IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF IOWA WESTERN DIVISION

DORDT COLLEGE and CORNERSTONE UNIVERSITY,
Plaintiffs,

vs.

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; JACK 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,

Case No. C13-4100

Defendants.

COMPLAINT Plaintiffs Dordt College and Cornerstone University (hereinafter, “the Schools”), by their attorneys, state as follows:
NATURE OF THE ACTION 1. This lawsuit challenges regulations issued by Defendants under the 2010 Patient Protection and Affordable Care Act that compel employee and student health insurance plans to provide free coverage of contraceptive services, including so-called “emergency contraceptives” that cause early abortions.
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2. The Schools are Christ-centered institutions of higher learning. They believe that God has condemned the intentional destruction of innocent human life. The Schools hold, as a matter of religious conviction, that it would be sinful and immoral for them intentionally to participate in, pay for, facilitate, enable, or otherwise support access to abortion, which destroys human life. They hold that one of the prohibitions of the Ten Commandments (“thou shalt not murder”) precludes them from facilitating, assisting in, or enabling the use of drugs that can and do destroy very young human beings in the womb.
3. Defendants have acknowledged that the Mandate challenged in this lawsuit should not be applied to certain religious employers. They exempted “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.” Defendants contend that these employers “are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” The Schools fit this description, yet they do not qualify for the exemption.
4. In addition, the government has elected not to impose the challenged regulations upon thousands of other organizations. Employers with “grandfathered” plans, small employers, and favored others are exempt from these rules.
5. Defendants have offered entities like the Schools a so-called “accommodation” of their religious beliefs and practices. However, the alleged accommodation fails. It still conscripts the Schools into the government’s scheme, forcing the Schools to obtain an insurer or third-party claims administrator and submit a form that specifically causes that insurer or third-party administrator to arrange payment for the objectionable drugs, so that such coverage
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will apply to the Schools’ own employees as a direct consequence of their employment with the Schools and of their participation in the health insurance benefits the Schools provide them.
6. If Plaintiffs follow their religious convictions and decline to participate in the government’s scheme, they will face, among other injuries, enormous fines that will cripple their operations.
7. By placing the Schools in this untenable position, Defendants violate the Religious Freedom Restoration Act; the Free Exercise, Establishment and Free Speech Clauses of the First Amendment to the United States Constitution; the Due Process Clause of the Fifth Amendment; and the Administrative Procedure Act.
8. Plaintiffs therefore respectfully request that this Court vindicate their rights through declaratory and permanent injunction relief, among other remedies.
IDENTIFICATION OF PARTIES AND JURISDICTION 9. Plaintiff Dordt College is a Christ-centered institution of higher learning located in Sioux Center, Iowa. It is an Iowa not-for-profit corporation. 10. Plaintiff Cornerstone University is a Christ-centered institution of higher learning located in Grand Rapids, Michigan. It is a Michigan not-for-profit corporation. 11. Defendants are appointed officials of the United States government and United States Executive Branch agencies responsible for issuing and enforcing the Mandate. 12. Defendant Kathleen Sebelius is the Secretary of the United States Department 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. 13. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate.
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14. Defendant Thomas E. Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Perez is sued in his official capacity only.
15. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
16. Defendant Jacob J. Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Lew is sued in his official capacity only.
17. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
18. This action arises under the Constitution and laws of the United States. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 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.
19. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this district, and Dordt College is located in this district.
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FACTUAL ALLEGATIONS
I. Dordt College’s Religious Beliefs and Provision of Educational Services in General 20. The College was established in 1953, under the name Midwest Christian Junior
College. The initial purpose of the College was to train teachers for Christian day schools in the area.
21. The College is a private, Christian, liberal arts college located in Sioux Center, Iowa. As an institution of higher education that is committed to the Reformed Christian perspective, the College seeks to provide a holistic learning experience that integrates the classroom and other educational activities with every other aspect of a student’s life.
22. The College’s mission is to equip students, alumni, and the broader community to work effectively toward Christ-centered renewal in all aspects of contemporary life. It carries out its mission by preparing graduates who have a biblical understanding of creation and culture. The College also desires that its students be able to discern the pervasive effects of sin throughout the world, while challenging those forces that distort God’s good creation and celebrating the redemptive rule of Christ over all life and creation. To that end, Dordt College offers academic programs, maintains institutional practices, and conducts social activities in a visionary, integrated, and biblically-informed manner—which is designed to foster discipleship as a way of life, both on and off campus.
23. The College is owned and controlled by an incorporated society composed primarily of the Christian Reformed Church of North America (CRCNA). The vision of the Christian Reformed Church is to “express[] the good news of God’s kingdom that transforms lives and communities worldwide.”
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24. The College is a non-denominational agency of the CRCNA. To be a non-denominational agency, CRCNA requires that its annual synod review and approve the ministry, ensuring that the organization is not a duplicate ministry and is closely related to the Christian Reformed Church’s integral work: works of mercy, of Christian education, and the distribution of the Word of God. Any approved agencies must also be closely aligned with the CRC ecclesiastical task and so, can be recommended to the entire denomination for support. The College derives its mission and core values from the heart of the Christian Reformed Church, having partnered with CRCNA for 50 years.
25. Members of Dordt College’s Board of Trustees, which governs the College, are elected by the society. They either represent geographical areas in the Christian Reformed Church or are at-large members representing the broader Reformed evangelical community.
26. The College draws its faculty, staff, and administration from among those who profess and demonstrate a strong commitment to the Christian faith and the Reformed Christian perspective. Faculty and administrative staff must also affiliate with a local, confessionally-Reformed congregation, have their children enrolled in local Christian schools, and must assent to the three forms of Reformed Christian unity, namely, the Belgic Confession, the Heidelberg Catechism, and the Canons of Dort and/or the Westminster Standards. Support staff members are required to work in accordance with the College’s stated mission and beliefs.
27. Although the College does not require a profession of faith as a prerequisite for student admission, all students are expected to live by the standards of historic Christian morality, as expressed in the College’s Student Code of Conduct.
28. The College’s current enrollment is approximately 1,400.
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29. full-time.

Dordt College has approximately 280 employees, of whom approximately 179 are

II. The Religious Beliefs of Dordt College Regarding Abortion
30. Dordt College unreservedly shares the Christian Reformed Church’s religious
views regarding abortion, believing that the procurement of, participation in, facilitation of, or
payment for abortion (including abortion-causing drugs and devices like Plan B and ella) violates
the Sixth Commandment and is inconsistent with the dignity conferred by God on creatures
made in His image.
31. The Christian Reformed Church in the Acts of the Synod, 1972 states, on page 64,
as follows:
That synod affirm the unique value of all human life and the special relationship of man to God as his image-bearer… That synod, mindful of the sixth commandment, condemn the wanton or arbitrary destruction of any human being at any stage of its development from the point of conception to the point of death…
32. On its website, the Christian Reformed Church declares as follows:
Life is a gift from God’s hand, who created all things. Receiving this gift thankfully, with reverence for the Creator, we protest and resist all that harms, abuses, or diminishes the gift of life, whether by abortion, pollution, gluttony, addiction, or foolish risks. Because it is a sacred trust, we treat all life with awe and respect, especially when it is most vulnerable—whether growing in the womb, touched by disability or disease, or drawing a last breath. When forced to make decisions at life’s raw edges, we seek wisdom in community, guided by God’s Word and Spirit.
On respect for all life, see Deuteronomy 5:17 and Psalm 104:14-30 and 139:14-16. Our very bodies are temples of the Holy Spirit: 1 Corinthians 6:19-20.
III. Dordt College’s Group Health Insurance Plans
33. To fulfill its religious commitments and duties in the Christ-centered educational
context, Dordt promotes the spiritual and physical well-being and health of its employees and
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students. This includes the provision of generous health insurance to employees and their dependents and the facilitation of a student health plan.
34. Consistent with its religious commitments, the College offers self-insured coverage, administered through a third-party administrator, Wellmark Blue Cross Blue Shield of Iowa. Dordt offers three choices: Blue Advantage 2000 HMO; Blue Advantage 500 HMO; and the Alliance Select 2000 Plan.
35. The College has contracted with an outside insurance company to pay all claims over $50,000.
36. Approximately 178 Dordt College employees are enrolled in health insurance plans sponsored by the College. Approximately 430 dependents of employees are covered. The plans thus cover approximately 608 individuals.
37. The plan year for the College employee health insurance coverage begins on June 1 of each year.
38. The College’s employee health plans cover a variety of contraceptive methods that are not abortifacient.
39. However, consistent with its religious commitments, the College’s contract for employee health coverage states that ella and Plan B, which can and sometimes do act after fertilization has occurred, are excluded.
40. Effective September 2011, Dordt made a number of changes that caused the plan to lose its “grandfathered” status.” The College changed their plan deductibles from $750 for a single and $1500 for a family to $1200 for a single and $2400 for a family. Out-of-pocket maximums were also increased from $1500 for a single and $3000 for a family to $2400 and $4800 respectively. Employees also began sharing the cost of the health insurance premium
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with the College according to their salary bracket. Also, the College switched from a PPO network to an HMO network.
41. Dordt offers an optional health plan to those students who do not have health insurance coverage of their own. The student plan specifically excludes abortions, and does not cover ella or Plan B.
42. The next student plan year begins on August 1, 2014. IV. Cornerstone University’s Religious Beliefs and Provision of Educational Services in
General 43. The University was established in 1941 under the name Baptist Bible Institute of Grand Rapids, Michigan. The initial purpose for the University was to train Christians to be more effective lay workers in local churches. 44. The University is an interdenominational, private, Christ-centered university located in Grand Rapids, Michigan. As a Christ-centered university, Cornerstone has a passion for influencing the whole world through the transforming power of the Gospel. 45. The University’s mission is to empower men and women to excel as influencers in the world for Christ. It carries out its mission by offering a student-focused learning community where Jesus Christ is central—intertwining academic excellence and faith. Specifically, the University achieves this goal by helping students develop into critical and innovative thinkers who are skilled professionals, able to advance the Kingdom of God through their work by being wise and spiritually mature followers of Christ. 46. Cornerstone believes that there is truth – that it is knowable and revealed in God’s inerrant Word. Cornerstone believes that Christians can accordingly live with unshakeable confidence and hope, knowing that the Bible and God’s truth have direct application to their lives, their work, their relationships, and the culture around them.
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47. The University lays out its truth claims in a document entitled “The Cornerstone Confession,” which faculty and staff are required to affirm annually. To be admitted, students must provide a profession of faith in Jesus Christ and provide evidence of living a Christian lifestyle.
48. Cornerstone’s desire is to create a vibrant community of Christ-followers that includes students, faculty, and staff. The Cornerstone Community Covenant states in part as follows:
As a community under the authority of Christ, we commit ourselves to serving together in ways that will bear witness to His reign in our midst. We will seek to reflect His will and His ways through our words, actions and attitudes so that our community will both express and experience the Kingdom blessings of Righteousness, Peace and Joy…We will live righteously by aligning our lives with the standards that God has lovingly revealed to us through His Word so that we may glorify Him as the wise and loving Lord over our community. 49. Cornerstone University’s Board of Trustees has the responsibility of setting broad policies that govern the university, and the members are required to annually reaffirm their agreement with the Cornerstone Confession. 50. The University’s current undergraduate enrollment is approximately 1,388 with approximately 479 graduate students. Cornerstone also has around 1,056 students in its Professional and Graduate Services program for adult continuing education opportunities. 51. Cornerstone University has approximately 294 employees, of which approximately 26 are part-time.
V. The Religious Beliefs of Cornerstone University Regarding Abortion 52. Cornerstone holds that life is a sacred gift from God, that life begins at
conception, and that every life should be protected from that moment.
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53. The Cornerstone Confession states that God created the first humans, Adam and Eve, as “distinct from the rest of creation in their bearing of God’s image.” Becaus e it believes that each life bears the image of God, the University regards each unique human life, from the moment of conception, as sacred. They further believe that the unborn purposefully reflect God’s creative design.
54. Cornerstone, as a community of Christ-followers, believes that it is called to love God and care for his creation. The Cornerstone Confession states, “[b]y loving God, serving others, and caring for creation, [Christians] anticipate the redemption of all things at Christ’s return.” The University’s care for the unborn is a direct outflow of its care for all of creation, its love for God, and its religious belief in ultimate redemption.
55. Over the years, Cornerstone has displayed its care for mothers facing unplanned pregnancy and for the unborn. Since 2009, Cornerstone has been hosting Life Walk, which is a two-mile awareness and fundraising walk to benefit the Pregnancy Resource Center in Grand Rapids. Also since 2009, President Joe Stowell has served on the Board of Reference for the Pregnancy Resource Center. To raise awareness on campus, Cornerstone students opened a chapter of Students for Life of America in 2012.
56. The University also plans to host a table in its student center this fall collecting signatures to initiate the process for statewide Abortion Insurance Opt-Out legislation, which will prevent Michigan tax dollars and insurance premiums from paying for abortions as part of the Affordable Care Act insurance exchanges.
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VI. Cornerstone University’s Group Health Insurance Plans 57. To fulfill its religious commitments and duties in the Christ-centered educational
context, Cornerstone promotes the spiritual and physical well-being and health of its employees. This includes the provision of generous health insurance to employees and their dependents.
58. Approximately 212 Cornerstone University employees are enrolled in health insurance plans sponsored by the College. Approximately 379 dependents of employees are covered. The plans thus cover approximately 591 individuals.
59. Cornerstone offers three medical insurance options for its employees through Priority Health. The first two options are two tiers of a Health by Choice Incentives HMO plan, and the third is a high-deductible health plan (HDHP) with a health savings account.
60. The plan year for the University employee health insurance coverage begins on October 1 of each year.
61. After the enactment of the Affordable Care Act, Cornerstone made a number of changes to its health insurance plans that caused them to lose “grandfathered” status. Since March of 2010, the co-pays, deductibles, out-of-pocket maximums, and prescription drug plans changed for both the HMO plan and the HDHP plan.
62. Specifically, in March 2010, the co-pays for the Priority Health Choice Benefits HMO were $15 an office visit. In October 2011, they were increased to $20, then to $25 dollars in October 2012, and finally, to $30 in October 2013. Deductibles under the Choice Benefits HMO plan increased as well for both families and single persons. In March 2010, the deductible for a single adult was $500 and $1000 for a family, and in October 2013, the deductible for a single adult was increased to $1000 and for a family it was increased to $2000. Also in March of 2010, the out-of-pocket maximum for an individual was $1500 and for a family was $3000. In October 2012, the out-of-pocket maximum for an individual increased to $2500
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and for a family, to $5000. The out-of-pocket maximum increased again in October 2013 to $4000 for an individual and $8000 for a family.
63. In March 2010, the co-pays for the Priority Health Standard Benefits HMO were $25 an office visit. In October 2011, they were decreased to $20, then increased to $35 in October 2012, and finally, to $40 in October 2013. Deductibles under the Standard Benefits HMO plan increased as well for both families and single persons. In March 2010, the deductible for a single adult was $1250 and $2500 for a family, and in October 2013, the deductible for a single adult was increased to $2000 and for a family it was increased to $4000. Also in March of 2010, the out-of-pocket maximum for an individual was $3000 and for a family was $6000. In October 2012, the out-of-pocket maximum for an individual increased to $4500 and for a family, to $9000. The out-of-pocket maximum decreased in October 2013 to $4000 for an individual and $8000 for a family.
64. In March 2010, both the Choice and Standard Benefits HMO included a two-tiered prescription drug plan that had a $10 co-pay per generic drug prescription or refill and a $40 co-pay for per preferred brand-name prescription or refill. In October 2011, the two tiers changed to be five tiers starting with an increased co-pay of $15 for generic prescriptions, then $50 co-pay for each of the remaining tiers including: preferred brand-name drugs, non-preferred brand-name drugs, preferred specialty drugs, and non-preferred specialty drugs. In October 2012, the plan changed again increasing tier three and tier five co-pays to $80. In October 2013, tier four and tier five co-pays were changed to 20% co-insurance.
65. Cornerstone’s HMO plan specifically excludes post-coital “emergency contraceptives.”
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66. Cornerstone has made changes to the HDHP since March of 2010. In October 2010, the plan year deductible was $2000 a person and $4000 a family. The out-of-pocket maximum was $4000 per person and $8000 per family. In October 2012, the plan year deductible was lowered to $1200 per person and $2400 per family. Also, in October 2012, the out-of-pocket maximum was lowered to $2000 per person and $4000 per family. The deductibles changed again in October 2013 to $1250 per person and $2500 per family.
67. The University employee health plans cover a variety of contraceptive methods that are not abortifacient. But, consistent with its religious commitments, the University’s contract for employee health coverage states that emergency contraceptives, such as ella and Plan B, and IUDs which can and sometimes do act after fertilization has occurred, are excluded.
VII. The ACA and Defendants’ Mandate Thereunder 68. In March 2010, Congress passed, and President Obama signed, the Patient
Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 11-152 (March 30, 2010), together known as the “Affordable Care Act” (ACA).
69. The ACA regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
70. One ACA provision requires that any “group health plan” or “health insurance issuer offering group or individual health insurance coverage” provide coverage for certain preventive care services. 42 U.S.C. § 300gg-13(a).
71. These services include screenings, medications, and counseling given an “A” or “B” rating by the United States Preventive Services Task Force; immunizations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and
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Prevention; and “preventive care and screenings” specific to infants, children, adolescents, and women that are subsequently “provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” an HHS sub-agency. 42 U.S.C. § 300gg-13(a)(1)-(4).
72. These services must be covered without “any cost sharing.” 42 U.S.C. § 300gg-13(a).
The Interim Final Rule 73. On July 19, 2010, HHS published an interim final rule regarding the ACA’s requirement that certain preventive services be covered without cost sharing. 75 Fed. Reg. 41726, 41728 (2010). 74. HHS issued the interim final rule without a prior notice of rulemaking or opportunity for public comment. Defendants determined for themselves that “it would be impracticable and contrary to the public interest to delay putting the provisions . . . in place until a full public notice and comment process was completed.” 75 Fed. Reg. at 41730. 75. Although Defendants suggested in the Interim Final Rule that they would solicit public comments after implementation, they stressed that “provisions of the Affordable Care Act protect significant rights” and therefore it was expedient that “participants, beneficiaries, insureds, plan sponsors, and issuers have certainty about their rights and responsibilities.” Id. 76. Defendants stated they would later “provide the public with an opportunity for comment, but without delaying the effective date of the regulations,” demonstrating their intent to impose the regulations without regard to concerns that might be raised in public comments. Id. 77. After the Interim Final Rule was issued, numerous commenters warned against the potential conscience implications of requiring religious individuals and organizations to
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include certain kinds of services—specifically contraception, sterilization, and abortion services—in their health care plans.
78. HHS directed a private health policy organization, the Institute of Medicine (IOM), to make recommendations regarding which drugs, procedures, and services all health plans should cover as preventive care for women.
79. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be included in health plans by force of law. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
80. No religious groups or other groups that opposed government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
81. On July 19, 2011, the IOM published its preventive care guidelines for women, including a recommendation that preventive services include “[a]ll Food and Drug Administration approved contraceptive methods [and] sterilization procedures” and related “patient education and counseling for women with reproductive capacity.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 102-10 and Recommendation 5.5 (July 19, 2011).
82. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices such as IUDs; Plan B (also known as the “morning-after pill”) and its chemical cognates; ulipristal (also known as “ella” or the “week-after pill”); and other drugs, devices, and procedures.
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83. Some of these drugs and devices—including “emergency contraceptives” such as Plan B and ella and certain IUDs—are known abortifacients, in that they can cause the death of an embryo by preventing it from implanting in the wall of the uterus.
84. Indeed, the FDA’s own Birth Control Guide states that Plan B and its cognates, ella, and IUDs can work by “preventing attachment (implantation) to the womb (uterus).” FDA, Office of Women’s Health, Birth Control Guide at 16-18, available as Addendum to Brief of Appellants at 50, Hobby Lobby Stores Inc. v. Sebelius, No. 12-6294, ECF Doc. No. 010189999834 (10th Cir. filed Feb. 11, 2013).
85. The manufacturers of some of the drugs, methods, and devices in the category of “FDA-approved contraceptive methods” indicate that they can function to cause the demise of an early embryo.
86. The requirement for related “education and counseling” accompanying abortifacients, sterilization and contraception necessarily covers education and counseling given in favor of such items, even though it might also include other education and counseling. Moreover, it is inherent in a medical provider’s decision to prescribe one of these items that she is taking the position that use of the item is in the patient’s best interests, and therefore her education and counseling related to the item will be in favor of its proper usage.
87. On August 1, 2011, a mere 13 days after IOM published its recommendations, HRSA issued guidelines adopting them in full. See http://www.hrsa.gov/womensguidelines.
88. Insurance plans starting after August 1, 2012 were subject to the Mandate. 89. Any non-exempt employer providing a health insurance plan that omits any abortifacients, contraception, sterilization, or education and counseling for the same, is subject
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(because of the Mandate) to heavy fines approximating $100 per employee per day. Such employers are also vulnerable to lawsuits by the Secretary of Labor and by plan participants.
90. A large employer entity cannot freely avoid the Mandate by simply refusing to provide health insurance to its employees, because the ACA imposes monetary penalties on entities that would so refuse.
91. The annual penalty for failing to provide health insurance coverage is $2000 times the number of the employer’s employees, minus 30.
The Religious Employer Exemption 92. On the very same day HRSA adopted the IOM’s recommendations, HHS promulgated an additional interim final rule regarding the preventive services mandate. 76 Fed. Reg. 46621 (published Aug. 3, 2011). 93. This Second Interim Final Rule granted HRSA “discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” 76 Fed. Reg. 46621, 46623 (emphasis added). The term “religious employer” was restrictively defined as one that (1) has as its purpose the “inculcation of religious values”; (2) “primarily employs persons who share the religious tenets of the organization”; (3) “serves primarily persons who share the religious tenets of the organization”; and (4) “is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. at 46626 (emphasis added). 94. The statutory citations in the fourth prong of this test refer to “churches, their integrated auxiliaries, and conventions or associations of churches” and the “exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3).
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95. The “religious employer” exemption was thus extremely narrow, limited to churches, their integrated auxiliaries, and religious orders, but only if (1) their purpose is to inculcate faith and (2) they hire and serve primarily people of their own faith tradition.
96. HRSA exercised its discretion to grant an exemption for religious employers via a footnote on its website listing the Women’s Preventive Services Guidelines. The footnote states that “guidelines concerning contraceptive methods and counseling described above do not apply to women who are participants or beneficiaries in group health plans sponsored by religious employers.” See http://www.hrsa.gov/womensguidelines.
97. Although religious organizations like the Schools share the same religious beliefs and concerns as objecting churches, their integrated auxiliaries, and objecting religious orders, HHS ignored the regulation’s impact on their religious liberty, stating that the exemption sought only “to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46621, 46623.
98. Therefore, the vast majority of organizations with conscientious objections to providing contraceptive or abortifacient services were excluded from the “religious employer” exemption.
99. Like the original Interim Final Rule, the Second Interim Final Rule was made effective immediately, without prior notice or an opportunity for public comment.
100. Defendants acknowledged that “while a general notice of proposed rulemaking and an opportunity for public comment is generally required before promulgation of regulations,” they had “good cause” to conclude that public comment was “impracticable, unnecessary, or contrary to the public interest” in this instance. 76 Fed. Reg. at 46624.
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101. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted opposing the narrow scope of the “religious employer” exemption and protesting the contraception mandate’s infringement on the rights of religious individuals and organizations.
102. HHS did not take into account the concerns of religious organizations in the comments submitted before the Second Interim Rule was issued. HHS was unresponsive to numerous and well-grounded assertions that the Mandate violated statutory and constitutional protections of rights of conscience.
The Temporary Enforcement Safe Harbor 103. The public outcry for a broader religious employer exemption continued for many months. On January 20, 2012, HHS issued a press release acknowledging “the important concerns some have raised about religious liberty” and stating that religious objectors would be “provided an additional year . . . to comply with the new law.” See Jan. 20, 2012 Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html. 104. On February 10, 2012, HHS formally announced a “temporary enforcement safe harbor” for non-exempt nonprofit religious organizations that objected to covering contraceptive and/or abortifacient services. 105. HHS declared that it would not take any enforcement action against an eligible organization during the safe harbor period, which would extend until the first plan year beginning after August 1, 2013.
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106. HHS also indicated it would develop and propose changes to the regulations in an effort to accommodate the religious liberty objections of non-exempt, nonprofit religious organizations following the expiration of the safe harbor.
107. Despite the safe harbor and HHS’s accompanying promises, on February 10, 2012, HHS announced a final rule “finalizing, without change,” the contraception and abortifacient mandate and narrow religious employer exemption. 77 Fed. Reg. 8725-01 (published Feb. 15, 2012).
The Advance Notice of Proposed Rulemaking 108. On March 21, 2012, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM), presenting “questions and ideas” to “help shape” a discussion of how to “maintain the provision of contraceptive coverage without cost sharing,” while accommodating the religious beliefs of non-exempt religious organizations. 77 Fed. Reg. 16501, 16503 (2012). 109. The ANPRM conceded that forcing religious organizations to “contract, arrange, or pay for” the objectionable contraceptive and abortifacient servicers would infringe their “religious liberty interests.” Id. (emphasis added). 110. The ANPRM proposed, in vague terms, that the “health insurance issuers” for objecting religious employers could be required to “assume the responsibility for the provision of contraceptive coverage without cost sharing.” Id. 111. “[A]pproximately 200,000 comments” were submitted in response to the ANPRM, 78 Fed. Reg. 8456, 8459, largely restating previous comments that the government’s proposals would not resolve conscientious objections, because the objecting religious organizations, by providing a health care plan in the first instance, would still be coerced to arrange for and facilitate access to morally objectionable services.
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The Notice of Proposed Rulemaking 112. On February 1, 2013, HHS issued a Notice of Proposed Rulemaking (NPRM) purportedly addressing the comments submitted in response to the ANPRM. 78 Fed. Reg. 8456 (published Feb. 6, 2013). 113. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8456, 8458-59. 114. First, it proposed revising the religious employer exemption by eliminating the requirements that religious employers have the purpose of inculcating religious values and primarily employ and serve only persons of their same faith. 78 Fed. Reg. at 8461. 115. Under the NPRM’s proposal, a “religious employer” would be one “that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 8461. 116. HHS emphasized, however, that this proposal “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” 78 Fed. Reg. 8456, 8461. 117. In other words, religious organizations like the Schools that are not churches, integrated auxiliaries, or religious orders would continue to be denied the protection of the exemption. 118. Second, the NPRM followed up on HHS’s earlier-stated intention to “accommodate” non-exempt, nonprofit religious organizations by making them “designate” their insurers and third party administrators to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs and services.
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119. The proposed “accommodation” did not resolve the concerns of religious organizations like the Schools because it continued to force them to deliberately provide health insurance that would trigger access to abortion-inducing drugs and related education and counseling.
120. “[O]ver 400,000 comments” were submitted in response to the NPRM, 78 Fed. Reg. 39870, 39871, with religious organizations again overwhelmingly decrying the proposed “accommodation” as a violation of their religious liberty because it would conscript their health care plans as the main cog in the government’s scheme for expanding access to contraceptive and abortifacient services.
121. On April 8, 2013, the very day that the notice-and-comment period ended, Defendant Secretary Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University.
122. In her remarks, Secretary Sebelius stated: We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st. . . . [A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package.
See The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health and Human Services, Apr. 8, 2013, available at http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (Episode 9 at 2:25) (emphasis added).
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123. Given the timing of these remarks, it is clear that Defendants gave no consideration to the comments submitted in response to the NPRM’s proposed “accommodation.”
124. Moreover, Secretary Sebelius’ remarks belie the assertion that objecting employers are not “providing coverage for” morally objectionable items in the health insurance plans they provide employees.
The Final Mandate 125. On June 28, 2013, Defendants issued a final rule (the “Final Mandate”), which ignores the objections repeatedly raised by religious organizations and others and continues to co-opt objecting employers into the government’s scheme of expanding free access to contraceptive and abortifacient services. 78 Fed. Reg. 39870 (2013). Defendants declared that the Final Mandate would be effective August 1, 2013, only one month after it was issued. 126. Under the Final Mandate, the discretionary “religious employer” exemption, which is still implemented via footnote on the HRSA website, see http://www.hrsa.gov/womensguidelines, remains limited to churches, integrated auxiliaries, and religious orders “organized and operate[d]” as nonprofit entities and “referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 39874. 127. Defendants attempt to justify the extraordinarily narrow religious exemption as follows: “The Departments believe that the simplified and clarified definition of religious employer continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental interests furthered by the contraceptive coverage requirement. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to
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employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39874.
128. All other organizations, including the Schools, are denied the exemption’s protection.
129. The Schools do not fall within the scope of this narrow religious exemption. They are not churches, the integrated auxiliaries of a church, or conventions or associations of churches, nor do they perform the exclusively religious activities of a religious order.
130. The Final Mandate declares that the rules concerning contraceptive and abortifacient services will “apply to student health insurance coverage arranged by an eligible organization that is an institution of higher education in a manner comparable to that in which they apply to group health insurance coverage provided in connection with a group health plan established or maintained by an eligible organization that is an employer.” 78 Fed. Reg. at 39897.
131. The Final Mandate creates a separate “accommodation” for certain non-exempt religious organizations. 78 Fed. Reg. at 39874.
132. An organization is eligible for the accommodation if it (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874.
133. The Schools are eligible for the so-called accommodation. 134. The self-certification must be executed “prior to the beginning of the first plan year to which an accommodation is to apply.” 78 Fed. Reg. at 39875.
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135. The Final Rule also extends the current Temporary Enforcement Safe Harbor through the end of 2013, only six months after the issuance of the Final Rule. 78 Fed. Reg. at 39889.
136. Thus, an eligible organization would need to execute the self-certification prior to its first plan year that begins on or after January 1, 2014, and deliver it to the organization’s insurer. If the organization has a self-insured plan, it would deliver the executed self-certification to the plan’s third party administrator. 78 Fed. Reg. at 39875.
137. If it elects to invoke the accommodation with respect to its employee plan, Dordt would be required to execute the self-certification and deliver it to its plan’s third party administrator before June 1, 2014.
138. By delivering its self-certification to its third-party administrator, Dordt would trigger the third-party administrator’s provision of or arrangement for payments for the morally objectionable abortifacients. 78 Fed. Reg. 39892-39893. These payments constitute coverage of the items to which Dordt objects. See, e.g., id. at 39872 (“the regulations provide women with access to contraceptive coverage”). These payments also are treated as coverage under the consumer protection requirements of the Public Health Service Act and ERISA. Id. at 39876. This coverage will not be contained in any insurance policy separate from Dordt’s plan. See id.
139. If it elects to invoke the accommodation with respect to its employee plan, Cornerstone would be required to execute the self-certification and deliver it to its plan’s issuer before October 1, 2014.
140. By delivering its self-certification to its insurer, Cornerstone would trigger the insurer’s obligation to make “separate payments for contraceptive services directly for plan participants and beneficiaries.” 78 Fed. Reg. at 39875-76. These payments constitute
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coverage of the items to which Cornerstone objects. See, e.g., id. at 39872 (“the regulations provide women with access to contraceptive coverage”). These payments also are treated as coverage under consumer protection requirements of the Public Health Service Act and ERISA. Id. at 39876. This coverage will not be contained in any insurance policy separate from Cornerstone’s plan. See id.
141. By issuing their self-certifications, the Schools would be identifying their participating employees and students to the insurer or third-party administrator for the distinct purpose of enabling the government’s scheme to facilitate free access to abortifacient services.
142. The insurer’s obligation to make direct payments for abortifacient services would continue only “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. at 39876.
143. Therefore, Cornerstone would have to coordinate with its insurer whenever it added or removed employees and beneficiaries from its healthcare plan and, as a direct and unavoidable result, from the abortifacient services payment scheme.
144. Cornerstone’s insurer is required to notify plan participants and beneficiaries of the abortifacient payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan. 78 Fed. Reg. at 39876.
145. This would also require Cornerstone to coordinate the notices with its insurer. 146. Cornerstone’s insurer would be required to provide the abortifacient benefits “in a manner consistent” with the provision of other covered services. 78 Fed. Reg. at 39876-77. 147. Thus, any payment or coverage disputes presumably would be resolved under the terms of the Cornerstone’s existing plan documents.
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148. Thus, even under the accommodation, the Schools and every other non-exempt objecting religious organization would continue to play a central role in facilitating free access to abortifacient services.
149. Defendants state that they “continue to believe, and have evidence to support,” that providing payments for contraceptive services will be “cost neutral for issuers,” because “[s]everal studies have estimated that the costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. at 39877.
150. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
151. Nevertheless, even if the payments, over time, eventually resulted in cost savings in other areas, it is undisputed that it would cost money at the outset to make the payments. See, e.g., 78 Fed. Reg. at 39877-78 (addressing ways insurers can cover up-front costs).
152. Moreover, if the cost savings that allegedly will arise make insuring an employer’s employees cheaper, the savings would have to be passed on to employers through reduced premiums, not retained by insurance issuers.
153. HHS suggests that, to maintain cost neutrality, issuers may simply ignore this fact and “set the premium for an eligible organization’s large group policy as if no payments for contraceptive services had been provided to plan participants.” 78 Fed. Reg. 39877.
154. This encourages issuers to artificially inflate the eligible organization’s premiums. 155. Under this methodology—assuming it is even legal—the eligible organization would still bear the cost of the required payments for abortifacient services in violation of their consciences, as if the accommodation had never been made.
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156. Defendants have suggested that “[a]nother option” would be to “treat the cost of payments for contraceptive services . . . as an administrative cost that is spread across the issuer’s entire risk pool, excluding plans established or maintained by eligible organizations.” 78 Fed. Reg. at 39878.
157. There is no legal authority for forcing third parties to pay for services provided to the employees of eligible organizations under the accommodation.
158. Furthermore, under the Affordable Care Act, Defendants lack authority in the first place to coerce insurers to make separate payments for contraceptive and abortifacient services for an eligible organization’s plan participants and beneficiaries.
159. Thus, the accommodation fails to protect objecting religious organizations for lack of statutory authority.
160. For all these reasons, the accommodation does nothing to relieve non-exempt religious organizations with insured plans from being co-opted as the central cog in the government’s scheme to force the free provision of contraceptive and abortifacient services even when the organizations object to facilitating those services.
161. In sum, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s role as the central cog in the government’s scheme for expanding access to contraceptive and abortifacient services.
162. Despite the accommodation’s convoluted machinations, a religious organization’s decision to offer health insurance (which the ACA’s employer mandate requires) and its self-certification continue to serve as the sole triggers for creating access to free abortifacient services to its employees and plan beneficiaries from the same insurer they are paying for their insurance plan.
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163. The Schools cannot participate in or facilitate the government’s scheme in this manner without violating their religious convictions.
The Final Mandate and Plaintiffs’ Health Insurance Plans 164. The plan year for Dordt’s next employee health plan begins on June 1, 2014; Cornerstone’s begins on October 1, 2014. As a result, the Schools now – or will soon – face a choice. They can transgress their religious commitments by including abortifacients in their plan or by triggering their insurance issuer or third-party administrator to provide the exact same services by providing the self-certification. Or they can transgress their religious duty to provide for the well-being of their employees and their families by dropping their employee health insurance plans altogether in order to avoid being complicit in the provision of abortifacients, thereby incurring crippling annual fines. 165. Although the government has recently announced that it will postpone implementing the annual fine of $2000 per employee (minus 30) for organizations that drop their insurance altogether, the postponement is only for one year, until 2015. This postponement does not delay the daily fines under 26 U.S.C. § 4980D or lawsuits under 29 U.S.C. § 1132. 166. The plan year for Dordt’s next student plan begins on August 1, 2014. As a result, Dordt College will face a choice in the period leading up to that date. It can transgress its religious commitments by including abortifacients in its plan or by triggering its insurance issuers to provide the exact same services by providing its self-certification. Or it can transgress its religious duty to provide for the well-being of its students by dropping its student health insurance plans altogether in order to avoid being complicit in the provision of abortifacients.
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167. The Schools’ religious convictions forbid them from participating in any way in the government’s scheme to provide free access to abortifacient services through their health care plans.
168. Dropping their insurance plans would place the Schools at a severe competitive disadvantage in their efforts to recruit and retain employees and students.
169. The Final Mandate forces the Schools to deliberately provide health insurance that would facilitate free access to emergency contraceptives, including Plan B and ella, regardless of the ability of insured persons to obtain these drugs from other sources.
170. The Final Mandate forces the Schools to facilitate government-dictated education and counseling concerning abortion that directly conflicts with their religious beliefs and teachings.
171. Facilitating this government-dictated speech directly undermines the express speech and messages concerning the sanctity of life that the Schools seek to convey.
172. The Mandate therefore imposes a variety of substantial burdens on the religious beliefs and exercise of each of the Plaintiffs.
The Governmental Interests Allegedly Underlying the Mandate and the Availability of Other Means of Pursuing Those Interests 173. Coercing Plaintiffs to facilitate access to morally objectionable contraceptives and abortifacients advances no compelling governmental interest. 174. The required drugs, devices, and related services to which Plaintiffs object are already widely available at non-prohibitive costs. 175. Upon information and belief, Plan B is widely available for between $30 and $65. Upon information and belief, ella is widely available for approximately $55.
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176. There are numerous alternative mechanisms through which the government could provide access to the objectionable drugs and services without conscripting objecting organizations and their insurance plans in violation of their religious beliefs.
177. For example, it could pay for the objectionable services through its existing network of family planning services funded under Title X, through direct government payments, or through tax deductions, refunds, or credits.
178. The government could simply exempt all conscientiously objecting organizations, just as it has already exempted the small subset of nonprofit religious employers that are referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
179. In one form or another, the government also provides exemptions for grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. 41,726, 41,731 (2010), small employers with fewer than 50 employees, 26 U.S.C. § 4980H(c)(2)(A), and certain religious denominations, 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds). 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
180. These broad exemptions further demonstrate the Schools could be exempted from the Mandate without measurably undermining any sufficiently important governmental interest allegedly served by the Mandate.
181. Employers who do not make modifications to their insurance plans that deprive the plans of “grandfathered” status may continue to use those grandfathered plans indefinitely.
182. Indeed, HHS itself has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans until at least 2014, and
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that a third of medium-sized employers with between 50 and 100 employees may do likewise. 75 Fed. Reg. 34538 (June 17, 2010); see also http://web.archive.org/web/20130620171510 /http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-have-grandfat hered.html (archived version); https://www.cms.gov/CCIIO/Resources/Files/Factsheet¬_ grandfather_amendment.html (noting that amendment to regulations “ will result in a small increase in the number of plans retaining their grandfathered status relative to the estimates made in the grandfathering regulation”).
183. In the ACA Congress chose to impose a variety of requirements on grandfathered health plans, but decided that this Mandate was not important enough to impose to the benefit of tens of millions of women. Congress did not even think contraception was important enough to codify as part of this Mandate—as far as Congress is concerned, the Mandate need not include contraception at all.
184. The Administration’s recent postponement of the employer mandate (and its attendant penalties) also belies any claim that a compelling interest justifies coercing Plaintiffs to comply with the Final mandate, as employers may now simply decide not to provide their employee health plans without incurring fines under 26 U.S.C. § 4980H, at least for one additional year.
185. These broad exemptions also demonstrate that the Final Mandate is not a general law entitled to some measure of judicial deference.
186. The available evidence does not support Defendants’ contention that making contraceptives, abortifacients, and related counseling available without cost sharing decreases the rate of unintended pregnancy or the adverse impacts on health and equality that allegedly flow from the unintended nature of a pregnancy.
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187. Defendants were willing to exempt various secular organizations and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for religious organizations.
188. The Final Mandate was promulgated by government officials, and supported by non-governmental organizations, who strongly oppose religious teachings and beliefs regarding marriage, family, and life.
189. Defendant Sebelius, for example, has long been a staunch supporter of abortion rights and a vocal critic of religious teachings and beliefs regarding abortion and contraception.
190. On October 5, 2011, six days after the comment period for the original interim final rule ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.”
191. She further criticized individuals and entities whose beliefs differed from those held by her and the others at the fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.”
192. On July 16, 2013, Secretary Sebelius further compared opponents of the Affordable Care Act generally to “people who opposed civil rights legislation in the 1960s,” stating that upholding the Act requires the same action as was shown “in the fight against lynching and the fight for desegregation.” See http://www.hhs.gov/secretary/about/speeches/ sp20130716.html.
193. Consequently, on information and belief, the Schools allege that the purpose of the Final Mandate, including the restrictively narrow scope of the religious employers
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exemption, is to discriminate against religious organizations that oppose contraception and abortion.
FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 194. Plaintiffs reallege all matters set forth in paragraphs 1-193 and incorporate them herein. 195. The Schools’ sincerely held religious beliefs prohibit them from providing, paying for, making accessible, or facilitating coverage or payments for abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling, or providing or facilitating a plan that causes access to the same through an insurance company, third-party administrator, or any other third party. 196. When the Schools comply with the Ten Commandments’ prohibition on murder and with other sincerely held religious beliefs, they exercise religion within the meaning of the Religious Freedom Restoration Act. 197. The Mandate imposes a substantial burden on the Schools’ religious exercise and coerces them to change or violate their religious beliefs. 198. The Mandate chills the Schools’ religious exercise within the meaning of RFRA and pressures them to abandon their religious convictions and religious practices. 199. The Mandate exposes the Schools to substantial fines and/or financial burdens for their religious exercise. 200. The Mandate exposes the Schools to substantial competitive disadvantages because of uncertainties about their health insurance benefits caused by the Mandate.
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201. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
202. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
203. The Mandate and Defendants’ threatened enforcement thereof violates the Schools’ rights protected by the Religious Freedom Restoration Act.
204. Absent injunctive and declaratory relief against application and enforcement of the Mandate, the Schools will suffer irreparable harm.
SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 205. Plaintiffs reallege all matters set forth in paragraphs 1–193 and incorporate them herein. 206. The Schools’ sincerely held religious beliefs prohibit them from providing, paying for, making accessible, or otherwise facilitating coverage or payments for abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling, or providing or facilitating a plan that causes access to the same through an insurance company or third-party administrator. 207. When the Schools comply with the Ten Commandments’ prohibition on murder and with other sincerely held religious beliefs, they exercise religion within the meaning of the Free Exercise Clause. 208. The Mandate is not neutral and is not generally applicable. 209. Defendants have created categorical exemptions and individualized exemptions to the Mandate.
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210. The Mandate furthers no compelling governmental interest. 211. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 212. The Mandate coerces the Schools to change or violate their religious beliefs. 213. The Mandate chills the Schools’ religious exercise. 214. The Mandate exposes the Schools to substantial fines and/or financial burdens for their religious exercise. 215. The Mandate exposes the Schools to substantial competitive disadvantages, in that it makes it unclear what health benefits they can offer to their employees and what health insurance coverage they can facilitate for their students. 216. The Mandate substantially burdens the Schools’ religious exercise. 217. The Mandate is not narrowly tailored to any compelling governmental interest. 218. Despite being informed in detail of the religious objections of the Schools and thousands of others, Defendants designed the Mandate and the religious exemption thereto to target the Schools and others like them, thereby making it impossible for the Schools and other similar religious organizations to comply with their religious beliefs without suffering crippling punishments. 219. Defendants promulgated both the Mandate and the religious exemption in order to suppress the religious exercise of the Schools and others. 220. By design, Defendants framed the Mandate to apply to some religious organizations but not others, resulting in discrimination among religions. 221. The Mandate violates the Schools’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
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THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 222. Plaintiffs reallege all matters set forth in paragraphs 1–193 and incorporate them herein. 223. The First Amendment’s Establishment Clause, together with the Free Exercise Clause, requires the equal treatment of all religious faiths and institutions without discrimination or preference. It prohibits the unjustified differential treatment of similarly situated religious organizations. 224. The Mandate’s narrow exemption for “religious employers” discriminates among religions on the basis of religious views, religious status, or incidental institutional structure or affiliation. 225. The Mandate adopts a particular theological view of what is morally acceptable complicity in the facilitation of abortifacient coverage and payments, and imposes it upon those, like the Schools, who conscientiously object, and who must either conform their consciences or suffer penalty. 226. The Establishment Clause, together with the Free Exercise Clause, also protects the freedom of religious organizations to decide for themselves, free from governmental interference, matters of internal governance as well as those of doctrine and practice. 227. Under the First Amendment, government may not interfere with a religious organization’s internal decisions concerning its religious structure, leadership, practice, discipline, membership, or doctrine.
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228. Under the First Amendment, government may not interfere with a religious organization’s internal decisions if that interference would affect the faith and mission of the organization itself.
229. The Schools made an internal decision, dictated by their Christian faith, that the health plans they make available to employees and students may not include, subsidize, provide, pay for, or in any way facilitate access to abortifacient drugs, devices, or related services.
230. The Mandate interferes with the Schools’ internal decisions concerning their structure and mission by requiring them to subsidize, provide access to, and facilitate practices that directly conflict with their Christian beliefs.
231. The Schools also made internal decisions to not be structured as integrated auxiliaries to a church, denomination, or association of churches.
232. The Mandate’s narrow religious exemption unconstitutionally punishes the Schools for this structural choice, and pressures them to become integrated auxiliaries of a church or denomination in order to gain the protection of the exemption.
233. Because the Final Mandate interferes with the Schools’ internal decision making in a manner that affects their faith and mission, it violates the Establishment Clause (and Free Exercise Clause) of the First Amendment.
234. Absent injunctive and declaratory relief against the Mandate, the Schools will suffer irreparable harm.
FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 235. Plaintiffs reallege all matters set forth in paragraphs 1–193 and incorporate them herein.
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236. Defendants’ requirement to provide insurance coverage for education and counseling regarding contraception causing abortion forces the Schools to speak in a manner contrary to their religious beliefs.
237. The Schools teach that abortion violates God’s law and that any participation in the unjustified taking of an innocent human life contradicts their religious beliefs and convictions.
238. The Mandate compels the Schools to facilitate expression and activities that the Schools teach are inconsistent with their religious beliefs, expression, and practices.
239. The Mandate compels the Schools to facilitate access to government-dictated education and counseling related to abortion.
240. Defendants thus violate the Schools’ rights to be free from compelled speech, a right secured to them by the Free Speech Clause of the First Amendment.
241. The Mandate’s compelled speech requirement does not advance a compelling governmental interest.
242. Defendants have no narrowly tailored compelling interest to justify this compelled speech.
243. The Mandate violates the Schools’ rights secured to them by the Free Speech Clause of the First Amendment to the United States Constitution.
244. Absent declaratory and injunctive relief, the Schools will suffer irreparable harm.
FIFTH CLAIM FOR RELIEF Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution 245. Plaintiffs reallege all matters set forth in paragraphs 1–193 and incorporate them herein.
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246. Because the Mandate sweepingly infringes upon religious exercise and speech rights that are constitutionally protected, it is unconstitutionally vague in violation of the due process rights of the Schools and other parties not before the Court.
247. Persons of common intelligence must necessarily guess at the meaning, scope, and application of the Mandate and its exemptions.
248. This Mandate lends itself to discriminatory enforcement by government officials in an arbitrary and capricious manner, and lawsuits by private persons, based on the government’s vague standard.
249. The Mandate vests Defendants with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations that possess religious beliefs and/or that meet the government’s definition of “religious employers.”
250. This Mandate violates the Schools’ due process rights under the Fifth Amendment to the United States Constitution.
SIXTH CLAIM FOR RELIEF Violation of the First Amendment to the United States Constitution
Freedom of Expressive Association 251. Plaintiffs reallege all matters set forth in paragraphs 1–193 and incorporate them herein. 252. The Schools teach that abortion violates God’s law and that any participation in the unjustified taking of an innocent human life contradicts their religious beliefs and convictions. 253. The Mandate compels the Schools to facilitate expression and activities that the Schools teach are inconsistent with their religious beliefs, expression, and practices.
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254. Defendants’ actions thus violate the Schools’ right of expressive association protected by the Free Speech Clause of the First Amendment to the United States Constitution.
SEVENTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act 255. Plaintiffs reallege all matters set forth in paragraphs 1–193 and incorporate them herein. 256. Because they did not give proper notice and an opportunity for public comment, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 257. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 258. Defendants issued its regulations on an interim final basis and only asked for comments thereafter. Yet Defendants signaled from regulatory text of its interim rules that it had no intention of considering the requests by religious organizations to provide them with exemptions, or to hold the effective date of its rules after it received and considered all the comments submitted. 259. Thus, Defendants imposed its rules without the required “open-mindedness” that agencies must have when notice-and-comment occurs. Defendants also did not have good cause to impose the rules without prior notice and comment. 260. Moreover, Defendants issued the Final Mandate with respect to Dordt on June 28, 2013, and declared it effective August 1, 2013, with a “safe harbor” that imposed the Final Mandate on Dordt’s employee plan year beginning June 1, 2014.
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261. The ACA provides, and Defendants admit, that any rule issued requiring coverage of preventive services under 42 U.S.C. § 300gg-13 cannot go into effect until at least a year after the rule is finalized.
262. Thus the Final Rule, by its effective date of August 1, 2013 and its impact on Dordt College on June 1, 2014, violates the ACA and Defendants’ regulations against imposing within a year after they are finalized, and/or violates the APA’s requirement that agencies be open-minded to comments before finalizing their rules.
263. Therefore, Defendants have violated the notice and comment requirements of 5 U.S.C. §§ 553 (b) and (c), have taken agency action not in accordance with procedures required by law, and the Schools are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
264. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on the Schools and similar organizations.
265. Defendants’ explanation (and lack thereof) for its decision not to exempt the Schools and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
266. 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 the full extent of its implications and it does not take into consideration the evidence against it.
267. As set forth above, the Mandate violates RFRA and the First and Fifth Amendments.
268. The Mandate is also contrary to the provision of the ACA that 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
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[abortion] services . . . as part of its essential health benefits for any plan year.” Section 1303(b)(1)(A).
269. The Mandate is also contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and 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 made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”
270. The Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that “No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
271. The Mandate is contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request the following relief: A. That this Court enter a judgment declaring the Mandate and its application to Plaintiffs and their insurance issuers or third-party administrators to be a violation of their rights protected by RFRA, the Free Exercise, Establishment, and Free Speech Clauses of the First
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Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment
to the United States Constitution, and the Administrative Procedure Act;
B. That this Court enter a permanent injunction prohibiting Defendants from
continuing to apply the Mandate to the Plaintiffs and their insurance issuers or third-party
administrators or in a way that violates the legally protected rights of any person, and prohibiting
Defendants from continuing to illegally discriminate against Plaintiffs by requiring them to
provide health insurance coverage or access to separate payments for contraceptives,
abortifacients, and related counseling to their employees and students;
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); and
D. That this Court grant such other and further relief as to which the Plaintiffs may
be entitled.
Respectfully submitted this 23 day of October, 2013.
s/ Jeff W. Wright Jeff W. Wright (Iowa Bar No. AT0008716) Daniel D. Dykstra (Iowa Bar No. AT0002182) HEIDMAN LAW FIRM 1128 Historic Fourth Street P.O. Box 3096 Sioux City, IA 51102 (712) 255-8838 (712) 258-6714 (facsimile)
Gregory S. Baylor* (Texas Bar No. 01941500) Matthew S. Bowman* (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
45
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David A. Cortman* (Georgia Bar No. 188810) 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* (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org Carole D. Bos* (Michigan Bar No. P33638) BOS & GLAZIER 990 Monroe, N.W. Grand Rapids, MI 49503 (616) 458-6814 (616) 459-8614 (facsimile) cbos@bosglazier.com Attorneys for Plaintiffs *Motion to appear pro hac vice to be submitted
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VERIFICATION OF COMPLAINT ACCORDING TO 28 U.S.C, § 1746 I declare under penalty of perjury that the foregoing allegations regarding Dordt College are true and correct to the best of my knowledge.
Executed on October 2-3 , 2013.
Erik Hoekstra* President, Dordt College */ certify that I have the signed original of this document, which is available for inspection at any time by the Court or a party to this action.
47
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OCT-23-2013 10:48

P. 001/001

VERIFICATION OF COMPLAINT ACCORDING TO 28 U.S.C. § 1746 I declare under penalty of perjury that the foregoing allegations regarding Cornerstone University are true and correct to the best of my knowledge.
Executed on October 2^2013.
Josefrfi M. Stowell*
Wsident, Cornerstone University
* / certify that I have the signed original ofthis document, which is available for inspection at any time by the Court or a party to this action.

48
Case 5:13-cv-04100-MWB Document 1 Filed 10/23/13 Page 48 of 48
TOTAL P. 001

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

)

DORDT COLLEGE and CORNERSTONE UNIVERSITY,

) ) )

Plaintiffs,

) )

v.

) )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States

)

Department of Health and Human Services, et al.,

) ) )

Defendants.

)

)

Case No. 5:13-cv-04100-MWB

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

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendants hereby

move to dismiss this action. In the alternative, defendants move for summary judgment on all of

plaintiffs’ claims pursuant to Rule 56. The grounds for these motions are set forth in the

accompanying memorandum.

Respectfully submitted this 10th day of January, 2014,

STUART F. DELERY Assistant Attorney General

SEAN R. BERRY United States Attorney

JENNIFER RICKETTS Director

SHEILA M. LIEBER Deputy Director

_/s/ Michael C. Pollack______________ MICHAEL C. POLLACK (NY Bar) Trial Attorney United States Department of Justice

Case 5:13-cv-04100-MWB Document 12 Filed 01/10/14 Page 1 of 3

Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 7222 Washington, DC 20530 Tel: (202) 305-8550 Fax: (202) 616-8470 Email: Michael.C.Pollack@usdoj.gov Attorneys for Defendants
Case 5:13-cv-04100-MWB Document 12 Filed 01/10/14 Page 2 of 3

CERTIFICATE OF SERVICE I hereby certify that on January 10, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
_/s/ Michael C. Pollack __________ MICHAEL C. POLLACK
Case 5:13-cv-04100-MWB Document 12 Filed 01/10/14 Page 3 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

)

DORDT COLLEGE and

)

CORNERSTONE UNIVERSITY,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States

)

Department of Health and Human Services, et )

al.,

)

)

Defendants.

)

)

)

)

Case No. 5:13-cv-04100-MWB

DEFENDANTS’ STATEMENT OF MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Pursuant to Local Civil Rule 56(a)(3), defendants hereby submit the following statement

of material facts as to which defendants contend there is no genuine issue in connection with

their motion for summary judgment under Rule 56(b) of the Federal Rules of Civil Procedure:

1. Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-

148, 124 Stat. 119 (2010), due largely to cost, Americans used preventive services at about half

the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN:

CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”), AR at 317-18, 407.

2. Section 1001 of the ACA requires all group health plans and health insurance

issuers that offer non-grandfathered group or individual health coverage to provide coverage for

certain preventive services without cost-sharing, including, “[for] women, such additional

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preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).
3. Because there were no existing HRSA guidelines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) tasked the Institute of Medicine (IOM) with developing recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300.
4. After conducting an extensive science-based review, IOM recommended that HRSA guidelines include, among other things, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10-12, AR at 308-10.
5. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105, AR at 403.
6. Coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.
7. On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, encompassing all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider, subject to an exemption relating to certain religious employers authorized by regulations issued that same day (the “2011 amended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84.
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8. To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets
of the organization; (3) the organization serves primarily persons who share the religious tenets of
the organization; and (4) the organization is a nonprofit organization as described in section
6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220. 9. Group health plans established or maintained by religious employers (and associated group health insurance coverage) are exempt from any requirement to cover contraceptive services consistent with HRSA’s guidelines. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84; 45 C.F.R. § 147.131(a). 10. In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 amended interim final regulations while also creating a temporary enforcement safe harbor for non-grandfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14. 11. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215.
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12. The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,870, AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21, 2012) (Advance Notice of Proposed Rulemaking (ANPRM)), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.
13. Under the 2013 final rules, a “religious employer” is “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended,” which refers to churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a).
14. The changes made to the definition of religious employer in the 2013 final rules ensure “that an otherwise exempt plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer hires or serves people of different religious faiths.” 78 Fed. Reg. at 39,874, AR at 6.
15. The 2013 final rules establish accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations” (and group health insurance coverage provided in connection with such plans). Id. at 39,875-80, AR at 7-12; 45 C.F.R. § 147.131(b).
16. An “eligible organization” is an organization that satisfies the following criteria: (1) The organization opposes providing coverage for some or all of any
contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of
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this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. 17. Under the 2013 final rules, an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. 18. To be relieved of any such obligations, the 2013 final rules require only that an eligible organization complete a self-certification form stating that it is an eligible organization and provide a copy of that self-certification to its issuer or third party administrator (TPA). Id. at 39,878-79, AR at 10-11. 19. Its participants and beneficiaries, however, will still benefit from separate payments for contraceptive services made by the issuer or TPA, without cost sharing or other charge. Id. at 39,874, AR at 6. 20. In the case of an organization with an insured group health plan, the organization’s health insurance issuer, upon receipt of the self-certification, must provide separate payments to plan participants and beneficiaries for contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,875-77, AR at 7-9. 21. In the case of an organization with a self-insured group health plan, the organization’s TPA, upon receipt of the self-certification, must provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan without costsharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12.
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22. Any costs incurred by TPAs will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
23. The 2013 final rules generally apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except the amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
24. The primary predicted benefit of the preventive services coverage regulations is that “individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19.
25. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increase access to and utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significant barrier to access to contraception.” (citation omitted)), AR at 5.
26. Although a majority of employers cover FDA-approved contraceptives, see IOM Rep. at 109, AR at 407, many women forgo preventive services because of cost-sharing imposed by their health plans, see id. at 19-20, 109, AR at 317-18, 407.
27. Unintended pregnancies have proven in many cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4.
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28. Unintended pregnancy may delay “entry into prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02.
29. Contraceptive coverage further helps to avoid “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small-for-gestational age births.”) (citing studies), AR at 4.
30. “Contraceptives also have medical benefits for women who are contraindicated for pregnancy, and there are demonstrative preventive health benefits from contraceptives relating to conditions other than pregnancy (for example, prevention of certain cancers, menstrual disorders, and acne).” 78 Fed. Reg. at 39,872, AR at 4; see also IOM Rep. at 103-04 (“[P]regnancy may be contraindicated for women with serious medical conditions such as pulmonary hypertension . . . and cyanotic heart disease, and for women with the Marfan Syndrome.”), AR at 401-02.
31. “[W]omen have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) (statement of Sen. Feinstein); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 19, AR at 317.
32. These costs result in women often forgoing preventive care and place women in the workforce at a disadvantage compared to their male coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) (statement of Sen. Murray); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 20, AR at 318.
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33. The grandfathering of certain health plans with respect to certain provisions of the ACA is not specifically limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140.
34. The effect of grandfathering is not really a permanent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preventive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at 19.
35. Even under the grandfathering provision, more group health plans will transition to the requirements under the regulations as time goes on. See 75 Fed. Reg. 34,538, 34,552 (June 17, 2010); see also Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190 (indicating that 58 percent of firms had at least one grandfathered health plan in 2012, down from 72 percent in 2011, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in 2011), AR at 663-64, 846.
36. 26 U.S.C. § 4980H(c)(2) does not exempt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 78 Fed. Reg. at 39,887 n.49, AR at 19.
37. Instead, it excludes employers with fewer than fifty full-time equivalent employees from the employer responsibility provision, meaning that, starting in 2015, such employers are not subject to the possibility of assessable payments if they do not provide health coverage to their full-time employees and their dependents. See 26 U.S.C. § 4980H(c)(2).
38. Small businesses that do offer non-grandfathered health coverage to their employees are required to provide coverage for recommended preventive services, including contraceptive services, without cost-sharing. 78 Fed. Reg. at 39,887 n.49, AR at 19.
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39. The ACA provides tax incentives for small businesses to encourage the purchase of health insurance. See 26 U.S.C. § 45R.
40. Even if a small business were to choose not to offer health coverage, employees of such business could get health insurance coverage that is facilitated by other ACA provisions—primarily those establishing both small group market and individual market health insurance exchanges and those establishing tax credits to make the purchase of coverage through such exchanges more affordable—and the coverage they receive through such exchanges will include coverage of all recommended preventive services, including contraception. See 78 Fed. Reg. at 39,887 n.49, AR at 19.
41. The only exemption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a).
42. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are, as a group, more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19.
43. Congress did not adopt a single (government) payer system financed through taxes and instead opted to build on the existing system of employment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010).
44. Defendants are constrained by statute from adopting the alternative administrative schemes proposed by plaintiffs. See 78 Fed. Reg. at 39,888, AR at 20.
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45. Plaintiffs’ proposed alternatives are not feasible because they would also impose considerable new costs and other burdens on the government and would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20.
46. Nor would the proposed alternatives be equally effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20.
47. Plaintiffs’ alternatives would require establishing entirely new government programs and infrastructures or fundamentally altering an existing one, and would require women to take burdensome steps to find out about the availability of and sign up for a new benefit, thereby ensuring that fewer women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20.
48. The regulations explicitly prohibit issuers and TPAs from imposing any costsharing, premium, fee, or other charge on plaintiffs or their plans with respect to the separate payments for contraceptive services made by the issuers and TPAs. See 78 Fed. Reg. at 39,880, AR at 12.
49. The regulations simply require coverage of “education and counseling for women with reproductive capacity.” HRSA Guidelines, AR at 130-31.
50. Defendants issued the ANPRM on March 21, 2012 and solicited comments on it. 77 Fed. Reg. at 16,501, AR at 186.
51. Defendants then considered those comments and issued the NPRM on February 6, 2013, requesting comments on the proposals contained in it. 78 Fed. Reg. at 8457, AR at 166.
52. Defendants received over 400,000 comments, and the preamble to the 2013 final rules contains a detailed discussion both of the comments defendants received and of defendants’ responses to those comments. See 78 Fed. Reg. at 39,871-39,888, AR at 3-20.
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53. The ACA requires only that there be a minimum interval of not less than one year between the date on which a recommendation or guideline is issued and the plan year for which the coverage of the services included in that recommendation or guideline must take effect. See 42 U.S.C. § 300gg-13(b); 75 Fed. Reg. at 41,729, AR at 229.
54. The HRSA Guidelines were published on August 1, 2011, and these regulations apply for plan years beginning on or after January 1, 2014. HRSA Guidelines, AR 283-84; 78 Fed. Reg. at 39,870, AR at 2.
55. Section 1303(b)(1) of the ACA provides that “nothing in this title . . . shall be construed to require a qualified health plan to provide coverage of [abortion services],” 42 U.S.C. § 18023(b)(1)(A)(i).
56. A “qualified health plan,” within the meaning of this provision, is a health plan that has been certified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance issuer. 42 U.S.C. § 18021(a)(1). Health insurance exchanges are to be set up by states no later than January 1, 2014. Id. § 18031.
57. Plaintiffs are neither health insurance issuers nor purchasers of qualified health plans.
58. The Weldon Amendment denies funds made available in the Consolidated Appropriations Act of 2012 to any federal, state, or local agency, program, or government that “subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Pub. L. No. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011).
59. The Church Amendment protects individuals from being required to “perform or assist in the performance of any part of a health service program or research activity funded . . .
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by the Secretary of Health and Human Services if his performance or assistance . . . would be contrary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(d).
60. The preventive services covered by the regulations do not include abortifacient drugs. HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/ 08/womensprevention08012011a.html (last visited Jan. 9, 2014); see also IOM REP. at 22 (recognizing that abortion services are outside the scope of recommendations), AR at 320.
61. The list of FDA-approved contraceptives includes emergency contraceptives such as Plan B. See IOM REP. at 105, AR at 403.
62. The basis for the inclusion of such drugs among safe and effective means of contraception dates back to 1997, when the FDA first explained why Plan B and similar drugs act as contraceptives rather than abortifacients. See Prescription Drug Products; Certain Combined Oral Contraceptives for Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997) (noting that “emergency contraceptive pills are not effective if the woman is pregnant” and that there is “no evidence that [emergency contraception] will have an adverse effect on an established pregnancy”); 45 C.F.R. § 46.202(f) (“Pregnancy encompasses the period of time from implantation until delivery.”).
63. In light of this conclusion by the FDA, HHS informed Title X grantees, which are required to offer a range of acceptable and effective family planning methods—and, except under limited circumstances, may not offer abortion—that they “should consider the availability of emergency contraception the same as any other method which has been established as safe and effective.” Office of Population Affairs, Memorandum (Apr. 23, 1997),
12 Case 5:13-cv-04100-MWB Document 12-1 Filed 01/10/14 Page 12 of 14

http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Jan. 9, 2014); see also 42 U.S.C.
§§ 300, 300a-6.
64. Representative Weldon, the sponsor of the Weldon Amendment, did not consider
the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148
Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of contraceptive services
has never been defined as abortion in Federal statute, nor has emergency contraception, what has
commonly been interpreted as the morning-after pill. . . . [U]nder the current FDA policy[,] that
is considered contraception, and it is not affected at all by this statute.”).
Respectfully submitted this 10th day of January, 2014,
STUART F. DELERY Assistant Attorney General
SEAN R. BERRY United States Attorney
JENNIFER RICKETTS Director
SHEILA M. LIEBER Deputy Director
_/s/ Michael C. Pollack______________ MICHAEL C. POLLACK (NY Bar) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 7222 Washington, DC 20530 Tel: (202) 305-8550 Fax: (202) 616-8470 Email: Michael.C.Pollack@usdoj.gov
Attorneys for Defendants
13 Case 5:13-cv-04100-MWB Document 12-1 Filed 01/10/14 Page 13 of 14

CERTIFICATE OF SERVICE I hereby certify that on January 10, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
_/s/ Michael C. Pollack __________ MICHAEL C. POLLACK
14 Case 5:13-cv-04100-MWB Document 12-1 Filed 01/10/14 Page 14 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

)

DORDT COLLEGE and CORNERSTONE UNIVERSITY,

) ) )

Plaintiffs,

) )

v.

) )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States

)

Department of Health and Human Services, et al.,

) ) )

Defendants.

)

)

Case No. 5:13-cv-04100-MWB

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Case 5:13-cv-04100-MWB Document 12-3 Filed 01/10/14 Page 1 of 51

TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 4
STANDARD OF REVIEW ............................................................................................................ 9
ARGUMENT .................................................................................................................................. 9
I. Plaintiffs’ Claims Lack Merit ................................................................................. 9
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit .... 9
1. The Regulations Do Not Substantially Burden Plaintiffs’ Exercise Of Religion....................................................................... 9
a. The Regulations Impose No More Than A De Minimis Burden On Plaintiffs’ Exercise Of Religion Because The Regulations Require Virtually Nothing Of Plaintiffs............. 11
b. Even If The Regulations Were Found To Impose Some More Than De Minimis Burden On Plaintiffs’ Exercise Of Religion, Any Such Burden Would Be Far Too Attenuated To Be “Substantial” Under RFRA....................... 16
2. Even If There Were A Substantial Burden On Religious Exercise, The Regulations Serve Compelling Governmental Interests And Are The Least Restrictive Means To Achieve Those Interests .............................................................................. 19
a. The Regulations Significantly Advance Compelling Governmental Interests In Public Health And Gender Equality .................................................................................. 19
b. The Regulations Are The Least Restrictive Means Of Advancing The Government’s Compelling Interests............. 24
B. The Regulations Do Not Violate the Free Exercise Clause ...................... 27
C. The Regulations Do Not Violate the Establishment Clause ..................... 30
D. The Regulations Do Not Violate the Right to Free Speech or Expressive Association ............................................................................. 32
E. The Regulations Do Not Violate the Due Process Clause ........................ 35
F. Plaintiffs’ APA Claims Fail ...................................................................... 37
1. The Regulations Were Promulgated In Accordance With The APA ....................................................................................... 37
2. The Regulations Are Neither Arbitrary Nor Capricious............... 38
3. The Regulations Do Not Violate Restrictions Relating To Abortion ........................................................................................ 39
CONCLUSION ..............................................................................................................................42
i
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Cases

TABLE OF AUTHORITIES

Adams v. Comm'r of Internal Revenue, 170 F.3d 173 (3d Cir. 1999) ...................................................................................................... 26

Am. Family Ass'n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004)................................................................................................. 28

Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) ............................................................................................... 28, 29

Annex Medical, Inc. v. Sebelius, 2013 WL 101927 (D. Minn. Jan. 8, 2013) ................................................................................ 17

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................... 9

Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970) .................................................................................................................. 39

Autocam Corp. v. Sebelius, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012),............................................................... passim

Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) ................................................................................................. 28

Barnhart v. Walton, 535 U.S. 212 (2002) .................................................................................................................. 42

Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011)................................................................................................... 42

Bowen v. Roy, 476 U.S. 693 (1986) .................................................................................................................. 12

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) .................................................................................................................. 35

Braunfeld v. Brown, 366 U.S. 599 (1961) ............................................................................................................ 10, 23

Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013) ...................................................................................... 33

Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ................................................................................................... 19

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

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

Catholic Diocese of Nashville v. Sebelius, 2013 WL 6834375 (M.D. Tenn. Dec. 26, 2013) ................................................................ passim

ii Case 5:13-cv-04100-MWB Document 12-3 Filed 01/10/14 Page 3 of 51

Children's Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ................................................................................................... 31
Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328 (N.D. Ga. 2012)...................................................................................... 15
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ................................................................................................ 22, 23, 27, 28
City of Boerne v. Flores, 521 U.S. 507 (1997) .................................................................................................................. 16
Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752 (7th Cir. 2003) ............................................................................................... 11, 14
Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008) ...................................................................................................... 10
Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013) (same), ..................................................................... passim
Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) .................................................................................................................. 32
Cutter v. Wilkinson, 544 U.S. 709 (2005) .................................................................................................................. 30
Dialysis Ctrs., Ltd. v. Schweiker, 657 F.2d 135 (7th Cir. 1981) ..................................................................................................... 39
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995).......................................................................................... 19
DKT Mem'l Fund, Ltd. v. Agency for Int'l Dev., 887 F.2d 275 (D.C. Cir. 1989)................................................................................................... 38
Droz v. Comm'r of IRS, 48 F.3d 1120 (9th Cir. 1995) ..................................................................................................... 31
Eden Foods v. Sebelius, Civil Action, 2013 WL 1190001 (E.D. Mich. Mar. 22, 2013) .................................................................. 17, 27
Empt. Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872 (1990) .................................................................................................................. 27
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976) .................................................................................................................. 42
Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) ..................................................................................................... 26
Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013) ..................................................................................................... 15
Geneva Coll. v. Sebelius, 2013 WL 838238 (W.D. Penn. Mar. 6, 2013) ........................................................................... 27
iii
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Gillette v. United States, 401 U.S. 437 (1971) ............................................................................................................ 30, 31
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) .................................................................................................................. 23
Gooden v. Crain, 353 F. App'x 885 (5th Cir. 2009) .............................................................................................. 26
Gov't Empls. Ins. Co. v. Benton, 859 F.2d 1147 (3d Cir. 1988) .................................................................................................... 41
Graham v. Comm'r, 822 F.2d 844 (9th Cir. 1987), .................................................................................................... 26
Gray v. Romero, 697 F. Supp. 580 (D.R.I. 1988) ................................................................................................. 40
Grote Indus. v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012)................................................................................. passim
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001)..................................................................................................... 10
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012),................................................................................. 27
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)............................................................................................................... 36
Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42 (2d Cir. 1990) ........................................................................................................ 29
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008)............................................................................................ passim
Korte v. HHS, 912 F. Supp. 2d 735 (S.D. Ill. 2012), ........................................................................................ 27
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) ..................................................................................................... 27
Larson v. Valente, 456 U.S. 228 (1982) ............................................................................................................ 30, 32
Liberty Univ., Inc. v. Lew, 733 F.3d 72 (4th Cir. 2013) ....................................................................................................... 32
Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App'x 729 (6th Cir. 2007)..................................................................................... 14, 15
McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004) ...................................................................................................... 14
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011)............................................................................................. 19
iv
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Mersino Mgmt. Co. v. Sebelius, 2013 WL 3546702 (E.D. Mich. July 11, 2013) ................................................................... 15, 16
Michigan Catholic Conf. v. Sebelius, 2013 WL 6838707 (W.D. Mich. Dec. 27, 2013)................................................................ passim
MK Chambers Co. v. U.S. Dep't of Health & Human Servs.,
2013 WL 1340719 (E.D. Mich. Apr. 3, 2013) .............................................................. 27, 33, 35
Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .................................................................................................................... 38
Murphy v. State of Ark., 852 F.2d 1039 (8th Cir. 1988) ................................................................................................... 25
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989) ..................................................................................................... 26
O'Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012) .............................................................................. passim
Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989)................................................................................................. 30
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) ..................................................................................................... 28
Parker v. Levy, 417 U.S. 733 (1974) .................................................................................................................. 36
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009)................................................................................................... 18
Priests for Life v. HHS, 2013 WL 6672400 (D.D.C. Dec. 19, 2013) ....................................................................... passim
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ............................................................................................................ 21, 35
Roman Catholic Archbishop of Washington v. Sebelius, 2013 WL 6729515 (D.D.C. Dec. 20, 2013) .................................................................. 27, 31, 33
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. ("FAIR"), 547 U.S. 47 (2006) .................................................................................................. 32, 33, 34, 35
S. Ridge Baptist Church v. Indus. Comm'n of Ohio, 911 F.2d 1203 (6th Cir. 1990) ............................................................................................. 23, 26
Sch. Dist. v. Grumet, 512 U.S. 687 (1994) .................................................................................................................. 30
Sharpe Holdings, Inc. v. HHS, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) ........................................................................... 27
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) ...................................................................................................................... 9
v
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Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707 (1981) ............................................................................................................ 10, 14
U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548 (1973) .................................................................................................................. 36
United States v. Amer, 110 F.3d 873 (2d Cir. 1997) ...................................................................................................... 28
United States v. Israel, 317 F.3d 768 (7th Cir. 2003) ..................................................................................................... 24
United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) ..................................................................................................... 26
United States v. Lee, 455 U.S. 252 (1982) .................................................................................................................. 22
United States v. O'Brien, 391 U.S. 367 (1968) .................................................................................................................. 33
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) ..................................................................................................... 24
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ........................................................................................... 24, 26
United States v. Williams, 553 U.S. 285 (2008) .................................................................................................................. 36
United States v. Winddancer, 435 F. Supp. 2d 687 (M.D. Tenn. 2006) ................................................................................... 22
Univ. of Notre Dame v. Sebelius, 2013 WL 6804773 (N.D. Ind. Dec. 20, 2013).................................................................... passim
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) .................................................................................................................. 36
Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006) ............................................................................................... 10, 15
Walz v. Tax Commission of New York, 397 U.S. 664 (1970) .................................................................................................................. 32
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) ...................................................................................................... 14
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007) ...................................................................................................... 15
Federal Statutes
5 U.S.C. § 553............................................................................................................................... 37
26 U.S.C. § 45R ............................................................................................................................ 22
26 U.S.C. § 4980H(c)(2)............................................................................................................... 22
vi
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42 U.S.C. § 300............................................................................................................................. 41 42 U.S.C. § 300a-6........................................................................................................................ 41 42 U.S.C. § 300a-7(d) ................................................................................................................... 40 42 U.S.C. § 300gg-13 ............................................................................................................... 5, 38 42 U.S.C. § 18011......................................................................................................................... 22 42 U.S.C. § 18021(a)(1)................................................................................................................ 39 42 U.S.C. § 18023(b)(1)(A)(i) ...................................................................................................... 39 42 U.S.C. § 2000bb-1 et seq. .................................................................................................... 9, 10 Internal Revenue Code of 1986 § 6033(a) ..................................................................... 6, 7, 31, 36 Federal Regulations 45 C.F.R. § 147.131 ............................................................................................................... passim 45 C.F.R. § 147.140 ...................................................................................................................... 22 45 C.F.R. § 46.202(f) .................................................................................................................... 41 Federal Rules Fed. R. Civ. P. 56(a) ....................................................................................................................... 9 Fed. R. Civ. P. 12(b)(1)................................................................................................................... 9 Fed. R. Civ. P. 12(b)(6)................................................................................................................... 9
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INTRODUCTION Plaintiffs Dordt College and Cornerstone University ask this Court to permanently enjoin regulations that are intended to accommodate religious exercise while helping to ensure that women have access to health coverage, without cost-sharing, for preventive services that medical experts deem necessary for women’s health and well-being. Subject to an exemption for houses of worship and their integrated auxiliaries, and accommodations for certain other non-profit religious organizations, as discussed below, the regulations require certain group health plans and health insurance issuers to provide coverage, without cost-sharing (such as a copayment, coinsurance, or a deductible), for, among other things, all Food and Drug Administration (FDA)approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider. When the contraceptive-coverage requirement was first established, in August 2011, certain non-profit religious organizations objected on religious grounds to having to provide contraceptive coverage in the group health plans they offer to their employees. Although, in the government’s view, these organizations were mistaken to claim that an accommodation was required under the First Amendment or the Religious Freedom Restoration Act (RFRA), the defendant Departments decided to accommodate the concerns expressed by these organizations. First, they established an exemption for the group health plans of houses of worship and their integrated auxiliaries (and any associated group health insurance coverage). In addition, they established accommodations for the group health plans of eligible non-profit religious organizations, like plaintiffs (and any associated group health insurance coverage), that relieve them of responsibility to contract, arrange, pay, or refer for contraceptive coverage or services, but that also ensure that the women who participate in these plans are not denied access to contraceptive coverage without cost-sharing. To be eligible for an accommodation, the organization merely needs to certify that it meets the eligibility criteria, i.e., that it is a non-profit organization that holds itself out as religious and has a religious objection to providing coverage for some or all contraceptives. Once the organization certifies that it meets these criteria, it need
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not contract, arrange, pay, or refer for contraceptive coverage or services. If the organization has third-party insurance—like Cornerstone—the third-party insurer takes on the responsibility to provide contraceptive coverage to the organization’s employees and covered dependents. If the group health plan of the organization is self-insured—like Dordt’s—its third-party administrator (TPA) has responsibility to arrange contraceptive coverage for the organization’s employees and covered dependents. In neither case does the objecting employer bear the cost (if any) of providing contraceptive coverage; nor does it administer such coverage; nor does it contract or otherwise arrange for such coverage; nor does it refer for such coverage.
Remarkably, plaintiffs now declare that these accommodations themselves violate their rights under RFRA and the First Amendment. They contend that the mere act of certifying that they are eligible for an accommodation is a substantial burden on their religious exercise because, once they make the certification, their employees will be able to obtain contraceptive coverage through other parties. This extraordinary contention suggests that plaintiffs not only seek to avoid paying for, administering, or otherwise providing contraceptive coverage themselves, but also seek to prevent the women who work for their organizations from obtaining such coverage, even if through other parties.
At bottom, plaintiffs’ position seems to be that any asserted burden, no matter how de minimis, amounts to a substantial burden under RFRA. That is not the law. Congress amended the initial version of RFRA to add the word “substantially,” and thus made clear that “any burden” would not suffice. Although these regulations require virtually nothing of them, plaintiffs claim that the regulations run afoul of their sincerely held religious beliefs prohibiting them from providing or facilitating health coverage for certain contraceptive services, and that the challenged regulations violate RFRA, the First and Fifth Amendments, and the Administrative Procedure Act (APA). All of plaintiffs’ claims fail, and thus should be dismissed in their entirety; alternatively, the Court should enter summary judgment in favor of the government.
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With respect to plaintiffs’ RFRA claim, plaintiffs cannot establish a substantial burden on their religious exercise—as they must—because the regulations do not require plaintiffs to change their behavior in any significant way. Plaintiffs are not required to contract, arrange, pay, or refer for contraceptive coverage. To the contrary, plaintiffs are free to continue to refuse to do so, to voice their disapproval of contraception, and to encourage their employees to refrain from using contraceptive services. Plaintiffs are required only to inform their issuers/TPAs that they object to providing contraceptive coverage, which they have done or would have to do voluntarily even absent these regulations in order to ensure that that they are not responsible for contracting, arranging, paying, or referring for such coverage. Plaintiffs can hardly claim that it is a violation of RFRA to require them to do almost exactly what they would do in the ordinary course. See Priests for Life v. HHS, __ F. Supp. 2d __, 2013 WL 6672400, at *5-10 (D.D.C. Dec. 19, 2013) (addressing these regulations), injunction pending appeal granted, No. 13-5368 (D.C. Cir. Dec. 31, 2013); Univ. of Notre Dame v. Sebelius, __ F. Supp. 2d __, 2013 WL 6804773, at *7-14 (N.D. Ind. Dec. 20, 2013) (same), injunction pending appeal denied, No. 13-3853 (7th Cir. Dec. 30, 2013); Michigan Catholic Conf. v. Sebelius, No. 1:13-CV-1247, 2013 WL 6838707, at *4-8 (W.D. Mich. Dec. 27, 2013) (same), injunction pending appeal granted, No. 13-2723 (6th Cir. Dec. 31, 2013).
Furthermore, plaintiffs’ challenge rests largely on the theory that even the extremely attenuated connection between them and the independent provision by issuers/TPAs of payments for contraceptive services to which plaintiffs object on religious grounds—but for which plaintiffs pay nothing—amounts to a substantial burden on their religious exercise. This cannot be. See Catholic Diocese of Nashville v. Sebelius, No. 3:13-01303, 2013 WL 6834375, at *4-5 (M.D. Tenn. Dec. 26, 2013), injunction pending appeal granted, No. 13-6640 (6th Cir. Dec. 31, 2013) (addressing these regulations). Regardless of how plaintiffs frame their religious beliefs, courts must independently consider whether a given law imposes a substantial burden on those beliefs. See, e.g., Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677, at *6 (W.D. Mich. Dec. 24, 2012), aff’d, 730 F.3d 618 (6th Cir. 2013). The regulations impose, at most, only
3 Case 5:13-cv-04100-MWB Document 12-3 Filed 01/10/14 Page 11 of 51

the most de minimis burden on plaintiffs’ religious exercise—one too slight and attenuated to be “substantial” under RFRA, and little different from plaintiffs’ payment of salaries to their employees, which those employees can use to purchase contraceptive services if they so choose.
Moreover, even if the challenged regulations were deemed to impose a substantial burden on plaintiffs’ religious exercise, the regulations would not violate RFRA because they are narrowly tailored to serve two compelling governmental interests: improving the health of women and newborn children, and equalizing the provision of preventive care for women and men so that women can participate in the workforce, and society more generally, on an equal playing field with men.
Plaintiffs’ First Amendment claims are equally meritless. Indeed, nearly every court to consider similar First Amendment challenges to the prior version of the regulations rejected the claims, and their analysis applies here. Nor do the regulations violate the Due Process Clause. Plaintiffs also cannot succeed on their APA claims. They lack prudential standing to raise some of their arguments, and in any event, the regulations are in accordance with the APA and with federal law.
For these reasons, and those explained below, defendants’ motion to dismiss or, in the alternative, for summary judgment should be granted.
BACKGROUND Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of disease, lead productive lives, and reduce health care costs. Due largely to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1920, 109 (2011) (“IOM REP.”), AR at 317-18, 407.1 Section 1001 of the ACA—which includes the preventive services coverage provision relevant here—seeks to cure this problem by making
1 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR), which is being filed contemporaneously with this motion and brief.
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preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without costsharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).2
Because there were no existing HRSA guidelines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) requested that the Institute of Medicine (IOM) develop recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300.3 After conducting an extensive science-based review, IOM recommended that HRSA guidelines include, among other things, well-woman visits; breastfeeding support; domestic violence screening; and, as relevant here, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10-12, AR at 308-10. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105, AR at 403. IOM determined that coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies (and the negative health outcomes that disproportionately
2 This provision also applies to immunizations, cholesterol screening, blood pressure screening, mammography, cervical cancer screening, screening and counseling for sexually transmitted infections, domestic violence counseling, depression screening, obesity screening and counseling, diet counseling, hearing loss screening for newborns, autism screening for children, developmental screening for children, alcohol misuse counseling, tobacco use counseling and interventions, well-woman visits, breastfeeding support and supplies, and many other preventive services. See, e.g., U.S. Preventive Services Task Force A and B Recommendations, http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm (last visited Jan. 9, 2014). 3 IOM, which was established by the National Academy of Sciences in 1970, is funded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv, AR at 289.
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accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.4
On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exemption relating to certain religious employers authorized by regulations issued that same day (the “2011 amended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84.5 Group health plans established or maintained by these religious employers (and associated group health insurance coverage) are exempt from any requirement to cover contraceptive services consistent with HRSA’s guidelines. See id.; 45 C.F.R. § 147.131(a).
In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 amended interim final regulations while also creating a temporary enforcement safe harbor for non-grandfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215. The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,869 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar.
4 At least twenty-eight states have laws requiring health insurance policies that cover prescription drugs to also provide coverage for FDA-approved contraceptives. See Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives (June 2013), AR at 1023-26. 5 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and (4) the organization is a nonprofit organization as described in section 6033(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
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21, 2012) (Advance Notice of Proposed Rulemaking (ANPRM)), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.
The 2013 final rules represent a significant accommodation by the government of the religious objections of certain non-profit religious organizations while promoting two important policy goals. The regulations provide women who work for non-profit religious organizations with access to contraceptive coverage without cost sharing, thereby advancing the compelling government interests in safeguarding public health and ensuring that women have equal access to health care. The regulations advance these interests in a narrowly tailored fashion that does not require non-profit religious organizations with religious objections to providing contraceptive coverage to contract, pay, arrange, or refer for that coverage.
The 2013 final rules simplify and clarify the religious employer exemption by eliminating the first three criteria and clarifying the fourth criterion. See supra note 5. Under the 2013 final rules, a “religious employer” is “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended,” which refers to churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a). The changes made to the definition of religious employer in the 2013 final rules are intended to ensure “that an otherwise exempt plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer hires or serves people of different religious faiths.” 78 Fed. Reg. at 39,874, AR at 6.
The 2013 final rules also establish accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations” (and group health insurance coverage provided in connection with such plans). Id. at 39,875-80, AR at 7-12; 45 C.F.R. § 147.131(b). An “eligible organization” is an organization that satisfies the following criteria:
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(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies.
45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. Under the 2013 final rules, an eligible organization is not required “to contract, arrange,
pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. To be relieved of any such obligations, the 2013 final rules require only that an eligible organization complete a self-certification form stating that it is an eligible organization and provide a copy of that self-certification to its issuer or TPA. Id. at 39,878-79, AR at 10-11. Its participants and beneficiaries, however, will still benefit from separate payments for contraceptive services without cost sharing or other charge. Id. at 39,874, AR at 6. In the case of an organization with an insured group health plan—such as Cornerstone—the organization’s health insurance issuer, upon receipt of the self-certification, must provide separate payments to plan participants and beneficiaries for contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,875-77, AR at 7-9. In the case of an organization with a self-insured group health plan—such as Dordt—the organization’s TPA, upon receipt of the self-certification, must provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan without cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12. Any costs incurred by the TPA will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
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The 2013 final rules generally apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except that the amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
STANDARD OF REVIEW Defendants move to dismiss the Complaint in its entirety for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Under this Rule, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Defendants also move to dismiss one count, see infra at Section I.F.3, under Federal Rule of Civil Procedure 12(b)(1) in part for lack of subject matter jurisdiction. The party invoking federal jurisdiction bears the burden of establishing its existence, and the Court must determine whether it has jurisdiction before addressing the merits of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 104 (1998). To the extent that the Court must consider the administrative record in addition to the face of the Complaint, defendants move, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. A party is entitled to summary judgment where the administrative record demonstrates “that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
ARGUMENT
I. PLAINTIFFS’ CLAIMS LACK MERIT A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit 1. The regulations do not substantially burden plaintiffs’ exercise of religion Under RFRA, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C.
§ 2000bb-1 et seq.), the federal government “shall not substantially burden a person’s exercise of
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religion” unless that burden is the least restrictive means to further a compelling governmental interest. 42 U.S.C. 2000bb-1. Importantly, “only substantial burdens on the exercise of religion trigger the compelling interest requirement.” Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (emphasis added). “A substantial burden exists when government action puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)); see Vision Church v. Vill. of Long Grove, 468 F.3d 975, 997 (7th Cir. 2006) (noting same in the context of the Religious Land Use and Institutionalized Persons Act (RLUIPA)). “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unimportant to the adherent’s religious scheme.” Kaemmerling, 553 F.3d at 678; see also Braunfeld v. Brown, 366 U.S. 599, 606 (1961) (“To strike down, without the most careful scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature.”); Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 262 (3d Cir. 2008) (Scirica, C.J., concurring) (“In our modern regulatory state, virtually all legislation (including neutral laws of general applicability) imposes an incidental burden at some level by placing indirect costs on an individual’s activity. Recognizing this . . . [t]he federal government . . . ha[s] identified a substantiality threshold as the tipping point for requiring heightened justifications for governmental action.”).
For two reasons, plaintiffs cannot show that the challenged regulations substantially burden their religious exercise. First, because the regulations require virtually nothing of plaintiffs, and certainly do not require plaintiffs to modify their behavior in any meaningful way, the regulations do not impose any more than a de minimis burden on plaintiffs—let alone a substantial one. See Priests for Life, 2013 WL 6672400, at *5-10; Notre Dame, 2013 WL 6804773, at *7-14; Michigan Catholic Conf., 2013 WL 6838707, at *4-8. Second, even if this Court were to find that the regulations impose some burden on plaintiffs’ religious exercise, any
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such burden would be far too attenuated to be substantial. See Diocese of Nashville, 2013 WL

6834375, at *4-5. a.

The regulations impose no more than a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs

To put this case in its simplest terms, plaintiffs challenge regulations that require them to

do next to nothing, except what they would have to do even in the absence of the regulations.

Plaintiffs, as eligible organizations, are not required to contract, arrange, pay, or refer for

contraceptive coverage. To the contrary, they are free to continue to refuse to do so, to voice

their disapproval of contraception, and to encourage their employees to refrain from using

contraceptive services. Plaintiffs need only fulfill the self-certification requirement and provide

the completed self-certification to their issuers/TPAs. They need not provide payments for

contraceptive services to their employees. Instead, third parties—plaintiffs’ issuers/TPAs—

provide payments for contraceptive services, at no cost to plaintiffs. In short, with respect to

contraceptive coverage, plaintiffs need not do anything more than they did prior to the

promulgation of the challenged regulations—that is, to inform their issuers/TPAs that they object

to providing contraceptive coverage in order to ensure that they are not responsible for

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

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

679. The Court’s inquiry should end here. A law cannot be a substantial burden on religious

exercise when “it involves no action or forbearance on [plaintiffs’] part, nor . . . otherwise

interfere[s] with any religious act in which [plaintiffs] engage[].” Kaemmerling, 553 F.3d at 679;

see also Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752, 761 (7th Cir. 2003)

(holding, in the context of RLUIPA, that “a substantial burden on religious exercise is one that

necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise

. . . effectively impracticable”).

Because the regulations place no burden at all on plaintiffs, they plainly place no

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

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unprecedented and sweeping theory of what it means for religious exercise to be burdened. Not only do plaintiffs want to be free from contracting, arranging, paying, or referring for contraceptive services for their employees—which, under these regulations, they are—but plaintiffs would also prevent anyone else from providing such coverage to their employees, who might not subscribe to plaintiffs’ religious beliefs. That this is the de facto impact of plaintiffs’ stated objections is made clear by their assertion that RFRA is violated whenever they “trigger” a third party’s provision to plaintiffs’ employees of services to which plaintiffs object. Compl. ¶¶ 138, 140. This theory would mean, for example, that even the government would not realistically be able to provide contraceptive coverage to plaintiffs’ employees, because such coverage would be “trigger[ed],” id., by plaintiffs’ objection to providing such coverage themselves. But RFRA is a shield, not a sword, see O’Brien v. HHS, 894 F. Supp. 2d 1149, 1158-60 (E.D. Mo. 2012), and accordingly it does not prevent the government from providing alternative means of achieving important statutory objectives once it has provided a religious accommodation. Michigan Catholic Conf., 2013 WL 6838707, at *8 (“The fact that the scheme will continue to operate without them may offend Plaintiffs’ religious beliefs, but it does not substantially burden the exercise of those beliefs.”); Notre Dame, 2013 WL 6804773, at *8 (“Boiled to its essence, what Notre Dame essentially claims is that the government's action after Notre Dame opts out, in requiring the TPA to cover contraception, offends Notre Dame’s religious sensibilities. And while I accept that the government’s and TPA’s actions do offend Notre Dame’s religious views, it’s not Notre Dame’s prerogative to dictate what healthcare services third parties may provide.”); cf. Bowen v. Roy, 476 U.S. 693, 699 (1986) (“The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.”).
Plaintiffs’ RFRA challenge is similar to the claim that the D.C. Circuit rejected in Kaemmerling. There, a federal prisoner objected to the FBI’s collection of his DNA profile. 553 F.3d at 678. In concluding that this collection did not substantially burden the prisoner’s religious exercise, the court reasoned that “[t]he extraction and storage of DNA information are
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entirely activities of the FBI, in which Kaemmerling plays no role and which occur after the BOP has taken his fluid or tissue sample (to which he does not object).” Id. at 679. In the court’s view, “[a]lthough the government’s activities with his fluid or tissue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be said to hamper his religious exercise because they do not pressure [him] to modify his behavior and to violate his beliefs.” Id. (internal citation and quotation marks omitted). The same is true here, where the provision of contraceptive services is “entirely [an] activit[y] of [a third party], in which [plaintiffs] play[] no role.” Id. As in Kaemmerling, “[a]lthough the [third party]’s activities . . . may offend [plaintiffs’] religious beliefs, they cannot be said to hamper [their] religious exercise.” Id.
Perhaps understanding the tenuous ground on which their RFRA claim rests, given that the regulations do not require them to contract, arrange, pay, or refer for contraceptive services, plaintiffs attempt to circumvent this problem by framing the allegation in their complaint as part of a novel theory that the regulations require them to somehow “facilitate” access to contraception coverage, and that it is this facilitation that violates plaintiffs’ religious beliefs. See, e.g., Compl. ¶ 163. But under the challenged regulations plaintiffs need only to self-certify that they object to providing coverage for contraceptive services and that they otherwise meet the criteria for an eligible organization, and to share that self-certification with their issuers/TPAs. In other words, plaintiffs are required to inform their issuers/TPAs that they object to providing contraceptive coverage, which they have done or would have to do voluntarily anyway even absent these regulations in order to ensure that they are not responsible for contracting, arranging, paying, or referring for contraceptive coverage. The sole difference is that they must inform their issuers/TPAs that their objection is for religious reasons—a statement which they have already made repeatedly in this litigation and elsewhere. This does not amount to a substantial burden under RFRA. Michigan Catholic Conf., 2013 WL 6838707, at *7 (“[T]he contraceptive mandate requires Catholic Charities to do what it has always done—sponsor a plan for its employees, contract with a TPA, and notify the TPA that it objects to providing contraceptive coverage. Thus, Plaintiffs are not require[d] to ‘modify [their] behavior.’ . . .
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Although the TPA’s action may be deeply offensive to the religious beliefs of Plaintiffs, RFRA does not allow a plaintiff to restrain the behavior of a third party that conflicts with the plaintiff’s religious beliefs.”) (citation omitted); Notre Dame, 2013 WL 6804773, at *12 (“Notre Dame isn’t being required to do anything new or different—its action is the same, although, granted, the result is different due to the actions of the TPA and the government. As I’ve said, Notre Dame may find the act of opting out less spiritually fulfilling now, but that doesn’t make it a new action.”); Priests for Life, 2013 WL 6672400, at *8 (“This is where Plaintiffs’ RFRA challenge must fail—like the challenges in Kaemmerling and Bowen, the accommodations to the contraceptive mandate simply do not require Plaintiffs to modify their religious behavior.”).
Furthermore, any burden imposed by the purely administrative self-certification requirement—which should take plaintiffs a matter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA. The substantial burden hurdle is a high one. Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App’x 729, 734 (6th Cir. 2007); see also Kaemmerling, 553 F.3d at 678 (“An inconsequential or de minimis burden on religious practice does not rise to this level [of a substantial burden].”); Washington v. Klem, 497 F.3d 272, 279-81 (3d Cir. 2007); McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir. 2004); Civil Liberties for Urban Believers, 342 F.3d at 761. Indeed, if this is not a de minimis burden, it is hard to see what would be.
The mere fact that a plaintiff may claim that the self-certification requirement imposes a substantial burden on its religious exercise does not make it so. See Priests for Life, 2013 WL 6672400, at *8 n.5 (“[T]he Court is not persuaded . . . that a plaintiff can meet his burden of establishing that the accommodation creates a ‘substantial burden’ upon his exercise of religion simply because he claims it to be so.”); Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013) (same), aff’d, 724 F.3d 377 (3d Cir. 2013). Under RFRA, plaintiffs are entitled to their sincere religious beliefs, but they are not entitled to decide what does and does not impose a substantial burden on such beliefs. Although “[c]ourts are not arbiters of scriptural interpretation,” Thomas, 450 U.S. at 716, “RFRA still requires the court to
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determine whether the burden a law imposes on a plaintiff’s stated religious belief is ‘substantial.’” Conestoga, 917 F. Supp. 2d at 413. This inquiry asks whether the challenged regulations actually require plaintiffs to modify their behavior in a significant—or more than de minimis—way. See Living Water Church of God, 258 Fed. App’x at 734-36 (reviewing cases); see also, e.g., Vision Church, 468 F.3d at 997; Garner v. Kennedy, 713 F.3d 237, 241-42 (5th Cir. 2013); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348-49 (2d Cir. 2007); Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328, 1353-54 (N.D. Ga. 2012).
If courts played virtually no role in determining whether an alleged burden is “substantial”—if, as long as a plaintiff’s religious belief is sincere, the inquiry would be complete—plaintiffs would be allowed to evade RFRA’s threshold by simply asserting that the burden on their religious exercise is “substantial,” thereby paradoxically reading the term “substantial” out of RFRA. Autocam, 2012 WL 6845677, at *6 (“The Court does not doubt the sincerity of Plaintiff Kennedy’s decision to draw the line he does, but the Court still has a duty to assess whether the claimed burden—no matter how sincerely felt—really amounts to a substantial burden on a person’s exercise of religion.”); Diocese of Nashville, 2013 WL 6834375, at *5 n.7 (“Although the Court accepts the Plaintiffs’ determination that self-certification is at odds with their sincerely-held religious beliefs, the determination of whether those beliefs are ‘substantially burdened’ by self-certification is an objective one that RFRA requires the courts to make.”); Michigan Catholic Conf., 2013 WL 6838707, at *5-6 (same). “If every plaintiff were permitted to unilaterally determine that a law burdened their religious beliefs, and courts were required to assume that such burden was substantial, simply because the plaintiff claimed that it was the case, then the standard expressed by Congress under the RFRA would convert to an ‘any burden’ standard.” Conestoga, 917 F. Supp. 2d at 413-14; see also Autocam, 2012 WL 6845677, at *7; Mersino Mgmt. Co. v. Sebelius, No. 13-cv-11296, 2013 WL 3546702, at *16 (E.D. Mich.
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July 11, 2013).6 The result would be to subject every act of Congress to strict scrutiny every time any plaintiff could articulate a sincerely held religious objection to compliance with that law. The “most demanding test known to constitutional law,” City of Boerne v. Flores, 521 U.S. 507, 534 (1997), would thus be transformed into a norm against which Congress must always legislate.
For the reasons stated above, the regulations do not impose a substantial burden on plaintiffs’ religious exercise, and thus plaintiffs’ motion for a preliminary injunction should be denied, and plaintiffs’ RFRA claims (Count I of the Complaint) should be dismissed or summary judgment granted to defendants.
b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA
Although the regulations do not require plaintiffs to contract, arrange, pay, or refer for contraceptive coverage, plaintiffs’ complaint appears to be that the regulations require plaintiffs to indirectly facilitate conduct on the part of their employees that they find objectionable (i.e., the use of certain contraceptives). But this complaint has no limits. An employer provides numerous benefits, including a salary and other fringe benefits, to its employees and by doing so in some sense facilitates whatever use its employees make of those benefits. Plaintiffs not only seek to be free from the requirement to contract, arrange, pay, or refer for contraceptive coverage themselves—which they are under these regulations—but also seek to prevent anyone else from providing such coverage to their employees. But an employer has no right to control the choices of its employees, who may not share its religious beliefs, when making use of their benefits. Those employees have a legitimate interest in access to the preventive services coverage made available under the challenged regulations.
6 RFRA’s legislative history makes clear that Congress did not intend such a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, substantial or otherwise. Congress amended the bill to add the word “substantially,” “to make it clear that the compelling interest standards set forth in the act” apply “only to Government actions [that] place a substantial burden on the exercise of” religious liberty. 139 Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy); see also id. (text of Amendment No. 1082).
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Indeed, courts have held that claims raised by for-profit companies challenging the contraceptive coverage regulations, which require them to provide the relevant coverage themselves, are too attenuated to amount to a substantial burden under RFRA. Any burden on plaintiffs, which are eligible for the accommodations, is a fortiori too attenuated to be substantial. For example, the district court in Conestoga reasoned that the ultimate decision of whether to use contraception “rests not with [the employer], but with [the] employees” and that “any burden imposed by the regulations is too attenuated to be considered substantial.” 917 F. Supp. 2d at 414-15. The Conestoga district court further explained that the indirect nature of any burden imposed by the regulations distinguished them from the statutes challenged in Yoder, Sherbert, Thomas, and Gonzales. See id. at 415. Other courts, too, have relied on similar reasoning to reject similar plaintiffs’ RFRA claims. See, e.g., Autocam, 2012 WL 6845677, at *6 (“The incremental difference between providing the benefit directly, rather than indirectly, is unlikely to qualify as a substantial burden on the Autocam Plaintiffs.”); O’Brien, 894 F. Supp. 2d at 1158-60 (“[RFRA] is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.”).7
As these courts concluded, the preventive services coverage regulations result in only an indirect impact on for-profit companies, which must provide contraceptive coverage themselves. Any burden on plaintiffs and similar eligible organizations that qualify for the accommodations is even more attenuated. Not only are plaintiffs here separated from the use of contraception by “a series of events” that must occur before the use of contraceptive services to which plaintiffs object would “come into play,” Conestoga, 917 F. Supp. 2d at 414-15, but they are also further insulated by the fact that a third party—plaintiffs’ issuers/TPAs—and not plaintiffs, will actually contract, arrange, pay, and refer for such services, and thus plaintiffs are in no way subsidizing—
7 See also Eden Foods v. Sebelius, Civil Action No. 13-11229, 2013 WL 1190001, at *4 (E.D. Mich. Mar. 22, 2013); Annex Medical, Inc. v. Sebelius, Civil No. 12-2804(DSD/SER), 2013 WL 101927, at *4-5 (D. Minn. Jan. 8, 2013), appeal pending, No. 13-1118 (8th Cir.).
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even indirectly—the use of preventive services that they find objectionable. See Diocese of Nashville, 2013 WL 6834375, at *5 (“Such a ‘burden’ is too attenuated and speculative to be substantial. The services to which the Plaintiffs object will only be provided in the event one of their employees independently requests the services, and in the event such a request is made, the regulation prohibits any costs of those services, directly or indirectly, to be imposed on the Plaintiffs. In other words, Plaintiffs bear no costs for the services and nothing is provided unless a third party employee independently requests the services from yet another third party—the insurer. It is only the independent actions of third parties that result in anyone obtaining contraceptive services.”); id. at *5 n.8 (“In that regard, the consequences of self-certification are not unlike an employee’s purchase of contraceptive services on his or her own, without any governmental involvement, by using a portion of the salary paid by Plaintiffs.”); Michigan Catholic Conf., 2013 WL 6838707, at *7 (“It is difficult to see how a substantial burden exists when the relationship to the objectionable act is so attenuated.”).
Under plaintiffs’ theory, their religious exercise is substantially burdened when one of their employees and her health care provider make an independent determination that the use of certain contraceptive services is appropriate, and when such services are paid for exclusively by plaintiffs’ issuers/TPAs—with none of the cost being passed on to plaintiffs—and no administration of the payments by plaintiffs, solely because plaintiffs self-certified that they have religious objections to providing contraceptive coverage and so informed their issuers/TPAs. But a burden simply cannot be “substantial” under RFRA when it is attenuated. Cases that find a substantial burden uniformly involve a direct burden on the plaintiff rather than a burden imposed on another entity. See, e.g., Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009); see also Conestoga, 917 F. Supp. 2d at 413-14. A plaintiff cannot establish a substantial burden on his religious exercise by invoking this type of trickle-down theory; to constitute a substantial burden within the meaning of RFRA, the burden must be imposed on the plaintiff himself. See Conestoga, 917 F. Supp. 2d at 411, 413; Autocam, 2012 WL 6845677, at *7. Here, of course, there is no such direct burden. In fact, given that any payment for contraceptive
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services is made by plaintiffs’ issuers/TPAs, the regulations have even less impact on plaintiffs’ religious exercise than plaintiffs’ payment of salaries to their employees, which those employees can use to purchase contraceptives. See O’Brien, 894 F. Supp. 2d at 1160; see also Conestoga, 917 F. Supp. 2d at 414 (“The fact that Conestoga’s employees are free to look outside of their insurance coverage and pay for and use any contraception . . . through the salary they receive from Conestoga, amply illustrates this point.”); Autocam, 2012 WL 6845677, at *6.
Plaintiffs remain free to refuse to contract, arrange, pay, or refer for contraceptive coverage; to voice their disapproval of contraception; and to encourage their employees to refrain from using contraceptive services. The preventive services coverage regulations therefore affect plaintiffs’ religious practice, if at all, in a highly attenuated way. In short, because the preventive services coverage regulations “are several degrees removed from imposing a substantial burden on [plaintiffs],” O’Brien, 894 F. Supp. 2d at 1160, the Court should dismiss plaintiffs’ RFRA claim, or grant summary judgment to defendants, even if it finds—contrary to the government’s argument—that the challenged regulations impose some burden on plaintiffs’ religious exercise.
2. Even if there were a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests a. The regulations significantly advance compelling governmental interests in public health and gender equality
Even if plaintiffs were able to demonstrate a substantial burden on their religious exercise, they would not prevail because the challenged regulations are justified by two compelling governmental interests, and are the least restrictive means to achieve those interests. First, the promotion of public health is unquestionably a compelling governmental interest. Mead v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also, e.g., Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th Cir. 1998); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995). And the challenged regulations further this compelling interest by “expanding access
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to and utilization of recommended preventive services for women.” 78 Fed. Reg. at 39,887, AR at 19.
The primary predicted benefit of the preventive services coverage regulations is that “individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increase access to and utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significant barrier to access to contraception.” (citation omitted)), AR at 5.
Increased access to the full range of FDA-approved contraceptive services is a key part of these predicted health outcomes, as unintended pregnancies have proven in many cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4. As IOM concluded in identifying services recommended to “prevent conditions harmful to women’s health and well-being,” unintended pregnancy may delay “entry into prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02. Contraceptive coverage further helps to avoid “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small-forgestational age births.”) (citing studies), AR at 4. And “[c]ontraceptives also have medical benefits for women who are contraindicated for pregnancy, and there are demonstrative preventive health benefits from contraceptives relating to conditions other than pregnancy (for example, prevention of certain cancers, menstrual disorders, and acne.” 78 Fed. Reg. at 39,872, AR at 4; see also IOM Rep. at 103-04 (“[P]regnancy may be contraindicated for women with
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serious medical conditions such as pulmonary hypertension . . . and cyanotic heart disease, and for women with the Marfan Syndrome.”), AR at 401-02.
Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations: assuring that women have equal access to health care services. 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. As the Supreme Court explained in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), there is a fundamental “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.” Id. at 626. Thus, “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interests.” Id. By including in the ACA gender-specific preventive health services for women, Congress made clear that the goals and benefits of effective preventive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into account in the ACA. As explained by members of Congress, “women have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) (statement of Sen. Feinstein); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 19, AR at 317. These costs result in women often forgoing preventive care and place women in the workforce at a disadvantage compared to their male coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) (statement of Sen. Murray); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 20, AR at 318. Congress’s attempt to equalize the provision of preventive health care services, with the resulting benefit of women being able to contribute to the same degree as men as healthy and productive members of society, furthers a compelling governmental interest. Cf. Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92-93 (Cal. 2004).
The fact that religious employers are exempt from the challenged regulations, 45 C.F.R. § 147.131(a), does not undermine the government’s compelling interests because this is not a case where allegedly underinclusive enforcement of a law suggests that the government’s
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“supposedly vital interest” is not really compelling.8 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47 (1993). This exemption reflects the government’s attempts to balance the compelling interests underlying the challenged regulations against other significant interests supporting the complex administrative scheme created by the ACA. See United States v. Lee, 455 U.S. 252, 259 (1982) (“The Court has long recognized that balance must be struck between the values of the comprehensive social security system, which rests on a complex of actuarial factors, and the consequences of allowing religiously based exemptions.”); United States v. Winddancer, 435 F. Supp. 2d 687, 695-98 (M.D. Tenn. 2006) (recognizing that the regulations governing access to eagle parts “strike a delicate balance” between competing

8

In their Complaint, plaintiffs also point to the grandfathering of certain health plans with respect to certain

provisions of the ACA, Compl. ¶¶ 181-83, but grandfathering is not specifically limited to the preventive services

coverage regulations, see 42 U.S.C. § 18011; 45 C.F.R. § 147.140. In fact, the effect of grandfathering is not really a

permanent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several

provisions of the ACA, including the preventive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at

19. The grandfathering provision reflects Congress’s attempts to balance competing interests—specifically, the

interest in spreading the benefits of the ACA, including those provided by the preventive services coverage

provision, and the interest in maintaining existing coverage and easing the transition into the new regulatory regime

established by the ACA—in the context of a complex statutory scheme. See 75 Fed. Reg. 34,538, 34,546 (June 17,

2010). This incremental transition does nothing to call into question the compelling interests furthered by the

preventive services coverage regulations. Even under the grandfathering provision, more group health plans will

transition to the requirements under the regulations as time goes on. See id. at 34,552; see also Kaiser Family

Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190

(indicating that 58 percent of firms had at least one grandfathered health plan in 2012, down from 72 percent in

2011, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in

2011), AR at 663-64, 846. Thus, any purported adverse effect on the compelling interests underlying the regulations

will be quickly mitigated, which is in stark contrast to the permanent exemption plaintiffs seek.

Moreover, plaintiffs observe that small employers are exempt from the employer responsibility provision

(which means that, starting in 2015, such employers are not subject to the possibility of assessable payments if they

do not provide health coverage to their full-time employees and their dependents). Compl. ¶ 179 (citing 26 U.S.C.

§ 4980H(c)(2)), but this is not an exemption to the challenged regulations. Small businesses that do offer non-

grandfathered health coverage to their employees are required to provide coverage for recommended preventive

services, including contraceptive services, without cost-sharing. 78 Fed. Reg. at 39,887 n.49, AR at 19. And there is

reason to believe that small employers will continue to offer health coverage to their employees, because the ACA,

among other things, provides tax incentives for small businesses to encourage the purchase of health insurance. See

26 U.S.C. § 45R. But even if a small business were to choose not to offer health coverage, employees of such

business could get health insurance coverage that is facilitated by other ACA provisions—primarily those

establishing both small group market and individual market health insurance exchanges and those establishing tax

credits to make the purchase of coverage through such exchanges more affordable—and the coverage they receive

through such exchanges will include coverage of all recommended preventive services, including contraception. 78

Fed. Reg. at 39,887 n.49, AR at 19.

Similarly, the one-year postponement of reporting requirements and tax liability related to the large

employer responsibility provision, see Compl. ¶ 184, is not an exemption to or postponement of the challenged

regulations. Employers that do offer non-grandfathered health coverage are required to comply with the challenged

regulations. Moreover, this postponement is temporary, in contrast to the permanent exemption that plaintiffs seek.

22

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interests). And the existing exception does not undermine the government’s interests in a significant way. See Lukumi, 508 U.S. at 547; S. Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1208-09 (6th Cir. 1990) (rejecting the plaintiff’s argument that the existence of exemptions indicates that a law is not the least restrictive means of achieving a compelling interest where the exemptions do not undermine that interest); see also 78 Fed. Reg. at 39,887, AR at 19.
Indeed, there is a rational distinction between this narrow exception and the expansion plaintiffs seek. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are, as a group, more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, 39,877, AR at 6, 19. In any event, it would be perverse to hold that the government’s provision of a limited religious exemption eliminates its compelling interest in the regulation, thus effectively extending the same exemption to anyone else who wants it under RFRA. Such a reading of RFRA would discourage the government from accommodating religion, the exact opposite of what Congress intended to accomplish in enacting RFRA.
Granting plaintiffs the much broader, permanent exemption they request would undermine defendants’ ability to enforce the regulations in a rational manner. See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 435 (2006). We are a “cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U.S. at 606; see also S. Ridge Baptist Church, 911 F.2d at 1211, and many people object to various medical services. If any organization with a religious objection were able to claim an exemption from the operation of the preventive services coverage regulations—even where the regulations require virtually nothing of the organization—it is difficult to see how defendants could administer the regulations in a manner that would achieve Congress’s goals of improving the health of women and newborn children and equalizing the coverage of preventive
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services for women. See United States v. Israel, 317 F.3d 768, 772 (7th Cir. 2003) (recognizing that plaintiff’s RFRA logic “would lead to significant administrative problems for the [government] and open the door to a . . . proliferation of claims”). Indeed, women who receive their health coverage through employers like plaintiffs would face negative health and other outcomes because they had obtained employment with an organization that objects to its employees’ use of contraceptive services, even when those services are paid for, administered, and otherwise provided by a third party. See id. (noting consequences “for the public and the government”); 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,887, AR at 19.
b. The regulations are the least restrictive means of advancing the government’s compelling interests
When determining whether a particular regulatory scheme is the “least restrictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme—or whether the scheme can otherwise be modified—without undermining the government’s compelling interests. See, e.g., United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987) (describing the least restrictive means test as “the extent to which accommodation of defendant would impede the state’s objectives”); United States v. Wilgus, 638 F.3d 1274, 1289-95 (10th Cir. 2011). The government is not required “to do the impossible—refute each and every conceivable alternative regulation scheme.” Wilgus, 638 F.3d at 1289. Instead, the government need only “refute the alternative schemes offered by the challenger.” Id.
Instead of explaining how plaintiffs and similarly situated eligible organizations could be exempted from the regulations without significant damage to the government’s compelling interests, plaintiffs offer only two alternatives: direct government payments for contraceptive services, or an exemption for all organizations with religious objections to contraceptive coverage. Compl. ¶¶ 177-78. Of course, because an exemption would deprive plaintiffs’ employees, and employees of similarly situated eligible organizations, of the very benefit afforded to them by the regulations, it is plainly not equally effective—it is not at all effective—
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in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Kaemmerling, 553 F.3d at 684 (finding that means was least restrictive where no alternative means would achieve compelling interests); Murphy v. State of Ark., 852 F.2d 1039, 1042-43 (8th Cir. 1988) (same).
Direct government payments for contraceptive services are similarly not an equally effective alternative means. Congress determined that the best way to achieve the goals of the ACA, including expanding preventive services coverage, was to build on the existing employerbased system, see H.R. Rep. No. 111-443, pt. II, at 984-86 (2010), and the anticipated benefits of the regulations are attributable not only to the fact that recommended contraceptive services will be available to women with no cost-sharing, but also to the fact that these services will be available through the existing employer-based system of health coverage through which women will face minimal logistical and administrative obstacles to receiving coverage of their care. Plaintiffs’ alternative, by contrast, has none of these advantages. It would require establishing entirely new government programs and infrastructures or fundamentally altering an existing one, and would almost certainly require women to take burdensome steps to find out about the availability of and sign up for a new benefit, thereby ensuring that fewer women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20. Nor do plaintiffs offer any suggestion as to how this program could be integrated with the employer-based system or how women would obtain government-provided preventive services in practice. Thus, plaintiffs’ proposal—in addition to raising myriad administrative and logistical difficulties and being unauthorized by any statute and not funded by any appropriation—is less likely to achieve the compelling interests furthered by the regulations, and therefore does not represent reasonable less restrictive means. Id.
Moreover, plaintiffs fail to recognize that such an alternative would be incompatible with the fundamental statutory scheme set forth in the ACA, which plaintiffs do not challenge in this lawsuit. As discussed above, Congress did not adopt a single (government) payer system financed through taxes, but instead opted to build on the existing system of employment-based
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coverage. Plaintiffs do not point to any statutory authority for their proffered less restrictive alternative. Nor is there any indication that Congress would have contemplated that agency action could be invalidated under RFRA because the agency, in discharging its statutorily delegated authority, failed to adopt an alternative scheme for which it lacked statutory authority. Thus, even if defendants wanted to adopt plaintiffs’ non-employer-based alternative, they would be constrained by the statute from doing so. See 78 Fed. Reg. at 39,888, AR at 20.
Finally, just because plaintiffs can devise an entirely new legislative and administrative scheme does not make that scheme a feasible less restrictive means, see Wilgus, 638 F.3d at 1289; Adams v. Comm’r of Internal Revenue, 170 F.3d 173, 180 n.8 (3d Cir. 1999) (“A judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legislation down.’” (quotations omitted)), particularly where such alternative would come at enormous administrative and financial cost to the government. A proposed alternative scheme is not an adequate alternative—and thus not a viable less restrictive means to achieve a compelling interest—if it is not feasible. See, e.g., New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940, 947 (1st Cir. 1989) (Breyer, J.); Graham v. Comm’r, 822 F.2d 844, 852 (9th Cir. 1987), overruled in part on other grounds by Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1033 (9th Cir. 2007) (en banc). In determining whether a proposed alternative scheme is feasible, courts often consider the additional administrative and fiscal costs of the scheme. See, e.g., S. Ridge Baptist Church, 911 F.2d at 1206; Fegans v. Norris, 537 F.3d 897, 905-06 (8th Cir. 2008); United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011); New Life Baptist, 885 F.2d at 947. Defendants considered plaintiffs’ alternative and determined that it was not feasible because the agencies lacked statutory authority to implement it, it would impose considerable new costs and other burdens on the government, and it would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Lafley, 656 F.3d at 942; Gooden v. Crain, 353 F. App’x 885, 888 (5th Cir. 2009); Adams, 170 F.3d at 180 n.8.
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Because plaintiffs have failed to put forth viable less restrictive alternatives that would
achieve the government’s compelling interests, the Court should reject plaintiffs’ argument that
the regulations fail strict scrutiny.
B. The Regulations Do Not Violate the Free Exercise Clause
The Supreme Court has made clear that a law that is neutral and generally applicable
does not run afoul of the Free Exercise Clause even if it prescribes conduct that an individual’s
religion proscribes or has the incidental effect of burdening a particular religious practice. Empt.
Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990); see also Lukumi, 508 U.S.
at 531-32. “Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law
is neutral if it does not target religiously motivated conduct either on its face or as applied. Id. at
533. A neutral law has as its purpose something other than the disapproval of a particular
religion, or of religion in general. Id. at 545. A law is generally applicable so long as it does not
selectively impose burdens only on conduct motivated by religious belief. Id.
Unlike such selective laws, the preventive services coverage regulations are neutral and
generally applicable. Indeed, every court to have considered a free exercise challenge to these
regulations has rejected it, concluding that the regulations are neutral and generally applicable.
See Priests for Life, 2013 WL 6672400, at *10-12, Notre Dame, 2013 WL 6804773, at *14-18;
Roman Catholic Archbishop of Washington v. Sebelius, __ F. Supp. 2d __, 2013 WL 6729515, at
*27-31 (D.D.C. Dec. 20, 2013); Diocese of Nashville, 2013 WL 6834375, at *5-7; Michigan Catholic Conf., 2013 WL 6838707, at *8-9.9 “The regulations were passed, not with the object of
9 Likewise, nearly every court to have considered a free exercise challenge to the prior version of the regulations rejected it. See MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., Civil Action No. 13–11379, 2013 WL 1340719, at *5 (E.D. Mich. Apr. 3, 2013); Eden Foods, 2013 WL 1190001, at *4-5; Conestoga, 917 F. Supp. 2d at 409-10; Grote Indus. v. Sebelius, 914 F. Supp. 2d 943, 952-53 (S.D. Ind. 2012), rev’d on other grounds sub nom. Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013); Autocam, 2012 WL 6845677, at *5; Korte v. HHS, 912 F. Supp. 2d 735, 744-47 (S.D. Ill. 2012), rev’d on other grounds sub nom. Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013); Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1289-90 (W.D. Okla. 2012), rev’d on other grounds, 723 F.3d 1114 (10th Cir. 2013) (en banc), cert. granted, 134 S. Ct. 678 (2013); O’Brien, 894 F. Supp. 2d at 116062; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, 85 P.3d at 81-87. But see Sharpe Holdings, Inc. v. HHS, No. 2:12-CV-92-DDN, 2012 WL 6738489, at *5 (E.D. Mo. Dec. 31, 2012); Geneva Coll. v. Sebelius, No. 2:12–cv– 00207, 2013 WL 838238, at *24-26 (W.D. Penn. Mar. 6, 2013).
27
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interfering with religious practices, but instead to improve women’s access to health care and lessen the disparity between men’s and women’s healthcare costs.” O’Brien, 894 F. Supp. 2d at 1161; see Notre Dame, 2013 WL 6804773, at *16 (“The laws and regulations in question, as well as the legislative history, further show that the ACA and related regulations were enacted for reasons neutral to religion.”). The regulations reflect expert medical recommendations about the medical necessity of contraceptive services, without regard to any religious motivations for or against such services. See, e.g., Conestoga, 917 F. Supp. 2d at 410 (“It is clear from the history of the regulations and the report published by the Institute of Medicine that the purpose of the [regulations] is not to target religion, but instead to promote public health and gender equality.”); Notre Dame, 2013 WL 6804773, at *17 (same, and finding it “abundantly clear” that the regulations are neutral).
The regulations, moreover, do not pursue their purpose “only against conduct motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (concluding law that “punishe[d] conduct within its reach without regard to whether the conduct was religiously motivated” was generally applicable). The regulations apply to all non-grandfathered health plans that do not qualify for the religious employer exemption or the accommodations for eligible organizations. Thus, “it is just not true . . . that the burdens of the [regulations] fall on religious organizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536); see O’Brien, 894 F. Supp. 2d at 1162; Autocam, 2012 WL 6845677, at *5; Grote, 914 F. Supp. 2d at 953.
The existence of express categorical exceptions or accommodations for objectively defined categories of entities, like grandfathered plans, religious employers, and eligible organizations, “does not mean that [the regulations do] not apply generally.” Priests for Life, 2013 WL 6672400, at *11; see Notre Dame, 2013 WL 6804773 (same); Autocam, 2012 WL 6845677, at *5 (same). “General applicability does not mean absolute universality.” Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008); accord Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004); Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957, 960-61
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(9th Cir. 1991) (concluding employer verification statute was generally applicable even though it exempted independent contractors, household employees, and employees hired prior to November 1986 because exemptions “exclude[d] entire, objectively-defined categories of employees”); Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42, 44 (2d Cir. 1990) (same). “Instead, exemptions undermining ‘general applicability’ are those tending to suggest disfavor of religion.” O’Brien, 894 F. Supp. 2d at 1162. The exception for grandfathered plans is available on equal terms to all employers, whether religious or secular. And the religious employer exemption and eligible organization accommodations serve to accommodate religion, not to disfavor it. Id.; see also Conestoga, 917 F. Supp. 2d at 410 (“The fact that exemptions were made for religious employers . . . . shows that the government made efforts to accommodate religious beliefs, which counsels in favor of the regulations’ neutrality.”); Grote, 914 F. Supp. 2d at 953 (“[C]arving out an exemption for defined religious entities . . . tends to support an argument in favor of neutrality.”). Indeed, the religious employer exemption “presents a strong argument in favor of neutrality” by “demonstrating that the object of the law was not to infringe upon or restrict practices because of their religious motivation.” O’Brien, 894 F. Supp. 2d at 1161 (quotations omitted). The regulations are not rendered unlawful “merely because the [religious employer exemption] does not extend as far as Plaintiffs wish.” Grote, 914 F. Supp. 2d at 953. Thus, these categorical exceptions and accommodations do not trigger strict scrutiny.
Finally, Plaintiffs’ unsupported assertions that the regulations were “designed” to “target the Schools and others like them,” and that defendants promulgated the regulations “in order to suppress the religious exercise of the Schools and others,” Compl. ¶ 218-19, are mere rhetorical bluster. See Notre Dame, 2013 WL 6804773, at *16; Michigan Catholic Conf., 2013 WL 6838707, at *9. There is no indication that the regulations are anything other than an effort to increase women’s access to and utilization of recommended preventive services. See O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410; Grote, 914 F. Supp. 2d at 952-53. And it cannot be disputed that defendants have made extensive efforts—through the religious employer exemption and the eligible organization accommodations—to accommodate religion in
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ways that will not undermine the goal of ensuring that women have access to coverage for recommended preventive services without cost sharing.10
For these reasons Count II fails. C. The Regulations Do Not Violate the Establishment Clause “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982) (emphasis added). A law that discriminates among religions by “aid[ing] one religion” or “prefer[ring] one religion over another” is subject to strict scrutiny. Id. at 246; see also Olsen v. DEA, 878 F.2d 1458, 1461 (D.C. Cir. 1989) (observing that “[a] statutory exemption authorized for one church alone, and for which no other church may qualify,” creates a “denominational preference”). Thus, for example, the Supreme Court has struck down on Establishment Clause grounds a state statute that was “drafted with the explicit intention” of requiring “particular religious denominations” to comply with registration and reporting requirements while excluding other religious denominations. Larson, 456 U.S. at 254; see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 703-07 (1994) (striking down statute that created special school district for religious enclave of Satmar Hasidim because it “single[d] out a particular religious sect for special treatment”). The Court, on the other hand, has upheld a statute that provided an exemption from military service for persons who had a conscientious objection to all wars, but not those who objected to only a particular war. Gillette v. United States, 401 U.S. 437 (1971). The Court explained that the statute did not discriminate among religions because “no particular sectarian affiliation” was required to qualify for conscientious objector status. Id. at 450-51. “[C]onscientious objector status was available on an equal basis to both the Quaker and the Roman Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (upholding RLUIPA against Establishment Clause challenge because it did not
10 Even if the regulations were not neutral or generally applicable, plaintiffs’ free exercise challenge still would fail because the regulations satisfy strict scrutiny. See supra.
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“confer[] . . . privileged status on any particular religious sect” or “single[] out [any] bona fide faith for disadvantageous treatment”).
Like the statutes at issue in Gillette and Cutter, the preventive services coverage regulations do not grant any denominational preference or otherwise discriminate among religions. It is of no moment that the religious employer exemption and accommodations for eligible organizations apply to some employers but not others. “[T]he Establishment Clause does not prohibit the government from [differentiating between organizations based on their structure and purpose] when granting religious accommodations as long as the distinction[s] drawn by the regulations . . . [are] not based on religious affiliation.” Grote, 914 F. Supp. 2d at 954; accord O’Brien, 894 F. Supp. 2d at 1163; see also, e.g., Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1090-93 (8th Cir. 2000); Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995) (concluding that religious exemption from self-employment Social Security taxes did not violate the Establishment Clause even though “some individuals receive exemptions, and other individuals with identical beliefs do not”); Catholic Charities of the Diocese of Albany, 859 N.E.2d at 468-69 (“This kind of distinction—not between denominations, but between religious organizations based on the nature of their activities—is not what Larson condemns.”). Here, the distinctions established by the regulations are not so drawn.
The regulations’ definitions of religious employer and eligible organization “do[] not refer to any particular denomination.” Grote, 914 F. Supp. 2d at 954. The exemption and accommodations are available on an equal basis to organizations affiliated with any and all religions. The regulations, therefore, do not discriminate among religions in violation of the Establishment Clause. Indeed, every court to have considered an Establishment Clause challenge to both these regulations and to the prior version of the regulations—which also included a requirement that the organization be an organization as described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended—has rejected it. See Notre Dame, 2013 WL 6804773, at *18-20; Priests for Life, 2013 WL 6672400, at *14; Archbishop of Washington, 2013 WL 6729515, at *39-43; Diocese of Nashville, 2013 WL 6834375, at *8-10; Michigan
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Catholic Conf., 2013 WL 6838707, at *11; see also, e.g., O’Brien, 894 F. Supp. 2d at 1162 (upholding prior version of religious employer exemption because it did “not differentiate between religions, but applie[d] equally to all denominations”); Conestoga, 917 F. Supp. 2d at 416-17 (same); Grote, 914 F. Supp. 2d at 954 (same); see also Liberty Univ., Inc. v. Lew, 733 F.3d 72, 100-102 (4th Cir. 2013) (upholding another religious exemption contained in the ACA against an Establishment Clause challenge because the exemption “makes no explicit and deliberate distinctions between sects” (quotation omitted)).
“As the Supreme Court has frequently articulated, there is space between the religion clauses, in which there is ‘room for play in the joints;’ government may encourage the free exercise of religion by granting religious accommodations, even if not required by the Free Exercise Clause, without running afoul of the Establishment Clause.” O’Brien, 894 F. Supp. 2d at 1163 (citations omitted). Accommodations of religion are possible because the type of legislative line-drawing to which the plaintiffs object in this case is constitutionally permissible. Id.; Conestoga, 917 F. Supp. 2d at 417; see, e.g., Walz v. Tax Commission of New York, 397 U.S. 664, 672-73 (1970) (upholding property tax exemption “to religious organizations for religious properties used solely for religious worship”); Corp. of the Presiding Bishop v. Amos, 483 U.S. 327, 334 (1987) (upholding Title VII’s exemption for religious organizations).11 For all of these reasons, Count III fails.12
D. The Regulations Do Not Violate the Right to Free Speech or Expressive Association Plaintiffs’ free speech claims fare no better. The right to freedom of speech “prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). But the preventive services coverage regulations do not “compel speech”—by plaintiffs or any other person, employer, or entity—in violation of
11 Even if the regulations discriminate among religions (and they do not), they are valid under the Establishment Clause, because they satisfy strict scrutiny. See supra; Larson, 456 U.S. at 251-52. 12 Plaintiffs also that the regulations interfere with plaintiffs’ “internal decisions.” Compl. ¶¶ 227-33. But that is merely a restatement of plaintiffs’ substantial burden theory, which fails for reasons explained already.
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the First Amendment. Nor do they limit what plaintiffs may say. Plaintiffs remain free under the regulations to express whatever views they may have on the use of contraceptive services (or any other health care services) as well as their views about the regulations. Plaintiffs, moreover, may encourage their employees not to use contraceptive services.
Indeed, every court to review a Free Speech challenge like plaintiffs’ as to both the challenged regulations and the prior contraceptive-coverage regulations has rejected it, in part, because the regulations deal with conduct. See Priests for Life, 2013 WL 6672400, at *12-14 (“The regulations regarding contraceptive coverage, including the accommodation, place no limits on what Plaintiffs may say; they remain free to oppose contraceptive coverage for all people and in all forms. Rather, the accommodation regulates conduct . . . And like the law schools in FAIR, the only speech the accommodations require of Priests for Life is incidental to the regulation of conduct.”); Notre Dame, 2013 WL 6804773, at *20-21; Archbishop of Washington, 2013 WL 6729515, at *31-36; Diocese of Nashville, 2013 WL 6834375, at *7-8; Michigan Catholic Conf., 2013 WL 6838707, at *9-10; see also, e.g., MK Chambers, 2013 WL 1340719, at *6; Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013) (“The plaintiffs cite no authority and I am not aware of any authority holding that such conduct qualifies as speech so as to trigger First Amendment protection.”); Conestoga, 917 F. Supp. 2d at 418; Grote, 914 F. Supp. at 955; Autocam, 2012 WL 6845677, *8; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento, 85 P.3d at 89; Catholic Charities of Diocese of Albany, 859 N.E.2d at 465. The accommodations likewise regulate conduct by relieving an eligible organization of the obligation “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6.
The regulations also do not require plaintiffs to subsidize any conduct that is “inherently expressive.” FAIR, 547 U.S. at 66; see also United States v. O’Brien, 391 U.S. 367, 376 (1968) (recognizing that some forms of “symbolic speech” are protected by the First Amendment). As an initial matter, the regulations explicitly prohibit plaintiffs’ issuers/TPAs from imposing any cost sharing, premium, fee, or other charge on plaintiffs or their plans with respect to the separate
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payments for contraceptive services made by the issuers/TPAs. See 78 Fed. Reg. at 39,880, AR at 12. Plaintiffs, therefore, are not funding or subsidizing anything pertaining to contraceptive coverage. Moreover, even if plaintiffs played some role in an issuer’s or TPA’s provision of payments for contraceptive services (and they do not), making payments for health care services is not the sort of conduct the Supreme Court has recognized as inherently expressive. See Conestoga, 917 F. Supp. 2d at 418; Grote, 2012 WL 6725905, at *10; Autocam, 2012 WL 6845677, at *8 (“Including contraceptive coverage in a health care plan is not inherently expressive conduct.”); O’Brien, 894 F. Supp. 2d at 1166-67 (“Giving or receiving health care is not a statement in the same sense as wearing a black armband or burning an American flag.” (internal citations omitted)); Catholic Charities of Sacramento, 85 P.3d at 89 (“a law regulating health care benefits is not speech”); Diocese of Albany, 859 N.E.2d at 465; see also FAIR, 547 U.S. at 65-66 (making space for military recruiters on campus is not conduct that indicates colleges’ support for, or sponsorship of, recruiters’ message).
Furthermore, plaintiffs are wrong when they contend that the regulations require plaintiffs to “facilitate access” to “counseling related to abortion.” Compl. ¶ 239. The regulations simply require coverage of “education and counseling for women with reproductive capacity.” HRSA Guidelines, AR at 130-31. The conversations that may take place between a patient and her doctor cannot be known or screened in advance and may cover any number of options. To the extent that plaintiffs intend to argue that the covered education and counseling is objectionable because some of the conversations between a doctor and one of plaintiffs’ employees might be supportive of something to which they object, accepting this theory would mean that the First Amendment is violated by the mere possibility of an employer’s disagreement with a potential subject of discussion between an employee and her doctor, and would extend to all such interactions, not just those that are the subject of the challenged regulations. The First Amendment does not require such a drastic result. See, e.g., Conestoga, 2013 WL 140110, at *17.
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Finally, the regulations do not violate the right to expressive association. To be sure, “[t]he right to speak is often exercised most effectively by combining one’s voice with the voices of others.” FAIR, 547 U.S. at 68. “If the government were free to restrict individuals’ ability to join together and speak, it could essentially silence views that the First Amendment is intended to protect.” Id. But the preventive services coverage regulations do not interfere with plaintiff’s right of expressive association. The regulations do not interfere in any way with the composition of plaintiffs’ workforces, faculties, or student bodies. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 (2000) (holding Boy Scouts’ freedom of expressive association was violated by law requiring organization to accept gay man as a scoutmaster); Roberts, 468 U.S. at 623 (concluding statute that forced group to accept women against its desires was subject to strict scrutiny). The regulations do not force plaintiffs to hire employees they do not wish to hire or to admit students they do not desire to be a part of their schools. Moreover, plaintiffs, as well as their employees and students, are free to associate to voice their disapproval of the use of contraception and the regulations. Even the statute at issue in FAIR, which required law schools to allow military recruiters on campus if other recruiters were allowed on campus, did not violate the law schools’ right to expression association. 547 U.S. at 68-70. The preventive services coverage regulations do not even implicate plaintiffs’ right. See Priests for Life, 2013 WL 6672400, at *13 (calling plaintiffs’ expressive association claim “devoid of merit”); MK Chambers, 2013 WL 1340719, at *6 (rejecting expressive association challenge to prior version of regulations); Diocese of Albany, 859 N.E. 2d at 465 (upholding similar state law because it “does [not] compel [plaintiffs] to associate, or prohibit them from associating, with anyone”).
Accordingly, plaintiffs’ free speech and expressive association claims—Counts IV and VI—fail.
E. The Regulations Do Not Violate the Due Process Clause Plaintiffs’ claim that the preventive services coverage regulations violate the Fifth Amendment’s Due Process Clause is misdirected and baseless. A law is not unconstitutionally vague unless it “fails to provide a person of ordinary intelligence fair notice of what is
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prohibited” or “is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). Courts relax these standards where, as here, the law in question imposes civil rather than criminal penalties and does not “interfere[] with the right of free speech or of association.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982). In any event, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010).
Plaintiffs do not even attempt to identify a source of vagueness or confusion in the regulations. See Compl. ¶¶ 246-47. And plaintiffs evidently have no difficulty determining what the regulations require of them; at the very least, then, the regulations are not vague as applied to plaintiffs. See U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 579 (1973) (“Surely, there seemed to be little question in the minds of the plaintiffs who brought this lawsuit as to the meaning of the law, or as to whether or not the conduct in which they desire to engage was or was not prohibited by the Act.”); Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.”). As in Humanitarian Law Project, “the dispositive point” is that the regulations’ terms “are clear in their application to plaintiffs’ proposed conduct, which means that plaintiffs’ vagueness challenge must fail.” 130 S. Ct. at 2720.
Finally, plaintiffs misunderstand the regulations when they assert that the regulations provide defendants with “unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations that possess religious beliefs.” Compl. ¶ 249. That is incorrect. Under the regulations at issue here, an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended, qualifies for the exemption. 45 C.F.R. § 147.131(a). And an organization that satisfies the four criteria to be an “eligible organization” is eligible for the accommodations. Id. § 137.131(b). There is therefore simply no discretion that is left to defendants to decide who is
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exempt or who is accommodated; the regulations set out the criteria for both determinations.13 Similarly, there is no merit to plaintiffs’ allegation that the regulations—which contain specific criteria—will lead to discriminatory enforcement. For these reasons, Count V fails.
F. Plaintiffs’ APA Claims Fail 1. The regulations were promulgated in accordance with the APA
Plaintiffs assert that defendants failed to comply with the APA’s notice and comment procedures and the ACA’s timing provisions. These allegations are baseless. The APA’s rulemaking provisions generally require that agencies provide notice of a proposed rule, invite and consider public comments, and adopt a final rule that includes a statement of basis and purpose. See 5 U.S.C. § 553(b), (c). Defendants complied with these requirements.14
As to the challenged regulations, defendants issued the ANPRM on March 21, 2012, and solicited comments on it. 77 Fed. Reg. 16,501. Defendants then considered those comments and issued the NPRM on February 6, 2013, requesting comments on the proposals contained in it. 78 Fed. Reg. at 8457, AR at 166. Defendants received over 400,000 comments, and the preamble to the 2013 final rules contains a detailed discussion both of the comments defendants received and of defendants’ responses to those comments. See 78 Fed. Reg. at 39,871-39,888, AR at 3-20. The mere fact that the regulations as ultimately issued may not satisfy the preferences of each and every commenter is certainly not evidence that those comments were not considered. Given the range of interests and views among commenters, it is unlikely—if not impossible—that any regulation will be fully in line with the comments made by every commenter.
Plaintiffs also contend the regulations violate the ACA because plaintiffs believe they did not exist in final form for one year prior to going into effect. This argument is based on a
13 The regulations permitted HRSA to create a religious employer exemption, and identified the criteria for such an exemption, and HRSA did so in its August 1, 2011 action. See HRSA Guidelines. Any employer that meets the criteria of a “religious employer” is exempt from the contraceptive-coverage requirement. See id.; see, e.g., Grote, 2012 WL 6725905, at *8. 14 To the extent plaintiffs attempt to raise any alleged insufficiencies or improprieties as to the prior, interim final rules, they are simply irrelevant. The regulations plaintiffs challenge here are an entirely different set of regulations. The relevant question is whether defendants complied with the APA as to these regulations, and as shown below, there is no question that they did.
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misunderstanding of both the ACA and the regulations. The provision of the ACA to which plaintiff refers, 42 U.S.C. § 300gg-13(b), requires only that there be a minimum interval of not less than one year between the date on which a recommendation or guideline is issued—here, the HRSA Guidelines—and the plan year for which the coverage of the services included in that recommendation or guideline must take effect. See 75 Fed. Reg. at 41,729, AR at 229. That requirement is clearly satisfied here: HRSA published its guidelines on August 1, 2011, see HRSA Guidelines, supra, and these regulations apply for plan years beginning on or after January 1, 2014, see 78 Fed. Reg. at 39,870, AR at 2. Nothing in the ACA prevents defendants from amending the regulations as they have done here, and because the required interval relates only to the issuance of new recommendations or guidelines, nothing in the ACA requires defendants to provide an interval of one year between the promulgation of these amendments and the date on which the required coverage must take effect.
2. The regulations are neither arbitrary nor capricious Plaintiffs’ claim that the regulations are arbitrary and capricious is belied by the policymaking path discussed above, which illustrates that the regulations are neither arbitrary nor capricious. See Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (agency action must be upheld so long as “the agency’s path may reasonably be discerned”); DKT Mem’l Fund, Ltd. v. Agency for Int’l Dev., 887 F.2d 275, 281 (D.C. Cir. 1989) (“The APA has never been construed to grant to this or any other court the power to review the wisdom of policy decisions of the President.”). The preamble to the rules also sets out that path in detail, see 78 Fed. Reg. at 39,871-88, AR at 3-20, and there can be no serious question that it can be reasonably discerned. Similarly, plaintiffs’ brazen claim that defendants failed to consider the constitutional and statutory implications of the regulations is flatly contradicted by the record, which explicitly discusses that very issue. See 78 Fed. Reg. at 39,886-88, AR at 18-20. Instead of pointing to anywhere in the record where defendants did not “articulate a satisfactory explanation for [their] action,” State Farm, 463 U.S. at 43, plaintiffs resort to complaining about the content of the regulations themselves. Just as the fact that plaintiffs are
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disappointed that the regulations are not in keeping with all of their comments does not mean that defendants failed to consider plaintiffs’ comments, plaintiffs’ contrary policy preferences do not render the regulations arbitrary or capricious. The regulations are consistent with the proposals contained in the ANPRM and the NPRM, and, as the record reflects, represent the logical outgrowth of those proposals and the hundreds of thousands of comments received.
3. The regulations do not violate restrictions relating to abortion Plaintiffs contend the regulations violate the APA because they conflict with three federal statutes dealing with abortion: section 1303(b)(1) of the ACA, the Weldon Amendment, and the Church Amendment. Plaintiffs appear to reason that, because the preventive services coverage regulations require group health plans to cover emergency contraception, such as Plan B, they in effect require plaintiffs to provide coverage for abortions in violation of federal law. Some of these arguments should be rejected at the outset because plaintiffs lack prudential standing to assert them. The doctrine of prudential standing requires that a plaintiffs’ claim fall within “the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). But the necessary link between plaintiffs and two of these statutes is missing here. See Dialysis Ctrs., Ltd. v. Schweiker, 657 F.2d 135, 138 (7th Cir. 1981); O’Brien, 894 F. Supp. 2d at 1167-68 (holding that plaintiff lacked prudential standing to raise similar claims). Section 1303(b)(1) of the ACA provides that “nothing in this title . . . shall be construed to require a qualified health plan to provide coverage of [abortion services],” 42 U.S.C. § 18023(b)(1)(A)(i), but plaintiffs are neither health insurance issuers nor purchasers of a qualified health plan.15 They therefore do not fall within the zone of interests to be protected by the statute in question. Similarly, the Church Amendment protects individuals from being
15 A “qualified health plan,” within the meaning of this provision, is a health plan that has been certified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance issuer. 42 U.S.C. § 18021(a)(1). Health insurance exchanges are to be set up by states no later than January 1, 2014. Id. § 18031. Plaintiffs’ health insurance plans were not purchased on a health insurance exchange, and so none is a “qualified health plan.”
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required to “perform or assist in the performance of any part of a health service program or research activity funded . . . by the Secretary of Health and Human Services if his performance or assistance . . . would be contrary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(d). By merely providing a health plan to its employees, plaintiffs are not required to, and in fact do not, “perform or assist in the performance” of a “health service program or research activity funded . . . under a program administered by the Secretary of Health and Human Services” within the meaning of the Church Amendment. See Gray v. Romero, 697 F. Supp. 580, 590 n.6 (D.R.I. 1988). Nor are plaintiffs “individual[s]” under that provision. They are therefore not within the Church Amendment’s zone of interests either.
Even if the Court were to reach the merits of these claims, and on the merits of plaintiffs’ Weldon Amendment claim, plaintiffs’ premise that the contraceptive coverage regulations require abortion coverage is fundamentally incorrect. The regulations do not require that any health plan cover abortion as a preventive service, or that it cover abortion at all, as that term is defined in federal law. Rather, the regulations require only that non-grandfathered, non-exempt and non-accommodated group health plans cover all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider. See HRSA Guidelines, supra. And the government has made clear that the preventive services covered by the regulations do not include abortifacient drugs.16 Although plaintiffs believe that Plan B, ella, and certain IUDs are abortifacient drugs or cause abortions, neither the government nor this Court is required to accept that characterization, which is inconsistent with the FDA’s scientific assessment and with federal law. While plaintiffs’ religious beliefs may define abortion more broadly than federal law to include emergency contraception and certain IUDs, statutory interpretation requires that terms be construed as a matter of law and not in accordance with any particular individual’s views or beliefs. See Michigan Catholic Conf., 2013
16 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited Jan. 9, 2014); see also IOM REP. at 22 (recognizing that abortion services are outside the scope of permissible recommendations), AR at 320.
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WL 6838707, at *13 (“Plaintiffs believe that FDA-approved emergency contraceptives are ‘abortion-inducing products’—as is their right. However, federal law does not define them as such. Accordingly, the regulations are not contrary to law, and Plaintiffs’ APA claim fails.”) (citation omitted); Gov’t Empls. Ins. Co. v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).
In recommending what contraceptive services should be covered by health plans without cost-sharing, the IOM Report identified the contraceptives that have been approved by the FDA as safe and effective. See IOM REP. at 10, AR at 308. And the list of FDA-approved contraceptives includes emergency contraceptives such as Plan B. See id. at 105, AR at 403. The basis for the inclusion of such drugs among safe and effective means of contraception dates back to 1997, when the FDA first explained why Plan B and similar drugs act as contraceptives rather than abortifacients. See Prescription Drug Products; Certain Combined Oral Contraceptives for Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997) (noting that “emergency contraceptive pills are not effective if the woman is pregnant” and that there is “no evidence that [emergency contraception] will have an adverse effect on an established pregnancy”); 45 C.F.R. § 46.202(f) (“Pregnancy encompasses the period of time from implantation until delivery.”). In light of this conclusion by the FDA, HHS informed Title X grantees, which are required to offer a range of acceptable and effective family planning methods—and may not offer abortion except under limited circumstances (e.g., rape, incest, or when the life of the woman would be in danger)—that they “should consider the availability of emergency contraception the same as any other method which has been established as safe and effective.” Office of Population Affairs, Memorandum (Apr. 23, 1997), http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Jan. 9, 2014); see also 42 U.S.C. §§ 300, 300a-6.
Because they reflect a settled understanding of FDA-approved contraceptives that is in accordance with existing federal laws prohibiting federal funding for certain abortions, the regulations are consistent with over a decade of regulatory policy and practice and thus cannot be
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deemed contrary to any law dealing with abortion.17 See Bhd. of R.R. Signalmen v. Surface
Transp. Bd., 638 F.3d 807, 815 (D.C. Cir. 2011) (giving particular deference to an agency’s
longstanding interpretation) (citing Barnhart v. Walton, 535 U.S. 212, 220 (2002)).
Plaintiffs’ APA claims—collected at Count VII— thus fail.
CONCLUSION
For the foregoing reasons, defendants respectfully ask that the Court grant defendants’
motion to dismiss or, in the alternative, for summary judgment on all of plaintiffs’ claims.
Respectfully submitted this 10th day of January, 2014,
STUART F. DELERY Assistant Attorney General
SEAN R. BERRY United States Attorney
JENNIFER RICKETTS Director
SHEILA M. LIEBER Deputy Director
_/s/ Michael C. Pollack______________ MICHAEL C. POLLACK (NY Bar) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 7222 Washington, DC 20530 Tel: (202) 305-8550 Fax: (202) 616-8470 Email: michael.c.pollack@usdoj.gov
Attorneys for Defendants
17 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of contraceptive services has never been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as the morning-after pill. . . . [U]nder the current FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”). His statement leaves little doubt that the Weldon Amendment was not intended to apply to emergency contraceptives. See Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564 (1976) (indicating that a statement of one of the legislation’s sponsors deserves to be accorded substantial weight in interpreting a statute).
42
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CERTIFICATE OF SERVICE I hereby certify that on January 10, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
_/s/ Michael C. Pollack__________ MICHAEL C. POLLACK
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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

DORDT COLLEGE and CORNERSTONE UNIVERSITY,

Plaintiffs,

vs.

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; JACK 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,

No. 5:13-cv-04100-MWB

Defendants.

BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES UNION OF IOWA IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS TABLE OF CONTENTS.................................................................................................. i TABLE OF AUTHORITIES ............................................................................................ ii INTRODUCTION ............................................................................................................ 1 FACTUAL BACKGROUND ............................................................................................ 2 ARGUMENT .................................................................................................................... 5 CONCLUSION................................................................................................................. 13 CERTIFICATE OF SERVICE ......................................................................................... 14
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TABLE OF AUTHORITIES Cases Bob Jones University v. United States, 461 U.S. 574 (1983)........................................ 7 Brown v. Dade Christian Schools, Inc., 556 F.2d 310 (5th Cir. 1977) ...................... 7-8 Cutter v. Wilkinson, 544 U.S. 709 (2005) ...................................................................... 6 Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) .......................... 8 EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986)............................ 8 Estate of Thornton v. Caldor, 472 U.S. 703 (1985) ....................................................... 7 Hoyt v. Florida, 368 U.S. 57 (1961)............................................................................. 12 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) ............................. 5 Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003) ................. 12 Newman v. Piggie Park Enterprises, 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) ....................................... 7 O’Brien v. U.S. Department of Health & Human Services, 894 F. Supp. 2d 1149 (E.D. Mo. 2012), stay granted, No. 12-3357 (8th Cir. Nov. 28, 2012)....................... 8 Sherbert v. Verner, 374 U.S. 398 (1963)........................................................................ 6 Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) ........................................................ 7 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)............... 6-7 Statutes Patient Protection and Affordable Care Act, Pub. L. No. 111-148, sec. 1001, §2713(a), 124 Stat. 131 (2010) (codified at 42 U.S.C. § 300gg-13) ........................... 2 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (2013)........................... 5, 6 Other Authorities 139 Cong. Rec. E1234-01 (daily ed. May 11, 1993) ...................................................... 6
ii
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155 Cong. Rec. S11,979 (daily ed. Nov. 30, 2009)......................................................... 2
155 CONG. REC. S12,021-02 (daily ed. Dec. 1, 2009).................................................. 2-3
Health Resources & Services Administration, U.S. Department of Health & Human Services, Women’s Preventive Services: Required Health Plan Coverage Guidelines................................................................................................... 3
INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (July 2011) ........................................................................................... 3, 11
Jeffery Peipert, Continuation and Satisfaction of Reversible Contraception, 117 OBSTETRICS & GYNECOLOGY 1105 (May 2011) .................................................... 9, 11
Jeffrey Peipert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception, 120 OBSTETRICS & GYNECOLOGY 1291 (Dec. 2012) .................... 9, 11
Jennifer J. Frost, Stanley K. Henshaw, & Adam Sonfield, Contraceptive Needs and Services: National and State Data, 2008 Update, GUTTMACHER INSTITUTE 3 (May 2010)............................................................................................................. 10
Kimberly Daniels, William D. Mosher & Jo Jones, Contraceptive Methods Women Have Ever Used: United States, 1982 – 2010, 62 NATIONAL HEALTH STATISTICS REVIEW 1 (2013) ......................................................................................................... 9
Martha J. Bailey, Brad Hershbein & Amalia R. Miller, The Opt-in Revolution? Contraception and the Gender Gap in Wages (National Bureau of Economic Research, Working Paper No. 17922, 2012) ........................................................... 10
Office of Population Research, Princeton University, What is Emergency Contraception?, EMERGENCY CONTRACEPTION WEBSITE ........................................... 9
Susan A. Cohen, The Broad Benefits of Investing in Sexual and Reproductive Health, 1 GUTTMACHER REVIEW ON PUBLIC POLICY 5 (2004) .................................. 10
Su-Ying Liang, Daniel Grossman & Kathryn A. Phillips, Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006, 83 Contraception 491 (June 2010) ................................................ 11
Regulations
26 C.F.R. § 54.9815-2713A (2013) ................................................................................. 4
29 C.F.R. § 2590.715-2713A (2013) ............................................................................... 4
iii
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45 C.F.R. § 147.130(b)(1) (2013) .................................................................................... 3 45 C.F.R. § 147.131 (2013)............................................................................................. 4
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INTRODUCTION The ACLU and the ACLU of Iowa (collectively, “ACLU”) submit this brief to support the government’s argument that the final contraception rule promulgated by the U.S. Department of Health and Human Services (“HHS”) under the Patient Protection and Affordable Care Act (“ACA”) does not violate the Religious Freedom Restoration Act (“RFRA”). Amici do not repeat the arguments made by the parties in this litigation. Rather, Amici submit this brief to demonstrate that courts have long recognized that the right to religious liberty, while fundamental, does not give organizations or individuals carte blanche to interfere with the rights of others, to violate compelling government policies, or to impose their religious beliefs on others. This Court should reject Plaintiffs’ attempt to do the same here. The contraception rule is a significant advancement in women’s equality. Access to contraceptive care has enabled women to control their reproductive lives and futures, including permitting them to attain higher levels of education and to achieve greater economic equality. But, as Congress recognized, not all women have been able to access contraception due to cost barriers, and the contraception rule ensures that millions of women—including those who work for Plaintiffs—have affordable access to this important healthcare. Allowing Plaintiffs to restrict their employees’ contraceptive services would permit Plaintiffs to use their religious beliefs to disadvantage and discriminate against their female employees. Plaintiffs’ claim should therefore be rejected.
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FACTUAL BACKGROUND The ACA requires that health insurance plans cover certain preventive services without cost-sharing. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat. 131, 131−32 (2010) (codified at 42 U.S.C. § 300gg-13). Consistent with the historical practice of many health insurers, however, many preventive services that are unique to women were not included in the original preventive services coverage requirement. See 155 CONG. REC. S11,979, S11,987 (daily ed. Nov. 30, 2009) (statement of Sen. Barbara Mikulski) (noting that the ACA did not cover key preventive services for women). To address this inequality, Congress added the Women’s Health Amendment (“WHA”) to the ACA, which requires health insurance plans to cover additional preventive services that women need. § 2713(a)(4), 124 Stat. at 131. In passing the WHA, Senator Mikulski noted, “[o]ften 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 affordable by dealing with copayments and deductibles . . . .” 155 CONG. REC. at S11,988 (daily ed. Nov. 30, 2009) (statement of Sen. Barbara Mikulski). In particular, Congress intended to address gender disparities in out-of-pocket health care costs, which stem in large part 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
2
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services takes into account the unique health care needs of women throughout their lifespan. 155 CONG. REC. S12,021-02, S12,027 (daily ed. Dec. 1, 2009) (statement of Sen. Kirsten Gillibrand). Thus the WHA sought to equalize health insurance coverage for men and women. In implementing the WHA, HHS looked to the Institute of Medicine (“IOM”), an independent, nonprofit organization, to provide recommendations as to services that should be covered. Among other things, IOM recommended that the covered preventive services include “the full range of Food and Drug Administrationapproved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” INST. OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 109-10 (July 2011) [hereinafter CLOSING THE GAPS]. On August 1, 2011, HHS adopted these recommendations, including the recommendation on contraceptive services. See 45 C.F.R. § 147.130(b)(1) (2013); Health Res. & Servs. Admin., U.S. Dep’t of Health & Human Servs., Women’s Preventive Services: Required Health Plan Coverage Guidelines, available at http://www.hrsa.gov/womensguidelines/ (last visited Jan. 14, 2014). On June 28, 2013, HHS announced the final rule implementing the requirement that health insurance plans cover contraceptives. Under the final rule religious nonprofit organizations that object to covering contraceptives are exempt if the following requirements are satisfied:
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(1) The organization opposes providing coverage for some or all of the contraceptive services required to be covered . . . on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies . . . that it satisfies the criteria [in paragraphs (1)-(3)]. 26 C.F.R. § 54.9815-2713A(a) (2013); 29 C.F.R. § 2590.715-2713A (2013); 45 C.F.R. § 147.131 (2013). The self-certification form identified in the fourth requirement simply requires an individual authorized by the organization to certify that the organization meets the requirements and to provide his or her contact information. Nonprofit organizations must provide their issuer—which, in this case, includes large health insurance companies such as Wellmark Blue Cross Blue Shield of Iowa—with a copy of the self-certification form. Once an issuer receives the self-certification form, it will provide, or arrange for, payments for contraceptive services. 26 C.F.R. § 54.9815-2713A(c)(2); 29 C.F.R. § 2590.715-2713A(c)(2). The issuer will also notify the organization’s employees that it—not the organization— will be providing payments for contraceptive services. 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d). The final rule also explicitly prohibits an issuer or third party administrator from “imposing a premium, fee, or other charge, or any portion thereof, directly or indirectly on” the organizations or their employees for the separate contraception payments. 26 C.F.R. § 54.9815-2713A(c)(2); 29 C.F.R. § 2590.715-2713A(c)(2).
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ARGUMENT RFRA prohibits the federal government from “substantially burden[ing] a person’s exercise of religion” unless the government demonstrates that application of the burden is justified by a compelling interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1 (2013). While the right to religious freedom is one of our most cherished freedoms, it is not absolute and does not give claimants license to impose their religion on others, to harm others, or to deny others their rights and interests under the law. Here, Plaintiffs’ RFRA claim has far-reaching consequences. Plaintiffs’ call for an exemption would affect all of Plaintiffs’ employees and their dependents and permit them to impose their beliefs on others. Fortunately, courts have consistently reassured this country that one person’s religious freedom cannot become another person’s hardship. As the Supreme Court explained more than a century ago: [T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. . . . Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905) (emphasis added). This fundamental promise that our rights and freedoms are guaranteed to all, and cannot be infringed or violated by others, is one of the founding principles of this country. Abiding by this principle, when debating RFRA, Congress considered
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religious exemptions that would impose few, if any, burdens on third parties. See, e.g., 139 CONG. REC. E1234-01 (daily ed. May 11, 1993) (statement of Rep. Benjamin L. Cardin) (citing as examples of government actions that infringe upon the free exercise of religion: the refusal to bury veterans in “veterans’ cemeteries on Saturday and Sunday even if their religious beliefs require it”; the performance of autopsies “on individuals whose religious beliefs prohibit autopsies”; and the requirement that the Amish “display fluorescent orange emblems on their horsedrawn carriages”). Congress did not contemplate that RFRA would be used to deny other people their rights or benefits.
Even in cases where the Supreme Court has exempted claimants from complying with laws that substantially burden their religious exercise, the Court has been careful to note that such exemptions would not harm others. In Sherbert v. Verner—a case that Congress cited in RFRA, 42 U.S.C.A. § 2000bb(b)(1)—the Supreme Court granted a religious exemption from a state requirement for obtaining unemployment benefits but noted that “the recognition of the appellant’s right to unemployment benefits under the state statute [does not] serve to abridge any other person’s religious liberties.” 374 U.S. 398, 409 (1963); cf. Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (“Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”); W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 630 (1943) (in excusing students from reciting the Pledge of Allegiance for religious reasons,
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noting that “the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so”).1
The stakes are particularly high when, as here, the religious exercise claim conflicts directly with laws aimed at promoting equality and a religious exemption would foster discrimination. In times of social change, institutions have sought exemptions from civil rights laws based on religious beliefs and courts have consistently rejected such attempts to injure others. For example, in the 1960s, some restaurants refused to serve African-Americans claiming religious opposition to “any integration of the races whatever.” Newman v. Piggie Park Enters., 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). And after the adoption of civil rights measures, some Christian schools argued their religion would be burdened if they were forced to prohibit race segregation, claiming that “[c]ultural or biological mixing of the races is regarded as a violation of God’s command.” Bob Jones Univ. v. United States, 461 U.S. 574, 583 n.6 (1983); see also Brown v. Dade Christian Sch., Inc., 556 F.2d 310, 311 (5th Cir. 1977) (Christian school that refused to admit African-American students claimed a
1 Moreover, the Supreme Court has invalidated laws that granted religious exemptions under the Establishment Clause, in part because the exemptions would favor religion at the expense of third party interests. For example, in striking down a sales tax exemption for religious periodicals, the Court explained that the government cannot provide a religious exemption that “either burdens nonbeneficiaries markedly or cannot be seen as removing a significant state-imposed deterrent to the free exercise of religion.” Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 15 (1989). The Court similarly invalidated a statute requiring employers to accommodate Sabbatarians in all instances, because “the statute takes no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath.” Estate of Thornton v. Caldor, 472 U.S. 703, 709 (1985).
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“sincerely held . . . religious belief that socialization of the races would lead to racial intermarriage, and that this belief, sanctioned by the Free Exercise Clause, should prevail against private interests created by Congress.”).
As the law advanced to prohibit unequal treatment based on gender, some Christian schools also resisted requirements that they provide equal benefits to men and women. See, e.g., Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392 (4th Cir. 1990) (school officials paid married male teachers more than married female teachers because they believed the “Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.”); EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1364 (9th Cir. 1986) (school offered unequal health benefits to female employees based on a similar “head of household” religious tenet).
In each of these cases, entities and individuals invoked religious freedom to try to avoid compliance with laws designed to advance equality. Each time their claims were rejected. As these cases recognized, in our cosmopolitan nation, religious freedom does not give institutions or individuals license to deny others their rights, to ignore important laws, or to impose their religious beliefs on their employees. See O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1159 (E.D. Mo. 2012) (“RFRA does not protect against the slight burden on religious exercise that arises when one's money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.”), stay granted pending appeal, No. 12-3357 (8th Cir. Nov. 28, 2012).
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Just as courts have held that religious exercise cannot be used to deny others
equal treatment or to interfere with their rights and interests, this Court should
also hold that Plaintiffs cannot use their religious beliefs to interfere with the rights
of women to have affordable access to contraceptive services provided by third party
insurance companies. Health insurance coverage of contraceptive care with no cost-
sharing is an important step toward promoting women’s equality. Contraceptive
care is fundamental women’s health care, and 99% of women will use it at some
point in their lifetime. Kimberly Daniels, William D. Mosher & Jo Jones,
Contraceptive Methods Women Have Ever Used: United States, 1982–2010, 62 NAT’L
HEALTH STATS. R. 1, 4 (2013).2 The ability to control whether and when to have
children has enabled women to achieve greater academic, professional, and
economic success. With the advent of contraceptives, women have been able to plan
their reproductive lives and futures, which has been instrumental towards
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 their employees’ health insurance plans. See Doc. #1 ¶¶ 38, 67. As explained, infra, 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 OBST. & GYN’Y 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 pregnancies. Jeffrey Peipert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception, 120 OBST. & GYN’Y 1291 (Dec. 2012). Plaintiffs also object to including coverage for EC in their 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 Off. of Population Research, Princeton Univ., What is Emergency Contraception?, EMERGENCY CONTRACEPTION WEBSITE, available at http://ec.princeton.edu/ (last visited Jan. 14, 2014). Removing IUDs and ECs from health plans hampers women’s ability to make decisions about their reproductive lives, including the ability to select a highly effective contraception method to avoid unintended pregnancies.
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achieving gender equality. “[W]omen who can successfully delay a first birth and plan the subsequent timing and spacing of their children are more likely than others to enter or stay in school and to have more opportunities for employment and for full social or political participation in their community.” Susan A. Cohen, The Broad Benefits of Investing in Sexual and Reproductive Health, 1 GUTTMACHER R. ON PUB. POL’Y 5, 6 (2004). With greater professional advancement women have experienced a concomitant increase in economic equality and independence. Indeed, economists have estimated that contraceptives account for “roughly one-third of the total wage gains for women in their forties born from the mid-1940s to early 1950s . . . . [and] two thirds of these Pill-induced gains . . . can be attributed to increasing labor-market experience and another third is due to greater educational attainment and occupational upgrading.” Martha J. Bailey, Brad Hershbein & Amalia R. Miller, The Opt-in Revolution? Contraception and the Gender Gap in Wages, at 26−27 (Nat’l Bureau of Econ. Research, Working Paper No. 17922, 2012), available at http://www.nber.org/papers/w17922 (last visited Jan. 14, 2014).
And yet the benefits of contraception cannot be fully realized so long as it remains unaffordable for millions of women. See Jennifer J. Frost, Stanley K. Henshaw & Adam Sonfield, Contraceptive Needs and Services: National and State Data, 2008 Update, GUTTMACHER INST. 3 (May 2010), available at http://www.guttmacher.org/pubs/win/contraceptive-needs-2008.pdf (last visited Jan. 14, 2014). Prior to the ACA and its implementing regulations, contraceptive care and other important preventive services that are unique to women were either
10
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excluded from health insurance coverage or had prohibitively high out-of-pocket costs, in the form of deductibles or co-pays. As the IOM noted, “[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, supra, at 109; see also Su-Ying Liang, Daniel Grossman & Kathryn A. Phillips, Women’s Outof-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006, 83 CONTRACEPTION 528, 531 (June 2010) (finding that contraceptive co-pays can be so expensive that women can pay almost as much out-of-pocket as they would without coverage at all). These cost barriers are aggravated by the fact that women “typically earn less than men and . . . disproportionately have low incomes.” CLOSING THE GAPS, supra, at 19.
The costs associated with this healthcare also affect contraceptive choice, driving women to less expensive and less effective methods of contraception. See Jeffrey Peipert, 117 OBST. & GYN’Y at 1105-06 (reporting that many women do not choose long-lasting contraceptive methods, such as intrauterine devices (“IUDs”), because of the high upfront cost); Jeffrey Peipert et al., 120 OBST. & GYN’Y 1293-95 (showing that when women are provided contraceptives of their choice at no cost, more women choose highly effective, long-lasting contraceptive methods, such as IUDs, which are significantly more effective than alternative, less expensive methods). The contraception rule removes this cost barrier and ensures that women
11
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with health insurance are guaranteed affordable access to the most effective contraceptive that suits their medical needs.
Moreover, the contraception rule contributes to the federal government’s goal of dismantling outmoded sex stereotypes. It offers women the tools to decide whether and when to become mothers and thus remedies the notion once endorsed by the government that “a woman is, and should remain the ‘center of home and family life,’“ Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 729 (2003) (quoting Hoyt v. Florida, 368 U.S. 57, 62 (1961)). In recent decades, Congress and the courts have made significant progress on furthering women’s equality. For example, in passing the Family Medical Leave Act (“FMLA”), Congress found that “denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second” and sought to disrupt that stereotype by requiring employers to give all employees—male and female—guaranteed leave to tend to family and medical needs. See Hibbs, 538 U.S. at 736 (quoting legislative history of FMLA).
However, more work towards full equality is still needed. The contraception rule marks an important step towards allowing women to participate equally in society. To permit Plaintiffs to prevent third party health insurance companies from paying for contraceptive services for Plaintiffs’ employees would undermine this important interest and allow them to discriminate against their women employees, contrary to a long line of cases. Plaintiffs’ attempt to use the right to religious freedom as a sword, not a shield, must be rejected.
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CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss or, in the

alternative, for summary judgment should be granted.

Dated: January 14, 2014

/s/ Randall C. Wilson Randall C. Wilson, Esq. (AT0008631) AMERICAN CIVIL LIBERTIES UNION OF IOWA FOUNDATION 505 Fifth Avenue, Suite 901 Des Moines, IA 50309 Tel: (515) 650-1980 Email: randall.wilson@aclu-ia.org

Brigitte Amiri* Jennifer Lee* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Tel: (212) 549-2633 Fax: (212) 549-2650 Email: bamiri@aclu.org Email: jlee@aclu.org

Daniel Mach* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street, 6th Floor Washington, DC 20005 Tel: (202) 548-6604 Fax: (202) 546-0738 Email: dmach@aclu.org

*Pro hac vice application forthcoming

Counsel for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Iowa

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CERTIFICATE OF SERVICE I hereby certify that on January 14, 2014 a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None.
/s/ Randall C. Wilson Randall C. Wilson
14 Case 5:13-cv-04100-MWB Document 22 Filed 01/21/14 Page 19 of 19

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

DORDT COLLEGE and CORNERSTONE UNIVERSITY,

Plaintiffs,

No. 5:13-cv-04100-MWB

vs.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services, et al.,

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Defendants.

____________________

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................6
I. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON—THE SCHOOLS’ RELIGIOUS FREEDOM RESTORATION ACT CLAIM. ..........................................................................................6
A. The Mandate Substantially Burdens the Schools’ Religious Exercise ....................8
B. The Mandate Is Not the Least Restrictive Means of Advancing Any Compelling Governmental Interest........................................................................21
II. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON—THE SCHOOLS’ FREE EXERCISE CLAUSE CLAIM. ..............................................................................................................................28
A. The Mandate Is Not Generally Applicable ............................................................28
B. The Mandate Is Not Neutral ..................................................................................33
III. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON—THE SCHOOLS’ ESTABLISHMENT CLAUSE CLAIM. .............................................................................................................35
IV. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON—THE SCHOOLS’ FREE SPEECH CLAUSE CLAIM. ..............................................................................................................................38
V. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON—THE SCHOOLS’ DUE PROCESS CLAUSE CLAIM ...............................................................................................................................40
VI. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON—THE SCHOOLS’ ADMINISTRATIVE PROCEDURE ACT CLAIMS...........................................................................................41
A. Defendants Refused Meaningfully to Consider Objections Before the Mandate Was Finalized..........................................................................................41
B. The Mandate Is Arbitrary and Capricious .............................................................42
C. The Mandate Is Contrary to Law ...........................................................................43
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CONCLUSION ..............................................................................................................................44
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TABLE OF AUTHORITIES
CASES
Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977)...........................................................................................................39
Ave Maria Found. v. Sebelius, 2014 WL 117425 (E.D. Mich. Jan. 13, 2014)................................................................7, 21
Beckwith Elec. Co. v. Sebelius, 2013 WL 3297498 (M.D. Fla. June 25, 2013)...................................................................21
Blackhawk v. Pa., 381 F.3d 202 (3d Cir. 2004).............................................................................................. 32
Braunfeld v. Brown, 366 U.S. 599 (1961).....................................................................................................34, 35
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct 2729 (2011) ....................................................................................................... 43
Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021 (9th Cir. 2009) ...........................................................................................32
Catholic Archdiocese of N.Y. v. Sebelius, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013) ...................................................7, 15, 19, 21
Catholic Diocese of Beaumont v. Sebelius, 2014 WL 31652 (E.D. Tex. Jan. 2, 2014)......................................................................7, 21
Catholic Diocese of Nashville v. Sebelius, No. 13-6640 (6th Cir. Dec. 31, 2013) ..................................................................................7
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)................................................................................................... passim
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).......................................................................................................... 43
Colorado Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .................................................................................. 35, 36
Cutter v. Wilkinson, 544 U.S. 709 (2005).......................................................................................................... 23
Diocese of Ft. Wayne v. Sebelius, 2013 WL 6843012 (N.D. Ind. Dec. 27, 2013) ...............................................................7, 21
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East Texas Baptist Univ. v. Sebelius, 2013 WL 6838893 (S.D. Tex. Dec. 27, 2013) ...............................................................7, 21
Employment Div. v. Smith, 494 U.S. 872 (1990).........................................................................................16, 18, 28, 31
FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) ...................................................................................................... 40
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999).................................................................................. 28, 32, 33
Geneva Coll. v. Sebelius, 2013 WL 3071481 (W.D. Pa. June 18, 2013)........................................................19, 21, 22
Geneva Coll. v. Sebelius, 2013 WL 6835094 (W.D. Pa. Dec. 23, 2013)................................................................7, 21
Gilardi v. U.S. Dep’t of Health & Human Servs., 733 F.3d 1208 (D.C. Cir. 2013) .............................................................................12, 14, 21
Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).......................................................................................................7, 23
Grace Schs. v. Sebelius, 2013 WL 6842772 (N.D. Ind. Dec. 27, 2013) ...............................................................7, 21
Hernandez v. Comm’r, 490 U.S. 680 (1989)...........................................................................................................18
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) ................................................................................. passim
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995)...........................................................................................................38
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ...........................................................................................13
Knox v. Service Employees Intern. Union, 132 S. Ct. 2277 (2012) .......................................................................................................39
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) ...........................................................................13, 14, 21, 22
Larson v. Valente, 456 U.S. 228 (1982).....................................................................................................34, 35
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Legatus v. Sebelius, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013) ........................................................... 7, 21
Little Sisters of the Poor Home for the Aged v. Sebelius, 2014 WL 272207 (U.S. Jan. 24, 2014) ................................................................................7
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988)...........................................................................................................17
Michigan Catholic Conference v. Sebelius, No. 13-2723 (6th Cir. Dec. 31, 2013) ................................................................................. 7
Monaghan v. Sebelius, 931 F. Supp. 2d 794 (E.D. Mich. 2013).............................................................................21
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).............................................................................................................42
Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012).........................................................................21, 22
NLRB v. Catholic Bishop, 440 U.S. 490 (1979).............................................................................................................5
Persico v. Sebelius, 2013 WL 6922024 (W.D. Pa. Dec. 20, 2013)......................................................................7
Priests for Life v. U.S. Dep’t of Health & Human Servs, No. 13-1261, ECF No. 36, Slip Op. at 3-4 (D.D.C. Dec. 19, 2013) ..................................15
Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 13-5368 (D.C. Cir. Dec. 31, 2013)................................................................................7
Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996) .....................................................................................28
Reaching Souls Int’l v. Sebelius, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013)............................................................7, 21
Roman Catholic Archbishop of Wash. v. Sebelius, 2013 WL 6729515 (D.D.C. Dec. 20, 2013)...................................................................7, 21
Roman Catholic Diocese of Ft. Worth v. Sebelius, No. 12-314 (N.D. Tex. Dec. 31, 2013) ................................................................................7
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006).............................................................................................................40
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Sharpe Holdings, Inc. v. Sebelius, 2013 WL 6858588 (E.D. Mo. Dec. 30, 2013) .....................................................................7
Sherbert v. Verner, 374 U.S. 398 (1963)...........................................................................................................17
Southern Nazarene Univ. v. Sebelius, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013)............................................................7, 21
Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981)................................................................................................... passim
Triune Health Group, Inc. v. U.S. Dep’t of Health & Human Servs., No. 12-6756 (N.D. Ill. Jan. 3, 2013) ....................................................................................7
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 624 (1994)...........................................................................................................38
Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012) .............................................................................21, 23
United States v. Lee, 455 U.S. 252 (1982).....................................................................................................15, 16
United States v. United Foods, 533 U.S. 405 (2001)...........................................................................................................39
United States v. Williams, 553 U.S. 285 (2008)...........................................................................................................40
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)...........................................................................................................38
Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990) ...........................................................................................35
Wisconsin v. Yoder, 406 U.S. 205 (1972)...........................................................................................................15
Wooley v. Maynard, 430 U.S. 705 (1977)...........................................................................................................38
Zubik v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013) ...................................................7, 15, 19, 21
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STATUTES 745 Ill. Comp. Stat. 70/2 (1998) ......................................................................................................5 Iowa Code § 216.6(6)(d)..................................................................................................................5 5 U.S.C. § 706(2)(B)......................................................................................................................43 5 U.S.C. § 706(2)(A)............................................................................................................... 42, 43 20 U.S.C. § 1681(a)(3).....................................................................................................................5 26 U.S.C. § 4980H(c)(1)..................................................................................................................2 26 U.S.C. § 4980D(b) ......................................................................................................................2 26 U.S.C. § 4980H(a) ......................................................................................................................2 26 U.S.C. § 4980H(c)(2)................................................................................................................30 26 U.S.C. § 5000A(d)(2)................................................................................................................31 26 U.S.C. § 6033(a)(3)(A) ...........................................................................................29, 33, 35, 37 42 U.S.C. § 300gg-13 ....................................................................................................... 31, 40, 43 42 U.S.C. § 2000e-1(a) ..............................................................................................................5, 20 42 U.S.C. § 2000e-2(e) ..................................................................................................................20 42 U.S.C. § 2000bb-1 ..........................................................................................................7, 16, 23 42 U.S.C. § 2000bb-2 ....................................................................................................................16 42 U.S.C. § 2000cc-5 .....................................................................................................................16
RULES AND REGULATIONS 26 C.F.R. § 1.6033-2..................................................................................................................... 37 34 C.F.R. §106.12(a)........................................................................................................................5 45 C.F.R. § 147.131(a)...............................................................................................................5, 35 78 Fed. Reg. 8,461-62................................................................................................................... 21 78 Fed. Reg. 8,456 ........................................................................................................................ 29
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78 Fed. Reg. 39,870 ........................................................................................................................ 6
MISCELLANEOUS
Church Alliance NPRM Comment, available at http://www.churchalliance.org/sites/default/files/images/u2/comment-letter-4-8-13.pdf .............................. 34
Council for Christian Colleges and Universities Profile, available at http://www.cccu.org/about/profile .......................................................................................6
Council for Christian Colleges and Universities, “CCCU Responds to NPRM Continues Constitutional Objection to HHS Contraceptive Mandate” available at http://www.cccu.org/news/articles/2013/CCCU-Responds-to-NPRM-ContinuesConstitutional-Objection-to-HHS-Contraceptive-Mandate .................................................6
Emergency Contraception Website, “Concerned About Cost?” available at http://ec.princeton.edu/locator/concerned-about-cost.html .................................................4
Gaffney, Edward McGlynn, Jr., Governmental Definition of Religion: The Rise and Fall of the IRS Regulations on an “Integrated Auxiliary of a Church”, 25 VAL. U.L. REV. 203, 211-16 (1991), available at http://scholar.valpo.edu/cgi/viewcontent.cgi?article=2152&context=vulr ........................34
Guttmacher Inst., Insurance Coverage of Contraceptives, available at http://www.ncsl.org/Issues-research/health/insurance-coverage-for-contraceptionstate-laws.aspx ...................................................................................................................26
Guttmacher Inst., State Data Center, available at http://www.guttmacher.org/datacenter/profile.jsp .............................................................27
HealthReform.gov, “Fact Sheet: Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans,” available at http://www.ct.gov/oha/cwp/view.asp?Q=461560&A=11 ...........................................29, 32
James Trussell & Elizabeth G. Raymond, Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy, available at http://ec.princeton.edu/questions/ecreview.pdf ......................................................................................................................4, 24
Julie Hudman & Molly O’Malley, Kaiser Comm’n on Medicaid & the Uninsured, Health Insurance Premiums and Cost-Sharing: Findings from the Research on LowIncome Populations (Mar. 2003) .......................................................................................25
Kathryn Kost, Unintended Pregnancy Rates at the State Level: Estimates for 2002, 2004, 2006 and 2008 (Guttmacher Institute, September 2013) ...................................................24
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Lawrence B. Finer & Mia R. Zolna, Unintended Pregnancy in the United States: Incidence and Disparities, 2006, 84 CONTRACEPTION at 478–85 (2011) ..........................24
Matthew 26:47-50 ..........................................................................................................................19 Nat’l Campaign to Prevent Teen & Unplanned Pregnancy, Unplanned Pregnancy in the
United States, available at http://www.thenationalcampaign.org/resources/pdf/briefly-unplanned-in-theunited-states.pdf .................................................................................................................24 Nat’l Conference of State Legislatures, Insurance Coverage for Contraception Laws, available at http://www.ncsl.org/issues-research/health/insurance-coverage-forcontraception-state-laws.aspx ............................................................................................26 Romans 16:16 ................................................................................................................................19 Strategic Pharma Solutions, Contraception in America: Unmet Needs Survey, Executive Summary, available at http://www.contraceptioninamerica.com/downloads/Executive_Summary.pdf ...............26
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INTRODUCTION Dordt College and Cornerstone University (“the Schools) are religious institutions that were created for religious reasons, hold religious beliefs, are comprised of religious people, and pursue religious objectives. Complaint, ECF No. 1, ¶¶ 2, 9, 10, 20-27, 43-49. Among those religious beliefs is the conviction that human beings are uniquely created in the image of God, and thus have special dignity and are entitled to special protection. Compl., ¶¶ 30-32, 52-54. The Schools believe, as a matter of religious commitment, that this dignity and entitlement to special protection arises at the moment of conception. Compl., ¶¶ 31, 54. They believe that violating the special dignity of God’s unique image bearers is a grave sin that disrupts their relationship with God Himself and risks God’s judgment. Compl., ¶¶ 30-32, 53-54. Those beliefs translate into both positive actions as well as the avoidance of certain behaviors. First, positive actions: they draw the members of their communities from among those who hold and live out their shared religious convictions. Compl., ¶¶ 25-27, 47-49. These communities include students, faculty, and staff. The communities hold a collective desire to glorify God through all they believe, say, and do. The Schools nurture and foster their communities, encouraging obedience to their understandings of God’s laws and responding to disobedience to those same laws. The Schools draw their administrators, faculty, and staff from among those who share their beliefs about the sanctity of life. Compl., ¶ 26, 47. The Schools strive to ensure that their students, faculty, and staff embrace, maintain, and live out their shared religious commitment to the sanctity of human life. Second, avoidance of certain behaviors: the Schools seek to avoid participation in or facilitation of transgressions of their understanding of God’s law, including that regarding the dignity and value of human life. Among other things, they structure their employee and student health insurance plans to avoid participating in violations of their religious convictions and to foster behavior among members of their communities that is consistent with the Schools’ religious values. Compl., ¶¶ 38-39, 41, 65, 67.
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The HHS Mandate dramatically undermines the Schools’ freedom to live out their religious beliefs in these two ways: avoiding violations of their religious convictions, and fostering community commitment to those convictions. The Schools believe that compliance with the Mandate would constitute facilitation of immoral behavior and would thus be sinful and immoral in itself. And compliance with the Mandate would undermine their freedom to foster communities that share and strive to live out a set of foundational and definitional religious commitments. Obeying the Mandate would seriously undermine their religiously-based educational missions and encourage disobedience to shared religious convictions.
The government is imposing enormous pressure on the Schools to comply with the Mandate and thus violate their religious convictions and undermine their fostering of their religious communities. The price for non-compliance is enormous and unsustainable. If the Schools continue their present course of action once the Mandate goes into effect (i.e., offer health insurance that excludes abortifacients), they will face fines of $100 per employee per day. See 26 U.S.C. § 4980D(b). For Dordt, this would be $6,533,500 annually. For Cornerstone, the yearly fine would be $9,782,000. If they avoided the Mandate by dropping employee health insurance altogether, they would face fines of $2000 per employee per year, minus 30. See 26 U.S.C. § 4980H(a), (c)(1). This would be $298,000 annually for Dordt, and $476,000 for Cornerstone. In both scenarios, they would also face liability under ERISA. The Schools believe that they have a religious obligation to provide for the well-being of their employees by providing health insurance, Compl. ¶ 33, 57; forcing the Schools to drop employee health insurance would undermine their religious exercise as well. The Mandate substantially burdens the Schools’ religious exercise, and thus is a prima facie violation of their rights under the Religious Freedom Restoration Act.
Forcing the Schools to comply with the Mandate is not the least restrictive means of furthering any compelling governmental interest. The government claims that the Mandate furthers public health (specifically, the negative health events allegedly caused by the unintended nature of a pregnancy) and equality of the sexes. No court reaching the question whether the
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Mandate satisfies strict scrutiny has answered in the affirmative. RFRA, the Free Exercise Clause, and their interpretive case law indicate that this Court should analyze not only whether “public health” and “women’s equality” are “compelling” interests in the abstract, but also whether requiring the Schools to facilitate access to abortifacients advances these goals to such a degree that the interests might be said to be compelling. The answer is no. Defendants, remarkably, ignore the relatively narrow scope of the Schools’ objection, arguing as if they object to providing or facilitating access to all the drugs, devices, and services required by the HHS Mandate. Yet, the Schools are willing to include in their employee and student health plans virtually everything required by Defendants, including “conventional” birth control pills, sterilization, and related counseling. They simply object to emergency contraceptives that can act as abortifacients by preventing implantation of the very young human in the uterine wall.1 The narrow scope of their objection, among other things, fatally undermines the government’s contention that applying the Mandate to the Schools furthers any compelling interest. All the alleged benefits of (a) the broader mandate to provide a wide range of preventive services without cost sharing and (b) the Mandate to provide conventional contraceptives and sterilization – on which the government exclusively relies to justify its burden on the Schools – are irrelevant. The question is whether forcing them to facilitate free access to abortifacients to their employees and students sufficiently advances some compelling interest to justify the burden on the Schools’ religious exercise.
Again, the answer is no. According to the government, the Mandate is designed to reduce the incidence of unintended pregnancy and thereby reduce the frequency of adverse health events that allegedly are caused by the unintended nature of some pregnancies. The questions, then, are (a) whether (and to what extent) free access to abortifacients, particularly emergency contraceptives, reduces the incidence of unintended pregnancy in general; and (b)
 1 The ongoing semantic debate about whether “pregnancy” begins at conception or implantation is utterly irrelevant to this Court’s assessment of the substantiality of the burden on the Schools’ religious exercise, where Plaintiffs believes that human life begins at conception and that such life deserves protection from that moment forward. In short, the outcome of the semantic debate does not dictate the answer to the moral question.
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whether (and to what extent) forcing the Schools to facilitate free access to abortifacients will
reduce unintended pregnancies among their employees and students. Studies prove that free
access to emergency contraceptives does not reduce the incidence of unintended pregnancy (and thus the adverse health events allegedly associated with those pregnancies).2
Forcing the Schools to facilitate access to abortifacients is particularly unjustified in light
of the nature of their workforces. The Schools draw members of their communities from among
those who share their religious commitments, including their religious belief in the dignity of
human life, the sinfulness of using abortifacients, and the immorality of premarital and
extramarital sexual behavior (which are more likely to produce “unintended” pregnancies). The
government cannot plausibly argue it has any interest in encouraging disobedience to these
norms by the Schools’ employees and students. Women with reproductive capacity at the
Schools are far less likely to experience unintended pregnancies – the primary evil the Mandate
claims to reduce – and thus any power the government’s arguments about the justifications for
the Mandate more generally might have is greatly diminished.
The government’s equality argument rests in part on the assertion that women tend to pay
more for preventive health care than do men. The relevant question in this case is not whether
the Section 1001(a)(4) of the Affordable Care Act “evens out” preventive care expenses in
general, but rather whether the inability of female employees and students at the Schools to
obtain abortifacients for free through their Schools seriously undermines their ability to
participate equally in the economic realm. The answer is plainly no. First, as discussed above, it
is comparatively unlikely that these women will find themselves in situations where the use of an
emergency contraceptive is indicated. Second, it can hardly be said that the equal status of
female beneficiaries of the Schools’ insurance plans hinges upon whether they can avoid paying, at most, about $55 for a box of ella or Plan B3 – an expense that is customarily incurred, if ever,
 2 James Trussell & Elizabeth G. Raymond, Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy, available at http://ec.princeton.edu/questions/ec-review.pdf, at 15 (last visited Oct. 11, 2013) (“no published study has yet demonstrated that increasing access to ECPs [emergency contraceptives] reduces pregnancy or abortion rates in a population”). 3 http://ec.princeton.edu/locator/concerned-about-cost.html (last visited Nov. 17, 2013).
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only once or twice in a lifetime. And, if it is truly necessary for the government to make
abortifacient drugs available “for free” to School employees and students, there are other ways it
could accomplish this objective that are less burdensome to the Schools’ religious exercise.
To make matters worse, the government’s refusal to extend the religious exemption to the
Schools is, given the stated rationale for that exemption, indefensible. The extraordinarily
narrow religious exemption – which is far stingier than the exemptions in Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-1(a); Title IX of the Education Amendments of 1972, 20
U.S.C. § 1681(a)(3) and 34 C.F.R. § 106.12(a); the judicially established exemption from the
National Labor Relations Act, see NLRB v. Catholic Bishop, 440 U.S. 490 (1979) (holding that
church-operated schools are exempt from the NLRA); virtually all state law bans on religious
and sexual orientation discrimination in employment, see, e.g., Iowa Code § 216.6(6)(d); and the
overwhelming majority of state contraceptive mandates, see, e.g., 745 Ill. Comp. Stat. 70/2
(1998) (protecting the right of conscience for those who believe the provision of certain health
services is morally unacceptable) – is available only to “an organization that is organized and
operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal
Revenue Code.” 45 C.F.R. § 147.131(a). Those Code sections refer to “churches, their integrated auxiliaries,4 and conventions or associations or churches” and “the exclusively
religious activities of any religious order.” 26 U.S.C. § 6033(a)(3)(A)(i) and (iii). Congress
devised this category of organizations in a context utterly unrelated to the one here; these entities
are exempt from filing with the IRS the informational returns (Form 990s) that most non-profits
must file. The government rationalizes this narrow exemption as follows:
The Departments believe that the simplified and clarified definition of religious employer continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental
 4 26 C.F.R. § 1.6033-2(a), (g), and (h). For an entity to be an integrated auxiliary, it must be “[a]ffiliated with a church or a convention or association of churches” and be “[i]nternally supported.” Id. § 1.6033-2(h)(ii) and (iii). The Schools are apparently ineligible for integrated auxiliary status, and thus for the Mandate’s exemption, primarily because they receive the majority of their revenue from “external” sources (i.e., tuition paid by students and their families) rather than an “internal” one (i.e., an affiliated church).
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interests furthered by the contraceptive coverage requirement. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under the plan. “Coverage of Certain Preventive Services Under the Affordable Care Act,” 78 Fed. Reg. 39,870,
39,874 (July 2, 2013). In essence, the government is conceding that the Mandate does not
advance any compelling interest when applied to employers who employ employees who share their religious convictions – a category that includes the Schools.5 Denying them the exemption
is thus arbitrary, capricious, irrational, unjustified, and discriminatory. They are denied the
exemption’s protection simply because they are not structured as integrated auxiliaries to a
denomination or convention or association of churches. Discriminating against them because of
incidental religious structural choices cannot survive scrutiny under either the Establishment
Clause or the Administrative Procedure Act.
ARGUMENT
I. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON—THE SCHOOLS’ RELIGIOUS FREEDOM RESTORATION ACT CLAIM. The Religious Freedom Restoration Act (RFRA) forbids the federal government from
substantially burdening a person’s exercise of religion unless the government demonstrates that
application of the burden to the person is in furtherance of a compelling governmental interest
and is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C.
 5 It bears noting that the Schools are not unique in this regard. The over 100 United States members of the Council for Christian Colleges and Universities all draw their faculty and staff from among those who share their religious convictions. See http://www.cccu.org/about/profile (last visited Feb. 6, 2014). Yet, upon information and belief, none of them are “integrated auxiliaries” of denominations, and are thus denied the protection of the exemption, despite possessing the very attribute that the government itself says justifies the exemption. The Council submitted a comment on the Notice of Proposed Rulemaking making this very point, as did numerous others. See http://www.cccu.org/news/articles/2013/CCCU-Responds-to-NPRM-Continues-Constitutional-Objection-to-HHSContraceptive-Mandate (last visited Feb. 6, 2014). The government apparently ignored or was unmoved by these comments, refusing to make the exemption “fit” the government’s own stated rationale.
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§ 2000bb-1; Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 423 (2006).
Multiple federal courts have considered whether the Mandate violates the RFRA rights of non-profit religious organizations to whom the so-called “accommodation” is available. The overwhelming majority of them have held that it does, concluding that Defendants have substantially burdened religious exercise without adequate justification. See Catholic Archdiocese of N.Y. v. Sebelius, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013) (granting summary judgment); Catholic Diocese of Beaumont v. Sebelius, 2014 WL 31652 (E.D. Tex. Jan. 2, 2014) (granting permanent injunction); Persico v. Sebelius, 2013 WL 6922024 (W.D. Pa. Dec. 20, 2013) (same); Zubik v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013) (granting preliminary injunction); Roman Catholic Diocese of Ft. Worth v. Sebelius, No. 12-314 (N.D. Tex. Dec. 31, 2013) (same); Ave Maria Found. v. Sebelius, 2014 WL 117425 (E.D. Mich. Jan. 13, 2014) (same); Diocese of Ft. Wayne v. Sebelius, 2013 WL 6843012 (N.D. Ind. Dec. 27, 2013)(same); Geneva Coll. v. Sebelius, 2013 WL 6835094 (W.D. Pa. Dec. 23, 2013) (same); Legatus v. Sebelius, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013) (same); Reaching Souls Int’l v. Sebelius, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013) (same); Southern Nazarene Univ. v. Sebelius, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013) (same); East Texas Baptist Univ. v. Sebelius, 2013 WL 6838893 (S.D. Tex. Dec. 27, 2013); Grace Schs. v. Sebelius, 2013 WL 6842772 (N.D. Ind. Dec. 27, 2013) (same); Sharpe Holdings, Inc. v. Sebelius, 2013 WL 6858588 (E.D. Mo. Dec. 30, 2013) (same); Roman Catholic Archbishop of Washington v. Sebelius, 2013 WL 6729515 (D.D.C. Dec. 20, 2013) (same). See also Little Sisters of the Poor Home for the Aged v. Sebelius, 2014 WL 272207 (U.S. Jan. 24, 2014) (enjoining application of Mandate pending appeal) Catholic Diocese of Nashville v. Sebelius, No. 13-6640 (6th Cir. Dec. 31, 2013) (same); Michigan Catholic Conference v. Sebelius, No. 13-2723 (6th Cir. Dec. 31, 2013) (same); Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 13-5368 (D.C. Cir. Dec. 31, 2013) (same).
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The Schools contend that all these courts were correct, and respectfully urge this Court to deny Defendants’ motion to dismiss their RFRA claim.
A. The Mandate Substantially Burdens the Schools’ Religious Exercise. In assessing whether the Mandate substantially burdens the Schools’ religious exercise, thereby triggering strict scrutiny, it is essential to: (1) identify the religious exercise in question; and (2) identify exactly what the government is doing with respect to that exercise. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc).
1. The religious exercise(s) in question Three “exercises of religion” are at the heart of this case. Two are affirmative pursuits of religious objectives; the third is avoidance of conduct contrary to the Schools’ beliefs. First, the Schools affirmatively live out their religious beliefs in the dignity of human life by making available to their workforces health insurance coverage that reflects the Schools communities’ shared pro-life beliefs. Second, they create and foster academic communities that encourage their members (faculty, staff, and students) to grow in spiritual maturity through obedience to God’s commands, including His commands about the value of human life. Third, the Schools seek to avoid facilitating sinful behavior, thereby engaging in immoral conduct themselves. Defendants do not dispute that the Schools are exercising religion in the health insurance context and that the Mandate affects that religious exercise.
2. What the government is doing with respect to those “exercises” Through the Mandate, Defendants interfere with each of these three “exercises of religion.” First, Defendants have made it untenable, to put it mildly, for the Schools to provide employee health insurance that correlates with their pro-life beliefs. Left free to exercise their religion in the health insurance context, the Schools’ plans would ensure access to everything the Affordable Care Act and the HHS Mandate require (including non-abortifacient contraceptives) other than abortifacients like ella and Plan B. Participation in their plans would not trigger the “free” availability of embryo-destroying drugs and devices to School employees and their dependents. Because of the Mandate, however, an insurance issuer will sell the Schools a plan
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that either (a) expressly includes abortifacients; or (b) functionally includes abortifacients by guaranteeing separate payments for them upon the Schools’ execution of a “self-certification.” If the Schools were to purchase an employee health plan that did not facilitate access to abortifacients in one of these two ways, they would face fines of $100 per beneficiary per day. For Dordt, this would be $6,533,500 annually; for Cornerstone, $9,782,000.
Defendants have also made it impossible, as a practical matter, for the Schools to avoid facilitating the use of abortifacients by dropping employee health insurance altogether (something that would transgress the Schools’ religious convictions in its own right). The financial penalty for such a move is $2,000 per employee per year after the first 30 employees. This would be $298,000 annually for Dordt, and $476,000 for Cornerstone.
Because Defendants have left the Schools without the option of fulfilling their religious convictions by providing health insurance that does not facilitate access to abortifacients (or of dropping employee health insurance altogether), they are forced to provide health insurance that does facilitate that access. This significantly interferes with the Schools’ other two “exercises of religion.” First, it directly and significantly interferes with their ability to make and enforce religiously-rooted rules of conduct applicable to their employees, all of whom voluntarily joined the School communities. It directly and significantly interferes with the Schools’ ability effectively to communicate their pro-life message to students, faculty, staff, and the broader community. It directly and significantly interferes with their pursuit of their missions to grow the spiritual maturity of members of their communities by fostering obedience to and love for God’s laws, as the Schools understand them.
Second, it forces the Schools to engage in behavior that violates their religious convictions. Either complying with the Mandate as originally written or complying with it by executing a self-certification that ensures the same result (i.e., free access for employees to abortifacients as a consequence of their employment with the School) is, in the eyes of the Schools, sinful and immoral. The Schools believe that sin adversely affects their relationships
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with God. Although the shape and magnitude of this adverse effect cannot be predicted or calculated, the Schools nonetheless believe it is quite real, and to be avoided.
3. Defendants misunderstand and thus mischaracterize the Schools’ religious exercise(s) and the Mandate’s impact on those exercises.
On their way to arguing that the Mandate does not “substantially burden” the Schools’ religious exercise, Defendants express a deeply erroneous understanding of both (a) the identity of the Schools’ religious exercise; and (b) how the Mandate affects that exercise.
Regarding the identity of the Schools’ exercises of religion, Defendants focus exclusively on the question whether they are forcing the Schools to do something forbidden by their religious beliefs, not comprehending that the Schools also “exercise religion” by creating and sustaining academic communities committed to certain shared religious convictions, including convictions about the morality of abortifacient use. In short, Defendants fail to understand that RFRA protects not only “freedom from,” but also “freedom to.” Of course, their failure in this regard means that they do not even discuss how the Mandate burdens the Schools’ “freedom to” shape their communities and transform the spiritual lives of their members – except, apparently, to deny the existence or impugn the exercise of such a freedom. (Defendants’ Memorandum in Support of Their Motion to Dismiss or, in the Alternative, for Summary Judgment, [hereinafter “Defs.’ Br.”] at 16).
Defendants also have a remarkably cramped vision of how their actions pressure the Schools to undertake actions that transgress their religious convictions. Again, they focus exclusively on the act of executing the self-certification under the government’s “accommodation.” Defs.’ Br. at 11. (And they identify things the Schools are allegedly not required to do, as if identifying arguably worse things renders the thing in question unobjectionable. Id.) They ignore the context of the self-certification; the Schools must either provide insurance to their employees or face enormous fines. The Schools’ decisions to provide employee health insurance inevitably cause the provision of free abortifacients to their employees. Every time the Schools hire an individual, they know that the individual (and
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perhaps his or her family as well) will gain access to abortifacients, because of his or her status as a School employee. And that access will be provided by the School’s own insurer or thirdparty administrator.
4. How the Mandate actually burdens the Schools’ religious exercise(s) As noted above, the Mandate burdens the Schools’ religious exercise by coercing them to take action they believe to be sinful and immoral, and by interfering with their freedom to foster voluntary communities that encourage spiritual maturity through compliance with shared ethical commitments rooted in religious conviction. As to the first of these ways Defendants burden the Schools’ religious exercise, the Schools will transgress their understanding of God’s laws by providing health insurance to their employees and students that gives them guaranteed payments for drugs and devices that take human life. In short, by complying, they will sin. And non-compliance, either through dropping employee coverage, or by continuing their current coverage (which excludes abortifacients), is not possible, either financially, ethically, or both. As discussed above, the Schools not only want to avoid committing sin, but also want to foster the spiritual maturity of members of their communities, faculty, staff, and students alike. Christian conviction—including respect for the dignity and worth of human life from the moment of conception—is a qualification for participation in the Schools’ workforces. And, it bears noting, administrators, faculty, and staff all voluntarily join the Schools’ communities. Indeed, the School communities are comprised of individuals who affirmatively want to be part of a community that reflects and reinforces their Christian commitments, including their respect for unborn human life. As educational institutions, they explicitly aim to transform the lives of their students. This objective is pursued, in part, through faculty and staff modeling behaviors consistent with the Schools’ religious convictions. Foisting unwanted access to free abortifacients upon the Schools’ employees and their families tangibly interferes with this key component of the Schools’ missions. Facilitating free
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access to abortifacients while simultaneously trying to foster a pro-life ethic lacks integrity; and doing the former undermines the latter. The “fig leaf” of the accommodation is just that; a cosmetic, but ultimately unsuccessful, effort to cover over the underlying ethical problem. An institution cannot out of one side of its mouth “condemn the wanton or arbitrary destruction of any human being at any stage of its development from the point of conception to the point of death” (Compl., ¶ 31) and then out of the other side say “the health insurance we are providing you as compensation for your services gives you free access to abortifacients.” It is wrong and unjust for the government to interfere in this manner with the Schools’ religious educational missions; in the language of the Religious Freedom Restoration Act, this interference “substantially burdens” the Schools’ religious exercise.
5. The burden is “substantial” under RFRA. When sincerity is not dispute, RFRA’s “substantial burden” requirement involves a twopart inquiry. A court must first “identify the religious belief” at issue, and then determine “whether the government [has] place[d] substantial pressure”—i.e., a substantial burden—on the claimant to take or refrain from action in violation of that belief. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1140 (10th Cir. 2013) (en banc). In other HHS Mandate challenges, the government has disputed this test. Three federal courts of appeals have rejected Defendants’ effort to alter the inquiry. In Gilardi v. U.S. Department of Health and Human Services, the D.C. Circuit held that the Mandate substantially burdens the religious exercise of the Catholic owners of two corporations by requiring those corporations to include contraceptive coverage in their employee health plans. 733 F.3d 1208, 1216-19 (D.C. Cir. 2013). The court rejected the government’s argument that the interposition of the corporate form between the Gilardis and their employees rendered the Gilardis’ participation “too remote and too attenuated” to constitute a substantial burden. Id. at 1217. As the D.C. Circuit explained, “‘[c]ourts are not arbiters of scriptural interpretation,’” id. at 1216-17 (quoting Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450
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U.S. 707, 716 (1981)); thus, “[w]hen even attenuated participation may be construed as a sin, it is not for courts to decide that the corporate veil severs the owner’s moral responsibility,” id. at 1215 (citation omitted). Instead, the court held that “[a] ‘substantial burden’ is ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Id. at 1216 (quoting Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008), Thomas, 450 U.S. at 718). The Mandate, therefore, imposed a substantial burden on the Gilardis because they are forced to choose between “abid[ing] by the sacred tenets of their faith, pay[ing] a penalty of over $14 million, and crippl[ing] th[eir] companies . . . , or . . . becom[ing] complicit in a grave moral wrong. If that is not ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs,’ we fail to see how the standard could be met.” Id. at 1218.
Likewise, in Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013), the Seventh Circuit held that the Mandate substantially burdens the religious exercise of two corporations and their Catholic owners by requiring those corporations to include contraceptive coverage in their employee health plans. The court rejected the government’s contention that the actions required by the Mandate were too “insubstantial” or too “attenuated” to impose a substantial burden on the plaintiffs. Id. at 683-85. As the Seventh Circuit explained, the government’s argument was not only factually incorrect but also legally flawed, because “the test for substantial burden does not ask whether the claimant has correctly interpreted his religious obligations.” Id. at 683. “It is enough that the claimant has an ‘honest conviction’ that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion.” Id. The Mandate, therefore, imposes a substantial burden on the Korte plaintiffs’ religious exercise because it forces them to act contrary to their religious beliefs by taking actions that they deem to be impermissible facilitation of contraception. By threatening fines of “$100 per day per employee,” the government “placed enormous pressure on the plaintiffs to violate their religious beliefs.” Id.
The same is true here. The Schools have a sincere religious objection to providing or facilitating “coverage for [abortifacients] in their employee health-care plans.” Id. at 667. The Mandate’s “accommodation” does not change the analysis, because the Schools continue to have
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“an ‘honest conviction’ that what the government is requiring, prohibiting, or pressuring [them] to do conflicts with [their] religion.” Id. at 683. The only relevant question under the “substantial burden” test is whether the Mandate imposes “substantial pressure” on the Schools to violate those beliefs. Gilardi, 733 F.3d at 1218. It makes no difference whether the government believes the accommodation is adequate to dispel the Schools’ religious objections. What matters is that the Schools themselves “have concluded that their legal and religious obligations are incompatible: The contraception mandate forces them to do what their religion tells them they must not do.” Korte, 735 F.3d at 685. It is undisputed that, even with the accommodation, the Mandate forces each School to choose between (1) “abid[ing] by the sacred tenets of [its] faith, pay[ing] a [massive] penalty . . . , and crippl[ing] [their ministries],” or else (2) “becom[ing] complicit in a grave moral wrong.” Gilardi, 733 F.3d at 1218. Therefore, there can be no question that the Mandate imposes a substantial burden on the Schools’ exercise of religion. Id.; Hobby Lobby, 723 F.3d at 1137.
Defendants’ argument that the Mandate’s burden on the Schools’ religious exercise is not “substantial” turns mostly on their misunderstanding or mischaracterization of (a) the Schools’ religious exercise; and (b) the identity and character of the burden. Accordingly, accurately identifying the Schools’ exercises of religion and the character of the Mandate’s interference with those exercises goes a long way towards addressing the government’s contentions. However, there are a few aspects of Defendants’ argument that merit a further response.
First, Defendants observe that the self-certification “should take plaintiffs a matter of minutes.” (Defs. Br. at 14). Of course, the Schools do not disagree; yet, the number of minutes it takes to execute an action hardly is the sole (or even main) criterion for assessing whether the government is substantially burdening religious exercise. The Schools’ ethical position is that sponsoring a health plan that grants access to abortifacients is sinful. Many sins can be committed quickly. That hardly means government is free to coerce the commission of such sins. Instead, a government regulation that “put[s] substantial pressure on an adherent to modify
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his behavior and violate his beliefs” substantially burdens his religious exercise. Thomas v. Review Bd., 450 U.S. at 716-18. See also Wisconsin v. Yoder, 406 U.S. 205, 218 (1972).
Multiple courts have squarely rejected Defendants’ argument. In Zubik v. Sebelius, “[t]he Government acknowledge[d] that the act of self-certification will require the Plaintiff-entities to sign the self-certification and supply a third party with the names of the Plaintiffs’ respective employees so that the third-party may provide (and/or pay for) contraceptive products, services, and counseling.” 2013 WL 6118696, at *24. Defendants conceded that the plaintiffs there, like the Schools here, sincerely believed that life is sacred from the moment of conception and that “the facilitation of evil is as morally odious as the proliferation of evil.” Id. “Given these concessions,” the Zubik court “disagree[d] with the Government that Plaintiffs’ ability or inability to ‘merely sign a piece of paper,’ and thus comport with the ‘accommodation,’ is all that is at issue here.” Id. In other words, the question is not whether executing the self-certification is time-consuming or expensive, but rather whether Defendants are substantially pressuring religious employers like the Schools to violate their religious convictions. Without question, they are.6
Similarly, in Roman Catholic Archdiocese of New York, the court held the Defendants’ argument “finds no support in the case law.” 2013 WL 6579764, at *13. It declared, “where a law places substantial pressure on a plaintiff to perform affirmative acts contrary to his religion, the Supreme Court has found a substantial burden without analyzing whether those acts are de minimis.” Id. (citing United States v. Lee, 455 U.S. 252 (1982), and Yoder, 406 U.S. 205). The court also concluded that the Government had failed to explain how its proposed test would work: “beyond its repeated insistence that this is an ‘objective’ inquiry, the Government provides no framework for how a court could determine whether an act that concededly violates a plaintiff’s religious beliefs is actually only ‘de minimis.’” Id. at 24-25. As the Tenth Circuit
 6 In Priests for Life v. United States Department of Health and Human Services, the plaintiffs there had no religious objection to completing the self-certification. Civ. No. 13-1261, ECF No. 36, Slip Op. at 3-4 (D.D.C. Dec. 19, 2013). Of course, the Schools do hold that completing the self-certification would transgress their religious obligations.
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stated in Hobby Lobby, “the question here is not whether the reasonable observer would consider the plaintiffs complicit in an immoral act, but rather how the plaintiffs themselves measure their degree of complicity.” 723 F.3d at 1142.
The court also highlighted the constitutional difficulties with Defendants’ proposed approach:
Inquiring into the relative importance of a particular act to a particular plaintiff would necessarily place the court in the unacceptable ‘business of evaluating the relative merits of differing religious claims. Lee, 455 U.S. at 263 n. 2 (Stevens, J. concurring). There is no way that a court can, or should, determine that a coerced violation of conscience is of insufficient quantum to merit constitutional protection. Roman Catholic Archdiocese, at *13. The government’s reading of RFRA—that a substantial burden exists only where the government requires the claimant to engage in “significant” conduct—is plainly contrary to the statutory text. RFRA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A) (emphasis added). RFRA contains no requirement that the actions required of claimants be “significant” or “substantial.” Id. Here, because the Schools’ refusal to facilitate access to abortifacients clearly involves the religiously-motivated “performance of (or abstention from) physical acts,” Employment Div. v. Smith, 494 U.S. 872, 877 (1990), it is a protected exercise of religion for purposes of RFRA. Defendants argue that this understanding of RFRA deprives the statutory word “substantial” of any significance. Defs.’ Br. at 23-25. As is plain from the statutory text, however, “substantial[]” refers not to the type of actions required of plaintiffs—i.e., their religious exercise—but rather the type of pressure imposed by the government —i.e., the burden. 42 U.S.C. § 2000bb-1 (“Government shall not substantially burden a person’s exercise of religion.”). It requires courts to assess the pressure the government exerts on a plaintiff to violate his religious beliefs, not the nature of the religious exercise.
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Thus, in evaluating whether government action imposes a substantial burden on religious exercise, the Supreme Court has consistently evaluated the magnitude of the coercion employed by the government, rather than the “significance” of the actions required of plaintiffs. For example, in Sherbert v. Verner, 374 U.S. 398 (1963), the Court did not consider whether the inconvenience to the Seventh-day Adventist plaintiff of working on Saturday was “de minimis.” Defs.’ Br. at 10. Instead, the Court accepted her representation that she could not work on Saturday and assessed whether the resulting denial of unemployment benefits coerced her to abandon this religious exercise, ultimately concluding that the “pressure upon her to for[]go [her] practice [of abstaining from work on Saturday]” was tantamount to “a fine imposed against [her] for her Saturday worship.” See Sherbert, 374 U.S. at 404.
Likewise, in Thomas, the Court did not ask whether Thomas’ transfer from a factory making sheet steel to a factory that used the sheet metal for producing tank turrets caused increased expenditures time or effort. Rather, the Court evaluated the “coercive impact” of the state’s refusal to award Thomas unemployment benefits when his pacifist convictions prevented him from accepting the transfer, concluding that the denial “put[] substantial pressure” on him “to violate his beliefs.” 450 U.S. at 717–18. Defendants’ attempt here to focus on how much time or effort is involved in the self-certification process misses the proper analytical point. The burden is the impact to the individual’s religious beliefs by becoming a participant in the delivery of abortifacients.
Defendants’ reading of RFRA also impermissibly “cast[s] the Judiciary in a role that [it was] never intended to play.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 458 (1988). Rather than evaluating whether the pressure placed on the Schools to violate their beliefs is “substantial,” Defendants would have this Court determine whether compliance with the Mandate is a “substantial” violation of Plaintiffs’ religious beliefs. While the former analysis involves an exercise of legal judgment, the latter involves an inherently religious inquiry. But the judiciary has no competence to determine the significance of a particular religious act; “[i]t is not within the judicial ken to question the centrality of particular . . . practices to a faith.”
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Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). Rather, it is left to plaintiffs to “dr[a]w a line” regarding the actions their religion deems permissible, and once that line is drawn, “it is not for [courts] to say [it is] unreasonable.” Thomas, 450 U.S. at 715.
Indeed, the impropriety—not to mention the impossibility—of courts determining whether an exercise of religion is significant or meaningful is self-evident. On Defendants’ theory, a court could compel a Quaker to swear, rather than affirm, the veracity of his testimony on the theory that the change in verbiage is a “de minimis” act. Defs.’ Br. at 10 . An Orthodox Jew could be forced to flip a light switch on the Sabbath because such action “require[s] [him] to do next to nothing.” Id. at 22. No “principle of law or logic” equips a court to decide the significance or “meaning[]” of these acts. Smith, 494 U.S. at 887. What may be “no big deal” to the government may be a very big deal to a believer.
Defendants also contend that a law or regulation’s burden on religious exercise is “substantial” for RFRA purposes only if the regulation pressures claimants to “modify their behavior.” Defs.’ Br. at 22. And they claim that the Mandate does not require the Schools to change their conduct. They declare that the Schools end up doing essentially the same thing after the Mandate as they did before—telling their issuer or third-party administrators that they does not wish to cover abortifacients. Defs.’ Br. at 22.
Yet, the Mandate does require the Schools to modify their behavior. Defendants’ theory—that the schools’ pre- and post-Mandate communications with their insurers/TPAs are “the same”—works only if the intended and foreseeable consequences of actions are irrelevant in assessing whether they are the same or different. This is a remarkable contention. Defendants are essentially arguing that the moral significance of an act is completely detached from the consequences of that act. To Defendants, it matters not that the consequence of the Schools’ prior practices (telling their insurers/TPAs not to provide abortifacients) was members of their communities not obtaining access to life-destroying drugs and devices, whereas the consequence of executing the self-certification is exactly the opposite. To contend that these two actions are the same, particularly when the claim is that the coerced conduct violates conscience, is
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astonishing.7 That the two actions might be said, in a willfully truncated assessment of their
significance, to bear some superficial resemblance hardly means that Defendants have not
coerced the Schools into “modifying their behavior.”
It is unsurprising that courts addressing this contention have summarily rejected it. In
Zubik, the court embraced an analogy offered by the plaintiffs there:
Plaintiffs liken this result by analogy to a neighbor who asks to borrow a knife to cut something on the barbecue grill, and the request is easily granted. The next day, the same neighbor requests a knife to kill someone, and the request is refused. It is the reason the neighbor requests the knife which makes it impossible for the lender to provide it on the second day.
2013 WL 6118696, at *25. The Zubik court thus held that the Mandate, even with the
“accommodation,” “still substantially burdens [the plaintiffs’] sincerely-held religious beliefs.”
Id.
In Roman Catholic Archdiocese of New York, the court deemed “unpersuasive” the
Government’s argument that the Mandate, with the accommodation, required no change in the
plaintiffs’ conduct. 2103 WL 6579764, at *14. The court held that even if Defendants were
correct that the Mandate did not require the plaintiffs to modify their behavior,
the self-certification would still transform a voluntary act that plaintiffs believe to be consistent with the religious beliefs into a compelled act that they believe forbidden. Clearly, plaintiffs view the latter as having vastly different religious significance than the former. The Court cannot say that “the line [plaintiffs] drew was an unreasonable one.”
Id. at 27 (footnote omitted) (quoting Thomas, 450 U.S. at 715). See also Geneva Coll. v.
Sebelius, 2013 WL 3071481 (W.D. Pa. June 18, 2013) (holding that then-proposed
accommodation would not remove Mandate’s substantial burden on religious exercise).
Defendants ascribe to the Schools a conception of “substantial burden” they do not hold.
They claim that the Schools’ argument “rests on an unprecedented and sweeping theory of what
 7 In the New Testament, Jesus and His followers often greeted one another with a kiss, as was the custom at the time. See, e.g., Rom. 16:16. It is reasonable to assume that, at some point, Judas Iscariot greeted Jesus with such a kiss. Later, of course, Judas betrayed Jesus with a kiss, identifying for the armed crowd sent by the chief priests and the elders of the people the man they ought to arrest. Matt. 26:47-50. Could one plausibly contend that these two superficially identical acts bore the same moral significance?
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it means for religious exercise to be burdened” under which “plaintiffs would . . . prevent anyone else from providing such coverage to their employees . . . .”8 This overstates the Schools’
position. To be sure, they would object to any scheme that conscripts them into serving as an
essential cog in the government’s mechanism. But they do not believe that RFRA prevents the
government from giving their employees and students free abortifacients under a scheme that
does not involve the Schools; if the Schools are not involved, their religious exercise is not
burdened.
To illustrate the point, suppose that the government gave all religious employers,
including the Schools, an exemption from the Mandate. Employers need not apply for the
exemption or otherwise inform the government that they object to providing morally
objectionable drugs, devices, procedures, and services. Like the religious exemption from Title
VII’s ban on religious discrimination, individual entities determine for themselves whether they
possess the exemption, running the risk a court or other adjudicator will disagree. Suppose
further that the U.S. Department of Health and Human Services, under this scenario, learns that
the Schools consider themselves exempt and therefore have declined to include abortifacients in
their employee and student plans. The Department then undertakes an effort to identify the
Schools’ employees and students and offer them free abortifacients. The “substantial burden”
argument the Schools are making does not require the Court to conclude that the Department
would be substantially burdening religious exercise in the hypothetical.
Relatedly, the government seems to be convinced that the only way it can enhance access
to abortifacients for the Schools’ employees is to somehow conscript the Schools into its scheme.
 8 The remainder of the quoted sentence asserts that the Schools’ employees “might not subscribe to plaintiffs’ religious beliefs.” (Defs.’ Br. at 12.) This is incorrect; sharing the Schools’ religious convictions is a pre-requisite to initial and continuing employment. Defendants plainly misunderstand both the nature of the Schools’ religious communities and the scope of the Schools’ freedom to foster the religious character of its community. Later in their brief, Defendants indignantly declare that “an employer has no right to control the choices of its employees, who may not share its religious beliefs, when making use of their benefits.” (Defs’ Br. at 16.) Aside from the factual inaccuracy of the government’s assumption about the Schools’ employees, it is false as a matter of law to contend that religious employers may not impose religiously-rooted behavioral expectations on the employees who voluntarily join their religious communities. See, e.g., 42 U.S.C. § 2000e-1(a); id. at § 2000e-2(e)(2) (exempting religious employers from Title VII’s ban on religious discrimination in employment).
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(Defs.’ Br. at 13.) However, Defendants fail to explain why this must be so. There is no reason why abortifacients must be provided in connection with employer-based health plans; governments provide benefits without involving beneficiaries’ employers all the time. Administrative convenience hardly justifies conscripting unwilling employers into the government’s scheme, where involvement in that scheme violates their consciences and undermines their religious educational communities.
B. The Mandate Is Not the Least Restrictive Means of Advancing Any Compelling Governmental Interest.
Courts applying strict scrutiny to the Mandate are unanimous: it fails. See Korte, 735 F.3d at 685-87; Gilardi, 733 F.3d at 1219-22; Hobby Lobby, 723 F.3d at 1143-44; Beckwith Elec. Co. v. Sebelius, 2013 WL 3297498, at *16-18 (M.D. Fla. June 25, 2013); Geneva Coll. v. Sebelius, 2013 WL 3071481, at *6-8 (W.D. Pa. 2013); Monaghan v. Sebelius, 931 F. Supp. 2d 794, 806-07 (E.D. Mich. 2013); Triune Health Group, Inc. v. U.S. Dep’t of Health & Human Servs., No. 12-6756, slip op. at 1 (N.D. Ill. Jan. 3, 2013); Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 125-29 (D.D.C. 2012); Newland v. Sebelius, 881 F. Supp. 2d 1287, 1297-98 (D. Colo. 2012); Catholic Archdiocese of N.Y., 2013 WL 6579764, at *16-19; Catholic Diocese of Beaumont, 2014 WL 31652, at *8; Zubik, 2013 WL 6118696, at *28-32; Ave Maria Found., 2014 WL 117425, at *6-7; Diocese of Ft. Wayne, 2013 WL 6843012, at *15-17; Geneva Coll., 2013 WL 6835094, at *14; Legatus, 2013 WL 6768607, at *8-11; Reaching Souls Int’l, 2013 WL 6804259, at *6; Southern Nazarene Univ., 2013 WL 6804265, at *9-10; East Texas Baptist Univ., 2013 WL 6838893, at *23-24; Grace Schs., 2013 WL 6842772, at *14-16; Roman Catholic Archbishop of Washington, 2013 WL 6729515, at *24. Forcing the Schools to facilitate access to abortifacients for their employees and their families is not the least restrictive means of advancing any compelling interest. Accordingly, the Mandate violates RFRA, and the Schools’ RFRA claim should not be dismissed.
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In Korte, the Seventh Circuit held that the Mandate almost certainly9 is not the least
restrictive means of advancing a compelling governmental interest. 735 F.3d at 685-87. There,
Defendants invoked the same interests asserted here—“public health” and “gender equality”—
claiming that they were “compelling.” The court resoundingly disagreed:
This argument seriously misunderstands strict scrutiny. By stating the public interests so generally, the government guarantees that the mandate will flunk the test. Strict scrutiny requires a substantial congruity—a close “fit”—between the governmental interest and the means chosen to further that interest. Stating the governmental interests at such a high level of generality makes it impossible to show that the mandate is the least restrictive means of furthering them. There are many ways to promote public health and gender equality, almost all of them less burdensome on religious liberty.
Id. at *25.
The court acknowledged that broadening access to free contraception and sterilization so
that women might achieve greater control over their reproductive health was a “legitimate
governmental interest.” Id. Yet, the court was unwilling to accept the government’s claim that
this interest was compelling. Id. at *25-26. See also Hobby Lobby Stores, Inc. v. Sebelius, 723
F.3d at 1143-44 (government’s asserted interests in public health and gender equality “do not
satisfy the Supreme Court’s compelling interest standards”); Gilardi v. U.S. Dep’t of Health &
Human Servs., 2013 WL 5854246, at *10-13; Geneva Coll. v. Sebelius, 2013 WL 3071481, at
*9-10; Newland v. Sebelius, 881 F. Supp. 2d at 1298.
In explaining the rationale for the religious exemption from the Mandate, Defendants
concede that forcing employers whose employees are likely to share their religious convictions
does not advance the Mandate’s stated interests.10 (Defs.’ Br. at 23-24; 78 Fed. Reg. 39,874.)
 9 The Seventh Circuit was reviewing the district court’s denial of the claimant’s motions for preliminary injunction and was thus assessing their likelihood of success on the merits. Nonetheless, nothing in the court’s opinion suggests that its assessment of the merits might change based on discovery or other subsequent events in the district court. 10 By exempting even a narrow category of religious employers, Defendants cast serious doubt on their contention (Defs.’ Br. at 16-18) that the Mandate substantially burdens no one’s religious exercise (whether “accommodated” or not) because the connection between the employer’s role and the use of morally objectionable drugs, devices, and services is “too attenuated.” In other words, if Defendants themselves took such a contention seriously, they would not have exempted anyone, even churches and religious orders.
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Dordt College and Cornerstone University are such employers. Their employees share their religious convictions, including their convictions regarding the dignity of human life and the immorality of abortifacient use.
That the Schools’ employees are unlikely to use the abortifacients to which the Schools objects—conclusively proves by itself that Defendants have no interest in imposing the Mandate on the Schools, even if they might have an interest in imposing the Mandate upon other employers. And RFRA requires the government to prove that the “application of the burden to the person” satisfies strict scrutiny. 42 U.S.C. § 2000bb-1(b) (emphasis added).11 See also O Centro, 546 U.S. at 430-31; Tyndale HousePublishers, Inc. v. Sebelius, 904 F. Supp. 2d at 12529. For this reason alone, Defendants cannot satisfy strict scrutiny, and therefore Defendants’ motion to dismiss the Schools’ RFRA claim should be denied.
Additional reasons reveal that applying the Mandate to the Schools is not the least restrictive means of furthering a compelling governmental interest. Defendants invoke the alleged benefits of preventive services in general and of making access to those services costfree. (Defs. Br. at 19-21.) However, the Schools are not objecting to “preventive services” in general. Indeed, they are not even objecting to “conventional” birth control pills or sterilization, free access to which Defendants contend will reduce the rate of unintended pregnancy and thus the adverse health effects associated with such pregnancies. Instead, they object to a relatively small sub-class of drugs and devices the Food and Drug Administration has labeled “contraceptives” but that can act abortifaciently by destroying very young human life in the womb.
Given this, the relevant question is whether making abortifacients available to the Schools’ employees and their families sufficiently advances the stated goal of reducing the adverse health events allegedly caused by the unintended nature of some pregnancies. The
 11 The Supreme Court has thus repeatedly reaffirmed “the feasibility of case-by-case consideration of religious exemptions to generally applicable rules,” which can be “‘applied in an appropriately balanced way’ to specific claims for exemptions as they ar[i]se.” O Centro, 546 U.S. at 436 (quoting Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)).
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answer is no. Princeton University maintains an Office of Population Research. Dr. James Trussell, a Professor of Economics and Public Affairs at Princeton and Director of the Office of Population Research published a paper entitled “Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy.”12 The paper’s conclusion is unambiguous: “no published study has yet demonstrated that increasing access to ECPs [emergency contraceptives like the morning-after and week-after pills] reduces pregnancy or abortion rates in a population.” Id. at 15. Dr. Trussell similarly concludes: “it is unlikely that expanding access [to emergency contraceptives] will have a major impact on reducing the rate of unintended pregnancy.” Id. The extent to which free access to “conventional” contraceptives might affect unintended pregnancy rates and thus the associated adverse health effects is irrelevant to this case, which is focused on emergency contraceptives that can function abortifaciently. Thus, the government’s heavy emphasis on the alleged benefits of free contraceptives is beside the point.
Making the imposition of the Mandate on the Schools even more unjustified, there is scant evidence that providing cost-free access even to conventional contraceptives reduces unintended pregnancies. The Institute of Medicine report on which HHS relied in crafting the Mandate fails to demonstrate that forcing employers to cover FDA-approved contraceptives will actually reduce the number and percentage of unintended pregnancies — and thus the adverse health events that may (or may not) be attributable to the unintended nature of the pregnancy. The IOM report observes that private health insurance coverage of contraceptives had increased since the 1990s. IOM Report at 109. If insurance coverage of contraceptives were truly the key to reducing unintended pregnancies — as the Mandate presupposes — then one would have expected the rate of such pregnancies to decline as insurance coverage rose. But it did not.13
 12 James Trussell & Elizabeth G. Raymond, Emergency Contraception: A Last Chance to Prevent Unintended Pregnancy, available at http://ec.princeton.edu/questions/ec-review.pdf, at 15 (last visited Oct. 11, 2013). 13 See, e.g., Lawrence B. Finer & Mia R. Zolna, Unintended Pregnancy in the United States: Incidence and Disparities, 2006, 84 CONTRACEPTION at 478–85 (2011) ; Nat’l Campaign to Prevent Teen & Unplanned Pregnancy, Unplanned Pregnancy in the United States, http://www.thenationalcampaign.org/resources/pdf/briefly-unplannedin-the-united-states.pdf (last visited Nov. 17, 2013).
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The IOM report nonetheless claims that forcing employers to cover contraceptives without cost sharing will reduce unintended pregnancies. It cites a particular “policy brief” for the proposition that “cost-sharing requirements, such as deductibles and copayments, can pose barriers to care and result in reduced use of preventive and primary care services.” Id. (citing Julie Hudman & Molly O’Malley, Kaiser Comm’n on Medicaid & the Uninsured, Health Insurance Premiums and Cost-Sharing: Findings from the Research on Low-Income Populations (Mar. 2003). Yet this policy brief simply does not support the contention that forcing employers like the Schools to cover abortifacients (or, for that matter, contraceptives) will reduce unintended pregnancies.
Most significantly, the paper focuses exclusively upon low-income participants in publicly-financed health programs like Medicaid. One cannot legitimately draw broad inferences from studies focused on this population; the IOM report itself acknowledges that lowincome women have much higher rates of unintended pregnancy. IOM Report at 102. One certainly cannot assume that the impact of co-payments and deductibles on health care utilization on relatively well-compensated employees of employers like the Schools is the same as it is on Medicaid participants. Second, the policy brief itself acknowledges that the effect of costsharing varies with the type of health services in question. Third, and relatedly, the studies the paper surveys (with a single 30 year-old exception) do not examine the impact of cost-sharing upon the use of contraceptives, much less the impact on the unintended pregnancy rate or the incidence of the adverse health effects that correlate with unintended pregnancy.
In addition to the failure of the IOM report adequately to support the contention that free access to abortifacients will reduce unintended pregnancies, other evidence contradicts it outright. First, as discussed below, survey data reveals that cost plays a small role, if any, in decisions about birth control. Second, as also discussed below, state-specific research data conclusively prove that contraceptive mandates do not solve the unintended pregnancy problem. Indeed, the evidence reveals no apparent correlation between the existence of such mandates and unintended pregnancy rates. In fact, as shown infra, states with contraception mandates have
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higher rates of unintended pregnancy than states without them. Thus, the Mandate almost
certainly will not advance the government’s interest in reducing unintended pregnancies.
Forcing religious institutions like the Schools to facilitate access to abortifacients as a means of
advancing this interest is indefensible.
Strategic Pharma Solutions recently conducted what it characterizes as a “comprehensive
landmark survey of American women’s attitudes toward and experience with contraception.” The survey is entitled Contraception in America: Unmet Needs Survey.14 The executive
summary of the survey results reaffirms that “[a]ccidental pregnancies remain common despite
readily available contraception.” Contraception in America at 2. Over 40% of the survey
respondents were not trying to get pregnant but were also not currently using any method of birth
control. Id. at 14. When asked why they were not using any method of birth control, only 2.3%
of this group stated that birth control was too expensive. Id. This reason was dead last among
the nine reasons offered by respondents. Id. Of the women who were using birth control, only
1.3% reported that they chose a particular method because of its affordability. Id. at 16. This
reason was second-to-last among the 19 offered by survey respondents. Id. Given this data, it is
difficult to accept the government’s assertion that its Mandate will advance its interest in
reducing unintended pregnancies.
State-specific research data conclusively proves that contraceptive mandates do not
substantially ameliorate the unintended pregnancy problem. Over two dozen states have adopted laws requiring group health plans to include contraceptives.15 Yet these states experience rates
of unintended pregnancy that are actually higher than in the states without such mandates. In the
states with mandates, the average rate of unintended pregnancies in 2006 was 52.58%; the
 14 Strategic Pharma Solutions, Contraception in America: Unmet Needs Survey, Executive Summary, http://www.contraceptioninamerica.com/downloads/Executive_Summary.pdf (last visited Nov. 17, 2013) [hereinafter Contraception in America]. 15 See Nat’l Conference of State Legislatures, Insurance Coverage for Contraception Laws, http://www ncsl.org/issues-research/health/insurance-coverage-for-contraception-state-laws.aspx (last visited Nov. 17, 2013); Guttmacher Inst., Insurance Coverage of Contraceptives, http://www ncsl.org/Issuesresearch/health/insurance-coverage-for-contraception-state-laws.aspx (last visited Nov. 17, 2013).
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average rate in states without mandates in 2006 was 50.38%.16 Data showing the unintended pregnancy rates both before and after the adoption of a state mandate is available for seven states. In five of those states (Arkansas, New Mexico, Oregon, Washington, and West Virginia), the unintended pregnancy rate actually increased following the adoption of a contraceptive mandate.17 Plainly, contraceptive mandates are not an effective means of noticeably diminishing unintended pregnancies.
Therefore, even if reducing unintended pregnancies and the corollary adverse health events might be deemed a “compelling interest” (which is denied) for purposes of the Religious Freedom Restoration Act (and the First Amendment), the Mandate is simply not an effectual way to advance that interest.
Imposing the Mandate on the Schools also will not advance Defendants’ stated interest in equalizing preventive care expenditures between the sexes. The Schools already include conventional birth control pills and sterilization in their health care plans, and will comply with Mandate’s directive to eliminate cost-sharing for those items. As noted above, it is highly unlikely that the Schools’ employees will ever use abortifacients, and, in the event they do, the cost of those items is not prohibitive.
In sum, imposing the Mandate on the Schools is not the least restrictive means of advancing a compelling governmental interest. Accordingly, this Court should deny Defendants’ motion to dismiss the Schools’ RFRA claim or grant them summary judgment on that claim.
 16 The Guttmacher Institute maintains and publishes a “reproductive health profile” for each of the 50 states. See Guttmacher Inst., State Data Center, http://www.guttmacher.org/datacenter/profile.jsp (last visited Oct. 11, 2013). Each state’s profile includes the percentage of pregnancies in 2006 that were unintended. See also Kathryn Kost, Unintended Pregnancy Rates at the State Level: Estimates for 2002, 2004, 2006 and 2008 (Guttmacher Institute, September 2013). 17 Kost, Unintended Pregnancy Rates.
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II. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON—THE SCHOOLS’ FREE EXERCISE CLAUSE CLAIM. In addition to violating RFRA, the Mandate violates the Free Exercise Clause. The
Mandate it is not “neutral [or] generally applicable.” Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 545 (1993) (citing Smith, 494 U.S. at 880). As a result the Mandate is subject to strict scrutiny, Lukumi, at 546.18 As discussed above, it cannot meet that
standard. Accordingly, Defendants’ motion to dismiss Count II of the Complaint must be
denied.
A. The Mandate is Not Generally Applicable.
The Mandate is not generally applicable under the Free Exercise Clause. A law is not
generally applicable if it regulates religiously-motivated conduct, yet refrains from regulating
similar secular conduct. See, e.g., Lukumi, 508 U.S. at 544–45. Laws may lack general
applicability when they are underinclusive, id. at 543, involve the granting of discretionary
exemptions, id. at 537, see also Smith, 494 U.S. at 884, or involve categorical exemptions that
burden religious practice, Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,
170 F.3d 359, 365 (3rd Cir. 1999) (Alito, J.) (citing Lukumi, 508 U.S. at 542). “The Free
Exercise Clause protects religious observers against unequal treatment, and inequality results
when a legislature decides that the governmental interests it seeks to advance are worthy of being
pursued only against conduct with a religious motivation.” Lukumi, 508 U.S. at 542-43 (internal
quotation marks and citation omitted). The underinclusiveness of the statute at issue in Lukumi
rendered it not generally applicable where it “fail[ed] to prohibit nonreligious conduct that
endangers . . . interests [in public health and preventing animal cruelty] in a similar or greater
degree than Santeria sacrifice does.” Id. at 543.
 18 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 interrelated”); id. at 557 (Scalia, J., concurring) (observing that the concepts “substantially overlap”). Still, each merits separate analysis, and “strict scrutiny will be triggered” 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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The Mandate exempts organizations that employ tens of millions of women on a variety
of grounds, primarily including employees and plan participants who will be exempt because their plans will be grandfathered,19 yet the government refuses to exempt the Schools based on
their religious objections. The grandfathering exemption is not based on any scientific rationale
that those employees and covered persons are physiologically different than the people who
work for religious-minded employers such as the Schools, such that birth control does not give
them the same allegedly compelling benefits. Yet the government is content to withhold its
Mandate from tens of millions of women enrolled in grandfathered plans that the government’s
regulations give a “right” to persist indefinitely.
The government has further undermined the applicability of its Mandate by refusing an
exemption to the Schools but at the same time fully exempting “religious employers” that are
churches, integrated auxiliaries of churches, conventions of churches, or the exclusively religious
activities of religious orders. See 78 Fed. Reg. at 39874 (“simplifying” and “clarifying” the
religious employer exemption by restricting it to only those non-profits referred to in 26 U.S.C.
§ 6033(a)(3)(A)(i) or (iii)). Defendants’ explicit rationale for this exemption is that “[h]ouses of
worship and their integrated auxiliaries that object to contraceptive coverage on religious
grounds are more likely than other employers to employ people of the same faith who share the
same objection, and who would therefore be less likely than other people to use contraceptive
services.” 78 Fed. Reg. at 39,874. Meanwhile, employees of entities such as the Schools “may
be less likely than participants and beneficiaries in group health plans established or maintained
by religious employers to share such religious objections of the [Plaintiff].” 78 Fed. Reg. 8,456,
8,461–62. But there is no rational basis for the government to declare that integrated auxiliaries
of churches—which are often schools and often automatically include seminaries—are “more
likely than” the thoroughly religious entities in this case “to employ people of the same faith who
 19 HealthReform.gov, “Fact Sheet: Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans,” available at http://www.ct.gov/oha/cwp/view.asp?Q=461560&A=11 (last accessed Oct. 9, 2013) (estimating in 2010 that 55% of 113 million large-employer plan participants, and 34% of 43 million small-employer plan participants, will be covered by grandfathered plans as far out as the data is projected by the end of 2013).
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share the same objection” to abortifacients. Defendants have presented no data about the beliefs of employees at the thousands of various integrated auxiliaries of churches around the country, it has no data about the beliefs of the Schools (except the verified facts indicating how deeply devout its activities are), and it has no rational grounds upon which to compare those nonexistent data sets and conclude that the former are worthy of an exemption but not the latter.
Thus the government has decided that some seriously religious non-profit entities can be exempt from the Mandate but not others, based on speculation about the beliefs of the entities’ employees. This is a quintessential example of the government “fail[ing] to prohibit [] conduct that endangers . . . interests [of the Mandate] in a similar or greater degree than [Plaintiff’s exemption request] does.” Lukumi, 508 U.S. at 542–43. If the Mandate’s interests are not endangered by exempting “religious employers,” on the basis of the government’s speculation about the beliefs of employees, the government cannot deny an exemption to the Schools without rendering its Mandate not generally applicable.
Defendants have also chosen not to apply some crucial penalties associated with this Mandate to small employers: they can drop employee coverage altogether (including this Mandate) without being fined under the Affordable Care Act, but larger employers such as the Schools cannot.20 This leaves many employees without abortifacient coverage delivered through their employers and their employers’ insurers—those employees will have to receive the Mandate’s alleged benefits somewhere else. Yet the government claims it has a compelling interest in forcing that same mandated coverage to come to the Schools’ employees through their own insurer or third-party administrator. Defendants have no basis for distinguishing between employees of large and small entities and deciding that the latter need not receive the Mandate from their employers’ insurers but the former must. This is not a generally applicable rule. In addition, the government has decided not to apply the Mandate to religious sects opposed to
 20 See 26 U.S.C. § 4980H(c)(2) (employers are not subject to penalty for not providing health insurance coverage if they have less than 50 full-time employees).
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insurance altogether, or to “health care sharing ministries” that it has deemed not to be insurance and therefore not to need to cover Mandated items.21
The Mandate is also not generally applicable because the Affordable Care Act itself awards Defendants unlimited discretion to shape its scope. The Defendant Department of Health and Human Services “may establish exemptions” for religious objectors, 45 C.F.R. § 147.130 (emphasis added), or it may choose not to. And pursuant to 42 U.S.C. § 300gg-13, Defendants’ discretion to craft its exemptions is unlimited. 76 Fed. Reg. at 46,623 (asserting that § 300gg-13 grants the Department of Health and Human Services and its Health Resources and Services Administration (HRSA) the “authority to develop comprehensive guideless” under which the Government believes “it is appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious employers”). Section 300gg-13 has no criteria in it limiting the discretion of Defendants in deciding who should get an exemption, or why, or what kind. Using their unfettered discretion, Defendants have continually changed its exemptions and accommodations since August of 2011. This has led to numerous proposals and versions of the rule in the Federal Register, and multiple versions of a “safe harbor” Guidance that the Defendants have issued in addition to the regulations. The stated reasons behind why the government exempted “religious employers” but not the Schools—that employees of the latter are somehow “less likely” to share their beliefs—illustrates the government’s unrestrained exercise of discretion as it created and changed its rule without criteria that is required to be objective and to eliminate arbitrary, discriminatory decision-making. This exercise itself has amounted to “individualized … assessment of the reasons for the relevant conduct”—reasons related to non-existent data about employee beliefs at different non-profit entities—which deprives the Mandate of general applicability and subjects it to strict scrutiny. Lukumi, 508 U.S. at 537 (quoting Smith, 494 U.S. at 884).
As the court said in Fraternal Order of Police:
 21 26 U.S.C. § 5000A(d)(2)(a)–(b).
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The concern [about the government’s deciding that secular motivations are more important than religious ones] is only further implicated when the government does not merely create a mechanism for individualized exemptions, but instead, actually creates a categorical exemption for individuals with a secular objection but not for individuals with a religious objection. 170 F.3d at 365. The grandfathering exemption of tens of millions of women exists for the
“secular” reason that to get enough votes to pass the Affordable Care Act, “[d]uring the health
reform debate, President Obama made clear to Americans that ‘if you like your health plan, you can keep it.’”22 Defendants also assert post hoc logistical reasons for the grandfathering
provision, but all of those reasons are likewise secular, yet they deny tens of millions of women
the alleged benefits of the Mandate while refusing to exempt similarly situated employers such
as the Schools. In Fraternal Order of Police, the Third Circuit found a lack of general
applicability when a police department’s no-beard policy allowed a medical exemption but
refused religious exemptions. “[T]he medical exemption raises concern because it indicates that
the [police department] has made a value judgment that secular (i.e., medical) motivations for
wearing a beard are important enough to overcome its general interest in uniformity but that
religious motivations are not.” Id. at 366. See also 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 categorical 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 requirements were not generally applicable where they included categorical
exemptions for newspapers and media, but not for churches).
Defendants’ many exemptions here span the gamut of reasons while still refusing a
religious exemption to the Schools. The grandfathering provision gives plans a “right” to avoid
the Mandate indefinitely for secular reasons; the “religious employer” exemption relies on
secular tax code distinctions regarding which entities must file a 990 tax form, and on the
government’s unfounded claim that employees at religious non-profit entities such as the Schools
 22 HealthCare.Gov, “Keeping the Health Plan You Have: The Affordable Care Act and ‘Grandfathered’ Health Plans,” available at http://web.archive.org/web/20130620171510/http://www healthcare.gov/news/factsheets /2010/06/keeping-the-health-plan-you-have-grandfathered.html (last visited Oct. 10, 2013).
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do not sufficiently share their employers’ mission-oriented beliefs as do schools and seminaries that the IRS deems “integrated auxiliaries.” The small employer provision that allows them to dump health insurance coverage altogether without penalty serves secular and economic purposes under which the government is content to not have this Mandate flow to employees from their employers’ or those employers’ insurers, while the government would heavily penalize the Schools if it dropped coverage. These sorts of categorical exemptions led the court to deem the law not generally applicable in Fraternal Order of Police, 170 F.3d at 365. See generally Lukumi, 508 U.S. at 542 (“All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice.”).
B. The Mandate is Not Neutral. The Mandate is also subject to strict scrutiny under the Free Exercise Clause because it is not neutral; it discriminates among religious organizations on a religious basis. It thus fails the most basic requirement of neutrality. See, e.g., Lukumi, 508 U.S. at 532 (explaining that “protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons”). As discussed above, the “religious employer” exemption protects the religious exercise of only certain religious employers, specifically distinguishing integrated auxiliaries of churches with regard to whether or not they are required to file an annual tax return, but without any objective basis to distinguish between employers like the Schools and those entities for the purposes of deciding who must comply with this Mandate. See 78 Fed. Reg. at 39874 (aligning the “religious employer” definition with 26 U.S.C. § 6033(a)(3)(A)(i) or (iii), which concerns the filing of tax returns). Defendants’ explicit rationale for superimposing this tax code distinction onto a requirement of birth control coverage is its unsupported claim that “integrated auxiliary” schools and seminaries have employees who share their employers’ beliefs to some significantly greater extent than the employees of entities like the Schools. See 78 Fed. Reg. at 39,874; 78 Fed. Reg. at 8,461–62.
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This unfounded criterion engages in religious gerrymandering. See Lukumi, 508 U.S. at
534. Defendants made their own subjective decision about which religious employers to exempt.
It is a mystery how Defendants determined that non-profit religious employers who are not
exempt from filing a Form 990 each year would not possess the same values and generally
employ the same sympathetic-minded individuals as exempt non-profit religious employers,
even if both kinds of entities are schools.23 Some schools are integrated auxiliaries of churches,
and some are not, based on factors having absolutely nothing to do with the beliefs of the
employees or their desire for abortifacient coverage in health insurance. The § 6033 distinction
borrowed for this Mandate has no relationship to birth control or employee beliefs at all. It
simply pertains to whether the IRS seeks to specifically examine the donation activities of a non-
profit entity as would be reported on a Form 990, or whether that examination is not necessary
because of the entity’s relationship with a church. Thus there is no “neutrality” in using the
§ 6033 criteria for this Mandate, because the criteria have no articulated or evidence-based
relationship with the Mandate, much less a rational connection to the delivery of abortifacient
coverage to some employees but not others.24 See Lukumi, 508 U.S. at 534 (“Official action that
targets religious conduct for distinctive treatment cannot be shielded by mere compliance with
the requirement of facial neutrality.”); see also Braunfeld v. Brown, 366 U.S. 599, 607 (1961)
(noting that “[i]f the purpose or effect of a law is to impede the observance of one or all religions
 23 Applying the § 6033 filing exceptions to the Mandate would falsely divide religious employers into two categories based on distinctions in a church conventions and the level of financial support from a church to an employer, which may depend on a church denomination’s governance structure or even the affluence of its members. See comment by Church Alliance dated April 8, 2013, available at http://www.churchalliance.org/sites/default/files/images/u2/comment-letter-4-8-13.pdf (last visited Oct. 9, 2013); cf. Larson v. Valente, 456 U.S. 228, 246, fn. 23 (1982) (striking down a law on Establishment Clause grounds that distinguished between different religious organizations and had the effect of discriminating between well established churches and newer churches, based on the primary source of the organization’s funds (i.e., members versus public solicitation)). 24 See Edward McGlynn Gaffney, Jr., Governmental Definition of Religion: The Rise and Fall of the IRS Regulations on an “Integrated Auxiliary of a Church”, 25 VAL. U.L. REV. 203, 211-16 (1991), available at http://scholar.valpo.edu/cgi/viewcontent.cgi?article=2152&context=vulr (last visited Oct. 9, 2013) (describing the original purpose of the differential treatment of churches and other non-profits under 26 U.S.C. § 6033 as relating to preventing tax fraud but not wanting to submit churches to financial oversight, detailing the development of different, changing and confusing religious terms used by Congress for various exemptions throughout that period and finally concluding that the language settled on in § 6033 for those organizations exempt from filling a From 990 “did not come into the tax code as one laden with meaning either in church history or legal history.”)
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or is to discriminate invidiously between religious, that law is constitutionally invalid even though the burden may be characterized as being only indirect.”).
Lukumi warns that “[t]he neutrality of a law is suspect if First Amendment freedoms are curtailed to prevent isolated collateral harms not themselves prohibited by direct regulation.” 508 U.S. at 539. In light of the unsupported distinction made by Defendants between the two types of employees (those working for exempt integrated auxiliaries of churches that are schools or seminaries, and those working for non-exempt religious employers that are schools or seminaries), there is no basis for the government to claim that direct harm will be avoided if the Schools are refused an exemption while integrated auxiliaries are given one. The government has essentially conceded that exempting integrated auxiliaries is entirely tolerable in the context of this Mandate. Refusing the same exemption to the Schools violates the requirement of neutrality.
Consequently, failing the requirements both of neutrality and of general applicability, the Mandate is subject to strict scrutiny. As discussed above, the Mandate fails. Therefore, Defendants’ motion to dismiss the Free Exercise Clause claim should be denied, as should their motion for summary judgment on that claim.
III. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON-THE SCHOOLS’ ESTABLISHMENT CLAUSE CLAIM. Defendants’ unwillingness to extend their religious exemption25 to the Schools violates
the First Amendment’s Establishment Clause. The Clause prohibits unjustified differential treatment of similarly situated religious organizations. Larson v. Valente, 456 U.S. 228, 246 & n. 23 (1982); Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1256 (10th Cir. 2008). See also Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990). The Schools are similarly situated to exempt organizations, as all their employees share their religious convictions regarding the
 25 45 C.F.R. § 147.131(a) (an exempt “religious employer” is “an organization that is organized and operates as a nonprofit entity and is referred to in 26 U.S.C. § 6033(a)(3)(A)(i) or (iii).
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sanctity of life.26 But the Schools are denied the exemption, simply because they lack an
“integrated auxiliary” relationship with a church or denomination. This is precisely the sort of
unjustified differential treatment the Establishment Clause forbids. Accordingly, this Court
should deny Defendants’ motion to dismiss Count III of the Complaint.
In Larson, the Supreme Court struck down, under the Establishment Clause, Minnesota
charitable registration and disclosure rules that distinguished among similarly situated religious
organizations. The rules were “designed to protect the contributing public and charitable
beneficiaries against fraudulent practices in the solicitation of contributions for purportedly
charitable purposes.” 456 U.S. at 231. The rules exempted religious organizations that received
fifty percent or more of their contributions from members or affiliated organizations. Id. at 230-
31. Minnesota attempted to justify the exemption; in other words, it tried to explain how the
exemption did not undermine the stated purpose of the rules. After all, both exempt and non-
exempt organizations were religious non-profits that solicited charitable contributions from the
general public.
Minnesota failed. Id. at 248-51. The Court “conclude[d] that [the state defendants] have
failed to demonstrate that the fifty per cent rule . . . is ‘closely fitted’ to further a ‘compelling
governmental interest.’” Id. at 251. Determining enforceability based on a charity’s source of
income simply made no sense; Minnesota failed to prove that an organization was more likely to
commit fraud if over half its donors were non-members. The Court thus held that the differential
treatment of similarly situated religious organizations violated the Establishment Clause. Id. at
255.
In Colorado Christian University, the Tenth Circuit similarly struck down a state’s
differential treatment of substantially identical religious organizations. The State of Colorado
offered tuition assistance to college students. 534 U.S. at 1250. It denied aid to students
 26 The government’s stated rationale for exempting churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of religious orders is that these entities “are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. 39870, 39874 (Jul. 2, 2013).
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attending “pervasively sectarian” schools. Id. at 1250-51. Less “sectarian” schools and their
students were eligible for the assistance programs. The Tenth Circuit found that the ineligible
“pervasively sectarian” schools were, with reference to the programs’ purposes, substantially
identical to other (eligible) religious schools. Id. at 1257-59. Accordingly, the disparate
treatment of the different sorts of religious schools violated the Establishment Clause. Id. at
1269.
In the instant case, Defendants do not even attempt to explain any “fit” among the
exemption, its stated rationale, and broader purposes of the Mandate. They have not even tried
to justify why they deny the exemption to institutions like the Schools that fit its stated rationale, i.e., that employ co-religionists.27 Exempt organizations are exempt because they hire co-
religionists. The Schools also hire only co-religionists, but are not exempt. One will search the
government’s brief in vain for a defense of this disparate treatment.
The unconstitutionality of denying the Schools the exemption is even more obvious when
one considers exactly why Dordt College in particular is not exempt. Dordt is not exempt
because of the primary source of its revenue—just like the successful plaintiffs in Larson. The
College would be exempt if it were an “integrated auxiliary” of the Christian Reformed Church
of North America (CRCNA). Whether an entity is an “integrated auxiliary” under 26 U.S.C. §
6033(a)(3)(A) is determined by criteria set forth in 26 C.F.R. § 1.6033–2. The rule asks whether
an entity is “affiliated” and “internally supported” by a church or convention of churches. An
organization is not “internally supported” if it “[n]ormally receive[] more than 50 percent of its
support from” non-church sources. Dordt receives more than 50 per cent of its revenue from student tuition payments, and thus cannot be an integrated auxiliary of the CRCNA.28
 27 The root problem is that the government made unjustified assumptions, possibly rooted in ignorance, about the employment practices of many religious organizations. They assumed that most employers exempt from filing informational tax returns under 26 U.S.C. § 6033(a)(3)(A) hire only co-religionists, and that all other religious organizations do not. They were mistaken. The government never explains why it plucked an utterly unrelated provision out of the tax code and employed it a completely different context. Perhaps Defendants do not attempt such an explanation because no explanation exists. 28 Amplifying the absurdity of using 26 U.S.C. § 6033(a)(3)(A) to determine eligibility for the HHS Mandate exemption, seminaries are explicitly exempt from that section’s “fifty percent rule.” 26 C.F.R. § 1.6033–2(h)(5).
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Accordingly, it does not qualify for the “religious employer” exemption to the Mandate, solely because of financial issues having nothing to do with the likelihood that its employees would utilize insurance coverage of abortifacients. Thus, Larson practically compels a ruling in the Schools’ favor on its Establishment Clause claim and a denial of Defendants’ motions.
IV. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON—THE SCHOOLS’ FREE SPEECH CLAUSE CLAIM. The Mandate additionally violates the First Amendment by coercing the Schools to
facilitate speech that is contrary to their religious beliefs. The “right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705, 714 (1977) (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)). Accordingly, the First Amendment protects the right to “decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995) (internal quotation marks omitted). Thus, “[l]aws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny” as those “that suppress, disadvantage, or impose differential burdens upon speech because of its content.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 624, 642 (1994). The “First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way [the government] commands, an idea they find morally objectionable.” Wooley, 430 U.S. at 715.
Here, the Mandate unconstitutionally coerces the Schools to communicate a message they find morally objectionable. It does so in two ways. First, the Mandate includes required coverage not only for abortifacients but also for “education and counseling” related to the same. Education and counseling are speech. The coverage of that speech includes speech in favor of abortifacient items, since by its terms the coverage includes any such education and counseling, and since if a doctor prescribes emergency contraception the information and counseling associated with that prescription will necessarily be supportive of using such items (otherwise
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the doctor would not be prescribing it). As discussed above, the Mandate and its “accommodation” coerce the Schools to provide a health plan that acts as the conduit for coverage of such “education and counseling,” in the form of promised payments for such education and counseling by the Schools’ insurer or third-party administrator.
The conduct required by the Mandate, facilitating access to educational programs for abortifacients and the products themselves that Plaintiffs strongly object to on religious grounds, and explicitly contracting and arranging for coverage of objectionable items, is coercive speech that violates Plaintiffs’ freedom under the First Amendment. This speech, and the conduct Plaintiffs must engage in to facilitate this speech, is “inherently expressive,” in two ways. First the Mandate requires Plaintiffs to cover “education and counseling” in favor of items to which they object. Education and counseling are, by definition, kinds of expression, and they include counseling in favor of an item that a doctor has just prescribed as good for the patient. The selfinsurance certification, in turn, is itself a written form of speech, and it explicitly designates a third party to obtain coverage of items to which the self-insured entity objects. Hiring someone, in writing, to do a religiously objectionable thing is inherently expressive.
Second, the Mandate requires the Schools to fund an insurance plan that, under the accommodation, triggers objectionable coverage in the form of speech. The Supreme Court has explained that its compelled speech jurisprudence is triggered when the government forces a speaker to fund objectionable speech. See, e.g., Abood v. Detroit Bd. of Ed., 431 U.S. 209, 23435 (1977) (forced contributions for union political speech); United States v. United Foods, 533 U.S. 405, 411 (2001) (forced contributions for advertising). The Supreme Court recently reaffirmed that “compulsory subsidies for private speech” violate the First Amendment unless they involve a “mandated association” that meets the compelling interest / least restrictive means test. Knox v. Service Employees Intern. Union, 132 S. Ct. 2277, 2289 (2012). Here there is no “mandated association” because the government omits many employers from the Mandate, and the Mandate violates the compelling interest test. Allowing the Mandate in light of Knox would be like allowing half of a company’s employees to not join a union, but still forcing speech-
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objectors to pay the union’s full dues. These factors, and because the Mandate is not a condition on government funding, distinguish this situation from Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47 (2006).
The Court should deny Defendants’ motion to dismiss the Free Speech Clause claim, as well as their motion for summary judgment on that claim.
V. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON-THE SCHOOLS’ DUE PROCESS CLAUSE CLAIM. The Mandate violates the Due Process Clause of the Fifth Amendment because it creates
a blank check for Defendants to discriminatorily create and enforce its “religious” exemptions and accommodations. HHS’s Health Resources and Services Administration is tasked with determining, under the ACA, what groups are sufficiently “religious” to qualify for an exemption, and which ones are not; this unbridled discretion is impermissible under the Due Process Clause.
A law that is so “standardless that it authorizes or encourages seriously discriminatory enforcement” does not comport with due process. United States v. Williams, 553 U.S. 285, 304 (2008); see also FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). If a law is so vague that it “fails to provide a person of ordinary intelligence fair notice of what is prohibited,” it fails to provide constitutional due process. Williams, 553 U.S. at 304. The Affordable Care Act provision underlying the Mandate authorizes Defendants to exempt religious employers, directing the agencies to determine the scope of the exemption. 42 U.S.C. § 300gg-13; see also 76 Fed. Reg. at 46,623. This statutory authority is unfettered, as HRSA is tasked with determining the entire scope of the religious exemption, without any statutory guidance, and has the authority to determine the “level of religiosity” required to satisfy an exemption.
Furthermore, there is absolutely no limit on HRSA deciding whether or not contraception, abortifacients, related education and counseling, and other services are preventive
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in the first place—the statute itself does not define what qualifies as “preventive service.” Section 2713 of the ACA contains no standards regarding these decisions, and offers absolutely no guidance as to who counts as “religious” for purposes of the exemption and what kind of accommodation such objectors could receive, despite the fact that such an exemption implicates constitutional rights. Section 2713 is therefore a quintessential law so “standardless that it authorizes or encourages seriously discriminatory enforcement.” The statute practically invites discriminatory and unconstitutional enforcement—which is exactly what Defendants have done in this case.
The government has decided to take plain requirements of the Affordable Care Act and issue unilateral waivers, delays, and exemptions from those requirements without the authority of the Act or Congress. (See, e.g., the one year delay in reporting requirements for large employers to provide health coverage to their employees, IRS Notice 2013-45, Jul. 9, 2013, available at http://www.irs.gov/pub/irs-drop/n-13-45.pdf, and the declaration that Congress will not be ejected from the subsidies provided in the Federal Employees’ Health Benefits Program as the Affordable Care Act requires, IRS Notice 2013-45, Jul. 9, 2013, available at http://www.irs.gov/pub/irs-drop/n-13-45.pdf; OPM BAL 13-207, Sep. 30, 2013, available at http://www.opm.gov/retirement-services/publications-forms/benefits-administrationletters/2013/13-207.pdf; ACA § 1312(d)(3)(D), 42 U.S.C. § 18032(d)(3)(D)). The Executive Branch’s picking and choosing which parts of the Affordable Care Act to enforce, while refusing to give exemptions from this Mandate to the Schools, constitute an exercise of unfettered and illegal discretion under the Due Process Clause.
VI. THIS COURT SHOULD NEITHER DISMISS—NOR GRANT DEFENDANTS SUMMARY JUDGMENT ON—THE SCHOOLS’ ADMINISTRATIVE PROCEDURE ACT CLAIMS. A. Defendants Refused Meaningfully To Consider Objections Before the Mandate Was Finalized.
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The Mandate violates the Administrative Procedure Act (APA) because the agencies failed meaningfully to consider submitted comments. Defendants cannot meaningfully consider comments where, before the comment period even began in 2011, the government argued that the Mandate must exist in final form as of that date in order to deliver free contraceptives to college women by 2012. Defendants essentially admitted that they never had any intention of seriously considering any comments submitted in the comment periods following August 2011. After adopting that 2011 rule “without change” in 2012, the government went on to propose changes that were exactly the subject of comments they were supposed to have considered in 2011. If the government had meaningfully considered comments from the August 2011 interim final rule comment period, it would not have changed the rule from its August 2011 form, and not acted—as it still does today—as if the rule were final in August 2011.
B. The Mandate Is Arbitrary and Capricious. The Mandate is “arbitrary and capricious” under 5 U.S.C. § 706(2)(A) and thus violates the APA. The Mandate’s unwillingness to exempt entities like the Schools, in light of its exemption of integrated auxiliaries, is arbitrary and capricious. The Mandate’s rationale for doing so—that integrated auxiliaries are likely to employ people of the same faith—applies no less to the Schools. Therefore, the refusal to exempt the Schools is unjustified. The statutory language that Defendants lifted from the tax code relates merely to which non-profit entities must file informational returns with the IRS. That language and the reason it exists has nothing whatsoever to do with whether an entity’s employees should or should not receive abortifacient coverage in violation of the employer’s religious beliefs. Using that language in this context is no less arbitrary than if Defendants randomly selected a distinction in the criminal code and superimposed it as a reason to exempt some religious entities from the Mandate but not others. The Mandate also fails to “articulate a satisfactory explanation for [their] action” in dismissing the comments reflecting religious liberty concerns. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Defendants ignored the fact that the
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Schools and thousands of other similar organizations object not merely to paying for, contracting for, or arranging for the coverage, but also to facilitating objectionable coverage under accommodation. In addition, Defendants ignored the requirement that there be “compelling” evidence “of causation” and not merely “correlation” between the government’s objective and the means chosen to achieve it. Defendants’ own evidence reveals that there is no causal connection between lacking contraceptive coverage and suffering health consequences. See Brown v. Entm’t Merchs. Ass’n, 131 S. Ct 2729, 2738-39 (2011).
C. The Mandate is Contrary to Law. The APA forbids agency action from being contrary to law and constitutional right. 5 U.S.C. § 706(2)(A) & (B). See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 41517 (1971). As discussed above, the Mandate violates RFRA and the First Amendment. Defendants fail to acknowledge this aspect of the Schools’ claims, alleging only that the regulations do not violate federal restrictions regarding abortion, including the ACA, the Weldon Amendment, the Church Amendment. The Mandate violates the ACA itself by being without statutory authorization. 42 U.S.C. § 300gg-13 only authorizes preventive services coverage through an entity’s insurance plan. But Defendants’ “accommodation” insists that the Schools’ plans will not include the abortifacient coverage, while purporting to force their insurer/third-party administrator to provide payments for Mandated items “separate” from the Schools’ plans. If the payments are truly separate, 42 U.S.C. § 300gg-13 does not authorize Defendants to require them. If § 300gg-13 authorizes the requirement, they are not separate from the Schools’ health plan, and Defendants’ “attenuation” arguments are untenable. The ACA is not a blank check for the executive branch to do whatever it wants in connection to health insurance without regard to what the statute actually says. And 42 U.S.C. § 300gg-13 does not give Defendants roving authority to force entities to provide abortifacient coverage or payments outside of an employer’s plan.
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CONCLUSION
For the foregoing reasons, the Schools respectfully request that this Court deny
Defendants’ motion to dismiss or, in the alternative, for summary judgment.
Respectfully submitted, this 7th day of February, 2014.
/s/ Gregory S. Baylor_____________________ Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman* (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
David A. Cortman* (Georgia Bar No. 188810) 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* (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
Jeff W. Wright (Iowa Bar No. AT0008716) Daniel D. Dykstra (Iowa Bar No. AT0002182) HEIDMAN LAW FIRM 1128 Historic Fourth Street P.O. Box 3096 Sioux City, IA 51102 (712) 255-8838 (712) 258-6714 (facsimile)
Carole D. Bos* (Michigan Bar No. P33638) BOS & GLAZIER 990 Monroe, N.W.
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Grand Rapids, MI 49503 (616) 458-6814 (616) 459-8614 (facsimile) cbos@bosglazier.com Attorneys for Plaintiffs *Motion to appear pro hac vice to be submitted
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CERTIFICATE OF SERVICE I hereby certify that on February 7, 2014, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record.
s/ Gregory S. Baylor 
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

DORDT COLLEGE and CORNERSTONE UNIVERSITY,

Plaintiffs,

No. 5:13-cv-04100- MWB

vs.

KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services; THOMAS E. 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,

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATEMENT OF
MATERIAL FACTS

Defendants.

____________________

Pursuant to Local Civil Rule 56(b)(2), Plaintiffs Dordt College and Cornerstone University, by and through their undersigned attorneys, submit the following objections and responses to Defendants’ Statement of Material Facts in Support of their Motion for Summary Judgment.
1. Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111148, 124 Stat. 119 (2010), due largely to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTATIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”), AR at 317-18, 407.
RESPONSE: Disputed and unsupported. To the extent Defendants refer to preventive services generally, this statement is immaterial, as Plaintiffs challenge only the aspects of the preventive service requirements regarding a subset (abortifacients and related counseling) of “FDAapproved contraceptive methods and contraceptive counseling.” To the extent that Defendants are suggesting that “preventive services,” in the context of their assertion, include abortifacient drugs
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and devices, or even “contraceptive services” more generally, the pages of the IOM Report Defendants cite do not support their assertion.
The only related statement in these pages is a single survey “indicat[ing] that less than half of women are up to date with recommended preventive care screenings and services (Robertson and Collins, 2011).” IOM REP. at 20. That survey, however, did not consider contraceptive coverage to be “preventive care.” Rather, “[t]he survey asked women whether they had received a set of recommended preventive screening tests: blood pressure, cholesterol, cervical cancer, colon cancer (for ages 50 to 64) and breast cancer (for ages 50 to 64) screens.” See Robertson & Collins, Women at risk: Why increasing numbers of women are failing to get the health care they need and how the Affordable Care Act will help, in Realizing Health Reform’s Potential (2011), at 8-9. Similarly, the only study referenced in the cited IOM pages actually relating to contraception does not discuss rates of women’s use of contraceptive services; rather, it analyzes women who already use some type of contraception, but decided to switch to another type. See IOM REP. at 119.
2. Section 1001 of the ACA requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).
RESPONSE: Undisputed that the quoted text appears in Section 1001 of the ACA, but Section 1001 of the ACA is a provision of law, not a statement of fact.
3. Because there were no existing HRSA guidelines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) tasked the Institute of Medicine (IOM) with developing recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300.
RESPONSE: Disputed. Plaintiffs do not dispute that HHS tasked IOM with developing recommendations to implement the requirement to provide coverage, without costsharing, of preventive services for women, but dispute the propriety of HHS delegating its authority for creating preventive care guidelines to IOM, the impartiality of the IOM committee
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that was formulated to recommend preventive care guidelines, the methods the IOM committee employed to take on this task, and the recommendations the IOM offered. Specifically, HHS outsourced its deliberations to the IOM, which in turn created a “Committee on Preventive Services for Women” that invited presentations from several “pro-choice” groups, such as Planned Parenthood and the Guttmacher Institute (named for a former president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization. See IOM REP. at 218-19.
In addition, “[t]he Report acknowledges” that it suffered from an “unacceptably short time frame for the [ ] committee to conduct or solicit meaningful reviews of the evidence associated with the preventive nature of the services considered,” IOM Rep. at 231-32. Further, “the committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.” Id. at 232. Ultimately, “the committee erred [in] their zeal to recommend something despite the time constraints and a far from perfect methodology” and “failed to demonstrate [transparency and strict objectivity] in the Report.” Id. at 232-33. The “evidence evaluation process [was] a fatal flaw of the Report.” Id. at 233.
4. After conducting an extensive science-based review, IOM recommended that HRSA guidelines include, among other things, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10-12, AR at 308-10.
RESPONSE: Undisputed that the quoted text appears in the IOM Report, but disputed that the IOM’s review was “extensive” and “science-based.” See Response to Paragraph 3, above. Plaintiffs incorporate herein their response to Paragraph 3, supra.
5. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105, AR at 403.
RESPONSE: Undisputed, but incomplete. FDA-approved contraceptive methods
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also include, inter alia, sterilization. See IOM REP. at 104-05. Further, as stated in Plaintiffs’ response to paragraph 60 infra, emergency contraceptives (such as Plan B and ella) can also act as abortifacients.
6. Coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.
RESPONSE: Disputed and unsupported. The pages of the IOM Report that Defendants cite do not support this assertion. The only related points in these pages are references to (1) another IOM report observing, without citation, that “[p]rogress in reducing unintended pregnancies will require not only making contraceptive methods more available, accessible, and acceptable through improved services, but also the development of new methods that meet additional needs,” see Inst. of Med., Women’s Health Research: Progress, Pitfalls, and Promise (2010), at 147; and (2) two studies that observed that increased rates of contraceptive use by unmarried women and adolescents, respectively, were associated with decreased rates of unintended pregnancies. IOM REP. at 105. Neither the referenced IOM report nor the cited studies discussed coverage of contraception (much less the abortifacients to which Plaintiffs object) without cost sharing at all, let alone that coverage without cost-sharing is necessary for increasing access to these services and thereby reducing the rate of unintended pregnancies and promoting healthy birth spacing, or that requiring religious organizations to provide such coverage is a necessary means to either of those ends.
7. On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, encompassing all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider, subject to an exemption relating to certain religious employers authorized by regulations issued that same day (the “2011 amended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84.
RESPONSE: Undisputed.
8. To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
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(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and (4) the organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
RESPONSE: Undisputed, but this is a provision of law, not a statement of fact.
9. Group health plans established or maintained by religious employers (and associated group health insurance coverage) are exempt from any requirement to cover contraceptive services consistent with HRSA’s guidelines. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84; 45 C.F.R. § 147.131(a).
RESPONSE: This is a disputed proposition of law, not a statement of fact
10. In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 amended interim final regulations while also creating a temporary enforcement safe harbor for non-grandfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14.
RESPONSE: Undisputed.
11. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215.
RESPONSE: Undisputed that the government undertook new rulemaking, but
disputed that the new rulemaking in fact accommodated non-grandfathered non-profit religious
organizations’ religious objections to covering contraceptive services.
12. The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,870, AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21, 2012) (Advance Notice of Proposed Rulemaking (ANPRM)), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.
RESPONSE: Undisputed, but Plaintiffs incorporate herein their response to Paragraph
11, supra, with respect to what “that process” is.
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13. Under the 2013 final rules, a “religious employer” is “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended,” which refers to churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a).
RESPONSE: This is an undisputed proposition of law, not a statement of fact.
14. The changes made to the definition of religious employer in the 2013 final rules ensure “that an otherwise exempt plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer hires or serves people of different religious faiths.” 78 Fed. Reg. at 39,874, AR at 6.
RESPONSE: Undisputed that the quoted text appears in the 2013 final rules, but the statement itself is disputed. The “religious employer” exemption for groups that are “referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code” includes only (i) “churches, their integrated auxiliaries, and conventions or associations of churches,” and (iii) “the exclusively religious activities of any religious order.” 78 Fed. Reg. at 39,871. To qualify as an exempt “integrated auxiliary,” an entity must be “internally supported.” See Rev. Proc. 86-23, 1986-20 I.R.B. 17 (1986); T.D. 8640 (Dec. 20, 1995). One aspect of the “internally supported” test includes determining if an organization offers admissions, services, or products for sale to the general public, i.e., non-Christians. See Treas. Reg. § 1.6033-2(h)(7), Example 3, in App. Thus, serving people of different faiths can remove an organization’s status as an exempt religious employer. Further, Defendants rationalize the distinction they draw between entities qualifying as “religious employers” and non-exempt religious organizations based on speculation that “religious employers” employ people of the same faith: “With respect to the religious employer exemption, houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people who are of the same faith.” 78 Fed. Reg. at 39,887.
15. The 2013 final rules establish accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations” (and group health insurance coverage provided in connection with such plans). Id. at 39,875-80, AR at 7-12; 45 C.F.R. § 147.131(b)
RESPONSE: This is a disputed proposition of law, not a statement of material fact.
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While Defendants purport to have established an “accommodation” regarding contraceptive coverage for certain religious “eligible organizations,” that so-called “accommodation” does not resolve Plaintiffs’ religious objections and still requires Plaintiffs to facilitate access to products and services the use of which is antithetical to Plaintiffs’ mission and beliefs.
16. An “eligible organization” is an organization that satisfies the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies.
45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. RESPONSE: This is an undisputed proposition of law, not a statement of material
fact.
17. Under the 2013 final rules, an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6.
RESPONSE: This is a disputed proposition of law, not a statement of material fact. The Affordable Care Act compels Plaintiffs to provide their employees a health insurance plan that “provide[s] coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” Affordable Care Act, § 2713(a)(4), codified at 42 U.S.C. § 300gg-13(a)(4). The Health Resources and Services Administration deemed that contraceptives – including the abortifacients to which Plaintiffs object – were among the “additional preventive care” which group health plans must “provide coverage for.” Plaintiffs must either include objectionable abortifacients within their group health plans or invoke the so-called “accommodation” described in Defendants’ July 2,
7
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2013 final rule. In order to invoke the “accommodation,” an employer must certify that it opposes providing coverage for some or all required contraceptive services, that it is organized and operates as a nonprofit entity, and that it holds itself out as a religious organization. It must then deliver that certification to the issuer of its employee health plan. The issuer will then provide to beneficiaries of the employer’s plan “separate payments” for the drugs, devices, and services to which the employer objects. Under this mechanism, Plaintiffs, at a minimum, “arrange” or “refer for” coverage of abortifacients. Plaintiffs’ employees would receive access to the mandated payments only by virtue of their participation in the health plans Plaintiffs choose to offer. See 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(c)(2)(i)(B) (indicating that payments are available only “so long as” Plaintiffs’ employees remain on Plaintiffs’ insurance plans).
18. To be relieved of any such obligations, the 2013 final rules require only that an eligible organization complete a self-certification form stating that it is an eligible organization and provide a copy of that self-certification to its issuer or third party administrator (TPA). Id. at 39,878-79, AR at 10-11.
RESPONSE: This paragraph is argumentative, and is a disputed proposition of law, not a statement of material fact. Plaintiffs incorporate herein their response to Paragraph 17, supra.
19. Its participants and beneficiaries, however, will still benefit from separate payments for contraceptive services made by the issuer or TPA, without cost sharing or other charge. Id. at 39,874, AR at 6.
RESPONSE: Disputed. Plaintiffs do not dispute that the 2013 final rules anticipate that health plan participants and beneficiaries will receive separate payments for abortifacient services made by the issuer or TPA without cost sharing or other charge. But Plaintiffs dispute that abortifacient services are a “benefit”; Plaintiffs believe they are immoral.
20. In the case of an organization with an insured group health plan, the organization’s health insurance issuer, upon receipt of the self-certification, must provide separate payments for contraceptive services to plan participants and beneficiaries for contraceptive services without cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 7-9.
RESPONSE: This is an incomplete proposition of law, not a statement of material
8
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fact. Plaintiffs incorporates herein their responses to Paragraph 17, supra and 21, infra. The
2013 final rules allow third party administrators to “decide not to enter into, or remain in, a
contractual relationship with the eligible organization to provide administrative services for the
plan.” 78 Fed. Reg. at 39,879.
21. In the case if an organization with a self-insured group health plan, the organization’s TPA, upon receipt of the self-certification, must provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan without costsharing, premium, fee, or other charge to plan participants or beneficiaries, or to eligible organization or its plan. See id. At 39,879-80, AR at 12-12
RESPONSE: This is an incomplete proposition of law, not a statement of material
fact. Plaintiffs incorporates herein their responses to Paragraph 17, supra. The 2013 final rules
allow third party administrators to “decide not to enter into, or remain in, a contractual
relationship with the eligible organization to provide administrative services for the plan.” 78
Fed. Reg. at 39,879.
22. Any costs incurred by TPAs will reimbursed through an adjustment to Federallyfacilitates Exchange (FFE) user fees. See id. at 39,880, AR at 12.
RESPONSE: Plaintiffs do not dispute that the cited regulation provides for such
reimbursements.
23. The 2013 final rules generally apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except the amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
RESPONSE: This is an undisputed proposition of law, not a statement of material
fact.
24. The primary predicted benefit of the preventive services coverage regulations is that “individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19.
RESPONSE: This not a statement of fact, but unsupported speculation. Defendants’
regulations are not evidence of the fact asserted, namely, that “individuals will experience
9
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improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” In addition, abortifacient services, unlike other mandated “preventive services,” do not “prevent” disease.
25. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increase access to and utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significant barrier to access to contraception.” (citation omitted)), AR at 5.
RESPONSE: Undisputed that the quoted text appears in the 2013 final rules, but the statement itself is disputed, unsupported, and speculative. Defendants’ regulations are not evidence of the fact asserted, namely, that “expanding coverage and eliminating cost sharing for recommended preventive services, [will] increase access to and utilization of these services, which are not used at optimal levels today.” In addition, the cited page of the Administrative Record in turn cites a study entitled “A Comparison of Contraceptive Procurement Pre- and PostBenefit Change,” which analyzes changes in contraceptive use after the Kaiser Foundation Health Plan in California changed its coverage policy to include universal coverage for contraception. See Postlethwaite, D., et al, 76 Contraception 360 (2007). But, this study provides no support for the government’s assertion that cost sharing is a barrier to contraception. In any event, the sole purpose of the study was to evaluate whether eliminating cost sharing for contraceptive coverage “would lead to a change in the mix of contraceptive methods prescribed and purchased by a large health plan and whether those changes could theoretically result in averting a greater number of unintended pregnancies.” Id. Ultimately, the study concluded that removing cost for contraception “may” result in increased use, not of contraception generally, but of what the study deemed more effective forms of contraception—that is, whether women would switch to a more expensive but perhaps more effective type of contraception if cost were not a concern. Id.
Further, Plaintiffs’ sincerely held Christian beliefs provide that there are no “optimal levels” of the use of abortifacients.
26. Although a majority of employers cover FDA-approved contraceptives, see IOM
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REP. at 109, AR at 407, many women forgo preventive services because of cost-sharing imposed by their health plans, see id. at 19-20, 109, AR at 317-18, 407.
RESPONSE: Disputed, unsupported, and immaterial. The pages of the IOM Report that Defendants cite do not support this assertion. The only related points in these pages are references to studies regarding preventive services other than contraceptive services. See IOM REP. at 19 (discussing women’s use of preventive care, including cancer screenings, dental examinations, mammograms, and Pap smears); id. at 20 (referencing study asking women whether they had received a set of recommended preventive screening tests that did not include contraceptive services: blood pressure, cholesterol, cervical cancer, colon cancer (for ages 50 to 64) and breast cancer (for ages 50 to 64) screens); id. at 109 (mentioning research on preventive and primary care services in general). The one study mentioned that touches on contraceptive services examined women who were already taking contraception and the likelihood that they would switch to another method in light of reduced or eliminated out-of-pocket costs.
In fact, more than 89 percent of insurance plans “cover[ed] contraceptive methods in 2002.” IOM REP. at 109. Further, 89% of women trying to avoid pregnancy are already practicing contraception. See Guttmacher Institute, “Fact Sheet: Contraceptive Use in the United States," (Aug. 2010), available at http://www.guttmacher.org/pubs/fb_contr_use.html. Among the other 11%, lack of access is not a statistically significant reason why they do not use contraceptives. Mosher WD and 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, available at http://www.cdc.gov/NCHS/data/series/sr_23/sr23_029.pdf. Even among the most at-risk populations, cost is not the reason those women do not use contraceptives. See R. Jones, J. Darroch and S.K. Henshaw “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); see also CDC, “Prepregnancy Contraceptive Use Among Teens with Unintended Pregnancies Resulting in Live Births — Pregnancy Risk Assessment Monitoring System (PRAMS), 2004–2008,” Morbidity and Mortality Weekly
11 Case 5:13-cv-04100-MWB Document 35-1 Filed 02/07/14 Page 11 of 23

Report

61(02);25-29

(Jan.

20,

2012),

available

at

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6102a1.htm?s_cid=mm6102a1_e, (2012 CDC

study showed that even among those most at risk for unintended pregnancy, only 13% cite cost as

a reason for not using contraception).

Moreover, Defendants have admitted that “85 percent of employer-sponsored health

insurance plans cover[] preventive services,” and that they do so “without [beneficiaries] having

to meet a deductible,” 75 Fed. Reg. at 41,732—in other words, without a significant form of cost

sharing.

27. Unintended pregnancies have proven in many cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4.
RESPONSE: Disputed and unsupported. Defendants’ regulations are not evidence of
the fact asserted. Plaintiffs incorporates herein their response to Paragraph 24, supra.

28. Unintended pregnancy may delay “entry into prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02.
RESPONSE: Undisputed, but incomplete. Plaintiffs incorporate herein their response
to Paragraph 24, supra.

29. Contraceptive coverage further helps to avoid “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small-for-gestational age births.”) (citing studies), AR at 4.
RESPONSE: Disputed and unsupported. The pages of the IOM Report that
Defendants cite do not support their assertion. Also, Defendants’ regulations are not evidence of
the fact asserted. Furthermore, the quoted text does not bear on whether contraceptive coverage,
much less abortifacient coverage, has any impact on the incidence of the referenced negative
consequences of short interpregnancy intervals. In addition, Plaintiffs incorporate herein their
response to Paragraph 24, supra.

30. Contraceptives also have medical benefits for women who are contraindicated for pregnancy, and there are demonstrative preventive health benefits from contraceptives relating to conditions other than pregnancy (for example, prevention of certain cancers, menstrual disorders,
12

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and acne).” 78 Fed. Reg. at 39,872, AR at 4; see also IOM REP. at 103-04 (“[P]regnancy may be contraindicated for women with serious medical conditions such as pulmonary hypertension . . . and cyanotic heart disease, and for women with the Marfan Syndrome.”), AR at 401-02.
RESPONSE: Undisputed that the quoted text appears in the 2013 final rules, but the statement itself is disputed, unsupported, and immaterial. Defendants’ regulations are not evidence of the fact asserted. Furthermore, “contraceptive methods have both risks and benefits,” negative consequences of which range from “side effects” to death. IOM REP. at 105-06. And, “[f]or women with certain medical conditions or risk factors, some contraceptive methods may be contraindicated.” Id. at 105. Plaintiffs also incorporate herein their response to Paragraph 24, supra. In addition, Plaintiffs have no objection to (and this case is not about) the use of conventional, non-abortifacient contraceptives.
31. “[W]omen have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) (statement of Sen. Feinstein); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 19, AR at 317.
RESPONSE: Undisputed that the quoted text appears in the Congressional Record, but the statement itself is disputed and unsupported. Defendants’ self-serving selection of the legislative history of the statute, individual Congresspersons’ statements, or Defendants’ own regulations do not provide evidentiary support for the underlying factual statement.
The statement also has no bearing on the utilization of contraceptive services, much less abortifacient services at all. Likewise, Defendants’ citation to the IOM Report provides support only for the general proposition that some women have significant health care expenses, including paying for prescriptions for themselves and their families and paying for screening and preventive services entirely unrelated to abortifacients. See IOM REP. at 19.
32. These costs result in women often forgoing preventive care and place women in the workforce at a disadvantage compared to their male coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 20, AR at 318.
RESPONSE: Disputed and unsupported. Defendants’ self-serving selection of the legislative history of the statute, individual Congresspersons’ statements, or Defendants’
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regulations does not provide evidentiary support for the underlying factual statement. The statement also has no bearing on the utilization of abortifacient services at all.
Additionally, Defendants’ citation to the IOM Report provides support only for the general proposition that some women have difficulty paying medical bills and for screening and preventive services unrelated to abortifacients, while also noting that women are more likely than men to be dependents on a health care plan, which is irrelevant to their participation in the workforce. See IOM REP. at 20.
33. The grandfathering of certain health plans with respect to certain provisions of the ACA is not specifically limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140.
RESPONSE: This is an incomplete statement of law, not a statement of material fact. While the grandfathering provisions may not be specifically limited to excluding the ACA’s preventive services coverage requirements, Defendants themselves highlighted in the regulations that grandfathered health plans are not subject to the preventive services coverage requirements. Specifically, Defendants’ model disclosure to plan beneficiaries provides that “[b]eing a grandfathered health plan means that your [plan or policy] may not include certain consumer protections of the Affordable Care Act that apply to other plans, for example, the requirement for the provision of preventive health services without any cost sharing.” 45 C.F.R. § 147.140(a)(2)(ii). In other words, grandfathered health plans are exempt from the preventive services coverage regulations regardless of whether that is the only provision of the ACA for which they can avoid compliance.
34. The effect of grandfathering is not really a permanent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preventive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, App. at 19.
RESPONSE: Disputed, unsupported, and speculative. Defendants’ regulations are not evidence of the fact asserted. At any rate, Defendants have acknowledged in their own regulations that grandfathered health plans are “exempt” from provisions of the ACA, including
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the preventive services coverage provision. See, e.g., 75 Fed. Reg. 70,114, 70,117 (Nov. 15, 2010) (“Because grandfathered health plans are exempt from many of [the provisions of the Affordable Care Act] while group health plans and group and individual health insurance coverage that are not grandfathered health plans must comply with them, it was critical for plans and issuers to receive clear guidance as to whether they were so exempt as soon as possible”); 75 Fed. Reg. 34,538, 34,545 (June 17, 2010) (“Grandfathered health plans are exempt from many of these provisions while group health plans and group and individual health insurance coverage that are not grandfathered health plans must comply with them.”); HHS, Grandfathered Plans, available at http://www.hhs.gov/healthcare/insurance/grandfather/, (“The Affordable Care Act exempts most plans that existed on March 23, 2010 — the day the law was enacted — from some of the law’s consumer protections.”).
In addition, the predicted “majority of group health plans [that] will lose their grandfathered status by the end of 2013” is a bare majority, leaving 49% still possessing grandfathered status. 75 Fed. Reg. at 34,553. Defendants’ data further estimates that a majority of “large employer” group health plans will still possess grandfathered status by the end of 2013. Id. Because 49% of total group health plans and 55% of large employer group health plans are predicted to maintain grandfathered status through the end of 2013, and because twice as many people are in large group health plans as are in small ones, Defendants’ data predicts that a majority of total persons covered by group health plans (large and small) will be in grandfathered health plans through the end of 2013. 75 Fed. Reg. at 34,550, 34,553. And, as Defendants’ own estimates acknowledge, “[m]ost of the 133 million Americans with employer-sponsored health insurance through large employers will maintain the coverage they have today,” i.e., will retain grandfathered health coverage. HHS, U.S. Departments of Health and Human Services, Labor, and Treasury Issue Regulation on “Grandfathered” Health Plans under the Affordable Care Act, available at http://www.hhs.gov/news/press/2010pres/06/20100614e.html (June 14, 2010).
Further, the grandfathering exclusion has no sunset provision; a health plan has a “right” to keep its grandfathered status. 75 Fed. Reg. at 34,540, 34,558, 34,562, 34,566. A health plan
15 Case 5:13-cv-04100-MWB Document 35-1 Filed 02/07/14 Page 15 of 23

can maintain its grandfathered status indefinitely while increasing costs to employees if it stays
within the parameters of Defendants’ regulations for grandfathered plans. 75 Fed. Reg. at
34,538. Indeed, Defendants’ assertion contradicts the President’s promise that “if you like your
plan, you can keep it.”
35. Even under the grandfather provision, more group health plans will transition to the requirements under the regulations as time goes on. See 75 Fed. Reg. 34,538, 34,552 (June 17, 2010); see also Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190 (indicating that 58 percent of firms had at least one grandfathered health plan in 2012, down from 72 percent in 2011, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in 2011), AR at 663-64, 846.
RESPONSE: Disputed and unsupported. Plaintiffs incorporate herein their response
to Paragraph 33, supra.
36. 26 U.S.C. § 4980H(c)(2) does not exempt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 78 Fed. Reg. at 39,887 n.49, AR at 19.
RESPONSE: This is a disputed proposition of law, not a statement of material fact.
While small employers are technically required to provide coverage for recommended preventive
services, Defendants have permanently exempted them from some of the Mandate’s enforcement
mechanisms. See, e.g., 26 U.S.C. §§ 4980H(a), 4980H(c)(2)(A). These small employer plans
cover about 20 to 40 million employees and dependents. See U.S. Census Bureau, Employment
Size of Firms, www.census.gov/econ/smallbus.html,
37. Instead, it excludes employers with fewer than fifty full-time equivalent employees from the employer responsibility provision, meaning that, starting in 2015, such employers are not subject to the possibility of assessable payments if they do not provide health coverage to their full-time employees and their dependents. See 26 U.S.C. § 4980H(c)(2).
RESPONSE: This is a disputed proposition of law, not a statement of material fact.
Plaintiffs incorporate herein their response to Paragraph 36, supra.
38. Small businesses that do offer non-grandfathered health coverage to their employees are required to provide coverage for recommended preventive services, including contraceptive services, without cost-sharing. 78 Fed. Reg. at 39,887 n.49, AR at 19.
RESPONSE: This is an incomplete statement of a proposition of law, not a statement
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of material fact. While small employers are technically required to provide coverage for
recommended preventive services, Defendants have permanently exempted them from some of
the Mandate’s enforcement mechanisms. See, e.g., 26 U.S.C. §§ 4980H(a), 4980H(c)(2)(A).
These small employer plans cover about 20 to 40 million employees and dependents. See U.S.
Census Bureau, Employment Size of Firms, www.census.gov/econ/smallbus.html,
39. The ACA provides tax incentives for small businesses to encourage the purchase of health insurance. See 26 U.S.C. § 45R.
RESPONSE: This is an undisputed proposition of law, not a statement of material
fact.
40. Even if a small business were to choose not to offer health coverage, employees of such business could get health insurance coverage that is facilitated by other ACA provisions—primarily those establishing both small group market and individual market health insurance exchanges and those establishing tax credits to make the purchase of coverage through such exchanges more affordable—and the coverage they receive through such exchanges will include coverage of all recommended preventive services, including contraception. See 78 Fed. Reg. at 39,887 n.49, AR at 19.
RESPONSE: Undisputed.
41. The only exemption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131 (a).
RESPONSE: This is a disputed proposition of law, not a statement of material fact.
As set forth in above, grandfathered health plans are exempt from the preventive service
coverage requirements of the ACA, and small employers are exempt from some of the Mandate’s
enforcement mechanisms.
42. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, AR at 6.
RESPONSE: Disputed and unsupported. Defendants’ regulations are not evidence of
the fact asserted, and this statement is pure speculation. In addition, there is no evidentiary basis
for the conclusion that individuals who work for entities like the Schools are more likely not to
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object to the use of abortifacients and therefore are more likely to use abortifacients.
43. Congress did not adopt a single (government) payer system financed through taxes and instead opted to build on the existing system of employment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010).
RESPONSE: Undisputed.
44. Defendants are constrained by statute from adopting the alternative administrative schemes proposed by plaintiffs. See 78 Fed. Reg. at 39,888, AR at 20
RESPONSE: This is a disputed proposition of law, not a statement of material fact.
Defendants’ regulations are also not evidence of the fact asserted.
45. Plaintiffs’ proposed alternatives are not feasible because they would impose considerable new costs and other burdens on the government and would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20.
RESPONSE: This is disputed proposition of law, not a statement of material fact.
Defendants’ regulations are not evidence of the fact asserted.
46. Nor would the proposed alternatives be equally effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20.
RESPONSE: This is a disputed proposition of law, not a statement of material fact.
Defendants’ regulations are also not evidence of the fact asserted.
47. Plaintiffs’ alternatives would require establishing entirely new government programs and infrastructures or fundamentally altering an existing one, and would require women to take burdensome steps to find out about the availability of and sign up for a new benefit, thereby ensuring that fewer women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20.
RESPONSE: This is argumentative and a disputed proposition of law, not a statement
of material fact. Defendants’ regulations are also not evidence of the fact asserted
48. The regulations explicitly prohibit issuers and TPAs from imposing any costsharing, premium, fee, or other charge on plaintiffs or their plan with respect to the separate payments for contraceptive services made by the issuer. See 78 Fed. Reg. at 39,880, AR at 12.
RESPONSE: This is a disputed proposition of law, not a statement of material fact.
Defendants’ regulations are also not evidence of the fact asserted.
49. The regulations simply require coverage of “education and counseling for women with reproductive capacity.” HRSA Guidelines, AR at 130-31.
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RESPONSE: This is a disputed proposition of law, not a statement of material fact. Defendants’ regulations are also not evidence of the fact asserted.
50. Defendants issued the ANPRM on March 21, 2012 and solicited comments on it. 77 Fed. Reg. at 16,501, AR at 186.
RESPONSE: Undisputed.
51. Defendants then considered those comments and issued the NPRM on February 6, 2013, requesting comments on the proposals contained in it. 78 Fed. Reg. at 8457, AR at 166.
RESPONSE: Disputed regarding the extent to which Defendants “considered those comments.”
52. Defendants received over 400,000 comments, and the preamble to the 2013 final rules contains a detailed discussion both of the comments defendants received and of defendants’ responses to those comments. See 78 Fed. Reg. at 39,871-39,888, AR at 3-20.
RESPONSE: Disputed as to whether Defendants’ discussion of the comments and their response thereto is “detailed.”
53. The ACA requires only that there be a minimum interval of not less than one year between the date on which a recommendation or guideline is issued and the plan year for which the coverage of the services included in that recommendation or guideline must take effect. See 42 U.S.C. § 300gg-13(b); 75 Fed. Reg. at 41,729, AR at 229.
RESPONSE: This is a disputed proposition of law, not a statement of material fact. Defendants’ regulations are also not evidence of the fact asserted.
54. The HRSA Guidelines were published on August 1, 2011, and these regulations apply for plan years beginning on or after January 1, 2014. HRSA Guidelines, AR 283-84; 78 Fed. Reg. at 39,870, AR at 2.
RESPONSE: Undisputed as to when the HRSA Guidelines were posted on its website. The remainder is a disputed proposition of law, not a statement of fact.
55. Section 1303(b)(1) of the ACA provides that “nothing in this title . . . shall be construed to require a qualified health plan to provide coverage of [abortion services].” 42 U.S.C. § 18023(b)(1)(A)(i).
RESPONSE: This is an undisputed proposition of law, not a statement of material fact.
19
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56. A “qualified health plan,” within the meaning of this provision, is a health plan that has been certified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance issuer. 42 U.S.C. § 18021(a)(1).
RESPONSE: This is an undisputed proposition of law, not a statement of material
fact.
57. Plaintiffs are neither health insurance issuers nor purchasers of qualified health plans.
RESPONSE: This is an undisputed proposition of law, not a statement of material fact.
58. The Weldon Amendment denies funds made available in the Consolidated Appropriations Act of 2012 to any federal, state, or local agency, program, or government that “subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Pub. L. No. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011).
RESPONSE: This is an incomplete statement of a proposition of law, not a statement
of material fact. The Weldon Amendment defines the term “health care entity” to include “a
health insurance plan.” See Pub. L. No. 112-74, § 507(d)(2) (2011), in App
59. The Church Amendment protects individuals from being required to “perform or assist in the performance of any part of a health service program or research activity funded . . . by the Secretary of Health and Human Services if his performance or assistance . . . would be contrary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(d).
RESPONSE: This is an undisputed proposition of law, not a statement of material
fact.
60. The preventive services covered by the regulations “do not include abortifacient drugs.” HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/ 08/womensprevention08012011a.html (last visited Sept. 27, 2013); see also IOM REP. at 22 (recognizing that abortion services are outside the scope of recommendations), AR at 320.
RESPONSE: This is a disputed proposition of law, not a statement of material fact.
Defendants’ regulations are not evidence of the fact asserted. Further, Ulipristal (trade name
“ella”) is a close analogue to the abortion drug RU-486, with the same biological effect—that is,
it can induce an abortion even after implantation. There is no authoritative agency interpretation
of the term “abortion” in the context of the Weldon Amendment, the Government cites no
statutory definition, no medical definition, and no case interpreting the term in that context.
20
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Stedman’s Medical Dictionary, for example, defines “abortion” as the “[e]xpulsion from the
uterus of an embryo or fetus [before] viability.” STEDMAN’S MEDICAL DICTIONARY 4 (27th ed.
2000) (emphasis added). On this definition, some of the Mandate’s covered services clearly
qualify as “abortion.”
Further, Defendants’ definition of pregnancy and when an abortion occurs is
contradictory with the College’s beliefs on the subject.
61. The list of FDA-approved contraceptives includes emergency contraceptives such as Plan B. See IOM REP. at 105, AR at 403.
RESPONSE: Undisputed that the list of FDA-approved contraceptive includes
emergency contraceptives such as Plan B, but, as stated in Plaintiffs’ response to paragraph 60,
which is incorporated herein, emergency contraceptives (such as Plan B and ella) can also act as
abortifacients.
62. The basis for the inclusion of such drugs among safe and effective means of contraception dates back to 1997, when the FDA first explained why Plan B and similar drugs act as contraceptives rather than abortifacients. See Prescription Drug Products; Certain Combined Oral Contra for Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997) (noting that “emergency contraceptive pills are not effective if the woman is pregnant” and that there is “no evidence that [emergency contraception] will have an adverse effect on an established pregnancy”); 45 C.F.R. § 46.202(f) (“Pregnancy encompasses the period of time from implantation until delivery.”).
RESPONSE: Disputed and unsupported. The cited regulation does not support this
assertion. Namely, it does not describe “[t]he basis for the inclusion of [emergency
contraceptives] among safe and effective means of contraception.” In addition, Defendants’
regulations are not evidence of the fact asserted.
63. In light of this conclusion by the FDA, HHS informed Title X grantees, which are required to offer a range of acceptable and effective family planning methods—and, except under limited circumstances, may not offer abortion—that they “should consider the availability of emergency contraception the same as any other method which has been established as safe and effective.” Office of Population Affairs, Memorandum (Apr. 23, 1997), http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Sept. 27, 2013); see also 42 U.S.C. §§ 300, 300a-6.
RESPONSE: Undisputed that the HHS so informed Title X grantees, but the truth of
21
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the underlying assertions is disputed.
64. Representative Weldon, the sponsor of the Weldon Amendment, did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of contraceptive services has never been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as the morning-after pill. . . . [U]nder the current FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”).
RESPONSE: Disputed and unsupported. Defendants’ self-serving selection of the
legislative history of the statute or individual Congresspersons’ statements does not provide
evidentiary support for the underlying factual statement. “What motivate[d] one legislator to
make a speech about a statute [in 2002] is not necessarily what motivate[d] scores of others to
enact it” in 2012. United States v. O’Brien, 391 U.S. 367, 384 (1968); see also Barnhart v.
Sigmon Coal Co., Inc., 534 U.S. 438, 457 n.15 (2002) (rejecting reliance on floor statements);
Further, as stated in Plaintiffs’ response to paragraph 60, incorporated herein, emergency
contraceptives (such as Plan B and ella) can also act as abortifacients.
Respectfully submitted, this 7th day of February, 2014.
/s/ Gregory S. Baylor_____________________ Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman* (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
David A. Cortman* (Georgia Bar No. 188810) 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* (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM
22
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15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org Jeff W. Wright (Iowa Bar No. AT0008716) Daniel D. Dykstra (Iowa Bar No. AT0002182) HEIDMAN LAW FIRM 1128 Historic Fourth Street P.O. Box 3096 Sioux City, IA 51102 (712) 255-8838 (712) 258-6714 (facsimile) Carole D. Bos* (Michigan Bar No. P33638) BOS & GLAZIER 990 Monroe, N.W. Grand Rapids, MI 49503 (616) 458-6814 (616) 459-8614 (facsimile) cbos@bosglazier.com Attorneys for Plaintiffs
*Motion to appear pro hac vice to be submitted
CERTIFICATE OF SERVICE The undersigned attorney for Plaintiffs, Gregory S. Baylor, hereby certifies that counsel for Defendants were served with the preceding document by the Court’s electronic filing system.
/s/ Gregory S. Baylor_____________________ Gregory S. Baylor
23 Case 5:13-cv-04100-MWB Document 35-1 Filed 02/07/14 Page 23 of 23

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

)

DORDT COLLEGE and CORNERSTONE UNIVERSITY,

) ) )

Plaintiffs,

) )

v.

) )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States

)

Department of Health and Human Services, et al.,

) ) )

Defendants.

)

)

Case No. 5:13-cv-04100-MWB

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Case 5:13-cv-04100-MWB Document 12-3 Filed 01/10/14 Page 1 of 51

TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 4
STANDARD OF REVIEW ............................................................................................................ 9
ARGUMENT .................................................................................................................................. 9
I. Plaintiffs’ Claims Lack Merit ................................................................................. 9
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit .... 9
1. The Regulations Do Not Substantially Burden Plaintiffs’ Exercise Of Religion....................................................................... 9
a. The Regulations Impose No More Than A De Minimis Burden On Plaintiffs’ Exercise Of Religion Because The Regulations Require Virtually Nothing Of Plaintiffs............. 11
b. Even If The Regulations Were Found To Impose Some More Than De Minimis Burden On Plaintiffs’ Exercise Of Religion, Any Such Burden Would Be Far Too Attenuated To Be “Substantial” Under RFRA....................... 16
2. Even If There Were A Substantial Burden On Religious Exercise, The Regulations Serve Compelling Governmental Interests And Are The Least Restrictive Means To Achieve Those Interests .............................................................................. 19
a. The Regulations Significantly Advance Compelling Governmental Interests In Public Health And Gender Equality .................................................................................. 19
b. The Regulations Are The Least Restrictive Means Of Advancing The Government’s Compelling Interests............. 24
B. The Regulations Do Not Violate the Free Exercise Clause ...................... 27
C. The Regulations Do Not Violate the Establishment Clause ..................... 30
D. The Regulations Do Not Violate the Right to Free Speech or Expressive Association ............................................................................. 32
E. The Regulations Do Not Violate the Due Process Clause ........................ 35
F. Plaintiffs’ APA Claims Fail ...................................................................... 37
1. The Regulations Were Promulgated In Accordance With The APA ....................................................................................... 37
2. The Regulations Are Neither Arbitrary Nor Capricious............... 38
3. The Regulations Do Not Violate Restrictions Relating To Abortion ........................................................................................ 39
CONCLUSION ..............................................................................................................................42
i
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Cases

TABLE OF AUTHORITIES

Adams v. Comm'r of Internal Revenue, 170 F.3d 173 (3d Cir. 1999) ...................................................................................................... 26

Am. Family Ass'n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004)................................................................................................. 28

Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) ............................................................................................... 28, 29

Annex Medical, Inc. v. Sebelius, 2013 WL 101927 (D. Minn. Jan. 8, 2013) ................................................................................ 17

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................... 9

Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970) .................................................................................................................. 39

Autocam Corp. v. Sebelius, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012),............................................................... passim

Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) ................................................................................................. 28

Barnhart v. Walton, 535 U.S. 212 (2002) .................................................................................................................. 42

Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011)................................................................................................... 42

Bowen v. Roy, 476 U.S. 693 (1986) .................................................................................................................. 12

Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) .................................................................................................................. 35

Braunfeld v. Brown, 366 U.S. 599 (1961) ............................................................................................................ 10, 23

Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013) ...................................................................................... 33

Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ................................................................................................... 19

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

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

Catholic Diocese of Nashville v. Sebelius, 2013 WL 6834375 (M.D. Tenn. Dec. 26, 2013) ................................................................ passim

ii Case 5:13-cv-04100-MWB Document 12-3 Filed 01/10/14 Page 3 of 51

Children's Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ................................................................................................... 31
Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328 (N.D. Ga. 2012)...................................................................................... 15
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ................................................................................................ 22, 23, 27, 28
City of Boerne v. Flores, 521 U.S. 507 (1997) .................................................................................................................. 16
Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752 (7th Cir. 2003) ............................................................................................... 11, 14
Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008) ...................................................................................................... 10
Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013) (same), ..................................................................... passim
Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) .................................................................................................................. 32
Cutter v. Wilkinson, 544 U.S. 709 (2005) .................................................................................................................. 30
Dialysis Ctrs., Ltd. v. Schweiker, 657 F.2d 135 (7th Cir. 1981) ..................................................................................................... 39
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995).......................................................................................... 19
DKT Mem'l Fund, Ltd. v. Agency for Int'l Dev., 887 F.2d 275 (D.C. Cir. 1989)................................................................................................... 38
Droz v. Comm'r of IRS, 48 F.3d 1120 (9th Cir. 1995) ..................................................................................................... 31
Eden Foods v. Sebelius, Civil Action, 2013 WL 1190001 (E.D. Mich. Mar. 22, 2013) .................................................................. 17, 27
Empt. Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872 (1990) .................................................................................................................. 27
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976) .................................................................................................................. 42
Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) ..................................................................................................... 26
Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013) ..................................................................................................... 15
Geneva Coll. v. Sebelius, 2013 WL 838238 (W.D. Penn. Mar. 6, 2013) ........................................................................... 27
iii
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Gillette v. United States, 401 U.S. 437 (1971) ............................................................................................................ 30, 31
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) .................................................................................................................. 23
Gooden v. Crain, 353 F. App'x 885 (5th Cir. 2009) .............................................................................................. 26
Gov't Empls. Ins. Co. v. Benton, 859 F.2d 1147 (3d Cir. 1988) .................................................................................................... 41
Graham v. Comm'r, 822 F.2d 844 (9th Cir. 1987), .................................................................................................... 26
Gray v. Romero, 697 F. Supp. 580 (D.R.I. 1988) ................................................................................................. 40
Grote Indus. v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012)................................................................................. passim
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001)..................................................................................................... 10
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012),................................................................................. 27
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)............................................................................................................... 36
Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42 (2d Cir. 1990) ........................................................................................................ 29
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008)............................................................................................ passim
Korte v. HHS, 912 F. Supp. 2d 735 (S.D. Ill. 2012), ........................................................................................ 27
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) ..................................................................................................... 27
Larson v. Valente, 456 U.S. 228 (1982) ............................................................................................................ 30, 32
Liberty Univ., Inc. v. Lew, 733 F.3d 72 (4th Cir. 2013) ....................................................................................................... 32
Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App'x 729 (6th Cir. 2007)..................................................................................... 14, 15
McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004) ...................................................................................................... 14
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011)............................................................................................. 19
iv
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Mersino Mgmt. Co. v. Sebelius, 2013 WL 3546702 (E.D. Mich. July 11, 2013) ................................................................... 15, 16
Michigan Catholic Conf. v. Sebelius, 2013 WL 6838707 (W.D. Mich. Dec. 27, 2013)................................................................ passim
MK Chambers Co. v. U.S. Dep't of Health & Human Servs.,
2013 WL 1340719 (E.D. Mich. Apr. 3, 2013) .............................................................. 27, 33, 35
Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .................................................................................................................... 38
Murphy v. State of Ark., 852 F.2d 1039 (8th Cir. 1988) ................................................................................................... 25
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989) ..................................................................................................... 26
O'Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012) .............................................................................. passim
Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989)................................................................................................. 30
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) ..................................................................................................... 28
Parker v. Levy, 417 U.S. 733 (1974) .................................................................................................................. 36
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009)................................................................................................... 18
Priests for Life v. HHS, 2013 WL 6672400 (D.D.C. Dec. 19, 2013) ....................................................................... passim
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ............................................................................................................ 21, 35
Roman Catholic Archbishop of Washington v. Sebelius, 2013 WL 6729515 (D.D.C. Dec. 20, 2013) .................................................................. 27, 31, 33
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. ("FAIR"), 547 U.S. 47 (2006) .................................................................................................. 32, 33, 34, 35
S. Ridge Baptist Church v. Indus. Comm'n of Ohio, 911 F.2d 1203 (6th Cir. 1990) ............................................................................................. 23, 26
Sch. Dist. v. Grumet, 512 U.S. 687 (1994) .................................................................................................................. 30
Sharpe Holdings, Inc. v. HHS, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) ........................................................................... 27
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) ...................................................................................................................... 9
v
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Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707 (1981) ............................................................................................................ 10, 14
U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548 (1973) .................................................................................................................. 36
United States v. Amer, 110 F.3d 873 (2d Cir. 1997) ...................................................................................................... 28
United States v. Israel, 317 F.3d 768 (7th Cir. 2003) ..................................................................................................... 24
United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) ..................................................................................................... 26
United States v. Lee, 455 U.S. 252 (1982) .................................................................................................................. 22
United States v. O'Brien, 391 U.S. 367 (1968) .................................................................................................................. 33
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) ..................................................................................................... 24
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ........................................................................................... 24, 26
United States v. Williams, 553 U.S. 285 (2008) .................................................................................................................. 36
United States v. Winddancer, 435 F. Supp. 2d 687 (M.D. Tenn. 2006) ................................................................................... 22
Univ. of Notre Dame v. Sebelius, 2013 WL 6804773 (N.D. Ind. Dec. 20, 2013).................................................................... passim
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) .................................................................................................................. 36
Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006) ............................................................................................... 10, 15
Walz v. Tax Commission of New York, 397 U.S. 664 (1970) .................................................................................................................. 32
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) ...................................................................................................... 14
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007) ...................................................................................................... 15
Federal Statutes
5 U.S.C. § 553............................................................................................................................... 37
26 U.S.C. § 45R ............................................................................................................................ 22
26 U.S.C. § 4980H(c)(2)............................................................................................................... 22
vi
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42 U.S.C. § 300............................................................................................................................. 41 42 U.S.C. § 300a-6........................................................................................................................ 41 42 U.S.C. § 300a-7(d) ................................................................................................................... 40 42 U.S.C. § 300gg-13 ............................................................................................................... 5, 38 42 U.S.C. § 18011......................................................................................................................... 22 42 U.S.C. § 18021(a)(1)................................................................................................................ 39 42 U.S.C. § 18023(b)(1)(A)(i) ...................................................................................................... 39 42 U.S.C. § 2000bb-1 et seq. .................................................................................................... 9, 10 Internal Revenue Code of 1986 § 6033(a) ..................................................................... 6, 7, 31, 36 Federal Regulations 45 C.F.R. § 147.131 ............................................................................................................... passim 45 C.F.R. § 147.140 ...................................................................................................................... 22 45 C.F.R. § 46.202(f) .................................................................................................................... 41 Federal Rules Fed. R. Civ. P. 56(a) ....................................................................................................................... 9 Fed. R. Civ. P. 12(b)(1)................................................................................................................... 9 Fed. R. Civ. P. 12(b)(6)................................................................................................................... 9
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INTRODUCTION Plaintiffs Dordt College and Cornerstone University ask this Court to permanently enjoin regulations that ar e intended to acc ommodate religious exercise while helping to ensure that women have access to health coverage, without cost-sharing, for preventive services that medical experts deem necessary for women’s health and well-being. Subject to an exem ption for houses of worship and their in tegrated auxiliaries, and accommodations for certain o ther non-profit religious organizations, as discussed below, th e regulations require certain group health plans and health insurance issuers to provide coverage , without cost-sharing (such as a copaym ent, coinsurance, or a deductible), for, among other things, all Food and Drug Administration (FDA)approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider. When the contraceptive-coverage requirem ent was first established, in August 2011, certain non-profit religious organi zations objected on religious grounds to having to provide contraceptive coverage in the group health plans they offer to their em ployees. Although, in the government’s view, these organ izations were m istaken to claim that an accommodation was required under the First Am endment or the R eligious Freedom Restoration Act (RFRA), the defendant Departments decided to accommodate the concerns expressed by these organizations. First, they established an exem ption for the gr oup health plans of hous es of worship and their integrated auxiliaries (and any a ssociated group health insuran ce coverage). In addition, they established accommodations for the group health plan s of eligible non-prof it religious organizations, like plaintiffs (and any associated group health insurance c overage), that relieve them of responsibility to contract, arrange, pay, or refer for c ontraceptive coverage or services, but that als o ensure th at the women who part icipate in th ese plans are not denied access to contraceptive coverage without cost-sharing. To be eligib le for an accomm odation, the organization merely needs to certify that it meets the eligibility criteria, i.e., that it is a non-profit organization that holds itself out as religious and has a religious objection to providing coverage for some or all contraceptives. Once the organization certifies that it meets these criteria, it need
1 Case 5:13-cv-04100-MWB Document 12-3 Filed 01/10/14 Page 9 of 51

not contract, arrange, pay, or refer for contracep tive coverage or services. If the organization has third-party insurance—like Cornerstone—the third- party insurer takes o n the re sponsibility to provide contraceptive coverage to the organization’s employees and covered depend ents. If the group health plan of the organization is self-ins ured—like Dordt’s—its third-party administrator (TPA) has responsibility to arrange contraceptiv e coverage for the organization’s em ployees and covered dependents. In neither case does the objecting employer bear the cost (if any) of providing contraceptive coverage; nor does it adm inister such coverage; nor does it contract or otherwise arrange for such coverage; nor does it refer for such coverage.
Remarkably, plaintiffs now declare that th ese accommodations them selves violate their rights under RFRA and the First Am endment. They contend that th e mere act of certifying that they are eligible for an accommodation is a s ubstantial burden on their relig ious exercise because, once they make the certification, th eir employees will be able to obtain contraceptiv e coverage through other parties. Th is extraordinary contention s uggests that plaintiffs not only seek to avoid paying for, adm inistering, or otherwise provid ing contraceptive coverage themselves, but also seek to prevent the wom en who work for their organizations from obtaining such coverage, even if through other parties.
At bottom, plaintiffs’ position seems to be that any as serted burden, no m atter how de minimis, amounts to a substantial burden under RFRA . That is not the law. Congress am ended the initial v ersion of RFRA to add the word “ substantially,” and thus made clear that “any burden” would not suffice. Although these regulat ions require virtually nothing of the m, plaintiffs claim that the regulati ons run afoul of their sincerely held religious beliefs prohibiting them from providing or facilitati ng health coverage for certain c ontraceptive services, and that the challenged regulations violate RFRA, the First and Fifth Am endments, and the Administrative Procedure Act (APA). All of plaintiffs’ claims fail, and thus should be dism issed in their entirety; alternatively, the Court sho uld enter summ ary judgment in favor of the government.
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With respect to plaintiffs’ RFRA claim, plaintiffs cannot establish a substantial burden on their religious exercise—as they must—because th e regulations do not require plaintiffs to change their behavior in any significant way. Plaintiffs are not required to contract, arrange, pay, or refer for contraceptive coverage. To the contrary, plaintiffs are free to continue to refuse to do so, to voice their disapp roval of contraception, and to encourage their employees to refrain from using contraceptive services. Plaint iffs are required only to infor m their issuers/TPAs that th ey object to providing contracep tive coverage, which they have done or would have to do voluntarily even absent these regu lations in order to ensure that that th ey are not responsible for contracting, arranging, paying, or referring for such coverage. Plaintiffs can hardly claim that it is a violation of RFRA to require them to do almost exactly what they would do in the ordinary course. See Priests for Life v. HHS, __ F. Supp. 2d __, 2013 WL 6672400, at *5-10 (D.D.C. Dec. 19, 2013) (addressing these regulations), injunction pending appeal granted , No. 13-5368 (D.C. Cir. Dec. 31, 2013); Univ. of Notre Dame v. Sebelius , __ F. Supp. 2d __, 2013 W L 6804773, at *7-14 (N.D. Ind. Dec. 20, 2013) (same), injunction pending appeal denied, No. 13-3853 (7th Cir. Dec. 30, 2013); Michigan Catholic Conf. v. Sebelius , No. 1:13-CV-1247, 2013 W L 6838707, at *4-8 (W.D. Mich. Dec. 27, 2013) (sam e), injunction pending appeal granted , No. 13-2723 (6th Cir. Dec. 31, 2013).
Furthermore, plaintiffs’ challenge re sts largely on the theo ry that even the extre mely attenuated connection between them and the independent provision by issuers/TPAs of payments for contraceptive services to which plainti ffs object on religious grounds—but for which plaintiffs pay nothing—amounts to a substantial burden on their religious exercise. This cannot be. See Catholic Diocese of Nashville v. Sebelius, No. 3:13-01303, 2013 W L 6834375, at *4-5 (M.D. Tenn. Dec. 26, 2013), injunction pending appeal granted, No. 13-6640 (6th Cir. Dec. 31, 2013) (addressing these regulations). Regardless of how plaintiffs frame their religious beliefs, courts must independently consider whether a given law im poses a substantial burden on those beliefs. See, e.g., Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677, at *6 (W.D. Mich. Dec. 24, 2012), aff’d, 730 F.3d 618 (6th Cir. 2013). The regulations impose, at most, only
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the most de minimis burden on plaintiffs’ religious exercise—one too slight and attenuated to be “substantial” under RFRA, and little different from plaintiffs’ payment of salaries to their employees, which those employees can use to purchase contraceptive services if they so choose.
Moreover, even if the challenged regulations were deemed to impose a substantial burden on plaintiffs’ religious exercise, the regulatio ns would not violate RFRA because they are narrowly tailored to serve two compelling govern mental interests: improving the health of women and newborn children, and equalizing the provision of pr eventive care for wom en and men so that wom en can partic ipate in the work force, and society m ore generally, on an equal playing field with men.
Plaintiffs’ First Am endment claims are equa lly meritless. Indeed, nearly every cou rt to consider similar First Amendment challenges to the prior version of the regulations rejected the claims, and their analysis applies here. Nor do the regulations violate the Due Process Clause. Plaintiffs also cannot su cceed on their APA claims. They lack prudential stand ing to raise some of their arguments, and in any event, the regu lations are in accordance with the APA and with federal law.
For these reasons, and those explained below, defendants’ motion to dism iss or, in the alternative, for summary judgment should be granted.
BACKGROUND Before the Patient Protection and Affordab le Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of dis ease, lead productive lives, and reduce health care costs. Due largely to co st, Americans used pr eventive services at abou t half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1920, 109 (2011) (“IOM R EP.”), AR at 317-18, 407. 1 Section 1001 of the ACA—which includes the preventive services coverage provision relevant here—seeks to cure this problem by m aking
1 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR), which is being filed contemporaneously with this motion and brief.
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preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without costsharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).2
Because there were n o existing HRSA gui delines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) requested that the Institute of Medicine (IOM) de velop recommendations to implement the requirement to provide coverage, without cost-sharing, of pr eventive services for wom en. IOM REP. at 2, AR at 300. 3 After conducting an extensive science-based re view, IOM recommended that HRSA guidelines include, among other things, well-wom an visits; breastfeeding support; dom estic violence screening; and, as relevant here, “the full range of [FDA ]-approved contraceptive m ethods, sterilization procedures, and patient educat ion and counseling for wom en with reproductive capacity.” Id. at 10-12, AR at 308-10. FDA-approve d contraceptive m ethods include diaphragms, oral contraceptiv e pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105, AR at 403. IOM determ ined that coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereb y reduce unintended pregna ncies (and the nega tive health outcomes that d isproportionately
2 This provision also applies to immunizations, cholesterol screening, blood pressure screening, mammography, cervical cancer screening, screening and counseling fo r sexually transmitted infections, domestic violence counseling, depression screening, obesity screening and counseling, diet counseling, hearing loss screening for newborns, autism screening for children, developmental screening for children, alcohol misuse counseling, tobacco use counseling and interventions, well-woman visits, breastfeeding support and supplies, and many other preventive services. See, e.g., U.S. Preventive Services Task Force A and B Rec ommendations, http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm (last visited Jan. 9, 2014). 3 IOM, which was established by the National Academy of Sciences in 19 70, is fun ded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv, AR at 289.
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accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.4
On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exemption relating to certain r eligious employers authorized by regulations issued that same day (the “2011 a mended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guid elines (“HRSA Guidelines”), AR at 283 -84.5 Group health plans established or maintained by these religious employers (and associated group health insurance coverage) are ex empt from any requirement to cover contraceptive services consistent with HRSA’s guidelines. See id.; 45 C.F.R. § 147.131(a).
In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 a mended interim final regulations wh ile also creating a temporary enforcement safe harbor for non-gr andfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215. The regulations challenged here (the “2013 fina l rules”) repres ent the culm ination of that process. See 78 Fed. Reg. 39,869 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar.
4 At least twenty-eight states have laws requiring health insurance policies that cover prescription drugs to also provide coverage for FD A-approved contraceptives. See Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives (June 2013), AR at 1023-26. 5 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and (4) the organization is a non profit organization as described in section 60 33(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
6
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21, 2012) (Advance Notice of Proposed Rulem aking (ANPRM)), AR at 186-93; 78 Fed. Reg.

8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.

The 2013 final rules represent a significant accommodation by the governm ent of the

religious objections of c ertain non-profit religious organizations while promoting two important

policy goals. The regulations pr ovide women who work for non-profit religious organizations

with access to contracep tive coverage without co st sharing, thereby ad vancing the com pelling

government interests in safeguarding public health and ensuring that women have equal access to

health care. The regulations adva nce these interests in a nar rowly tailored fashion that does not

require non-profit religious organizations with re ligious objections to providing contraceptive

coverage to contract, pay, arrange, or refer for that coverage.

The 2013 final rules simplify and clarify the religious employer exemption by eliminating

the first three crite ria and clarifying th e fourth criterion. See supra note 5. Under the 2013 final

rules, a “religious em ployer” is “an organiza tion that is organized and operates as a nonprofit

entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code

of 1986, as amended,” which refers to churches, their integrated auxiliaries, and conventions or

associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R.

§ 147.131(a). The changes m ade to the definitio n of religious employer in the 2013 final rules

are intended to ensure “that an otherwise exempt plan is not disqualified because the employer’s

purposes extend beyond the inculcation of relig ious values or becau se the em ployer hires o r

serves people of different religious faiths.” 78 Fed. Reg. at 39,874, AR at 6.

The 2013 final rules also estab lish accommodations with respect to the contraceptive

coverage requirement for group health plans

established or maintained by “eligible

organizations” (and group health insurance coverage provided in connection with such plans). Id.

at 39,875-80, AR at 7-12; 45 C.F.R. § 147.131(b). An “eligible organization” is an organization

that satisfies the following criteria:

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(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered und er § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
(3) The organization holds itself out as a religious organization.
(4) The organization self-certifies, in a f orm and manner specified by the S ecretary, that it satisf ies the criteria in paragra phs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first p lan year to which the accommodation in paragraph (c) of this section applies.
45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. Under the 2013 final rules, an eligible orga nization is not required “to contract, arrange,
pay, or refer for contraceptive coverage” to w hich it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. To be relieved of any such obligations, the 2013 fina l rules require only that an eligible organization complete a self-certification form stating that it is an elig ible organization and provide a copy of that self-cer tification to its issuer or TPA. Id. at 39,878-79, AR at 10-11. Its participants and benef iciaries, however, w ill still ben efit from separate payments for contraceptive services without cost sharing or other charge. Id. at 39,874, AR at 6. In the case of an organization with an insured group health plan—such as Cornerst one—the organization’s health insurance issuer, upon receipt of the self-certification, must provide separate payments to plan participants and beneficiaries for contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,875-77, AR at 7-9. In the case of an or ganization with a self -insured group health plan—such as Dordt—the organization’s TPA, upon receipt of the s elf-certification, must provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan without cost-sharing, premium, fee, or other char ge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12. Any costs incurred by the TPA will be reim bursed through an adjustm ent to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
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The 2013 final rules generally apply to group h ealth plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except that the amendments to the relig ious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
STANDARD OF REVIEW Defendants move to dismiss the Complaint in its entirety for failure to state a claim upon which relief m ay be granted pursuant to Federal Rule of Civil Procedu re 12(b)(6). Under this Rule, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions . Threadbare recitals of the elements of a caus e of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Defendants also move to dismiss one count, see infra at Section I.F.3, under Federal Rule of Civil Procedure 12(b)(1) in pa rt for lack of subj ect matter jurisdiction. The party invoking federal jurisdiction bears the burd en of establishing its existence, and the Court m ust determine whether it has jurisdiction before addressing the merits of a claim . Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 104 (1998). To the exte nt that th e Court m ust consider the administrative record in addition to the face of the Com plaint, defendants move, in th e alternative, for summ ary judgment pursuant to Federal Rule of Civil Procedure 56. A party is entitled to summ ary judgment where the administrative record demonstrates “that there is no genuine dispute as to any m aterial fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
ARGUMENT
I. PLAINTIFFS’ CLAIMS LACK MERIT A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit 1. The regulations do not substantia lly burden plaintiffs’ exercise of religion Under RFRA, Pub. L. No. 103-141, 107 St at. 1488 (1993) (codified at 42 U.S.C.
§ 2000bb-1 et seq.), the federal government “shall not substantially burden a person’s exercise of
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religion” unless that burde n is the least restrictive means to further a compelling governm ental interest. 42 U.S.C. 2000 bb-1. Importantly, “only substantial burdens on the exercise of religion trigger the compelling interest requirement.” Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (emphasis added). “A substantial burden ex ists when government action puts ‘substantial pressure on an adherent to m odify his behavior and to violate his beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C . Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)); see Vision Church v. Vill. of Long Grove , 468 F.3d 975, 997 (7th Cir. 20 06) (noting same in the context of the Religious Land Us e and In stitutionalized Persons Act (RLUIPA)). “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on ac tivity unimportant to the adherent’s religious scheme.” Kaemmerling, 553 F.3d at 678; see also Braunfeld v. Brown, 366 U.S. 599, 606 (1961) (“To strike down, without the m ost careful scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not m ake unlawful the religious practice itself, would radically restrict the oper ating latitude of the le gislature.”); Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 262 (3d Cir. 2008) (Sciri ca, C.J., concurring) (“In our modern regulatory state, virtually all legislation (including neutral laws of general applicability) imposes an incidental burden at som e level by placing indirect costs on an individual’s activity. Recognizing this . . . [t]he federal governm ent . . . ha[s] identified a substantiality threshold as the tipping point for requiring heightened justifications for governmental action.”).
For two reasons, plaintiffs cannot show that the challenged regulations substantially burden their religious exercise. First, becau se the regulations requ ire virtually nothing of plaintiffs, and certainly do not require plaintiffs to modify their behavior in any meaningful way, the regulations do not im pose any m ore than a de minimis burden on plaintiffs—let alone a substantial one. See Priests for Life , 2013 WL 6672400, at *5-10; Notre Dame, 2013 WL 6804773, at *7-14; Michigan Catholic Conf. , 2013 WL 6838707, at *4-8. Second, even if this Court were to find that the regulations im pose some burden on plaintiffs’ religious exercise, any
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such burden would be far too at tenuated to be substantia l. See Diocese of Nashville , 2013 WL

6834375, at *4-5. a.

The regulations impose no more t han a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs

To put this case in its s implest terms, plaintiffs challenge regulations that require them to

do next to nothing, except what they would have to do even in the absence of the regulations.

Plaintiffs, as eligible organizations, are not required to contract, arrange, pay, or refer for

contraceptive coverage. To the cont rary, they are free to co ntinue to refuse to do so, to vo ice

their disapproval of contracep tion, and to encourage their em ployees to refrain from using

contraceptive services. Plaintiffs need only fulfill the self-certification requirement and provide

the completed self-certification to their is suers/TPAs. They need not provide paym ents for

contraceptive services to their employees. Instead, third parties—plaintiffs’ issuers/TPAs—

provide payments for contraceptive services, at no cost to plain tiffs. In short, with respect to

contraceptive coverage, plainti ffs need not do anything m ore than they did prior to th e

promulgation of the challenged regulations—that is, to inform their issuers/TPAs that they object

to providing contraceptive coverage in order to ensure that they are not responsible for

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

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

679. The Court’s inquiry should end here. A law cannot be a substantial burden on religious

exercise when “it involves no ac tion or forbearance on [ plaintiffs’] part, nor . . . otherwise

interfere[s] with any religious act in which [plaintiffs] engage[].” Kaemmerling, 553 F.3d at 679;

see also Civil Liberties for Urban Be lievers v. City of Chi. , 342 F.3d 752, 761 (7th Cir. 2003)

(holding, in the context of RLUIPA, that “a substa ntial burden on religious exercise is one that

necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise

. . . effectively impracticable”).

Because the regulations place no burden at all on plaintiffs, they plainly place no

cognizable burden on their religio us exercise. Plaintiffs’ contrary argum ent rests on an

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unprecedented and sweeping theory of what it mean s for religious exercise to be burdened. Not only do plaintiffs wa nt to be free from contracting, arranging, paying, or referring for contraceptive services for their employees—w hich, under these regulations, they are—but plaintiffs would also prevent anyone else from providing such coverage to their em ployees, who might not subscribe to plaintiffs’ religious beliefs. That this is the de facto impact of plaintiffs’ stated objections is made clear by their assertion that RFRA is violated whenever they “trigger” a third party’s provision to plaintiffs’ employees of services to which plaintiffs object. Compl. ¶¶ 138, 140. This theory would mean, for example, that even the government would not realistically be able to provide contraceptive coverage to plaintiffs’ employees, because such coverage would be “trigger[ed],” id., by plaintiffs’ objection to providing su ch coverage themselves. But RFRA is a shield, not a sword, see O’Brien v. HHS , 894 F. Supp. 2d 1149, 11 58-60 (E.D. Mo. 2012), and accordingly it does not prevent the governm ent from providin g alternative means of achieving important statutory objectives onc e it has provided a re ligious accommodation. Michigan Catholic Conf., 2013 WL 6838707, at *8 (“The fact th at the scheme will continue to operate without them may offend Plaintiffs’ religious beliefs, but it does not substantially burden the exercise of those beliefs.”); Notre Dame, 2013 WL 6804773, at *8 (“Boiled to its essence, what Notre Dame essentially claims is that the government's action after Notre Dame opts out, in requiring the TPA to cover contraception, offends Notre Da me’s religious sensibilities. And while I accept that the government’s and TPA’s actions do offend Notre Dame’s religious views, it’s not Notre Dam e’s prerogative to dictate wh at healthcare services third parties m ay provide.”); cf. Bowen v. Roy, 476 U.S. 693, 699 (1986) (“The Fr ee Exercise Clause sim ply cannot be understood to require th e Government to conduct its own in ternal affairs in ways that comport with the religious beliefs of particular citizens.”).
Plaintiffs’ RFRA challenge is s imilar to th e claim that the D.C. Circuit rejected in Kaemmerling. There, a federal prisoner objected to the FBI’s coll ection of his DNA profile. 553 F.3d at 678. In concluding that this collecti on did not substantially burden the prisoner’s religious exercise, the court reas oned that “[t]he extraction and storage of DNA information are
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entirely activities of the FBI, in which Kae mmerling plays no role an d which occur af ter the BOP has taken his fluid or tissue sample (to which he does not object).” Id. at 679. In the court’s view, “[a]lthough the government’s activities with his fluid or ti ssue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be sa id to ham per his religious exercise because they do not pressure [him] to modify his behavior and to violate his beliefs.” Id. (internal citation and q uotation marks omitted). The same is true he re, where th e provision of contraceptive services is “entirely [an] activit[y] of [a third party], in which [plaintiffs] play[] no role.” Id. As in Kaemmerling, “[a]lthough the [third party]’s activities . . . m ay offend [plaintiffs’] religious beliefs, they cannot be said to hamper [their] religious exercise.” Id.
Perhaps understanding the tenuous ground on whic h their RFRA claim rests, given that the regulations do not require them to contract, arrange, pay, or refer for contraceptive services, plaintiffs attempt to circumvent this problem by framing the allegation in their complaint as part of a novel theory that the regu lations require them to som ehow “facilitate” access to contraception coverage, and tha t it is th is facilitation that violates plaintiffs’ religious beliefs. See, e.g., Compl. ¶ 163. But under the challeng ed regulations plaintiffs need only to self-certify that they object to providing coverage for contraceptive services and that they otherwise meet the criteria for an eligible organization, and to share that self-certification with their issuers/TPAs. In other words, plaintiffs are required to inform their issuers/TPAs that they object to providing contraceptive coverage, which th ey have done or would have to do voluntarily anyway even absent these regulations in orde r to ensure that they are not responsible for contracting, arranging, paying, or referring for contraceptive coverage. The sole difference is that they m ust inform their issuers /TPAs that their objection is for religio us reasons—a statement which they have already made repeatedly in this litig ation and elsewhere. This does not amount to a substantial burden under RFRA. Michigan Catholic Conf. , 2013 WL 6838707, at *7 (“[T]he contraceptive mandate requires Catholic Charities to do what it has always done—sponsor a plan for its em ployees, contract with a TPA, a nd notify the TPA that it objects to providing contraceptive coverage. Thus, Plai ntiffs are not require[d] to ‘modify [their] behavior.’ . . .
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Although the TPA’s action m ay be deeply offensive to the religious beliefs of Plaintiffs, RFRA does not allow a plaintiff to restrain the behavior of a third party that conflicts with the plaintiff’s religious beliefs.”) (citation omitted); Notre Dame, 2013 WL 6804773, at *12 (“Notre Dam e isn’t being required to do anyt hing new or different—its action is the same, although, granted, the result is different due to the actions of the TPA and th e government. As I’ve said, Notre Dame may find the act of opting out less spiritually fulfilling now, but that doesn’t make it a new action.”); Priests for Life, 2013 WL 6672400, at *8 (“This is where Plaintiffs’ RFRA challenge must fail—like the ch allenges in Kaemmerling and Bowen, the accommodations to the contraceptive mandate simply do not require Plaintiffs to modify their religious behavior.”).
Furthermore, any burden im posed by the pu rely administrative self-certification requirement—which should take plaintiffs a matter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA. The s ubstantial burden hurdle is a high one. Living Water Church of God v. Charter Twp. of Meridian , 258 Fed. App’x 729, 734 (6th Cir. 2007); see also Kaemmerling, 553 F.3d at 678 (“An inconsequential or de minimis burden on religious practice does not rise to this level [of a substantial burden].”); Washington v. Klem, 497 F.3d 272, 279-81 (3d Cir. 2007); McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir. 2004); Civil Liberties for Urban Believers, 342 F.3d at 761. Indeed, if this is not a de minimis burden, it is hard to see what would be.
The mere fact that a p laintiff may claim that the self-certification requirement imposes a substantial burden on its religious exercise does not m ake it so. See Priests for Life, 2013 WL 6672400, at *8 n.5 (“[T]he Court is not persuaded . . . that a plaintiff can m eet his burden of establishing that the accomm odation creates a ‘substantial burden’ upon his exercise of religion simply because he claim s it to be so.”); Conestoga Wood Specialties Corp. v. Sebelius , 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013) (sam e), aff’d, 724 F.3d 377 (3d Cir. 2013). U nder RFRA, plaintiffs are entitled to their s incere religious beliefs, but they are not entitled to decide what does and does not im pose a substantial burde n on such beliefs. Although “[c]ourts are not arbiters of scriptural interpretation,” Thomas, 450 U.S. at 71 6, “RFRA still requ ires the court to
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determine whether the burden a law im poses on a plaintiff’s stated re ligious belief is

‘substantial.’” Conestoga, 917 F. Supp. 2d at 413. This inquiry asks whether the challenged

regulations actually require plaintiffs to modify their behavior in a significant—or more than de

minimis—way. See Living Water Church of God , 258 Fed. App’x at 734- 36 (reviewing cases);

see also, e.g. , Vision Church, 468 F.3d at 997; Garner v. Kennedy , 713 F.3d 237, 241-42 (5th

Cir. 2013); Westchester Day Sch. v. Vill. of Mamaroneck , 504 F.3d 338, 348-49 (2d Cir. 2007);

Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga. , 843 F. Supp. 2d 1328, 1353-54

(N.D. Ga. 2012).

If courts played virtually no role in

determining whether an alleged burden is

“substantial”—if, as long as a plaintiff’s religious belief is sincere, the inquiry would be

complete—plaintiffs would be allo wed to evade RFRA’s threshold by simply asserting that the

burden on their religio us exercise is “sub stantial,” thereby paradoxically reading the term

“substantial” out of RFRA. Autocam, 2012 WL 6845677, at *6 (“The C ourt does not doubt the

sincerity of Plaintiff Kennedy’s decision to draw the line he does, but the Court still has a duty to

assess whether the claim ed burden—no matter how sincerely felt—really amounts to a

substantial burden on a person’s exercise of religion.”); Diocese of Nashville, 2013 WL 6834375,

at *5 n.7 (“Although the Court accepts the Plaintiffs ’ determination that self-certification is at

odds with their sincerely-held re ligious beliefs, the determ ination of whether those beliefs are

‘substantially burdened’ by self-certification is an objective one that RFRA requires the courts to

make.”); Michigan Catholic Conf., 2013 WL 6838707, at *5-6 (sam e). “If every plaintiff were

permitted to unilaterally determine that a law b urdened their re ligious beliefs, and c ourts were

required to assume that such burden was substantial, simply because the plaintiff claimed that it

was the case, then the standard expressed by Congress under the RFRA would convert to an ‘any

burden’ standard.” Conestoga, 917 F. Supp. 2d at 413-14; see also Autocam, 2012 WL 6845677,

at *7; Mersino Mgmt. Co. v. Sebelius , No. 13-cv-11296, 2013 W L 3546702, at *16 (E.D. Mich.

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July 11, 2013).6 The result would be to subject every act of Congress to strict scrutiny every time any plaintiff could articulate a sincerely held religious objection to compliance with th at law. The “most demanding test known to constitutional law,” City of Boerne v. Flores, 521 U.S. 507, 534 (1997), would thus be transform ed into a norm against which Congress must always legislate.
For the reasons stated above, the regulati ons do not im pose a substantial burden on plaintiffs’ religious exercise, a nd thus plaintiffs’ m otion for a preliminary injunction should be denied, and plaintiffs’ RFRA claims (Count I of the Complaint) should be dismissed or summary judgment granted to defendants.
b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA
Although the regulations do not require plainti ffs to contract, arrange, pay, or refer for contraceptive coverage, plaintiffs’ complaint appears to be that the regulations require plaintiffs to indirectly facilitate conduct on the part of their employees that they find objectionable (i.e., the use of certain contraceptives). But this complaint has no limits. An employer provides numerous benefits, including a salary and ot her fringe benefits, to its em ployees and by doing so in som e sense facilitates whatever use its employees make of those benefits. Plaintiffs not only seek to be free from the requirement to contract, arrange , pay, or refer for contraceptive coverage themselves—which they are under these regulations —but also seek to prevent anyone else from providing such coverage to their employees. But an employer has no right to control the choices of its em ployees, who m ay not share its religious beliefs, when m aking use of their benefits. Those employees have a legitimate interest in access to the preventive services coverage made available under the challenged regulations.
6 RFRA’s legislative history makes clear that Congress did not intend such a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, substantial or otherwise. Congress amended the bill to add the word “substantially,” “to make it clear that the compelling interest standards set forth in the act” apply “only to Government actions [that] place a substantial burden on the exercise of” religious liberty. 139 Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy); see also id. (text of Amendment No. 1082).
16
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Indeed, courts have held that claim s raised b y for-profit com panies challenging the contraceptive coverage regulati ons, which require them to pr ovide the relevant coverage themselves, are too attenuated to amount to a substantial burden unde r RFRA. Any burden on plaintiffs, which are elig ible for the accommodations, is a fortiori too attenuated to be substantial. For example, the district court in Conestoga reasoned that the ultim ate decision of whether to use contraception “rests not with [the employer], but with [the] e mployees” and that “any burden imposed by the regulations is too at tenuated to be considered substantial.” 917 F. Supp. 2d at 414-15. The Conestoga district court further explained that the indirect nature of any burden imposed by the regulations distinguishe d them from the statu tes challenged in Yoder, Sherbert, Thomas, and Gonzales. See id. at 415. Other courts, too, have relied on sim ilar reasoning to reject similar plaintiffs’ RFRA claims. See, e.g., Autocam, 2012 WL 6845677, at *6 (“The incremental difference between providing the benefit directly, rather than indirectly, is unlikely to qualify as a substantial burden on the Autocam Plaintiffs.”); O’Brien, 894 F. Supp. 2d at 1158-60 (“[RFRA] is not a m eans to force on e’s religious practices upon others. RFRA does not protect against the slight burden on religi ous exercise th at arises when one’s m oney circuitously flows to support th e conduct of other free-exercise -wielding individuals who hold religious beliefs that differ from one’s own.”).7
As these courts concluded, the preventive services coverage regulations result in only an indirect impact on for-profit companies, which must provide contraceptive coverage themselves. Any burden on plaintiffs and sim ilar eligible organizations that qualify for the acco mmodations is even more attenuated. Not only are plain tiffs here separated from the use of contraception by “a series of events” that m ust occur before the us e of contraceptive services to which plain tiffs object would “come into play,” Conestoga, 917 F. Supp. 2d at 414-15, but they are also further insulated by the fact that a third party—plaintiffs’ issuers/TPAs—and not plaintiffs, will actually contract, arrange, pay, and refer for such services, and thus plaintiffs are in no way subsidizing—
7 See also Eden Foods v. Sebelius, Civil Action No. 13-11229, 2013 WL 1190001, at *4 (E.D. Mich. Mar. 22, 2013); Annex Medical, Inc. v. Sebelius, Civil No. 12-2804(DSD/SER), 2013 WL 101927, at *4-5 (D. Minn. Jan. 8, 2013), appeal pending, No. 13-1118 (8th Cir.).
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even indirectly—the use of preventive services that they find objectionable. See Diocese of Nashville, 2013 W L 6834375, at *5 (“Such a ‘burden’ is too attenuated and speculative to be substantial. The services to which the Plaintiffs object will only be provided in the event one of their employees independently requests the services, and in the event such a requ est is made, the regulation prohibits any costs of those services, directly or indirectly, to be im posed on the Plaintiffs. In other words, Plaintiffs bear no costs for the servi ces and nothing is provided unless a third party em ployee independently requests the services from yet another third party—the insurer. It is only the independent actions of third parties that re sult in anyone obtaining contraceptive services.”); id. at *5 n.8 (“In that regard, the cons equences of self-certification are not unlike an em ployee’s purchase of contracep tive services on his or her own, without any governmental involvement, by using a portion of the salary paid by Plaintiffs.”); Michigan Catholic Conf., 2013 WL 6838707, at *7 (“It is difficult to see how a substant ial burden exists when the relationship to the objectionable act is so attenuated.”).
Under plaintiffs’ theory, their re ligious exercise is substantially burdened when one of their employees and her health car e provider make an independent determination that the use of certain contraceptive services is appropriate, and when such services are paid for exclusively by plaintiffs’ issuers/TPAs—with none of the cost being passed on to plaintiffs—and no administration of the payments by plaintiffs, solely because plaintiffs self-certified that they have religious objections to providing contraceptive coverage and so informed their issuers/TPAs. But a burden simply cannot be “substa ntial” under RFRA whe n it is attenuated. Cases that find a substantial burden uniform ly involve a direct burden on the plai ntiff rather than a burden imposed on another entity. See, e.g., Potter v. Dist. of Colum bia, 558 F.3d 542, 546 (D.C. Cir. 2009); see also Conestoga, 917 F. Supp. 2d at 413-14. A plainti ff cannot establish a substantial burden on h is religious exercise by invoking th is type of trickle-down theory; to co nstitute a substantial burden with in the m eaning of RFRA, the burden m ust be im posed on the plaintiff himself. See Conestoga, 917 F. Supp. 2d at 411, 413; Autocam, 2012 WL 6845677, at *7. Here, of course, there is no such direct burden. In fact, given that any paym ent for contraceptive
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services is made by plaintiffs’ issuers/TPAs, the regulations have even less impact on plaintiffs’ religious exercise than plaintiffs’ payment of salaries to their employees, which those employees can use to p urchase contraceptives. See O’Brien, 894 F. Supp. 2d at 1160; see also Conestoga, 917 F. Supp. 2d at 414 (“The fact that Conestoga’ s employees are free to look outside of their insurance coverage and pay for and use any contra ception . . . through the salary they receive from Conestoga, amply illustrates this point.”); Autocam, 2012 WL 6845677, at *6.
Plaintiffs remain free t o refuse t o contract, arrange, pay, or refer for contraceptive coverage; to voice their disapproval of contra ception; and to encourage their employees t o refrain from using contraceptive services. The preventive services coverage regulations therefore affect plaintiffs’ relig ious practice, if at all, in a highly attenuated way. In short, because th e preventive services co verage regulations “are several degrees rem oved from imposing a substantial burden on [plaintiffs],” O’Brien, 894 F. Supp. 2d at 1160, the Court should dism iss plaintiffs’ RFRA claim, or grant summary judgment to defendants, even if it finds—contrary to the government’s argument—that the challenged re gulations impose some burden on plaintiffs’ religious exercise.
2. Even if there w ere a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests a. The regulations significantly advance compelling govern mental interests in public health and gender equality
Even if plaintiffs were able to de monstrate a substantial burden on their religious exercise, they would not prevail because th e challenged regulations are justified by two compelling governmental interests, and are the leas t restrictive means to achieve those interests. First, the promotion of public health is unquestionably a compelling governmental interest. Mead v. Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also, e.g., Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 498 (10th Cir. 1998); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995). And the challenged regu lations further this compelling interest by “expanding access
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to and utilization of recomm ended preventive services for wom en.” 78 Fed. Reg. at 39,887, AR at 19.
The primary predicted benefit of the preventi ve services coverage regulations is that “individuals will experience im proved health as a result of reduced tran smission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increas e access to and utilization of these services, which are no t used at optim al levels today.” 75 Fed. Reg. at 41,733, AR at 233; 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significan t barrier to access to con traception.” (citation omitted)), AR at 5.
Increased access to the full range of FDA-approved contraceptive services is a key part of these predicted health outcom es, as unintended pregnancies have proven in m any cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4. As IOM concluded in identifying services recommended to “prevent conditions harmful to women’s health and well-being,” unintended pre gnancy may delay “entry into prenatal care,” prolong “behaviors that present risks for the de veloping fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02. Contraceptive coverage further helps to avo id “the in creased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpregnancy intervals in particular h ave been as sociated with low birth weight, pr ematurity, and s mall-forgestational age births.” ) (citing studies), AR at 4. And “[c]ontracep tives also h ave medical benefits for wom en who are co ntraindicated for pregnancy, and there are demonstrative preventive health benefits from contraceptives relating to co nditions other than p regnancy (for example, prevention of certain cancers, m enstrual disorders, and acne.” 78 Fed. Reg. at 39,872, AR at 4; see also IOM Rep. at 103-04 (“[P]regnancy m ay be contraindicated for wom en with
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serious medical conditions such as pulm onary hypertension . . . and cyanotic hea rt disease, and for women with the Marfan Syndrome.”), AR at 401-02.
Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations: assuring that women have equal access to hea lth care services. 78 Fed. Reg. at 39,872, 39,887, AR a t 4, 19. As the Suprem e Court explained in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), there is a fundam ental “importance, both to the individual and to society, of removing the barriers to econom ic advancement and political and social integration that have historically plagued certain disa dvantaged groups, including wom en.” Id. at 626. Thus, “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interes ts.” Id. By including in the ACA gende r-specific preventive health services for wom en, Congress m ade clear that th e goals and benefits of effective preventive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into acc ount in the ACA. As ex plained by members of Congress, “women have different health need s than m en, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (da ily ed. Dec. 2, 2009) (s tatement of Sen. Feinstein); 78 Fed. Reg. at 39,887, A R at 19; IO M REP. at 19, AR at 31 7. These costs result in women often forgoing preventive care and place wom en in the workforce at a disadvantag e compared to their male coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) (statement of Sen. Murray); 78 Fed. R eg. at 39,887, AR at 19; IOM R EP. at 20, AR at 318. Congress’s attem pt to equalize the provision of preventive health car e services, with the resulting benefit of wom en being able to contribute to the same degree as m en as healthy and productive members of society, fu rthers a co mpelling governmental interest. Cf. Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92-93 (Cal. 2004).
The fact that religious employers are exem pt from the challenged regulations, 45 C .F.R. § 147.131(a), does not underm ine the governm ent’s compelling interests because this is not a case where allegedly underinclusive enforcem ent of a law suggests that the governm ent’s
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“supposedly vital interest” is not really compelling.8 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47 (1993). This exemption reflects the government’s attempts to balance the com pelling interests underlying the challenged regulations against other significant interests supporting the complex administrative scheme created by the ACA. See United States v. Lee , 455 U.S. 252, 259 (1982) (“The Court has long recognized that balance must be struck between the values of the comprehensive social security system, which rests on a complex of actuarial factors, an d the consequences of allowing re ligiously based exemptions.”); United States v. Winddancer, 435 F. Supp. 2d 687, 695-98 (M.D. Tenn. 2006) (recognizing that the regulations governing access to eagle parts “strike a d elicate balance” between com peting

8

In their Complaint, plaintiffs also point to the grandfathering of certain health plans with respect to certain

provisions of the ACA, Compl. ¶¶ 181-83, but grandfathering is not specifically limited to the preventive services

coverage regulations, see 42 U.S.C. § 18011; 45 C.F.R. § 147.140. In fact, the effect of grandfathering is not really a

permanent “exemption,” but rather, over the long term , a transition i n the marketplace with re spect to seve ral

provisions of the ACA, including the preventive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at

19. The grandfathering provision reflects Congress’s attempts to balance competing interests—specifically, the

interest in spreading the benefits of th e ACA, including those provided by the preventive services coverage

provision, and the interest in maintaining existing coverage and easing the transition into the new regulatory regime

established by the ACA—in the context of a complex statutory scheme. See 75 Fed. Reg. 34,538, 34,546 (June 17,

2010). This incremental transition does nothing to call i nto question the compelling interests furthered by the

preventive services coverage regulations. Even under the grandfathering provision, more group health plans will

transition to t he requirements under the regulations as t ime goes on. See id. at 34,552; see also Kaiser Family

Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190

(indicating that 58 perce nt of firms had at least one gra ndfathered health plan in 2012, down from 72 percent in

2011, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in

2011), AR at 663-64, 846. Thus, any purported adverse effect on the compelling interests underlying the regulations

will be quickly mitigated, which is in stark contrast to the permanent exemption plaintiffs seek.

Moreover, plaintiffs observe that small employers are exempt from the employer responsibility provision

(which means that, starting in 2015, such employers are not subject to the possibility of assessable payments if they

do not provide health coverage to their full-tim e employees and their dependents). Compl. ¶ 179 (citing 26 U.S.C .

§ 4980H(c)(2)), but this is not an exem ption to the challenged regulations. Small businesses that do offer non-

grandfathered health coverage to their employees are required to provide coverage for recommended preventive

services, including contraceptive services, without cost-sharing. 78 Fed. Reg. at 39,887 n.49, AR at 19. And there is

reason to believe that small employers will continue to offer health coverage to their employees, because the ACA,

among other things, provides tax incentives for small businesses to encourage the purchase of health insurance. See

26 U.S.C. § 45R. But even if a sm all business were to choose not to offer health coverage, employees of s uch

business could get health insurance coverage that is facilitated by other ACA provisions—primarily those

establishing both small group market and individual market health insurance exchanges and those establishing tax

credits to make the purchase of coverage through such exchanges more affordable—and the coverage they receive

through such exchanges will include coverage of all recommended pr eventive services, including contraception. 78

Fed. Reg. at 39,887 n.49, AR at 19.

Similarly, the one-year postponement of reporting requirements and tax liability related to the large

employer responsibility provision, see Compl. ¶ 184, i s not an exem ption to or postponement of t he challenged

regulations. Employers that do offer non-grandfathered health coverage are required to comply with the challenged

regulations. Moreover, this postponement is temporary, in contrast to the permanent exemption that plaintiffs seek.

22

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interests). And the existing exception does not underm ine the governm ent’s interests in a significant way. See Lukumi, 508 U.S. at 547; S. Ridge B aptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1208-09 (6th Cir. 1990) (rejectin g the plaintiff’s ar gument that the existence of exem ptions indicates that a law is not the lea st restrictive means of achieving a compelling interest where the exem ptions do not undermine that interest); see also 78 Fed. Reg. at 39,887, AR at 19.
Indeed, there is a rational distinction between this narrow exception and the expansion plaintiffs seek. Houses of wors hip and their integrated auxiliaries that object to contraceptiv e coverage on religious grounds ar e, as a group, m ore likely than other em ployers to em ploy people of the sam e faith who share the sam e objection, and who would therefore be less likely than other p eople to use contracep tive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, 39,877, AR at 6, 19. In any event, it would be perverse to hold that the government’s provision o f a lim ited religious exemption eliminates its compelling interest in the regu lation, thus effectively extending the sam e exemption to anyone else who wants it under RFRA. Such a reading of RFRA would discourage the governm ent from accommodating religion, the exact opposite of what Congress intended to accomplish in enacting RFRA.
Granting plaintiffs the m uch broader, permanent exemption they request w ould undermine defendants’ ability to enforce the regulations in a rational m anner. See Gonzales v. O Centro Espirita Beneficente Uniao Do Vege tal, 546 U.S. 418, 435 (2006). W e are a “cosmopolitan nation m ade up of people of almost every conceivable religious preference,” Braunfeld, 366 U.S. at 606; see also S. Ridge Baptist Church, 911 F.2d at 1211, and many people object to various m edical services. If any organization with a re ligious objection were able to claim an exem ption from the operation of the pr eventive services coverage regulations—even where the regulations require vi rtually nothing of the organizat ion—it is difficult to see how defendants could administer the regulations in a manner that would achieve Congress’s goals of improving the health of women and newborn children and equalizing the coverage of preventive
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services for women. See United States v. Israel, 317 F.3d 768, 772 (7th Cir. 2003) (recognizing that plaintiff’s RFRA logic “would lead to significant adm inistrative problems for the [government] and open t he door to a . . . prolifer ation of claims”). Indeed, women who receive their health coverage through em ployers like pl aintiffs would face negativ e health and other outcomes because they had obtain ed employment with an organization tha t objects to its employees’ use of contraceptive services, even wh en those services are paid for, adm inistered, and otherwise provid ed by a third party. See id. (noting consequences “f or the public and the government”); 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,887, AR at 19.
b. The regulations are the least re strictive means of advancing the government’s compelling interests
When determining whether a particular regulato ry scheme is the “least res trictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme—or whether the schem e can otherwise be modified—without undermining the government’s compelling interests. See, e.g., United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987) (describing the least restrictive m eans test as “the extent to which accommodation of defendant would im pede the state’s objectives”); United States v. Wilgus, 638 F.3d 1274, 1289-95 (10th Cir. 2011). Th e government is not required “to do the im possible—refute each and every conc eivable alternative regulation s cheme.” Wilgus, 638 F.3d at 1289. Instead, the governm ent need only “refute the alternative schem es offered by the challenger.” Id.
Instead of explaining how plaintiffs and sim ilarly situated eligible organizations could be exempted from the regulations without significant dam age to the governm ent’s compelling interests, plaintiffs offe r only two alternatives: direct governm ent payments for contraceptive services, or an exem ption for all organization s with religious objec tions to contraceptive coverage. Compl. ¶¶ 177-78. Of course, becaus e an exem ption would deprive plaintiffs’ employees, and em ployees of sim ilarly situated eligible organizations, of the ve ry benefit afforded to them by the regulations, it is plainly not equally effective—it is not at all effective—
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in advancing the governm ent’s compelling interests. See 78 Fed. Reg. at 39,888, A R at 20; see also, e.g., Kaemmerling, 553 F.3d at 684 (findi ng that m eans was least restrictive where no alternative means would achieve c ompelling interests); Murphy v. State of Ark. , 852 F.2d 1039, 1042-43 (8th Cir. 1988) (same).
Direct government payments for contraceptiv e services are sim ilarly not an equally effective alternative m eans. Congress determ ined that the best way to ach ieve the goals of the ACA, including expanding preventive services c overage, was to build on the existing em ployerbased system, see H.R. Rep. No. 111-443, pt. II, at 984-86 (2010), and the anticipated benefits of the regulations are attributable not only to the fact that recommended contraceptive services will be available to wom en with no cost-sharing, b ut also to the fact that these serv ices will be available through the existing em ployer-based system of health coverage through which wom en will face minimal logistical and administrative obstacles to rece iving coverage of their c are. Plaintiffs’ alternative, by cont rast, has none of these advantages . It would requir e establishing entirely new government programs and infrastructures or fundamentally altering an existing one, and would alm ost certainly require wom en to take burdensome steps to find out about the availability of and sign up for a new benefit, thereby ensuring that fe wer women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20. Nor do plaintiffs offer any suggestion as to how this program could be integrated with the employer-based system or how wom en would obtain government-provided preventive services in p ractice. Thus, plaintiffs’ proposal—in addition to raising m yriad administrative and lo gistical difficulties and being unauthorized by any statute and not funded by any appropriation—is less likely to achieve the com pelling interests furthered by the regulations, and therefor e does not represent reas onable less restrictive means. Id.
Moreover, plaintiffs fail to recognize that such an alternative would be incompatible with the fundamental statutory scheme set forth in the ACA, which plai ntiffs do not challenge in this lawsuit. As discussed above, Congress did no t adopt a single (governm ent) payer syste m financed through taxes, but instead opted to bui ld on the existing system of e mployment-based
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coverage. Plaintiffs do not point to any statu tory authority for their p roffered less restrictive alternative. Nor is there any indication that Congress would have contem plated that agency action could be invalidated under RFRA bec ause the agency, in discharging its statutorily delegated authority, failed to adopt an alternative scheme for which it lacked statutory authority. Thus, even if defendants wanted to adopt plaint iffs’ non-employer-based alternative, they would be constrained by the statute from doing so. See 78 Fed. Reg. at 39,888, AR at 20.
Finally, just because plaintiffs can devise an entirely new legislative an d administrative scheme does not m ake that schem e a feasible less restrictive m eans, see Wilgus, 638 F.3d at 1289; Adams v. Comm’ r of Internal Revenue , 170 F.3d 173, 180 n.8 (3d Cir. 1999) (“A judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘r estrictive’ in alm ost any situa tion, and thereby enable him self to vote to strik e legislation down.’” (quotations omitted)), particul arly where such alternative would com e at enormous administrative and financial cost to the government. A proposed alternative schem e is not an adequate alternative—and thus not a viable less restrictive means to achieve a compelling interest—if it is no t feasible. See, e.g., New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940, 947 (1st Cir. 1989) (Breyer, J.); Graham v. Comm’r, 822 F.2d 844, 852 (9th Cir. 1987), overruled in part on othe r grounds by Navajo Nation v. U.S. Forest Serv. , 479 F.3d 1024, 1033 (9th Cir. 2007) (e n banc). In determ ining whether a proposed alternative scheme is feasib le, courts often consider the additional administrative and f iscal costs of the scheme. See, e.g., S. Ridge Baptist Church , 911 F.2d at 1206; Fegans v. Norris, 537 F.3d 897, 905-06 (8th Cir. 2008); United States v. Lafley , 656 F.3d 936, 942 (9th Cir. 2011); New Life Baptist, 885 F.2d at 947. Defendants cons idered plaintiffs’ alternative and determined that it was not feasible because th e agencies lacked statu tory authority to implement it, it would im pose considerable new costs and other burdens on the governm ent, and it would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Lafley, 656 F.3d at 942; Gooden v. Crain, 353 F. App’x 885, 888 (5th Cir. 2009); Adams, 170 F.3d at 180 n.8.
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Because plaintiffs have failed to put forth vi able less restrictive alternatives that would
achieve the government’s compelling interests, the Court should reject plain tiffs’ argument that
the regulations fail strict scrutiny.
B. The Regulations Do Not Violate the Free Exercise Clause
The Supreme Court has made clear that a la w that is neutral and generally applicable
does not run afoul of the Free Exercise Clause even if it prescribes cond uct that an individual’s
religion proscribes or has the incidental effect of burdening a particular religious practice. Empt.
Div., Dep’t of Human Res. of Or. v. Smith , 494 U.S. 872, 879 (1990); see also Lukumi, 508 U.S.
at 531-32. “Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law
is neutral if it does not target religiously motivated conduct either on its face or as ap plied. Id. at
533. A neutral law has as its purpose som ething other than the disapproval of a particular
religion, or of religion in general. Id. at 545. A law is generally app licable so long as it does not
selectively impose burdens only on conduct motivated by religious belief. Id.
Unlike such selective laws, the preventive se rvices coverage regulations are neutral and
generally applicable. Indeed, every court to h ave considered a f ree exercise challenge to the se
regulations has rejected it, concluding that the regulations ar e neutral and generally applicable.
See Priests for Life, 2013 WL 6672400, at *10-12, Notre Dame, 2013 WL 6804773, at *14-18;
Roman Catholic Archbishop of Washington v. Sebelius, __ F. Supp. 2d __, 2013 WL 6729515, at
*27-31 (D.D.C. Dec. 20, 2013); Diocese of Nashville, 2013 W L 6834375, at *5-7; Michigan Catholic Conf., 2013 WL 6838707, at *8-9.9 “The regulations were passed, not with the object of
9 Likewise, nearly every court to have consi dered a free e xercise challenge to the prior v ersion of th e regulations rejected it. See MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., Civil Action No. 13–11379, 2013 WL 1340719, at *5 (E.D. Mich. Apr. 3, 2013); Eden Foods, 2013 WL 1190001, at *4-5; Conestoga, 917 F. Supp. 2d at 409-10; Grote Indus. v. Sebelius, 914 F. Supp. 2d 943, 952-53 (S.D. Ind. 2012), rev’d on other grounds sub nom. Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013); Autocam, 2012 WL 6845677, at *5; Korte v. HHS, 912 F. Supp. 2d 735, 744-47 (S.D. Ill. 2012), rev’d on other grounds sub nom. Korte v. Se belius, 735 F.3d 654 (7th Cir. 2013); Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1289-90 (W.D. Okla. 2012), rev’d on other grounds, 723 F.3d 1114 (10th Cir. 2013) (en banc), cert. granted, 134 S. Ct. 678 (2013); O’Brien, 894 F. Supp. 2d at 116062; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, 85 P.3d at 81-87. But see Sharpe Holdings, Inc. v. HHS, No. 2:12-CV-92-DDN, 2012 WL 6738489, at *5 (E.D. Mo. Dec. 31, 2012); Geneva Coll. v. Sebelius, No. 2:12–cv– 00207, 2013 WL 838238, at *24-26 (W.D. Penn. Mar. 6, 2013).
27
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interfering with relig ious practices, but ins tead to im prove women’s access to health care and lessen the disparity between men’s and women’s healthcare costs.” O’Brien, 894 F. Supp. 2d at 1161; see Notre Dame, 2013 W L 6804773, at *16 (“The laws a nd regulations in question, as well as the legislative history, fu rther show that the ACA and re lated regulations were enacted for reasons neutral to re ligion.”). The regulations reflect expert medical recommendations about the medical necessity of contracep tive services, without regard to any religious m otivations for or against such services . See, e.g., Conestoga, 917 F. Supp. 2d at 410 (“It is clear from the history of the regulations and the report publish ed by the In stitute of Medicine that the purpos e of the [regulations] is not to target religion, but instead to promote public health and gender equality.”); Notre Dame, 2013 WL 6804773, at *17 (same, and finding it “abundantly clear” that the regulations are neutral).
The regulations, moreover, do not pursue their purpose “only agai nst conduct motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (concluding law that “punishe[d] conduc t within its reach wit hout regard to whether the conduct was religiously m otivated” was generall y applicable). The regulations apply to all non-grandfathered health plans that do not qualif y for the religious employer exem ption or the accommodations for eligible organizations. Thus, “it is just not true . . . that the burdens of the [regulations] fall on religious orga nizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536); see O’Brien, 894 F. Supp. 2d at 1162; Autocam, 2012 WL 6845677, at *5; Grote, 914 F. Supp. 2d at 953.
The existence of express categorical exceptio ns or accommodations for objectively defined categories of entities, like grandfathered plans, relig ious employers, and eligible organizations, “does not m ean that [the regulations do] not apply generally.” Priests for Life , 2013 WL 6672400, at *11; see Notre Dame, 2013 W L 6804773 (same); Autocam, 2012 WL 6845677, at *5 (sam e). “General applicability does not mean absolute universality.” Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008); accord Axson-Flynn v. Johnson , 356 F.3d 1277, 1298 (10th Cir. 2004); Am. Friends Serv. Comm. Corp. v. Thornburgh , 951 F.2d 957, 960-61
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(9th Cir. 1991) (concluding employer verification statute was generally applicable even though it exempted independent contractors, househol d employees, and employees hired prior to November 1986 because exem ptions “exclude[d] entire, objectiv ely-defined categories of employees”); Intercommunity Ctr. fo r Justice & Peace v. IN S, 910 F.2d 42, 44 (2d Cir. 1990) (same). “Instead, exem ptions undermining ‘general applicability’ are those tending to suggest disfavor of religion.” O’Brien, 894 F. Supp. 2d at 1162. The exception for grandfathered plans is available on equal term s to a ll employers, whether religious or secular. And the religious employer exemption and eligible organization ac commodations serve to accomm odate religion, not to disfavor it. Id.; see also Conestoga , 917 F. Supp. 2d at 410 (“Th e fact that exem ptions were made for religious em ployers . . . . shows that the governm ent made efforts to accommodate religious beliefs, which counsels in favor of the regulatio ns’ neutrality.”); Grote, 914 F. Supp. 2d at 953 (“[C]arving out an exempti on for defined religious entities . . . tends to support an argument in favor of neutrality.”). Indeed, the religious employer exemption “presents a strong argument in favor of neutrality” by “demonstrating that the object of the law was not to infringe upon or restrict practices be cause of their religious motivation.” O’Brien, 894 F. Supp. 2d at 1161 (quotations om itted). The regulations ar e not rendered unlawful “merely because the [religious employer exemption] does not extend as far as Plaintiffs wish.” Grote, 914 F. Supp. 2d at 953. Thus, these categorical exceptions and accommodations do not trigger strict scrutiny.
Finally, Plaintiffs’ unsupported assertions that the regulations were “designed” to “target the Schools and others like them ,” and that defendants promulgated the regulations “in order to suppress the religious exercise of the Schools and others,” Com pl. ¶ 218-19, are m ere rhetorical bluster. See Notre Dame , 2013 WL 6804773, at *16; Michigan Catholic Conf. , 2013 WL 6838707, at *9. There is no indication that the regulations are anything other than an effort to increase women’s access to and utilizati on of recommended preventive services. See O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410; Grote, 914 F. Supp. 2d at 952-53. And it cannot be disputed that defendants have made extensive efforts—through the religious employer exemption and the eligible organization accommodations—to accommodate religion in
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ways that will not un dermine the goal of ensu ring that women have access to coverage fo r recommended preventive services without cost sharing.10
For these reasons Count II fails. C. The Regulations Do Not Violate the Establishment Clause “The clearest command of the Esta blishment Clause is th at one re ligious denomination cannot be officially preferred over another.” Larson v. Valente , 456 U.S. 228, 244 (1982) (emphasis added). A law that discrim inates among religions by “aid[ing] one r eligion” or “prefer[ring] one religion over anothe r” is subject to strict scrutiny. Id. at 246; see also Olsen v. DEA, 878 F.2d 1458, 1461 (D.C. Cir. 1989) (observing that “[a] statutory exemption authorized for one church alone, and for which no other c hurch may qualify,” creates a “den ominational preference”). Thus, for exam ple, the Supreme Court has struck down on Establishm ent Clause grounds a state statute that was “d rafted with the explicit inte ntion” of requiring “particular religious denominations” to comply with registration and reporting requirements while excluding other religious denominations. Larson, 456 U.S. at 254; see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet , 512 U.S. 687, 703-07 (1994) (striking down statute that created special school district for religious enclave of Satm ar Hasidim because it “singl e[d] out a particu lar religious sect for specia l treatment”). The Court, on the ot her hand, has upheld a statute that provided an exemption from military service for persons who had a conscientious objection to all wars, but not those who objected to only a particular war. Gillette v. United States, 401 U.S. 437 (1971). The Court explained that the statu te did not discriminate among religions because “n o particular sectarian affiliation” was require d to qualify for conscien tious objector status. Id. at 450-51. “[C]onscientious objector status was availa ble on an equal basis to both the Quaker and the Roman Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (upholding RLUIPA a gainst Establishment Clause challenge because it did not
10 Even if the regulations were not neutral or generally applicable, plaintiffs’ free exercise challenge still would fail because the regulations satisfy strict scrutiny. See supra.
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“confer[] . . . privileged status on any particular religious sect” or “single[] out [any] bona fide

faith for disadvantageous treatment”).

Like the statutes at is sue in Gillette and Cutter, the preventive s ervices coverage

regulations do not grant any de nominational preference or ot herwise discriminate among

religions. It is of no mom ent that the religious employer exemption and accommodations for

eligible organizations apply to some employers but not others. “[T]he Establishment Clause does

not prohibit the government from [differentiating between organizations based on their structure

and purpose] when granting religious accommodations as long as the distinction[s] drawn by the

regulations . . . [are] not ba sed on religious affiliation.” Grote, 914 F. Supp. 2d at 954; accord

O’Brien, 894 F. Supp. 2d at 1163; see also, e.g., Children’s Healthcare Is a Legal Duty, Inc. v.

Min De Parle, 212 F.3d 1084, 1090-93 (8th Cir. 2000); Droz v. Comm’r of IRS , 48 F.3d 1120,

1124 (9th Cir. 1995) (concluding that religious exem ption from self-employment Social Security

taxes did not violate the Establishment Clause even though “some individuals receive

exemptions, and other individuals with identical beliefs do not”); Catholic Charities of the

Diocese of Albany , 859 N.E.2d at 468-69 (“This ki

nd of distinctio n—not between

denominations, but between religious organizations based on the nature of their activities—is not

what Larson condemns.”). Here, the distinctions established by the regulations are not so drawn.

The regulations’ definitions of religious em ployer and eligible organization “do[] not

refer to any particular denom ination.” Grote, 914 F. Supp. 2d at 954. The exemption and

accommodations are av ailable on a n equal bas is to o rganizations affiliated with a ny and a ll

religions. The regulations, therefore, do not di scriminate among religions in violation of the

Establishment Clause. Indeed, every court to have considered an Establishment Clause challenge

to both these regulations and to the prior version of the regul ations—which also included a

requirement that the organization be an organiza tion as described in section 6033(a)(3)(A)(i) or

(iii) of the Internal Revenue Code of 1986, as a mended—has rejected it. See Notre Dame, 2013

WL 6804773, at *18-20; Priests for Life, 2013 WL 6672400, at *14; Archbishop of Washington,

2013 WL 6729515, at *39-43; Diocese of Nashville, 2013 W L 6834375, at *8-10; Michigan

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Catholic Conf., 2013 WL 6838707, at *11; see also, e.g. , O’Brien, 894 F. Supp. 2d at 1162 (upholding prior versio n of religio us employer exemption because it did “not differentiate between religions, but applie[d] equally to all denom inations”); Conestoga, 917 F. Supp. 2d at 416-17 (same); Grote, 914 F. Supp. 2d at 954 (sam e); see also Liberty Univ., Inc. v. Lew , 733 F.3d 72, 100-102 (4th Cir. 2013) (upholding another religious exemption contained in the ACA against an Establishm ent Clause c hallenge because the exem ption “makes no e xplicit and deliberate distinctions between sects” (quotation omitted)).
“As the Suprem e Court has frequently articu lated, there is space betw een the religion clauses, in which there is ‘room for play in the joints;’ governm ent may encourage the free exercise of religion by granti ng religious acco mmodations, even if not required by the Free Exercise Clause, without running afoul of the Establishm ent Clause.” O’Brien, 894 F. Supp. 2d at 1163 (citations om itted). Accommodations of religion are poss ible because the type of legislative line-drawing to which th e plaintiffs object in this case is cons titutionally permissible. Id.; Conestoga, 917 F. Supp. 2d at 417; see, e.g., Walz v. Tax Commission of New York, 397 U.S. 664, 672-73 (1970) (upholding property tax exem ption “to religious organizations for religious properties used solely for religious worship”); Corp. of the Presiding Bishop v. Amos , 483 U.S. 327, 334 (1987) (upholding Title VII’s exem ption for religious organizations).11 For all of these reasons, Count III fails.12
D. The Regulations Do Not Violate the Right to Free S peech or Expressive Association Plaintiffs’ free speech claims fare no better. The right to freedom of speech “prohibits the government from telling people what they m ust say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). But the preven tive services coverage regulations do not “compel speech”—by plaintiffs or any othe r person, employer, or entity—in violation of
11 Even if th e regulations discriminate among religions (and they do not), they are valid under the Establishment Clause, because they satisfy strict scrutiny. See supra; Larson, 456 U.S. at 251-52. 12 Plaintiffs also that the regulations interfere with plaintiffs’ “internal decisions.” Compl. ¶¶ 227 -33. But that is merely a restatement of plaintiffs’ substantial burden theory, which fails for reasons explained already.
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the First Amendment. Nor do they limit what plaintiffs may say. Plaintiffs remain free under the regulations to express whatever views they may have on the use of contraceptive services (or any other health care services) as well as their views about the regulat ions. Plaintiffs, moreover, may encourage their employees not to use contraceptive services.
Indeed, every court to review a Free Speech challeng e like plaintiffs’ as to both the challenged regulations and the prior contraceptive-c overage regulations has rejected it, in part, because the regulations deal with conduct. See Priests for Life , 2013 WL 6672400, at *12-14 (“The regulations regarding contraceptiv e coverage, including the accommodation, place no limits on what Plaintiffs m ay say; they rem ain free to oppose contraceptive coverage for all people and in all form s. Rather, th e accommodation regulates conduct . . . And l ike the law schools in FAIR, the only speech the accommodations require of Priests for Life is incidental to the regulation of conduct.”); Notre Dame, 2013 W L 6804773, at *20-21; Archbishop of Washington, 2013 WL 6729515, at *31-36; Diocese of Nashville , 2013 W L 6834375, at *7-8; Michigan Catholic Conf., 2013 WL 6838707, at *9-10; see also, e.g., MK Chambers, 2013 WL 1340719, at *6; Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013) (“The plaintiffs cite no authority and I am not aware of any authority holding that such conduct qualifies as speech so as to trigger First Am endment protection.”); Conestoga, 917 F. Supp. 2d at 418; Grote, 914 F. Supp. at 955; Autocam, 2012 WL 6845677, *8; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento , 85 P.3d at 89; Catholic Charities of Diocese of Albany , 859 N.E.2d at 465. The accommodations likewise regul ate conduct by relieving an elig ible organization of the oblig ation “to contract, arrange, pay, or refer for contracep tive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6.
The regulations also do not requ ire plaintiffs to subsidize an y conduct that is “inherently expressive.” FAIR, 547 U.S. at 66; see also United Sta tes v. O’Brien, 391 U.S. 367, 376 (1968) (recognizing that some forms of “symbolic speec h” are protected by the First Amendment). As an initial matte r, the re gulations explicitly prohibit plaintiffs’ issuers/TPAs from imposing any cost sharing, premium, fee, or other charge on plaintiffs or their plans with respect to the separate
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payments for contraceptive services m ade by the issuers /TPAs. See 78 Fed. Reg. at 39,880, AR at 12. P laintiffs, therefore, are not funding or subsidizing anything pert aining to contraceptive coverage. Moreover, even if plaintiffs played so me role in an issuer’s or TPA’s provision of payments for contraceptive services (and they do not), making payments for health care serv ices is not the sort of conduct the Suprem e Court has recognized as inherently expressive. See Conestoga, 917 F. Supp. 2d at 418; Grote, 2012 W L 6725905, at *10; Autocam, 2012 WL 6845677, at *8 (“Including contraceptiv e coverage in a health car e plan is not inherently expressive conduct.”); O’Brien, 894 F. Supp. 2d at 1166-67 (“Givi ng or receiving health care is not a s tatement in the s ame sense as wearing a black arm band or burni ng an Am erican flag.” (internal citations omitted)); Catholic Charities of Sacramento , 85 P.3d at 89 (“a law regulating health care benefits is n ot speech”); Diocese of Albany, 859 N.E.2d at 465; see also FAIR, 547 U.S. at 65-66 (m aking space for m ilitary recruiters on cam pus is not conduct that indicates colleges’ support for, or sponsorship of, recruiters’ message).
Furthermore, plaintiffs are wrong when th ey contend that the regulations require plaintiffs to “facilitate access” to “counseling related to abortion.” Compl. ¶ 239. The regulations simply require coverage of “education and c ounseling for women with reproductive capacity.” HRSA Guidelines, AR a t 130-31. The conversations that may take place between a patient and her doctor cannot be known or screened in ad vance and may cover any num ber of options. To the extent that p laintiffs intend to argue that the cov ered education and counseling is objectionable because som e of the conversati ons between a doctor and one of plaintiffs’ employees might be supportive of som ething to which th ey object, accepting th is theory would mean that the Firs t Amendment is violated by the m ere possibility of an em ployer’s disagreement with a potential subject of disc ussion between an em ployee and her doctor, and would extend to all such intera ctions, not just those that ar e the su bject of the challenged regulations. The First Am endment does not require such a drastic result. See, e.g., Conestoga , 2013 WL 140110, at *17.
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Finally, the regulations do not violate the righ t to expressive association. To be s ure, “[t]he right to speak is often exercised most effectively by combining one’s voice with the voices of others.” FAIR, 547 U.S. at 68. “If the governm ent were free to restrict indi viduals’ ability to join together and speak, it could essentially silence views that the F irst Amendment is intended to protect.” Id. But the preventive services coverage re gulations do not interfere with plaintiff’ s right of expressive association. The regulations do not interfere in any way with the com position of plaintiffs’ workforces, f aculties, or student bodies. See Boy Scouts of Am. v. Dale , 530 U.S. 640, 656 (2000) (holding Boy Scouts’ freedom of expressive association was violated by law requiring organization to accept gay man as a scoutmaster); Roberts, 468 U.S. at 623 (concluding statute that forced group to accept women against its desires was subject to strict scru tiny). The regulations do not force plaintiffs to hire employees they do not wish to hire or to adm it students they do not desire to be a part of their schools . Moreover, plaintiffs, as well as their em ployees and students, are free to associate to voice thei r disapproval of the use of contraception and the regulations. Even the statu te at iss ue in FAIR, which required law schools to allow m ilitary recruiters on campus if other recruiters were allowed on campus, did not violate the law schools’ right to expression association. 547 U.S. at 68-70. The preventive services coverage regulations do not even implicate plaintiffs’ right. See Priests fo r Life, 2013 WL 6672400, at *13 (calling plaintiffs’ expressive association claim “devoid of merit”); MK Chambers, 2013 WL 1340719, at *6 (rejecting expressive association challenge to prior version of regulations); Diocese of Albany, 859 N.E. 2d at 465 (u pholding similar state law b ecause it “do es [not] com pel [plaintiffs] to associate, or prohibit them from associating, with anyone”).
Accordingly, plaintiffs’ free speech and e xpressive association claim s—Counts IV and VI—fail.
E. The Regulations Do Not Violate the Due Process Clause Plaintiffs’ claim that the prev entive services coverage regulati ons violate the Fifth Amendment’s Due Process Clause is m isdirected and baseless. A law is not uncon stitutionally vague unless it “fails to provide a person of ordinary intellig ence fair notice of what is
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prohibited” or “is so standardless that it author izes or encourages seriously d iscriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). Courts relax these standards where, as here, the law in question imposes civil rather than criminal penalties and does no t “interfere[] with the rig ht of free speech or of association .” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982). In any event, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010).
Plaintiffs do not even attem pt to identif y a source of vag ueness or confusion in the regulations. See Compl. ¶¶ 246-47. And plaintiffs evidentl y have no difficulty determ ining what the regulations require of them; at the very least, then, the regulations are not vague as applied to plaintiffs. See U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers , 413 U.S. 548, 579 (1973) (“Surely, there seemed to be little question in the minds of the plaintiffs who brought this lawsuit as to the m eaning of the law, or as to whether or not the conduct in which they desire to engage was or was not prohibited by the Act.”); Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.”). As in Humanitarian Law Project, “the dispositive point” is that the regulations’ terms “are clear in their application to plaintiffs’ proposed conduc t, which m eans that plaintiffs’ vagueness challenge must fail.” 130 S. Ct. at 2720.
Finally, plaintiffs m isunderstand the regulati ons when they assert that the regulations provide defendants with “unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations that possess religious beliefs.” Compl. ¶ 249. That is incorrect. Under the regulations at issue here, an or ganization that is organized and operates as a nonprofit entity and is referred to in section 6033(a )(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended, qualifies for the exemption. 45 C. F.R. § 147.131(a). A nd an organization that satisfies the four criteria to be an “eligible organization” is eligible for the accommodations. Id. § 137.131(b). There is therefore sim ply no discretion that is left to defendants to decide who is
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exempt or who is accommodated; the regulations set out the cr iteria for both determinations.13 Similarly, there is no m erit to plaintiffs’ allegation that the regulations—which contain specific criteria—will lead to discriminatory enforcement. For these reasons, Count V fails.
F. Plaintiffs’ APA Claims Fail 1. The regulations were promulgated in accordance with the APA
Plaintiffs assert that def endants failed to comply with the APA’s notice and comm ent procedures and the ACA’s tim ing provisions. These allegations are baseles s. The APA’s rulemaking provisions generally require that agencies provide notice of a proposed rule, invite and consider public comme nts, and adopt a final rule that includes a statement of basis an d purpose. See 5 U.S.C. § 553(b), (c). Defendants complied with these requirements.14
As to the challenged regulations, defe ndants issued the ANPRM on March 21, 2012, and solicited comments on it. 77 Fed. R eg. 16,501. Defendants then considered those comments and issued the NPRM on February 6, 2013, requesting comments on the proposals contained in it. 78 Fed. Reg. at 8457, AR at 166. Defendants received over 400,000 comments, and the preamble to the 2013 final rules contains a detailed discussi on both of the comments defendants received and of defendants’ responses to those comments. See 78 Fed. Reg. at 39,871-39,888, AR at 3-20. The mere fact that the regulations a s ultimately issued may not satisfy the p references of each and every commenter is certainly no t evidence that those comments were not considered. Given the range of interests and views am ong commenters, it is unlikely—if not im possible—that any regulation will be fully in line with the comments made by every commenter.
Plaintiffs also contend the regulations violate the ACA because plaintiffs believe they did not exist in final form for one year prio r to going into ef fect. This argum ent is based on a
13 The regulations permitted HRSA to create a religious employer exemption, and identified the criteria for such an exemption, and HRSA did so in its August 1, 2 011 action. See HRSA Guidelines. Any employer that m eets the criteria of a “religious em ployer” is exempt from the contraceptive-coverage requirement. See id.; see, e.g., Grote, 2012 WL 6725905, at *8. 14 To the extent plaintiffs attempt to raise any alleged insufficiencies or improprieties as to the prior, interim final rules, they are simply irrelevant. The regulations plaintiffs challenge here are an entirely different set of regulations. The relevant question is whether defendants complied with the APA as to these regulations, and as shown below, there is no question that they did.
37
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misunderstanding of both the ACA and the regulat ions. The provision of the ACA to which plaintiff refers, 42 U.S.C. § 300gg-13(b), requires only that there be a minim um interval of not less than one year between the date on which a recommendation or guideline is issued—here, the HRSA Guidelines—and the plan year for which the coverage of the services included in that recommendation or guideline m ust take effect. See 75 Fed. Reg. at 41,729, AR at 229. That requirement is clearly satisfied here: HR SA published its guide lines on August 1, 2011, see HRSA Guidelines, supra, and these regulations apply for plan years beginning on or after January 1, 2014, see 78 Fed. Reg. at 39,870, AR at 2. Nothing in the ACA prevents defendants from amending the regulations as they have done here, and because the required in terval relates only to the issuance of new recommendations or guidelines, nothing in the ACA requires defendants to provide an interval of one year between the promulgation of these amendments and the date on which the required coverage must take effect.
2. The regulations are neither arbitrary nor capricious Plaintiffs’ claim that the re gulations are arb itrary and ca pricious is belied by the policymaking path discussed above, which illustrates that the regulations are neither arbitrary nor capricious. See Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (agency action m ust be upheld so l ong as “the agency’s path m ay reasonably be discerned”); DKT Mem’l Fund, Ltd. v. Agency for Int’l Dev. , 887 F.2d 275, 281 (D.C. Cir. 1989) (“The APA has never been construed to grant to th is or any other court th e power to review the wisdom of policy decisions of the President.”). Th e preamble to the rules al so sets out that pa th in detail, see 78 Fed. Reg. at 39,871-88, AR at 3-20, and ther e can be no serious question that it can be reasonably discerned. Similarly, plaintiffs’ brazen claim that defendants failed to consider the constitutional and statutory im plications of the regulations is flatly contradicted by the record, which explicitly discusses that very issue. See 78 Fed. Reg. at 39,886-88, AR at 18-20. Instead of pointing to anywhere in the r ecord where defendants did not “articulate a satisfactory explanation for [their] action,” State Farm, 463 U.S. at 43, plaintiffs resort to complaining about the content of th e regulations themselves. Just as the fact that plaintiffs are
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disappointed that the regulations are not in keeping w ith all of their comm ents does not m ean

that defendants failed to consider plaintiffs’ comments, plaintiffs’ contrary policy preferences do

not render the regulations arbitrary or capricious. The regul ations are consistent with th e

proposals contained in the ANPRM and the NPRM, and, as the re cord reflects, represent the

logical outgrowth of those proposals and the hundreds of thousands of comments received.

3. The regulations do not violate restrictions relating to abortion

Plaintiffs contend the regulations violate the APA because they conflict with three federal

statutes dealing with abortion: section 1303(b)(1 ) of the ACA, the W eldon Amendment, and the

Church Amendment. Plaintiffs appear to reason that, becau se the p reventive services coverage

regulations require group health plans to cover emergency contraception, such as Plan B, they in

effect require plaintiffs to provide coverage for abortions in violation of federal law.

Some of these argum ents should be rejected at the ou tset because plain tiffs lack

prudential standing to assert them . The doctrine of prudential stan ding requires that a plaintiffs’

claim fall within “the zone of interests to be protected or regulated by the statute or constitutional

guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp , 397 U.S. 150, 153

(1970). But the necessary link betw een plaintiffs and two of these statut es is missing here. See

Dialysis Ctrs., Ltd. v. Schweiker, 657 F.2d 135, 138 (7th Cir. 1981); O’Brien, 894 F. Supp. 2d at

1167-68 (holding that plaintiff lacked prudential standing to raise sim ilar claims).

Section 1303(b)(1) of the ACA provi des that “nothing in this title . . . shall be construed to

require a qualified health plan to provide

coverage of [abortion services],” 42 U.S.C.

§ 18023(b)(1)(A)(i), but plaintiffs are neither health insurance issuers nor purchasers of a qualified health plan.15 They therefore do not fall within the zone of interests to be protected by

the statute in question. Si milarly, the Church Amendment protects individuals from being

15 A “q ualified health plan,” within the meaning of this provision, is a h ealth plan that has been cert ified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance issuer. 42 U.S.C. § 18021(a)(1). Health insurance exchanges are to be set up by states n o later than January 1, 2014. Id. § 18031. Plaintiffs’ health insurance plans were n ot purchased on a health insurance exchange, and so none is a “qualified health plan.”
39
Case 5:13-cv-04100-MWB Document 12-3 Filed 01/10/14 Page 47 of 51

required to “perform or assist in the perform ance of any part of a hea lth service program or research activity funded . . . by the S ecretary of Health and Hum an Services if his perform ance or assistance . . . would be cont rary to his religious beliefs or moral convictions.” 42 U.S.C. § 300a-7(d). By merely providing a health plan to its employees, plaintiffs are not required to, and in fact do n ot, “perform or assi st in the performance” of a “hea lth service program or research activity funded . . . under a program administered by the Secretary of Health and Hum an Services” within the meaning of the Church Amendment. See Gray v. Romero, 697 F. Supp. 580, 590 n.6 (D.R.I. 1988). Nor are plaintiffs “individual[ s]” under that provision. They are therefore not within the Church Amendment’s zone of interests either.
Even if the Court were to reach the merits of these claims, and on the merits of plaintiffs’ Weldon Amendment claim, plaintiffs’ prem ise that the contracep tive coverage regulations require abortion coverage is fundam entally incorrect. The regulations do not require that any health plan cover abortion as a prev entive service, or that it cover abortion at all, as that term is defined in federal law. Rather, the regulations require only that non-gr andfathered, non-exempt and non-accommodated group health plans cove r all FD A-approved “contraceptive m ethods, sterilization procedures, and patie nt education and counseling,” as prescribed by a health care provider. See HRSA Guidelines, supra. And the governm ent has made clear that the preventive services covered by th e regulations do not incl ude abortifacient drugs. 16 Although plaintiffs believe that Plan B, ella, and certain IUDs are abortifacient drugs or cause abortions, neither the government nor this Cou rt is required to accep t that characterization, which is inconsisten t with the FDA’s scien tific assessment and with f ederal law. W hile plaintiffs’ religious belief s may define abortion m ore broadly than federal law to include em ergency contraception and certain IUDs, statutory interpretation requires that term s be construed as a matter of law and not in accordance with any particular individual’s views or beliefs. See Michigan Catholic Conf., 2013
16 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited Jan. 9, 2 014); see also IOM REP. at 22 (recognizing that abortion services are outside t he scope of permissible recommendations), AR at 320.
40 Case 5:13-cv-04100-MWB Document 12-3 Filed 01/10/14 Page 48 of 51

WL 6838707, at *13 (“Plaintiffs believe that FDA-approved emergency contraceptives are

‘abortion-inducing products’—as is their righ t. However, federa l law does not define them as

such. Accordingly, the regulations are not contra ry to law, and Plaintiffs’ APA cl aim fails.”)

(citation omitted); Gov’t Empls. Ins. Co. v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).

In recommending what contraceptive services should be covered by health plans w ithout

cost-sharing, the IOM Report iden tified the contraceptives that have been approved by the FDA

as safe and effective. See IOM R EP. at 10, AR at 308. And the list of FDA-approved

contraceptives includes emergency contraceptives such as Plan B. See id. at 105, AR at 403. The

basis for the inclusion of such drugs among safe and effective means of contraception dates back

to 1997, when the FDA first explained why Plan B a nd similar drugs act as contraceptives rather

than abortifacients. See Prescription Drug Products; Certain Combined Oral Contraceptives fo r

Use as Postcoital Em ergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 19 97) (noting

that “emergency contraceptive pills are not effective if the wom an is pregnant” and that there is

“no evidence that [em ergency contraception] will have a n adverse e ffect on an established

pregnancy”); 45 C.F.R. § 46.202 (f) (“Pregnancy encompasses the period of ti me from

implantation until de livery.”). In lig ht of this conclusion by the FDA, HHS inf ormed Title X

grantees, which are required to o ffer a rang e of accep table and effective fam ily planning

methods—and may not offer abortion except under limited circumstances (e.g., rape, incest, or

when the life of the wom an would be in danger)—t hat they “should consider the availability of

emergency contraception the sam e as any other method which has been established as safe and

effective.” Office of Population

Affairs, Memorandum (Apr. 23, 1997),

http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Jan. 9, 2014); see also 42 U.S.C. §§

300, 300a-6.

Because they reflect a settled understanding of FDA-approved contraceptives that is in

accordance with existin g federal laws prohibiti ng federal f unding for certain abo rtions, the

regulations are consistent with over a decade of regulatory policy and practice and thus cannot be

41 Case 5:13-cv-04100-MWB Document 12-3 Filed 01/10/14 Page 49 of 51

deemed contrary to any law dea ling with abo rtion.17 See Bhd. of R.R. Signalmen v. Surface
Transp. Bd., 638 F.3d 807, 815 (D.C. Cir. 2011) (giving particular deference to an agency’s
longstanding interpretation) (citing Barnhart v. Walton, 535 U.S. 212, 220 (2002)).
Plaintiffs’ APA claims—collected at Count VII— thus fail.
CONCLUSION
For the foregoing reasons, defendants respectfully ask that the Court grant defendants’
motion to dismiss or, in the alternative, for summary judgment on all of plaintiffs’ claims.
Respectfully submitted this 10th day of January, 2014,
STUART F. DELERY Assistant Attorney General
SEAN R. BERRY United States Attorney
JENNIFER RICKETTS Director
SHEILA M. LIEBER Deputy Director
_/s/ Michael C. Pollack______________ MICHAEL C. POLLACK (NY Bar) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 7222 Washington, DC 20530 Tel: (202) 305-8550 Fax: (202) 616-8470 Email: michael.c.pollack@usdoj.gov
Attorneys for Defendants
17 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of cont raceptive services has neve r been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as th e morning-after pill. . . . [U]nd er the current FDA policy[,] that is co nsidered contraception, and it is no t affected at all by this statute.”). His stat ement leaves little doubt that the Weldon Amendment was not intended to apply to emergency contraceptives. See Fed. Energy Admin. v. Algo nquin SNG, Inc., 426 U.S. 548, 564 (1976) (indicating that a st atement of o ne of the legislation’s sponsors deserves to be accorded substantial weight in interpreting a statute).
42
Case 5:13-cv-04100-MWB Document 12-3 Filed 01/10/14 Page 50 of 51

CERTIFICATE OF SERVICE I hereby certify that on January 10, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
_/s/ Michael C. Pollack__________ MICHAEL C. POLLACK
43 Case 5:13-cv-04100-MWB Document 12-3 Filed 01/10/14 Page 51 of 51

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

DORDT COLLEGE and CORNERSTONE UNIVERSITY,
Plaintiffs, vs.
KATHLEEN SEBELIUS, in her official capacity as Secretary, United States Department of Health and Human Services, et al.,

No. C 13-4100-MWB
ORDER REGARDING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Defendants. ___________________________

This case is before me on Plaintiffs Dordt College’s (Dordt’s) and Cornerstone University’s (Cornerstone’s) motion for a preliminary injunction, filed on May 6, 2014 (docket no. 44). In their motion, Plaintiffs ask that I enjoin enforcement of “the Mandate”—the provision of the Patient Protection and Affordable Care Act of 2010 (ACA) requiring that group health plans and health insurance issuers provide coverage, without cost sharing, for certain female contraceptives. See 42 U.S.C. § 300gg– 13(a)(4).1 Plaintiffs are religiously oriented colleges that must offer their employees

1 Regulations implementing the Mandate provide that certain types of contraceptives— like Plan B and Ella, which Plaintiffs deem religiously objectionable—must be covered:
The Health Resources and Services Administration has issued guidelines requiring coverage for “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”
(Footnote continued . . .

ACA-compliant health insurance, or face severe penalties. Plaintiffs claim that the Mandate violates the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb–4. Defendants2 resist Plaintiffs’ motion (docket no. 45). For the reasons discussed below, Plaintiffs’ motion is granted.

Women’s Preventive Services: Required Health Plan

Coverage Guidelines, Health Resources and Services

Administration, http://www.hrsa.gov/womensguidelines/

(last visited Dec. 31, 2012). The FDA has approved several

contraceptive methods, including Plan B, Ella, and copper

intrauterine devices (IUDs). Birth Control Guide, FDA

Office

of

Women’s

Health,

www.

fda.gov/downloads/ForConsumers/ByAudience/ForWomen/

FreePublications/UCM282014.pdf.

The government issued a regulation (contraceptive mandate) that adopted the Health Resources and Service Administration guidelines as final. 77 Fed.Reg. 8725. Group health plans and health insurance issuers are required to provide coverage consistent with the guidelines, without cost sharing, in plan or policy years beginning on or after August 1, 2012. Id. at 8725–26.

Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12 CV 92 DDN, 2013 WL 6858588, at *1 (E.D. Mo. Dec. 30, 2013) (footnote omitted). 2 I recognize that defendant Kathleen Sebelius has resigned as Secretary of the Department of Health and Human Services. Her successor, however, has not yet been confirmed. When the next Secretary is confirmed, I will substitute the successor as a defendant per Federal Rule of Civil Procedure 25(d), which provides:

An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted as a party. Later proceedings should be in the substituted party’s name, but any misnomer not affecting the parties’ substantial rights

(Footnote continued . . . 2

“RFRA . . . provides that the Government cannot impose a law that substantially burdens a person’s free exercise of religion unless the Government demonstrates that the law (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Harrell v. Donahue, 638 F.3d 975, 983 (8th Cir. 2011) (quoting 42 U.S.C. § 2000bb–1(b)(1)–(2)) (internal quotation marks omitted). Plaintiffs argue that the Mandate substantially burdens their free exercise of religion by requiring Plaintiffs to offer insurance that facilitates access to contraceptives that Plaintiffs deem religiously objectionable. Plaintiffs also argue that the Mandate is not the least-restrictive means to advance any compelling governmental interest. Thus, Plaintiffs request that I enjoin enforcement of the Mandate as it applies to their employee health-insurance plans.
In support of their claims, Plaintiffs rely on their verified complaint and 26 employee declarations. I may grant a preliminary injunction based on such evidence. See Doe v. S. Iron R-1 Sch. Dist., 498 F.3d 878, 880 (8th Cir. 2007) (affirming a preliminary injunction based on a verified complaint and additional documents); Movie Sys., Inc. v. MAD Minneapolis Audio Distributors, 717 F.2d 427, 432 (8th Cir. 1983) (holding that courts may rely solely on affidavits in granting preliminary injunctions); see also K-2 Ski Co. v. Head Ski Co., 467 F.2d 1087, 1088 (9th Cir. 1972) (“A verified complaint or supporting affidavits may afford the basis for a preliminary injunction[.]” (citations omitted)).
Plaintiffs filed their motion for a preliminary injunction while their underlying suit challenging the Mandate is currently pending before me. In a recent order (docket
must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution.
3

no. 43), I informed the parties that I would wait to resolve the Plaintiffs’ underlying claims until after the United States Supreme Court decided Sebelius v. Hobby Lobby Stores, Inc., No. 13-354, and Conestoga Wood Specialties Corp. v. Sebelius, No. 13356, because those decisions will likely impact, and may even resolve, part of this case. But, according to Plaintiffs, the Mandate will take effect against Dordt starting on June 1, 2014—before the Supreme Court will likely decide Hobby Lobby and Conestoga Wood. Thus, Plaintiffs ask that I enjoin enforcement of the Mandate until I rule on the merits of their underlying claims, which I expect to do shortly after the Supreme Court decides Hobby Lobby and Conestoga Wood. While Plaintiffs’ underlying complaint comprises multiple claims, Plaintiffs rely solely on their RFRA claim in requesting a preliminary injunction.
In deciding whether to grant a preliminary injunction, I apply the four factors set forth in Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109 (8th Cir. 1981). The Dataphase factors are “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Id. at 114.
Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 893 (8th Cir. 2013). Generally, the moving party need not “prove a greater than fifty per cent likelihood that [it] will prevail on the merits.” Dataphase, 640 F.2d at 113. Rather, the movant need only show a “fair chance” of prevailing. Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 690 (8th Cir. 2003). Ultimately, “the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase, 640 F.2d at 113 (footnote omitted). Each case
4

must be examined in the context of the relative injuries to the parties and the public. If the chance of irreparable injury to the movant should relief be denied is outweighed by the likely injury to other parties litigant should the injunction be granted, the moving party faces a heavy burden of demonstrating that he is likely to prevail on the merits. Conversely, where the movant has raised a substantial question and the equities are otherwise strongly in his favor, the showing of success on the merits can be less.
Id. Thus, “where the balance of other factors [besides probability of success] tips decidedly toward plaintiff a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation.” Id.
I recognize that “where a preliminary injunction of a duly enacted . . . statute is sought, [courts] require a more rigorous threshold showing that the movant is likely to prevail on the merits.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 730 (8th Cir. 2008) (en banc); see also Johnson v. Minneapolis Park & Recreation Bd., 729 F.3d 1094, 1098 (8th Cir. 2013) (noting that this “more rigorous threshold” applies to injunctions of federal statutes). “[A] party seeking a preliminary injunction of the implementation of a . . . statute must demonstrate more than just a ‘fair chance’ that it will succeed on the merits.” Planned Parenthood, 530 F.3d at 731-32. “We characterize this more rigorous standard . . . as requiring a showing that the movant ‘is likely to prevail on the merits.’” Id. at 732 (citations omitted). This heightened standard for enjoining a statute “reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly.” Id. (citation and internal quotation marks omitted).
But this case is somewhat unique in that both parties claim fidelity to democratically enacted statutes. Plaintiffs seek to enforce RFRA whereas Defendants seek to enforce ACA. Whether I grant or deny injunctive relief, I risk wrongly
5

effectuating one statute at the expense of the other. Presumably, I must be equally deferential to both statutes. Because both parties ask that I enforce a duly enacted statute, Planned Parenthood’s “more rigorous threshold” applies with less force to this case. But, as I note below, even if it applies with full force, the Eighth Circuit Court of Appeals has already twice concluded that plaintiffs similarly situated to Dordt and Cornerstone are likely to succeed on the merits of their cases challenging the Mandate.
Applying the Dataphase factors, I find that granting Plaintiffs preliminary injunctive relief is appropriate. First, Plaintiffs may suffer irreparable harm without an injunction in that they would be forced to comply with the Mandate to the detriment of their religious exercise. Even if I were to later grant Plaintiffs relief on their underlying claims, that would not remedy the harm caused by forcing the Plaintiffs to do something they deem religiously objectionable. Second, the balance of the equities favors granting a preliminary injunction. The only harm Defendants may suffer if I grant a preliminary injunction is that the Mandate may apply to Plaintiffs a few months later than expected. Third, Plaintiffs have shown that they are sufficiently likely to succeed on the merits. I base this finding on the fact that the Eighth Circuit Court of Appeals has twice granted injunctions pending appeal to similarly situated plaintiffs challenging the Mandate under RFRA.3 See Order, O’Brien v. U.S. Dep’t of Health &
3 Defendants argue that these prior injunctions are inapposite because they involved differently situated, for-profit companies, rather than institutions like Dordt and Cornerstone that are eligible for religious accommodations related to the Mandate. Defendants’ argument seems to be that, because accommodations are available to Dordt and Cornerstone, the Mandate does not apply to them with the same force as it would to for-profit companies and, therefore, the reasons supporting injunctions to for-profit companies do not apply here. But, in Annex Medical, Inc. v. Sebelius, No. 13-1118, 2013 WL 1276025, at *1, 3 (8th Cir. Feb. 1, 2013), the Eighth Circuit Court of Appeals granted an injunction in favor of a plaintiff corporation to which the Mandate
(Footnote continued . . . 6

Human Servs., No. 12–3357 (8th Cir. Nov. 28, 2012) (granting similar plaintiffs an injunction pending appeal); Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 WL 1276025, at *3 (8th Cir. Feb. 1, 2013) (noting that “the O’Brien panel necessarily concluded that the [similar plaintiffs] satisfied the prerequisites for an injunction pending appeal, including a sufficient likelihood of success on the merits and irreparable harm”); see also Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-CV-92-DDN, 2012 WL 6738489, at *6 (E.D. Mo. Dec. 31, 2012) (finding that similar plaintiffs demonstrated a reasonable likelihood of success). And “there is a significant interest in uniform treatment of comparable requests for interim relief within this circuit.” Annex Med., 2013 WL 1276025, at *3. Finally, there is no evidence here that the public interest strongly favors either side. Weighed together, these factors support Plaintiffs’ request for a preliminary injunction.
The only remaining issue is bond. “The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). “The amount of the bond rests within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of that discretion.” Stockslager v.
does not even apply. The plaintiff in Annex Medical had fewer than 50 employees and, thus, was not required to provide ACA-compliant insurance to employees. Id. at *1 (citing 26 U.S.C. § 4980H(c)(2)(A)). The plaintiff’s owner, however, claimed that it was his religious duty to provide insurance even though ACA did not require it. Id. On these facts, the Eighth Circuit Court of Appeals enjoined enforcement of the Mandate against the plaintiff. Id. at *3. The Mandate applied to the plaintiff in Annex Medical with even less force than it applies to Dordt or Cornerstone, yet the plaintiff in Annex Medical still received injunctive relief. Rather than being inapposite, this weighs in favor of granting injunctive relief here.
7

Carroll Elec. Co-op. Corp., 528 F.2d 949, 951 (8th Cir. 1976) (citation omitted). There is no risk of monetary loss to Defendants here; the only arguable harm is that the Mandate might apply to the Plaintiffs a few months later than expected. Thus, Plaintiffs need not submit security in this case. See Sharpe Holdings, 2012 WL 6738489, at *7 (temporarily restraining enforcement of the Mandate without requiring the plaintiffs to submit bond).
THEREFORE, I ORDER THE FOLLOWING: (1) The Plaintiffs’ motion for a preliminary injunction (docket no. 44) is granted. (2) Defendants are enjoined, pending resolution of Plaintiffs’ underlying claims,
from enforcing the Mandate of 42 U.S.C. § 300gg–13(a)(4) and its implementing regulations against Dordt, Cornerstone, and any insurance provider (including insurance issuers and third-party administrators) offering health insurance to Dordt or Cornerstone. This injunction shall apply only with regard to health insurance offered to Dordt and Cornerstone employees. Plaintiffs need not submit bond. IT IS SO ORDERED. DATED this 21st day of May, 2014.
______________________________________ MARK W. BENNETT U.S. DISTRICT COURT JUDGE NORTHERN DISTRICT OF IOWA
8

 
 United States Court of Appeals
For the Eighth Circuit ___________________________
No. 14-2726 ___________________________
Dordt College; Cornerstone University
lllllllllllllllllllll Plaintiffs - Appellees
v.
Sylvia M. Burwell, 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; Jack 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; United States Department of the Treasury
lllllllllllllllllllll Defendants - Appellants
------------------------------
Americans United For Separation of Church and State; American Civil Liberties Union; American Civil Liberties Union of Iowa
lllllllllllllllllllll Amici on Behalf of Appellant(s)
Association of American Physicians & Surgeons; American Association of Pro-Life Obstetricians & Gynecologists; Christian Medical Association; Catholic
Medical Association; The National Catholic Bioethics Center; Alabama Physicians for Life; National Association of Pro Life Nurses; National Association
of Catholic Nurses
lllllllllllllllllllllAmici on Behalf of Appellee(s) ____________

Appeal from United States District Court for the Northern District of Iowa - Sioux City
____________
Submitted: December 10, 2014 Filed: September 17, 2015 ____________
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges. ____________
WOLLMAN, Circuit Judge.
The Departments of Health and Human Services (HHS), Labor (DOL), and Treasury, as well as their respective Secretaries, (collectively, the government) appeal from the district court’s1 order granting a motion for a preliminary injunction that enjoins the government from enforcing certain provisions of the Patient Protection and Affordable Care Act (ACA), 42 U.S.C. § 300gg-13(a)(4), and its implementing regulations against Dordt College and Cornerstone University, each of which is a nonprofit religious educational institution that offers healthcare coverage to its employees—Dordt through a self-insured plan and Cornerstone through an insured plan.2 The district court’s order also enjoined the government from enforcing the
1The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa.
2A self-insured employer bears the financial risk of paying its employees’ health-insurance claims and often hires a third-party administrator to manage administrative functions like processing insurance claims. An insured employer, by contrast, contracts with a separate insurance company to provide healthcare coverage, bear the financial risk of insurance claims, and manage related administrative functions. See, e.g., 1A Steven Plitt, et al., Couch on Insurance § 10:1 n.1 (3d ed. 2013).
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challenged provisions against “any insurance provider (including insurance issuers and third-party administrators) offering health insurance to Dordt or Cornerstone.” D. Ct. Order of May 21, 2014, at 8. Dordt and Cornerstone raised objections to the ACA and its implementing regulations that are substantially similar to those addressed by this court in the opinion issued today in Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services, No. 14-1507, slip op. (8th Cir. Sept. 17, 2015). For purposes of this opinion, we provide only a brief discussion of the legislative and administrative background of the ACA and its implementing regulations, as well as an abbreviated summary of the arguments raised by the parties. For a more detailed examination, we direct readers to our opinion in Sharpe Holdings.
Dordt and Cornerstone challenged provisions of the ACA and its implementing regulations requiring them either to provide their employees with healthcare coverage for “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity” (the contraceptive mandate), or to apply for an accommodation excusing them from providing such coverage. 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012); see 29 C.F.R. § 2590.715-2713(a). Although the ACA provides an exemption from the contraceptive mandate for “grandfathered” health plans, , those in existence at the time of the ACA’s adoption, 42 U.S.C. § 18011;
i.e. 29 C.F.R. § 2590.715-1251, and for health plans sponsored by “religious employers,”
, “churches, their integrated auxiliaries, and conventions or associations of i.e. churches,” as well as “the exclusively religious activities of any religious order,” 45 C.F.R. § 147.131(a) (citing the Internal Revenue Code, 26 U.S.C. § 6033(a)(3)(A)(i), (iii)), it does not provide a similar exemption for nonprofit religious organizations like Dordt and Cornerstone.
Instead, the ACA provides an “accommodation” for nonprofit religious organizations that have religious objections to the contraceptive mandate but do not
-3-

qualify for the religious-employer exemption.3 78 Fed. Reg. 39,870, 39,871 (July 2, 2013); see also 29 C.F.R. § 2590.715-2713A. The accommodation is intended to protect religious organizations “from having to contract, arrange, pay, or refer for” contraceptive coverage. 78 Fed. Reg. at 39,872. It is available for a religious organization that (1) has religious objections to providing healthcare coverage for some or all contraceptive services, (2) “is organized and operates as a nonprofit entity,” (3) “holds itself out as a religious organization,” and (4) complies with a selfcertification process. 29 C.F.R. § 2590.715-2713A(a). A religious organization may self-certify by completing and submitting directly to its insurance issuer or third-party administrator (TPA) an EBSA Form 700–Certification (Form 700), certifying that it is a religious nonprofit entity that has religious objections to providing coverage for some or all of the contraceptives required by the mandate, 29 C.F.R. § 2590.7152713A(a)-(b), or by providing notice to HHS stating the organization’s name; the basis on which it qualifies for an accommodation; its religious objections to providing coverage for some or all contraceptives, including the specific contraceptives to which it objects; its insurance plan name and type; and its insurance issuer’s or TPA’s name and contact information (HHS Notice),4 see 79 Fed. Reg. 51,092, 51,094-95
3After the Supreme Court’s decision in Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014), the government revised the relevant regulations effective September 14, 2015, to extend this accommodation to certain closely held for-profit entities that have a religious objection to providing coverage for some or all of the FDA-approved contraceptive methods. See 80 Fed. Reg. 41,318 (July 14, 2015).
4Self-certification using HHS Notice was included in the regulations after the Supreme Court’s order in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). Wheaton College, a religious organization, challenged the accommodation process, arguing that completing Form 700 and forwarding the Form to its insurance issuer made it complicit in the provision of contraceptive coverage in violation of its religious beliefs. The Supreme Court granted injunctive relief, enjoining the government from enforcing the contraceptive mandate while the college’s challenge to the accommodation process was pending, provided that the college inform HHS
-4-

(Aug. 27, 2014); 80 Fed. Reg. 41,318, 41,323 (July 14, 2015); 29 C.F.R. § 2590.7152713A(b)(1)(ii)(B). After HHS receives the Notice, it provides the information to DOL, which sends a separate notification to inform the religious organization’s insurance issuer or TPA of the organization’s objections to certain coverage. See id.
Once an insurance issuer or TPA receives Form 700 from the religious organization or the separate notification from DOL it must “provide or arrange payments for contraceptive services” for beneficiaries of the organization’s group health plan either by providing those payments itself or by arranging for another party to do so. 29 C.F.R. § 2590.715-2713A(b)(2) (TPA); 45 C.F.R. § 147.131(c)(1)(i) (insurance issuer). With respect to TPAs, Form 700 or HHS notice also designates the TPA “plan administrator and claims administrator for contraceptive benefits” for the religious organization. 78 Fed. Reg. at 39,879; see also 29 C.F.R. § 2510.3-16(b) (providing that Form 700 becomes “an instrument under which the plan is operated [and is] treated as a designation of the [TPA] as the plan administrator under section 3(16) of ERISA[, 29 U.S.C. § 1002(33),] for any contraceptive services required to be covered”); 79 Fed. Reg. at 51,095 (providing that DOL’s notification to the TPA under HHS Notice also operates to “designate” the TPA “as plan administrator” under ERISA for contraceptive benefits). The insurance issuer or TPA must provide separate notice regarding contraceptive services to participants and beneficiaries enrolled in the religious organization’s group health plan. 29 C.F.R. § 2590.7152713A(b)(2).
“in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” 134 S. Ct. at 2807. The college was not required to self-certify using Form 700. Id. The Court also stated, “Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the” ACA to Wheaton College’s employees and students. Id.
-5-

Dordt and Cornerstone, in accordance with their sincerely held religious beliefs, oppose the use, funding, provision, or support of abortion, and they believe that certain contraceptives required under the contraceptive mandate—Plan B, ella, and copper IUDs—are functionally equivalent to abortion. See Burwell v. Hobby Lobby, 134 S. Ct. 2751, 2762-63 (2104) (noting that these forms of contraceptive “may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus”). They brought suit against the government, arguing that both the contraceptive mandate and the accommodation process impose a substantial burden on their exercise of religion in violation of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb-bb4. They contend that the government is coercing them to violate their religious beliefs by threatening to impose severe monetary penalties unless they either directly provide coverage for objectionable contraceptives through their group health plans or indirectly provide, trigger, and facilitate that objectionable coverage through the accommodation process. As stated above, the district court granted their request for a preliminary injunction to enjoin enforcement of the contraceptive mandate and the accommodation regulations against them.
The government raises arguments for reversal of the district court’s order that are substantially similar to those asserted by the government in Sharpe Holdings. Specifically, the government argues that the contraceptive mandate and accommodation process do not substantially burden Dordt and Cornerstone’s exercise of religion, that it has compelling interests in safeguarding public health and ensuring equal access to health care for women, and that the contraceptive mandate and accommodation process are the least restrictive means to further those compelling interests. For the reasons set forth in Sharpe Holdings, we conclude that by coercing Dordt and Cornerstone to participate in the contraceptive mandate and accommodation process under threat of severe monetary penalty, the government has substantially burdened Dordt and Cornerstone’s exercise of religion. Also for the
-6-

reasons set forth in Sharpe Holdings, we conclude that, even assuming that the government’s interests in safeguarding public health and ensuring equal access to health care for women are compelling, the contraceptive mandate and accommodation process likely are not the least restrictive means of furthering those interests.5 Thus, based on our reasoning in Sharpe Holdings, we affirm the order granting injunctive relief.
______________________________
5Dordt and Cornerstone argue that the government’s asserted “compelling interests” are fatally undermined in light of the exemptions to the contraceptive mandate and accommodation process granted to grandfathered healthcare plans and religious employers—exemptions that result in thousands of women without access to contraceptive coverage through their employers’ healthcare plans. Because we affirm the district court’s grant of injunctive relief on the basis that the government has failed to establish that the contraceptive mandate and accommodation process are the least restrictive means to accomplish their stated compelling interests, we decline to address Dordt and Cornerstone’s assertions regarding the insufficiency of the government’s compelling interests. See Hobby Lobby, 134 S. Ct. at 2780 (“We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA . . . .”).
-7-

 
 136 S.Ct. 2006 Supreme Court of the United States
Sylvia BURWELL, Secretary of Health and Human Services, et al., petitioners, v. DORDT COLLEGE, et al.
No. 15–774. |
May 16, 2016.
Opinion
On petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit. Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Eighth Circuit in light of Zubik v. Burwell, 578 U.S. –––– (2016). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by respondents’ health plans ‘obtain, without cost, the full range of FDA approved contraceptives.’ Wheaton College v. Burwell, 573 U.S. ––––, –––– (2014) (slip op., at 1). Through this litigation, respondents have made the

Government aware of their view that they meet ‘the requirements for exemption from the contraceptive coverage requirement on religious grounds.’ Id., at –––– (slip op., at 2). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, ‘precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage’ going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on respondents for failure to provide the relevant notice.
Justice SOTOMAYOR, with whom Justice GINSBURG joins, concurs in the decision to grant, vacate, and remand in this case for the reasons expressed in Zubik v. Burwell, 578 U.S. –––– (2016) (Sotomayor, J., concurring).
All Citations
136 S.Ct. 2006 (Mem), 195 L.Ed.2d 209, 84 USLW 3349, 84 USLW 3626, 84 USLW 3630

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

DORDT COLLEGE and CORNERSTONE UNIVERSITY,
Plaintiffs, vs.
ALEX M. AZAR II, in his official capacity as Secretary of the United States Department of Health and Human Services, et al.,
Defendants.

No. C 13-4100-MWB
ORDER ON PLAINTIFFS’ MOTION FOR PERMANENT
INJUNCTION AND DECLARATORY RELIEF
and PERMANENT INJUNCTION AND
DECLARATION

___________________________

This case is before me on the Motion for Permanent Injunction and Declaratory Relief (docket no. 81) filed by Plaintiffs Dordt College and Cornerstone University. Having considered the parties’ briefs and all relevant legal authority, Defendants’ representations that they are no longer raising a substantive defense to Plaintiffs’ Religious Freedom Restoration Act claims regarding compliance with the HHS Mandate and rules issued by Defendants with regard to the HHS Mandate, Plaintiffs’ motion is granted.
THEREFORE, I conclude that Dordt College and Cornerstone University have met the standards for injunctive and declaratory relief.
First, Plaintiffs have demonstrated, and Defendants now concede, that requiring them to comply with 42 U.S.C. § 300gg-13(a)(4), to the extent such compliance violates their religious beliefs, violates Plaintiffs’ rights protected by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

Case 5:13-cv-04100-MWB-CJW Document 85 Filed 06/12/18 Page 1 of 3

Second, Plaintiffs will suffer irreparable harm unless Defendants are enjoined from violating these rights.
Third, the harm Plaintiffs will suffer in the absence of a permanent injunction and declaratory judgment outweighs any injury to Defendants resulting from this injunction.
Fourth, the public interest in the vindication of religious freedom favors the entry of an injunction and declaratory judgment.
It is therefore ORDERED that this Court’s previous preliminary injunction, docket no. 46, is hereby replaced in its entirety by the following:
It is ORDERED that Defendants, their agents, officers, and employees, and all others in active concert or participation with them, including their successors in office, are hereby PERMANENTLY ENJOINED AND RESTRAINED, as follows:
1. From any effort to apply or enforce against Plaintiffs, as their conduct relates to Plaintiffs’ health plans, the requirements of 42 U.S.C. § 300gg13(a)(4) and any implementing regulations as those requirements relate to the provision of drugs, devices, procedures, patient counseling and education, and any other services that violate Plaintiffs’ religious consciences, including services that Plaintiffs view as abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling; and
2. From pursuing, charging, or assessing penalties, fines, assessments, or any other enforcement actions against Plaintiffs, as their conduct relates to Plaintiffs’ health plans, for past, present, or future noncompliance with those requirements thereto, including those found in 26 U.S.C. § 4980D and 29 U.S.C. § 1132, for failing to offer, provide, or otherwise facilitate access to drugs, devices, procedures, patient counseling and education, and any other services that violate Plaintiffs’ religious consciences, including
2
Case 5:13-cv-04100-MWB-CJW Document 85 Filed 06/12/18 Page 2 of 3

services that Plaintiffs view as abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling. It is further DECLARED that the requirements of 42 U.S.C. § 300gg-13(a)(4), as those requirements relate to the provision of drugs, devices, procedures, patient counseling and education, and any other services that violate Plaintiffs’ religious consciences, including services that Plaintiffs view as abortion, abortifacients, embryoharming pharmaceuticals, and related education and counseling, violate Plaintiffs’ rights protected by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. It is further ORDERED that any petition by Plaintiffs for attorneys’ fees and costs shall be submitted no later than 45 days from the entry of judgment in this case. It is further ORDERED that this Court shall retain jurisdiction to enforce this order. IT IS SO ORDERED. DATED this 12th day of June, 2018.
______________________________________ MARK W. BENNETT U.S. DISTRICT COURT JUDGE NORTHERN DISTRICT OF IOWA
3
Case 5:13-cv-04100-MWB-CJW Document 85 Filed 06/12/18 Page 3 of 3

 
 CLOSED,PHV
U.S. District Court Northern District of Iowa (Western Division) CIVIL DOCKET FOR CASE #: 5:13−cv−04100−MWB−CJW

Dordt College et al v. Azar II et al Assigned to: Judge Mark W Bennett Referred to: Magistrate Judge CJ Williams−M Case in other court: 8th Circuit Court of Appeal, 14−02726 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 10/23/2013 Date Terminated: 06/14/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Dordt College

represented by Daniel D Dykstra Heidman Law Firm 112 Historic 4th Street ***ECF Sioux City, IA 51101 712 255 8838 Email: daniel.dykstra@heidmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeff W Wright Heidman Law Firm PLLC 1128 Historic 4th Street PO Box 3086 ***ECF Sioux City, IA 51101 712 255 8838 Email: jeff.wright@heidmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carole D Bos Bos & Glazier PLC 990 Monroe Avenue NW ***ECF Grand Rapids, MI 49503 616 458 6814 Email: cbos@bosglazier.com ATTORNEY TO BE NOTICED

David A Cortman Alliance Defending Freedom 1000 Hurricane Shoals Rd NE Suite D−1100 ***ECF Lawrenceville, GA 30043 770 339 0774 Email: dcortman@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED

Gregory Scott Baylor Alliance Defending Freedom 440 First Street NW Suite 600 ***ECF Washington, DC 20001 202 393 8690 Email: gbaylor@ADFlegal.org ATTORNEY TO BE NOTICED

Kevin H Theriot

Plaintiff Cornerstone University
V. Defendant Alex M Azar II

Alliance Defending Freedom 15192 Rosewood Street ***ECF Leawood, KS 66224 913 685 8000 Email: ktheriot@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED
Matthew Scott Bowman Alliance Defending Freedom 440 1st Street NW Suite 600 ***ECF Washington, DC 20001 202 393 8690 Email: mbowman@alliancedefendingfreedom.org TERMINATED: 01/16/2017
represented by Daniel D Dykstra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeff W Wright (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carole D Bos (See above for address) ATTORNEY TO BE NOTICED
David A Cortman (See above for address) ATTORNEY TO BE NOTICED
Gregory Scott Baylor (See above for address) ATTORNEY TO BE NOTICED
Kevin H Theriot (See above for address) ATTORNEY TO BE NOTICED
Matthew Scott Bowman (See above for address) TERMINATED: 01/16/2017
represented by Emily Sue Newton US Department of Justice 20 Massachusetts Ave NW ***ECF Washington, DC 20001 202 305 8356 Email: emily.s.newton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman

Defendant Thomas Perez in his official capacity as Secretary of the United States Department of Labor
Defendant Jack Lew in his official capacity as Secretary of the United States Department of the Treasury
Defendant United States Department of Health and Human Services

US Department of Justice Civil Division − Federal Programs Branch 20 Massachusetts Avenue NW ECF Washington, DC 20530 202 532 4252 Email: julie.saltman@usdoj.gov TERMINATED: 10/23/2017
Michael Charles Pollack US Department of Justice Civil Division − Federal Programs Branch 20 Massachusetts Avenue NW ECF Washington, DC 20530 202 305 8550 Email: michael.c.pollack@usdoj.gov TERMINATED: 06/10/2014
represented by Emily Sue Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) TERMINATED: 10/23/2017
Michael Charles Pollack (See above for address) TERMINATED: 06/10/2014
represented by Emily Sue Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) TERMINATED: 10/23/2017
Michael Charles Pollack (See above for address) TERMINATED: 06/10/2014
represented by Emily Sue Newton US Department of Justice 20 Massachusetts Ave NW ECF Washington, DC 20001 202 305 8356 Email: emily.s.newton@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) TERMINATED: 10/23/2017
Michael Charles Pollack

Defendant United States Department of Labor
Defendant United States Department of the Treasury
Amicus ACLU of Iowa

(See above for address) TERMINATED: 06/10/2014
represented by Emily Sue Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) TERMINATED: 10/23/2017
Michael Charles Pollack (See above for address) TERMINATED: 06/10/2014
represented by Emily Sue Newton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie Shana Saltman (See above for address) TERMINATED: 10/23/2017
Michael Charles Pollack (See above for address) TERMINATED: 06/10/2014
represented by Rita Bettis Austen ACLU of Iowa 901 Insurance Exchange Bldg. 505 Fifth Ave. Suite 808 ***ECF Des Moines, IA 50309 2317 515 207 0567 Email: rita.bettis@aclu−ia.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brigitte Amiri American Civil Liberties Union Foundation 125 Broad Street 18th Floor ***ECF New York, NY 10004 212 549 2633 Email: bamiri@aclu.org ATTORNEY TO BE NOTICED
Daniel Mach American Civil Liberties Union Foundation 915 − 15th Street 6th Floor ***ECF Washington, DC 20005 202 548 6604 Email: dmach@aclu.org ATTORNEY TO BE NOTICED

Amicus American Civil Liberties Union
Amicus Liberty, Life, and Law Foundation

Jennifer Lee American Civil Liberties Union Foundation 125 Broad Street 18th Floor ***ECF New York, NY 10004 212 549 2633 Email: jlee@aclu.org TERMINATED: 08/07/2017
Randall C Wilson Iowa Civil Liberties Union Foundation 901 Insurance Exchange Building 505 5th Avenue &ECF Des Moines, IA 50309 515 243 4032 Email: rwilson@aclu−ia.org TERMINATED: 08/07/2017
represented by Brigitte Amiri (See above for address) ATTORNEY TO BE NOTICED
Daniel Mach (See above for address) ATTORNEY TO BE NOTICED
Jennifer Lee (See above for address) TERMINATED: 08/07/2017
Randall C Wilson (See above for address) TERMINATED: 08/07/2017
represented by Micah Schreurs Woods, Fuller, Shultz & Smith P.C. 1201 S. 2nd Avenue #1 PO Box 469 Sheldon, IA 51201 United Sta 7126314056 Email: Micah.Schreurs@woodsfuller.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Jane Dewart 620 E. Sabiston Drive ***ECF Swansboro, NC 28584−9674 910 326 4554 Email: debcpalaw@earthlink.net ATTORNEY TO BE NOTICED

Date Filed 10/23/2013

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0862−1688068.), filed by Cornerstone University, Dordt College. Scheduling Report due by 3/5/2014 (Attachments: # 1 Civil Cover Sheet) (Wright, Jeff) (Entered: 10/23/2013)

10/24/2013 10/24/2013 10/24/2013 10/24/2013 10/29/2013 10/30/2013 10/30/2013 10/31/2013 12/12/2013
12/12/2013
01/10/2014
01/10/2014
01/10/2014
01/13/2014

Judge Mark W Bennett and Magistrate Judge Leonard T Strand added. Clerk checked for conflicts as to parties and attorneys − none found. Verified $400 Filing fee with IPM Report. (des) (Entered: 10/24/2013)
2 Summons Issued as to All Defendants. ****PLEASE MAKE COPIES OF SUMMONS FOR EACH DEFENDANT AND FILL IN REMAINING INFORMATION**** (Attachments: # 1 Civil Cases new case packet) (des) (Entered: 10/24/2013)
3 PURSUANT to Local Rule 7.1 Disclosure Statement by Cornerstone University, Dordt College (Wright, Jeff) (Entered: 10/24/2013)
4 NOTICE of Appearance by Jeff W Wright on behalf of Cornerstone University, Dordt College (Wright, Jeff) (Entered: 10/24/2013)
5 MOTION for Leave to Appear Pro Hac Vice by attorney Gregory Baylor (Pro Hac Vice Fee $ 75 receipt number 0862−1691084) by Plaintiffs Cornerstone University, Dordt College (Baylor, Gregory) Modified text on 10/30/2013 (kfs) (Entered: 10/29/2013)
6 ORDER: Granting 5 Motion for Leave to Appear Pro Hac Vice filed by attorney Gregory S Baylor as to Plaintiffs Dordt College and Cornerstone University. Signed by Clerk on 10/30/13. (kfs) (Entered: 10/30/2013)
7 NOTICE of Appearance by Gregory Scott Baylor on behalf of All Plaintiffs (Baylor, Gregory) (Entered: 10/30/2013)
8 AFFIDAVIT OF SERVICE by Cornerstone University, Dordt College on All Government Defendants (Baylor, Gregory) Modified text on 11/1/2013 (des). (Entered: 10/31/2013)
9 UNRESISTED Motion for Extension of Time to Respond to the Complaint by Defendants Jack Lew, Thomas Perez, Kathleen Sebelius, 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) (Pollack, Michael) (Entered: 12/12/2013)
10 ORDER granting 9 Motion for Extension of Time to Respond to 1 Complaint filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas Perez, United States Department of Labor, Jack Lew. The deadline is extended to 1/13/2014. Signed by Magistrate Judge Leonard T Strand on 12/12/2013. (des) (Entered: 12/12/2013)
11 NOTICE of Filing of Certified Administrative Record by Jack Lew, Thomas 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 Certification of the Record, # 2 Exhibit Record Index) (Pollack, Michael) Modified text on 1/13/2014 (des). (Entered: 01/10/2014)
12 MOTION to Dismiss for Failure to State a Claim (Responses due by 1/27/2014 , or in the alternative, MOTION for Summary Judgment (Responses due by 2/3/2014) by Defendants Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Statement of Material Facts, # 2 Appendix) (Pollack, Michael) Modified text on 1/13/2014 (des). (Additional attachment(s) added on 1/13/2014 pursuant to 14 Order: # 3 Brief) (des). (Entered: 01/10/2014)
13 UNRESISTED Motion for Leave to File Overlength Brief in Support of 12 Motion to Dismiss or, in the alternative, for Summary Judgment by Defendants Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Brief) (Pollack, Michael) (Entered: 01/10/2014)
DOCKET Annotation re 11 Notice of Filing Certified Administrative Record and 12 MOTION to Dismiss MOTION to Dismiss for Failure to State a Claim , or in the alternative MOTION for Summary Judgment : A hard copy of the Appendix from 12 Motion to Dismiss, along with 2 sets of 3 CD's containing the 11 Administrative

01/13/2014
01/14/2014 01/14/2014 01/15/2014
01/15/2014 01/15/2014 01/15/2014
01/21/2014 01/21/2014 01/21/2014 01/21/2014 02/05/2014 02/06/2014 02/06/2014

Record received in clerk's office. Appendix and 1 set of CD's forwarded to MWB chambers. The additional set of 3 CD's containing the 11 Administrative Record housed in clerk's office. (djs) (Entered: 01/13/2014)
14 ORDER granting 13 Unresisted Motion for Leave to File Overlength Brief in Support of 12 Motion to Dismiss or in the Alternative for Summary Judgment. The clerk shall detach and file Defendants' brief with Defendants' Motion to Dismiss or in the Alternative for Summary Judgment. Signed by Judge Mark W Bennett on 1/13/2014. (Clerk has attached brief to 12 Motion to Dismiss or in the Alternative for Summary Judgment) (des) (Entered: 01/13/2014)
15 NOTICE of Appearance by Randall C Wilson on behalf of ACLU of Iowa, American Civil Liberties Union. (Wilson, Randall) (Entered: 01/14/2014)
16 MOTION for Leave to File Brief of Amici by Amicus Parties ACLU of Iowa, American Civil Liberties Union (Attachments: # 1 Brief of Proposed Amici ACLU & ACLU of Iowa) (Wilson, Randall) (Entered: 01/14/2014)
17 MOTION for Leave to Appear Pro Hac Vice for Attorney Brigitte Amiri (Pro Hac Vice Fee $75 − Receipt Number 0862−1730778) filed by Amicus Parties ACLU of Iowa and American Civil Liberties Union (Attachment: # 1 Declaration Certificate of Good Standing) (Wilson, Randall) Modified text on 01/15/2014 (kfs) (Entered: 01/15/2014)
18 MOTION for Leave to Appear Pro Hac Vice for attorney Daniel Mach (Pro Hac Vice Fee $75 − Receipt Number 0862−1730787) filed by Amicus Parties ACLU of Iowa and American Civil Liberties Union (Attachment # 1 Declaration) (Wilson, Randall) Modified text on 01/15/2014 (kfs) (Entered: 01/15/2014)
19 MOTION for Leave to Appear Pro Hac Vice for attorney Jennifer Lee (Pro Hac Vice Fee $75 − Receipt number 0862−1730798) filed by Amicus Parties ACLU of Iowa and American Civil Liberties Union (Attachment: # 1 Declaration Certificate of Good Standing) (Wilson, Randall) Modified text on 01/15/2014 (kfs) (Entered: 01/15/2014)
20 ORDER: Granting 17 Motion for Leave to Appear Pro Hac Vice as to attorney Brigitte Amiri, 18 Motion for Leave to Appear Pro Hac Vice as to attorney Daniel Mach and 19 Motion for Leave to Appear Pro Hac Vice as to attorney Jennifer Lee for Amicus ACLU of Iowa and Americal Civil Liberties Union. Signed by Clerk on 01/15/14. (kfs) (Entered: 01/15/2014)
21 ORDER granting 16 Motion for Leave to File Amicus Curiae Brief. The Clerk shall detach and separately file the ACLU's amicus curiae brief. Signed by Judge Mark W Bennett on 1/21/14. (djs) (Entered: 01/21/2014)
22 BRIEF of Amici Curiae in Support of 12 MOTION to Dismiss For Failure to State a Claim or in the alternative MOTION for Summary Judgment filed by ACLU of Iowa, American Civil Liberties Union. Filed by Clerk pursuant to Order at 21 . (djs) (Entered: 01/21/2014)
23 UNRESISTED Motion for Extension of Time to File Response in Opposition to Defendants' Motion to Dismiss by Plaintiffs Cornerstone University, Dordt College (Baylor, Gregory) (Entered: 01/21/2014)
24 ORDER: Granting 23 Motion for Extension of Time to File Response to 12 Motion to Dismiss, or in the Alternative for Summary Judgment: Response ddl 02/07/2014. Signed by Judge Mark W Bennett on 01/21/14. (kfs) (Entered: 01/21/2014)
25 Joint MOTION for Extension of Time /Vacate L.R.16(a) Deadline for Proposed Scheduling Order and Discovery Plan by Plaintiffs Cornerstone University, Dordt College (Baylor, Gregory) (Entered: 02/05/2014)
26 ORDER: Granting 25 Motion to Vacate Deadlines for Compliance with LR 16(a) and LR 26(d) Obligations. Signed by Magistrate Judge Leonard T Strand on 02/06/14. (kfs) (Entered: 02/06/2014)
27 NOTICE of Appearance by Micah Schreurs on behalf of Liberty, Life, and Law Foundation. (Schreurs, Micah) (Entered: 02/06/2014)

02/06/2014 02/06/2014 02/06/2014 02/06/2014 02/06/2014 02/07/2014 02/07/2014 02/07/2014 02/10/2014 02/10/2014 02/10/2014 02/11/2014 02/24/2014

28 MOTION for Leave to Appear Pro Hac Vice for Attorney Deborah J. Dewart on behalf of Amicus Party Liberty, Life, and Law Foundation ( Pro Hac Vice Fee $ 75 receipt number 0862−1744555) by Liberty, Life, and Law Foundation (Attachments: # 1 Certificate of Good Standing) (Schreurs, Micah) Modified text on 2/6/2014 (djs). (Entered: 02/06/2014)
29 MOTION for Leave to File Overlength Brief by Amicus Party Liberty, Life, and Law Foundation (Attachments: # 1 Brief) (Schreurs, Micah) Modified text on 2/6/2014 (djs). (Entered: 02/06/2014)
30 ORDER granting 28 Motion for Leave to Appear Pro Hac Vice of Deborah J Dewart on behalf of Amicus Liberty, Life and Law Foundation. Signed by Clerk on 2/6/14. (djs) (Entered: 02/06/2014)
31 ORDER granting 29 Motion for Leave to File Overlength Amicus Curiae Brief. The Clerk shall detach and separately file Liberty, Life and Law Foundation's amicus curiae brief (docket no 29−1). Signed by Judge Mark W Bennett on 2/6/14. (djs) (Entered: 02/06/2014)
32 BRIEF of Amicus Curiae in Opposition to 12 MOTION to Dismiss For Failure to State a Claim or in the alternative MOTION for Summary Judgment filed by Liberty, Life, and Law Foundation. Filed by Clerk pursuant to Order at 31 . (djs) (Entered: 02/06/2014)
33 UNRESISTED Motion for Leave to File Overlength Brief in Opposition to Defendants' 12 Motion to Dismiss, or in the Alternative, for Summary Judgment by Plaintiffs Cornerstone University, Dordt College (Attachments: # 1 Brief in Opposition, # 2 Plaintiffs' Response to Defendants' Statement of Material Facts) (Baylor, Gregory) Modified link on 2/7/2014 (des). (Entered: 02/07/2014)
34 ORDER granting 33 Unresisted Motion for Leave to File Overlength Brief in Opposition to 12 Motion to Dismiss, or in the Alternative, for Summary Judgment by Plaintiffs Cornerstone University, Dordt College. Clerk shall detach and file brief and response to statement of material facts together under a new docket entry. Signed by Judge Mark W Bennett on 2/7/2014. (des) (Entered: 02/07/2014)
35 BRIEF in Opposition to 12 MOTION to Dismiss For Failure to State a Claim or in the alternative MOTION for Summary Judgment filed by Cornerstone University, Dordt College. (Attachments: # 1 Response to Statement of Material Facts) (filed by clerk pursuant to 34 Order) (des) (Entered: 02/07/2014)
36 MOTION for Leave to Appear Pro Hac Vice for Attorney Kevin H. Theriot ( Pro Hac Vice Fee $ 75 receipt number 0862−1746402) by Plaintiffs Cornerstone University, Dordt College (Theriot, Kevin) Modified filers and text on 2/11/2014 (des). (Entered: 02/10/2014)
37 MOTION for Leave to Appear Pro Hac Vice for Attorney Matthew S. Bowman ( Pro Hac Vice Fee $ 75 receipt number 0862−1746503) by Plaintiffs Cornerstone University, Dordt College (Attachments: # 1 Certificate of Good Standing) (Bowman, Matthew) (Entered: 02/10/2014)
38 MOTION for Leave to Appear Pro Hac Vice for Attorney David A. Cortman ( Pro Hac Vice Fee $ 75 receipt number 0862−1746649) by Plaintiffs Cornerstone University, Dordt College (Attachments: # 1 Certificate of Good Standing) (Cortman, David) (Entered: 02/10/2014)
39 ORDER Granting 36 , 37 , and 38 Motions for Leave to Appear Pro Hac Vice. Attorneys Kevin H Theriot, Matthew S Bowman, and David A Cortman are admitted on behalf of Plaintiffs Cornerstone University and Dordt College. Signed by Clerk on 2/11/2014. (des) (Entered: 02/11/2014)
40 NOTICE of Supplemental Authority by Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 12 MOTION to Dismiss, or in the alternative MOTION for Summary Judgment (Attachments: # 1 Exhibit Univ. of Notre Dame v. Sebelius (Seventh Circuit Opinion)) (Pollack, Michael) Modified text on 2/25/2014 (des). (Entered: 02/24/2014)

03/11/2014 03/11/2014 04/18/2014
05/06/2014 05/09/2014 05/20/2014 05/21/2014 06/10/2014 06/17/2014
07/18/2014 07/21/2014 07/23/2014 09/29/2014
10/22/2014

41 MOTION for Leave to Appear Pro Hac Vice for Attorney Carole D. Boss ( Pro Hac Vice Fee $ 75 receipt number 0862−1763041) by Plaintiffs Cornerstone University, Dordt College (Attachments: # 1 Certificate of Good Standing) (Bos, Carole) (Entered: 03/11/2014)
42 ORDER: Granting 41 Motion for Leave to Appear Pro Hac Vice by attorney Carole Bos for Plaintiffs Dordt College and Cornerstone University. Signed by Clerk on 03/11/14. (kfs) (Entered: 03/11/2014)
43 STATUS Order re 12 Motion to Dismiss or in the Alternative Motion for Summary Judgment. In the interest of judicial efficiency, I will wait until I have the benefit of the Supreme Courts rulings in Hobby Lobby and Conestoga before ruling on Defendants motion here. Signed by Judge Mark W Bennett on 4/18/2014. (des) (Entered: 04/18/2014)
44 MOTION for Preliminary Injunction by Plaintiffs Cornerstone University, Dordt College (Attachments: # 1 Brief Supporting Plaintiffs' Motion for Preliminary Injunction, # 2 Exhibit Employee Declarations) (Baylor, Gregory) (Entered: 05/06/2014)
DOCKET Annotation re 44 MOTION for Preliminary Injunction . Tabbed and bound hard copy received in Clerk's office and provided to MWB chambers. (src) (Entered: 05/09/2014)
45 BRIEF in Opposition re 44 MOTION for Preliminary Injunction filed by Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pollack, Michael) (Entered: 05/20/2014)
46 ORDER granting 44 Motion for Preliminary Injunction. See text of order for details. Signed by Judge Mark W Bennett on 5/21/14. (djs) (Entered: 05/21/2014)
47 NOTICE of Appearance by Julie Shana Saltman on behalf of Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. Withdrawal of Michael Charles Pollack. (Saltman, Julie) (Entered: 06/10/2014)
48 NOTICE of Supplemental Authority by Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 12 MOTION to Dismiss For Failure to State a Claim or in the alternative MOTION for Summary Judgment (Attachments: # 1 Exhibit 1) (Saltman, Julie) Modified text on 6/18/2014 (des). (Entered: 06/17/2014)
49 NOTICE of Appeal as to 46 Order on Motion for Preliminary Injunction by Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Saltman, Julie) (Entered: 07/18/2014)
50 NOA Supplement and Transmission of Notice of Appeal to US Court of Appeals re 49 Notice of Appeal. Case Number due by 7/24/2014. (des) (Entered: 07/21/2014)
51 USCA Case Number 14−2726 for 49 Notice of Appeal (Attachment # 1 8CC Correspondence) (kfs) (Entered: 07/23/2014)
52 ORDER reserving ruling re 12 MOTION to Dismiss For Failure to State a Claim or in the alternative MOTION for Summary Judgment filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas Perez, United States Department of Labor, Jack Lew. Parties directed to file supplemental briefs by 10/29/2014 (See Order Text). Signed by Judge Mark W Bennett on 9/29/2014. (des) (Entered: 09/29/2014)
53 MOTION to Stay Due to Pending Appeal Unopposed by Defendants Jack Lew, Thomas Perez, Kathleen Sebelius, 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) (Saltman, Julie) (Entered: 10/22/2014)

10/27/2014 09/17/2015 09/17/2015 11/09/2015 11/09/2015 11/24/2015
11/30/2015 01/05/2016 02/18/2016 05/17/2016 05/31/2016 06/02/2016
06/22/2016 01/16/2017 08/07/2017 10/23/2017

54 ORDER granting 53 Motion to Stay. This case is stayed pending the USCA decision. Once the appeal has concluded, the parties shall file a status report within 15 days. Signed by Judge Mark W Bennett on 10/27/2014. (des) (Entered: 10/27/2014)
55 OPINION of USCA as to 49 Notice of Appeal: Affirming the decision of the District Court (Attachments: # 1 8CC Correspondence # 2 8CC Correspondence 2)(kfs) (Entered: 09/17/2015)
56 VACATED PER 64 ORDER: JUDGMENT of USCA as to 49 Notice of Appeal: Affirming the decision of the District Court (kfs) Modified text on 06/22/2016 (kfs) (Entered: 09/17/2015)
57 RECALLED PER 64 ORDER: MANDATE of USCA as to 49 Notice of Appeal RE: 55 Opinion and 56 Judgment: The formal mandate is hereby issued in the above−styled matter (kfs) Modified text on 06/22/2016 (kfs) (Entered: 11/09/2015)
Set Deadline: Parties' Status Report due by 11/24/2015: Action taken pursuant to 54 Order and 57 Mandate (kfs) (Entered: 11/09/2015)
58 Joint MOTION to Stay re Set/Reset Deadlines and Joint Status Report by Defendants Jack Lew, Thomas Perez, Kathleen Sebelius, 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) (Saltman, Julie) (Entered: 11/24/2015)
59 ORDER granting 58 Joint Motion to Extend Stay of Proceedings pending the Supreme Courts decision in Little Sisters of the Poor v Burwell. Once that decision is issued, the parties shall file a status report within 15 days. Signed by Judge Mark W Bennett on 11/30/2015. (des) (Entered: 11/30/2015)
60 WRIT of Certiorari Filed by US Supreme Court as to 49 Notice of Appeal: Supreme Court Case No 15−774 (Attachment # 1 Supreme Court Letter) (kfs) (Entered: 01/05/2016)
Case reassigned to Magistrate Judge CJ Williams: Magistrate Judge Leonard T Strand no longer assigned to the case: No conflicts identified (kfs) (Entered: 02/18/2016)
61 WRIT of Certiorari Granted by US Supreme Court RE: 49 Notice of Appeal(Attachment # 1 Supreme Court Letter) (kfs) (Entered: 05/17/2016)
62 STATUS Report Joint by Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Saltman, Julie) (Entered: 05/31/2016)
63 ORDER re 62 Status Report filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas Perez, United States Department of Labor, Jack Lew filed pursuant to 59 Order. The parties request for an extension of the stay of district court proceedings is granted. The case is stayed pending the issuance of the mandate by the Eighth Circuit in Burwell v. Dordt College, et al., No. 15−774. Once that mandate is issued, the parties shall notify me within 15 days by filing a status report indicating, if, and how, further proceedings should be scheduled in this court. Signed by Judge Mark W Bennett on 6/2/2016. (des) (Entered: 06/02/2016)
64 ORDER of USCA as to 49 Notice of Appeal: Pursuant to the order and mandate of the U.S.Supreme Court, this court's judgment is vacated, the mandate is hereby recalled and the case is reopened (kfs) (Entered: 06/22/2016)
65 NOTICE of Withdrawal of Attorney Matthew Scott Bowman on behalf of Cornerstone University, Dordt College (Bowman, Matthew) (Entered: 01/16/2017)
66 NOTICE of Appearance by Rita Bettis on behalf of ACLU of Iowa, American Civil Liberties Union. Withdrawal of Jennifer Lee and Randall C Wilson. (Bettis, Rita) (Entered: 08/07/2017)
67 NOTICE of Appearance by Emily Sue Newton on behalf of United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. Withdrawal of Julie Shana Saltman. (Newton, Emily) (Entered: 10/23/2017)

10/30/2017 10/30/2017 11/14/2017 11/14/2017
11/22/2017
12/15/2017 12/15/2017 01/03/2018 01/26/2018 02/08/2018 02/08/2018 04/10/2018 04/10/2018 04/13/2018 05/16/2018
05/17/2018
05/17/2018

68 JUDGMENT of USCA as to 49 Notice of Appeal: Appelllant's Motion to Dismiss the appeal is granted: The appeal is hereby dismissed (kfs) (Entered: 10/30/2017)
69 MANDATE of USCA as to 49 Notice of Appeal and 68 Judgment: The formal mandate is hereby issued in the above−styled matter (kfs) (Entered: 10/30/2017)
70 STATUS Report by United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Newton, Emily) (Entered: 11/14/2017)
71 ORDER: This case is stayed for sixty days from the date of this order, unless the Court and the parties agree that the stay can be lifted: Status report ddl 12/15/2017: See text of Order for further information. Signed by Judge Mark W Bennett on 11/14/17. (kfs) (Entered: 11/14/2017)
72 ORDER of USCA as to 49 Notice of Appeal: Appellees' motion to transfer the costs and fees request to the District Court is denied without prejudice to the filing of a bill of costs under Rule 39A(b), a motion for attorney fees under Rule 47C(a) and a motion for remand under Rule 47C(b): Appellees are granted an additional fourteen days to file a motion for attorney fees (kfs) (Entered: 11/22/2017)
73 STATUS Report by Cornerstone University, Dordt College (Baylor, Gregory) (Entered: 12/15/2017)
74 STATUS Report Order. This case remains stayed. The parties are directed to file a status report by 2/9/2018. Signed by Judge Mark W Bennett on 12/15/2017. (des) (Entered: 12/15/2017)
75 ORDER of USCA as to 49 Notice of Appeal: The consent motion of the appellees for a second extension of time to file a motion for attorneys' fees and costs is granted to 01/10/18 (kfs) (Entered: 01/03/2018)
76 NOTICE of Change of Address by Rita Bettis (Bettis, Rita) (Entered: 01/26/2018)
77 STATUS Report by United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Newton, Emily) (Entered: 02/08/2018)
78 ORDER on Parties' Joint Status Report: The case remains stayed: Status Report due by 04/10/2018. Signed by Judge Mark W Bennett on 02/08/18. (kfs) (Entered: 02/08/2018)
79 STATUS Report by United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Newton, Emily) (Entered: 04/10/2018)
80 ORDER on Parties' Joint Status Report: The case remains stayed. Status report due by 6/11/2018. Signed by Judge Mark W Bennett on 4/10/2018. (mml) (Entered: 04/10/2018)
81 MOTION for Permanent Injunction and Declaratory Relief by Plaintiffs Cornerstone University, Dordt College Responses due by 4/27/2018 (Attachments: # 1 Brief, # 2 Text of Proposed Order) (Baylor, Gregory) (Entered: 04/13/2018)
82 UNRESISTED Motion for an extension of time, nunc pro tunc, in which to file a response to Plaintiffs' Motion for Permanent Injunction and Declaratory Relief by Defendants United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Exhibit Defendants' Proposed Response to Plaintiffs' Motion for Permanent Injunction and Declaratory Relief) (Newton, Emily) (Entered: 05/16/2018)
83 ** TEXT ORDER ONLY ** granting 82 Unresisted Motion For Extension Of Time to resist plaintiffs' Motion For Permanent Injunction. The defendants shall file their proposed Response. The Response will be deemed timely filed. Signed by Judge Mark W Bennett on 05/17/2018. (Mastalir, Roger) (Entered: 05/17/2018)
84 Response to Motion re 81 MOTION for Permanent Injunction and Declaratory Relief filed by United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Newton, Emily)

06/12/2018 06/12/2018 06/13/2018 06/14/2018 06/14/2018

(Entered: 05/17/2018)
85 ORDER granting 81 Motion for Permanent Injunction and Declaratory Relief and Permanent Injunction and Declaration (See Order Text). Signed by Judge Mark W Bennett on 6/12/2018. (des) (Entered: 06/12/2018)
86 ORDER Requiring Further Status Report: Status Report due by 06/19/2018: See text of Order for further details. Signed by Judge Mark W Bennett on 06/12/18. (kfs) (Entered: 06/12/2018)
87 STATUS Report by Cornerstone University, Dordt College (Baylor, Gregory) (Entered: 06/13/2018)
88 ORDER Directing Entry of Final Judgment. See order text for details. Signed by Judge Mark W Bennett on 6/14/2018. (src) (Entered: 06/14/2018)
89 JUDGMENT in favor of Cornerstone University, Dordt College and against United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Alex M Azar II, Jack Lew, Thomas Perez. Pursuant to the Order granting motion for Permanent Injunction and Declaratory Relief and Permanent Injunction and Declaration, filed on June 12, 2018, (docket no. 85 ), final judgment is hereby entered. Signed by Clerk and approved as to form by Judge Mark W Bennett on 6/14/2018. (src) (Entered: 06/14/2018)