; indeed counsel for Tyndale is the sam e firm as counsel for the plaintiffs in Newland. Because a preliminary injunction is an equitable rem edy, the government is estopped in this case from asserting that filing suit ri ght when the Mandate is applicable to a p laintiff is too late, when in Ju ly it took the position in fe deral district court that no irreparable harm exists until the date the Ma ndate is effective on a p laintiff. This Mandate has been publicly debated incessantly since Ja nuary, with continual statem ents about ongoing negotiations and potential com promises, and a U.S. Supreme Court case that cam e one vot e away from invalidating PPACA entirely. It was reasonable to believe that a Bible publisher might be included in accomm odations. It was no t reasonable to believe the federal governm ent would stubbornly assert that Bible publishers cannot even exercise religion.
CONCLUSION Tyndale therefore respectfully asks the Court to enter a preliminary injunction.
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Case 1:12-cv-01635-RBW Document 19 Filed 10/25/12 Page 33 of 34

Respectfully submitted this 25th day of October, 2012.

Attorneys for Plaintiffs:

David A. Cortman, Esq.

ALLIANCE DEFENDING FREEDOM

1000 Hurricane Shoals Road NE

Suite D-1100

Lawrenceville, GA 30043

(770) 339-0774

(770) 339-6744 (facsimile)

dcortman@alliancedefendingfreedom.org

(202)

Kevin H. Theriot, Esq.

Erik W. Stanley, Esq.

gba

ALLIANCE DEFENDING FREEDOM

15192 Rosewood

Leawood, KS 66224

(913) 685-8000

(913) 685-8001 (facsimile)

ktheriot@alliancedefendingfreedom.org

estanley@alliancedefendingfreedom.org

s/ Matthew S. Bowman _

Steven H. Aden, Esq.

Gregory S. Baylor, Esq.

Matthew S. Bowman, Esq.

(D.C. Bar # 993261)

ALLIANCE DEFENDING FREEDOM

801 G Street NW, Suite 509

Washington, DC 20001

(202) 393-8690

237-3622 (facsimile)

saden@alliancedefendingfreedom.org

ylor@alliancedefendingfreedom.org

mbowm

an@alliancedefendingfreedom.org

26

Case 1:12-cv-01635-RBW Document 19 Filed 10/25/12 Page 34 of 34 CERTIFICATE OF SERVICE
I hereby certify that the foregoing docum ent was electronically filed with th e Court’s ECF system on October 25, 2012, and was there by electronically serv ed on counsel for Defendants and others who have appeared in the case.
s/ Matthew S. Bowman______________ Matthew S. Bowman
27

 
 Case 1:12-cv-01635-RBW Document 35 Filed 05/06/13 Page 1 of 1

~nittb ~tatts orourt of J\pptals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 13-5018
Tyndale House Publishers, Inc. and Mark D. Taylor,
Appellees
v.
Kathleen Sebelius, in her official capacity as Secretary of the United States Department of Health and Human Services, et aI.,
Appellants

September Term, 2012
1:12-cv-01635-RBW Filed On: May 3, 2013

BEFORE: Henderson, Griffith, and Kavanaugh, Circuit Judges
ORDER
Upon consideration of the motion for voluntary dismissal of interlocutory appeal, the response thereto, and the reply, it is
ORDERED that the motion be granted, and this case is hereby dismissed.
The Clerk is directed to transmit forthwith to the United States District Court for the District of Columbia a certified copy of this order in lieu of formal mandate.
Per Curiam

_,,,:<p,~f:t,Atrue COPY'

United States Court of Appeals

fo~ District of Columbia Circuit

By I. I~ tI~

Deputy Clerk

FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Timothy A. Ralls Deputy Clerk

 
 Case 1:12-cv-01635-RBW Document 46 Filed 12/03/13 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

TYNDALE HOUSE PUBLISHERS, INC., a Delaware )

Corporation; MARK D. TAYLOR; TYNDALE

)

HOUSE FOUNDATION, INC. an Illinois Not-for-

)

profit Corporation; TYNDALE TRUST, an Illinois

)

Trust; KENNETN N. TAYLOR TRUST, an Illinois

)

Trust; and MARGARET W. TAYLOR TRUST, an

)

Illinois Trust;

)

)

Plaintiffs,

)

v.

) Civil Action No.

)

1:12-CV-1635-RBW

KATHLEEN SEBELIUS, in her official capacity as

)

Secretary of the United States Department of Health )

and Human Services; THOMAS PEREZ, in his official )

capacity as Secretary of the United States Department )

of Labor; JACOB J. LEW, in his official capacity as )

Secretary of the United States Department of the

)

Treasury; UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES; UNITED

)

STATES DEPARTMENT OF LABOR; and UNITED )

STATES DEPARTMENT OF THE TREASURY;

)

)

Defendants.

)

)

FIRST AMENDED VERIFIED COMPLAINT1 Plaintiffs, Tyndale House Publishers, Inc., a nd Mark D. Taylor (col lectively, hereinafter “Tyndale”), with Tyndale House Foundation, Inc., T yndale Trust, Kenneth N. Taylor Trust, and Margaret W. Taylor Trust (collectively, hereinafter “owners”), by their attorneys¸ allege:

1 Filed pursuant to Fed. R. Civ. P. 15(a)(2), wi th consent of Defendants, given in writing by counsel for Defendants to counsel for Plaintiffs . The complaint adds the owners of Tyndale House Publishers as explicit co-plaintiffs. All ot her allegations are subs tantially unchanged, and the paragraph numbering has not changed as referenced by documents previously filed. Plaintiffs believe this amendment simply reinforces the arguments already asserted for the owners.

Case 1:12-cv-01635-RBW Document 46 Filed 12/03/13 Page 2 of 37
I. INTRODUCTION 1. This action arises because the federal government has deemed devout publishers of the Bible to be insuf ficiently “religious” to enjoy religious freedom in America. The federal government is m andating that Tyndale House Publis hers violate its and its owners’ beliefs by covering morally objectionable items in their health plan pursuant to th e Patient Protection and Affordable Care Act of 2010 (Pub. L. 111-148 (March 23, 2010), and Pub. L. 111-152 (March 30, 2010) (hereinafter “PPACA”). The government has defined “religious employer” to exclude these Bible publishers from exe mptions that the government otherwise provides. Defendants have already been the subject of preliminary injunctions against the Mandate. 2. Tyndale House Publishers or iginated with the vision of Dr. Kenneth N. T aylor, a publisher and Bible translator. To promote his paraphrases and translations of the Bible, he and his wife started Tyndale House Publishers, Inc. in 1962. In 1963, Dr. Taylor assigned his royalties from his books to the religious non-profit entity Tyndale House Foundation, which now owns 96.5% of Tyndale House Publishers, Inc. and as of 2012 has contributed m ore than $76 million to charitable causes using proceeds f rom Tyndale House Publishers. Dr. Taylor structured Tyndale to be primarily owned by the religious Foundation, and primarily directed by Tyndale Trust, whose trustees adhere to a biblical statement of faith and are the same individuals who serve as the board members of Tyndale House Publishers. Dr. Taylor’s son Mark D. Taylor is President and CEO of Tyndale House Publishers and is a member of the board of directors of Tyndale House Publishers and the Foundation, as well as being a trustee of the Tyndale Trust. 3. Tyndale and its owners are Chris tians who are comm itted to biblical princip les, including the belief that all human beings are created in the image and likeness of God from the moment of their concep tion/fertilization. But D efendants’ recently enacted regulatory mandate under PPACA forces Tyndale to pr ovide and pay for drugs and devi ces that it a nd its owners’
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believe can cause the death of hum an beings created in the im age and li keness of God shortly after their conception/fertilization. The governm ent’s mandate exempts what it calls “religious employers,” but denies that status to Tyndale House Publishers through its arbitrary definition.
4. The mandate challenged in th is case (collectively referred to h ereinafter as the “Preventive Services Mandate” or the “Mandate”)2 was created and is enforced by D efendants the Departments of HHS, Labor and Treasury and their respective Secretaries.
5. The Mandate illeg ally and unconstitutionally requires Tyndale to violate its and its owners’ religious beliefs, and it subjects Tyndale to heavy fines and penalties if it chooses not to violate those beliefs. Defendants’ coercion tramples on the freedom of conscience, freedom of religious exercise, and freedom of speech of Tyndale and its owners. These believers, as well as millions of other Americans, simply wish to a bide by religious convictions decreed by God Himself through His Word, and to c ontribute to society in a way th at is consiste nt with their religious ethics.
2 The Mandate consists of a conglom erate of a uthorities, including: “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Serv ices Under the Patien t Protection and Affordable Care Act,” 77 Fe d. Reg. 8725–30 (Feb. 15, 2012); the prior interim final rule found at 76 Fed. Reg. 46621–26 (Aug. 3, 2011) which the Feb. 15 rule adopted “without change”; the guidelines by De fendant HHS’s Health Resources and Services Administration (HRSA), http://www.hrsa.gov/w omensguidelines/ , m andating that health plans include no-cost-sharing coverage of “All Food and Drug Adm inistration approved contraceptive methods, sterilization procedures, and patient education and counseling for all wom en with reproductive capacity” as part of required wom en’s “preventive care”; regulations issued by Defendants in 2010 directing HRSA to develop those guidelines, 75 Fed. Reg. 41726 (July 19, 2010); the statutory authorit y found in 42 U.S.C. § 300gg-13( a)(4) requiring unspecified preventive health services generally, to the ex tent Defendants have used it to m andate coverage to which Tyndale and other em ployers have re ligious objections; pena lties existing throughout the United States Code for noncompliance w ith these requirements; and other provisions of PPACA or its implementing regulations that affect exemptions or other aspects of the Mandate.
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6. Defendants’ refusal to accommodate the conscience of Tyndale is highly selective. PPACA not only conta ins a m ultitude of exemptions from the Mandate, but one of those exclusions renders the Mandate in applicable to 191 million Am ericans. Newland, 2012 WL 3069154 at *1. Defendants cannot possibly claim they have a compelling interest to violate Tyndale’s beliefs when they have voluntarily chosen to omit nearly two-thirds of the nation from that interest for secular reasons. The m ultitude of exemptions to which this Manda te is subject further shows it is not generally applicable.
7. Tyndale therefore seeks declaratory a nd injunctive relief from Defendants’ discriminatory violation of its religious beliefs by bringing cl aims under the Religious Freedom Restoration Act, 42 U.S .C. § 2000bb et seq. (RFRA), the F irst and Fifth Amendments to th e United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (APA). Defendants’ actions violate Tyndale’s right to freely exercise religion, protected by the Religious Freedom Restoration Act and the Religion Claus es of the First Amendment to the United Sta tes Constitution. Defendants’ actions also v iolate Tyndale’s right to the freedom of speech, as secured by the Free Speech Clause of the First Amendment to the United States Constitution, and their due pr ocess rights secured by the Fif th Amendment to the United Sta tes Constitution. Additionally, Defendants violated the Adm inistrative Procedure Act by im posing the Mandate with deliberate disregard of public comments, and for other reasons.
8. Tyndale is faced with imminent harm due to Defendants’ Mandate. The Mandate by its terms compels Tyndale to obtain and pay for insurance coverage of the objectionable items in their October 1, 2012 plan. Therefore Tyndale will suffer imminent and irreparable harm by being subject to the Mandate’s draconian pena lties, unless the Court enters d eclaratory and
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injunctive relief to protect Tyndale against Defendants’ deliberate attack on its and its owners’ consciences and religious freedoms.
IDENTIFICATION OF PARTIES 9. Plaintiff Tyndale House Publishers, In c. (herein “Tyndale”) , is a Delaware corporation located at 351 Executive Drive, Carol Stream, Illinois. 10. Tyndale asserts its claims on behalf of itself as well as on behalf of its owners, all of whom share Tyndale’s religio us beliefs against the Mandate’s application in this case. Tyndale’s owners also assert the claim s in their capacity as owners of Tyndale. Tyndale’s owners include Tyndale House F oundation, an Illinois not-for-profit corporation; Tyndale Trust, an Illinois trust; the Kenneth N. Taylor Trust, an Illinois trust; and the Margaret W. Taylor Trust, an Illinois trust. All are located at 351 Executive Drive, Carol Stream, Illinois. 11. Plaintiff Mark D. Taylor is a resident of W heaton, Illinois. He is President and CEO of Tyndale House Publishers, and is the son of Tyndale founder Dr. Kenneth Taylor. Mark Taylor is a member of the boards of directors of Tyndale House Publishers and its primary owner Tyndale House Foundation, and is a trustee of Tynda le Trust and the Kenneth N. Taylor Trust, which are also owners of Tyndale House Publishers. 12. Defendants are appointed officials of the United States gov ernment and United States Executive Branch agencies responsible for issuing and enforcing the Mandate. 13. Defendant Kathleen Sebelius is the Secretary of the United States Departm ent of Health and Human Services (HHS). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 14. Defendant HHS is an executive agency of the United States governm ent and is responsible for the promulgation, administration and enforcement of the Mandate.
5

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15. Defendant Thomas Perez is th e Secretary of the United States Departm ent of Labor. In this capacity, he has responsibilit y for the operation and m anagement of the Department of Labor. Perez is sued in his official capacity only.
16. Defendant Department of Labor is an executive agency of the United States government and is responsible for the prom ulgation, administration, and enforcem ent of the Mandate.
17. Defendant Jacob J. Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and m anagement of the Departm ent. Lew is sued in his official capacity only.
18. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the prom ulgation, administration, and enforcem ent of the Mandate.
JURISDICTION AND VENUE 19. This action arises under the Constitution and laws of the United States. The Court has subject m atter jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 & 2202, 42 U.S.C. § 2000bb-1, 5 U.S.C. § 702, and Fed. R. Civ. P. 65, and to award reasonable attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412, and 42 U.S.C. § 1988. 20. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). The United States Defendants are located in this district. FACTUAL ALLEGATIONS 21. Tyndale House Publishers, Inc. is a Christian publishing com pany that was founded by Kenneth and Margaret Taylor. Tyndale was founded in 1962 to publish, at first, a
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single book called Living Letters, which was Kenneth Taylor’s modern paraphrase of portions of the New Testament.
22. In the ensuing years, Kenneth Taylor paraphr ased the rest of the text of the Holy Bible. Tyndale published the entire project in 1971 as The Living Bible , sales of which have exceeded 40 million copies.
23. In 1996 Tyndale published an entirely new translation of the Holy Bible, called the Holy Bible: New Living Translation, of which 27 million copies have been sold as of 2012.
24. Tyndale also publishes a wide array of Christian books ranging from Bible commentaries to books about fam ily issues to Ch ristian fiction. Tyndale’s authors include Dr. James Dobson (founder of Focus on the Fam ily), the Rev. Dr. Tim LaHaye, Dr. Bill Bright (th e founder of Campus Crusade for Crusade), the Rev. Josh McDowell (a world-renowned Christian apologist), and hundreds of other Christian authors.
25. Tyndale’s Articles of Inco rporation declare that T yndale’s purpose is “1. To engage as a publisher of Christian and faith-enhancing books, periodicals, tracts, pamphlets, and other media of communication; and to engage in any related business that may be lawful.”
26. Tyndale’s Corporate P urpose is “to m inister to the spiritual needs of people, primarily through literature consistent with biblical principles.”
27. Tyndale’s Core Values are to be “Dependent on God’s leading,” “Anchored in the Bible,” “Driven to make God’s W ord accessible,” “Trustworthy,” and “Comm itted to excellence.”
28. Tyndale’s Corporate Goals are to “Honor God,” “Excel in bus iness,” “Sustain controlled economic growth,” “Operate profitably,” and “Help employees grow.”
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29. Tyndale holds a weekly chapel service for its em ployees—a practice that was started in 1967. Attendance is voluntary, paid as work tim e, and attended by well over 50% of the employee population each week.
30. Tyndale opens most business meetings with prayer, asking God for wisdom. 31. Since 1984 Tyndale’s executive team has spen t half an hour together in prayer each Tuesday morning. 32. Tyndale House Publishers’ Board of Direct ors’ meetings begin with a devotional prepared by one of the directors, followed by prayer, a practice they started in 1977. 33. Tyndale sends groups of e mployees on m ission projects each year to provide support to Christian mission organizations. Tyndale pays the employee’s salary and expenses for these trips b ecause it m odels generosity, one of Tyndale’s core values. This practice began in 2006, and Tyndale has sponsored at least one such trip per year. 34. Tyndale has hosted m onthly “build days” with Habitat for Hu manity each month for the last 3 years for its employees. 35. Tyndale House Publishers makes charitable contributions at the rate of 10% of its pretax profits each year. Most of the contributi ons go to Christian org anizations like Wycliffe Bible Translators, Wheaton College (Illinois), Outreach Community Minis tries, Habitat for Humanity, Casa Viva, and dozens of churches where Tyndale’s employees attend. Tyndale also sponsors a m atching gift program for its em ployees. Since 2005, Tyndale’s corporate contributions have amounted to more than $5 million total. 36. As part of Tyndale’s investm ent portfolio, as of 2012, it ha s outstanding loans totaling $5.3 million made to a Christian school and to a church in its community.
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37. As part of its comm itment to running its business from a bibl ical perspective, Tyndale pays its em ployees well above m inimum wage and provides them with excellent benefits. In addition to a very good health plan, the com pany shares profits with all em ployees through a strong bonus program and a generous 401( k) and profit sharing plan which regularly contributes 9–11% of employees’ salary.
38. Every book Tyndale publishes has to have ministry value, otherwise it will not publish it.
39. The Board of Directors of Tyndale Hous e Publishers has adopted the following statement of belief and policy : “The first of fi ve corporate goals of Tyndale House Publishers, Inc. is to ‘Honor God.’ The company’s corporate purpose is to ‘Minister to the spiritual needs of people, primarily through literatu re consistent with biblical prin ciples.’ Among the biblical principles the company is committed to following is respect for the inviolable sanctity of the life of every hum an being as created in the im age and liken ess of God from the mom ent of conception/fertilization (cf. Jerem iah 1:5; Genesi s 1:26). Consistent with this belief, Tyndale House Publishers, Inc. om its from its em ployee health plan any coverage of abortions and of drugs (e.g., Plan B, ella) or devi ces (e.g., intrauterine devices) th at can cause the dem ise of a n already conceived/fertilized human embryo.”
40. Tyndale brings its claims on its own behalf and on behalf of its owners. Tyndale’s owners also assert the claims in their capacity as owners of Tyndale.
41. Tyndale’s primary owner, Tyndale House Foundation (hereinafter “the Foundation”), was incorporated as an Illinois not-for-profit corporation by Kenneth and Margaret Taylor in 1963.
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42. The Foundation’s Mission is “to m inister to the spiritual needs of people, primarily through grants to other Christian charities.”
43. Starting with the publication of Living Letters and continuing through the very successful publication of The Living Bible and the Holy Bible: New Living Translation , Kenneth Taylor assigned his author royalties to the Foundation.
44. As Kenneth Taylor wrote in his autobiography, My Life: A Guided Tour, “I had a strong conviction that the ability to write Living Letters was a special gift from God, and, because it was His word, He should get all the royalties. So we called on [an attorney] to set up a foundation with a board of directors who would be responsible to give the m oney away to properly qualified charitable causes.”
45. The Foundation owns 96.5% of all shares of T yndale House Publishers, which includes just over 8.4% of its voting shares.
46. By virtue of the Foundation’s nearly total ownership of Tyndal e House Publishers, Tyndale’s and the Foundation’s re ligious missions are largely overlapping and mutually reinforcing.
47. The Foundation receives 96.5% of all of Tyndale’s distributed profits. From 2001 to 2012, the Foundation received $38.8 million of Tyndale’s $40.2 million in distributed profits.
48. Tyndale’s non-distributed profits are reinvested into Tyndale for the benefit of its religious publishing mission.
49. In addition to dividends, Tyndale also pays royalties to the Foundation in amounts exceeding $1 m illion annually, b ecause Dr. Taylor had donated his author rights to th e Foundation.
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50. Since its inception through 2012, the Foundation has distributed m ore than $76 million to various charitable causes, primarily through proceeds received from Tyndale House Publishers and from royalties assigned by Dr. Kenneth Taylor.
51. The Foundation’s Board of Directors ha s adopted the following statem ent of belief and policy: “Tyndale House Foundation shar es the religious beli efs of Tyndale House Publishers, Inc., the entity in which it has an ownership interest, including a comm itment to ‘Honor God’ and to act in a m anner consistent w ith biblical principles . Among such biblical principles is respect for the invio lable sanctity of the life of every hum an being as created in the image and likeness of God from the moment of conception/fertilization (cf. Jerem iah 1:5; Genesis 1:26). Consistent with this reli gious belief, Tyndale House Foundation supports Tyndale House Publishers, Inc.’s om ission from its employee health plan of any coverage of abortions and of drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo.”
52. Of Tyndale’s other shares, a small percentage is owne d by Tyndale Trust, but those shares include 84% of the voting shares.
53. Tyndale Trust was incorporated as an Illino is trust by Dr. Kenneth Taylor in 1988.
54. The Trust is intended to he lp preserve and continue the biblical focus of Tyndale House Publishers’ mission. To help accom plish this goal, the Trust owns the larg e majority of voting shares.
55. Trustees of Tyndale Trust are required to be the same persons as the m embers of the Board of Directors of Tyndale House Publishers.
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56. Trustees of the Tyndale Trust (and ther efore board m embers of Tyndale House Publishers) are required to sign a Statement of Faith each y ear to show that they hold to certain religious beliefs, which are typically described as evangelical Christian beliefs.
57. The statement of faith required of Tyndale Trust’s trustees (and therefore of board members of Tyndale House Publishers), is as follows:
1. I believe in the divine inspiration, truthfulness, and authority of both Old and New Testament Scriptures in th eir entirety as the only written w ord of God, without error in all that it affirms, and the only infallible rule of faith and practice.
2. I believe that there is one God, eternall y existent in three persons: Father, Son, and Holy Spirit.
3. I believe in the deity of our Lord Jesus Ch rist, in his virgin birth, in his sinless life, in his m iracles, in his atoning d eath, in his bodily re surrection, in his ascension to the right hand of the Father, and in his personal return in power and glory.
4. I believe that for the salvation of lost and sinful people, regeneration by the Holy Spirit is absolutely essential.
5. I believe in the presen t ministry of the Holy Spirit by whose indwelling the Christian is enabled to live a godly life.
6. I believe in the resurrection of both the saved and the lost: they that are saved unto the resurrection of life and they that are lost unto the resurrection of damnation.
7. I believe in the spiritual unity of believers in our Lord Jesus Christ.
58. All of the trustees of T yndale Trust, and all of the m embers of the Board of Directors of Tyndale House Publishers, have subscribed to that statement of faith.
59. Tyndale Trust has adopted the following st atement of belief and policy: “Tyndale Trust shares the religious beliefs of Tyndale House Publishers, Inc ., the entity in which it has an ownership interest, including a commit ment to ‘H onor God’ and to act in a m anner consistent with biblical principles. Am ong such biblical principles is respect for the inviolable sanctity of
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the life of every hum an being as created in th e image and likeness of God from the moment of conception/fertilization (cf. Jerem iah 1:5; Genesis 1:26). Consistent with this religious belief, Tyndale Trust supports Tyndale House Publishers, Inc.’s omission from its employee health plan of any coverage of abortions a nd of drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo.”
60. The remaining percent of Tyndale’s sh ares, just over 3.4%, are owned by two Illinois trusts that benefit Dr. Kenneth Taylor’s widow and children. The Ma rgaret W. Taylor Trust accrues to the benefit of Mrs. Taylor during her lifetime, and she is the sole trustee of said trust. The trustees of the Kenneth N. Taylor Trust are Margaret W. Taylor and her sons Peter W. Taylor and Mark D. Taylor.
61. Both the Margaret W . Taylor Trust and the Kenneth N. Taylor Tru st share th e beliefs of Tyndale House Publishers, Tyndale H ouse Foundation, and T yndale Trust, in general and with respect to Tyndale’s provision of h ealth insurance and omi ssion of abortifacients therefrom.
62. The trustees of the Margaret W . Taylor Trust and the Kenneth N. Taylor Trust have adopted the following statement of belief and policy: “ The trustees of the Kenneth N. Taylor Trust and the Margaret W. Taylor Trust share the religious beliefs of Tyndale House Publishers, Inc., the entity in which they have an ownership interest, including a commitment to ‘Honor God’ and to act in a manner consistent with biblical principles. Among such biblical principles is re spect for the inviolable sanctity of the life of every human being as created in the im age and likeness of God from the moment of conception/fertilizat ion (cf. Jerem iah 1:5; Genesis 1:26). Consistent with thi s religious belief, the Ken neth N. Taylor Trust and the Margaret W. Ta ylor Trust support Tyndale House Publishers, Inc.’s omission from its employee health plan of any coverage of abortions and of
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drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo.”
63. Mark D. Taylor is the P resident and CEO of both Tyndale House Publishers and the Foundation. He is a trustee of the Tyndale T rust and of the Ke nneth N. Taylor T rust. He is the son of Dr. Kenneth Taylor and Margaret W. Taylor, founders of the Tyndale entities.
64. Mark Taylor is directly familiar with the facts and beliefs affirmed herein relating to Tyndale House Publishers as well as to its owners.
65. As President and CEO of Tyndale Hous e Publishers and the Foundation, Mark Taylor is responsible for thei r overall operations, including th e provision of Tyndale’s health insurance plan.
66. As an employee of Tyndale, Mark Taylor is a participant in its health plan, and his wife is a dependent beneficiary of the same plan.
67. Mark Taylor shares the religious beliefs of Tyndale House Publishers and its owners, and his constitutional a nd statutory rights are burdene d by the Mandate to the sam e extent.
68. Tyndale’s owners possess religious beliefs against the governm ent’s requirement that their property and sister entity, Tyndale House Publishers, would be forced to offer immoral coverage of abortifacient drugs and devices.
69. Tyndale’s owners exercise that religious belief by virtue of their ow nership, voting rights in and receipt of benefit from an entity, Tyndale House Publis hers, that shares the owners’ same biblical beliefs in the inviolable sanctity of innocent human life.
70. Therefore the Mandate violates T yndale’s owners’ rights in their capacity as Tyndale’s owners as asserted herein.
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72. Tyndale provides a generous health insurance plan for its employees. 73. Tyndale’s group health plan for its employees is self-insured, and Tyndale acts as its own insurer. 74. The plan-year for Tyndale’s self-in sured plan begins on October 1 of each year, including 2012–13. 75. Consistent with the religious commitm ents of Tyndale and its owners, T yndale’s self-insured plan does not and has never covered a bortions or abortifacient drugs or devices such as emergency contraception and intrauterine devices (“IUDs”). 76. Tyndale’s self-insured plan is not subject to an Illinois state requirement to cover contraception including abortifacients. 77. Under the PPACA, e mployers with over 50 full-tim e employees are required to provide a certain minimum level of health insurance to their employees. 78. Many such plans must include “preventive services,” which must be offered with no cost-sharing by the employee. 79. On February 10, 2012, the Department of Health and Human Services finalized a rule (previously referred to in th is Complaint as “the Mandate”) that imposes a def inition of preventive services to include all FDA-approved “contraceptive” drugs, surgical sterilization, and education and counseling for such services. 80. This final rule was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the Mandate. 81. In the category of “FDA-approved contra ceptives” included in the Mandate are several drugs or devices that m ay cause the demise of an already-conceived but not-yet-
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implanted human embryo, such as “em ergency contraception” or “Plan B” drugs (th e so-called “morning after” pill) as well as IUDs.
82. The FDA approved in this same “contraception” category a drug called “ella” (the so-called “week after” pill), wh ich studies show can function to kill embryos even after th ey have implanted in the uterus, by a mechanism similar to the abortion drug RU-486.
83. The manufacturers of some such drugs, methods, and devices in the category of “FDA-approved contraceptive methods” indicate that they can function to cause the demise of an early human embryo.
84. The Mandate also requires applicable gr oup health care plans to pay for the provision of counseling, education, and other in formation for all wom en beneficiaries who are capable of bearing children conc erning and in support of covered devices and drugs, including Plan B and ella and IUDs that cause early abortions or harm to human embryos.
85. The Mandate applies to the f irst health insurance plan-year beginning after August 1, 2012.
86. An entity cannot escap e the Mand ate by self-insuring ; Tyndale’s plan is thu s subject to the Mandate even though it is self-insured.
87. Absent relief from this Court, Tyndale is subject to the Mand ate’s requirement of coverage of the above-described items starting in their October 1, 2012 plan.
88. Tyndale and its owners have a sincer e conscientious religious objection to providing coverage for abortifaci ents and related education and counseling in Tyndale’s health insurance plan.
89. Tyndale and its owners cannot in good c onscience violate their religious beliefs by providing coverage for e mergency contraception, IUDs, or counseling or education in
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furtherance of the sam e, in Tynda le’s health insurance plan, in cluding starting on October 1, 2012.
90. The Mandate therefore imminently threatens to impose its heavy penalties, fines and lawsuits against Tyndale in violation of the beliefs and rights of Tyndale and its owners.
91. The Mandate makes little or no allowance for the religious freedom of entities and individuals, including Tyndale and its owners, who object to pa ying for or providing insurance coverage for such items.
92. An entity cannot freely avoid the M andate by simply refusing to provide health insurance to its em ployees, because the PPACA im poses monetary penalties on entities that would so refuse.
93. The exact m agnitude of these penalties may vary acco rding to the co mplicated provisions of the PPACA, but the fine is approximately $2,000 per em ployee per year for employers such as Tyndale.
94. In addition, if Tyndale dropped insurance for its employees, such an action would not only harm Tyndale’s em ployees, but it woul d harm Tyndale financially, it would harm Tyndale’s ability to retain an d attract qualified em ployees, and it would violate Tyndale’s religious commitment to its core value of providing generous employee benefits.
95. PPACA also threatens monetary penalties against Tyndale f or continuing to offer its self-insured plan but continuing to omit abortifacients.
96. The exact m agnitude of these penalties may vary acco rding to the co mplicated provisions of the PPACA, but the fine is approximately $100 per day per employee, with minimum amounts applying in different circumstances.
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97. The Mandate also triggers a range of enforcement mechanisms against Tyndale, including but not lim ited to civil actions by the Secretary of Labor or by plan participants and beneficiaries under ERISA, which would include but not be lim ited to relief in the form of judicial orders mandating that Tyndale violate its and its owners’ sincerely held religious beliefs by providing coverage for items to which they religiously object.
98. The lawsuit penalties that the Mandate triggers under ERISA are in no way speculative since Defen dants Secretary Perez and the Departm ent of Labor intend to fully and imminently enforce the Mandate against Tyndale.
99. The Mandate applies not only to sponsors of group health plans like Tyndale, but also to issuers of insurance. Accordingly, Tyndale cannot avoi d the Mandate by shopping for an insurance plan that accommodates their righ t of conscience, because Defendants have intentionally foreclosed that possibility.
100. The Mandate does not apply equally to all religious adherents or groups. 101. The Mandate initia lly offered the po ssibility of a narrow exem ption to religious employers, but only if they meet all of the following requirements: (1) “The inculcation of religious values is the purpose of the organization”; (2) “The organization prim arily employs persons who share the religious tenets of the organization”; (3) “The organization serves primarily persons who share th e religious tenets of the organization”; and (4) The organization is a church, an integrat ed auxiliary of a c hurch, a convention or association of churches, or is an exclusively religious activity of a religious order, under Internal Revenue Code 6033(a)(1) and (a)(3)(A). The Mandate later changed this narrowed this definition to only requirement (4).
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102. Tyndale is not “religio us” enough under thes e definitions in several respects , including because it is n ot a chu rch, integrated auxiliary of a pa rticular church, convention or association of a church, or the exclusively religious activities of a religious order.
103. PPACA and the Mandate grant unbridled discretion to the government to create or modify these “religious employer” definitions.
104. PPACA and the Mandate grant unbridled di scretion to the governm ent to grant exemptions to som e, all, or none of the orga nizations meeting the Mandate’s definitions of “religious employers” or any future definition.
105. The Mandate picks and chooses among religions, religious believers and religious doctrines, including on the issue of what constitutes religion and religious exercise.
106. The Mandate is not neutral towards religi on because it allows exem ptions based on religious criteria, and it refuses those exemptions to Tyndale.
107. The Mandate fails to protect the statutory and constitutional conscience rights of religious Americans like Tyndale and its owners, even though those rights were repeatedly raised in public comments against the Mandate’s regulations.
108. The Mandate requires that Tyndale provide coverage for abor tifacient methods, and education and counseling related to the same, against the conscience a nd in violation of the religious beliefs of Tyndale and its owners, in a manner that is contrary to law.
109. The Mandate constitutes governm ent-imposed coercion on Tyndale and its owners to change or violate their sincerely held religious beliefs.
110. The Mandate exposes Tyndale to draconian fines and other penalties for refusal to change or violate its and its owners’ religious beliefs.
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111. The Mandate will im pose a burden on Tyndale’s em ployee recruitment and retention efforts by cre ating uncertainty as to wh ether or on what te rms they will be ab le to continue offering health insuran ce due to the p rospect of su ffering penalties as a result of the Mandate.
112. The Mandate will place Tyndale at a com petitive disadvantage in its efforts to recruit and retain employees, to a ttract Christian authors, and to m aintain the co nfidence of churches and other religious custom ers who trust that the products produced by Tyndale House Publishers are created by a company that follows biblical principles.
113. The Mandate will have a profound and a dverse effect on Tyndale and how it negotiates contracts and compensates its employees.
114. Tyndale has already expended considerable tim e and expense determining the application of the Mandate against its religious beliefs and its options in relation thereto.
115. Unless relief issues from this Court, Tyndale is forced to take the Mandate into account now as it plans expenditures, including employee contracts, compensation and benefits packages, as well as potential government fines and lawsuits, for the next several years.
116. PPACA and the Mandate are no t generally applicable becau se they p rovide for numerous exemptions from their rules.
117. For instance, the Mandate does not apply to members of a “recogn ized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds. See 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii). Tyndale does not meet this exemption.
118. In addition, as described above, the Mandate exempts certain churches and religious orders narrow ly considered to be re ligious employers. Tyndale does not m eet this exemption.
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119. Furthermore, the PPACA creates a system of individualized exem ptions because under the PPACA’s authorization the federal gove rnment has granted discretionary com pliance waivers to a variety of businesses for purely secular reasons.
120. Also, PPACA and its Mandate do not for ce employers having fewer than 50 fulltime employees to provide a health insurance plan to its employees at all.
121. Additionally, the Mandate does not apply to employers with preexisting plans that are “grandfathered.”
122. Tyndale’s plan is not grandf athered under PPACA, nor wi ll its plan year starting on October 1, 2012 have grandfathered status.
123. Tyndale’s plan lacks grandfathered status b ecause, inter alia, the facts described in the follo wing five paragraphs d eprive the p lan of such status according to th e Defendants’ regulations governing grandfathered status.
124. For financial reasons, between 2011 and 2012 in Tyndale’s health insurance plan, the percentage of in-network covered charges, hospital expenses, non-routine physician fees, and mental health expenses that the plan covered was reduced from 90% to 80%, and the percentage of out-of-network coverage for such covered items was reduced from 70% to 60%.
125. For financial reasons, between 2011 and 2012 in Tyndale’s health insurance plan, the individual deductible was increased from $400 to $500, and the fa mily deductible was raised from $400/person to $500/person with a $1000 maximum.
126. For financial reasons, between 2011 and 2012 in Tyndale’s health insurance plan, the individual in-network co-insurance lim it was increased from $1,500 to $2,000 per calendar year in addition to ded uctible; the family in-network co-insurance limit was increased f rom
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$3,000 to $4,000 per calendar year in addition to deductible; and out of network co-insurance limits were imposed in the amount of $4,000 per individual and $8,000 per family.
127. For financial reasons, between 2011 and 2012 in Tyndale’s health insurance plan, the maximum out-of-pocket am ount for prescrip tion drug coverage per calendar year in combined retail and mail order pharm acy claims was inc reased from $1,500 to $2,000 for individuals, and from $3,000 to $4,000 for families.
128. Neither Tyndale, its plan adm inistrator, nor its October 2011–12 health insurance plan provided a disclosure to plan participants that the plan possessed grandfathered status under PPACA (because the plan did not possess such st atus). Rather, prior to the October 2011–12 plan year, Tyndale disclosed that the plan would not be grandfathered.
129. According to the governm ent’s statistics, tens of millions of Americans in 2013 will be cov ered under plans wher e, because they possess grandfathered status, P PACA and Defendants do not subject those plans to the requirements of the Mandate.
130. Despite Defendants’ and PPACA’s choi ce not to im pose the Mandate and its required items to tens of millions of Americans in grandfathered plans, Defendants refuse to allow Tyndale’s plan with less than 300 employees to be exempt from the Mandate.
131. President Obama held a press conference on February 10, 2012, and later (through Defendants) issued an “Advanced Notice of Proposed Rulemaking” (“ANPRM”) on March 21, 2012 (77 Fe d. Reg. 16501–08), claim ing to offer a “com promise” under which som e religious non-profit organizations not m eeting the above defi nition would still have to comply with the Mandate, but by m eans of the em ployer’s insurer offering the em ployer’s employees the same coverage for “free.”
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132. This “compromise,” even if clarified and enacted, is not helpful to Tyndale because, among other reasons, Tyndale is not a non-profit entity, and its plan is self-insured.
133. The ANPRM is neither a rule, a proposed rule, nor the specification of what a rule proposed in the future would actually contain. It in no way changes or alte rs the final status of the February 15, 2012 Mandate. It does not even create a legal require ment that Defendants change the Mandate at some time in the future.
134. On February 10, 2012, a document was also issued from the Center for Consumer Information and Insura nce Oversight (CCIIO), Centers for Medica re & Medica id Services (CMS), of HHS, entitled “Guidance on the Tem porary Enforcement Safe Harbor f or Certain Employers, Group Health P lans and Group Health Insurance Issuers with R espect to the Requirement to Cover Contracep tive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code.”
135. Under this “Guidance,” an organization that truthfully declares “I certif y that the organization is o rganized and operated as a non- profit entity; and that, at any point from February 10, 2012 onward, contraceptive coverage has not been provided by the plan, consistent with any applicab le State law, because of the religious beliefs of the organization,” and that provides a specified notice to plan participants, will not “be subject to any enforcement action by the Departments for failing to cover recommended contraceptive services without cost sharing in non-exempted, non-grandfathered group health plans established or m aintained by an organization, including a group or association of employers within the meaning of section 3(5) of ERISA, (and any group health insurance coverage provided in connecti on with such plans),” until “the first plan year that begins on or after August 1, 2013.”
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136. The February 10, 2012 “Guidance” categor ically disqualifies Tyndale from making use of this “extra year” because, am ong other reasons, Tyndale is not a non-profit entity, though the Foundation that alm ost entirely ow ns it and benefits from it is a n on-profit entity. Further, Tyndale objects only to the provision of abortifacient contraceptives.
137. On August 15, 2012, in response to litigation against the Mandate that illustrated the February 10, 2012 press conference “Guidance” was sloppily drafted and omitted a variety of organizations, Defendants used their unfettered discretion over the Mandate to issue yet another version of the “safe harbor” Guidance.
138. Under the August 15, 2012 “Guidance,” employers who object to some but not all contraception could be covered, but the “safe harbor” was still limited to non-profit entities.
139. Thus the August 15, 2012 “Guidance” con tinues to categorically disqualify Tyndale from making use of this “extra y ear” because, among other reas ons, Tyndale is not a non-profit entity, though the Found ation that almost entirely owns it and be nefits from it is a non-profit entity.
140. PPACA and the Mandate conf er unfettered discretion upon Defendants to create and modify rules such as the Guidances and the ANPRM with respect to their categorization and treatment of religious entities.
141. The Mandate, Defendants’ two “Guidances ,” their ANPRM, and the ir “religious employer” definitions all omit Tyndale from any protection from the Mandate, despite the fact that the Foundation which owns Tyndale House P ublishers is a non-pr ofit religious entity, Tyndale has always existed for the religious pu rpose of publishing Bibles and other Christian books and providing its proceeds to the Foundation, and Tyndale and its owners share the sam e religious mission.
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142. Therefore while Presiden t Obama’s and Defendants’ ever-changing

“compromises” purport to accomm odate the religi ous beliefs of a variety of groups, none of

these measures will s top the Mandate from being im posed on Tyndale’s plan year beginning

October 1, 2012.

143. Any alleged interest Defendants have

in providing free FDA-approved

abortifacient contraception and related educatio n and counseling witho ut cost-sharing could be

advanced through other, m ore narrowly tailored m echanisms that do not burden the religious

beliefs of Tyndale and its owners and do not require them to provide or facilitate coverage of

such items through Tyndale’s health plan.

144. Unless relief issues f rom this Court, the M andate directly and imm inently

threatens Tyndale with its draconian penalties.

145. Without injunctive and declaratory re lief as requested herein, including

preliminary injunctive relief, Tyndale and its ow ners are suffering and will continue to suffer

irreparable harm.

146. Tyndale and its owners have no adequate remedy at law.

FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb
147. Plaintiffs reallege all matters set fort h in paragraphs 1–146 and incorporate the m
herein by reference.
148. Tyndale’s and its owners’ sincerely held religious beliefs prohibit them from
providing coverage for abortifacients, including emergency contraception and IUDs and related
education and counseling, in Tyndale’s employee health plan.

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149. When Tyndale and its owners com ply with their sincerely held biblical principles and Christian beliefs on abortifacients such as emergency contraception and IUDs, they exercise religion within the meaning of the Religious Freedom Restoration Act.
150. The Mandate imposes a substantial burden on Tyndale’s and its owners’ religious exercise and coerces them to change or violate their sincerely held religious beliefs, or be subject to penalties and harm to their property and livelihood.
151. The Mandate chills Tyndale’s and its ow ners’ religious exercise within the meaning of RFRA.
152. The Mandate exposes Tyndale to lawsui ts, substantial fine s, and financial burdens, and pressures Tyndale and its owners by threatening their property and livelihood based on their religious exercise.
153. The Mandate exposes T yndale to substantial competitive disadvantages because of uncertainties about Tyndale’s health insurance benefits caused by the Mandate.
154. The Mandate furthers no com pelling governmental interest and is not narrowly tailored to any compelling governmental interest.
155. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
156. The Mandate violates RFRA. WHEREFORE, Plaintiffs pray for the relief set forth below.
SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 157. Plaintiffs reallege all matters set fort h in paragraphs 1–146 and incorporate the m herein by reference.
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158. Tyndale’s and its owners’ sincerely held religious beliefs prohibit them from providing coverage for abortifacients, including emergency contraception and IUDs and related education and counseling, in Tyndale’s employee health plan.
159. When Tyndale and its owners com ply with their sincerely held biblical principles and Christian beliefs on abortifacients such as emergency contraception and IUDs, they exercise religion within the meaning of the Religious Freedom Restoration Act.
160. The Mandate is not neutral and is not generally applicable. 161. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 162. The Mandate furthers no compelling governmental interest. 163. Defendants have conced ed the lack of a com pelling interest in the M andate by virtue of their and PPACA’s voluntary exclus ion and exemption of millions of Americans from the Mandate’s coverage. 164. The Mandate is not the least restrictive means of furthering Defendants’ purported interests. 165. The Mandate chills Tyndale’s and its owners’ religious exercise. 166. The Mandate exposes Tyndale to lawsui ts, substantial fine s, and financial burdens, and pressures Tyndale and its owners by threatening their property and livelihood based on their religious exercise. 167. The Mandate exposes T yndale to substantial competitive disadvantages because of uncertainties about Tyndale’s health insurance benefits caused by the Mandate.
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168. The Mandate imposes a substantial burden on Tyndale’s and its owners’ religious

exercise and coerces them to change or violate their sincerely held religious beliefs, or be subject

to penalties and harm to their property and livelihood.

169. The Mandate is not narrowly tailored to any compelling governmental interest.

170. By design, Defendants framed the Mandate to apply to some religious Americans

but not to others, resulting in discrimination among religions.

171. Defendants have created exem ptions to the Mandate for some religious believers

but not others based on characteristics of their beliefs and their religious exercise.

172. Defendants designed the Manda te, the religio us exemptions thereto, and the

“compromise” and guidance allowances thereto, in a way that m akes it impossible for Tyndale

and other similar religious Americans to comply with their sincerely held religious beliefs.

173. Defendants promulgated both th e Mandate and the

religious

exemption/allowances with the purpose and intent to suppress the religious exercise of Tyndale

and its owners and other religious Americans.

174. The Mandate violates T yndale’s and its owners’ rights secured to them by the

Free Exercise Clause of the First Amendment of the United States Constitution.

WHEREFORE, Plaintiffs pray for the relief set forth below.

THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution
175. Plaintiffs reallege all matters set fort h in paragraphs 1–146 and incorporate the m
herein by reference.

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176. The First Amendment’s Establishment Clause prohibits the establishment of any religion and/or excessive government entanglement with religion.
177. To determine whether religious persons or entities like Ty ndale are required to comply with the Mand ate, are required to con tinue to comply with the Mandate, ar e eligible for an exemption or other accommodations, or will c ontinue to be eligible for the sam e, Defendants must examine the religious beliefs and doctrinal teachings of persons or entities like Tyndale.
178. Obtaining sufficient information for the Defendants to an alyze the content of Tyndale’s sincerely held religious beliefs requires ongoing, comprehensive governm ent surveillance that impermissibly entangles Defendants with religion.
179. The Mandate discriminates among religions and among denominations, favoring some over others, and exhibits hostility to religious beliefs.
180. The Mandate discriminates against and among religions in refusing to accommodate or exem pt a religious Bible publisher that provides nearly all its pro ceeds to a religious non-profit, while exempting or accommodating others.
181. The Mandate adopts a particular th eological view of what is accep table moral behavior with respect to provision of abortif acient coverage and im poses that view upon all adherents of religion who must either conform their consciences or suffer penalty.
182. The Mandate violates T yndale’s and its owners’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution.
WHEREFORE, Plaintiffs pray for the relief set forth below.
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FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 183. Plaintiffs reallege all matters set fort h in paragraphs 1–146 and incorporate the m herein by reference. 184. Defendants’ requirement of provision of insurance coverage for education and counseling regarding abortifacient drugs and devi ces such as emergency contraception and IUDs forces Tyndale and its o wners to speak and fund speech in a m anner contrary to their relig ious beliefs. 185. Defendants have no narrowly tailored compelling interest to justify this compelled speech. 186. The Mandate violates T yndale’s and its owners’ rights secured to them by the Free Speech Clause of the First Amendment of the United States Constitution. WHEREFORE, Plaintiffs pray for the relief set forth below.
FIFTH CLAIM FOR RELIEF Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution 187. Plaintiffs reallege all matters set fort h in paragraphs 1–146 and incorporate the m herein by reference. 188. Because the Mandate s weepingly infringes upon religious exercise an d speech rights that are constitutionally protected, it is unconstitutionally vague and overbroad in violation of the due process rights of Tyndale and its owners and other parties not before the Court. 189. Persons of common intelligence must n ecessarily guess at the m eaning, scope, and application of the Mandate and its exemptions.
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190. This Mandate lends itself to discrimina tory enforcement by government officials in an arbitrary and capricious manner.
191. PPACA and the Mandate vest Defendants with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations, in crafti ng “religious employer” exemptions and chang ing the sam e, in crafti ng and m odifying further “accommodations” and additional definitions of entities tha t qualify for the sam e, and in enf orcing the M andate and crafting rules regarding the same such as through its repeatedly issued enforcement “Guidances.”
192. The Mandate is an un constitutional violation o f Tyndale’s and its ow ners’ due process rights under the Fifth Amendment to the United States Constitution.
WHEREFORE, Plaintiffs pray for the relief set forth below.
SIXTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act 193. Plaintiffs reallege all matters set fort h in paragraphs 1–146 and incorporate the m herein by reference. 194. Because they did not give proper notice and an opportunity for public comm ent, Defendants did not take into accou nt the full im plications of the regulations by com pleting a meaningful consideration of the relevant matter presented. 195. Defendants did not consider or res pond to the volum inous comments they received in opposition to the interim final rule. 196. Defendants conceded upon issuance of their interim final Mandate in August 2011 that they did not intend to give meaningful consideration to subsequent comments due to the alleged need to finalize the Mandate withou t subsequent change from the for m it took in August 2011.
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197. Defendants actually refused to give m eaningful consideration to comme nts when it finalized its Mandate in February 2012 without change.
198. Defendants further conceded in its March 2012 ANPRM that it should have given meaningful consideration to and not finalized its Mandate wit hout change in February 2012, and that the Mandate needed to be amended according to concerns raised in those comments.
199. PPACA requires that the Mandate not be imposed until a year after it is issued in final unchanged form.
200. Yet despite Defendants’ expressed intent in March 2012 to amend the Mandate in the future, which im plicitly conceded that it sh ould not h ave been f inalized without change in February 2012, Defendants have not refrained from imposing the Mandate against Tyndale and others now, as if the August 2011 interim final rule meaningfully considered public comments.
201. As a result of this violation, Tyndale has been prejudiced by being threatened by and subject to the Mandate’s penalties now, instead of in its f irst plan year tha t commences a year after the Mandate’s issuance with changes that still have not occurred.
202. Therefore, Defendants have taken ag ency action not in accord ance with procedures required by law, and Tyndale is enti tled to relief pursuant to 5 U.S.C. § 706(2)(D) and § 553(b) & (c).
203. In promulgating the Mandate, Defendants also failed to consider the constitutional and statutory implications of the Mandate on Tyndale and its owners and similar persons.
204. Defendants’ explanation (and lack thereo f) for their decision not to exem pt Tyndale and sim ilar religious or ganizations from the Mandate r uns counter to the evidence submitted by religious Americans during the comment period.
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205. Thus, Defendants’ issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A ) because the Mandate fails to consider th e full extent of its implications and it does not take into consideration the evidence against it.
206. As set forth above, the Mandate viol ates RFRA and t he First and Fifth Amendments to the U.S. Constitution.
207. The Mandate is also contrary to the pr ovisions of the PPACA which states that “nothing in this title” —i.e., title I of the Act, which includes the provision dealing with “preventive services”—“shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essen tial health benefits for any plan year.” Section 1303(b)(1)(A). Som e drugs inclu ded as “F DA-approved contraceptives” under the Mand ate cause abortions by causing the dem ise of human embryos before and/or after im plantation. By Executive Order, this provision prohibits Defendants from requiring abortion in Tyndale’s plan.
208. The Mandate is a lso contrary to the pr ovisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, an d Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008), which provides that “[n]one of the funds m ade available in this Act [m aking appropriations for Defendants Department of Labor a nd Health and Hum an Services] may be m ade available to a Federal agency or program . . . if such agency, program , or governm ent subjects any institutional or individual health care entity to disc rimination on the basis that the hea lth care en tity does not provide, pay for, provide coverage of, or refer for abortions.”
209. The Mandate also violates the provisions of the Church Am endment, 42 U.S.C. § 300a-7(d), which provides that “No individual sh all be required to perf orm or assist in the performance of any part of a he alth service program or research activity funded in whole or in
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part under a program administered by the S ecretary of Health and Human Services if his performance or assistance in the perf ormance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
210. The Mandate is contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A)f.
WHEREFORE, Plaintiffs pray for the relief set forth below.
PRAYER FOR RELIEF Plaintiffs respectfully request the following relief: A. That this C ourt enter a judgm ent declaring the Mandate and its application to Tyndale and its plan, and others sim ilarly situated but not before the Court, to be an unconstitutional and illegal violat ion of Tyndal e’s, its owners’, and others’ rights protected by RFRA, the Free Exercise, Establish ment, and Fr ee Speech Clauses of the First Amendm ent to the United States Constitution, the Due Process Clause of t he Fifth Am endment to the United States Constitution, and the Adm inistrative Procedure Act, and theref ore invalid in any way applicable to them; B. That this Court enter a pre liminary and a perm anent injunction prohibiting Defendants from applying the Mandate to Tyndale a nd its plan and others sim ilarly situated but not before the Court in a way th at substantially burdens the reli gious belief of Tyndale and its owners, or any person, in viol ation of RFRA and the Constitu tion, and prohibiting Defendants from continuing to illegally discrim inate against Tyndale and others not before the Court by requiring them to provide or cause to be provided health insuran ce coverage for abortifacients,
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contraception, sterilization and related education and counseling to employees of entities they own or operate;
C. That this Court award Plaintiffs court costs and reasonable attorney’s fees, as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. § 1988);
D. That this Court grant such other and further relief as to which Plaintiffs may be entitled.
Plaintiffs demand a jury on all issues so triable.

Respectfully submitted this 3rd day of December, 2013. Attorneys for Plaintiffs:

David A. Cortman, Esq.

ALLIANCE DEFENDING FREEDOM

1000 Hurricane Shoals Road NE

Suite D-1100

A

Lawrenceville, GA 30043

(770) 339-0774

Washington,

(770) 339-6744 (facsimile)

dcortman@alliancedefendingfreedom.org

saden@alliancedefendingfreedom

gbaylor@alliancedefendingfreedom

Kevin H. Theriot, Esq.

ALLIANCE DEFENDING FREEDOM

15192 Rosewood

Leawood, KS 66224

(913) 685-8000

(913) 685-8001 (facsimile)

ktheriot@alliancedefendingfreedom.org

estanley@alliancedefendingfreedom.org

s/ Matthew S. Bowman Steven H. Aden, Esq. Gregory S. Baylor, Esq. Matthew S. Bowman, Esq.
LLIANCE DEFENDING FREEDOM 801 G Street NW, Suite 509
DC 20001 (202) 393-8690 (202) 237-3622 (facsimile)
.org .org
mbowman@alliancedefendingfreedom.org

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VERIFICATION OF COMPLAINT PURSUANT TO 28 U.S.C. § 1746
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed on December 3, 2013

___ s/ Mark D. Taylor_______________ MARK D. TAYLOR

(Original signature in possession of attorneys for Plaintiffs, pursuant to LCvR 5.4(b)(5))

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Case 1:12-cv-01635-RBW Document 46 Filed 12/03/13 Page 37 of 37 CERTIFICATE OF SERVICE
I hereby certify that the foregoing docum ent was electronically filed with th e Court’s Clerk by em ail on Decem ber 3, 2013, to be subsequent ly electronically served on counsel for Defendants and others who have appeared in the case when the Clerk files the am ended complaint in the Court’s CM/ECF system.
s/ Matthew S. Bowman______________ Matthew S. Bowman
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 Case 1:12-cv-01635-RBW Document 50 Filed 03/06/15 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TYNDALE HOUSE PUBLISHERS, INC., et al.; Plaintiffs,

v.

SYLVIA M. BURWELL, et al.;

Defendants.

)

)

)

)

)

)

) Civil Action No.

)

1:12-CV-1635-RBW

) ) ) )

JOINT STATUS REPORT The parties hereby submit this joint status report. The parties agree in part and disagree in part on how the case should proceed. The parties agree that summary and final judgment should be entered in favor of Plaintiffs on their Religious Freedom Restoration Act (RFRA) claim, a permanent injunction should be entered for Plaintiffs, and the deadlines for any petition from Plaintiffs seeking attorneys’ fees and costs should be extended to 45 days after judgment is entered. The parties disagree on the language of the permanent injunction. Each side of the case submits its position as follows. Plaintiffs’ Position on Injunction Language Plaintiffs respectfully submit that the Court should enter the same injunction it entered on November 16, 2012, as a permanent injunction. Converting the preliminary injunction to permanent status is warranted because the parties concede that the facts have not changed. Nor has the law changed in Defendants’ favor. This Court’s existing decision remains the law of the case, and in fact it was vindicated by Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014).
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The Court’s existing injunction reads:
ORDERED that the defendants, their agents, officers, and employees are ENJOINED from pursuing any enforcement actions against or imposing any penalties on the plaintiffs provided for in 26 U.S.C. §§ 4980D, 4980H and 29 U.S.C. § 1132 as a result of the plaintiffs’ failure to comply with the requirement under 42 U.S.C. § 300gg-13(a)(4) that the plaintiffs provide in Tyndale House Publishers, Inc.’s employee health plans what they believe to be abortifacients or related education and counseling. Doc. # 26. The permanent injunction should be the same except with the addition of the word “permanently” before the word “ENJOINED.” The government instead asks this Court to enter a new and different injunction. The substantive problems with the government’s proposed language are discussed further below, and (in short) are that it asks this Court to opine on future unwritten rules not at issue here. But procedurally, the government has no legal ground on which to oppose entry of the existing injunction language. It already lost its attempt to prevent that injunction. It then abandoned its appeal of the injunction. And it lost Hobby Lobby. The “consent” that the government offers now cannot operate to resist injunction language that it already failed to defeat. The government points to other District Courts that have entered final injunctions using the new language the government proposes. But most such courts also had the consent of the Plaintiffs, which is lacking here. The cases also lacked a ruling like this Court’s existing ruling, which already ruled against the government in imposing existing language. Moreover, several other courts have rejected the government’s proposal to enter new injunction language. Supreme Court rulings support maintaining the existing language. The court issued a certiorari ruling in plaintiffs’ favor in Burwell v. Newland, No. 13-919 (U.S. July 1, 2014), after the District Court had entered an injunction very similar to the one entered here, using language the government rejects now. See Newland v. Sebelius, 881 F. Supp. 2d. 1287, 1299 (D. Colo. 2012) (see attached Exhibit 1 at 17–18). Additionally, after Supreme Court’s remand in Conestoga Wood Specialties Corp. v. Burwell, the District Court rejected the government’s attempt to propose new injunction language as it does here, and instead the court entered the
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same language it had already entered at the preliminary injunction stage. No. 5:12-cv-6744MSG, Doc. # 82 (E.D. Pa. Oct. 2, 2014) (attached as Exhibit 2). Likewise, in Geneva College v. Burwell, which involved for-profit plaintiffs from the Seneca Hardwood Lumber Company, the District Court rejected the government’s proposed language and entered permanent injunction language that was similar to its existing preliminary injunction. No. 2:12-cv-207-JFC, Doc. # 125 (W.D. Pa. Oct. 10, 2014) (attached as Exhibit 3).
The government’s proposed language is substantively problematic because it fails to cite what it should cite, and it cites what it should not. It improperly fails to cite the statute it is enjoining: the Mandate itself. Defendants’ language specifically cites only “26 C.F.R § 54.98152713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); [and] 45 C.F.R. § 147.130(a)(1)(iv).” But the Mandate resides in 42 U.S.C. § 300gg-13(a)(4), and in a guideline referenced therein which was later adopted by the Health Resources and Services Administration (see http://www.hrsa.gov/womensguidelines/ ), and its penalties reside in the other statutes referenced above. This Court’s injunction cited § 300gg-13(a)(4) and all the penalty statutes. Defendants’ language does not do so. Apparently Defendants oppose enjoining the statutes with respect to Tyndale. But Defendants already lost that issue and they withdrew their appeal.
The language Defendants propose would have this Court speculate on future rules that the injunction does not apply to. Since those rules do not exist, there is no warrant for this Court to discuss them, or opine on whether this injunction applies to them. This injunction should say what it is enjoining—the statutory Mandate and its penalties. It should not venture into the realm of saying what it is not enjoining, especially with regard to future rules. This Court has ruled that Plaintiffs are entitled to an injunction against the Mandate and its penalties. Defendants have not won the right to eliminate that injunction and instead obtain one that speculates about future rule changes.
Defendants give the incorrect impression that under Hobby Lobby, injunctions should not apply to the Mandate itself, but should opine on what future “accommodation” rules might mean.
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But the Supreme Court assiduously avoided issuing any holding on “accommodations.” Hobby Lobby, 134 S. Ct. at 2782. Such issues were not before the court.
Defendants argue that somehow Hobby Lobby said that the injunction should not run to anyone but “the corporate plaintiff.” This notion simply cannot be found in Hobby Lobby. The fact that Hobby Lobby focused on corporate rights does not mean that owners and operators have no rights. On the contrary, Hobby Lobby declared that it was ruling in favor of the corporation precisely “to protect the rights of these people.” Id. at 2768 (emphasis added). This Court likewise went out of its way to emphasize the standing that Tyndale’s owners themselves possess—which at the time was asserted in a third party capacity, but which now after the amended complaint they assert as co-plaintiffs. Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 118 (D.D.C. 2012). Thus this Court issued injunctive relief for all “the plaintiffs.” Defendants have not made any demonstration that such relief is improper. Defendants asserted this same flawed argument in Geneva/Seneca, and Judge Conti rejected their position when she issued relief for the company and its owners, including in their individual capacities. See Exh. 3 attached; No. 2:12-cv-207-JFC, Doc. # 125 (W.D. Pa. Oct. 10, 2014).
Defendants are asking this Court to opine on future rule changes. Plaintiffs simply ask that the Court enter the injunction it already entered, based on the decision it already wrote. The existing injunction, on its face, enjoins the existing statutory Mandate and its penalties, and it does so properly. Issuing the same injunction in permanent form is consistent with this Court’s existing ruling, and with cases such as Newland, Conestoga, and Geneva (Seneca).
Finally, this Court asked the parties to specifically take a position on “whether the pending motions before the Court need to be decided.” The parties have agreed Plaintiffs are entitled to judgment. For the purpose of being clear on this point, Plaintiffs’ form of order below includes language granting their summary judgment motion and denying Defendants’ motion.
Plaintiffs propose the following form of order.
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Plaintiffs’ Proposed Form of Order The Court, having reviewed all the parties’ submissions and arguments in this case, including their consent to final judgment in Plaintiffs’ favor, and for good cause shown, declares as follows: IT IS ORDERED that Plaintiffs’ motion for summary judgment [Doc. # 36] is GRANTED, and Defendants’ motion for summary judgment [Doc. # 41] is DENIED. IT IS FURTHER ORDERED that final judgment is entered in favor of Plaintiffs and against Defendants on Plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. IT IS FURTHER ORDERED that the Defendants, their agents, officers, and employees are permanently ENJOINED from pursuing any enforcement actions against or imposing any penalties on the plaintiffs provided for in 26 U.S.C. §§ 4980D, 4980H and 29 U.S.C. § 1132 as a result of the plaintiffs’ failure to comply with the requirement under 42 U.S.C. § 300gg-13(a)(4) that the plaintiffs provide in Tyndale House Publishers, Inc.’s employee health plans what they believe to be abortifacients or related education and counseling. IT IS FURTHER ORDERED that any petition by Plaintiffs for attorneys’ fees or costs shall be submitted on or before 45 days (or the next business day if that day falls on a weekend or court holiday) from the date this judgment is issued.
Defendants’ Position on Injunction Language In light of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), defendants agree that plaintiffs are entitled to judgment in their favor on their RFRA claim, and the entry of a permanent injunction. However, the parties do not agree on the appropriate scope of that injunction. Plaintiffs’ proposed permanent injunction is inappropriate for several reasons.1 First,
1 Plaintiffs suggest that the government has somehow forfeited its right to object to the entry of the language of the preliminary injunction as a permanent injunction. But, when considering a permanent injunction, neither the government nor the Court is bound by the language of the preliminary injunction. See, e.g., Sole v. Wyner, 551 U.S. 74, 84 (2007) (noting the “tentative character” of a preliminary injunction, which “ha[s] no preclusive effect in the continuing litigation”). As explained herein, the language of plaintiff’s proposed preliminary injunction, if adopted
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it is overbroad and ambiguous, in that it could be read to enjoin the application to plaintiffs of future, substantively different regulations. Second, consistent with the Supreme Court’s ruling in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the injunction should apply only to the corporate plaintiff. And third, it should not enjoin application of the penalties found in 26 U.S.C. § 4980H, as that provision has nothing to do with contraceptive coverage.
Defendants’ proposed injunction, which is below, would preclude the government from enforcing against plaintiff Tyndale House Publishers, Inc. (“Tyndale”), the existing contraceptive coverage requirement—the law that was before the Supreme Court in Hobby Lobby and that is before this Court in this case—but would not be so broad as to enjoin (or arguably be read to enjoin) application of any future regulations designed to accommodate forprofit companies with religious objections to providing coverage for contraceptive services, while ensuring that their employees still have access to such services. Indeed, the defendant Departments have already proposed such an accommodation. See Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. Reg. 51,118 (Aug. 27, 2014) (Notice of Proposed Rulemaking). Plaintiffs, on the other hand, ask this Court to enter an injunction that is ambiguous in scope, and could be read—indeed, it appears to be plaintiffs’ intent that it be read—to prevent the government from enforcing not only the existing contraceptive coverage regulations, but also any future regulations designed to accommodate plaintiffs’ religious beliefs by allowing them to opt out of providing contraceptive coverage. For the reasons explained below, it would be inappropriate for the Court enter an order that could be viewed as effectively preempting application of any forthcoming regulations, and the injunction issued in this case should be carefully drawn to avoid such a result.
as a permanent injunction, is overbroad and would threaten to enjoin agency action that is presumptively valid. Moreover, the Court should consider intervening authority and events since the preliminary injunction was entered before entering a permanent injunction. Specifically, at the time that the preliminary injunction was entered, there was no ongoing rulemaking that could change the regulatory scheme as applied to plaintiffs, and thus defendants were not concerned—as they are now—that the scope of the injunction might preclude enforcement of future regulations. Also, after the Court entered the preliminary injunction, the Supreme Court decided Hobby Lobby, in which the possibility of such regulations served as the basis for the Supreme Court’s conclusion that the current contraceptive coverage requirement is invalid as to certain entities.
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In Hobby Lobby, the Supreme Court held that the Affordable Care Act’s contraceptive coverage requirement violated RFRA with respect to certain closely held for-profit entities that, under the current regulations, cannot opt out of the requirement. 134 S. Ct. at 2759-60, 2782, 2785. The existence of accommodations in the current regulations permitting certain nonprofit organizations to opt out of the requirement, see 78 Fed. Reg. 39,870, 39,874-88 (July 2, 2013); see also 79 Fed. Reg. 51,092 (Aug. 27, 2014) (interim final regulations (IFR) augmenting the accommodations in light of the Supreme Court’s interim order in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014)), was crucial to the Supreme Court’s decision in large part because the Court found that the opt-out provisions for nonprofits constituted a less restrictive means of furthering the government’s compelling interests. The Court explained that the opt-out regulations “effectively exempt[]” organizations that are eligible for accommodations. Hobby Lobby, 134 S. Ct. at 2763. It emphasized that the opt-out regulations “seek[] to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of [such] entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” Id. at 2759. Extending that very type of accommodation to certain for-profit entities with religious objections to contraceptive coverage is precisely what has been proposed in the current rulemaking proceeding, and which, if adopted as a final rule, would be called into question by plaintiffs’ proposed injunction.
The Supreme Court described the opt-out regulations for nonprofit organizations as “an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.” Id. at 2782. The Court reasoned that the accommodations available to eligible nonprofit organizations “serve[] [the government’s] stated interests equally well” as the requirement currently applicable to for-profit entities because “female employees” of eligible nonprofits “continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and . . . face minimal logistical and administrative obstacles” in obtaining the coverage. Id. (quotation omitted). Thus, the Court’s conclusion that the
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contraceptive coverage requirement “is unlawful” under RFRA as applied to certain closely-held, for-profit entities rested on its recognition that the accommodations available to religious nonprofits “constitute[] an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” Id. at 2759-60. The Court went on to note that “[a]lthough [the government] has made [the accommodations] available to religious nonprofits that have religious objections to the contraceptive [coverage requirement], [the government] has provided no reason why the same [accommodations] cannot be made available when the owners of forprofit corporations have similar religious objections.” Id. at 2759; see also Priests for Life v. HHS, 772 F.3d 229 (D.C. Cir. 2014) (rejecting RFRA challenge to accommodations); Mich. Catholic Conf. v. Burwell, 755 F.3d 372 (6th Cir. 2014) (same), reh’g en banc denied, Nos. 132723, 13-6640 (Sept. 16, 2014), cert. pet. pending, No. 14-701 (filed Dec. 12, 2014); Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014) (same), reh’g en banc denied, No. 13-3853 (May 7, 2014), cert. pet. pending, No. 14-392 (filed Oct. 3, 2014); Geneva Coll. v. HHS, --- F.3d ---, 2015 WL 543067 (3d Cir. Feb. 11, 2015) (same).
In response, the defendant Departments have proposed regulations that would provide regulatory accommodations to certain closely held for-profit entities that have a religious objection to providing coverage for some or all contraceptive services otherwise required to be covered. See 79 Fed. Reg. 51,118. At the conclusion of this rulemaking process, plaintiffs may be eligible for religious accommodations that would effectively exempt them from providing coverage for contraceptives to their employees while ensuring that their employees will receive coverage without cost sharing for all FDA-approved contraceptives.
Accordingly, defendants’ proposed injunction and judgment specifies, consistent with the Supreme Court’s decision in Hobby Lobby, that it does not prevent defendants from enforcing the contraceptive coverage requirement against plaintiffs “if religious accommodations . . . are made available to for-profit entities” and plaintiffs do not either avail themselves of those accommodations or provide contraceptive coverage. This language is simply intended to make clear that while the injunction precludes enforcement of existing law, it would not preclude
8

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enforcement of any future, substantively different regulations, which would be entitled to a “presumption of validity.” See, e.g., Chamber of Commerce v. EPA, 642 F.3d 192, 208 (D.C. Cir. 2011). Plaintiffs will, of course, be free to challenge any future accommodations should they choose to do so.
If plaintiffs’ proposed language were adopted, defendants—out of an abundance of caution—might have to come back to the Court to seek relief from the injunction before enforcing the new rules, which would impose a significant burden on defendants and the Court, and would improperly treat any new regulations as presumptively invalid before they are even promulgated. Such an ambiguous injunction would not satisfy the specificity requirements of Federal Rule of Civil Procedure 65(d)(1), and would run afoul of the Supreme Court’s admonition that, “[s]ince an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed.” Schmidt v. Lessard, 414 U.S. 473, 476 (1974); see also id. (“Rule [65(d)] was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.”). Furthermore, it is well established that “injunctive relief should be no broader than necessary to provide full relief to the aggrieved party.” Meyer v. CUNA Mut. Ins. Soc’y, 648 F.3d 154, 170 (3d Cir. 2011); see also, e.g., City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 145 (2d Cir. 2011); PBM Products, LLC v. Mead Johnson & Co., 639 F.3d 111, 128 (4th Cir. 2011) (observing that an injunction may “address only the circumstances of the case”). Plaintiffs’ proposed injunction is overbroad or otherwise inappropriate, and thus, should be rejected (or, at the very least, modified).
In essence, plaintiffs would have the Court presumptively enjoin the enforcement of regulations that do not yet exist, and that, if and when they are promulgated, will be substantively different from the regulations that the Supreme Court held to be invalid in Hobby Lobby. Plaintiffs will, of course, be free to challenge any new regulations once they are promulgated if their religious concerns are not resolved, as defendants’ proposed injunction
9

Case 1:12-cv-01635-RBW Document 50 Filed 03/06/15 Page 10 of 15
makes clear. Plaintiffs have suggested that the government invites the Court to “opine on future unwritten rules not at issue here”—but plaintiffs have it backwards. In fact, it is plaintiffs that ask this Court to effectively opine on yet-to-be finalized regulations, which are entitled to a presumption of validity, by issuing an injunction that might prevent the government from enforcing those regulations before they are even promulgated. Defendants, by contrast, want to ensure only that the scope of the injunction is well-defined and limited to current law (which provides no accommodation to for-profit employers).
Although defendants believe that their proposed language is the most precise option, they would also be satisfied with an injunction that includes the following language, which has been entered by courts in numerous cases brought by for-profit corporations challenging the contraceptive coverage requirement—including this Court and several other courts in this District—in some cases over the plaintiffs’ objection:
ORDERED that this Injunction and Judgment does not apply with respect to any changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents plaintiff from filing a new civil action to challenge any such future changes. See, e.g., Permanent Inj. & J., C.W. Zumbiel Co. v. HHS, No. 1:13-cv-1611-RBW (D.D.C. Nov. 3, 2014), ECF No. 19 (attached as Exhibit A); Mem. Op. and Order & Judgment, Johnson Welded Products, Inc. v. Burwell, No. 1:13-cv-609 (D.D.C. Oct. 24, 2014), ECF Nos. 10, 11 (attached as Exhibit B) (including language over the plaintiff’s objection); Order, Gilardi v. HHS, No. 1:13-cv-104 (D.D.C. Oct. 20, 2014), ECF No. 49 (attached as Exhibit C); Order & Judgment, Midwest Fastener Corp. v. Burwell, No. 1:13-cv-1337 (D.D.C. Oct. 24, 2014), ECF No. 21 (attached as Exhibit D); Inj. & Judgment, Barron Indus., Inc. v. Burwell, No. 1:13-cv01330 (D.D.C. Oct. 27, 2014), ECF No. 10 (attached as Exhibit E); Final J. & Order, Tonn & Blank Constr., LLC v. Burwell, No. 1:12-cv-325 (N.D. Ind. Nov. 6, 2014), ECF No. 56 (attached as Exhibit F) (including language over the plaintiff’s objection).2
2 The undersigned counsel for the government proposed this alternative language to plaintiffs’ counsel, who stated that plaintiffs oppose this language as well.
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Plaintiffs contend that defendants’ proposed injunction is insufficient because it purportedly does not enjoin enforcement of 42 U.S.C. § 300gg-13(a)(4) against plaintiffs. But defendants’ proposed injunction extends to “those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiffs to provide their employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious grounds”—provisions of federal law that include the statute under which the regulatory scheme at issue in Hobby Lobby operate. As explained above, defendants’ proposed injunction is intended to make clear that, although defendants cannot enforce the statute under the regulatory scheme that existed (and currently exists) and that was at issue in Hobby Lobby, the injunction does not extend to any future regulatory scheme under the statute that provides accommodations to for-profit entities—a regulatory scheme that is entitled to a presumption of validity. The Supreme Court held only that, in the absence of an accommodation for for-profit entities, like the one the government had devised for non-profit entities, the government had not shown that it was applying the contraceptive coverage requirement in the least restrictive manner. The injunction entered by this Court, therefore, should not—and should avoid any suggestion that it does—enjoin any future regulations that provide accommodations to for-profit entities. Indeed, contrary to plaintiffs’ suggestion, the permanent injunction entered in Conestoga, the case decided by the Supreme Court along with Hobby Lobby, makes clear that it does not. See Order, Conestoga Wood Specialties Corp. v. Burwell, No. 5:12-cv-6744 (E.D. Pa. Oct. 2, 2014), ECF No. 82 (stating that “should any future legislation or regulation come into effect providing for-profit entities a religious accommodation to the contraceptive coverage mandate, the Government reserves its right to enforce such legislation or regulation against Plaintiffs”).
There are at least two additional problems with the language proposed by plaintiffs. First, the permanent injunction should enjoin enforcement of the applicable provisions only as to the corporate plaintiff, Tyndale, and should not extend to the individual plaintiff. The Supreme Court’s decision in Hobby Lobby addressed only the corporate plaintiffs’ RFRA claim. The
11

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Court determined that “[t]he contraceptive mandate, as applied to closely held corporations, violates RFRA.” Hobby Lobby, 134 S. Ct. at 2785 (emphasis added). Having done so, the Court had no occasion to address the RFRA claims of the individual plaintiffs who owned the corporations. Moreover, as a practical matter, an injunction against enforcement of the applicable provisions as to the corporate plaintiff will protect the individual plaintiff because the government will be enjoined from enforcing the contraceptive coverage requirement against the company he owns and controls. The permanent injunction, therefore, should be limited to Tyndale.
Second, the permanent injunction should not enjoin application of the penalties found in 26 U.S.C. § 4980H, as plaintiffs’ proposed injunction does, because that statutory provision has no relevance to this case. Section 4980H penalties could, starting in 2015, be imposed, for example, if Tyndale were to drop health coverage altogether and at least one of its employees is certified as having been enrolled in a qualified health plan and allowed a premium tax credit under 26 U.S.C. § 36B or paid a cost sharing reduction under section 1412 of the Affordable Care Act. There are no penalties in section 4980H related to the failure to provide contraceptive coverage (or any other preventive service). The penalties that address such a failure are found in 26 U.S.C. § 4980D, a provision that defendants agree should be enjoined with respect to Tyndale’s failure to provide contraceptive coverage.
For all of these reasons, the Court should adopt defendants proposed language, which is as follows:
Defendants Proposed Form of Order In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and upon defendants’ consent, it is hereby ORDERED that defendants, their employees, agents, and successors in office are enjoined (a) from enforcing
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(1) the “June 30, 2014 Contraceptive Coverage Requirement,” defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiff Tyndale House Publishers, Inc. to provide its employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and
(2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132 and 1185d; and
(b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement
against plaintiff Tyndale House Publishers, Inc., its employee health plan(s), the group health coverage provided in connection with such plan(s), and/or Tyndale House Publishers, Inc.’s health insurance issuers and/or third-party administrators with respect to Tyndale House Publishers, Inc.’s health plan(s); and it is further
ORDERED that judgment is entered in favor of plaintiffs and against defendants on plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is further
ORDERED that nothing herein prevents defendants, their employees, agents, and successors in office from enforcing the contraceptive coverage requirement against plaintiff Tyndale House Publishers, Inc., its employee health plan(s), the group health coverage provided in connection with such plan(s), and/or Tyndale House Publishers, Inc.’s health insurance issuers and/or third-party administrators with respect to Tyndale House Publishers, Inc.’s health plan(s), if religious accommodations to the contraceptive coverage requirement are made available to forprofit entities; and it is further
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ORDERED that nothing herein prevents plaintiffs from filing a new civil action to challenge any such future religious accommodations; and it is further
ORDERED that any petition by plaintiffs for attorneys’ fees or costs shall be submitted on or before 45 days (or the next business day if that day falls on a weekend or court holiday) from the date this judgment is issued.
Respectfully submitted this March 6, 2015.

Attorneys for Plaintiffs:
s/ Matthew S. Bowman______ Steven H. Aden, Esq. Gregory S. Baylor, Esq. Matthew S. Bowman
(D.C. Bar # 993261) Alliance Defending Freedom 801 G Street NW, Suite 509 Washington, D.C. 20001 Phone: (202) 393-8690 Fax: (202) 237-3622 mbowman@alliancedefendingfreedom.org
David A. Cortman, Esq. ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road NE Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
Kevin H. Theriot, Esq. ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org

Attorneys for Defendants:
BENJAMIN C. MIZER Acting Assistant Attorney General
JENNIFER RICKETTS Director
SHEILA M. LIEBER Deputy Director
/s/ Benjamin L. Berwick BENJAMIN L. BERWICK (MA Bar No. 679207) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W., Room 7306 Washington, D.C. 20001 Tel: (202) 305-8573; Fax: (202) 616-8470 Email: benjamin.l.berwick@usdoj.gov

14

Case 1:12-cv-01635-RBW Document 50 Filed 03/06/15 Page 15 of 15 CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was electronically filed with the Court’s ECF system on March 6, 2015, and was thereby electronically served on counsel for Defendants and others who have appeared in the case.
s/ Matthew S. Bowman______________ Matthew S. Bowman
15

 
 Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 1 of 12
CLOSED,JURY,STAYED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:12−cv−01635−RBW

TYNDALE HOUSE PUBLISHERS, INC. et al v. SEBELIUS et Date Filed: 10/02/2012

al

Date Terminated: 01/31/2013

Assigned to: Judge Reggie B. Walton

Jury Demand: Plaintiff

Case in other court: 13−05018

Nature of Suit: 440 Civil Rights: Other

Cause: 42:1983 Civil Rights Act

Jurisdiction: U.S. Government Defendant

Plaintiff

TYNDALE HOUSE PUBLISHERS, INC. a Delaware Corporation

represented by Matthew S. Bowman ALLIANCE DEFENDING FREEDOM 440 1st Street, NW Suite 600 Washington, DC 20001 (202) 393−8690 Fax: (202) 347−3622 Email: mbowman@alliancedefendingfreedom.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Henry Aden ALLIANCE DEFENSE FUND 801 G Street, NW Suite 509 Washington, DC 20001 (202) 393−8690 Fax: (202) 347−3622 Email: saden@alliancedefendingfreedom.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Cortman ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, N.E. Suite D−1100 Lawrenceville, GA 30043 (770) 339−0774 Fax: (770) 339−6744 Email: dcortman@alliancedefendingfreedom.org PRO HAC VICE ATTORNEY TO BE NOTICED

Erik W. Stanley ALLIANCE DEFENDING FREEDOM 15100 N 90th Street Scottsdale, AZ 85260 (480) 444−0020 Email: estanley@alliancedefendingfreedom.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff MARK D. TAYLOR

represented by Matthew S. Bowman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Henry Aden (See above for address)

Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 2 of 12

LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Cortman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Erik W. Stanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
TYNDALE HOUSE FOUNDATION, INC an Illinois Not−forprofit Corporation

represented by Matthew S. Bowman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Henry Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Cortman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Erik W. Stanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
TYNDALE TRUST an Illinois Trust

represented by Matthew S. Bowman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Henry Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Cortman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Erik W. Stanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
KENNETH N. TAYLOR TRUST an Illinois Trust

represented by Matthew S. Bowman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Henry Aden (See above for address)

Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 3 of 12

LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Cortman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Erik W. Stanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
MARGARET W. TAYLOR TRUST an Illinois Trust

represented by Matthew S. Bowman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Henry Aden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Cortman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Erik W. Stanley (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant KATHLEEN SEBELIUS in her official capacity as Secretary of the United States Department of Health and Human Services
Defendant HILDA SOLIS in her official capacity as Secretary of

represented by Benjamin Leon Berwick U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Washington, DC 20001 (202) 305−8573 Fax: (202) 616−8470 Email: benjamin.l.berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Renee Bennett U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Room 7200 Washington, DC 20530 (202) 305−8902 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Leon Berwick (See above for address)

Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 4 of 12

the United States Department of Labor TERMINATED: 12/03/2013

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
TIMOTHY F. GEITHNER in his official capacity as Secretary of the United States Department of the Treasury TERMINATED: 12/03/2013

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF LABOR

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF THE TREASURY

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
THOMAS E. PEREZ in his official capacity as Secretary of the United States Department of Labor

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
JACOB J. LEW in his official capacity as Secretary of the United States Department of the Treasury

represented by Benjamin Leon Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle Renee Bennett

Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 5 of 12

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

Amicus
AMERICAN CIVIL LIBERTIES UNION

represented by Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL 4301 Connecticut Avenue, NW Suite 434 Washington, DC 20008 (202) 457−0800 x1004 Fax: (202) 457−0805 Email: artspitzer@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL

represented by Arthur B. Spitzer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/02/2012
10/02/2012 10/02/2012 10/03/2012
10/03/2012
10/04/2012 10/08/2012
10/09/2012
10/10/2012

# Docket Text
1 COMPLAINT Verified against All Defendants ( Filing fee $ 350 receipt number 0090−3088486) filed by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for Kathleen Sebelius, # 3 Summons for Hilda Solis, # 4 Summons for Timothy Geithner, # 5 Summons for DHS−DC, # 6 Summons for DOL, # 7 Summons for DOT)(Bowman, Matthew) (Entered: 10/02/2012)
2 Corporate Disclosure Statement by TYNDALE HOUSE PUBLISHERS, INC.. (Bowman, Matthew) (Entered: 10/02/2012)
Case Assigned to Judge Reggie B. Walton. (mmh) (Entered: 10/03/2012)
3 Electronic Summons Issued (5) as to TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Consent Notice)(mmh) (Entered: 10/03/2012)
4 ERRATA including Pls address omitted from complaint caption by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC. 1 Complaint, filed by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC.. (Bowman, Matthew) (Entered: 10/03/2012)
5 Electronic Summons Issued (1) as to UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Consent Notice)(mmh) (Entered: 10/04/2012)
6 MOTION for Preliminary Injunction , oral argument requested, by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC. (Attachments: # 1 Exhibit Taylor Affidavit, # 2 Text of Proposed Order)(Bowman, Matthew) (Entered: 10/08/2012)
7 ORDER. Per the attached Order, it is hereby ORDERED that the parties shall appear before the Court for a hearing on the merits of the plaintiffs' motion for preliminary injunction 6 at 2:00 p.m. on October 16, 2012. Signed by Judge Reggie B. Walton on 10/9/2012. (lcrbw2) (Entered: 10/09/2012)
Set/Reset Hearings: Preliminary Injunction Hearing set for 10/16/2012 02:00 PM in Courtroom 16 before Judge Reggie B. Walton. (mpt) (Entered: 10/10/2012)

Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 6 of 12

10/11/2012 10/11/2012 10/11/2012 10/11/2012 10/11/2012 10/12/2012 10/12/2012
10/12/2012 10/19/2012 10/22/2012 10/22/2012

8 NOTICE of Appearance by Benjamin Leon Berwick on behalf of All Defendants (Berwick, Benjamin) (Entered: 10/11/2012)
9 Emergency MOTION for Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction and for Postponement of Hearing by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Berwick, Benjamin) (Entered: 10/11/2012)
10 RESPONSE re 9 Emergency MOTION for Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction and for Postponement of Hearing filed by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC.. (Bowman, Matthew) (Entered: 10/11/2012)
11 NOTICE of Proposed Order by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY re 9 Emergency MOTION for Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction and for Postponement of Hearing (Berwick, Benjamin) (Entered: 10/11/2012)
12 REPLY to opposition to motion re 9 Emergency MOTION for Extension of Time to Respond to Plaintiffs' Motion for Preliminary Injunction and for Postponement of Hearing filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Berwick, Benjamin) (Entered: 10/11/2012)
SUMMONS Issued (2) as to U.S. Attorney and U.S. Attorney General (mmh) (Entered: 10/12/2012)
13 ORDER granting in part and denying in part 9 Motion for Extension of Time. Per the attached Order, it is hereby ORDERED that the defendants' motion is GRANTED IN PART and DENIED IN PART. It is further ORDERED that the defendants shall file their response to the plaintiffs' motion for preliminary injunction on or before October 22, 2012. It is further ORDERED that the Court's Order of October 9, 2012 7 setting a hearing on the merits of the plaintiffs' Motion for Preliminary injunction for October 16, 2012 at 2:00 p.m. is VACATED. It is further ORDERED that the parties shall appear before the Court for a hearing on the merits of the plaintiffs' Motion for Preliminary Injunction at 10:30 a.m. on October 29, 2012. Signed by Judge Reggie B. Walton on 10/12/12. (lcrbw2) (Entered: 10/12/2012)
Set/Reset Deadlines/Hearings: The defendants shall file their response to the plaintiffs' motion for preliminary injunction on or before 10/22/2012. The Preliminary Injunction Hearing set for 10/16/2012 at 2:00 PM is VACATED and RESCHEDULED for 10/29/2012 at 10:30 AM in Courtroom 16 before Judge Reggie B. Walton. (ad) (Entered: 10/12/2012)
14 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Erik W. Stanley, :Firm− Alliance Defending Freedom, :Address− 15192 Rosewood Street, Leawood, KS 66224. Phone No. − 913−685−8000. Fax No. − 913−685−8001 by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC. (Bowman, Matthew) (Entered: 10/19/2012)
15 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− David A. Cortman, :Firm− Alliance Defending Freedom, :Address− 1000 Hurricane Shoals Road, N.E., Suite D−1100, Lawrenceville, GA 30043. Phone No. − 770−339−0774. Fax No. − 770−339−6744 by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC. (Bowman, Matthew) (Entered: 10/22/2012)
16 Memorandum in opposition to re 6 MOTION for Preliminary Injunction , oral argument requested, filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Berwick, Benjamin) (Entered: 10/22/2012)

Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 7 of 12

10/24/2012 10/25/2012 10/25/2012 10/26/2012 10/26/2012 10/31/2012 11/06/2012
11/07/2012
11/07/2012 11/07/2012 11/07/2012 11/07/2012
11/07/2012

17 MOTION for Leave to Appear Amicus by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL AREA (Attachments: # 1 Text of Proposed Order, # 2 Corporate Disclosure, # 3 Amicus Brief)(td, ) (Entered: 10/25/2012)
18 RESPONSE re 17 MOTION for Leave to Appear Amicus , Opposition, filed by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC.. (Bowman, Matthew) (Entered: 10/25/2012)
19 SUPPLEMENTAL MEMORANDUM to re 6 MOTION for Preliminary Injunction , oral argument requested, Reply in Support of Motion, filed by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC.. (Bowman, Matthew) (Entered: 10/25/2012)
MINUTE ORDER granting 14 Motion for Leave to Appear Pro Hac Vice. Upon consideration of the motion for leave to appear pro hac vice by Erik W. Stanley, and finding good cause to grant the motion, the motion is hereby GRANTED. Erik W. Stanley may appear and be heard in the above−captioned matter. Signed by Judge Reggie B. Walton on 10/26/2012. (lcrbw2) (Entered: 10/26/2012)
MINUTE ORDER granting 15 Motion for Leave to Appear Pro Hac Vice. Upon consideration of the motion for leave to appear pro hac vice by David A. Cortman, and finding good cause to grant the motion, the motion is hereby GRANTED. David A. Cortman may appear and be heard in the above−captioned matter. Signed by Judge Reggie B. Walton on 10/26/2012. (lcrbw2) (Entered: 10/26/2012)
Set/Reset Hearings: Motion Hearing reset for 11/9/2012 09:00 AM in Courtroom 16 before Judge Reggie B. Walton. (mpt, ) (Entered: 10/31/2012)
20 ORDER. Per the attached Order, it is hereby ORDERED that the plaintiffs provide the Court with 1) a detailed explanation and/or diagram outlining the corporate structure of Tyndale House Publishers, Inc., and any individuals or entities having an ownership interest in Tyndale House Publishers, Inc., and its affiliates; 2) a list of the officers and directors of Tyndale House Publishers, Inc., as well as of the officers and directors of any entities having an ownership interest in Tyndale House Publishers, Inc.; and 3) a copy of the articles of incorporation of Tyndale House Publishers, Inc., by the end of the day on November 7, 2012. Signed by Judge Reggie B. Walton on 11/6/2012. (lcrbw2) (Entered: 11/06/2012)
MINUTE ORDER granting 17 Motion for Leave to File Memorandum as Amici Curiae. It is hereby ORDERED that the motion filed by the American Civil Liberties Union and the American Civil Liberties Union of the National Capital Area is GRANTED, and the Clerk shall accept the amici curiae brief for filing in this case. It is further ORDERED that the plaintiffs shall file their opposition to the brief, if any, on or before November 14, 2012. Signed by Judge Reggie B. Walton on 11/7/2012. (lcrbw2) (Entered: 11/07/2012)
Set/Reset Deadlines: Response due by 11/14/2012 (mpt, ) (Entered: 11/07/2012)
21 NOTICE of Appearance by Steven Henry Aden on behalf of MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC. (Aden, Steven) (Entered: 11/07/2012)
22 AMICUS BRIEF by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL AREA. (td, ) (Entered: 11/07/2012)
23 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL AREA identifying Corporate Parent NONE for AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL AREA. (td, ) (Entered: 11/07/2012)
24 AFFIDAVIT re 20 Order,, providing evidence and information as requested, by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC.. (Attachments: # 1 Exhibit Tyndale Structure Diagram, # 2 Exhibit Articles of Incorporation)(Bowman, Matthew) (Entered: 11/07/2012)

Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 8 of 12

11/09/2012 11/12/2012 11/16/2012
11/16/2012 11/28/2012 11/30/2012 12/04/2012 12/10/2012
01/15/2013 01/16/2013

Minute Entry for proceedings held before Judge Reggie B. Walton: Motion Hearing held on 11/9/2012 (Court Reporter Cathryn Jones) (mpt, ) (Entered: 11/14/2012)
25 RESPONSE re 22 Amicus Brief, filed by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC.. (Bowman, Matthew) (Entered: 11/12/2012)
26 ORDER granting 6 Motion for Preliminary Injunction. In accordance with the attached Order and the Memorandum Opinion entered this same date, it is ORDERED that the plaintiffs' Motion for Preliminary Injunction is GRANTED. It is further ORDERED that the defendants, their agents, officers, and employees are ENJOINED from pursuing any enforcement actions against or imposing any penalties on the plaintiffs provided for in 26 U.S.C. §§ 4980D, 4980H and 29 U.S.C. § 1132 as a result of the plaintiffs' failure to comply with the requirement under 42 U.S.C. § 300gg−13(a)(4) that the plaintiffs provide in Tyndale House Publishers, Inc.'s employee health plans what they believe to be abortifacients or related education and counseling. It is further ORDERED that the parties shall appear before the Court for a status conference on a date to be determined by the Clerk. Signed by Judge Reggie B. Walton on 11/16/2012. (lcrbw2) (Entered: 11/16/2012)
27 MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on 11/16/2012. (lcrbw2) (Entered: 11/16/2012)
28 Unopposed MOTION for Extension of Time to Respond to Plaintiffs' Complaint by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Berwick, Benjamin) (Entered: 11/28/2012)
MINUTE ORDER granting 28 Motion for Extension of Time. For good cause shown, and in light of the parties' consent, the defendants' motion is GRANTED. The defendants shall answer or otherwise respond to the plaintiffs' complaint on or before January 31, 2013. Signed by Judge Reggie B. Walton on 11/30/2012. (lcrbw2) (Entered: 11/30/2012)
Set/Reset Deadlines: Answer or otherwise respond to complaint by 1/31/2013, (mpt, ) (Entered: 12/04/2012)
29 TRANSCRIPT OF PROCEEDINGS before Judge Reggie B. Walton held on November 9, 2012; Page Numbers: 1 − 64. Court Reporter/Transcriber Cathryn Jones, Telephone number 202 354−3246, Court Reporter Email Address : cathryjns1@aol.com.<P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at ww.dcd.uscourts.gov.<P></P> Redaction Request due 12/31/2012. Redacted Transcript Deadline set for 1/10/2013. Release of Transcript Restriction set for 3/10/2013.(Jones, Cathryn) (Entered: 12/10/2012)
30 NOTICE OF INTERLOCUTORY APPEAL as to 26 Order on Motion for Preliminary Injunction,,, 27 Memorandum & Opinion by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. Fee Status: No Fee Paid. Parties have been notified. (Berwick, Benjamin) (Entered: 01/15/2013)
31 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the fee was an Appeal by the Government re 30 Notice of Interlocutory Appeal,. (td, ) (Entered: 01/16/2013)

Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 9 of 12

01/18/2013 01/28/2013 01/28/2013 01/30/2013 01/30/2013 01/31/2013 05/06/2013 05/08/2013 05/13/2013
05/14/2013 05/16/2013

USCA Case Number 13−5018 for 30 Notice of Interlocutory Appeal, filed by KATHLEEN G. SEBELIUS, TIMOTHY F. GEITHNER, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES. (td, ) (Entered: 01/23/2013)
32 Unopposed MOTION for Extension of Time to Respond to Plaintiffs' Complaint by TIMOTHY F. GEITHNER, KATHLEEN G. SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Text of Proposed Order)(Berwick, Benjamin) (Entered: 01/28/2013)
33 MOTION to Stay by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC. (Attachments: # 1 Text of Proposed Order)(Bowman, Matthew) (Entered: 01/28/2013)
MINUTE ORDER granting 33 Motion to Stay. For good cause shown, and in light of the parties' consent, it is hereby ORDERED that this case is STAYED and ADMINISTRATIVELY CLOSED pending the Circuit Court's resolution of the defendants' appeal of this Court's November 16, 2012 Order 26 . Signed by Judge Reggie B. Walton on 1/30/2013. (lcrbw2) Modified on 1/31/2013 (zmpt, ). (Entered: 01/30/2013)
MINUTE ORDER denying as moot 32 Motion for Extension of Time. In light of the fact that this case is currently stayed pending the Circuit Court's resolution of the defendants' appeal of this Court's November 16, 2012 Order 26 , it is hereby ORDERED that the defendants' motion for an extension of time to file an answer or otherwise respond to the plaintiffs' complaint is DENIED AS MOOT. Signed by Judge Reggie B. Walton on 1/30/2013. (lcrbw2) (Entered: 01/30/2013)
34 Supplemental Record on Appeal transmitted to US Court of Appeals re Order on Motion to Stay, Order on Motion for Extension of Time to, ;USCA Case Number 13−05018. (jf, ) (Entered: 01/31/2013)
35 ORDER of USCA (certified copy) as to 30 Notice of Interlocutory Appeal, filed by TIMOTHY F. GEITHNER, UNITED STATES DEPARTMENT OF LABOR, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF THE TREASURY, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES ; ORDERED that the motion be granted, and this case is hereby dismissed. USCA Case Number 13−5018. (zmd, ) (Entered: 05/06/2013)
36 MOTION for Summary Judgment by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC. (Attachments: # 1 Text of Proposed Order)(Bowman, Matthew) (Entered: 05/08/2013)
37 MOTION to Stay or, in the Alternative, Unopposed Motion for Extension of Time to Respond to Plaintiffs' Motion for Summary Judgment by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Berwick, Benjamin). Added MOTION for Extension of Time to File Response/Reply on 5/14/2013 (td, ). (Entered: 05/13/2013)
38 RESPONSE re 37 MOTION to Stay or, in the Alternative, Unopposed Motion for Extension of Time to Respond to Plaintiffs' Motion for Summary Judgment MOTION for Extension of Time to File Response/Reply filed by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC.. (Bowman, Matthew) (Entered: 05/14/2013)
39 REPLY to opposition to motion re 37 MOTION to Stay or, in the Alternative, Unopposed Motion for Extension of Time to Respond to Plaintiffs' Motion for Summary Judgment MOTION for Extension of Time to File Response/Reply filed by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Text of Proposed Order)(Berwick, Benjamin) (Entered: 05/16/2013)

Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 10 of 12

05/17/2013
05/20/2013 06/17/2013 06/17/2013 06/17/2013 07/17/2013 07/17/2013 08/07/2013 12/03/2013

MINUTE ORDER denying 37 Motion to Stay; granting 37 Motion for Extension of Time to File Response/Reply. Upon consideration of the Defendants' Motion to Continue Stay of Proceeding, and the Court finding no good cause to continue the stay, it is ORDERED that the motion is DENIED. The stay in the above captioned action is hereby lifted. For good cause shown, and in light of the parties' consent, it is ORDERED that the Defendants' Motion for an Extension of Time to Respond to the Plaintiffs' Motion for Summary Judgment is GRANTED. The following briefing schedule shall apply: (1) the defendants shall file their cross−motion for summary judgment and opposition to the plaintiffs' motion for summary judgment on or before June 17, 2013; (2) the plaintiffs shall file their opposition to the defendants' cross−motion for summary judgment and reply in support of motion for summary judgment on or before July 17, 2013; and (3) the defendants shall file their reply in support of summary judgment on or before August 7, 2013. Signed by Judge Reggie B. Walton on 5/17/2013. (lcrbw2) (Entered: 05/17/2013)
Set/Reset Deadlines: Cross Motions and Opposition to Summary Judgment Motion due by 6/17/201, Opposition to Cross Motion and Reply to Summary Judgment Motion due by 7/17/2013, Reply to Cross Motions due by 8/7/2013. (mpt, ) (Entered: 05/20/2013)
40 ADMINISTRATIVE RECORD Notice of Filing by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Certification of Administrative Record, # 2 Index of Administrative Record)(Berwick, Benjamin) (Entered: 06/17/2013)
41 RESPONSE (Opposition) re 36 MOTION for Summary Judgment filed by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Statement of Facts Response to Plaintiffs' Statement of Material Fact)(Berwick, Benjamin) Modified on 6/18/2013 (td, ). (Entered: 06/17/2013)
42 Cross MOTION for Summary Judgment by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Text of Proposed Order)(Berwick, Benjamin) Modified on 6/18/2013 (td, ); (See docket entry no. 41 to view document) (Entered: 06/17/2013)
43 Memorandum in opposition to re 42 MOTION for Summary Judgment , and Reply in Support of Pls' Mot. SJ, filed by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC.. (Attachments: # 1 Statement of Facts in Response, # 2 Text of Proposed Order)(Bowman, Matthew) (Entered: 07/17/2013)
44 MEMORANDUM in support re 36 MOTION for Summary Judgment filed by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC. by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC.; (See docket entry no. 43 to view document) (td, ) (Entered: 07/18/2013)
45 REPLY to opposition to motion re 42 MOTION for Summary Judgment filed by TIMOTHY F. GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Berwick, Benjamin) (Entered: 08/07/2013)
46 First AMENDED COMPLAINT against JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY filed by MARK D. TAYLOR, TYNDALE HOUSE PUBLISHERS, INC., TYNDALE TRUST, MARGARET W. TAYLOR TRUST, TYNDALE HOUSE FOUNDATION, INC, KENNETH N. TAYLOR TRUST.(rdj) (Entered: 12/04/2013)

Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 11 of 12

07/21/2014 07/23/2014 02/26/2015
02/26/2015 03/06/2015
03/16/2015 03/24/2015 07/15/2015 08/07/2015 08/20/2015 08/21/2015

47 NOTICE OF SUPPLEMENTAL AUTHORITY by KENNETH N. TAYLOR TRUST, MARGARET W. TAYLOR TRUST, MARK D. TAYLOR, TYNDALE HOUSE FOUNDATION, INC, TYNDALE HOUSE PUBLISHERS, INC., TYNDALE TRUST (Bowman, Matthew) (Entered: 07/21/2014)
48 RESPONSE re 47 NOTICE OF SUPPLEMENTAL AUTHORITY filed by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Berwick, Benjamin) (Entered: 07/23/2014)
49 ORDER. Upon consideration of the defendants' Response to Plaintiffs' Notice of Supplemental Authority, and in light of the requests therein, it is hereby ORDERED that the parties shall file a joint status report on or before March 6, 2015, informing the Court as to how they would like to proceed with the case. It is further ORDERED that the joint status report shall also include any information regarding whether the parties have resolved the matter on their own and whether the pending motions before the Court need to be decided. Signed by Judge Reggie B. Walton on February 26, 2015. (lcrbw2) (Entered: 02/26/2015)
Set/Reset Deadlines: Joint Status Report due by 3/6/2015 (mpt, ) (Entered: 02/26/2015)
50 STATUS REPORT , Joint by all Parties, by KENNETH N. TAYLOR TRUST, MARGARET W. TAYLOR TRUST, MARK D. TAYLOR, TYNDALE HOUSE FOUNDATION, INC, TYNDALE HOUSE PUBLISHERS, INC., TYNDALE TRUST. (Attachments: # 1 Exhibit Pls 1 Newland Inj, # 2 Exhibit Pls 2 Conestoga Inj, # 3 Exhibit Pls 3 Seneca Inj, # 4 Exhibit Dfs A Zumbiel Order, # 5 Exhibit Dfs B JWP Order, # 6 Exhibit Dfs C Gilardi Order, # 7 Exhibit Dfs D Midwest Order, # 8 Exhibit Dfs E Barron Order, # 9 Exhibit Dfs F Tonn Order)(Bowman, Matthew) (Entered: 03/06/2015)
51 NOTICE OF SUPPLEMENTAL AUTHORITY by KENNETH N. TAYLOR TRUST, MARGARET W. TAYLOR TRUST, MARK D. TAYLOR, TYNDALE HOUSE FOUNDATION, INC, TYNDALE HOUSE PUBLISHERS, INC., TYNDALE TRUST (Attachments: # 1 Exhibit 1 Newland Injunction)(Bowman, Matthew) (Entered: 03/16/2015)
52 RESPONSE re 51 NOTICE OF SUPPLEMENTAL AUTHORITY filed by JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Exhibit Hobby Lobby Order)(Berwick, Benjamin) (Entered: 03/24/2015)
53 ORDER granting 36 Motion for Summary Judgment; denying 42 Motion for Summary Judgment. See Order for more details. Signed by Judge Reggie B. Walton on July 15, 2015. (lcrbw2) (Entered: 07/15/2015)
54 NOTICE of Appearance by Michelle Renee Bennett on behalf of JACOB J. LEW, THOMAS E. PEREZ, KATHLEEN SEBELIUS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Bennett, Michelle) (Entered: 08/07/2015)
55 Unopposed MOTION for Extension of Time to file motion for attorneys fees and costs by KENNETH N. TAYLOR TRUST, MARGARET W. TAYLOR TRUST, MARK D. TAYLOR, TYNDALE HOUSE FOUNDATION, INC, TYNDALE HOUSE PUBLISHERS, INC., TYNDALE TRUST (Attachments: # 1 Text of Proposed Order)(Bowman, Matthew) (Entered: 08/20/2015)
MINUTE ORDER granting 55 Motion for Extension of Time. Upon consideration of the Unopposed Motion to Extend Deadline, and in light of the parties' consent, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that a motion for attorneys' fees and costs, if any, shall be filed on or before October 30, 2015. Signed by Judge Reggie B. Walton on August 21, 2015. (lcrbw2) (Entered: 08/21/2015)

Case: 1:12-cv-1635 As of: 04/11/2016 12:18 AM EDT 12 of 12

08/24/2015

Set/Reset Deadlines: Motions due by 10/30/2015. (mpt) (Entered: 08/24/2015)