Case 1:13-cv-03263-MSK-KMT Document 1 Filed 12/03/13 USDC Colorado Page 1 of 60
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. FELLOWSHIP OF CATHOLIC UNIVERSITY STUDENTS, a Colorado non-profit corporation, CURTIS A. MARTIN, CRAIG MILLER, BRENDA CANNELLA, and CINDY O'BOYLE,
Plaintiffs, v. KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, THOMAS PEREZ, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, JACOB J. LEW, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
VERIFIED COMPLAINT AND JURY DEMAND
PLAINTIFFS FELLOWSHIP OF CATHOLIC UNIVERSITY STUDENTS ("FOCUS"), a Colorado non-profit corporation, CURTIS A. MARTIN, CRAIG MILLER, BRENDA CANNELLA, and CINDY O'BOYLE, by and through their attorneys with Alliance Defending Freedom, for their complaint against the Defendants above-named, state as follows:
l. NATURE OF THE CfION
1. This lawsuit seeks judicial review of Defendants' violations ofthe Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (herein "RFRA"), the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.c.
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each and every human person is created in the image of God and that it is contrary to God's will to interfere with human conception with contraceptives or to destroy innocent human life by abortion or by the use of abortion-inducing drugs and devices. Thus, FOCUS holds, as a matter of religious conviction, that it is immoral for FOCUS to intentionally participate in, pay for, train others to engage in, enable or otherwise support or facilitate access to access to contraceptives, sterilization, abortion, abortion-inducing drugs, devices, and services.
6. Though a religious organization, FOCUS does not qualify for the extraordinarily narrow religious exemption from the Mandate. That narrow religious exemption protects thousands of "churches, their integrated auxiliaries, conventions or associations of churches" and "the exclusively religious activities of any religious order", but does not protect FOCUS. 78 Fed. Reg. 39,870 (July 2, 2013).
7. In addition, though thousands of other secular organizations have been exempted from the Mandate for purely secular reasons, FOCUS has not been so exempted. For example, employers with so-called "grandfathered" plans, i.e., plans in existence before March 23, 2010, are exempted from the Mandate and encompass tens of millions of women. Defendants have also recently admitted that "church plans" exempt from ERISA are also exempt from penalties attached to the Mandate, and those plans likewise encompass thousands of non-exempt nonprofit religious organizations otherwise indistinguishable from FOCUS.
8. Defendants have offered FOCUS and other non-exempt religious organizations a socalled "accommodation" of their religious beliefs and practices. However, this alleged "accommodation" fails and conscripts FOCUS into compliance with the Mandate, forcing FOCUS to obtain an insurer or a third party insurance claims administrator, and to complete and submit a government form that specifically causes that insurer or third party administrator to
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arrange payment for the objectionable drugs and devices, so that such coverage will apply to FOCUS's own employees as a direct consequence of their employment with FOCUS and of their participation in the health insurance benefits FOCUS provides to them.
9. Under the supposed "accommodation," the government continues to treat entities like FOCUS as second-class religious organizations, not entitled to the same religious freedom rights as substantially similar religious entities, or even the myriad of secular entities, that qualify for the exemption from the Mandate.
10. Defendants have determined to exempt churches and integrated auxiliaries from the Mandate because they surmise that employees of such religious entities are likely to share the religious convictions of such entities. Clearly, though not understood or recognized by the Defendants, this rationale applies equally to FOCUS and its employees.
11. Instead, Defendants seek to force FOCUS and other similarly situated religious nonprofits not eligible for Defendants' exemption to comply with the Mandate without regard to their sincerely held faith beliefs.
12. Indeed, HHS Secretary Kathleen Sebelius stated that: "[A]s of August 1St, 2013,
every employee who doesn't work directly for a church or a diocese will be included in the [Mandate] benefit package," and "Catholic hospitals, Catholic universities, other religious entities will be providing [contraceptive and abortifacient] coverage to their employees starting August 1st." Remarks at the Forum at Harvard School of Public Health (Apr. 8,2013), http:Utheforum.sph.harvard.edu/eents/conversation-kathleen-sebelius (Part 9, Religion and Policymaking, at 4:40 and 2:48). The enforcement date was delayed until January 1,2014. 78 Fed. Reg. 39,870 (July 2, 2013).
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13. Defendants' so-called "accommodation" does not offer religious liberty protections to FOCUS; if FOCUS follows its religious convictions and declines to participate in Defendants' scheme, FOCUS will face, among other injuries, enormous fines that could exceed $16,000,000. It also forces the individual plaintiff employees of FOCUS, CURTIS A. MARTIN, CRAIG MILLER, BRENDA CANNELLA, and CINDY O'BOYLE to participate in a health insurance plan that causes them to receive promised payment coverage of morally and religiously objectionable abortifacient, contraceptive and sterilization items for themselves and their families.
14. These religious beliefs are central to FOCUS ' s faith. FOCUS not only believes, but lives and teaches these beliefs. Thus, FOCUS remains opposed to complying with the Mandate, even pursuant to this "accommodation."
15. In view of the untenable and unconscionable position in which Defendants have placed FOCUS, FOCUS respectfully requests that this Court vindicate its religious rights by, inter alia, (a) declaring that the Mandate violates the Religious Freedom Restoration Act, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the United States Constitution, due process and equal protection as guaranteed by the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act and (b) by entering a preliminary and permanent injunction enjoining enforcement of the Mandate as to FOCUS.
II. JURISDICTION AND VENUE
16. 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. § 2000bb1,5 U.S.c. § 702, and Fed. R. Civ. P. 57 and 65, and to award reasonable attorney' s fees and
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costs pursuant to the Equal Access to Justice Act, 28 U.S.c. § 2412, and under 42 U.S.c. § 1988.
17. Venue is proper in this district pursuant to 28 U.S.c. § 1391(e) in that FOCUS is resident in this district and a substantial part of the events or omissions giving rise to the claims herein occurred in this district.
III. IDENTIFICATION OF PARTIES
18. FOCUS is a Colorado non-profit corporation organized and recognized by the Internal Revenue Service as a § 501(c)(3) organization. Its headquarters office is located in Jefferson County, Colorado. FOCUS was born out of a passion and zeal to share how a relationship with Jesus Christ and the Catholic Faith can transform the world. FOCUS sends teams of young, trained missionaries to college campuses in order to reach students with the Gospel of Jesus Christ. In partnership with a local Catholic Parish and other Catholic organizations, FOCUS missionaries host large group outreach events, weekly Bible studies, and one-on-one mentoring sessions with student leaders. FOCUS presently has a staff of approximately 450 persons (of which about 350 are missionaries) and a presence on more than 80 college campuses across the United States.
19. CURTIS A. MARTIN is the founder, president, and chief executive officer of FOCUS and, in 2011, was appointed as Consulter to the Pontifical Council of the New Evangelization by Pope Benedict XVI and, in October 2012, participated with Catholic Bishops and Catholic lay people in a three week conference in Rome on the work of evangelization by the Catholic Church. Mr. Martin and his wife have eight children, one of whom is a teenage daughter, and are expecting their ninth child. Mr. Martin and his entire family hold and live the same religious beliefs as are held and lived by FOCUS. Mr. Martin and his entire family support
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FOCUS's religious liberty rights, do not want to have any part in participating in Defendants' immoral health insurance scheme, and do not want to expose any of their family members to Defendants' immoral health insurance scheme. The Oath of Fidelity to the Catholic Church which reflects both FOCUS's faith beliefs and those ofMr. Martin and which was signed by Mr. Martin when he began to work for FOCUS is attached hereto as Exhibit A and incorporated herein by this reference.
20. CRAIG A. MILLER is currently chief operating officer of FOCUS. Mr. Miller and his wife have six children, including four daughters, three of whom are teenagers. Mr. Miller and his entire family hold and live the same religious beliefs as are held and lived by FOCUS. Mr. Miller and his entire family support FOCUS's religious liberty rights, do not want to have any part in participating in Defendants' immoral health insurance scheme, and do not want to expose any of their family members to Defendants' immoral health insurance scheme. The Oath of Fidelity to the Catholic Church which reflects both FOCUS's faith beliefs and those of Mr. Miller's and which was signed by Mr. Miller when he began to work for FOCUS is attached hereto as Exhibit B and incorporated herein by this reference.
21. BRENDA CANNELLA is currently senior director of finance of FOCUS. Ms. Cannella and her husband have five children, including two daughters, one of whom is a teenager. Ms. Cannella and her entire family hold and live the same religious beliefs as are held and lived by FOCUS. Ms. Cannella and her entire family support FOCUS's religious liberty rights, do not want to have any part in participating in Defendants' immoral health insurance scheme, and do not want to expose any of their family members to Defendants' immoral health insurance scheme. The Oath of Fidelity to the Catholic Church which reflects both FOCUS's
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faith beliefs and those of Ms. Cannella and which was signed by Ms. Cannella is attached hereto as Exhibit C and incorporated herein by this reference.
22. CINDY O'BOYLE is currently a missionary and team director at the University of California-Berkeley, CA. Ms. O'Boyle, who is in her early twenties, is single. Ms. O'Boyle holds and lives the same religious beliefs as are held and lived by FOCUS. Ms. O'Boyle supports FOCUS's religious liberty rights, does not want to have any part in participating in Defendants' immoral health insurance scheme, and does not want to be exposed to Defendants' immoral health insurance scheme. The Oath of Fidelity to the Catholic Church which reflects both FOCUS's faith beliefs and those of Ms. O'Boyle and which was signed by Ms. O'Boyle when she began to work for FOCUS is attached hereto as Exhibit D and incorporated herein by this reference.
23. Defendants are appointed officials of the United States government and United States Executive Branch agencies responsible for issuing and enforcing the Mandate.
24. Defendant Kathleen Sebelius ("Sebelius") is the Secretary of the United States Department of Health and Human Services ("HHS"). In that capacity, she is responsible for the operation and management of HHS. Sebelius is sued in her official capacity only.
25. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
26. Defendant Thomas E. Perez ("Perez") is the Secretary of the United States Department of Labor ("DOL"). In that capacity, he is responsible for the operation and management of DOL. Perez is sued in his official capacity only.
27. Defendant DOL is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of aspects of the Mandate.
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28. Defendant Jacob J. Lew ("Lew") is the Secretary of the United States Department of the Treasury ("Treasury"). In that capacity, he is responsible for the operation and management of Treasury. Lew is sued in his official capacity only.
29. Defendant Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of certain aspects of the Mandate.
IV. FACTUAL ALLEGATIONS A. FOCUS's Religious Beliefs.
30. FOCUS's mission is, with the blessing and approval of Archbishop Samuel Aquila of Denver and with the blessings and approval of the local Bishop in each diocese in which a specific college is located, to equip and enable qualified POCUS-trained missionaries to serve as the hands and feet of the Catholic Church and its auxiliaries by meeting college students where they live, i.e., dorms, intramural sports, student unions, Greek life, etc., by making a personal, sacrificial investment in the lives of those students, and by stressing 'incamational evangelization' and God's love to each student. See, e.g., http://www.focus.orglaboutlfags.html.
31. FOCUS's primary purpose or "main thing" is "[i]nviting college students into a growing relationship with Jesus Christ and His Church [and i]nspiring and equipping them for a lifetime of Christ-centered evangelization, discipleship, and friendship in which they lead others to do the same."
32. FOCUS's mission statement is "[t]o know Christ Jesus, and to fulfill His great commission by first living and then communicating the fullness of life within the family of God, the Church." Thus, a relationship with Jesus Christ and a commitment to the teachings of the
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Catholic Faith are central to FOCUS's mission. The Gospel of Life promotes the culture oflife, which opposes contraception, sterilization, abortifacients, and abortion.
33. FOCUS holds and actively professes religious beliefs in accordance with the traditional Christian teachings on the sanctity ofIife. FOCUS believes that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception.
34. FOCUS follows the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church. FOCUS lives out its religious faith daily by helping and assisting its employees and the college students it serves to follow the teachings of the Catholic Church and to strengthen their faith.
35. FOCUS's religious beliefs include traditional Christian teaching on the nature and purpose of marriage and human sexuality. In particular, FOCUS believes, teaches, and lives, in accordance with Pope Paul VI's July 25,1968 encyclical entitled Humanae Vitae, that
• "The transmission of human life is a most serious role in which married people collaborate freely and responsibly with God the Creator."
• "Marriage and conjugal love are by their nature ordained toward the procreation and education of children. Children are really the supreme gift of marriage and contribute in the highest degree to their parents' welfare."
• "[T]he exercise of responsible parenthood requires that husband and wife ... recognize their own duties toward God, themselves, their families and human society."
• "The sexual activity, in which husband and wife are intimately and chastely united with one another, through which human life is transmitted, is ... 'noble and worthy.'"
• "[E]ach and every marital act must of necessity retain its intrinsic relationship to the procreation of human life."
• Thus, "the direct interruption of the generative process already begun and, above all, all direct abortion, even for therapeutic reasons, are to be absolutely
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excluded as lawful means of regulating the number of children. Equally to be condemned ... is the direct sterilization, whether of the man or of the woman, whether permanent or temporary. Similarly excluded is any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation - whether as an end or as a means." 36. Accordingly, in following Pope Paul VI's encyclical Humanae Vitae, FOCUS believes and actively professes, with the Catholic Church, that "to use this divine gift while depriving it, even if only partially, of its meaning and purpose, is equally repugnant to the nature of man and of woman, and is consequently in opposition to the plan of God and His holy will." 37. FOCUS believes, as Pope Paul VI prophetically stated in Human Vitae, that "a man who grows accustomed to the use of contraceptive methods may forget the reverence due to a woman, and, disregarding her physical and emotional equilibrium, reduce her to being a mere instrument for the satisfaction of his own desires, no longer considering her as his partner whom he should surround with care and affection." 38. This authoritative Catholic teaching was again set forth in Pope John Paul II's March 25, 1995 encyclical Evangelium Vitae in which Pope John Paul II reaffirmed "the value of human life and its inviolability" and urged all persons "in the name of God [to] respect, protect, love and serve life, every human life!" 39. Based on the teachings of the Catholic Church, and its own sincerely held religious beliefs, FOCUS does not believe that contraception, sterilization, abortifacients, or abortion are properly understood to constitute medicine, health care, or a means of providing for the wellbeing of persons. Indeed, FOCUS believes these procedures involve gravely immoral practices and cannot participate in any scheme to facilitate access to contraceptives, sterilization, and abortion-inducing drugs and devices and counseling and education related to the same without
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violating its sincerely held religious convictions concerning the sanctity and inherent dignity of all human life.
40. As a result, FOCUS exercises its fundamental constitutional and statutory rights to the free exercise of religion, the freedom of speech, and expressive association and its devotion to the teachings and the tenets of the Catholic Church by emphatically opposing and speaking out against the use of contraceptives, sterilization practices, abortifacients, and abortion.
41. FOCUS objects to Defendants forcing FOCUS to provide - directly or indirectly - any support for, or access to, contraception, sterilization, and abortifacients based on its sincerely held religious beliefs.
42. FOCUS both believes, affirms, and teaches that it is contrary to God's will to interfere with conception with contraceptive devices or sterilization, or to destroy innocent human life by abortion or use of abortion-inducing drugs and devices and affirmatively speaks out against contraceptives, sterilization, abortion, and abortion-inducing drugs. Therefore, FOCUS may not participate in, pay for, train others to engage in, or otherwise support or facilitate contraception, abortion, and abortion-inducing drugs and devices.
43. FOCUS cannot fulfill its mission to strengthen the faith of the college students it serves and to teach such students to follow the teachings of the Catholic Church and also comply with the challenged regulations.
44. Furthermore, FOCUS subscribes to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, FOCUS believes, in accordance with Pope John Paul II's 1995 encyclical Evangelium Vitae, that '''[c]ausing death' can never be considered a form of medical treatment," but rather "runs completely counter to
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the health-care profession, which is meant to be an impassioned and unflinching affirmation of life."
45. Therefore, FOCUS believes and teaches that "any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means"-including contraception-is a grave sin.
46. FOCUS likewise has a sincere religious objection to facilitating access to abortioninducing drugs and devices, including the "emergency contraceptives" Plan B and ella and certain intrauterine devices ("IUDs") because those drugs and devices can prevent a human embryo - which FOCUS understands to include the being formed at fertilization/conception, including before its implantation - from implanting in the wall of the uterus, thereby causing the death of the embryo.
47. Along with the clear and consistent teaching of the Catholic Church, the Pope, and the Bishops throughout this nation, FOCUS considers artificially preventing implantation of a human embryo to constitute an abortion.
48. Over the past several months, leaders within the Catholic Church have publicly spoken out about how the Mandate is a direct violation of Catholic Faith.
49. Cardinal Timothy Dolan, Archbishop of New York and President of the United States Conference of Catholic Bishops, wrote, "Since January 20 [2012], when the final, restrictive HHS [Mandate] ... was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. We recall the words of our Holy Father Benedict XVI to our brother bishops on their recent ad limina visit: 'Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion.' We have made it clear in no uncertain terms to the
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government that we are not at peace with its invasive attempt to curtail the religious freedom we cherish as Catholics and Americans." (http://www.Llsccb.org., March 2, 2012).
50. Archbishop Charles J. Chaput, the Archbishop of Philadelphia and a founding FOCUS board member and current board member emeritus, has expressed that the ACA and the Mandate seek "to coerce Catholic employers, private and corporate, to violate their religious convictions ... [t]he HHS mandate, including its latest variant, is belligerent, unnecessary, and deeply offensive to the content of Catholic belief ... The HHS mandate needs to be rescinded. In reality, no similarly aggressive attack on religious freedom in our country has occurred in recent memory .. . [t]he HHS mandate is bad law; and not merely bad, but dangerous and insulting. It needs to be withdrawn-now." (http://the-amcrican-
C1'lttlOl ic.t:umI20 12/021 14/arch ' ish p-c hapUl- hhs-m nd tc-da ngcrous-and-iIl S l l(ng/. F~b. 14.
2012). 51. Archbishop Samuel J. Aquila of Denver said: The Obama Administration's mandate is a forceful intrusion by the government on the rights of Catholics to act on their beliefs in the public square. Furthermore, it violates the principle of the freedom to follow one' s conscience. This mandate runs contrary to the long-held principle of religious freedom that our Founders, who came here to escape religious persecution, enshrined in our Constitution. Catholics, Evangelical Christians, Baptists, and Jews are among the people of faith who have spoken out against the mandate and its requirements, to which they have moral objections. The government should not force its beliefs upon people of faith. 52. On November 13,2013, the U.S. Conference of Catholic Bishops, at the conclusion
of their fall General Assembly in Baltimore, Maryland, issued a "Special Message" . In part, the Bishops, who promised to resist the Mandate if it is not corrected or rescinded, said:
The current impasse is all the more frustrating because the Catholic Church has long been a leading provider of, and advocate for, accessible, life-affirming health care. We would have preferred to spend these recent past years working toward this shared goal instead of resisting this intrusion into our religious liberty. We have been forced to devote time and resources to a conflict we did not start nor seek.
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As the government's implementation of the mandate against us approaches, we bishops stand united in our resolve to resist this heavy burden and protect our religious freedom. We will continue our efforts in Congress and especially with the promising initiatives in the courts to protect the religious freedom that ensures our ability to fulfill the Gospel by serving the common good. 53. On November 26, 2013, Pope Francis released an Apostolic Exhortation in which he stated: [T]his defence of unborn life is closely linked to the defence of each and every other human right. It involves the conviction that a human being is always sacred and inviolable, in any situation and at every stage of development. Human beings are ends in themselves and never a means of resolving other problems. Once this conviction disappears, so do solid and lasting foundations for the defence of human rights, which would always be subject to the passing whims of the powers that be. Reason alone is sufficient to recognize the inviolable value of each single human life, but if we also look at the issue from the standpoint of faith, every violation of the personal dignity of the human being cries out in vengeance to God and is an offence against the creator of the individual. 54. Because FOCUS both believes, affirms, and teaches that it that it is contrary to God's will to interfere with conception with contraception or to destroy innocent human life by abortion or use of abortion-inducing drugs and devices and affirmatively speaks out against contraceptives, sterilization, abortion, and abortion-inducing drugs, it would be a violation of FOCUS's deeply held religious beliefs for it to be required to provide, fund, facilitate, cause, or participate in health insurance which covers or provides payments for artificial contraception, sterilization, and/or abortion-inducing drugs and devices and related education and counseling. 55. CURTIS A. MARTIN, CRAIG MILLER, BRENDA CANNELLA, and CINDY O'BOYLE (hereinafter "the individual plaintiffs") are employees of FOCUS who, like other FOCUS employees, hold and live the same religious beliefs as are held and lived by FOCUS, support FOCUS's religious liberty rights, do not want to have any part in participating in
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Defendants' immoral health insurance scheme, and do not want, either for themselves or for their wives or daughters, as applicable, to expose their family members to Defendants' immoral health insurance scheme, including by receiving promises of payments for objectionable items arranged by FOCUS's plan administrator, or by participating in a plan where FOCUS designates the administrator to obtain those promises of payments. They also object to losing their health insurance coverage provided by FOCUS, and to be forced in such a circumstarice to buy themselves and their families a health insurance plan from another source that (because of the Mandate challenged here) will require them to buy coverage of abortifacients, contraception, sterilization, and education and counseling in favor of the same.
B. FOCUS's Health Insurance Plan•. 56. FOCUS currently has about 450 full-time employees and provides health insurance
through a self-insured plan administered by a third party administrator. The individual plaintiffs are four of those employees for whom FOCUS provides health insurance.
57. Though FOCUS provides its employees with employee health coverage superior to coverage generally available in the Colorado market, never in its history has FOCUS provided insurance coverage for contraceptives, sterilization, or abortion-inducing drugs and devices.
58. FOCUS has designed its health insurance plan throughout the years to exclude coverage of contraception sterilization, and abortion-inducing drugs and devices in line with FOCUS's religious beliefs and has taken great pains through the years to insure that its employees' insurance plans do not cover these objectionable drugs and devices.
59. As the Mandate, with its "safe harbor" for religious non-profit groups, applies to the first health insurance plan-year beginning after December 31, 2013, FOCUS's insurance plan year, as is relevant to this complaint, begins on July 1, 2014.

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60. FOCUS's health insurance plan does not qualify for any of the myriad of exemptions to the challenged regulations provided by Defendants.
61. Thus, FOCUS will face a choice in the period leading up to July 1,2014 of explicitly designating and triggering its third party plan administrator to provide the objectionable drugs and devices or drop its employee health insurance plan altogether in order avoid being complicit in the provision of such objectionable drugs and devices and face crippling annual fines, harm to its employees who rely on that insurance, a severe impact on FOCUS's ability to recruit and keep good employees, a consequent need to increase employee compensation substantially so that employees can provide insurance for their families (but leaving them to a market in which all insurance products they can buy, even assuming the system ever works, will include unwanted coverage of abortifacient, contraceptive, and sterilizing drugs and devices).
c., The ACA alld Defendants Preventive Care Manda.te.
62. In March 2010, Congress passed and President Obama signed into law, 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. 111-152 (March 30, 2010), together known as the "ACA."
63. The ACA regulates the national health insurance market by, among other things, directly regulating "group health plans" and "health insurance issuers."
64. Pursuant to the ACA, employers with over 50 full-time employees are required to provide a certain level of health insurance to their employees.
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beneficiaries, insureds, plan sponsors, and issuers have certainty about their rights and responsibilities." Id.
71. 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 objectionable regulations regardless of the legal flaws or public opposition that might be manifest in public comments. Id.
72. In addition to reiterating the ACA's "preventive care and screenings" coverage requirements, this Interim Final Rule provided further guidance concerning the ACA's restriction on cost-sharing.
73. This Interim Final Rule made it clear that "cost sharing" referred to "out-ofpocket" expenses for plan participants and beneficiaries. 75 Fed. Reg. at 41,730.
74. This Interim Final Rule acknowledged that expenses "previously paid out-ofpocket" would "now be covered by group health plans and issuers" and that those expenses would, in turn, result in "higher average premiums for all enrollees." Id.; see also id. at 41,737. ("Such a transfer of costs could be expected to lead to an increase in premiums.").
75. In other words, according to the Defendants, the prohibition on cost-sharing was simply a way "to distribute the cost of preventive services more equitably across the broad insured population." 75 Fed. Reg. at 41,730.
76. After this Interim Final Rule was issued, numerous commenters warned against the adverse religious freedom and conscience implications of requiring religious individuals and organizations to include certain drugs, procedures, and services, including contraceptives, abortion-inducing drugs and devices, sterilization, and related education and counseling services, in the health care plans of such religious individuals and organizations.
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77. HHS directed a private health policy organization, the Institute of Medicine ("10M"), to make recommendations regarding which drugs, procedures, and services all health care plans should include as "preventive care and screenings" for women.
78. In developing its guidelines, 10M invited a select number of groups to make presentations on the drugs, procedures, and services that should, by force of law, be included by mandate in all health plans. Those groups selected by 10M, presumably in coordination with HHS, to make presentations to 10M included the Guttmacher Institute (an entity related to Planned Parenthood Federation of America which "advances sexual and reproductive health rights" including abortion) I, the American Congress of Obstetricians and Gynecologists ("ACOG"), John Santelli (who, among other things, serves as senior consultant for the Guttmacher Institute),2 the National Women's Law Center (an organization which, among other things, works "to protect women's reproductive rights" including abortion and contraception access),3 the National Women's Health Network (an organization dedicated to preserve "access to contraceptive and abortion care"),4 Planned Parenthood Federation of America (a contraception and abortion providing organization dedicated to "reproduction selfdetermination"),5 and Sara Rosenbaum, a longtime contraception advocate. All of these groups and individuals advocate for access, at public expense, to contraception and abortion.
I Guttmacher Institute, "Mission," available at http://www.guttmacher.org/mission.html(last visited Nov. 27, 2013). 2Columbia University, "John S. Santelli," available at http://www.mailman.columbia.edu/ourfaculty/profile?uni=js2637 (last visited Nov. 27, 2013). 3 National Women's Law Center, "Our Issues," available at http://www.nwlc.org/our-issues (last visited Nov. 27, 2013). 4National Women's Health Network, "Securing Sexual & Reproductive Health and Autonomy," availabIe at http://nwhn .org/securing-sexual-reproductive-health-and-autonomy past visited Nov. 27, 2013).
Planned Parenthood, "Mission," available at http://www.plannedparenthood.org/aboutus/who-we-are/vision-4837.htm (last visited Nov. 27, 2013).
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79. No religious groups or other groups that opposed government-mandated coverage of contraceptives, abortion-inducing drugs and devices, sterilization, and related education and counseling were invited by 10M to be presenters.
80. On July 10,2011, the 10M published its preventive care guidelines for women, including recommendations that preventive services include "[a]1I 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).
81. Pursuant to the Food and Drug Administration ("FDA"), "approved contraceptive methods" were defined to include contraceptives, including birth control pills and prescription contraceptive devices such as IUDs, and abortion-inducing drugs and devices such as Plan B drugs (also known as the "morning after pill") and its chemical cognates; ulipristal (also known as "ella" or the "week-after pill"); and certain IUDs.
82. Many of these drugs and devices - including "emergency contraceptives" such as Plan Be and ella and intrauterine devices ("IUDs") - are known abortion-inducing drugs or devices, i.e., drugs or devices that can cause the death of an embryo by preventing the embryo from implanting in the wall of the uterus.
83. Indeed, FDA's own Birth Control Guide states that an effect of Plan B (Levonorgestrel) is to "prevent[] attachment (implantation) to the womb (uterus). FDA, Office of Women's Health, Birth Control Guide, available at http://www.fda.govjForConsumersjBYAudiencejForWomenjFreePublicationsjucm313215.htm (last visited Nov. 27, 2013).
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84. The manufacturers of some of these mandated drugs, devices, and methods that are in the category of "FDA-approved contraceptives" indicate that they can function to cause the demise of an early embryo.
85. The requirement for related "education and counseling" accompanying contraceptives, abortion-inducing drugs, and sterilization necessarily covers education and counseling given in favor of the use of such objectionable drugs, devices, and methods, even though it might also include other education and counseling. Moreover, it is inherent in a medical provider's decision to prescribe one ofthese objectionable drugs, devices, and methods that the medical provider is taking the position that the use of such items is in the patient's best interests, and therefore the medical provider's education and counseling related to any such item will be in favor of its proper use.
86. On August 1,2011, a mere 13 days after 10M issued its recommendations, HRSA, a subagency ofHHS, issued guidelines adopting 10M's recommendations in full. See http://www.hrsa.gov/womensguidelines (last visited Nov. 27, 2013).
87. These guidelines required that insurance plans commencing on or after August I, 2012 include these offensive contraceptives and abortion-inducing drugs and devices.
88. A non-exempt employer which provided a health insurance plan that did not cover abortifacients, contraceptives, sterilization, or education and counseling for the same was subject to heavy fines approximating $100 per employee per day. Such employers were also vulnerable to lawsuits by the Secretary of Labor and by plan participants.
89. An employer with more than 50 employees could not avoid the requirements of the Mandate by simply refusing to provide health insurance to its employees because the ACA
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imposed annual monetary penalties on entities that would so refuse of $2,000 times the number of employees, minus 30.
90. Additionally, dropping health insurance coverage for employees altogether would harm the entity's ability to attract and keep good employees, and/or cause the entity to have to increase employee compensation so that the employees could purchase health insurance themselves. It would also deprive the employees not only of a good health insurance plan, but also ofa health insurance plan that many of the employees desire, for religious and moral reasons, does not cover abortifacients, contraceptives, or sterilization.
2. Second Interim Rule - The Religious Employer Exemption. 91. On the very same day that HRSA rubber-stamped the 10M's recommendations,
HHS promulgated a "Second Interim Final Rule." 76 Fed. Reg. 46,621 (published Aug. 3, 2011).
92. This Second Interim Final Rule granted HRSA "discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned." 76 Fed. Reg. 46,621, 46,623. 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 ofthe organization"; and (4) "is a nonprofit organization as described in section 6033(a)(l) and section 6033(a)(3)(A)(i) or (ii) of the Internal Revenue Code of 1986, as amended. 75 Fed. Reg. at 46,626.
93. 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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94. Thus, the "religious employer" exemption was extremely narrow, limited to churches, their integrated auxiliaries, and religious orders, but only if (I) their purpose was to inculcate faith and (2) they hired and served primarily people of their own faith tradition.
95. 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 (last visited Nov. 27, 2013).
96. Although religious organizations like FOCUS share the same religious beliefs and concerns as objecting Catholic churches, their integrated auxiliaries, and objecting religious orders, HHS deliberately ignored the offensive Mandate'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. 46,621, 46,623.
97. As a result, the vast majority of religious organizations with conscientious objections to providing contraceptive and abortifacient products and services, including FOCUS, were excluded from the "religious employer" exemption.
98. Like the original Interim Final Rule, this Second Interim Final Rule was made effective immediately, without prior notice or an opportunity for public comment.
99. 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 46,624.
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100. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted which opposed the narrow scope of the "religious employer" exemption and protested the Mandate's gross infringement on the rights of religious individuals and organizations.
101. HHS did not take into account any of the concerns of religious organizations in the comments submitted before the Second Interim Final Rule was issued. Instead, HHS was unresponsive to the thousands of well-grounded assertions and concerns that the Mandate violated rights of conscience and religious liberties protected by the U.S. Constitution and statutes.
3. The Temporary Enforcement Safe Harbor. 102. 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 [i.e., to August 1,2012]. . . to comply with this 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/Ol/20120120a.html(last visited Nov. 27, 2013).
103. On February 10,2012, HHS formally announced a "temporary enforcement safe harbor" for non-exempt nonprofit religious organizations that objected to covering free contraceptives and abortifacient services pursuant to the objectionable regulations.
104. HHS, declaring a "Temporary Enforcement Safe Harbor," agreed 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 on or after August 1,2013.
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lOS. HHS also indicated it would develop and propose changes to the objectionable regulations to accommodate the religious liberty objections of non-exempt religious nonprofit organizations following expiration of the safe harbor.
106. Notwithstanding the safe harbor and HHS's assurances that non-exempt religious nonprofits would be accommodated, on February 10,2012, HHS announced a final rule "finalizing, without change" the contraceptive mandate and the narrow religious employer exemption. 77 Fed. Reg. 8,725-01 (published Feb. 15,2012).
4. The Advance Notice of Proposed Rulemaking. 107. 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. 16,501, 16,503.
108. The ANPRM conceded that forcing religious organizations to "contract, arrange, or pay for" the objectionable contraceptive and abortifacient services would infringe their "religious liberty interests." Id. (emphasis added).
109. 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.
110. For the first time, and contrary to the earlier definition of "cost sharing," Defendants suggested in the ANPRM that insurers and third party administrators of self-insured plans could "assume this responsibility." Id.
Ill. This time, "approximately 200,000 comments" were submitted in response to the ANPRM, 78 Fed. Reg. 8,456, 8,459, largely restating previous religious liberty objections and
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stating that the government's new proposal would not resolve these religious and 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 drugs, devices, and services.
4. 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. 8,456 (published Feb. 6, 2013).
113. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8,456, 8,458-59.
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. 8,461.
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 8,461.
116. HHS acknowledged, however, that this proposal "would not expand the universe of employer plans that would qualify for the exemption beyond those entities which qualified for the religious employer exemption pursuant to the 2012 final rules." 78 Fed. Reg. 8,456, 8,461.
117. In other words, religious nonprofit organizations like FOCUS that are not a formal church, an integrated auxiliary of a church, or a religious order would still not qualify for an exemption.
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118. Though HHS had pledged to "accommodate" non-exempt religious nonprofit organizations like FOCUS, the NPRM required such non-exempt religious nonprofit organizations to participate in the government's scheme by making them "designate" their insurers and third party administrators as "agents" to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs, devices, and services.
119. This proposed "accommodation" did not resolve the concerns of religious organizations like FOCUS because it continued to force them to deliberately provide health insurance that would trigger access to contraceptives, abortion-inducing drugs, devices, sterilization, and related education and counseling.
120. The NPRM received 408,907 comments, a new record for comments. See 78 Fed. Reg. 8,457 and http://www.regulations.gov/#!documentDetail;D=CMS-2012-0031-63161 (government's website tally of comments) (last visited Nov. 27,2013). Religious organizations again overwhelmingly decried this new proposed "accommodation" as a sham and as a gross 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 drugs, devices, and services.
121. On April 8, 2013, the very same day that the notice-and-comment period ended, Defendant Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University. Defendant 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.
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See Remarks at 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/ (at 49:45) (em phasis added) (last visited Nov. 27, 2013).
122. Given the date and timing of these remarks, it is clear that Defendants had no intention to give and indeed gave no consideration to the thousands of comments submitted by religious organizations in response to the NPRM's proposed "accommodation."
123. Moreover, Defendant Sebelius's remarks belie the utterly unpersuasive assertion that objecting employers do not "contract, arrange, pay, or refer for" coverage of morally objectionable items in the health insurance plans such employers provide employees.
5. The Final Rule. 124. On June 28, 2013, Defendants issued a Final Rule (the "Mandate"), which wholly
ignored the objections raised by thousands of religious organizations and others and continued to co-opt and conscript objecting employers, like FOCUS, into the Defendants' scheme of coercing free access to contraceptive and abortifacient drugs, devices, and services from religious organizations like FOCUS. 78 Fed. Reg. 39,870 (2013).
125. Under this Final Rule, the "discretionary religious employer" exemption, which is still implemented via footnote on the HRSA website, see http://hrsa.gov/womensguidelines, remains limited to formal churches and their integrated auxiliaries and religious orders "organized and operate[d]" as nonprofit entities and "referred to in section 6033(a)(3)(A)(i) or (ii) of the [Internal Revenue] Code." 78 Fed. Reg. at 39,874.
126. Defendants attempted to justify the extraordinarily narrow religious exemption as follows:
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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 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 39,874. 127. Although religious organizations like FOCUS share the same religious objection to the Final Rule (the "Mandate") as do churches, their integrated auxiliaries, and religious orders, Defendants have deliberately ignored the Mandate's impact on FOCUS's religious liberty by refusing to grant FOCUS and similar religious organizations an exemption from it. 128. FOCUS is a Catholic institution that adheres to the teaching authority ofthe Catholic Church in matters of faith and morals, including its belief concerning the sanctity and dignity of all human life. Its employees, including the individual plaintiffs, choose to work at FOCUS because they share its religious beliefs and wish to help FOCUS further its religious mission. 129. FOCUS is thus just as likely as organizations that qualify for Defendants' "religious employer" exemption to employ individuals who are either of the same faith as FOCUS or adhere to the same religious objection to contraceptives and abortion-inducing drugs and devices as does FOCUS, yet Defendants deny FOCUS the "religious employer" exemption while extending it to houses of worship, and they deny the ability of FOCUS's employees to obtain health insurance without triggering "free" coverage of such objectionable drugs and devices for their own and their fellow employees' wives and daughters.
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130. Defendants' "religious employer" exemption divides the thousands of religious organizations that share a religious objection to the Mandate into those "religious enough" to qualify for an exemption (e.g., houses of worship) and those that are not "religious enough" (e.g., FOCUS and other similar religious nonprofits).
131. The Mandate creates a separate "accommodation" for certain non-exempt religious organizations. 78 Fed. Reg. at 39,874.
132. An organization is eligible for the "accommodation" if it (1) "[0]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 39,874.
133. The Temporary Enforcement Safe Harbor was extended through the end of2013, only six months after the issuance of the Final Rule. 78 Fed. Reg. at 39,889.
134. Thus, organizations which must comply with the Mandate must execute the selfcertification prior to its first plan year that begins on or after January 1,2014, and deliver it to the organization's insurer or third party administrator. 78 Fed. Reg. at 39,875.
135. FOCUS, which maintains a self-insurance plan for its employees in which FOCUS acts as its own insurer, must comply with this so-called "accommodation" and self-certify to the administrator of FOCUS's self insurance plan (called third party administrator) "prior to the beginning of the first plan year to which an accommodation is to apply", i.e., in the case of FOCUS's self-insurance plan, July 1,2014.78 Fed. Reg. 39,889.
136. But the certification that self-insured entities, like FOCUS, must deliver to third party administrators is different than the certification organizations are required to deliver to insurers. The certification that FOCUS is required to deliver certifies not only its religious
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objections, but also designates the "(o]bligations of the third party administrator" under ERISA include, by virtue of that designation, a fiduciary duty to provide promises of payments for the exact contraceptives and abortion-inducing drugs and devices to which FOCUS objects. 78 Fed. Reg. at 39,894-95.
137. Moreover, to comply with the Final Mandate, FOCUS is forbidden from speaking its pro-life religious beliefs to its third party administrator to withdraw its designation or urge it not to provide payments for objectionable contraceptives and abortion-inducing drugs and devices. "The eligible organization must not, directly or indirectly, seek to interfere with a third party administrator's arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator's decision to make any such arrangements." 78 Fed. Reg. at 39,895.
138. If FOCUS elects to conform to the accommodation with respect to its selfinsurance plan, FOCUS would be required to execute the self-certification and deliver it to its self-insurance plan's third party administrator on or before July 1, 2014.
139. By delivering the self-certification to its third party administrator, FOCUS would thereupon trigger the third party administrator's provision of or arrangement for payments for morally objectionable contraceptives and abortifacients. 78 Fed. Reg. 39,892-93. These payments constitute coverage ofthe items to which FOCUS objects, see, e.g., id. at 39,872 ("the regulations provide women with access to contraceptive coverage"), and are treated as coverage under consumer protection requirements of the Public Health Service Act and ERISA, id. at 39,876. This coverage will not be contained in any insurance policy separate from FOCUS's plan. See id.
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140. By issuing the self-certification, FOCUS would thereupon arrange and contract for its third party administrator to provide the exact coverage or payments that FOCUS objects to arranging, contracting for, or enabling, and that Defendants falsely represent in their Mandate that FOCUS would no longer be obliged to arrange or contract for.
141. Indeed, FOCUS would be required to identify its participating employees to its third party administrator for the distinct purpose of enabling Defendants' scheme to facilitate free access to contraceptives and abortifacient drugs, devices, and services to which FOCUS objects.
142. Moreover, the final Mandate effectively eliminates the existing morally acceptable health insurance made available to and possessed by employees of FOCUS and instead forces FOCUS and its employees, with no opt-out, to accept and pay into a plan that includes coverage of objectionable contraceptives and abortifacient drugs, devices, and services not only for themselves but for their wives and daughters. This impact falls on the individual plaintiffs and violates their religious beliefs.
143. Thus, while FOCUS is eligible for this so-called "accommodation," the "accommodation" is objectionable to FOCUS as it requires FOCUS to play an explicit, central and necessary role in Defendants' scheme to provide free access to contraceptives and abortifacient drugs, devices, and services. Without forcing FOCUS to designate its plan administrator to secure payments for the objectionable items, Defendants could not use FOCUS to deliver their unwanted payment promises upon FOCUS, its employees, or the individual plaintiffs. Quite simply, the "accommodation" is nothing more than a shell game that attempts to disguise a religious organization'S role as something less than the central cog in Defendants' scheme to provide contraceptives or abortifacients and related counseling and education.
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144. Notwithstanding this dissembling deception by Defendants, a religious organization's decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to the religious organization's employees of free contraceptives or abortifacients and related counseling and education.
145. The third party administrator' s obligation to make direct payments for artificial contraception and/or abortion-inducing drugs and devices, sterilization, and related education and counseling to which FOCUS objects would continue "for so long as the participant or beneficiary remains enrolled in the plan." 78 Fed. Reg. at 39,876.
146. Thus, FOCUS would have to coordinate with its third party administrator regarding when it was adding or removing employees and beneficiaries from its health insurance plan and, as a result, to or from the Defendants ' scheme.
147. FOCUS's third party administrator would be required to notify plan participants and beneficiaries of the contraceptive and abortifacient payment benefit "contemporaneous with .. . but separate from any application materials distributed in connection with enrollment" in FOCUS's health insurance plan. 78 Fed. Reg. at 39,876.
148. This would also require FOCUS to coordinate the notices with its third party administrator and to thus participate in the government's contraceptive and abortifacient services payment scheme.
149. The third party administrator would be required to provide contraceptive and abortifacient benefits " in a manner consistent" with the provision of other covered services." 78 Fed. Reg. at 39,876-77.
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150. Thus, any payment or coverage disputes would presumably need to be resolved under the terms of FOCUS's existing plan documents further embroiling FOCUS in the Defendants' scheme.
151. Even under this "accommodation," FOCUS and every other non-exempt objecting religious nonprofit organization will continue to playa central role in facilitating free access to objectionable contraceptive and abortifacient services in furtherance ofthe Defendants' scheme.
152. Under the "accommodation," insurers "may not impose any cost-sharing requirements, such as a copayment, coinsurance, or a deductible, or impose any premium fee or other charge, or any portion thereof, directly or indirectly, on the eligible organization." 78 Fed. Reg. at 39,896.
153. Defendants state that they "continue to believe, and have evidence to support," that providing payments for contraceptive and abortifacient 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 39,877.
154. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
155. 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. 39,877-78 (addressing ways insurers can cover up-front costs).
156. 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.

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157. 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.39,877.
158. This would encourage issuers to artificially inflate the eligible organization's premiums.
159. Under this methodology - assuming it is even legal- the eligible organization would still bear the cost of the required payments for contraceptive and abortifacient services in violation of its religious beliefs, as if the "accommodation" had never been made.
160. 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. 39,878.
161. There is no legal authority for forcing third and fourth parties to pay for services provided to the employees of eligible organizations under this "accommodation."
162. Furthermore, under the ACA, 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.
163. Thus, the "accommodation" fails to protect objecting religious organizations, like FOCUS, because it lacks statutory authority.
164. Finally, the "accommodation" has another massive, built-in "exception" to the Mandate, albeit an apparently accidental one, which further illustrates the arbitrary and sloppy character of Defendants' discrimination against entities like FOCUS. In recent similar lawsuits, Defendants have admitted that if non-exempt, non-integrated-auxiIiary organizations otherwise
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identical to FOCUS are participants in self-insured "church plans" that are exempt from ERISA, Defendants have refrained from (and lack authority for) imposing the aforementioned "accommodation" requirement on their third party administrators to promise abortifacient/contraceptives/sterilization payments for the plan's participants. As a result, thousands of non-exempt, non-integrated-auxiliary religious organizations that are indistinguishable from FOCUS for these purposes face no penalty whatsoever on their third party administrator to deliver objectionable payments to their employees, while FOCUS still faces that pressure, for reasons that serve no rational basis in Defendants' Mandate scheme,
165. 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 Defendants' scheme to force the free provision of contraceptive and abortifacient services even when the organization, as does FOCUS, objects to facilitating those services.
166. Religious organizations, like FOCUS, with self-insured plans managed by a third party administrator would be similarly enmeshed in the government's scheme.
167. Defendants acknowledge "there is no obligation for a third party administrator to enter into or remain in a contract with the eligible organization if it objects to any of these responsibilities." 78 Fed. Reg. at 39,880. This will pressure organizations like FOCUS so that they might not be able to find a third party administrator to work with them at all, or might have to pay increased costs to use a third party administrator.
168. Thus, the burden remains on the objecting religious organization (and Defendants have made that burden all the more difficult) to find a third party administrator that will agree to provide free access to the same contraceptive and abortifacient services the religious organization cannot, on the basis of its sincere religious objections, directly provide. Interfering
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with FOCUS's access to third party administrator services harms both FOCUS and its employees, including the individual plaintiffs, and undermines the coverage and network benefits that FOCUS's employees receive under FOCUS's plan.
169. FOCUS's religious beliefs preclude it from soliciting, contracting with, or designating a third party to provide these objectionable drugs, devices, and services.
170. The Mandate requires that, even if the third party administrator consents, the religious organization - via its self-certification - must expressly designate the third party administrator as "an ERISA section 3(16) plan administrator and claims administrator solely for the purpose of providing payments for contraceptive services for participants and beneficiaries." 78 Fed. Reg. at 39,879.
171. The self-certification must specifically notify the third party administrator of its "obligations set forth in the[] final regulations, and will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA." 78 Fed. Reg. at 39,879.
172. Because the designation makes the third party administrator a plan administrator with fiduciary duties linked to FOCUS's plan under ERISA, the payments for contraceptive and abortifacient drugs, devices and services would be payments made under FOCUS's plan.
173. Because FOCUS would be required to identify and designate a third party administrator willing to administer the contraceptive and abortifacient drugs, devices, and services, FOCUS's religious beliefs preclude it from complying with this "accommodation."
174. The Mandate sets forth complex means through which a third party administrator may seek to recover its costs incurred in making payments for contraceptive and abortifacient drugs, devices, and services.
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175. The third party administrator must identify an issuer who participates in an ACA exchange and who would be willing to make payments on behalf of the third party administrator.
176. Cooperating issuers would then be authorized to obtain refunds from the user fees they have paid to participate in the exchange as a means of being reimbursed for making payments for contraceptive and abortifacient drugs, devices, and services on behalf ofthe third party administrator.
177. Issuers would be required to pay a portion of the refund back to the third party administrator to compensate it for any administrative expenses it has incurred.
178. In sum, the "accommodation" is nothing more than a complex 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.
179. 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 contraceptive and abortifacient services to its employees and plan beneficiaries from the same insurer they are paying for their insurance plan.
180. FOCUS, and the individual plaintiffs, cannot participate in or facilitate Defendants' scheme in this manner without violating their religious convictions.
6. The Mandate and FOCUS's Health Insurance Plan. 181. The plan year for FOCUS's next employee health plan begins on July 1,2014. As
a result, FOCUS must, as it prepares for this next plan year, face the choice of (a) transgressing its religious commitments by including contraceptives and abortifacients in its plan or by
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arranging with its insurance issuer or third party administrator to provide the exact same services by providing the self-certification, or (b) transgressing its religious duty to provide for the well-being of its employees and their families by dropping its health insurance plan altogether in order to avoid being complicit in the provision of contraceptives and abortifacients, but thereby subjecting itself to crippling annual fines, penalties, and other sanctions, and depriving its employees of religiously acceptable health insurance that many of its employees desire for their families.
182. Although the government has recently announced that it will postpone implementing the annual fine of $2,000 per employee (minus 30) for organizations that drop insurance altogether, that postponement is only for one year, until 2015 (in the middle of FOCUS's next plan year). This postponement does not delay the daily fines under 26 U.S.c. § 49800 or lawsuits under 29 U.S.C. § 1132.
183. FOCUS's religious convictions forbid it from participating in any way in the government's scheme to provide free access to contraceptive and abortifacient services through its health care plan.
184. Dropping its insurance plan would place FOCUS at a severe competitive disadvantage in its efforts to recruit and retain employees. It would also deprive individual FOCUS employees, including the individual plaintiffs, of insurance that complies with their own moral and religious beliefs by omitting coverage and payments for abortifacients, contraceptives, and sterilization for themselves, their own families, and other plan participants. And it would harm FOCUS's employees by depriving them of the health plan they have, and pushing them into a costly and dysfunctional health insurance market governed by the ACA.
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185. The Mandate forces FOCUS to deliberately provide health insurance that would facilitate free access to contraceptives and abortifacients regardless of the ease with which insured persons could obtain these drugs and devices from other sources. Facilitating this government-dictated speech directly undermines the express speech and messages concerning the sanctity of life that FOCUS seeks to convey.
186. The Mandate directly forces FOCUS to speak by designating its third party administrator to provide promises of payments for abortifacients, contraception, and sterilization, in violation of FOCUS's beliefs, while also censoring FOCUS from speaking to its third party administrator its message against such items.
187. The Mandate therefore imposes a number of substantial burdens on the religious beliefs and exercise of Plaintiffs. And to the extent the Mandate impacts FOCUS's religious beliefs and its health insurance coverage, it impacts the individual plaintiffs' beliefs and their participation in that coverage as well.
7. The Governmental Interests Allegedly Underlying the Mandate and the Availability of Other Means of Pursuing Those Interests.
188. Coercing FOCUS to facilitate access to morally objectionable contraceptives and abortifacients advances no compelling governmental interest and is hardly the least restrictive means of achieving the government's purported interest.
189. The mandated contraceptives and abortion-inducing drugs, devices, and related services to which FOCUS objects are already widely available at little or no cost. Indeed, HHS Secretary Sebelius has acknowledged that contraceptives are "the most commonly taken drug in America by young and middle-aged women" and are widely "available at sites such as community health centers, public clinics, and hospitals with income-based support." See Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan.
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20,2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited Nov. 27, 2013).
190. The government has many other policy options available to it by which Defendants could provide access to these objectionable drugs, devices, and services without conscripting FOCUS and other religious objectors and their insurance plans in violation of their religious beliefs.
191. For example, Defendants could pay for such objectionable drugs, devices, and services (a) through existing government programs, including Title XIX, Title X, and Title XX; (b) by subsidizing the government's existing network of abortion and family planning services providers, many of which are being paid by the government as "Navigators" to promote the government's health insurance scheme; or (c) through direct government payments, or tax deductions, refunds, or credits.
192. The government could simply exempt all conscientiously objecting organizations, just as it has already exempted the subset of nonprofit religious employers that are referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code, and participants in self-insured church plans exempt from ERISA by freeing such plans from the Mandate's third party administrator penalty. And the government cannot possibly assert or sustain a compelling interest in forcing the individual plaintiffs to obtain coverage or promised payments of items when they religiously object to receiving that coverage or using those items and prefer to retain the coverage afforded to them by FOCUS.
193. In one form or another, the government also provides exemptions or reduced penalties 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
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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).
194. These broad exemptions further demonstrate that FOCUS could easily be exempted from the Mandate without measurably undermining any sufficiently important governmental interest allegedly served by the Mandate.
195. 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.
196. Indeed, HHS itself has predicted that a majority oflarge employers, employing more than 50 million Americans, will continue to use grandfathered plans until at least 2014, and that a third of medium-sized employers with between 50 and 100 employees may do likewise. 75 Fed. Reg. 34,538 (June 17, 2010); see also http://web.archive.org/web120 130620 17151 O/http://www.heaIthcare.gov/news/factsheets/ 20 10/06lkeeping-the-health-plan-you-have-grandfathered.htmI (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").
197. 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 contraceptives and abortifacients were important enough to codify in the ACA; as far as Congress was concerned, the Mandate need not include contraceptives and abortifacients at all.
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198. The Administration's recent postponement of the employer mandate (and its attendant penalties) also belies any claim that a compelling government interest justifies coercing FOCUS into complying with the Mandate, as employers may now decide not to provide their employee health plans without incurring fines under 26 U.S.C. § 4980H, at least for one additional year, although such a course is not an option for FOCUS itself.
199. These broad exemptions also demonstrate that the Mandate is not a general law entitled to some measure ofjudicial deference.
200. The available evidence does not support Defendants' contention that making contraceptives, abortifacients, and related counseling and education available without cost sharing decreases the rate of unintended pregnancy or the adverse impacts on health and equality that allegedly flow from any unintended nature of a pregnancy.
201. Defendants were willing to exempt various secular organizations, religious organizations, and church plan participants, and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for religious organizations such as FOCUS.
202. The Mandate was promulgated by government officials, and supported by nongovernmental organizations, who strongly oppose religious teachings and beliefs regarding marriage, family, and life and who strongly support an unlimited abortion right.
203. 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.
204. 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 at which time she told the assembled crowd that "we are in a war."
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205. Defendant Sebelius further criticized individuals and entities whose beliefs differed from those held by her and the others at this pro-abortion fundraising event, 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."
206. On July 16, 2013, Defendant Sebelius further compared opponents of the ACA generally to "people who opposed civil rights legislation in the 1960s," stating that upholding the ACA requires the same action as was shown "in the fight against lynching and the fight for desegregation." See http://www.hhs.gov/secretary/ aboutlspeeches/sp20130716.html.
207. Consequently, on information and belief, FOCUS and the individual plaintiffs allege that the clear purpose of the Mandate, including the restrictively narrow scope of the religious employer's exemption, is to discriminate against religious organizations and people that oppose contraception and abortion on religious and moral grounds.
FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 208. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 209. FOCUS's sincerely held religious beliefs prohibit it from providing, paying for, making accessible, or otherwise facilitating coverage or payments for abortion, abortifacients, embryo-harming drugs and devices, contraceptives, 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. The individual plaintiffs' beliefs similarly prohibit them from participating in such a health insurance scheme for themselves or their families.
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210. When Plaintiffs comply with the Ten Commandments' prohibition on murder and with their sincerely held religious beliefs that the Holy Bible and the Catholic Church teach that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious from the moment of conception, they exercise religion within the meaning of the Religious Freedom Restoration Act ("RFRA").
211. The Mandate imposes a substantial burden on Plaintiffs' religious exercise and coerces them to either change or violate their religious beliefs and the beliefs of many of FOCUS's employees.
212. The Mandate chills Plaintiffs' religious exercise within the meaning ofRFRA and pressures them to abandon their religious convictions and religious practices.
213. The Mandate exposes FOCUS to substantial fines and/or financial burdens for its religious exercise. It likewise imposes harms on the individual plaintiffs to participate in morally acceptable health insurance or threaten the quality and cost of their insurance coverage, which harms are exacerbated by the ACA's penalties on individuals ifthey do not obtain health insurance.
214. The Mandate exposes FOCUS to substantial competitive disadvantages because of uncertainties about its health insurance benefits caused by the Mandate.
215. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
216. The Mandate is not the least restrictive means of furthering Defendants' stated interests.
217. The Mandate and Defendants' threatened enforcement thereof violates Plaintiffs' rights protected by RFRA.
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218. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 219. Plainti ffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 220. FOCUS's sincerely held religious beliefs prohibit it from providing, paying for, making accessible, or otherwise facilitating coverage or payments for abortion, abortifacients, embryo-hanning drugs and devices, contraceptives, 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. The individual plaintiffs' beliefs similarly prohibit them from participating in such a health insurance scheme for themselves or their families. 221. When Plaintiffs comply with the Ten Commandments' prohibition on murder and with their sincerely held religious beliefs that the Holy Bible and the Catholic Church teach that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious from the moment of conception, they exercise religion within the meaning of the Free Exercise Clause of the First Amendment to the United States Constitution. 222. The Mandate imposes a substantial burden on Plaintiffs' religious exercise and coerces them to either change or violate their religious beliefs and the beliefs of many of FOCUS's employees. 223. The Mandate chills Plaintiffs' religious exercise within the meaning ofRFRA and pressures them to abandon their religious convictions and religious practices.
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224. The Mandate exposes FOCUS to substantial fines and/or financial burdens for its religious exercise. It likewise imposes harms on the individual plaintiffs to participate in morally acceptable health insurance or threaten the quality and cost of their insurance coverage, which harms are exacerbated by the ACA' s penalties on individuals if they do not obtain health insurance.
225. The Mandate forces Plaintiffs to choose between either following their religious commitments and suffering debilitating punishments or violating their religious beliefs in order to avoid those punishments.
226. The Mandate exposes FOCUS to substantial competitive disadvantages because of uncertainties about its health insurance benefits caused by the Mandate.
227. The Mandate violates the free exercise of religion of FOCUS and its employees (including the individual plaintiffs) who share FOCUS's beliefs about human life and abortion, abortifacients, embryo-harming drugs and devices, and contraceptives, and who do not wish to pay for or participate in a plan that causes promised payments for abortifacients, embryoharming drugs and devices, and contraceptives for their fellow employees, families, wives, and daughters, but for whom the Mandate gives no option.
228. The Mandate is not neutral and is not generally applicable. 229. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 230. Despite being informed in substantial detail of the religious objections of thousands of religious nonprofits like FOCUS, Defendants designed the Mandate and the "religious employer" exemption therefrom in a way that makes it impossible for FOCUS and
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other similar religious organizations to simultaneously comply with its religious beliefs and the Mandate.
231. Defendants promulgated the Mandate's narrow "religious employer" exemption, and its implicit exemption of self-insured church plan participants among organizations like FOCUSE, so that it the Mandate is not neutral in that it exempts from the Mandate some nonprofit employers who are religious but not others, thereby discriminating among religious organizations on the basis of their religious views or status.
232. The Free Exercise Clause, along with the Establishment Clause, protects the right of religious organizations to decide for themselves, free from government interference, matters of internal organizational governance as well as matters offaith and doctrine.
233. The Free Exercise Clause thus prohibits the government from interfering with a religious organization's internal decisions concerning its religious structure, leadership, doctrine, and policies, or the degree to which it is an integrated auxiliary or a church.
234. The government may not interfere with a religious organization's internal decisions if that interference would affect the faith and mission ofthe organization itself.
235. Based on Biblical teachings, the 2,000 year old teachings of the Catholic Church, and its own sincerely held religious beliefs, FOCUS has made the internal organizational decision that its employee health plan may not, as a matter of faith and practice, subsidize, provide, or facilitate access to contraception, sterilization, abortifacients, or abortion and counseling and education related to the same.
236. The Mandate directly interferes with FOCUS's internal organizational decision concerning its structure and mission by requiring it to subsidize, provide, or facilitate access to
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contraception, sterilization, abortifacients, or abortion and counseling and education related to the same.
237. The Mandate's interference with FOCUS's internal organizational decisions affects its faith and religious mission by requiring it to subsidize, provide, or facilitate access to contraception, sterilization, abortifacients, or abortion and counseling and education related to the same in direct violation of its religious beliefs.
238. The Mandate's interference with FOCUS's internal organizational decisionmaking in a manner that affects its faith and mission violates the Free Exercise Clause.
239. Defendants promulgated and implemented the Mandate and the "religious employer" exemption and its implicit exemption of self-insured church plan participants among organizations like FOCUS in order to suppress the religious exercise of FOCUS and other similar religious organizations.
240. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
241. The Mandate andlor its penalties, by Defendants' creation, do not apply to, inter alia, (a) an enormous number of health insurance plans that enjoy "grandfathered" status; (b) plans sponsored by employers that qualify for the "religious employer" exemption (including integrated auxiliaries that are similar to FOCUS); or (c) self-insured church plan participants among organizations like FOCUS, conclusively demonstrating the less-than-compelling nature of the interest that allegedly underlies the Mandate.
242. Indeed, access to contraceptives or abortifacients and related counseling and education is not a significant social problem as the availability of such items is ubiquitous, and compelling FOCUS to play an essential role in facilitating access to such objectionable drugs,
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devices, and services is not the least restrictive means of advancing any interest Defendants may conceivably have.
243. The Mandate violates Plaintiffs' rights secured to it by the Free Exercise Clause of the First Amendment to the United States Constitution.
244. Absent injunctive and declaratory relief against application and enforcement ofthe Mandate, Plaintiffs will suffer irreparable harm.
THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 245. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 246. The First Amendment's Establishment Clause requires governmental neutrality toward religion and prohibits the government from discriminating among religions and preferring some religious denominations or views over others. 247. The Mandate discriminates among religions and favors some religions and religious views over others. 248. The Mandate' s narrow exemption for "religious employers," and its refraining from imposing a penalty on third party administrators of self-insured church plan participants among organizations like FOCUS, discriminates among religions on the basis of religious views, religious status, or incidental institutional structure or affiliation by determining that some religious employers are "religious enough" to qualify for a full exemption while others are not. The Mandate's exemption of integrated auxiliaries of churches, but its refusal to exempt organizations such as FOCUS is irrational and discriminatory. The Mandate discriminates
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among individual religious believers who work at exempted entities and those who do not, crediting the significance of the beliefs of the former but not of the latter.
249. The Mandate adopts a particular theological view of what is acceptable moral complicity in the provision of contraceptives and abortifacients and imposes it through its "accommodation" upon most religionists like FOCUS (except those it favors via the "religious employer" exemption) who must either conform their consciences or suffer penalty. Yet the Mandate chooses other, situationally indistinguishable religionists and arbitrarily chooses not to impose itself or its penalties on them.
250. The Mandate's narrow "religious employer" exemption, and its refraining from imposing a penalty on third party administrators of self-insured church plan participants among organizations like FOCUS, exempts some religious employers but not others, thereby discriminating among religious organizations and favoring some religions and religious views over others.
251. The Mandate furthers no governmental interest. 252. The Mandate violates FOCUS's rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution. 253. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 254. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference.
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255. Defendants ' requirement that FOCUS provide insurance coverage that includes education and counseling regarding contraceptives and abortifacients forces FOCUS to speak in a manner contrary to its religious beliefs. Likewise, the Mandate censors FOCUS from speaking in a manner consistent with its religious beliefs.
256. FOCUS lives, practices, and teaches that abortion, contraceptives, and abortifacients violate God's law and that any participation in the unjustified taking of an innocent human life or artificial anti-conception contradicts its religious beliefs and convictions.
257. The Mandate compels FOCUS to facilitate expression and activities that FOCUS lives, practices, and teaches to be inconsistent with its religious beliefs, expression, and practices.
258. The Mandate compels FOCUS to facilitate access to government-dictated education and counseling related to abortion, contraception, and abortifacients.
259. The Mandate also requires FOCUS, as a condition of omitting contraceptives and abortifacients from its own self-insurance plan, to engage in specific speech to its third party administrator that expressly and operatively designates the third party administrator to provide the exact same promises of payments for contraceptives and abortifacients that FOCUS objects to providing or facilitating.
260. Defendants thus violate FOCUS ' s right to be free from compelled speech, a right secured to it by the Free Speech Clause of the First Amendment to the United States Constitution.
261. The Mandate also bans FOCUS from speaking on behalf ofthreatened unborn children to its third party administrator by, among other things, urging its third party
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administrator not to provide coverage of such objectionable drugs and devices that can destroy early human lives.
262. The Mandate's compelled speech and censorship requirements do not advance a compelling governmental interest.
263. Defendants have no narrowly tailored compelling interest to justify this compelled speech or censorship.
264. Defendants thus violate FOCUS's freedom of speech, and impose censorship on FOCUS's religiously motivated speech, rights secured to it by the Free Speech Clause of the First Amendment to the United States Constitution.
265. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
FIFTH CLAIM FOR RELIEF Violation of Due Process and Equal Protection As Guaranteed by the
Fifth Amendment to the United States Constitution 266. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 267. The Due Process Clause of the Fifth Amendment requires that government actors treat equally all persons similarly situated. 268. This requirement of equal treatment applies to organizations as well as to individuals. 269. Through the HHS Mandate's narrow "religious employer" exemption, Defendants have exempted certain religious organizations that object, based on deeply held religious beliefs, to complying with the HHS Mandate, but have refused to exempt others, including FOCUS.
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270. By extending the "religious employer" exemption to certain religious groups, but failing and refusing to extend it to FOCUS, Defendants have treated FOCUS differently than similarly situated groups.
271. The HHS Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
272. Because the HHS 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 FOCUS and others not before this Court.
273. Persons of common intelligence must necessarily guess at the meaning, scope, and application ofthe HHS Mandate and its exemptions.
274. The HHS Mandate lends itself to discriminatory enforcement by government officials in an arbitrary and capricious manner, and to lawsuits by private persons, based on the Defendants ' vague standard.
275. The HHS 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 Defendants' definition of a "religious employer."
276. The HHS Mandate violates Plaintiffs' due process rights under the Fifth Amendment to the United States Constitution.
277. Absent injunctive and declaratory relief against application and enforcement of the HHS Mandate, FOCUS and the individual plaintiffs will suffer irreparable harm.
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SIXTH CLAIM FOR RELIEF Violation of the First Amendment to the United States Constitution
Freedom of Expressive Association 278. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 279. FOCUS, its employees, and the individual plaintiffs associate with FOCUS for an expressive purpose, to live and promote their common religious beliefs, which include the teachings outlined above. 280. The Mandate compels FOCUS and its employees to facilitate expression and activities that are inconsistent with Plaintiffs' religious beliefs, expression, and practices. 281. Defendants' actions thus violate Plaintiffs' right of expressive association protected by the Free Speech Clause of the First Amendment to the United States Constitution. 282. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
SEVENTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act 283. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 284. Defendants relied upon a flawed study by 10M which, presumably in concert with HHS, was made up of individuals and organizations whose bias was the support of mass distribution, at public taxpayer expense, of abortion, abortion-inducing drugs and devices, and contraceptives. 285. Because Defendants did not give proper notice and an opportunity for public comment, Defendants did not take into account the full implications of the proposed regulations by completing a meaningful consideration of the relevant matters and objections presented.
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286. Defendants did not consider or respond to the hundreds of thousands of comments they received in opposition to the proposed regulations.
287. Defendants issued their proposed regulations on an interim final basis and only then asked for comments thereafter. Yet, it was clear from the regulatory text of Defendants' interim rules that Defendants had no intention of considering either the comments of religious organizations or the requests by such religious organizations to provide them with exemptions, or to hold off on the effective date of their rules after Defendants received all comments submitted.
288. Thus, Defendants imposed Defendants' rules without the required "openmindedness" that government agencies must have when notice-and-comment occurs. Defendants also did not have good cause to impose the objectionable rules without prior notice and comment.
289. Moreover, Defendants issued the final Mandate which applies to FOCUS and others on June 28,2013, and declared it effective August 1,2013, with a "safe harbor" that imposed the Mandate on FOCUS's first plan year beginning after December 31,2013, i.e., July 1,2014.
290. The ACA provides, and Defendants admit, that any rule issued by Defendants requiring coverage of preventive services under 42 U.S.C. § 300gg-13 (i.e., contraceptives or abortifacients and related counseling and education as required by the Mandate) cannot go into effect until at least a year after the rule is finalized. Thus, under these provisions, the Mandate cannot be effective as to FOCUS until its plan year beginning on July 1,2015.
291. Thus, the Mandate, by its effective date of August 1, 2013 and its impact on FOCUS on July 1,2014, violates the ACA and Defendants' regulations against imposing the
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Mandate within a year after the Mandate was finalized and/or violates the APA's requirement that government agencies be open-minded to comments before finalizing any rules.
292. 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 as a result of which Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(0).
293. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the Mandate on FOCUS and similar organizations.
294. Defendants' explanation (and lack thereof) for its decision not to exempt FOCUS and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. And Defendants lack any explanation or rationale for withholding their penalty on third party administrators or self-insured church plans, despite the participation of many entities indistinguishable from FOCUS in those plans.
295. Thus, Defendants' issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the Mandate failed to consider the full extent of its implications and it did not take into consideration the evidence against it.
296. As set forth above, the Mandate violates RFRA and the First and Fifth Amendments to the U.S Constitution.
297. 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 [abortion] services ... as part of its essential health benefits for any plan year." Section 1303(b)(1)(A).
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298. The Mandate is also contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of2009, Public Law 110329, 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."
299. The Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that "[n]o 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 ifhis performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions."
300. The Mandate also violate the ACA itself, 42 U.S.c. § 300gg-l3, which give Defendants no authority whatsoever to impose mandates that cause access to contraceptive or abortifacient coverage or payments in a vehicle outside of or separate from FOCUS's own health plan, or to impose requirements on FOCUS to designate its third party administrator to do so. No other federal statute gives Defendants any such authority.
301. The Mandate is therefore illegal, contrary to existing law, and in violation of the APA under 5 U.S.C. § 706(2)(A).
302. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs Fellowship of Catholic University Students, Curtis A. Martin, Craig Miller, Brenda Cannella, and Cindy O'Boyle respectfully request the following relief: A. That this Court enter a judgment declaring the Mandate and its application to Plaintiff Fellowship of Catholic University Students and its insurance issuers or third party administrators to be a violation of its rights protected by 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 to the United States Constitution, and the Administrative Procedure Act; B. That this Court enter a preliminary and permanent injunction prohibiting Defendants from continuing to apply the Mandate to Plaintiff Fellowship of Catholic University Students and to its 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 Plaintiff Fellowship of Catholic University Students by requiring it to provide health insurance coverage or access to separate payments for contraceptives, abortifacients, and related counseling through a mechanism using its health plan to its employees; C. That this Court award Plaintiffs their court costs and reasonable attorney's fees, as provided by the Equal Access to Justice Act and Religious Freedom Restoration Act (as provided in 42 U.S.C. § 1988); and D. That this Court grant such other and further relief as the Court may deem just and proper.
JURY DEMAND Plaintiffs demand a jury on all issues so triable.
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Respectfully submitted this 3rd of December, 2013.
. 'c: aelJ. · orton
. lANCE DEFENDING FREEDOM
7; 51 E. Maplewood Avenue, Suite 100 Greenwood Village, CO 80111 0) 720-689-2410 (F) 303-694-0703 mj norton@alliancedefendingfreedom.org
David A. Cortman
ALLIANCE DEFENDING FREEDOM
1000 Hurricane Shoals Road NE Suite D-llOO Lawrenceville, GA 30043 Tel.: 770-339-0774 Fax.: 770-339-6744 dcortman@alliancedefendingfreedom.org
Steven H. Aden Gregory S. Baylor Matthew S. Bowman
ALLIANCE DEFENDING FREEDOM
801 G Street, NW, Suite 509 Washington, DC 20001 Tel.: 202-393-8690 Fax: 202-347-3622 saden@alliancedefendingfre edom.or g gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.or g
Kevin H. Theriot
ALLIANCE DEFENDING FREEDOM
15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
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Case 1:13-cv-03263-MSK-KMT Document 1 Filed 12/03/13 USDC Colorado Page 60 of 60

vumCATlON OF COMPLAINT ACCOJtDlNG TO za,u§.c.J 1144,

1 declare under penalty of perjury that the foregoing factual allegations in the verified

complaint regarding Fellowship of Catholic University Students are true and correct to the best

of my knowledge. information and belief.

Executed on this 26111 day of November. 2013.

t24i .f2n'

Curtis A. Martin

z

Founder. President and CEO

Fellowship of Catholic University Students

*1 CERTIFY THAT I HAVE SIGNED THE ORIGINAL OF THIS DOCUMENT, WHICH IS AVAILABLE FOR INSPECTION ATANY TIME BY THE COURT OR BY A PARTY TO THIS ACTION.

 
 Case 1:13-cv-03263-MSK-KMT Document 10 Filed 12/16/13 USDC Colorado Page 1 of 63
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-03263 FELLOWSHIP OF CATHOLIC UNIVERSITY STUDENTS, a Colorado non-profit corporation, CURTIS A. MARTIN, CRAIG MILLER, BRENDA CANNELLA, and CINDY O’BOYLE,
Plaintiffs, v. KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, THOMAS PEREZ, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, JACOB J. LEW, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
FIRST AMENDED VERIFIED COMPLAINT AND JURY DEMAND
PLAINTIFFS FELLOWSHIP OF CATHOLIC UNIVERSITY STUDENTS (“FOCUS”), a Colorado non-profit corporation, CURTIS A. MARTIN, CRAIG MILLER, BRENDA CANNELLA, and CINDY O’BOYLE, by and through their attorneys with Alliance Defending Freedom, for their First Amended Verified Complaint against the Defendants abovenamed, state as follows:
I. NATURE OF THE ACTION
1. This lawsuit seeks judicial review of Defendants’ violations of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (herein “RFRA”), the First and Fifth
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Amendments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (herein the “APA”), resulting from Defendants’ implementation of Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 111-148 (March 23, 2010)), and Pub. L. No. 111-152 (March 30, 2010) (herein the “ACA”) in a manner that forces FOCUS and other employers (except the thousands that Defendants have exempted) to provide free coverage for, or access to, contraception, abortion-inducing drugs and devices, sterilization, and related education and counseling.
2. Defendants’ implementation of the so-called Preventive Services Mandate in the APA and its regulations (herein the “Mandate”) illegally and unconstitutionally coerce FOCUS and thousands of other non-exempt religious organizations to violate their sincere religious convictions under threat of heavy fines and penalties.
3. FOCUS, founded in 1998 by, among others Curtis A. Martin and Archbishop Charles J. Chaput, O.F.M. Cap., is a quintessential Catholic religious organization. Its college outreach program employs more than 350 persons as “missionaries” and, through those missionaries, FOCUS serves on 83 college campuses across the United States.
4. FOCUS’s purpose “is to advance the teachings of Jesus Christ and His Church – and to respond to the vicar of Christ’s (Pope John Paul II’s) call for a ‘New Evangelization’ to hasten the coming of the ‘culture of life’ and ‘civilization of love’ – by spreading the truth of the Catholic Faith among students at colleges and universities in North America and around the world.” See Articles of Incorporation of Fellowship of Catholic University Students, Colorado Secretary of State, filed with the Colorado Secretary of State on December 7, 1999 at # 19911228351.
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5. In accord with nearly 2,000 years of consistent Catholic teaching and consistent with the “New Evangelization” of the Catholic Church, FOCUS believes, affirms, and teaches that each and every human person is created in the image of God and that it is contrary to God’s will to interfere with human conception with contraceptives or to destroy innocent human life by abortion or by the use of abortion-inducing drugs and devices. Thus, FOCUS holds, as a matter of religious conviction, that it is immoral for FOCUS to intentionally participate in, pay for, train others to engage in, enable or otherwise support or facilitate access to access to contraceptives, sterilization, abortion, abortion-inducing drugs, devices, and services.
6. Though a religious organization, FOCUS does not qualify for the extraordinarily narrow religious exemption from the Mandate. That narrow religious exemption protects thousands of “churches, their integrated auxiliaries, conventions or associations of churches” and “the exclusively religious activities of any religious order”, but does not protect FOCUS. 78 Fed. Reg. 39,870 (July 2, 2013).
7. In addition, though thousands of other secular organizations have been exempted from the Mandate for purely secular reasons, FOCUS has not been so exempted. For example, employers with so-called “grandfathered” plans, i.e., plans in existence before March 23, 2010, are exempted from the Mandate and encompass tens of millions of women. Defendants have also recently admitted that “church plans” exempt from ERISA are also exempt from penalties attached to the Mandate, and those plans likewise encompass thousands of non-exempt nonprofit religious organizations otherwise indistinguishable from FOCUS.
8. Defendants have offered FOCUS and other non-exempt religious organizations a socalled “accommodation” of their religious beliefs and practices. However, this alleged “accommodation” fails and conscripts FOCUS into compliance with the Mandate, forcing
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FOCUS to obtain an insurer or a third party insurance claims administrator, and to complete and submit a government form that specifically causes that insurer or third party administrator to arrange payment for the objectionable drugs and devices, so that such coverage will apply to FOCUS’s own employees as a direct consequence of their employment with FOCUS and of their participation in the health insurance benefits FOCUS provides to them.
9. Under the supposed “accommodation,” the government continues to treat entities like FOCUS as second-class religious organizations, not entitled to the same religious freedom rights as substantially similar religious entities, or even the myriad of secular entities, that qualify for the exemption from the Mandate.
10. Defendants have determined to exempt churches and integrated auxiliaries from the Mandate because they surmise that employees of such religious entities are likely to share the religious convictions of such entities. Clearly, though not understood or recognized by the Defendants, this rationale applies equally to FOCUS and its employees.
11. Instead, Defendants seek to force FOCUS and other similarly situated religious nonprofits not eligible for Defendants’ exemption to comply with the Mandate without regard to their sincerely held faith beliefs.
12. Indeed, HHS Secretary Kathleen Sebelius stated that: “[A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the [Mandate] benefit package,” and “Catholic hospitals, Catholic universities, other religious entities will be providing [contraceptive and abortifacient] coverage to their employees starting August 1st.” Remarks at the Forum at Harvard School of Public Health (Apr. 8, 2013), http://theforum.sph.harvard.edu/eents/conversation-kathleen-sebelius (Part 9, Religion and
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Policymaking, at 4:40 and 2:48). The enforcement date was delayed until January 1, 2014. 78 Fed. Reg. 39,870 (July 2, 2013).
13. Defendants’ so-called “accommodation” does not offer religious liberty protections to FOCUS; if FOCUS follows its religious convictions and declines to participate in Defendants’ scheme, FOCUS will face, among other injuries, enormous fines that could exceed $16,000,000. It also forces the individual plaintiff employees of FOCUS, CURTIS A. MARTIN, CRAIG MILLER, BRENDA CANNELLA, and CINDY O’BOYLE to participate in a health insurance plan that causes them to receive promised payment coverage of morally and religiously objectionable abortifacient, contraceptive and sterilization items for themselves and their families.
14. These religious beliefs are central to FOCUS’s faith. FOCUS not only believes, but lives and teaches these beliefs. Thus, FOCUS remains opposed to complying with the Mandate, even pursuant to this “accommodation.”
15. In view of the untenable and unconscionable position in which Defendants have placed FOCUS, FOCUS respectfully requests that this Court vindicate its religious rights by, inter alia, (a) declaring that the Mandate violates the Religious Freedom Restoration Act, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the United States Constitution, due process and equal protection as guaranteed by the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act and (b) by entering a preliminary and permanent injunction enjoining enforcement of the Mandate as to FOCUS.
II. JURISDICTION AND VENUE
16. 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
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render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, 42 U.S.C. § 2000bb1, 5 U.S.C. § 702, and Fed. R. Civ. P. 57 and 65, and to award reasonable attorney’s fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and under 42 U.S.C. § 1988.
17. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e) in that FOCUS is resident in this district and a substantial part of the events or omissions giving rise to the claims herein occurred in this district.
III. IDENTIFICATION OF PARTIES
18. FOCUS is a Colorado non-profit corporation organized and recognized by the Internal Revenue Service as a § 501(c)(3) organization. Its headquarters office is located in Jefferson County, Colorado. FOCUS was born out of a passion and zeal to share how a relationship with Jesus Christ and the Catholic Faith can transform the world. FOCUS sends teams of young, trained missionaries to college campuses in order to reach students with the Gospel of Jesus Christ. In partnership with a local Catholic Parish and other Catholic organizations, FOCUS missionaries host large group outreach events, weekly Bible studies, and one-on-one mentoring sessions with student leaders. FOCUS presently has a staff of approximately 450 persons (of which about 350 are missionaries) and a presence on more than 80 college campuses across the United States.
19. CURTIS A. MARTIN is the founder, president, and chief executive officer of FOCUS and, in 2011, was appointed as Consulter to the Pontifical Council of the New Evangelization by Pope Benedict XVI and, in October 2012, participated with Catholic Bishops and Catholic lay people in a three week conference in Rome on the work of evangelization by the Catholic Church. Mr. Martin and his wife have eight children, one of whom is a teenage
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daughter, and are expecting their ninth child. Mr. Martin and his entire family hold and live the same religious beliefs as are held and lived by FOCUS. Mr. Martin and his entire family support FOCUS’s religious liberty rights, do not want to have any part in participating in Defendants’ immoral health insurance scheme, and do not want to expose any of their family members to Defendants’ immoral health insurance scheme. The Oath of Fidelity to the Catholic Church which reflects both FOCUS’s faith beliefs and those of Mr. Martin and which was signed by Mr. Martin when he began to work for FOCUS is attached hereto as Exhibit A and incorporated herein by this reference.
20. CRAIG A. MILLER is currently chief operating officer of FOCUS. Mr. Miller and his wife have six children, including four daughters, three of whom are teenagers. Mr. Miller and his entire family hold and live the same religious beliefs as are held and lived by FOCUS. Mr. Miller and his entire family support FOCUS’s religious liberty rights, do not want to have any part in participating in Defendants’ immoral health insurance scheme, and do not want to expose any of their family members to Defendants’ immoral health insurance scheme. The Oath of Fidelity to the Catholic Church which reflects both FOCUS’s faith beliefs and those of Mr. Miller’s and which was signed by Mr. Miller when he began to work for FOCUS is attached hereto as Exhibit B and incorporated herein by this reference.
21. BRENDA CANNELLA is currently senior director of finance of FOCUS. Ms. Cannella and her husband have five children, including two daughters, one of whom is a teenager. Ms. Cannella and her entire family hold and live the same religious beliefs as are held and lived by FOCUS. Ms. Cannella and her entire family support FOCUS’s religious liberty rights, do not want to have any part in participating in Defendants’ immoral health insurance scheme, and do not want to expose any of their family members to Defendants’ immoral health
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insurance scheme. The Oath of Fidelity to the Catholic Church which reflects both FOCUS’s faith beliefs and those of Ms. Cannella and which was signed by Ms. Cannella is attached hereto as Exhibit C and incorporated herein by this reference.
22. CINDY O’BOYLE is currently a missionary and team director at the University of California-Berkeley, CA. Ms. O’Boyle, who is in her early twenties, is single. Ms. O’Boyle holds and lives the same religious beliefs as are held and lived by FOCUS. Ms. O’Boyle supports FOCUS’s religious liberty rights, does not want to have any part in participating in Defendants’ immoral health insurance scheme, and does not want to be exposed to Defendants’ immoral health insurance scheme. The Oath of Fidelity to the Catholic Church which reflects both FOCUS’s faith beliefs and those of Ms. O’Boyle and which was signed by Ms. O’Boyle when she began to work for FOCUS is attached hereto as Exhibit D and incorporated herein by this reference.
23. Defendants are appointed officials of the United States government and United States Executive Branch agencies responsible for issuing and enforcing the Mandate.
24. Defendant Kathleen Sebelius (“Sebelius”) is the Secretary of the United States Department of Health and Human Services (“HHS”). In that capacity, she is responsible for the operation and management of HHS. Sebelius is sued in her official capacity only.
25. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
26. Defendant Thomas E. Perez (“Perez”) is the Secretary of the United States Department of Labor (“DOL”). In that capacity, he is responsible for the operation and management of DOL. Perez is sued in his official capacity only.
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27. Defendant DOL is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of aspects of the Mandate.
28. Defendant Jacob J. Lew (“Lew”) is the Secretary of the United States Department of the Treasury (“Treasury”). In that capacity, he is responsible for the operation and management of Treasury. Lew is sued in his official capacity only.
29. Defendant Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of certain aspects of the Mandate.
IV. FACTUAL ALLEGATIONS A. FOCUS’s Religious Beliefs.
30. FOCUS’s mission is, with the blessing and approval of Archbishop Samuel Aquila of Denver and with the blessings and approval of the local Bishop in each diocese in which a specific college is located, to equip and enable qualified FOCUS-trained missionaries to serve as the hands and feet of the Catholic Church and its auxiliaries by meeting college students where they live, i.e., dorms, intramural sports, student unions, Greek life, etc., by making a personal, sacrificial investment in the lives of those students, and by stressing ‘incarnational evangelization’ and God’s love to each student. See, e.g., http://www.focus.org/about/faqs.html.
31. FOCUS’s primary purpose or “main thing” is “[i]nviting college students into a growing relationship with Jesus Christ and His Church [and i]nspiring and equipping them for a lifetime of Christ-centered evangelization, discipleship, and friendship in which they lead others to do the same.”
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32. FOCUS’s mission statement is “[t]o know Christ Jesus, and to fulfill His great commission by first living and then communicating the fullness of life within the family of God, the Church.” Thus, a relationship with Jesus Christ and a commitment to the teachings of the Catholic Faith are central to FOCUS’s mission. The Gospel of Life promotes the culture of life, which opposes contraception, sterilization, abortifacients, and abortion.
33. FOCUS holds and actively professes religious beliefs in accordance with the traditional Christian teachings on the sanctity of life. FOCUS believes that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception.
34. FOCUS follows the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church. FOCUS lives out its religious faith daily by helping and assisting its employees and the college students it serves to follow the teachings of the Catholic Church and to strengthen their faith.
35. FOCUS’s religious beliefs include traditional Christian teaching on the nature and purpose of marriage and human sexuality. In particular, FOCUS believes, teaches, and lives, in accordance with Pope Paul VI’s July 25, 1968 encyclical entitled Humanae Vitae, that
 “The transmission of human life is a most serious role in which married people collaborate freely and responsibly with God the Creator.”
 “Marriage and conjugal love are by their nature ordained toward the procreation and education of children. Children are really the supreme gift of marriage and contribute in the highest degree to their parents’ welfare.”
 “[T]he exercise of responsible parenthood requires that husband and wife . . . recognize their own duties toward God, themselves, their families and human society.”
 “The sexual activity, in which husband and wife are intimately and chastely united with one another, through which human life is transmitted, is . . . ‘noble and worthy.’”
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 “[E]ach and every marital act must of necessity retain its intrinsic relationship to the procreation of human life.”
 Thus, “the direct interruption of the generative process already begun and, above all, all direct abortion, even for therapeutic reasons, are to be absolutely excluded as lawful means of regulating the number of children. Equally to be condemned . . . is the direct sterilization, whether of the man or of the woman, whether permanent or temporary. Similarly excluded is any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation – whether as an end or as a means.”
36. Accordingly, in following Pope Paul VI’s encyclical Humanae Vitae, FOCUS believes and actively professes, with the Catholic Church, that “to use this divine gift while depriving it, even if only partially, of its meaning and purpose, is equally repugnant to the nature of man and of woman, and is consequently in opposition to the plan of God and His holy will.”
37. FOCUS believes, as Pope Paul VI prophetically stated in Human Vitae, that “a man who grows accustomed to the use of contraceptive methods may forget the reverence due to a woman, and, disregarding her physical and emotional equilibrium, reduce her to being a mere instrument for the satisfaction of his own desires, no longer considering her as his partner whom he should surround with care and affection.”
38. This authoritative Catholic teaching was again set forth in Pope John Paul II’s March 25, 1995 encyclical Evangelium Vitae in which Pope John Paul II reaffirmed “the value of human life and its inviolability” and urged all persons “in the name of God [to] respect, protect, love and serve life, every human life!”
39. Based on the teachings of the Catholic Church, and its own sincerely held religious beliefs, FOCUS does not believe that contraception, sterilization, abortifacients, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well-
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being of persons. Indeed, FOCUS believes these procedures involve gravely immoral practices and cannot participate in any scheme to facilitate access to contraceptives, sterilization, and abortion-inducing drugs and devices and counseling and education related to the same without violating its sincerely held religious convictions concerning the sanctity and inherent dignity of all human life.
40. As a result, FOCUS exercises its fundamental constitutional and statutory rights to the free exercise of religion, the freedom of speech, and expressive association and its devotion to the teachings and the tenets of the Catholic Church by emphatically opposing and speaking out against the use of contraceptives, sterilization practices, abortifacients, and abortion.
41. FOCUS objects to Defendants forcing FOCUS to provide – directly or indirectly – any support for, or access to, contraception, sterilization, and abortifacients based on its sincerely held religious beliefs.
42. FOCUS both believes, affirms, and teaches that it is contrary to God’s will to interfere with conception with contraceptive devices or sterilization, or to destroy innocent human life by abortion or use of abortion-inducing drugs and devices and affirmatively speaks out against contraceptives, sterilization, abortion, and abortion-inducing drugs. Therefore, FOCUS may not participate in, pay for, train others to engage in, or otherwise support or facilitate contraception, abortion, and abortion-inducing drugs and devices.
43. FOCUS cannot fulfill its mission to strengthen the faith of the college students it serves and to teach such students to follow the teachings of the Catholic Church and also comply with the challenged regulations.
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44. Furthermore, FOCUS subscribes to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, FOCUS believes, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.”
45. Therefore, FOCUS believes and teaches that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception—is a grave sin.
46. FOCUS likewise has a sincere religious objection to facilitating access to abortioninducing drugs and devices, including the “emergency contraceptives” Plan B and ella and certain intrauterine devices (“IUDs”) because those drugs and devices can prevent a human embryo – which FOCUS understands to include the being formed at fertilization/conception, including before its implantation – from implanting in the wall of the uterus, thereby causing the death of the embryo.
47. Along with the clear and consistent teaching of the Catholic Church, the Pope, and the Bishops throughout this nation, FOCUS considers artificially preventing implantation of a human embryo to constitute an abortion.
48. Over the past several months, leaders within the Catholic Church have publicly spoken out about how the Mandate is a direct violation of Catholic Faith.
49. Cardinal Timothy Dolan, Archbishop of New York and President of the United States Conference of Catholic Bishops, wrote, “Since January 20 [2012], when the final, restrictive HHS [Mandate] . . . was first announced, we have become certain of two things:
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religious freedom is under attack, and we will not cease our struggle to protect it. We recall the words of our Holy Father Benedict XVI to our brother bishops on their recent ad limina visit: ‘Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion.’ We have made it clear in no uncertain terms to the government that we are not at peace with its invasive attempt to curtail the religious freedom we cherish as Catholics and Americans.” (http://www.usccb.org., March 2, 2012).
50. Archbishop Charles J. Chaput, the Archbishop of Philadelphia and a founding FOCUS board member and current board member emeritus, has expressed that the ACA and the Mandate seek “to coerce Catholic employers, private and corporate, to violate their religious convictions . . . [t]he HHS mandate, including its latest variant, is belligerent, unnecessary, and deeply offensive to the content of Catholic belief . . . The HHS mandate needs to be rescinded. In reality, no similarly aggressive attack on religious freedom in our country has occurred in recent memory . . . [t]he HHS mandate is bad law; and not merely bad, but dangerous and insulting. It needs to be withdrawn—now.” (http://the-americancatholic.com/2012/02/14/archbishop-chaput-hhs-mandate-dangerous-and-insulting/, Feb. 14, 2012).
51. Archbishop Samuel J. Aquila of Denver said: The Obama Administration’s mandate is a forceful intrusion by the government on the rights of Catholics to act on their beliefs in the public square. Furthermore, it violates the principle of the freedom to follow one’s conscience. This mandate runs contrary to the long-held principle of religious freedom that our Founders, who came here to escape religious persecution, enshrined in our Constitution. Catholics, Evangelical Christians, Baptists, and Jews are among the people of faith who have spoken out against the mandate and its requirements, to which they have moral objections. The government should not force its beliefs upon people of faith.
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52. On November 13, 2013, the U.S. Conference of Catholic Bishops, at the conclusion
of their fall General Assembly in Baltimore, Maryland, issued a “Special Message”. In part, the
Bishops, who promised to resist the Mandate if it is not corrected or rescinded, said:
The current impasse is all the more frustrating because the Catholic Church has long been a leading provider of, and advocate for, accessible, life-affirming health care. We would have preferred to spend these recent past years working toward this shared goal instead of resisting this intrusion into our religious liberty. We have been forced to devote time and resources to a conflict we did not start nor seek.
********************************
As the government’s implementation of the mandate against us approaches, we bishops stand united in our resolve to resist this heavy burden and protect our religious freedom. We will continue our efforts in Congress and especially with the promising initiatives in the courts to protect the religious freedom that ensures our ability to fulfill the Gospel by serving the common good.
53. On November 26, 2013, Pope Francis released an Apostolic Exhortation in which he
stated:
[T]his defence of unborn life is closely linked to the defence of each and every other human right. It involves the conviction that a human being is always sacred and inviolable, in any situation and at every stage of development. Human beings are ends in themselves and never a means of resolving other problems. Once this conviction disappears, so do solid and lasting foundations for the defence of human rights, which would always be subject to the passing whims of the powers that be. Reason alone is sufficient to recognize the inviolable value of each single human life, but if we also look at the issue from the standpoint of faith, every violation of the personal dignity of the human being cries out in vengeance to God and is an offence against the creator of the individual.
54. Because FOCUS both believes, affirms, and teaches that it that it is contrary to
God’s will to interfere with conception with contraception or to destroy innocent human life by
abortion or use of abortion-inducing drugs and devices and affirmatively speaks out against
contraceptives, sterilization, abortion, and abortion-inducing drugs, it would be a violation of
FOCUS’s deeply held religious beliefs for it to be required to provide, fund, facilitate, cause, or
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participate in health insurance which covers or provides payments for artificial contraception, sterilization, and/or abortion-inducing drugs and devices and related education and counseling.
55. CURTIS A. MARTIN, CRAIG MILLER, BRENDA CANNELLA, and CINDY O’BOYLE (hereinafter “the individual plaintiffs”) are employees of FOCUS who, like other FOCUS employees, hold and live the same religious beliefs as are held and lived by FOCUS, support FOCUS’s religious liberty rights, do not want to have any part in participating in Defendants’ immoral health insurance scheme, and do not want, either for themselves or for their wives or daughters, as applicable, to expose their family members to Defendants’ immoral health insurance scheme, including by receiving promises of payments for objectionable items arranged by FOCUS’s plan administrator, or by participating in a plan where FOCUS designates the administrator to obtain those promises of payments. They also object to losing their health insurance coverage provided by FOCUS, and to be forced in such a circumstance to buy themselves and their families a health insurance plan from another source that (because of the Mandate challenged here) will require them to buy coverage of abortifacients, contraception, sterilization, and education and counseling in favor of the same.
B. FOCUS’s Health Insurance Plan. 56. FOCUS currently has about 450 full-time employees and provides health insurance
through a self-insured plan administered by a third party administrator. The individual plaintiffs are four of those employees for whom FOCUS provides health insurance.
57. Though FOCUS provides its employees with employee health coverage superior to coverage generally available in the Colorado market, never in its history has FOCUS provided insurance coverage for contraceptives, sterilization, or abortion-inducing drugs and devices.
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58. FOCUS has designed its health insurance plan throughout the years to exclude coverage of contraception sterilization, and abortion-inducing drugs and devices in line with FOCUS’s religious beliefs and has taken great pains through the years to insure that its employees’ insurance plans do not cover these objectionable drugs and devices.
59. As the Mandate, with its “safe harbor” for religious non-profit groups, applies to the first health insurance plan-year beginning after December 31, 2013, FOCUS’s insurance plan year, as is relevant to this complaint, begins on July 1, 2014.
60. FOCUS’s health insurance plan does not qualify for any of the myriad of exemptions to the challenged regulations provided by Defendants.
61. Thus, FOCUS will face a choice in the period leading up to July 1, 2014 of explicitly designating and triggering its third party plan administrator to provide the objectionable drugs and devices or drop its employee health insurance plan altogether in order avoid being complicit in the provision of such objectionable drugs and devices and face crippling annual fines, harm to its employees who rely on that insurance, a severe impact on FOCUS’s ability to recruit and keep good employees, a consequent need to increase employee compensation substantially so that employees can provide insurance for their families (but leaving them to a market in which all insurance products they can buy, even assuming the system ever works, will include unwanted coverage of abortifacient, contraceptive, and sterilizing drugs and devices).
C. The ACA and Defendants’ Preventive Care Mandate. 62. In March 2010, Congress passed and President Obama signed into law, the Patient
Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010), and the Health
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Care and Education Reconciliation Act, Pub. L. No. 111-152 (March 30, 2010), together known as the “ACA.”
63. The ACA regulates the national health insurance market by, among other things, directly regulating “group health plans” and “health insurance issuers.”
64. Pursuant to the ACA, employers with over 50 full-time employees are required to provide a certain level of health insurance to their employees.
65. One provision of the ACA mandates 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).
66. The services required to be covered, without “any cost sharing,” 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 Prevention; and “preventive care and screenings” specific to infants, children, adolescents, and women which “preventive care and screenings” as to be “provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(1)-(4).
67. All of these services must be provided without “any cost sharing.” 42 U.S.C. § 300gg-13(a).
1. The Interim Final Rule.
68. On July 19, 2010, HHS published an Interim Final Rule regarding the ACA’s requirement that “preventive care and screenings” services be covered without cost sharing. 75 Fed. Reg. 41,726, 41,728.
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69. HHS issued this 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 41,730.
70. Although Defendants suggested in this Interim Final Rule that they would solicit public comments after implementation, Defendants 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.
71. 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 objectionable regulations regardless of the legal flaws or public opposition that might be manifest in public comments. Id.
72. In addition to reiterating the ACA’s “preventive care and screenings” coverage requirements, this Interim Final Rule provided further guidance concerning the ACA’s restriction on cost-sharing.
73. This Interim Final Rule made it clear that “cost sharing” referred to “out-ofpocket” expenses for plan participants and beneficiaries. 75 Fed. Reg. at 41,730.
74. This Interim Final Rule acknowledged that expenses “previously paid out-ofpocket” would “now be covered by group health plans and issuers” and that those expenses would, in turn, result in “higher average premiums for all enrollees.” Id.; see also id. at 41,737. (“Such a transfer of costs could be expected to lead to an increase in premiums.”).
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75. In other words, according to the Defendants, the prohibition on cost-sharing was simply a way “to distribute the cost of preventive services more equitably across the broad insured population.” 75 Fed. Reg. at 41,730.
76. After this Interim Final Rule was issued, numerous commenters warned against the adverse religious freedom and conscience implications of requiring religious individuals and organizations to include certain drugs, procedures, and services, including contraceptives, abortion-inducing drugs and devices, sterilization, and related education and counseling services, in the health care plans of such religious individuals and organizations.
77. HHS directed a private health policy organization, the Institute of Medicine (“IOM”), to make recommendations regarding which drugs, procedures, and services all health care plans should include as “preventive care and screenings” for women.
78. In developing its guidelines, IOM invited a select number of groups to make presentations on the drugs, procedures, and services that should, by force of law, be included by mandate in all health plans. Those groups selected by IOM, presumably in coordination with HHS, to make presentations to IOM included the Guttmacher Institute (an entity related to Planned Parenthood Federation of America which “advances sexual and reproductive health rights” including abortion)1, the American Congress of Obstetricians and Gynecologists (“ACOG”), John Santelli (who, among other things, serves as senior consultant for the Guttmacher Institute),2 the National Women’s Law Center (an organization which, among other things, works “to protect women’s reproductive rights” including abortion and contraception
1 Guttmacher Institute, “Mission,” available at http://www.guttmacher.org/mission.html (last visited Nov. 27, 2013). 2 Columbia University, “John S. Santelli,” available at http://www.mailman.columbia.edu/ourfaculty/profile?uni=js2637 (last visited Nov. 27, 2013).
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access),3 the National Women’s Health Network (an organization dedicated to preserve “access to contraceptive and abortion care”),4 Planned Parenthood Federation of America (a contraception and abortion providing organization dedicated to “reproduction selfdetermination”),5 and Sara Rosenbaum, a longtime contraception advocate. All of these groups and individuals advocate for access, at public expense, to contraception and abortion.
79. No religious groups or other groups that opposed government-mandated coverage of contraceptives, abortion-inducing drugs and devices, sterilization, and related education and counseling were invited by IOM to be presenters.
80. On July 10, 2011, the IOM published its preventive care guidelines for women, including recommendations 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).
81. Pursuant to the Food and Drug Administration (“FDA”), “approved contraceptive methods” were defined to include contraceptives, including birth control pills and prescription contraceptive devices such as IUDs, and abortion-inducing drugs and devices such as Plan B drugs (also known as the “morning after pill”) and its chemical cognates; ulipristal (also known as “ella” or the “week-after pill”); and certain IUDs.
3 National Women’s Law Center, “Our Issues,” available at http://www.nwlc.org/our-issues (last visited Nov. 27, 2013). 4 National Women’s Health Network, “Securing Sexual & Reproductive Health and Autonomy,” available at http://nwhn.org/securing-sexual-reproductive-health-and-autonomy (last visited Nov. 27, 2013). 5 Planned Parenthood, “Mission,” available at http://www.plannedparenthood.org/aboutus/who-we-are/vision-4837.htm (last visited Nov. 27, 2013).
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82. Many of these drugs and devices – including “emergency contraceptives” such as Plan Be and ella and intrauterine devices (“IUDs”) – are known abortion-inducing drugs or devices, i.e., drugs or devices that can cause the death of an embryo by preventing the embryo from implanting in the wall of the uterus.
83. Indeed, FDA’s own Birth Control Guide states that an effect of Plan B (Levonorgestrel) is to “prevent[] attachment (implantation) to the womb (uterus). FDA, Office of Women’s Health, Birth Control Guide, available at http://www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.htm (last visited Nov. 27, 2013).
84. The manufacturers of some of these mandated drugs, devices, and methods that are in the category of “FDA-approved contraceptives” indicate that they can function to cause the demise of an early embryo.
85. The requirement for related “education and counseling” accompanying contraceptives, abortion-inducing drugs, and sterilization necessarily covers education and counseling given in favor of the use of such objectionable drugs, devices, and methods, 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 objectionable drugs, devices, and methods that the medical provider is taking the position that the use of such items is in the patient’s best interests, and therefore the medical provider’s education and counseling related to any such item will be in favor of its proper use.
86. On August 1, 2011, a mere 13 days after IOM issued its recommendations, HRSA, a subagency of HHS, issued guidelines adopting IOM’s recommendations in full. See http://www.hrsa.gov/womensguidelines (last visited Nov. 27, 2013).
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87. These guidelines required that insurance plans commencing on or after August 1, 2012 include these offensive contraceptives and abortion-inducing drugs and devices.
88. A non-exempt employer which provided a health insurance plan that did not cover abortifacients, contraceptives, sterilization, or education and counseling for the same was subject to heavy fines approximating $100 per employee per day. Such employers were also vulnerable to lawsuits by the Secretary of Labor and by plan participants.
89. An employer with more than 50 employees could not avoid the requirements of the Mandate by simply refusing to provide health insurance to its employees because the ACA imposed annual monetary penalties on entities that would so refuse of $2,000 times the number of employees, minus 30.
90. Additionally, dropping health insurance coverage for employees altogether would harm the entity’s ability to attract and keep good employees, and/or cause the entity to have to increase employee compensation so that the employees could purchase health insurance themselves. It would also deprive the employees not only of a good health insurance plan, but also of a health insurance plan that many of the employees desire, for religious and moral reasons, does not cover abortifacients, contraceptives, or sterilization.
2. Second Interim Rule - The Religious Employer Exemption. 91. On the very same day that HRSA rubber-stamped the IOM’s recommendations,
HHS promulgated a “Second Interim Final Rule.” 76 Fed. Reg. 46,621 (published Aug. 3, 2011).
92. This Second Interim Final Rule granted HRSA “discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” 76 Fed. Reg. 46,621, 46,623. The term “religious employer” was restrictively defined as one that (1) has
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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 (ii) of the Internal Revenue Code of 1986, as amended. 75 Fed. Reg. at 46,626.
93. 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).
94. Thus, the “religious employer” exemption was extremely narrow, limited to churches, their integrated auxiliaries, and religious orders, but only if (1) their purpose was to inculcate faith and (2) they hired and served primarily people of their own faith tradition.
95. 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 (last visited Nov. 27, 2013).
96. Although religious organizations like FOCUS share the same religious beliefs and concerns as objecting Catholic churches, their integrated auxiliaries, and objecting religious orders, HHS deliberately ignored the offensive Mandate’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. 46,621, 46,623.
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97. As a result, the vast majority of religious organizations with conscientious objections to providing contraceptive and abortifacient products and services, including FOCUS, were excluded from the “religious employer” exemption.
98. Like the original Interim Final Rule, this Second Interim Final Rule was made effective immediately, without prior notice or an opportunity for public comment.
99. 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 46,624.
100. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted which opposed the narrow scope of the “religious employer” exemption and protested the Mandate’s gross infringement on the rights of religious individuals and organizations.
101. HHS did not take into account any of the concerns of religious organizations in the comments submitted before the Second Interim Final Rule was issued. Instead, HHS was unresponsive to the thousands of well-grounded assertions and concerns that the Mandate violated rights of conscience and religious liberties protected by the U.S. Constitution and statutes.
3. The Temporary Enforcement Safe Harbor.
102. 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 [i.e., to August 1, 2012]. . . to comply with this new law.” See Jan.
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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 (last visited
Nov. 27, 2013).
103. On February 10, 2012, HHS formally announced a “temporary enforcement safe harbor” for non-exempt nonprofit religious organizations that objected to covering free contraceptives and abortifacient services pursuant to the objectionable regulations.
104. HHS, declaring a “Temporary Enforcement Safe Harbor,” agreed 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 on or after August 1, 2013.
105. HHS also indicated it would develop and propose changes to the objectionable regulations to accommodate the religious liberty objections of non-exempt religious nonprofit organizations following expiration of the safe harbor.
106. Notwithstanding the safe harbor and HHS’s assurances that non-exempt religious nonprofits would be accommodated, on February 10, 2012, HHS announced a final rule “finalizing, without change” the contraceptive mandate and the narrow religious employer exemption. 77 Fed. Reg. 8,725-01 (published Feb. 15, 2012).
4. The Advance Notice of Proposed Rulemaking. 107. 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. 16,501, 16,503.
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108. The ANPRM conceded that forcing religious organizations to “contract, arrange, or pay for” the objectionable contraceptive and abortifacient services would infringe their “religious liberty interests.” Id. (emphasis added).
109. 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.
110. For the first time, and contrary to the earlier definition of “cost sharing,” Defendants suggested in the ANPRM that insurers and third party administrators of self-insured plans could “assume this responsibility.” Id.
111. This time, “approximately 200,000 comments” were submitted in response to the ANPRM, 78 Fed. Reg. 8,456, 8,459, largely restating previous religious liberty objections and stating that the government’s new proposal would not resolve these religious and 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 drugs, devices, and services.
4. 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. 8,456 (published Feb. 6, 2013).
113. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8,456, 8,458–59.
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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. 8,461.
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 8,461.
116. HHS acknowledged, however, that this proposal “would not expand the universe of employer plans that would qualify for the exemption beyond those entities which qualified for the religious employer exemption pursuant to the 2012 final rules.” 78 Fed. Reg. 8,456, 8,461.
117. In other words, religious nonprofit organizations like FOCUS that are not a formal church, an integrated auxiliary of a church, or a religious order would still not qualify for an exemption.
118. Though HHS had pledged to “accommodate” non-exempt religious nonprofit organizations like FOCUS, the NPRM required such non-exempt religious nonprofit organizations to participate in the government’s scheme by making them “designate” their insurers and third party administrators as “agents” to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs, devices, and services.
119. This proposed “accommodation” did not resolve the concerns of religious organizations like FOCUS because it continued to force them to deliberately provide health insurance that would trigger access to contraceptives, abortion-inducing drugs, devices, sterilization, and related education and counseling.
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120. The NPRM received 408,907 comments, a new record for comments. See 78 Fed. Reg. 8,457 and http://www.regulations.gov/#!documentDetail;D=CMS-2012-0031-63161 (government’s website tally of comments) (last visited Nov. 27, 2013). Religious organizations again overwhelmingly decried this new proposed “accommodation” as a sham and as a gross 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 drugs, devices, and services.
121. On April 8, 2013, the very same day that the notice-and-comment period ended, Defendant Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University. Defendant 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 Remarks at 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/ (at 49:45) (emphasis added) (last visited Nov. 27, 2013). 122. Given the date and timing of these remarks, it is clear that Defendants had no intention to give and indeed gave no consideration to the thousands of comments submitted by religious organizations in response to the NPRM’s proposed “accommodation.”
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123. Moreover, Defendant Sebelius’s remarks belie the utterly unpersuasive assertion that objecting employers do not “contract, arrange, pay, or refer for” coverage of morally objectionable items in the health insurance plans such employers provide employees.
5. The Final Rule. 124. On June 28, 2013, Defendants issued a Final Rule (the “Mandate”), which wholly
ignored the objections raised by thousands of religious organizations and others and continued to co-opt and conscript objecting employers, like FOCUS, into the Defendants’ scheme of coercing free access to contraceptive and abortifacient drugs, devices, and services from religious organizations like FOCUS. 78 Fed. Reg. 39,870 (2013).
125. Under this Final Rule, the “discretionary religious employer” exemption, which is still implemented via footnote on the HRSA website, see http://hrsa.gov/womensguidelines, remains limited to formal churches and their integrated auxiliaries and religious orders “organized and operate[d]” as nonprofit entities and “referred to in section 6033(a)(3)(A)(i) or (ii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 39,874.
126. Defendants attempted 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 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 39,874.
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127. Although religious organizations like FOCUS share the same religious objection to the Final Rule (the “Mandate”) as do churches, their integrated auxiliaries, and religious orders, Defendants have deliberately ignored the Mandate’s impact on FOCUS’s religious liberty by refusing to grant FOCUS and similar religious organizations an exemption from it.
128. FOCUS is a Catholic institution that adheres to the teaching authority of the Catholic Church in matters of faith and morals, including its belief concerning the sanctity and dignity of all human life. Its employees, including the individual plaintiffs, choose to work at FOCUS because they share its religious beliefs and wish to help FOCUS further its religious mission.
129. FOCUS is thus just as likely as organizations that qualify for Defendants’ “religious employer” exemption to employ individuals who are either of the same faith as FOCUS or adhere to the same religious objection to contraceptives and abortion-inducing drugs and devices as does FOCUS, yet Defendants deny FOCUS the “religious employer” exemption while extending it to houses of worship, and they deny the ability of FOCUS’s employees to obtain health insurance without triggering “free” coverage of such objectionable drugs and devices for their own and their fellow employees’ wives and daughters.
130. Defendants’ “religious employer” exemption divides the thousands of religious organizations that share a religious objection to the Mandate into those “religious enough” to qualify for an exemption (e.g., houses of worship) and those that are not “religious enough” (e.g., FOCUS and other similar religious nonprofits).
131. The Mandate creates a separate “accommodation” for certain non-exempt religious organizations. 78 Fed. Reg. at 39,874.
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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 39,874.
133. The Temporary Enforcement Safe Harbor was extended through the end of 2013, only six months after the issuance of the Final Rule. 78 Fed. Reg. at 39,889.
134. Thus, organizations which must comply with the Mandate must execute the selfcertification prior to its first plan year that begins on or after January 1, 2014, and deliver it to the organization’s insurer or third party administrator. 78 Fed. Reg. at 39,875.
135. FOCUS, which maintains a self-insurance plan for its employees in which FOCUS acts as its own insurer, must comply with this so-called “accommodation” and self-certify to the administrator of FOCUS’s self insurance plan (called third party administrator) “prior to the beginning of the first plan year to which an accommodation is to apply”, i.e., in the case of FOCUS’s self-insurance plan, July 1, 2014. 78 Fed. Reg. 39,889.
136. But the certification that self-insured entities, like FOCUS, must deliver to third party administrators is different than the certification organizations are required to deliver to insurers. The certification that FOCUS is required to deliver certifies not only its religious objections, but also designates the “[o]bligations of the third party administrator” under ERISA include, by virtue of that designation, a fiduciary duty to provide promises of payments for the exact contraceptives and abortion-inducing drugs and devices to which FOCUS objects. 78 Fed. Reg. at 39,894-95.
137. Moreover, to comply with the Final Mandate, FOCUS is forbidden from speaking its pro-life religious beliefs to its third party administrator to withdraw its designation or urge it
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not to provide payments for objectionable contraceptives and abortion-inducing drugs and devices. “The eligible organization must not, directly or indirectly, seek to interfere with a third party administrator’s arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrangements.” 78 Fed. Reg. at 39,895.
138. If FOCUS elects to conform to the accommodation with respect to its selfinsurance plan, FOCUS would be required to execute the self-certification and deliver it to its self-insurance plan’s third party administrator on or before July 1, 2014.
139. By delivering the self-certification to its third party administrator, FOCUS would thereupon trigger the third party administrator’s provision of or arrangement for payments for morally objectionable contraceptives and abortifacients. 78 Fed. Reg. 39,892-93. These payments constitute coverage of the items to which FOCUS objects, see, e.g., id. at 39,872 (“the regulations provide women with access to contraceptive coverage”), and are treated as coverage under consumer protection requirements of the Public Health Service Act and ERISA, id. at 39,876. This coverage will not be contained in any insurance policy separate from FOCUS’s plan. See id.
140. By issuing the self-certification, FOCUS would thereupon arrange and contract for its third party administrator to provide the exact coverage or payments that FOCUS objects to arranging, contracting for, or enabling, and that Defendants falsely represent in their Mandate that FOCUS would no longer be obliged to arrange or contract for.
141. Indeed, FOCUS would be required to identify its participating employees to its third party administrator for the distinct purpose of enabling Defendants’ scheme to facilitate
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free access to contraceptives and abortifacient drugs, devices, and services to which FOCUS objects.
142. Moreover, the final Mandate effectively eliminates the existing morally acceptable health insurance made available to and possessed by employees of FOCUS and instead forces FOCUS and its employees, with no opt-out, to accept and pay into a plan that includes coverage of objectionable contraceptives and abortifacient drugs, devices, and services not only for themselves but for their wives and daughters. This impact falls on the individual plaintiffs and violates their religious beliefs.
143. Thus, while FOCUS is eligible for this so-called “accommodation,” the “accommodation” is objectionable to FOCUS as it requires FOCUS to play an explicit, central and necessary role in Defendants’ scheme to provide free access to contraceptives and abortifacient drugs, devices, and services. Without forcing FOCUS to designate its plan administrator to secure payments for the objectionable items, Defendants could not use FOCUS to deliver their unwanted payment promises upon FOCUS, its employees, or the individual plaintiffs. Quite simply, the “accommodation” is nothing more than a shell game that attempts to disguise a religious organization’s role as something less than the central cog in Defendants’ scheme to provide contraceptives or abortifacients and related counseling and education.
144. Notwithstanding this dissembling deception by Defendants, a religious organization’s decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to the religious organization’s employees of free contraceptives or abortifacients and related counseling and education.
145. The third party administrator’s obligation to make direct payments for artificial contraception and/or abortion-inducing drugs and devices, sterilization, and related education
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and counseling to which FOCUS objects would continue “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. at 39,876.
146. Thus, FOCUS would have to coordinate with its third party administrator regarding when it was adding or removing employees and beneficiaries from its health insurance plan and, as a result, to or from the Defendants’ scheme.
147. FOCUS’s third party administrator would be required to notify plan participants and beneficiaries of the contraceptive and abortifacient payment benefit “contemporaneous with . . . but separate from any application materials distributed in connection with enrollment” in FOCUS’s health insurance plan. 78 Fed. Reg. at 39,876.
148. This would also require FOCUS to coordinate the notices with its third party administrator and to thus participate in the government’s contraceptive and abortifacient services payment scheme.
149. The third party administrator would be required to provide contraceptive and abortifacient benefits “in a manner consistent” with the provision of other covered services.” 78 Fed. Reg. at 39,876-77.
150. Thus, any payment or coverage disputes would presumably need to be resolved under the terms of FOCUS’s existing plan documents further embroiling FOCUS in the Defendants’ scheme.
151. Even under this “accommodation,” FOCUS and every other non-exempt objecting religious nonprofit organization will continue to play a central role in facilitating free access to objectionable contraceptive and abortifacient services in furtherance of the Defendants’ scheme.
152. Under the “accommodation,” insurers “may not impose any cost-sharing requirements, such as a copayment, coinsurance, or a deductible, or impose any premium fee or
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other charge, or any portion thereof, directly or indirectly, on the eligible organization.” 78 Fed. Reg. at 39,896.
153. Defendants state that they “continue to believe, and have evidence to support,” that providing payments for contraceptive and abortifacient 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 39,877.
154. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
155. 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. 39,877-78 (addressing ways insurers can cover up-front costs).
156. 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.
157. 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.39,877.
158. This would encourage issuers to artificially inflate the eligible organization’s premiums.
159. Under this methodology – assuming it is even legal – the eligible organization would still bear the cost of the required payments for contraceptive and abortifacient services in violation of its religious beliefs, as if the “accommodation” had never been made.
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160. 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. 39,878.
161. There is no legal authority for forcing third and fourth parties to pay for services provided to the employees of eligible organizations under this “accommodation.”
162. Furthermore, under the ACA, 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.
163. Thus, the “accommodation” fails to protect objecting religious organizations, like FOCUS, because it lacks statutory authority.
164. Finally, the “accommodation” has another massive, built-in “exception” to the Mandate, albeit an apparently accidental one, which further illustrates the arbitrary and sloppy character of Defendants’ discrimination against entities like FOCUS. In recent similar lawsuits, Defendants have admitted that if non-exempt, non-integrated-auxiliary organizations otherwise identical to FOCUS are participants in self-insured “church plans” that are exempt from ERISA, Defendants have refrained from (and lack authority for) imposing the aforementioned “accommodation” requirement on their third party administrators to promise abortifacient/contraceptives/sterilization payments for the plan’s participants. As a result, thousands of non-exempt, non-integrated-auxiliary religious organizations that are indistinguishable from FOCUS for these purposes face no penalty whatsoever on their third party administrator to deliver objectionable payments to their employees, while FOCUS still faces that pressure, for reasons that serve no rational basis in Defendants’ Mandate scheme.
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165. 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 Defendants’ scheme to force the free provision of contraceptive and abortifacient services even when the organization, as does FOCUS, objects to facilitating those services.
166. Religious organizations, like FOCUS, with self-insured plans managed by a third party administrator would be similarly enmeshed in the government’s scheme.
167. Defendants acknowledge “there is no obligation for a third party administrator to enter into or remain in a contract with the eligible organization if it objects to any of these responsibilities.” 78 Fed. Reg. at 39,880. This will pressure organizations like FOCUS so that they might not be able to find a third party administrator to work with them at all, or might have to pay increased costs to use a third party administrator.
168. Thus, the burden remains on the objecting religious organization (and Defendants have made that burden all the more difficult) to find a third party administrator that will agree to provide free access to the same contraceptive and abortifacient services the religious organization cannot, on the basis of its sincere religious objections, directly provide. Interfering with FOCUS’s access to third party administrator services harms both FOCUS and its employees, including the individual plaintiffs, and undermines the coverage and network benefits that FOCUS’s employees receive under FOCUS’s plan.
169. FOCUS’s religious beliefs preclude it from soliciting, contracting with, or designating a third party to provide these objectionable drugs, devices, and services.
170. The Mandate requires that, even if the third party administrator consents, the religious organization – via its self-certification – must expressly designate the third party administrator as “an ERISA section 3(16) plan administrator and claims administrator solely for
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the purpose of providing payments for contraceptive services for participants and beneficiaries.” 78 Fed. Reg. at 39,879.
171. The self-certification must specifically notify the third party administrator of its “obligations set forth in the[] final regulations, and will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” 78 Fed. Reg. at 39,879.
172. Because the designation makes the third party administrator a plan administrator with fiduciary duties linked to FOCUS’s plan under ERISA, the payments for contraceptive and abortifacient drugs, devices and services would be payments made under FOCUS’s plan.
173. Because FOCUS would be required to identify and designate a third party administrator willing to administer the contraceptive and abortifacient drugs, devices, and services, FOCUS’s religious beliefs preclude it from complying with this “accommodation.”
174. The Mandate sets forth complex means through which a third party administrator may seek to recover its costs incurred in making payments for contraceptive and abortifacient drugs, devices, and services.
175. The third party administrator must identify an issuer who participates in an ACA exchange and who would be willing to make payments on behalf of the third party administrator.
176. Cooperating issuers would then be authorized to obtain refunds from the user fees they have paid to participate in the exchange as a means of being reimbursed for making payments for contraceptive and abortifacient drugs, devices, and services on behalf of the third party administrator.
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177. Issuers would be required to pay a portion of the refund back to the third party administrator to compensate it for any administrative expenses it has incurred.
178. In sum, the “accommodation” is nothing more than a complex 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.
179. 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 contraceptive and abortifacient services to its employees and plan beneficiaries from the same insurer they are paying for their insurance plan.
180. FOCUS, and the individual plaintiffs, cannot participate in or facilitate Defendants’ scheme in this manner without violating their religious convictions.
6. The Mandate and FOCUS’s Health Insurance Plan. 181. The plan year for FOCUS’s next employee health plan begins on July 1, 2014. As
a result, FOCUS must, as it prepares for this next plan year, face the choice of (a) transgressing its religious commitments by including contraceptives and abortifacients in its plan or by arranging with its insurance issuer or third party administrator to provide the exact same services by providing the self-certification, or (b) transgressing its religious duty to provide for the well-being of its employees and their families by dropping its health insurance plan altogether in order to avoid being complicit in the provision of contraceptives and abortifacients, but thereby subjecting itself to crippling annual fines, penalties, and other sanctions, and depriving its employees of religiously acceptable health insurance that many of its employees desire for their families.
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182. Although the government has recently announced that it will postpone implementing the annual fine of $2,000 per employee (minus 30) for organizations that drop insurance altogether, that postponement is only for one year, until 2015 (in the middle of FOCUS’s next plan year). This postponement does not delay the daily fines under 26 U.S.C. § 4980D or lawsuits under 29 U.S.C. § 1132.
183. FOCUS’s religious convictions forbid it from participating in any way in the government’s scheme to provide free access to contraceptive and abortifacient services through its health care plan.
184. Dropping its insurance plan would place FOCUS at a severe competitive disadvantage in its efforts to recruit and retain employees. It would also deprive individual FOCUS employees, including the individual plaintiffs, of insurance that complies with their own moral and religious beliefs by omitting coverage and payments for abortifacients, contraceptives, and sterilization for themselves, their own families, and other plan participants. And it would harm FOCUS’s employees by depriving them of the health plan they have, and pushing them into a costly and dysfunctional health insurance market governed by the ACA.
185. The Mandate forces FOCUS to deliberately provide health insurance that would facilitate free access to contraceptives and abortifacients regardless of the ease with which insured persons could obtain these drugs and devices from other sources. Facilitating this government-dictated speech directly undermines the express speech and messages concerning the sanctity of life that FOCUS seeks to convey.
186. The Mandate directly forces FOCUS to speak by designating its third party administrator to provide promises of payments for abortifacients, contraception, and
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sterilization, in violation of FOCUS’s beliefs, while also censoring FOCUS from speaking to its third party administrator its message against such items.
187. The Mandate therefore imposes a number of substantial burdens on the religious beliefs and exercise of Plaintiffs. And to the extent the Mandate impacts FOCUS’s religious beliefs and its health insurance coverage, it impacts the individual plaintiffs’ beliefs and their participation in that coverage as well.
7. The Governmental Interests Allegedly Underlying the Mandate and the Availability of Other Means of Pursuing Those Interests.
188. Coercing FOCUS to facilitate access to morally objectionable contraceptives and abortifacients advances no compelling governmental interest and is hardly the least restrictive means of achieving the government’s purported interest.
189. The mandated contraceptives and abortion-inducing drugs, devices, and related services to which FOCUS objects are already widely available at little or no cost. Indeed, HHS Secretary Sebelius has acknowledged that contraceptives are “the most commonly taken drug in America by young and middle-aged women” and are widely “available at sites such as community health centers, public clinics, and hospitals with income-based support.” See Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited Nov. 27, 2013).
190. The government has many other policy options available to it by which Defendants could provide access to these objectionable drugs, devices, and services without conscripting FOCUS and other religious objectors and their insurance plans in violation of their religious beliefs.
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191. For example, Defendants could pay for such objectionable drugs, devices, and services (a) through existing government programs, including Title XIX, Title X, and Title XX; (b) by subsidizing the government’s existing network of abortion and family planning services providers, many of which are being paid by the government as “Navigators” to promote the government’s health insurance scheme; or (c) through direct government payments, or tax deductions, refunds, or credits.
192. The government could simply exempt all conscientiously objecting organizations, just as it has already exempted the subset of nonprofit religious employers that are referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code, and participants in self-insured church plans exempt from ERISA by freeing such plans from the Mandate’s third party administrator penalty. And the government cannot possibly assert or sustain a compelling interest in forcing the individual plaintiffs to obtain coverage or promised payments of items when they religiously object to receiving that coverage or using those items and prefer to retain the coverage afforded to them by FOCUS.
193. In one form or another, the government also provides exemptions or reduced penalties 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).
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194. These broad exemptions further demonstrate that FOCUS could easily be exempted from the Mandate without measurably undermining any sufficiently important governmental interest allegedly served by the Mandate.
195. 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.
196. 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 that a third of medium-sized employers with between 50 and 100 employees may do likewise. 75 Fed. Reg. 34,538 (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-grandfathered.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”).
197. 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 contraceptives and abortifacients were important enough to codify in the ACA; as far as Congress was concerned, the Mandate need not include contraceptives and abortifacients at all.
198. The Administration’s recent postponement of the employer mandate (and its attendant penalties) also belies any claim that a compelling government interest justifies coercing FOCUS into complying with the Mandate, as employers may now decide not to
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provide their employee health plans without incurring fines under 26 U.S.C. § 4980H, at least for one additional year, although such a course is not an option for FOCUS itself.
199. These broad exemptions also demonstrate that the Mandate is not a general law entitled to some measure of judicial deference.
200. The available evidence does not support Defendants’ contention that making contraceptives, abortifacients, and related counseling and education available without cost sharing decreases the rate of unintended pregnancy or the adverse impacts on health and equality that allegedly flow from any unintended nature of a pregnancy.
201. Defendants were willing to exempt various secular organizations, religious organizations, and church plan participants, and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for religious organizations such as FOCUS.
202. The Mandate was promulgated by government officials, and supported by nongovernmental organizations, who strongly oppose religious teachings and beliefs regarding marriage, family, and life and who strongly support an unlimited abortion right.
203. 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.
204. 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 at which time she told the assembled crowd that “we are in a war.”
205. Defendant Sebelius further criticized individuals and entities whose beliefs differed from those held by her and the others at this pro-abortion fundraising event, stating:
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“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.”
206. On July 16, 2013, Defendant Sebelius further compared opponents of the ACA generally to “people who opposed civil rights legislation in the 1960s,” stating that upholding the ACA 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.
207. Consequently, on information and belief, FOCUS and the individual plaintiffs allege that the clear purpose of the Mandate, including the restrictively narrow scope of the religious employer’s exemption, is to discriminate against religious organizations and people that oppose contraception and abortion on religious and moral grounds.
FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 208. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 209. FOCUS’s sincerely held religious beliefs prohibit it from providing, paying for, making accessible, or otherwise facilitating coverage or payments for abortion, abortifacients, embryo-harming drugs and devices, contraceptives, 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. The individual plaintiffs’ beliefs similarly prohibit them from participating in such a health insurance scheme for themselves or their families. 210. When Plaintiffs comply with the Ten Commandments’ prohibition on murder and with their sincerely held religious beliefs that the Holy Bible and the Catholic Church teach that
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each human being bears the image and likeness of God, and therefore that all human life is sacred and precious from the moment of conception, they exercise religion within the meaning of the Religious Freedom Restoration Act (“RFRA”).
211. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise and coerces them to either change or violate their religious beliefs and the beliefs of many of FOCUS’s employees.
212. The Mandate chills Plaintiffs’ religious exercise within the meaning of RFRA and pressures them to abandon their religious convictions and religious practices.
213. The Mandate exposes FOCUS to substantial fines and/or financial burdens for its religious exercise. It likewise imposes harms on the individual plaintiffs to participate in morally acceptable health insurance or threaten the quality and cost of their insurance coverage, which harms are exacerbated by the ACA’s penalties on individuals if they do not obtain health insurance.
214. The Mandate exposes FOCUS to substantial competitive disadvantages because of uncertainties about its health insurance benefits caused by the Mandate.
215. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
216. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
217. The Mandate and Defendants’ threatened enforcement thereof violates Plaintiffs’ rights protected by RFRA.
218. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
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SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 219. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference . 220. FOCUS’s sincerely held religious beliefs prohibit it from providing, paying for, making accessible, or otherwise facilitating coverage or payments for abortion, abortifacients, embryo-harming drugs and devices, contraceptives, 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. The individual plaintiffs’ beliefs similarly prohibit them from participating in such a health insurance scheme for themselves or their families. 221. When Plaintiffs comply with the Ten Commandments’ prohibition on murder and with their sincerely held religious beliefs that the Holy Bible and the Catholic Church teach that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious from the moment of conception, they exercise religion within the meaning of the Free Exercise Clause of the First Amendment to the United States Constitution. 222. The Mandate imposes a substantial burden on Plaintiffs’ religious exercise and coerces them to either change or violate their religious beliefs and the beliefs of many of FOCUS’s employees. 223. The Mandate chills Plaintiffs’ religious exercise within the meaning of RFRA and pressures them to abandon their religious convictions and religious practices.
224. The Mandate exposes FOCUS to substantial fines and/or financial burdens for its religious exercise. It likewise imposes harms on the individual plaintiffs to participate in
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morally acceptable health insurance or threaten the quality and cost of their insurance coverage, which harms are exacerbated by the ACA’s penalties on individuals if they do not obtain health insurance.
225. The Mandate forces Plaintiffs to choose between either following their religious commitments and suffering debilitating punishments or violating their religious beliefs in order to avoid those punishments.
226. The Mandate exposes FOCUS to substantial competitive disadvantages because of uncertainties about its health insurance benefits caused by the Mandate.
227. The Mandate violates the free exercise of religion of FOCUS and its employees (including the individual plaintiffs) who share FOCUS’s beliefs about human life and abortion, abortifacients, embryo-harming drugs and devices, and contraceptives, and who do not wish to pay for or participate in a plan that causes promised payments for abortifacients, embryoharming drugs and devices, and contraceptives for their fellow employees, families, wives, and daughters, but for whom the Mandate gives no option.
228. The Mandate is not neutral and is not generally applicable. 229. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 230. Despite being informed in substantial detail of the religious objections of thousands of religious nonprofits like FOCUS, Defendants designed the Mandate and the “religious employer” exemption therefrom in a way that makes it impossible for FOCUS and other similar religious organizations to simultaneously comply with its religious beliefs and the Mandate.
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231. Defendants promulgated the Mandate’s narrow “religious employer” exemption, and its implicit exemption of self-insured church plan participants among organizations like FOCUSE, so that it the Mandate is not neutral in that it exempts from the Mandate some nonprofit employers who are religious but not others, thereby discriminating among religious organizations on the basis of their religious views or status.
232. The Free Exercise Clause, along with the Establishment Clause, protects the right of religious organizations to decide for themselves, free from government interference, matters of internal organizational governance as well as matters of faith and doctrine.
233. The Free Exercise Clause thus prohibits the government from interfering with a religious organization’s internal decisions concerning its religious structure, leadership, doctrine, and policies, or the degree to which it is an integrated auxiliary or a church.
234. The government may not interfere with a religious organization’s internal decisions if that interference would affect the faith and mission of the organization itself.
235. Based on Biblical teachings, the 2,000 year old teachings of the Catholic Church, and its own sincerely held religious beliefs, FOCUS has made the internal organizational decision that its employee health plan may not, as a matter of faith and practice, subsidize, provide, or facilitate access to contraception, sterilization, abortifacients, or abortion and counseling and education related to the same.
236. The Mandate directly interferes with FOCUS’s internal organizational decision concerning its structure and mission by requiring it to subsidize, provide, or facilitate access to contraception, sterilization, abortifacients, or abortion and counseling and education related to the same.
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237. The Mandate’s interference with FOCUS’s internal organizational decisions affects its faith and religious mission by requiring it to subsidize, provide, or facilitate access to contraception, sterilization, abortifacients, or abortion and counseling and education related to the same in direct violation of its religious beliefs.
238. The Mandate’s interference with FOCUS’s internal organizational decisionmaking in a manner that affects its faith and mission violates the Free Exercise Clause.
239. Defendants promulgated and implemented the Mandate and the “religious employer” exemption and its implicit exemption of self-insured church plan participants among organizations like FOCUS in order to suppress the religious exercise of FOCUS and other similar religious organizations.
240. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
241. The Mandate and/or its penalties, by Defendants’ creation, do not apply to, inter alia, (a) an enormous number of health insurance plans that enjoy “grandfathered” status; (b) plans sponsored by employers that qualify for the “religious employer” exemption (including integrated auxiliaries that are similar to FOCUS); or (c) self-insured church plan participants among organizations like FOCUS, conclusively demonstrating the less-than-compelling nature of the interest that allegedly underlies the Mandate.
242. Indeed, access to contraceptives or abortifacients and related counseling and education is not a significant social problem as the availability of such items is ubiquitous, and compelling FOCUS to play an essential role in facilitating access to such objectionable drugs, devices, and services is not the least restrictive means of advancing any interest Defendants may conceivably have.
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243. The Mandate violates Plaintiffs’ rights secured to it by the Free Exercise Clause of the First Amendment to the United States Constitution.
244. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 245. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 246. The First Amendment’s Establishment Clause requires governmental neutrality toward religion and prohibits the government from discriminating among religions and preferring some religious denominations or views over others. 247. The Mandate discriminates among religions and favors some religions and religious views over others. 248. The Mandate’s narrow exemption for “religious employers,” and its refraining from imposing a penalty on third party administrators of self-insured church plan participants among organizations like FOCUS, discriminates among religions on the basis of religious views, religious status, or incidental institutional structure or affiliation by determining that some religious employers are “religious enough” to qualify for a full exemption while others are not. The Mandate’s exemption of integrated auxiliaries of churches, but its refusal to exempt organizations such as FOCUS is irrational and discriminatory. The Mandate discriminates among individual religious believers who work at exempted entities and those who do not, crediting the significance of the beliefs of the former but not of the latter.
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249. The Mandate adopts a particular theological view of what is acceptable moral complicity in the provision of contraceptives and abortifacients and imposes it through its “accommodation” upon most religionists like FOCUS (except those it favors via the “religious employer” exemption) who must either conform their consciences or suffer penalty. Yet the Mandate chooses other, situationally indistinguishable religionists and arbitrarily chooses not to impose itself or its penalties on them.
250. The Mandate’s narrow “religious employer” exemption, and its refraining from imposing a penalty on third party administrators of self-insured church plan participants among organizations like FOCUS, exempts some religious employers but not others, thereby discriminating among religious organizations and favoring some religions and religious views over others.
251. The Mandate furthers no governmental interest. 252. The Mandate violates FOCUS’s rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution. 253. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 254. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 255. Defendants’ requirement that FOCUS provide insurance coverage that includes education and counseling regarding contraceptives and abortifacients forces FOCUS to speak in
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a manner contrary to its religious beliefs. Likewise, the Mandate censors FOCUS from speaking in a manner consistent with its religious beliefs.
256. FOCUS lives, practices, and teaches that abortion, contraceptives, and abortifacients violate God’s law and that any participation in the unjustified taking of an innocent human life or artificial anti-conception contradicts its religious beliefs and convictions.
257. The Mandate compels FOCUS to facilitate expression and activities that FOCUS lives, practices, and teaches to be inconsistent with its religious beliefs, expression, and practices.
258. The Mandate compels FOCUS to facilitate access to government-dictated education and counseling related to abortion, contraception, and abortifacients.
259. The Mandate also requires FOCUS, as a condition of omitting contraceptives and abortifacients from its own self-insurance plan, to engage in specific speech to its third party administrator that expressly and operatively designates the third party administrator to provide the exact same promises of payments for contraceptives and abortifacients that FOCUS objects to providing or facilitating.
260. Defendants thus violate FOCUS’s right to be free from compelled speech, a right secured to it by the Free Speech Clause of the First Amendment to the United States Constitution.
261. The Mandate also bans FOCUS from speaking on behalf of threatened unborn children to its third party administrator by, among other things, urging its third party administrator not to provide coverage of such objectionable drugs and devices that can destroy early human lives.
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262. The Mandate’s compelled speech and censorship requirements do not advance a compelling governmental interest.
263. Defendants have no narrowly tailored compelling interest to justify this compelled speech or censorship.
264. Defendants thus violate FOCUS’s freedom of speech, and impose censorship on FOCUS’s religiously motivated speech, rights secured to it by the Free Speech Clause of the First Amendment to the United States Constitution.
265. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
FIFTH CLAIM FOR RELIEF Violation of Due Process and Equal Protection As Guaranteed by the
Fifth Amendment to the United States Constitution 266. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 267. The Due Process Clause of the Fifth Amendment requires that government actors treat equally all persons similarly situated. 268. This requirement of equal treatment applies to organizations as well as to individuals. 269. Through the HHS Mandate’s narrow “religious employer” exemption, Defendants have exempted certain religious organizations that object, based on deeply held religious beliefs, to complying with the HHS Mandate, but have refused to exempt others, including FOCUS.
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270. By extending the “religious employer” exemption to certain religious groups, but failing and refusing to extend it to FOCUS, Defendants have treated FOCUS differently than similarly situated groups.
271. The HHS Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
272. Because the HHS 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 FOCUS and others not before this Court.
273. Persons of common intelligence must necessarily guess at the meaning, scope, and application of the HHS Mandate and its exemptions.
274. The HHS Mandate lends itself to discriminatory enforcement by government officials in an arbitrary and capricious manner, and to lawsuits by private persons, based on the Defendants’ vague standard.
275. The HHS 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 Defendants’ definition of a “religious employer.”
276. The HHS Mandate violates Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution.
277. Absent injunctive and declaratory relief against application and enforcement of the HHS Mandate, FOCUS and the individual plaintiffs will suffer irreparable harm.
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SIXTH CLAIM FOR RELIEF Violation of the First Amendment to the United States Constitution
Freedom of Expressive Association 278. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 279. FOCUS, its employees, and the individual plaintiffs associate with FOCUS for an expressive purpose, to live and promote their common religious beliefs, which include the teachings outlined above. 280. The Mandate compels FOCUS and its employees to facilitate expression and activities that are inconsistent with Plaintiffs’ religious beliefs, expression, and practices. 281. Defendants’ actions thus violate Plaintiffs’ right of expressive association protected by the Free Speech Clause of the First Amendment to the United States Constitution. 282. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
SEVENTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act 283. Plaintiffs reallege paragraphs 1 through 208 and incorporate them herein by this reference. 284. Defendants relied upon a flawed study by IOM which, presumably in concert with HHS, was made up of individuals and organizations whose bias was the support of mass distribution, at public taxpayer expense, of abortion, abortion-inducing drugs and devices, and contraceptives. 285. Because Defendants did not give proper notice and an opportunity for public comment, Defendants did not take into account the full implications of the proposed regulations by completing a meaningful consideration of the relevant matters and objections presented.
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286. Defendants did not consider or respond to the hundreds of thousands of comments they received in opposition to the proposed regulations.
287. Defendants issued their proposed regulations on an interim final basis and only then asked for comments thereafter. Yet, it was clear from the regulatory text of Defendants’ interim rules that Defendants had no intention of considering either the comments of religious organizations or the requests by such religious organizations to provide them with exemptions, or to hold off on the effective date of their rules after Defendants received all comments submitted.
288. Thus, Defendants imposed Defendants’ rules without the required “openmindedness” that government agencies must have when notice-and-comment occurs. Defendants also did not have good cause to impose the objectionable rules without prior notice and comment.
289. Moreover, Defendants issued the final Mandate which applies to FOCUS and others on June 28, 2013, and declared it effective August 1, 2013, with a “safe harbor” that imposed the Mandate on FOCUS’s first plan year beginning after December 31, 2013, i.e., July 1, 2014.
290. The ACA provides, and Defendants admit, that any rule issued by Defendants requiring coverage of preventive services under 42 U.S.C. § 300gg-13 (i.e., contraceptives or abortifacients and related counseling and education as required by the Mandate) cannot go into effect until at least a year after the rule is finalized. Thus, under these provisions, the Mandate cannot be effective as to FOCUS until its plan year beginning on July 1, 2015.
291. Thus, the Mandate, by its effective date of August 1, 2013 and its impact on FOCUS on July 1, 2014, violates the ACA and Defendants’ regulations against imposing the
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Mandate within a year after the Mandate was finalized and/or violates the APA’s requirement that government agencies be open-minded to comments before finalizing any rules.
292. 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 as a result of which Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
293. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the Mandate on FOCUS and similar organizations.
294. Defendants’ explanation (and lack thereof) for its decision not to exempt FOCUS and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. And Defendants lack any explanation or rationale for withholding their penalty on third party administrators or self-insured church plans, despite the participation of many entities indistinguishable from FOCUS in those plans.
295. Thus, Defendants’ issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the Mandate failed to consider the full extent of its implications and it did not take into consideration the evidence against it.
296. As set forth above, the Mandate violates RFRA and the First and Fifth Amendments to the U.S Constitution.
297. 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 [abortion] services . . . as part of its essential health benefits for any plan year.” Section 1303(b)(1)(A).
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298. 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.”
299. The Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that “[n]o 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.”
300. The Mandate also violate the ACA itself, 42 U.S.C. § 300gg-13, which give Defendants no authority whatsoever to impose mandates that cause access to contraceptive or abortifacient coverage or payments in a vehicle outside of or separate from FOCUS’s own health plan, or to impose requirements on FOCUS to designate its third party administrator to do so. No other federal statute gives Defendants any such authority.
301. The Mandate is therefore illegal, contrary to existing law, and in violation of the APA under 5 U.S.C. § 706(2)(A).
302. Absent injunctive and declaratory relief against application and enforcement of the Mandate, Plaintiffs will suffer irreparable harm.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs Fellowship of Catholic University Students, Curtis A. Martin, Craig Miller, Brenda Cannella, and Cindy O’Boyle respectfully request the following relief: A. That this Court enter a judgment declaring the Mandate and its application to Plaintiff Fellowship of Catholic University Students and its insurance issuers or third party administrators to be a violation of its rights protected by 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 to the United States Constitution, and the Administrative Procedure Act; B. That this Court enter a preliminary and permanent injunction prohibiting Defendants from continuing to apply the Mandate to Plaintiff Fellowship of Catholic University Students and to its 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 Plaintiff Fellowship of Catholic University Students by requiring it to provide health insurance coverage or access to separate payments for contraceptives, abortifacients, and related counseling through a mechanism using its health plan to its employees; C. That this Court award Plaintiffs their court costs and reasonable attorney's fees, as provided by the Equal Access to Justice Act and Religious Freedom Restoration Act (as provided in 42 U.S.C. § 1988); and D. That this Court grant such other and further relief as the Court may deem just and proper.
JURY DEMAND Plaintiffs demand a jury on all issues so triable.
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Respectfully submitted this 16th day of December, 2013.
ATTORNEYS FOR PLAINTIFFS
s/ Michael J. Norton Michael J. Norton ALLIANCE DEFENDING FREEDOM 7951 E. Maplewood Avenue, Suite 100 Greenwood Village, CO 80111 (O) 720-689-2410 (F) 303-694-0703 mjnorton@alliancedefendingfreedom.org
David A. Cortman ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road NE Suite D-1100 Lawrenceville, GA 30043 Tel.: 770-339-0774 Fax.: 770-339-6744 dcortman@alliancedefendingfreedom.org
Steven H. Aden Gregory S. Baylor Matthew S. Bowman ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 Tel.: 202-393-8690 Fax: 202-347-3622 saden@alliancedefendingfreedom.org gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
Kevin H. Theriot ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
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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 Fellowship of Catholic University Students are true and correct to the best of my knowledge, information and belief. Executed on this 3rd day of December, 2013.
s/ Curtis A. Martin Curtis A. Martin Founder, President and CEO Fellowship of Catholic University Students *I CERTIFY THAT I HAVE SIGNED THE ORIGINAL OF THIS DOCUMENT, WHICH IS AVAILABLE FOR INSPECTION AT ANY TIME BY THE COURT OR A PARTY TO THIS ACTION.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Marcia S. Krieger
Civil Action No. 1:13-cv-03263-MSK-KMT FELLOWSHIP OF CATHOLIC UNIVERSITY STUDENTS, a Colorado non-profit corporation, et al.
Plaintiffs, v. KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al.,
Defendants.
PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs Fellowship o f Catholic Universi ty Students (“FOCUS”), Curtis A. Martin, Craig Miller, Brenda Cannella, and Cindy O’Boyle, by and through their undersigned attorneys, respectfully move the Court, purs uant to F ED.R.CIV.P. 56(a) and D.C.COLO.LCivR 56.1, for partial summary judgment in favor of Plaintiffs and against all Defendants on Plaintiffs’ claim s under the R eligious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq. (2012) (First Claim for Relief), the Free Exercise Clause of the First Amendment to the U.S. Constitution (Second Claim for Relief), the Establishment Clause of the First Am endment to the U.S. Constitution (Third Claim for Relief), the Free Speech Clause of the Firs t Amendment to the U.S. Constitu tion (Fourth Cla im for Relief), the Fr eedom of Expressive Association guarantees of the First Amendment to the U.S. Constitution (Sixth Claim for Relief), and the Due Process and Equal Protection guarantees of the Fifth Amendment to the U.S. Constitution (Fif th Claim for Relief).
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Counsel for Plaintiffs has discussed this m otion and the relief re quested herein with counsel for the Defendants. Defendants are opposed to both.
I. INTRODUCTION In their Verified Complaint (Doc. 10), Plaintiffs seek declaratory and injunctive relief for Defendants’ violations of, inter alia, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”) and the Firs t Amendment to th e United States Constitu tion (Free Exercise Clause, Establishment Clause, and Free Speech Clause) caused by Defendants’ actions in implementing the Patient Protection and Affordable Care Act (Pub. L. 111-148, March 23, 2010, 124 Stat. 1029) and the Health Care and Educ ation Reconciliation Act (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (collectively herein, the “ACA”) in ways that force Plaintiffs to violate their deeply held religious beliefs.
The ACA requires group health plans to cover certain preventive-health services without cost sharing, i.e., without requiring plan partic ipants and beneficiaries to m ake copayments or pay deductibles or coinsurance. See 42 U.S.C. 300gg-13. The preventi ve-services provision is enforceable pursuant to the en forcement mechanisms of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1185d. It is also enforceable through imposition of tax penalties on the em ployer that sponsors the plan. 26 U.S.C. 4980D; see 26 U.S.C. 9815(a)(1), 9834. States m ay enforce the ACA’s insurance pr ovisions, including the preventive-services coverage provision. 42 U.S.C. 300gg-22(a)(1). Al so, if the Secretary of Health and Hum an Services determines that a State “has failed to substantially enforce” one of the ACA’s insurance provisions, the Secretary may conduct such enforcement herself and may impose civil penalties. 42 U.S.C. 300gg-22(a)(1); see 42 U.S.C. 300gg-22(b)(1)(A); 42 U.S.C. 300gg-22(b)(2).
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In June 20 13, HHS i ssued final regulations purporting to accommodate religious employers. These regulations exem pted certain religious employers, but not FOCUS, from the requirement of insurance coverage of contrace ptives and abortifacients in m ost employers’ health care plans, in cluding FOCUS’s health care plan. See 45 C.F.R. § 147.131. In order to be eligible for this so-c alled accommodation, an employer m ust “oppose providing coverage for some or all of any contraceptive services requi red to be covered under [the Mandate] on account of religious objection,” must operate as a non-profit entity, and must hold itself out as a religious organization. Id. at (b). However, in the case of a self-insu red plan such as that m aintained by FOCUS, the Third Party Adm inistrator (“TPA”) must provide the requested covered services without-cost-sharing. Id. at (c). If the TPA decline s to provide such coverage, F OCUS is mandated to locate and contra ct with a TPA wh o will agree to provide such covera ge. 78 Fed. Reg. at 39,880.
There are thus only two ways by which FOCU S may “comply” with the Mandate. F irst, FOCUS could provide the required coverag e. Because FOCUS holds trad itional Catholic religious beliefs about contraception, sterilization, and abortion, FOCUS cannot comply with the Mandate in this manner.
The second way FOCUS could “comply” with the Mandate is by si gning a certification form – EBSA FORM 700 – CE RTIFICATION, attached hereto as Ex hibit A, authorizes and directs FOCUS’s TPA t o provide the required cove rage, and then deliver the form to the th ird party, which would qualify the third party for reim bursement payments from the federal government (along with a ten percent additional payment for margin and costs). This form is part of the government’s purported “accommodation” to religious nonprofits like FOCUS to m ake it seem that the religious nonprofit is not actua lly responsible for the decision to m ake
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objectionable drugs and devices av ailable to its employees and pl an beneficiaries. 78 Fed. Reg. at 39879-80. According to Defendant s’ regulations, the pu rpose of the for m is to “designate” a third party to provide paym ents for contraceptive services, 78 Fed. Reg. at 39879, to ensure that there is a party with “legal authority” to provide those payments, 78 Fed. Reg. at 39880, and to ensure that employees of employers with religious objections receive these objectionable drugs and devices “so long as they remain enrolled in the plan.” 78 Fed. Reg. at 39893; see 45 C.F.R. § 147.131(c)(2)(i)(B); 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2590.715-2713A.
When the form is delivered to a TPA, Defendants’ regulations dictate that the TPA “shall provide” payments for contraceptive serv ices. 26 C.F.R. § 54.9815-2713A(b)(2). The notice section of the for m (see Exhibit A) (a) directs th e TPA to portions of the CFR that say the TPA “shall provide” paym ents for contraceptive serv ices, (b) instructs the TPA that these code sections set forth the T PA’s “obligations,” and (c) purports to m ake the form “an instrum ent under which the plan is operated.”
Defendants’ so-called “accomm odation” to relig ious nonprofits does no t offer relig ious liberty protections to FOCUS. Indeed, if FOCUS follows its religious convictions and declines to participate in Defendants’ sch eme, FOCUS will face, am ong other injuries, enormous fines that could exceed $16,000,000 annually. It also forces the individual plaintiff employees of FOCUS, CURTIS A. MARTIN, CRAIG M ILLER, BRENDA CANNELLA, and CINDY O’BOYLE, each of whom , in the Verified Co mplaint, objected to co verage by FOCUS of these m orally objectionable drugs and devices, to participate in a hea lth insurance plan that caus es them to receive promised payment coverage of m orally and religiously objec tionable abortifacient, contraceptive and sterilization items for themselves and their families. Verified Complaint, ¶ 13.
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FOCUS’s religious beliefs pr eclude it from providing the required certification form. Thus, the issue, which has been decided against Defendants in the Tenth Circuit with respect to for profit entities – see Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), cert. granted, 134 S. Ct. 678 (2013) 1 - is whether Defendants can coerce a co nscientious religious objector like FOCUS to facilitate access to contraceptives and abortion-inducing drugs and devices and related education and counseling in violation of the Plai ntiffs’ sincerely held religious beliefs. 2
Plaintiffs believe that it is sinful and imm oral to provide or facilitate coverage of contraceptives and abortifacien ts in their he alth care plan . The so-called “accommodation” requires that the objectionable contraceptives a nd abortifacients be made available to those covered under FOCUS’s em ployee health insurance plan. FOCUS is required to serve as a conduit for or facilitato r of such coverage. Such a requir ement is a substantial burden under RFRA.
Without the relief requested in this motion for partial summary judgment, FOCUS will be forced to either (a) incur sign ificant government penalties and fi nes for continuing its religious exercise of neither providing these objectionable drugs and devices nor submitting and accepting forms to authorize others to do so, or (b) cease that religious exercise.
1 The Hobby Lobby plaintiffs were for-profit, secu lar corporations. Here, FOCUS is a religious nonprofit corporation which is requ ired, in its health insurance plan year beginning on July 1, 2014, to comply with Defendants’ m andate by m aking arrangements with its TPA to provide contraceptives and abortion-inducing drugs and devices and other se rvices to p lan participants and beneficiaries at no cost. Thus, the rati onale of the Tenth Circuit’s ruling in the Hobby Lobby case involving for profit corpora tions applies with even g reater force to FOCUS, a relig ious nonprofit corporation. 2 Certiorari has also been granted by the U. S. Supreme Court in another religious for profit case, i.e., Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dep’t of Health & Human Servs., 724 F.3d 377 (3d Cir. 2013), cert. granted, 134 S.Ct. 678 (2013).
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As there is no known material fact in dispute in this case, judgment should enter in favor of Plaintiffs on their RFRA claim and their First and Fifth Amendment claims as a matter of law. Plaintiffs are also entitled to a permanent injunction in their favor and to their attorney’s fees and costs.
II. UNDISPUTED FACTS
None of the facts alleged in Plaintiffs’ First Amended Verified Complaint (Doc. 10) (“Verified Complaint”), which Verified Complaint is incorporated herein by this reference, are in dispute.
III. CLAIMS UPON WHICH JUDGMENT IS SOUGHT A. Plaintiffs are entitled to summary judgment on their Fir st Claim for Relief that
the Mandate violates the Religious Freedom Restoration Act (“RFRA”). RFRA provides that the federal “[g]overnm ent shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb-1 (2012). The federal governm ent “may subs tantially burden a person’s exercise of religion only if it de monstrates that application of the burden to the person (1) is in furtherance of a com pelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Id. at 1(b). The Tenth Circuit established the fra mework for analyzing RFRA c laims in Hobby Lobby. The initial inquiry requires the court to (1) “identify the religious belief in th[e] case,” (2) “determine whether th[e] belief is sincere, ” and (3) “turn to the question of whether the government places substantial p ressure on the relig ious believer.” Hobby Lobby, 723 F.3d at 1140. If there is such substantial pressure, the governm ent action wi ll then be held to strict scrutiny. Id. at 1143; see also 42 U.S.C § 2000bb-1. The Hobby Lobby court concluded that the
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Mandate violated RFRA because it substantiall y pressured the Hobby Lobby plaintiffs to v iolate their sincere relig ious beliefs against facili tating access to certa in contraceptive drugs and devices and could not satisfy strict scrutiny. Id. at 1140-44.
Here, Plaintiffs’ religious beliefs are sincere. “Plaintiffs’ religious objection is not only to the use of the objectionable drugs and devices but also being required to actively participate in a scheme to provide such services.” Roman Catholic Archdiocese of New York v. Sebelius, No. 1:12-cv-2542, 2013 W L 6579764, at *14 (E.D.N.Y . Dec. 16, 2013). The accommodation th e government requires is to sign a form that is, “in effect, a perm ission slip.” Southern Nazarene Univ. v. Sebelius, No. 13-cv-1015-F, 2013 WL 6804265, at *8 (W.D. Okla. Dec. 23, 2013).
As another court in the Tenth Circuit explai ned, the government’s claim that Plaintiffs’ objection to signing the form is “legally flawed and misguided because their participation would not actually facilitate access to co ntraceptive coverage” is “sim ply another varia tion of a proposition rejected by the Tenth Circuit in Hobby Lobby.” Reaching Souls Int’l, Inc. v. Sebelius, No. 5:13-cv-1092, 2013 WL 6804259, at *7 (W.D. Okla. Dec. 20, 2013).
Plaintiffs believe that completing the self-certification form is forbidden complicity with the government’s scheme. Accordingly, as one court held, “regardless of the effect on plaintiffs’ third party administrator, the regu lations still re quire plaintiffs to take actions th ey believe are contrary to their religion.” Roman Catholic Archdiocese of N ew York, 2013 WL 6579764, at *7; E. Texas Baptist Univ. v. Sebelius, No. 4:12-cv-3009, 2013 WL 6838893, at *20 (N.D. Tex. Dec. 27, 2013) (“The plain tiffs have demonstrated that the mandate and accommodation will compel them to engage in an affirmative act and that they find this act – their own act – to be religiously offensive. That ac t is c ompleting and providing to their insurer o r TPA the self -certification forms.”).
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The vast majority of courts to consider th is issue have found that threatening nonprofit
religious organizations with subs tantial fines unless they give up their objection to participating
in the Mandate – either by providing objectionable drugs and devices or by signing authorization
forms – imposes a substantial burden on religion and triggers strict scrutiny.3
FOCUS’s Verified Complaint challenges the very same Mandate that wa s challenged in
Hobby Lobby. The facts in this case are virtually identical to those in Hobby Lobby but for the
3 See Roman Catholic Diocese of F ort Worth v. Sebelius, No. 4:12-cv-00314 (N.D. Tex. De c. 31,2 013) (granting relief to th e University of Dallas); Sharpe Holdings, Inc. v. United States Dep’t of Health & Human Servs. , No. 2:12-cv-92 (E.D. Mo. Dec. 30, 2013) (granting relief to religious non-profit parties CNS International Ministries and Heartland Christian College); Reaching Souls Int’l, Inc. v. Sebelius, No. 5:13-cv-1092, 2013 W L 6804259 (W.D. Okla. Dec. 20, 2013); Southern Nazarene Univ. v. Sebelius, No. 5:13-cv-1015, 2013 W L 6804265 (W .D. Okla. Dec. 23, 2013); E. Tex. Baptist Univ. v. Sebelius, No. 4:12-cv-3009, 2013 WL 6838893 (N.D. Tex. Dec. 27, 2013); Grace Sch’ls v. Sebelius, No. 3:12-CV-459 (N.D. Ind. Dec. 27, 2013); Diocese of Fort Wayne-S. Bend, Inc. v. Sebelius, No. 1:12-cv-159 (N.D . Ind. Dec. 27, 2013); Geneva Coll. v. Sebelius, No. 2:12-cv-0027 (W .D. Pa. Dec. 23, 2013); Legatus v. Sebelius, No. 2:12-cv-12061, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013); Roman Catholic Archdiocese of N. Y. v. Sebelius, No. 1:12-cv-2542, 2013 W L 6579764 (E.D.N.Y. Dec. 16, 2013); Persico v. Sebelius, No. 2:13-cv-00303, 2013 W L 6118696 (W.D. Pa. Nov. 21, 2013); Zubik v. Sebelius, No. 2:13-cv-01459, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013); see also Ave Maria Found. v. Sebelius, No. 2:13-cv-15198 (E.D. Mich. Dec. 31, 2013) (granting tem porary restraining order to religious non-p rofits because the regu lations “likely substantially burden” their religious exercise); compare Roman Catholic Archbishop of Wash. v. Sebelius, No. 1:13-cv1441, 2013 WL 6729515 (D.D.C. Dec. 20, 2013) (finding s ubstantial burden with respect to a self-insured non-exempt religious non-profit but concluding that religious non-profits in a church plan lacked standing). But see Michigan Catholic Conference v. Sebelius, No. 1:13-cv-1247, 2013 WL 6838707 (W.D. Mich. Dec. 27, 2013), e mergency motion for injunction filed Dec. 29, 2013, No. 13-2723 (6th Cir.); Catholic Diocese of Nashville v. Sebelius, No. 3:13-cv-1303, 2013 WL 6834375 (M.D. Tenn. Dec. 26, 2013), em ergency motion for injunction filed Dec. 27, 2013, No. 13-6640 (6th Cir.); Univ. of Notre Dame v. Sebelius, No. 3:13-cv-01276, 2013 WL 6804773 (N.D. Ind. Dec. 20. 2013), em ergency motion for injunction failed Dec. 27, 2013, No. 13-6640 (6th Cir.); Univ. of Notre Dame v. Sebelius, No. 3:13-cv-01276, 2013 WL 6804773 (N.D. Ind. Dec. 20, 2013), em ergency motion for injunction denied and expedited briefing schedule set, Doc. 11, No. 13-3853 (7th Cir. Dec. 30, 2013); Priests for Life v. U.S Dep’t of Health & Human Servs., No. 1:13-cv-1261, 2013 WL 6672400 (D.D.C. Dec. 19, 2013), em ergency motion for injunction filed Dec. 20, 2013, No. 13-5368 (D.C. Cir.); Gilardi v. U.S. Dep’t of Health & Human Servs., 733 F.3d 1208 (D.C. Cir. 2013) (sam e); Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) (same); but see Conestoga Wood Specia lties Corp. v. Sebelius , 724 F.3d 377 (3d Cir. 2013), cert. granted 134 S. Ct. 678 (2013); Autocam Corp. v. Sebelius , 730 F.3d 618 (6th Cir. 2013).
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fact that FO CUS is a non-exem pt religious nonprofit organization, whereas the Hobby Lobby plaintiffs were for profit corporations.
FOCUS presents a clear and straight forward RFRA claim and, as a result, has an overwhelming likelihood of prevailing on this claim. There is no legal or factual basis for a different ruling in this case than that rendered in Hobby Lobby. The Court should enter summary judgment in favor of Plaintiffs and against all Defendants on Plaintiffs’ RFRA claim for relief.
1. The Mandate substantially burdens Plaintiffs’ religious exercise. The government does not dispute the existence, religiosity, or sincerity of Plaintiffs’ religious beliefs. Accordingly, RFRA’s substantial burden test involves a straightforward, two– part inquiry: a court must (1) identify the religious exercise at issue, and (2) determine whether the government has placed substantial pressure, i.e., a substantial burden, on the plaintiff to abstain from that religious exercise. Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006) (“prima facie case under RFRA” exists where a law “(1) substantially burden[s] (2) a sincere (3) religious exercise”). A law substantially burdens the exercise of religion when it compels persons “to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). A substantial burden also exists where a law places “substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981); see also Hobby Lobby, 723 F.3d at 1138. For purposes of this Court’s analysis, what matters is whether the Government is coercing entities to take action that violates their sincere religious beliefs. Hobby Lobby, 723 F.3d at 1137 (“Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.”).
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In Hobby Lobby, the Tenth Circuit held that “this dilemma created by the statute” met the “threshold showing regarding a substantial burden.” 723 F.3d at 1138, 1141 (governm ent action substantially burdens a religious belief when it “requires participation in an activity prohibited by a sincerely held religious belief,” “prevents pa rticipation in conduct motivated by a sincerely held religious belief,” o r “places su bstantial pressure on an adheren t . . . to eng age in conduct contrary to a sincerely held religious belief”) (internal citation and quotation marks omitted).
Fining people who refuse to violate their fa ith is a prototypical substantial burden. Sherbert v. Verner, 374 U.S. 398, 404 (1963) (deprivation of une mployment benefits puts “unmistakable pressure upon [applicant] to forgo [h er religious] practice” resulting in “the sam e kind of burden upon the free exercise of religion” as a “fine im posed against appellant for her Saturday worship.”); see also Wisconsin v. Yoder, 406 U.S. 205, 208, 218 (1972) (fine of five dollars for believers’ refusal to violate th eir faith “not only severe, but inescapable”); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010) (subs tantial burden exists where government imposes “substantial pressure on an adherent either not to engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary to a sincerely held religious belief, such as where the government presents the plaintiff with a Hobson’s choice – an illusory choice where the only realistically possible course of action tr enches on an adheren t’s sincerely held religious belief.”). See also Hobby Lobby , 723 F.3d at 1141 (being forced to “compromise their religious beliefs” and pay subs tantial fines “is precisely the sort of Hobson’s choice” that “establishe[s] a substantial burden as a matter of law.”).
The Mandate expressly requires F OCUS to designate its TPA as an ERISA “plan administrator and claim s administrator solely for the purpose of providing paym ents for contraceptive services [and abortif acients] for participants and beneficiaries.” 78 Fed. Reg. at
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39,879. FOCUS is required to create these obligations in its third party plan administrator by
including the recitation of these obligations in FOCUS’s certification form. Id. at 39,894-95. The
coverage that the TPA provides under those obligations will be part of FOCUS’s own plan. Id. at
39,879; see also Roman Catholic Archbis hop of Washington v. Sebelius, 2013 WL 6729515, at
*22 (D.D.C. Dec. 20, 2013) (quoting the government’s own concession that “[i]n the self-insured
case, technically, the contraceptive coverage is part of the plan”). The TPA is then rem inded that
it may cease to contract with FOCU S entirely because of these new obligations; however, if the
TPA objects to providing paym ents for contraceptive services and abortifacients for participants
and beneficiaries, FOCUS is obligated to find a new TPA who will comply with the Mandate. 78
Fed. Reg. at 39,880.
Thus, pursuant to the M andate, FOCUS, as a pa rt of its self-insurance plan, will, on a nd
after July 1, 2014, be required to in struct its TPA to provide preven tive care and screening to its
employees and plan b eneficiaries, including the coverage of all FDA-approved con traceptives, abortifacients, and related education and counseling, without cost-sharing. 45 C.F.R. § 147.130.4
Should FOCUS refuse to comply with the Mandate, it would be subject to potential fines
of $100 per day per affected beneficiar y, i.e., as much as $16 m illion annually. See 26 U.S.C. §
4 Notably, in related cases the govern ment has argued that no substantial burden exists because the self-insured entity must m erely recite its religious objection which it is alr eady glad to declare publicly. This is f alse as a matter of fact: FOCUS m ust also recite and create the “obligations” of its third party plan administrator. The government’s own form therefore proves that FOCUS must do more than ci te a religious objection, it m ust also specifically create thirdparty obligations, Moreover, even the portion of the f orm that exp resses FOCUS’s re ligious objections is not a “m ere” expression of objections , because the form only exists in order to trigger the objectionable coverage in FOCUS’s own plan. As th e district court stated in Persico, 2013 WL 61186906, at *25, the religious objection portion of the form is analogous to “a neighbor who asks to bo rrow a knife to cut som ething on the barbecue g rill, 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 kn ife” that renders the second expression objectionable despite being facially similar to the first
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4980D(b). If FOCUS, i n the altern ative, elects to cease p roviding employee health insurance altogether, it will be subject to an annual fine of $2,000 per fu ll time employee after the first thirty employees, i.e., approximately $840,000. See 26 U.S.C. §§ 4980H(a), (c)(1).
Such fines clearly constitute pressure that amounts to a substantial burden under RFRA— far surpassing, for example, the $5 fine that was a “substantial burden” in Yoder. In the face of such similar substantial pressure, the Tenth Circuit concluded in Hobby Lobby that a secular forprofit business organization which challenged the Mandate was likely to succeed on the merits of its RFRA claim and that the Man date imposed a substantial burden on religious exercise by “demand[ing],” on pain of onerous penalties, “that [the Hobby Lobby Plaintiffs] enable access to contraceptives that [they] deem morally problematic.” See also Korte v. Sebelius , Nos. 12-3841, 13-1077, 2013 W L 5960692, at *23 (7th Cir. Nov. 8, 2013); Gilardi v. Sebelius No. 13-6059, 2013 WL 5854246, at *8 (D.C. Cir. Nov. 1, 2013); Southern Nazarene, 2013 WL 6804265, at *9 (“The government has put these institutions to a choice of either acquiescing in a governm entenforced betrayal of s incerely held religious beliefs, or incurri ng potentially ruinous financial penalties, or electing other equa lly ruinous courses of action. Th at is the burden, and it is substantial.”).
The pressure on FOCUS is at least equal. Under RFRA, such a substantial burden on Plaintiffs’ religious exercise triggers strict scrutiny, the “most demanding test known to constitutional law,” City of Boerne v Flores, 521 U.S. 507, 534 (1997), which the Mandate cannot possibly survive.
In related cases, these Defendants have “concede[d] that, under the holding of Hobby Lobby, the federal government cannot satisfy the compelling interest test.” Reaching Souls Int’l, 2013 WL 6804259, at *6. That party admission similarly controls this case.
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2. The Mandate cannot survive strict scrutiny a. The Mandate does not further a compelling government interest.
Because the Mandate substantially burdens Plaintiffs’ religious exercise, the government must justify the Mandate under strict scrutiny. 42 U.S.C. § 2000bb-1(b). It cannot do so here.
Under RFRA, the government must that applying the Mandate to these P laintiffs furthers a compelling interest. O Centro, 546 U.S. at 430-31 (the governm ent must “demonstrate that the compelling interest test is satisfied through appli cation of the challenged law [to] the particular claimant whose sincere exercise of religion is being substantially burdened.”). To be compelling, the interest cannot be “broadly form ulated” or “sweeping,” but must be shown to apply particularly to the Plaintiffs. Id. at 431 (citing Wisconsin v. Yoder , 406 U.S. at 236). See also Hobby Lobby, 723 F.3d at 1143 (The government’s interests in public health and gender equality are “insufficient under O Centro because they are broadly for mulated interests justifying th e general applicability of govern ment mandates.”) (internal citations omitted). Rather, the government must show with “particularity how [e ven] admittedly strong interest[s]” “would be adversely affected by granting an exem ption.” Yoder, 406 U.S. at 236; O Centro, 546 U.S. at 431. The governm ent must “specifically identify an ‘actual problem ’ in need of solving” and demonstrate that coercing conscientious objectors to provide contraceptives and abortifacients in violation of their religious beliefs is “actually necessary to the solution.” Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011) (internal citations omitted). The governm ent cannot meet this burden.
In Hobby Lobby, the T enth Circuit considered the government’s asserted interests in promoting “public health” and “gender equality” and concluded that those interests failed to satisfy strict scrutiny. Hobby Lobby, 723 F.3d at 1143. First, the Court noted that these asserted
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government interests were too “broadly form ulated” to justify denying “s pecific exemptions to particular religious claim ants.” Id. (quoting Gonzales v. O Cento Espirita Beneficente do Vegetal, 546 U.S. 418, 431 (2006)). Second, the Court held that th ese interests “cannot b e compelling because the contraceptiv e-coverage requirement presently does not apply to tens of millions of people,” including p ersons working for exempt religio us non-profits, “private employers with grandf athered plans,” and “em ployers with fewer than fifty e mployees.” Id. A further factor militating against the com pelling nature of the Man date is the safe-harbor provision crafted for religious non profits such as FOCUS. “[A] law cannot be regarded as protecting an interest of the highest order when it leaves appreciable dam age to that supposedly vital interest unprohibited.” Id. (citing Church of the Lukumi Babalu Aye v. City of Hialeah , 508 U.S. 520, 547(1993)).
As the Tenth Circuit found in Hobby Lobby, “the interest here cannot be com pelling because the contraceptive-coverage requirement presently does not apply to tens of m illions of people.” 723 F.3d at 1143. In O Centro “the Supreme Court found that the government failed to make a showing that a ban on the use of a hallu cinogenic substance” used by a Native Am erican tribe for religious purpo ses was justified by a co mpelling state interest because the government granted “hundreds of thousands” of exem ptions to m embers of the Native Am erican Church. Geneva Coll. v. S ebelius, No. 12-00207, 2013 WL 3071481, at *10 (W.D. Pa. June 18, 2013) (citing O Centro, 546 U.S. at 433- 34). “[S]uch broad exemptions weighed heavily against the finding of a compelling government interest.” Id.
The Mandate does not satisfy a com pelling government interest; therefore the Mandate fails strict scrutiny as a matter of law.
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b. The Mandate is not the least restrictive means of furthering the government’s allegedly compelling interests.
Under RFRA, the government must also show that the regulation is narrowly tailored and “is the least restrictive means of furthering [a] com pelling governmental interest.” United States v. Playboy Ent’mt. Grp., Inc., 529 U.S. 803, 813 (2000) (if a less restrictive alternative would serve the government’s purpose, “the legislature must use that alternative.” (emphasis added)); 42 U.S. § 2000bb-1(b). Under that te st, “[a] statute or regulation is the least restrictive m eans if no alternative forms of regulation would [accomplish the compelling interest] without infringing [upon religious exercise] rights.” Kaemmerling v. Lappin , 553 F.3d 669, 684 (D.C. Cir. 2008) (internal citations omitted). The government cannot meet its burden “unless it dem onstrates that it has actually cons idered and rejected the efficacy of less restrictive measures before adopting the challenged practice.” Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005); see also Fisher v. Univ .of Tex. at Austin , 133 S. Ct. 2411, 2420 (2013) (sta ting that strict scrutiny requires a “serious, good faith co nsideration of workable . . . alternatives” to a chieve the government’s goal) (internal quotation m arks and citation omitted). The govern ment must specifically “identify an ‘actual problem’ in need of solving” and that curtailing religious liberty is “actually necessary to the solution.” Brown, 131 S. Ct. at 2739 (citations omitted).
The government has numerous alternatives available to it w hich are less restrictive than the Mandate and would not im properly violate Plaintiffs’ religious liberty rights. The government could: (i) expand federal Medicare, Me dicaid or other federal program s to provide these drugs and devices at federa l taxpayer expense; (ii) authoriz e tax credits to employees who elect to buy these drugs and device s with their own funds; (iii) di rectly fund and distribute these drugs and devices in a new fe deral program or fund and distribute these drugs and devices through state health insurance exchanges or federa lly facilitated exchanges; or (iv) enable and
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subsidize manufacturers or other distributors of these drugs a nd devices to distribute these objectionable drugs and devices to those who wish to obtain them, all at federal expense. Indeed, the government has “many ways to promote public health and gender equality, almost all of them less burdensome on religious liberty.” Korte v. Sebelius, 735 F.3d 654, 686 (7th Cir. 2013). See also, e.g., Newland v. Sebelius, 881 F. Supp. 2d 1287, 1299 (D. Colo. 2012) (noting program s like Title X and the governm ent’s lack of proof that providing contraceptives would “entail logistical and adm inistrative obstacles defeating the ultim ate purpose of providing no-cost preventive health care coverage to women”), aff’d no. 12-1380, 2013 WL 5481997 (10th Cir. Oct. 3, 2013).
Each of the foregoing alternatives, and no doubt many more that can be thought of, are less restrictive than is the Mandate. Im portantly, the government already pays for or subsidizes contraceptives and Plan B drugs distributed th rough various government funded family planning programs such as Title X and Title XIX-Medicaid, thereby demonstrating that this is already a feasible alternative in lieu of burdening Plaintiffs’ religious exer cise rights. These alternatives would not require Plaintiffs to fa cilitate coverage for contraceptives and abortifacients in violation of their religious be liefs, and would effectively fu rther the governm ent’s asserted compelling interests.
The Mandate violates RFRA both because it does not further a compelling government interest and because th ere are le ss restrictive altern atives available to the govern ment. Thus, Plaintiffs are entitled to judgm ent as a m atter of law, and summary judgm ent is proper on Plaintiffs’ RFRA claim.
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B. Plaintiffs are entitled to summa ry judgment on their S econd Claim for Re lief that the Mandate violates the First Amendment’s Free Exercise Clause.
Defendants’ Mandate, as applied to FOCUS, improperly burdens its religious exercise, because it forces FOCUS to vio late its religious beliefs. “At a m inimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohib its conduct b ecause it is undertak en for relig ious reasons.” Lukumi, 508 U.S. at 532. As is discussed in m ore detail above, the Mandate is neither neutral nor generally applicable, and the refore is subject to strict scrutiny. Id. at 546. As previously discussed, the Mandate cannot satisfy strict scrutiny and therefore must fail.
1. The Mandate is not generally applicable. The Mandate is neither neutral nor generall y applicable, as it discriminates among religious objectors, penalizes th e Plaintiffs for their religious conduct, and allow s extensive exemptions from its provisions. The Mandate is therefore in violation of the F ree Exercise Clause of the First Amendment. When a regulation “creates a categorical ex emption for individuals with a secular objection but not for individuals with a relig ious objection,” the regulation fails general applicability. Fraternal Order of Police v. City of Newark, 170 F.3d 359, 365 (3d Cir. 1999); see also Blackhawk v. Pennsylvania, 381 F.3d 202, 211 (3d Cir. 2004). A law is not generally applicable if it “burdens a cat egory of religiously m otivated conduct but exem pts or does not reach a substantial category of conduct that is not religiously motivated.” Blackhawk, 381 F.3d at 209. For exam ple, in Lukumi, the city ordinances against an imal slaughter, which prohibited a church from engaging in anim al sacrifice, protected public health and prevented anim al cruelty. 508 U.S. at 543. Howe ver, because hunting, pest c ontrol, and euthanasia were exempted, the ordinances were not generally applicable. Id. at 543-44.
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The Mandate is not generally applicable becau se the government has chosen to exempt a vast amount of Americans from the requirements of the Mandate. The governm ent has allowed numerous employers and plans to avoid the Mandate, including exemptions for small businesses, grandfathered health plans, cer tain non-profit religious employe rs, as well as a safe-harbor provision for other non-profit entities which object to the requirements of the Mandate.
A law that provides exem ptions for secular reasons, such as the Mandate, m ust contain exemptions for religious reasons. The Third Circuit used strict scrutiny to invalidate a law which prohibited beards worn by police officers—the la w contained an exemption for medical reasons, but no such exemption for religious reasons. Fraternal Order of Police, 170 F.3d 359. The Court “conclude[d] that the D epartment’s decision to provide medical exemptions [was] suffi ciently suggestive of discriminatory intent” so as to trigger strict scrutiny. Id. at 365. Similarly, the Third Circuit invalidated a law prohibiting possessi on of wild anim als without a perm it which contained myriad exemptions, but none for religious reasons. Blackhawk, 381 F.3d 202. There, the court found that the challenge d provisions of the law were s ubstantially underinclusive with respect to its asserted goals, and the governm ent “thus fail[ed] the re quirement of general applicability.” Id. at 211.
2. The Mandate is not neutral. The Mandate is not neutral b ecause it distinguishes among religious objectors (namely, forprofit or not-for-profit), as well as between secular and religious obj ectors, resulting in differential treatment among relig ions. A neutral law “does not target religiously motivated conduct either on its face or as applied in practice.” Id. at 209; see also Fowler v. Rhode Island, 345 U.S. 67, 69 (1953) (hol ding that the city violated the F ree Exercise Clause by enforcing an ordinance banning meetings in a park against Jehovah’s Witnesses but exempting other religious
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groups). Furtherm ore, the “governm ent cannot discriminate between religiously motivated conduct and comparable secularly motivated conduct in a manner that devalues religious reasons for acting.” Tenafly Eruv Ass’n v. Borough of Tenafly , 309 F.3d 144, 169 (3rd Cir. 2002). “The Free Exercise Clause’s m andate of neutrality toward religion prohibits governm ent from deciding that secular motivations are more important than religious motivations.” Id. at 165. Here, the government has provided several secula r motivations for exemptions, but has crafted only limited religious exem ptions to the Mandate’s requirements, despite the f act that there is widespread religious belief in opposition to th e requirements of the M andate. This is impermissible under the Free Exercise Clause’s mandate of neutrality toward religion.
Furthermore, the Mandate constitutes an im permissible “religious gerrymander.” If “the effect of [the] law” is to accom plish a “relig ious gerrymander,” it is not neutral. Lukumi, 508 U.S. at 535. In Lukumi, the Court found that a “p attern of exe mptions,” id. at 537, was impermissibly used to narrow the law’s prohibitions specifically “to target petitioners and their religious practices.” Id. at 535. A sim ilar pattern is m anifest here. Defendants have repeatedly recognized the sincerity of re ligious organizations’ objecti ons to facilitating access to contraceptive drugs and devices. See, e.g., January 20, 2012 Statem ent of Defendant Secretary Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last accessed Dec. 9, 2013 ) (recognizing the “im portant concerns some have raised abou t religious liberty” and the need to “respect[ ] religious freedom”); see also Hobby Lobby, 723 F.3d at 1140 (noting government did not dispute religious sincerity of objections). Nevertheless, the “religious employer” exemption protects only instituti onal churches, their integrated auxiliaries, “conventions or associations of churches,” and “the exclusively religious activities of any religious order.” See 78 Fed. Reg. at 39,871. Yet , other religious organizations, such as FOCUS,
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are excluded from the exem ption, though they shar e the sam e religious objections of exem pt

entities.

This facial evidence of targeting is bolstered in that the governm

ent’s proffered

justification for discriminating lacks legitimacy. HHS claims that objecting “[h]ouses of worship

and their integrated auxiliaries . . . are more likely than other employers to employ people of the

same faith who share the sam e objection, and w ho would therefore be less likely than other

people to use contracep tive services even if such serv ices were covered under their plan. ” 78

Fed. Reg. at 39874. The sam e can be said for F OCUS. The primary purpose of FOCUS is to

“[i]nvit[e] college stud ents into a gr owing relationship with Jesus Christ and His Church [and

i]nspiring and equipping them for a lifetime of Christ-centered evangelization, discipleship, and

friendship in which they lead others to do the sam e.” Verified Complaint, ¶ 31. The

inconsistency in HHS’s trea tment of similarly situated employers underscores the Mandate’s

targeting effect. See Mayfield v. Tex. Dep’t o f Criminal Ju stice, 529 F .3d 599, 609 (5th Cir.

2008) (neutrality requires that gov ernment policy be “actually ba sed on the justif ications it

purports, and not something more nefarious”).

Finally, the Mandate is also not neutral be cause it honors certain secular reasons for

failure to c omply, while rejec ting FOCUS’ religious rea sons. The net ef fect is that polic ies

covering tens of millions of Americans are ex empt for secular r easons, while FOCUS will b e

forced to pay steep fines for its religious objection. See Hartmann v. Stone, 68 F.3d 973, 978 (6th

Cir. 1995) (it is “clear that ‘neutral’ also means that there must be neutrality between religion and

non-religion.”).

The Mandate is neither a neutra l nor generally applicable law, and therefore must satisfy

strict scrutiny. The government cannot do so.

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3. The Mandate cannot survive strict scrutiny. Once it has been dete rmined that a law is eith er not neutral or not generally applicable, strict scrutiny applies to any burden placed on religious exercise. Actions not neutral or not generally applicable must undergo “the m ost rigorous of scrutiny” and “must advance interests of the highest order and m ust be narrowly tailored in pursuit of those interests.” Lukumi, 508 U.S. at 546. Further, there is “no substantial bur den requirement when government discriminates against religious conduct.” Tenafly, 309 F.3d at 170 (citing Lukumi, 508 U.S. at 531-47). “Evaluating the extent of a burden on religious pr actice is . . . im permissible . . . because it entails a forbidden inquiry into religious doctrine.” Id. at 170. The inquiry under the Free Exerci se Clause is essentially th e same as the inquiry under RFRA set forth above, requiring laws which burd en religion be narrowly tailored to serve a compelling government interest. Lukumi, 508 U.S. at 546. In Tenafly, the T hird Circuit considered a challeng e to a city ordinance which prohibited hanging anything on utility poles, where the city would not permit Orthodox Jewish residents to construct an eruv5 on utility poles, but permitted permanent house numbers and tem porary signs to be posted on th e poles. In finding no com pelling interest, the Court stated that bec ause the city “ha[d] tolerated [other permanent postings on utility poles], it hardly ha[d] a compelling interest in refusing to allow the inconspicuous [eruv] on the ground that [it was] perm anent.” Id. at 172. Similarly, because the government has permitted a myriad of exemptions from the Mandate, it has no grou nd to claim that imposing a burden on the religious beliefs of Plaintiffs furthers a com pelling interest in public health or gender equality.
5 A religious object of significance to Orthodox Jews. 21

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Because of the wides pread exemptions to the requirem ent that em ployers provide

contraception coverage and rela ted education and counseling wit hout cost-sharing through their

health plan, the Manda te is not n arrowly tailored to serv e a compelling interest. The Mandate

must therefore fail strict scrutiny, and judgment as a matter of law is warranted. Defendants have

violated Plaintiffs’ guarantee to the free exercise of religion of the First Amendment. Summary

judgment is therefore proper.

C. Plaintiffs are entitled to summary judgment on their Third Claim for Relief that the Mandate violates the First Amendment’s Establishment Clause.

The Mandate also violates the Establishm ent Clause of the First Am endment. The

“religious employer” exemption sets forth the Governments notion of what is “religious enough”

to qualify for an exem ption from the Mandate. T he government cannot, under the Constitution,

create a cas te system of different religious organizations, belief-levels, and “accommodations”

when it imposes a burden. Instead, “when we

are presented with a [law] granting a

denominational preference, our prec edents demand that we treat th e law as suspec t and that we

apply strict scrutiny in ad judging its constitutionality. Larson v. Valente, 456 U.S. 228, 246

(1982). Furthermore, the Government “must treat individual religions and religious institutions

‘without discrimination or preference.’” Colorado Christian Univ. v. Weaver , 534 F.3d 1245,

1257 (10th Cir. 2008). While the g overnment may want the analysis to end where no specific

reference is m ade to denom ination in the statut e, apparent facial neutrality cannot overcom e

making “deliberate distinctions between different religious organizations.” Valente, 456 U.S. at

246 n.23.

The government used its unfettered discretion to pick and choose what criteria qualif y a

group as sufficiently “religious” for an exem ption, and it imposed its constricted theological

view on all Am ericans. The gove rnment then went on to crea te an “accommodation” for yet

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another level of religious organizations, such as Plaintiffs. The governm ent crafted these regulations on their own theolo gical judgment, determining that the sham “accommodation” would somehow quell the religious objections to the Mandate. These actions involve “intrusive judgments regarding contested questions of religious belief or practice” in violation of the First Amendment. Weaver, 534 F.3d at 1261.
In Weaver the Tenth Circuit held unconstitutional a discrim ination - am ong religions policy - that is very sim ilar to the Mandate. Th e discrimination among religions in that case was treating “pervasively sectarian” education institutions differently than other religious institutions. Id. at 1250–51. The Mandate here likewise draws its line around “religious employers” based on whether they are churches, or whether they are religious nonprofits, or whether they are nonprofits deserving of a non-enforcem ent safe-harbor, or whether they are just religious families in business. The Tenth Circuit reject ed as “ puzzling and wholly a rtificial” the government’s argument that their law “distinguishes not between types of religions, but between types of institutions.” Id. at 1259–60. The Court held that “ani mus” towards religion is not required to find a First Am endment violation in the presence of such fa cial discrimination. Id. at 1260.
Under Weaver, discrimination because of different types of religious practice violates the Constitution. Id. at 1256, 1259. The Mandate picks and chooses between different kinds of religious people and practices, so as to respect som e and coerce others. The governm ent is explicitly deciding th at facilitating coverage of contraceptive drugs and devices does not substantially burden the tenets of Plaintiffs’ religi on. This is precisely the type of non-neutrality and entangling that the Establishment Clause pr ohibits. Plaintiffs are therefore entitled to summary judgment on their Establishment Clause claim.
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D. Plaintiffs are entitled to summar y judgment on their F ourth Claim for Relie f that the Mandate violates the First Amendment’s Free Speech Clause.

The Mandate also violates the Firs t Amendment by coercin g FOCUS (as well as the

individual Plaintiffs) to engage in speech that is contrary to its religio us beliefs. The “righ t to

speak and the right to refrain from speaking are complementary components of the broader

concept of ‘individual freedom of m ind.’” 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) (in ternal quotation marks omitted). Thus,

“[l]aws that compel speakers to utter or distribute speech bearing a particular message are subject

to the sam e rigorous scrutiny” as those “that suppress, disa dvantage, or im pose 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 poi nt of view different

from the majority and to refuse to foster, in the way [the governm ent] commands, an idea they

find morally objectionable.” Wooley, 430 U.S. at 715.

Here, the Mandate unconstituti onally coerces Plaintiffs to speak a m essage they find

morally objectionable.

First, the M andate explicitly require s FOCUS, as a self -insured entity, not m erely to

express its r eligious objection bu t also to exp licitly declare that “[ t]he obligation of the third

party administrator [to provide contraceptive services] are set forth in 26 CFR 54.9815-2713A,

29 CFR 2510.3-16, and 29 CFR 2590.715-2713A. This cer tification is an instrum ent under

which the plan is op erated.” See attached Exhibit A,

available at:

http://www.dol.gov/ebsa/pdf/preventiveserviceseligibleorganizationcertificatoinform.pdf; 78 Fed.

Reg. 39,870, 39,894-95 (July2, 2013). The governm ent explained that by m eans of this speech,

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FOCUS creates legal obligations in its plan ad ministrator to provid e the precise coverage that FOCUS objects to arranging and contra cting for, within its own plan. Id. at 39,879-80. The government also explained that those legal obligations occur onl y if F OCUS itself speaks this message – it is necessarily FOCUS’s own speech, or else it is not operative. Id. By this coerced speech, FOCUS would arrange and contract for its plan administrator to provid e the exact coverage that the governm ent falsely declares FOCUS does not arrange and contract for. This designation requirement is coerced speech in its purest form, and it is speech that FOCUS objects to speaking.6 It is a straightforward violation of the First Amendment.
Second, the Mandate not only coerces FOCUS’s speech, but it censors FOCUS’s speech. After forcing FOCUS to speak word s that contract and arra nge for objectionable “obligations” on its plan administrator, the Mandate goes on to prohibit FOCUS from speaking a contrary message to its plan adm inistrator: “The eligible organization m ust not, directly or indirectly, seek to inte rfere with a TPA’s arrangem ents to provide or arrange separate paym ents for contraceptive services for partic ipants or beneficiaries, and must not, directly or indirectly, seek to influence the TP A’s decision to m ake any such arrangem ents.” 78 Fed. Reg. at 39,895. This is a g ag rule, p rohibiting a C atholic organization from speaking its Catho lic beliefs. It strikes at the heart of the freedom of speech rights enshrined in our First Amendment. It restricts FOCUS’s speech based on its content; the con tent of speech that would try to “interfere” or “influence” someone against provi ding a service (abortif acient, contraceptive, and sterilization
6 In other self-insured cases, the government has described th e required form as m erely an expression of religious objection. As noted above, that description is false. The for m also requires FOCUS to recite the above-quoted desi gnation of “obligations ” language, and that speech contains specific content and legal import well beyond a religious objection. If FOCUS does not recite this “obligation” language, the government will impose its full range of penalties. As discussed above, FOCUS also objects to the tr iggering context of its forced expression of objection on the form.
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coverage and related education) to which FOCUS objects. It is therefore a co ntent-based restriction on speech that is presumptively unconstitutional. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (noting that the “principal inquiry in determining content neutrality . . . is whether the govern ment has a dopted a regul ation of speech because of [agreem ent or] disagreement with the message it conveys”); Ysura v. Pocatello Educ. Ass’n, 555 U.S. 353, 358 (2009), quoting Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 188 (2007); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
The government cannot meet its burden to sati sfy strict scrutiny either for its com pelled speech or its censorship of speech. As discussed above, the government has conceded in similar cases it fails the compelling interest test. See Reaching Souls Int’l, 2013 WL 680425, at *6. The government has not sho wn any compelling intere st to justify burdening FOCUS’s speech. And violating FOCUS’s freed of speech is not th e least restrictive means of pursuing any compelling interest there may be. See also Riley v. Nat’l F ed’n of the Blind of N.C., 487 U.S. 781, 799-801 (1988) (requiring government efforts in the alternative).
E. Plaintiffs are entitled to summary judgment on their Fifth Claim fo r Relief that the Mandate violates the Fifth A mendment guarantee of due process and equal protection. 1. The ACA violates Due Process.
The ACA violates the Plai ntiffs’ rights under the Due Process Clause of the Fifth Amendment because it creates a s tandardless blank check for Defendants to d iscriminatorily enforce the “religious” exem ption. Section 27 13 of the ACA gives HHS the authority to determine which groups are sufficiently “religious” to qualify for an exem ption, and which groups are not. This sort of unbridled discretion is forbidden by the Due Process Clause.
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A law that is so “standa rdless that it author izes or encourages seriously discrim inatory 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 th at it “f ails to pr ovide a person of ordinary intel ligence fair notice of what is prohibited,” it fails to provide constitutional due process. Williams, 553 U.S. at 304. The ACA provision underlying the Mandate authorizes Defendants to exempt religious e mployers, directing the agencies to determine the scope of the exemption. Public Health Service Act § 2713 (codified at 42 U.S.C. § 300gg-13); see also 76 Fed. Reg. at 46623. This statutory authority is unfettered, as HHS is tasked with determining the en tire scope of the religiou s exemption, without any statutory guidance, and has the aut hority to determ ine the “level of religiosity” required to satisfy an exemption.
Furthermore, there is absolutely no limit on HHS deciding whether or not contraception, abortifacients, related educatio n and counseling, and other servi ces are preventiv e in the first place—the statute itself does not d efine 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 accomm odation such objectors could receive, despite the fact that such an exemption implicates constitutional rights.
Section 2713 is therefore a quintessential la w so “standa rdless that it au thorizes or encourages seriously discriminatory enforcement.” Williams, 553 U.S. at 304. The statute practically invites discrim inatory and unconsti tutional enforcement—which is exactly wha t Defendants have done in this case. Plaintiffs are therefore entitled to summary judgment on their Due Process Clause claim.
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2. The Mandate is a violation of the guarantee to Equal Protection. Equal protection, applied to the federal govern ment by virtue of the Fi fth Amendment, requires that government actors such as Defendant s treat equally all pers ons similarly situated. See Cleburne v. Cleburne Living C tr., Inc., 473 U.S. 432, 429 (1985). The Mandate’s narrow “religious employer” exem ption exempts certain religious organizations that object, based on their sincerely held relig ious beliefs, to providi ng contraceptive coverage, but refuses to exem pt other religious objectors such as FOCUS. This results in imperm issible differential treatment under similarly situated groups. Th e Mandate must therefore fail as a violation of the Equal Protection Clause. The Government “must treat individual religi ons and religious inst itutions ‘without discrimination or preference.’” Weaver, 534 F.3d at 1257. The narrow religious em ployer exemption applies on ly to institu tional churches, their integrated auxiliaries, “conventions or associations of churches,” and “the exclusively religious activities of any religious order.” See 78 Fed. Reg. at 39,871. FOCUS, while not m eeting the formal requirements for the exemption, is a religious institution, and objects, on the basis o f strongly held religiou s beliefs, to facilitating access to contraception and related educatio n and counseling. The only difference between FOCUS and the groups exempted is a simple distinction in the tax code, but the religious beliefs remain consistent among similar exempt organizations. The Mandate discriminates among religious groups, subjecting similarly situated groups to differential treatment based on a funda mental right and is therefore subj ect to strict scrutiny. Ball v. Massanari, 254 F.3d 817, 823 (9th Cir. 2001). “[S]tatutes involving discrimination on the basis of religion, including interdenom inal discrimination, are subject to heightened scrutiny…” Weaver, 534 F.3d at 1266. As previously discusse d, Defendants cannot m eet this burden.
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Defendants cannot es tablish a com pelling interest in health and gender equality because the massive exemptions to the Mandate undermine any purported interest on part of the government. The Mandate therefore violates the Equal Protection Clause as a matter of law.
F. Plaintiffs are entitled to summary judgment on their Sixth Claim fo r Relief that the Mandate violates the First Amendment guarantee to expressive association.
The Mandate com pels Plaintiffs to facilitate expression and activities that Plaintiffs believe and teach are inconsistent with their religious beliefs, expression, and p ractices. The Mandate therefore violates the Plaintiffs’ First Amendment right of expressive association.
The Supreme Court has observed that “im plicit in the right to eng age in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Boys Scouts of America v. Dale, 530 U.S. 640, 647 (2000) (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984)). Freedom of associati on is “an indispensable m eans of preserving other individual liberties” such as the ex ercise of religion and s peech. Roberts, 468 U.S. at 618. “Governm ent actions that may unconstitutionally burden this freedom may take many forms, one of which is intrusion into the internal structur e or affairs of an association.” Dale, 530 U.S. at 648 (internal citations omitted).
A threshold question to determine whether or not the freedom of expressive association is abridged is to ascertain whether the forced association would “significantly affect the [plaintiffs’] ability to advocate public or private viewpoints.” Id. at 650. FOCUS, its em ployees, and the individual plaintiffs associate with FOCUS for an expressive purpose, to live and promote their common religious beliefs, which include the be lief that the use of contraceptiv es and abortifacients is a grave sin. The Mandate for ces Plaintiffs to support and associate with a viewpoint against which they have strong re ligious objections by requiring coverage for
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contraceptive drugs and devices and related education and counselin g. This would m ake it incredibly difficult for Plaintiffs to advocate against the use of contracep tives, while als o facilitating access to th ose exact drugs and dev ices, without cost. Th ese contradictory actions affect in a “significant way the [plaintiffs’] ability to carry out their various purposes.” See Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 548 (1987).
The freedom of expressive association can on ly be “overridden by regulations adopted to serve compelling state interests, unrelated to the suppr ession of ideas that cannot be achieved through means significantly less restrictive of associational freedoms.” Dale, 530 U.S. at 648. This is the strict scru tiny test. As discusse d previously, the Governm ent cannot m eet this demanding standard because they have neither a com pelling government interest nor is the Mandate narrowly tailored to be least restrictive on First Amendment freedoms.
Requiring Plaintiffs to associate with an ideology that they find objectionable on religious grounds and would ha mper their ability to advocat e their views regarding the sanctity of hum an life is plainly a violation of Plaintiffs’ freedom of expressive association. Indeed, the “[f]reedom of association . . . plainly presupposes a freedom not to associate.” Id. at 648 (internal citations omitted) (emphasis ad ded). Plaintiffs are th erefore entitled to sum mary judgment on their expressive association claim.
IV. CONCLUSION Plaintiffs’ claims for relief are clear and unambiguous. There are no m aterial facts in dispute. Speedy resolution of this case by summary judgment is warranted. Plaintiffs are entitled to a p ermanent injunction in their f avor and to their attorney’s fees a nd costs pursuant to 42 U.S.C. § 1988(b) and/or 5 U.S.C. § 504.
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Plaintiffs respectfully request that this Court grant Plaintiffs’ Motion for Summ ary Judgment as follows:
1. Judgment declaring the Mandate and its ap plication to F OCUS and the individual Plaintiffs to be an uncon stitutional violation of their rights protected by RFRA (First Claim for Relief) and/or the First Am endment to the U.S. Constitu tion, to wit: the Free Exercise Clause (Second Claim for Re lief), the Establishm ent Clause (Third Claim for Relief), the Free Speech Clause (Fourth Claim for Relief), Freedom of Expressive Association (Sixth Claim for Relief), and/or Due Process and Equal Protection as guaranteed by the Fifth Am endment (Fifth Claim for Relief) and therefore that the Mandate is invalid and inapplicable to Plaintiffs;
2. A permanent injunction in favor of FOCUS and the individu al Plaintiffs prohibiting Defendants from applying or enforcing the Mandate to P laintiffs in any way that substantially burdens P laintiffs’ religious be liefs of Plaintiffs in violation of RFR A and/or the First Am endment or F ifth Amendment to the U.S. Constitu tion, and prohibiting Defendants from continuing to illeg ally discriminate against Plaintiffs by requiring them to provide h ealth insurance coverage for contraceptives, abortioninducing drugs and devices and related education and counseling; and
3. The award to Plaintiffs of their court cost s and reasonable attorney's fees as provided either 42 U.S.C. § 1988(b) or 5 U.S.C. § 504. Upon request of the Court or at an appropriate time, an af fidavit of attorney’s fees and cos ts will be presented to the Court.
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Respectfully submitted this 15th day of January, 2014.
ATTORNEYS FOR PLAINTIFFS
s/ Michael J. Norton Michael J. Norton ALLIANCE DEFENDING FREEDOM 7951 E. Maplewood Avenue, Suite 100 Greenwood Village, CO 80111 (O) 720-689-2410 (F) 303-694-0703 mjnorton@alliancedefendingfreedom.org
David A. Cortman ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road NE Suite D-1100 Lawrenceville, GA 30043 Tel.: 770-339-0774 Fax.: 770-339-6744 dcortman@alliancedefendingfreedom.org
Steven H. Aden Gregory S. Baylor Matthew S. Bowman ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 Tel.: 202-393-8690 Fax: 202-347-3622 saden@alliancedefendingfreedom.org gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
Kevin H. Theriot ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org.
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CERTIFICATE OF SERVICE The undersigned counsel for Plaintiffs, Michael J. Norton, hereby certifies that, on the 15th day of January, 2014, the foregoing was served on all parties or their counsel of record through the Court’s CM/ECF system, all of whom are registered users, to wit: bradley.p.humphreys@usdoj.gov dcortman@alliancedefendingfreedom.org ktheriot@alliancedefendingfreedom.org. saden@alliancedefendingfreedom.org gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
s/ Michael J. Norton Michael J. Norton
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 Case 1:13-cv-03263-MSK-KMT Document 18 Filed 02/13/14 USDC Colorado Page 1 of 30
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03263-MSK-KMT
FELLOWSHIP OF CATHOLIC UNIVERSITY STUDENTS, et al. Plaintiffs,
v. KATHLEEN SEBELIUS, et al.
Defendants.
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiffs Fellowship of Catholic University Students (FOCUS), Curtis A. Martin, Craig Miller, Brenda Cannella, and Cindy O’Boyle ask th is Court to perm anently enjoin regulations that are intended to acc ommodate religious exercise while helping to e nsure that wom en have access to health cov erage, without cost-sharing, for preventive services that m edical experts deem necessary for wom en’s health and well-being. Subject to an exem ption for houses of worship and their integrated aux iliaries, and accommodations for certain other 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

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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 cont raceptive 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 not contract, arrange, pay, or refer for contracep tive coverage or services. If the organization has third-party insurance, the third-party insurer ta kes 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 FOCUS—its third-party administrator (TPA) has responsibility to arrange contraceptive coverage for the orga nization’s employees and covered dependents. In neither case does the objecting employer bear th e 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 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 FOCUS is elig ible for an accommodation is a s ubstantial burden on their relig ious exercise because, once FOCUS makes the certification, its employees will be able to obtain contraceptive coverage through other parties. This extraord inary contention suggests that FOCUS not onl y seeks to av oid paying for, adm inistering, or othe rwise providing contraceptive co verage itself,
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but also s eeks to prev ent the wo men who work for the organization from obtaining such coverage, even if through other parties. At bo ttom, plaintiffs’ position seems to b e that any asserted burden, no matter how de minimis, amounts to a substantial burden under RFRA. That is not the law. Congress am ended the initial version of RFRA to add the w ord “substantially,” and thus made clear that “any burden” would not suffice.
Plaintiffs’ motion for partial su mmary judgment should be denied because all of plaintiffs’ claims fail as a m atter of law. As an initial matter, Mr. Martin, Mr. Miller, Ms . Cannella, and Ms. Boyle (collectively, the “individua l plaintiffs”) all lack standing b ecause the preventive services coverage provision and accommodations they challenge do not apply to them; they apply to group health plans, health in surance issuers, and eligible organizations. With respect to plaintiffs’ RFRA cl aim, plaintiffs cannot establis h a substantial burden on their religious exercise—as they m ust—because the regul ations do not req uire 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 contrace ption, and to encourage F OCUS’s employees to refrain from using contraceptive services. FOCUS is requ ired only to inform its TPA that it ob jects to providing contraceptive coverage, which it has done or would have to do voluntarily even absent these regulations in ord er to ensur e that tha t it is not resp onsible for contracting, arranging, paying, or referring for such covera ge. Plaintiffs can hardly claim that it is a violation of RFRA to require FOCUS to do alm ost exactly what it would do in the ordinary course. See Priests for Life v. HHS, __ F. Supp. 2d __, 2013 W L 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) (sam e), 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) (same), injunction pending appeal granted, No. 13-2723 (6th Cir. Dec. 31,
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2013). And the regulations do not require anything of the individual plaintiffs, as the regulations govern only FOCUS.
Plaintiffs’ First and Fifth Am endment claims are equally meritless. Indeed, nearly every court to consider such challenges to the regulations has rejected those claims.
Accordingly, defendants respectfully ask that the Court deny plaintiffs’ motion for partial summary judgment.
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, le ad 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 19-20, 109 (2011) (“IOM R EP.”), AR at 317-18, 407. 1 Section 1001 of the ACA—which includes the preventive services coverage provision releva nt here—seeks to cure this problem by m aking 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
1 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR). 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).
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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 preventive services for w omen. See IOM REP. at 2, AR at 300.3 After conducting an extens ive science-based review , IOM recommended that HRSA guidelines include, among other things, well-wo man visits; breastfeeding support; dom estic violence screening; and, as relevant here, “the full range of [FDA ]-approved contraceptive methods, sterilization procedur es, and patient education and counseling for wom en with reproductive capacity.” Id. at 10-12, AR at 308-10. FDA-approved contraceptive methods include diaphragms, oral cont raceptive 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 costsharing, for these ser vices is necessary to increase access t o such services, and t hereby reduce unintended pregnancies (and t he negative health outcomes that disproportionately 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
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. 4 At least twenty-eight states have laws requiring health insurance policies that cover prescription drugs to also provide coverage for F DA-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 t he
organization; (3) the organization serves primarily p ersons who share the religious tenets of the
organization; and (4) the organization is a nonprofit organization as described in section 6033(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
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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. 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
76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
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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 di squalified 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:

(1) The organization opposes providing c overage for som e 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 m anner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and m akes such self-c ertification available fo r 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 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

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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, the organizat ion’s health insurance issuer, upon receipt of the self-certificati on, must provide separate paym ents to plan participants and beneficiaries for contraceptive serv ices without cost sh aring, premium, fee, or other charge to plan participants or beneficiaries, or to the eligib le organization or its plan. See id. at 39,875-77, AR at 7-9. In the case of an organization w ith a self-insured group health plan—such as FOCUS—the organization’s TPA, upon receipt of th e self-certification, must provide or arrange separate payments for contracep tive 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 in curred by the TPA will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
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 3.6
ARGUMENT I. THE INDIVIDUAL PLAINTIFFS LACK STANDING
Any claims by Mr. Martin, Mr. Miller, Ms. Ca nnella, and Ms. O’Boyle (collectively, the “individual plaintiffs”) s hould be denied at the outset because those plai ntiffs lack standing. “[T]he irreducible constitutional minimum of standing” requires that a plaintiff (1) have suffered an injury in fact, (2) that is caused by the defendant’s conduc t, and (3) that is likely to be
6 Plaintiffs ass ert that “[n]one of the facts alleged in Plaintiffs’ Fi rst Amended Verified Compliant (Doc. 10) (‘Verified Complaint’) . . . are in dispute.” Pls.’ Mot. for Partial Summ. J. (“Pls.’ Mot.”) at 6, ECF No. 12. Although defendants’ do not dispute the sincerity of plaintiffs’ religious beliefs, defendants disagree with this blanket statement and dispute, among other things, plaintiffs’ characterizations of the operation of the challenged regulations and the rulemaking process. Defendants do agree, however, that there are no material issues of fact that would preclude the Court from deciding this case as a matter of law. Indeed, concurrent with the filing of this opposition, defendants intend to file a cross dispositive motion to dismiss the case or, in the alternative, for summary judgment.
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redressed by a favorable ruling. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992). As to the injury prong, a plaintiff must demonstrate that he has “suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particular ized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (quotations omitted). The requirement of a causal connection betw een the de fendant’s conduct and the plaintiff’s injury m eans that the injury must be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (citation omitted).
Here, the individual plaintiffs cannot show that they are injured at all—let alone that their alleged injury stems from the challenged regulations—because the law they challen ge does not apply to them . The preventive services coverage provisi on applies to “group health plans” and “health insurance issuers,” 42 U.S.C. § 300gg-13; 45 C.F.R. § 147.130(a)(1) (“[A] group health plan, or a health insurance issu er offering group or individual h ealth insurance coverage, m ust provide coverage for all of the following item s and services.”), and the accommodations pertain to “eligible organizations,” 29 C.F.R. § 2590.715-2713A(a), (b). The individual plaintiffs are none of these. Thus, the only provi sion that the individual plaintiffs challenge imposes no direct obligation or requirement on them . The cha llenged regulations do not re quire the individual plaintiffs to purchase a health insurance policy that covers contraception. Nor do they require them to sign the self -certification form. The obligations imposed by the challenged regulations are instead placed on F OCUS’s group health pl an. And, under the accommodations, the self certification form may be signed by any individual authorized to make the necessary certification on behalf of the organization . The individual plaintiffs’ attemp t to piggyback their claim s onto those of FOCUS fails as a matter of law. See, e.g., Potthoff v. Morin, 245 F.3d 710, 716 (8th Cir. 2001) (“Generally, if a harm has been directed toward the corporation, then only the corporation has standing to assert a claim [.]”); Smith Setzer & Sons, Inc. v. S.C. Procurement Review Panel, 20 F.3d 1311, 1317 (4th Cir. 1994) (“It is consider ed a fundamental rule that [a] shareholder— even the sole shareholder—does not have stan ding to assert claim s alleging wrongs to the corporation.”); see also Cedric Kushner Promotions, Ltd. v. King , 533 U.S. 158, 163 (2001)
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(“[I]ncorporation’s basic purpose is to create a dis tinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it e mploys.”); Autocam Corp. v. Sebelius , 730 F.3d 618, 623 (6th Cir. 2013). For similar reasons, the relief plaintiffs seek—a permanent injunction exempting FOCUS from the accommodations and the contraceptive coverage requirement—does not follow from any alleged injury to the individual plaintiffs. The Court, therefore, should deny plaintiffs’ motion for summary judgment as to the individual plaintiffs for lack of jurisdiction. II. PLAINTIFFS’ RELIGIOUS FREEDOM RESTORATION ACT CLAIM FAILS
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 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)). “A n inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unimporta nt to the adh erent’s religious scheme.” Kaemmerling, 553 F.3d at 678; see Garner v. Kennedy, 713 F.3d 237, 241-42 (5th Cir. 2013) (“In order to show a substa ntial burden, the plaintiff m ust show that the challenged action ‘truly pressures the ad herent to significantly modify his reli gious behavior and significantly violate his religious beliefs.’”).
Plaintiffs cannot show —as they must—that the challenged regulations substantiall y burden their religious exercise. Plaintiffs contend the Tenth Circuit’s decision in Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc) cont rols here, Pls.’ Mot. at 9, but it does not. Hobby Lobby addressed the RFRA claim of for-profit corporations, which, unlike F OCUS, are not eligible for the accommodations and thus are required by the regulations to contract, arrange,
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and pay for contraceptiv e coverage for their em ployees. The court had n o occasion to consider whether the regulation’s accommodations, which relieve eligib le non-profit religious organizations like FOCUS of any obligation to c ontract, arrange, pay, or refer for contraceptive coverage, impose a substantial burden on reli gious exercise. They do not for the reasons discussed below.
The regulations do not im pose a substantial burden on plain tiffs because they do not require plaintiffs to modify their behavior in any meaningful way. 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. T o 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. As explained above, the regulations require nothing of the individual plaintiffs ( i.e., Mr. Martin, Mr. Miller, Ms. Canne lla, and Ms. O’Boyle), and t hus cannot impose a substantial burden on their religious exercise. Moreover, FOCUS, as an eligible organization, is not required to contract, arrange, pay, or refer for contracep tive coverage. To th e contrary, it is f ree to continue to refuse to do so, to voice its disa pproval of contraception, and to encourage its employees to ref rain from using contrac eptive services. F OCUS need only f ulfill the self certification requirement and provide the complete d self-certification to its TPA. It need not provide payments for contraceptive services to its employees. Instead, a third party—FOCUS’s TPA—provides payments for contraceptive services, at no cost to FOCUS. In short, with respe ct to contraceptive coverage, FOCUS need not do anything m ore than it did prior to the promulgation of the c hallenged regulations—that is, to inf orm its TPA that it objects to providing contraceptive c overage in order to ensure that it is not responsible for contracting, arranging, paying, or referring for such coverage. T hus, 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 ca nnot be a substantial burden on religious exercise when “it involves no action or forbearance on [plaintiffs’] pa rt, nor . . . otherwise interfere[s] with any religious act in which [plaintiffs] engage[].” Kaemmerling, 553 F.3d at 679.
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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 unprecedented and sweeping theory of what it mean s for religious exercise to be burdened. Not only does FOCUS want to be fr ee from contracting, arrangi ng, paying, or referring for contraceptive services for its em ployees—which, under these regulations, it is—but plaintiffs would also prevent anyone else from providing such coverage to FOCUS’s employees and their covered dependents, who m ight not subscribe to FOCUS’s religious beliefs. That this is the de facto impact of plaintiffs’ stated objections is made clear by their assertion that RFRA is violated whenever FOCUS “trig ger[s]” a third party ’s provision to FOCUS’s employ ees of services to which FOCUS objects. Am . Compl. ¶¶ 61, 129, 139, ECF No. 10. This theory would m ean, for example, that even the government itself would not realistically be able to provide contraceptive coverage to FOCUS’s employees directly, because such coverage would be “trigger[ed],” id., by FOCUS’s objection to providing su ch coverage itself. 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 no t prevent the governm ent from providing alterna tive means of achieving im portant statutory objectives once it has provi ded a religious acco mmodation. Michigan Catholic Conf., 2013 WL 6838707, at *8 (“The fact that the schem e will continue to operate without them may offend Plaintiffs’ religious beliefs, but it does not substantially burden th e exercise of thos e beliefs.”); Notre Dame, 2013 W L 6804773, at *8 (“Boiled to its esse nce, what Notre Dam e essentially claims is that the governm ent's action after Notr e Dame opts out, in requiring the T PA to cover contraception, offends Notre Da me’s religious sensibilities. And while I acc ept that the government’s and TPA’s actions do offend Notre Da me’s religious views, it’s not Notre Dam e’s prerogative to dictate what healthcare services third parties m ay 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.”).
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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

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 FO CUS to contra ct, arrange, pay, or refer for contraceptive

services, plaintiffs attempt to circ umvent this problem by f raming the allega tion in their

complaint as part of a novel theory that

the regulations require FOCUS t o somehow

“facilitate[e]” access to contraception coverage, and that it is this f acilitation that viola tes

plaintiffs’ religious beliefs. See, e.g., Am. Compl. ¶ 141; Pls.’ Mot. at 5. But under the

challenged regulations F OCUS need only self-certify that it object s to providing coverage for

contraceptive services and that it otherwise meets the criteria for an eligible organization, and to

share that self-certification with its TPA. In other words, F OCUS is required to inf orm its TPA

that it objects to providing contraceptive cove rage, which it has done or would have to do

voluntarily anyway even absent thes e regulations in order to ensure that it is not responsible for

contracting, arranging, paying, or referring for contraceptive coverage. The sole difference is that

FOCUS must inform its TPA that its objection is for religious reasons—a statement which it has

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already made repeatedly in this litig ation and elsewhere.7 This does not am ount to a substantial burden under RFRA. Michigan Catholic Conf., 2013 WL 6838707, at *7 (“[T]he contraceptive mandate requires Catholic Charities to do wh at it has always done—sponsor a plan for its employees, contract with a TPA, and notify the TP A that it objec ts to providing contraceptive coverage. Thus, Plaintiffs are not require[d] to ‘modify [their] behavior.’ . . . Although the TPA’s action may be deeply offensive to the re ligious beliefs of Plaintiffs, RFRA does not allow a plaintiff to restrain the behavior of a third party tha t conflicts with the plaintif f’s religious beliefs.”) (citation omitted); Notre Dame, 2013 WL 6804773, at *12 (“No tre Dame isn’t being required to do anything new or different—its ac tion is the sam e, although, granted, the result is different due to the actions of the T PA and the government. As I’ve said, Notre Dame may find the act of opting out le ss spiritually fulfilling now, but that doesn’t m ake 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 m odify their religious behavior.”). Any burden imposed by the purely adm inistrative self-certification requirement—which should take FOCUS a matter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA.8
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
7 At sev eral points, plaintiffs highlight in th eir motion that, for self-insured eligible organizations, the selfcertification form acts “as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879, AR at 11; see also Pls.’ Mot. at 4, 10, 25. It is not clear what legal sig nificance plaintiffs attach to th is statement, but what is clear is th at self-insured entities are subject to the exact same self-certification requirement as third-party-insured entities; they will use the same selfcertification form, on which they will st ate only that the y have a religious objection to prov iding contraceptive coverage—nothing more. As discussed above, this self-certification requirement is, at most, a de minimis administrative burden that requires no more of eligible employers—whether self-insured or third-party-insured— than what they would have to do anyway absent the challenged regulations. 8 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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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 determine whether the burden a law im poses on a plaintiff’s stated re ligious belief is ‘substantial.’” Conestoga, 917 F. S upp. 2d at 413. Plaintiffs w ould limit the Cour t’s inquiry to two prongs: first, whether plaintiffs’ religious objection to the challenged regulations are sincere, and second, whether the regulations apply signif icant pressure to plaintiffs to comply. But plaintiffs ignore a critical third criterion of the “substantial burde n” test, which gives meaning to the term “substantial”: whether th e challenged regulations actually require plaintiffs to m odify their behavior in a significant—or more than de minimis—way. See Living Water Church of God v. Charter Twp. Of Meridian, 258 Fed. App’x 729, 734-36 (6th Cir. 2007) (reviewing cases); see also, e.g., Garner, 713 F.3d at 241; Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348-49 (2d Cir. 2007).
The Tenth Circuit’s decision in Hobby Lobby is not to the contrary. There, the court observed that, in determ ining whether an alleged bur den is substantial, the court’s “only task is to determine whether the claim ant's belief is sincere, and if so, whether the governm ent has applied substantial pressure on the claim ant to violate th at belief.” 723 F.3d at 1137. But, because the for-profit corporation plaintiffs in that case were not eligible for the accommodations (and thus were required to contract, arrange, and pay for contrace ptive coverage), the court did not address whether an accommodation that requires a plaintiff to do nothing beyond satisfying a purely administrative self-certification requirement im poses a substantial burden on religious exercise. Indeed, the Hobby Lobby court relied heavily on Abdulhaseeb v. Calbone , 600 F.3d 1301 (10th Cir. 2010), which m akes clear that, for a law to im pose a substantial burden, it m ust
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require some actual change in religious behavi or—either forced participation in conduct or forced abstention from conduct. See Hobby Lobby , 723 F.3d at 1138 (“[A] governm ent act imposes a ‘substantial burden’ on religious exercise if it: (1) ‘requires participation in an activity prohibited by a sincerely held religious belief,’ (2) ‘ prevents participation in conduct motivated by a sincerely held religious belie f,’ or (3) ‘pla ces substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held re ligious belief.” (emphasis added) (c iting Abdulhaseeb, 600 F.3d at 1315)). B ecause the challenged regulations require th at FOCUS take the de minimis step that it would have to take even in the absence of the regulations (and require nothing of the individual plai ntiffs), the regulations do not im pose a substantial burden on plaintiffs’ religious exercise.
The challenged regulations also do not im pose a substantial burden on plaintiffs’ religious exercise because any burden is indi rect and too attenuated to be substantial. See Catholic Diocese of Nashville v. S ebelius, 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). The ultimate decision of whether to use c ontraception “rests not with [the employer], but with [the] em ployees” in consultation with their health care providers. Conestoga, 917 F. Supp. 2d at 414-15; see also, e.g. , Autocam Corp. v. Sebelius , 2012 WL 6845677, at *6 (W.D. Mich. Dec. 24, 2012) (“The incremental difference between providing the benefit directly, rather than i ndirectly, is unlikely to qualify as a substantial burden on the Autocam Plaintiffs.”). Moreover, even if the ch allenged regulations w ere deemed to im pose a substantial burden on plaintiffs’ relig ious exercise, the regulations satisfy strict scrutiny because they are narrowly tailored to serve compelling governmental interests in public health and gender equality. Defendants recognize that a m ajority of the en banc Tenth Ci rcuit rejected these arguments in Hobby Lobby, and that this Court is bound by that decision. The Supreme Court is currently reviewing the Tenth Circ uit’s decision. Defendants raise the arguments here merely to preserve them for appeal.
For these reasons, plaintiffs’ RFRA claim fails as a matter of law. 16

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II. The Regulations Do Not Violate the Free Exercise Clause A law that is neutral and gene rally applicable does not r un afoul of the Free Exercis e
Clause even if it prescribes conduct that an indi vidual’s religion proscribes or has the incidental effect of burdening a part icular 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. 520, 531-32 (1993). “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 som ething other than the disappr oval of a particular relig ion, or of religion in general. Id. at 545. A law is generally applicable so long as it does not selectively im pose 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 have considered a fr ee exercise challeng e 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; Archbishop of Washington , 2013 WL 6729515, at *27-31; 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 interfering with religious practices, bu t instead to im prove women’s access to health care and lessen the d isparity between men’s and women’s healthcare costs.” O’Brien, 894 F. Supp. 2d at 1161; see also 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
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, 914 F. Supp. 2d at 952-53; 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 1160-62; see also Catholic Charities of Diocese of Albany, 859 N.E.2d at 468-69 (rejecting similar challenge to state law); Catholic Charities of Sacramento, Inc. v. Su perior Court, 85 P.3d 67, 81-87 (Cal. 2004). 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, 929 F. Supp. 2d 402, 435-37 (W.D. Penn. 2013).
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related regulations were enacted for reasons neutra l to religion.”). The regulations reflect expert medical recommendations about the medical necessity of contrace ptive 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 regu lations and the report publis hed by the Institu te of Medicine that the purpose of the [regulations] is not to target religion, but instead to prom ote public health and gender equality.”); Notre Dame, 2013 WL 6804773, at *17 (s ame, 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 Tenth Circuit has made clear that the existence of “express categorical exceptions for objectively defined categories of [entities],” like grandfathere d plans and religious em ployers, does not negate a law’s general applicability. Axson-Flynn v. Johnson , 356 F.3d 1277, 1298 (10th Cir. 2004); see also Grace United Metho dist Church v. City of Cheyenne , 451 F.3d 643, 651 (10th Cir. 2006) (refusing to “interpret Sm ith as standing for the proposition that a secular exemption automatically creates a claim for a religious exem ption”); Swanson v. Guthrie Indep. Sch. Dist., 135 F.3d 694, 698, 701 (10th Cir. 1998) (c oncluding school’s attendance policy was not subject to strict sc rutiny despite exemptions for “strict categories of students,” such as fifthyear seniors and special education students). The exception for gr andfathered plans is available on equal term s to all em ployers, whether religi ous or secular. And the religious employer exemption and elig ible organization accommodations serv e to accom modate religion, not to
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disfavor it. Such categorical excep tions do not trigger strict scrutiny. See, e.g., Priests for Life,
2013 WL 6672400, at *11; Notre Dame, 2013 W L 6804773 (sam e); Autocam, 2012 W L
6845677, at *5; O’Brien, 894 F. Supp. 2d at 1162.10
“[C]arving out an exemption for defined re ligious entities [also] does not m ake a law
non-neutral as to others.” Grote, 914 F. Supp. 2d at 953 (quotation omitted). Indeed, the religious
employer exemption “presents a strong argum ent in favor of neutrality” by “dem onstrating that
the object of the law was not to infringe upon or restrict practices becau se of their religious
motivation.” O’Brien, 894 F. Supp. 2d at 116 1 (quotations omitted); see Conestoga, 917 F. Supp.
2d at 410 ( “The fact t hat exemptions were made for religi ous employers . . . . s hows that the
government made efforts to acc ommodate religious beliefs, which c ounsels in favor of the
10 Grandfathering is not specifically limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140. Moreover, the effect of grandfathering is not a permanent “exemption,” but rather, over the long term, a transition i n 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; see also Kaiser Fam ily 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 o ne 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 66364, 846.
The other supposed “exemptions” plaintiffs cite (Am. Compl. ¶ 193) are entirely unrelated to the preventive services coverage provision. First, while 26 U.S.C. § 5000A(d)(2) exempts from the minimum coverage provision of the ACA “member[s] of a recognized reli gious sect or division thereof” who, on the b asis of their religion, are opposed to the concept of health insurance and members of health care sharing ministries, this provision is entirely unrelated to the preventive services coverage regulations. See also id. § 1402(g)(1). The minimum coverage provision provides no exemption from the regulations plaintiffs challenge, as i t only excludes certain individuals from the requirement to obtain health coverage and says nothing about the requirement that non-grandfathered group health plans provide recommended preventive services coverage without cost sharing. It is also clearly an attempt by Congress to accommodate religion and, unlike the broad exemption plaintiffs seek, is sufficiently narrow so as not to undermine the larger administrative scheme. See Lee, 455 U.S. at 260-61. Exempting these discrete and “rea dily identifiable,” id., classes of individuals from the minimum coverage provision is unlikely to appreciably undermine the compelling interests motivating the preventive services coverage regulations. By definition, a wo man who is “conscientiously opposed to acceptance of the benefits of any private or public insurance which . . . makes payments toward the cost of, or provides services for, medical care,” 26 U.S.C. § 1402(g)(1), or is a member of a health care sharing ministry described in 26 U.S.C. § 5000A(d)(2)(B)(ii) would not utilize health coverage—including contraceptive coverage—even if it were offered.
Second, 26 U.S.C. § 4980H(c)(2) does not, as plaintiffs assert, exempt small employers from the challenged regulations. Small businesses that elect to offer non-grandfathered health coverage to their employees are required to provide coverage for recommended preventive health services with out cost sharing. See 42 U.S.C. § 300gg-13. And, small employers have business incentives to offer health coverage to their employees; an otherwise eligible small employer would lose elig ibility for certain tax benefits if it d id not do so. See 26 U.S.C. § 45R.
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regulations’ neutrality.”). 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.
Plaintiffs’ reliance on Lukumi, 508 U.S. 520, is of no help, as this case is a far cry from Lukumi, where the legislature specifically targeted the religious exercise of members of a single church (Santeria) by enacting ordinances that used terms such as “sacrifice” and “ritual,” id. at 533-34, and prohibited f ew, if any, anim al killings other than Santeria sacrifices, id. at 535-36. Here, there is no indica tion that th e regulations are anything other th an an effort to increase women’s access to and utilization o f recommended preventive services. See, e.g., O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410. And it cannot be disputed that defendants have m ade extensive ef forts—through the religious em ployer exemption and the eligible organization accommodations—to accommodate religion in ways that will no t undermine the goal of ensuring that wom en have access to coverage for recomm ended preventive services without cost sharing.11 Accordingly, plaintiffs’ free exercise claim fails.12 III. The Regulations Do Not Violate the Establishment Clause
Every court to have considered an Esta blishment Clause challeng e to both these regulations and to the prior version of the regulations has rejected it. See Notre Dame, 2013 WL 6804773, at *18-20; Priests for Life, 2013 WL 6672400, at *14; Roman Catholic Archbishop of Washington v. Sebelius , __ F. Supp. 2d __, 2013 WL 6729515, at *39-43 (D.D.C. Dec. 20, 2013); Diocese of Nashville, 2013 WL 6834375, at *8-10; Michigan Catholic Conf., 2013 WL 6838707, at *11; see also, e.g., O’Brien, 894 F. Supp. 2d at 1162 (upholding prior version of
11 Fraternal Order of Police v. City of Newark , 170 F.3d 359 (3d Cir. 1999), and Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004), on which plaintiffs rely, addressed a policy that created a secular exemption but refused all religious exemptions. The challenged regulations, in contrast, contain an exem ption and acc ommodations that specifically seek to accommodate religion. Thus, there is simply no basis in this case to infer a discriminatory object behind the regulations. See Conestoga, 917 F. Supp. 2d at 409-10. 12 Even if the regulations were not neutral or generally applicable, plaintiffs would still be required to demonstrate that the regulations substantially burden their religious exercise to prevail on their free exercise claim, see Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002) (“[T]he First Amendment is i mplicated when a law o r regulation imposes a substantial, as opposed to inconsequential, burden on the litigant's religious practice.”), which they cannot do for the reasons explained above.
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regulations); Conestoga, 917 F. Supp. 2d at 416-17; Grote Indus. v. Sebelius , 914 F. Supp. 2d 943, 954 (S.D. Ind. 2012), rev’d on other grounds sub nom. Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013). This Court should do the same.
“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 “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
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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 Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (“This kind of distinction—not between denominations, but between religious organizations based on the nature of their activities—is not what Larson condemns.”).
Moreover, plaintiffs stretch Colorado Christian University v. Weaver , 534 F.3d 1245 (10th Cir. 2008), well beyond its facts in asserting that the case stands for the proposition that the Establishment Clause prohibits the governm ent from distinguishing am ong different types of organizations that adhere to the same religion. See Pls.’ Mot. at 22-23. Th e court’s decision in Weaver was limited to “laws that facially regulate religious issues,” id. at 1257, and, particularly, those that do so in a way that denies certain religious institutions public benefits that are afforded to all o ther institutions, whether secular or religious. Weaver says nothing about the constitutionality of exemptions from generally applicable laws that are designed to accommodate religion, as opposed to discriminate against religion. A requirement that any religious exemption that the government creates must be extended to all organizations—no m atter their structure or purpose—would severely hamper the government’s ability to accomm odate religion. See Corp. of Presiding Bishop of Church of Jesu s Christ of Latter- day Saints v. Amos , 483 U.S. 327, 334 (1987) (“There is ample room under the Establishment Clause for ‘benevolent’ neutrality which will permit religious exercise to exist without sponsorship and without interferen ce.”); Catholic
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Charities of Diocese of Albany, 859 N.E.2d at 464 (“To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions—and thus to restrict, rather than promote, freedom of religion.”).
The distinctions established by the regulations at issue here are not distinctions am ong denominations. The regulations’ definitions of religious employer 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. Therefore, as every court to consid er the question has held , the regulations do not discriminate among religions in violation of the Establishment Clause. See infra; 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 challenge because the exemption “makes no explicit and deliberate distinctions between sects” (quotation omitted)).
The Supreme Court has “frequen tly articulated” that “there is space between 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 f or religious worship”); Amos, 483 U.S. at 334 (upholdin g Title VII’s exemption for re ligious organizations). Plaintiffs’ Establishment Clause claim , therefore, lacks merit.13
13 Plaintiffs also assert that the government’s rationale for distinguishing between houses of worship and their integrated auxiliaries and other non-profit religious organizations does not neces sarily apply to FOCUS’s employees, who may be as likely to share the organization’s religious beliefs as the employees of a house of worship or integrated auxiliary. See Pls.’ Mot. at 20. Even ass uming this assertion is true, it does not render the distinctions drawn by the government—which are bas ed on the general characteristics of ho uses of w orship and i ntegrated auxiliaries as compared to those of other non-profit religious organizations, and not the characteristics of the specific
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IV. The Regulations Do Not Violate the Right to Free Speech or Expressive Association Plaintiffs’ free speech claim fares 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 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 FOCUS’s employees not to use contraceptive services.
As plaintiffs point out, to avail itself of an accommodation, an organization m ust selfcertify that it m eets the definition of “eligible organization.” Plaintiffs appear to o bject to the self-certification to the extent that it resu lts in FOCUS’s TPA making separate payments for contraceptive services for its employees. But completion of the simple self-certification form is “plainly incidental to the . . . regulation of conduct,” FAIR, 547 U.S. at 62, not speech. Indeed, every court to 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 th e regulations deal with conduct. See Priests for Life, 2013 WL 6672400, at *12-14 (“The regulations regarding contraceptive coverage, including the accommodation, place no lim its on what Plaintiffs ma y say; they remain free to oppose c ontraceptive coverage for all peop le and in all form s. Rather, the accommodation regulates conduct . . . And like the law schools in FAIR, the only speech th e accommodations require of Priests for Life is incidental to the re gulation of conduct.”); Notre Dame, 2013 WL 6804773, at *20-21; Archbishop of Washington, 2013 WL 6729515, at *31-36;
organization here—unlawful. See, e.g., Turner Construction Co. v. United States, 94 Fed. Cl. 561, 571 (Fed. Cl. 2010) (observing that a reviewing court is not to “sift through an agency’s rationale with a f ine-toothed comb;” instead, the relevant question is whether the agency articulated a rational connection between the facts found and the choice made). Moreover, defendants’ decision to incorporate long-standing concepts from the tax code that refer to churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order, in an effort to avoid entangling inquiries regarding the religious beliefs of plaintiffs’ employees, is reasonable.
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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. Seb elius, 927 F . Supp. 2d 1109 (D. Colo. 2013); Conestoga, 917 F. Supp. 2d at 418; Grote, 914 F. Supp. at 955; Autocam, 2012 W L 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 refe r for contraceptive coverage” to which it ha s religious objections. 78 Fed. Reg. at 39,874, AR at 6. Plaintiffs’ sugge stion that the m ere act of self-certifying eligibility for a religious acco mmodation violates speech rights is b aseless. See FAIR, 547 U.S. at 61-63.
Similarly flawed is plaintiffs’ claim that they are barred from expressing particular views to FOCUS’s TPA. Pls.’ Mot. at 25. Defendants ha ve been clear that “[ n]othing in these final regulations prohibits an eligib le organization from expressi ng its opposition to the use of contraception.” 78 Fed. Reg. at 39,880 n.41, AR at 12. What the regulati ons prohibit is an employer’s improper attempt to interf ere with its employees’ ability to obtain contraceptive coverage from a third party by, fo r example, threatening the TP A with a term ination of its relationship with the employer because of th e TPA’s “arrangem ents to provide or arrange separate payments for contra ceptive services for participants or benef iciaries.” See 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii).
Addressing an analogous argum ent in the cont ext of the National La bor Relations Act, the Supreme Court concluded that an em ployer’s threatening statem ents to its em ployees regarding the effects of unioniza tion fell outside the protection of the First Am endment because they interfered with em ployee rights. NLRB v. Gissel Packing Co. , 395 U.S. 575, 618 (1969). The Court explained that ther e was no First A mendment violation because the employer was “free to communicate . . . any of his general vi ews . . . so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’” Id.; see also Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978). The same is true here. Because the regulations do not
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prevent plaintiffs from expressing their views regarding the us e of con traceptive services, but rather, protect em ployees’ right to obtain paym ents for c ontraceptive services through issuers/TPAs, there is no infringement of plaintiffs’ right to free speech.
Furthermore, plaintiffs are wrong when th ey contend that the regulations require plaintiffs to “facilitate access” to “counselin g related to abortion.” Am . Compl. ¶ 258. The regulations simply require coverage of “education and counseli ng for women with reproductive capacity.” HRSA Guidelines, AR at 130-31. The conversations that m ay take place between a patient and her doctor cannot be known or screened in advan ce and may cover any num ber of options. To the extent that plaintiffs intend to argue that the covered 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.
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
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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 o f 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 cannot succeed on any of their free speech claims. V. The Regulations Do Not Violate the Du e Process Clause or the Equal Protection
Clause of the Fifth Amendment 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 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. ¶ 273. And plaintiffs evidently ha ve no difficulty determ ining what the regulations require of FOCUS; at the very least, then, the regulations are not vague as applied to FOCUS. See U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers , 413 U.S. 548, 579
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(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 [FOCUS’ ] proposed conduct, which m eans that plaintiffs’ vagueness challenge must fail.” 130 S. Ct. at 2720.
Plaintiffs also misunderstand the regulations when they assert that the regulations provide defendants with “unbridled discreti on in deciding whether to allow exemptions to some, all, or no organizations that possess relig ious beliefs.” Compl. ¶ 275; see also Pls.’ Mot. at 26. 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 6 033(a)(3)(A)(i) or (a)(3 )(A)(iii) of the In ternal Revenue Code of 1986, as amended, qualifies for the exemption. 45 C.F.R. § 147.131(a). And an organization that sa tisfies the f our criteria to b e an “eligib le organization” is e ligible for the accommodations. Id. § 137.131(b). There is therefore simply no di scretion that is left to defendants to decide who is exem pt or who is accommodated; the regulations set out the criteria for both determ inations.14 Similarly, there is no m erit to plaintif fs’ allegation that th e regulations—which contain specific criteria—will lead to discriminatory enforcement.
Finally, like their Free Exercise Clause and Establishment Clause claims, plaintiffs’ equal protection claims are based on the theory that the regulations discrim inate among religions. Because, as shown above, the regu lations do n ot so discriminate, plaintiffs’ equal protectio n claim warrants only rational basis review. See, e.g., Johnson v. Robison, 415 U.S. 361, 375 n. 14 (1974); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir. 2007); Wirzberger v. Galvin, 412 F.3d 271, 282-83 & n.6 (1st Cir. 2005); Cooper v. Tard, 855 F.2d 125,
14 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.
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130 (3d Cir. 1988). The regulations and, in partic ular, the religious employer exemption, satisfy rational basis review for the reasons explained above and in the final rules. See supra; 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19.
CONCLUSION For the foregoing reasons, defenda nts respectfully ask that the Court deny plaintiffs’ motion for partial summary judgment. Respectfully submitted this 13th day of February 2014,

United JENNIFER
SHEILA Deputy

STUART F. DELERY Assistant Attorney General
JOHN F. WALSH States Attorney
RICKETTS Director, Federal Programs Branch
M. LIEBER Director, Federal Programs Branch
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS Trial Attorney (VA Bar No. 83212) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, D.C. 20530 Tel: (202) 514-3367 Fax: (202) 616-8470 Email: bradley.p.humphreys@usdoj.gov

Counsel for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on February 13, 2014, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS

 
 Case 1:13-cv-03263-MSK-KMT Document 19 Filed 02/17/14 USDC Colorado Page 1 of 36
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03363-MSK-KMT
FELLOWSHIP OF CATHOLIC UNIVERSITY STUDENTS, et al. Plaintiffs,
v. KATHLEEN SEBELIUS, et al.
Defendants.
DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Plaintiffs Fellowship of Catholic University Students (FOCUS), Curtis A. Martin, Craig Miller, Brenda Cannella, and Cindy O’Boyle ask th is Court to perm anently enjoin regulations that are intended to acc ommodate religious exercise while helping to e nsure that wom en have access to health cov erage, without cost-sharing, for preventive services that m edical experts deem necessary for wom en’s health and well-being. Subject to an exem ption for houses of worship and their integrated aux iliaries, and accommodations for certain other 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

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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 not contract, arrange, pay, or refer for contracep tive coverage or services. If the organization has third-party insurance, the third-party insurer ta kes 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 FOCUS—its third-party administrator (TPA) has responsibility to arrange contraceptive coverage for the orga nization’s employees and covered dependents. In neither case does the objecting employer bear th e 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 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 FOCUS is elig ible for an accommodation is a s ubstantial burden on their relig ious exercise because, once FOCUS makes the certification, its employees will be able to obtain contraceptive coverage through other parties. This extraord inary contention suggests that FOCUS not onl y seeks to av oid paying for, adm inistering, or othe rwise providing contraceptive co verage itself,
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but also s eeks to prev ent the wo men who work for the organization from obtaining such coverage, even if through other parties. At bo ttom, plaintiffs’ position seems to b e that any asserted burden, no matter how de minimis, amounts to a substantial burden under RFRA. That is not the law. Congress am ended the initial version of RFRA to add the w ord “substantially,” and thus made clear that “any burden” would not suffice.
Plaintiffs’ claims all fail as a matter of law. As a n initial matter, Mr. Martin, Mr. Miller, Ms. Cannella, and Ms. Boyle (collectively, the “i ndividual plaintiffs”) all lack standing because the preventive services coverage p rovision and accommodations they challenge do not apply to them; they apply to group health plans, health in surance issuers, and eligible organizations. With respect to plaintiffs’ RFRA cl aim, plaintiffs cannot establis h a substantial burden on their religious exercise—as they m ust—because the regul ations do not req uire 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 contrace ption, and to encourage F OCUS’s employees to refrain from using contraceptive services. FOCUS is requ ired only to inform its TPA that it ob jects to providing contraceptive coverage, which it has done or would have to do voluntarily even absent these regulations in ord er to ensur e that tha t it is not resp onsible for contracting, arranging, paying, or referring for such covera ge. Plaintiffs can hardly claim that it is a violation of RFRA to require FOCUS to do alm ost exactly what it would do in the ordinary course. See Priests for Life v. HHS, __ F. Supp. 2d __, 2013 W L 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) (sam e), 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) (same), injunction pending appeal granted, No. 13-2723 (6th Cir. Dec. 31, 2013). And the regulations do not require anything of the individual plaintiffs, as the regulations govern only FOCUS.
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Plaintiffs’ First and Fifth Am endment claims are equally meritless. Indeed, nearly every court to consider such challenges to the regulations has rejected those cl aims, and their analysis applies here. Plaintiffs also cannot succeed on th eir APA claims. They lack pruden tial standing to raise some of their ar guments, and in any ev ent, the regulations are in ac cordance with th e APA and with federal law.
Accordingly, defendants respectfully ask that the Court dis miss all of plaintiffs’ claims or, in the alternative, enter summary judgment in favor or defendants.
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, le ad 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 19-20, 109 (2011) (“IOM R EP.”), AR at 317-18, 407. 1 Section 1001 of the ACA—which includes the preventive services coverage provision releva nt here—seeks to cure this problem by m aking 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
1 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR). 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).
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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 preventive services for w omen. See IOM REP. at 2, AR at 300.3 After conducting an extens ive science-based review , IOM recommended that HRSA guidelines include, among other things, well-wo man visits; breastfeeding support; dom estic violence screening; and, as relevant here, “the full range of [FDA ]-approved contraceptive methods, sterilization procedur es, and patient education and counseling for wom en with reproductive capacity.” Id. at 10-12, AR at 308-10. FDA-approved contraceptive methods include diaphragms, oral cont raceptive 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 costsharing, for these ser vices is necessary to increase access t o such services, and t hereby reduce unintended pregnancies (and t he negative health outcomes that disproportionately 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
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. 4 At least twenty-eight states have laws requiring health insurance policies that cover prescription drugs to also provide coverage for F DA-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 t he
organization; (3) the organization serves primarily p ersons who share the religious tenets of the
organization; and (4) the organization is a nonprofit organization as described in section 6033(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
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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. 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
76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
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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:

(1) The organization opposes providing c overage for som e 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 m anner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and m akes such self-c ertification available fo r 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 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

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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, the organizat ion’s health insurance issuer, upon receipt of the self-certificati on, must provide separate paym ents to plan participants and beneficiaries for contraceptive serv ices without cost sh aring, premium, fee, or other charge to plan participants or beneficiaries, or to the eligib le organization or its plan. See id. at 39,875-77, AR at 7-9. In the case of an organization w ith a self-insured group health plan—such as FOCUS—the organization’s TPA, upon receipt of th e self-certification, must provide or arrange separate payments for contracep tive 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 in curred by the TPA will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
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 m ove to di smiss one c ount, see infra at Section VI.C, under Federal Rule of Ci vil Procedure 12(b)(1) in part for lack of subject m atter jurisdiction. The party invoking federal jurisdicti on bears the burden of establishing its existence, a nd 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).
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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 summa ry 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).6
ARGUMENT I. THE INDIVIDUAL PLAINTIFFS LACK STANDING
Any claims by Mr. Martin, Mr. Miller, Ms. Ca nnella, and Ms. O’Boyle (collectively, the “individual plaintiffs”) s hould be denied at the outset because those plai ntiffs lack standing. “[T]he irreducible constitutional minimum of standing” requires that a plaintiff (1) have suffered an injury in fact, (2) that is caused by the defendant’s conduc t, and (3) that is likely to be redressed by a favorable ruling. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992). As to the injury prong, a plaintiff must demonstrate that he has “suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particular ized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (quotations omitted). The requirement of a causal connection betw een the de fendant’s conduct and the plaintiff’s injury m eans that the injury must be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (citation omitted).
Here, the individual plaintiffs cannot show that they are injured at all—let alone that their alleged injury stems from the challenged regulations—because the law they challen ge does not apply to them . The preventive services coverage provisi on applies to “group health plans” and “health insurance issuers,” 42 U.S.C. § 300gg-13; 45 C.F.R. § 147.130(a)(1) (“[A] group health plan, or a health insurance issu er offering group or individual h ealth insurance coverage, m ust
6 Plaintiffs ass ert that “[n]one of the facts alleged in Plaintiffs’ Fi rst Amended Verified Compliant (Doc. 10) (‘Verified Complaint’) . . . are in dispute.” Pls.’ Mot. for Partial Summ. J. (“Pls.’ Mot.”) at 6, ECF No. 12. Although defendants’ do not dispute the sincerity of plaintiffs’ religious beliefs, defendants disagree with this blanket statement and dispute, among other things, plaintiffs’ characterizations of the operation of the challenged regulations and the rulemaking process. Defendants do agree, however, that there are no material issues of fact that would preclude the Court from deciding this case as a matter of law.
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provide coverage for all of the following item s and services.”), and the accommodations pertain to “eligible organizations,” 29 C.F.R. § 2590.715-2713A(a), (b). The individual plaintiffs are none of these. Thus, the only provi sion that the individual plaintiffs challenge imposes no direct obligation or requirement on them . The cha llenged regulations do not re quire the individual plaintiffs to purchase a health insurance policy that covers contraception. Nor do they require them to sign the self -certification form. The obligations imposed by the challenged regulations are instead placed on F OCUS’s group health pl an. And, under the accommodations, the self certification form may be signed by any individual authorized to make the necessary certification on behalf of the organization . The individual plaintiffs’ attemp t to piggyback their claim s onto those of FOCUS fails as a matter of law. See, e.g., Potthoff v. Morin, 245 F.3d 710, 716 (8th Cir. 2001) (“Generally, if a harm has been directed toward the corporation, then only the corporation has standing to assert a claim [.]”); Smith Setzer & Sons, Inc. v. S.C. Procurement Review Panel, 20 F.3d 1311, 1317 (4th Cir. 1994) (“It is consider ed a fundamental rule that [a] shareholder— even the sole shareholder—does not have stan ding to assert claim s alleging wrongs to the corporation.”); see also Cedric Kushner Promotions, Ltd. v. King , 533 U.S. 158, 163 (2001) (“[I]ncorporation’s basic purpose is to create a dis tinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it e mploys.”); Autocam Corp. v. Sebelius , 730 F.3d 618, 623 (6th Cir. 2013). For similar reasons, the relief plaintiffs seek—a permanent injunction exempting FOCUS from the accommodations and the contraceptive coverage requirement—does not follow from any alleged injury to the individual plaintiffs. The Court, ther efore, should dismiss the individual plaintiffs’ claims for lack of jurisdiction. II. PLAINTIFFS’ RELIGIOUS FREEDOM RESTORATION ACT CLAIM FAILS
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 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
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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)). “A n inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unimporta nt to the adh erent’s religious scheme.” Kaemmerling, 553 F.3d at 678; see Garner v. Kennedy, 713 F.3d 237, 241-42 (5th Cir. 2013) (“In order to show a substa ntial burden, the plaintiff m ust show that the challenged action ‘truly pressures the ad herent to significantly modify his reli gious behavior and significantly violate his religious beliefs.’”).
Plaintiffs cannot show —as they must—that the challenged regulations substantiall y burden their religious exercise. Plaintiffs contend the Tenth Circuit’s decision in Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc) cont rols here, Pls.’ Mot. at 9, but it does not. Hobby Lobby addressed the RFRA claim of for-profit corporations, which, unlike F OCUS, are not eligible for the accommodations and thus are required by the regulations to contract, arrange, and pay for contraceptiv e coverage for their em ployees. The court had n o occasion to consider whether the regulation’s accommodations, which relieve eligib le non-profit religious organizations like FOCUS of any obligation to c ontract, arrange, pay, or refer for contraceptive coverage, impose a substantial burden on reli gious exercise. They do not for the reasons discussed below.
The regulations do not im pose a substantial burden on plain tiffs because they do not require plaintiffs to modify their behavior in any meaningful way. 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. T o 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. As explained above, the regulations require nothing of the individual plaintiffs ( i.e., Mr. Martin, Mr. Miller, Ms. Canne lla, and Ms. O’Boyle), and t hus cannot impose a substantial
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burden on their religious exercise. Moreover, FOCUS, as an eligible organization, is not required to contract, arrange, pay, or refer for contracep tive coverage. To th e contrary, it is f ree to continue to refuse to do so, to voice its disa pproval of contraception, and to encourage its employees to ref rain from using contrac eptive services. F OCUS need only f ulfill the self certification requirement and provide the complete d self-certification to its TPA. It need not provide payments for contraceptive services to its employees. Instead, a third party—FOCUS’s TPA—provides payments for contraceptive services, at no cost to FOCUS. In short, with respe ct to contraceptive coverage, FOCUS need not do anything m ore than it did prior to the promulgation of the c hallenged regulations—that is, to inf orm its TPA that it objects to providing contraceptive c overage in order to ensure that it is not responsible for contracting, arranging, paying, or referring for such coverage. T hus, 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 ca nnot be a substantial burden on religious exercise when “it involves no action or forbearance on [plaintiffs’] pa rt, nor . . . otherwise interfere[s] with any religious act in which [plaintiffs] engage[].” Kaemmerling, 553 F.3d at 679.
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 unprecedented and sweeping theory of what it mean s for religious exercise to be burdened. Not only does FOCUS want to be fr ee from contracting, arrangi ng, paying, or referring for contraceptive services for its em ployees—which, under these regulations, it is—but plaintiffs would also prevent anyone else from providing such coverage to FOCUS’s employees and their covered dependents, who m ight not subscribe to FOCUS’s religious beliefs. That this is the de facto impact of plaintiffs’ stated objections is made clear by their assertion that RFRA is violated whenever FOCUS “trig ger[s]” a third party ’s provision to FOCUS’s employ ees of services to which FOCUS objects. Am . Compl. ¶¶ 61, 129, 139, ECF No. 10. This theory would m ean, for example, that even the government itself would not realistically be able to provide contraceptive coverage to FOCUS’s employees directly, because such coverage would be “trigger[ed],” id., by
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FOCUS’s objection to providing su ch coverage itself. 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 no t prevent the governm ent from providing alterna tive means of achieving im portant statutory objectives once it has provi ded a religious acco mmodation. Michigan Catholic Conf., 2013 WL 6838707, at *8 (“The fact that the schem e will continue to operate without them may offend Plaintiffs’ religious beliefs, but it does not substantially burden th e exercise of thos e beliefs.”); Notre Dame, 2013 W L 6804773, at *8 (“Boiled to its esse nce, what Notre Dam e essentially claims is that the governm ent's action after Notr e Dame opts out, in requiring the T PA to cover contraception, offends Notre Da me’s religious sensibilities. And while I acc ept that the government’s and TPA’s actions do offend Notre Da me’s religious views, it’s not Notre Dam e’s prerogative to dictate what healthcare services third parties m ay 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 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 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.
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Perhaps understanding the tenuous ground on whic h their RFRA claim rests, given that

the regulations do not require FO CUS to contra ct, arrange, pay, or refer for contraceptive

services, plaintiffs attempt to circ umvent this problem by f raming the allega tion in their

complaint as part of a novel theory that

the regulations require FOCUS t o somehow

“facilitate[e]” access to contraception coverage, and that it is this f acilitation that viola tes

plaintiffs’ religious beliefs. See, e.g., Am. Compl. ¶ 141; Pls.’ Mot. at 5. But under the

challenged regulations F OCUS need only self-certify that it object s to providing coverage for

contraceptive services and that it otherwise meets the criteria for an eligible organization, and to

share that self-certification with its TPA. In other words, F OCUS is required to inf orm its TPA

that it objects to providing contraceptive cove rage, which it has done or would have to do

voluntarily anyway even absent thes e regulations in order to ensure that it is not responsible for

contracting, arranging, paying, or referring for contraceptive coverage. The sole difference is that

FOCUS must inform its TPA that its objection is for religious reasons—a statement which it has already made repeatedly in this litig ation and elsewhere.7 This does not am ount to a substantial

burden under RFRA. Michigan Catholic Conf., 2013 WL 6838707, at *7 (“[T]he contraceptive

mandate requires Catholic Charities to do wh at it has always done—sponsor a plan for its

employees, contract with a TPA, and notify the TP A that it objec ts to providing contraceptive

coverage. Thus, Plaintiffs are not require[d] to ‘modify [their] behavior.’ . . . Although the TPA’s

action may be deeply offensive to the re ligious beliefs of Plaintiffs, RFRA does not allow a

plaintiff to restrain the behavior of a third party tha t conflicts with the plaintif f’s religious

beliefs.”) (citation omitted); Notre Dame, 2013 WL 6804773, at *12 (“No tre Dame isn’t being

7 At several points, plaintiffs highlight in their motion for partial summary judgment that, for self-insured eligible organizations, the self-certification form acts “as a desi gnation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879, AR at 11; see also Pls.’ Mot. at 4, 10, 25. It is not clear what legal significance plaintiffs attach to this statement, but what is clear is th at self-insured entities are sub ject to the exact same self-certification requirement as third-party-insured entities; they will use the same self-certification form, on which they will state on ly that they have a religious objection to providing contraceptive coverage—nothing more. As discussed above, this self-certification requirement is, at most, a de minimis administrative burden that requires no more of eligible employers—whether self-insured or third-partyinsured—than what they would have to do anyway absent the challenged regulations.
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required to do anything new or different—its ac tion is the sam e, although, granted, the result is different due to the actions of the T PA and the government. As I’ve said, Notre Dame may find the act of opting out le ss spiritually fulfilling now, but that doesn’t m ake 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 m odify their religious behavior.”). Any burden imposed by the purely adm inistrative self-certification requirement—which should take FOCUS a matter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA.8
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 determine whether the burden a law im poses on a plaintiff’s stated re ligious belief is ‘substantial.’” Conestoga, 917 F. S upp. 2d at 413. Plaintiffs w ould limit the Cour t’s inquiry to two prongs: first, whether plaintiffs’ religious objection to the challenged regulations are sincere, and second, whether the regulations apply signif icant pressure to plaintiffs to comply. But plaintiffs ignore a critical third criterion of the “substantial burde n” test, which gives meaning to the term “substantial”: whether th e challenged regulations actually require plaintiffs to m odify
8 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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their behavior in a significant—or more than de minimis—way. See Living Water Church of God v. Charter Twp. Of Meridian, 258 Fed. App’x 729, 734-36 (6th Cir. 2007) (reviewing cases); see also, e.g., Garner, 713 F.3d at 241; Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348-49 (2d Cir. 2007).
The Tenth Circuit’s decision in Hobby Lobby is not to the contrary. There, the court observed that, in determ ining whether an alleged bur den is substantial, the court’s “only task is to determine whether the claim ant's belief is sincere, and if so, whether the governm ent has applied substantial pressure on the claim ant to violate th at belief.” 723 F.3d at 1137. But, because the for-profit corporation plaintiffs in that case were not eligible for the accommodations (and thus were required to contract, arrange, and pay for contrace ptive coverage), the court did not address whether an accommodation that requires a plaintiff to do nothing beyond satisfying a purely administrative self-certification requirement im poses a substantial burden on religious exercise. Indeed, the Hobby Lobby court relied heavily on Abdulhaseeb v. Calbone , 600 F.3d 1301 (10th Cir. 2010), which m akes clear that, for a law to im pose a substantial burden, it m ust require some actual change in religious behavi or—either forced participation in conduct or forced abstention from conduct. See Hobby Lobby , 723 F.3d at 1138 (“[A] governm ent act imposes a ‘substantial burden’ on religious exercise if it: (1) ‘requires participation in an activity prohibited by a sincerely held religious belief,’ (2) ‘ prevents participation in conduct motivated by a sincerely held religious belie f,’ or (3) ‘pla ces substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held re ligious belief.” (emphasis added) (c iting Abdulhaseeb, 600 F.3d at 1315)). B ecause the challenged regulations require th at FOCUS take the de minimis step that it would have to take even in the absence of the regulations (and require nothing of the individual plai ntiffs), the regulations do not im pose a substantial burden on plaintiffs’ religious exercise.
The challenged regulations also do not im pose a substantial burden on plaintiffs’ religious exercise because any burden is indi rect and too attenuated to be substantial. See Catholic Diocese of Nashville v. S ebelius, No. 3:13-01303, 2013 WL 6834375, at *4-5 (M.D.
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Tenn. Dec. 26, 2013), injunction pending appeal granted , No. 13-6640 (6th Cir. Dec. 31, 2013) (addressing these regulations). The ultimate decision of whether to use c ontraception “rests not with [the employer], but with [the] em ployees” in consultation with their health care providers. Conestoga, 917 F. Supp. 2d at 414-15; see also, e.g. , Autocam Corp. v. Sebelius , 2012 WL 6845677, at *6 (W.D. Mich. Dec. 24, 2012) (“The incremental difference between providing the benefit directly, rather than i ndirectly, is unlikely to qualify as a substantial burden on the Autocam Plaintiffs.”). Moreover, even if the ch allenged regulations w ere deemed to im pose a substantial burden on plaintiffs’ re ligious exercise, the regulations satisfy strict scrutiny because they are narrowly tailored to serve compelling governmental interests in public health and gender equality. Defendants recognize that a m ajority of the en banc Tenth Ci rcuit rejected these arguments in Hobby Lobby, and that this Court is bound by that decision. The Supreme Court is currently reviewing the Tenth Circ uit’s decision. Defendants raise the arguments here merely to preserve them for appeal.
For these reasons, plaintiffs’ RFRA claim fails as a matter of law. II. The Regulations Do Not Violate the Free Exercise Clause
A law that is neutral and gene rally applicable does not r un afoul of the Free Exercis e Clause even if it prescribes conduct that an indi vidual’s religion proscribes or has the incidental effect of burdening a part icular 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. 520, 531-32 (1993). “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 som ething other than the disappr oval of a particular relig ion, or of religion in general. Id. at 545. A law is generally applicable so long as it does not selectively im pose 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 have considered a fr ee exercise challeng e to the se regulations has rejected it, concluding that the regulations ar e neutral and generally applicable.
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See Priests for Life, 2013 WL 6672400, at *10-12, Notre Dame, 2013 WL 6804773, at *14-18; Archbishop of Washington , 2013 WL 6729515, at *27-31; 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 interfering with religious practices, bu t instead to im prove women’s access to health care and lessen the d isparity between men’s and women’s healthcare costs.” O’Brien, 894 F. Supp. 2d at 1161; see also 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 neutra l to religion.”). The regulations reflect expert medical recommendations about the medical necessity of contrace ptive 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 regu lations and the report publis hed by the Institu te of Medicine that the purpose of the [regulations] is not to target religion, but instead to prom ote public health and gender equality.”); Notre Dame, 2013 WL 6804773, at *17 (s ame, 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
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, 914 F. Supp. 2d at 952-53; 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 1160-62; see also Catholic Charities of Diocese of Albany, 859 N.E.2d at 468-69 (rejecting similar challenge to state law); Catholic Charities of Sacramento, Inc. v. Su perior Court, 85 P.3d 67, 81-87 (Cal. 2004). 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, 929 F. Supp. 2d 402, 435-37 (W.D. Penn. 2013).
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[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 Tenth Circuit has made clear that the existence of “express categorical exceptions for
objectively defined categories of [entities],” like grandfathere d plans and religious em ployers,
does not negate a law’s general applicability. Axson-Flynn v. Johnson , 356 F.3d 1277, 1298
(10th Cir. 2004); see also Grace United Metho dist Church v. City of Cheyenne , 451 F.3d 643,
651 (10th Cir. 2006) (refusing to “interpret Sm ith as standing for the proposition that a secular
exemption automatically creates a claim for a religious exem ption”); Swanson v. Guthrie Indep.
Sch. Dist., 135 F.3d 694, 698, 701 (10th Cir. 1998) (c oncluding school’s attendance policy was
not subject to strict sc rutiny despite exemptions for “strict categories of students,” such as fifth-
year seniors and special education students). The exception for gr andfathered plans is available
on equal term s to all em ployers, whether religi ous or secular. And the religious employer
exemption and elig ible organization accommodations serv e to accom modate religion, not to
disfavor it. Such categorical excep tions do not trigger strict scrutiny. See, e.g., Priests for Life,
2013 WL 6672400, at *11; Notre Dame, 2013 W L 6804773 (sam e); Autocam, 2012 W L 6845677, at *5; O’Brien, 894 F. Supp. 2d at 1162.10
10 Grandfathering is not specifically limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140. Moreover, the effect of grandfathering is not a permanent “exemption,” but rather, over the long term, a transition i n 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; see also Kaiser Fam ily 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 o ne 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 66364, 846.
The other supposed “exemptions” plaintiffs cite (Am. Compl. ¶ 193) are entirely unrelated to the preventive services coverage provision. First, while 26 U.S.C. § 5000A(d)(2) exempts from the minimum coverage provision of the ACA “member[s] of a recognized reli gious sect or division thereof” who, on the b asis of their religion, are opposed to the concept of health insurance and members of health care sharing ministries, this provision is entirely unrelated to the preventive services coverage regulations. See also id. § 1402(g)(1). The minimum coverage provision provides no exemption from the regulations plaintiffs challenge, as i t only excludes certain individuals from the requirement to obtain health coverage and says nothing about the requirement that non-grandfathered group health plans provide recommended preventive services coverage without cost sharing. It is also clearly an attempt by Congress to accommodate religion and, unlike the broad exemption plaintiffs seek, is sufficiently narrow so as not to undermine the larger administrative scheme. See Lee, 455 U.S. at 260-61. Exempting these discrete and “rea dily
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“[C]arving out an exemption for defined re ligious entities [also] does not m ake a law non-neutral as to others.” Grote, 914 F. Supp. 2d at 953 (quotation omitted). Indeed, the religious employer exemption “presents a strong argum ent in favor of neutrality” by “dem onstrating that the object of the law was not to infringe upon or restrict practices becau se of their religious motivation.” O’Brien, 894 F. Supp. 2d at 116 1 (quotations omitted); see Conestoga, 917 F. Supp. 2d at 410 ( “The fact t hat exemptions were made for religi ous employers . . . . s hows that the government made efforts to acc ommodate religious beliefs, which c ounsels in favor of the regulations’ neutrality.”). 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.
Plaintiffs’ reliance on Lukumi, 508 U.S. 520, is of no help, as this case is a far cry from Lukumi, where the legislature specifically targeted the religious exercise of members of a single church (Santeria) by enacting ordinances that used terms such as “sacrifice” and “ritual,” id. at 533-34, and prohibited f ew, if any, anim al killings other than Santeria sacrifices, id. at 535-36. Here, there is no indica tion that th e regulations are anything other th an an effort to increase women’s access to and utilization o f recommended preventive services. See, e.g., O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410. And it cannot be disputed that defendants have m ade extensive ef forts—through the religious em ployer exemption and the eligible organization accommodations—to accommodate religion in ways that will no t
identifiable,” id., classes of individuals from the minimum coverage provision is unlikely to appreciably undermine the compelling interests motivating the preventive services coverage regulations. By definition, a wo man who is “conscientiously opposed to acceptance of the benefits of any private or public insurance which . . . makes payments toward the cost of, or provides services for, medical care,” 26 U.S.C. § 1402(g)(1), or is a member of a health care sharing ministry described in 26 U.S.C. § 5000A(d)(2)(B)(ii) would not utilize health coverage—including contraceptive coverage—even if it were offered.
Second, 26 U.S.C. § 4980H(c)(2) does not, as plaintiffs assert, exempt small employers from the challenged regulations. Small businesses that elect to offer non-grandfathered health coverage to their employees are required to provide coverage for recommended preventive health services with out cost sharing. See 42 U.S.C. § 300gg-13. And, small employers have business incentives to offer health coverage to their employees; an otherwise eligible small employer would lose elig ibility for certain tax benefits if it d id not do so. See 26 U.S.C. § 45R.
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undermine the goal of ensuring that wom en have access to coverage for recomm ended preventive services without cost sharing.11 Accordingly, plaintiffs’ free exercise claim fails.12 III. The Regulations Do Not Violate the Establishment Clause
Every court to have considered an Esta blishment Clause challeng e to both these regulations and to the prior version of the regulations has rejected it. See Notre Dame, 2013 WL 6804773, at *18-20; Priests for Life, 2013 WL 6672400, at *14; Roman Catholic Archbishop of Washington v. Sebelius , __ F. Supp. 2d __, 2013 WL 6729515, at *39-43 (D.D.C. Dec. 20, 2013); Diocese of Nashville, 2013 WL 6834375, at *8-10; Michigan Catholic Conf., 2013 WL 6838707, at *11; see also, e.g., O’Brien, 894 F. Supp. 2d at 1162 (upholding prior version of regulations); Conestoga, 917 F. Supp. 2d at 416-17; Grote Indus. v. Sebelius , 914 F. Supp. 2d 943, 954 (S.D. Ind. 2012), rev’d on other grounds sub nom. Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013). This Court should do the same.
“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
11 Fraternal Order of Police v. City of Newark , 170 F.3d 359 (3d Cir. 1999), and Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004), on which plaintiffs rely, addressed a policy that created a secular exemption but refused all religious exemptions. The challenged regulations, in contrast, contain an exem ption and acc ommodations that specifically seek to accommodate religion. Thus, there is simply no basis in this case to infer a discriminatory object behind the regulations. See Conestoga, 917 F. Supp. 2d at 409-10. 12 Even if the regulations were not neutral or generally applicable, plaintiffs would still be required to demonstrate that the regulations substantially burden their religious exercise to prevail on their free exercise claim, see Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002) (“[T]he First Amendment is i mplicated when a law o r regulation imposes a substantial, as opposed to inconsequential, burden on the litigant's religious practice.”), which they cannot do for the reasons explained above.
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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 “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 Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (“This kind of distinction—not between
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denominations, but between religious organizations based on the nature of their activities—is not what Larson condemns.”).
Moreover, plaintiffs stretch Colorado Christian University v. Weaver , 534 F.3d 1245 (10th Cir. 2008), well beyond its facts in asserting that the case stands for the proposition that the Establishment Clause prohibits the governm ent from distinguishing am ong different types of organizations that adhere to the same religion. See Pls.’ Mot. at 22-23. Th e court’s decision in Weaver was limited to “laws that facially regulate religious issues,” id. at 1257, and, particularly, those that do so in a way that denies certain religious institutions public benefits that are afforded to all o ther institutions, whether secular or religious. Weaver says nothing about the constitutionality of exemptions from generally applicable laws that are designed to accommodate religion, as opposed to discriminate against religion. A requirement that any religious exemption that the government creates must be extended to all organizations—no m atter their structure or purpose—would severely hamper the government’s ability to accomm odate religion. See Corp. of Presiding Bishop of Church of Jesu s Christ of Latter- day Saints v. Amos , 483 U.S. 327, 334 (1987) (“There is ample room under the Establishment Clause for ‘benevolent’ neutrality which will permit religious exercise to exist without sponsorship and without interferen ce.”); Catholic Charities of Diocese of Albany, 859 N.E.2d at 464 (“To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions—and thus to restrict, rather than promote, freedom of religion.”).
The distinctions established by the regulations at issue here are not distinctions am ong denominations. The regulations’ definitions of religious employer 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. Therefore, as every court to consid er the question has held , the regulations do not discriminate among religions in violation of the Establishment Clause. See infra; see also Liberty Univ., Inc. v. Lew, 733 F.3d 72, 100-102 (4th Cir. 2013) ( upholding another religious exemption
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contained in the ACA against an Establishm ent Clause challenge because the exemption “makes no explicit and deliberate distinctions between sects” (quotation omitted)).
The Supreme Court has “frequen tly articulated” that “there is space between 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 f or religious worship”); Amos, 483 U.S. at 334 (upholdin g Title VII’s exemption for re ligious organizations). Plaintiffs’ Establishment Clause claim , therefore, lacks merit.13
IV. The Regulations Do Not Violate the Right to Free Speech or Expressive Association Plaintiffs’ free speech claim fares 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 the First Amendment. Nor do they limit what plaintiffs may say. Plaintiffs remain free under the
13 Plaintiffs also assert that the government’s rationale for distinguishing between houses of worship and their integrated auxiliaries and other non-profit religious organizations does not neces sarily apply to FOCUS’s employees, who may be as likely to share the organization’s religious beliefs as the employees of a house of worship or integrated auxiliary. See Pls.’ Mot. at 20. Even ass uming this assertion is true, it does not render the distinctions drawn by the government—which are bas ed on the general characteristics of ho uses of w orship and i ntegrated auxiliaries as compared to those of other non-profit religious organizations, and not the characteristics of the specific organization here—unlawful. See, e.g., Turner Construction Co. v. United States, 94 Fed. Cl. 561, 571 (Fed. Cl. 2010) (observing that a reviewing court is not to “sift through an agency’s rationale with a f ine-toothed comb;” instead, the relevant question is whether the agency articulated a rational connection between the facts found and the choice made). Moreover, defendants’ decision to incorporate long-standing concepts from the tax code that refer to churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order, in an effort to avoid entangling inquiries regarding the religious beliefs of plaintiffs’ employees, is reasonable.
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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 FOCUS’s employees not to use contraceptive services.
As plaintiffs point out, to avail itself of an accommodation, an organization m ust selfcertify that it m eets the definition of “eligible organization.” Plaintiffs appear to o bject to the self-certification to the extent that it resu lts in FOCUS’s TPA making separate payments for contraceptive services for its employees. But completion of the simple self-certification form is “plainly incidental to the . . . regulation of conduct,” FAIR, 547 U.S. at 62, not speech. Indeed, every court to 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 th e regulations deal with conduct. See Priests for Life, 2013 WL 6672400, at *12-14 (“The regulations regarding contraceptive coverage, including the accommodation, place no lim its on what Plaintiffs ma y say; they remain free to oppose c ontraceptive coverage for all peop le and in all form s. Rather, the accommodation regulates conduct . . . And like the law schools in FAIR, the only speech th e accommodations require of Priests for Life is incidental to the re gulation 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. Seb elius, 927 F . Supp. 2d 1109 (D. Colo. 2013); Conestoga, 917 F. Supp. 2d at 418; Grote, 914 F. Supp. at 955; Autocam, 2012 W L 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 refe r for contraceptive coverage” to which it ha s religious objections. 78 Fed. Reg. at 39,874, AR at 6. Plaintiffs’ sugge stion that the m ere act of self-certifying eligibility for a religious acco mmodation violates speech rights is b aseless. See FAIR, 547 U.S. at 61-63.
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Similarly flawed is plaintiffs’ claim that they are barred from expressing particular views to FOCUS’s TPA. Pls.’ Mot. at 25. Defendants ha ve been clear that “[ n]othing in these final regulations prohibits an eligib le organization from expressi ng its opposition to the use of contraception.” 78 Fed. Reg. at 39,880 n.41, AR at 12. What the regulati ons prohibit is an employer’s improper attempt to interf ere with its employees’ ability to obtain contraceptive coverage from a third party by, fo r example, threatening the TP A with a term ination of its relationship with the employer because of th e TPA’s “arrangem ents to provide or arrange separate payments for contra ceptive services for participants or benef iciaries.” See 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii).
Addressing an analogous argum ent in the cont ext of the National La bor Relations Act, the Supreme Court concluded that an em ployer’s threatening statem ents to its em ployees regarding the effects of unioniza tion fell outside the protection of the First Am endment because they interfered with em ployee rights. NLRB v. Gissel Packing Co. , 395 U.S. 575, 618 (1969). The Court explained that ther e was no First A mendment violation because the employer was “free to communicate . . . any of his general vi ews . . . so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’” Id.; see also Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978). The same is true here. Because the regulations do not prevent plaintiffs from expressing their views regarding the us e of con traceptive services, but rather, protect em ployees’ right to obtain paym ents for c ontraceptive services through issuers/TPAs, there is no infringement of plaintiffs’ right to free speech.
Furthermore, plaintiffs are wrong when th ey contend that the regulations require plaintiffs to “facilitate access” to “counselin g related to abortion.” Am . Compl. ¶ 258. The regulations simply require coverage of “education and counseli ng for women with reproductive capacity.” HRSA Guidelines, AR at 130-31. The conversations that m ay take place between a patient and her doctor cannot be known or screened in advan ce and may cover any num ber of options. To the extent that plaintiffs intend to argue that the covered education and counseling is objectionable because som e of the conversati ons between a doctor and one of plaintiffs’
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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.
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 scrutiny). 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 o f 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”).
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Accordingly, plaintiffs cannot succeed on any of their free speech claims. V. The Regulations Do Not Violate the Du e Process Clause or the Equal Protection
Clause of the Fifth Amendment 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 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 Am. Compl. ¶ 273. And plaintiffs evidentl y have no difficulty determining what the regulations require of FOCUS; at the very least, then, the regulations are not vague as applied to FOCUS. 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 [FOCUS’ ] proposed conduct, which m eans that plaintiffs’ vagueness challenge must fail.” 130 S. Ct. at 2720. Plaintiffs also misunderstand the regulations when they assert that the regulations provide defendants with “unbridled discreti on in deciding whether to allow exemptions to some, all, or no organizations that possess religio us beliefs.” Am . Compl. ¶ 275; see also Pls.’ Mot. at 26.
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That is incorrect. Under the regulations at iss ue 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 am ended, qualifies for the exem ption. 45 C.F.R. § 147.131(a). And an organization that sa tisfies 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 exem pt or who is accom modated; the regulations set out the criteria for both determ inations.14 Similarly, there is no m erit to plain tiffs’ allegation that the regulations—which contain specific criteria—will lead to discriminatory enforcement.
Finally, like their Free Exercise Clause and Establishment Clause claims, plaintiffs’ equal protection claims are based on the theory that the regulations discrim inate among religions. Because, as shown above, the regu lations do n ot so discriminate, plaintiffs’ equal protectio n claim warrants only rational basis review. See, e.g., Johnson v. Robison, 415 U.S. 361, 375 n. 14 (1974); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir. 2007); Wirzberger v. Galvin, 412 F.3d 271, 282-83 & n.6 (1st Cir. 2005); Cooper v. Tard, 855 F.2d 125, 130 (3d Cir. 1988). The regulations and, in partic ular, the religious employer exemption, satisfy rational basis review for the reasons explained above and in the final rules. See supra; 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19. VI. PLAINTIFFS’ APA CLAIMS FAIL
A. 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. Am. Compl. ¶¶ 284-88. These allegations are baseless. The APA’s rulem aking provisions generally require that agencies provide notice of a proposed rule, invite a nd consider public comments, and adopt a final rule that includes a
14 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.
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statement of basis and purpose. See 5 U.S.C. § 553(b), (c). Defendants com plied with these requirements.15
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 as ultim ately 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 prior to goi ng into effect. See Am. Compl. ¶¶ 289-92. This argument is based on a m isunderstanding of both the ACA and the regulati ons. The provision of the ACA to which plaintiffs refer, 42 U.S.C. § 300gg-13(b), requires only that there be a minimum interval of not les s than one year b etween the d ate on whic h a recommendation or guideline is issued—here, the HRSA Guidelines—and th e plan year for which the coverage of the services included in that recommenda tion or guideline mu st take effect. See 75 Fed. Reg. at 41,729, AR at 229. That requirem ent is clearly satisfied here: HRSA published its guidelines on August 1, 2011, see HRSA Gui delines, supra, and these regulations apply for plan years beginning on or after January 1, 2014, see 78 Fed. Reg. at 39,870, AR a t 2. Nothing in the ACA prevents defendants from a mending the regulati ons as they have done here, and because the required interval relates only to the issuance of new recomm endations or guidelines, nothing in
15 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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the ACA requires defendants to provide an interv al of one year betwee n the promulgation of these amendments and the date on which the required coverage must take effect.
B. 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 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. C. 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
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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.16 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

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 contrary to his re ligious beliefs or m oral convictions.” 42 U.S.C.

§ 300a-7(d). By merely providing a health plan to its em ployees, FOCUS is 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 plainti ffs “individual[s]” under that provision. And the individual

16 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 t o be set up by states no 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.”
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plaintiffs are not required to do anything whatsoever, as the re gulations do not apply to them. None of the plaintiffs therefore is 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’ claims, plaintiffs’ premise that the contraceptiv e coverage regulations re quire 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-grandfat hered, non-exempt and non-accomm odated group health plans cover all FDA-approved “contrace ptive methods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider. See HRSA Guidelines, supra. And the government has m ade clear that the preventive se rvices covered by the regulations do not in clude abortifacient drugs.17 Although plaintiffs believe that Plan B, ella, and certain IUDs are abortifacie nt drugs or cause abortions, neither the governm ent nor this Court is required to accept that characterization, which is inconsistent with the FDA’s scien tific assessment and with f ederal law. W hile plaintiffs’ religious beliefs may define abortion m ore broadly than federal law to include em ergency contraception and ce rtain IUDs, statutory interpretation requires that terms be construed as a matter of law and not in accordan ce with any particular individual’s views or beliefs. See Michigan Catholic Conf., 2013 WL 6838707, at *13 (“Plaintiffs believe that F DA-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 Plaintif fs’ 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 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
17 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.
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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 the regulations reflect a settled understanding of FDA-approved contraceptives

that is in accordance with ex isting federal laws prohibiting f ederal funding for certain abortions,

they are consistent with over a decade of regu latory policy and practice and thus cannot be deemed contrary to any law dea ling with abo rtion.18 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)).

18 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).
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Plaintiffs’ APA claims thus fail. CONCLUSION
For the foregoing reasons, defendants respectfu lly ask tha t the Court dism iss plaintiffs’ claims or, in the alternative, enter summary judgment in defendants’ favor.
Respectfully submitted this 17th day of February 2014,

United JENNIFER
SHEILA Deputy

STUART F. DELERY Assistant Attorney General
JOHN F. WALSH States Attorney
RICKETTS Director, Federal Programs Branch
M. LIEBER Director, Federal Programs Branch
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS Trial Attorney (VA Bar No. 83212) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Washington, D.C. 20530 Tel: (202) 514-3367 Fax: (202) 616-8470 Email: bradley.p.humphreys@usdoj.gov

Counsel for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on February 17, 2014, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS

 
 Case 1:13-cv-03263-MSK-KMT Document 33 Filed 03/11/14 USDC Colorado Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Marcia S. Krieger
Civil Action No. 1:13-cv-03263-MSK-KMT FELLOWSHIP OF CATHOLIC UNIVERSITY STUDENTS, a Colorado non-profit corporation, et al.,
Plaintiffs, v. KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al., Defendants. ______________________________________________________________________________
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION, CERTIFICATE OF COMPLIANCE RE: CONSULTATION and REQUEST FOR FORTHWITH CONSIDERATION
Pursuant to Fed. R. Civ. P. 65, Plaintiffs respectfully move the Court to enter a preliminary injunction order on or before May 15, 2014 enjoining application of Defendants’ contraceptive/abortifacient mandate (“Mandate”) as to Plaintiffs.
Pursuant to D.C.COLO.LCiv.R 7.1(a), counsel for Plaintiffs has consulted and conferred with counsel for Defendants, to wit: Bradley P . Humphreys, Esq., prior to filing this m otion. Defendants oppose the entry of the requested preliminary injunction order.
Plaintiffs request a prelim inary injunction order against Defendants and their Mandate that requires Plaintiffs to contract, arrange, pay, or refer or facil itate, contrary to their sincerely held religious beliefs, contraceptives and aborti facient drugs and devices and related education and counseling as a part of Fellowship of Cat holic University Students’ (“FOCUS”) em ployee health plan.
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Because Plaintiffs, in violation of their sinc erely held religious beliefs, will be requ ired, absent injunctive relief, to inc lude coverage of contraceptive/abortifacient drugs, devices, and services in FOCUS’s health insurance plan that begins on July 1, 2014 or face m assive fines and penalties for noncom pliance, Plaintiffs need in junctive relief on or by May 15, 2014 so as arrange the details of that plan, including required employee notices, by the July 1, 2014 renewal date.
The factual and legal b ases for Plaintiffs’ request for a prelim inary injunction order and Defendants’ opposition thereto have been fully briefed by the parties in conn ection with Plaintiffs’ Motion for Partial Summ ary Judgment (Docs. 12 and 12-1). In addition, Plaintiffs’ request is supported by a m emorandum brief f iled contemporaneously herewith. A proposed order is also filed contemporaneously herewith.
Plaintiffs respectfully request oral argument on the motion. Respectfully submitted this 11th day of March, 2014,
s/ Michael J. Norton Michael J. Norton ALLIANCE DEFENDING FREEDOM 7951 E. Maplewood Avenue, Suite 100 Greenwood Village, CO 80111 720-689-2410 (303) 694-0703 (facsimile) mjnorton@alliancedefendingfreedom.org Attorneys for Plaintiffs
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Case 1:13-cv-03263-MSK-KMT Document 33 Filed 03/11/14 USDC Colorado Page 3 of 3 CERTIFICATE OF SERVICE
The undersigned counsel for Plaintiffs, Michael J. Norton, hereby certifies that, on the 11th day of March, 2014, the foregoing was served on all parties or their counsel of record through the Court’s CM/ECF system, all of whom are registered users, to wit:
bradley.p.humphreys@usdoj.gov s/ Michael J. Norton Michael J. Norton
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 Case 1:13-cv-03263-MSK-KMT Document 33-1 Filed 03/11/14 USDC Colorado Page 1 of 45
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Marcia S. Krieger
Civil Action No. 1:13-cv-03263-MSK-KMT FELLOWSHIP OF CATHOLIC UNIVERSITY STUDENTS, a Colorado non-profit corporation, et al.,
Plaintiffs, v. KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al., Defendants.
BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 1:13-cv-03263-MSK-KMT Document 33-1 Filed 03/11/14 USDC Colorado Page 2 of 45
TABLE OF CONTENTS Table of Authorities .............................................................................................................. iv Introduction .............................................................................................................................1 Factual Background ................................................................................................................2
A. Plaintiffs’ Religious Beliefs .................................................................................2 B. Congress generally requires preventive services coverage in the ACA, but not
contraceptives/abortifacients and not violations of conscience ............................2 C. Defendants force FOCUS to provide or contract for
contraceptives/abortifacient coverage in its health plan .......................................4 1. First unacceptable option ................................................................................4 2. Second unacceptable option............................................................................5 3. Third unacceptable option...............................................................................6 4. Fourth unacceptable option.............................................................................6 D. Congress refrains from applying the Mandate to tens of millions of women.......7 E. The Mandate forces Plaintiffs to violate their beliefs or pay massive fines .........................................................................................................8 Argument ................................................................................................................................8 A. Plaintiffs Have Demonstrated a Likelihood of Success on the Merits ..................9 1. The Mandate violates RFRA (First Claim for Relief). ..................................9
a. There should be no dispute about religious exercise or strict scrutiny ....................................................................................................10
b. The Mandate substantially burdens Plaintiffs’ religious exercise ..........10 i. Most courts, including the Tenth Circuit, agree ................................11
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ii. Defendants’ then require Plaintiffs to keep their religious objections to themselves...................................................................14
iii. The Mandate substantially burdens Plaintiffs’ religious exercise ............................................................................................15
B. The Mandate violates the Free Exercise Clause (Second Claim for Relief) .......18 1. The Mandate is selective, not generally applicable ......................................18 2. The Mandate is not neutral towards religion ................................................19
C. The Mandate violates the Establishment Clause (Third Claim for Relief).. ......22 1. Defendants’ narrow religious exemption.......................................................23 2. FOCUS does not qualify as an “integrated auxiliary” ...................................23 3. Defendants’ make theological judgments in their “accommodation” ...........24 4. Defendants’ reject the idea that for-profit corporations can be exempt.........25 5. Defendants’ have arbitrarily exempted “grandfathered” plans......................25 6. Defendants’ have exempted “health sharing ministries” ...............................25 7. Defendants’ have exempted Anabaptists .......................................................26 8. Defendants’ arbitrary exemptions amount to “religious gerrymandering.” ...........................................................................................26
D. The Mandate violates the Free Speech Clause (Fourth Claim for Relief) .........28 1. The Mandate impermissibly compels speech ..............................................28 2. The Mandate impermissibly censors speech................................................29 3. The Mandate cannot survive strict scrutiny .................................................31
E. Plaintiffs Are Entitled to a Preliminary Injunction.............................................31 1. Plaintiffs Will Suffer Irreparable Harm Absent an Injunction.....................31 2. The Balance of Equities Strongly Favors Plaintiffs.....................................32 3. The Public Interest Would Be Served by a Preliminary Injunction.............33
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Case 1:13-cv-03263-MSK-KMT Document 33-1 Filed 03/11/14 USDC Colorado Page 4 of 45 Conclusion ............................................................................................................................33 Certificate of Service ............................................................................................................35
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TABLE OF AUTHORITIES
Cases
Abdulhaseed v. Calbone, 600 F.3d 1301 (10th Cir. 2010) .............................................................................15
Alexander v. United States, 509 U.S. 544 (1993)...............................................................................................30
Archbishop of Washington, 2013 WL 6729515 at *22 ................................................................................12, 28
Attorney General of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769 (10th Cir. 2009) .................................................................................9
Ave Maria Foundation v. Sebelius, No. 2:13-cv-15198 (E.D. Mich. Dec. 31, 2013) ....................................................11
Axson-Flynn & Johnson, 356 F. 3d 1277 (10th Cir. 2004) .............................................................................22
Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004).............................................................................19, 21
Braunfeld v. Brown, 366 U.S. 599 (1961).........................................................................................14, 20
Brown v. Borough of Mahaffey, 35 F.3d 846 (3d Cir. 1994).....................................................................................21
Catholic Diocese of Beaumont v. Sebelius, No. 1:13-cv-709-RC (E.D. Tex. Dec. 31, 2013)....................................................11
Catholic Diocese of Nashville v. Sebelius, No. 13-6640 (6th Cir. Dec. 31, 2013) ....................................................................11
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ......................................................................................... 18-21
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .............................................................................22
Diocese of Fort Wayne-S. Bend, Inc. v. Sebelius, No. 1:12-cv-159 (N.D. Ind. Dec. 27, 2013) ...........................................................11
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E. Texas Baptist University v. Sebelius, 2013 WL 6838893 (N.D. Tex. Dec. 27, 2013) ......................................................11
Employment Division Department of Human Resource of Oregon v. Smith, 494 U.S. 872 (1990)......................................................................................... 18-21
Fowler v. Rhode Island, 345 U.S. 67 (1953)...........................................................................................19, 20
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999) ...................................................................................18
Geneva College v. Sebelius, No. 2:12-cv-0027 (W.D. Pa. Dec. 23, 2013) .........................................................11
Gilardi v. Sebelius, 733 F.3d 1208 (D.C. Cir. 2013) .......................................................................11, 20
Gillette v. United States, 401 U.S. 437 (1971)...................................................................................19, 20, 26
Grace Schools v. Sebelius, No. 3:12-CV-459 (N.D. Ind. Dec. 27, 2013) .........................................................11
Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) ...................................................................................21
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)...............................................................................................28
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) ...........................................................................11, 20
Larson v. Valente, 456 U.S. 228 (1982).............................................................................22, 23, 25, 26
Legatus v. Sebelius, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013) ....................................................11
Little Sisters of the Poor Home for the Aged v. Sebelius, No. 13A691 (S. Ct. Dec. 31, 2013) (Sotomayor, J.) ............................................. 10
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Michigan Catholic Conference v. Sebelius, No. 13-2723 (6th Cir. Dec. 31, 2013) ....................................................................11
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)...............................................................................................30
Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012).............................................................32, 33
New York Times v. United States, 403 U.S. 713 (1971)...............................................................................................30
Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir. 2005) .............................................................................33
Persico v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013) .......................................................11
Priests for Life v. U.S. Department of Health and Human Services, No. 13-5368 (D.C. Cir. Dec. 31, 2013)..................................................................11
R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992)...............................................................................................30
Reaching Souls International, Inc. v. Sebelius, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013)............................................ passim
Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781 (1988)...............................................................................................31
Roman Catholic Diocese of Fort Worth v. Sebelius, No. 4:12-cv-00314 (N.D. Tex. Dec. 31, 2013) ......................................................11
Roman Catholic Archdiocese of New York v. Sebelius, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013) .................................................11, 16
Roman Catholic Archbishop of Washington v. Sebelius, No. 13-5371 (D.C. Cir. Dec. 31, 2013)..................................................................11
Roman Catholic Archbishop of Washington v. Sebelius, 2013 WL 6729515 (D.D.C. Dec. 20, 2013).....................................................12, 28
Sharpe Holdings, Inc. v. United States Department of Health & Human Services, No. 2:12-cv-92 (E.D. Mo. Dec. 30, 2013) .............................................................11
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Sherbert v. Verner, 374 U.S. 398 (1963)...............................................................................................15
Southern Nazarene University v. Sebelius, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013)....................................................11
Tenafly Eruv Association v. Borough of Tenafly, 309 F.3d 144 (3rd Cir. 2002) .................................................................................19
Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981)...............................................................................................17
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 624 (1994).........................................................................................28, 30
University of Notre Dame v. Sebelius, 2013 WL 6804773 (N.D. Ind. Dec. 20. 2013) .................................................11, 12
Walz v. Tax Community, 397 U.S. 664 (1970) ..............................................................................................22
West Virginia State Board of Education v. Barnette, 319 U.S. 624 ..........................................................................................................28
Wisconsin v. Yoder, 406 U.S. 205 (1972).........................................................................................14, 15
Wooley v. Maynard, 430 U.S. 705 (1977)...............................................................................................28
Zubik v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013) ......................................................11
Statutes 26 U.S.C. § 1402(g)(1) .........................................................................................................26 26 U.S.C. § 4980D ............................................................................................................6, 15 29 U.S.C. § 1132.....................................................................................................................6 29 U.S.C.A. § 1002(16)(A)(i) ...............................................................................................13
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42 U.S.C. § 18011...............................................................................................................3, 7 42 U.S.C. § 2000bb(b) ..........................................................................................................17 42 U.S.C. § 2000bb-1 .............................................................................................................9 42 U.S.C. § 2000bb-1(a) .......................................................................................................10 Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) ..........................................1 Regulations 26 C.F.R. § 1.6033-2(h) ........................................................................................................23 26 C.F.R. § 54.9815-2713A..............................................................................................5, 28 29 C.F.R. § 2510.3-16.......................................................................................................5, 28 29 C.F.R. § 2590.715–2713 ..........................................................................................3, 5, 12 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A)&(B)....................................................................13 45 C.F.R. § 147.131 ....................................................................................................3, 23, 24 75 Fed. Reg. 34,538 ................................................................................................................7 76 Fed. Reg. 46,623 & n.4 ......................................................................................................7 76 Fed. Reg. 46,621 ................................................................................................................3 77 Fed. Reg. 8,725 (Feb. 15, 2012) ........................................................................................3 78 Fed. Reg. 39,887 ..................................................................................................24, 23, 24 78 Fed. Reg. 39,894 ..........................................................................................................5, 24 78 Fed. Reg. 39,870 (July 2, 2013)......................................................................................1,3 78 Fed. Reg. 39,879 .......................................................................................5, 12 , 13, 28, 29
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Other Authorities EBSA Form 700, Dep’t of Labor,
attached as Exhibit 1, available at http://www.dol.gov/ebsa/pdf/reventiveserviceseligibleorganizationcertification form.pdf ......................................................................................................................5 ERISA § 3(16)(A)(i) .............................................................................................................13 HHS, Guidance on the Temporary Enforcement Safe Harbor (updated June 28, 2013), available at http://www.cms.gov/CCIIO/Resources/Regulations-andGuidance/Downloads/preventive-services-guidance-6-28-2013.pdf ..........................8 HRSA, Women’s Preventive Services Guidelines (Aug. 1, 2011), available at Http://ww.hrsa.gov/womensguidelines/ .................................................3 Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps 109–10 (2011), available at http://www.nap.edu/catalog.php?record_id=13181 ...................3 Resp’t Memo. in Opp. at 3, Little Sisters of the Poor Home for the Aged v. Sebelius, S. Ct. No. 13A691 (filed Jan. 3, 2014) ................................................................4, 24
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INTRODUCTION Plaintiff Fellowship of Cat holic University Students (“FOCUS”) and the individual Plaintiffs Curtis A. Martin, Craig Miller, Br enda Cannella, and Cindy O’ Boyle seek preliminary injunctive relief against the Patient Protec tion and Affordable Care Act’s (“ACA”) preventive services mandate and the accom panying series of federal regulations (the “Mand ate”). These laws force Plaintiffs to violate their sincerely held religious beliefs and contract, arrange, pay, or refer or facilita te, contrary to their sincerely held religious beliefs, contraceptives and abortifacient drugs and devices and related education and counseling in FOCUS’s em ployee health plan. The facts are set forth in detail in Plaintiffs’ original Verified Complaint (Doc. 1) filed on December 3, 2013, Plaintiffs’ First Am ended Verified Complaint (Doc. 10) filed on Dece mber 16, 2013, and Plaintiffs’ Motion for Partial Summary Judgment (Doc. 12) filed January 15, 2014, each of which is incorporated herein by th is reference. Plaintiffs’ original Verified Complaint and First Amended Verified Complaint (“VC”) are sworn affidavits and thus serve as evidence in support of Plaintiffs’ motion for preliminary injunction. Defendants’ Mandate requires coverage of contraceptives /abortifacients and re lated services in employee health plans maintained by religious non-profit organizations, like FOCUS, for plans that commence on or after January 1, 2014. See 78 Fed. Reg. 39,870 (July 2, 2013). For FOCUS, mandated coverage of these objectionable drugs, devices, and services will be required in FOCUS’s next plan which commences on July 1, 2014. The Mandate requires religious organizations, including those that are self-insured like FOCUS, to violate their religious beliefs by contracting, arranging, paying, or referring or facilitating contraceptive/abortifacient coverage
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or face massive fines of as much as $16 million and other penalties for non-compliance with the Mandate. VC, ¶ 13, 62-149.
Either the ACA itself or Def endants’ regulations im plementing the preventive services requirements of the ACA have resulted in m assive exemptions to the Mandate, including for certain religious objectors, e.g., churches and “integrated auxiliaries,” grandfathered plans, small businesses, and others. The net e ffect of these exemptions is that h ealth insurance policies covering tens of m illions of Am ericans are exempt, either for secu lar reasons or because the employer falls in the narrow religious exemption, while FOCUS does not and thus will be forced to either comply with the Mandate in violation of its religious belief s or pay steep fines of as much as $16 million. VC, ¶¶ 1-2, 6-13.
FACTUAL BACKGROUND A. Plaintiffs’ Religious Beliefs. In accord with nearly 2,000 years of consis tent Catholic teaching, Plaintiffs believe, affirm, and teach that each and every hum an person is created in the im age of God and that it is contrary to God’s will to inte rfere with hum an conception with contraceptives or to destroy innocent human life by abortion or by the use of abortion-inducing drugs and devices. Thus, Plaintiffs hold that it is immoral to intentionally participate in, pay for, train others to engage in, enable or otherwise sup port or facilitate access to the objectiona ble drugs, devices, and related services. VC, ¶¶ 5, 18-22, 30-55.
B. Congress generally requires preventive services coverage in the ACA, but not contraceptives/abortifacients and not violations of conscience.
In March 2010, Congress passed the ACA. . VC, ¶¶ 62-63. The ACA requires health plans to ab ide by m ultiple rules benefitting patients, such as th e requirement that plans cover
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dependents until age 26. 42 U.S.C. § 18011(3)–(4). But the contraceptive/abortifacient coverage

required by Defendants’ Mandate and challenged here is not one of those statutory requirements.

Id. at § 300gg-13(a)(4). VC, ¶ 65.

To define “ preventive services for wom en,” Defendant U.S. Department of Health and

Human Services (“HHS”) selected a private entity, the Institute of Medicine (“IOM”) to define

the drugs, devices and services that should comp rise “preventive servi ces.” IOM did so and

IOM’s definition was adopted by HHS. See HRSA, Women’s Preventive Services Guidelines

(Aug. 1, 2011), available at http://www.hrsa.gov/womensguidelines/ (last visited Jan. 10, 2014).

The IOM definition, adopted as Defendants’

Mandate, require that all FDA-approved

contraceptives, sterilization procedures, and related counseling be included in the wom en’s

preventive services mandate. See Inst. of Med., Clinical Preventive Services for Women: Closing

the Gaps 109–10 (2011), available at http://www.nap.edu/catalog.php?record_id=13181 (last

visited Jan. 9, 2014); see also 29 C.F.R. § 2590.715–2713 (referencing 45 CFR 147.131(a)); 77

Fed. Reg. 8,725 (Feb. 15, 2012). These IOM guideline s, the adm inistrative adoption of these

IOM guidelines by Defendants, and the attendan t penalties enacted by Defendants for their

violation, form “the Mandate” being challenged here. VC, ¶¶ 78-81.

The ACA empowered Defendants to enact “co mprehensive” exemptions to the Mandate;

but provided no guidance as to what should be included in or excluded from such exemptions. 76

Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). Defendants deci ded to exempt only churches and their

integrated auxiliaries from the Mandate. See 45 C.F.R. § 147.131 (2013); see generally 78 Fed.

Reg. 39,870 (July 2, 2013). Defendants did so based on the rationale that “[h]ouses of worship

and their integrated auxiliaries that object to contraceptive c overage on religious grounds are

more likely than other e mployers to e mploy people of the sam e faith who share the sam e

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objection.” 78 Fed. Reg. at 39,887. VC, ¶¶ 92-97. Defendants offered no evidence to support this speculation, and refused to extend an exem ption to quintessential religious non-profits such as FOCUS even though FOCUS’s e mployees’ beliefs ar e congruent with the beliefs of FOCUS. VC, ¶¶ 13, 19-22, and 55.
Furthermore, Defendants decided not to impose Mandate penalties on the plan administrators of certain self -insured, non-profit enti ties that are exem pt from ERISA because they are in a “church plan.” See Resp’t Memo. in Opp. at 3, Little Sisters of the Poor Home for the Aged v. Sebelius, S. Ct. No. 13A691 (filed Jan. 3, 2014) (stating that church plans are “exempt from regulation” under E RISA). Defendants essentially arbitr arily “exempted” these entities even though these entities are neither churches nor integrated auxiliaries of churches. See 78 Fed. Reg. at 39,887.
However, Defendants have refused to exem pt self-insured non-profit plans such as FOCUS’s plan, even if they are identically situ ated to religious non-prof it entities covered by non-ERISA “church p lans”—simply because F OCUS’s plan does not happen to q ualify under that ERISA category. VC, ¶¶ 127-132.
C. Defendants force FOCUS to provide or cont ract for contraceptive/abortifacient coverage in its health plan.
To coerce non-profit, non-church, ERISA-governed plans such as FOCUS’s plan to cover objectionable drugs, devices, and services, Defenda nts created what Defe ndants euphemistically call an “accommodation” (not an exem ption, and not a withholding of penalties). See generally 78 Fed. Reg. 39,870. Under Defendants’ “accommodati on,” Plaintiffs have four unaccep table options relating to FOCUS’s health coverage insurance to its employees.
1. First unacceptable option. FOCUS has the “option” of violating its sincerely held religious beliefs by taking specific
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action to comply fully with the Mandate and include coverage of contraceptives/abortifacients in FOCUS’s plan. 29 C.F.R. § 2590.715–2713 (referencing 45 C.F.R. 147.131(a)).
2. Second unacceptable option. Plaintiffs have the “option” of signing the government’s “certification” form and delivering it to its th ird party p lan administrator (“TPA”). See EBSA Form 700 ( Attached as Exhibit 1). This governm ent form: (i) it expresses a religious objection to contraceptive/abortifacient coverage, id. at 1, and (ii) it declares “[ t]he obligations of the third party administrator [to provide contraceptive/abortifacient payments] are set forth in 26 C.F.R. § 54.9815-2713A, 29 C.F.R. § 2510.3-16, and 29 C.F.R. § 2590.715-2713A. This certification is an instrument under which the plan is operated.” EBSA Form at 2; see also 78 Fed. Reg. at 39,894–95; 29 C.F.R. § 2590.715–2713A. If executed and delivered by FO CUS to its TPA, FOCUS am ends its insurance plan and creates, assigns, contracts for, and arranges for legal “ob ligations” for its TPA. The execu ted government form thus If FOCUS executes and de livers the government form, it thereby creates legal obligations requiring its TPA to: (a ) resign as FOCUS’s TPA if the TPA objects to providing the required contracep tive/abortifacient coverage; (b) reimburse FOCUS’s employees and plan beneficiaries for any contraceptive/abo rtifacient drugs, devices or services obtained b y them; or (c) be subject to the Mand ate’s fines and penalties if the TPA declin es to comply with the Mandate. 78 Fed. Reg. at 39,879–80, 39,894–95. None of these “obligations” may be legally required by the governm ent of either FOCUS or its TPA unless FOCUS executes and delivers the government’s form. See 78 Fed. Reg. at 39,879–80. The executed governm ent form also enables FOCUS’s TPA to obtain governm ent payments for the TPA’s costs of coverage of contraceptives/abortifacients. 78 Fed. Reg. at 39,879.
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The executed governm ent form thus constitute s an am endment to or part of FOCUS’s own health insurance plan. Roman Catholic Archbishop of Washington v. Sebelius , 2013 W L 6729515, at *22 (D.D.C. Dec. 20, 2013) (quoting the government’s own concession that “[i]n the self-insured case, technically, the contraceptive coverage is part of the plan”).
As if this were not en ough, the Mandate also chills FOCUS’s speech by requiring that Plaintiffs “not, directly or i ndirectly, seek to interf ere with a third party administrator’s arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not , directly or indire ctly, seek to influence the third party administrator’s decision to make any such arrangements.” 29 C.F.R. § 2590.715–2713A. But for this prohibition, FOCUS would in struct its TPA not to provide contraceptive/abortifacient coverage to its employees.
3. Third unacceptable option. Plaintiffs could continue to provide its em ployees with generous, non-abortifacient, health plan benefits as are now provided and that the employees want, but openly violate the Mandate by refusing to provide coverage of contraceptive/abortifacient drugs, devices, and services. That would trigger the Mandate’s harsh penalties, including fines of up to $100 per day ($36,500 per year) per plan participant. 29 U.S.C. § 1132; 26 U.S.C. § 4980D. In FOCUS’s case, such fines could am ount to $16 m illion per year – more than one-h alf of FOCUS’s average annual budget.
4. Fourth unacceptable option. Plaintiffs could cease providing its employees w ith health insurance altogether. To do so would violate Plaintiffs’ religi ous conviction to prom ote and provide for the spiritual and physical well-being of FOCUS’s employees and their fam ilies, and would m ake it far m ore
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difficult, if not impossible, to hire and keep good employees. VC, ¶¶ 183-184. D. Congress refrains from applying the Mandate to tens of millions of women. Despite Defendants’ refusal to exe mpt FOCUS from the Mandate, they and Congress
decided that the preventive serv ices requirement need not be applied to all em ployee health insurance plans. In addition to the exem ptions listed above, the ACA withholds the Mandate from grandfathered plans (those that have made minimal changes since March 23, 2010). 42 U.S.C. § 18011; 76 Fed. Reg. at 46,623 & n.4. The government projects that these plans, even as they may reduce in number over tim e, will continue to exclude coverage for tens of millions of women. 75 Fed. Reg. 34,538, 34,540–53 & tbl. 3 (June 17, 2010). The ACA declares that these employers have a “righ t to maintain existing coverage” falling short of the Mandate, 42 U.S.C. § 18011, even if they m ake certain ch anges that raise employees’ costs, see generally 75 Fed. Reg. 34,538. VC, ¶¶ 7, 193, 195-7, and 241.
The Mandate also does not reach members of certain Anabaptis t congregations or participants in health sharing ministries. 26 U.S.C. § 5000A(d)(2)(A) & (B).
Virtually every week, it seems, there is yet another exemption created to the requirements of the ACA and the Mandate. For example, in recent days, th e government has arb itrarily extended the tim e by which nonconfor ming health insurance plans must be brought into compliance. On March 6, 2014, Defendant Depa rtment of Health and Human Services announced that health insurance plans that were supposed to be canceled by Obamacare by 2014 may be sold through October 2016 in states that approve of the extension. T his essentially extends some non-compliant non-grandfathered plans until 2017.
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E. The Mandate forces plaintiffs to violate their beliefs or pay massive fines.

Defendants delayed the imposition of the Mandate on non-exempt non-profit groups until

their first plan year that begi ns on or after January 1, 2014. HHS, Guidance on the Temporary

Enforcement Safe Harbor

(updated June 28, 2013),

available at

http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/preventive-

services-guidance-6-28-2013.pdf (last visited Jan. 10, 2014). For FOCUS, that m akes it subject

to the Mandate starting on and after July 1, 2014. VC ¶¶, 59, 61, 135, 138, 181, 289, 291.

This Court is Plaintiffs’ only recourse from the Mandate’s infringement of their religious

freedom. Plaintiffs’ health insurance plan does not qualify for the variety of secular or religious

exemptions Defendants and federal law have arbitrarily chosen to provide from the Mandate.

Plaintiffs are instead su bject to the government’s “accommodation” for objecting religious non -

profits, forcing them to contract and arrange, pursuant to its contra ct with its TPA, for coverage

of these objectionable contracep tive/abortifacient drugs, devices , and services. Defendants ’

“accommodation” therefore changes nothing for Plaintiffs.

Plaintiffs have no adequate rem edy at law. The Mandate blatantly violates longstanding

religious conscience protections found in federal statu tes and the U.S. Constitu tion. Unless this

Court orders preliminary injunctive relief to Plaintiffs before May 15, 2014, Plaintiffs will suffer

irreparable harm. Relief is required by this date so as to ena ble Plaintiffs to implement any plan

amendments and to provide necessary notices to covered employees before the July 1, 2014 start

date of the new plan year.

ARGUMENT

Determination of the entry of a prelim inary injunction turns on four factors: (1) the

likelihood of success o n the m erits; (2) the lik elihood that the m ovant will suffer irrep arable

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harm in the absence of preliminary relief; (3) whether the balance of equities tips in the movant’s favor; and (4) whether the injunction is in the public interest. Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009). Each factor favors the gr ant of injunctive relief to Plaintiffs.
A. Plaintiffs Have Demonstrated a Likelihood of Success on the Merits. 1. The Mandate violates RFRA (First Claim for Relief). RFRA provides that the “[g]ove rnment shall not substantially burden a person’s exercise
of religion, even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb-1 (2012). Such a burden is only perm issible if the government proves that it: “(1) is in furtherance of a com pelling government interest; and (2) is the least restri ctive means of furthering that compelling government interest.” Id.
The Tenth Circuit established the fra mework for analyzing RFRA c laims in Hobby Lobby. The initial inquiry requires the court to (1) “identify the religious belief in th[e] case,” (2) “determine whether th[e] belief is sincere, ” and (3) “turn to the question of whether the government places substantial pressure on the relig ious believer.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1125-26 (10th Cir. 2013), cert. granted, No. 13-354, 2013 WL 5297798 (Nov. 26, 2013). If there is such substantial pressu re, the government action will then be held to strict scrutiny. Id. at 1143; see also 42 U.S.C § 2000bb-1.
The Tenth Circuit concluded in Hobby Lobby that the Mandate violated RFRA because it substantially pressured the Hobby Lobby plaintiffs, including the i ndividual named plaintiffs, to violate their sincere religious beliefs against facilitating access to abortifacient drugs and devices and because it could not satisfy strict scrutiny. Id. at 1140–44.
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a. There should be no dispute about religious exercise or strict scrutiny. RFRA defines “exercise of religion” to incl ude “any exercise of religion, whether or not compelled by, or central to, a system of re ligious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc5(7)(A). There should be no dispute that FOCU S, as a religious non- profit entity, and the individual Plaintiffs, as natu ral persons, are capable of exer cising religious beliefs. Their objection to providing or facilitating coverage of contracep tive/abortifacient drugs, devices or services through FOCUS’s health insurance plan, either stra ightforwardly or through the “accommodation,” is an exercise of religion. The government does not dispute the sincerity of Plaintiffs’ religious beliefs nor does it dispute that religious non-prof its like FOCUS may exercise reli gion. Moreover, in related cases in this Circuit, Defendants have “concede[d] that, under the holding of Hobby Lobby, the federal government cannot satisfy the compelling interest test.” Reaching Souls Int’l, Inc. v. Sebelius, No. 5:13-cv-1092, 2013 WL 6804259, at *6 (W.D. Okla. Dec. 20, 2013). b. The Mandate substantially burdens Plaintiffs’ religious exercise. Under RFRA, courts m ust first assess whether the challenged law im poses a “substantial[] burden” on the plaintiff’s sincere “exercise of religion.” 42 U.S.C. § 2000bb-1(a). Here, though the government disagrees, the Mandate imposes a substantial burden on Plaintiffs’ religious exercise by forcing them to do precisely what their religion forbids: facilitate access to contraceptive/abortifacient drugs, devices or services.
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i. Most courts, including the Tenth Circuit, agree.
In the vast m ajority of non-profit organization challenges to this Mandate, the plaintiffs
have received preliminary injunctive relief under RFRA.1
Hobby Lobby’s finding that the Mandate substantially burdens religious exercise strongly
suggests that the sam e outcome should result here . Plaintiffs challenge the sam e Mandate that
was challenged in Hobby Lobby, and object to prov iding contraceptive/abortifacient drugs,
devices, and services to its em ployees and their dependents . Hobby Lobby , 723 F.3d at 1137
(“Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the
government has applied substantial pressure on th e claimant to violate that belief.”). In Hobby
Lobby, the Tenth Circuit held that “this dilemm a created by the statu te” met the “threshold
1 See Little Sisters of the Poor Home for the Aged v. Sebelius, No. 13A691 (S. Ct. Dec. 31, 2013) (Sotomayor, J.) (tem porary injunction for hundreds of non-prof it religious groups); Michigan Catholic Conference v. Sebelius , No. 13-2723 (6th Cir. D ec. 31, 2013) (injunction pending appeal); Catholic Diocese of Nashville v. Sebelius , No. 13-6640 (6th Cir. Dec. 31, 2013) (injunction pending appeal); Roman Catholic Archbishop of Washington v. Sebelius , No. 135371 (D.C. Cir. Dec. 31, 2013) (injunction pending appeal); Priests for Life v. U .S. Dep’t of Health and Human Servs. , No. 13-5368 (D.C. Cir. Dec. 31, 2013) (injunction pending appeal); Roman Catholic Diocese of Fort Worth v. Sebelius, No. 4:12-cv-00314 (N.D. Tex. Dec. 31, 2013) (granting injunctive relief to the University of Dallas); Catholic Diocese of Beaumont v. Sebelius, No. 1:13-cv-709-RC (E.D. Tex. Dec. 31, 2013); Ave Maria Foundation v. Sebelius, No. 2:13-cv-15198 (E.D. Mich. Dec. 31, 2013) (granting temporary restraining order to religious non-profits because the regulations “likely substantially burden” their religious exercise); Sharpe Holdings, Inc. v. United States Dep’t of Health & Human Servs., No. 2:12-cv-92 (E.D. Mo. Dec. 30, 2013) (granting injunctive relief to religious non-prof it parties CNS Intern ational Ministries and Heartland Christian College); E. Texas Baptist Univ. v. Sebelius , 2013 WL 6838893 (N.D. Tex. Dec. 27, 2013); Grace Schools v. Sebelius, No. 3:12-CV-459 (N.D. Ind. Dec . 27, 2013); Diocese of Fort Wayne-S. Bend, Inc. v. Sebelius, No. 1:12-cv-159 (N.D. Ind. Dec. 27, 2013); Southern Nazarene University v. Sebelius, 2013 WL 6804265 ( W.D. Okla. Dec. 23, 2013); Geneva College v. Sebelius, No. 2:12-cv-0027 (W.D. Pa. Dec. 23, 2013); Reaching Souls Int’l, Inc. v. Sebelius, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013); Legatus v. Sebelius, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013); Roman Catholic Archdiocese of New York v. Sebelius, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013); Persico v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013); Zubik v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013). But see Univ. of Notre Dame v. Sebelius, No. 3:13-cv-01276, 2013 WL 6804773 (N.D. Ind. Dec. 20. 2013).
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showing regarding a substantial burden.” Id. at 1138, 1141. See also Korte v. Sebelius , 735 F.3d 654, 683 (7th Cir. 2013) (sam e); Gilardi v. S ebelius, 733 F.3d 1208, 1218 (D.C. Cir. 2013) (same); Southern Nazarene Univ. v. Sebelius, 2013 WL 6804265, at *9 (W .D. Okla. Dec. 23, 2013) (“The governm ent has put th ese institutions to a choice of either acquiescing in a government-enforced betrayal of sincerely held religious beliefs, or incurring potentially ruinous financial penalties, or electing other equally ruin ous courses of action. That is the burden, and it is substantial.”).
The government admits that ev en under its “accommodation,” coverage of the objectionable drugs, devices, and services will be provided through FOCUS’s plan. Archbishop of Washington, 2013 WL 6729515 at *22 (quoting the governm ent’s concession that “[i]n the self-insured case, tech nically, the contraceptive coverage is part of the plan”). Under that accommodation, because FOCUS is a self-insured ent ity, Plaintiffs are forced to legally obligate their TPA to provide the sa me coverage that FOCUS itself objects to providing. 78 Fed. Reg. at 39,879.
As a result, the Mandate is an example of a quintessential substantial burden: a command to violate one’s religious beliefs. T he Mandate expressly requires FO CUS (which acts through the individual Plaintiffs and others) to either cover contraceptive/abortifacient drugs, devices, and services in its plan, 29 C.F.R. § 2590.715–2713 (referencing 45 CFR 147.131(a)), or designate its TPA as a n ERISA “ plan administrator and claim s administrator solely f or the purpose of providing p ayments for contracep tive services [and abortifacien ts] for participan ts and beneficiaries,” EBSA For m at 2; 29 C.F.R. § 2590.715–2713A. FOCUS is thus required to create these obligations for its TPA by including the recitation of these obligations in FOCUS’s certification form. Id. The coverage that the TPA m ust provide under those obligations will be
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part of, or an a mendment to, FOCUS’s own plan. Id.; see also Archbishop of Washington , 2013 WL 6729515 at *22.
One exception is the decision of a Seventh Circuit panel in University of Notre Dame v. Sebelius, --F.3d---, 201 4 WL 687134 (7th Cir. Feb. 21, 2 014). In Notre Dame, Judge Posner incorrectly concluded that the TP A’s obligations are the result of a designation “[b]y the government” not by the self-insured entity and that even if the self-insured entity did not file the government’s form (or page 2 of it), the self-insur ed’s employees would still be able to force the TPA to provide the objectionable drugs and devices. Id. slip op. at 15, 18.
Both assertions by the Seventh Circuit pane l are false. Indeed, the government has not actually argued that these assertions are correct. Instead, the government’s rules state that, unless FOCUS executes and delivers the governm ent’s form (which legally designates, on page 2 thereof, that the form is a plan “instrument,” i.e., an amendment to the contract between the selfinsured entity and its TPA), the TP A’s obligations do not vest, the gove rnment has no way to enforce the TPA to perform the “obligations,” and FOCUS has breached the Mandate. 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A) & (B). The legal need for FOCUS to be the designator of its TPA’s “obligations” derives from ERISA 3(16)(A)(i) (see 29 U.S.C.A. § 1002(16)(A)(i)), which the government says ( see 78 Fed. Reg. at 39,879) is the app licable provision. That section of ERISA requires a TPA’s coverage obligations to be “specifically so designated by the term s of the instrument under which the plan is operated.” Id. But the “instrument” is a contract between FOCUS and its TPA for the TPA to provide FOCU S’s employees with insurance coverage, so FOCUS is the only one legally capable of ex ecuting such a designati on and authorization. Certainly, the government cannot legally do so. Judge Posner simply erred on this point when he said the government was the designator. The government neither possesses nor claims to possess
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the power or legal authority to designate a TPA to do a nything under ERISA 3(16)(A)(i).

Instead, the governm ent asserts the naked power to force FOCUS t o designate its TPA a s

FOCUS’s assignee to provide coverage of the ob jectionable drugs, devices, and services. It can

only exert leverage against FOCUS because it discriminatorily refuses to give it an ex emption in

the first place.

ii. Defendants then require Plaintiffs to keep their relig ious objections to themselves.

The government gags FOCUS from revoking its coerced designation of its TPA and bans

it from declaring that th e TPA shall not have or fulfill those obligations (as v iolating the “n o

influence” provision set forth in 29 CFR § 2590.715-2713A(b)(3)). FOCUS religiously objects to

being the government’s mouthpiece to prom ote these objectionable drugs, devices, and services

and to being gagged from expressing its religious opposition to providing these objectionable

items in FOCUS’s health insurance plan in wh at amounts to a shell game by which Defendants

require FOCUS to designate and assign, pur

suant to its contrac t with its TPA,

contraceptive/abortifacient coverage obligations to its TPA.

A law substantially burdens the exercise of religion in one of two ways. First it can

compel one “to perform acts undeni ably at odds with f undamental tenets of their religious

beliefs.” Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). Put another way, a law is a substantial

burden on religious exercise if it “m ake[s] unlawful the r eligious practice itself.” Braunfeld v.

Brown, 366 U.S. 599, 606 (1961). Second, a substantia l burden exists wh ere a law places

“substantial pressure on an adherent to m odify his behavior and violate his beliefs.” Thomas v.

Review Bd. of the Ind. Emp’t Sec. Div ., 450 U.S. 707, 718 (1981); see also Hobby Lobby , 723

F.3d at 1141 (government action substantially burdens a religious be lief when it “requires

participation in an activity p rohibited by a sincerely held religious belief,” “prevents

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participation in conduct m otivated by a sincerely he ld religious belief,” or “places substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held religious belief”) (internal citation and q uotation marks omitted). The Man date burdens Plaintiffs’ religious exercise in both ways.
iii. The Mandate substantially burdens Plaintiffs’ religious exercise. The Mandate requires FOCUS, as a part of its self-funded plan, to instruct its TPA to provide coverage of contraceptive/abortifacient drugs, devices, and services without cost-sharing (or else FOCUS must do this its elf, which in a self-insured situation amounts to the same thing). Either action violates FOCUS’s religious beliefs (and they both am ount to the same thing in a self-insured plan). Should FOCUS r efuse to co mply with the Mandate, it would be subject to potential fines of $100 per day per a ffected beneficiary ($36,500 per year), see 26 U.S.C. § 4980D, and ERISA lawsuits in which Defendant Department of Labor seeks to force FOCUS to provide the coverage. 29 U.S.C § 1132. Being forced to “com promise their religi ous beliefs” and pay substantial fines “is precisely the sort of H obson’s choice” that “es tablishe[s] a substantia l burden as a m atter of law.” Hobby Lobby, 723 F.3d at 1141. And penali zing people who refuse to violate their faith is a prototypical substantial burden. Sherbert v. Verner, 374 U.S. 398, 404 (1963) (deprivation of unemployment benefits puts “unm istakable pressure upon [applicant] to forgo [her religious] practice” resulting in “the sam e kind of burden upon the free exercise of relig ion” as a “fin e imposed against appellant for her Saturday worship.”); see also Yoder, 406 U.S. at 208, 218 (fine of five dollars for believers’ ref usal to v iolate their faith “not only severe, but inescapable”); Abdulhaseed v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010) (subs tantial burden exists where government imposes “substantial pressure on an adherent either not to engage in conduct
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motivated by a sincerely held religious belief or to engage in conduct contrary to a sincerely held religious belief, such as where the government presents the plaintiff with a Hobson’s choice – an illusory choice where the only realistically possible course of action tr enches on an adheren t’s sincerely held religious belief.”).
The Mandate also substantially burdens FOCU S in its dec ision to p rovide high-quality and morally acceptable health coverage for its em ployees. FOCUS has r eligious beliefs in favor of caring for its employees, and one way it does so is through its insurance health plan. VC ¶ 61. It cannot drop its employee health insurance pl an without violating its religious beliefs concerning the provision of hea lth insurance coverage and thereby inju ring its em ployees, including the individual Plaintiffs, by depriving them of that plan . To do so would also send its employees into an insurance m arket that is both expensive and m orally treacherous, since the employees would be forced to violate their own pro-lif e religious beliefs because plans they could buy would m ost probably cover contraceptive/ abortifacient drugs, de vices, and services. Dropping the em ployee plan would also harm FOCUS’s ability to attract and keep good employees. All of this amounts to significant pre ssure on FOCUS’s religious exercise as well as the religious exercise of the individual Plaintiffs.
In Hobby Lobby and other cases, the governm ent has argued that the burden under the Mandate is not substan tial because the coverag e is just a form of compensation and plaintiffs themselves are no t being forced to use contraception or abortifacients. But that allegation misunderstands both the facts and the legal standard of substantial burde n. Plaintiffs’ religious objection is not only to the use of the objectionable drugs, devices, and services, but also to being required to actively participate in a schem e to provide its employees with such drugs, devices, and services. VC, ¶¶ 54- 55. “Hobby Lobby and Mardel have drawn a line at providing coverage
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for drugs or devices they consider to induce abortions, and it is not for us to question whether the line is reaso nable.” Hobby Lobby, 723 F.3d at 1141; see also Roman Catholic Archdiocese of New York v. Sebelius, 2013 WL 6579764, at *14 (E.D.N.Y. Dec. 16, 2013) (“Plaintiffs' religious objection is not only to the use of contracep tives, but also to being required to actively participate in a scheme to provide such services”). The accommodation the government requires is to sign a form that is, “in effect, a permission slip.” Southern Nazarene, 2013 WL 6804265, at *8.
As another court in the Tenth Circuit explai ned, the government’s claim that Plaintiffs’ objection to signing the form is “legally flawed and misguided because their participation would not actually facilitate access to co ntraceptive coverage” is “sim ply another varia tion of a proposition rejected by the Tenth Circuit in Hobby Lobby.” Reaching Souls Int’l, 2013 WL 6804259, at *7. In RFRA, “substantial” is a m easure of the governm ent burden, not of the claimant’s religious beliefs or theological culpability. RFRA asks for a “substantial burden,” not a “substantial belief.” 42 U.S.C. § 2000bb(b). The analysis asks “whether the governm ent has applied substantial pressure.” Hobby Lobby, 723 F.3d at 1137. It does not ask how substantial are the plaintiffs’ moral concerns.
The Supreme Court has rejected the idea that the governm ent can second-guess theological judgments of religious claimants. In Thomas, the Court rejected the idea that because Mr. Thomas was not opposed to m anufacturing sheet metal, he was not burdened in the requirement to manufacture tank turrets possibly made from that sheet m etal. “Thomas drew a line, and it is not for us to sa y that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs.” Thomas, 450 U.S. at 715–16. Sim ilarly, the government has no business deciding that FOCUS m ay object to providing contraceptive/abortifacient drugs,
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devices, and services coverage, but its conscience must accept the requirement to legally obligate its TPA to provide that sam e objectionable contraceptive/abortifacient drugs, devices, and services coverage as a part of FOCUS’s own plan.
A. The Mandate violates the Free Exercise Clause (Second Claim for Relief).
The Mandate violates the Free Exercise Clause of the Firs t Amendment because it is neither religiously neutral nor generally applicable, and as discussed above, it fails strict scrutiny. “At a m inimum, the protections of the Free Exercis e Clause pertain if th e law at is sue discriminates against some or all religious belief s or regulates or prohibits conduct because it is undertaken for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 532 (1993).
As discussed above, Plaintiffs exercise religion in their objection to the Mandate. Smith established that burdens on religiously-m otivated conduct are subject to strict scrutiny under the Free Exercise Claus e when a regulation lacks neutrality or general applicability. Employment Div. Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). Both are missing here.
1. The Mandate is selective, not generally applicable. Unlike in Smith, which involved an “across-the-board criminal prohibition on a part icular form of conduct,” 494 U.S. at 884, the Mandate here falls far short of general applicability. The ACA creates a vast system of categori cal exemptions that frees thousands of employers and their employees from the Mandate’s scope as recited in the Establishment Clause analysis, infra. Despite all of these exemptions and non-applications of the Mandate and its penalties, however, the government refuses to exempt objecting non-profits such as FOCUS. Such “categories of selection are of param ount concern when a law has the incidental effect of burdening religious practice.” Lukumi, 508 U.S. at 542. Indee d, “categorical” exclusions
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exacerbate concerns regarding the discrim inatory potential of “‘individualized exem ptions.’” Fraternal Order of Police Newark Lodge No. 12 v. City of Newark , 170 F.3d 359, 365 (3d Cir. 1999) (Alito, J.). Here, t he government’s exemptions for secular and religious reasons, in tande m with its arbitrary decision not to extend an exemption to Plaintiffs, de monstrate that the Mandate is selective, and not comprehensive , in nature. See Lukumi, 508 U.S. a t 543 (noting a lack of general applicability when a regulation “fail[s] to prohibit nonreligious conduct that endangers [the government’s] interests in a similar or greater degree”).
This lack of general appli cability justifies strict scrutiny of the Mandate under the Free Exercise Clause. See id. at 546. The government cannot refuse to extend a system of exemptions “to cases of ‘religious hardship ’ without com pelling reason.” Id. at 537 (quotation omitted); Smith, 494 U.S. at 884 (quotation omitted). But that is precisely what the government seeks to do here. The F irst Amendment “protects religious observers against [suc h] unequal treatm ent.” Lukumi, 508 U.S. at 542 (quotation and alteration omitted); see also Gillette v. United States, 401 U.S. 437, 461 (1971) (“[T]he Free Exercise Clause no doubt has a reach of its own.”).
2. The Mandate is not neutral towards religion. The Mandate is not n eutral because it distinguishes among religious objectors as well as between religious objectors and se cular objectors. A neutra l law “does not target religiously motivated conduct either on its face or as applied in practice.” Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004); see also Fowler v. Rhode Island, 345 U.S. 67, 69 (1953) (holding that the city violated the Free Ex ercise Clause by enforcing an ordinance banning meetings in a park against Jehovah’s W itnesses but exem pting other religious groups). The “governm ent cannot discriminate between religiously m otivated conduct and com parable secularly motivated conduct in a m anner that devalues religious reasons for acting.” Tenafly Eruv Ass’n v. Borough
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of Tenafly, 309 F.3d 144, 169 (3rd Cir. 2002). “The Free Exercise Clause’s mandate of neutrality toward religion prohibits government from deciding that secular motivations are more important than religious motivations.” Id. at 165.
Refusing to exempt Plaintiffs from the Mandate in th e face of num erous exceptions “devalues [their] religious reasons” for objecting to assisting in the destruction of embryonic life. Lukumi, 508 U.S. at 537. Providing secular exemptions “while refusing religious exemptions is sufficiently suggestive of discrim inatory intent so as to trigger heightened scrutiny under Smith and Lukumi.” Fraternal Order of Police , 170 F.3d at 365; see also Fowler , 345 U.S. at 69 (noting the dangers inherent in “the state pref erring some religious groups over this one”). Discrimination is inherent in the Mandate’s de parture from “our happy tradition of avoiding unnecessary clashes with the dictates of cons cience.” Gillette, 401 U.S. at 453 (quotation omitted). The government has available to it a variety of ways to “acco mplish its secular goals without even remotely or incidentally affecting religious freedom .” Braunfeld, 366 U.S. at 608; see Hobby Lobby, 723 F.3d at 1144 (concluding that the Ma ndate fails the least restrictive means requirement); Korte, 735 F.3d at 686–87 (sam e, expanding on least restrictive means analysis); Gilardi, 733 F.3d a t 1222–24 ( same). Indeed, Congress authorized “comprehensive” religious exemptions, see 76 Fed. Reg. at 46,623, yet Defendants chose to exem pt only churches, and to refrain from penalizing many non-profit non-churches’ plans, while denying either to FOCUS.
By engaging in such arbitrary line drawing between religious people and organizations, and by offering secular exem ptions that encompass tens of m illions of women, the government has failed to pursue its proffered objectives “with respect to analogous non-religious conduct,” as well as to identical c onduct by other religious actors whom the government views with a m ore favorable eye. Lukumi, 508 U.S. at 546. The “risks” caused by existing exem ptions from the
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Mandate “are the sam e” as those po sed by the exem ption requested here. See id. at 544. The millions of women covered by grandfathered plans, employees of Anabpatists, and the hundreds of non-profit plans exempt from ERISA have no less of the governm ent’s alleged “need” for the Mandate’s benefits than wom en covered by FOCU S’s plan. Yet those plans are exempt, while FOCUS is required to cover objectionable c ontraceptive/abortifacient drugs, devices, and services in its plan.
The First Am endment prevents Plaintiffs fr om “being singled out for discrim inatory treatment” by the government’s refusal to grant them an exemption that would have no different effect than those already approved. Lukumi, 508 U.S. at 538. Defendants cannot give a nondiscriminatory reason why Plaintiffs’ free exerci se of religion m ust bear the weight of the Mandate when Defendants’ own voluntary m easures place thousands of other e mployers, both religious and nonreligious, and thei r employees outside of its scope. Cf. id. at 544. Because the Mandate hinders “m uch more religious conduct than is necessary in order to achieve the legitimate ends asserted in [its] defense,” it is “not neutral.” Id. at 542; see also Blackhawk, 381 F.3d at 209 (explaining that for a law to be “neutr al” it must “not target religiously m otivated conduct either on its face or as applied in practic e”). This lack of neutrality subjects the Mandate to “the most rigorous of scrutiny.” Lukumi, 508 U.S. at 546.
Finally, it is noteworthy that under the Free Exercise Clause, Plaintiffs need not show that the Mandate imposes a “substan tial” burden on their free exercise rights at all: strict scrutiny applies to a non-generally appl icable or non-neutral law. See Lukumi, 508 U.S. at 546; Blackhawk, 381 F.3d at 209 (Alito , J.) (recogn izing strict scrutiny ap plies once non-general applicability or non-neutrality is established); accord Hartmann v. Stone , 68 F.3d 973, 979 n.3 (6th Cir. 1995), and Brown v. Borough of Mahaffey, 35 F.3d 846, 849 (3d Cir. 1994).
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Because the violation of FOCUS’s religious beliefs includes compelled speech and censorship, FOCUS's Free Exercise Clause claim also triggers st rict scrutiny under the "hybridrights" theory recognized by the Tenth Circuit. The Tenth Circuit will "apply th e hybrid-rights exception to [ Employment Div. v. Smith , 494 U.S. 872, 879 (1990)],"and thus require strict scrutiny, "where the p laintiff establishes a ' fair probability, or a likelih ood,' of success on the companion claim," even if the com panion speech claim might not be "successful." Axson-Flynn v. Johnson, 356 F.3d 1277, 1295-97 (10th Cir. 2004).

B. The Mandate violates the Establishment Clause (Third Claim for Relief).

The Mandate also vio lates the Establishment Clause of the First Am endment. “A set of

rules that “makes explicit and de liberate distinctions between different religious organizations”

in order to burden some and not others violates the Establishment Clause. Larson v. Valente, 456

U.S. 228, 246 n.23 (1982) “By their ‘very nature

,’ the distinctions [a mong religious

organizations] ‘engender a risk of politicizing religion’—a risk, indeed, that h as already been

substantially realized.” Id. at 253 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 695 (1970)). The

Establishment Clause “guard[s] against” government distinctions “inviting undue fragmentation”

among religious groups who “inevitably represent certain points of view . . . in t he political

arena, as ev idenced by the con tinuing debate respecting birth contro l and abortion laws.” Id.

(quoting Walz, 397 U.S. at 695). Instead the governm ent “must treat individual religions and

religious institutions ‘without dis crimination or preference.’” Colorado Christian Univ. v.

Weaver, 534 F.3d 1245, 1257 (10 th Cir. 200 8) (quoting New York Const., art. XXXVIII,

reprinted in 5 THE FOUNDERS’ CONSTITUTION at 75).

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The government’s exemptions, “accommodations ,” and non-enforcement choices create exactly the kind of discriminatory caste system of religious groups that the Establishment Clause prohibits.
1. Defendants’ narrow religious exemption. Despite the “com prehensive” discretion C ongress provided by which Defendants were authorized to exempt all religious objectors, see 76 Fed. Reg. at 46,623; 45 C.F.R 147.131, the government decided that only churches and their integrated auxiliaries count as “religious employers” entitled to an “exemption” from the Mandate, 45 C.F.R. § 147.131. The government’s unsupported rationale for denying this exemption to other objecting religious nonprofits such as FOCUS was that only churches and their integrat ed auxiliaries have em ployees committed to the organization’s beliefs on contraception. See 78 Fed. Reg. at 39,887. This rationale is demonstrably false in this ca se, as evidenced by the presence of the individuals Plaintiffs in this case and their oaths of fidelity to FOCUS and its religious beliefs.
2. FOCUS does not qualify as an “integrated auxiliary.” Defendants’ narrow religious ex emption includes not just churches but their “integrated auxiliaries.” 45 C.F.R. § 147.131. Thus if a church runs a sc hool and does not separately incorporate it, the school is likely exempt; but if a diocese has a separately incorporated religious school it is likely not exempt. Though FOCUS operates under the auspices of th e spiritual beliefs and hierarchy of the Catholic Church, it does not qualify of as an integrated auxiliary because it is not organized as an operation of a specific Catholic Church. The rule which exem pts only integrated auxiliaries and not other re ligious organizations like FOCUS is sim ilar to one r ejected by Larson as an unconstitutional basis to distinguish
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between religious organizations. IR S rules define integrated auxiliaries, in part, based on the percentage of income received from a church. 26 CFR § 1.6033-2(h) (“[n]ormally receives more than 50 percent of its support from ” outside sources). The Court declared in Larson, 456 U.S. at 249, that “we find no substantial support . . . in the record” for the governm ent’s rationale for distinguishing between religious organizations on that basis.
3. Defendants make theological judgments in their “accommodation.” The government subjects objecting, but non-ex empt, religious organizations to a multitiered “accommodation” by which Defendants attempt to dec ide what will satisf y each organization’s conscience. Under the rule , FOCUS is forced to either provide contraceptive/abortifacient coverage itself, 45 C. F.R. § 147.131, or (because it m aintains a selfinsured plan in a contract with its TP A) order its TPA to do s o as a part of FOCUS’s own plan, 78 Fed. Reg. at 39,894-95. Defendants im properly don the role of theolo gical arbiters to determine and decide that this arrangement satisfactory to FOCUS’s religious conscience. Such a rule im poses conflicting and “intrusi ve judgments regarding contested questions of religious belief or practice” in violation of the First Amendment. Weaver, 534 F.3d at 1261. Another kind of non-exem pt religious organization is treated differently. The governm ent chose not to impose its penalties on the plan adm inistrators of self-insured plans of non-profit religious entities that are “chu rch plans” exempt from ERISA. See Resp’t Memo. in Opp. at 3, Little Sisters of the Poor Home for the Aged v. Sebelius, S. Ct. No. 13A691. In this respect, FOCUS’s coerced government designation for m triggers penalties on its T PA for not providing contraceptive/abortifacient coverage, merely because FOCUS does not happen to be enrolled in a self-insured plan that is a “church plan” exempt from ERISA. Th e government actually contradicts its rationale in making this distinction. When it refused to “exempt” both FOCUS and
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“church plan” non-exempt religious groups, the governm ent did so on the basis that all such groups’ employees need to rece ive contraceptive/abortifacient drugs, devices o r services coverage through the accommodation. See 78 Fed. Reg. at 39,887. But under the “church plan” loophole, the governm ent withheld the principal penalty it chos e to use to deliver that exact coverage. The government therefore underm ined the premise that any such organization’s employees need to receive the coverage.
4. Defendants reject idea that for-profit corporations can be exempt. The government deemed religious people in for-profit corporations to not have any claim to religious conscience at all and therefore to be entitled to neither an exem ption nor the accommodation. See Hobby Lobby, passim.
5. Defendants have arbitrarily exempted “grandfathered” plans. Defendants chose to withhold th e Mandate from tens of m illions of women who ar e in grandfathered health plans. FOCUS’s plan does not qualif y for this grandfathered status. Instead FOCUS must comply with the Mandate and include contraceptive/abortifacient drugs, devices or services coverage in its own plan while Def endants have exempted tens of millions of women at thousands of employers from the Mandate.
6. Defendants have exempted “health sharing ministries.” Defendants have exem pted “health sharing m inistries” and their m embers from th e Mandate, provided they have been in existence sin ce December 31, 1999. 26 U.S.C. § 5000A(d)(2)(B). The choice of that date is arb itrary. It appears that the only m inistries that meet this qualification are thr ee Evangelical Protestant groups : Samaritan Ministries, MediShare, and Christian Health care Ministries. Catholic or other relig ious denominations that wish to establish health sh aring ministries are prohibited from doing so. Larson found an
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Establishment Clause v iolation in the contex t of a schem e that sim ilar had the effect of denominational discrimination. 456 U.S. at 252–55.
7. Defendants have exempted Anabaptists. The ACA exem pts members of certain his toric Anabaptist denom inations from the ACA’s individual m andate to obtain insurance th e result of which is that such denom inations need not d eliver contraceptive/abortifacient drugs, devices, and serv ices coverage to their members. These Anabaptist denominations oppose the acceptance of insurance and have been in existence at all times since December 31, 1950. See 26 U.S.C. § 5000A(d)(2)(A) (referencing 26 U.S.C. § 1402(g)(1)). This adds to the gover nment’s patchwork exemption schem e, which nevertheless refuses to offer an exemption from the Mandate to FOCUS.
8. Defendants’ arbitrary exemptions amount to “religious gerrymandering.” Such “religious gerrym andering” of re ligious believers and organizations is unconstitutional. Larson, 456 U.S. at 255 (quoting Gillette v. United S tates, 401 U.S. 437, 452 (1971)). In Weaver, the Tenth Circ uit held unconstitutional a policy of discrimination among religions that is ve ry similar to the Mandate . The polic y in that c ase attempted to tr eat “pervasively sectarian” educational institutions differently than other religious institutions. Id. at 1250–51. The Mandate here likewise im properly discriminates among religious organizations. It treats them differently based on wh ether they are churches that h ave been exempted from the Mandate, religious non-profits th at are subject to the Mand ate’s coercive “accommodation,” or religious non-profits otherwise exempt from the Mandate. The government explicitly refused to extend its church exem ption to entities su ch as FOCUS based on the incorrect judgment that churches have a greater coincidence of beliefs with their employees. That judgment is of the same brand as a “pervasively sectarian” rule. The Tenth
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Circuit called such line drawing “puzzling and wholly artificia l,” even when the governm ent contended, as it does here, that it was m erely “distinguish[ing] not between types of religions, but between types of institutions.” Id. at 1259–60. The Court held that “animus” towards religion is not required to find a First Amendment violation in the presence of such facial demarcations of discrimination. Id. at 1260.
Under Weaver, therefore, discrim ination because of different types of religious organizations and their religious exercise violates the Co nstitution. Id. at 1256, 1259. The Mandate picks and chooses between different kinds of religious people and practices, respecting some while coercing most others. The governm ent has decided that c overing or ordering coverage of abortifacient item s does not infringe on Plaintif fs’ religious beliefs, while at th e same time it: ex empted tens of millions of women in grandf athered plans; exempted churches even though religious m inistries may have si milar congruence between the beliefs of the organization and its employees (as is obviously th e case here); exem pted churches’ integrated auxiliaries even if those entities engage in Christian ministry indistinct from other non-profits (as is obviously the case here); refrained from applying penalties to plan ad ministrators of selfinsured non-exempt religious groups in “church plans” even t hough the government presumably contends that their employees need the Mandate; refrained from applying the Mandate to health sharing ministries, but prohibited the founding of new health sharin g ministries of the sam e or other denominations; and refr ained from requiring the Ma ndate on certain religious denominations.
This segregation among religious groups is not only discriminatory, it is largely arbitrary and irrational. It violates the neutrality and non-entanglement requirements of the Establishment Clause and is therefore unconstitutional.
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C. The Mandate violates the Free Speech Clause (Fourth Claim for Relief). 1. The Mandate impermissibly compels speech.
The Mandate also violates the First Am endment’s protection of the Freedom of Speech by coercing Plaintiffs to engage in 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 ‘i ndividual 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 Am endment protects the ri ght to “decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston , 515 U.S. 557, 573 (1995) (i nternal quotation m arks omitted). Thus, “[l]aws that com pel speakers to u tter or distribu te speech bearing a particular message are subject to the sam e rigorous scruti ny” as those “that suppress, disadvantage, or impose differential burdens upon speech becau se 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 fo ster, in the way [the governm ent] commands, an idea they find morally objectionable.” Wooley, 430 U.S. at 715.
Here, the Mandate unconstituti onally coerces Plaintiffs to speak a m essage they find morally objectionable. It exp licitly requires F OCUS, as a self -insured entity, n ot merely to express its religious objection to the Mandate by signing the governm ent’s form, but it also requires Plaintiffs to explicitly declare (by an individual Plaintiff’s signature to the government’s form) that “[ t]he obligations of the third party adm inistrator [to provide contraceptive/abortifacient drugs, devices, and se rvices] are set forth in 26 C.F.R. § 54.98152713A, 29 C.F.R. § 2510.3-16, and 29 C.F.R. § 2590.715-2713A. This certif ication is an instrument under which the plan is opera ted.” EBSA Form at 2; 29 C.F.R. § 2590.715–2713A.
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The government explained that, by m eans of this speech, FOCUS creates legal obligations in its TPA, as FOCUS’s agent, to p rovide the precis e coverage within its own plan that FOCUS objects to arranging and contrac ting for. 78 Fed. Reg. at 39,879–80; Archbishop of Washington, 2013 WL 6729515 at *22. The government also explained that those legal obligations occur only if FOCUS itself speaks this message, i.e., it is necessarily FOCUS’s own speech, or else it is not operative. 78 Fed. Reg. at 39,879–80. By this coerced speech, FOCUS is fo rced to arrange and contract for its TPA to provide the exact coverage that the g overnment falsely declares FOCUS does not arrange and contract for. 2 This is speech that FOCUS objects to speaking, VC ¶ 214, 217. Thus, the design ation requirement constitutes compelled speech in its pu rest form. It is a straightforward violation of the First Amendment.
2. The Mandate impermissibly censors speech. Second, the Mandate also censo rs FOCUS’s speech. After forcing FOCUS to speak words that contract and arrange for objectionab le “obligations” on its pl an administrator, the Mandate goes on to prohibit FOCUS (and one or m ore of the individual Plaintiffs acting for it) from speaking a con trary message to its plan administrator. The Mandate provides that “[t]he eligible organization m ust not, di rectly or in directly, seek to inte rfere with a third pa rty administrator’s arrangements to provide or arrange separate paym ents for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third
2 In other self-insured cases the governm ent has described the required form as merely an expression of religious objection. As noted above, that description is false. The for m also requires FOCUS to recite the above-quoted desi gnation of “obligations ” language, and that speech contains specific content and legal import well beyond a religious objection. If FOCUS does not recite this “obliga tions” language, the governm ent will impose its full range of penalties. As discussed above, FO CUS also obj ects to the tri ggering context of its forced expression of objection in the form.
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party administrator’s decision to make any such arrangements .” 29 C.F.R. § 2590.715–2713A (emphasis added).
This is a gag rule, prohibiting a Catholic orga nization from speaking its Catholic beliefs. It strikes at the heart of the freedo m of speech enshrined in the Firs t Amendment. It restricts FOCUS’s speech based on its content, i.e., the cont ent of speech that would try to “interfere” o r “influence” someone against provi ding products and services (abo rtifacients, contraceptives, sterilization, and related services) to which FOCUS objects. But for this gag rule, FOCUS would instruct its TPA not to provide such objectionable drugs, devices, and services.
The Mandate is therefore a content-based restriction on speech that is presumptively unconstitutional. Turner, 512 U.S. at 641 (“As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the ba sis of the ideas or views expressed are content based”); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992) (“C ontent-based regulations are presumptively invalid” under the First Amendment).
The Mandate is also an unconstitutional pr ior restraint on speec h. “The term prior restraint is used to desc ribe administrative . . . orders forbidding certain communications when issued in ad vance of the tim e that such communications are to occu r.” Alexander v. United States, 509 U.S. 544, 550 (1993) (int ernal citations omitted). The Supreme Court has declared that “prior restraints on speech . . . are th e most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). “Any system of prior restraints on expression comes to [the Supreme Court] bearing a heavy presumption against its constitutional validity.” New York Times v. United States , 403 U.S. 713, 714 (1971). The Defendants have issued an adm inistrative regulation forbidding Plaintiffs from engaging in
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speech to their TPA. This is “forb idding [of] communications . . . in ad vance.” Alexander, 509 U.S. at 550.
3. The Mandate cannot survive strict scrutiny. The government cannot meet its burden to sati sfy strict scrutiny either for its com pelled speech or for its censo rship of speech. As di scussed above, the governm ent has conceded in similar cases that it fails the compelling in terest test. See Reaching Souls Int’l, 2013 WL 6804259 at *6. The governm ent has not shown any compelling interest to justify burdening FOCUS’s speech. And violating FOCUS’s freedom of speech is not the least restrictive means of pursuing any compelling interest. See also Riley v. Nat’l F ed’n of the Blind of N.C. , 487 U.S. 781, 799–801 (1988) (requiring government efforts in the alternative). E. Plaintiffs Are Entitled to a Preliminary Injunction. 1. Plaintiffs will Suffer Irreparable Harm Absent an Injunction. Plaintiffs seek to continue offering thei r employee insurance plan without providing coverage of contraceptives/abortifacients drugs, devices, and rela ted services, and without being subject to the Mandate’s harsh fines and penalti es, lawsuits, and other liability. Without the requested injunction, Plaintiffs would be coerce d, in violation of their religious rights under RFRA and the First Amendm ent, and thereby caused actual and imminent loss of their religious conscience rights and liberties. Th is is ir reparable injury. Hobby Lobby ruled that irreparable injury is satisfied in the presence of the Mandate’s violation of RFRA and noted that the same is true for constitutional violations. Hobby Lobby, 723 F.3d at 1146. Irrep arable harm is therefore established here as well.
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2. The Balance of Equities Strongly Favors Plaintiffs. The balance of equities strongly favors Pl aintiffs. FOCUS’s plan already o mits contraceptives/abortifacients and related services, and through a “safe harbor” for non-profits the government has already delayed the im pact of the Mandate on FOCUS and other objecting religious non-profits well beyond the Mandate’s application to other entities. The governm ent will suffer m inimal, if any, harm if the injunction is entered for the duration of this case. The government is already withholding application of the Mandate from tens of millions of women in grandfathered plans. It is also withholding enforcement of the Mandate from religious non-profit organizations indistinguishable from FOCUS except that their plans are not subject to ERISA or they are churches or integrated auxiliaries. And Defendants have conceded that in organizations likely to have em ployees that sh are their be liefs on contracep tives/abortifacients and related services (such as is the case with FOCUS), an exemption does not underm ine the government’s interests. Granting pre liminary injunctive relief here will m erely prevent Defendants from enforcing the Mandate against one objecting religious non-profit which em ploys only 450 people. Defendants cannot possibly show that a pplying the Mandate to one en tity and so f ew employees, considering the m assive exemptions it has created, would “substantially injure” Defendants’ or any others’ interests. Any minimal harm in not applying the Mandate against one additional entity, in light of Defendants’ willingness to not enforce it against thousands of others, “pales in co mparison to the poss ible infringement upon Plaintiffs’ constitu tional and statu tory rights.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1295 (D. Colo. 2012), aff’d 2013 WL 5481997 (10th Cir. Oct. 3, 2013). Balanced against this non-injury to Defenda nts is the real and immediate threat to Plaintiffs’ integrity with respect to their s incere religious beliefs. T hey face the imm inent
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prospect of being forced to cover o r order coverage of contraceptives/abortifacients and related services in violation of their sincere religious beliefs, or suffering massive penalties that Defendants obstinately declare they intend to apply. See Reaching Souls Int’l, 2013 WL 6804259 at *8 (finding balance of equities in favor of non-prof it challengers to the Mand ate); Southern Nazarene, 2013 WL 6804265, at *10–*11 (same).
3. The Public Interest Would Be Served by a Preliminary Injunction. The public interest is served by granting Plai ntiffs’ motion for preliminary injunction as fundamental rights protected by the Constitution are at stake. “Vindication of First Am endment freedoms is clear ly in the public in terest.” Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005). The governm ent’s purported interest in “improving the health of women and children and equalizing the coverage of preventive services for women and men so that women who choose to do so can be a part of the workforce on an equal playing field with men . . . are countered, and indeed outweighed, by the public interest in the free exercise of religion.” Newland, 881 F. Supp. at 1295 (in ternal citations omitted). Furthermore, any interest of Defendants in unif orm application of th e Mandate is “underm ined by the creation of exemptions for certain religious organizations and employers with grandfathered health insurance plans and a temporary enforcem ent safe harbor for non-profit organizations.” Id.; see also Reaching Souls Int’l, 2013 WL 6804259 at *8 (finding public interest factor in favor of nonprofit challengers to the Mandate); Southern Nazarene, 2013 WL 6804265, at *11 (same).
Conclusion For the foregoing reaso ns, the Plaintiffs respec tfully request that th is Court grant their motion for preliminary injunction.
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Plaintiffs respectfully request that their motion be set f or oral argument so as to en able Plaintiffs to have a decision by no later than May 15, 2014.
Respectfully submitted this 11th day of March, 2014. Attorneys for Plaintiffs s/ Michael J. Norton Michael J. Norton ALLIANCE DEFENDING FREEDOM 7951 E. Maplewood Avenue, Suite 100 Greenwood Village, CO 80111 720) 689-2410 (303) 694-0703 (facsimile) mjnorton@alliancedefendingfreedom.org
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CERTIFICATE OF SERVICE The undersigned counsel for Plaintiffs, Michael J. Norton, hereby certifies that, on the 11th day of March, 2014, the foregoing was served on all parties or their counsel of record through the Court’s CM/ECF system, all of whom are registered users, to wit: bradley.p.humphreys@usdoj.gov
s/ Michael J. Norton Michael J. Norton
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 Case 1:13-cv-03263-MSK-KMT Document 53 Filed 10/22/14 USDC Colorado Page 1 of 63
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Marcia S. Krieger
Civil Action No. 1:13-cv-03263-MSK-KMT FELLOWSHIP OF CATHOLIC UNIVERSITY STUDENTS, a Colorado non-profit corporation, CURTIS A. MARTIN, CRAIG A. MILLER, BRENDA CANNELLA, and CINDY O’BOYLE,
Plaintiffs, v. SYLVIA BURWELL, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, THOMAS PEREZ, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, JACOB J. LEW, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants,
SECOND AMENDED VERIFIED COMPLAINT AND JURY DEMAND
PLAINTIFFS FELLOWSHIP OF CATHOLIC UNIVERSITY STUDENTS (“FOCUS”), a Colorado non-profit corporation, CURTIS A. MARTIN, CRAIG A. MILLER, BRENDA CANNELLA, and CINDY O’BOYLE, by and through their attorneys with Alliance Defending Freedom, pursuant to the Court’s order directing the filing of an amended complaint (Doc. 49), for their Second Amended Complaint against the Defendants above-named, state as follows:
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I. NATURE OF THE ACTION
1. Plaintiffs seek declaratory and injunctive relief as a result of Defendants’ implementation of the “preventive care and screenings” provisions in the Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 111-148 (March 23, 2010)), and Pub. L. No. 111-152 (March 30, 2010) (the “ACA”) in violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”), the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (the “APA”).
2. Defendants have to date promulgated at least seven different regulations which define “preventive care and screenings” to require FOCUS and other similarly situated nonexempt non-profit religious organizations (except the thousands of employers and individuals that Defendants have exempted) to provide for its employees and their family members or otherwise facilitate free coverage as a part of FOCUS’s health insurance plan of so-called FDAapproved contraceptives, i.e., contraceptives, abortion-inducing drugs and devices, sterilization, and related education and counseling. All statutes, including, without limitation, 42 U.S.C. § 300gg-13, 26 U.S.C. § 4980D, 4980(H), and 29 U.S.C. § 1132, and regulations, rules, and guidelines promulgated by Defendants which implement or interpret 42 U.S.C. § 300gg-13 to require FOCUS, its health insurer, its insurance plan administrator (or any other similarly situated non-profit religious organizations) to provide or facilitate coverage or payments to participants and beneficiaries in FOCUS’s health insurance plan for such contraceptives, abortion-inducing drugs and devices, sterilization, and related education and counseling are referred to herein as Defendants’ “HHS Contraceptive Mandate.”
3. Defendants’ HHS Contraceptive Mandate, by requiring FOCUS to provide or facilitate free coverage of these objectionable drugs and devices to its employees and their
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family members, including the Individual Plaintiffs, illegally and unconstitutionally coerces FOCUS, the Individual Plaintiffs, and thousands of other non-exempt non-profit religious organizations to violate their religious beliefs.
4. FOCUS, founded in 1998 by Curtis A. Martin and Archbishop Charles J. Chaput, O.F.M. Cap., currently Archbishop of Philadelphia, and others is a quintessential Catholic religious organization. Its college outreach program employs more than 550 persons, more than 450 of which are “missionaries.” Through its missionaries, FOCUS serves on 99 college campuses across the United States and presents the Gospel of Jesus Christ and the tenets of the Catholic Church to college students and others.
5. FOCUS’s purpose is to raise up a generation of missionary disciples who will advance the teachings of Jesus Christ and His Church -- and respond to the Church's call for a New Evangelization to hasten the coming of the 'culture of life' and 'civilization of love' – by spreading the truth of the Catholic Faith at colleges and universities, foreign and domestic mission sites, and within the parish through staff, students, and alumni who are equipped for evangelization and discipleship and to cooperate with and supporting other projects and organizations that are organized and operated for similar purposes. See Amended and Restated Articles of Incorporation of Fellowship of Catholic University Students dated April 24, 2014.
6. In accord with nearly 2,000 years of consistent Catholic teaching and in accord with the Catholic Church’s “New Evangelization,” FOCUS believes, affirms, and teaches each of its employees, missionaries, and college students it ministers to that every person is created in the image of God and that it is contrary to God’s will to interfere with human conception with contraceptives or to destroy innocent human life by abortion or with abortion-inducing drugs and devices. Thus, FOCUS holds, as a matter of religious conviction, that it is immoral for
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FOCUS to intentionally participate in, pay for, train others to engage in, enable, or otherwise support or facilitate access to these objectionable drugs and devices.
7. Though a religious organization, FOCUS does not qualify for the extraordinarily narrow religious exemption from the HHS Contraceptive Mandate that Defendants have created. That narrow religious exemption protects thousands of “churches, their integrated auxiliaries, conventions or associations of churches” and “the exclusively religious activities of any religious order”, but it does not protect FOCUS and the Individual Plaintiffs from the forced violation of their religious convictions should the HHS Contraceptive Mandate be imposed upon them.
8. In addition, though Defendants have exempted thousands of secular organizations from the HHS Contraceptive Mandate for purely secular reasons, FOCUS has not been so exempted. For example, employers with so-called “grandfathered” plans, i.e., plans in existence before March 23, 2010, are exempted from the HHS Contraceptive Mandate. As a result, tens of millions of women have been exempted. Defendants have also acknowledged that “church plans” that are exempt from ERISA are also exempt from penalties attached to the HHS Contraceptive Mandate. Those plans likewise encompass thousands of non-exempt non-profit religious organizations and their employees, organizations that are indistinguishable from FOCUS.
9. After delaying implementation of the HHS Contraceptive Mandate against all nonexempt non-profit religious organizations, including FOCUS, for a time, Defendants offered FOCUS and other non-exempt non-profit religious organizations what Defendants termed an “accommodation,” i.e., Defendants’ “Final Rule.”
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10. Following massive objections by non-exempt non-profit religious organizations and others and following a plethora of court-ordered injunctions against the implementation of Defendants’ “Final Rule,” including the issuance of an injunction by this Court in favor of FOCUS (Doc. 39), Defendants created an alternative mechanism for implementation of their HHS Contraceptive Mandate and, effective August 27, 2014, promulgated Defendants’ “Interim Final Regulations.”
11. Defendants’ “Interim Final Regulations” mandate that FOCUS choose to select either Defendants’ “Final Rule” or Defendants’ “Interim Final Regulations.” The “Interim Final Regulations,” like Defendants’ “Final Rule,” still require FOCUS to provide or facilitate free coverage of objectionable contraceptives and abortifacients as a part of or in connection with FOCUS’s employee health insurance plan.
12. Defendants’ HHS Contraceptive Mandate, as implemented either by Defendants’ “Final Rule” or by Defendants’ “Interim Final Regulations,” does not offer religious liberty protections to FOCUS or the Individual Plaintiffs. If FOCUS follows its religious convictions and declines to allow Defendants to hijack its health insurance plan, FOCUS will face, among other injuries, enormous fines that could exceed $16,000,000 per year.
13. Defendants’ HHS Contraceptive Mandate, as implemented either by Defendants’ “Final Rule” or by Defendants’ “Interim Final Regulations,” also forces the Individual Plaintiffs, FOCUS employees CURTIS A. MARTIN, CRAIG A. MILLER, BRENDA CANNELLA, and CINDY O’BOYLE, along with the vast majority of FOCUS’s employees, to participate in a health insurance plan that causes them and members of their family, including their daughters, to receive coverage of morally and religiously objectionable contraceptives and abortifacients and related services.
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14. The statement of then-Secretary of HHS Kathleen Sebelius evidences Defendants’ intention to force FOCUS and other similarly situated non-exempt non-profit religious organizations to comply with Defendants’ HHS Contraceptive Mandate. Sebelius stated that, “[A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the [HHS Contraceptive Mandate] benefit package,” and “Catholic hospitals, Catholic universities, other religious entities will be providing [contraceptive and abortifacient] coverage to their employees starting August 1st.” Remarks at the Forum at Harvard School of Public Health (Apr. 8, 2013), http://theforum.sph.harvard.edu/eents/conversation-kathleensebelius (Part 9, Religion and Policymaking, at 4:40 and 2:48).
15. The enforcement date referred to by then-Secretary Sebelius has, as a result of the huge outcry from American citizens and others, come and gone. Nevertheless, Defendants seek yet again to impose the HHS Contraceptive Mandate on FOCUS and on the Individual Plaintiffs and their families.
16. In view of unconscionable position in which Defendants have placed FOCUS and the Individual Plaintiffs, FOCUS and the Individual Plaintiffs respectfully request that this Court vindicate their religious rights (a) by declaring that Defendants HHS Contraceptive Mandate violates the Religious Freedom Restoration Act, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the United States Constitution, due process and equal protection as guaranteed by the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act and (b) by entering a judgment in favor of FOCUS and permanently enjoining enforcement as to FOCUS of Defendants’ HHS Contraceptive Mandate.”
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II. JURISDICTION AND VENUE
17. 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. 57 and 65, and to award reasonable attorney’s fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, and under 42 U.S.C. § 1988.
18. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e) in that FOCUS is resident in this district and a substantial part of the events or omissions giving rise to FOCUS’s claims occurred in this district.
III. IDENTIFICATION OF PARTIES
19. FOCUS is a Colorado non-profit corporation organized and recognized by the Internal Revenue Service as a 501(c)(3) organization. Its headquarters office is in Jefferson County, Colorado. FOCUS was born out of a passion and zeal to share how a relationship with Jesus Christ and the Catholic Faith can transform the world. FOCUS sends teams of young, trained missionaries to college campuses in order to reach students with the Gospel of Jesus Christ. In partnership with a local Catholic Parish and other Catholic organizations, FOCUS missionaries host large group outreach events, weekly Bible studies, and one-on-one mentoring sessions with student leaders. FOCUS presently has a staff of approximately 550 persons (of which about 450 are missionaries) and a presence on nearly 100 college campuses across the United States.
20. CURTIS A. MARTIN is the founder and chief executive officer of FOCUS and, in 2011, was appointed as Consulter to the Pontifical Council of the New Evangelization by Pope
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Benedict XVI and, in October 2012, participated with Catholic Bishops and Catholic lay people in a three week conference in Rome on the work of evangelization by the Catholic Church. Mr. Martin and his wife have nine children, one of whom is a teenage daughter. Mr. Martin and his entire family hold and live the same religious beliefs as are held and lived by FOCUS. Mr. Martin and his entire family support FOCUS’s religious liberty rights and do not want to have any part in participating in Defendants’ immoral HHS Contraceptive Mandate. The Oath of Fidelity to the Catholic Church which reflects both FOCUS’s faith beliefs and those of Mr. Martin (shared by his family) and which was signed by Mr. Martin when he began to work for FOCUS is attached hereto as Exhibit A and incorporated herein by this reference.
21. CRAIG A. MILLER is currently president of FOCUS. Mr. Miller and his wife have six children, including four daughters, three of whom are teenagers. Mr. Miller and his entire family hold and live the same religious beliefs as are held and lived by FOCUS. Mr. Miller and his entire family support FOCUS’s religious liberty rights and do not want to have any part in participating in Defendants’ HHS Contraceptive Mandate. The Oath of Fidelity to the Catholic Church which reflects both FOCUS’s faith beliefs and those of Mr. Miller (shared by his family) and which was signed by Mr. Miller when he began to work for FOCUS is attached hereto as Exhibit B and incorporated herein by this reference.
22. BRENDA CANNELLA is currently vice president of finance of FOCUS. Ms. Cannella and her husband have five children, including two daughters, one of whom is a teenager. Ms. Cannella and her entire family hold and live the same religious beliefs as are held and lived by FOCUS. Ms. Cannella and her entire family support FOCUS’s religious liberty rights and do not want to have any part in participating in Defendants’ HHS Contraceptive Mandate. The Oath of Fidelity to the Catholic Church which reflects both FOCUS’s faith
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beliefs and those of Ms. Cannella (shared by her family) and which was signed by Ms. Cannella is attached hereto as Exhibit C and incorporated herein by this reference.
23. CINDY O’BOYLE served as a missionary for two years on campus and is currently a program director serving with the West Regional Team at FOCUS’s headquarters in Golden, CO. Ms. O’Boyle, who is in her early twenties, is single. Ms. O’Boyle holds and lives the same religious beliefs as are held and lived by FOCUS. Ms. O’Boyle supports FOCUS’s religious liberty rights and does not want to have any part in participating in Defendants’ HHS Contraceptive Mandate. The Oath of Fidelity to the Catholic Church which reflects both FOCUS’s faith beliefs and those of Ms. O’Boyle and which was signed by Ms. O’Boyle when she began to work for FOCUS is attached hereto as Exhibit D and incorporated herein by this reference.
24. Defendants are all appointed officials of the United States government responsible for promulgating and enforcing Defendants’ HHS Contraceptive Mandate.
25. Defendant Sylvia Burwell (“Burwell”) is the Secretary of the United States Department of Health and Human Services (“HHS”). In that capacity, she is responsible for the operation and management of HHS. Burwell is sued in her official capacity only.
26. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of Defendants’ HHS Contraceptive Mandate.
27. Defendant Thomas E. Perez (“Perez”) is the Secretary of the United States Department of Labor (“DOL”). In that capacity, he is responsible for the operation and management of DOL. Perez is sued in his official capacity only.
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28. Defendant DOL is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of Defendants’ HHS Contraceptive Mandate.
29. Defendant Jacob J. Lew (“Lew”) is the Secretary of the United States Department of the Treasury (“Treasury”). In that capacity, he is responsible for the operation and management of Treasury. Lew is sued in his official capacity only.
30. Defendant Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of Defendants’ HHS Contraceptive Mandate.
IV. FACTUAL ALLEGATIONS A. FOCUS’s Religious Beliefs.
31. With the blessing and approval of Archbishop Samuel Aquila of Denver and with the blessings and approval of the local Bishop in each diocese in which a specific college is located and to which FOCUS missionaries minister, FOCUS’s mission is to equip and enable qualified FOCUS-trained missionaries to serve as the hands and feet of the Catholic Church and its auxiliaries by meeting college students where they live and recreate, i.e., dorms, intramural sports, student unions, Greek life, etc., by making a personal, sacrificial investment in the lives of those students, and by stressing ‘incarnational evangelization’ and God’s love to each student. See, e.g., http://www.focus.org/about/faqs.html.
32. FOCUS’s primary purpose or “main thing” is “[i]nviting college students into a growing relationship with Jesus Christ and His Church [and i]nspiring and equipping them for a lifetime of Christ-centered evangelization, discipleship, and friendship in which they lead others to do the same.”
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33. FOCUS’s mission is “[t]o know Christ Jesus, and to fulfill His great commission by first living and then communicating the fullness of life within the family of God, the Church.” Thus, a relationship with Jesus Christ and a commitment to the teachings of the Catholic Faith are central to FOCUS, the Individual Plaintiffs, and FOCUS’s employees.
34. FOCUS holds and actively professes religious beliefs in accordance with the traditional Christian teachings on the sanctity of life. FOCUS believes that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious from the moment of conception until natural death.
35. FOCUS follows the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church. FOCUS lives out its religious faith daily by helping and assisting its employees and the college students it serves to follow the teachings of the Catholic Church so as to strengthen their faith.
36. FOCUS’s religious beliefs include traditional Christian teaching on the nature and purpose of marriage and human sexuality. In particular, FOCUS believes, teaches, and lives, in accordance with Pope Paul VI’s July 25, 1968 encyclical entitled Humanae Vitae, that:
 “The transmission of human life is a most serious role in which married people collaborate freely and responsibly with God the Creator.”
 “Marriage and conjugal love are by their nature ordained toward the procreation and education of children. Children are really the supreme gift of marriage and contribute in the highest degree to their parents’ welfare.”
 “[T]he exercise of responsible parenthood requires that husband and wife . . . recognize their own duties toward God, themselves, their families and human society.”
 “The sexual activity, in which husband and wife are intimately and chastely united with one another, through which human life is transmitted, is . . . ‘noble and worthy.’”
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 “[E]ach and every marital act must of necessity retain its intrinsic relationship to the procreation of human life.”
 Thus, “the direct interruption of the generative process already begun and, above all, all direct abortion, even for therapeutic reasons, are to be absolutely excluded as lawful means of regulating the number of children. Equally to be condemned . . . is the direct sterilization, whether of the man or of the woman, whether permanent or temporary. Similarly excluded is any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation – whether as an end or as a means.”
37. Accordingly and in following Pope Paul VI’s encyclical Humanae Vitae, FOCUS and the Individual Plaintiffs believe and actively profess that “to use this divine gift while depriving it, even if only partially, of its meaning and purpose, is equally repugnant to the nature of man and of woman, and is consequently in opposition to the plan of God and His holy will.”
38. FOCUS believes, as Pope Paul VI prophetically stated in Human Vitae, that “a man who grows accustomed to the use of contraceptive methods may forget the reverence due to a woman, and, disregarding her physical and emotional equilibrium, reduce her to being a mere instrument for the satisfaction of his own desires, no longer considering her as his partner whom he should surround with care and affection.”
39. This authoritative Catholic teaching was again set forth in Pope John Paul II’s March 25, 1995 encyclical Evangelium Vitae in which Pope John Paul II reaffirmed “the value of human life and its inviolability” and urged all persons “in the name of God [to] respect, protect, love and serve life, every human life!”
40. Based on the teachings of the Catholic Church, and its own sincerely held religious beliefs, FOCUS does not believe that contraceptives, abortifacients, abortion, or sterilization may properly be understood to constitute medicine, health care, or a means of providing for the well-being of humankind. Indeed, FOCUS believes these procedures involve gravely immoral
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practices. FOCUS believes, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.”
41. FOCUS cannot therefore participate, through its health insurance plan or otherwise, in any scheme to facilitate access to contraceptives, abortifacients, abortion, sterilization, or related counseling and education without violating its sincerely held religious convictions.
42. In fact, FOCUS exercises its fundamental constitutional and statutory rights to the free exercise of religion, the freedom of speech, and expressive association and its devotion to the teachings and the tenets of the Catholic Church by emphatically opposing and speaking out against the use of contraceptives, abortifacients, abortion, and sterilization.
43. It would be a violation of FOCUS’s mission to strengthen the faith of the college students it serves and to teach such students to follow the teachings of the Catholic Church and comply with Defendants’ HHS Contraceptive Mandate.
44. Over the past several months, leaders within the Catholic Church have publicly spoken out about how various iterations of Defendants’ HHS Contraceptive Mandate, including the most recent one, are direct violations of Catholic Faith.
45. Cardinal Timothy Dolan, Archbishop of New York and past President of the United States Conference of Catholic Bishops, wrote, “Since January 20 [2012], when the final, restrictive HHS [Contraceptive Mandate] . . . was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. We recall the words of our Holy Father Benedict XVI to our brother bishops on their recent ad
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limina visit: ‘Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion.’ We have made it clear in no uncertain terms to the government that we are not at peace with its invasive attempt to curtail the religious freedom we cherish as Catholics and Americans.” (http://www.usccb.org., March 2, 2012).
46. Archbishop Charles J. Chaput, the Archbishop of Philadelphia and a founding FOCUS board member and board member emeritus, has expressed that Defendants’ HHS Contraceptive Mandate seeks “to coerce Catholic employers, private and corporate, to violate their religious convictions . . . [t]he HHS [Contraceptive] mandate, including its latest variant, is belligerent, unnecessary, and deeply offensive to the content of Catholic belief . . . The HHS [Contraceptive] mandate needs to be rescinded. In reality, no similarly aggressive attack on religious freedom in our country has occurred in recent memory . . . [t]he HHS [Contraceptive] mandate is bad law; and not merely bad, but dangerous and insulting. It needs to be withdrawn—now.” (http://the-american-catholic.com/2012/02/14/archbishop-chaput-hhsmandate-dangerous-and-insulting/, Feb. 14, 2012) (emphasis added).
47. Archbishop Samuel J. Aquila of Denver said: The Obama Administration’s [HHS Contraceptive] mandate is a forceful intrusion by the government on the rights of Catholics to act on their beliefs in the public square. Furthermore, it violates the principle of the freedom to follow one’s conscience. This mandate runs contrary to the long-held principle of religious freedom that our Founders, who came here to escape religious persecution, enshrined in our Constitution. Catholics, Evangelical Christians, Baptists, and Jews are among the people of faith who have spoken out against the mandate and its requirements, to which they have moral objections. The government should not force its beliefs upon people of faith. (emphasis added). 48. On November 13, 2013, the U.S. Conference of Catholic Bishops, at the conclusion of their fall General Assembly in Baltimore, Maryland, issued a “Special Message”. In part, the
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Bishops, who promised to resist Defendants’ HHS Contraceptive Mandate if it is not corrected
or rescinded, said:
The current impasse is all the more frustrating because the Catholic Church has long been a leading provider of, and advocate for, accessible, life-affirming health care. We would have preferred to spend these recent past years working toward this shared goal instead of resisting this intrusion into our religious liberty. We have been forced to devote time and resources to a conflict we did not start nor seek.
******************
As the government’s implementation of the mandate against us approaches, we bishops stand united in our resolve to resist this heavy burden and protect our religious freedom. We will continue our efforts in Congress and especially with the promising initiatives in the courts to protect the religious freedom that ensures our ability to fulfill the Gospel by serving the common good.
49. On November 26, 2013, Pope Francis released an Apostolic Exhortation in which he
stated:
[T]his defence of unborn life is closely linked to the defence of each and every other human right. It involves the conviction that a human being is always sacred and inviolable, in any situation and at every stage of development. Human beings are ends in themselves and never a means of resolving other problems. Once this conviction disappears, so do solid and lasting foundations for the defence of human rights, which would always be subject to the passing whims of the powers that be. Reason alone is sufficient to recognize the inviolable value of each single human life, but if we also look at the issue from the standpoint of faith, every violation of the personal dignity of the human being cries out in vengeance to God and is an offence against the creator of the individual. (emphasis added).
50. On October 8, 2014,1 the United States Conference of Catholic Bishops again
expressed the bishops’ opposition to Defendants’ latest version of Defendants’ HHS
1 See October 8, 2014, “Comments on Interim Final Rules on Coverage of Certain Preventive Services Under the Affordable Care Act” from United States Conference of Catholic Bishops to U.S Department of Labor Office of Health Plan Standards and Compliance Assistance at www.usccb.org/about/general-counsel/rulemaking/upload/2014-hhs-comments-on-proposedrule-on -for-profits-10-8.pdf (last visited October 13, 2014).
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Contraceptive Mandate, i.e., Defendants’ Interim Final Regulations issued August 27, 2014, The bishops stated:
The interim final rules do not change the content of the mandate. ****************** The interim final rules do not change the limited scope of the exemption for some religious organizations. As before, only churches, their integrated auxiliaries, conventions and associations of churches, and the “exclusively religious activities” of religious orders are exempt from the mandate. . . . The resulting gerrymander of the religious community into those organizations and activities deemed “religious enough,” and those deemed “not religious enough,” to qualify for the exemption is entirely arbitrary and unsupported by any legitimate, let alone compelling, government interest. ****************** The mandate continues to substantially burden the religious liberty of stakeholders with religious objections. Because it does not further a compelling government interest by the means least restrict of religious exercise, the mandate continues to violate the Religious Freedom Restoration Act (“RFRA”). ****************** [T]he administration continues to propose an unjust and unlawful mandate; an arbitrarily narrow exemption for houses of worship; no exemption at all for most stakeholders; and an ‘accommodation’ that still requires employers that fall outside the narrow government definition of ‘religious employer’ to facilitate the objectionable coverage. 51. Because FOCUS believes, affirms, and teaches that it that it is contrary to God’s will to interfere with conception with contraception or to destroy innocent human life by abortion or by the use of abortion-inducing drugs and devices and affirmatively speaks out against contraceptives, sterilization, abortion, and abortion-inducing drugs and devices, it would be a violation of FOCUS’s deeply held religious beliefs for it to be required to provide, fund, facilitate, cause, or participate in employee health insurance which, directly or indirectly, complies with Defendants’ HHS Contraceptive Mandate.
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52. CURTIS A. MARTIN, CRAIG A. MILLER, BRENDA CANNELLA, and CINDY O’BOYLE (“the Individual Plaintiffs”) are employees of FOCUS who, like other FOCUS employees, hold to and live out the same religious beliefs as does FOCUS, support FOCUS’s religious liberty rights, and, for themselves and their wives or daughters, do not want to have any part in participating in Defendants’ Contraceptive Mandate, including by receiving promises of payments for objectionable drugs and devices as may be arranged by FOCUS’s third party administrator or by participating in a health insurance plan by which FOCUS enables Defendants to direct FOCUS’s third party administrator, in violation of FOCUS’s contract with its third party administrator, to comply with Defendants’ HHS Contraceptive Mandate.
53. The Individual Plaintiffs also object to losing the health insurance coverage they and their family members currently have and to be forced in such a circumstance to buy for themselves and their families a health insurance plan from another source that (because of Defendants’ HHS Contraceptive Mandate challenged here) will very probably require them to participate in a plan that, against their sincere religious beliefs, includes coverage of objectionable drugs and devices.
54. FOCUS, the Individual Plaintiffs, and these other officials of the Catholic Church who support FOCUS all continue to oppose Defendants’ HHS Contraceptive Mandate.
B. FOCUS’s Health Insurance Plan 55. FOCUS created, by contract, its own self-insurance plan which covers its employees and their dependents. FOCUS thus acts as its own insurer and its plan provides generous health insurance benefits for its employees and their family members. 56. By virtue of FOCUS’s religious beliefs, these benefits purposefully do not now include (and have never included) coverage of the drugs and devices required by Defendants’
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HHS Contraceptive Mandate. Indeed, by virtue of its religious beliefs, FOCUS has taken great pains throughout the years to ensure that its health insurance plans have not covered these objectionable drugs and devices.
57. FOCUS has selected and contracted with a third party administrator which, for a fee, administers FOCUS’s health insurance plan to its employees and their family members, including to the Individual Plaintiffs and their family members.
C. The ACA and Defendants’ HHS Contraceptive Mandate. 58. Effective March 23, 2010, Congress passed and President Obama signed into law the ACA. 59. Pursuant to the ACA, employers with over 50 full-time employees are required to provide a certain level of health insurance to their employees. 60. One provision of the ACA requires that any “group health plan” or “health insurance issuer offering group or individual health insurance coverage” must provide coverage for “preventive care and screenings” without “any cost sharing” by covered employees or beneficiaries. 42 U.S.C. § 300gg-13(a)(1)-(4). However, the ACA left to Defendants to define “preventive care and screenings.” 61. Regulations promulgated by Defendants defined “preventive care and screenings” to include so-called FDA-approved contraceptives and required that these drugs and devices be covered in health insurance plans on or after August 1, 2012. 62. A non-exempt employer which provided a health insurance plan that did not cover these objectionable drugs and devices was subject to heavy fines approximating $100 per employee per day and to lawsuits by the Secretary of Labor or by health insurance plan participants. 26 U.S.C. § 4980D(b).
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63. An employer with more than 50 employees could not avoid the requirement of Defendants’ HHS Contraceptive Mandate by simply refusing to provide health insurance to its employees because the ACA imposed annual monetary penalties of $2,000 times the number of employees after the first 30 employees. Id. § 4980(H)(a), (c)(1).
64. Additionally, dropping health insurance coverage for employees altogether would harm an employer’s ability to attract and keep good employees or cause the employer to have to increase employee compensation so that its employees could purchase health insurance themselves. It would also deprive employees not only of a good health insurance plan, but also of a health insurance plan that many employees desired for religious and moral reasons.
65. From its inception, Defendants have exempted numerous health insurance plans from their HHS Contraceptive Mandate which cover millions of people. For example, certain plans in existence at the time of the ACA’s adoption are “grandfathered” and exempt from Defendants’ HHS Contraceptive Mandate. 42 U.S.C. § 18011; 26 C.F.R. § 54.98151251T(g)(1)(v). As of December 2013, the government has estimated that over 90 million individuals participated in health insurance plans that need not comply with Defendants’ HHS Contraceptive Mandate. 75 Fed. Reg. 34538, 34552-53 (June 17, 2010).
66. In addition, Defendants exempted so-called “religious employers.” Under this exemption, religious employers are permitted to offer “conscience-compliant” employee health insurance plans through an insurance company or a third party administrator that need not comply with the HHS Contraceptive Mandate. 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011); see also 77Fed. Reg. 8725, 8727-28, 8730 (Feb. 15, 2012).
67. Although Defendants have recently announced that they will postpone implementing the annual fine of $2,000 per employee (minus 30) for organizations that drop
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health insurance altogether, this postponement is only until 2015 (in the middle of FOCUS’s current plan year) and does not delay the daily fines under 26 U.S.C. § 4980D or lawsuits under 29 U.S.C. § 1132.
68. If imposed, this could result in fines of between $1,040,000 per year and $19,800,000 per year being levied against this quintessential religious non-profit organization.
69. Nevertheless and despite sustained criticism of Defendants’ HHS Contraceptive Mandate, Defendants continue to seek to force FOCUS and other similarly situated non-profit religious organizations to comply with their HHS Contraceptive Mandate.
1. The Interim Final Rule. 70. On July 19, 2010, HHS published an Interim Final Rule regarding the ACA’s
requirement that “preventive care and screenings” services be covered without cost sharing. 75 Fed. Reg. 41726, 41728.
71. In violation of the APA, HHS issued this Interim Final Rule without 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.
72. Defendants stated they would later “provide the public with an opportunity for comment, but without delaying the effective date of the regulations,” thus demonstrating their intent to impose Defendants’ HHS Contraceptive Mandate on non-profit religious organizations regardless of the legal flaws identified in or public opposition expressed by such public comments. Id.
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73. Defendants’ Interim Final Rule made it clear that “cost sharing” referred to “outof-pocket” expenses for health insurance plan participants and covered beneficiaries. 75 Fed. Reg. at 41730.
74. Defendants’ Interim Final Rule acknowledged that expenses “previously paid outof-pocket” would “now be covered by group health plans and issuers” and that those expenses would, in turn, result in “higher average premiums for all enrollees.” Id.; see also id. at 41737. (“Such a transfer of costs could be expected to lead to an increase in premiums.”).
75. HHS then directed a private health policy organization, the Institute of Medicine (“IOM”), to define which drugs, procedures, and services should be defined as “preventive care and screenings.”
76. IOM, presumably in coordination with HHS, invited a select number of generally pro-abortion groups and individuals to make presentations on which drugs, procedures, and services should be included as “preventive care and screenings.”
77. To make presentations, IOM selected, among others, the Guttmacher Institute (an entity related to Planned Parenthood Federation of America which “advances sexual and reproductive health rights” including abortion)2, the American Congress of Obstetricians and Gynecologists (“ACOG”) (which also favors sexual and reproductive health rights including abortion), John Santelli (who, among other things, serves as senior consultant for the Guttmacher Institute),3 the National Women’s Law Center (an organization which, among other things, works “to protect women’s reproductive rights” including abortion and contraception
2 Guttmacher Institute, “Mission,” available at http://www.guttmacher.org/mission.html (last visited Nov. 27, 2013). 3 Columbia University, “John S. Santelli,” available at http://www.mailman.columbia.edu/ourfaculty/profile?uni=js2637 (last visited Oct. 22, 2014).
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access),4 the National Women’s Health Network (an organization dedicated to preserve “access to contraceptive and abortion care”),5 Planned Parenthood Federation of America (a contraception and abortion providing organization dedicated to “reproduction selfdetermination”),6 and Sara Rosenbaum, a longtime contraception advocate.
78. No religious groups or individuals or other groups that oppose governmentmandated coverage of contraceptives, abortion-inducing drugs and devices, abortion, sterilization, and related education and counseling were invited to be presenters by IOM.
79. On July 10, 2011, IOM published guidelines which defined “preventive care and screenings” as “[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).
80. These Food and Drug Administration (“FDA”) “approved contraceptive methods” include contraceptives, including birth control pills and prescription contraceptive devices and abortion-inducing drugs and devices, including Plan B drugs (also known as the “morning after pill”) and its chemical cognates; ulipristal (also known as “ella” or the “week-after pill”); and certain abortion-inducing IUDs.
4 National Women’s Law Center, “Our Issues,” available at http://www.nwlc.org/our-issues (last visited Oct. 22, 2014). 5 National Women’s Health Network, “Securing Sexual & Reproductive Health and Autonomy,” available at http://nwhn.org/securing-sexual-reproductive-health-and-autonomy (last visited Oct. 22, 2014). 6 Planned Parenthood, “Mission,” available at http://www.plannedparenthood.org/aboutus/who-we-are/vision-4837.htm (last visited Nov. 27, 2013).
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81. Many of these drugs and devices – including “emergency contraceptives” such as

Plan B and ella and IUDs – are known or acknowledged by their manufacturers to be abortion-

inducing drugs or devices, i.e., drugs or devices that can cause the death of a human embryo by

preventing the embryo from implanting in the wall of a woman’s uterus.

82. Indeed, FDA’s own Birth Control Guide states that an effect of Plan B

(Levonorgestrel) is to “prevent[] attachment (implantation) to the womb (uterus).” FDA, Office

of

Women’s

Health,

Birth

Control

Guide,

available

at

http://www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.html

(last visited Oct. 22, 2014).

83. Defendants’ HHS Contraceptive Mandate requirement for related “education and

counseling” would very likely result treatment by medical providers who favor of the use of

drugs, devices, and methods that are objectionable to FOCUS and the Individual Plaintiffs. See

comments of U.S. Conference of Catholic Bishops (Mar. 20, 2013),

http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-Comments-3-20-

final.pdf.

84. On August 1, 2011, a mere 13 days after IOM issued its recommendations, the

Health Resources and Services Administration (“HRSA”), an HHS agency, adopted IOM’s

recommendations in full. See http://www.hrsa.gov/womensguidelines (last visited Oct. 22,

2014); 26 C.F.R. § 54.9815-2713(A)(1)(iv); 29 C.F.R. § 2590.715-2713(A)(1)(iv); 45 C.F.R. §

147.130(a)(1)(iv).

2. Second Interim Rule - The Religious Employer Exemption.

85. On August 1, 2011, the very same day that HRSA rubber-stamped the IOM’s

recommendations, HHS promulgated its “Second Interim Final Rule.” 76 Fed. Reg. 46621.

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86. This Second Interim Final Rule granted HRSA “discretion to exempt certain religious employers from [Defendants’ HHS Contraceptive Mandate] where contraceptive services are concerned.” 76 Fed. Reg. 46621, 46623. The term “religious employer” was narrowly 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 (ii) of the Internal Revenue Code of 1986, as amended. 75 Fed. Reg. at 46626.
87. HRSA promulgated this “religious employers” exemption via a footnote on its website listing the Women’s Preventive Services Guidelines. See http://www.hrsa.gov/womensguidelines (last visited Oct. 22, 2014).
88. Although non-profit religious organizations like FOCUS share the same religious beliefs and concerns as do objecting, but exempt, Catholic churches, integrated auxiliaries, and religious orders, Defendants deliberately ignored the offensive impact on FOCUS’s religious liberty interests and limited the exemption 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.
89. As a result, the vast majority of non-profit religious organizations with conscientious objections to providing contraceptives, abortifacients, and related services, including FOCUS, were not eligible for Defendants’ “religious employer” exemption.
90. Like the original Interim Final Rule, this Second Interim Final Rule was, in violation of the APA, made effective immediately and without any prior notice or opportunity for public comment.
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91. Defendants acknowledged that “while a general notice of proposed rulemaking and an opportunity for public comment is generally required before promulgation of regulations.” However, Defendants represented 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.
92. Plaintiffs are informed and believe that, after this Second Interim Final Rule was put into effect, over 100,000 comments were submitted to HHS which opposed the narrow scope of Defendants’ “religious employer” exemption and protested the gross infringement on the rights of religious individuals and organizations such as FOCUS.
93. Defendants ignored these concerns. Instead, Defendants imposed the HHS Contraceptive Mandate on non-profit religious organizations, like FOCUS, in violation of their rights of conscience and religious liberties protected by the U.S. Constitution and RFRA.
94. On February 10, 2012 Defendants adopted the definition of religious employer in the 2011 amended interim final regulations without modification. 77 Fed. Reg. 8725.
3. The Temporary Enforcement Safe Harbor. 95. As a result of another enormous public outcry for a broader “religious employer”
exemption, on January 20, 2012, HHS acknowledged “the important concerns some have raised about religious liberty” and stated that religious objectors would be “provided an additional year [i.e., to August 1, 2012] . . . to comply with this 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 (last visited Oct. 22, 2014).
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96. On February 10, 2012, HHS formally announced a “temporary enforcement safe harbor” for non-exempt non-profit religious organizations, like FOCUS, that objected to covering contraceptives and abortifacient services in their health insurance plans as required by the Second Interim Final Rule.
97. HHS agreed that it would not take any enforcement action against an eligible nonexempt non-profit religious organization like FOCUS during this “Temporary Enforcement Safe Harbor” period which would extend until the first plan year beginning on or after August 1, 2013, i.e., as to FOCUS, on and after July 1, 2014. See 79 Fed. Reg. 51093.
98. HHS also indicated it would develop and propose changes to its Second Interim Final Rule to accommodate the religious liberty objections of non-exempt non-profit religious organizations following expiration of the safe harbor.
99. Instead, on February 10, 2012, HHS announced a final rule “finalizing, without change,” the narrow religious employer exemption and thus placing FOCUS and similarly situated non-exempt non-profit religious organizations in a precarious position. 77 Fed. Reg. 8725 (published Feb. 15, 2012).7
4. The Advance Notice of Proposed Rulemaking. 100. However, shortly thereafter, 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”
7 Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans, and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code, originally issued on February 10, 2012 and reissued on August 15, 2012 and June 28, 2013 available at http://www.cms.gov/CCIIO/Resources/REgulations-and-Guidance/Downloads/preventiveservices-guidance-6-28-2013.pdf.
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while accommodating the religious objections of non-exempt religious organizations. 77 Fed. Reg. 16501, 16503.
101. The ANPRM conceded that forcing non-exempt non-profit religious organizations to “contract, arrange, or pay for” the objectionable contraceptive and abortifacient services coverage in their health insurance plans would infringe their “religious liberty interests.” Id. (emphasis added).
102. The ANPRM proposed, in vague terms, that the “health insurance issuers” for objecting religious employers could, as an alternative, be required to “assume the responsibility for the provision of contraceptive coverage without cost sharing.” Id.
103. For the first time, and contrary to the earlier definition of “cost sharing,” Defendants suggested in their ANPRM that insurers and third party administrators of selfinsured plans could be directed by Defendants to “assume this responsibility” of implementing their HHS Contraceptive Mandate. Id.
104. This time, “approximately 200,000 comments” were submitted in response to the ANPRM which, for the most part, restated religious liberty objections which remained unresolved by Defendants’ ANPRM.
4. The Notice of Proposed Rulemaking. 105. On February 1, 2013, HHS issued a Notice of Proposed Rulemaking (“NPRM”)
proposing regulations which purportedly addressed these 200,000 plus comments to the ANPRM. 78 Fed. Reg. 8456 (published Feb. 6, 2013).
106. The NPRM proposed but two changes to the then-existing regulations.
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107. 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. 8461.

108. 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.

109. However and as acknowledged by HHS, this NPRM proposal did “not expand the

universe of employer plans that would qualify for the [religious] exemption beyond those

entities which qualified for the religious employer exemption pursuant to the 2012 final rules,”

i.e., a formal church, an integrated auxiliary of a church, or a religious order. 78 Fed. Reg. 8456,

8461.

110. Though HHS had pledged to “accommodate” non-exempt non-profit religious

organizations like FOCUS, the NPRM did not do so.

111. Defendants required FOCUS (and other similarly situated non-exempt non-profit

religious organizations) to comply with Defendants’ HHS Contraceptive Mandate by requiring

FOCUS to execute and file Defendants’ EBSA Form 700 (attached hereto as Exhibit E) to

“designate” their insurers or third party administrators as FOCUS’s “agent” to provide health

insurance plan participants and beneficiaries with free access to contraceptive and abortifacient

drugs, devices, and services.

112. This NPRM received 408,907 comments, again mostly objecting on religious

grounds, a new record for comments. See 78 Fed. Reg. 8457 and

http://www.regulations.gov/#!documentDetail;D=CMS-2012-0031-63161

(government’s

website tally of comments) (last visited Nov. 27, 2013).

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113. Non-exempt non-profit religious organizations characterized Defendants’ new proposed “accommodation” as a sham and as a gross violation of their religious liberties as their health insurance plans of were still being conscripted by Defendants to comply with their HHS Contraceptive Mandate.
114. On April 8, 2013, the very same day that the notice-and-comment period ended, then-HHS Secretary Sebelius answered questions about Defendants’ HHS Contraceptive Mandate in a presentation at Harvard University. 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 Remarks at 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/ (at 49:45) (emphasis added) (last visited Oct. 22, 2014). 115. Given the date and timing of these remarks, it is clear that Defendants had no intention to comply with the APA and to give any (and indeed gave no) consideration to the thousands of comments submitted by religious organizations and others in opposition to the NPRM’s proposed “accommodation.” 5. Defendants’ Final Rule. 116. On June 28, 2013, Defendants issued their Final Rule which again wholly ignored the objections raised by the more than 400,000 religious organizations and others and continued to conscript objecting employers, like FOCUS, into the Defendants’ scheme of coercing from
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such religious organizations, including FOCUS, free access to contraceptives and abortifacients, and related services. 78 Fed. Reg. 39870 (July 2, 2013).
117. Under Defendants’ Final Rule, the “discretionary religious employer” exemption, which was implemented via footnote on the HRSA website, see http://hrsa.gov/womensguidelines, remained limited to formal churches and their integrated auxiliaries and religious orders. 78 Fed. Reg. at 39874.
118. Defendants attempted to justify the extraordinarily narrow religious employer 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 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. 39874.
119. An organization like FOCUS was eligible for Defendants’ latest “accommodation” if it (1) “[o]ppose[d] providing coverage for some or all of the contraceptive services required”; (2) “[was] organized and operates as a nonprofit entity”; (3) “[held] itself out as a religious organization”; and (4) “self-certifie[d] that it satisfie[d] the first three criteria.” 78 Fed. Reg. 39874; 26 C.F.R. § 54.9815-2713A(a)(4).
120. However, Defendants mandated that, to “take advantage” Defendants’ latest “accommodation,” FOCUS was required to execute and deliver to Defendants government form
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EBSA Form 700 self-certification (see attached Exhibit E) to its third party administrator and to thereby expressly designate its third party administrator as “an ERISA section 3(16) plan administrator and claims administrator solely for the purpose of providing payments for contraceptive services for participants and beneficiaries.” 78 Fed. Reg. 39879.
121. This EBSA Form 700 effectively designated the “[o]bligations of the third party administrator” under ERISA to include, by virtue of that designation, a fiduciary duty to provide promises of payments for the contraceptives and abortion-inducing drugs and devices to which FOCUS objected. 78 Fed. Reg. 39892-95.
122. Defendants’ EBSA Form 700 self-certification specifically provided that it constituted “one of the instruments under which the employer’s plan is operated under ERISA section 3(16)(A)(i). . . .[and] will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” 78 Fed. Reg. 39879.8
123. Once a religious non-profit completed and delivered Defendants’ EBSA Form 700 self-certification, the non-profit was thereafter forbidden from communicating, i.e., speaking, its pro-life religious beliefs to its third party administrator, to withdraw its designation from its third party administrator, or to urge its third party administrator to not provide coverage of or payments for objectionable contraceptives and abortion-inducing drugs and devices. 78 Fed. Reg. at 39895.
124. Finally, Defendants’ Final Rule created yet another massive, built-in “exception” to Defendants’ HHS Contraceptive Mandate. Defendants have admitted that if non-exempt, 8 In other words, without the completion and delivery by FOCUS of Defendants’ EBSA Form 700 self-certification, Defendants essentially acknowledges that they had no legal authority to compel either FOCUS or its third party administrator to comply with Defendants’ HHS Contraceptive Mandate.
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non-integrated-auxiliary organizations otherwise identical to FOCUS are participants in selfinsured “church plans” that are exempt from ERISA, Defendants have refrained from imposing (and/or lack authority to impose) this “accommodation” requirement on such entities’ third party administrators and to require such third party administrators to promise abortifacient/contraceptives/sterilization payments or coverage for the plan’s participants.
125. As a result, thousands of non-exempt, non-integrated-auxiliary religious organizations that are indistinguishable from FOCUS for these purposes face no penalty whatsoever for non-compliance, while FOCUS still faces that pressure for reasons that serve no rational basis in Defendants’ HHS Contraceptive Mandate scheme.
126. While FOCUS is eligible for this so-called “accommodation” provided in Defendants’ Final Rule, Defendants’ Final Rule is objectionable to FOCUS as it requires FOCUS to play an explicit, central, and necessary role in the implementation of Defendants’ HHS Contraceptive Mandate to which FOCUS religiously objects.
127. Insomuch as Defendants’ Final Rule went into effect “for plan years beginning on and after January 1, 2014,” (78 Fed. Reg. 39870, 39871 (July 2, 2013)), FOCUS was obliged to seek sought injunctive relief from this Court.
128. This Court agreed that FOCUS was entitled to such injunctive relief and, on April 29, 2014, this Court granted FOCUS a preliminary injunction against Defendants’ HHS Contraceptive Mandate (Doc. 39), which preliminary injunction remains in place to date.
129. This Court’s injunction against Defendants here, along with other injunctions in other jurisdictions and other factors, led Defendants to promulgate yet another set of administrative rules, i.e., Defendants’ Interim Final Regulations which are again designed to
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force FOCUS to comply with Defendants’ HHS Contraceptive Mandate scheme and to which FOCUS still objects.
6. Defendants’ Interim Final Regulations. 130. Defendants’ Final Rule9 described above was not so “final” after all. However, it remains one of the two alternatives by which Defendants seek to force FOCUS to comply with their HHS Contraceptive Mandate. Effective on and after August 27, 2014, Defendants amended and readopted their Final Rule as Defendants’ new Interim Final Regulations by which Defendants provide FOCUS (and other similarly situated non-profits) a second alternative which is no better that the first alternative as it still forces FOCUS to comply with Defendants’ HHS Contraceptive Mandate. 79 Fed. Reg. 51092 et seq.; 26 C.F.R. § 54.98152713A(a)(1)-(4); 26 C.F.R. § 54.9815-2713AT(b)(1)(ii)(B), (c)(1)(ii). 131. Defendants’ new Interim Final Regulations provide that, as an alternative to Defendants’ Final Rule, if FOCUS still religiously objects to Defendants’ HHS Contraceptive Mandate, as it does, FOCUS must: a. Use Defendants’ “Model Notice” (attached Exhibit F) to notify HHS in writing of its
religious objection; b. Upon receipt of this notice, HHS will then send a separate notification to FOCUS’s
health insurance plan third party administrator which, among other things, describes the obligations of FOCUS’s health insurance plan third party administrator to
9 Defendants’ Final Rule has been revised and restated in Defendants’ new Interim Final Regulations. See 79 Fed. Reg. 51092 et seq. However, for ease of reference, this Final Rule is referred to herein as “Defendants’ Final Rule.” It was the promulgation of Defendants’ Interim Final Regulations that caused the Court to request that Plaintiffs file an amended complaint. See Doc. 49.
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provide coverage for contraceptives services to participants and beneficiaries of FOCUS’s health insurance plan 79 Fed. Reg. 51094-95. 132. Defendants’ Model Notice” does not even purport to designate FOCUS’s third party administrator as FOCUS’s agent for purposes of complying with Defendants HHS Contraceptive Mandate as does Defendants’ EBSA Form 700 self-certification. Rather, Defendants contend that, if and when FOCUS completes and delivers to HHS Defendants’ “Model Notice:” “DOL (working with HHS) will send a separate notification to each third party administrator of the ERISA plan. DOL’s notification will inform each third party administrator of the eligible organization’s religious objection to funding or administering some or all contraceptive coverage and will designate the relevant third party administrator(s) as plan administrator under section 3(16) of ERISA for those contraceptive benefits that the third party administrator would otherwise manage. The DOL notification will be an instrument under which the plan is operated and shall supersede any earlier designation. In establishing and implementing this alternative process, DOL is exercising its broad rulemaking authority under Title I of ERISA, which includes the ability to interpret and apply the definition of a plan administrator under ERISA section 3(16)(A). Fed. Reg. 51095. 133. While Defendants had previously acknowledged that, without the completion and delivery of Defendants’ EBSA Form 700 self-certification, Defendants had no legal authority by which to compel either FOCUS or its third party administrator to comply with Defendants’ HHS Contraceptive Mandate, Defendants claim that, with the “Model Notice,” DOL is able to exercise “its broad rulemaking authority under Title I of ERISA, which includes the ability to interpret and apply the definition of a plan administrator under ERISA section 3(16)(A)” to require FOCUS’s third party administrator to comply with Defendants’ HHS Contraceptive Mandate. 134. Though Defendants’ attempts to implement their HHS Contraceptive Mandate against non-exempt non-profit religious organizations has spanned more than 3 years,
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Defendants continue to represent that “notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest . . . [and] that it would be impracticable and contrary to the public interest to delay putting the provisions in these interim final regulations in place until a full public notice and comment process is completed.” 79 Fed. Reg. 51095.
135. Thus, as with all prior rules, Defendants’ new Interim Final Regulations were, in violation of the APA, made effective virtually immediately and without any prior notice or opportunity for public comment. 79 Fed. Reg. 51096.
136. The ultimate effect of FOCUS’s completion and delivery of Defendants’ “Model Notice” is the same as if FOCUS were to complete and deliver Defendants’ EBSA Form 700 self-certification. Notwithstanding FOCUS’s contract for health insurance coverage and its contract with its third party administrator, FOCUS’s third party administrator becomes obligated, and incentivized to arrange “payments for contraceptive services” for beneficiaries enrolled in FOCUS’s health insurance plan for “so long as [beneficiaries] are enrolled in [FOCUS’s] health plan.” 26 C.F.R. § 54.9815-2713A(a)-(c); 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(c)(2)(i)(B).
137. Though Defendants have absolutely no authority under the ACA or otherwise to modify FOCUS’s health insurance plan (which does not include these objectionable drugs and devices) or to coerce FOCUS’s third party administrator, in contravention to FOCUS’s express religious objections, to violate the third party administrator’s contract with FOCUS, Defendants purport to have the authority to order FOCUS’s third party administrator to comply with Defendants’ HHS Contraceptive Mandate. See, e.g., 78 Fed. Reg. at 39880 (third party administrators are under no obligation “to enter into or remain in a contract with the eligible organization.”).
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138. Both Defendants’ Final Rule and Defendants’ new Interim Final Regulations, one of which Defendants mandate must be selected by FOCUS, force FOCUS to:
a. Deliberately provide health insurance that would facilitate free access to contraceptives and abortifacients regardless of the ease with which insured persons could obtain these drugs and devices from other sources. Facilitating this government-dictated access directly undermines the express speech and messages concerning the sanctity of life that FOCUS seeks to convey; and
b. Directly force FOCUS to speak by designating its third party administrator to provide promises of payments for abortifacients, contraception, and sterilization, in violation of FOCUS’s beliefs.
139. FOCUS’s decision to offer health insurance thus continues to serve as the sole trigger for creating access to FOCUS’s employees, including the Individual Plaintiffs and their family members – present and future - of Defendants’ mandate of free contraceptives, abortifacients, and related counseling and education.
140. Insomuch as Defendants’ new Interim Final Regulations are effective immediately, FOCUS now faces the choice of (a) executing and delivering Defendants’ EBSA Form 700 or (b) executing and delivering Defendants’ Model Notice, either of which explicitly identifies FOCUS’s third party administrator to Defendants so that Defendants may arbitrarily and without any legal authority order FOCUS’s third party administrator to breach its contract with FOCUS and provide coverage of objectionable drugs and devices to FOCUS’s employees, including the Individual Plaintiffs, and members of their family.
141. In the alternative, FOCUS could elect to drop its existing morally acceptable health insurance plan made available to and possessed by FOCUS’s employees, including the
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Individual Plaintiffs and their families, so as to avoid being complicit in the provision of coverage of such objectionable drugs and devices. But to do so would cause FOCUS to face crippling annual fines, harm to its employees who rely on FOCUS’s health insurance plan, a severe impact on FOCUS’s ability to recruit and keep good employees, a consequent need that employee compensation would have to be substantially increased so that employees could obtain health insurance for their families themselves (but leaving them to a market in which virtually all insurance products they might be able to buy, even assuming the government’s exchange system ever works, will likely include unwanted coverage of abortifacient, contraceptive, and sterilizing drugs and devices). This impact falls on the Individual Plaintiffs and violates their religious beliefs as well.
142. Thus, both Defendants’ Final Rule and Defendants’ new Interim Final Regulations impose a number of substantial burdens on the religious beliefs and exercise of FOCUS. And to the extent that either Defendants’ Final Rule or Defendants’ new Interim Final Regulations impacts FOCUS’s religious beliefs and its health insurance coverage, it impacts the Individual Plaintiffs’ religious beliefs and their participation in that coverage as well.
143. For all these reasons, neither Defendants’ Final Rule nor Defendants’ new Interim Final Regulations do anything to relieve FOCUS or other non-exempt non-profit religious organizations with self-insured plans from being co-opted as the central cog in Defendants’ scheme to implement Defendants’ HHS Contraceptive Mandate even when the organization, as does FOCUS, objects to facilitating those services.
144. Defendants’ new Interim Final Regulations, just as does Defendants’ Final Rule, in no way affects the propriety and necessity of injunctive relief in favor of FOCUS enjoining Defendants from requiring FOCUS to provide or facilitate the provision of FDA-approved
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contraceptive methods, abortifacient drugs and devices, sterilization procedures, and patient education and counseling to its employees, including the Individual Plaintiffs and their families, pursuant to the ACA’s “preventive care and screenings” provision set forth at 42 U.S.C. § 300gg-13(a)(4) and including the substantive requirements of any and all regulations implementing that provision in a form similar to Defendants’ HHS Contraceptive Mandate, including the applicability of the penalties found in 26 U.S.C. §§ 4980D & 4980H and 29 U.S.C. § 1132.
7. The Governmental Interests Allegedly Underlying Either the Final Rule or the Interim Final Regulations and the Availability of Other Means of Pursuing Those Interests.
145. Coercing FOCUS to facilitate access to morally objectionable contraceptives and abortifacients advances no compelling governmental interest and is hardly the least restrictive means of achieving the government’s purported interest.
146. Contraceptives and abortion-inducing drugs, devices, and related services required by Defendants’ HHS Contraceptive Mandate and to which FOCUS religiously objects are already widely available at little or no cost to any interested person. Indeed, former HHS Secretary Sebelius has acknowledged that contraceptives are “the most commonly taken drug in America by young and middle-aged women” and are widely “available at sites such as community health centers, public clinics, and hospitals with income-based support.” See Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited Oct. 22, 2014).
147. Defendants have many other policy options available to them by which Defendants could implement Defendants’ HHS Contraceptive Mandate and provide free access to these
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objectionable drugs, devices, and services without conscripting FOCUS and its employee health insurance plan in violation of its religious beliefs.
148. Defendants could pay for such objectionable drugs, devices, and services in, among other ways (a) through existing government programs, including Title XIX, Title X, and Title XX; (b) by subsidizing the government’s existing network of abortion and family planning services providers, many of which are already being paid by the government as “Navigators” to promote the government’s overall health insurance program known as “Obamacare;” or (c) through direct government payments, or tax deductions, refunds, or credits to those who claim to use and pay for such drugs, devices and services.
149. In the ACA, Congress chose to specify and impose a variety of requirements on grandfathered health plans, but did not even think contraceptives and abortifacients were important enough to codify in the ACA; as far as Congress was concerned, Defendants’ HHS Contraceptive Mandate need not include contraceptives and abortifacients at all.
150. As it is only Defendants’ ever-shifting regulations, not the ACA itself, that requires the provision of these objectionable drugs and devices, Defendants could simply exempt all conscientiously objecting organizations, like FOCUS, just as it has already exempted the subset of nonprofit religious employers that are referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code or participants in ERISA-exempt self-insured church plans.
151. In one form or another, Defendants have also provided exemptions or reduced penalties for grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. 41726, 41731 (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
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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).
152. 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.
153. 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 beyond, and that a third of medium-sized employers with between 50 and 100 employees may do likewise. 75 Fed. Reg. 34,538 (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-grandfathered.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”).
154. The government’s postponement of the employer mandate (and its attendant penalties) also belies any claim that a compelling government interest justifies coercing FOCUS into complying with Defendants’ HHS Contraceptive Mandate, as employers may now decide not to provide their employee health plans without incurring fines under 26 U.S.C. § 4980H, at least for one additional year, although such a course is not an option for FOCUS itself.
155. These broad exemptions demonstrate that FOCUS and its 550 employees could easily be exempted from Defendants’ HHS Contraceptive Mandate without measurably undermining any sufficiently important governmental interest allegedly served by Defendants’ HHS Contraceptive Mandate.
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156. These broad exemptions also demonstrate that Defendants’ HHS Contraceptive Mandate is not a general law entitled to some measure of judicial deference.
157. Defendants were willing to exempt various secular organizations, religious organizations, and church plan participants, and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for religious organizations, none of which apply to FOCUS.
158. Defendants’ HHS Contraceptive Mandate was promulgated by government officials, and supported by non-governmental organizations, who strongly oppose traditional Catholic religious teachings and beliefs regarding marriage, family, and sanctity of life and who strongly support an unlimited abortion rights and free access to contraceptives.
159. Former HHS Secretary Sebelius, for example, has long been a staunch supporter of abortion rights and a vocal critic of those religious teachings and beliefs, such as those held by FOCUS and the Individual Plaintiffs, which regard abortion and contraception as morally repugnant.
160. On October 5, 2011, six days after the comment period for the original Interim Final Rule had ended, Former HHS Secretary Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America at which time she told the assembled crowd that “we are in a war.”
161. Former HHS Secretary Sebelius further criticized individuals and entities whose beliefs differed from those held by her and the others at this pro-abortion fundraising event, 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.”
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162. On July 16, 2013, Former HHS Secretary Sebelius further compared opponents of

the ACA generally to “people who opposed civil rights legislation in the 1960s,” stating that

upholding the ACA 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.

163. Consequently, the Plaintiffs are informed and believe that the clear and underlying

purpose of Defendants’ HHS Contraceptive Mandate, including the restrictively narrow scope

of the religious employer’s exemption, is to discriminate against religious organizations and

people that oppose contraception and abortion on religious and moral grounds.

FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 164. Plaintiffs reallege the factual allegations of paragraphs 1 through 163 and incorporate them herein by this reference. 165. FOCUS’s sincerely held religious beliefs prohibit it from providing, paying for, making accessible, or otherwise facilitating coverage or payments for abortion, abortifacients, embryo-harming drugs and devices, contraceptives, and related education and counseling, or providing or facilitating a health insurance plan that causes access to the same through its selected third party administrator or any through any other third party. The Individual Plaintiffs’ religious beliefs similarly prohibit them from participating in such a health insurance scheme for themselves and for their families. 166. When Plaintiffs oppose Defendants HHS’ Contraceptive Mandate, they comply with the Ten Commandments’ prohibition on murder and with their sincerely held religious beliefs that the Holy Bible and the Catholic Church teach that each human being bears the

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image and likeness of God, and therefore that all human life is sacred and precious from the moment of conception. Thus, they exercise religion within the meaning of the Religious Freedom Restoration Act (“RFRA”).
167. Defendants’ HHS Contraceptive Mandate imposes a substantial burden on Plaintiffs’ religious exercise and coerces them to either change or violate their religious beliefs and the beliefs of the overwhelming majority of FOCUS’s employees.
168. Defendants’ HHS Contraceptive Mandate chills Plaintiffs’ religious exercise and pressures them to abandon their religious convictions and religious practices.
169. Defendants’ HHS Contraceptive Mandate exposes FOCUS to substantial fines and/or financial burdens for its religious exercise and not complying. It likewise imposes harms on the Individual Plaintiffs to participate in morally acceptable health insurance or threaten the quality and cost of their insurance coverage, which harms are exacerbated by the ACA’s penalties on individuals if they do not obtain health insurance.
170. Defendants’ HHS Contraceptive Mandate exposes FOCUS to substantial competitive disadvantages because of uncertainties about its health insurance plan and its benefits caused by Defendants’ HHS Contraceptive Mandate.
171. Defendants’ HHS Contraceptive Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
172. Defendants’ HHS Contraceptive Mandate is not the least restrictive means of furthering Defendants’ stated interests. In any event, there is no substantial evidence that Defendants’ stated interests are matters of compelling concern.
173. Defendants’ HHS Contraceptive Mandate and Defendants’ threatened enforcement thereof violates Plaintiffs’ rights protected by RFRA.
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174. Absent injunctive and declaratory relief against the application and enforcement of Defendants’ HHS Contraceptive Mandate, Plaintiffs will suffer irreparable harm.
SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 175. Plaintiffs reallege the factual allegations of paragraphs 1 through 174 and incorporate them herein by this reference. 176. FOCUS’s sincerely held religious beliefs prohibit it from providing, paying for, making accessible, or otherwise facilitating coverage or payments for abortion, abortifacients, embryo-harming drugs and devices, contraceptives, and related education and counseling, or providing or facilitating a health insurance plan that causes access to the same through its third party administrator or through any other third party. The Individual Plaintiffs’ beliefs similarly prohibit them from participating in such a health insurance scheme for themselves or their families. 177. When Plaintiffs oppose Defendants HHS’ Contraceptive Mandate, they comply with the Ten Commandments’ prohibition on murder and with their sincerely held religious beliefs that the Holy Bible and the Catholic Church teach that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious from the moment of conception, they exercise religion within the meaning of the Free Exercise Clause of the First Amendment to the United States Constitution. 178. Defendants’ HHS Contraceptive Mandate imposes a substantial burden on Plaintiffs’ religious exercise and coerces them to either change or violate their religious beliefs and the beliefs of most of FOCUS’s employees.
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179. Defendants’ HHS Contraceptive Mandate chills Plaintiffs’ religious exercise within the meaning of RFRA and pressures them to abandon their religious convictions and religious practices.
180. Defendants’ HHS Contraceptive Mandate exposes FOCUS to substantial fines and/or financial burdens for its religious exercise. It likewise imposes harms on the Individual Plaintiffs to participate in morally acceptable health insurance or threaten the quality and cost of their insurance coverage, which harms are exacerbated by the ACA’s penalties on individuals if they do not obtain health insurance.
181. Defendants’ HHS Contraceptive Mandate forces Plaintiffs to choose between either following their religious convictions and suffering debilitating punishments or violating their religious beliefs in order to avoid those punishments.
182. Defendants’ HHS Contraceptive Mandate exposes FOCUS to substantial competitive disadvantages because of uncertainties about its health insurance benefits caused by Defendants’ HHS Contraceptive Mandate.
183. Defendants’ HHS Contraceptive Mandate violates the free exercise of religion of FOCUS and its employees (including the Individual Plaintiffs) who share FOCUS’s beliefs about human life and abortion, abortifacients, embryo-harming drugs and devices, and contraceptives, and who do not wish to pay for or participate in a plan that causes promised payments for abortifacients, embryo-harming drugs and devices, and contraceptives for their fellow employees, families, wives, and daughters, but for whom Defendants’ HHS Contraceptive Mandate gives no option.
184. Defendants’ HHS Contraceptive Mandate is not neutral and is not generally applicable.
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185. Defendants have created categorical exemptions and individualized exemptions to Defendants’ HHS Contraceptive Mandate.
186. Despite being informed in substantial detail of FOCUS’s religious objections, as well as the objections of thousands of non-exempt non-profit religious organizations like FOCUS, Defendants designed Defendants’ HHS Contraceptive Mandate and the “religious employer” exemption therefrom in a way that makes it impossible for FOCUS and other similarly situated non-profit religious organizations to simultaneously comply with their religious beliefs and Defendants’ HHS Contraceptive Mandate.
187. Defendants promulgated Defendants’ HHS Contraceptive Mandate’s narrow “religious employer” exemption, and its implicit exemption of self-insured church plan participants, so that it Defendants’ HHS Contraceptive Mandate is not neutral in that it exempts from Defendants’ HHS Contraceptive Mandate some nonprofit religious organizations which are religious but not others, like FOCUS, which are equally religious, thereby discriminating among religious organizations on the basis of their religious views or status.
188. The Free Exercise Clause, along with the Establishment Clause, protect the right of religious organizations to decide for themselves, free from government interference, matters of internal organizational governance as well as matters of faith and doctrine.
189. The Free Exercise Clause thus prohibits the government from interfering with a religious organization’s internal decisions concerning its religious structure, leadership, doctrine, and policies, or the degree to which it is an integrated auxiliary or a church.
190. The government may not interfere with a religious organization’s internal decisions if that interference would affect the faith and mission of the organization itself.
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191. Based on Biblical teachings, the 2,000 year old teachings of the Catholic Church, and its own sincerely held religious beliefs, FOCUS has made the internal organizational decision that its employee health plan may not, as a matter of faith and practice, subsidize, provide, arrange, or otherwise facilitate access to contraception, sterilization, abortifacients, or abortion and counseling and education related to the same.
192. Defendants’ HHS Contraceptive Mandate directly interferes with FOCUS’s internal organizational decision concerning its structure and mission by requiring it to subsidize, provide, arrange, or otherwise facilitate free access to contraception, sterilization, abortifacients, or abortion and counseling and education related to the same.
193. Defendants’ HHS Contraceptive Mandate’s interferes with FOCUS’s internal organizational decisions and thus affects its faith and religious mission by requiring it to subsidize, provide, arrange, or otherwise facilitate free access to contraception, sterilization, abortifacients, or abortion and counseling and education related to the same in direct violation of its religious beliefs.
194. Defendants’ HHS Contraceptive Mandate’s interference with FOCUS’s internal organizational decision-making in a manner that affects its faith and mission violates the Free Exercise Clause.
195. Defendants promulgated and implemented Defendants’ HHS Contraceptive Mandate and the “religious employer” exemption and its implicit exemption of self-insured church plan participants among organizations like FOCUS in order to suppress the religious exercise of FOCUS and other similarly situated religious organizations.
196. Defendants’ HHS Contraceptive Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
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197. Defendants’ HHS Contraceptive Mandate and/or its penalties, by Defendants’ creation, do not apply to, inter alia, (a) an enormous number of health insurance plans that enjoy “grandfathered” status; (b) plans sponsored by employers that qualify for the “religious employer” exemption (including integrated auxiliaries that are similar to FOCUS); or (c) selfinsured church plans for organizations like FOCUS, thus, conclusively demonstrating the lessthan-compelling nature of the interest that allegedly underlies Defendants’ HHS Contraceptive Mandate.
198. Indeed, access to contraceptives or abortifacients and related counseling and education is not a significant social problem as the availability of such items is ubiquitous, and compelling FOCUS to play an essential role in facilitating free access to such objectionable drugs, devices, and services is not the least restrictive means of advancing any interest Defendants may conceivably have.
199. Defendants’ HHS Contraceptive Mandate violates Plaintiffs’ rights secured to it by the Free Exercise Clause of the First Amendment to the United States Constitution.
200. Absent injunctive and declaratory relief against application and enforcement of Defendants’ HHS Contraceptive Mandate, Plaintiffs will suffer irreparable harm.
THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 201. Plaintiffs reallege the factual allegations of paragraphs 1 through 200 and incorporate them herein by this reference. 202. The First Amendment’s Establishment Clause requires governmental neutrality toward religion and prohibits the government from discriminating among religions and preferring some religious denominations or views over others.
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203. Defendants’ HHS Contraceptive Mandate discriminates among religions and favors some religions and religious views over others.
204. Defendants’ HHS Contraceptive Mandate’s narrow exemption for “religious employers,” and its refraining from imposing a penalty on third party administrators of selfinsured church plans for organizations similar to FOCUS, discriminates among religions on the basis of religious views, religious status, or incidental institutional structure or affiliation by determining that some religious employers are “religious enough” to qualify for a full exemption while others are not.
205. Defendants’ HHS Contraceptive Mandate’s exemption of integrated auxiliaries of churches, coupled with its refusal to exempt organizations such as FOCUS, is irrational and discriminatory.
206. Thus, Defendants’ HHS Contraceptive Mandate discriminates among individual religious believers who work at exempted entities and those who do not, crediting the significance of the beliefs of the former but not of the latter.
207. Defendants’ HHS Contraceptive Mandate adopts a particular theological view of what is acceptable moral complicity in the provision of contraceptives and abortifacients and imposes it through Defendants’ Final Rule and Defendants’ Final Interim Regulation upon most religionists like FOCUS (except those Defendants favor via the “religious employer” exemption) who must either conform their consciences or suffer penalty. Yet Defendants choose other, situationally indistinguishable religionists and arbitrarily chooses not to impose Defendants’ HHS Contraceptive Mandate and resulting penalties for non-compliance on them.
208. Defendants’ HHS Contraceptive Mandate’s narrow “religious employer” exemption, and its refraining from imposing a penalty on third party administrators of self-
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insured church plans of organizations substantially like FOCUS, exempts some religious employers but not others, thereby discriminating among religious organizations and favoring some religions and religious views over others.
209. Defendants’ HHS Contraceptive Mandate furthers no governmental interest. 210. Defendants’ HHS Contraceptive Mandate violates FOCUS’s rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution. 211. Absent injunctive and declaratory relief against the application and enforcement of Defendants’ HHS Contraceptive Mandate, Plaintiffs will suffer irreparable harm.
FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 212. Plaintiffs reallege the factual allegations of paragraphs 1 through 211 and incorporate them herein by this reference. 213. Defendants’ requirement that FOCUS provide insurance coverage that includes education and counseling regarding objectionable contraceptives and abortifacients forces FOCUS to communicate, i.e., speak, in a manner contrary to its religious beliefs. Likewise, Defendants’ HHS Contraceptive Mandate censors FOCUS from speaking in a manner consistent with its religious beliefs. 214. FOCUS lives, practices, and teaches that abortion, contraceptives, and abortifacients violate God’s law and that any participation in the unjustified taking of an innocent human life or artificial anti-conception contradicts its religious beliefs and convictions. 215. Defendants’ HHS Contraceptive Mandate compels FOCUS to either speak or to facilitate speech relating to contraception, abortifacients, abortion, and sterilization that is
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contrary to the religious beliefs, values, expressions, and practices that FOCUS and the individual Plaintiffs speak, live, practice, and teach.
216. Defendants’ HHS Contraceptive Mandate compels FOCUS to facilitate access to government-dictated education and counseling related to abortion, contraception, and abortifacients.
217. Defendants’ HHS Contraceptive Mandate also requires FOCUS to engage in specific speech to its third party administrator that expressly and/or operatively designates the third party administrator to provide the exact same promises of payments for contraceptives and abortifacients that FOCUS religiously objects to providing or facilitating.
218. Defendants thus violate FOCUS’s right to be free from compelled speech, a right secured to it by the Free Speech Clause of the First Amendment to the United States Constitution.
219. Defendants’ HHS Contraceptive Mandate’s compelled speech and censorship requirements do not advance a compelling governmental interest.
220. Defendants have no narrowly tailored compelling interest to justify this compelled speech or censorship.
221. Defendants thus violate FOCUS’s freedom of speech, and impose censorship on FOCUS’s religiously motivated speech, rights secured to it by the Free Speech Clause of the First Amendment to the United States Constitution.
222. Absent injunctive and declaratory relief against application and enforcement of the HHS Contraceptive Mandate, Plaintiffs will suffer irreparable harm.
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FIFTH CLAIM FOR RELIEF Violation of Due Process and Equal Protection As Guaranteed by the
Fifth Amendment to the United States Constitution 223. Plaintiffs reallege the factual allegations of paragraphs 1 through 222 and incorporate them herein by this reference. 224. The Due Process Clause of the Fifth Amendment requires that government actors treat equally all persons similarly situated. 225. This requirement of equal treatment applies to organizations as well as to individuals. 226. Through Defendants’ HHS Contraceptive Mandate’s narrow “religious employer” exemption, Defendants have exempted certain religious organizations that object, based on deeply held religious beliefs, to complying with Defendants’ HHS Contraceptive Mandate, but have refused to exempt others, including FOCUS, from complying with Defendants’ HHS Contraceptive Mandate. 227. By extending the “religious employer” exemption to certain religious groups, but failing and refusing to extend it to FOCUS, Defendants have treated FOCUS differently than similarly situated religious groups. 228. Defendants’ HHS Contraceptive Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest there may be. 229. Because Defendants’ HHS Contraceptive 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 FOCUS and others not before this Court. 230. Persons of common intelligence must necessarily guess at the meaning, scope, and application of Defendants’ HHS Contraceptive Mandate and its exemptions.
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231. Defendants’ HHS Contraceptive Mandate lends itself to discriminatory enforcement by Defendants in an arbitrary and capricious manner, and to lawsuits by private persons, based on the Defendants’ vague standards.
232. Defendants’ HHS Contraceptive 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 Defendants’ definition of a “religious employer.”
233. Defendants’ HHS Contraceptive Mandate violates Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution.
234. Absent injunctive and declaratory relief against application and enforcement of Defendants’ HHS Contraceptive Mandate, FOCUS and the Individual Plaintiffs will suffer irreparable harm.
SIXTH CLAIM FOR RELIEF Violation of the First Amendment to the United States Constitution
Freedom of Expressive Association 235. Plaintiffs reallege the factual allegations of paragraphs 1 through 234 and incorporate them herein by this reference. 236. FOCUS and its employees, including the Individual Plaintiffs, associate with FOCUS for an expressive purpose, to live and promote their common religious beliefs, which include the teachings outlined above. 237. Defendants’ HHS Contraceptive Mandate compels FOCUS and its employees to facilitate expression and activities that are inconsistent with Plaintiffs’ religious beliefs, expression, and practices. 238. Defendants’ actions thus violate Plaintiffs’ right of expressive association protected by the Free Speech Clause of the First Amendment to the United States Constitution.
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239. Absent injunctive and declaratory relief against the application and enforcement of Defendants’ HHS Contraceptive Mandate, Plaintiffs will suffer irreparable harm.
SEVENTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act (“APA”) 240. Plaintiffs reallege the factual allegations of paragraphs 1 through 239 and incorporate them herein by this reference. 241. The APA forbids agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A). The APA further forbids agency action that is “in excess of statutory jurisdiction, authority, or limitations.” 5. U.S.C. § 706(2)(C). 242. Defendants relied upon a flawed study by IOM which, presumably in concert with HHS, was made up of individuals and organizations whose bias was the support of mass distribution, at public taxpayer expense, of abortion, abortion-inducing drugs and devices, and contraceptives. 243. Notwithstanding the fact that it has taken three years for Defendants to implement their HHS Contraceptive Mandate against FOCUS and other similarly situated non-profit religious organizations, Defendants did not give proper notice and an opportunity for public comment. 244. Thus, Defendants did not take into account the full implications of Defendants’ regulations by completing a meaningful consideration of the relevant matters and objections presented. 245. Further, Defendants did not consider or respond to the hundreds of thousands of comments they received in opposition to their regulations.
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246. Each regulation promulgated by Defendants was issued and implemented and on a final basis and only then were comments requested. Yet, as is clear from the regulatory text of each of Defendants’ regulations, coupled with the public comments of representatives of Defendants as described above, Defendants had no intention of considering either the objections of religious organizations or the requests by such religious organizations to provide them with exemptions, or to hold off on the effective date of their regulations until after Defendants had received and analyzed all such comments as were submitted.
247. Thus, Defendants imposed Defendants’ rules without the required “openmindedness” that government agencies must have when notice-and-comment occurs.
248. Defendants also did not have good cause to impose the objectionable regulations without prior notice and comment.
249. Moreover, Defendants issued its Final Rule implementing their HHS Contraceptive Mandate (which applies to FOCUS) on June 28, 2013, and declared it effective on August 1, 2013 and their “Interim Final Regulations (which also apply to FOCUS) on August 22, 2014, and declared them effective on August 27, 2014 with the result, considering Defendants’ so-called “safe harbor,” that imposes the HHS Contraceptive Mandate on FOCUS immediately.
250. The ACA provides, and Defendants admit, that any rule issued by Defendants requiring coverage of preventive care and screenings under 42 U.S.C. § 300gg-13 (which language is the genesis of Defendants’ HHS Contraceptive Mandate) cannot go into effect until at least a year after the rule is finalized.
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251. Thus, under these provisions, Defendants’ Final Rule implementing their HHS Contraceptive Mandate (which applies to FOCUS) was not effective until on and after August 1, 2014.
252. However, on April 29, 2014, this Court granted FOCUS a preliminary injunction against Defendants’ HHS Contraceptive Mandate (Doc. 39), which preliminary injunction remains in place to date.
253. Likewise, Defendants’ “Interim Final Regulations” (which also apply to FOCUS) should not be effective as to FOCUS or others similarly situated to FOCUS until on or after August 27, 2015. Nevertheless, though this Court’s injunction serves to bar the implementation of this iteration of Defendants’ HHS Contraceptive Mandate, Defendants purport to be able to require FOCUS to comply with their HHS Contraceptive Mandate pursuant to Defendants’ “Interim Final Regulations” immediately.
254. Thus, in addition to this Court’s injunction order, immediate implementation of Defendants’ HHS Contraceptive Mandate pursuant to Defendants’ “Interim Final Regulations” violates the ACA and/or violates the APA’s requirement that government agencies be openminded to comments before finalizing any rules.
255. In promulgating the HHS Contraceptive Mandate, Defendants failed to consider the constitutional and statutory implications of the HHS Contraceptive Mandate on FOCUS and similar organizations.
256. Defendants’ explanation (and lack thereof) for its decision not to exempt FOCUS and similarly situated religious organizations from their HHS Contraceptive Mandate runs counter to the evidence submitted by religious organizations during the comment period. And Defendants lack any explanation or rationale for withholding their penalty on third party
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administrators or self-insured church plans, despite the participation of many entities indistinguishable from FOCUS in those plans.
257. Thus, Defendants’ issuance of the HHS Contraceptive Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the HHS Contraceptive Mandate failed to consider the full extent of its implications and it did not take into consideration the evidence against it.
258. 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 as a result of which Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D), and have taken action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706(2)(A).
259. As set forth above, the HHS Contraceptive Mandate violates RFRA and the First and Fifth Amendments to the U.S Constitution.
260. In addition, the HHS Contraceptive 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 [abortion] services . . . as part of its essential health benefits for any plan year.” Section 1303(b)(1)(A).
261. Implementation of Defendants’ HHS Contraceptive Mandate pursuant to Defendants’ “Final Interim Regulations” is also not in accord with the law.
262. As set forth above, Defendants essentially acknowledged in their Final Rule (see 78 Fed. Reg. 39879) that, without the completion and delivery by FOCUS of Defendants’ EBSA Form 700 self-certification form, Defendants had no legal authority by which to compel
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either FOCUS or its third party administrator to comply with Defendants’ HHS Contraceptive Mandate.
263. In Defendants’ new Interim Final Regulations, Defendants baldly claim that DOL is able to exercise “its broad rulemaking authority under Title I of ERISA and to interpret and apply the definition of a plan administrator under ERISA section 3(16)(A) to require FOCUS’s third party administrator to comply with Defendants’ HHS Contraceptive Mandate by virtue of FOCUS’s completion and delivery of Defendants’ Model Notice which, unlike Defendants’ EBSA Form 700 self-certification form, does not designate FOCUS’s third party administrator as FOCUS’s agent for the purpose of implementing Defendants’ HHS Contraceptive Mandate.
264. Thus, Defendants’ HHS Contraceptive Mandate violates the ACA itself, 42 U.S.C. § 300gg-13, which give Defendants no authority whatsoever to impose mandates that cause access to contraceptive or abortifacient coverage or payments in a vehicle outside of or separate from FOCUS’s own health insurance plan, or to impose requirements on FOCUS to designate or otherwise agree that its third party administrator may do so. No other federal statute gives Defendants any such authority.
265. Defendants’ HHS Contraceptive 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.”
58

Case 1:13-cv-03263-MSK-KMT Document 53 Filed 10/22/14 USDC Colorado Page 59 of 63
266. Defendants’ HHS Contraceptive Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that “[n]o 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.”
267. The HHS Contraceptive Mandate is therefore illegal, contrary to existing law, and in violation of the APA under 5 U.S.C. §§ 706(2)(A) and 706(2)(C).
268. Absent injunctive and declaratory relief against application and enforcement of the HHS Contraceptive Mandate, Plaintiffs will suffer irreparable harm.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs Fellowship of Catholic University Students, Curtis A. Martin, Craig A. Miller, Brenda Cannella, and Cindy O’Boyle respectfully request the following relief: A. That this Court enter judgment declaring the HHS Contraceptive Mandate and its application to Plaintiff Fellowship of Catholic University Students and its insurance issuers or third party administrators to be a violation of its rights protected by 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 to the United States Constitution, and the Administrative Procedure Act; B. That this Court enter a permanent injunction prohibiting Defendants from applying the HHS Contraceptive Mandate to Plaintiff Fellowship of Catholic University Students and to its 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
59

Case 1:13-cv-03263-MSK-KMT Document 53 Filed 10/22/14 USDC Colorado Page 60 of 63
discriminate against Plaintiff Fellowship of Catholic University Students by requiring it to
provide, arrange, or facilitate health insurance coverage or access to separate payments for
contraceptives, abortifacients, and related counseling through any mechanism which uses
FOCUS’s health insurance plan for its present and future employees, including the Individual
Plaintiffs;
C. That this Court award Plaintiffs their court costs and reasonable attorney's fees,
as provided by the Equal Access to Justice Act and Religious Freedom Restoration Act (as
provided in 42 U.S.C. § 1988); and
D. That this Court grant such other and further relief as the Court may deem just
and proper. Respectfully submitted this 22nd day of October, 2014. ATTORNEYS FOR PLAINTIFFS
s/ Michael J. Norton Michael J. Norton Natalie L. Decker ALLIANCE DEFENDING FREEDOM 7951 E. Maplewood Avenue, Suite 100 Greenwood Village, CO 80111 (O) 720-689-2410 (F) 303-694-0703 mjnorton@alliancedefendingfreedom.org ndecker@alliancedefendingfreedom.org
David A. Cortman ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road NE Suite D-1100 Lawrenceville, GA 30043 Tel.: 770-339-0774 Fax.: 770-339-6744 dcortman@alliancedefendingfreedom.org
60

Case 1:13-cv-03263-MSK-KMT Document 53 Filed 10/22/14 USDC Colorado Page 61 of 63
Kevin H. Theriot ALLIANCE DEFENDING FREEDOM 15100 North 90th Street Scottsdale, AZ 85260 ktheriot@alliancedefendingfreedom.org Tel.: 480-444-0020 Steven H. Aden Gregory S. Baylor Matthew S. Bowman ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 Tel.: 202-393-8690 saden@alliancedefendingfreedom.org gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
61

Case 1:13-cv-03263-MSK-KMT Document 53 Filed 10/22/14 USDC Colorado Page 62 of 63
VERIFICATION OF COMPLAINT ACCORDING TO 28 U.S.C. § 1746 I, Curtis A. Martin, declare under penalty of perjury that the foregoing allegations regarding Fellowship of Catholic University Students and the Individual Plaintiffs (of which I am one) are true and correct to the best of my knowledge, information and belief. Executed on this 22nd day of October, 2014.
s/ Curtis A. Martin Curtis A. Martin Founder and Chief Executive Officer Fellowship of Catholic University Students *I CERTIFY THAT I HAVE SIGNED THE ORIGINAL OF THIS DOCUMENT, WHICH IS AVAILABLE FOR INSPECTION AT ANY TIME BY THE COURT OR A PARTY TO THIS ACTION.
62

Case 1:13-cv-03263-MSK-KMT Document 53 Filed 10/22/14 USDC Colorado Page 63 of 63 CERTIFICATE OF SERVICE
The undersigned counsel for Plaintiffs, Michael J. Norton, hereby certifies that, on the 22nd day of October, 2014, the foregoing was served on all parties or their counsel of record through the Court’s CM/ECF system, all of whom are registered users, to wit:
bradley.p.humphreys@usdoj.gov s/ Michael J. Norton Michael J. Norton
63

 
 Case: 1:13-cv-3263 As of: 11/05/2017 09:21 PM MST 1 of 8
ALLMTN,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:13−cv−03263−MSK−KMT

Fellowship of Catholic University Students et al v. Sebelius et al Date Filed: 12/03/2013

Assigned to: Chief Judge Marcia S. Krieger

Date Terminated: 06/12/2015

Referred to: Magistrate Judge Kathleen M. Tafoya

Jury Demand: Plaintiff

Cause: 42:2000bb Religious Freedom Restoration Act.

Nature of Suit: 890 Other Statutory

Actions

Jurisdiction: Federal Question

Plaintiff

Fellowship of Catholic University Students a Colorado non−profit corporation

represented by Michael Jeffrey Norton Thomas N. Scheffel & Associates, P.C. 3801 East Florida Avenue Suite 600 Denver, CO 80210 303−759−5937 Fax: 303−759−9726 Email: mnorton@tnslaw.com ATTORNEY TO BE NOTICED

Plaintiff Curtis A Martin

represented by Michael Jeffrey Norton (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Craig Miller

represented by Michael Jeffrey Norton (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Brenda Cannella

represented by Michael Jeffrey Norton (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Cindy O'Boyle

represented by Michael Jeffrey Norton (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Kathleen Sebelius Secretary of the United States Department of Health and Human Services

represented by Bradley Philip Humphreys U.S. Department of Justice−DC−Mass. Ave. 20 Massachusetts Avenue, N.W. Washington, DC 20530 202−514−3367 Email: bradley.p.humphreys@usdoj.gov ATTORNEY TO BE NOTICED
Michelle Renee Bennett U.S. Department of Justice−DC−Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, DC 20530

Case: 1:13-cv-3263 As of: 11/05/2017 09:21 PM MST 2 of 8

202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
United States Department of Health and Human Services

represented by Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED

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

Defendant
Thomas Perez Secretary of the United States Department of Labor

represented by Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED

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

Defendant United States Department of Labor

represented by Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED

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

Defendant
Jacob J. Lew Secretary of the United States Department of the Treasury

represented by Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED

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

Defendant
United States Department of the Treasury

represented by Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED

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

Amicus American Civil Liberties Union

represented by Brigitte Adrienne Amiri American Civil Liberties Union−New York 125 Broad Street 18th Floor New York, NY 10004−2400 212−549−2633 Fax: 212−549−2650 Email: bamiri@aclu.org ATTORNEY TO BE NOTICED

Case: 1:13-cv-3263 As of: 11/05/2017 09:21 PM MST 3 of 8

Amicus
American Civil Liberties Union of Colorado

Mark Silverstein American Civil Liberties Union−Denver 303 East 17th Street Suite 350 Denver, CO 80203 303−777−5482 Fax: 303−777−1773 Email: msilverstein@aclu−co.org ATTORNEY TO BE NOTICED
represented by Brigitte Adrienne Amiri (See above for address) ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/03/2013
12/03/2013
12/03/2013 12/03/2013 12/03/2013 12/03/2013 12/04/2013

# Docket Text
1 COMPLAINT against Jacob J Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Filing fee $ 400, Receipt Number 1082−3642777)Attorney Michael Jeffrey Norton added to party Brenda Cannella(pty:pla), Attorney Michael Jeffrey Norton added to party Fellowship of Catholic University Students(pty:pla), Attorney Michael Jeffrey Norton added to party Curtis A Martin(pty:pla), Attorney Michael Jeffrey Norton added to party Craig Miller(pty:pla), Attorney Michael Jeffrey Norton added to party Cindy O'Boyle(pty:pla), filed by Craig Miller, Curtis A Martin, Brenda Cannella, Fellowship of Catholic University Students, Cindy O'Boyle.(Norton, Michael) (Entered: 12/03/2013)
2 Exhibits in Support of 1 Complaint,,, Exhibit A by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Civil Cover Sheet, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons)(Norton, Michael) (Entered: 12/03/2013)
3 Case assigned to Chief Judge Marcia S. Krieger and drawn to Magistrate Judge Kathleen M. Tafoya. Text Only Entry (dbera, ) (Entered: 12/03/2013)
4 SUMMONS issued by Clerk. Magistrate Judge Consent Form attached. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Magistrate Judge Consent Form) (dbera, ) (Entered: 12/03/2013)
5 CORPORATE DISCLOSURE STATEMENT. (Norton, Michael) (Entered: 12/03/2013)
6 NOTICE OF CASE ASSOCIATION by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle (Norton, Michael) (Entered: 12/03/2013)
7 ORDER REFERRING CASE to Magistrate Judge Kathleen M. Tafoya: IT IS ORDERED that pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this matter is referred to the assigned United States Magistrate Judge to:(1)Convene a scheduling conference under Fed. R. Civ. P. 16(b), enter a Scheduling Order meeting the requirements of D.C.COLO.LCivR 16.2, enter such orders as appropriate to enforce the Scheduling Order, and resolve discovery matters;(2)ADR: Court sponsored alternative dispute resolution is governed by D.C.COLO.LCivR 16.6. On the recommendation or informal request of the magistrate judge or on the request of the parties by motion, the Court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding;(3)Hear and determine referred matters in accordance with 28 U.S.C. §

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12/06/2013 12/06/2013
12/16/2013 12/17/2013
01/15/2014 01/15/2014 01/21/2014 01/27/2014 01/28/2014 02/10/2014

636(b)(1)(A) and (B). by Chief Judge Marcia S. Krieger on 12/4/13. Text Only Entry (msksec, ) (Entered: 12/04/2013)
8 ORDER Setting Scheduling Conference for 3/5/2014 at 09:30 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya, by Magistrate Judge Kathleen M. Tafoya on 12/6/13. (sgrim) (Entered: 12/06/2013)
9 ORDER REGARDING CUSTODY OF EXHIBITS AND DEPOSITIONS USED IN EVIDENTIARY HEARINGS AND TRIALS: Any exhibits and depositions used during evidentiary hearings or trials, counsel for the parties shall retrieve the originals of such exhibits and depositions from the Court following the evidentiary hearing or trial, and shall retain same for 60 days beyond the later of the time to appeal or conclusion of any appellate proceedings. The Court will retain its copy of the exhibits for the same time period after which the documents will be destroyed. by Chief Judge Marcia S. Krieger on 12/6/13. Text Only Entry (mskcd) (Entered: 12/06/2013)
10 AMENDED COMPLAINT against Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, filed by Craig Miller, Curtis A Martin, Brenda Cannella, Fellowship of Catholic University Students, Cindy O'Boyle.(Norton, Michael) (Entered: 12/16/2013)
11 NOTICE of Entry of Appearance by Bradley Philip Humphreys on behalf of All Defendants Attorney Bradley Philip Humphreys added to party Jacob J. Lew(pty:dft), Attorney Bradley Philip Humphreys added to party Thomas Perez(pty:dft), Attorney Bradley Philip Humphreys added to party Kathleen Sebelius(pty:dft), Attorney Bradley Philip Humphreys added to party United States Department of Health and Human Services(pty:dft), Attorney Bradley Philip Humphreys added to party United States Department of Labor(pty:dft), Attorney Bradley Philip Humphreys added to party United States Department of the Treasury (pty:dft) (Humphreys, Bradley) (Entered: 12/17/2013)
12 MOTION for Partial Summary Judgment by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Attachments: # 1 Exhibit A)(Norton, Michael) Modified on 2/10/2014 to show motion was not ruled on. (sgrim) (Entered: 01/15/2014)
13 SUMMONS Returned Executed upon defendant(s) Kathleen Sebelius served on 12/12/2013, answer due 2/10/2014. (Norton, Michael) (Entered: 01/15/2014)
14 AFFIDAVIT/RETURN of Service of Order Setting Rule 16(b) Scheduling Conference and Rule 26(f) Planning Meeting upon All Parties on 12/6/13, filed by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle (Norton, Michael) (Entered: 01/21/2014)
15 Joint MOTION for Order to Set Briefing Schedule by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Norton, Michael) (Entered: 01/27/2014)
16 MEMORANDUM regarding 15 Joint MOTION for Order to Set Briefing Schedule filed by Cindy O'Boyle, Curtis A Martin, Fellowship of Catholic University Students, Brenda Cannella, Craig Miller. Motions referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Marcia S. Krieger on 1/28/14. Text Only Entry (msksec, ) (Entered: 01/28/2014)
17 MINUTE ORDER. The Joint Motion to Set Briefing Schedule 15 is GRANTED in part and DENIED in part. Defendants shall answer or otherwise respond to the Complaint on or before February 13, 2014. The motion to set a briefing schedule regarding Plaintiffs' Motion for Partial Summary Judgment 12 is GRANTED. Defendants' response in opposition to Plaintiffs' motion for partial summary judgment shall be filed on or by February 13, 2014. Plaintiffs' reply in support of their motion for partial summary judgment shall be filed on or by March 6, 2014. The motion to set a briefing schedule on Defendants' anticipated motion to dismiss or, in the alternative, motion for summary judgment is DENIED as premature. The motion to vacate the Order Setting Rule 16 (b) Scheduling Conference and Rule 26(f) Planning Meeting 8 is DENIED, by Magistrate Judge Kathleen M. Tafoya on 2/10/14.(sgrim) (Entered: 02/10/2014)

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02/13/2014 02/17/2014 02/18/2014 02/18/2014 02/19/2014 02/19/2014 02/20/2014 02/24/2014
02/25/2014 02/26/2014
02/26/2014 02/26/2014 03/05/2014

18 BRIEF in Opposition to 12 MOTION for Partial Summary Judgment filed by Defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Humphreys, Bradley) (Entered: 02/13/2014)
19 MOTION to Dismiss or, in the Alternative, for Summary Judgment by Defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Humphreys, Bradley) (Entered: 02/17/2014)
20 Unopposed MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Partial Summary Judgment by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Norton, Michael) (Entered: 02/18/2014)
21 MOTION to File Amicus Brief by Amicus Parties American Civil Liberties Union, American Civil Liberties Union of Colorado. (Attachments: # 1 Proposed Document Proposed Amicus Brief, # 2 Proposed Order (PDF Only))(Amiri, Brigitte) (Entered: 02/18/2014)
22 RESPONSE to 21 MOTION to File Amicus Brief filed by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Norton, Michael) (Entered: 02/19/2014)
23 ORDER granting 20 Unopposed Motion for Extension of Time to File Response/Reply to Motion for Partial Summary Judgment. Extension granted up to and including March 11, 2014. by Chief Judge Marcia S. Krieger on 2/19/14. Text Only Entry(msksec, ) (Entered: 02/19/2014)
24 NOTICE of Filing of Administrative Record by Defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Exhibit Administrative Record Index)(Humphreys, Bradley) (Entered: 02/20/2014)
25 ADMINISTRATIVE RECORD − 3 CDs marked Administrative Record Fellowshihp of Catholic University Students v. Sebelius Case No. 1:13−cv−03063−MSK−KMT District Colorado CD1, CD2 and CD3, by Defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury.(Text Only Entry − Available in other format at the Clerk's Office) (klyon, ) (Entered: 02/25/2014)
26 Unopposed MOTION for Leave to Appear Telephonically at March 5, 2015 Rule 16 Conference by Defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Humphreys, Bradley) (Entered: 02/25/2014)
27 MEMORANDUM regarding 26 Unopposed MOTION for Leave to Appear Telephonically at March 5, 2015 Rule 16 Conference filed by Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Thomas Perez, United States Department of the Treasury, United States Department of Labor. Motions referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Marcia S. Krieger on 2/26/14. Text Only Entry (msksec, ) (Entered: 02/26/2014)
28 MINUTE ORDER granting 26 Motion for Leave to Appear Telephonically at March 5, 2014 Rule 16 Conference. Defendants may attend the Scheduling Conference by calling 303−335−2780 at the scheduled time. By Magistrate Judge Kathleen M. Tafoya on 2/26/14. Text Only Entry(kmtlc1 ) (Entered: 02/26/2014)
29 Proposed Scheduling Order by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Norton, Michael) (Entered: 02/26/2014)
30 COURTROOM MINUTES for Scheduling Conference held on 3/5/2014 before Magistrate Judge Kathleen M. Tafoya. ORDERED: Counsel is directed to submit a proposed order to the Court addressing the potential stay on the narrowed scope of topics, as discussed, on or before March 12, 2014. A continued Telephonic

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03/10/2014 03/10/2014 03/11/2014 03/25/2014
04/11/2014 04/14/2014 04/15/2014 04/22/2014 04/23/2014
04/23/2014

Scheduling/Status Conference is set for April 17, 2014 at 10:00 a.m. in Courtroom C−201 before Magistrate Judge Kathleen M. Tafoya. Counsel does not have to object or respond to any propounded discovery at this time. FTR: S. Grimm − C201. (sgrim) (Entered: 03/05/2014)
31 REPLY to Response to 12 MOTION for Partial Summary Judgment filed by Plaintiffs Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Norton, Michael) (Entered: 03/10/2014)
32 Proposed Scheduling Order by Defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Humphreys, Bradley) (Entered: 03/10/2014)
33 MOTION for Preliminary Injunction by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Attachments: # 1 Brief in Support, # 2 Proposed Order (PDF Only))(Norton, Michael) (Entered: 03/11/2014)
34 ORDER AND RECOMMENDATION OF MAGISTRATE JUDGE. All discovery is stayed pending ruling on "Plaintiff's Motion for Partial Summary Judgment" [Doc. No. 12 ] and "Plaintiff's Motion for Preliminary Injunction, Certificate of Compliance Re: Consultation and Request for Forthwith Consideration" [Doc. No. 33 ], or until further order of the court. It is Recommended that the District Court suspend consideration of Defendants' "Motion to Dismiss or, in the Alternative, for Summary Judgment" [Doc. No. 19 ] and that any response to that Motion from the Plaintiff be deferred until further order of the court. By Magistrate Judge Kathleen M. Tafoya on 3/25/2014. (klyon, ) (Entered: 03/25/2014)
35 MINUTE ORDER: The parties shall file a Joint Status Report on or before 4/15/2014 regarding the need to hold the Status Conference set for 4/17/2014 in light of the stay of discovery and other matters entered on 3/25/2014 (See Doc. No. 34). By Magistrate Judge Kathleen M. Tafoya on 4/11/2014. Text Only Entry (kmtlc2) (Entered: 04/11/2014)
36 Joint STATUS REPORT by Plaintiffs Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Norton, Michael) (Entered: 04/14/2014)
37 MINUTE ORDER: The Status Conference/Scheduling Conference set for April 17, 2014, is VACATED. By Magistrate Judge Kathleen M. Tafoya on 4/15/14. Text Only Entry (kmtlc1 ) (Entered: 04/15/2014)
38 ORDER granting 21 Motion to File Amicus Brief. Having considered the Motion and the Response, the Motion is granted. Any brief shall be filed within 21 days of today's date. by Chief Judge Marcia S. Krieger on 04/22/14. Text Only Entry(msklc1, ) (Entered: 04/22/2014)
39 ORDER granting 33 Motion for Preliminary Injunction. The Motion 33 was served properly on Defendants through electronic filing on March 11, 2014. Pursuant to D.C.COLO.LCivR 7.1(d), Defendants' response was due 21 days thereafter. No response in opposition was timely filed. Treating the motion as unopposed, it is granted. by Chief Judge Marcia S. Krieger on 04/23/14. Text Only Entry(msklc1, ) (Entered: 04/23/2014)
40 ORDER adopting Report and Recommendations re 34 Report and Recommendations. The Magistrate Judge's Recommendation 34 is adopted in part. The Court has granted Plaintiffs' Unopposed Motion for Preliminary Injunction. Discovery has been stayed pending the Court's ruling on Plaintiffs' Motion for Partial Summary Judgment 12 . The Court defers ruling on such motion until after a determination is made by the United States Supreme Court in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), cert. granted, 134 S.Ct. 678 (2013). The parties shall have 30 days after the Supreme Court issues its ruling in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), cert. granted, 134 S.Ct. 678 (2013), to file supplemental briefing with regard to 12 . by Chief Judge Marcia S. Krieger on 04/23/14. Text Only Entry(msklc1, ) (Entered: 04/23/2014)

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04/23/2014 05/02/2014 07/16/2014 07/30/2014 07/30/2014 09/15/2014 09/16/2014 09/17/2014 09/30/2014
10/22/2014 10/22/2014 10/22/2014
10/22/2014

41 BRIEF in Opposition to 19 MOTION to Dismiss or, in the Alternative, for Summary Judgment, 12 MOTION for Partial Summary Judgment , Brief in Support of 19 Motion to Dismiss filed by Amicus Parties American Civil Liberties Union, American Civil Liberties Union of Colorado. (Attachments: # 1 Exhibit A)(Silverstein, Mark) (Entered: 04/23/2014)
42 STATEMENT re 21 MOTION to File Amicus Brief , 41 Brief in Opposition to Motion, by Plaintiffs Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Norton, Michael) (Entered: 05/02/2014)
43 STATUS REPORT by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Norton, Michael) (Entered: 07/16/2014)
44 BRIEF in Support of 12 MOTION for Partial Summary Judgment Plaintiffs' Supplemental Brief In Support of Their Motion for Partial Summary Judgment filed by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Norton, Michael) (Entered: 07/30/2014)
45 MOTION for Extension of Time to File Supplemental Brief by Defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Humphreys, Bradley) (Entered: 07/30/2014)
46 BRIEF in Opposition to 12 MOTION for Partial Summary Judgment filed by Defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Humphreys, Bradley) (Entered: 09/15/2014)
47 ORDER granting 45 Motion for Extension of Time to File Supplemental Brief. No response or objection having been filed, the Motion is GRANTED. by Chief Judge Marcia S. Krieger on 9/16/14. Text Only Entry(msksec, ) (Entered: 09/16/2014)
48 RESPONSE to 46 Brief in Opposition to Motion, by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Norton, Michael) (Entered: 09/17/2014)
49 ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION TO DISMISS AND DIRECTING THE FILING OF AN AMENDED COMPLAINT: IT IS THEREFORE ORDERED that (1) The Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment 19 is DENIED as moot. (2) Plaintiffs' Motion for Summary Judgment 12 is DENIED without prejudice. (3) Within 30 days of the date of this Order, Plaintiffs shall file a Second Amended Complaint, failing which the case will be dismissed for failure to prosecute. by Chief Judge Marcia S. Krieger on 9/30/14.(msksec, ) (Entered: 09/30/2014)
50 MOTION to Amend/Correct/Modify 10 Amended Complaint, by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Attachments: # 1 Second Amended Verified Complaint and Jury Demand, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Norton, Michael) (Entered: 10/22/2014)
51 MEMORANDUM regarding 50 MOTION to Amend/Correct/Modify 10 Amended Complaint, filed by Cindy O'Boyle, Curtis A Martin, Fellowship of Catholic University Students, Brenda Cannella, Craig Miller. Motions referred to Magistrate Judge Kathleen M. Tafoya by Chief Judge Marcia S. Krieger on 10/22/14. Text Only Entry (msksec, ) (Entered: 10/22/2014)
52 MINUTE ORDER granting 50 Motion to Amend Complaint. In her Order dated September 30, 2014, Chief District Judge Marcia S. Krieger ordered Plaintiffs to file an amended complaint within thirty days. Therefore, Plaintiff's motion to amend is granted. Plaintiffs may file their Second Verified Complaint no later than October 30, 2014. By Magistrate Judge Kathleen M. Tafoya on 10/22/14. Text Only Entry(kmtlc1 ) (Entered: 10/22/2014)
53 AMENDED COMPLAINT against American Civil Liberties Union, American Civil Liberties Union of Colorado, Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor,

Case: 1:13-cv-3263 As of: 11/05/2017 09:21 PM MST 8 of 8

12/01/2014 12/01/2014 12/22/2014 12/26/2014 12/29/2014 12/29/2014
03/13/2015
06/11/2015 06/12/2015

United States Department of the Treasury, filed by Craig Miller, Curtis A Martin, Brenda Cannella, Fellowship of Catholic University Students, Cindy O'Boyle. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Norton, Michael) (Entered: 10/22/2014)
54 MOTION for Summary Judgment by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Norton, Michael) (Entered: 12/01/2014)
55 Exhibits in Support of 54 MOTION for Summary Judgment Proposed Judgment and Permanent Injunction Order by Plaintiffs Brenda Cannella, Fellowship of Catholic University Students, Curtis A Martin, Craig Miller, Cindy O'Boyle. (Norton, Michael) (Entered: 12/01/2014)
56 Unopposed MOTION for Extension of Time to File Response/Reply as to 54 MOTION for Summary Judgment by Defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Proposed Order (PDF Only))(Humphreys, Bradley) (Entered: 12/22/2014)
57 Joint MOTION to Stay re 54 MOTION for Summary Judgment by Defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Proposed Order (PDF Only))(Humphreys, Bradley) (Entered: 12/26/2014)
58 ORDER granting 56 Motion for Extension of Time to File Response/Reply to Motion for Summary Judgment. Extension granted up to and including December 29, 2014. by Chief Judge Marcia S. Krieger on 12/29/14. Text Only Entry(msksec, ) (Entered: 12/29/2014)
59 ORDER: This motion requests that briefing on the pending Motion for Summary Judgment 54 be stayed until three cases with similar issues are resolved by the Tenth Circuit Court of Appeals. The parties agree that the determination of the cases on appeal may affect determination of the issues presented here, but there is no representation as to whether the resolution of one, two or all of the cases will be necessary nor when such resolution is anticipated. In essence, the parties request an indefinite stay of briefing, but seek to have the injunction 39 remain in effect. The Court quite agrees with the parties' assessment that current briefing of the pending Motion of Summary Judgment would be inefficient, but imposition of an indefinite stay is less than ideal. Therefore, the Court denies the motion for stay 57 , but also denies the pending Motion for Summary Judgment 54 , with leave to reinstate it within 10 days of the expiration of the period of appeal from the last decision rendered by the Tenth Circuit Court of Appeals in the cases identified. In the event that a writ of certiorari is sought with regard to any of the identified cases, a further extension is granted until 10 days after the date that such petition is ruled upon. by Chief Judge Marcia S. Krieger on 12/29/14. Text Only Entry(msksec, ) (Entered: 12/29/2014)
60 NOTICE of Entry of Appearance by Michelle Renee Bennett on behalf of Jacob J. Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury Attorney Michelle Renee Bennett added to party Jacob J. Lew(pty:dft), Attorney Michelle Renee Bennett added to party Thomas Perez(pty:dft), Attorney Michelle Renee Bennett added to party Kathleen Sebelius(pty:dft), Attorney Michelle Renee Bennett added to party United States Department of Health and Human Services(pty:dft), Attorney Michelle Renee Bennett added to party United States Department of Labor(pty:dft), Attorney Michelle Renee Bennett added to party United States Department of the Treasury (pty:dft) (Bennett, Michelle) (Entered: 03/13/2015)
61 STIPULATION of Dismissal of Case WITH PREJUDICE by Plaintiff Fellowship of Catholic University Students. (Norton, Michael) (Entered: 06/11/2015)
62 Civil Case Terminated pursuant to the stipulation to dismiss filed in this case on 6/11/15. Text Only Entry (dkals, ) (Entered: 06/15/2015)