Case 5:13-cv-01015-F Document 1 Filed 09/20/13 Page 1 of 63
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) SOUTHERN NAZARENE

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UNIVERSITY; (2) OKLAHOMA

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WESLEYAN UNIVERSITY; (3)

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OKLAHOMA BAPTIST UNIVERSITY; and )

(4) MID-AMERICA CHRISTIAN

) Case No. CIV-13-1015-F

UNIVERSITY,

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Plaintiffs,

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v.

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(1) KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the United States

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Department of Health and Human Services; )

(2) THOMAS E. PEREZ, in his official

)

capacity as Secretary of the United States

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Department of Labor; (3) JACOB J. LEW, in )

his official capacity as Secretary of the United )

States Department of the Treasury; (4)

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UNITED STATES DEPARTMENT OF

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HEALTH AND HUMAN SERVICES; (5) )

UNITED STATES DEPARTMENT OF

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LABOR; and (6) UNITED STATES

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DEPARTMENT OF THE TREASURY,

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Defendants.

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COMPLAINT Plaintiffs Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and Mid-America Christian University (hereinafter, “the Universities”), by their attorneys, state as follows:
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NATURE OF THE ACTION 1. This lawsuit challenges regulations issued by Defendants under the 2010 Patient Protection and Affordable Care Act that compel employee and student health insurance plans to provide free coverage of contraceptive services, including so-called “emergency contraceptives” that cause early abortions. 2. The Universities are Christ-centered institutions of higher learning. They believe that God has condemned the intentional destruction of innocent human life. The Universities hold, as a matter of religious conviction, that it would be sinful and immoral for them intentionally to participate in, pay for, facilitate, enable, or otherwise support access to abortion, which destroys human life. They hold that one of the prohibitions of the Ten Commandments (“thou shalt not murder”) precludes them from facilitating, assisting in, or enabling the use of drugs that can and do destroy very young human beings in the womb. 3. The Universities do not qualify for the extraordinarily narrow religious exemption from the regulations. That exemption protects only “churches, their integrated auxiliaries, and conventions or associations or churches” and “the exclusively religious activities of any religious order.” 4. For purely secular reasons, the government has elected not to impose the challenged regulations upon thousands of other organizations. Employers with “grandfathered” plans, small employers, and favored others are exempt from these rules. 5. Defendants have offered entities like the Universities a so-called “accommodation” of their religious beliefs and practices. However, the alleged
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accommodation fails. It still conscripts the Universities into the government’s scheme, forcing them to obtain an insurer or third-party claims administrator and submit a form that specifically causes that insurer or third-party administrator to arrange payment for the objectionable drugs, so that such coverage will apply to the Universities’ own employees as a direct consequence of their employment with the Universities and of their participation in the health insurance benefits the Universities provide them.
6. Under the supposed accommodation, Defendants continue to treat entities like the Universities as second-class religious organizations, not entitled to the same religious freedom rights as substantially similar entities that qualify for the exemption. Defendants’ rationale for entirely exempting churches and integrated auxiliaries from the regulations – their employees are likely to share their religious convictions – applies equally to the Universities. Yet, Defendants refuse to exempt them, offering only a flimsy, superficial, and utterly semantic “accommodation” that falls woefully short of addressing and resolving the substance of their concerns.
7. If Plaintiffs follow their religious convictions and decline to participate in the government’s scheme, they will face, among other injuries, enormous fines that will cripple their operations.
8. By unconscionably placing the Universities in this untenable position, Defendants have violated the Religious Freedom Restoration Act; the Free Exercise, Establishment and Free Speech Clauses of the First Amendment to the United States Constitution; the Due Process Clause of the Fifth Amendment; and the Administrative Procedure Act.
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9. Plaintiffs therefore respectfully request that this Court vindicate their rights through declaratory and permanent injunction relief, among other remedies.
IDENTIFICATION OF PARTIES AND JURISDICTION 10. Plaintiff Southern Nazarene University is a Christ-centered institution of higher learning located in Bethany, Oklahoma. It is an Oklahoma not-for-profit corporation. 11. Plaintiff Oklahoma Wesleyan University is a Christ-centered institution of higher learning located in Bartlesville, Oklahoma. It is an Oklahoma not-for-profit corporation. 12. Plaintiff Oklahoma Baptist University is a Christ-centered institution of higher learning located in Shawnee, Oklahoma. It is an Oklahoma not-for-profit corporation. 13. Plaintiff Mid-America Christian University is a Christ-centered institution of higher learning located in Oklahoma City, Oklahoma. It is an Oklahoma not-for-profit corporation. 14. Defendants are appointed officials of the United States government and United States executive branch agencies responsible for issuing and enforcing the Mandate. 15. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (HHS). In this capacity, she has
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responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only.
16. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate.
17. Defendant Thomas E. Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Perez is sued in his official capacity only.
18. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
19. Defendant Jacob J. Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Lew is sued in his official capacity only.
20. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
21. 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 & 1361, jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 & 2202, 42 U.S.C. § 2000bb-1, 5 U.S.C. § 702, and Fed. R. Civ. P. 65, and to award reasonable attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412, and under 42 U.S.C. § 1988.
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22. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this district, and at least one of the Plaintiffs is located in this district.
FACTUAL ALLEGATIONS I. Southern Nazarene University’s Religious Beliefs and Provision of
Educational Services in General 23. Southern Nazarene University (“SNU”) was established in 1899. It grew out of several small colleges committed to training people for service to God and their fellow man. 24. SNU’s mission is to transform lives through higher education in Christ-centered community. It prepares graduates who think with clarity, act with integrity and serve with purpose. Its mandate is to seek truth with integrity, to explore long-held traditions and assumptions, to formulate an understanding of the world that is consistent with divine revelation and human experience, and to share in the formation of Christ-like disciples. Preparing graduates for broadly defined Christian ministry is an underlying goal of all of SNU’s academic and co-curricular programs. 25. As Christian community of scholars, SNU pursues its mission through biblically-based programs and services anchored in the nineteenth century, Wesleyan-Holiness tradition. 26. SNU is a service of the Church of the Nazarene, and it is the primary postsecondary educational institution for the Church of the Nazarene in the South Central Region of the United States. The mission of the Church of the Nazarene is “to make
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Christlike disciples in the nations.” SNU believes that it is the Church at work in higher education. SNU derives its mission and core values from the heart of the church and believes that a deep and vital relationship with the Church of the Nazarene is essential to its mission and a nonnegotiable starting point in all it does. While governance and support come primarily from the South Central Region, the University serves and partners with the work of the Church around the world.
27. Members of SNU’s Board of Trustees, which governs the University, are elected by the districts which comprise the South Central Region of the Church of the Nazarene.
28. SNU draws its faculty, staff, and administration from among those who profess and demonstrate a strong commitment to the Christian faith, actively participate in a local church, and are committed to a philosophy of Christian higher education consistent with the Wesleyan tradition.
29. Although SNU does not require a profession of faith as a prerequisite for student admission, all students are expected to live by the standards of historic Christian morality, as expressed in the University’s Lifestyle Covenant.
30. SNU’s current enrollment is approximately 2,100. 31. SNU has approximately 505 employees, of which approximately 315 are full-time.
II. The Religious Beliefs of Southern Nazarene University Regarding Abortion
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32. The Church of the Nazarene believes in the sanctity of human life and
opposes abortion, embryo-destroying stem cell research, euthanasia, and the withholding
of reasonable medical care from the handicapped or the elderly.
33. The Manual of the Church of the Nazarene states as follows:
The Church of the Nazarene affirms the sanctity of human life as established by God the Creator and believes that such sanctity extends to the child not yet born. Life is a gift from God. All human life, including life developing in the womb, is created by God in His image and is, therefore, to be nurtured, supported, and protected. From the moment of conception, a child is a human being with all of the developing characteristics of human life, and this life is dependent on the mother for its continued development. Therefore, we believe that human life must be respected and protected from the moment of conception. We oppose induced abortion by any means, when used for either personal convenience or population control. We oppose laws that allow abortion. Realizing that there are rare, but real medical conditions wherein the mother or the unborn child, or both, could not survive the pregnancy, termination of the pregnancy should only be made after sound medical and Christian counseling. (Genesis 2:7, 9:6; Exodus 20:13, 21:12-16, 22-25; Leviticus 18:21; Job 31:15; Psalms 22:9, 139:3-16; Isaiah 44:2, 24, 49:5; Jeremiah 1:5; Luke 1:15, 23-25, 36-45; Acts 17:25; Romans 12:1-2; 1 Corinthians 6:16, 7:1 ff.; 1 Thessalonians 4:3-6.)
34. On its website, the Church of the Nazarene declares as follows:
Since the inception of the practice of medical abortion, the Church of the Nazarene has expressed both its sorrow and its strongest condemnation of the practice of aborting the unborn for the sake of convenience, ending unwanted pregnancies, or population control. As a denomination, our resolve has been strong in our struggle against this moral blight on the conscience of America.
35. Southern Nazarene University unreservedly shares the Church of the
Nazarene’s religious views regarding abortion, believing that the procurement of,
participation in, facilitation of, or payment for abortion (including abortion-causing drugs
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and devices like Plan B and ella) violates the Sixth Commandment and is inconsistent with the dignity conferred by God on creatures made in His image.
IV. Southern Nazarene University’s Group Health Insurance Plans 36. To fulfill its religious commitments and duties in the Christ-centered
educational context, Southern Nazarene University promotes the spiritual and physical well-being and health of its employees. This includes the provision of generous health insurance for its employees and their dependents.
37. Approximately 253 SNU employees are enrolled in health insurance plans sponsored by the University. Approximately 249 dependents of employees are covered. The plans thus cover approximately 502 individuals.
38. SNU offers coverage through BlueCross BlueShield of Oklahoma. SNU offers beneficiaries two choices: “Blue Choice PPO – SNU Choice” and “Blue Choice PPO – SNU Premier.”
39. SNU’s health plan is partially self-insured. The university has contracted with an outside insurance company to pay all claims over $100,000.
40. The plan year for SNU’s employee health insurance coverage begins on July 1 of each year.
41. SNU’s employee health plans do not possess “grandfathered” status. In 2011, SNU offered for the first time two different plans, one with a $1000 deductible and one with a $2500 deductible. In addition, SNU changed from a two-tiered plan (either employee only or employee plus family) to a three-tiered plan (employee only, employee
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plus one dependent, or employee plus two or more dependents). The monthly employee contribution depends upon which “tier” the employee chooses and upon whether the employee chooses the “SNU Choice” (which has a $2500 in-network deductible) or “SNU Premier” (which has a $1000 in-network deductible) plan. The “Benefit Highlights” documents produced by BlueCross BlueShield of Oklahoma for both the SNU Choice and SNU Premier plans declare, “[t]his benefit summary is a Non-Grandfathered health plan.”
42. SNU’s employee health plans cover a variety of contraceptive methods that are not abortifacient. However, consistent with its religious commitments, SNU’s contract for employee health coverage states that all drugs and devices which act after fertilization has occurred are excluded.
43. All SNU students enrolled in nine hours or more of classroom instruction are required to have health insurance. SNU offers a health plan to those students who do not have health insurance coverage of their own.
44. The student plan specifically excludes “Reproductive/Infertility Services including but not limited to: birth control, family planning; fertility tests; infertility (male or female), including any services or supplies rendered for the purpose or with the intent of inducing conception. Examples of fertilization procedures are: ovulation induction procedures, in vitro fertilization, embryo transplant or similar procedures that augment or enhance the Covered Person’s reproductive ability; premarital examinations; impotence, organic or otherwise; tubal ligation; vasectomy; elective abortion; sexual reassignment surgery.”
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45. The next student plan year begins on August 21, 2014.
V. Oklahoma Wesleyan University’s Religious Beliefs and Provision of Educational Services in General 46. Oklahoma Wesleyan University (OKWU) was established in 2001 by the
Wesleyan Church. OKWU’s predecessor, Bartlesville Wesleyan College, resulted from a series of mergers of other institutions, including Colorado Springs Bible College (founded in 1910), Pilgrim Bible College (founded in 1917), and Holiness Evangelistic Institute (founded in 1932 and later renamed Western Pilgrim College).
47. OKWU’s mission is to model a way of thought, a way of life, and a way of faith. It is a place of serious study, honest questions, and critical engagement, all in the context of a liberal arts community.
48. OKWU’s pursuit of its mission rests on four pillars: (1) the primacy of Jesus Christ as the incarnate Son of God, the Alpha and Omega, the Beginning and the End, who is the lens for all learning and the Lord of our daily lives; (2) the priority of Scripture as the inerrant and authoritative written Word of God that guides believers in all matters of faith, learning, and living; (3) the pursuit of Truth as an objective, attainable reality grounded in the person and example of Jesus Christ and anchored in the Bible; (4) the practice of Wisdom as the goal for all members of the university community, who work to promote healing and wholeness in a broken culture and hurting world. The four pillars are not mere words. They are lived out, on campus, by OKWU’s students, faculty, and staff every day. They are reflected in everything from campus architecture to athletic team uniforms.
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49. OKWU is an approved Wesleyan Church educational institution, and the Church’s General Board elects its Board of Trustees.
50. The Wesleyan Church integrates the governance of its institutions of higher learning with the governance of the Church itself. The Church’s General Conference systematizes the financial contributions of its congregations in support of the Church’s educational institutions, defines certain broad patterns of governance, and then delegates all further power to the General Board of the Church. The General Board in turn adopts standards for educational institutions and then elects the boards of trustees of approved institutions.
51. OKWU draws its faculty, staff, and administration from among those in the Wesleyan Church. Administrators, faculty, and staff must express their commitment to the doctrines, personal lifestyle expectations, and religious practices that the Wesleyan Church has laid out in its Articles of Religion, Membership Commitments, and Elementary Principles.
52. Although OKWU does not require applicants for admission or students to be members of the Wesleyan Church, all students are asked to conform their conduct to those standards of the Articles of Religion, Membership Commitments, and Elementary Principles that relate to lifestyle and practices.
53. OKWU’s current enrollment is approximately 1,220. 54. Oklahoma Wesleyan University has approximately 557 employees, and about 112 of them are full-time.
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VI. The Religious Beliefs of Oklahoma Wesleyan University Regarding Abortion
55. The Discipline of the Wesleyan Church states:
The Wesleyan Church seeks to recognize and preserve the sanctity of human life from conception to natural death and, thus, is opposed to the use of induced abortion. However, it recognizes that there may be rare pregnancies where there are grave medical conditions threatening the life of the mother, which could raise a serious question about taking the life of the unborn child. In such a case, a decision should be made only after very prayerful consideration following medical and spiritual counseling. The Wesleyan Church encourages its members to become informed about the abortion issue and to become actively involved locally and nationally in the preparation and passage of appropriate legislation guaranteeing protection of life under law to unborn children.
We believe that abortion is the taking of human life; therefore, society brings grave danger to itself by permitting abortion on demand, and thus treating God-given life so lightly. We call our members to oppose this social evil with strong conviction and great vigor. However, we reject the use of violence as a means of bring about this needed change in society. Except in the case of risk to the life of the mother, The Wesleyan Church stands firm against the evil of abortion. We counsel our people to avoid this travesty personally, and call on our people to help enlighten a blind culture on this issue – both the personal evil of abortion by any individual among us and the worldwide social evil of abortion, which we believe must someday end. Until that day, we will instruct our people to avoid this sin personally, and call them to the work of enlightening a blind culture, as we once did with the sin of slavery.
56. Oklahoma Wesleyan University unreservedly shares the Wesleyan
Church’s religious views regarding abortion, believing that the procurement,
participation in, facilitation of, or payment for abortion (including abortion-causing
drugs like Plan B and ella) violates the Sixth Commandment and is inconsistent with the
dignity conferred by God on creatures made in His image.
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57. The OKWU Student Handbook provides that “all human life must be respected and protected from its conception to its completion.”
VII. Oklahoma Wesleyan University’s Group Health Insurance Plans 58. To fulfill its religious commitments and duties in the Christ-centered
educational context, Oklahoma Wesleyan University promotes the spiritual and physical well-being and health of its employees. This includes provision of generous health insurance for its employees.
59. OKWU provides two plans insured by Community Care of Oklahoma. One is an HMO benefit plan and the other is a PPO benefit plan.
60. Ninety-three employees are enrolled in the group health plans sponsored by OKWU. An additional 128 of these employees’ dependents are covered, meaning that 221 individuals are covered by OKWU’s group health plans.
61. Consistent with its religious commitments, the University’s current contracts for employee health coverage exclude IUDs and emergency contraception. The plan does, however, cover a variety of contraceptive methods that are not abortifacient.
62. Oklahoma Wesleyan’s employee health plan does not possess “grandfathered” status. Its employee plan lost grandfather status in July 2010, when it added a $250 deductible. The PPO deductible also increased at that time from $250 to $1000. Additionally, in November 2010 OKWU began requiring employees to pay a portion of the premium attributable to their coverage; prior to that, OKWU paid the entire
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premium. In October 2012, OKWU once again changed the formula through which it calculated the required employee contribution, moving to a set dollar amount for each tier of insurance.
63. The plan year for Oklahoma Wesleyan University’s employee health insurance coverage begins on July 1 of each year.
VIII. Oklahoma Baptist University’s Religious Beliefs and Provision of Educational Services in General 64. Oklahoma Baptist University (OBU) was founded in 1910 by the Baptist
General Convention of Oklahoma. The University’s mission is to transform lives by equipping students to pursue academic excellence, integrate faith with all areas of knowledge, engage a diverse world, and live lives worthy of the high calling of God in Christ.
65. Founded on Christian principles and teachings, OBU is an institution whose primary purpose is to conduct educational programs in the traditional arts and sciences and in other disciplines to prepare students for effective leadership and service in various vocations.
66. It pursues its mission through: a strong liberal arts core curriculum that supports degree programs designed to prepare students for careers and graduate study; activities planned to stimulate spiritual, intellectual, social, cultural, and physical development; and an environment that reflects Christian principles and teachings.
67. Owned by the Baptist General Convention of Oklahoma and operated through a Board of Trustees elected by the Convention, OBU engages in educational
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tasks in a manner consistent with the purpose of the Convention: to furnish the means by which the churches may carry out the Great Commission (Matthew 28:18-20).
68. As a Baptist institution of higher education, OBU reserves the right to recruit and hire faculty whose religious beliefs and behavior are compatible with the University’s mission and the standards and expectations of the Baptist constituency that supports the University.
69. OBU regards the Baptist Faith and Message as the basic definition of the principles of Baptist belief and expects faculty members to be familiar with that document.
70. A student, by virtue of choosing to attend OBU, agrees to abide by the University’s standards, which include (but are not limited to) its values, policies, rules, philosophy, Christian mission, and expectations.
71. OBU’s current enrollment is approximately 1,900. 72. OBU has approximately 328 employees, of whom about 269 are full time.
IX. The Religious Beliefs of Oklahoma Baptist University Regarding Abortion 73. The Baptist Faith and Message of the Southern Baptist Convention declares
that “[c]hildren, from the moment of conception, are a blessing and heritage from the Lord.”
74. The Southern Baptist Convention has repeatedly expressed its opposition to abortion. For example, in June 1980, the Convention declared that “Southern Baptists have historically affirmed the biblical teaching of the sanctity of all human life” and that
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“[a]ll medical evidence indicates that abortion ends the life of a developing human being,” and supported “appropriate legislation and/or a constitutional amendment prohibiting abortion except to save the life of the mother.”
75. OBU shares the Convention’s understanding of the Bible’s teaching on the sanctity of human life from the moment of conception and the Convention’s opposition to abortion.
X. Oklahoma Baptist University’s Group Health Insurance Plans 76. To fulfill its religious commitments and duties in the Christ-centered
educational context, Oklahoma Baptist University promotes the spiritual and physical well-being and health of its employees and students. This includes provision of generous health insurance for its employees and the facilitation of student health insurance coverage.
77. OBU provides eligible employees a PPO health plan with the choice of two networks provided by Blue Cross Blue Shield of Oklahoma.
78. Approximately 279 employees are covered by the plans. Approximately 696 dependants of employees are covered by the plans, bringing total coverage to 975 individuals.
79. OBU’s employee health plans do not possess “grandfathered” status. Prior to 2011, employees who sought coverage only for themselves individually were not required to make any contribution towards the monthly premium. Beginning in 2011, however, such employees were required to contribute at least $50 per month. OBU paid
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80% of the cost of Employee Only premium for the Blue Cross Preferred Insurance Network. OBU paid 75% of the cost of Employee plus Family premium. In 2013, OBU is paying 75% of Employee Only and 73% of Employee plus Family premium.
80. Plan years for OBU’s employee health plans begin on January 1 of each year.
81. Consistent with its religious beliefs regarding the sanctity of human life, OBU does not want its health insurance plans to cover or otherwise facilitate the use of abortifacient drugs and devices by plan beneficiaries.
82. In 2011, OBU discussed with its employee health insurance broker its moral objection to including coverage for abortion and abortifacients in its employee health insurance. The broker conveyed OBU’s concerns to the plan insurer, Blue Cross Blue Shield (BCBS). BCBS did not exclude coverage of abortifacients from the OBU employee plan as a consequence of that communication.
83. In April and May 2013, OBU once again asked BCBS not to include coverage of Plan B, ella, and IUDs in its employee plan, invoking the Temporary Enforcement Safe Harbor. BCBS subsequently excluded those items from the 2013 employee plan.
84. All undergraduate and graduate students taking nine or more credit hours’ worth of classes are eligible to enroll in a health plan facilitated by OBU.
85. The student health plan does not cover “birth control” or “family planning,” among other things. For the next academic year, the plan for the first semester is in
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effect from August 1, 2013 through December 31, 2013. The plan for the second semester is in effect from January 1, 2014 through May 31, 2014.
XI. Mid-America Christian University’s Religious Beliefs and Provision of Educational Services in General 86. Mid-America Christian University (MACU) was founded as the South
Texas Bible Institute in Houston, Texas, in 1953. It later became Gulf Coast Bible College and moved to Oklahoma City, Oklahoma in 1985, when it became Mid-America Bible College. As the college grew and began offering its degrees internationally, a new institutional name was chosen to communicate the university’s expanding mission. In 2003, the institution changed its name to Mid-America Christian University.
87. MACU’s mission is to prepare students through a Wesleyan perspective to create, collaborate, and innovate to solve local and global problems for the glory of God through Jesus Christ and the good of society.
88. MACU’s statement of its mission reflects its stable, historical philosophy of education in the enduring identity and heritage of the University. This mission guides all the purposes, goals, and activities of the University. The mission and purpose of MACU affirm the basic goal of equipping men and women for effective Christian ministry, proving that a person need not be a pastor or a missionary to have a ministry.
89. MACU has a Statement of Faith, through which it articulates its foundational doctrinal commitments.
90. Approximately 1,447 students are currently enrolled at MACU.
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91. MACU has approximately 298 employees, of whom about 139 are full time.
XII. The Religious Beliefs of Mid-America Christian University Regarding Abortion 92. MACU believes that each human being, from the moment of conception,
bears the image of God and is entitled to special respect. 93. MACU believes that the use of drugs, devices, or procedures (and the
utilization of related counseling) to terminate a pregnancy at any point after conception is morally impermissible in virtually all circumstances.
94. MACU cannot, as a matter of religious conscience, in any way facilitate or participate in the use of such drugs, devices, procedures, or services. Complying with the HHS Mandate, even under the “accommodation” proposed in February 2013 Notice of Proposed Rulemaking, would constitute a grave violation of MACU’s religious duties and obligations.
XIII. Mid-America Christian University’s Group Health Insurance Plans 95. To fulfill its religious commitments and duties in the Christ-centered
educational context, Mid-America Christian University promotes the spiritual and physical well-being and health of its employees. This includes provision of generous health insurance. It offers eligible employees a plan provided by GuideStone.
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96. MACU’s employee health plans cover approximately 100 employees. The plan covers approximately 116 dependents of these employees. MACU offers two traditional PPO plans: Health Choice 1000 and Health Choice 2000.
97. MACU’s employee health plans do not cover abortion, RU-486, ella, Plan B, or IUDs.
98. MACU’s employee health plan does not possess grandfathered status. In January 2011, MACU moved from a plan insured by Aetna to one insured by GuideStone. Deductibles and co-payments increased, and a Health Reimbursement Account option was added.
99. The plan year for MACU’s employee health plan begins on January 1.
XIV. The ACA and Defendants’ Mandate Thereunder 100. In March 2010, Congress passed, and President Obama signed, the Patient
Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 11-152 (March 30, 2010), together known as the “Affordable Care Act” (ACA).
101. The ACA regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
102. One ACA provision requires that any “group health plan” or “health insurance issuer offering group or individual health insurance coverage” provide coverage for certain preventive care services. 42 U.S.C. § 300gg-13(a).
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103. These services include screenings, medications, and counseling given an “A” or “B” rating by the United States Preventive Services Task Force; immunizations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention; and “preventive care and screenings” specific to infants, children, adolescents, and women that are subsequently “provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” an HHS sub-agency. 42 U.S.C. § 300gg-13(a)(1)-(4).
104. These services must be covered without “any cost sharing.” 42 U.S.C. § 300gg-13(a).
The Interim Final Rule 105. On July 19, 2010, HHS published an interim final rule regarding the ACA’s requirement that certain preventive services be covered without cost sharing. 75 Fed. Reg. 41726, 41728 (2010). 106. HHS issued the interim final rule without a prior notice of rulemaking or opportunity for public comment. Defendants determined for themselves that “it would be impracticable and contrary to the public interest to delay putting the provisions . . . in place until a full public notice and comment process was completed.” 75 Fed. Reg. at 41730. 107. Although Defendants suggested in the Interim Final Rule that they would solicit public comments after implementation, they stressed that “provisions of the Affordable Care Act protect significant rights” and therefore it was expedient that
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“participants, beneficiaries, insureds, plan sponsors, and issuers have certainty about their rights and responsibilities.” Id.
108. Defendants stated they would later “provide the public with an opportunity for comment, but without delaying the effective date of the regulations,” demonstrating their intent to impose the regulations regardless of the legal flaws or general opposition that might be manifest in public comments. Id.
109. In addition to reiterating the ACA’s preventive services coverage requirements, the Interim Final Rule provided further guidance concerning the Act’s restriction on cost sharing.
110. The Interim Final Rule makes clear that “cost sharing” refers to “out-of-pocket” expenses for plan participants and beneficiaries. 75 Fed. Reg. at 41730.
111. The Interim Final Rule acknowledges that, without cost sharing, expenses “previously paid out-of-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.”)
112. In other words, 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 41730.
113. After the Interim Final Rule was issued, numerous commenters warned against the potential conscience implications of requiring religious individuals and
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organizations to include certain kinds of services—specifically contraception, sterilization, and abortion services—in their health care plans.
114. HHS directed a private health policy organization, the Institute of Medicine (IOM), to make recommendations regarding which drugs, procedures, and services all health plans should cover as preventive care for women.
115. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be included in health plans by force of law. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
116. No religious groups or other groups that opposed government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
117. On July 19, 2011, the IOM published its preventive care guidelines for women, including a recommendation that preventive services include “[a]ll Food and Drug Administration approved contraceptive methods [and] sterilization procedures” and related “patient education and counseling for women with reproductive capacity.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 102-10 and Recommendation 5.5 (July 19, 2011).
118. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices such as IUDs; Plan B (also known as the
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“morning-after pill”) and its chemical cognates; ulipristal (also known as “ella” or the “week-after pill”); and other drugs, devices, and procedures.
119. Some of these drugs and devices—including “emergency contraceptives” such as Plan B and ella and certain IUDs—are known abortifacients, in that they can cause the death of an embryo by preventing it from implanting in the wall of the uterus.
120. Indeed, the FDA’s own Birth Control Guide states that Plan B and its cognates, ella, and IUDs can work by “preventing attachment (implantation) to the womb (uterus).” FDA, Office of Women’s Health, Birth Control Guide at 16-18, available as Addendum to Brief of Appellants at 50, Hobby Lobby Stores Inc. v. Sebelius, No. 12-6294, ECF Doc. No. 010189999834 (10th Cir. filed Feb. 11, 2013).
121. The manufacturers of some of the drugs, methods, and devices in the category of “FDA-approved contraceptive methods” indicate that they can function to cause the demise of an early embryo.
122. The requirement for related “education and counseling” accompanying abortifacients, sterilization and contraception necessarily covers education and counseling given in favor of such items, even though it might also include other education and counseling. Moreover, it is inherent in a medical provider’s decision to prescribe one of these items that she is taking the position that use of the item is in the patient’s best interests, and therefore her education and counseling related to the item will be in favor of its proper usage.
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123. On August 1, 2011, a mere 13 days after IOM published its recommendations, HRSA issued guidelines adopting them in full. See http://www.hrsa.gov/womensguidelines.
124. Insurance plans starting after August 1, 2012 were subject to the Mandate. 125. Any non-exempt employer providing a health insurance plan that omits any abortifacients, contraception, sterilization, or education and counseling for the same, is subject (because of the Mandate) to heavy fines approximating $100 per employee per day. Such employers are also vulnerable to lawsuits by the Secretary of Labor and by plan participants. 126. A large employer entity cannot freely avoid the Mandate by simply refusing to provide health insurance to its employees, because the ACA imposes monetary penalties on entities that would so refuse. 127. The annual penalty for failing to provide health insurance coverage is $2000 times the number of the employer’s employees, minus 30. The Religious Employer Exemption 128. On the very same day HRSA rubber-stamped the IOM’s recommendations, HHS promulgated an additional interim final rule regarding the preventive services mandate. 76 Fed. Reg. 46621 (published Aug. 3, 2011). 129. This Second Interim Final Rule granted HRSA “discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned.” 76 Fed. Reg. 46621, 46623 (emphasis added). The term “religious employer” was restrictively defined as one that (1) has as its purpose the “inculcation of
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religious values”; (2) “primarily employs persons who share the religious tenets of the organization”; (3) “serves primarily persons who share the religious tenets of the organization”; and (4) “is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. at 46626 (emphasis added).
130. 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).
131. The “religious employer” exemption was thus extremely narrow, limited to churches, their integrated auxiliaries, and religious orders, but only if (1) their purpose is to inculcate faith and (2) they hire and serve primarily people of their own faith tradition.
132. 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.
133. Although religious organizations like the Universities share the same religious beliefs and concerns as objecting churches, their integrated auxiliaries, and objecting religious orders, HHS deliberately ignored the regulation’s impact on their religious liberty, stating that the exemption sought only “to provide for a religious
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accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46621, 46623.
134. Therefore, the vast majority of organizations with conscientious objections to providing contraceptive or abortifacient services were excluded from the “religious employer” exemption.
135. Like the original Interim Final Rule, the Second Interim Final Rule was made effective immediately, without prior notice or an opportunity for public comment.
136. Defendants acknowledged that “while a general notice of proposed rulemaking and an opportunity for public comment is generally required before promulgation of regulations,” they had “good cause” to conclude that public comment was “impracticable, unnecessary, or contrary to the public interest” in this instance. 76 Fed. Reg. at 46624.
137. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted opposing the narrow scope of the “religious employer” exemption and protesting the contraception mandate’s gross infringement on the rights of religious individuals and organizations.
138. HHS did not take into account the concerns of religious organizations in the comments submitted before the Second Interim Rule was issued. HHS was unresponsive to numerous and well-grounded assertions that the Mandate violated statutory and constitutional protections of rights of conscience.
The Temporary Enforcement Safe Harbor
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139. The public outcry for a broader religious employer exemption continued for many months. On January 20, 2012, HHS issued a press release acknowledging “the important concerns some have raised about religious liberty” and stating that religious objectors would be “provided an additional year . . . to comply with the new law.” See Jan. 20, 2012 Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html.
140. On February 10, 2012, HHS formally announced a “temporary enforcement safe harbor” for non-exempt nonprofit religious organizations that objected to covering contraceptive and abortifacient services.
141. HHS declared that it would not take any enforcement action against an eligible organization during the safe harbor period, which would extend until the first plan year beginning after August 1, 2013.
142. HHS also indicated it would develop and propose changes to the regulations in an effort to accommodate the religious liberty objections of non-exempt, nonprofit religious organizations following the expiration of the safe harbor.
143. Despite the safe harbor and HHS’s accompanying promises, on February 10, 2012, HHS announced a final rule “finalizing, without change,” the contraception and abortifacient mandate and narrow religious employer exemption. 77 Fed. Reg. 8725-01 (published Feb. 15, 2012).
The Advance Notice of Proposed Rulemaking
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144. On March 21, 2012, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM), presenting “questions and ideas” to “help shape” a discussion of how to “maintain the provision of contraceptive coverage without cost sharing,” while accommodating the religious beliefs of non-exempt religious organizations. 77 Fed. Reg. 16501, 16503 (2012).
145. The ANPRM conceded that forcing religious organizations to “contract, arrange, or pay for” the objectionable contraceptive and abortifacient servicers would infringe their “religious liberty interests.” Id. (emphasis added).
146. 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.
147. For the first time, and contrary to the earlier definition of “cost sharing,” Defendants suggested in the ANPRM that insurers and third party administrators could be prohibited from passing along their costs to the objecting religious organizations via increased premiums. See id.
148. “[A]pproximately 200,000 comments” were submitted in response to the ANPRM, 78 Fed. Reg. 8456, 8459, largely restating previous comments that the government’s proposals would not resolve conscientious objections, because the objecting religious organizations, by providing a health care plan in the first instance, would still be coerced to arrange for and facilitate access to morally objectionable services.
The Notice of Proposed Rulemaking
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149. On February 1, 2013, HHS issued a Notice of Proposed Rulemaking (NPRM) purportedly addressing the comments submitted in response to the ANPRM. 78 Fed. Reg. 8456 (published Feb. 6, 2013).
150. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8456, 8458-59.
151. First, it proposed revising the religious employer exemption by eliminating the requirements that religious employers have the purpose of inculcating religious values and primarily employ and serve only persons of their same faith. 78 Fed. Reg. at 8461.
152. 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.
153. HHS emphasized, however, that this proposal “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” 78 Fed. Reg. 8456, 8461.
154. In other words, religious organizations like the Universities that are not churches, integrated auxiliaries, or religious orders would continue to be denied the protection of the exemption.
155. Second, the NPRM followed up on HHS’s earlier-stated intention to “accommodate” non-exempt, nonprofit religious organizations by making them “designate” their insurers and third party administrators to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs and services.
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156. The proposed “accommodation” did not resolve the concerns of religious organizations like the Universities because it continued to force them to deliberately provide health insurance that would trigger access to abortion-inducing drugs and related education and counseling.
157. “[O]ver 400,000 comments” were submitted in response to the NPRM, 78 Fed. Reg. 39870, 39871, with religious organizations again overwhelmingly decrying the proposed “accommodation” as a 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 services.
158. The Universities submitted comments on the NPRM, stating essentially the same objections stated in this complaint.
159. On April 8, 2013, the very day that the notice-and-comment period ended, Defendant Secretary Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University.
160. In her remarks, Secretary Sebelius stated: We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st. . . . [A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package.
See The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health and Human Services, Apr. 8, 2013, available at
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http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (Episode 9 at 2:25) (emphasis added).
161. Given the timing of these remarks, it is clear that Defendants gave no consideration to the comments submitted in response to the NPRM’s proposed “accommodation.”
162. Moreover, Secretary Sebelius’ remarks belie the utterly unpersuasive assertion that objecting employers are not “providing coverage for” morally objectionable items in the health insurance plans they provide employees.
The Final Mandate 163. On June 28, 2013, Defendants issued a final rule (the “Final Mandate”), which ignores the objections repeatedly raised by religious organizations and others and continues to co-opt objecting employers into the government’s scheme of expanding free access to contraceptive and abortifacient services. 78 Fed. Reg. 39870 (2013). Defendants declared that the Final Mandate would be effective August 1, 2013, only one month after it was issued. 164. Under the Final Mandate, the discretionary “religious employer” exemption, which is still implemented via footnote on the HRSA website, see http://www.hrsa.gov/womensguidelines, remains limited to churches, integrated auxiliaries, and religious orders “organized and operate[d]” as nonprofit entities and “referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 39874.
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165. Defendants attempt to justify the extraordinarily narrow religious exemption as follows: “The Departments believe that the simplified and clarified definition of religious employer continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental interests furthered by the contraceptive coverage requirement. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39874.
166. All other organizations, including the Universities, are denied the exemption’s protection.
167. The Universities do not fall within the scope of this narrow religious exemption. They are not churches, the integrated auxiliaries of a church, or conventions or associations of churches, nor do they perform the exclusively religious activities of a religious order.
168. The Final Mandate declares that the rules concerning contraceptive and abortifacient services will “apply to student health insurance coverage arranged by an eligible organization that is an institution of higher education in a manner comparable to that in which they apply to group health insurance coverage provided in connection with a group health plan established or maintained by an eligible organization that is an employer.” 78 Fed. Reg. at 39897.
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169. The Final Mandate creates a separate “accommodation” for certain non-exempt religious organizations. 78 Fed. Reg. at 39874.
170. An organization is eligible for the accommodation if it (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874.
171. The Universities are eligible for the so-called accommodation. 172. The self-certification must be executed “prior to the beginning of the first plan year to which an accommodation is to apply.” 78 Fed. Reg. at 39875. 173. The Final Rule also extends the current Temporary Enforcement Safe Harbor through the end of 2013, only six months after the issuance of the Final Rule. 78 Fed. Reg. at 39889. 174. Thus, an eligible organization would need to execute the self-certification prior to its first plan year that begins on or after January 1, 2014, and deliver it to the organization’s insurer. If the organization has a self-insured plan, like SNU, it would deliver the executed self-certification to the plan’s third party administrator. 78 Fed. Reg. at 39875. 175. If it elects to invoke the accommodation with respect to its employee plan, SNU would be required to execute the self-certification and deliver it to its plan’s third party administrator before July 1, 2014.
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176. By delivering its self-certification to its third-party administrator, SNU would trigger the third-party administrator’s provision of or arrangement for payments for the morally objectionable abortifacients. 78 Fed. Reg. 39892-39893. These payments constitute coverage of the items to which SNU objects. See, e.g., id. at 39872 (“the regulations provide women with access to contraceptive coverage”), and receive treatment as coverage under consumer protection requirements of the Public Health Service Act and ERISA. Id. at 39876. This coverage will not be contained in any insurance policy separate from SNU’s plan. See id.
177. If it elects to invoke the accommodation with respect to its employee plan, Oklahoma Baptist, Mid-America Christian, and Oklahoma Wesleyan would be required to execute the self-certification and deliver it to their plans’ issuers before January 1, 2014 (for OBU and MACU) and before July 1, 2014 (for OKWU).
178. By delivering their self-certifications to their insurers, OBU, MACU, and OKWU would trigger their insurers’ obligation to make “separate payments for contraceptive services directly for plan participants and beneficiaries.” 78 Fed. Reg. at 39875-76. These payments constitute coverage of the items to which these three schools object. See, e.g., id. at 39872 (“the regulations provide women with access to contraceptive coverage”), and receive treatment as coverage under consumer protection requirements of the Public Health Service Act and ERISA. Id. at 39876. This coverage will not be contained in any insurance policy separate from these schools’ plans. See id.
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179. By issuing their self-certifications, the Universities would be identifying their participating employees and students to the insurer or third-party administrator for the distinct purpose of enabling the government’s scheme to facilitate free access to abortifacient services.
180. The insurer’s obligation to make direct payments for abortifacient services would continue only “for so long as the participant or beneficiary remains enrolled in the plan.” 78 Fed. Reg. at 39876.
181. Therefore, OBU, MACU, and OKWU would have to coordinate with their insurers whenever they added or removed employees and beneficiaries from their healthcare plans and, as a direct and unavoidable result, from the abortifacient services payment scheme.
182. The three schools’ insurers are required to notify plan participants and beneficiaries of the abortifacient payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan. 78 Fed. Reg. at 39876.
183. This would also require OBU, MACU, and OKWU to coordinate the notices with their insurers.
184. Their insurers would be required to provide the abortifacient benefits “in a manner consistent” with the provision of other covered services. 78 Fed. Reg. at 39876-77.
185. Thus, any payment or coverage disputes presumably would be resolved under the terms of the three schools’ existing plan documents.
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186. Thus, even under the accommodation, the Universities and every other non-exempt objecting religious organization would continue to play a central role in facilitating free access to abortifacient services.
187. Defendants state that they “continue to believe, and have evidence to support,” that providing payments for contraceptive services will be “cost neutral for issuers,” because “[s]everal studies have estimated that the costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. at 39877.
188. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
189. Nevertheless, even if the payments, over time, eventually resulted in cost savings in other areas, it is undisputed that it would cost money at the outset to make the payments. See, e.g., 78 Fed. Reg. at 39877-78 (addressing ways insurers can cover up-front costs).
190. 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.
191. HHS suggests that, to maintain cost neutrality, issuers may simply ignore this fact and “set the premium for an eligible organization’s large group policy as if no payments for contraceptive services had been provided to plan participants.” 78 Fed. Reg. 39877.
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192. This encourages issuers to artificially inflate the eligible organization’s premiums.
193. 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 conscience, as if the accommodation had never been made.
194. Defendants have suggested that “[a]nother option” would be to “treat the cost of payments for contraceptive services . . . as an administrative cost that is spread across the issuer’s entire risk pool, excluding plans established or maintained by eligible organizations.” 78 Fed. Reg. at 39878.
195. There is no legal authority for forcing third parties to pay for services provided to the employees of eligible organizations under the accommodation.
196. Furthermore, under the Affordable Care Act, Defendants lack authority in the first place to coerce insurers to make separate payments for contraceptive and abortifacient services for an eligible organization’s plan participants and beneficiaries.
197. Thus, the accommodation fails to protect objecting religious organizations for lack of statutory authority.
198. For all these reasons, the accommodation does nothing to relieve non-exempt religious organizations with insured plans from being co-opted as the central cog in the government’s scheme to force the free provision of contraceptive and abortifacient services even when the organizations object to facilitating those services.
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199. In sum, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s role as the central cog in the government’s scheme for expanding access to contraceptive and abortifacient services.
200. Despite the accommodation’s convoluted machinations, a religious organization’s decision to offer health insurance (which the ACA’s employer mandate requires) and its self-certification continue to serve as the sole triggers for creating access to free abortifacient services to its employees and plan beneficiaries from the same insurer they are paying for their insurance plan.
201. The Universities cannot participate in or facilitate the government’s scheme in this manner without violating their religious convictions.
The Final Mandate and Plaintiffs’ Health Insurance Plans 202. The plan year for SNU’s and OKWU’s next employee health plans both begin on July 1, 2014; OBU’s and MACU’s plans both begin on January 1, 2014. As a result, the Universities now – or will soon – face a choice. They can transgress their religious commitments by including abortifacients in their plan or by triggering their insurance issuer or third-party administrator to provide the exact same services by providing the self-certification. Or they can transgress their religious duty to provide for the well-being of their employees and their families by dropping their employee health insurance plan altogether in order to avoid being complicit in the provision of abortifacients, thereby incurring crippling annual fines. 203. Although the government has recently announced that it will postpone implementing the annual fine of $2000 per employee (minus 30) for organizations that
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drop their insurance altogether, the postponement is only for one year, until 2015. This postponement does not delay the daily fines under 26 U.S.C. § 4980D or lawsuits under 29 U.S.C. § 1132.
204. The plan year for SNU’s next student plan begins on August 20, 2014; OBU begins on January 1, 2014. As a result, the Universities will face a choice in the period leading up to those dates. They can transgress their religious commitments by including abortifacients in their plans or by triggering their insurance issuers to provide the exact same services by providing their self-certifications. Or they can transgress their religious duty to provide for the well-being of their students by dropping their student health insurance plans altogether in order to avoid being complicit in the provision of abortifacients.
205. The Universities’ religious convictions forbid them from participating in any way in the government’s scheme to provide free access to abortifacient services through their health care plans.
206. Dropping their insurance plans would place the Universities at a severe competitive disadvantage in their efforts to recruit and retain employees and students.
207. The Final Mandate forces the Universities to deliberately provide health insurance that would facilitate free access to emergency contraceptives, including Plan B and ella, regardless of the ability of insured persons to obtain these drugs from other sources.
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208. The Final Mandate forces the Universities to facilitate government-dictated education and counseling concerning abortion that directly conflicts with their religious beliefs and teachings.
209. Facilitating this government-dictated speech directly undermines the express speech and messages concerning the sanctity of life that the Universities seek to convey.
210. The Mandate therefore imposes a variety of substantial burdens on the religious beliefs and exercise of each of the Plaintiffs.
The Governmental Interests Allegedly Underlying the Mandate and the Availability of Other Means of Pursuing Those Interests 211. Coercing Plaintiffs to facilitate access to morally objectionable contraceptives and abortifacients advances no compelling governmental interest. 212. The required drugs, devices, and related services to which Plaintiffs object are already widely available at non-prohibitive costs. 213. Upon information and belief, Plan B is widely available for between $30 and $65. Upon information and belief, ella is widely available for approximately $55. 214. There are numerous alternative mechanisms through which the government could provide access to the objectionable drugs and services without conscripting objecting organizations and their insurance plans in violation of their religious beliefs. 215. For example, it could pay for the objectionable services through its existing network of family planning services funded under Title X, through direct government payments, or through tax deductions, refunds, or credits.
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216. The government could simply exempt all conscientiously objecting organizations, just as it has already exempted the small subset of nonprofit religious employers that are referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
217. In one form or another, the government also provides exemptions for grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. 41,726, 41,731 (2010), small employers with fewer than 50 employees, 26 U.S.C. § 4980H(c)(2)(A), and certain religious denominations, 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds). 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
218. These broad exemptions further demonstrate the Universities could be exempted from the Mandate without measurably undermining any sufficiently important governmental interest allegedly served by the Mandate.
219. 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.
220. 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. 34538 (June 17, 2010); see also
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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”).
221. In the ACA Congress chose to impose a variety of requirements on grandfathered health plans, but decided that this Mandate was not important enough to impose to the benefit of tens of millions of women. Congress did not even think contraception was important enough to codify as part of this Mandate—as far as Congress is concerned, the Mandate need not include contraception at all.
222. The Administration’s recent postponement of the employer mandate (and its attendant penalties) also belies any claim that a compelling interest justifies coercing Plaintiffs to comply with the Final mandate, as employers may now simply decide not to provide their employee health plans without incurring fines under 26 U.S.C. § 4980H, at least for one additional year.
223. These broad exemptions also demonstrate that the Final Mandate is not a general law entitled to some measure of judicial deference.
224. The available evidence does not support Defendants’ contention that making contraceptives, abortifacients, and related counseling available without cost sharing decreases the rate of unintended pregnancy or the adverse impacts on health and equality that allegedly flow from the unintended nature of a pregnancy.
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225. Defendants were willing to exempt various secular organizations and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for religious organizations.
226. The Final Mandate was promulgated by government officials, and supported by non-governmental organizations, who strongly oppose religious teachings and beliefs regarding marriage, family, and life.
227. 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.
228. On October 5, 2011, six days after the comment period for the original interim final rule ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.”
229. She further criticized individuals and entities whose beliefs differed from those held by her and the others at the fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.”
230. On July 16, 2013, Secretary Sebelius further compared opponents of the Affordable Care Act generally to “people who opposed civil rights legislation in the 1960s,” stating that upholding the Act requires the same action as was shown “in the fight against lynching and the fight for desegregation.” See http://www.hhs.gov/secretary/ about/speeches/sp20130716.html.
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231. Consequently, on information and belief, the Universities allege that the purpose of the Final Mandate, including the restrictively narrow scope of the religious employers exemption, is to discriminate against religious organizations that oppose contraception and abortion.
FIRST CLAIM FOR RELIEF Violation of the Religious Freedom Restoration Act
42 U.S.C. § 2000bb 232. Plaintiffs reallege all matters set forth in paragraphs 1-231 and incorporate them herein. 233. The Universities’ sincerely held religious beliefs prohibit them from providing, paying for, making accessible, or facilitating coverage or payments for abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling, or providing or facilitating a plan that causes access to the same through an insurance company, third-party administrator, or any other third party. 234. When the Universities comply with the Ten Commandments’ prohibition on murder and with other sincerely held religious beliefs, they exercise religion within the meaning of the Religious Freedom Restoration Act. 235. The Mandate imposes a substantial burden on the Universities’ religious exercise and coerces them to change or violate their religious beliefs. 236. The Mandate chills the Universities’ religious exercise within the meaning of RFRA and pressures them to abandon their religious convictions and religious practices.
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237. The Mandate exposes the Universities to substantial fines and/or financial burdens for their religious exercise.
238. The Mandate exposes the Universities to substantial competitive disadvantages because of uncertainties about their health insurance benefits caused by the Mandate.
239. The Mandate furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
240. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
241. The Mandate and Defendants’ threatened enforcement thereof violates the Universities’ rights protected by the Religious Freedom Restoration Act.
242. Absent injunctive and declaratory relief against application and enforcement of the Mandate, the Universities will suffer irreparable harm.
SECOND CLAIM FOR RELIEF Violation of Free Exercise Clause of the First Amendment
to the United States Constitution 243. Plaintiffs reallege all matters set forth in paragraphs 1-231 and incorporate them herein. 244. The Universities’ sincerely held religious beliefs prohibit them from providing, paying for, making accessible, or otherwise facilitating coverage or payments for abortion, abortifacients, embryo-harming pharmaceuticals, and related education and
47

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counseling, or providing or facilitating a plan that causes access to the same through an insurance company or third-party administrator.
245. When the Universities comply with the Ten Commandments’ prohibition on murder and with other sincerely held religious beliefs, they exercise religion within the meaning of the Free Exercise Clause.
246. The Mandate is not neutral and is not generally applicable. 247. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 248. The Mandate furthers no compelling governmental interest. 249. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 250. The Mandate coerces the Universities to change or violate their religious beliefs. 251. The Mandate chills the Universities’ religious exercise. 252. The Mandate exposes the Universities to substantial fines and/or financial burdens for their religious exercise. 253. The Mandate exposes the Universities to substantial competitive disadvantages, in that it makes it unclear what health benefits they can offer to their employees and what health insurance coverage they can facilitate for their students. 254. The Mandate substantially burdens the Universities’ religious exercise. 255. The Mandate is not narrowly tailored to any compelling governmental interest.
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256. Despite being informed in detail of the religious objections of the Universities and thousands of others, Defendants designed the Mandate and the religious exemption thereto to target the Universities and others like them, thereby making it impossible for the Universities and other similar religious organizations to comply with their religious beliefs without suffering crippling punishments.
257. Defendants promulgated both the Mandate and the religious exemption in order to suppress the religious exercise of the Universities and others.
258. By design, Defendants framed the Mandate to apply to some religious organizations but not others, resulting in discrimination among religions.
259. The Mandate violates the Universities’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
THIRD CLAIM FOR RELIEF Violation of the Establishment Clause of the First Amendment to the United States Constitution 260. Plaintiffs reallege all matters set forth in paragraphs 1-231 and incorporate them herein. 261. The First Amendment’s Establishment Clause prohibits the establishment of any religion and/or excessive government entanglement with religion. 262. To determine whether religious organizations like the Universities are required to comply with the Mandate, continue to comply with the Mandate, are eligible for an exemption, or continue to be eligible for an exemption, Defendants must examine
49

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the organization’s religious beliefs and doctrinal teachings, and that of its employees and persons it serves.
263. Obtaining sufficient information for the Defendants to analyze the content of the Universities’ religious beliefs requires ongoing, comprehensive government surveillance that impermissibly entangles Defendants with religion.
264. The Mandate discriminates among religions and among denominations, favoring some over others.
265. The Mandate adopts a particular theological view of what is acceptable moral complicity in provision of abortifacient coverage and imposes it upon all religionists who must either conform their consciences or suffer penalty.
266. The Mandate violates the Universities’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution.
FOURTH CLAIM FOR RELIEF Violation of the Free Speech Clause of the First Amendment
to the United States Constitution 267. Plaintiffs reallege all matters set forth in paragraphs 1-231 and incorporate them herein. 268. Defendants’ requirement to provide insurance coverage for education and counseling regarding contraception causing abortion forces the Universities to speak in a manner contrary to their religious beliefs.
50

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269. The Universities teach that abortion violates God’s law and that any participation in the unjustified taking of an innocent human life contradicts their religious beliefs and convictions.
270. The Mandate compels the Universities to facilitate expression and activities that the Universities teach are inconsistent with their religious beliefs, expression, and practices.
271. The Mandate compels the Universities to facilitate access to government-dictated education and counseling related to abortion.
272. Defendants thus violate the Universities’ rights to be free from compelled speech, a right secured to them by the Free Speech Clause of the First Amendment.
273. The Mandate’s compelled speech requirement does not advance a compelling governmental interest.
274. Defendants have no narrowly tailored compelling interest to justify this compelled speech.
275. The Mandate violates the Universities’ rights secured to them by the Free Speech Clause of the First Amendment to the United States Constitution.
276. Absent declaratory and injunctive relief, the Universities will suffer irreparable harm.
FIFTH CLAIM FOR RELIEF Violation of the Due Process Clause of the Fifth Amendment to the United States Constitution
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277. Plaintiffs reallege all matters set forth in paragraphs 1-231 and incorporate them herein.
278. Because the Mandate sweepingly infringes upon religious exercise and speech rights that are constitutionally protected, it is unconstitutionally vague in violation of the due process rights of the Universities and other parties not before the Court.
279. Persons of common intelligence must necessarily guess at the meaning, scope, and application of the Mandate and its exemptions.
280. This Mandate lends itself to discriminatory enforcement by government officials in an arbitrary and capricious manner, and lawsuits by private persons, based on the government’s vague standard.
281. The Mandate vests Defendants with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations that possess religious beliefs and/or that meet the government’s definition of “religious employers.”
282. This Mandate violates the Universities’ due process rights under the Fifth Amendment to the United States Constitution.
SIXTH CLAIM FOR RELIEF Violation of the First Amendment to the United States Constitution
Freedom of Expressive Association 283. Plaintiffs reallege all matters set forth in paragraphs 1-231 and incorporate them herein. 284. The Universities teach that abortion violates God’s law and that any participation in the unjustified taking of an innocent human life contradicts their religious beliefs and convictions.
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285. The Mandate compels the Universities to facilitate expression and activities that the Universities teach are inconsistent with their religious beliefs, expression, and practices.
286. Defendants’ actions thus violate the Universities’ right of expressive association protected by the Free Speech Clause of the First Amendment to the United States Constitution.
SIXTH CLAIM FOR RELIEF Violation of the Administrative Procedure Act 287. Plaintiffs reallege all matters set forth in paragraphs 1-231 and incorporate them herein. 288. Because they did not give proper notice and an opportunity for public comment, Defendants did not take into account the full implications of the regulations by completing a meaningful consideration of the relevant matter presented. 289. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 290. Defendants issued its regulations on an interim final basis and only asked for comments thereafter. Yet Defendants signaled from regulatory text of its interim rules that it had no intention of considering the requests by religious organizations to provide them with exemptions, or to hold the effective date of its rules after it received and considered all the comments submitted.
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291. Thus, Defendants imposed its rules without the required “open-mindedness” that agencies must have when notice-and-comment occurs. Defendants also did not have good cause to impose the rules without prior notice and comment.
292. Moreover, Defendants issued the Final Mandate with respect to the Universities on June 28, 2013, and declared it effective August 1, 2013, with a “safe harbor” that imposed the Final Mandate on OBU’s and MACU’s employee plan years beginning January 1, 2014, and on SNU’s and OKWU’s employee plan years beginning on July 1, 2014.
293. The ACA provides, and Defendants admit, that any rule issued requiring coverage of preventive services under 42 U.S.C. § 300gg-13 cannot go into effect until at least a year after the rule is finalized. Under these provisions, the Final Mandate cannot be effective on OBU and MACU until its employee health insurance plan year starting after the summer of 2014, namely, their plan years starting January 1, 2015.
294. Thus the Final Rule, by its effective date of August 1, 2013 and its impact on OBU and MACU on January 1, 2014, violates the ACA and Defendants’ regulations against imposing within a year after they are finalized, and/or violates the APA’s requirement that agencies be open-minded to comments before finalizing their rules.
295. Therefore, Defendants have violated the notice and comment requirements of 5 U.S.C. §§ 553 (b) and (c), have taken agency action not in accordance with procedures required by law, and the Universities are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
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296. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on the Universities and similar organizations.
297. Defendants’ explanation (and lack thereof) for its decision not to exempt the Universities and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
298. Thus, Defendants’ issuance of the Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the Mandate fails to consider the full extent of its implications and it does not take into consideration the evidence against it.
299. As set forth above, the Mandate violates RFRA and the First and Fifth Amendments.
300. 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).
301. 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
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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.”
302. The Mandate also violates the provisions of the Church Amendment, 42 U.S.C. § 300a-7(d), which provides that “No individual shall be required to perform or assist in the performance of any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services if his performance or assistance in the performance of such part of such program or activity would be contrary to his religious beliefs or moral convictions.”
303. The Mandate is contrary to existing law and is in violation of the APA under 5 U.S.C. § 706(2)(A).
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request the following relief: A. That this Court enter a judgment declaring the Mandate and its application to Plaintiffs and their insurance issuers or third-party administrators to be a violation of their rights protected by RFRA, the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment to the United States Constitution, and the Administrative Procedure Act; B. That this Court enter a permanent injunction prohibiting Defendants from continuing to apply the Mandate to the Plaintiffs and their insurance issuers or third-party
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administrators or in a way that violates the legally protected rights of any person, and
prohibiting Defendants from continuing to illegally discriminate against Plaintiffs by
requiring them to provide health insurance coverage or access to separate payments for
contraceptives, abortifacients, and related counseling to their employees and students;
C. That this Court award Plaintiffs court costs and reasonable attorney’s fees,
as provided by the Equal Access to Justice Act and RFRA (as provided in 42 U.S.C. §
1988); and
D. That this Court grant such other and further relief as to which the Plaintiffs
may be entitled.
Respectfully submitted this 20th day of September, 2013.
Respectfully submitted,
s/ John Paul Jordan John Paul Jordan (Oklahoma Bar No. 22613) THE JORDAN LAW FIRM 1703 Professional Circle, Suite 501-A Yukon, OK 73099 (405) 222-8721 (877) 335-5521 jp@jpjordanlaw.com
Gregory S. Baylor* (Texas Bar No. 01941500) Matthew S. Bowman* (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
David A. Cortman* (Georgia Bar No. 188810)
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ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org Kevin H. Theriot* (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
Attorneys for Plaintiffs *Motion to appear pro hac vice to be submitted
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VERIFICATION OF COMPLAINT ACCORDING TO 28 U.S.C. § 1746 I declare under penalty of perjury that the foregoing allegations regarding Southern Nazarene University are true and correct to the best of my knowledge. Executed on September 20th, 2013.
___________________________________ Loren Gresham* President, Southern Nazarene University *I certify that I have the signed original of this document, which is available for inspection at any time by the Court or a party to this action.
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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 Mid-America Christian University are true and correct to the best of my knowledge. Executed on September 20th , 2013.
___________________________________ John Fozard * President, Mid-America Christian University *I certify that I have the signed original of this document, which is available for inspection at any time by the Court or a party to this action.
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CERTIFICATE OF SERVICE I hereby certify that on September 20, 2013 I electronically filed the foregoing with the Clerk of Court using the newcases@okwd.uscourts.gov email address.
s/ John Paul Jordan
63

 
 Case 5:13-cv-01015-F Document 19 Filed 11/27/13 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) SOUTHERN NAZARENE

)

UNIVERSITY; (2) OKLAHOMA

)

WESLEYAN UNIVERSITY; (3)

)

OKLAHOMA BAPTIST UNIVERSITY; and )

(4) MID-AMERICA CHRISTIAN

)

UNIVERSITY,

)

)

Plaintiffs,

)

)

v.

)

)

(1) KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the United States

)

Department of Health and Human Services; )

(2) THOMAS E. PEREZ, in his official

)

capacity as Secretary of the United States

)

Department of Labor; (3) JACOB J. LEW, in )

his official capacity as Secretary of the United )

States Department of the Treasury; (4)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES; (5) )

UNITED STATES DEPARTMENT OF

)

LABOR; and (6) UNITED STATES

)

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

)

)

Case No. 5:13-cv-01015-F

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Pursuant to Fed. R. Civ. P. 65 and LCvR7.1, Plaintiffs Southern Nazarene University, Oklahoma Wesley an University, Oklahoma Ba ptist University, and MidAmerica Christian University, (“the Universities”), by and through counsel, hereby move this Court to enter a preliminary injunction, and state as follows:

Case 5:13-cv-01015-F Document 19 Filed 11/27/13 Page 2 of 6
1. The Universities request a prelimin ary injunction agai nst Defendants, ordering them not to apply or enforce their regulatory mandate (“the Mandate”) requiring the Universities to facilitate, contrary to their sincerely held religious beliefs, the provision of and/or pa yment for abortifacient drugs and devices and related counseling, through their employee and student health insurance plans.
2. In support of this motion, the Universities submit an acco mpanying memorandum of law.
3. The Universities respectf ully request a decision on this motion prior to December 23, 2013. The Mand ate begins applying to two of the Universities – Oklahoma Baptist University and Mid-America Christian Unive rsity – on January 1, 2014 (when their next em ployee health plan years begin). A ruling several days in advance of that date would give these schools sufficient time to implement the injunction.
4. Southern Nazarene University’s a nd Oklahoma Wesleyan University’s employee plans begins on July 1 of ever y year, and Oklahoma Baptist University’s and Mid-America Christian University’s employee plans each begi n on Januar y 1 of ever y year. If injunctive relief is not afforded in advance of those dates, the Universities will be forced to choose between (a) following their consciences and suffering crippling financial penalties; and (b) facilitating the destruction of human life in viol ation of the Sixth Commandment, thereby transgressing their sincerely held religious beliefs. Terminating their employee health insuran ce plans in order to protect their consciences will have a devastating effect on the Universities’ em ployees, faculty and staff recruitment and retention, and operations more generally.
2

Case 5:13-cv-01015-F Document 19 Filed 11/27/13 Page 3 of 6
5. Two of the Universities (Southern Nazarene and Oklahom a Baptist) facilitate student health ins urance plans. The next Southern Nazarene student plan year begins on August 21, 2014. The next O klahoma Baptist student pl an begins on January 1, 2014. If injunctive relief is not afforded in advance of those dates, the Universities will likely be forced to drop their student hea lth insurance plans, in violation of their religious duty to provide for the well-being of their students.
6. As set forth in the accompanying memo randum of law, the Universities are likely to succeed on the merits of their claims, particularly under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (RFRA). The U.S. Co urt of Appeals for the Tenth Circuit has ruled that forcing an em ployer to provi de coverage for abortifacient drugs and devices violates RFR A. See Hobby L obby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc). Just this month, the Seventh and D.C. Circuit Courts of Appeals came to the same conclusion. Korte v. Sebelius , 2013 WL 59606 92 (7th Cir. Nov. 8, 2013); Gilardi v. U.S. Dep’t of Health & Human Servs., 2013 WL 2013 5854246 (D.C. Cir. Nov. 1, 2013). Requiring the Un iversities to facilitate the provision of abortifacients substantially burdens their ability to exercise their religious beliefs in the sanctity, dignity, and value of human life an d their religious obligation to avoid violating the Ten Commandments. No compelling interest justifies the Mandate ’s burden on the Universities’ religious exer cise, and other, less restric tive means of pursuing the Government’s stated objectives are available to Defendants.
7. Without injunctive relief, the U niversities, many of their students and employees, and the public will be irrepa rably harmed. Defendants will suffer no
3

Case 5:13-cv-01015-F Document 19 Filed 11/27/13 Page 4 of 6
measurable injury if the inju nction is gra nted, and thus th e balancing of har ms plainly
favors the Universities.
8. As factual support for this motion, the Universities rest upon the Verified
Complaint filed September 20, 2013.
Respectfully submitted this 27th day of November, 2013.
s/ Gregory S. Baylor
Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman* (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
David A. Cortman* (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
Kevin H. Theriot* (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
4

Case 5:13-cv-01015-F Document 19 Filed 11/27/13 Page 5 of 6
John Paul Jordan (Oklahoma Bar No. 22613) THE JORDAN LAW FIRM 1703 Professional Circle, Suite 501-A Yukon, OK 73099 (405) 222-8721 (877) 335-5521 (facsimile) jp@jpjordanlaw.com Attorneys for Plaintiffs *Motions for pro hac vice admission to be filed.
5

Case 5:13-cv-01015-F Document 19 Filed 11/27/13 Page 6 of 6
CERTIFICATE OF SERVICE I hereby certify that on November 27, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record.
s/ Gregory S. Baylor
6

 
 Case 5:13-cv-01015-F Document 20 Filed 11/27/13 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) SOUTHERN NAZARENE

)

UNIVERSITY; (2) OKLAHOMA

)

WESLEYAN UNIVERSITY; (3)

)

OKLAHOMA BAPTIST UNIVERSITY; and )

(4) MID-AMERICA CHRISTIAN

)

UNIVERSITY,

)

)

Plaintiffs,

)

)

v.

)

)

(1) KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the United States

)

Department of Health and Human Services; )

(2) THOMAS E. PEREZ, in his official

)

capacity as Secretary of the United States

)

Department of Labor; (3) JACOB J. LEW, in )

his official capacity as Secretary of the United )

States Department of the Treasury; (4)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES; (5) )

UNITED STATES DEPARTMENT OF

)

LABOR; and (6) UNITED STATES

)

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

)

)

Case No. 5:13-cv-01015-F

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

Case 5:13-cv-01015-F Document 20 Filed 11/27/13 Page 2 of 19
TABLE OF CONTENTS INTRODUCTION ............................................................................................................... 1 STANDARD OF REVIEW................................................................................................. 3 ARGUMENT....................................................................................................................... 4 I. THE UNIVERSITIES ARE LIKELY TO SUCCEED ON THE MERITS
OF THEIR RELIGIOUS FREEDOM RESTORATION ACT CLAIM. ................. 4 A. The Mandate Substantially Burdens the Universities’ Religious
Exercise ......................................................................................................... 5 B. The Mandate Is Not the Least Restrictive Means of Advancing Any
Compelling Governmental Interest ............................................................. 10 II. A PRELIMINARY INJUNCTION IS NEEDED TO PREVENT
IRREPARABLE HARM........................................................................................ 11 III. THE BALANCE OF EQUITIES WARRANTS ENTRY OF A
PRELIMINARY INJUNCTION ............................................................................ 12 IV. A PRELIMINARY INJUNCTION WOULD SERVE THE PUBLIC
INTEREST. ............................................................................................................ 14 CONCLUSION ................................................................................................................. 15
i

Case 5:13-cv-01015-F Document 20 Filed 11/27/13 Page 3 of 19
INTRODUCTION Plaintiffs Southern Nazarene University (“SNU”), Oklahoma Wesleyan University (“OKWU”), Oklahoma Baptist University (“OBU”), and Mid-America Christian University (“MACU”) (hereinafter, “the Univ ersities”) seek preliminary injunctive relief against a series of regulations (the “Mandate”) that force them to violate their sincerely held religious beliefs. The enforcement of the Mandate w ill begin on January 1, 2014. See Fed. Reg. 39,870 (July 2, 2013). The Mandate requires religious or ganizations, including the Universitie s, to provide, pay for, and/or f acilitate access to abortifacient drugs and devices, as well as related educa tion and counseling, in a manner that is directly contrary to their religious beliefs. Defendants promulgated the M andate pursuant to t heir authority under the Affordable Care Act (“ACA”) to require empl oyer health plans to include covera ge for women’s “preventive care and screenings.” 42 U.S.C. § 300gg- 13(a)(4). B y defining “preventive care” to include “all Food and Drug Administra tion approved contraceptive methods,”1 the Mandate requires employer and student health plans to cover abortifacient drugs, contraception, sterilizati on, and related counseling. See 45 C. F.R. § 147. 130.2 Failure to provide the mandated coverage e xposes employers to fines of $100 per day, per affected beneficiary. See 26 U.S.C. § 4980D(b). Dro pping their em ployee health plans altogether subjects employers to substantial penalties of approximately $2,000 per employee. Id. at §§ 4980H(a), (c)(1). In each of these scenarios, they would also face liability under ERISA. Regarding the student plans they facilitate, the Universities would be forced to choose between (a ) compliance; (b) violation and fines; and (c) stopping the facilitation of a student plan. Given that th e Universities believe that the facilitation of
1 http://www.hrsa.gov/womensguidelines (last accessed Nov. 26, 2013). 2 The category of m andatory FDA-approved contraceptives includes the m orning-after pill (Plan B) and Ulipristal (HRP 2000 or ella), which can act as abortifacients. See Women’s Preventive Services Guidelines, http://www.hrsa.gov/womensguidelines/ (last accessed Nov. 26, 2013)
1

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employee and student hea lth coverage is an exercise of its religious beliefs, options (a) and (c) are bot h unacceptable. Following th eir religious convictions (option (b)) would subject them to fines, thereby pressuring them to choose a c ourse of action that contradicts their religious convictions.
The Mandate contains an extremely na rrow “religious employer” exemption which is limited to churches, th eir integrated auxiliaries, and religious orders. 45 C.F.R . § 147.131(a). The Univ ersities are not eligible for this exemption. Defendants state that the exemption “does not unde rmine the go vernmental interests furthered by th e contraceptive coverage requirements.” 78 Fed. Reg. at 39,874. They explain tha t “[h]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are m ore likely than other employers to employ people of the sam e faith who share the sam e objection, and w ho would therefore be less likely than ot her people to use contraceptive services even if such services were covered under their plan.” Id. The same rationale applies to the Univers ities, as they employ people of the same faith who share the same objection;3 yet Defendants deny them the exemption.
The Mandate’s co-called “accommodation” for non-exempt religious employers does not alleviate the substan tial burden on the Universities’ religious exercise. Under the “accommodation,” the Univers ities continue to serve as a conduit through which “free” abortifacients are provided to their em ployees and students. Eligible religious organizations, such as the Universities, mu st provide a “self-certification” to their insurance issuer or, for self-i nsured plans ( such as tha t belonging to MA CU), to their third-party administrator, objecting to c overage for some or all FDA-approve d contraceptives. That self-certification, however, has the effect of requiring the Universities’ own ins urance issuer or third-party adm inistrator to provide or arrange “payments for contraceptive se rvices” for their employees and students. 45 C.F.R. §
3 Complaint ¶¶ 6, 28-29, 51-52, 68-70, 86-88. 2

Case 5:13-cv-01015-F Document 20 Filed 11/27/13 Page 5 of 19
147.131(c); 26 C.F.R. § 54.9815-2713A(a)-(c)); 29 C.F. R. § 2590.715-2713A. The mandated “payments” will last only as long as the employees or stude nts remain on the Universities’ health plans. 4 As for self-insured entitie s, such as MACU, the selfcertification actually “designat[es] . . . th e third party adm inistrator(s) as plan administrator and claims admin istrator for c ontraceptive benefits.” 78 Fe d. Reg. at 39,879. In short, under t he original ve rsion of t he Mandate (which lacked the “accommodation”) and the Final Rule (which includes the “acco mmodation”), the end result is the same: a religious organization’s decision to offer a group health plan results in the provision of “free” abortifacient produc ts and related educa tion and counseling to its employees and students in a manner w hich directly contradicts the religious beliefs of the Universities. The Mandate thus substa ntially burdens the Un iversities’ religious exercise, a prima facie violation of the Religious Freedom Restoration Act (RFRA).
Forcing the Universities to facilitate access to morally objectionable abortifacients is not the least restrictive means of adva ncing any c ompelling government interest. Consequently, the Mandate can not survive strict scrutiny under RFRA; the Universities are thus likely to s ucceed on the merits of th eir RFRA claim. Assessment of the other preliminary injunction factors also warrants affording the Universities relief.
STANDARD OF REVIEW A plaintiff seeking a prelimin ary injunction must establish (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irrepara ble harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an
4 See 29 C.F.R. § 2590.715-27 13A(d) (for self-insured em ployers, the third-party administrator “will provide or ar range separate payments for contraceptive services . . . for so long as [emp loyees] are enrolled i n [their] group health plan”); 45 C.F.R. § 147.131(c)(2)(i)(B) (for employers offering insu red plans, the issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan”).
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injunction is in the public interest. Fed. R. Civ. P. 65; see, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 ( 10th Cir. 2013) (en ba nc); Comanche Nation, Okla. v. U.S., 393 F. Supp. 2d 1196, 1210 (W.D. Okla. 2005). The essential purpose of a preliminary injunction is to preserve the stat us quo, and t hus, “[t]he party seeking t he injunction need not s how conclusively that it will prevail on the merits. It is only necessary that the movant establish a reas onable probability of s uccess on the merits.” Star Fuel Marts, L LC. v. Murphy Oil USA, Inc. , No. Civ.–02–202–F, 2003 WL 742191, at *8 (W.D. Okla. 2003) (citing Atchison, Topeka and Santa Fe Ry. Co. v. Lenne n, 640 F.2d 255, 261 (10th Cir. 1981)).
Additionally, the Tenth Circuit has adopted a relaxed standard for the likelihood of success that applies in certain cases. Where the plaintiff can establish that the latter three requirements tip strongly in his favor, the test is modified, and the plaintiff may meet the first requirement for showing likelihood of success on the m erits by “prov[ing] that there are questions going to the merits so serious, substantial, difficult and doubtful as to make the issue ripe for litigation and deservi ng of more deliberat e investigation.” Comanche Nation, 393 F. Supp. 2d at 1210 (quoting Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 ( 10th Cir. 2001) (interna l quotation omitted)); see also Fed. Lands Legal Consortium ex rel. Robart Estate v. U.S. , 195 F.3d 1190, 1195 (10th Cir. 1999); Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002).
ARGUMENT I. THE UNIVERSITIES ARE LIKELY TO SUCCEED ON THE MERITS OF
THEIR RELIGIOUS FREEDOM RESTORATION ACT CLAIM. Under the Religious Freedom Restoration Act (“RFRA”), the Federal Government is prohibited from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,” unle ss it “demonstrates that application of the burden to the person is (1) in furtherance of a compelling governmental
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interest; and (2) the least rest rictive means of fu rthering that com pelling governmental interests. 42 U. S.C. § 2000bb- 1; Gonzales v. O Ce ntro Espírita Beneficente União do Vegetal, 546 U.S. 418, 423 (2006). The Mandate cannot survive strict sc rutiny under RFRA.5
A. The Mandate Substantially Burdens the Universities’ Religious Exercise. The Religious Freedom Restoration Act forbids the federa l government from substantially burdening a per son’s exercise of religion unless the government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least rest rictive means of furt hering that compelling governmental interest. 42 U.S.C. § 2000bb-1; O Centro Espírita, 546 U.S. at 423. In assessing whether the Mandate substantially burdens the Universities’ religious exercise, thereby triggering strict scrutiny, it is essen tial to: (1) identify the religious exercise in question; and (2) identify exactly what the go vernment is doing with respect to that exercise. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc).
1. The religious exercise(s) in question Three “exercises of religion” are at the he art of this case. Two are affirmative pursuits of religious objectives; the third is avoidance of conduct c ontrary to the Universities’ beliefs. First, the Universities affirmatively live out their religious beliefs in the dignity of human life by ma king available to members of their communities health insurance coverage that refl ects the University communities’ shared pro-life beliefs. Second, they create and foster academic communities that encourage its members (faculty, staff, and students) to grow in spir itual maturity throu gh obedience to God’s
5 The Mandate also violates the Free Speech , Free Exercise, and Establishment Clauses of the First Amendment, the Due Proce ss Clause of t he Fifth Am endment, the Administrative Procedure Act, and various statutory prohibitions on compelled support for abortion. Because the RFRA claim is adeq uate to afford relief at this stage of the proceedings, these other arguments are not set forth in greater detail herein.
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commands, including His com mands about the value of hum an life. Thir d, the Universities seek to avoid fa cilitating sinful behavior, th ereby engaging in immoral conduct themselves.
2. What the government is doing with respect to those “exercises” Through the Mandate, Defendants interfere with each of these three “exercises of religion.” First, Defendants ha ve made it untenable, to put it mildly, for the Universities to provide employee and st udent health i nsurance that correlates with their pro-life beliefs. Left free to exercise th eir religion in the health insurance context, their plans would ensure access to everything the Affordable Care Act and the HHS Mandate require (including non-abortifacient contraceptives) other than abortifacients like ella and Plan B. Participation in their plans would not trigger the “free” av ailability of embryo-destroying drugs and devices to members of their comm unities. Because of the Mandate, however, insurance issuers will sell the Universities plans that either (a) expressly include abortifacients; or (b) functionally include abortifacients by guara nteeing separate payments for them upon the sc hool’s execution of a s elf-certification. In the case of a self-insured entity, it may either (a) set up a se lf-insured plan that includes abortifacients; or (b) set up a self-insured pla n that functionally includes abortifacients by guaranteeing separate payments for them upon the entity’s execution of a self-certification. If it fails to do either of these, and instead creates a sel f-insurance plan that does not facilitate th e availability of abortifacients, it will face fines of $100 per beneficiary per day. Defendants have also made it impossible, as a practical matter, to avoid facilitating the use of abortifacients by dr opping employee health insurance altogether (som ething that would transgress their relig ious convictions in its own ri ght). The fina ncial penalty for such a move is $2,000 per employee per year after the first 30 employees. Because Defendants have left the Universities without the option of fulfilling their religious convictions by provid ing health insurance that do es not facilitate access to abortifacients (or of dropping employee health insurance altogether), they are forced to
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provide health insurance that does facilitate that access. This significantly interferes with

the Universities’ other two “exercises of relig ion.” First, it directly and significantly

interferes with their ability to make and en force religiously-rooted rules of conduct

applicable to their employees and students, all of whom voluntarily joined their

respective communities. It directly and significantly interferes with their ability

effectively to communicate their pro-life message to their students, faculty, staff, and the

broader community. It directly and signif icantly interferes with their purs uit of their

mission to grow the spiritual maturity of members of th eir community by fostering

obedience to and love for God’s laws.

Second, it forces them to engage in

behavior that violates their religious

convictions. Either complying with the Mandate as originally written or complying with

it by executing a self-certification that ensures the same result ( i.e., free access for

members of their community to abortifacients as a consequence of their employment with

them) is, in the eyes of each University, sinful and immora l. The Universities believe

that sin adversely affects their relationshi p with God. Although the shape and magnitude

of this a dverse effect cannot be predicted or calculated, the Universities nonet heless

believe it is quite real, and to be avoided.

3. How the Mandate burdens the Universities’ religious exercise(s) The Mandate burdens the Universities’ religious exercise by coercing them to take action they believe to be sinf ul and im moral, and by interfering w ith their freedom to foster voluntary communities that encourage spiritual maturity through compliance with shared ethical commitments rooted in religious conviction. As to the first of these ways Defendants burden the Univer sities’ religious exercise, the Universities will transgress their understandi ng of God’s laws by pr oviding health insurance to their employees and students that gives them guaranteed payments for drugs and devices that take hum an life. In short, by complying th ey will sin. And non -

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compliance, either through dropping employee and/or student coverage, or by continuing their current coverages (which exclude abortifacients), is not possible, either financially or ethically.
As discussed above, the Universities not only want to avoi d committing sin, but also want to foster the spiritu al maturity of members of th eir communities, faculty, staff, and students alike. Christia n conviction—including respect for the dignity and worth of human life from the moment of conce ption—is a qualification for entry into and participation in their communities. (Compl., ¶¶ 28, 29, 51, 52, 68, 69, 70, 88.) And, it bears noting, faculty, staff, and students all voluntarily join these communities. Foisting unwanted access to free abortifacients upon th e Universities’ employe es, their families, and students tangibly interferes with this key component of the Universities’ missions. Facilitating free access to abortifacients while simultaneously trying to foster a pro-life ethic lacks integrity; an d doing the former unde rmines the latter. The “fig leaf” of the accommodation is just that; a cosmetic, but u ltimately unsuccessful, effort to cover over the underlying ethical problem.
4. The burden is “substantial” under RFRA The government “substantially burdens” an exercise of religion if it compels one “to perform acts undeniably at odds with fundamental tenets of [one’s] religious beliefs,” Wisconsin v. Yoder, 406 U. S. 205, 218 (1 972), or “ put[s] substantial pressure on a n adherent to modify his behavior and violate his beliefs.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div. , 450 U.S. 707, 717-18 (1981). In Yoder, the Court found t hat a substantial burden was imposed by a $5 penalty imposed on an Amish family for refusing to follow a com pulsory secondary-education law. 406 U.S. at 218-19. In Thomas, the Court similarly held that the denial of unem ployment compensation substantially burdened the pacifist convictions of a Jehovah’s Witness who refused to work at a factory manufacturing tank turrets. 450 U.S. at 717-18.
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Here, the refusal to comply with the Mandate will s ubject the Universities to potentially fatal fines of $100 per day per affected be neficiary. See 26 U.S.C. § 4980D(b). If the Universitie s choose to cease providing employee hea lth insurance altogether, they will be subject to an annual fine of $2,00 0 per full time employee after the first thirty employees. See 26 U.S.C. §§ 4980H(a), (c)(1 ). Such costs and penalties clearly impose the type of pressure that qu alifies as a substantia l burden under RFRA— far outweighing, for example, the $5 fine that was a substantial burden in Yoder.
The Tenth Circuit has recently held that a for-profit or ganization challenging the Mandate was likely to succeed on the merits of its RFRA claim, emphasizing that the Mandate imposed a substantial burden on religious exercise by “demand[ing],” on pain of onerous penalties, “that [Plain tiffs] enable access to contra ceptives that [they] deem morally problematic.” Hobby Lobby, 723 F.3d at 1141; see also Korte v. Sebelius , Nos. 12-3841, 13-1077, 2013 WL 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). The same is true here.
It is of no moment that the Universities, unlike the Hobby Lobby plaintiffs, may be eligible for the Government’s “accommodation,” for that accommodation does nothing to resolve the conflict with th e Universities’ beliefs. See Zubik v. Sebelius , 2013 W L 6118696, at *23-25 (W.D. Pa. Nov. 21, 2013). For purpose of this Court’s analysis, what matters is whether the Governm ent is coerci ng entities to take actions that violate their sincere religious beliefs. Hobby Lobby, 723 F.3d at 1137 (“Our on ly task is to determine whether the claimant’s belief is sincere, a nd if so, w hether the gover nment has applied substantial pressure on the claimant to violate that belief.”). The accom modation continues to require that the Universities facilitate access to objectionable contraceptives, in violation of their sincerely held relig ious beliefs. The accommodation compels the Universities, through their hea lth insurance plans, to serv e as the conduit through which objectionable products and servic es are provid ed to their employees and students. The
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Universities’ sincerely held religious beliefs are entitled to no less protection than the nearly identical sincere religious beliefs at issue in Hobby Lobby.
The Zubik court’s reasoning and conclusion are equally applicable here: [A]lthough the “accom modation” legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides [abortifacient] products, services, and counseling, the “accommodation” requires them to shift the responsi bility of purchasi ng insurance and providing [abortifacient] products, services, and counseling, on a secular source. The Court concludes tha t Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.
2013 WL 6118696, at *25. See also Geneva Coll. v. Sebelius , 2013 WL 3071481 (W.D. Pa. June 18, 2013) (e njoining application of Mandate to co llege’s student health plan, rejecting government’s contention that t hen-proposed accommodation alleviated burden on college’s religious objection to facilitating access to abortifacients).
The Mandate substantially bur dens the religious exercise of the Universities, and thus constitutes a prima facie violation of the Religious Freedom Restoration Act.
B. The Mandate Is Not the Least Restrictive Means of Advancing a Compelling Governmental Interest.
Federal laws or regulations that substa ntially burden religious exercise violate RFRA unless they satisfy strict scrutiny. 42 U.S.C. § 2000bb-1(b ). More specifically, government may substantially bur den a person’s exercise of religion onl y if it demonstrates that application of the burden to t he person ( 1) is in furtherance of a compelling governmental interest; and (2) is th e least restrictive means of furthering that compelling governmental interest.
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The U.S. Court of Appeals for the Tent h Circuit has held that the Mandate fails strict scrutiny. Hobby Lobby, 723 F.3d at 1143-44. The court held that the government’s stated interests in “public health” and “gender equality” “do not satisfy the Supreme Court’s compelling interest standards.” Id. at 1143. The Hobby Lobby court also held that even if the government’s stated interests were compe lling, the Mandate was not the least restrictive means of advancing those interests. Id. at 1144 (gover nment failed to explain how exempting the plaintiffs would undermine its interests).
There is no plausible basis for argui ng that the Te nth Circuit’s strict scrutiny holding does not a pply to this ca se. Indeed, the government has subsequently conceded in another Western District of Oklahoma case that the distri ct court was “bound by that decision.”6 The U.S. Supreme Court’s grant of the government’s petition for a writ of certiorari in Hobby Lobby7 does not alter that reality.
II. A PRELIMINARY INJUNCTION IS NEEDED TO PREVENT IRREPARABLE HARM. “It has long been established that the loss of constitutional freedoms, for even
minimal periods of time, unquestionabl y constitutes irreparable injury.” Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (internal quotation marks and citation omitted). “By extension, the same is true of rights afforded under the RFRA, which covers the same types of rights as those prot ected under the Free Exercise Clause of the First Amendment.” Tyndale House Publishers, Inc. v. Sebelius , No. 12-1635, 2012 WL 5817323, at *18 (citing O Centro Espirita Beneficente União do Vegetal v. Ashcroft, 389
6 Reaching Souls Int’l v. Sebelius, No. 5:13-cv-1092-D, ECF No. 50, at 21. 7 Sebelius v. Hobby Lobby Stores, Inc., 2013 WL 5297798, 82 U.S.L.W. 3139 (U.S. Nov 26, 2013) (No. 13-354).
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F.3d 973, 995 (10th Cir. 2004), aff’d, 546 U.S. 418). Here, coer cing the Universities to facilitate access to abortifacient s in direct violation of th eir faith is the epitome of irreparable injury.
The impending enforcement of the Mandate is also causing significant disruption to the Universities’ hiring and human-resources planning. Health plans do not take shape overnight, but i nstead require a number of analyses, negotia tions, and decisions before the Universities can offer a health benefits pa ckage to their employees. Employers using an outside insurance issuer must work with actuaries to evaluate their funding reserves, and then negotiate with the insurer to determine the cost of the products and services they want to offer their employees. Em ployers that are self-insured m ust similarly negotiate with third-party administrators. Under normal circumstances, the Universities must begin the process of determining their health care packag e for a plan year at least one year before the plan year begins. The multiple levels of uncert ainty surrounding the Mandate make this already lengthy proc ess even more complex. In addition, if the Universities choose to follow their religious conscience instead of complying with the Mandate, they will be subject to massive fines and penalties. The Universities require time to budget for such additional expenses. Su ch jarring uncertainties adversel y affect the Universities’ ability to hire and retain employees.
The Tenth Circuit has twice concluded that forcing a conscientious objector to comply with the Mandate would impose irreparable harm. See Hobby Lobby, 723 F.3d at 1146; Newland v. Se belius, No. 12-1380, 2013 WL 5481997, at *2 (10th Cir. Oct. 3, 2013) (affirming lower court’s finding of irre parable harm). There is no pla usible basis for departing from that conclusion in this case. III. THE BALANCE OF EQUITIES WARRANTS ENTRY OF A
PRELIMINARY INJUNCTION. The balance of equities tips strongly in favor of the Universities. The Universities are subject to crippli ng fines for non-com pliance with the Mandate, and the potential
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harm to t he Government in e xempting a small fraction of em ployees and stude nts compared to the millions already exempt is de minimis.
The next OBU and MACU employee plans are scheduled to begin on January 1, 2014. The Mandate will apply to those plans in the abse nce of injunctive relief. Accordingly, OBU and MACU are right now facing an unenviable choice: either comply with the Mandate and transgre ss their duties to God, or dr op their employee plans a nd face enormous penalties. Alth ough the SNU and OKWU empl oyee plans begin later in 2014, there is no com pelling reason to hold off on granting them preliminary injunctive relief as well.
The Government cannot possibl y establish that it would suffer any s ubstantial harm from a prelim inary injunction pendi ng final resolution of this case. The Government has not mandated contraceptive coverage for over two centuries, and there is no urgent need to enforce th e Mandate immediately against the Universities before its legality can be adjudicated. Furthermore, De fendants concede that there is no reason to impose the Mandate on em ployers whose em ployees share their religious convictions concerning contraceptives.
In addition, given that courts have conc luded that the Mandate already contains exemptions available to “tens of millions of people,” Hobby Lobby, 713 F.3d at 1143, the Government cannot plausibly claim that it will be harmed by a temporary delay in enforcement against the Universities. On remand in Hobby Lobby, the district court held that, because a “bulk of the appr oved [contraceptive] methods are available” to health plan beneficiaries, “unlike a substantial number of other em ployees whose plans the government has com pletely exempted from the contraceptive coverage requirement,” balanced against the potential crippling fines established that “the threatened injury to the [Plaintiffs]. . .outweighs the potential harm to the government.” Hobby Lobby Stores, Inc. v. Sebelius, 2013 WL 3869832, at *1 (W.D. Okla. July 19, 2013).
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Indeed, any claim of harm to the Governm ent is fatally undermined by the fact that it consented to or did not oppose preliminary injunctive relief in several other cases challenging the Mandate. See, e.g., Mot. to St ay, Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Ser vs., No. 2:12-cv-00092, (E.D. Mo. Mar. 11, 2013) (D kt. # 41); Order, Sioux Chief Mfg. Co. v. Sebelius, No. 4:13-cv-00036, (W.D. Mo. Feb. 28, 2013) (Dkt. # 9); Order, Hall v. Sebelius, No. 13-cv-00295, (D. Minn. Apr. 2, 2013) (Dkt. # 11). The Government “cannot claim irreparable ha rm in this case while acquiescing to preliminary injunctive relief in several similar cases.” Geneva Coll. v Sebelius, No. 1200207, 2013 WL 1703871, at *12 (W.D. Pa. Apr. 19, 2013). Indeed, “[i]f the government is willing to grant exemptions for no less than one third of all Americans, and it is willing to consent to injunctive relief in cases that do not fall within those exemptions, then it can suffer no appreciable harm” were an injunction entered here. Beckwith Elec. Co., Inc. v. Sebelius, 2013 WL 3297498, at *18 (M.D. Fla. June 25, 2013). In short, especially when balanced against the serious irreparable inju ry being inflicted on the Universities, any harm the Government might claim from a preliminary injunction is de minimis.
IV. A PRELIMINARY INJUNCTION WOULD SERVE THE PUBLIC INTEREST. “It is in the public interest for courts to carry out the will of Congress and for an
agency to implement properly the statute it administers.” Mylan Pharms. Inc. v. Shalala, 81 F. Supp. 2d 30, 45 (D.D.C. 2000). In add ition, “pursuant to RFRA, the re is a strong public interest in the fr ee exercise of religion.” O Centro, 389 F.3d at 1010. “[I]t i s always in the public interest to prevent th e violation of a party’s constitutional rights.” Awad v. Ziriax, 670 F.3d 1111, 1132 (10t h Cir. 2012). On remand in Hobby Lobby, the district court held that:
Given the importance of the i nterests at stake […], the fact that the ACA’s requirements raise new and s ubstantial questions of law an d public policy, and that substantial litigatio n as to the mandate here is ongoing around the
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country, the court concludes that there is an overriding public interest in the resolution of the legal issu es raised by the mandate before [Plaintiffs] are exposed to the substantial penalties that are potentially applicable.
Hobby Lobby, 2013 WL 3869832, at *1. Thus, the public intere st favors protecting the Universities’ religious liber ty by enjoining en forcement of the Mandate until it is permanently struck down.
CONCLUSION For the foregoing reasons, th e Universities resp ectfully request that this Court grant their motion for preliminary injunction.
Respectfully submitted this 27th day of November, 2013.
s/ Gregory S. Baylor
Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman* (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
David A. Cortman* (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
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Kevin H. Theriot* (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org John Paul Jordan (Oklahoma Bar No. 22613) THE JORDAN LAW FIRM 1703 Professional Circle, Suite 501-A Yukon, OK 73099 (405) 222-8721 (877) 335-5521 (facsimile) jp@jpjordanlaw.com Attorneys for Plaintiffs *Motions for pro hac vice admission to be filed.
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CERTIFICATE OF SERVICE I hereby certify that on November 27, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record.
s/ Gregory S. Baylor
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 Case 5:13-cv-01015-F Document 25 Filed 12/17/13 Page 1 of 61

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

)

SOUTHERN NAZARENE

) )

UNIVERSITY, et al.,

)

Plaintiffs,

) )

v.

) )

)

KATHLEEN SEBELIUS, in her official

) )

capacity as Secretary, United States

)

Department of Health and Human

)

Services, et al.,

) )

)

Defendants.

Case No. 5:13-cv-01015-F

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

Pursuant to Federal Rules of Civil Pr ocedure 12(b)(1) and 12(b)( 6), defendants

move to dismiss this action for lack of subject matter jurisdiction and for failure to state a

claim upon which relief may be granted. In the alternative, defendants move for summary

judgment on all of plaintiffs ’ claims pursuant to Rule 56. The grounds for these motions

are set forth in the accompanying memorandum , which also responds to plaintiffs’

motion for preliminary injunction.

Case 5:13-cv-01015-F Document 25 Filed 12/17/13 Page 2 of 61
TABLE OF CONTENTS TABLE OF AUTHORITIES............................................................................................... ii INTRODUCTION ............................................................................................................... 1 BACKGROUND ................................................................................................................. 4 MOVANT’S STATEMENT OF MATERIAL FACTS ...................................................... 9 STANDARD OF REVIEW............................................................................................... 19 ARGUMENT..................................................................................................................... 20 I. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit .................. 20 II. The Regulations Do Not Violate the Free Exercise Clause ...................................... 28 III. The Regulations Do Not Violate the Establishment Clause ..................................... 31 IV. The Regulations Do Not Violate the Right to Free Speech
or Expressive Association ......................................................................................... 35 V. The Regulations Do Not Violate the Due Process Clause ........................................ 39 VI. Plaintiffs’ APA Claims Fail ...................................................................................... 40
A. The regulations were promulgated in accordance with the APA ................. 40 B. The regulations are neither arbitrary nor capricious .................................... 42 C. The regulations do not violate restrictions relating to abortion ................... 43 VII. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC .................................................................................................. 47 CONCLUSION…………………………………………………………………………. 50
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TABLE OF AUTHORITIES
FEDERAL CASES
Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) ........................................................................ 26, 27
Agostini v. Felton, 521 U.S. 203 (1997) ............................................................................................... 34
Am. Family Ass'n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) ............................................................................. 30
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................... 19
Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970) ............................................................................................... 44
Autocam Corp. v. Sebelius, 2012 WL 6845677(W.D. Mich. Dec. 24, 2012).............................................. passim
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .............................................................................. 30
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994) ............................................................................................... 32
Bedrossian v. Northwestern Memorial Hosp., 409 F.3d 840 (7th Cir. 2005) .................................................................................. 47
Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011) ............................................................................... 47
Bowen v. Kendrick, 487 U.S. 589 (1988) ............................................................................................... 34
Bowen v. Roy, 476 U.S. 693 (1986) ............................................................................................... 23
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ............................................................................................... 38
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Case 5:13-cv-01015-F Document 25 Filed 12/17/13 Page 4 of 61
Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013) ................................................................... 35
Chacon v. Granata, 515 F.2d 922 (5th Cir. 1975) .................................................................................. 48
Children's Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ................................................................................ 33
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ................................................................................... 28, 29, 30
Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013)............................................................... passim
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .................................................................................. 48
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) ......................................................................... 48
Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................................................................................... 32
DKT Mem'l Fund, Ltd. v. Agency for Int'l Dev., 887 F.2d 275 (D.C. Cir. 1989) ............................................................................... 42
Dialysis Ctrs., Ltd. v. Schweiker, 657 F.2d 135 (7th Cir. 1981) .................................................................................. 44
Droz v. Comm'r of IRS, 48 F.3d 1120 (9th Cir. 1995) .................................................................................. 33
Eden Foods, Inc. v. Sebelius, 2013 WL 1190001 (E.D. Mich. Mar. 22, 2013)..................................................... 28
Emp't Div. v. Smith, 494 U.S. 872 (1990) ......................................................................................... 28, 30
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976) ............................................................................................... 47
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Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013) ...................................................................... 21, 22, 26
Gillette v. United States, 401 U.S. 437 (1971) ............................................................................................... 32
Gov't Empls. Ins. Co. v. Benton, 859 F.2d 1147 (3d Cir. 1988) ................................................................................. 45
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006) ................................................................................ 30
Gray v. Romero, 697 F. Supp. 580 (D.R.I. 1988) .............................................................................. 44
Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012) ............................................................. passim
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) ................................................................................. 20
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) .............................................................. 29
Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) ............................................................ 21, 26, 29, 47
Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) ........................................................................................... 39
Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 615 (3d Cir. 1969) ................................................................................... 48
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ........................................................................ passim
Korte v. U.S. Dep't of Health & Human Servs., 912 F. Supp. 2d 735 (S.D. Ill. 2012) ...................................................................... 29
Korte v. Sebelius, __ F.3d __, 2013 WL 5960692 (7th Cir. Nov. 8, 2013)......................................... 29
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Larson v. Valente, 456 U.S. 228 (1982) ................................................................................... 31, 32, 33
Lemon v. Kurtzman, 403 U.S. 602 (1971) ............................................................................................... 34
Liberty Univ., Inc. v. Lew, 2013 WL 3470532 (4th Cir. July 11, 2013) ........................................................... 35
Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App'x 729, 734-36 (6th Cir. 2007) ............................................................ 25
MK Chambers Co. v. U.S. Dep't of Health & Human Servs., 2013 WL 1340719 (E.D. Mich. Apr. 3, 2013) ................................................. 28, 35
Mersino Mgmt. Co. v. Sebelius, 2013 WL 3546702 (E.D. Mich. July 11, 2013)...................................................... 49
Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ................................................................................................. 42
O'Brien v. HHS, 894 F. Supp. 2d 1149 (E.D. Mo. 2012) ........................................................... passim
Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989) ............................................................................. 32
Parker v. Levy, 417 U.S. 733 (1974) ............................................................................................... 39
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ......................................................................................... 37, 38
Roemer v. Board of Public Works of Md., 426 U.S. 736 (1976) ............................................................................................... 34
Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47 (2006) .......................................................................................... passim
Sebelius v. Hobby Lobby Stores, Inc., No. 13-354, 2013 WL 5297798 (U.S. Nov. 26, 2013) ........................................... 28
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Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998) ................................................................................................. 19
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ................................................................................ 50
Swanson v. Guthrie Indep. Sch. Dist., 135 F.3d 694 (10th Cir. 1998) ................................................................................ 30
Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707 (1981) ......................................................................................... 20, 25
U.S. Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548 (1973) ............................................................................................... 39
United States v. Amer, 110 F.3d 873 (2d Cir. 1997) ................................................................................... 29
United States v. Corum, 362 F.3d 489 (8th Cir. 2004) .................................................................................. 34
United States v. O'Brien, 391 U.S. 367 (1968) ............................................................................................... 36
United States v. Williams, 553 U.S. 285 (2008) ............................................................................................... 39
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ............................................................................................... 39
Walz v. Tax Commission of New York, 397 U.S. 664 (1970) ............................................................................................... 34
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ............................................................................................... 49
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007) ................................................................................... 26
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ................................................................................................... 20
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Zubik v. Sebelius, __ F. Supp. 2d __, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013) ......................... 21 STATE CASES
Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006) ........................................................................... passim
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004)...................................................................................... 29, 36 STATUTES
5 U.S.C. § 553(b)............................................................................................................... 41 42 U.S.C. § 300a-7(d).................................................................................................. 17, 44 42 U.S.C. § 300gg-13(a)(4) ........................................................................................... 5, 10 42 U.S.C. § 300gg-13(b) ............................................................................................. 16, 41 42 U.S.C. § 18021(a)(1) .............................................................................................. 17, 44 42 U.S.C. § 18023(b)(1)(A)(i)..................................................................................... 17, 44 42 U.S.C §18031 ......................................................................................................... 17, 44 42 U.S.C. 2000bb-1 ........................................................................................................... 20 Pub. L. No. 103-141, 107 Stat. 1488 (1993) ..................................................................... 20 Pub. L. No. 111-148, 124 Stat. 119 (2010) ..................................................................... 4, 9 Pub. L. No. 112-74, 125 Stat. 786, (Dec. 23, 2011) .......................................................... 17
FEDERAL REGULATIONS 45 C.F.R. § 147.131(a) ............................................................................................... passim 45 C.F.R. § 147.131(b) .................................................................................................. 8, 14 45 C.F.R. § 46.202(f)................................................................................................... 18, 46
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62 Fed. Reg. 8610 (Feb. 25, 1997) .............................................................................. 18, 46 75 Fed. Reg. 41,726 (July 19, 2010) ..................................................................... 16, 42, 50 76 Fed. Reg. 46,621 (Aug. 3, 2011) .............................................................................. 6, 11 77 Fed. Reg. 16,501 (Mar. 21, 2012) ................................................................ 7, 12, 16, 41 77 Fed. Reg. 8725 (Feb. 15, 2012) .................................................................... 7, 12, 49, 50 78 Fed. Reg. 39,869 (July 2, 2013) ............................................................................ passim 78 Fed. Reg. 8456 (Feb. 6, 2013) ...................................................................... 7, 12, 16, 41
LEGISLATIVE MATERIAL 139 Cong. Rec. S14350-01 S14352 (daily ed. Oct. 26, 1993) .......................................... 25 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002).......................................... 19, 47 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) .......................................... 50
MISCELLANEOUS HRSA, Women’s Preventive Services: Required Health
Plan Coverage Guidelines ..................................................................................... passim INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011)………………………………………… passim
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INTRODUCTION Plaintiffs Southern Nazaren e University (SNU), Oklaho ma Wesleyan Univers ity (OKWU), Oklahoma Baptist Uni versity (OBU), and Mid-Amer ica Christian University (MACU) ask this Court to enjoin regulations that are intended to accommodate religious exercise while helping to en sure that wom en have access to health cover age, without cost-sharing, for preventive services that medical experts deem necessary for wom en’s health and well-being. Subject to an exemption for houses of worship and their integrated auxiliaries, and accommodations for certain other non-profit religious organizations, the regulations that plaintiffs challenge requ ire certain group he alth plans and healt h insurance issuers to provide coverage, wi thout cost-sharing (s uch as a copa yment, coinsurance, or a deductible), for, am ong other things, all Food and Drug A dministration (FDA)-approved contraceptive methods, steriliz ation procedures, and patient education and counseling for w omen with reproducti ve capacity, as prescrib ed by a health care provider. The regulations are t he product of a decision by defenda nts to accom modate concerns expressed by non-pr ofit religious organizations, like plaintiffs, by relieving them of responsibility to contract, arrange, pay, or refer for cont raceptive coverage or services. The regulations also ensure that wom en who par ticipate in the group health plans of such organizations are not denied access to contraceptive coverage without costsharing. To be eligible for the accommodatio ns, an 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 re ligious objection to providin g coverage for s ome or all
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contraceptives. Once the organi zation 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—like OKWU, OBU, and MACU—the third-party insurer takes on the responsibility to provide contraceptive coverage to the organization’s employees and covered dependents. If the group health plan of the organization is self-insured—like SNU1—its third-party administrator (TPA) ha s responsibility to arrange contraceptive coverage for the or ganization’s employees and covered dependents. In neither case does the objecting employer bear th e cost (if any) of provi ding contraceptive coverage; nor does it adm inister such covera ge; nor doe s it contract or other wise arrange for such coverage; nor does it refer for such coverage.
Remarkably, plaintiffs now declare that these accommodations themselves violate the Religious Freedom Restora tion Act (R FRA). Plaintiffs contend that the mere act of certifying that they are eligible for an a ccommodation is a substantial burden on their religious exercise because, once they make the certification, their employees and students will be able to obtain contraceptive coverage through other parties. This extraordinary contention suggests that plain tiffs not only s eek to avoid co ntracting, arranging, paying, or referring for contraceptive coverage themse lves, but also seek to prevent the women who work for, and attend, the universities from obtaining such coverage, even if through other parties. 1 SNU alleges that “its health plan is partially self-insured.” Compl. ¶ 39. It is not entirely clear on the facts in the Complaint precisel y how S NU’s health plan operates—am ong other things, there are tw o options in that plan, id. ¶ 38—but because SNU describes the accommodation available to it as the one availabl e to self-insured e ligible organizations, see id. ¶ 175, defendants assume for the purposes of this brief that this is so.
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At bottom, plaintiffs’ position seems to be that any asserted burden, no matter how de minimis, amounts to a substantial burden under RFRA. That is not the law . Congress amended the initial version of RFRA to add the word “substantially,” and thus made clear that “any burden” would not su ffice. Although these regulations require virtually nothing of them, plaintiffs claim that the regulations run af oul of their si ncerely held religious beliefs prohibiting them from providing or facilitating hea lth coverage for certain contraceptive services, and that the challeng ed regulations violat e RFRA, the First and Fifth Amendments, and the Administrative Pr ocedure Act (APA). Plaintiffs have m oved for a preliminary injunction on their RF RA claim, which should be de nied because plaintiffs have not shown that they are likel y to s ucceed on the merits of that claim. Moreover, all of plaintiffs’ claims fail, and thus should be dism issed in their entirety; alternatively, the Court should enter summary judgment in favor of the government.
With respect to plaintiffs’ RFRA claim, plaintiffs cannot establish a substant ial burden on their religious exercise—as they mu st—because the regulations do not require plaintiffs to change their beha vior in any si gnificant way. Plaint iffs are not required t o contract, arrange, pay, or refer for contraceptiv e coverage. To the cont rary, plaintiffs are free to continue to refuse to do so, to voice their disappr oval of contracepti on, and to encourage their employees an d students to refrain from us ing contraceptive services. Plaintiffs are required only to inform their issuers/third-part y administrators that they object to providing contraceptiv e coverage, which they have done or would have to do voluntarily even absent these regulations i n order to ensure that they are not responsi ble for contracting, arranging, paying, or referri ng for suc h coverage. Plaintiffs can hardly
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claim that it is a violation of RFRA to require them to do almost exactly what they would do in the ordinary course.
Plaintiffs’ First Amendment claims are eq ually meritless. Indeed, nearly every court to consider similar First Am endment challenges to the prior version of the regulations rejected the claims, and their an alysis applies here. Nor do the regulations violate the Due Proces s or Equal Protection Cl auses. Plaintiffs also cannot s ucceed on their APA claims. Plaintiffs lack prudential standing to raise som e of their argum ents, and in any event, the regulations are in acco rdance with the APA and with federal law. Finally, plaintiffs cannot satisfy the rem aining requirements for obtaining a preliminary injunction.
For these reasons, and those expl ained below, plaintiffs’ motion for a preliminary injunction should be denied, an d defendants’ motion to dismiss or, in the alternative, for summary judgment should be granted.
BACKGROUND Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111148, 124 S tat. 119 ( 2010), many Americans did not re ceive the prev entive health care they needed to stay healthy, avoid or delay the onset of disease, lead productive lives, and reduce health care costs. Due largely to cost, Americans used preventive services at about half the recom mended 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. 2
2 Where appropriate, defendants have provi ded parallel citations to the Administrativ e Record (AR), which is being filed contemporaneously with this motion and brief.
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Section 1001 of t he ACA—which includes the preventive services coverage pr ovision relevant here—seeks to cure this problem by making preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additional pre ventive care and screenings . . . as provi ded for in comprehensive guidelines supporte d by the Health R esources and Ser vices Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).3
Because there were no existing HRSA guid elines relating to preventive care and screening for women, the Depart ment of H ealth and Human Servi ces (HHS) requested that the Institute of Medicine (IOM) develop recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300. Afte r conducting an extensive science-based review, IOM recommended that HR SA guidelines include, among other things and as relevant here, “the full range of [FDA]-appr oved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10- 12,

3 This provision also applies to immunizati ons, cholesterol screening, bl ood pressure

screening, mammography, cervical cancer screening, screening and c ounseling for

sexually transmitted infections , domestic violence counseling, depression screening,

obesity screening and counseling, diet coun seling, hearing loss screening f or newborns,

autism screening for ch ildren, developmental screening for children, alcohol misuse

counseling, tobacco use coun seling and interventions, well- woman visits, breastfeeding

support and supplies, and m any other pre ventive services. See, e.g., U.S. Preventive

Services

Task F

orce

A and B

Recommendations,

http://www.uspreventiveservicestaskforce.org/uspstf/uspsabrecs.htm (last visited Dec. 17,

2013).

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Case 5:13-cv-01015-F Document 25 Filed 12/17/13 Page 15 of 61
AR at 308- 10. FDA-approved contraceptive methods include diaphragms, oral
contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine
devices (“IUDs”). See id. at 105, AR at 403. IOM de termined that covera ge, without
cost-sharing, for thes e services is necessary to increase access to such services, and
thereby reduce unintended pregnancies (and the negative health outcomes that
disproportionately accompany unintended pregnancies) and prom ote healthy birt h
spacing. Id. at 102-03, AR at 400-01.
On August 1, 2011, HR SA adopted guidelines consistent with IOM’s
recommendations, subject to an exemption relating to certain religious employers
authorized by regulations issued that sa me day (the “2011 am ended interim final
regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Gui delines”), AR at 283- 84.4 In Febr uary 2012, the governm ent
adopted in final regulations the definition of “religious employer” contained in the 2011
amended interim final regulations w hile also creating a tem porary enforcement safe
harbor for non-grandfathered group health plans sponso red by certain non-pr ofit
4 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets
of the organization; (3) the organization serves primarily persons who share the religious tenets of
the organization; and (4) the organization is a nonprofi t organization as de scribed in section
6033(a)(1) and section 6 033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
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organizations with religious obje ctions 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 governm ent committed to undertake a new ru lemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered nonprofit religious organizations’ religious objections to cove ring contraceptive services. Id. at 8728, AR at 215. The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,869 (July 2, 2013), AR at 1-31; see also 77 Fed. R eg. 16,501 (Mar. 21, 2012) ( Advance Notice of Proposed Rulemaking (ANPRM)), AR at 186- 93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.5
The 2013 final rules represent a significa nt accommodation by the government of the religious objections of certain non-profit religious organizations while promoting two important policy goals. The regulations provide women who work for non-profit religious organizations with a ccess to contraceptive coverage without cost sharing, there by advancing the government’s co mpelling interests in safe guarding public health and ensuring that wom en have eq ual access to health care. Th e regulations advance these interests in a narrowly tailo red fashion that does not require non-profit religious organizations with religious objections to providing contraceptive coverage to contract, pay, arrange, or refer for that coverage. 5 The 2013 final rules generally appl y to group health plans and he alth insurance issuers for plan years beginning on or after January 1, 2014, except the amendments to t he religious employer exemption apply to group health plans and gr oup health insurance issuers for plan years begi nning on or after August 1, 2013. See 78 Fed. Reg. at 39,87172, AR at 3-4.
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The 2013 final rules sim plify and clarif y the religious em ployer exemption by

eliminating the first three criteria an d clarifying t he fourth criterion. See supra note 4.

Under the 2013 final rules, a “religious employer” is “an or ganization that is organize d

and operates as a nonpr ofit 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 co nventions or associati ons of churches, and

the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a).

The 2013 final rules also establish

accommodations with respect to the

contraceptive coverage requirement for group health plans established or maintained by

“eligible organizations.” 78 Fe d. Reg. at 39,875-80, AR at 7-12. An “eligible

organization” is an organization that satisfies the following criteria:

(1) The organization opposes provi ding coverage for s ome or all of a ny contraceptive services required to be cove red under § 147.13 0(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by th e
Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certif ication available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. Under the 2013 final rules, an eligible organization is not required “to contr act,

arrange, pay, or refer for cont raceptive coverage” to which it has religious objections. 78

Fed. Reg. at 39, 874, AR at 6. To be relieved of suc h obligations, the 2013 final rules

require only that an eligible orga nization complete a self-certification form stating that it

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is an eligible organization a nd provide a copy of t hat self-certification to its issuer or TPA. Id. at 39,878-79, AR at 10-11. Its participants and beneficiaries, however, will still benefit from separate paym ents for contracep tive 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—like OKWU, OBU, and MACU—the organization’s health insurance issuer, upon receipt of the self-certification, must provide separate payments to plan participants and beneficiaries for contraceptive services wit hout cost sharing, prem ium, fee, or othe r charge to plan participants or beneficiaries, or to the eli gible organization or its plan. Id. at 39,875-77, AR at 7-9. In the case of an organization with a sel f-insured group health plan—like SNU—the organization’s TPA, upon receipt of the self-certification, will provide or arrange separate paym ents for c ontraceptive services for participants and beneficiaries in the pl an without cost-sharing, premium, fee, or other char ge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,87980, AR at 11-12. Any cost s incurred by the TPA will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
MOVANT’S STATEMENT OF MATERIAL FACTS 1. Before the Patient Protection and A ffordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”), AR at 317-18, 407. 2. Due largely to cost, Americans used preventive services at about half the recommended rate. See id. at 19-20, 109, AR at 317-18, 407.
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3. Section 1001 of the AC A seeks to cure this pr oblem by making preventive care accessible and affordable for many more Americans. 42 U.S.C. § 300gg-13(a)(4).
4. Specifically, the provis ion requires all group he alth plans and health insurance issuers that offer non-grandfathere d health covera ge to provi de coverage for certain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” Id.
5. Because there were no existing HRSA guidelines relating to preventive care and screening for women, the Departm ent of Health and Huma n Services tasked the Institute of Medicine (IOM) with deve loping recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300.
6. After conducting an extensive s cience-based review, IOM recommended that HRSA guidelines include, among other things and as relevant here, “the full range of [FDA]-approved contraceptive methods, steriliz ation procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10-12, AR at 308-10.
7. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency c ontraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105, AR at 403.
8. IOM determined that coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies
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(and the negative health outcomes that disproportionately accompany them) and promote

healthy birth spacing. See id. at 102-03, AR at 400-01.

9. On August 1, 2011, HR SA adopted guidelines consistent with IOM’s

recommendations, encompassing all FDA-approved “contraceptive methods, sterilization

procedures, and patient educa tion and counseling,” as pres cribed by a health care

provider, subject to an exem ption relating t o certain r eligious employers authorized by

regulations issued tha t same day (the “2011 amended interim final regulati ons”). See

HRSA, Women’s Preventive Se rvices: Required Health Pl an Coverage Guidelines

(“HRSA Guidelines”), AR at 283-84.

10. To qualify for the religious em ployer 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 pur organization;

pose of t he

(2) the organization primarily employs persons who s hare the religious tenets of the organization;

(3) the organization serves primarily persons who share the religious tenets of the organization; and

(4) the organization is a nonprofit or ganization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.

76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.

11. Group health plans established or maintained by religious employers (and

associated group health ins urance coverage) are exem pt from any requirem ent to cover

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contraceptive services consistent with HRSA’s guidelines. See HRSA Guidelines, AR at 283-84; 45 C.F.R. § 147.131(a).
12. In February 2012, the gover nment adopted in final regulations the definition of “religious employer” cont ained in the 2011 amended interim final regulations while also creating a tempor ary enforcement safe harbor for nongrandfathered group health pl ans sponsored by certain non-pr ofit 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.
13. The government committed to undertak e a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered nonprofit religious organizations’ religious objections to covering contraceptive services. 77 Fed. Reg. at 8728, AR at 215.
14. The regulations challe nged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,870 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21, 2012) ( Advance Notice of Proposed Rulemaking), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking), AR at 16585.
15. The 2013 final rules generally appl y to group heal th plans a nd health insurance issuers for plan years begi nning on or afte r January 1, 2014, except the amendments to the religious employer exem ption apply to group he alth plans and group health insurance issuers for plan years beginning on or after August 1, 2013. See 78 Fed. Reg. at 39,871-72, AR at 3-4.
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16. The 2013 final rules represe nt a significant acc ommodation by the government of the religious objections of certain non-profit religious organizations while promoting two important policy goals. See 78 Fed. Reg. 39,870, AR at 1-31.
17. The regulations provide w omen who work for non-profit religious organizations with a ccess to contraceptive coverage without cost sharing, there by advancing the gover nment’s interests in safeguarding public health and ens uring that women have equal access to health care. See id.
18. The regulations do so in a way that does not require non-profit religious organizations with re ligious objections to contract, arrange , pay, or refer for that coverage. See id.
19. The 2013 final rules simplify and clarify the religious employer exemption by eliminating the first three criteria and clarifying the fourth. See id. at 39,874, AR at 6.
20. Under the 2013 final ru les, a “religious em ployer” is “an or ganization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue C ode of 1986, as amended,” which refers to churches, their integrated au xiliaries, and conventions or associations of churches, and the exclusively religious ac tivities of any religio us order. 45 C.F.R. § 147.131(a).
21. The changes made to th e definition of religious em ployer in the 2013 final rules ensure “that an otherwise exempt plan is not disqualified because the em ployer’s purposes extend beyond the inculcation of religious values or because the employer hires or serves people of different religious faiths.” 78 Fed. Reg. at 39,874, AR at 6.
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22. The 2013 final rules also establis h accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations” (and gr oup health insurance coverage provided in connection with such plans). Id. at 39,875-80, AR at 7-12.
23. An “eligible organization” is an or ganization that satisfies the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services requi red 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-certification available fo r examination upon request by the firs t 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. 24. Under the 2013 final rules, an e ligible organization is not required “to contract, arrange, pay, or refer for contra ceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. 25. To be relieved of any such obligations, the 2013 final rules require only that an eligible organization com plete a self-certifi cation form stating that it is an eligible organization and provide a copy of that self-certificati on to its issuer or TP A. See id. at 39,878-79, AR at 10-11.
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26. In the case of an organization with an insured gr oup health plan, the organization’s health insurance issuer, upon recei pt of the self-certification, must provide separate payments to plan participants and beneficiaries for contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,875-77, AR at 7-9.
27. In the case of an organization with a self-insured gr oup health plan, the organization’s TPA, upon receipt of the se lf-certification, must provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan without cost-sharing, premium, fee, or other ch arge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12.
28. Any costs incurred by TPAs will be re imbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
29. Houses of wors hip and their inte grated auxiliaries that object to contraceptive coverage on re ligious grounds are, as a gr oup, more likely than other employers to em ploy people of t he same faith who share the sam e objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19.
30. By contrast, individuals in plans of eligible organizations that qualify for the accommodations are less likely than indivi duals in plans of re ligious employers to share their em ployer’s faith and object to c ontraceptive coverage on religious gr ounds. See id. at 39,874, 39,887, AR at 6, 19.
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31. “Nothing in the[] final regulations prohibits an eligib le organization from expressing its opposition to the use of contraception.” Id. at 39,880 n.41, AR at 12.
32. The regulations simply require cove rage of “education and c ounseling for women with reproductive capacity.” HRSA Guidelines, AR at 130-31.
33. Defendants issued the ANPRM on March 21, 2012 and solicited comments on it. 77 Fed. Reg. at 16,501, AR at 186.
34. Defendants then cons idered those comments and issu ed the NPRM on February 6, 2013, requesting comments on the proposals contained in it. 78 F ed. Reg. at 8457, AR at 166.
35. Defendants received over 400,000 comments, and the preamble to the 2013 final rules contains a detailed discussion bo th of the com ments defendants received and of defendants’ responses to those comments. See 78 Fed. Reg. at 39,871-39,888, AR at 320.
36. The ACA requires only that there be a m inimum interval of not less than one year between the date on which a recommendation or guideline is issued and the plan year for which the coverage of the services included in that recommendation or guideline must take effect. See 42 U.S.C. § 300gg-13(b); 75 Fed. Reg. at 41,729, AR at 229.
37. The HRSA Guidelines were pub lished on August 1, 2011, and thes e regulations apply for plan years beginning on or after January 1, 2014. HRSA Guidelines, AR 283-84; 78 Fed. Reg. at 39,870, AR at 2.
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38. Section 1303(b)(1) of the ACA provides that “nothing in this title . . . shall be construed to require a qualified health plan t o provide coverage of [abortion services].” 42 U.S.C. § 18023(b)(1)(A)(i).
39. A “qualified health plan,” within the meaning of this provision, is a health plan that has been certified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance issuer. 42 U.S.C. § 18021(a)(1). Health insurance exchanges are to be set up by states or HHS or states no later than January 1, 2014. Id. § 18031.
40. Plaintiffs are neither health insura nce issuers nor purchasers of qualified health plans.
41. The Weldon Amendment denies funds made available in the Cons olidated Appropriations Act of 2012 t o any fede ral, state, or local agency, program, or government that “subjects any institutiona l or individual health care entity to discrimination on the basis that the health care en tity does not provid e, pay for, provide coverage of, or refer for abortions.” Pu b. L. No. 112-74, §§ 506 , 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011).
42. The Church Amendment protects individuals from being require d to “perform or assist in the perf ormance of any part of a health service program or research activity funded . . . by the Secretary of Health and Human Services if his performance or assistance . . . would be contrary to his religi ous beliefs or moral convictions.” 42 U.S.C. § 300a-7(d).
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43. The preventive services covered by the regulations “do not include

abortifacient drugs.” HealthCare.gov, Affordable Care Act Rules on Expanding Access to

Preventive Services for

Women (August 1, 2011),

available at

http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.ht

ml (last visited Dec. 17, 2013); see also IOM R EP. at 22 (recognizing tha t abortion

services are outside the scope of recommendations), AR at 320.

44. The list of FD A-approved contraceptives includes emergency

contraceptives such as Plan B. See IOM REP. at 105, AR at 403.

45. The basis for the inclusion of such drugs among safe and effective means of

contraception dates back to 1997, when the FDA first expl ained why Plan B and similar

drugs act as contraceptives rather than abortifacients. See Prescription Dr ug Products;

Certain Combined Oral Contr aceptives for Use as Pos tcoital Emergency Contraception,

62 Fed. Reg. 8610, 8611 (Feb. 25, 1997) (noting that “emerg ency contraceptive pills are

not effective if the wom an is pre gnant” and th at there is “no eviden ce that [emergency

contraception] will have an ad verse effect on an establis hed pregnancy”); 45 C.F.R.

§ 46.202(f) (“Pregnancy encompasses the period of time from implantation until

delivery.”).

46. In light of this conc lusion by the FDA, HHS in formed Title X grantees,

which are required to offer a range of acceptable and effective fam ily planning

methods—and, except under lim ited circumstances, may not of fer abortion—that the y

“should consider the availability of emer gency contraception the same as any other

method which has been established as safe a nd effective.” Office of Populat ion Affairs,

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Memorandum (Apr. 23, 1997), http://www. hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Dec. 17, 2013); see also 42 U.S.C. §§ 300, 300a-6.
47. Representative Weldon, the sponso r of the Weldon A mendment, did not consider the word “abortion” in the st atute to include F DA-approved emergency contraceptives. See 148 Cong. Rec. H6566 , H6580 (daily ed. Se pt. 25, 2002) (“The provision of contraceptive services has never be en defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as the morningafter pill. . . . [U]nder the curre nt FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”).
STANDARD OF REVIEW Defendants move to dismiss one of plaintiffs’ claims in part under Federal Rule of Civil Procedure 12(b)(1) for lack of subject m atter jurisdiction. See infra pp. 43-44. The party invoking federal jurisdiction bears the bur den of establishing its existence, and t he Court must determine whether it has jurisdiction before addressing the merits of a claim. Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 94-95, 104 (1998). Defendants also move to dismiss the case in its entirety for failure to state a clai m upon which relief may be granted under Rule 12(b)(6). Under this Rule, “the tenet that a court must accept as true all of the allegations contained in a co mplaint is inapplicable to legal concl usions. Threadbare recitals of the elements of a ca use of action, supported by m ere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To the extent that the Court must consider the administrative record in addition to the face of the complaint, de fendants move, in the altern ative, for summary judgment
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under Rule 56. A party is entitled to summary judgment where the administrative record demonstrates “that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
This memorandum also responds to plai ntiffs’ motion for prelim inary injunction on their RFRA claim. A preliminary injuncti on is an “extraordi nary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council , 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of pr eliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20.
ARGUMENT I. PLAINTIFFS’ RELIGIOUS FREEDOM RESTORATION ACT CLAIM IS
WITHOUT MERIT Under RFRA, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. § 2000bb-1 et seq.), the federal gover nment “shall not substantially burde n a person’ s exercise of religion” unless that burde n is the least restrictiv e means to further a compelling governmental interest. 42 U.S.C. 2000bb-1. Importantly , “only substantial burdens on the exercise of religion trigger the compe lling interest requirement.” Henderson v. Kennedy , 253 F.3d 12, 17 (D.C. Cir. 2001 ). “A substantial bur den exists when government action puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)). “An
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inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unimportant to the adherent’s religious scheme.” Kaemmerling, 553 F.3d at 678; see Garner v. Kennedy, 713 F.3d 237, 241-42 (5th Cir. 2013) (“In order to show a substantial bur den, the plaintiff m ust show that the c hallenged action ‘trul y pressures the adherent to significantly modi fy his religious be havior and si gnificantly violate his religious beliefs.’”).
Plaintiffs cannot show—a s they must—that the ch allenged regulations substantially burden their religious exercise. Plaintiffs rely heavily on the Tenth Circuit’s decision in Hobby Lobby v. Sebelius , 723 F.3d 1114 (10t h Cir. 2013) (en banc) as if it were dispositive of this issue, but it is not. Hobby Lobby addressed the RFRA claim of for-profit corporations, whic h, unlike plaintiffs h ere, are not eligible for the accommodations and thus are required by the regulations to contract, arrange, and pay for contraceptive coverage for their employee s. The court had no occasion to consider whether these regulations’ accommodations, wh ich relieve eligible non-profit religious organizations like pla intiffs of any obligati on to contract, arrange, pay, or refer for contraceptive coverage, impose a substantial burden on religious exer cise. They do not for the reasons discussed below.6
6 Similarly, the district court in Zubik v. Sebelius, __ F. Supp. 2d __ , 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013), was wrong t o rely on cas es involving claims of for-profit employers. For all the reasons set out in this brief, the Zubik court’s conclusion that the regulations at issue in that case (and in this one) impose a substantial burden on t he plaintiffs in that case—a conclusion that was rendered without citation to any lega l authority, id.at *24-27—is sim ply unpersuasive. Likewise, the recent ruling by the district court in Archdiocese of New York , No. 12 Civ. 2542 (B MC) (E.D.N.Y. Dec. 16, 2013), ECF No. 116, glossed over the animating question of this case, which is whether a
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The regulations do not impose a substantial bur den on plaintiffs because they do not require plaintiffs to m odify their behavior in any meaningful way. To put this case in its simplest terms, plaintiffs challenge regulations that require them to do next to nothing, except what they would have to do even in the ab sence of the regulations. Pl aintiffs, as eligible organizations, are not required to contract, arrange, pay, or refer for contraceptive coverage. To the contrary, they are free to c ontinue to refuse to do so, to voice their disapproval of contraception, and to encourage their employ ees and students to refrain from using contraceptive services. Plaintiffs need only fulfill the self-certification requirement and provide the completed self-certification to their issuers/TPAs. They need not provide payments for contraceptive services to their em ployees or students. Instead, third parties—plaintiffs’ issuers/TPAs—provide payments for contraceptive services a t no cost to plaintiffs. In short, with respect to contraceptive coverage, plaintiffs need not do anything more than they did prior to the promulgation of the challenged regulations— that is, to inform their issuer s/TPAs that they object to pr oviding contraceptive coverage in order to ensure tha t they are not respon sible for contracting, arranging, paying, or referring for such coverage. Thus, the re gulations do not require plaintiffs “to significantly modify [their] religious be havior.” Garner, 713 F.3d at 241. The Court’s inquiry should end here. A law cannot be a substantial burden on religious exercise when “it involves no action or forbear ance on [plaintiffs’] part, nor . . . otherwise interfere[s] with any religious act in which [plaintiffs] engage[].” Kaemmerling, 553 F.3d at 679.
substantial burden may be said to exist becaus e a plaintiff objects to the conse quences of actions it does not independently object to taking. For the reasons set out here, it may not.
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Because the regulations place no burden at all on plaintiffs, they plainly place no cognizable burden on their re ligious exercise. Plaintiffs’ contrary argument rests on an unprecedented and s weeping theory of what it m eans for re ligious exercise to be burdened. Not only do plaintiffs want to be free from contracting, arranging, paying, or referring for contraceptive coverage for th eir employees and stude nts—which, under these regulations, they are—but plaintiffs would also prevent anyone else from providing such coverage to thei r employees and student s, who m ight not subscribe t o plaintiffs’ religious beliefs. That this is the de facto impact of plaintiffs’ st ated objections is mad e clear by their assertion that RFRA is violated whenever plaintiffs “trigger” a third party’s provision to plaintiffs’ employees of services to which plaintiffs object. Compl. ¶¶ 176, 178; see Pls.’ Br. at 3 (stating that RFRA is violated because plaintiffs’ decision to offer a group health plan “results in” the provision to plaintiffs’ employees of services to w hich plaintiffs object). This theory would mean, for example, that even the government would not realistically be able to provide cont raceptive coverage to plaintiffs’ em ployees, because such coverage would be “trigger[ed]” by, or would be the “result” of, plaintiffs’ objection to providing such coverage themselves. But RFRA is a shield, not a sword, see O’Brien v. HHS, 894 F. Supp. 2d 1149, 1158-60 (E.D. Mo. 2012 ), and accordingly it does not preve nt the governm ent from providing alternative m eans of achieving important statutory objectives once it ha s provided a religious accommodation. Cf. Bowen v. Roy, 476 U.S. 693, 699 (1986) (“The Free Exercise Clause simply cannot be understood to require the Governm ent to condu ct its own internal a ffairs in ways that comport with the religious beliefs of particular citizens.”).
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Plaintiffs’ RFRA challenge is similar to the claim that th e D.C. Circuit rejected in

Kaemmerling. There, a federal prisoner objected to the FBI’s collection of his DNA

profile. 553 F.3d at 678. In concluding that this collection did not substantially burden the

prisoner’s religious exercise, the court reas oned that “[t] he extraction and storage of

DNA information are entirely activities of th e FBI, in which Kaemmerling plays no role

and which occur after the BOP has taken his fluid or tissue sample (to which he does not

object).” Id. at 679. In the court’s view, “[a]ltho ugh the government’s activities with his

fluid or tissue sample after the BOP takes it may offend Kaemmerling’s religious beliefs,

they cannot be said to hamper his religious exercise because they do not pressure [him] to

modify his behavior and to violate his beliefs.” Id. (internal citation and quot ation marks

omitted). The same is true here, where the provi sion of contraceptive services is “entirely

[an] activit[y] of [a third party], in

which [plaintiff] plays no role.” Id. As in

Kaemmerling, “[a]lthough the [third party]’s ac tivities . . . may o ffend [plaintiff’s]

religious beliefs, they cannot be said to hamper [its] religious exercise.” Id.

Perhaps understanding the tenuous ground on which their RFRA claim rests, given

that the regulations do not r equire them to contract, arrange, pay, or refer for

contraceptive services, plaintiffs attempt to circumvent this problem by advancing the

novel theory that the regulations require them to somehow “facilitat[e]” access to

contraception coverage, Pl.’s Br. at 6, 8, and that it is th is facilitation that violates

plaintiffs’ religious beliefs. But under the cha llenged regulations plaintiffs need only t o

self-certify that they object to providing coverage for contraceptive services and that they

otherwise meet the criteria for an eligible organization, and to share that self-certification

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with their issuers/TPAs. In ot her words, plaintiffs must inform their issuers/TPAs that they object to providing contr aceptive coverage, which they ha ve done or would have to do voluntarily anyway even absent these regulations in order to ensure that they are not responsible for contracting, arranging, pa ying, or referring f or contraceptive coverage. The sole difference is that plaintiffs must inform their issuers/TPAs that their objection is for religious reasons —a statement which they ha ve already made repeatedly in this litigation and elsewhere. Any burden imposed by the purely administrative selfcertification requirement—which should take plaintiffs a m atter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA.7
Contrary to plaintiffs’ suggestion, the mere fact that plaintiffs claim that the selfcertification requirement imposes a substantial burden on their religious exercise does not make it so. See Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013) (“[W]e reject the notion . . . that a plai ntiff shows a bur den to be substantial simply by claiming that it is.”). Under RFRA, plaintiffs are entitled to their sincere religious beliefs, but they are not entitled to decide what does and does not impose a substantial bur den on suc h beliefs. Although “[c] ourts are not arbiters of scriptural interpretation,” Thomas, 450 U.S. at 716, “RFRA still requires the court to
7 RFRA’s legislative history makes clear that Congress did not intend a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, substantial or otherwise. Congress amended the b ill to add the word “substantially,” “to make it clear that the co mpelling interest standards set forth in the act” apply “only to Government actions [that] place a substa ntial 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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determine whether the burden a law imposes on a plaintiff’s stated religious belief is ‘substantial.’” Conestoga, 917 F . Supp. 2d at 413. Plai ntiffs would limit the Court’s inquiry to two prongs : first, whether plaintiffs’ religious objection to the challenged regulations are sincere, and second, whether th e regulations apply significant pressure to plaintiffs to compl y. But pl aintiffs ignore a critical thir d criterion of the “substantial burden” test, which gives m eaning to the term “substantial”: whether the challenged regulations actually require plaint iffs to modify their behavior in a significant—or m ore than de minimis—way. See Living W ater Church of Go d v. Charter Tw p. of Meridi an, 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 determining whether an alleged burden is substantial, the court’s “only task is to determine whet her the claimant's belief is sincere, and if so, whet her the government has applied substantial pressure on the claimant to violate that belief.” 723 F.3d at 1137. But, because th e for-profit corporation plain tiffs in that cas e were not eligible for the accommodations (and thus were required to contract, arrange, and pay for contraceptive coverage), the court did not address whether an accommodation that requires a plaintiff to do not hing beyond satisfying a purely administrative selfcertification requirement imposes a substantial burden on religious exercise. Indee d, the Hobby Lobby court relied heavily on Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), which makes clear that, for a law to impose a substantial burden, it must require
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some actual change in religious behavior —either forced particip ation in conduct or forced abstention from conduct. See Hobby Lobby, 723 F.3d at 1138 (“[A] government act imposes a ‘substantial burden’ on religious exercise if it: (1) ‘requires participation in an activity prohibited by a sincer ely held religious belief,’ (2) ‘ prevents participation in conduct motivated by a sincerely held religious belief,’ or (3) ‘places substantial pressure on an adherent . . . to engage in conduct contrary t o a sincerel y held religi ous belief.” (emphasis added) (citing Abdulhaseeb, 600 F.3d at 1315)).
Because the challenged regulations re quire that plaintiffs take the de minimis step that they would have to take even in the absence of the regulations, the regulations do not impose a substantial bur den on plaintiffs’ religious exercise. P laintiffs’ RFRA claim should therefore be dismissed, or summary judgment should be granted to defendants.
The challenged regulations also do not im pose a substantial burden on plaintiffs’ religious exercise because any burden is indirect and too attenuated to be substantial. The ultimate decision of whether to use contraception “rests not with [the employers], but with [the] employees” in consultation with their health care providers. Conestoga, 917 F. Supp. 2d at 414-15; see e.g., Autocam Corp. v. Sebelius, 2012 WL 6845677, at *6 (W.D. Mich. Dec. 24, 2012) (“The incremental difference between provi ding the benefit directly, rather than indirectly, is unlikel y to qualify as a subst antial burden on the Autocam Plaintiffs.”). Moreove r, even if the challenged regulations were deemed to impose a substantial burden on plaintiffs’ reli gious exercise, the regul ations satisfy strict scrutiny because they are narrowly tailored to serve compelling governmental interests in public health and gender equa lity. Defendants recogni ze that a majority of the en banc
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Tenth Circuit rejected these arguments in Hobby Lobby, and that this Court is bound by that decision. The Supreme Court recently granted defendants’ petition for a writ of certiorari, in w hich defendants asked t he Supreme Court to review the Tenth Circuit’s decision in that case. Sebelius v. Hobby Lobby St ores, Inc., No. 13-354 , 2013 WL 5297798 (U.S. Nov. 26, 2013). Defendants raise the argum ents here merely to preserve them for appeal. II. THE REGULATIONS DO NOT VIOLATE THE FREE EXERCISE
CLAUSE A law that is neutral and ge nerally applicable does not r un afoul of the Free Exercise Clause even if it prescribes conduc t that an indivi dual’s religion proscribes or has the incidental effect of bur dening a particular religious practice. Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990). “Neutrality and genera l applicability are interrelated.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 531 ( 1993). A law is neutral if it does not target religiously motivate d conduct either on its face or as applied. Id. at 533. A ne utral law has as its purpose something other t han the disapproval of a particular religion, or of religion in general. Id. at 545. A law is generally applicable s o long as it does not se lectively impose burdens only on conduct motivated by religious belief. Id. Unlike such selective laws, the preventive services coverage regulations are neutral and ge nerally applicable. Indeed, near ly every court to have considered a free exercise challenge to t he prior version of the regulations has rejected it, concl uding that
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the regulations are neutral and generally applicable.8 “The regulations were passed, not
with the object of interferi ng with religious practices, but instead to improve women’s
access to health care and lessen the dis parity between men’s and women’s healthcare
costs.” O’Brien, 894 F. Supp. 2d at 1161. The r egulations reflect expert m edical
recommendations about the medical necessity of contraceptive services, without regard to
any religious motivations for or against such services. See, e.g., Conestoga, 917 F. Supp.
2d at 410 ( “It is clear from the history of the regulations and the report published by the
Institute of Medicine that the purpose of the [regulations] is not to target religion, but
instead to promote public health and gender equality.”); Grote, 914 F. Supp. 2d at 952-53
(“[T]he purpose of the regulations is a secular one, to wit, to prom ote public health and
gender equality.”).
The regulations, moreover, do not pursue their purpose “onl y against conduct
motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110
F.3d 873, 879 ( 2d Cir. 1997) (concluding law that “punishe[d] conduct within its reach
without regard to whether the conduct was religiously motivated” was generally
8 See MK Chambers Co. v. U.S. De p’t of Health & Human Servs., 2013 WL 1340719, at *5 (E.D. Mich. Ap r. 3, 2013); Eden Foods, Inc. v. Sebelius, 2013 WL 1190001, at *4-5 (E.D. Mich. Mar. 22, 2013); Conestoga, 917 F. Supp. 2d at 409-10; Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943, 952-53 (S.D. Ind. 2012), rev’d on other grounds sub nom. Korte v. Sebelius, __ F.3d __, 2013 WL 5960692 (7th Cir. Nov. 8, 2013); Autocam, 2012 WL 6845677, at *5; Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735, 744-47 (S.D. Ill. 2012), rev’d on other grounds sub nom. K orte v. Sebelius, __ F.3d __, 2013 WL 5960692 (7th Cir. Nov. 8, 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); O’Brien, 894 F. Supp. 2d at 1160-62; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, Inc. v. Superior Court , 85 P.3d 67, 81-87 (Cal. 2004) (same).
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applicable). The regulations apply to all n on-grandfathered health plans that do not qualify for the religious em ployer exemption or the accommodations for eligible organizations. Thus, “it is just not true . . . that the burde ns of the [regulations] fall on religious organizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536).
The Tenth Circuit has made clear that th e existence of “express exceptions for objectively defined categories of [entities],” like grandfathered plans and religious employers, does not negate a law’s general applicability. Axson-Flynn v. Johnson , 356 F.3d 1277, 1298 (10t h Cir. 2004); see also Grace U nited Methodist Church v. City of Cheyenne, 451 F.3d 643, 651 (10th Cir. 2006) (refusi ng to “interpret Smith as standing for the proposition that a secular exemption au tomatically creates a claim for a religious exemption”); Swanson v. Gut hrie Indep. Sch. Dist. , 135 F.3d 694, 698, 701 (10th Cir. 1998) (concluding school’s attendance policy was not subject to st rict scrutiny despite exemptions for “strict categories of students ,” such as fifth-year seniors and s pecial education students). The exception for grandfathered plans is available on equal terms to all employers, whether religious or secula r. And the re ligious employer exemption and eligible organization accommodations serve to accommodate religion, not to disfavor it. Such categorical exceptions do not trigger strict scrutiny. See, e.g., Autocam, 2012 WL 6845677, at *5; O’Brien, 894 F. Supp. 2d at 1162.
“[C]arving out an exemption for defined religious entities [also] does not make a law non-neutral as to others.” Grote, 914 F. Supp. 2d at 953 (quotation omitted). Indeed, the religious employer exemptio n “presents a strong argument in favor of ne utrality” by
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“demonstrating that the object of the law was not to i nfringe upon or restrict practices because of their religious motivation.” O’Brien, 894 F. Supp. 2d at 1161 (quotations omitted); see Conestoga, 917 F. Supp. 2d at 410 (“The fact that exem ptions were made for religious employers . . . . shows that th e government made efforts to accom modate religious beliefs, which counsels in favor of the regulations’ neutrality.”). The regulations are not rendered unla wful “merely because the [religious employer exemption] does not extend as far as Plaintiff[] wish[es].” Grote, 914 F. Supp. 2d at 953.
Finally, plaintiffs’ unsupported assertions that the regulations were “designed” to “target the Schools and others like them ,” and that defendants prom ulgated the regulations “in order to suppress the religious exercise of the Schools and ot hers,” Am. Compl. ¶ 256-57, are mere rhetorical bluster. There is no indication that the regulations are anything other than an e ffort to increase women’s a ccess to and utilization of recommended preventive services. See, e.g., O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410; Grote, 914 F. Supp. 2d at 952-53. And it cannot be disputed that defenda nts have m ade extensive efforts—through th e religious employer exemption and the el igible organization accommodations—to accommodate religion in ways that will not undermine the goal of ensu ring that women have access to coverage for recommended preventive services without cost sharing. III. THE REGULATIONS DO NOT VIOLATE THE ESTABLISHMENT
CLAUSE “The clearest command of the Establis hment Clause is that one religious denomination cannot be officially preferred over anot her.” Larson v. Valente , 456 U.S.
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228, 244 (1982) (emphasis added). A law that discriminates among religions by “aid[ing] one religion” or “prefer[ring] one religion over another” is subject to strict scrutiny. Id. at 246; see also Olsen v. DEA , 878 F.2d 1458, 1461 (D.C. Cir. 1989) (observing that “[a ] statutory exemption authorized for one church alone, and for which no other church may qualify,” creates a “denominational preferen ce”). Thus, for example, the Supreme Court has struck down on Establishment Clause grounds a state statute that was “drafted with the explicit intention” of requiring “particul ar religious denominations” to comply with registration and reporting requirem ents while excluding other religious denom inations. Larson, 456 U.S. at 254; see also Bd. of Educ. of Kiry as Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 703-07 (1994) (striking down statute that “single[d] out a particular religious sect for special treatment”). The Co urt, on the other ha nd, has upheld a statute that provided an exemption from military service for pers ons who had a conscientious objection to all wars, but not those wh o objected to onl y a particular war. Gillette v. United States, 401 U .S. 437 (1971). The Court e xplained that the statute did not discriminate among religions because “no particular sectarian affiliation” was required to qualify for conscientious objector status. Id. at 450-51. “[C]onscientious objector status was available on an equal basis to both the Quaker and the Roman Catholic.” Larson, 456 U.S. at 247 n. 23; see also Cutter v. Wilkinson , 544 U .S. 709, 724 (2005) ( upholding RLUIPA because it did not “conf er[] . . . privileged status on any particular religious sect” or “single[] out [any] bona fide faith for disadvantageous treatment”).
Like the statutes at issue in Gillette and Cutter, the preventive s ervices coverage regulations do not grant any denominational preference or otherwise discriminate among
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religions. It is of no m oment that the religious employer exemption and accommodations for eligible organizations apply to some employers but not others. “[T]he Establishment Clause does not pr ohibit the governm ent from [differentiating between or ganizations based on their structure and purpose] when granting religious accommodations as long as the distinction[s] draw n by the regulations . . . [are] no t based on religious affiliation.” Grote, 914 F. Supp. 2d at 954; accord O’Brien, 894 F. Supp. 2d a t 1163; see also, e.g., Children’s Healthcare Is a Lega l 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 (9 th Cir. 1995) (concluding that religious exemption from self-employment Social Security taxes did not violate the Establishment Clause even though “some i ndividuals receive exem ptions, and ot her individuals with identical beliefs do not”); Catholic Charities of the Diocese of Albany, 859 N.E.2d at 468- 69 (“This kind of di stinction—not between denom inations, but between religious orga nizations based on the nature of their activities—is not what Larson condemns.”). Here, the distinctions esta blished by the regulations are not so drawn.
The regulations’ definitions of religious employer and eligible orga nization “do[] not refer to any partic ular denomination.” Grote, 914 F. Supp. 2d at 954. The exemption and accommodations are available on an equal ba sis to organizations affiliated with any and all religions. The regulations, therefor e, do not discriminate among religions i n violation of the Establishment Clause.
Finally, plaintiffs’ allegation that th e accommodations “require[] ongoing, comprehensive government surveillance” of an entangling nature, Com pl. ¶ 263, is
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simply incorrect. The accommodations neither contemplate nor require any government surveillance of religious orga nizations: to avail itself of the accommodations, eligible organizations like plaintiffs simply m ust self-certify that they meet the criteria to be eligible organizations and deliv er that self-certification to their issuers/TPAs. In any event, any incidental interaction between the government and re ligious organizations would not be so “com prehensive,” Lemon v. Kurtzman , 403 U.S. 602, 619 (1971), or “pervasive,” Agostini v. Felton , 521 U.S. 203, 233 (1997), as to result in excessive entanglement. The Supreme Court has upheld laws that require government monitoring more onerous than any that could be conceived regarding the accommodations. See Bowen v. Kendrick , 487 U.S. 589, 615- 617 (1988) (c oncluding there was no excessive entanglement where the gover nment reviewed adolescent counseling programs set up by the religious institution grante es, reviewed the materials used by such grantees, and monitored the programs by periodic visits); Roemer v. Board of Public Works of Md., 426 U.S. 736, 764–765 (1976) (rejecting excessi ve entanglement challenge where the State conducted annual audits to ensure that grants to religious colleges were not used to teach religion); see also United States v. Corum, 362 F.3d 489, 496 (8th Cir. 2004) (concluding statute did not foster excessive entanglement; “Although the government, in its role as the [statute’s] enforcer, may interact with religious organizations, it is not required to engage in per[v]asive monitoring of or intrusion into the activities of these organizations”).
Indeed, every court to have considered an Es tablishment Clause challenge to the prior version of the regul ations has rejected it. See, e.g., O’Brien, 894 F. Supp. 2d a t 1162; Conestoga, 917 F. Supp. 2d at 416-17; Grote, 914 F. Supp. 2d at 954; see also
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Walz v. Tax Commission of New York , 397 U.S. 664, 672- 73 (1970) (upholding property tax exemption “to religious organizations for religious properties used solely for religious worship”); Liberty Univ., Inc. v. Lew , 2013 WL 3470532, at *17 -18 (4th Ci r. July 11, 2013) (upholding another religious exem ption in ACA where it made “no explicit and deliberate distinctions between sects” (quotation omitted)). IV. THE REGULATIONS DO NOT VIOLATE THE RIGHT TO FREE
SPEECH OR EXPRESSIVE ASSOCIATION Plaintiffs’ free speech claims fare no be tter. The right to freedom of speech “prohibits the government from telli ng people what they m ust say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). B ut the preventive services coverage regulations do not “compel speech”—by plaintiffs or any other person, employer, or entity—in violation of the Fi rst Amendment. Nor do they limit what plaintiffs may say. Plaintiffs remain free u nder the regulations to express whatever views they may have on the use of contraceptive services (or any other health care services) as well as their views about the regulations. Plaintiffs, moreover, may encourage their employees and students not to use contraceptive services. Indeed, every court to review a Free Spee ch challenge to the prior contraceptivecoverage regulations has reject ed it, in part because the re gulations deal w ith conduct. See, e.g., MK Chambers, 2013 WL 1340719, at *6; Briscoe v. Sebelius, 927 F. S upp. 2d 1109 (D. Colo. 2013); Conestoga, 917 F. Supp. 2d at 418; Autocam, 2012 WL 6845677, *8; O’Brien, 894 F. Supp. 2d at 1165-67. The accommodations likewise regulate conduct by relieving an eligibl e organization of the obligation to contract, arrange, pa y, or refer
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for contraceptive coverage to which it has religious objections. The requirement that plaintiffs must self-certify their eligibility for an accommodation is “plainly incidental . . . to the regulation of conduct,” FAIR, 547 U.S. at 62, not speech.
The regulations also do not re quire plaintiffs to subsidize any conduct that is “inherently expressive.” FAIR, 547 U.S. at 66; see also U nited States v. O’Brien , 391 U.S. 367, 376 (1968) (recognizing that some forms of “symbolic speech” are protected by the First Amendment). As an initial matter, th e regulations explicitly prohibit plaintiffs’ issuers/TPAs from imposing any cost sharing, premium, fee, or other charge on plaintiffs or their plans with respect to the separate paym ents for contraceptive services made by the issuers/TPAs. See 78 Fed. Reg. at 39,880, A R at 12. Plaintiffs, therefore, are not funding or subsidizing anything pertaining to contraceptive coverage. Moreover, even if plaintiffs played some role in an issu er’s or TPA’s provision of paym ents for contraceptive services (and they do not), maki ng payments for health care services is not the sort of conduct the S upreme Court ha s recognized as inhe rently expressive. See Conestoga, 917 F. S upp. 2d at 418; Grote, 2012 WL 6725 905, at *10; Autocam, 2012 WL 6845677, at *8 (“Includi ng contraceptive coverage in a he alth care plan is not inherently expressive conduct.”); O’Brien, 894 F. Supp. 2d at 1166-67 (“Giving or receiving health care is not a statement in th e same sense as weari ng a black armband or burning an American flag.” (internal citations omitted)); Catholic Charities of Sacramento, 85 P.3d at 89 (“a law regulating health care benefits is not speech”); Diocese of Albany, 859 N.E.2d at 465; see also FAIR, 547 U.S. at 65-6 6 (making space for
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military recruiters on campus is not conduct that indicates college s’ support for, or sponsorship of, recruiters’ message).
Furthermore, plaintiffs are wrong whe n they contend that the regulations require plaintiffs to “facilitate access to gover nment-dictated education and counseling related to abortion.” Compl. ¶ 271. The r egulations simply require covera ge of “education and counseling for women with re productive capacity.” HRSA Gu idelines, AR at 130-31. The conversations that may take place between a patient and her doctor cannot be known or screened in advance and may cover any number of options. To the extent that plaintiffs intend to argue that the covered education and counseling is objectionable because some of the conversations between a doctor and one of plaintiffs’ em ployees might be supportive of something to which they object, accepting this theory would mean that the First Amendment is violated by the mere po ssibility of an employer’s disagreement with a potential subject of discussion between an employee and her doctor, and w ould extend to all such interactions, not just those that are the subject of the challenge d regulations. The First Amendment does not require such a drastic result. See, e.g., Conestoga, 917 F. Supp. 2d at 418-19.
Finally, the regulations do not violate the right to expr essive association. To be sure, “[t]he right to speak is ofte n exercised most effectively by combining one’s voice with the voices of othe rs.” FAIR, 547 U.S. at 68. “If the government were free to restrict individuals’ ability to join to gether and speak, it could essentially silence views that the First Amendment is intended to protect.” Id. The Suprem e Court, therefore, has
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recognized a First Amendment right to associate for the purpose of speaking. Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).
But the preventive services coverage regu lations do not interfere with plaintiffs’ right of expressive associati on. The re gulations do not in terfere in any way with the composition of plaintiffs’ workforces, faculties, or student bodies. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 ( 2000) (holding Boy Scouts’ freedom of expressive association was violated by law requiring orga nization to accept gay man as a scoutmaster); Roberts, 468 U.S. at 623 (con cluding statute that fo rced group to accept women against its desires was subject to st rict scrutiny). The re gulations do not force plaintiffs to hire em ployees they do not wish to hire or to admit students they do not desire to be a part of their schools. Moreov er, plaintiffs, as well as their employees and students, are free to associate to voice their disapproval of the use of contraception and the regulations. Even the statute at issue in FAIR, which required law school s to allow military recruiters on campus if other recru iters were allowed on campus, did not violate the law schools’ right to expression associ ation. 547 U.S. at 68-70. The preve ntive services coverage regulations do not even implicate plaintiffs’ right. See MK Chambers v. U.S. Dep’t of Health & Human Servs., No. 13-cv-11379-BPH-MJH, Order Denying Mot. for Prelim. Inj. at 12-13, ECF No. 46 (Sept. 13, 2013) (rejecting expressive association challenge to prior vers ion of regulations); Diocese of Albany , 859 N.E. 2d at 465 (upholding similar state law because it “does [ not] compel [plaintiffs ] to associate, or prohibit them from associating, with anyone”).
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V. THE REGULATIONS DO NOT VIOLATE THE DUE PROCESS CLAUSE Plaintiffs’ claim that the pr eventive services coverage regulations violate the Fifth
Amendment’s Due Process Clause is mi sdirected and baseless. A law is not unconstitutionally vague unless it “fails to provide a person of ordinary intelligence fair notice of what is prohi bited” or “is so st andardless that it aut horizes or encourages seriously discriminatory enforcement.” United States v. Williams , 553 U.S. 285, 304 (2008). Courts relax these standards where, as here, the law i n question i mposes civil rather than criminal penalties a nd does not “interfere[] with the right of free s peech or of association.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982). I n any event, “perfect clarity and pr ecise guidance have never been required even of regul ations that restrict expressive activity.” Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010).
Plaintiffs do not even attempt to identify a source of vagueness or confusion in the regulations. See Am. Compl. ¶¶ 278-79. And plaint iffs evidently have no difficult y determining what the regulations require of them ; at the very least, then, the regulations are not vague as applied to plaintiffs. See U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 579 (1973) (“Surely, there seemed to be little question in the minds of t he plaintiffs who brou ght this lawsuit as to the meaning of the law, or as to whether or not t he 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
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application to plaintiffs’ proposed conduct , which means that plaintiffs’ vaguenes s challenge must fail.” 130 S. Ct. at 2720.
Finally, plaintiffs misunderstand the re gulations when they assert that the regulations provide defendants with “unbridled discretion i n deciding whether to allow exemptions to some, all, or no organizations that possess religious beliefs.” Am. Compl. ¶ 281. Tha t is incorrect. Under t he regulations at issue here, an orga nization that is organized and operates as a nonpr ofit entity and is referred to in section 6033(a )(3)(A)(i) or (a)(3)(A)(iii) of the Intern al Revenue Code of 1986, as amended, qualifies for the exemption. 45 C.F.R. § 147.131(a). And an orga nization that satisfies the four criteria to be an “eligible organization” is eligible for the accommo dations. Id. § 137.131(b). There is therefore simply no discretion that is left to defendants to decide who is exempt or who is accommodated; the regulations set out the criteria for both determinations. 9 Similarly, there is no merit to plaintiffs’ allegation th at the regulations— which contain specific criteria—will lead to discriminatory enforcement. VI. PLAINTIFFS’ APA CLAIMS FAIL
A. The regulations were promulgated in accordance with the APA Plaintiffs assert that defendants failed to comply with the APA’s notice and comment procedures and the A CA’s timing provisions. These allegations are baseless. The APA’s rulemaking provisions generally require that agencies provide notice of a
9 The regulations permitted HRSA to crea te a religious employer exemption, and identified the criteria for such an exemption, and HRSA di d so in its August 1, 2011 action. See HRSA Guidelines. Any em ployer that meets the criteria of a “religious employer” is exempt from the c ontraceptive-coverage requirement. See id.; see, e.g., Grote, 2012 WL 6725905, at *8.
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proposed rule, invite and consider public comments, and adopt a final rule that includes a statement of basis and purpose. See 5 U.S.C. § 553(b), (c). Defendants com plied with these requirements.10
As to the challenged regulations, defe ndants issued the AN PRM on Mar ch 21, 2012, and solicited com ments on it. 77 Fe d. Reg. 16,501. Defendants then considered those comments and issued the NPRM on Fe bruary 6, 2013, requesting comments on the proposals contained in it. 78 Fe d. Reg. at 8457, AR at 166. Defe ndants received over 400,000 comments, and the pr eamble to the 2013 final rules contains a detailed discussion both of the comments defendants received and of defenda nts’ responses to those comments. See 78 Fed. Reg. at 39,871-39,888, AR at 3-20. The mere fact that the regulations as ultimately issu ed may not satisfy the pref erences of each and every commenter is certainly not evidence that those comments were not considered. Given the range of interests and views among commenters, it is unli kely—if not impossible—that any regulation will be fully in line with the comments made by every commenter.
Plaintiffs also contend the regulations vi olate the ACA because plaintiffs believe they did not exist in final form for one year prior to goi ng into effect. This argument is based on a m isunderstanding of both the A CA and the regulations. The provision of the ACA to which plaintiffs refe r, 42 U.S.C. § 300gg-13(b), requ ires only that there be a minimum interval of not less than one year between the date on which a recommendation 10 To the extent plaintiffs atte mpt to raise any alleged ins ufficiencies or improprieties as to the prior, interim final rule s, they are simply irrelevant . The regulations plaintiffs challenge here are an entirely different se t of regul ations. 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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or guideline is issued—here, the HR SA Guidelines—and the pl an year for which the coverage of the services included in that recommendation or guideline must take effect. See 75 Fed. Reg. at 41,729, AR at 229. That requirement is clearly satisfied here: HRSA published its guidelines on August 1, 2011, see HRSA Guidelines, supra, and these regulations apply for plan years begi nning on or after January 1, 2014, see 78 Fed. Reg. at 39,870, AR at 2. Nothing in the AC A prevents defendants from amending the regulations as they ha ve done here, and because the required interval relates only to the issuance of new recommendations or guidelines, nothing in the ACA requires defendants to provide an interval of one year between the promulgation of these amendments and the date on which the required coverage must take effect.
B. The regulations are neither arbitrary nor capricious Plaintiffs’ claim that the regulations are arbitrary and caprici ous is belied by t he policymaking path di scussed above, which illu strates that the regulations are neither arbitrary nor capricious. See Motor Vehicle Mfrs. Ass’n of the U. S. v. State Far m Mut. Auto. Ins. Co. , 463 U .S. 29, 43 (1983) (agency actio n must be uphel d so long as “the agency’s path may reasonably be discerned”); DKT Mem’l Fund, Ltd. v. Agency for Int’l Dev., 887 F.2d 275, 281 (D.C. Cir. 1989) (“The APA has never been construed to grant to this or any ot her court the power to re view the w isdom of policy decisions of the President.”). The preamble to the rules also sets out that path in detail, see 78 Fed. Reg. at 39,871-88, AR at 3-20, and there can be no serious question that it can be reasonabl y discerned. Similarly, plaintiffs’ brazen cl aim that defendants failed to consider the constitutional and statutory impli cations of the regulations is flatly contradicted by the
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record, which explicitly disc usses that very issue. See 78 Fed. Reg. at 39,886- 88, AR at 18-20.
Instead of pointing to anywhere in the record where defendants did not “articulate a satisfactory explanation for [their] action,” State Farm, 463 U.S. at 43, plaintiffs resort to complaining about th e content of the regulations them selves. Just as the fact that plaintiffs are disappointed that the regula tions are not in keeping with all of their comments does not mean that defendants failed to consider plaintiffs’ comments, plaintiffs’ contrary policy preferences do not render the regulations arbitrary or capricious. The regulations are consistent w ith the proposals contained in the A NPRM and the NPRM, and, as the re cord reflects, represent the logic al 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 wit h abortion: section 1303(b)(1) of the ACA, the Weldon Amendment, and t he Church A mendment. Plaintiffs appear to r eason that, because the preventive services coverage regulations re quire group health pl ans 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 outset because plaintiffs lack prudential standing to assert them. The doctr ine of prude ntial standing requires that a plaintiffs’ claim fall within “the zone of in terests to be pr otected or regula ted by the statute or constitutional guarantee in question.” Ass’n of Dat a Processing Ser v. Orgs.,
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Inc. v. Camp , 397 U.S. 150, 153 (1970). But the ne cessary link between plaintiffs and two of these statutes is missing here. See Dialysis Ctrs., Ltd. v. Schweiker , 657 F.2d 135, 138 (7th Cir. 1981); O’Brien, 894 F. S upp. 2d at 1167-68 ( holding that plaintiff lacked prudential standing to raise similar claims). Section 1303(b)(1) of the ACA provides that “nothing in this title . . . sha ll be construed to require a qua lified 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. 11 They therefore do not fall within the zone of interest s to be protec ted by the statut e in question. Similarly, th e Church Amendment protects individuals from being required to “perform or assist in the performance of any part of a health service program or research activity funded . . . by the Secretary of Health and Human Services if his performance or assistance . . . would be contrary to his religious beliefs or moral c onvictions.” 42 U.S.C. § 300a-7(d). By merely providing a health plan to their e mployees, plaintiffs are not required to, and in fact do not, “perform or assist in the performance” of a “health service program or research activity funded . . . under a program administered by the Se cretary of Health and Human Services” within the meaning of the Churc h Amendment. See Gray v. Rom ero, 697 F. Supp. 580, 590 n.6 (D.R.I. 1988). Nor are plaintiffs “individual[s]” under that provision. They are therefore not within the Church Amendment’s zone of interests either. 11 A “qualified health plan,” within the meaning of this provision, is a health plan that has been certified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance issu er. 42 U. S.C. § 18021(a )(1). Health insurance exchanges are to be set up by states no later than January 1, 2014. Id. § 18031. Plaintiffs’ health insurance plans were not purchased on a health insurance exchange, and so none is a “qualified health plan.”
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Even if the Court were to reach the meri ts of these claim s, and on the m erits of

plaintiffs’ Weldon Amendment claim, plaintiffs’ premise that the contraceptive coverage

regulations require abortion coverage is fundamentally incorrect. The regulations do not

require that any health plan cover abortion as a preventive service, or that it cover

abortion at all, as that term is defined in federal law. Rather, the regulations require only

that non-grandfathered, non-exempt and non-accommodated group health plans cover all

FDA-approved “contraceptive methods, steriliz ation procedures, a nd patient education

and counseling,” as prescribed by a health care provide r. See HRSA Guidelines, supra.

And the government has m ade clear that the preventive services covered by the regulations do not include abortifacient drugs.12 Although plaintiffs believe that Plan B,

ella, and certain IUDs are a bortifacient drugs or cause a bortions, neither the gover nment

nor this Court is required to accept that characterization, wh ich is inconsistent with the

FDA’s scientific assessment and with federal law. While plaintiffs’ religious beliefs may

define abortion m ore broadly than federal law to include em ergency contraception and

certain IUDs, statutory interpretation requires that terms be construed as a matter of law

and not in accordance with any particular individual’s views or beliefs. E.g., Gov’t

Empls. Ins. Co. v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).

In recommending what contraceptive servi ces should be covere d by health plans

without cost-sharing, the IOM Report identif ied the contraceptives that have been

12 HealthCare.gov, Affordab le Care Act Rules on Expa nding Access to Preventive

Services for Women (August 1, 2011),

available at

http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.ht

ml (last visited Dec. 17, 2013); see also IOM R EP. at 22 (recognizing tha t abortion

services are outside the scope of permissible recommendations), AR at 320.

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approved by the FDA as safe and effective. See IOM REP. at 10, AR at 308. And the list of FDA-approved contraceptives includes em ergency contraceptives such as Plan B. See id. at 105, AR at 403. The basi s for the inclusion of s uch drugs among safe and effective means of contraception dates ba ck to 1997, when the FDA first expl ained why Plan B and similar drugs act as contraceptives rather than abortifacients. See Prescription Drug Products; Certain Com bined Oral Contraceptives for Use as P ostcoital Emergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 1 997) (noting that “emergency contraceptive pills are not effective if the woman is pregnant” a nd that there is “no evidence that [emergency contraception] will have an a dverse effect on an established pregnancy”); 45 C.F.R. § 46.202(f) (“Pregnancy encompasses the period of time from implantation until delivery.”). In light of this conclusion by the FDA, HHS informed Title X grantees, which are required to offer a ra nge of acceptable and effec tive family planning methods—and may not offer abortion except under limited circumstances (e.g., rape, incest, or when the life o f the woma n would be in da nger)—that they “shoul d consider the availability of emergency contraception the same as any other method which has been established as safe and effective. ” Office of Population Affairs, Memorandum (Apr. 23, 1997), http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Dec. 17, 2013); see also 42 U.S.C. §§ 300, 300a-6.
Because they reflect a settled understanding of FDA-approved contraceptives that is in accordance with existing federal laws prohibiting federal funding for certain abortions, the regulations are consistent w ith over a decade of regulator y policy a nd
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practice and thus cannot be deemed cont rary to any law dealing with abortion. 13 See Bhd.
of R.R. Signal men 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)).
VII. PLAINTIFFS CANNOT ESTABL ISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC
Plaintiffs have not established that they are likely to suffer irreparable harm in the
absence of preliminary relief because, as explained above, the y have not shown a
likelihood of success on the merits of their RFRA or First Amendment claims. See Hobby
Lobby, 723 F.3d at 1146 (explaining that, in the RFRA and First Amendment context, the
merits and irreparable injur y prongs of the preliminary injunction analysis merge
together, and plaintiffs cannot show irreparable injury with out also showing a likelihood
of success on the merits).
Plaintiffs’ motion for preliminary injunc tive relief suffers from an additional,
critical flaw: The harm th at SNU and OKWU allege is in no way im minent. See
Bedrossian v. Northwestern Memorial Hosp. , 409 F.3d 840, 844 (7 th Cir. 2005) (noting
13 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the word “abortion” in the st atute to include F DA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Se pt. 25, 2002) (“The provision of contraceptive services has never be en defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as the morningafter pill. . . . [U]nder the curre nt FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”). His statement leaves little doubt that the Weldon Amendment was not i ntended to apply to em ergency contraceptives. See Fed. Energy Admin. v. Algonquin SNG, Inc. , 426 U.S. 548, 564 (1976) (i ndicating that a statement of one of the legislation’s sponsors deserves to be accorded s ubstantial weight in interpreting a statute).
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that the irreparable harm must be imminent); Chacon v. Granata, 515 F.2d 922, 925 (5th Cir. 1975) (“An injunction is appropriat e only if the anticipated injury is imminent and irreparable.”) (emphasis added); Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 615, 618 (3d Cir. 1969) ( “The dramatic and dr astic power of injunctive forc e may be unleashed only against co nditions generating a presently existing actual threat[.]”) (emphasis added). Because defendants have extended the enforcemen t safe harbor to encompass plan years that begin between August 1 an d December 31 , 2013, the challenged regulations will not be enforced by defendants against SNU and OKWU until July 1, 2014, when their next plan years begin. Am. Compl. ¶¶ 40, 63, 175, 177. There is ample time between now and then for the parties to litigat e the merits of SNU’s and OKWU’s claims in the normal course of motions practice, without the extraordinary relief of a preliminary injunction. It is also no answer to say, as plaintiffs do, that they require a preliminary injunc tion because of “uncertainty” surrounding the regulations. Pls.’ Br. at 12. There is no uncertainty—the regulations have been issued in final form , and defendants’ health plans m ust comply as of the first plan year beginning on or after January 1, 2014. To the extent any uncertainty remains as to these obligations, it has been introduced only by the filing of this lawsuit.
As to the balance of equities and the public interest, “there is inherent harm to an agency in preven ting it from enforcing regulations th at Congress found it in the public interest to direct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also Connection Distrib. Co. v. Reno , 154 F.3d 281, 296 (6t h Cir. 1998) (indicating that granting an inj unction against the enforcement of a likely
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constitutional statute would ha rm the government). Enjoini ng the preventive services
coverage regulations as to plaintiffs would undermine the government’s ability to achieve
Congress’s goals of improving the health of women and newborn children and equalizing the coverage of preventive services for women and men.14
It would also be contrary to the public interest to deny plaintiffs’ em ployees (and
their families) the benefits of the pr eventive services coverage regulations. See
Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982) (“[C]ourts . . . should pay
particular regard for the public consequences in employing the ex traordinary remedy of
injunction.”). Those em ployees should not be deprived of t he benefits of paym ents
provided by a third pa rty that is not t heir employer for the full range of F DA-approved
contraceptive services, as pr escribed by a health care pr ovider, on the bas is of their
employers’ religious objection. M any women do not use contraceptive services because
they are not covered by their health plan or require cos tly copayments, coinsurance, or
deductibles. IOM R EP. at 19-20, 109, AR at 317-18, 407; 77 Fe d. Reg. at 8727, AR at
214; 78 Fe d. Reg. at 39,887, AR at 19. A s a result, in m any cases, both wom en and
14 Plaintiffs note that defendants consente d to preliminary injunctions in some cases involving for-profit corporations, see Pls.’ Br. at 14, but defe ndants’ consent in those cases was nothing more than an effort to conserve judicial and governmental resources. Those cases were filed after motions panels in those circuits had preliminary enjoined the regulations pending appeal in similar cases. See Mersino Mgmt. Co. v. Sebelius, 2013 WL 3546702 at *16 (E.D. Mich. Ju ly 11, 2013) (“[W]h ere the government has conceded to injunctive relief, it appears that it has generally done so in jurisdic tions where the legal landscape has been set against them, and c ontinuing to litigate the claims in those jurisdictions would be a waste of both judic ial and client resources.”). The gover nment continues to oppose preliminary injunctions sought by for-profit co rporations in other circuits, and opposes in all circuits prelim inary injunctions sought by non-profit entities as to the regulations challenged in this case.
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developing fetuses suffer negative health consequences. See IOM REP. at 20, 102-04, AR at 318, 400-02; 77 Fe d. Reg. at 8728, AR at 215. And women a re put at a competitiv e disadvantage due to their lost productivity and the disproportionate financial burden they bear in regard to preventive health services. 155 Cong. Re c. S12106-02, S12114 (daily ed. Dec. 2, 2009); see also IOM REP. at 20, AR at 318.
Enjoining defendants from enforcing, as to plaintiffs , the preventive services coverage regulations—the purpose of which is to eliminate these burdens, 75 Fed. Reg. at 41,733, AR at 233; see also 77 Fed. Reg. at 8728, AR a t 215—would thus inflict a very real harm on the public and, in particular, a readily identifiable group of individuals. See Stormans, Inc. v. Selecky , 586 F.3d 1109, 1139 (9t h Cir. 2009) (vacating prelim inary injunction entered by district c ourt and noting that “[t]here is a general public interest in ensuring that all citizens have timely acce ss to lawfully prescr ibed medications”). Plaintiffs’ health plans cover ne arly 2,000 people. Compl. ¶¶45, 50, 71. A ccordingly, even assuming plaintiffs were likely to succ eed on the merits (which they are not for the reasons explained above), any potential harm to plaintiffs resulting from their offense at a third party providi ng payment for contraceptive services—at no co st to, and with no administration by, plaintiffs—would be outweighed by the significant harm an injunction would cause these employees and their families.
CONCLUSION For the foregoi ng reasons, defendants respectfully ask that the Court deny plaintiffs’ motion for preliminary injunction, and grant defendants’ motion to dismiss or, in the alternative, for summary judgment on all of plaintiffs’ claims.
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Respectfully submitted this 17th day of December, 2013, STUART F. DELERY Assistant Attorney General SANFORD C. COATS United States Attorney JENNIFER RICKETTS Director SHEILA M. LIEBER Deputy Director _/s/ Michael C. Pollack______________ MICHAEL C. POLLACK (NY Bar) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 6143 Washington, DC 20530 Tel: (202) 305-8550 Fax: (202) 616-8470 Email: michael.c.pollack@usdoj.gov Attorneys for Defendants
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CERTIFICATE OF SERVICE I hereby certify that on December 17, 2013, I electronically fil ed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
_/s/ Michael C. Pollack__________ MICHAEL C. POLLACK
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 Case 5:13-cv-01015-F Document 33 Filed 12/19/13 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

SOUTHERN NAZARENE UNIVERSITY; et al.,

Plaintiffs, v.

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

Case No. 5:13-cv-1015-F

Defendants.

BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Case 5:13-cv-01015-F Document 33 Filed 12/19/13 Page 2 of 33
TABLE OF CONTENTS TABLE OF CONTENTS.........................................................................................i TABLE OF AUTHORITIES ...................................................................................ii INTRODUCTION ...................................................................................................1 FACTUAL BACKGROUND ...................................................................................3 ARGUMENT ...........................................................................................................6
I. THE FEDERAL CONTRACEPTION RULE DOES NOT SUBSTANTIALLY BURDEN PLAINTIFFS’ RELIGIOUS EXERCISE. ................................................................................................6
II. PLAINTIFFS CANNOT USE THEIR RELIGIOUS BELIEFS TO DENY THEIR WOMEN EMPLOYEES THE PROTECTIONS OF LAWS AIMED AT PROMOTING GENDER EQUALITY. .....................14
CONCLUSION ........................................................................................................22 CERTIFICATE OF SERVICE................................................................................24
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TABLE OF AUTHORITIES
Cases Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) .............................. 7, 8 Bob Jones University v. United States, 461 U.S. 574 (1983) ........................... 16 Bowen v. Roy, 476 U.S. 693 (1986).................................................................... 13 Brown v. Dade Christian Schools, Inc., 556 F.2d 310 (5th Cir. 1977) ....... 16-17 Cutter v. Wilkinson, 544 U.S. 709 (2005).......................................................... 15 Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990).............. 17 EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986) ............... 17 Estate of Thornton v. Caldor, 472 U.S. 703 (1985) .......................................... 16 Fortress Bible Church v. Feiner, 694 F.3d 208 (2d Cir. 2012) ........................... 8 Goehring v. Brophy, 94 F.3d 1294 (9th Cir. 1996), overruled on other grounds
by Navajo Nation v. U.S. Forest Service, 479 F.3d 1024 (9th Cir. 2007) ............................................................................................ 9, 11 Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006) .................................................................................................. 8 Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001)......................................... 9 Hoevenaar v. Lazaroff, 422 F.3d 366 (6th Cir. 2005)......................................... 7 Hoyt v. Florida, 368 U.S. 57 (1961)................................................................... 21 Jacobson v. Massachusetts, 197 U.S. 11 (1905) ............................................... 14 Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ............. 9, 10, 10-11, 11 Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729 (6th Cir. 2007) .................................................................................................. 8 Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988) .................................................................................... 8, 12
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Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011)................................................ 9
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) ......................................................................................... 8, 8-9
Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008)............. 13
Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003) .................................................................................. 21, 22
Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. 941, 944 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968) ........................................................................................ 16
O’Brien v. U.S. Department of Health & Human Services, 894 F. Supp. 2d 1149 (E.D. Mo. 2012), stay granted pending appeal, No. 12-3357 (8th Cir. Nov. 28, 2012)............................................................................. 17-18
Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974).... 13
Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), aff’g Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011), abrogated on other grounds by National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) ............................................................................... 11-12
Sherbert v. Verner, 374 U.S. 398 (1963) ........................................................... 15
Tarsney v. O’Keefe, 225 F.3d 929 (8th Cir. 2000) ............................................. 13
Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)............................................ 16
Thiry v. Carlson, 78 F.3d 1491 (10th Cir. 1996) ................................................ 8
Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981) ........................................................................................ 11
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007)........................................ 9, 10
Weinberger v. Grimes, No. 07-6461, 2009 WL 331632 (6th Cir. Feb. 10, 2009) .................................................................................... 7
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) ................................................................................... 15-16
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Statutes
Patient Protection and Affordable Care Act, Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat. 131 (2010) (codified at 42 U.S.C.A. § 300gg-13) ............ 3
Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb-1 (2013) .......... 7, 15
Other Authorities
139 CONG. REC. E1234-01 (daily ed. May 11, 1993) ................................... 14-15
146 Cong. Rec. S7,774 (July 26, 2000) ................................................................ 8
155 CONG. REC. S11,979 (daily ed. Nov. 30, 2009)............................................. 3
155 CONG. REC. S12,021 (daily ed. Dec. 1, 2009) ............................................... 4
Health Resources & Services Administration, U.S. Department of Health & Human Services, Women’s Preventive Services: Required Health Plan Coverage Guidelines, available at http://www.hrsa.gov/womensguidelines/ ................................. 4-5
INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (July 2011) ....................................................... 4, 20, 20-21
Jeffery Peipert, Continuation and Satisfaction of Reversible Contraception, 117 OBSTETRICS & GYNECOLOGY 1105 (May 2011) ................................ 18, 21
Jeffrey Peipert, et al., Preventing Unintended Pregnancies by Providing NoCost Contraception, 120 OBSTETRICS & GYNECOLOGY 1291 (Dec. 2012) ................................................................................................ 18, 21
Jennifer J. Frost, Stanley K. Henshaw & Adam Sonfield, Contraceptive Needs and Services: National and State Data, 2008 Update, GUTTMACHER INSTITUTE 3 (May 2010), available at http://www.guttmacher.org/pubs/win/contraceptive-needs-2008.pdf .......... 20
Kimberly Daniels, William D. Mosher & Jo Jones, Contraceptive Methods Women Have Ever Used: United States, 1982–2010, 62 NATIONAL HEALTH STATISTICS REPORTS 1 (2013) ........................................................................ 18
Martha J. Bailey, Brad Hershbein & Amalia R. Miller, The Opt-in Revolution? Contraception and the Gender Gap in Wages, National Bureau
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of Economic Research, Working Paper No. 17922 (2012), available at http://www.nber.org/papers/w17922 ........................................................ 19-20 Office of Population Research, Princeton University, What is Emergency Contraception?, EMERGENCY CONTRACEPTION WEBSITE, available at http://ec.princeton.edu/ ............................................................................. 18-19 Susan A. Cohen, The Broad Benefits of Investing in Sexual and Reproductive Health, 1 GUTTMACHER REPORT ON PUBLIC POLICY 5 (2004) ...................... 19 Su-Ying Liang, Daniel Grossman & Kathryn A. Phillips, Women’s Out-ofPocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006, 83 CONTRACEPTION 528 (June 2010) .................... 20 Regulations 26 C.F.R. § 54.9815-2713A(a) (2013) .............................................................. 5, 6 29 C.F.R. § 2590.715-2713A (2013)................................................................. 5, 6 45 C.F.R. § 147.130(b)(1) (2013).......................................................................... 4 45 C.F.R. § 147.131 (2013)............................................................................... 5, 6 Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870 (July 2, 2013) .................................................................... 5-6
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INTRODUCTION American Civil Liberties Union and American Civil Liberties Union of Oklahoma (collectively, “ACLU”) submit this brief to support the government’s argument that the final contraception rule promulgated by the U.S. Department of Health and Human Services (“HHS”) under the Patient Protection and Affordable Care Act (“ACA”) does not violate the Religious Freedom Restoration Act (“RFRA”). The right to practice one’s faith, or no religion, is one of our most treasured liberties and is of vital importance to the ACLU. For this reason, amici routinely bring cases designed to protect the right to worship and express religious beliefs. The ACLU is also fiercely committed to fighting discrimination and inequality, including discrimination based on gender. Since 1972 the ACLU has worked to secure gender equality and to ensure that women and girls are able to lead lives of dignity, free from discrimination. An important component of gender equality is the ability of women to have full control of their reproductive lives and to decide whether and when to have children. Plaintiffs’ RFRA claim fails for several reasons. First, the final contraception rule does not substantially burden Plaintiffs’ religious exercise. The rule requires only that Plaintiffs send a two-page form to their health insurance issuers—which, in this case, includes large health insurance companies such as BlueCross BlueShield of Oklahoma—stating that they
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have religious objections to covering contraceptives. The onus is then on Plaintiffs’ health insurance issuer to provide payments for contraceptive services for the organizations’ employees. Simple provision of this notice in no way constitutes a substantial burden on Plaintiffs’ religious exercise. Indeed, Plaintiffs likely already provided such notice to their issuers before the announcement of the final rule in order to request that coverage for certain contraceptives be excluded from their policies.
Second, courts have long recognized that the right to religious liberty, while fundamental, does not give organizations or individuals carte blanche to interfere with the rights of others, to violate compelling government policies, or to impose their religious beliefs on others. This Court should reject Plaintiffs’ attempt to do the same here. The contraception rule is a significant advancement in women’s equality. Access to contraceptive care has enabled women to control their reproductive lives and futures, including permitting them to attain higher levels of education and to achieve greater economic equality. But, as Congress recognized, not all women have been able to access contraception due to cost barriers, and the contraception rule ensures that millions of women—including those that work for Plaintiffs— have affordable access to this important healthcare. Allowing Plaintiffs to restrict their issuers from paying for Plaintiffs’ employees’ contraceptive services would permit Plaintiffs to use their religious beliefs to disadvantage
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and discriminate against their female employees. Plaintiffs’ claims should therefore be rejected.
FACTUAL BACKGROUND The ACA requires that health insurance plans cover certain preventive services without cost-sharing. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat. 131, 131−32 (2010) (codified at 42 U.S.C.A. § 300gg-13). Consistent with the historical practice of many health insurers, however, many preventive services that are unique to women were not included in the original preventive services coverage requirement. See 155 CONG. REC. S11,979, S11,987 (daily ed. Nov. 30, 2009) (statement of Sen. Barbara Mikulski) (noting that the ACA did not cover key preventive services for women). To address this inequality, Congress added the Women’s Health Amendment (“WHA”) to the ACA, which requires health insurance plans to cover additional preventive services that women need. § 2713(a)(4), 124 Stat. at 131. In passing the WHA, Senator Mikulski noted, “[o]ften those things unique to women have not been included in health care reform. Today we guarantee it and we assure it and we make it affordable by dealing with copayments and deductibles . . . .” 155 CONG. REC. at S11,988 (daily ed. Nov. 30, 2009) (statement of Sen. Barbara Mikulski). In particular, Congress intended to address gender disparities in out-of-pocket health care costs, which stem in large part from reproductive health care:
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Not only do [women] pay more for the coverage we seek for the same age and the same coverage as men do, but in general women of childbearing age spend 68 percent more in out-ofpocket health care costs than men . . . . This fundamental inequity in the current system is dangerous and discriminatory and we must act. The prevention section of the bill before us must be amended so coverage of preventive services takes into account the unique health care needs of women throughout their lifespan. 155 CONG. REC. S12,021-02, S12,027 (daily ed. Dec. 1, 2009) (statement of Sen. Kirsten Gillibrand). Thus the WHA sought to equalize health insurance coverage for men and women. In implementing the WHA, HHS looked to the Institute of Medicine (“IOM”), an independent, nonprofit organization, to provide recommendations as to services that should be covered. Among other things, IOM recommended that the covered preventive services include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” INST. OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS, 109-10 (July 2011) [hereinafter CLOSING THE GAPS]. On August 1, 2011, HHS adopted these recommendations, including the recommendation on contraceptive services. See 45 C.F.R. § 147.130(b)(1) (2013); Health Res. & Servs. Admin., U.S. Dep’t of Health & Human Servs., Women’s Preventive Servs.: Required Health Plan Coverage Guidelines, available at http://www.hrsa.gov/womensguidelines/ (last visited Nov. 5,
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2013). On June 28, 2013, HHS announced the final rule implementing the
requirement that health insurance plans cover contraceptives. Under the final rule, religious nonprofit organizations that object to covering contraceptives are exempt if the following requirements are satisfied:
(1) The organization opposes providing coverage for some or all of the contraceptive services required to be covered . . . on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies . . . that it satisfies the criteria [in paragraphs (1)-(3)]. 26 C.F.R. § 54.9815-2713A(a) (2013); 29 C.F.R. § 2590.715-2713A (2013); 45 C.F.R. § 147.131 (2013). The self-certification form identified in the fourth requirement simply requires an individual authorized by the organization to certify that the organization meets the requirements and to provide his or her contact information. See CTRS. FOR MEDICARE & MEDICAID SERVS., CMS FORM NO. CMS-10459: COVERAGE OF CERTAIN PREVENTIVE SERVICES UNDER THE AFFORDABLE CARE ACT (2013) (attached hereto as Exhibit A). Nonprofit organizations must provide their issuer with a copy of the self-certification form. In reality, this requirement is likely no different materially from what many organizations that objected to contraception had to do prior to the rule. As HHS noted in issuing the rule: “Even prior to the proposed regulations, because contraceptive benefits are typically in standard
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product designs, many eligible organizations directed their issuers and third party administrators not to make payments for claims for medical services to which they object on religious grounds.” See Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870, 39,887 (July 2, 2013) (codified at 26 C.F.R. § 54.9815-2713A(a); 29 C.F.R. § 2590.715-2713A; 45 C.F.R. § 147.131). Once an issuer receives the self-certification form, it will provide payments for contraceptive services. 26 C.F.R. § 54.9815-2713A(c)(2); 29 C.F.R. § 2590.715-2713A(c)(2). The issuer will also notify the organization’s employees that it—not the organization—will be providing payments for contraceptive services. 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d). The final rule also explicitly prohibits an issuer from “imposing a premium, fee, or other charge, or any portion thereof, directly or indirectly on” the organizations or their employees for the separate contraception payments. 26 C.F.R. § 54.9815-2713A(c)(2); 29 C.F.R. § 2590.715-2713A(c)(2).
ARGUMENT I. THE FEDERAL CONTRACEPTION RULE DOES NOT
SUBSTANTIALLY BURDEN PLAINTIFFS’ RELIGIOUS EXERCISE. RFRA prohibits the federal government from “substantially burden[ing] a person’s exercise of religion” unless the government demonstrates that application of the burden is justified by a compelling
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interest and is the least restrictive means of furthering that interest. Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb-1 (2013). The plaintiff bears the initial burden of demonstrating the challenged government action substantially burdens religious exercise. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1318 (10th Cir. 2010); see also Weinberger v. Grimes, No. 07-6461, 2009 WL 331632, at *5 (6th Cir. Feb. 10, 2009) (“RFRA only applies, however, if the plaintiff makes an ‘initial showing’ that the challenged policy ‘imposes a substantial burden on his religious exercise.’”) (quoting Hoevenaar v. Lazaroff, 422 F.3d 366, 368 (6th Cir. 2005)). Only after the plaintiff establishes a substantial burden, does the burden shift to the government to demonstrate that the challenged policy is the least restrictive means of furthering a compelling government interest. Abdulhaseeb, 600 F.3d at 1318.
By its express terms, RFRA protects against only substantial—not minimal or abstract—burdens on religion. See 42 U.S.C. § 2000bb-1(a). Although RFRA does not define “substantial burden,” the Tenth Circuit has held that “religious exercise is substantially burdened” when the government:
(1) requires participation in an activity prohibited by a sincerely held religious belief, or (2) prevents participation in conduct motivated by a sincerely held religious belief, or (3) places 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
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course of action trenches on an adherent’s sincerely held religious belief. Abdulhaseeb, 600 F.3d at 1315. Laws “‘which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs’ do not constitute substantial burdens on the exercise of religion.” Thiry v. Carlson, 78 F.3d 1491, 1495 (10th Cir. 1996) (quoting Lyng v. Nw. Indian Cemetery Prot. Ass’n, 485 U.S. 439, 450-41 (1988)); see also Fortress Bible Church v. Feiner, 694 F.3d 208, 219 (2d Cir. 2012) (explaining that a substantial burden “must have more than a minimal impact on religious exercise”) (citation omitted); Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007) (noting that the substantial burden standard is a “high hurdle” to cross); Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 988 (9th Cir. 2006) (“[A] substantial burden on religious exercise must impose a significantly great restriction or onus upon such exercise.”) (internal quotation marks and citations omitted); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (“substantial burden requires something more than an incidental effect on religious exercise”).1 RFRA thus
1 While RFRA does not define the term “substantial burden,” the legislative history shows that Congress intended “that term as used in the Act [to] be interpreted by reference to Supreme Court jurisprudence . . . . The term ‘substantial burden’ as used in the Act is not intended to be given any broader interpretation than the Supreme Court’s articulation of the concept of substantial burden on religious exercise.” 146 CONG. REC. S7,774, 7,776 (daily ed. July 26, 2000) (Joint Statement of Sen. Hatch and Sen. Kennedy on the Religious Land Use and Institutionalized Person Act of 2000); see also Midrash Sephardi, 366 F.3d at 1226 (“The Supreme Court’s definition of ‘substantial burden’
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does not protect against “any incidental effect of a government program
which may have some tendency to coerce individuals into acting contrary to
their religious beliefs,” but rather applies only in those cases where
government puts “substantial pressure on an adherent to substantially
modify his behavior and to violate his beliefs.” Washington v. Klem, 497 F.3d
272, 279-80 (3d Cir. 2007).2
That test plainly is not satisfied here. The challenged rule requires
Plaintiffs to do but one thing: inform their issuers that they wish to exclude
contraceptive coverage from their health insurance policies. That’s it. They
must simply submit a form that exempts Plaintiffs from having to cover
contraceptives in their group health insurance. It is Plaintiffs’ issuers that
must then provide payments for contraceptive services for Plaintiffs’
employees. The delivery of payments for contraceptive services takes place
entirely outside of Plaintiffs’ business operations. Accordingly, the final rule
does not “put[] substantial pressure on” Plaintiffs to violate their belief that
within its free exercise cases is instructive in determining what Congress understood ‘substantial burden’ to mean in RLUIPA.”). Thus, references and citations to free exercise cases are instructive when interpreting the term “substantial burden” under RFRA.
2 Although Plaintiffs have a sincere religious objection to contraceptives, it does not automatically follow that their religious exercise is substantially burdened under RFRA. See, e.g., Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008) (court “accept[s] as true the factual allegations that [the plaintiff’s] beliefs are sincere and of a religious nature – but not the legal conclusion, cast as a factual allegation, that his religious exercise is substantially burdened . . . .”); Goehring v. Brophy, 94 F.3d 1294, 1299 n.5 (9th Cir. 1996) (observing that even if the government does not dispute that the plaintiffs’ beliefs were sincerely held, “it does not logically follow . . . that any governmental action at odds with these beliefs constitutes a substantial burden”), overruled on other grounds by Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1033 (9th Cir. 2007). To abandon this inquiry would “read out of RFRA the condition that only substantial burdens on the exercise of religion trigger the compelling interest requirement.” Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011) (citing Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001)).
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the use of contraception is sinful because all that is required of it is to notify their issuer that, consistent with their religious beliefs, they object to covering contraception. Id. Indeed, the rule provides Plaintiffs with an opportunity to express their opposition to contraception by informing their issuers of their objections. And certainly they are free to advocate against the contraception rule or contraceptive services in general in other ways, as well.
Courts have rejected RFRA claims where, as here, the burden on religion is nonexistent or too slight to rise to the level of “substantial.” For example, in Kaemmerling v. Lappin, the D.C. Circuit rejected a prisoner’s RFRA challenge to the Bureau of Prison’s (“BOP”) policy of extracting DNA from federal inmates’ bodily tissue. 553 F.3d at 678-80. The plaintiff did not object to the collection of tissue samples, such as hair, saliva, or skin, but only to the subsequent extraction and analysis of DNA from that tissue sample. Id. The court held that BOP’s policy did not substantially burden the plaintiff’s religious exercise because the policy did not require the plaintiff to do anything that violated his religious beliefs, though he was nonetheless offended by the general policy. Id. The court observed,
[The plaintiff] cannot identify any “exercise” which is the subject of the burden to which he objects. The extraction and storage of DNA information are entirely activities of the FBI, in which Kaemmerling plays no role and which occur after the BOP has taken his fluid or tissue sample (to which he does not object). The government’s extraction, analysis, and storage of Kaemmerling’s DNA information does not call for Kaemmerling to modify his
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religious behavior in any way—it involves no action or forbearance on his part, nor does it otherwise interfere with any religious act in which he engages. Although the government's activities with his fluid or tissue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be said to hamper his religious exercise because they do not “pressure [him] to modify his behavior and to violate his beliefs.” Id. at 679 (citing Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)). The same is true here. The final rule distinguishes between the submission of the self-certification that provides notice of Plaintiffs’ religious objection and the separate payments for contraceptive services provided by third party health insurance companies. Plaintiffs “play[] no role” in the coverage of contraceptives. Id. Payments for contraceptive services “are entirely activities” of issuers and Plaintiffs are not forced to modify their behavior in any way. Id. Similarly, in Goehring v. Brophy, students at a university objected to paying a generally applicable registration fee because it would be used to subsidize the school’s health insurance program, which covered abortion care. 94 F.3d at 1297. The court rejected the plaintiffs’ RFRA and free exercise claims, reasoning in part that the health insurance subsidy is “distributed only for those students who elect to purchase University insurance. Furthermore, the plaintiffs are not required to accept, participate in, or advocate in any manner for the provision of abortion services.” Id. at 1300; see also Seven-Sky v. Holder, 661 F.3d 1, 5 n.4 (D.C. Cir. 2011) (affirming
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district court’s holding that the ACA’s individual mandate to carry health insurance imposed only a de minimis burden on the plaintiff’s religious belief that God will provide for their health), aff’g Mead v. Holder, 766 F. Supp. 2d 16, 42 (D.D.C. 2011), abrogated on other grounds by Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012); cf. Lyng v. N.W. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988) (“incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs” do not trigger strict scrutiny). Plaintiffs’ RFRA claim is even more attenuated than that in Goehring and must therefore be rejected.
Plaintiffs are left with only one argument: Because the final rule requires them to submit a certification, which “triggers” the third party health insurance payments for the possible, eventual use of contraceptives, it substantially burdens Plaintiffs’ religious exercise. See Complaint [Doc. #1] ¶¶ 156, 176, 178, 200). In short, Plaintiffs complain that because their employees will receive affordable access to contraceptives from separate health insurance companies, the policy substantially infringes Plaintiffs’ religious beliefs. This contention merits little attention. By that same logic, the requirement that employers pay social security taxes for its employees could be said to substantially burden the religious exercise of an employer that opposes same-sex relationships because a gay or lesbian employee’s
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partner may collect those social security benefits upon the death of his or her spouse. But courts have recognized that such “abstract injur[ies]” do not amount to burdens on the free exercise of religion. Tarsney v. O’Keefe, 225 F.3d 929, 936 (8th Cir. 2000) (taxpayers lack standing to assert free exercise challenge to expenditure of state funds to cover abortion care for low-income women because they could not show an injury from the use of state funds, as the taxpayers were “not affected by the allegedly unconstitutional expenditure.”) (citing Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 223 n.13 (1974)).
A RFRA violation simply does not occur when individuals have a religious objection to requirements imposed by the government on others, or government action generally. The government action instead must substantially burden the plaintiff’s religious exercise. To hold otherwise would give “each citizen . . . an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes.” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1063 (9th Cir. 2008); see also 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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II. PLAINTIFFS CANNOT USE THEIR RELIGIOUS BELIEFS TO DENY THEIR WOMEN EMPLOYEES THE PROTECTIONS OF LAWS AIMED AT PROMOTING GENDER EQUALITY. In this case, Plaintiffs’ claims have far-reaching consequences.
Plaintiffs’ call for an exemption would affect all of Plaintiffs’ employees and
their dependents. An exemption would allow Plaintiffs to impose their beliefs
on others. Fortunately, courts have consistently reassured this country that
while the right to religious freedom is of paramount importance, it is not
absolute and does not give claimants carte blanche to impose their religion on
others, to harm others, or to deny others their rights and interests under the
law. As the Supreme Court explained more than a century ago:
[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. . . . Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. Jacobson v. Mass., 197 U.S. 11, 26 (1905) (emphasis added). This
fundamental promise that our rights and freedoms are guaranteed to all, and
cannot be infringed or violated by others, is one of the founding principles of
this country. Abiding by this principle, when debating RFRA, Congress
considered religious exemptions that would impose few, if any, burdens on
third parties. See, e.g., 139 CONG. REC. E1234-01 (daily ed. May 11, 1993)
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(statement of Rep. Benjamin L. Cardin) (citing as examples of government actions that infringe upon the free exercise of religion: the refusal to bury veterans in “veterans’ cemeteries on Saturday and Sunday even if their religious beliefs require it”; the performance of autopsies “on individuals whose religious beliefs prohibit autopsies”; and the requirement that the Amish “display fluorescent orange emblems on their horse-drawn carriages”). Congress did not contemplate that RFRA would be used to deny other people their rights or benefits.
Even in cases where the Supreme Court has exempted claimants from complying with laws that substantially burden their religious exercise, the Court has been careful to note that such exemptions did not harm others. In Sherbert v. Verner—a case that Congress cited in RFRA, 42 U.S.C.A. § 2000bb(b)(1)—the Supreme Court granted a religious exemption from a state requirement for obtaining unemployment benefits but noted that “the recognition of the appellant’s right to unemployment benefits under the state statute [does not] serve to abridge any other person’s religious liberties.” 374 U.S. 398, 409 (1963); cf. Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (“Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”); W.Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 630 (1943) (in excusing students from reciting the Pledge of Allegiance for religious reasons, noting
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that “the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so”).3
The stakes are particularly high when, as here, the religious exercise
claim conflicts directly with laws aimed at promoting equality and a religious
exemption would foster discrimination. In times of social change, institutions
have sought exemptions from civil rights laws based on religious beliefs and
courts have consistently rejected such attempts to injure others. For example,
in the 1960s, some restaurants refused to serve African-Americans claiming
religious opposition to “any integration of the races whatever.” Newman v.
Piggie Park Enters., Inc., 256 F. Supp. 941, 944 (D.S.C. 1966), aff’d in
relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967),
aff’d and modified on other grounds, 390 U.S. 400 (1968). And after the
adoption of civil rights measures, some Christian schools argued their
religion would be burdened if they were forced to prohibit race segregation,
claiming that “[c]ultural or biological mixing of the races is regarded as a
violation of God’s command.” Bob Jones Univ. v. United States, 461 U.S. 574,
583 n.6 (1983); see also Brown v. Dade Christian Schs., Inc., 556 F.2d 310,
3 Moreover, the Supreme Court has invalidated laws that granted religious exemptions under the Establishment Clause, in part because the exemptions would favor religion at the expense of third party interests. For example, in striking down a sales tax exemption for religious periodicals, the Court explained that the government cannot provide a religious exemption that “either burdens nonbeneficiaries markedly or cannot be seen as removing a significant state-imposed deterrent to the free exercise of religion.” Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 15 (1989). The Court similarly invalidated a statute requiring employers to accommodate Sabbatarians in all instances, because “the statute takes no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath.” Estate of Thornton v. Caldor, 472 U.S. 703, 709 (1985).
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311 (5th Cir. 1977) (Christian school that refused to admit African-American students claimed a “sincerely held . . . religious belief that socialization of the races would lead to racial intermarriage, and that this belief, sanctioned by the Free Exercise Clause, should prevail against private interests created by Congress.”).
As the law advanced to prohibit unequal treatment based on gender, some Christian schools also resisted requirements that they provide equal benefits to men and women. See, e.g., Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392 (4th Cir. 1990) (school officials paid married male teachers more than married female teachers because they believed the “Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.”); EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1364 (9th Cir. 1986) (school offered unequal health benefits to female employees based on similar “head of household” religious tenet).
In each of these cases, entities and individuals invoked religious freedom to try to avoid compliance with laws designed to advance equality. Each time their claims were rejected. As these cases recognized, in our cosmopolitan nation, religious freedom does not give institutions or individuals license to deny others their rights, ignore important laws, or impose their religious beliefs on their employees. See O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1159 (E.D. Mo. 2012) (“RFRA
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does not protect against the slight burden on religious exercise that arises
when one’s money circuitously flows to support the conduct of other free-
exercise-wielding individuals who hold religious beliefs that differ from one’s
own.”), stay granted pending appeal, No. 12-3357 (8th Cir. Nov. 28, 2012).
Just as courts have held that religious exercise cannot be used to deny
others equal treatment or to interfere with their rights and interests, this
Court should also hold that Plaintiffs cannot use their religious beliefs to
interfere with the rights of women to have affordable access to contraceptive
services provided by third party insurance companies. Health insurance
coverage of contraceptive care with no cost-sharing is an important step
towards promoting women’s equality. Contraceptive care is fundamental
women’s health care, and 99% of women will use it at some point in their
lifetime. Kimberly Daniels, William D. Mosher & Jo Jones, Contraceptive
Methods Women Have Ever Used: United States, 1982–2010, 62 NAT’L
HEALTH STATS. REPORTS 1, 4 (2013).4 The ability to control whether and
4 The fact that Plaintiffs object to covering some, but not all, methods of contraception does not change the analysis. For example, Plaintiffs object to including intrauterine devices (“IUDs”) and emergency contraception (“EC”) in its employees’ health insurance plans. See Doc. #1 ¶¶ 42, 61. As explained, infra, IUDs are part of a very limited class of what are known as long-acting reversible contraceptive methods, which have the highest effectiveness rate of any method of contraception other than permanent sterilization. Jeffery Peipert, Continuation and Satisfaction of Reversible Contraception, 117 OBST. & GYN’Y 1105, 1105−06 (May 2011). Yet many women do not choose IUDs because of the upfront cost. Id. at 1105. When those cost barriers are removed, however, women choose IUDs in high numbers, resulting in fewer unintended pregnancies. Jeffrey Peipert, et al., Preventing Unintended Pregnancies by Providing No-Cost Contraception, 120 OBST. & GYN’Y 1291 (Dec. 2012). Plaintiffs also object to including coverage for EC in its employees’ plans. But EC is the primary method used by a woman to prevent pregnancy after intercourse (for example, in cases of rape or contraceptive failure). See generally Off. of Population Research, Princeton Univ., What is
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when to have children has enabled women to achieve greater academic, professional, and economic success. With the advent of contraceptives, women have been able to plan their reproductive lives and futures, which has been instrumental towards achieving gender equality. “[W]omen who can successfully delay a first birth and plan the subsequent timing and spacing of their children are more likely than others to enter or stay in school and to have more opportunities for employment and for full social or political participation in their community.” Susan A. Cohen, The Broad Benefits of Investing in Sexual and Reproductive Health, 1 GUTTMACHER REPORT ON PUB. POL’Y 5, 6 (2004). With greater professional advancement women have experienced a concomitant increase in economic equality and independence. Indeed, economists have estimated that contraceptives account for “roughly one-third of the total wage gains for women in their forties born from the mid-1940s to early 1950s . . . . [and] two thirds of these Pill-induced gains . . . can be attributed to increasing labor-market experience and another third is due to greater educational attainment and occupational upgrading.” Martha J. Bailey, Brad Hershbein & Amalia R. Miller, The Opt-in Revolution? Contraception and the Gender Gap in Wages, at 26−27 Nat’l Bureau of Econ.
Emergency Contraception?, EMERGENCY CONTRACEPTION WEBSITE, available at http://ec.princeton.edu/ (last visited Nov. 5, 2013). Removing IUDs and ECs from health plans hampers women’s ability to make decisions about their reproductive lives, including the ability to select a highly effective contraception method to avoid unintended pregnancies.
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Research, Working Paper No. 17922 (2012), available at http://www.nber.org/papers/w17922 (last visited Nov. 5, 2013).
And yet the benefits of contraception cannot be fully realized so long as it remains unaffordable for millions of women. See Jennifer J. Frost, Stanley K. Henshaw & Adam Sonfield, Contraceptive Needs and Services: National and State Data, 2008 Update, GUTTMACHER INST. 3 (May 2010), available at http://www.guttmacher.org/pubs/win/contraceptive-needs-2008.pdf (last visited Nov. 5, 2013). Prior to the ACA and its implementing regulations, contraceptive care and other important preventive services that are unique to women were either excluded from health insurance coverage or had prohibitively high out-of-pocket costs, in the form of deductibles or co-pays. As the IOM noted, “[d]espite increases in private health insurance coverage of contraception since the 1990s, many women do not have insurance coverage or are in health plans in which copayments for visits and for prescriptions have increased in recent years.” CLOSING THE GAPS, supra, at 94; see also Su-Ying Liang, Daniel Grossman & Kathryn A. Phillips, Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006, 83 CONTRACEPTION 528, 531 (June 2010) (finding that contraceptive co-pays can be so expensive that women can pay almost as much out-of-pocket as they would without coverage at all). These cost barriers are aggravated by the fact that women “typically earn less than
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men and . . . disproportionately have low incomes.” CLOSING THE GAPS, supra, at 18.
The costs associated with this healthcare also affect contraceptive choice, driving women to less expensive and less effective methods of contraception. See Peipert, 117 OBST. & GYN’Y at 1105-06 (reporting that many women do not choose long-lasting contraceptive methods, such as intrauterine devices (“IUDs”), because of the high upfront cost); Peipert, et al., 120 OBST. & GYN’Y at 1293 (showing that when women are provided contraceptives of their choice at no cost, more women choose highly effective, long-lasting contraceptive methods, such as IUDs, which are significantly more effective than alternative, less expensive methods). The contraception rule removes this cost barrier and ensures that women with health insurance are guaranteed affordable access to the most effective contraceptives that suit their medical needs.
Moreover, the contraception rule contributes to the federal government’s goal of dismantling outmoded sex stereotypes. It offers women the tools to decide whether and when to become mothers and thus remedies the notion once endorsed by the government that “a woman is, and should remain the ‘center of home and family life.’” Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721, 729 (2003) (quoting Hoyt v. Florida, 368 U.S. 57, 62 (1961)). In recent decades, Congress and the courts have made
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significant progress on furthering women’s equality. For example, in passing the Family Medical Leave Act (“FMLA”), Congress found that “denial or curtailment of women’s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second” and sought to disrupt that stereotype by requiring employers to give all employees—male and female—guaranteed leave to tend to family and medical needs. See Hibbs, 538 U.S. at 736 (quoting legislative history of FMLA).
However, more work toward full equality is still needed. The contraception rule marks an important step toward allowing women to participate equally in society. To permit Plaintiffs to prevent third party health insurance companies from providing payments for contraceptive services for Plaintiffs’ employees would undermine this important interest and allow them to discriminate against their women employees, contrary to a long line of cases. Plaintiffs’ attempt to use the right to religious freedom as a sword, not a shield, must be rejected.
CONCLUSION For the foregoing reasons, Plaintiffs’ motion for preliminary injunction should be denied, and Defendants’ motion to dismiss or, in the alternative, for summary judgment should be granted.
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Dated: December 19, 2013

AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA FOUNDATION
/s/ Brady R. Henderson Brady R. Henderson (Bar No: 21212) Ryan D. Kiesel 3000 Paseo Drive Oklahoma City, OK 73103 Tel: (405) 524-8511 Fax: (405) 524-2296 Email: bhenderson@acluok.org
AMERICAN CIVIL LIBERTIES UNION FOUNDATION Jennifer Lee* Brigitte Amiri* 125 Broad Street, 18th Floor New York, New York 10004 Tel: (212) 549-2601 Fax: (212) 549-2650 Email: jlee@aclu.org Email: bamiri@aclu.org
Daniel Mach* 915 15th Street, 6th Floor Washington, DC 20005 Tel: (202) 548-6604 Fax: (202) 546-0738 Email: dmach@aclu.org
* Pro hac vice application pending.
Counsel for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Oklahoma

23

Case 5:13-cv-01015-F Document 33 Filed 12/19/13 Page 30 of 33 CERTIFICATE OF SERVICE
I hereby certify that on December 19, 2013, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None.
s/ Brady R. Henderson Brady R. Henderson
24

Case 5:13-cv-01015-F Document 33 Filed 12/19/13 Page 31 of 33
Exhibit A

Case 5:13-cv-01015-F Document 33 Filed 12/19/13 Page 32 of 33
CERTIFICATION (To be used for plan years beginning on or after January 1, 2014)
This form is to be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, and 45 CFR 147.131.
Please fill out this form completely. This form must be completed by each eligible organization by the first day of the first plan year beginning on or after January 1, 2014, with respect to which the accommodation is to apply, and be made available for examination upon request. This form must be maintained on file for at least 6 years following the end of the last applicable plan year.
Name of the organization
Name and title of the individual who is authorized to make, and makes, this certification on behalf of the organization Mailing and email addresses and phone number for the individual listed above
I certify that, on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.
Note: An organization that offers coverage through the same group health plan as a religious employer (as defined in 45 CFR 147.131(a)) and/or an eligible organization (as defined in 26 CFR 54.9815-2713A(a); 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)), and that is part of the same controlled group of corporations as, or under common control with, such employer and/or organization (each within the meaning of section 52(a) or (b) of the Internal Revenue Code), may certify that it holds itself out as a religious organization.
I declare that I have made this certification, and that, to the best of my knowledge and belief, it is true and correct. I also declare that this certification is complete.
______________________________________ Signature of the individual listed above
______________________________________ Date

Case 5:13-cv-01015-F Document 33 Filed 12/19/13 Page 33 of 33
The organization or its plan must provide a copy of this certification to the plan’s health insurance issuer(s) (for insured health plans) or third party administrator(s) (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.
Notice to Third Party Administrators of Self-Insured Health Plans
In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a plan’s third party administrator that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.715-2713(a)(1)(iv) constitutes notice to the third party administrator that:
(1) The eligible organization will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and
(2) Obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A.
This certification is an instrument under which the plan is operated.
PRA Disclosure Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 0938-XXXX. The time required to complete this information collection is estimated to average 50 minutes per response, including the time to review instructions, search existing data resources, gather the data needed, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: CMS, 7500 Security Boulevard, Attn: PRA Reports Clearance Officer, Mail Stop C4-26-05, Baltimore, Maryland 21244-1850.

 
 Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) SOUTHERN NAZARENE

)

UNIVERSITY; (2) OKLAHOMA

)

WESLEYAN UNIVERSITY; (3)

)

OKLAHOMA BAPTIST UNIVERSITY; and )

(4) MID-AMERICA CHRISTIAN

)

UNIVERSITY,

)

)

Plaintiffs,

)

)

v.

)

)

(1) KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the United States

)

Department of Health and Human Services; )

(2) THOMAS E. PEREZ, in his official

)

capacity as Secretary of the United States

)

Department of Labor; (3) JACOB J. LEW, in )

his official capacity as Secretary of the United )

States Department of the Treasury; (4)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES; (5) )

UNITED STATES DEPARTMENT OF

)

LABOR; and (6) UNITED STATES

)

DEPARTMENT OF THE TREASURY,

)

)

Defendants.

)

)

Case No. 5:13-cv-01015-F

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

The Plaintiff Universities hereby submit this reply in support of their motion for preliminary injunction, and state as follows:
I. THE MANDATE SUBSTANTIALY BURDENS THE UNIVERSITIES’ RELIGIOUS EXERCISE AND THUS VIOLATES RFRA. In their opposition to the Universities’ motion for preliminary injunction,
Defendants contend that the Mandate does not substantially burden the schools’ religious
1

Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 2 of 12
exercise. Defs.’ Br. at 20-27. The Tenth Circuit’s en ba nc decision in Hobby Lobby Stores, Inc. v. Sebelius dictates that a law “substantia lly burdens” a person’ s religious exercise when it “has applied substantial pre ssure on the claim ant to violate [a sincere religious] belief.” 723 F.3d 1114, 1137 ( 10th Cir. 2013) (en banc). The Mandate undeniably forces the Univers ities to choose between (a) viol ating their sincere religious beliefs against facilitating access to abortifaci ents; and (b) facing crippling financial penalties. Under Hobby Lobby, there can be no ot her conclusion than the Mandate substantially burdens the Universities’ religious exercise.
Defendants understandably attempt to escape Hobby Lobby’s clear teaching. If the “substantial burden” test truly involves nothi ng more than assessing “the intensity of the coercion applied by the government to act contrary to [one’s religious] beliefs” (assuming sincerity), id., the Governm ent cannot win. But this is precisely what Hobby Lobby teaches.
Defendants claim that Hobby Lobby is essentially irrelevant to the “substantial burden” analysis in the instant case becau se the so-called “accomm odation” is available to the Universities. Defs.’ Br. at 21, 26- 27. To be sure, th e availability of the accommodation to the Universities presents them with a sligh tly different moral analysis than Hobby Lobby S tores and Mardel Stor es faced. But slightly changing the moral inquiry hardly means that the legal test for “substantial burden” should somehow change. Hobby Lobby, Mardel, and the Universities have all conclude d that the Mandate forces them to facilitate access to a bortifacients in violation of their religious convictions. The manner and mechanism through which that “facilitation” occurs may be slightly different, but that matters not. All are “substantially burdened” by t he Mandate, because all are being substantially pressured to violate their beliefs.
In Hobby Lobby, the Government unsuccessfully argued that the plaintiffs needed to show something more than “substantial pressure.” 723 F .3d at 1137. There, Defendants essentially c ontended that the Mandate did not subs tantially burden the
2

Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 3 of 12
plaintiffs’ religious exercise because “‘[a ]n employees’ decision to use her health coverage to pay for a particular item or se rvice cannot properly be attributed to her employer.’” Id. (quoting government’s brief). Put differently, Defendants argued that the burden on religious exercise was “too attenuated” to be “substantial” under RFRA.
Of course, this is precisely the sa me argument Defendants make in their opposition to the Universities’ motion for preliminary injunction. Defs.’ Br. at 27 (“[t]he challenged regulations also do not im pose a substantial burden on plaintiffs’ religious exercise because any burden is indirect and too attenuated to be substantial”). The Tenth Circuit unambiguously rejected this argumen t: “[t]his position is fundamentally flawed because it advances an understanding of ‘sub stantial burden’ that presumes ‘substantial’ requires an inquir y into the theological m erit of the belief in question rather than the intensity of the coercion applied by the government to act contrary to those beliefs.” 723 F.3d at 1137 (emphasis in original).
Multiple other courts adjudi cating HHS Mandate cases ha ve rejected Defendants’ “attenuation” argument in its various forms. In Gilardi v. U.S. Dep’t of Health & Human Servs., 733 F.3d 1208 (D.C. Cir. 2013), for exam ple, the D.C. Circuit rejected the government’s argument that the i nterposition of the corporate form between the Gilardis and their employees rendered the Gilardis’ participation “too remote and too attenuated” to constitute a substantial burden. Id. at 1217. As the D.C. Circ uit explained, “‘[c]ourts are not arbiters of scriptural interpretation,’” id. at 1216 (quoting Thomas v. Review Bd. , 450 U.S. at 716); thus, “[w]hen even attenuated participation may be construed as a sin, it is not for courts to decide that the corporate veil severs the owner’s moral responsibility.” Id. at 1215 (citation omitted).
The district court in Zubik v. Sebelius , 2013 W L 6118696 (W. D. Pa. Nov. 21, 2013), similarly rejected the government’s argument:
In sum, although the “accommodation” legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides
3

Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 4 of 12
contraceptive products, serv ices, and counseling, the “accommodation” requires them to shift the responsi bility of purchasing insurance and providing contraceptive products, services, and counseling, onto a secular s ource. The Court concludes that Plaintiffs have a sincerely-held belief that “shifting res ponsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs. Id. at *25.
The decision in Roman Catholic Archdiocese of New York v. Sebelius , 2013 WL
6579764 (E.D.N.Y. Dec. 16, 2013), is in accord:
The Government’s argument that any burden placed on plaintiffs is too “attenuated” to be substantial is similarly flawed. Defendants argue that plaintiffs’ self-certification would only result in the use of contraception after a series of i ndependent decisions by plaintiffs’ employees. Although factually accu rate, this argument rests on a misunderstanding (or mischaracterization) of plaintiff s’ religious objection. Plaintiffs’ religious obj ection is not onl y to the use of contraceptives, but also to being re quired to actively participate in a scheme to provide such services. The Government feels that th e accommodation sufficiently insulates plaintiffs from the objectionable services, but plaintiffs disagree. A gain, it is not the Court’s role to say that plaintif fs are wrong about their religious beliefs. Id. at *14 ( citing, inter alia, Hobby Lobby, 723 F. 3d at 1142). (ci tations omitted). See
also Korte, 735 F.3d at 684; Hobby Lobby, 723 F.3d at 1154 (“Whether an act of
complicity is or isn 't ‘too attenuated’ from the underlying wrong is sometimes itself a
matter of faith we must respect. Thomas and Lee teach no less.”) (Gorsuch, J.,
concurring); Geneva Coll., 2013 WL 3071481, at *9; Grote v. Sebelius , 708 F.3d 850,
854-55 (7th Cir. 2013); Beckwith Elec. Co. v. Sebelius , 2013 WL 3297498, at *15-16
(M.D. Fla. June 25, 2013); Geneva Coll. v. Sebelius, 941 F. Supp. 2d 672, 681-83 ( W.D.
Pa. 2013).
Defendants assert that the Mandate’s burden on the Universities’ religious exercise
is insubstantial because all that they allegedly need to do is complete the self-
4

Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 5 of 12
certification, a purely administ rative task “which s hould take plaintiffs a matter o f minutes.” Defs.’ Br. at 27 (effort require d to complete the fo rm “is, a t most, de minimis”).
Two district courts have squarely rejected Defendants’ argument. In Zubik v. Sebelius, “[t]he Government acknowledge[d] that the act of self-certification will require the Plaintiff-entities to sign the self-certifica tion and supply a third party with the names of the Plaintiffs’ respective emp loyees so th at the third-party m ay provide (and/or pay for) contraceptive products, services, and co unseling.” 2013 WL 6118696, at *24. Defendants conceded that the plaintiffs th ere, like the Universities here, sincerely believed that life is sacred from the moment of conception and tha t “the facilitation of evil is as morally odious as the proliferation of evil.” Id. “Given these concessions,” the Zubik court “disagree[d] with the Government that Plaintiffs’ ab ility or inability to ‘merely sign a piece of paper,’ and thus com port with the ‘accommodation,’ is all that is at issue here.” Id. In other words, the question is not whet her executing the selfcertification is time-cons uming or expensiv e, but rather whether Defendants are substantially pressuring religious employers like the Universities to violate their religious convictions. Without question, they are.1
Similarly, in Roman Catholic Archdiocese of New York, the court held the Defendants’ argument “finds no support in the case law.” 2013 W L 6579764, at *13. It declared, “where a law places substantial pre ssure on a plaintiff to perform affirmative acts contrary to his religion, the Supreme Court has found a substantial burden wit hout analyzing whether those acts are de minimis.” Id. (citing United States v. Lee , 455 U.S. 252 (1982), and Yoder, 406 U.S. 205). The court also concluded that t he Government
1 In Priests for Life v. United States Depa rtment of H ealth and Human Services , the plaintiffs there had no religious objection to completing the self-certification. Civ. No. 13-1261, ECF No. 36, Slip Op. at 3- 4 (D.D.C. Dec. 19, 2013 ). Of course, the Universities do hold that completing the self-certification would transgress their religious obligations.
5

Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 6 of 12

had failed to explain how its proposed test w ould work: “beyond its repeated insistence that this is an ‘objective’ inquiry, the Government provides no framework for how a court could determine whether an act that concededly violates a pl aintiff’s religious beliefs is actually only ‘de minimis.’” Id. at 24-25. As the Te nth Circuit stated in Hobby Lobby, “the question here is not w hether the reasonable observer wo uld consider the plaintiffs complicit in an immoral act, but rather how the plaintiffs themselves measure their degree of complicity.” 723 F.3d at 1142.
The court also highlighted the constitu tional difficulties with Defendants’ proposed approach:

Inquiring into the relative imp ortance of a particular act to a

particular plaintiff would necessarily place the court in the

unacceptable ‘business of evaluating the relative merits of differing

religious claims. Lee, 455 U.S. at 263 n. 2 ( Stevens, J. concurring).

There is no way that a court can, or should, determine that a coerced

violation of conscience is of insufficient qua

ntum to merit

constitutional protection.

Roman Catholic Archdiocese, at *13.

The government’s reading of RFRA—that a substantial burden exists only where

the government requires the claim ant to e ngage in “significant” conduct—is plainly

contrary to the statutory text. RFRA protects “any exercise of religion, whether or not

compelled by, or ce ntral to, a system of re ligious belief.” 42 U. S.C. §§ 2000bb-2( 4),

2000cc-5(7)(A) (emphasis added). RFR A contains no requirem ent that the actions

required of claim ants be “si gnificant” or “substantial.” Id. Here, because th e

Universities’ refusal to facilitate access to a bortifacients clearly involves the religiously-

motivated “performance of (or abstention from) physical acts,” Employment Div. v.

Smith, 494 U.S. 872, 877 (1990), it is a protecte d exercise of religion for purposes of

RFRA.

Defendants argue t hat this under standing of RFRA deprives the statutory w ord

“substantial” of any significance. Defs.’ Br. at 23-25. As is plain from the statutory text,

6

Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 7 of 12
however, “substantial[]” refers not to the type of actions required of plaintiffs— i.e., their religious exercise—but rather the type of pressure imposed by the government —i.e., the burden. 42 U.S.C. § 2000bb- 1 (“Government shall not substantially bur den a person’s exercise of religion.”). It requires courts to assess the pressure the government exerts on a plaintiff to violate his religious beliefs, not the nature of the religious exercise.
Thus, in e valuating whether government action imposes a substantial bur den on religious exercise, the Supreme Court has c onsistently evaluated the magnitude of the coercion employed by the gove rnment, rather than the “significance” of the actions required of plaintiffs. For example, in Sherbert v. Verner, 374 U.S. 398 (1963), the Court did not consider whe ther the inconvenience to the Seventh- day Adventist plaintiff of working on Saturday was “de minimis.” Defs.’ Br. at 27. Instead, the Court accepted her representation that she could not wor k on Saturday and assessed whet her the resulting denial of unem ployment benefits coerced her to abandon this religious exercise, ultimately concluding that the “pressure upon her to for[]go [her] practice [of abstaining from work on Saturday] ” was tantam ount to “a fine imposed against [her] for her Saturday worship.” See Sherbert, 374 U.S. at 404.
Likewise, in Thomas, the Court did not ask w hether Thomas’ transfer from a factory making sheet steel to a factory that used the sheet metal for producing tank turrets caused increased expenditures time or effort. Rather, the Court evaluated the “coercive impact” of the state’s refusal to award Thomas unemployment benefits when his pacifist convictions prevented him from accepting the transfer, concluding that the denial “put[] substantial pressure” on him “to violate his beliefs.” 450 U.S. at 717–18. D efendants’ attempt here to focus on how much time or effort is involv ed in the self-certification process misses the proper anal ytical point. Th e burden is the im pact to the indi vidual’s religious beliefs by becoming a participant in the delivery of abortifacients.
Defendants’ reading of RF RA also impermissibly “cast[s] the Judiciary in a r ole that [it was] never intended to play.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485
7

Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 8 of 12
U.S. 439, 458 (1988). Rather than evaluating whether the pressure placed on the College to violate its beliefs is “substantial,” De fendants would have this Cour t determine whether compliance with the Mandate is a “subs tantial” violation of Plaintiffs’ religious beliefs. While the former analys is involves an exercise of legal judgment, the latter involves an inherently religious inquiry. But the judici ary has no com petence to determine the significance of a particular religi ous act; “[i]t is not within the judicial ken to question the centrality of particular . . . practices to a faith.” Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). Rath er, it is left to plaintiffs to “dr[a]w a line” regarding the actions their religion deems permissible, and once that line is drawn, “it is not for [courts] to say [it is] unreasonable.” Thomas, 450 U.S. at 715.
Indeed, the impropriety—not to mention the impossibility—of courts determining whether an exercise of religion is significa nt or m eaningful is self-evident. O n Defendants’ theory, a court c ould compel a Quaker to swear, rath er than affirm, the veracity of his testimony on the theory that the change in verbia ge is a “de minimis” act. Defs.’ Br. at 27. An Orthodox Jew could be forced to flip a light switch on the Sabbath because such action “require[s] [h im] to do next to nothing.” Id. at 22. No “principle of law or logi c” equips a court to decide the significance or “meaning[]” of these acts. Smith, 494 U.S. at 887. What may be “no big deal” to the government may be a very big deal to a believer.
Defendants also contend that a law or regu lation’s burden on religious exercise is “substantial” for RFRA purposes only if the regulation pressures claim ants to “m odify their behavior.” Defs.’ Br. at 22. And they claim that the Ma ndate does not require the Universities to change their co nduct. Th ey declare that the schools end up doing essentially the same thing after the Mandate as it did before—telling its issuer that it does not wish to cover abortifacients. Defs.’ Br. at 22.
Yet, the Mandate does require the Universities to modify their behavior. Defendants’ theory—that the schools’ pre- and post-Mandate communications with their
8

Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 9 of 12
insurers/TPAs are “the same”—works only if the intended an d foreseeable consequences of actions are irrelevant in assessing w hether they are the same or different. This is a remarkable contention. Defendants are essentially arguing that the moral significance of an act is completely detached from the cons equences of that act. To Def endants, it matters not that the consequence of the Un iversities’ prior practices (telling their insurers/TPAs not to provide abortifacients) was members of their communities not obtaining access to life-destr oying drugs and devices , whereas the consequence of executing the self-certification is exactly the opposite. To contend that these two actions are the same, particularly when the claim is that the coerced conduct violates conscience, is astonishing.2 That the two actions might be said, in a willfully truncated assessment of their significance, to bear some superficial resemblance hardly means that Defenda nts have not coerced the Universities into “modifying their behavior.”
It is unsurprising that courts addressing this contention have summarily rejected it. In Zubik, the court embraced an analogy offered by the plaintiffs there:
Plaintiffs liken this result by an alogy to a neighbor who asks to borrow a knife to cut something on the barb ecue grill, and the request is easily granted. The next day, the same neighbor requests a knife to kill someone, and the request is refused. It is the reason the neighbor requests the knife which makes it impossible for the lender to provide it on the second day. 2013 WL 6118696, at *25. The Zubik court thus held that th e Mandate, even with the “accommodation,” “still substantially burdens [the plaintiffs’] sincer ely-held religious beliefs.” Id.
2 In the New Testament, Jesus and His followers often greeted one another with a kiss, as was the custom at the time. See, e.g., Rom. 16:16. It is reasonable to assum e that, at some point, Judas Iscariot greeted Jesus with such a kiss. Later, of course, Judas betrayed Jesus with a kiss, id entifying for the armed crowd sent by the chief priests and the elders of the people th e man they ought to arrest. Matt. 26:47-50. Could one plausibly contend that these tw o superficially identical acts bore the same moral significance?
9

Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 10 of 12
In Roman Catholic Archdiocese of New York, the court deemed “unpersuasive” the Government’s argument that the Mandate, w ith the accommodation, required no change in the plaintiffs’ conduct. 2103 WL 6579764, at *14. Th e court held that even i f Defendants were correct that the Mandate did not require the plainti ffs to modify their behavior,
the self-certification would still transform a voluntary act that plaintiffs believe to be consistent with the religious beliefs into a compelled act that they believe forbidden. Clearly, pl aintiffs view the latter as having vastly differe nt religious significance than the former. The Court cannot say that “the line [plaintiffs] drew was an unreasonable one.” Id. at 27 (footnote omitted) (quoting Thomas, 450 U.S. at 715). See also Geneva Coll. v. Sebelius, 2013 WL 3071481 (W.D. Pa. June 18, 2013) (h olding that then-proposed accommodation would not remove Mandate’s substantial burden on religious exercise). Because the Mandate substan tially burdens the Un iversities’ religious exercise, it is subject to strict scrutiny. As Defend ants concede, the Tent h Circuit has already determined that the Mandate fails that scruti ny. Accordingly, the Universities are likely to succeed on the merits of their RFRA cl aim. The remaining preliminary injunction factors warrant the entry of relief. See Hobby L obby Stores v. Sebelius , 2013 WL 3869832, at *1 (W .D. Okla. July 19, 2013) (on remand from en banc Tenth Circuit decision).
CONCLUSION For the foregoing reasons, th e Universities resp ectfully request that this Court grant their motion for preliminary injunction.
Respectfully submitted this 20th day of December, 2013.
s/ Gregory S. Baylor
10

Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 11 of 12
Gregory S. Baylor (Texas Bar No. 01941500) Matthew S. Bowman* (DC Bar No. 993261) ALLIANCE DEFENDING FREEDOM 801 G Street, NW, Suite 509 Washington, DC 20001 (202) 393-8690 (202) 347-3622 (facsimile) gbaylor@alliancedefendingfreedom.org mbowman@alliancedefendingfreedom.org
David A. Cortman* (Georgia Bar No. 188810) ALLIANCE DEFENDING FREEDOM 1000 Hurricane Shoals Road, NE, Suite D-1100 Lawrenceville, GA 30043 (770) 339-0774 (770) 339-6744 (facsimile) dcortman@alliancedefendingfreedom.org
Kevin H. Theriot* (Kansas Bar No. 21565) ALLIANCE DEFENDING FREEDOM 15192 Rosewood Leawood, KS 66224 (913) 685-8000 (913) 685-8001 (facsimile) ktheriot@alliancedefendingfreedom.org
John Paul Jordan (Oklahoma Bar No. 22613) THE JORDAN LAW FIRM 1703 Professional Circle, Suite 501-A Yukon, OK 73099 (405) 222-8721 (877) 335-5521 (facsimile) jp@jpjordanlaw.com
Attorneys for Plaintiffs
*Motions for pro hac vice admission to be filed.
11

Case 5:13-cv-01015-F Document 38 Filed 12/20/13 Page 12 of 12
CERTIFICATE OF SERVICE I hereby certify that on December 20, 2013, I electronically fil ed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record.
s/ Gregory S. Baylor
12

 
 Case 5:13-cv-01015-F Document 45 Filed 12/23/13 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

SOUTHERN NAZARENE

)

UNIVERSITY; OKLAHOMA

)

WESLEYAN UNIVERSITY;

)

OKLAHOMA BAPTIST

)

UNIVERSITY; and MID-AMERICA )

UNIVERSITY,

)

)

Plaintiffs,

)

)

-vs-

)

)

KATHLEEN SEBELIUS, in her

)

official capacity as Secretary of the

)

United States Department of Health )

and Human Services, et al.,

)

)

Defendants.

)

Case No. CIV-13-1015-F

MEMORANDUM OPINION AND ORDER
The plaintiffs, Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and Mid-America University, have brought this action against Kathleen Sebelius, Secretary of the United States Department of Health and Human Services (“HHS”), and other government officials and agencies, challenging regulations issued under the Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (2010), as am ended by the Heath Care and Education Reconciliation Act, Publ. L . No. 111-152, 124 Sta t. 1029 (2010) (“AC A”). T he matter is now before the court on plaintiffs’ motion for a preliminary injunction. Doc. no. 19, filed on Novem ber 27, 2013 (Motio n). Defendants have responded to the motion. Doc. no. 25. Although the complaint asserts both constitutional and statutory

Case 5:13-cv-01015-F Document 45 Filed 12/23/13 Page 2 of 22
violations, the Motion invokes only the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb et seq. I. Facts
The parties, at the invitation of the court, have entered into a stipulation as to the facts to be considered by the cour t for purposes of ruling on the m otion for preliminary injunction. Doc. no. 43, filde on December 21, 2013 (herein: Stipulation).
The stipulated facts, which form the factual basis for the court’s analysis and conclusions, are as follows:
1. Plaintiffs Southern Nazarene University (SNU), Oklahoma Wesleyan University (OKWU), Oklahom a Baptist Un iversity (OBU), and Mid-America Christian University (MACU) (collectively, “the Universities”) are Christ-centered institutions of higher learning.
2. The Universities hold, as a matter of sincere religious conviction, that it would be sinful and immoral for them to participate in, pay for, facilitate, enable, or otherwise support access to Plan B, ella, and IUDs, and related counseling.
3. The Universities believe that Plan B, ella, and IUDs can and sometimes do act abortifaciently by preventing implantation after fertilization.
4. They hold that one of the prohibitions of the Ten Comandments (“thou shalt not murder”) precludes them from facilitating, assisting in, or enabling the use of drugs or devices that they believe destroy very young human beings in the womb.
5. The Universities believe that theirreligious duties include promoting the physical well-being and health of their employees by providing themhealth insurance coverage.
6. OBU and SNU believe that their religious duties include promoting the physical well-being and health of their employees by offering them health insurance
2

Case 5:13-cv-01015-F Document 45 Filed 12/23/13 Page 3 of 22
coverage. 7. SNU has approximately 505 employees, of which approximately 315 are
full-time. 8. Approximately 253 SNU em ployees are enrolled in health insurance
plans sponsored by the University. Approximately 249 dependents of employees are covered. The plans thus cover approximately 502 individuals.
9. SNU offers coverage through BlueCross BlueShield of Oklahoma. SNU offers beneficiaries two choices: “BlueChoice PPO – SNU Choice” and “Blue Choice PPO – SNU Premier.”
10. SNU’s health plan is partially sefl-insured. The university has contracted with an outside insurance company to pay all claims over $100,000.
11. The plan year for SNU’s employee health insurance coverage begins on July 1 of each year.
12. SNU’s employee health plans cover a variety of contraceptive methods. However, consistent with its religious commitments, SNU’s contract for employee health coverage states that all drugs and dveices that act after fertilization has occurred are excluded.
13. All SNU students enrolled in nine housror more of classroominstruction are required to have health insurance.
14. SNU offers a health plan to those students who do not have health insurance coverage of their own.
15. The student plan excludes ella, Plan B, and IUDs. 16. The next student plan year begins on August 21, 2014. 17. Oklahoma Wesleyan University has approximately 557 employees, and about 112 of them are full-time.
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18. OKWU provides two plans insured by Community Care of Oklahoma. One is an HMO benefit plan and the other is a PPO benefit plan.
19. Ninety-three employees are enrolledin the group health plans sponsored by OKWU. An additional 128 of these employees’ dependents are covered, meaning that 221 individuals are covered by OKWU’s group health plans.
20. Consistent with its religious com mitments, the University’s current contracts for employee health coverage exclude IUDs and emergency contraception.
21. The OKWU employee health plans do cover a variety of contraceptive methods.
22. The plan year for Oklahom a Wesleyan University’s employee health insurance coverage begins on July 1 of each year.
23. OBU has approximately 328 employees, of whom about 269 are full time.
24. OBU provides eligible employees a PPO health plan with the choice of two networks provided by Blue Cross Blue Shield of Oklahoma.
25. Approximately 279 employees are covered by the plans. Approximately 696 dependents of employees are covered by the plans, bringing total coverage to 975 individuals.
26. Plan years for OBU’s employee health plans begin on January 1 of each year.
27. The current OBU employee health plan excludes coverage of Plan B, ella, and IUDs.
28. All undergraduate and gr aduate students taking nine or more credit hours’ worth of classes are eligible to enroll in a health plan facilitated by OBU.
29. The current OBU student health pl an does not cover Plan B, ella, or
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IUDs. Case 30. A new OBU student plan is schedul ed to go into effect on January 1,
2014. 31. MACU has approximately 298 employees, of whom about 139 are full
time. 32. MACU’s employee health plans cover approximately 100 employees. 33. The plan covers approximately 116 dependents of these employees. 34. MACU offers two traditional PPOplans: Health Choice 1000 and Health
Choice 2000, both provided by GuideStone. 35. The plan year for MACU’s employee health plan begins on January 1. 36. MACU’s employee health plan does not cover Plan B, ella, or IUDs. 37. Prior to the promulgation of the challenged regulations, the Universities
contracted with their health insurance i ssuers and third party adm inistrators not to provide or pay for the coverage to which the Universities object.
38. In March 2010, Congre ss passed, and President Obam a signed, the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (March 23, 2010), and the Health Care and Education Reconcilitaion Act, Pub. L. No. 11-152 (March 30, 2010), together known as the “Affordable Care Act” (ACA).
39. One ACA provision requires that any “group health plan” or “health insurance issuer offering group or indivi dual health insurance coverage” provide coverage for certain preventive care service,sincluding “[for]women, such additional preventive care and screenings . . . as provided for in com prehensive guidelines supported by the Health Resources and Serivces Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a).
40. These services must be covered without “any cost sharing.” 42 U.S.C.
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§ 300gg-13(a). 41. Because there were no such existing HRS A guidelines relating to
preventive care and screening for wom en, the Departm ent of Health and Hum an Services (HHS) requested that the In stitute of Med icine (IOM) develop recommendations to implem ent the requi rement to provide coverage, without cost-sharing, of preventive services for women.
42. After conducting a review, IOM recommended that women’s preventive services include, among other things,“the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.”
43. On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exem ption relating to certain religio us employers authorized by regulations issued that same day.
44. Plan B, ella, an d IUDs fall w ithin the category of “FDA-approved contraceptive methods.”
45. Defendants exempted certain religious employers from the regulations. 46. The Universities are not eligible for this exemption. 47. Defendants created a “Tem porary Enforcement Safe Harbor” for religious organizations ineligible for the religious exemption. 48. The Universities were eligible for,and took advantage of, the Temporary Enforcement Safe Harbor. 49. The Temporary Enforcement Safe Harbor expires beginning January 1, 2014. More specifically, the Safe Harbor isno longer available at the beginning of the first plan year on or after January 1, 2014. 50. The Safe Harbor is thus not available to OBU and MACU with respect
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to the employee and student plan years that begin on January 1, 2014. 51. The Safe Harbor will no longer be available to SNU and OKWU with
respect to its employee and student plan years that begin on July 1, 2014. 52. Defendants promulgated regulations that provide for accommodations for
certain organizations not eligible for the exemption that have a religious objection to including some or all “FDA-approved contraceptive methods” and related counseling in their employee and/or student health insurance plans.
53. A non-exempt religious organization is eligible for an accommodation if it satisfies the following requirements: (a) it opposes providing coverage of some or all of any contraceptive services re quired to be covered under the applicable regulations on account of religious objections ; (b) it is organized and operates as a nonprofit entity; (c) it holds itself out as a religious organization; and (d) it self-certifies, in a formand manner specified by the Secretaries of Health and Human Services and Labor, that it satisfies th e three preceding crite ria and makes such self-certification available for examination upon request.
54. Under the regulations, a group healthplan established or maintained by an organization eligible for an accommodation (“eligibleorganization”) that provides benefits on a self-insured bassi complies with the requirement to provide contraceptive coverage if (a) the organization or its plan contracts with one or m ore third party administrators; and (b) the organization provides each third party administrator that will process claims for any contraceptive services that must be covered with a copy of a “self-certification.”
55. Under the regulations, a group health plan established or maintained by an eligible organization that provides be nefits on a self-insured basis m ust not, directly or indirectly, seek to interfere with a third party administrator’s arrangements
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to provide or arrange separa te payments for some or a ll contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator’s decision to make such arrangements.
56. Under the regulations, if a third paryt administrator receives a copy of the self-certification, and agrees to enter intoor remain in a contractual relationship with the eligible organization or its plan to provdie administrative services for the plan, the third party administrator shall provide orarrange payments forcontraceptive services.
57. Under the regulations, a group health plan established or maintained by an eligible organization that provides benefits through one or more group health insurance issuers complies with the requirement to provide contraceptive coverage if the eligible organization or group health planfurnishes a copy of the self-certification to each issuer that would otherwise provide such coverage in connect ion with the group health plan.
58. A group health insurance iss uer that receives a copy of the self-certification must (a) expressly exclude contraceptive coverage from the group health insurance coverage provided in c onnection with the group health plan; (b) provide separate payments for any required con traceptive services for plan participants and beneficiaries for so long as they remain enrolled in the plan.
59. For each plan year with respect towhich the accommodation is in effect, a third party adm inistrator or issuer requi red to provide or arrange paym ents for contraceptive services must provide to plan participants and beneficiaries written notice of the av ailability of separate payments for contraceptive services contemporaneous with (to the extent possi ble), but separate from , any application materials distributed in connection with enrollment (or re-enrollment) in group health coverage that is effective beginning on the first day of each applicable plan year.
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60. The notice must specify that the leigible organization does not administer or fund contrac eptive benefits, but that the third party administrator or i ssuer, as applicable, provides separate payments for contraceptive services, and must provide contact information for questions and complaints.
61. The regulations prohibit an issuer or third party adm inistrator from passing the costs of the separate payments for contraceptiveservices on to the eligible organization, its group health plan, or plan participants or beneficiaries.
62. The Universities m ust choose am ong four options: (a) provide the coverage to which they object; (b) violate the regulations and incur penalties of $100 per day for each affected individual; (c) di scontinue all heal th plan coverage for employees and/or students; or (d) selfc-ertify that they qualify for the accommodation and provide that self-certification to their third party administrators or issuers.
63. If the Universities discontinue healthplan coverage for employees, they would be subject to an annual penalty of$2,000 per full-time employee, after the first 30 employees.
64. The Universities believe that, within the operation of the regulations, completing and delivering th e self-certification to their issuers or third party administrators would violate the Universities’ sincere religious beliefs.
65. The Universities believe that providing em ployee or student health insurance that includes coverage for Plan B, ella, and/or IUDs would violate the Universities’ sincere religious beliefs.
66. The Universities’ missions include promoting the spiritual maturity of members of their respective communities by fostering obedience to and love for what they understand to be God’s laws, includingHis restrictions on the unjustified taking of innocent human life.
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67. The Universities believe that sinful behavior adversely affects their relationships with God.
68. Christian conviction, including re spect for and dignity and worth of human life from the m oment of conception, is a qualification for entry into and participation in the Universities’ communities. II. Jurisdiction and Standing
Defendants responded to the Motion with a motion to dismiss, combined with a memorandum in opposition to the Motion. Doc. nos. 25 and 26, filed on December 17, 2013. The motion to dismiss is filed under Rules 12(b)(1) and (6), Fed.R.Civ.P. The motion to dismiss under Rule 12(b)(1) is apparently directed only to plaintiffs’ claim that certain regulations were not promulgated in com pliance with the Administrative Procedure Act. See, doc. no. 25, at 19, referring the court to pp. 43 44. The plaintiffs’ motion for preliminary injunction does not seek relief on the basis of the APA claim. Consequently, the defendants’ Rule 12(b)(1) motion need not be addressed at this juncture. The defe ndants’ arguments under Rule 12(b)(6) – attacking the plaintiffs’ RFRA claim on the merits – encompass the entire range of arguments advanced by defendants in oppositionto plaintiffs request for a preliminary injunction. Accordingly, the court’s consideration of the Rule 12(b)(6) issues will be subsumed in the court’s resolution of the issues presented by the Motion.
Defendants’ contentions with respect tostanding are, likewise, addressed only to the APA claim. See, doc. no. 25, at 25, 43 - 44. Accordingly, since this action clearly falls, in the first instance, within the grant of subject matter jurisdiction set forth in 28 U.S.C. § 1331, issues with respect to standing under the APA present no impediment to consideration of the Motion.Cf. Hobby Lobby Stores, Inc. v. Sebeliu,s 723 F.3d 1114, at 1126 (10th Cir. 2013), cert. granted, 134 S.Ct. 678 (Nov. 26, 2103).
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See also, Reaching Souls International, Inc. v. Sebelius, Case No. CIV-13-1092-D, U.S.D.C. W.D. Okla., Memorandum Decision and Order, Dec. 20, 2013 (doc. no. 67), at 7 - 9 (DeGiusti, J.) (herein: Reaching Soul)s; Roman Catholic Archdiocese of New York v. Sebelius, 2013 WL 6579764 at *6 - 7 (E.D.N.Y. Dec. 16, 2013). III. Other Recent Decisions
The issues now before the court are of recent vintage, but the court is not without significant guidance, some of it binding and some not. Some, but certainly not all, of the issues in this action ha ve been resolved (definitively for now, b ut subject to Supreme Court review) by the Tenth Circuit’s en banc decision in Hobby Lobby. There is only a partial overlapbetween this case and Hobby Lobby. That case addressed several issues arising at the intersection of the ACA and RFRA, but issues as to the validity of the self-certification regulations for non-exem pt religious organizations under 45 C.F.R. § 147.131 (herein: Self-certification Regulations; see Stipulation no. 53, a bove) were not before the court in Hobby Lobby .1 See also, Conestoga Wood Specialties Corp. v. Sec’y of U.S. Dept. of Health and Hum an Svces, 724 F.3d 377 (3d Cir. July 26, 2013), cert. granted, 134 S.Ct. 678 (Nov. 26, 2013) (overlapping substantially with Hobby Lobby); Autocam Corp. v. Sebelius, 730 F.3d 618 (6th Cir. Sept. 17, 2013) (sam e); Korte v. Sebelius, 735 F.3d 654 (7 th Cir. Nov. 8, 2013) (same) and Gilardi v. U.S. Dep’t of Human Svces, 733 F.3d 1208 (D.C. Cir. Nov. 1, 2013) (sam e). More on poin t are five recent district court decisions
1 One of the predominant issues in Hobby Lobby, not present in this case, is the question of whether a private, for-profit business corporation may avail itself of RCRA’s protections. Hobby Lobby, 723 F.3d at 1128 et seq. No such issue is before the court in this action. To the extent (which is substantial, as will be seen) that the court relies on Hobby Lobbiny this order, that reliance is based on conclusions articulated by the court in Hobby Lobby that will likely remain good law regardless of the fate, in the Supreme Court, of the Tenth Circuit’sholding with respect to the status of business corporations under RFRA.
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directly addressing the validity of the Self-certification Regulations: Reaching Souls, supra; Priests for Life v. U.S. Dep’t of Health & Human Svces, 2013 WL 6672400 (D.D.C. Dec. 19, 2013); Roman Catholic Archdiocese of New York v. Sebelius, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013); Zubik v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013) and Gene va College v. Sebelius, 2013 WL 3071481 (W.D. Pa. June 18, 2013). IV. Standard for Granting a Preliminary Injunction
Although, in some situations, more stringent or more relaxed standards apply, the showing normally required to support a request for a preliminary injunction is that the plaintiffs must show that (i) they are likely to succeed on the merits; (ii) they are likely to suffer irreparable harm in the absence of preliminary relief; (iii) the balance of equities tips in their favor; and (iv) an injunction is in the pu blic interest. See, Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008); see also, Hobby Lobby, 723 F.3d at 1128. Plaintiffs assert that a more relaxed standard should be applied, doc. no. 20, at 4, but, for the r easons stated by Judge DeGiusti in Reaching Souls , supra, at 10, the court disagrees. Accordinglyt,he court will apply the traditional test. V. Analysis Under the Preliminary Injunction Standard
A. Likelihood of Success on the Merits 1. Basic Principles Under RFRA
As wardens and dieticians throughout the federal prison system have discovered, the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bbet seq., is a truly extraordinary piece of legislation. By its express terms, RFRA trumps any other federal law (“and the implementation of that law”) encroaching upon the broad reach of RFRA, regardless of whether any such law was enacted before or after RFRA was enacted, “unless such law explicitly excludes” application of RFRA. 42
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U.S.C. § 2000bb-3. As the Tenth Circuit explained in Hobby Lobby: Congress [in enacting RFRA] obligated itself to explicitly exempt later-enacted statutes from RFRA, which is conclusive evidence that RFRA trumps later federal statutes when RFRA has been violated. That is why our case law analogizes RFRA to a constitutional right [citing Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001)]. . . . Congress did not exempt the [Affordable Care Act] from RFRA, nor did it create any sort of wide-ranging exemption for HHS and other agencies charged with implementing the ACA through the regulations challenged here.
Hobby Lobby, 723 F.3d at 1146. RFRA’s reach is expressed in § 2000bb-1: (a) In general Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. (b) Exception Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive m eans of furthering that com pelling governmental interest. 2. Application of RFRA Principles to the Stipulated Facts Substantial burden Under RFRA, governm ent action im poses a “substantial[] burden” if it (i)
requires participation in anactivity prohibited by a sincerely held religious belief, (ii) prevents participation in conduct motivated by a sincerely held religious belief, or (iii) places substantial pressure on an adherent toengage in conduct contrary to a sincerely held religious belief. Hobby Lobby, at 1138 (citing and quoting from Abdulhaseeb
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v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010)). The first step in applying the substantialburden test is to “identify the religious
belief in this case.” Hobby Lobby , at 1140. The parties’ stipulation describes the plaintiffs’ relevant beliefs in general terms as well as in terms specific to the court’s consideration of the Self-certification Regulations:
• [W]ithin the operation of the [Self-certification Regulations] , completing and delivering the self-certification to their issuers or third party administrators would violate the Universities’ sincere religious beliefs.
• [P]roviding employee or student health insurance that includes coverage for Plan B, ella, and/or IUDs would violate the Universities’ sincere religious beliefs.
• [Their] missions include prom oting the spiritual m aturity of members of their respective communities by fostering obedience to and love for what they understand to be God’s laws, including His restrictions on the unjustified taking of innocent human life.
• [S]inful behavior adversely affects their relationships with God. • Christian conviction, including respect for and dignity and worth
of human life from the moment of conception, is a q ualification for entry into and participation in the Universities’ communities. Stipulation, ¶¶ 64 - 68 (emphasis added).2 It is noteworthy that, in the case at ba r, unlike the decision four days ago in Priests for Life v. U.S. Dep’t of Health & Human Svces, 2013 WL 6672400 (D.D.C. Dec. 19, 2013), it is stipulated that theact of signing the certificationis contrary to the religious beliefs to which these institutions subscribe. Thus, in Priests for Life, the court pointedly noted that:
2 The defendants contest the plaintiffs’ claims on many fronts, but their papers do not intimate, much less assert, t hat these beliefs are insincere. Cf. Hobby Lobby , at 1140 (“The government does not dispute the [plaintiffs’] sincerity, and we see no reason to question it either.”).
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Plaintiffs here do not allege that theself-certification itself violates their religious beliefs. To the contrary, the certification states that Priests for Life is opposed to providing contraceptive coverage, which is consistent with those beliefs. Indeed, during oral argument, plaintiffs stated that they have no religious objection to filling out the self-certification; it is the issuer's subsequent provision of coverage to which they object. Id. at * 2.3 Thus, the combined effect of the ACA and the Self-certification Regulations is that the universities are forced by law to choose one of four options: (a) provide the coverage to which they object; (b) violate the regulations and incur penalties of $100 per day for each affected individual; (c) discontinue all health plan coverage for employees and/or students; or (d) self-certify that they qualifyfor the accommodation and provide that self-certification to their third party administrators or issuers. Stipulation, ¶ 62. This, plainly, is a “Hobson’s choice,” Hobby Lobby, at 1141; Abdulhaseeb, 600 F.3d at 1315. Defendants belittlethe burden of signing the self-certification. Doc. no. 25 at 24 - 25. But, unless they choose to contest the sincerity of the beliefs in question, their belittling is impermissible under RFRA: “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 claim ant to violate that belief.” Hobby Lobby at 1137. The focus is on the pressure exerted, not on the onerousness of the physical act that might result from yielding to that pressure. If the belief is sincere and the pressure to violate that belief is substantial, the substantial burden test is satisfied. Id. at 1137 -
3 Compare, Zubik, 2013 WL 6118696, at * 19: “The act of signing the self-certification form will violate these Plaintiffs’ sincerely-held religious beliefs.”
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38.4 The self certification is, in effect, a premission slip which must be signed by the
institution to enable the plan beneficiar y to get access, free of charge, f rom the institution’s insurer or third pa rty administrator, to the products to whic h the institution objects. If the institution does not sign the permission slip, it is subject to very substantial penalties or other serious consequences. If the institution does sign the permission slip, and only if the institution signs the permission slip, institution’s insurer or third party adm inistrator is obligated to provide the free products and services to the plan beneficiary. It is noanswer to assert, asthe government does here, that, in self-certifying, the institution isnot required to do anything more onerous than signing a piece of paper. Doc. no. 25, at 25 - 27. The government’s argument rests on the premise that the simple act of signing a piece of paper, even with knowledge of the consequences that will flow from that signing, cannot be morally (and, in this
4 The defendants’ argument that the burden onplaintiffs is only indirect, doc. no. 25 at 31 32, fares no better. Although Hobby Lobby does not address the Self-certification Regulations because the “accommodation” was not in issue in th at case, the court’s opinion suggests that the universities’ position on this issue (i.e. whether the fact that the accommodation arguably moves the provision of objected to contraceptive services to a third party and therefore makes it unnecessary for the university to provide the services or violateits religious beliefs) would prevail in that court. For example, Hobby Lobby, at 1139, quotes Thomas v. Review Bd. of the Indiana Employment Security Division, 450 U.S. 707 (1981), for th e proposition that “W hile the compulsion may be indirect, the infringem ent upon free exercise is nonetheless substantial.”). Hobby Lobby characterizes United States v. Lee, 455 U.S. 252 (1982), as a case whihc did not turn on whether the Amish faced direct or indirect coercion or whether the supposed violations of their faith turned on actions of independent third parties. Hobby Lobby, at 1139-40. Compare: Priests for Life v. U.S. Dep’t of Health & Hum an Svces, 2013 W L 6672400, at * 8 (D.D.C. Dec. 19, 2013) (“The accommodation specifically ensures that provision ofcontraceptive services is entirely the activity of a third party - nam ely, the issuer - and Priests for Life plays no role in that activity.”) That analysis, if it were applied to the act of signing theself-certification (not at issue in Priests for Life, as discussed above on p. 15) could not be squared with the Supreme Court’s decisions in Thomas and Lee or with the Tenth Circuit’s decision in Hobby Lobby.
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case, religiously) repugnant – an argum ent belied by too m any tragic historical episodes to be canvassed here. The burden, under RFRA, is not to be measured by the onerousness of a single physical act. RFRA undeniably focuses on violations of conscience, not on physical acts. Thus, the question is not whether the reasonable observer would consider the plaintiffs complicit in an immoral act, but rather how the plaintiffs themselves measure their degree of complicity. Hobby Lobby, at 1142.
The government has put these institutions to a choice of either acquiescing in a government-enforced betrayal of sincer ely held religious beliefs, or incurring potentially ruinous financial penalties, or electing other equally ruinous courses of action. That is the burden, and it is substantial.
Compelling governmental interest RFRA’s second prong requires the courtto determine whether the government has presented a compelling interest implemented through the least restrictive means available. Hobby Lobby at 1142-43. Even at the prelim inary injunction stage, the governm ent is required to demonstrate that mandating compliance withthe contraceptive-coverage requirement by way of the Self-certification Regulationsis the least restrictive means of advancing a compelling interest. Hobby Lobby at 1143. The court must scrutinize the asserted harm of granting the specific exemption sought to the particular religious claimants before the court. Hobby Lobby at 1143. The government’s justification must focus on the claimant asserting the RFRA violation, not on its interest in promoting some general policy. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 431 (2006); Hobby Lobby at 1143 (citing O Centro ). It must show with particularity how even an admittedly strong interest would be adversely affected by granting the exemption requested. Id. (citing Wisconsin v. Yoder, 406 U.S. 205, 236
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(1972). Aside from mentioning generalized governmental interests in public health and
gender equality (interests which are neither challenged by the plaintiffs nor questioned by this court), the government offers no developed argument on this prong, noting, as it must, that the Tenth Circuit has rejectedthe government’s public health and gender equity arguments. Doc. no. 25, at 27-28.
Moreover: Even if the government had stated a compelling interest in public health or gender equality, it hasnot explained how those larger interests would be undermined by granting [the universities] their requested exemption. [They] ask only to be excused from covering four contraceptive methods out of twenty, not to be excused from covering contraception altogether. The government does not articulate why accommodating such a limited request fundamentally frustrates its goals. Hobby Lobby, at 1144. In short, although the Hobby Lobby decision does not address the accommodation, its rationales provide guidance, as do other decisions which have granted preliminary relief in cases in which the government relied on the accommodation. Reaching Souls International, Inc. v. Sebelius, Case No. CIV-131092-D, U.S.D.C. W.D. Okla., Memorandum Decsiion and Order, Dec. 20, 2013 (doc. no. 67); Roman Catholic Archdiocese of New York v. Sebelius, 2013 WL 6579764 (E.D. N.Y. Dec. 16, 2013); Zubik v. Sebeliu,s2013 WL 6118696 (W.D. Pa. Nov. 21, 2013) (Trustee of Rom an Catholic Diocese, beneficial owner of Catholic benefits trust, and Catholic Charities of Diocese rganted preliminary injunction, having shown, among other things, that the government did not have a compelling interest); Geneva College v. Sebelius, 2013 WL 3071481 (W.D. Pa. June 182,013) (non-profit religious college; preliminary injunction granted) . The governm ent’s policy argument, not
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particularized to demonstrate a compelling governmental interest in enforcing all parts of the defendants’ contraceptive policy prescriptionagainst these claimants, fails, for that reason, as a matter of law.
But, if it were a close question (it isnot), any contention that the government’s asserted interest is com pelling would be thoroughly underm ined by the fact that application of the government’s policy prescription is riddled with exceptions. Hobby Lobby, at 1123 - 24 (cataloging exceptions and exemptions). The num ber of individuals who are covered by exempt health plans has been estimated at more than 50 million, and perhaps as many as 100 million. Id. at 1124. Including individuals covered by “grandfathered” plans, the number of excepted and exempted individuals may total more than 190 million. Geneva College, 2013 WL 3071481, at *10. Taken one by one, each exempti on and exception likely has an appealing, or at least defensible, rationale. Butthis assemblage of special cases “severely undermines the legitimacy of defendants’ claim of a compelling interest.” Id. Thus, the number of exemptions and exceptions, let alone the number of individuals affected thereby, is not just a convenient straw m an: granting that there may well be a plausible basis for every exception that has been carved outof the mandate, the government’s arguments for a com pelling interest in applying the mandate in every particular to these universities ring hollow in light of the co llective effect of those exceptions and exemptions.
Least restrictive means The government offers no developed argument on the issue of whether it has employed the “least restrictive means of furt hering” its governmental interest. Accordingly, as was the case in Hobby Lobb,y723 F.3d at 1144, the government loses by default on this issue. Alpine Bank v. Hubbell , 555 F.3d 1097, 1109 (10 th Cir.
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2009) (citing Murrell v. Shalala , 43 F.3d 1388, 1389 n. 2 (10 th Cir. 1994)). Aside from that waiver, the court agrees with the conclusion inRoman Catholic Archdiocese of New York v. Sebelius, 2013 WL 6579764 at *18 - 1 9 (E.D.N.Y. Dec. 16, 2013) that the defendants have not em ployed the least restrictive means of furthering the governmental interest that they assert.
B. Irreparable Harm Viewing the matter in light of the extraordinary preemptive effect of RFRA, the Tenth Circuit has equated RFRA violationswith First Amendment violations. Hobby Lobby, 723 F.3d at 1146 (citing Kikumura v. Hurley , 242 F.3d 950, 963 (10th Cir.2001). On that basis, the Tenth Circuit made short work of the irreparable harm issue: “a likely RFRA violation satisfies the irreparable harm factor.” Hobby Lobby at 1146. That prerequisite has, accordingly, been satisfied here.5 C. The Balance of the Equities Plaintiffs have no objectionto coverage for any ofthe mandated products other than Plan B, ella and IUDs. Stipulation, ¶¶2, 3, 65. That leaves sixteen of the twenty mandated methods available, Hobby Lobby, at 1146, for which reason:
5 Even though, as discussed, the irreparable harm requirement has been satisfied essentially as a matter of law, one factual contention advanced by de fendants deserves mention at least in passing. Defendants argue that two of the plaintiffs, Southern Nazarene University and Oklahoma Wesleyan University cannot show irreparable harmbecause “the challenged regulations will not be enforced by defendants against [those plaintiffs] until July 1, 2014.” Doc. no. 25, at 48. On this point, the court will observe, simply, that the fact that the other plaintiffs may be able, one way or another, to com e within a few days of thei r year-end renewal date does not m ean it would be reasonable to require Southern Nazarene and Oklahoma Wesleyan to incur the serious financial and administrative risk that would be inherent in substantial additional delay, nor does that mean that the court would be able to adjudicate the issues as to Southern Nazarene and Oklahoma Wesleyan by way of a Rule 54 final j udgment before July 1, 2014. Moreover, the irreparable harm requirement, even where not satisfied as a m atter of law, need not be supported by a showing of imminent disaster. Kansas Health Care Ass’n v. Kansas Dep’t of Social and Rehabilitation Svces, 31 F.3d 1536, 1544 (10th Cir. 1994).
20

Case 5:13-cv-01015-F Document 45 Filed 12/23/13 Page 21 of 22
“the government's interest is largely realized while coexisting with [the universities’] religious objections. Andin any event, the government has already exempted health plans covering millions of others. These plans need not provide any of the twenty contraceptive methods. By contrast, [the universities] remain subject to the Hobson' s choice between catastrophic fines or viol ating [their] religious beliefs. Accordingly, the balance of equities tips in [the universities’] favor. Hobby Lobby, 723 F.3d at 1146 - 47 (emphasis added). D. The Public Interest A grant of preliminary injunctive relief in these circumstances would be in the public interest. Id. There is no need to elaborateupon the Tenth Circuit’s conclusion on this issue. VI. Conclusion Plaintiffs’ motion for prelim inary injunction, doc. no. 19, is GRANTED. Defendants’ motion to dismiss, doc. no. 26, to the extent that it seeks dismissal under Rule 12(b)(6), is DENIED.
PRELIMINARY INJUNCTION The defendants, their agents, officers, and employees, and all others in active concert or participation with th em, Rule 65, Fed.R.Civ.P., are ENJOINED and RESTRAINED from any effort to apply or enforce, as to plaintiffs, the substantive requirements imposed by 42 U.S.C. § 300gg-13(a)(4) and at issue in this case, or the self-certification regulations related theret o, or any penalties, fines or assessments related thereto, until the further order of the court. Dated this 23rd day of December, 2013.
13-1015p004.wpd
21

Case 5:13-cv-01015-F Document 45 Filed 12/23/13 Page 22 of 22 22

 
 Case 5:13-cv-01015-F Document 53 Filed 01/16/14 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

)

SOUTHERN NAZARENE

) )

UNIVERSITY, et al.,

)

Plaintiffs,

) )

v.

) )

)

KATHLEEN SEBELIUS, in her official

) )

capacity as Secretary, United States

)

Department of Health and Human

)

Services, et al.,

) )

)

Defendants.

Case No. 5:13-cv-01015-F

DEFENDANTS’ UNOPPOSED MOTION FOR STAY OF PROCEEDINGS

Defendants respectfully ask this Court to st ay all proceedings in this case pendi ng

defendants’ decision whether to appeal this Court’s order granting plaintiffs’ m otion for

preliminary injunction. Undersigned counsel conferred with counsel for plaintiffs, who

represented that plaintiffs do not oppose this request

On December 23, 2013, this Court gran ted plaintiffs’ motion for preliminary

injunction. See ECF No. 45. According to Federal Rule of Appellate Procedure

4(a)(1)(B), defendants have 60 days from the entry of su ch order—until February 21,

2014—to file any not ice of appeal. Defendant s submit it would be in the interests of

economy for both the Court a nd the parties if proceedings were stayed pending

defendants’ decision whether to take any such appeal. See Landis v. N. Am. Co., 299 U.S.

248, 254-55 (1936) (“[T]he power to stay proceedings is incidental to the power inherent

in every court to control the disposition of the causes of its docket with economy of time

1

Case 5:13-cv-01015-F Document 53 Filed 01/16/14 Page 2 of 4
and effort for itself, fo r counsel, and for litigan ts. How this can bes t be done calls for the
exercise of judgm ent, which m ust weigh co mpeting interests and m aintain an eve n
balance.”). In the meantime, ther e will be no prejudice to plai ntiffs, as they will have the
benefit of the prelim inary injunction during the pendency of t he stay. Ac cordingly,
defendants request that the Co urt stay proceedings in this case until March 1, 2014, at
which time the parties and the Court can determine how best to proceed.
RELIEF REQUESTED
Defendants respectfully request that all proc eedings in this case be stayed until
March 1, 2014.
Respectfully submitted this 16th day of January, 2014,
STUART F. DELERY Assistant Attorney General
SANFORD C. COATS United States Attorney
JENNIFER RICKETTS Director
SHEILA M. LIEBER Deputy Director
_/s/ Michael C. Pollack______________ MICHAEL C. POLLACK (NY Bar) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 7222 Washington, DC 20530 Tel: (202) 305-8550 Fax: (202) 616-8470 Email: michael.c.pollack@usdoj.gov
2

Case 5:13-cv-01015-F Document 53 Filed 01/16/14 Page 3 of 4
Attorneys for Defendants
3

Case 5:13-cv-01015-F Document 53 Filed 01/16/14 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on Januar y 16, 2014, I electronically filed the foregoing with the Clerk of the Court using t he CM/ECF system, which sent notice of such filing to all parties.
_/s/ Michael C. Pollack__________ MICHAEL C. POLLACK
4

Case 5:13-cv-01015-F Document 53-1 Filed 01/16/14 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

)

SOUTHERN NAZARENE

) )

UNIVERSITY, et al.,

)

Plaintiffs,

) )

v.

) )

)

KATHLEEN SEBELIUS, in her official

) )

capacity as Secretary, United States

)

Department of Health and Human

)

Services, et al.,

) )

)

Defendants.

Case No. 5:13-cv-01015-F

[PROPOSED] ORDER GRANTING DEFENDANTS’ UNOPPOSED MOTION
FOR STAY OF PROCEEDINGS

Defendants’ unopposed motion for stay of proceedings is hereby GRANTED. All

proceedings in this case are stayed until March 1, 2014.

IT IS SO ORDERED.

________________________ Date

__________ _______________________ Hon. Stephen P. Friot United States District Judge

 
 Case 5:13-cv-01015-F Document 54 Filed 01/17/14 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

)

SOUTHERN NAZARENE UNIVERSITY,))

et al.,

)

Plaintiffs,

) )

v.

) )

)

KATHLEEN SEBELIUS, in her official

) )

capacity as Secretary, United States

)

Department et al.,

of

Health

and

Human

Services,)) )

) Defendants.

Case No. CIV-13-1015-F

ORDER GRANTING DEFENDANTS’ UNOPPOSED MOTION
FOR STAY OF PROCEEDINGS

Defendants’ unopposed motion for stay of proceedings is hereby GRANTED. All

proceedings in this case are stayed until March 1, 2014.

IT IS SO ORDERED this 17th day of January, 2014.

13-1015p010.PO.wpd

 
 Appellate Case: 13-1540

Document: 01019459253
PUBLISH

Date Filed: 07/14/2015 Page: 1
FILED United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

July 14, 2015

FOR THE TENTH CIRCUIT _________________________________

Elisabeth A. Shumaker Clerk of Court

LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation; LITTLE SISTERS OF THE POOR, BALTIMORE, INC., a Maryland non-profit corporation, by themselves and on behalf of all others similarly situated; CHRISTIAN BROTHERS SERVICES, a New Mexico non-profit corporation; CHRISTIAN BROTHERS EMPLOYEE BENEFIT TRUST,

Plaintiffs - Appellants,

v.

No. 13-1540

SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; THOMAS E. 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; UNITED STATES DEPARTMENT OF THE TREASURY,

Defendants - Appellees. ––––––––––––––––––––––––––––––––––– SOUTHERN NAZARENE UNIVERSITY; OKLAHOMA WESLEYAN UNIVERSITY; OKLAHOMA BAPTIST UNIVERSITY; MID-AMERICA CHRISTIAN UNIVERSITY; REACHING SOULS INTERNATIONAL, INC., an Oklahoma not
- i -

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 2

for profit corporation; TRUETTMCCONNELL COLLEGE, INC., a Georgia nonprofit corporation, by themselves and on behalf of all others similarly situated; GUIDESTONE FINANCIAL RESOURCES OF THE SOUTHERN BAPTIST CONVENTION, a Texas nonprofit corporation,
Plaintiffs - Appellees.
v.
SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; THOMAS E. 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; UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants - Appellants. -----------------------------67 CATHOLIC THEOLOGIANS AND ETHICISTS; ALABAMA PHYSICIANS FOR LIFE; AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS & GYNECOLOGISTS; AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN BIBLE SOCIETY; AMERICAN CENTER FOR LAW AND JUSTICE; AMERICAN CIVIL LIBERTIES UNION OF COLORADO; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA; AMERICAN CIVIL LIBERTIES UNION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME);
- ii -

Nos. 14-6026 & 14-6028

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 3
AMERICAN PUBLIC HEALTH ASSOCIATION; AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; ASIAN & PACIFIC ISLANDER AMERICAN HEALTH FORUM; ASIAN AMERICANS ADVANCING JUSTICE | AAJC; ASIAN AMERICANS ADVANCING JUSTICE | LOS ANGELES; ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS; ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; ASSOCIATION OF GOSPEL RESCUE MISSIONS; BLACK WOMEN'S HEALTH IMPERATIVE; CALIFORNIA WOMEN'S LAW CENTER, NATIONAL WOMEN'S LAW CENTER; CALIFORNIA WOMEN'S LAW CENTER; CATHOLIC MEDICAL ASSOCIATION; CHRISTIAN LEGAL SOCIETY; CHRISTIAN MEDICAL ASSOCIATION; CHRISTIE'S PLACE; CONCERNED WOMEN FOR AMERICA; DR. R. ALBERT MOHLER, JR.; ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; FEMINIST MAJORITY FOUNDATION; FORWARD TOGETHER; HIV LAW PROJECT; IBIS REPRODUCTIVE HEALTH; INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE AND CHRISTIAN LEGAL SOCIETY; INTERNATIONAL MISSION BOARD OF THE SOUTHERN BAPTIST CONVENTION; IPAS; LEGAL MOMENTUM; LIBERTY COUNSEL; LIBERTY UNIVERSITY; LIBERTY, LIFE, AND LAW FOUNDATION; LUTHERAN CHURCH - MISSOURI SYNOD; MERGER WATCH; NARAL PRO-CHOICE AMERICA; NARAL PRO-CHOICE COLORADO; NARAL PRO-CHOICE WYOMING; NATIONAL ASIAN PACIFIC AMERICAN WOMEN'S FORUM;
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 4
NATIONAL ASSOCIATION OF CATHOLIC NURSES; NATIONAL ASSOCIATION OF EVANGELICALS; NATIONAL ASSOCIATION OF PRO LIFE NURSES; NATIONAL CATHOLIC BIOETHICS CENTER; NATIONAL FAMILY PLANNING & REPRODUCTIVE HEALTH ASSOCIATION; NATIONAL HEALTH LAW PROGRAM; NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL ORGANIZATION FOR WOMEN (NOW) FOUNDATION; NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES; NATIONAL WOMEN AND AIDS COLLECTIVE; NATIONAL WOMEN'S HEALTH NETWORK; NATIONAL WOMEN'S LAW CENTER; PLANNED PARENTHOOD ASSOCIATION OF UTAH; PLANNED PARENTHOOD OF KANSAS AND MIDMISSOURI; PLANNED PARENTHOOD OF THE HEARTLAND; PLANNED PARENTHOOD OF THE ROCKY MOUNTAINS, INC.; POPULATION CONNECTION; PRISON FELLOWSHIP MINISTRIES; RAISING WOMEN'S VOICES FOR THE HEALTH CARE WE NEED; SERVICE EMPLOYEES INTERNATIONAL UNION (SEIU); SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE U.S. (SIECUS); SOUTHERN BAPTIST THEOLOGICAL SEMINARY; UNITED STATES CONFERENCE OF CATHOLIC BISHOPS,
Amici Curiae. _________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:13-CV-02611-WJM-BNB) &
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 5
THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. Nos. 5:13-CV-01015-F & 5:13-CV-01092-D) _________________________________
Mark L. Rienzi, Becket Fund for Religious Liberty, Washington, DC (Daniel Blomberg and AdPle Auxier Keim, Becket Fund for Religious Liberty, Washington, DC; Carl C. Scherz and Seth Roberts, Locke Lord LLP, Dallas, Texas; and Kevin C. Walsh, University of Richmond Law School, Richmond, Virginia, with him on the briefs), appearing for Little Sisters of the Poor Home for the Aged, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Services, Christian Brothers Employee Benefit Trust, Reaching Souls International, Inc., Truett-McConnell College, Inc., and GuideStone Financial Resources of the Southern Baptist Convention.
Adam C. Jed, Attorney, Appellate Staff, Civil Division (Stuart F. Delery, Assistant Attorney General; Sanford C. Coats and John F. Walsh, United States Attorneys; Beth S. Brinkmann, Deputy Assistant Attorney General; Mark B. Stern, Alisa B. Klein, Patrick G. Nemeroff, and Megan Barbero, Attorneys, Appellate Staff Civil Division, with him on the briefs), United States Department of Justice, Washington, DC, appearing for Sylvia Mathews Burwell, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, and United States Department of the Treasury.
Gregory S. Baylor, Alliance Defending Freedom, Washington, DC (Matthew W. Bowman, Alliance Defending Freedom, Washington, DC, David A. Cortman, Alliance Defending Freedom, Lawrenceville, Georgia, and Kevin H. Theriot, Alliance Defending Freedom, Leawood, Kansas, with him on the briefs), appearing for Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and MidAmerica Christian University.
_________________________________
Before MATHESON, McKAY, and BALDOCK, Circuit Judges. _________________________________
MATHESON, Circuit Judge. _________________________________
TABLE OF CONTENTS
Glossary ........................................................................................................................................ vii I. Introduction.......................................................................................................................... 1
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 6

II. Hobby Lobby and this case .................................................................................................. 3

III. Background .......................................................................................................................... 4

A.

Regulatory Background ................................................................................................ 4

1. The ACA Mandate and the Religious Employer Exemption............................................... 4

2. The Accommodation Scheme for Religious Non-Profit Organizations .............................. 7

a. EBSA Form 700 ................................................................................................................... 9

b. Alternative notice ............................................................................................................... 11

3. The Mechanics of the Accommodation for Insured Plans, Self-Insured Plans, and SelfInsured Church Plans .............................................................................................................. 13

a. Insured plans...................................................................................................................... 14

b. Self-insured plans............................................................................................................... 15

c. Self-insured church plans .................................................................................................. 17

d. Legal obligation to provide coverage after the accommodation ....................................... 17

B.

The Plaintiffs .............................................................................................................. 18

1. Little Sisters of the Poor .................................................................................................... 18

2. Southern Nazarene............................................................................................................. 20

3. Reaching Souls................................................................................................................... 22

C.

Procedural History ...................................................................................................... 23

1. Little Sisters of the Poor .................................................................................................... 23

2. Southern Nazarene............................................................................................................. 25

3. Reaching Souls................................................................................................................... 26

IV. Unusual Nature of Plaintiffs’ Claim .................................................................................. 27

V. RFRA ................................................................................................................................. 30

A.

Legal Background....................................................................................................... 33

1. Standard of Review............................................................................................................ 33

2. RFRA and Free Exercise ................................................................................................... 34

3. Elements of RFRA Analysis .............................................................................................. 35

4. Courts Determine Substantial Burden ............................................................................... 36

5. Accommodations Can Lessen or Eliminate Burden .......................................................... 40

B.

Substantial Burden Analysis....................................................................................... 41

1. Plaintiffs’ RFRA Arguments ............................................................................................. 41

2. The Accommodation Scheme Eliminates Burdens on Religious Exercise ....................... 43

3. The Accommodation Scheme Does Not Impose a Substantial Burden............................. 45

a. Opting out does not cause contraceptive coverage. .......................................................... 45

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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 7

b. No substantial burden from complicity.............................................................................. 66

c. No burden from ongoing requirements.............................................................................. 72

C.

Strict Scrutiny ............................................................................................................. 75

D.

Conclusion .................................................................................................................. 75

VI. First Amendment ............................................................................................................... 75

A.

Free Exercise Clause .................................................................................................. 77

1. Legal Background .............................................................................................................. 78

2. The Mandate and Accommodation Scheme are Neutral ................................................... 79

3. The Mandate and Accommodation Scheme are Generally Applicable ............................. 79

4. The Mandate and Accommodation Scheme Have a Rational Basis.................................. 81

B.

Establishment Clause.................................................................................................. 83

1. Organizational Distinctions Well-Established in Federal Law.......................................... 83

2. Organizational Distinctions and Respecting the Religion Clauses.................................... 85

3. Organizational Distinctions Compatible with Larson and Colorado Christian ................ 86

4. Plaintiffs’ Argument Based on the Departments’ Rationale.............................................. 88

C.

Free Speech Clause..................................................................................................... 90

1. Compelled Speech ............................................................................................................. 91

2. Compelled Silence ............................................................................................................. 95

VII. Conclusion ......................................................................................................................... 95

GLOSSARY
This opinion is heavily laden with terms from the applicable statute and
regulations, types of health insurance arrangements, and names of numerous entities. We
appreciate the challenge this presents to the reader and provide this glossary to help
navigate the opinion.
Legal and Regulatory Terms: ACA: The Affordable Care Act, which encompasses the Patient Protection and
Affordable Care Act, enacted on March 23, 2010, and the Health Care and Education Reconciliation Act, enacted on March 30, 2010.
Accommodation scheme: A regulatory mechanism that allows religious non-profit organizations to relieve themselves of their obligation to provide contraceptive
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 8
coverage for employees by either (a) sending a form to their health insurance issuer or third-party administrator or (b) sending a notification to the Department of Health and Human Services.
ANPRM: Advance Notice of Proposed Rulemaking, which an administrative agency may issue to notify the public it is contemplating rulemaking and to invite comments.
Departments: The Department of Health and Human Services, Department of Labor, and Department of the Treasury, which collectively implement the ACA.
EBSA: The Employee Benefits Security Administration, an agency within the Department of Labor.
ERISA: The Employee Retirement Income Security Act, codified at 29 U.S.C. § 1001 et seq., which is a federal law that sets minimum standards for certain employersponsored benefit plans.
Form 700: A standardized notification that religious non-profit organizations may send to their health insurance issuer or third party administrator under the accommodation scheme to self-certify they object to providing contraceptive coverage.
HHS: The Department of Health and Human Services, which is one of the three departments tasked with implementing the ACA and contraceptive coverage requirement.
HRSA: The Health Resources and Services Administration, an agency within HHS, which issued guidelines requiring coverage of all FDA-approved contraceptive methods under the ACA.
IOM: The Institute of Medicine, an independent body that reviewed evidence on women’s preventive services and issued a report used by the HRSA in formulating its guidelines.
IRC: The Internal Revenue Code, codified at 26 U.S.C. § 1 et seq., which is a comprehensive compilation of the federal tax laws.
Mandate: Regulations enacted under the ACA requiring employer-sponsored group health plans to cover contraceptive services for women as a form of preventive care.
RFRA: The Religious Freedom Restoration Act, codified at 42 U.S.C. § 2000bb-1 et seq., which states that laws that substantially burden a person’s exercise of religion are only permissible if they are the least restrictive means of furthering a compelling governmental interest.
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 9
RLUIPA: The Religious Land Use and Institutionalized Persons Act, codified at 42 U.S.C. § 2000cc et seq., which states that laws that substantially burden religious exercise through land use restrictions or restrictions on prisoners are only permissible if they are the least restrictive means of furthering a compelling governmental interest.
Religious employers: As defined by reference to §§ 6033(a)(3)(A)(i) or (iii) of the IRC, employers that are organized and operate as non-profit entities and are churches, their integrated auxiliaries, conventions or associations of churches, or the exclusively religious activities of any religious order.
Religious non-profit organizations: Organizations that do not qualify as religious employers but are eligible for an accommodation from the contraceptive coverage requirement because they have religious objections to providing contraceptive coverage, are organized and operate as non-profit entities, hold themselves out as religious organizations, and self-certify that they satisfy these criteria. The Plaintiffs in these cases are religious non-profit organizations.
Health Insurance Terms:
Group health plan: A benefit plan established or maintained by an employer that provides health insurance to employees and their dependents either directly—a selfinsured group health plan—or through a health insurance issuer—an insured group health plan.
Health insurance issuer: A health insurance company, service, or organization that must be licensed to engage in the insurance business and is subject to state laws regulating insurance.
Insured group health plan: A benefit plan in which the employer employs a health insurance issuer to assume the risk of providing health insurance.
Plan participants and beneficiaries: Individuals who are covered by a group health plan.
Self-insured group health plan: A benefit plan in which the employer assumes the risk of providing health insurance.
Self-insured church plan: A self-insured group health plan established by a church or association of churches covering the church or association’s employees, which is not subject to regulation under ERISA unless it has elected to opt in to ERISA’s provisions.
TPA: A third-party administrator, which is an entity that processes insurance claims and provides administrative services for employers with self-insured group health plans.
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 10
Plaintiffs and Related Entities:
Little Sisters of the Poor:
Little Sisters of the Poor: A religious non-profit organization that provides health care to employees through the Christian Brothers Employee Benefit Trust.
Christian Brothers Employee Benefit Trust: A self-insured church plan that is not subject to ERISA and uses Christian Brothers Services as its TPA.
Christian Brothers Services: The TPA for the Christian Brothers Employee Benefit Trust.
Southern Nazarene:
Southern Nazarene University: A religious non-profit organization that is self-insured up to $100,000 and provides health care to employees through Blue Cross Blue Shield for claims above $100,000.
Oklahoma Baptist University: A religious non-profit organization insured by Blue Cross Blue Shield of Oklahoma.
Oklahoma Wesleyan University: A religious non-profit organization insured by Community Care of Oklahoma.
Mid-America Christian University: A religious non-profit organization that provides health care to employees through plans provided by GuideStone Financial Resources.
Reaching Souls:
Reaching Souls: A religious non-profit organization that provides health care to employees through the GuideStone Plan.
Truett-McConnell College: A religious non-profit organization that provides health care to employees through the GuideStone Plan.
GuideStone Financial Resources: A religious non-profit organization that sponsors the GuideStone Plan and has arranged for TPAs to provide claims administration under that plan.
GuideStone Plan: A self-insured church plan that is not subject to ERISA and uses entities like Connecticut General Life Insurance Company, Highmark Health Services, and Express Scripts, Inc. as its TPAs.
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 11
I. INTRODUCTION When Congress passed the Affordable Care Act (“ACA”) in 2010, it built upon the widespread use of employer-based health insurance in the United States.1 The ACA
and its implementing regulations require employers who provide health insurance
coverage to their employees to include coverage for certain types of preventive care
without cost to the insured. The appeals before us concern the regulations that require
group health plans to cover contraceptive services for women as a form of preventive care (“Mandate”).2
In response to religious concerns, the Departments implementing the ACA—
Health and Human Services (“HHS”), Labor, and Treasury—adopted a regulation that
exempts religious employers—churches and their integrated auxiliaries—from covering
contraceptives. When religious non-profit organizations complained about their omission
from this exemption, the Departments adopted a regulation that allows them to opt out of
1 A majority of the nonelderly population in the United States receives health insurance as a job benefit through an employer. See Melissa Majerol, Vann Newkirk & Rachel Garfield, The Uninsured: A Primer – Key Facts About Health Insurance and the Uninsured in America, The Kaiser Commission on Medicaid and the Uninsured, 1 (Jan. 2015), http://files.kff.org/attachment/the-uninsured-a-primer-key-facts-about-healthinsurance-and-the-uninsured-in-america-primer.
2 We use “Mandate” as shorthand for the ACA’s employer mandate, which requires employers who offer health benefits to comply with the coverage requirements detailed in the ACA and its implementing regulations. This Mandate is distinct from the individual mandate at issue in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), which generally requires individuals to maintain health insurance.
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 12
providing, paying for, or facilitating contraceptive coverage.3 Under this regulation, a
religious non-profit organization can opt out by delivering a form to their group health
plan’s health insurance issuer or third-party administrator (“TPA”) or by sending a
notification to HHS.
The Plaintiffs in the cases before us are religious non-profit organizations. They
contend that complying with the Mandate or the accommodation scheme imposes a
substantial burden on their religious exercise. The Plaintiffs argue the Mandate and the
accommodation scheme violate the Religious Freedom Restoration Act (“RFRA”) and the Religion and Speech Clauses of the First Amendment.4
Although we recognize and respect the sincerity of Plaintiffs’ beliefs and
arguments, we conclude the accommodation scheme relieves Plaintiffs of their
obligations under the Mandate and does not substantially burden their religious exercise
under RFRA or infringe upon their First Amendment rights. Exercising jurisdiction
3 Plaintiffs object to the term “opt out” because their accommodation from the Mandate involves an act on their part—self-certification—that they deem objectionable. We believe “opt out” is accurate. Self-certifying for the accommodation expressly relieves Plaintiffs of their obligation to provide, pay for, or facilitate contraceptive coverage, and does so without substantially burdening their religious exercise. Under these conditions, the self-certification is accurately characterized as an “opt out.” By definition, all opt-out mechanisms require some affirmative act by objecting parties.
4 RFRA applies to all subsequent federal statutes absent a specific exemption by Congress. See 42 U.S.C. § 2000bb-3(b) (“Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.”). The ACA, enacted in 2010, did not contain a specific exemption and is subject to RFRA. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1157 (10th Cir. 2013).
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under 28 U.S.C. § 1292(a), we affirm the district court’s denial of a preliminary injunction to the plaintiffs in Little Sisters of the Poor Home for the Aged v. Sebelius, 6 F. Supp. 3d 1225 (D. Colo. 2013), and reverse the district courts’ grants of a preliminary injunction to the plaintiffs in Southern Nazarene University v. Sebelius, No. CIV-131015-F, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013), and Reaching Souls International, Inc. v. Burwell, No. CIV-13-1092-D, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013).
II. HOBBY LOBBY AND THIS CASE Last year, the Supreme Court decided Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), in which closely-held for-profit corporations challenged the Mandate under RFRA. The difference between Hobby Lobby and this case is significant and frames the issue here. In Hobby Lobby, the plaintiff for-profit corporations objected on religious grounds to providing contraceptive coverage and could choose only between (1) complying with the ACA by providing the coverage or (2) not complying and paying significant penalties. Id. at 2759-60. In the cases before us, the plaintiff religious nonprofit organizations can avail themselves of an accommodation that allows them to opt out of providing contraceptive coverage without penalty. Plaintiffs contend the process to opt out substantially burdens their religious exercise. In other words, unlike in Hobby Lobby, the Plaintiffs do not challenge the general obligation under the ACA to provide contraceptive coverage. They instead challenge the process they must follow to get out of complying with that obligation. The Plaintiffs do
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not claim the Departments have not tried to accommodate their religious concerns. They claim the Departments’ attempt is inadequate because the acts required to opt out of the Mandate substantially burden their religious exercise. As we discuss more fully below, however, the accommodation relieves Plaintiffs of their obligation to provide, pay for, or facilitate contraceptive coverage, and does so without substantially burdening their religious exercise.
III. BACKGROUND We begin by providing background information on the ACA and its implementing regulations, the Plaintiffs objecting to the accommodation scheme, and the procedural history of the three cases before us.
A. Regulatory Background The regulations at issue in these cases have evolved in significant ways since their initial promulgation. We review: (1) the exemption from the ACA’s contraceptive coverage requirement for churches and integrated auxiliaries, (2) the accommodation scheme for religious non-profit organizations, and (3) the mechanics of the accommodation scheme for different types of group health plans. 1. The ACA Mandate and the Religious Employer Exemption Under the ACA, employer-sponsored group health plans must meet minimum coverage requirements. As part of these requirements, both group health plans and health insurance issuers must cover preventive health care services and cannot require plan participants and beneficiaries to share the costs of these services through co-payments,
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deductibles, or co-insurance. 42 U.S.C. § 300gg-13. On July 19, 2010, the Departments issued interim final rules implementing the ACA’s requirements for preventive services. Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726 (July 19, 2010).
Among the services required by the ACA are preventive care and screenings for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” (“HRSA”), a federal agency within HHS. 42 U.S.C. § 300gg-13(a)(4). On August 1, 2011, after receiving recommendations from the Institute of Medicine (“IOM”), the HRSA issued its guidelines for women’s preventive health services. The guidelines include coverage of “[a]ll Food and Drug Administration [(“FDA”)] approved contraceptives, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider. HRSA, Women’s Preventive Services Guidelines, http://www.hrsa.gov/womensguidelines (last visited Mar. 25, 2015).
In accordance with the HRSA’s guidelines, the Departments require coverage of the full range of FDA-approved contraceptive services. See 26 C.F.R. § 54.98152713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv). Not all employers, however, are required to comply with the Mandate.
First, employers with 50 or fewer employees are exempt from the Mandate because they are not required to offer insurance under the ACA. See 26 U.S.C.
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§§ 4980H(c)(2)(A), 4980D(d). Second, “grandfathered” plans are exempt from the Mandate because the ACA
allows individuals to temporarily maintain the health coverage they possessed before the ACA was enacted. See 42 U.S.C. § 18011.5
Third, and the most relevant here, is the exemption for religious employers. In response to concerns from religious organizations, the Departments amended the interim final regulations to give the HRSA authority to exempt group health plans established or maintained by religious employers. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). The Departments defined a “religious employer” as one that: “(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” Id. The cited sections “refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as the exclusively religious activities of
5 The exception for grandfathered plans is temporary and transitional. A health plan loses its grandfathered status—and is subject to the Mandate—when it eliminates benefits, increases cost sharing requirements, or changes the terms of employer contributions. See 45 C.F.R. § 147.140(g). In 2011, 56 percent of individuals who receive health care from their employer were covered by grandfathered plans; in 2014, only 26 percent were covered by grandfathered plans. See Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits: 2014 Annual Survey, 7 (2014), http://files.kff.org/attachment/2014-employer-health-benefits-survey-full-report.
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any religious order.” Id. The Departments noted the definition was intended “to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.” Id.6 They invited comments on the proposed definition of “religious employer” and potential alternatives. Id.
The Departments received more than 200,000 responses to their request for comments from a variety of entities both supporting and opposing expansion of the proposed exemption. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012). After reviewing these comments, they published final regulations on February 15, 2012, adopting their proposed definition of “religious employer.” Id. at 8727. They also created a one-year safe harbor for religious non-profit organizations, during which the Departments would not enforce the Mandate against them. Id. at 8728. 2. The Accommodation Scheme for Religious Non-Profit Organizations
In response to religious groups that were dissatisfied with the scope of the proposed religious employer exemption, the Departments issued an advance notice of
6 A number of states have laws that require employers to cover contraceptive services but excuse some religious employers from complying. The Departments developed their definition to accord with these existing state laws. See 76 Fed. Reg. at 46,623.
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proposed rulemaking (“ANPRM”) in anticipation of creating additional accommodations for non-exempt religious non-profit organizations. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). After reviewing the comments received from the ANPRM, the Departments published proposed rules creating an accommodation for a wider range of religious non-profit organizations. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 8456 (Feb. 6, 2013).
The Departments received over 400,000 comments on the proposed rules, and finalized two notable changes. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870, 39,871 (July 2, 2013). First, the Departments simplified and clarified the existing exemption for religious employers by eliminating the first three elements of the definition, thereby defining “religious employer” as “an employer 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 [(“IRC”)].” Id. at 39,874. Second, they created an accommodation for religious non-profit organizations that did not meet this simplified definition of a religious employer. Id.
The regulations state a religious non-profit organization can receive this accommodation if it: (1) has religious objections to “providing coverage for some or all of the contraceptive services required to be covered” under the Mandate, (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.” Id. The
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accommodation is available for both (1) insured group health plans, under which an employer contracts with a health insurance issuer to assume the risk of providing benefits to employees, and (2) self-insured group health plans, under which the employer itself assumes the risk of providing benefits to employees. Id. at 39,875-80.7 As we explain below, religious non-profit organizations can self-certify their religious objection and receive the accommodation either by notifying their health insurance issuer or TPA or by notifying HHS directly.
a. EBSA Form 700 To self-certify under the accommodation scheme, the Departments initially required religious non-profit organizations to use the Employee Benefits Security Administration’s (“EBSA”) Form 700 (“Form”).8 Objecting organizations are relieved from complying with the Mandate by delivering the executed Form to their health insurance issuer or TPA. The Form notifies the health insurance issuer or TPA that the organization self-certifies as exempt from the Mandate because it has a religious objection to providing coverage for some or all contraceptive services to its employees, and identifies the relevant federal regulations under which the organization is permitted to opt out of that obligation. See Dep’t of Labor, EBSA Form 700 (Aug. 2014),
7 Employers with self-insured group health plans typically employ a TPA to coordinate logistics and deliver benefits. Cong. Budget Office, Key Issues in Analyzing Major Health Insurance Proposals, 6 (Dec. 2008), http://www.cbo.gov/sites/default/files/12-18-keyissues.pdf.
8 A copy of the Form appears at the end of this opinion.
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http://www.dol.gov/ebsa/preventiveserviceseligibleorganizationcertificationform.doc (citing 26 C.F.R. § 54.9815-2713A(a); 29 C.F.R. § 2590.715-2713A(a); 45 C.F.R. § 147.131(b)).
The back of the Form notifies TPAs of their obligations.9 Form at 2. It informs the TPA that the eligible organization “[w]ill not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services.” Form at 2. It identifies regulations requiring the TPA to provide contraceptive coverage without cost sharing to plan participants and beneficiaries if the TPA agrees to continue providing administrative services for a group health plan. Id. (citing 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2510.3-16; 29 C.F.R. § 2590.715-2713A). A TPA that receives the Form from an objecting employer is eligible for a government payment to cover the costs of providing contraceptive coverage. See 45 C.F.R. § 156.50(d)(5).
As part of this scheme, the regulations initially included a non-interference provision, which specified that objecting religious non-profit organizations “must not, directly or indirectly, seek to influence the third party administrator’s decision” whether to provide coverage for contraceptives. 26 C.F.R. § 54.9815-2713A(b)(iii) (2013). When the Plaintiffs filed their suits, they sought a preliminary injunction relieving them
9 The notice of regulatory requirements on the back of the Form is specifically addressed to TPAs. See Form at 2. The legal obligations of health insurance issuers are evident from the text of the ACA itself. See 42 U.S.C. § 300gg-13.
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from complying with this version of the accommodation scheme, arguing delivery of the Form to their health insurance issuer or TPA constituted a substantial burden on their religious exercise in violation of RFRA and the First Amendment.
b. Alternative notice In response to litigation by Plaintiffs and others, the Departments have since expanded the accommodation scheme.10 The Supreme Court granted injunctions pending appeal in two suits brought by religious non-profit organizations, including the Little Sisters, that objected to the accommodation scheme. See Wheaton Coll. v. Burwell, 134 S. Ct. 2806 (2014); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Sebelius, 134 S. Ct. 1022 (2014). In a third suit, the Court declined to recall or stay a circuit court mandate in favor of the Government, but granted an injunction to religious non-profit organizations pending final disposition of their petition for certiorari. See Zubik v. Burwell, Nos. 14A1065, 14-1418, 2015 WL 3947586, at *1 (U.S. June 29, 2015). The injunctions allowed the organizations to notify HHS directly of their religious objection to the Mandate rather than sending the Form to their health insurance issuers or TPAs. In response to the injunction in Wheaton College, the Departments issued an interim final rule on August 27, 2014, creating an alternative accommodation for religious non-profit organizations. Coverage of Certain Preventive Services Under the
10 As we explain in this section, the Departments did not expand the pool of actors who could claim an accommodation and obtain relief from the Mandate. They expanded the accommodation scheme by offering objecting organizations an alternative method of self-certification.
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Affordable Care Act, 79 Fed. Reg. 51,092, 51,092 (Aug. 27, 2014).11
These regulations relieve a religious non-profit organization from complying with
the Mandate if it notifies HHS in writing of its religious objection to the provision of
some or all contraceptive services. Id. at 51,094. The notice may be sent by letter or
email, and must contain (1) “the name of the eligible organization and the basis on which
it qualifies for an accommodation,” (2) “its objection based on sincerely held religious
beliefs to providing coverage of some or all contraceptive services,” including any
particular subset to which it objects; (3) the name and type of the group health plan; and
(4) the name and contact information for any of the plan’s TPAs and/or health insurance
issuers. Id. at 51,094-95. According to the Departments, these requirements constitute
“the minimum information necessary for the Departments to determine which entities are
covered by the accommodation, to administer the accommodation, and to implement the
11 We discuss the procedural history of the cases before us below, but note that this alternative accommodation is akin to the accommodation granted by the Supreme Court in the cases mentioned above—Little Sisters, 134 S. Ct. 1022; Wheaton College, 134 S. Ct. 2806; and Zubik, 2015 WL 3947586:
If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators. Wheaton Coll., 134 S. Ct. at 2807.
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policies in the July 2013 final regulations.” Id. at 51,095.
The revised regulations also repeal the non-interference provision by deleting
language prohibiting organizations from interfering with or seeking to influence their TPA’s decision to cover contraception. Id.12
We note again that the entirety of this accommodation scheme for religious non-
profit organizations—using either the Form or the alternative notice to HHS—was not
available to the for-profit corporate plaintiff in Hobby Lobby. Here, an accommodation is
available to Plaintiffs. In the cases before us, we consider whether their taking advantage
of that accommodation to opt out of the Mandate is itself a substantial burden on their
religious exercise.
3. The Mechanics of the Accommodation for Insured Plans, Self-Insured Plans, and Self-Insured Church Plans The Plaintiffs use different types of employer-sponsored group health plans, which
the Departments treat differently within the accommodation scheme. By its own terms,
12 The regulations explain the rationale for this change: The Departments interpret the July 2013 final regulations solely as prohibiting the use of bribery, threats, or other forms of economic coercion in an attempt to prevent a third party administrator from fulfilling its independent legal obligations to provide or arrange separate payments for contraceptive services. Because such conduct is generally unlawful and is prohibited under other state and federal laws, and to reduce unnecessary confusion, these interim final regulations delete the language prohibiting an eligible organization from interfering with or seeking to influence a third party administrator’s decision or efforts to provide separate payments for contraceptive services. 79 Fed. Reg. at 51,095.
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the ACA obligates both group health plans and health insurance issuers to provide contraceptive coverage. 42 U.S.C. § 300gg-13 (“A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”); 26 C.F.R. § 54.98152713(a)(1); 29 C.F.R. § 2590.715-2713(a)(1); 45 C.F.R. § 147.130(a)(1). Because the differences among these arrangements are relevant to our discussion of the merits of Plaintiffs’ claims, we consider it helpful to explain how the Mandate and accommodation scheme affect insured plans, self-insured plans, and self-insured church plans.
a. Insured plans When a religious non-profit organization offers its employees an insured plan, the statutory language not only requires the group health plan to cover contraception, but also obligates the plan’s health insurance issuer to ensure plan participants and beneficiaries receive contraceptive coverage. See 42 U.S.C. §§ 300gg-13; 300gg-22. Thus, even if a religious non-profit organization does not self-certify that it has an objection, its health insurance issuer is obligated to provide contraceptive coverage to plan participants and beneficiaries and charge the organization for the cost. See Priests for Life v. U.S. Dep’t of Health & Hum. Servs., 7 F. Supp. 3d 88, 95-96 & n.2 (D.D.C. 2013). The organization can free itself from complying with the Mandate and paying for that coverage, however,
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“if the eligible organization or group health plan provides either a copy of the selfcertification to each issuer providing coverage in connection with the plan or a notice to the Secretary of Health and Human Services.” 26 C.F.R. § 54.9815-2713AT(c)(1); 29 C.F.R. § 2590.715-2713A(c)(1); 45 C.F.R. § 147.131(c)(1). When an organization submits the Form expressing an objection to providing contraceptive coverage, “the issuer has sole responsibility for providing such coverage in accordance with § 147.130.” 45 C.F.R. § 147.131(c)(1)(i); see also 26 C.F.R. § 54.9815-2713AT(c)(1)(i) (requiring coverage in accordance with § 54.9815-2713); 29 C.F.R. § 2590.715-2713A(c)(1)(i) (requiring coverage in accordance with § 2590.715-2713). Similarly, when an organization notifies HHS, the Department of Labor will send a separate notification to the organization’s issuer informing it of that notice and describing its regulatory obligations. 45 C.F.R. § 147.131(c)(1)(ii); see also 26 C.F.R. § 54.98152713AT(c)(1)(ii); 29 C.F.R. § 2590.715-2713A(c)(1)(ii).
In the context of insured plans, health insurance issuers are generally responsible for paying for contraceptive coverage when a religious non-profit organization opts out. See 45 C.F.R. § 156.50. The Departments expect this will be cost-neutral for issuers because of the cost savings that accompany improvements in women’s health and lower pregnancy rates. See 78 Fed. Reg. at 39,877.
b. Self-insured plans When a religious non-profit organization offers its employees a self-insured plan, the accommodation works in a slightly different fashion. A self-insured group health
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plan complies with the regulatory requirements and is excused from providing contraceptive coverage if “[t]he eligible organization or its plan contracts with one or more third party administrators” and “[t]he eligible organization provides either a copy of the self-certification to each third party administrator or a notice to the Secretary of Health and Human Services that it is an eligible organization and of its religious objection to coverage of all or a subset of contraceptive services.” 26 C.F.R. § 54.98152713AT(b)(1); 29 C.F.R. § 2590.715-2713A(b)(1).
Although the text of the ACA does not specify a role for TPAs, it expressly requires group health plans to include contraceptive coverage, and federal regulations impose obligations on TPAs that administer self-insured group health plans. See 42 U.S.C. § 300gg-13; 26 C.F.R. § 54.9815-2713AT(b); 29 C.F.R. § 2590.715-2713A(b). The regulations require a TPA administering a group health plan to provide or arrange for contraceptive coverage without cost sharing with the organization or its beneficiaries when it: (1) receives a notification that an eligible employer has opted out of providing coverage and (2) decides to remain in a relationship with that employer or its plan to provide administrative services for the plan. 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The TPA’s obligations are enforceable under the Employee Retirement Income Security Act (“ERISA”). See 78 Fed. Reg. at 39,879-80.
In the context of self-insured plans, a TPA may seek reimbursement if it has received the Form or a notification from the government and “provides or arranges payments for contraceptive services.” See 26 C.F.R. § 54.9815-2713AT(b)(3); 29 C.F.R.
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§ 2590.715-2713A(b)(3); 45 C.F.R. § 156.50(d)(2)(ii)-(iii). TPAs do so by working through health insurance issuers, who receive adjustments to fees they pay to the government under the ACA and pass along the reimbursements to TPAs. See 45 C.F.R. § 156.50(d).
c. Self-insured church plans Although federal regulations impose certain requirements on TPAs, the Departments concede they lack authority to enforce those requirements as to self-insured “church plans,” which are group health plans established by a church or association of churches covering the church’s or association’s employees. 29 U.S.C. § 1002(33). Organizations that provide health care coverage for employees through self-insured church plans are exempt from regulation under ERISA. 29 U.S.C. § 1003(b)(2). Unless a church plan has made an election under 26 U.S.C. § 410(d), which opts plans into provisions of ERISA, the Departments concede they lack authority to compel church plan TPAs to provide contraceptive coverage, and may not levy fines against those TPAs for failing to provide it.
d. Legal obligation to provide coverage after the accommodation Although the accommodation is available for both insured and self-insured group health plans, the source of the legal obligation to provide contraceptive coverage after a religious non-profit organization has opted out differs based on the type of insurance arrangement the organization uses. When an organization takes advantage of the accommodation, the ACA requires health insurance issuers to provide coverage for
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insured group health plans, while federal regulations adopted pursuant to the ACA require TPAs to arrange coverage for self-insured group plans that are subject to ERISA. As we discuss below, these distinctions shape the claims advanced by different Plaintiffs in the cases before us.
B. The Plaintiffs The Plaintiffs13 in this litigation object to both means to receive an accommodation—sending the Form to their health insurance issuer or TPA or sending a notification to HHS. The Plaintiffs differ from each other in ways that are relevant to the Departments’ authority to require employers to provide contraceptive coverage and relieve objecting religious non-profit organizations from the Mandate when they use the accommodation scheme. 1. Little Sisters of the Poor The Little Sisters of the Poor Home for the Aged, Denver, Colorado and Little Sisters of the Poor, Baltimore (“Little Sisters”) belong to an order of Catholic nuns who devote their lives to care for the elderly. The Little Sisters provide health insurance coverage to their employees through the Christian Brothers Employee Benefit Trust (“Trust”), a self-insured church plan that is not subject to ERISA. The Trust uses Christian Brothers Services (“Christian Brothers”), another Catholic organization, as its TPA.
13 When we refer to the plaintiffs in all three cases collectively, we use “Plaintiffs.” When we refer to a subset of the plaintiffs, we use “plaintiffs.”
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The Little Sisters have always excluded coverage of sterilization, contraception, and abortifacients from their health care plan in accordance with their religious belief that deliberately avoiding reproduction through medical means is immoral. The Little Sisters “believe that it is wrong for them to intentionally facilitate the provision of these medical procedures, drugs, devices, and related counseling and services.” LS Br. at 10. They cite “well-established Catholic teaching that prohibits encouraging, supporting, or partnering with others in the provision of sterilization, contraception, and abortion.” LS Br. at 9-10. The Little Sisters contend they “cannot provide these things, take actions that directly cause others to provide them, or otherwise appear to participate in the government’s delivery scheme,” as the mere appearance of condoning these services “would violate their public witness to the sanctity of human life and human dignity and could mislead other Catholics and the public.” LS Br. at 10.
The Little Sisters are subject to the Mandate unless they take advantage of the accommodation scheme by delivering the Form to the Christian Brothers, their TPA, or notifying HHS of their religious objection. If they do not take one of these steps and do not provide contraceptive coverage, they estimate a single Little Sisters home could incur penalties of up to $2.5 million per year, and allege the Trust could lose up to $130 million in plan contributions. The Little Sisters plaintiffs object that the accommodation scheme violates their sincerely held religious beliefs because they cannot take actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme.
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2. Southern Nazarene
Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist
University, and Mid-America Christian University are “Christ-centered institutions of
higher learning.” SN Br. at 1-2. Southern Nazarene is partially self-insured; it generally
assumes the risks of providing coverage but contracts with a health insurance issuer to
pay all claims over $100,000. For its insured employee coverage, it uses Blue Cross Blue
Shield of Oklahoma. It offers separate coverage to students through an insured plan.
Oklahoma Baptist is an insured university. It uses Blue Cross Blue Shield of Oklahoma,
and offers separate coverage to students through an insured plan. Oklahoma Wesleyan is
an insured university. It uses Community Care of Oklahoma. Mid-America Christian is
a self-insured university on a church plan that is not subject to ERISA. It uses plans
provided by GuideStone Financial Resources.14
14 The descriptions of Mid-America Christian’s insurance arrangements in the record before us are inconsistent. Before the district court, counsel described MidAmerica Christian’s plan as “insured by GuideStone,” App. in SN at A32, and suggested it would be obligated, like Oklahoma Baptist and Oklahoma Wesleyan, to deliver the Form to its health insurance issuer to opt out of the Mandate. In its opening brief on appeal, counsel described Mid-America Christian’s plan as “self-insured,” and suggested it would be obligated, like Southern Nazarene, to deliver the Form to its TPA. SN Br. at 2, 18. In a supplemental brief and at oral argument, counsel now indicates Mid-America Christian has a self-insured church plan and is more akin to the Reaching Souls plaintiffs. SN Supp. Br. II at 9 n.2; Oral Arg. in SN at 20:24-20:32.
We treat Mid-America Christian’s plan as a self-insured church plan. The parties in Southern Nazarene stipulated as fact that Mid-America Christian’s group health plan is provided by GuideStone Financial Resources. Southern Nazarene, 2013 WL 6804265, at *2. Because we understand GuideStone Financial Resources to be a sponsor of selfinsured church plans and not an insurer, we assume the latest characterization on appeal
Continued . . .
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The universities have brought suit collectively, but they are in slightly different positions insofar as Mid-America Christian University uses a church plan and contracts with a TPA, Oklahoma Baptist University and Oklahoma Wesleyan use health insurance issuers, and Southern Nazarene contracts with a TPA but uses a health insurance issuer for student coverage and employee claims above $100,000.
The universities believe “it would be sinful and immoral for them to participate in, pay for, facilitate, enable, or otherwise support access to abortion, abortion-inducing drugs and devices, and related counseling.” SN Br. at 1-2. They object to the provision of contraceptives they consider abortifacients. The universities currently offer health plans to students and employees that do not cover the contraceptives the universities find objectionable.
The universities are subject to the Mandate, but they may take advantage of the accommodation scheme by delivering the Form or notifying HHS of their religious objections to relieve themselves of the obligation to provide contraceptive coverage. They object to the accommodation, however, because they believe it requires them to expressly or functionally offer contraceptive coverage through their group health plan, interferes with the spiritual development of their communities, and requires them to facilitate behavior they consider sinful. If they do not take advantage of the
______________________________________ Cont.
is correct and treat Mid-America Christian’s group health plan as a self-insured church plan that is not subject to ERISA.
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accommodation, each university must either provide coverage or incur penalties of $100 per employee per day. 3. Reaching Souls
Reaching Souls is a non-profit corporation founded by a Southern Baptist minister and based in Oklahoma. The organization trains pastors and evangelists and provides care to orphans in Africa, India, and Cuba. Truett-McConnell College is a private liberal arts college based in Georgia. Both Reaching Souls and Truett-McConnell use the GuideStone Plan, a self-insured church plan that is not subject to ERISA. GuideStone Financial Resources, a Texas non-profit corporation, established the GuideStone Plan and holds the assets funding it in trust. GuideStone Financial Resources has entered into agreements with other entities to provide claims administration as TPAs under the GuideStone Plan, including Connecticut General Life Insurance Company, Highmark Health Services, and Express Scripts, Inc.
Reaching Souls believes life begins at conception and objects to four of the twenty FDA-approved methods of contraception that Reaching Souls characterizes as abortifacients. Truett-McConnell has adopted the Southern Baptist Convention’s statement of faith and objects to the same four methods of contraception. GuideStone Financial Resources, as an arm of the Southern Baptist Convention, also opposes coverage of contraception methods it believes to be abortifacients. The organizations ground their beliefs in the sanctity of human life and opposition to elective abortion in the religious teachings of the Southern Baptist Convention.
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Both Reaching Souls and Truett-McConnell College are subject to the Mandate, but they may take advantage of the accommodation scheme by delivering the Form or notifying HHS of their religious objections. If they do, GuideStone Financial Resources would have to pass the information to the TPAs of the GuideStone Plan to effectuate the coverage. The plaintiffs believe this would violate their religious beliefs “by making them complicit in the government’s scheme to provide abortifacients.” RS Br. at 4. If the organizations do not take advantage of the accommodation scheme or provide coverage, they contend they will incur millions of dollars in fines, which “would crush the ministries and force a mass exodus from GuideStone.” RS Br. at 3.
C. Procedural History The district courts reached different results in the three cases before us, denying a preliminary injunction to the plaintiffs in Little Sisters but granting a preliminary injunction to the plaintiffs in Southern Nazarene and Reaching Souls. Reviewing the reasoning behind their determinations clarifies the claims before us on appeal. 1. Little Sisters of the Poor In Little Sisters, the district court determined that complying with the accommodation scheme would not impose a substantial burden on the Little Sisters’ or Christian Brothers’ religious exercise. 6 F. Supp. 3d at 1239-45. The court’s analysis of the preliminary injunction factors began and ended by examining whether the plaintiffs would suffer irreparable injury if the requested relief were denied. Id. at 1236. After determining it was the court’s duty to determine how the regulations operate as a matter
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of law, id. at 1239, the court concluded the accommodation scheme does not require the Little Sisters to provide contraceptive coverage or to participate in the provision of contraceptive coverage, id. at 1239-42.
The court noted that the Little Sisters—unlike the plaintiffs in Hobby Lobby— could be relieved of the obligation to provide coverage by signing and delivering the Form to their TPA, the Christian Brothers. Id. at 1237.15 The court underscored that, while the Departments could require the Little Sisters to sign and deliver the Form to their TPA to avoid the Mandate, the Departments lacked enforcement authority under ERISA to levy fines or otherwise force the Christian Brothers to provide contraceptive coverage as the TPA for a self-insured, ERISA-exempt church plan. Id. at 1243-44. The court concluded that requiring the Little Sisters to sign and deliver the Form to opt out did not constitute a substantial burden on their religious exercise and declined to issue a preliminary injunction. Id. at 1242-45.
The Little Sisters next asked the Tenth Circuit for an injunction pending appeal, which this court denied. The Supreme Court subsequently granted their request for an injunction pending appeal, allowing the Little Sisters to notify HHS of their religious objection instead of sending the Form to their TPA as the regulations at the time required.
15 At the time the district courts decided all three of the cases before us, the interim final rules allowing Plaintiffs to opt out by notifying HHS of their religious objection had not yet been issued. The district court decisions therefore focus on the Form and do not consider the expanded accommodation scheme in August 2014’s interim final rules. In supplemental briefing to this court, the Plaintiffs argue the expanded scheme does not adequately address the religious liberty concerns they have raised in this litigation.
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See Little Sisters, 134 S. Ct. 1022. The Little Sisters now appeal the district court’s
denial of a preliminary injunction.
2. Southern Nazarene
In Southern Nazarene, the district court granted a preliminary injunction to the
plaintiffs. 2013 WL 6804265, at *11. The court’s analysis focused mainly on the plaintiffs’ likelihood of success on the merits.16 Id. at *7-10. The court characterized the
Form as “in effect, a permission slip which must be signed by the institution to enable the
plan beneficiary to get access, free of charge, from the institution’s insurer or third party
administrator, to the products to which the institution objects.” Id. at *8. It determined
the Form imposed a substantial burden on the plaintiffs’ sincere religious exercise and the
Government had not articulated a compelling state interest or argued its approach was the
least restrictive means of advancing that interest. Id. at *7-10.
16 The district court noted that, unlike in the recently decided Priests for Life, 7 F. Supp. 3d 88, the parties in Southern Nazarene “stipulated that the act of signing the certification is contrary to the religious beliefs to which these institutions subscribe.” Southern Nazarene, 2013 WL 6804265, at *8. The court’s characterization paraphrases the stipulation, which addresses only the litigation position taken by the Southern Nazarene plaintiffs. The parties specifically stipulated: “The Universities believe that, within the operation of the regulations, completing and delivering the self-certification to their issuers or third party administrators would violate the Universities’ sincere religious beliefs.” Id. at *5. The Government accepts that the Southern Nazarene plaintiffs take the position that completing the self-certification would violate their religious beliefs—a fairly straightforward characterization of their litigation position—but has never conceded that completing the self-certification actually would violate their religious beliefs.
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The court concluded the plaintiffs had shown they were likely to succeed on the merits. Id. After reaching this conclusion, it briefly reviewed the other preliminary injunction factors and entered a preliminary injunction that prevented the Departments from enforcing the Mandate, requiring self-certification to opt out, or levying penalties. Id. at *10-11. The Government now appeals the district court’s ruling. 3. Reaching Souls
Like the district court in Southern Nazarene, the district court in Reaching Souls granted a preliminary injunction to the plaintiffs. 2013 WL 6804259, at *8. The court primarily analyzed the likelihood of plaintiffs’ success on the merits. Id. at *6-8. It characterized the Government’s substantial burden argument as “simply another variation of a proposition rejected by the court of appeals in Hobby Lobby,” likening it to the argument that the Mandate was not a substantial burden on for-profit employers because it required intervening acts by third parties—employees deciding whether to acquire contraception. Id. at *7. It emphasized that regardless of whether the Form actually triggers the provision of contraceptive services, the plaintiffs believe that signing it would signal their tacit support or cooperation. Id.
The court thus determined “the accommodation scheme applies substantial pressure on Plaintiffs to violate their belief that participating in or facilitating the accommodation is the moral equivalent of directly complying with the contraceptive mandate.” Id. at *8. It briefly reviewed the other preliminary injunction factors and enjoined the Government from requiring the plaintiffs to comply with the Mandate and
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accommodation scheme or penalizing the plaintiffs for noncompliance. Id. The Government now appeals the district court’s ruling.
IV. UNUSUAL NATURE OF PLAINTIFFS’ CLAIM Before we present our analysis of the issues, we wish to highlight the unusual nature of Plaintiffs’ central claim, which attacks the Government’s attempt to accommodate religious exercise by providing a means to opt out of compliance with a generally applicable law. Most religious liberty claimants allege that a generally applicable law or policy without a religious exception burdens religious exercise, and they ask courts to strike down the law or policy or excuse them from compliance. Our circuit’s three most recent RFRA cases fall into this category. In Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), aff’d sub nom. Hobby Lobby, 134 S. Ct. 2751, the ACA required the plaintiffs to provide their employees with health insurance coverage of contraceptives against their religious beliefs. In Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014), a prison policy denied the plaintiff access to a sweat lodge, where he wished to exercise his Native American religion. In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), a prison policy denied the plaintiff a halal diet, which is necessary to his Muslim religious exercise. In each instance, the law or policy failed to provide an exemption or accommodation to the plaintiff(s). The Supreme Court’s recent ruling in Holt v. Hobbs, 135 S. Ct. 853 (2015), which concerned a prison ban on inmates’ growing beards, is another recent example of the
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more common RFRA claim. The plaintiff in Holt sought to grow a beard in accordance
with his Muslim faith. In Holt, like in Hobby Lobby, the government defendants insisted
on a complete restriction and did not attempt to accommodate the plaintiff’s religious
exercise. The plaintiff in Holt proposed a compromise—he would be allowed to grow
only a half-inch beard—which the prison refused. 135 S. Ct. at 861. The Court
ultimately approved this compromise in its ruling. Id. at 867.
In the cases before us, by contrast, the Departments have developed a religious
accommodation rather than leaving it for the courts to fashion judicial relief. Plaintiffs
not only challenge a law that requires them to provide contraceptive coverage against
their religious beliefs, they challenge the exception that the law affords to them. The
precedents Plaintiffs cite are instructive in some respects, but none of them involve a situation where the government offers religious objectors an accommodation.17 The
Supreme Court and this circuit have suggested such accommodations might have
eliminated or lessened burdens we otherwise deemed substantial. See, e.g., Hobby
Lobby, 134 S. Ct. at 2759 (observing the accommodation scheme “constitutes an
17 The accommodation adds an additional consideration that makes this unlike the typical RFRA case. In Hobby Lobby, Yellowbear, Abdulhaseeb, and Holt, the government either required or prohibited acts of religious significance to the plaintiffs. In the cases before us, the government has freed Plaintiffs from the responsibility to perform the act they consider religiously objectionable—namely, providing contraceptive coverage. Nonetheless, the Plaintiffs argue an act they do not consider objectionable in itself—completing a form or writing to HHS—becomes objectionable because it either causes the provision of contraceptive coverage or renders them complicit in the provision of contraceptive coverage. Therefore, unlike the aforementioned cases, we are in the slightly different position of considering whether an otherwise unobjectionable act, understood in context, constitutes a substantial burden on Plaintiffs’ religious exercise.
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alternative that achieves all of the Government’s aims while providing greater respect for religious liberty”); Yellowbear, 741 F.3d at 56 (underscoring that the case “isn’t a situation where the claimant is left with some degree of choice in the matter and we have to inquire into the degree of the government’s coercive influence on that choice”). Until now, however, we have not squarely considered a RFRA challenge to a religious accommodation.
The closest Tenth Circuit case we have found is United States v. Friday, 525 F.3d 938 (10th Cir. 2008), in which defendant Winslow Friday argued his conviction for shooting a bald eagle without a permit violated RFRA because he shot the eagle for use in a tribal religious ceremony. The Bald and Golden Eagle Protection Act forbids killing a bald eagle, but an applicant can obtain a permit to “take” a live eagle for a religious ceremony. See 16 U.S.C. §§ 668, 668a. We recognized the potential question of “whether it substantially burdens Mr. Friday’s religion to require him to obtain a permit in advance of taking an eagle.” Friday, 525 F.3d at 947. We said we were “skeptical that the bare requirement of obtaining a permit can be regarded as a ‘substantial burden’ under RFRA,” id., but Mr. Friday did not make that specific argument, and we decided the permit accommodation otherwise met RFRA’s strict scrutiny element, id. at 948.
We spoke favorably of the government’s accommodation scheme in Friday, even though “[t]hat accommodation may be more burdensome than the [religious objectors] would prefer, and may sometimes subordinate their interests to other policies not of their choosing.” Id. at 960. As we noted in conclusion: “Law accommodates religion; it
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cannot wholly exempt religion from the reach of the law.” Id. We therefore turn to uncharted Tenth Circuit terrain.
* * * * The Plaintiffs in the three cases before us assert claims against the Mandate and accommodation scheme under RFRA and the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses.18 Because we determine the accommodation scheme relieves Plaintiffs from complying with the Mandate and does not substantially burden their religious exercise under RFRA or infringe upon their First Amendment rights, we affirm the district court’s denial of a preliminary injunction to the plaintiffs in Little Sisters and reverse the district courts’ grants of a preliminary injunction to the plaintiffs in Southern Nazarene and Reaching Souls.
V. RFRA Under RFRA, the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. Plaintiffs argue the ACA and its implementing regulations violate RFRA because
18 We refer to “Plaintiffs” throughout the discussion, but in the First Amendment context, “Plaintiffs” refers only to the plaintiffs in Little Sisters and Reaching Souls. See infra note 51.
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they substantially burden their religious exercise by forcing them to do one of three
things: (a) comply with the Mandate and provide contraceptive coverage, (b) take
advantage of the accommodation scheme, or (c) pay steep fines for non-compliance.19
We conclude that the accommodation scheme relieves Plaintiffs of complying with the
Mandate or paying fines and does not impose a substantial burden on Plaintiffs’ religious
exercise for the purposes of RFRA.
To explain why the accommodation is permissible under RFRA, we first review
the RFRA framework and consider how religious accommodations may lessen or
eliminate the substantiality of a burden on religious exercise. We then apply this
framework to the accommodation scheme before us, which exempts religious non-profits
19 The Government identifies a fourth option: by declining to sponsor a group health plan, Plaintiffs could avoid complying with the Mandate, using the accommodation, or paying the fines. The Government frames the Plaintiffs’ provision of health insurance as an economic expenditure, and notes that regulations may make a business activity more expensive or onerous without violating the freedom of religion. See Tony & Susan Alamo Found. v. Sec. of Labor, 471 U.S. 290, 303-05 (1985); Braunfeld v. Brown, 366 U.S. 599, 605-06 (1961); but see Hobby Lobby, 134 S. Ct. at 2777. Plaintiffs respond that they consider the provision of health insurance a religious obligation, not merely an economic expenditure. Plaintiffs “believe they have a religious obligation to care for the employees who join in their ministry, and they cannot throw those people off their insurance policies without violating that obligation and harming their ministry.” LS Reply Br. at 8.
Because we determine the accommodation scheme is not a substantial burden, we need not decide whether this fourth option constitutes a substantial burden on religious exercise—or, if it does, whether it survives strict scrutiny.
For similar reasons, we need not address the safe harbor provision detailed in the June 2013 regulations, which indicates organizations with self-insured group health plans that bring administration of their plans in-house and thereby do not use third-party administrators currently are not subject to enforcement of the contraceptive coverage requirement. 78 Fed. Reg. at 39,880-81.
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from providing contraceptive coverage and instead assigns that task to health insurance issuers and TPAs.
We conclude the accommodation does not substantially burden Plaintiffs’ religious exercise. The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity. Furthermore, these de minimis administrative tasks do not substantially burden religious exercise for the purposes of RFRA.
The dissent parts ways with our majority opinion on the self-insured plaintiffs’ RFRA claims. It stresses that, by opting out, the self-insured plaintiffs would cause the legal responsibility to provide contraceptive coverage to shift to their TPAs.20 We agree. As we observe below, the regulations are clear on that point.21 But shifting legal
20 Plaintiffs make causation the centerpiece of their RFRA claim. They allege that opting out of the Mandate would cause or make them complicit in providing contraceptive coverage, and thus substantially burdens their religious exercise. Much of our opinion assesses and ultimately rejects the merits of this claim.
21 Indeed, this is an unremarkable feature of the accommodation scheme. An opt out religious accommodation typically contemplates that a non-objector will replace the religious objector and take over any legal responsibilities.
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responsibility to provide coverage away from the plaintiffs relieves rather than burdens their religious exercise. The ACA and its implementing regulations entitle plan participants and beneficiaries to coverage whether or not the plaintiffs opt out. And the government has established a scheme where, if the law is followed, self-insured plaintiffs that opt out are relieved of providing, paying for, and facilitating coverage; the government assigns that responsibility to their TPAs; and plan participants and beneficiaries receive the coverage to which they are entitled by federal law. Such an arrangement is among the common and permissible methods of religious accommodation in a pluralist society, and does not constitute a substantial burden under RFRA.
A. Legal Background 1. Standard of Review
Each appeal before us seeks review of a district court order granting or denying a preliminary injunction. We review orders granting or denying a preliminary injunction for abuse of discretion. See Hobby Lobby, 723 F.3d at 1128; Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006).
A preliminary injunction may be granted if the party seeking it shows: “(1) a likelihood of success on the merits; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the movant outweighs any harm to the non-moving party; and (4) an injunction is in the public interest.” Hobby Lobby, 723 F.3d at 1128. A district court abuses its discretion by granting or denying a preliminary injunction based on an error of law. See id.; Aid for Women, 441 F.3d at 1115.
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2. RFRA and Free Exercise RFRA was enacted in 1993 in response to Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), in which the Supreme Court held that burdens on religious exercise are constitutional under the Free Exercise Clause if they result from a neutral law of general application and have a rational basis. Id. at 878-80; United States v. Hardman, 297 F.3d 1116, 1126 (10th Cir. 2002). Congress enacted RFRA to restore the pre-Smith standard, which permitted legal burdens on an individual’s religious exercise only if the government could show a compelling need to apply the law to that person and that the law did so in the least restrictive way. Smith, 494 U.S. at 882-84; see also Hobby Lobby, 134 S. Ct. at 2792-93 (Ginsburg, J., dissenting). Congress specified the purpose of RFRA was to restore this compelling interest test as it had been recognized in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). See 42 U.S.C. § 2000bb(b)(1).
By restoring the pre-Smith compelling interest standard, Congress did not express any intent to alter other aspects of Free Exercise jurisprudence. See id.; Hobby Lobby, 723 F.3d at 1133 (“Congress, through RFRA, intended to bring Free Exercise jurisprudence back to the test established before Smith. There is no indication Congress meant to alter any other aspect of pre-Smith jurisprudence . . . .”). Notably, pre-Smith jurisprudence allowed the government “wide latitude” to administer large administrative programs, and rejected the imposition of strict scrutiny in that context. As the Supreme Court indicated in Bowen v. Roy,
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In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude. The Government should not be put to the strict test applied by the District Court; that standard required the Government to justify enforcement of the use of Social Security number requirement as the least restrictive means of accomplishing a compelling state interest.
476 U.S. 693, 707 (1986). As we discuss at greater length below, the pre-Smith standards
restored by RFRA permitted the Government to impose de minimis administrative
burdens on religious actors without running afoul of religious liberty guarantees.
3. Elements of RFRA Analysis
RFRA analysis follows a burden-shifting framework. “[A] plaintiff establishes a
prima facie claim under RFRA by proving the following three elements: (1) a substantial
burden imposed by the federal government on a (2) sincere (3) exercise of religion.” Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001); see 42 U.S.C. § 2000bb-1(a).22
The burden then shifts to the government to demonstrate its law or policy advances “a
compelling interest implemented through the least restrictive means available.” Hobby
Lobby, 723 F.3d at 1142-43. The government must show that the “compelling interest
test is satisfied through application of the challenged law ‘to the person’—the particular
22 RFRA originally defined “exercise of religion” as “the exercise of religion under the First Amendment to the Constitution.” In 1999, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) amended RFRA, and redefined “exercise of religion” by reference to 42 U.S.C. § 2000cc-5(7)(A). 42 U.S.C. § 2000bb-2(4). Section 2000cc-5(7)(A) expanded the phrase to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); see Kikumura, 242 F.3d at 960.
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claimant whose sincere exercise of religion is being substantially burdened.” Id. at 1126 (quotations and citation omitted). “This burden-shifting approach applies even at the preliminary injunction stage.” Id.
We have previously stated “a government 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 belief, or (3) places substantial pressure on an adherent to engage in conduct contrary to a sincerely held religious belief.” Hobby Lobby, 723 F.3d at 1125-26 (quotations and alterations omitted); see also Yellowbear, 741 F.3d at 55 (applying this framework to RLUIPA); Abdulhaseeb, 600 F.3d at 1315 (same). As we discuss in the next section, whether a law substantially burdens religious exercise in one or more of these ways is a matter for courts—not plaintiffs—to decide. 4. Courts Determine Substantial Burden
To determine whether plaintiffs have made a prima facie RFRA claim, courts do not question “whether the petitioner . . . correctly perceived the commands of [his or her] faith.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716 (1981); see Hobby Lobby, 723 F.3d at 1138-40. But courts do determine whether a challenged law or policy substantially burdens plaintiffs’ religious exercise. RFRA’s statutory text and religious liberty case law demonstrate that courts—not plaintiffs—must determine if a law or policy substantially burdens religious exercise.
RFRA states the federal government “shall not substantially burden a person’s
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exercise of religion.” 42 U.S.C. § 2000bb-1(a). We must “give effect . . . to every clause and word” of a statute when possible. United States v. Menasche, 348 U.S. 528, 538-39 (1955). Drafts of RFRA prohibited the government from placing a “burden” on religious exercise. Congress added the word “substantially” before passage to clarify that only some burdens would violate the act. 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statements of Sen. Kennedy and Sen. Hatch).
We therefore consider not only whether a law or policy burdens religious exercise, but whether that burden is substantial. If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning. See Menasche, 348 U.S. at 53839. Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.
Every circuit that has addressed a RFRA challenge to the accommodation scheme at issue here has concluded that whether the government has imposed a “substantial burden” is a legal determination. See E. Tex. Baptist Univ. v. Burwell, Nos. 14-20112, 14-10241, 14-40212, 14-10661, 2015 WL 3852811, at *3-5 & n.33 (5th Cir. June 22, 2015); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 612 (7th Cir. 2015); Geneva Coll. v. Sec’y of U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 436 (3d Cir. 2015); Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 247-49 (D.C. Cir. 2014); Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372, 385 (6th
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Cir. 2014), vacated and remanded, 135 S. Ct. 1914 (2015). This is consistent with our
determination that we review de novo “what constitutes [a] substantial burden . . . and the
ultimate determination as to whether the RFRA has been violated.” United States v.
Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996); see also Yellowbear, 741 F.3d at 56
(determining “a reasonable finder of fact could conclude the prison has substantially
burdened Mr. Yellowbear’s religious exercise”). Thus, we “accept[] as true the factual
allegations that [Plaintiffs’] beliefs are sincere and of a religious nature—but not the legal
conclusion, cast as a factual allegation, that [their] religious exercise is substantially
burdened.” Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008); see Mahoney v.
Doe, 642 F.3d at 1112, 1121 (D.C. Cir. 2011); Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001).23
We have cautioned that substantiality does not permit us to scrutinize the
“theological merit” of a plaintiff’s religious beliefs—instead, we analyze “the intensity of
23 Plaintiffs cite Thomas to argue we must accept their belief that they cannot participate in the accommodation whether or not that belief is “acceptable, logical, consistent, or comprehensible.” LS Br. at 47; RS Br. at 39 (quoting Thomas, 450 U.S. at 714). Thomas concerned the denial of unemployment benefits to a claimant who quit his job because his religious beliefs prohibited him from producing armaments to be used for war. Thomas prevents courts from scrutinizing the theological merit of a plaintiff’s sincere religious belief, but not from assessing whether a challenged law or policy amounts to a substantial burden on religious exercise. See Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds. We do, however, have doubts whether the alleged burden imposed by the deduction disallowance on the Scientologists’ practices is a substantial one.” (citing Thomas, 450 U.S. at 716)).
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the coercion applied by the government to act contrary to those beliefs.” Hobby Lobby, 723 F.3d at 1137 (emphasis omitted). “Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.” Id.24 In determining whether a law or policy applies substantial pressure on a claimant to violate his or her beliefs, we consider how the law or policy being challenged actually operates and affects religious exercise. See Geneva Coll., 778 F.3d at 436 (“We may consider the nature of the action required of the appellees, the connection between that action and the appellees’ beliefs, and the extent to which that action interferes with or otherwise affects the appellees’ exercise of religion—all without delving into the appellees’ beliefs.”); see also 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy) (observing that RFRA would not impose strict scrutiny for “governmental actions that have an incidental effect on religious institutions”).
When evaluating RFRA claims, we have therefore recognized that not all burdens alleged by plaintiffs amount to substantial burdens. See Abdulhaseeb, 600 F.3d at 1321 (“We are not willing to conclude, however, that every single presentation of a meal an inmate considers impermissible constitutes a substantial burden on an inmate’s religious exercise.”); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 654 (10th Cir. 2006) (“[W]e are not persuaded by Grace United’s assertion that the Board’s
24 The Government does not dispute the sincerity of Plaintiffs’ religious beliefs. See Little Sisters, 6 F. Supp. 3d at 1237; Southern Nazarene, 2013 WL 6804265, at *5; Reaching Souls, 2013 WL 6804259, at *4.
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denial of a zoning variance for its proposed daycare operation constitutes more than an incidental burden on religious conduct.”); Kikumura, 242 F.3d at 961 (requiring evidentiary proof from the plaintiff that an alleged burden was “substantial” and remanding to the district court). Furthermore, as we discuss in the following section, the existence of an accommodation may affect whether a law or policy burdens religious exercise and whether that burden is substantial. 5. Accommodations Can Lessen or Eliminate Burden
We finally note that accommodations function to lessen or eliminate the burden of a generally applicable law. In Hobby Lobby, this court said the stark choice between providing contraceptive coverage and paying steep fines constitutes a sufficiently substantial burden to warrant relief under RFRA. Hobby Lobby, 723 F.3d 1114. Religious objectors are not always put to such a stark choice. When, as here, plaintiffs are offered an accommodation to a law or policy that would otherwise constitute a substantial burden, we must analyze whether the accommodation renders the potential burden on religious exercise insubstantial or nonexistent such that the law or policy that includes the accommodation satisfies RFRA.
Accommodations may eliminate burdens on religious exercise or reduce those burdens to de minimis acts of administrative compliance that are not substantial for RFRA purposes. The Supreme Court recognized this point in Hobby Lobby when it suggested an accommodation to exempt the plaintiff corporations from complying with the Mandate could satisfy RFRA concerns. Hobby Lobby, 134 S. Ct. at 2782 (“At a
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minimum, [the accommodation] does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.”); see also id. at 2786-87 (Kennedy, J., concurring). The D.C. Circuit observed that “[a] burden does not rise to the level of being substantial when it places an inconsequential or de minimis burden on an adherent’s religious exercise.” Priests for Life, 772 F.3d at 246 (quotations, citations, and alterations omitted). Were it otherwise, our substantial burden inquiry would become a blunt tool incapable of recognizing the meaningful difference between forcing organizations to provide or pay for contraceptives and allowing them to opt out of that requirement. To determine whether the accommodation scheme in these cases renders the alleged burden on Plaintiffs’ religious exercise nonexistent or insubstantial, we turn to the merits of Plaintiffs’ RFRA arguments.
B. Substantial Burden Analysis 1. Plaintiffs’ RFRA Arguments
The cases before us turn on whether complying with the accommodation constitutes a substantial burden. The Government does not dispute the sincerity of Plaintiffs’ religious belief that they may not provide, pay for, or facilitate contraceptive coverage. The parties dispute whether the accommodation scheme substantially burdens the Plaintiffs’ exercise of religion.
Plaintiffs oppose completing the Form or notifying HHS because they believe they are being asked to play a causal role in the delivery of contraceptive coverage and would
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be complicit or perceived to be complicit in the overall contraceptive delivery scheme by
virtue of their opting out. They also allege their continuing involvement in the regulatory
scheme is a substantial burden.25
The Government responds that completing the Form or notification does not
involve Plaintiffs in the delivery of contraceptive coverage. The accommodation relieves
Plaintiffs of their obligations under the Mandate, and when that occurs, federal law
authorizes and obligates a health insurance issuer or TPA to provide or arrange for the
delivery of contraceptive coverage to plan participants and beneficiaries who are entitled
to that coverage under the ACA. The Government therefore argues the accommodation
25 The Little Sisters and Reaching Souls plaintiffs clarify that they “have never objected to merely identifying themselves so that the government can leave them alone.” LS Supp. Br. II at 2 n.2; RS Supp. Br. II at 2 n.2. They have expressed satisfaction with the Supreme Court’s injunctions pending appeal in Little Sisters and Wheaton College. LS Supp. Br. II at 1-2; RS Supp. Br. II at 2, 12; Oral Arg. in LS at 12:10-12:40. They nevertheless object to the recent modified accommodation promulgated by the Departments—the opt out letter to HHS—both because the self-certification requires more information about their group health plan than the aforementioned notice the Supreme Court proposed, and because of the “collateral consequences” that follow after they opt out. Oral Arg. in LS at 12:10-13:53.
The Little Sisters and Reaching Souls plaintiffs have not convincingly explained how the notice to HHS promulgated by the Departments would substantially burden their religious exercise but the notice crafted by the Supreme Court does not. In Wheaton College, the Supreme Court emphasized the plaintiffs had functionally notified the Departments they met the necessary requirements to obtain an accommodation, and said “[n]othing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” 134 S. Ct. at 2807; see also Zubik, 2015 WL 3947586.
The Southern Nazarene plaintiffs object to affirmatively voicing a religious objection, including the type of notice described in Wheaton College. See Oral Arg. in SN at 24:30-25:20. They appear to believe that exemption from the Mandate—like the exemption for religious employers—is the only proper result under RFRA.
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does not substantially burden Plaintiffs’ religious exercise as a matter of law. 2. The Accommodation Scheme Eliminates Burdens on Religious Exercise
Under the accommodation scheme, the act of opting out relieves objecting religious non-profit organizations from complying with the Mandate and excuses them from participating in the provision of contraceptive coverage. The Departments designed the accommodation so that, upon receipt of the Form or a notification from the government, health insurance issuers and TPAs—not the objecting religious non-profit organization—provide contraceptive coverage and ensure the organization will not be required to provide, pay for, or otherwise facilitate that coverage. See Mich. Catholic Conf., 755 F.3d at 391. We review this feature of the accommodation scheme to show how it eliminates burdens Plaintiffs otherwise would face, similar to the burdens the forprofit plaintiffs faced in Hobby Lobby.
First, the regulations specify a health insurance issuer must handle contraceptive coverage separately from the insurance provided under the religious non-profit organization’s plan.
A group health insurance issuer that receives a copy of the self-certification or notification . . . must (A) Expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan; and (B) Provide separate payments for any contraceptive services required to be covered under § 147.130(a)(1)(iv) for plan participants and beneficiaries for so long as they remain enrolled in the plan.
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45 C.F.R. § 147.131(c)(2)(i).26
Second, after a religious non-profit organization opts out, a health insurance issuer
may not share the costs of providing contraception with the employer or employees.
With respect to payments for contraceptive services, the [health insurance] issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries. The issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.
45 C.F.R. § 147.131(c)(2)(ii); see also 26 C.F.R. § 54.9815-2713A(c)(2)(ii); 29 C.F.R.
§ 2590.715-2713A(c)(2)(ii). TPAs are subject to similar requirements. See 26 C.F.R.
§ 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
Finally, a health insurance issuer or TPA must, in communicating with plan
participants or beneficiaries, send separate notice regarding contraceptive coverage from
other plan notifications and make clear the employer neither administers nor funds
contraceptive benefits. A health insurance issuer or TPA
must provide to plan participants and beneficiaries written notice of the availability of separate payments for contraceptive services contemporaneous with (to the extent possible), but separate from, any application materials distributed in connection with enrollment (or reenrollment) in group health coverage that is effective beginning on the first day of each applicable plan year. The notice must specify that the eligible organization does not administer or fund contraceptive benefits, but that the third party administrator or issuer, as applicable, provides separate
26 TPAs are not subject to this provision. Instead, a TPA that receives the Form or a notification from the government must provide or arrange for contraceptive coverage for plan participants and beneficiaries if it wishes to remain the TPA for the group health plan. See 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
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payments for contraceptive services, and must provide contact information for questions and complaints. 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d); see also 45 C.F.R. § 147.131(d). All of the foregoing remove the objecting religious non-profit organizations from providing contraceptive coverage, but Plaintiffs argue these protections of their religious liberty are insufficient because they still must deliver a Form or notify HHS to opt out of the Mandate. They contend this act substantially burdens their religious exercise because it “triggers” the provision of contraceptive coverage, makes them complicit in the larger delivery scheme, and demands their ongoing involvement. We disagree. The accommodation relieves Plaintiffs of their statutory obligation to provide contraceptive coverage to their plan participants and beneficiaries, and as we discuss below, taking advantage of that accommodation is not a substantial burden on religious exercise. 3. The Accommodation Scheme Does Not Impose a Substantial Burden To explain why the accommodation scheme does not substantially burden Plaintiffs’ religious exercise, we look at the theories argued by the Plaintiffs and why they fail. a. Opting out does not cause contraceptive coverage. Although the accommodation scheme frees Plaintiffs from providing, paying for, or facilitating contraceptive coverage, they contend that, by delivering the Form or notifying HHS, they nevertheless “trigger” or cause contraceptive coverage. They do not. As we explain below, Plaintiffs’ causation argument misconstrues the statutory and
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regulatory framework. Federal law, not the Form or notification to HHS, provides for contraceptive coverage without cost sharing to plan participants and beneficiaries. Because the mechanics of the accommodation scheme differ slightly for different types of plans, we examine how the regulations work for insured plans, self-insured plans, and self-insured church plans. But in each circumstance, Plaintiffs’ causation argument fails to establish any burden on Plaintiffs’ religious exercise.
i. Insured Plans The plaintiffs with insured plans deal directly with a health insurance issuer and do not use a TPA.27 They argue the accommodation scheme levies a substantial burden on their religious exercise because “insurance issuers will sell [them] plans that either (a) expressly include abortifacients; or (b) functionally include abortifacients by guaranteeing separate payments for them upon [their] execution and conveyance of the selfcertification to the issuer.” SN Br. at 18. We disagree. The regulations do not burden the religious exercise of employers using insured plans. The ACA obligates both group health plans and health insurance issuers to provide contraceptive coverage. A religious non-profit organization may comply with the Mandate and provide coverage to its employees, opt out using the accommodation, or not comply with the law and pay fines. But in each instance, the health insurance issuer
27 The plaintiffs with insured plans are Oklahoma Wesleyan University and Oklahoma Baptist University. Southern Nazarene also has an insured plan for students and claims above $100,000.
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must ensure the organization’s employees receive contraceptive coverage. By delivering the Form or notifying HHS, an organization with an insured plan
does not enable coverage—to the contrary, it simply notifies its health insurance issuer the organization will not be providing coverage. The health insurance issuer then has an independent and exclusive obligation to provide that coverage without cost sharing. The relevant regulation states: “When a self-certification is provided directly to an issuer, the issuer has sole responsibility for providing such coverage in accordance with § 147.130.” 45 C.F.R. § 147.131(c)(1)(i). Because the ACA obligates health insurance issuers to provide contraceptive coverage, they must meet this obligation independently and irrespective of the notification. The self-certification does not impose any responsibility; it merely makes it the issuer’s sole responsibility rather than one shared with the group health plan itself.
Because federal law requires the health insurance issuer to provide coverage and the accommodation process removes an objecting organization from participating, plaintiffs with insured plans fail to show the accommodation burdens their religious exercise. The insured plaintiffs are not burdened when they are relieved of their responsibility and their insurers provide coverage as required by independent obligations set out in the ACA.
ii. Self-Insured Plans The accommodation scheme permits religious non-profit organizations with selfinsured plans to opt out by delivering the Form to their TPA or notifying HHS that they
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have a religious objection and will not comply with the Mandate. When the objecting organization opts out, the TPA that administers its group health plan is responsible for providing contraceptive coverage if it wishes to remain a TPA for the plan. In this section, we address this self-insured arrangement. In the next section, we consider the subset of self-insured plaintiffs having church plans over which the government lacks enforcement authority under ERISA to compel the TPA to comply with its legal obligations.
1) Plaintiffs’ argument The only plaintiff with a self-insured plan subject to ERISA is Southern Nazarene. Southern Nazarene argues the accommodation scheme substantially burdens its religious exercise because the scheme requires it to “comply with the Mandate by either (a) setting up a self-insured plan that includes abortifacients; or (b) setting up a self-insured plan that functionally includes abortifacients by guaranteeing separate payments for them by the TPA upon the entity’s execution of the self-certification.” SN Br. at 18. Self-insured plaintiffs with ERISA-exempt church plans make similar claims. Plaintiffs and the dissent emphasize that the TPA may arrange or provide coverage only after a religious non-profit organization opts out.28 We consider this to be an
28 In University of Notre Dame, Judge Posner said: “By refusing to fill out the form Notre Dame would subject itself to penalties, but Aetna and Meritain would still be required to provide the services to the university’s students and employees.” Univ. of Notre Dame, 786 F.3d at 614.
We understand the mechanics of the accommodation to work differently. Aetna, as a health insurance issuer for Notre Dame’s students, would be obligated to provide
Continued . . .
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uncontested and unremarkable feature of the accommodation scheme.29 The regulations
state that when a religious non-profit organization opts out of providing contraceptive
coverage, the TPA is notified that the organization will not administer or pay for
contraceptive coverage, and that it must provide or arrange for contraceptive coverage
without cost sharing if it wishes to continue administering the plan. 26 C.F.R. § 54.9815-
2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The TPA is authorized and obligated
to provide the coverage guaranteed by the ACA only if the religious non-profit
organization that has primary responsibility for contraceptive coverage opts out of
providing it.
Plaintiffs suggest this shift in legal responsibility for contraceptive coverage
substantially burdens their religious exercise under RFRA. They argue their opting out
would trigger, cause, or offer a “permission slip” for the delivery of contraception by
allowing their TPA to provide the coverage. Southern Nazarene, 2013 WL 6804265, at
______________________________________ Cont.
contraceptive coverage under the ACA whether or not Notre Dame delivered the Form or notification to HHS. See 42 U.S.C. § 300gg-13. Meritain, a TPA, would be obligated to provide contraceptive coverage only after Notre Dame delivered the Form or notification to HHS and opted out of the Mandate. See 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
29 Even the dissent in Wheaton College recognized that a TPA need only provide the legally required contraceptive coverage when a religious non-profit organization takes advantage of the accommodation scheme. As Justice Sotomayor observed, “a third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification.” Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting from grant of injunction pending appeal).
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*8. We disagree. 2) Opting out does not cause coverage
The ACA requires all group health plans to cover preventive services, including contraception, without cost sharing. Because a group health plan must include contraceptive coverage under the ACA, the accommodation scheme requires a TPA that administers a self-insured religious non-profit organization’s group health plan to provide coverage if the organization opts out. The TPA must then arrange coverage for plan participants and beneficiaries if it wishes to continue functioning as the TPA for the objecting organization. This arrangement allows religious non-profit organizations to opt out and ensures plan participants and beneficiaries will receive the contraceptive coverage to which they are entitled by law.
Under this framework, the plaintiffs’ argument does not identify a substantial burden on religious exercise. The opt out does not “cause” contraceptive coverage; it relieves objectors of their coverage responsibility, at which point federal law shifts that responsibility to a different actor. The ACA and its implementing regulations have already required that group health plans will include contraceptive coverage and have assigned legal responsibilities to ensure such coverage will be provided when the religious non-profit organization opts out. See Wheaton College v. Burwell, No. 14-2396, 2015 WL 3988356, at *4 (7th Cir. July 1, 2015); E. Tex. Baptist Univ., 2015 WL 3852811, at *5-6; Univ. of Notre Dame, 786 F.3d at 613-14; Geneva Coll., 778 F.3d at
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437-38; Priests for Life, 772 F.3d at 254-55.30 This arrangement is typical of religious
objection accommodations that shift responsibility to non-objecting entities only after an
objector declines to perform a task on religious grounds.31 Although a religious non-
profit organization may opt out from providing contraceptive coverage, it cannot preclude
30 To the extent Plaintiffs are specifically concerned about the language on the Form, that concern can be alleviated by taking advantage of the expanded accommodation and notifying HHS in writing. Plaintiffs need not use any terms they consider morally charged, like “certify,” in their letter or email to HHS.
We further note the notification to HHS requires self-insured plaintiffs only to register their objection and identify their TPA—it does not require them to inform their TPA of any legal responsibilities to provide contraceptive coverage. When the opt out is submitted to HHS, the plaintiffs are relieved of their responsibilities. The government then takes steps to ensure that coverage is provided—HHS notifies the Department of Labor of the objection, and the Department of Labor then contacts the TPA to inform it of its duties under the ACA.
31 Analogizing the opt out to conscientious objections to war, see, e.g., Priests for Life, 772 F.3d at 245-46; Univ. of Notre Dame, 786 F.3d at 623-24 (Hamilton, J., concurring), should not overshadow the diverse array of mechanisms that federal, state, and local governments have used to accommodate objectors. Many religious objection schemes require an affirmative opt out before another person is required to step in and assume responsibility, and may require the objector to identify a replacement in the process. See, e.g., 2015 Utah Laws Ch. 46 (accommodating religious objections to samesex marriage of those working in county clerks’ offices by requiring that “[a] county clerk shall . . . establish policies to ensure that the county clerk, or a designee of the county clerk who is willing, is available during business hours to solemnize a legal marriage for which a marriage license has been issued”); Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. Feb. 22, 2012) (reinstating a “refuse and refer” approach where pharmacies need not provide contraception so long as they refer patients to alternative providers); Conn. Agencies Regs. § 19a-580d-9 (requiring health care providers who object to implementing a do-not-resuscitate order to “turn over care of the patient without delay to another provider who will implement the DNR order”); Internal Revenue Service, Tax Guide for Churches & Religious Organizations 18 (2013), www.irs.gov/pub/irs-pdf/p1828.pdf (explaining that a church may opt out of paying Social Security and Medicare taxes for religious reasons, shifting that responsibility to their employees to pay those taxes as though they were self-employed).
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the government from requiring others to provide the legally required coverage in its
stead.32 In short, the framework established by federal law, not the actions of the
religious objector, ensures that plan participants and beneficiaries will receive
contraceptive coverage.33
32 Plaintiffs argue that, under the accommodation scheme, organizations with selfinsured plans participate in the delivery of contraceptive coverage because their TPAs cannot arrange for that coverage unless and until plaintiffs deliver the Form or notification to HHS. We discuss above why this characterization of the accommodation scheme is incorrect, but we note here that this concern is specific to self-insured plans subject to ERISA. Plaintiffs could avoid the situation they deem objectionable by employing an insured plan, employing a self-insured church plan where the Departments lack authority to enforce the Mandate against their TPA, or administering the self-insured plan on their own in-house without using a TPA. Although the dissent notes that inhouse administration is complex, Dissent at 22-23, Plaintiffs have not demonstrated it would be a substantial burden under RFRA. The fact that this alternative may be more expensive or difficult for plaintiffs does not necessarily make it a substantial burden. See Braunfeld, 366 U.S. at 605-06.
33 In this regard, the accommodation scheme here is comparable to a conscientious objector accommodation scheme, which provides for someone to replace the objector when he opts out of military service. See Priests for Life, 772 F.3d at 245-46; see also Univ. of Notre Dame, 786 F.3d at 623-24 (Hamilton, J., concurring). Indeed, the conscientious objector scheme is administratively more burdensome than filing the Form or notifying HHS to opt out of the Mandate. A conscientious objector must register in the Selective Service System before being able to apply for an exemption, must complete an application and appear for an in-person interview, and, if the exemption is granted, must perform two years of service for the government in lieu of military service. See 50 U.S.C. § 456j.
The dissent points to differences between the religious accommodation here and the conscientious objector scheme. But the comparison is apt. Courts have recognized that, to opt out of military service for religious reasons, a conscientious objector must notify the government of his objection knowing that someone else will take his place. See Trans World Airlines v. Hardison, 432 U.S. 63, 96 n.13 (1977) (Marshall, J., dissenting) (recognizing that “the effect of excusing conscientious objectors from military conscription is to require a nonobjector to serve instead, yet we have repeatedly upheld this exemption”); Sheridan v. United States, 483 F.2d 169, 174 (8th Cir. 1973)
Continued . . .
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3) Response to dissent
The dissent argues that our reasoning fails to appreciate the difference between
insured and self-insured plans. With insured plans, the health insurance issuer bears legal
responsibility to provide contraceptive coverage whether or not the religious non-profit
has opted out. With self-insured plans, the TPA shoulders legal responsibility for
coverage only after the religious non-profit has opted out.
______________________________________ Cont.
(acknowledging that when the plaintiff evaded induction, “another person had to be called in his place”); McKenzie v. Schuppener, 415 F.2d 1056, 1058 (5th Cir. 1969) (characterizing a conscientious objection application as “the situation where appellant must go to Vietnam or someone else go in his place”). Similarly, to opt out of the Mandate, the self-insured religious objector must notify the government knowing that a TPA will take its place.
And historically, it is not unprecedented to require an objector to identify a substitute for military service. To the contrary, the first federal draft statute permitted a draftee to avoid service only by either providing a substitute or paying $300. See Act of March 3, 1863, ch. 75, § 13, 12 Stat. 731, 733 (1863). As the dissent observes, the Civil War Enrollment Act sparked riots, Dissent at 14-15 n.7, but these were triggered by opposition to the draft itself, the inability of working class people to pay the $300 exemption, and anxiety about freed slaves entering the labor market after the war—not the fact that the draft law allowed draftees to name a substitute in their place. See Leslie M. Harris, In the Shadow of Slavery: African Americans in New York City, 1626-1863, at 279-88 (2003). Although Congress later eliminated the $300 commutation fee (except for conscientious objectors), it retained the provision allowing enrollees to supply a substitute. See Act of July 4, 1864, ch. 237, §§ 2, 10, 11, 13 Stat. 379, 379-80 (1864). To the extent the dissent suggests Chief Justice Taney’s thoughts on the topic are relevant, Dissent at 14-15 n.7, we note that he considered conscription itself unconstitutional, not the substitution provision. See Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 Mich. L. Rev. 1493, 1546-48 (1969). In fact, Chief Justice Taney paid $100 to excuse his “body servant” from the draft. See Bernard C. Steiner, Life of Roger Brooke Taney: Chief Justice of the United States Supreme Court 511-12 (1922).
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We agree this is a distinction between these types of plans, but the dissent overplays its importance. See Dissent at 5 (deeming the difference between insured and self-insured plans “the critical distinction”).34 In both contexts, the ACA requires that group health plans cover contraceptive services, and a plaintiff knows coverage will be provided when it opts out. Plaintiffs do not dispute plan participants and beneficiaries’ right to contraceptive coverage, nor do they contest the government’s ability to require TPAs and health insurance issuers to arrange for such coverage when a religious nonprofit organization opts out. The only question before us is whether the plaintiffs are substantially burdened when they notify the government of their objection with the knowledge that another party will be required to provide coverage in their stead. The answer is no.
A religious accommodation tries to reconcile religious liberty with the rule of law. When faced with an unavoidable conflict between following the law or religious belief, RFRA provides a religious objector a means to challenge a generally applicable law and seek an exception to avoid following that law without having to break it. A statutory accommodation, as we have here, serves the same purpose. As noted above, this case is
34 Although the Mandate in the insured plan context assigns responsibility to provide contraceptive coverage to both the religious non-profit organization and its health insurance issuer, we do not believe this is the only permissible arrangement to permit religious accommodation. Requiring all accommodations to follow this model would be duplicative, costly, and impractical, and would foreclose a wide range of pragmatic arrangements that bring in substitutes when and only when a religious objector opts out of performing a task. See, e.g., supra note 31.
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unusual because the Plaintiffs do not seek an accommodation where none exists, but
instead challenge a statutory accommodation and argue that the process for seeking
refuge in it substantially burdens their religious exercise. As to the self-insured plaintiffs,
the dissent contends that if they opt out and transfer their duty to provide contraceptive
coverage to the TPA, they necessarily cause such coverage. We disagree.
By opting out, the self-insured plaintiffs shift their duty to provide coverage to a
TPA, but they do not change their plan participants and beneficiaries’ entitlement to contraceptive coverage under federal law.35 The dissent suggests, however, that because
the plaintiffs can stymie coverage to their employees by breaking the law and incurring
fines, and because opting out ultimately results in the TPAs’ providing coverage, the
plaintiffs’ opting out therefore would cause contraceptive coverage. But this
misconstrues the purpose of religious accommodation: to permit the religious objector
both to avoid a religious burden and to comply with the law. If the plaintiffs wish to
avail themselves of a legal means—an accommodation—to be excused from compliance
35 The dissent attempts to distinguish between health plan beneficiaries’ entitlement to coverage and their actual receipt of coverage. This distinction breaks down under inspection. If a religious non-profit complies with the law by providing coverage, the beneficiaries are entitled to and receive coverage. If the non-profit opts out as the law allows, the beneficiaries likewise are entitled to and receive coverage, they just do not receive it from the non-profit. Only if the non-profit disobeys the law and refuses either to provide coverage or opt out would the beneficiaries not receive coverage (though they would still be entitled to it). If the opt out were not part of the law, the plaintiffs would be in the same position as the for-profits in Hobby Lobby—without a legal option to avoid providing coverage. But the accommodation scheme gives the plaintiffs a legal avenue to avoid providing coverage as opposed to non-compliance with the law with the attendant financial penalties.
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with a law, they cannot rely on the possibility of their violating that very same law to
challenge the accommodation.
In making this argument, the dissent focuses almost exclusively on whether the
plaintiffs’ opt out is a but-for cause of the TPAs’ authority to provide contraceptive coverage.36 It does, but this approach misses the mark. Although opting out is
necessarily a but-for cause of someone else—the TPA—providing contraceptive
coverage, that is the point of an accommodation—shifting a responsibility from an
objector to a non-objector. That is how a legislative policy choice—here, to afford
women contraceptive coverage—can be reconciled with religious objections to that
policy. We do not “den[y] the existence of any causation.” Dissent at 10. We instead
correctly identify the effect of opting out. The effect is to shift legal responsibility from
the self-insured plaintiff to its TPA and relieve the plaintiff of the duty it considers
objectionable. The effect is not the provision of contraceptive coverage, which would be
afforded under the law whether or not the plaintiff opts out.
36 Plaintiffs and the dissent characterize the self-certification as giving the TPA “permission” to provide contraceptive coverage. Dissent at 9. This characterization ignores that the self-certification specifically registers an objection to providing coverage, relieves the plaintiffs of their obligation to provide it, and affirmatively distances the plaintiffs in numerous ways from providing coverage to plan participants and beneficiaries. See supra Section V.B.2. Equating the opt out to a permission slip is akin to “disregard[ing] the difference between a ‘No Trespassing’ sign and a welcome mat.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 245 (1995) (Stevens, J., dissenting). The government is not compelling the plaintiffs to endorse or license something they consider objectionable; instead, the government is allowing them to decline a legal responsibility while requiring another party to perform it in their stead.
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The ACA requires that either the religious non-profit organization or the TPA must provide contraceptive coverage for a self-insured group health plan, and the accommodation must be evaluated with that provision in mind. The scheme allows the religious non-profit organization to opt out of the responsibility of providing coverage and assigns that duty to the TPA administering the group health plan. Crucially, it does not change or expand contraceptive coverage beyond what federal law has already guaranteed. As the Supreme Court said in Hobby Lobby, the effect of the accommodation on employees “would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.” 134 S. Ct. at 2760.
The government has designed the accommodation so plaintiffs that opt out are freed from providing, paying for, or facilitating contraception, and the TPA’s responsibility to provide coverage in their stead stems from federal law. Because this arrangement does not substantially burden the plaintiffs when they comply with the law, it does not matter whether the plaintiffs could prevent plan participants and beneficiaries from receiving coverage by violating the law. The dissent seems to suggest the ACA and its implementing regulations give self-insured plaintiffs discretion to decide whether their employees receive contraceptive coverage. The ACA and its implementing regulations do not, and the plaintiffs do not contend that they do. To the contrary, federal law generally requires that all people must have health insurance and that all health insurance must include preventive services, including contraceptive coverage. See 42 U.S.C.
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§ 300gg-13.37 And “although [the ACA] does not specifically mention third-party administrators, they administer ‘group health plans,’ which must include coverage. Nothing suggests the insurers’ or third-party administrators’ obligations would be waived if the plaintiffs refused to apply for the accommodation.” E. Tex. Baptist Univ., 2015 WL 3852811, at *5 (alterations omitted). The accommodation scheme does not give plaintiffs discretion to thwart their employees’ right to contraceptive coverage by refusing to provide coverage and also refusing to register their objection so the government can make alternative arrangements to free them from providing coverage.38 Because Congress has created a federal entitlement to contraceptive coverage and formulated a framework to guarantee that coverage will be provided even if plaintiffs decline to provide it, self-insured plaintiffs do not “cause” contraceptive coverage by exercising their ability to opt out.
4) No cause of substantial burden In sum, the self-insured plaintiffs’ causal analysis falters regarding the effect of opting out, which is to shift legal responsibility to provide contraceptive coverage from
37 The dissent asks, “if the self-insured plaintiffs do not opt out, who will provide the coverage for their plan participants and beneficiaries?” Dissent at 8. The answer is the self-insured plaintiffs, if they comply with the law. But this is the reason for the opt out: to allow the plaintiffs a legal means to avoid providing coverage.
38 In the absence of any such discretionary power or responsibility, plaintiffs are not faced with the Hobson’s choice the dissent describes. Dissent at 7-8, 12, 23. To the contrary, the accommodation eliminates any Hobson’s choice by allowing plaintiffs to opt out of providing coverage.
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plaintiffs to their TPAs. When the government establishes a scheme that anticipates
religious concerns by allowing objectors to opt out but ensuring that others will take up
their responsibilities, plaintiffs are not substantially burdened merely because their
decision to opt out cannot prevent the responsibility from being met.
To establish a claim under RFRA, about which the dissent says little, a plaintiff
must show the government substantially burdens its sincere religious exercise. The ACA
states group health plans must cover contraception, and the regulations state that if a
religious non-profit organization opts out, that coverage will be provided by a TPA.
Opting out does not cause the coverage itself; federal law does, by establishing a scheme
that permits plaintiffs to opt out of their legal responsibility while simultaneously
ensuring that plan participants and beneficiaries receive the coverage to which they are
legally entitled. Allowing plaintiffs to opt out is not a substantial burden under RFRA.39
39 The dissent’s theory of causation is not viable for the reasons discussed above. We also fail to see how it comports with the Supreme Court’s orders in Wheaton College, 134 S. Ct. 2806, and Zubik, 2015 WL 3947586. In Part II.B.1, the dissent objects that “a third party’s legal authority (i.e. permission) to provide the coverage is wholly dependent upon (i.e. caused by) the self-insured non-profit opting out.” Dissent at 9. But that would be equally true of the arrangement proposed in the Supreme Court’s orders in Zubik, which enjoined the Mandate only “[i]f the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a) or 29 CFR §2590.715-2713A(a) or 45 CFR §147.131(b) (as applicable),” 2015 WL 3947586, at *1, and Wheaton College, which enjoined the Mandate only “[i]f the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services,” 134 S. Ct. at 2807. (The plaintiffs in Zubik are self-insured and use TPAs. See Geneva College, 778 F.3d at 433. Wheaton College employs various insurance arrangements, but uses a TPA to deliver a portion of its coverage—specifically, its prescription drug
Continued . . .
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iii. Self-Insured Church Plans
The foregoing analysis of self-insured plans applies to the subset of self-insured
church plans. We address additional reasons here to reject the church plan plaintiffs’
RFRA claims. The plaintiffs with self-insured church plans are in a unique position.40 A TPA
cannot be compelled to provide or arrange for contraceptive coverage if it administers a
church plan under 26 U.S.C. § 414(e) that has not elected to comply with provisions of
ERISA under 26 U.S.C. § 410(d)—which describes the self-insured church plans in the
cases before us. The Departments concede they lack authority under ERISA to force
these church plan TPAs to perform their regulatory responsibility. See 29 U.S.C.
§ 1003(b)(2). As a result, the Government can require the plaintiffs with self-insured
church plans to use the Form or notify HHS to register their objection and opt out, but it
has no enforcement authority to compel or penalize those plaintiffs’ TPAs if they decline
______________________________________ Cont.
coverage. See Wheaton College v. Burwell, 50 F. Supp. 3d. 939, 944 (N.D. Ill. 2014).) Wheaton College had already submitted a notice of its objection to the government, but the Supreme Court did not limit the injunction to that factual scenario. As Justice Sotomayor observed, “because Wheaton is materially indistinguishable from other nonprofits that object to the Government’s accommodation, the issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy.” Wheaton College, 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).
40 The plaintiffs with self-insured church plans include the Little Sisters, Reaching Souls, Truett-McConnell, and Mid-America Christian. The analysis in this section also applies to the plaintiffs that operate or administer self-insured church plans, which include the Christian Brothers Employee Benefit Trust, Christian Brothers Services, and GuideStone Financial Resources.
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to provide or arrange for contraceptive coverage.41
The lack of enforcement authority makes any burden on plaintiffs with church
plans even less substantial than the burden on plaintiffs with self-insured plans that are
subject to ERISA. Nonetheless, plaintiffs with church plans offer the following
arguments as to why the accommodation scheme might still burden their religious
exercise. First, the Departments could decide to alter the regulations and assert authority
over church plans under ERISA. Second, the mere act of signing the Form or delivering
the notification may involve them in the provision of contraception, either by cooperating
with the Departments or by providing authorization to a TPA, which then decides it
wants to provide contraceptive coverage after all. Third, their opting out incentivizes
TPAs to provide coverage even if they are exempt from ERISA. Fourth, the Government
has not demonstrated why the plaintiffs must complete the self-certification if their TPAs
can decline to provide contraceptive coverage. In addition to the reasons self-insured
plans in general are not substantially burdened by the accommodation scheme, we
41 If TPAs for self-insured church plans decide not to provide contraceptive coverage, plan participants and beneficiaries would not get the coverage to which they are otherwise entitled under the ACA. The dissent suggests it is paradoxical to maintain the ACA ensures plan participants and beneficiaries will receive contraceptive coverage and also acknowledge TPAs for self-insured church plans may in fact decline to provide that coverage. Dissent at 11 n.4. The positions are consistent. The ACA requires all group health plans to provide contraceptive coverage, but because it can only enforce that requirement through ERISA, church plans that are exempt from ERISA do not face any consequences if they fail to meet it. Put differently, the ACA creates a legal duty for all group health plans, but the Government cannot enforce that duty against a narrow subset of self-insured church plans. The inability to enforce that duty does not mean the duty does not exist.
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conclude the plaintiffs with self-insured church plans have failed to identify a substantial burden on religious exercise.
1) Hypothetical regulation The plaintiffs argue the Departments could assert authority over church plans under ERISA at some point in the future. We assess the regulations as they currently exist, not amendments to ERISA’s implementing regulations the Department of Labor may hypothetically promulgate. An “[i]njunction issues to prevent existing or presently threatened injuries. One will not be granted against something merely feared as liable to occur at some indefinite time in the future.” Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931). Should the Departments assert ERISA authority over church plans at some later date, plaintiffs may then seek a preliminary injunction to prevent the Departments from enforcing the Mandate. Unless and until the Departments change their position, however, plaintiffs’ speculative argument does not warrant a preliminary injunction. See Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1157 (10th Cir. 2011).
2) No causation from church plan TPA notification The plaintiffs contend completing the self-certification would be a substantial burden because it would allow TPAs to provide coverage to their group health plan participants and beneficiaries, even if the Departments cannot compel the TPA to do so under ERISA. But plaintiffs with self-insured church plans are not substantially burdened by the requirement that they complete the Form or notification to HHS. As we explained in the previous section on self-insured plans, when a religious non-profit
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organization opts out of the Mandate, the requirement that the group health plan include contraceptive coverage is a product of federal law, not the product of the organization’s opting out. Opting out frees plaintiffs from their obligation to provide contraceptive coverage under the ACA. The lack of substantial burden is especially evident when the group health plan is administered by a TPA that has made clear it will not provide contraceptive coverage on religious grounds. The Little Sisters’ TPA, for example, is Christian Brothers, their co-plaintiff in this case. It is clear Christian Brothers need not, and will not, provide contraceptive coverage if the Little Sisters opt out of the Mandate.42
3) No incentive from church plan TPA notification Even when TPAs for self-insured church plans indicate they may comply with the Mandate, the TPAs make that decision, and the objecting religious non-profit organization is not substantially burdened. The plaintiffs in Reaching Souls argue one of their TPAs, Highmark, has indicated it will provide contraceptive coverage if they opt out of the Mandate. The Reaching Souls plaintiffs argue their act of opting out would not only provide Highmark with permission to provide contraceptive coverage, but would incentivize it to do so because Highmark could then seek reimbursement from the government. Plaintiffs fail to demonstrate the reimbursement provision actually gives TPAs an incentive to provide coverage. They claim a TPA that receives the Form or a letter from
42 Plaintiff TPAs that administer church plans are not substantially burdened for similar reasons. In the absence of any enforcement power, the Government cannot levy fines against them for declining to provide contraceptive coverage.
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the government “becomes eligible for government payments that will both cover the
TPA’s costs and include an additional payment (equal to at least 10% of costs) for the
TPA’s margin and overhead.” LS Br. at 16. At a hearing in Reaching Souls, counsel for
the Government seemed to accept this characterization. But the regulations themselves
expressly contradict this reading. They state the payment for margin and overhead goes
to health insurance issuers who act as intermediaries for the reimbursement, and need not go to TPAs.43 See 45 C.F.R. § 156.50(d)(5) (specifying health insurance issuers must
reimburse TPAs for “the portion of the adjustment attributable to the total dollar amount
of the payments for contraceptive services submitted by the third party administrator” but
that “[n]o such payment is required with respect to the allowance for administrative costs
and margin”).
Moreover, even if TPAs were to receive a payment for margin and overhead—set
at 15% of costs for 2014—plaintiffs do not demonstrate this allowance actually functions
as an incentive to provide contraceptive coverage rather than repayment for the
administrative costs TPAs incur by stepping in to arrange for or provide coverage.
Plaintiffs have not demonstrated the allowance for administrative overhead actually
43 The Departments credit the health insurance issuer for (1) the total dollar amount of the TPA’s payments for contraceptive coverage, and (2) an allowance of at least 10% for administrative costs and margin. See 45 C.F.R. § 156.50(d)(3). The health insurance issuer then pays the TPA for the total dollar amount of the TPA’s payments for contraceptive coverage, but is not required to pay the TPA the allowance for administrative costs and margin. See 45 C.F.R. § 156.50(d)(5). As a result, the regulations require only that a TPA receive repayment for what it has actually spent providing contraceptive coverage. A reimbursement solely for costs incurred would not generate a profit or offer any incentive to provide contraceptive coverage.
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generates a profit for TPAs, nor have they demonstrated that the allowance would incentivize TPAs to provide coverage where they otherwise would not.
4) The Government may require affirmative objection Plaintiffs finally argue that if the Departments lack ERISA enforcement authority against TPAs of self-insured church plans, the Government has no reason to require religious non-profit organizations to comply with the accommodation scheme and deliver the Form or notify HHS. It is the plaintiffs’ burden, however, to state a prima facie case under RFRA. Because they cannot establish that signing the Form or notifying HHS constitutes a substantial burden on their religious exercise, we do not question the Departments’ interest in requiring them to opt out of the Mandate to avoid penalties for failure to provide contraceptive coverage.44
* * * * We conclude the Plaintiffs’ causation arguments do not establish a burden on their religious exercise, much less a substantial burden, because opting out would not trigger,
44 The Departments have a sound reason to require an affirmative opt out—not all religious organizations share the beliefs of the Little Sisters, Reaching Souls, TruettMcConnell, and Mid-America Christian. The parties agree that the Departments can require non-objecting employers to provide contraceptive coverage under their group health plans. To enforce that general requirement, the Departments may require objecting employers to affirmatively voice their objection instead of assuming all religious non-profit organizations share the plaintiffs’ beliefs.
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incentivize, or otherwise cause the provision of contraceptive coverage.45 We therefore turn to Plaintiffs’ argument that the act of opting out and the administrative requirements associated with the accommodation make them feel or appear complicit in the overall contraceptive coverage scheme.
e. No substantial burden from complicity The accommodation relieves Plaintiffs from providing, paying for, or facilitating contraceptive coverage, and federal law requires health insurance issuers and TPAs to provide contraceptive coverage when religious non-profit organizations take advantage of the accommodation. Plaintiffs argue the act of opting out would nevertheless substantially burden their religious exercise because they believe delivering the Form or notification to HHS would make them complicit in the overall scheme to deliver contraceptive coverage. They wish to play no part in it. We find this argument unconvincing for a number of reasons. First, the purpose and design of the accommodation scheme is to ensure that Plaintiffs are not complicit—that they do not have to provide, pay for, or facilitate contraception. Plaintiffs’ concern that others may believe they condone the Mandate is unfounded. Opting out sends the unambiguous message that they oppose contraceptive coverage and refuse to provide it, and does not foreclose them from objecting both to
45 Under these circumstances, as the Third Circuit observed, “the burden is not merely attenuated at the outset but totally disconnected from the appellees.” Geneva Coll., 778 F.3d at 442.
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contraception and the Mandate in the strongest possible terms.
Second, to the extent Plaintiffs assert that completing the Form or notification
violates their religious beliefs, they state a necessary but not a sufficient predicate for a
RFRA claim. Under RFRA, they must establish that completing the Form or notification
substantially burdens their religious exercise; otherwise, this argument could be used to
avoid almost any legal obligation that involves a form. Plaintiffs do not object to signing
forms and paperwork generally—they object to the Form or notification to HHS, and they
do so because they believe it involves them in directly or indirectly providing, paying for,
or facilitating contraceptive coverage, which they oppose as a matter of religious
conviction. As we have explained, the Plaintiffs misstate their role in the accommodation
scheme. RFRA does not require us to defer to their erroneous view about the operation
of the ACA and its implementing regulations.46
46 Plaintiffs cite Thomas for the proposition that we cannot question the theological merit of their religious beliefs. See Thomas, 450 U.S. at 715 (“We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.”). We agree with that proposition, but we may—indeed, we must— determine whether the accommodation scheme substantially burdens their religious exercise.
In Thomas, Mr. Thomas believed he could not participate in the production of war materials. Id. at 709. The government argued Mr. Thomas’s beliefs did not warrant protection by suggesting those beliefs were inconsistent and not shared by his coreligionists. Id. at 714-15. The Supreme Court specifically rejected these attempts to impeach Mr. Thomas’s religious beliefs, id. at 715-16, but the Court was not confronted with the question of whether those beliefs were substantially burdened. Both the Supreme Court and the Tenth Circuit have indicated that accepting a plaintiff’s religious belief does not foreclose an inquiry into whether religious exercise has been substantially burdened. See, e.g., Hernandez, 490 U.S. at 699; Kikumura, 242 F.3d at 961.
Continued . . .
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Third, because the accommodation does not involve them in providing, paying for,
facilitating, or causing contraceptive coverage, Plaintiffs’ only involvement in the scheme
is the act of opting out. Plaintiffs are not substantially burdened solely by the de minimis
administrative tasks this involves. All opt-out schemes require some affirmative act to
free objectors from the obligations they would otherwise face. The Plaintiffs’ logic
would undermine conscientious objection schemes that require the objection to be made,
relieve objectors of their obligations, but assign those obligations to other, non-objecting
actors in their stead. See, e.g., Gillette v. United States, 401 U.S. 437 (1971)
(acknowledging a petitioner must complete an exemption application to obtain
______________________________________ Cont.
The Government does not question Plaintiffs’ religious beliefs that contraception is sinful and they cannot be involved in providing, paying for, or facilitating contraceptive coverage. But Plaintiffs go beyond Thomas when they insist that we cannot question whether opting out makes them complicit in providing contraceptive coverage. We may properly consider that opting out excuses them from providing coverage, does not cause that coverage to be extended to plan participants and beneficiaries, and involves only routine administrative tasks that are not substantial burdens under RFRA. See Little Sisters, 6 F. Supp. 3d at 1239 (“Thus, Plaintiff’s contention that the Court cannot look behind their statements about what offends their religious beliefs is well-supported. However, the Court is under no such restriction with regard to Plaintiffs’ construction of how the Final Rules operate, including the administrative burdens imposed on the parties by these regulations.”).
For these reasons, Thomas is inapposite when the inquiry focuses on whether a burden is substantial. It does not preclude courts from examining the relationship between a sincerely held religious belief and the alleged burden imposed by the Government. This important distinction prevents the Government from having to survive strict scrutiny whenever a plaintiff misunderstands the burden being placed upon them— for example, if Mr. Thomas had been required to produce equipment for farming and sincerely, but incorrectly, believed that equipment was being produced for war. See, e.g., Priests for Life, 772 F.3d at 249 n.14.
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conscientious objector status in wartime); Welsh v. United States, 398 U.S. 333 (1970) (same).47 Having to file paperwork or otherwise register a religious objection, even if one
disagrees with the ultimate aim of the law at issue, does not alone substantially burden
religious exercise.
The Government may therefore require religious objectors to complete de minimis
administrative tasks to opt out. Filing the Form or notifying HHS easily fits within this
category. The Departments have made opting out of the Mandate at least as easy as
obtaining a parade permit, filing a simple tax form, or registering to vote—in other
words, a routine, brief administrative task. The purpose of the Form or notification to
HHS is to extricate Plaintiffs from their legal obligation to provide contraceptive
coverage. Opting out ensures they will play no part in the provision of contraceptive
coverage, prohibits TPAs and health insurance issuers from sharing the costs of providing
coverage with them, and requires notice to employees that they do not administer or fund
contraceptive services.
47 As other courts have observed, invalidating the accommodation scheme would run contrary to many other laws allowing objectors to opt out of government programs and requirements. See Priests for Life, 772 F.3d at 245 (deeming Plaintiffs’ argument against the accommodation scheme “extraordinary and potentially far reaching”); Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 557 (7th Cir. 2014), vacated and remanded sub nom., Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015) (“The novelty of Notre Dame’s claim—not for the exemption, which it has, but for the right to have it without having to ask for it—deserves emphasis. . . . What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths.”).
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The notification to HHS is especially minimal, as it requires Plaintiffs only to
register their objection with HHS and does not require any contact with their health
insurance issuers or TPAs. Although Plaintiffs must tell HHS which health insurance
issuer or TPA they use to opt out of the Mandate, this is not a substantial burden on religious exercise.48 It is the kind of administrative task the Departments can require of
religious believers in the administration of governmental programs. See Priests for Life,
772 F.3d at 246; Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 305-06
(1985); see also Jimmy Swaggart Ministries v. Bd. of Equaliz. of Cal., 493 U.S. 378, 395
(1990); Hernandez, 490 U.S. at 696-97. When understood in light of the ACA’s
requirement that group health plans and health insurance issuers provide contraceptive
coverage and the manner in which the accommodation relieves Plaintiffs of providing
48 Plaintiffs using the Form need only enter the name of the objecting organization, name and title of the individual authorized to make the certification on behalf of the organization, and the mailing address, email address, and phone number of that individual. That person signs, dates, and sends the form to their TPA or health insurance issuer. Employers are required to keep the Form on file for six years. The Plaintiffs have leeway in drafting a notification to HHS, which need only include
the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on sincerely held religious beliefs to providing coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type (i.e., whether it is a student health insurance plan within the meaning of 45 CFR 147.145(a) or a church plan within the meaning of ERISA section 3(33)); and the name and contact information for any of the plan’s third party administrators and health insurance issuers. 79 Fed. Reg. at 51,094-95.
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that coverage, identifying one’s TPA in a letter to HHS is at most a minimal burden and certainly not a substantial one.
Finally, Plaintiffs are not substantially burdened when, after they opt out and are relieved of their obligations under the Mandate, health insurance issuers or TPAs must provide contraception to plan participants and beneficiaries. Plaintiffs sincerely oppose contraception, but their religious objection cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled under the ACA. “Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out.” Priests for Life, 772 F.3d at 246. Pre-Smith case law and RFRA’s legislative history underscore that religious exercise is not substantially burdened merely because the Government spends its money or arranges its own affairs in ways that plaintiffs find objectionable. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450-54 (1988); Bowen, 476 U.S. at 699-700; Tony & Susan Alamo Found., 471 U.S. at 303; S. Rep. No. 103-111, at 9 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1898 (“[P]re-Smith case law makes it clear that strict scrutiny does not apply to government actions involving only management of internal Government affairs or the use of the Government’s own property or resources.”). RFRA does not prevent the Government from reassigning obligations after an objector opts out simply because the objector strongly opposes the ultimate goal of the generally applicable law.
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Plaintiffs’ complicity argument therefore fails. Opting out would eliminate their complicity with the Mandate and require only routine and minimal administrative paperwork, and they are not substantially burdened by the Government’s subsequent efforts to deliver contraceptive coverage in their stead.
f. No burden from ongoing requirements As a final argument, Plaintiffs deny the act of opting out would free them from further involvement in the provision of contraceptive coverage. They argue the accommodation scheme would require their ongoing participation, and give two examples to support this claim. First, Plaintiffs argue they would remain involved because the Departments are commandeering their group health plans to provide contraceptive coverage to their employees. They note their TPA or health insurance issuer can provide coverage only as long as plan participants and beneficiaries remain employed with the religious non-profit organization. Plaintiffs have not shown, assuming they opt out, how the provision of coverage to plan participants and beneficiaries through the health insurance issuer or TPA would substantially burden their religious exercise. Plaintiffs’ plan participants and beneficiaries are not guaranteed contraceptive coverage without cost sharing because they work for the Plaintiffs; they are guaranteed contraceptive coverage under the ACA. The ACA mandates health insurance that includes contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). Plaintiffs’ theory would not only relieve them of complying with the
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Mandate, it would prevent health insurance issuers and TPAs from stepping in under the ACA to provide plan participants and beneficiaries with the coverage they are entitled to receive under federal law.
Second, Plaintiffs object that they must (a) notify their TPA or health insurance issuer when employees join or leave their broader health insurance scheme, and (b) complete the self-certification or notification to HHS when they create or terminate a relationship with a TPA or health insurance issuer. As to the first requirement, employers already must notify their TPA or health insurance issuer when they hire or fire employees. The communication with the TPA or health insurance issuer regarding general health insurance coverage for entering or exiting plan participants and beneficiaries would occur regardless of any legal obligation under the accommodation scheme. The latter requirement, however, is an obligation specific to the accommodation scheme. An insured or self-insured employer using the Form must send it to “each” TPA or health insurance issuer as the employer forms contractual relationships with them. 26 C.F.R. § 54.9815-2713AT(b)(1)(ii); 29 C.F.R. § 2590.715-2713A(b)(1)(ii). If the employer instead uses the notification process, the regulations state: “If there is a change in any of the information required to be included in the notice, the organization must provide updated information to the Secretary of Health and Human Services.” 26 C.F.R. § 54.9815-2713AT(b)(1)(ii)(B); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B).
Once again, this does not constitute a substantial burden. The only new requirement is that employers must complete the Form or notify HHS of their objection
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when they contract with a new health insurance issuer or TPA. Plaintiffs do not argue the time, cost, or energy required to comply with this requirement constitutes a substantial burden; they argue it is the moral significance of their involvement which burdens their religious exercise.49 If the first self-certification is not a substantial burden, a second or third self-certification would not be substantially burdensome given the extremely minimal administrative requirements of the Form or notification. As we have discussed above, de minimis administrative requirements do not themselves amount to substantial burdens on religious liberty. See Tony & Susan Alamo Found., 471 U.S. at 305-06; see also Jimmy Swaggart Ministries, 493 U.S. at 394-95; Hernandez, 490 U.S. at 696-97. If the actual delivery of the Form or notification is not a substantial burden, a contingent administrative requirement to update the Form or notification is not either.
The regulations require the Plaintiffs to complete the Form or deliver the notification if they wish to opt out. But this ministerial act to opt out is not a substantial burden on religious exercise, nor are the collateral requirements of the scheme. The Departments have allowed Plaintiffs to opt out of a neutral and generally applicable requirement imposed by federal law, and have done so in a manner that affirmatively distances those organizations from the provision of contraceptive coverage that other employers must provide. It is not a substantial burden to require organizations to provide
49 The interim final rules estimate “the total annual burden for preparing and providing the information in the self-certification or notice to HHS will require approximately 50 minutes for each eligible organization with an equivalent cost burden of approximately $53.” 79 Fed. Reg. at 51,097.
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minimal information for administrative purposes to take advantage of that
accommodation.
C. Strict Scrutiny Because we determine Plaintiffs have failed to demonstrate a substantial burden
on their religious exercise, we need not address whether the Departments have shown a
compelling state interest and adopted the least restrictive means of advancing that interest.50
D. Conclusion
In the absence of a substantial burden, Plaintiffs have not demonstrated a strong
likelihood of success on the merits of their RFRA claim, nor have they demonstrated they
will suffer irreparable injury if an injunction is denied. Accordingly, a preliminary
injunction on RFRA grounds is inappropriate.
VI. FIRST AMENDMENT
Although the district courts focused almost exclusively on RFRA, Plaintiffs also
50 We recognize third-party rights and interests are at stake in this litigation— namely, that plan participants and beneficiaries are entitled by law to contraceptive coverage without cost sharing. When evaluating RFRA and Free Exercise claims, courts properly consider the impact of religious liberty claims on pre-existing rights holders. Hobby Lobby, 134 S. Ct. at 2760 (emphasizing “[t]he effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero”); see Cutter v. Wilkinson, 544 U.S. 709, 720 (2005); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709-10 (1985); Yoder, 406 U.S. at 230; Sherbert, 374 U.S. at 409; Braunfeld, 366 U.S. at 604-05. Because we determine Plaintiffs have not demonstrated a substantial burden on their religious exercise, we do not reach the strict scrutiny analysis where the rights and interests of third parties are properly weighed.
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raised constitutional claims. They argue the accommodation scheme violates the Free
Exercise and Establishment Clauses of the First Amendment by exempting religious
employers from the Mandate but requiring religious non-profit organizations to seek an
accommodation.51 Plaintiffs also argue the accommodation scheme simultaneously
51 In this discussion of First Amendment claims, “Plaintiffs” refers only to the plaintiffs in Little Sisters and Reaching Souls, and not Southern Nazarene. All of the plaintiffs raised First Amendment claims in their complaints, but only the Little Sisters and Reaching Souls plaintiffs preserved these claims in their subsequent motions for a preliminary injunction and briefs on appeal. App. in LS at 57a-66a, 136a-38a; App. in RS at A65-74, A145-49.
The district courts in Little Sisters and Reaching Souls did not reach the First Amendment claims. In Little Sisters, the court found the plaintiffs’ assertion of irreparable harm—which they were required to show to obtain a preliminary injunction, see Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)—was based only on RFRA. See Little Sisters, 6 F. Supp. 3d at 1245. In Reaching Souls, the court determined it did not need to reach First Amendment claims because it granted a preliminary injunction on RFRA grounds. See Reaching Souls, 2013 WL 6804259, at *8 n.9.
On appeal, we consider the First Amendment claims in both cases. First, the Little Sisters plaintiffs made a sufficient argument before the district court. They expressly sought a preliminary injunction on First Amendment as well as RFRA grounds. App. in LS at 136a-138a. They did not elaborate on their First Amendment claims in the irreparable harm analysis, but “[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Kikumura, 242 F.3d at 963 (quotations omitted). Second, although we reverse the district court’s grant of a preliminary injunction on RFRA grounds in Reaching Souls, plaintiffs there raised the question whether that preliminary injunction is appropriate on First Amendment grounds. “If the district court fails to analyze the factors necessary to justify a preliminary injunction, this court may do so if the record is sufficiently developed.” Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009); see also Hobby Lobby, 723 F.3d at1145 (“The record we have is the record the parties chose to create below—it is the record they deemed sufficient for the district court to decide the preliminary injunction question. For each element, we believe this record suffices for us to resolve each of the remaining preliminary injunction factors.”). Because the First Amendment claims in both Little Sisters and Reaching Souls are legal questions that have
Continued . . .
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compels and silences their speech in violation of the Free Speech Clause of the First
Amendment. We disagree and conclude the accommodation scheme comports with the
First Amendment. We note that the same standard of review we identified for the RFRA
claim applies to the First Amendment claims.
A. Free Exercise Clause
Plaintiffs contend the ACA and its implementing regulations violate the Free
Exercise Clause by exempting some religious objectors—churches and their “integrated
auxiliaries”—from the Mandate, while requiring others—specifically, religious non-
profit organizations—to comply with the Mandate, seek an accommodation, or pay
substantial fines. They have not explained how their Free Exercise claim differs from
their Establishment Clause claim, nor do they explain how they could prevail under the
standard in Smith if they are unlikely to succeed under RFRA. Because we conclude the
______________________________________ Cont.
been fully briefed on appeal, we resolve those questions in this opinion rather than remanding them to the district courts and prolonging this litigation.
By contrast, the Southern Nazarene plaintiffs included First Amendment claims in their complaint, but did not assert them in their motion for a preliminary injunction or accompanying memorandum of law. As a result, the district court did not reach any First Amendment claims in its decision. See Southern Nazarene, 2013 WL 6804265. Moreover, the Southern Nazarene plaintiffs do not make First Amendment claims in their opening brief on appeal.
Although we believe our First Amendment analysis applies to all group health plans and does not depend on whether they are insured, self-insured, or self-insured church plans, we note Little Sisters and Reaching Souls involve only self-insured church plans that are not subject to ERISA, and the insured and self-insured plans discussed in Southern Nazarene are not before us.
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Mandate and accommodation scheme are neutral and generally applicable laws, they are subject only to rational basis review, which they survive. 1. Legal Background
The First Amendment’s religion clauses state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. 1. To resolve challenges under the Free Exercise Clause, we use a wellestablished framework. If a law is neutral and generally applicable, it does not violate the Free Exercise Clause “even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); see Smith, 494 U.S. at 878-80. “A law is neutral so long as its object is something other than the infringement or restriction of religious practices.” Grace United, 451 F.3d at 649-50. A law that is facially neutral may nevertheless fail the neutrality test if it covertly targets religious conduct for adverse treatment. Lukumi Babalu, 508 U.S. at 534.
To determine whether a law is generally applicable, we ask if the “legislature decide[d] that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.” Id. at 542-43. “[A] law that is both neutral and generally applicable need only be rationally related to a legitimate governmental interest to survive a constitutional challenge.” Grace United, 451 F.3d at 649.
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2. The Mandate and Accommodation Scheme are Neutral The Mandate and the accommodation scheme are neutral laws. See Priests for
Life, 772 F.3d at 267-69; Mich. Catholic Conf., 755 F.3d at 393-94. The Mandate is facially neutral with regard to employers, and neither the history nor the text of the ACA and its implementing regulations suggest the Mandate was targeted at a particular religion or religious practice. Plaintiffs cannot show Congress or HHS “had as their object the suppression of religion.” Lukumi Babalu, 508 U.S. at 542. To the contrary, the Mandate arose from concerns about the personal and social costs of barriers preventing women from receiving preventive care, including reproductive health care. See IOM, Clinical Preventive Services for Women: Closing the Gaps 102-03 (2011), available at www.nap.edu/catalog.php?record_id=13181. The accommodation scheme was developed to facilitate the free exercise of religion, not to target religious groups or burden religious practice. To that end, the Departments expanded the religious employer exemption and religious non-profit organization accommodation to respond to the concerns of religious groups. The Plaintiffs’ apparent dissatisfaction with the accommodation offered to them does not mean the Mandate or the accommodation scheme is non-neutral. 3. The Mandate and Accommodation Scheme are Generally Applicable
The Mandate and the accommodation scheme are also generally applicable. See Priests for Life, 772 F.3d at 267-69; Mich. Catholic Conf., 755 F.3d at 393-94. Plaintiffs cannot show Congress or the Departments sought to impose the Mandate only against
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religious groups; to the contrary, the Mandate applies to all employers with more than
fifty employees using non-grandfathered health plans.52 “The exemptions do not render
the law so under-inclusive as to belie the government’s interest in protecting public
health and promoting women’s well-being or to suggest that disfavoring Catholic or other
pro-life employers was its objective.” Priests for Life, 772 F.3d at 268. Plaintiffs fail to
demonstrate the accommodation scheme targets religious conduct or was created with the
objective of disfavoring particular faiths. Lukumi Babalu, 508 U.S. at 542-43. To the
contrary, the Mandate was enacted as part of a larger program of health care reform, and
both the exemption for religious employers and the accommodation for religious non-
profit organizations demonstrate federal deference to religious liberty concerns and were
promulgated to facilitate rather than inhibit the free exercise of religion.
52 Smith stated that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason.” Smith, 494 U.S. at 884 (quotations and citation omitted). But as we noted in Grace United, “we have already refused to interpret Smith as standing for the proposition that a secular exemption automatically creates a claim for a religious exemption.” Grace United, 451 F.3d at 651. We have instead held:
a system of individualized exemptions is one that gives rise to the application of a subjective test. Such a system is one in which case-by-case inquiries are routinely made, such that there is an individualized governmental assessment of the reasons for the relevant conduct that invites considerations of the particular circumstances involved in the particular case.
Axson-Flynn v. Johnson, 356 F.3d 1277, 1297 (10th Cir. 2004) (quotations and citations omitted). None of the categorical exemptions enacted by the ACA and its implementing regulations establish a system of individualized objections. And for the reasons detailed above, we believe the accommodation scheme effectively relieves objecting religious non-profit organizations of their obligations.
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4. The Mandate and Accommodation Scheme Have a Rational Basis Rather than make an argument based on the rational relationship standard,
Plaintiffs instead contend our decision in Hobby Lobby precludes us from finding that public health and gender equality, without greater specificity, constitute compelling governmental interests. But, as we have explained, the compelling interest test does not apply; the rational basis test does. Grace United, 451 F.3d at 649. The Government observes that in the cases before us, the accommodation scheme rationally serves the twin interests of facilitating religious exercise and filling coverage gaps resulting from accommodating that religious exercise.
On rational basis review, these interests are sufficient. Alleviating governmental interference with religious exercise, which the accommodation scheme does, is a permissible legislative purpose. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987). And we need not scrutinize whether the Government’s interest in public health and gender equality is more compelling in this case than in Hobby Lobby. We need only determine that public health and gender equality are legitimate state interests. We believe they meet this more permissive standard, which is not foreclosed by our compelling interest analysis in Hobby Lobby. See, e.g., Hobby Lobby, 723 F.3d at 1143 (determining public health and gender equality are too broad to satisfy the compelling interest test but noting “[w]e recognize
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the importance of these interests”).53 The accommodation scheme advances both the free
exercise of religion and the Government’s legitimate interests in public health and gender
equality. See Hobby Lobby, 134 S. Ct. at 2759 (“We therefore conclude that [the
accommodation] system constitutes an alternative that achieves all of the Government’s
aims while providing greater respect for religious liberty.”).
Furthermore, when applying the rational basis test, we are not limited to interests
specifically articulated by the Departments. We may look to any conceivable legitimate
governmental interest, and “the burden is upon the challenging party to negative any
reasonably conceivable state of facts that could provide a rational basis.” Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (citations and internal quotations
omitted). The more specific governmental interest in health by ensuring access to
contraception without cost sharing, which we did not specifically address in Hobby
Lobby, would constitute a legitimate interest conceivably advanced by the
accommodation scheme. See Hobby Lobby, 723 F.3d at 1160 (Bacharach, J., concurring)
(“[T]he plurality does not mention the public interest that the government had relied on at
53 See also Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (identifying “a compelling interest in eliminating discrimination against women”); Roberts v. U.S. Jaycees, 468 U.S. 609, 626 (1984) (“Assuring women equal access to such goods, privileges, and advantages clearly furthers compelling state interests.”); Prince v. Massachusetts, 321 U.S. 158, 165-67 (1944) (upholding child labor laws against a free exercise challenge on health and welfare grounds); Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (upholding a mass vaccination program against a liberty challenge on health and welfare grounds); see also Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (determining a compelling interest in eradicating racial discrimination “substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs”).
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the preliminary-injunction hearing: the health reasons for promoting employee access to emergency contraceptives.”). The Departments’ recognized interest in the uniformity and ease of administration of its programs would also meet this standard. See, e.g., Bowen, 476 U.S. at 707; Hernandez, 490 U.S. at 682; United States v. Lee, 455 U.S. 252, 258-59 (1982).
The Mandate and accommodation scheme easily pass the rational basis test. Because the Mandate is both neutral and generally applicable and supported by a rational basis, Plaintiffs fail to make out a plausible claim under the Free Exercise Clause.
B. Establishment Clause Plaintiffs contend that exempting churches and integrated auxiliaries from the Mandate but requiring religious non-profit organizations to seek an accommodation violates the Establishment Clause. We disagree. Because the Departments have chosen to distinguish between entities based on neutral, objective organizational criteria and not by denominational preference or religiosity, the distinction does not run afoul of the Establishment Clause. 1. Organizational Distinctions Well-Established in Federal Law Federal law distinguishes between different types of religious organizations, and as we discuss below, this differentiation is constitutionally permissible. Under the ACA and its implementing regulations, a religious employer “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.” 45 C.F.R. § 147.131(a). The regulations
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at issue in this case draw on the tax code’s distinction between houses of worship and religious non-profits, a “longstanding and familiar” distinction in federal law. Priests for Life, 772 F.3d at 238; see also Geneva Coll., 778 F.3d at 443 (determining it was permissible for the Departments to base the exemption on the IRC’s provision “because that provision was a bright line that was already statutorily codified and frequently applied”).
Exempting churches while requiring other religious objectors to seek an accommodation is standard practice under the tax code. The IRC and other regulations award benefits to some religious organizations—typically, houses of worship—based on articulable criteria that other religious organizations do not meet. See 26 U.S.C. § 6033(a)(3)(A)(i), (iii). Churches, their integrated auxiliaries, and conventions or associations of churches are automatically considered tax exempt and need not notify the government they are applying for recognition, but other religious non-profit organizations must apply for tax-exempt status if their annual gross receipts are more than $5,000. See id. § 508(a), (c)(1)(A). Similarly, churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order need not file tax returns, but religious non-profit organizations with gross receipts above $5,000—even if they are tax-exempt—must file annually. Id. § 6033(a). Congress has placed special limitations on tax inquiries and examinations of churches, but not integrated auxiliaries, church-operated schools, or religious non-profit organizations. See id. § 7611.
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Congress has used similar organizational distinctions in the realm of religious accommodations. Churches and qualified church-controlled organizations that object to paying Social Security and Medicare taxes for religious reasons may opt out of paying them by filing a form with the IRS, but other religious non-profit organizations may not. See id. § 3121(w). 2. Organizational Distinctions and Respecting the Religion Clauses
Distinctions based on organizational form enable the government to simultaneously respect both the Free Exercise Clause and Establishment Clause and permit the construction of accommodation schemes that pass constitutional muster. The Supreme Court has concluded
[t]he general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 669 (1970); see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 469 (N.Y. 2006) (observing the Plaintiffs’ argument here “would call into question any limitations placed by the Legislature on the scope of any religious exemption—and thus would discourage the Legislature from creating any such exemptions at all,” and thus concluding “[a] legislative decision not to extend an accommodation to all kinds of religious organizations does not violate the Establishment Clause”). We recognize the
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Government enjoys some discretion in fashioning religious accommodations, and believe doing so on the basis of organizational form comports with the Establishment Clause. 3. Organizational Distinctions Compatible with Larson and Colorado Christian
The Departments have offered the accommodation to Plaintiffs based on their organizational form. Plaintiffs rely on the decisions in Larson v. Valente, 456 U.S. 228 (1982), and Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), to support their Establishment Clause claim. But those cases do not hold that distinctions based on organizational type are impermissible.
Larson involved an Establishment Clause challenge to a Minnesota law that imposed registration and reporting requirements on religious organizations that received less than half of their contributions from members or affiliated organizations. Larson, 456 U.S. at 231. The legislature drew this distinction to discriminate against particular religions, which was evident in the legislative history. Id. at 253-54 (“[T]he history of [the challenged law] demonstrates that the provision was drafted with the explicit intention of including particular religious denominations and excluding others.”). Colorado Christian differentiated institutions based on intrusive inquiries into their degree of religiosity. 534 F.3d 1259. In Colorado Christian, we concluded Colorado’s exclusion of “pervasively sectarian” institutions from state scholarship programs violated the First Amendment “for two reasons: the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice.” Id. at 1250.
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Neither of these two concerns in Colorado Christian is applicable here. Larson and Colorado Christian prohibit preferences based on denomination (e.g.,
Catholic, Jewish, Islamic, etc.) and religiosity (e.g., pervasively sectarian, moderately sectarian, non-sectarian, etc.), but do not prohibit distinctions based on organizational type (e.g., church, non-profit, university, etc.). As Larson noted: “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” 456 U.S. at 244. In Colorado Christian, we determined that “defendants supply no reason to think that the government may discriminate between ‘types of institution’ on the basis of the nature of the religious practice these institutions are moved to engage in.” 534 F.3d at 1259. As a result, Establishment Clause jurisprudence clearly indicates denominational preferences expressed by the government are subject to strict scrutiny. See id. Religiosity distinctions are subject to strict scrutiny as well because they involve the government in scrutinizing and making decisions based on particular expressions of religious belief. See id. at 1256 (invalidating Colorado law because it “expressly discriminates among religions, allowing aid to ‘sectarian’ but not ‘pervasively sectarian’ institutions, and it does so on the basis of criteria that entail intrusive governmental judgments regarding matters of religious belief and practice”).
Plaintiffs cite no case holding that organizational distinctions, as opposed to those based on denomination or religiosity, run afoul of the Establishment Clause. Unlike Awad v. Ziriax, 670 F.3d 1111, 1128-29 (10th Cir. 2012), which concerned a state constitutional amendment forbidding courts from considering or using Sharia law,
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evidence of animus or favoritism aimed at a denomination or degree of religiosity is absent here. “Because the law’s distinction does not favor a certain denomination and does not cause excessive entanglement between government and religion, the framework does not violate the Establishment Clause.” Mich. Catholic Conf., 755 F.3d at 395; see also Priests for Life, 772 F.3d at 272-74.
Neither Larson nor Colorado Christian supports Plaintiffs’ claim that distinctions between churches and other religious entities is impermissible. As we concluded in Colorado Christian, “if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices.” 534 F.3d at 1266. This is what the Departments have done with the accommodation scheme in compliance with the First Amendment’s Establishment Clause. 4. Plaintiffs’ Argument Based on the Departments’ Rationale
Plaintiffs seize on the Departments’ rationale for the distinction that religious nonprofit organizations are more likely than churches to employ individuals who do not share their employers’ beliefs but are nevertheless entitled to contraceptive coverage under the ACA. See 78 Fed. Reg. at 39,874 (“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.”). Plaintiffs argue some denominations are
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less likely to carry out ministry functions through a church or integrated auxiliary than others, and that the workforces of some non-profit institutions may be more religiously homogenous than the workforces of some established churches.
The Departments’ rationale may not be perfectly accurate, but it does not make the accommodation scheme unconstitutional. The class of religious non-profit organizations encompasses a vast array of religiously affiliated universities, hospitals, service providers, and charities, some of them employing thousands of people. Of course, some religious non-profit organizations may be more likely than some churches to employ coreligionists, but the Departments may reasonably recognize that, on the whole, churches are more likely to employ those who share their beliefs. Priests for Life, 772 F.3d at 272. The Departments originally exempted religious employers to “respect[] the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. at 46,623. We recognize that relationship between houses of worship and ministerial employees has been given special solicitude under the First Amendment. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 712-13 (2012). The Departments must avoid inquiries that involve them in “excessive entanglement” between religion and government, see Colorado Christian, 534 F.3d at 1261-62, and the general notion that houses of worship are more likely than religious non-profit organizations to employ people of the same faith avoids impermissible
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scrutiny into the beliefs of religious entities and their employees.54 * * * *
Drawing a distinction between religious employers and religious non-profit organizations is a neutral and reasonable way for the Departments to pursue their legitimate goals in a constitutional manner. It gives special solicitude to churches to facilitate the liberties guaranteed by the Free Exercise Clause, and offers the accommodation scheme to relieve religious non-profit organizations of their obligation to provide contraceptive coverage under the Mandate without imposing a substantial burden on their religious exercise. The accommodation scheme does not violate the Establishment Clause.
C. Free Speech Clause Plaintiffs finally contend the accommodation scheme violates the Free Speech Clause of the First Amendment, which states that “Congress shall make no law . . . abridging the freedom of speech,” U.S. Const. amend. 1, by compelling them both to speak and remain silent, see Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796-97 (1988). First, they argue that requiring them to sign and deliver the Form or the notification to HHS constitutes compelled speech. Second, they argue that prohibiting
54 The original definition of “religious employer” required that the employer “primarily employs persons who share its religious tenets [and] primarily serves persons who share its religious tenets.” 76 Fed. Reg. at 46,623. In response to religious entities that argued these requirements might involve excessive entanglement with religion, the Departments eliminated three of the four criteria and based the definition solely on organizational form. 78 Fed. Reg. at 8459. Plaintiffs now contend that simplified definition makes unfounded assumptions about who religious employers employ.
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them from influencing their TPAs’ provision of contraceptive coverage compels them to be silent. Both arguments fail. 1. Compelled Speech
The compelled speech claim fails. To the extent such a claim requires government interference with the plaintiff’s own message, see Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005) (stating a compelled speech claim arises when “an individual is obliged personally to express a message he disagrees with, imposed by the government”), the regulations do not require an organization seeking an accommodation to engage in speech it finds objectionable or would not otherwise express. The only act the accommodation scheme requires is for religious non-profit organizations with group health plans to sign and deliver the Form or notification expressing their religious objection to providing contraceptive coverage. The Sixth Circuit reasoned: “Even assuming the government is compelling this speech, it is not speech that the appellants disagree with and so cannot be the basis of a First Amendment claim.” Mich. Catholic Conf., 755 F.3d at 392; see also Geneva Coll., 778 F.3d at 438-39 (“If anything, because the appellees specifically state on the self-certification form that they object on religious grounds to providing such coverage, it is a declaration that they will not be complicit in providing coverage.”). Plaintiffs cannot point to speech they are required to express and find objectionable.55
55 In Axson-Flynn, we recognized that a compelled speech claim may apply to non-ideological speech. We held a University of Utah theater student had alleged a
Continued . . .
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Indeed, Plaintiffs have not shown any likelihood that their sending in the Form or the notification would convey a message of support for contraception. Plaintiffs do not demonstrate their TPA, their health insurance issuer, or HHS—any one of which would be the sole recipient of the Form or notification—would view it as anything other than an objection to providing contraception. Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47 (2006), is instructive. In FAIR, a group of law schools challenged the Solomon Amendment, a federal statute that denied federal funding to universities that barred military recruiters from their campuses. At that time, the military did not permit gay, lesbian, and bisexual individuals to serve. The schools claimed a First Amendment compelled speech violation, arguing their compliance with the Solomon Amendment would signal their agreement with this policy. The Supreme Court rejected the argument, noting compliance did not signal agreement with the military’s positions, and the Solomon Amendment did not prevent the schools from making their own position clear. FAIR, 547 U.S. at 65.
This point is even stronger in the instant case, where Plaintiffs would send the Form or notification to convey their opposition to providing contraception, and the ACA and implementing regulations do not prevent them from expressing that opposition widely. Plaintiffs remain free to express opposition to contraception; “[n]othing in the[]
______________________________________ Cont.
compelled speech violation because she was required to utter certain swear words as part of a script and objected to doing so on religious grounds. 356 F.3d at 1284 n.4.
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final regulations prohibits an eligible organization from expressing its opposition to the use of contraceptives.” 78 Fed. Reg. at 39,880 n.41. With the passage of the interim final rule, Plaintiffs also have the option to send a letter or email to HHS expressly objecting to any provision of contraception. They can fully explain their position in that notification. We are especially unconvinced that this option, freed from the text of the Form and permitting greater self-expression, forces Plaintiffs to engage in unwanted speech. Plaintiffs have not suggested the notification must be conveyed or communicated to any third parties or wider audience aside from the Departments themselves.
Even if Plaintiffs could identify speech they disagreed with—for example, identifying the name of their TPA or health insurance issuer—the argument that they are forced to send a message they do not wish to send is unavailing. The First Amendment does not—and cannot—protect organizations from having to make any and all statements “they wish to avoid.” The cases cited by Plaintiffs are not about routine administrative burdens akin to complying with the accommodation scheme. These cases instead concern compelled ideological expression such as salutes to the flag, W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943); messages on license plates, Wooley v. Maynard, 430 U.S. 705, 715 (1977), Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir. 2013); wearing school slogans, Frudden v. Pilling, 742 F.3d 1199, 1203-04 (9th Cir. 2014); and taking a political stance on commercial sex, Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331 (2013).
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“Compelling an organization to send a form to a third party to claim eligibility for an exemption ‘is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.’” Priests for Life, 772 F.3d at 271 (quoting FAIR, 547 U.S. at 62). “That would be the equivalent of entitling a tax protester to refuse on First Amendment grounds to fill out a 1099 form and mail it to the Internal Revenue Service.” Wheaton College, 2015 WL 3988356, at *8. None of the cases cited by Plaintiffs involve compliance with the administrative requirements of a government program, and especially not a government program designed to exempt and distance an organization from activity it finds objectionable.
We finally note that Plaintiffs’ signature and delivery of the Form or notification to HHS is “plainly incidental to the . . . regulation of conduct” and thus is not protected speech. FAIR, 547 U.S. at 62. The act of signing and delivering the Form or notification to HHS is required to opt out of the Mandate. The Supreme Court has “rejected the view that ‘conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.’ Instead, we have extended First Amendment protection only to conduct that is inherently expressive.” Id. at 65-66 (quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)). The fact that Plaintiffs must complete the Form or notification to HHS to opt out of coverage does not render the act inherently expressive. See id. at 62.
For the foregoing reasons, we reject Plaintiffs’ compelled speech claim.
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2. Compelled Silence We further reject the claim that the accommodation scheme compels Plaintiffs’
silence. Like the Sixth and Seventh Circuits, we note Plaintiffs have made only general claims objecting to the non-interference regulation and have failed to indicate how it precludes speech in which they wish to engage. Mich. Catholic Conf., 755 F.3d at 39293; Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 561 (7th Cir. 2014), vacated and remanded sub nom., Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015). After the issuance of the interim final rule repealing the non-interference regulation, we do not believe this question is before us. We agree with the Government and the D.C. Circuit that the repeal of the non-interference rule renders Plaintiffs’ claims regarding compelled silence moot. See Priests for Life, 772 F.3d at 242 n.8.
VII. CONCLUSION We have reviewed the district courts’ decisions to grant or deny a preliminary injunction to Plaintiffs in the three cases before us. Because we determine the ACA and its implementing regulations do not substantially burden Plaintiffs’ religious exercise or violate the Plaintiffs’ First Amendment rights, Plaintiffs have not established a likelihood of success on the merits or a likely threat of irreparable harm as required for a preliminary injunction. See Hobby Lobby, 723 F.3d at 1128. We therefore affirm the district court’s denial of a preliminary injunction in Little Sisters, 6 F. Supp. 3d 1225, and reverse the district courts’ grant of a preliminary
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injunction in Southern Nazarene, 2013 WL 6804265, and Reaching Souls, 2013 WL
6804259.
EBSA FORM 700-- CERTIFICATION (revised August 2014)
This form may be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, and 45 CFR 147.131. Alternatively, an eligible organization may also provide notice to the Secretary of Health and Human Services.
Please fill out this form completely. This form should be made available for examination upon request and maintained on file for at least 6 years following the end of the last applicable plan year. Name of the objecting organization
Name and title of the individual who is authorized to make, and makes, this certification on behalf of the organization
Mailing and email addresses and phone number for the individual listed above
I certify the organization is an eligible organization (as described in 26 CFR 54.9815-2713A(a), 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)) that has a religious objection to providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.
Note: An organization that offers coverage through the same group health plan as a religious employer (as defined in 45 CFR 147.131(a)) and/or an eligible organization (as defined in 26 CFR 54.9815-2713A(a); 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)), and that is part of the same controlled group of corporations as, or under common control with, such employer and/or organization (within the meaning of section 52(a) or (b) of the Internal Revenue Code), is considered to meet the requirements of 26 CFR 54.9815-2713A(a)(3), 29 CFR 2590.715-2713A(a)(3), and 45 CFR 147.131(b)(3).
I declare that I have made this certification, and that, to the best of my knowledge and belief, it is true and correct. I also declare that this certification is complete.
______________________________________ Signature of the individual listed above
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 107
______________________________________ Date
The organization or its plan using this form must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.
Notice to Third Party Administrators of Self-Insured Health Plans
In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.7152713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization:
(1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and
(2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A.
As an alternative to using this form, an eligible organization may provide notice to the Secretary of Health and Human Services that the eligible organization has a religious objection to providing coverage for all or a subset of contraceptive services, pursuant to 26 CFR 54.98152713A(b)(1)(ii)(B) and (c)(1)(ii), 29 CFR 2590.715-2713A(b)(1)(ii)(B) and (c)(1)(ii), and 45 CFR 147.131(c)(1)(ii). A model notice is available at: http://www.cms.gov/cciio/resources/Regulationsand-Guidance/index.html#Prevention.
This form or a notice to the Secretary is an instrument under which the plan is operated.
PRA Disclosure Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 1210-0150. An organization that seeks to be recognized as an eligible organization that qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing may complete this self-certification form, or provide notice to the Secretary of Health and Human Services, in order to obtain or retain the benefit of the exemption from covering certain contraceptive services. The self-certification form or notice to the Secretary of Health and Human Services must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974, which generally requires records to be retained for six years. The time required
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 108 to complete this information collection is estimated to average 50 minutes per response, including the time to review instructions, gather the necessary data, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: U.S. Department of Labor, Employee Benefits Security Administration, Office of Policy and Research, 200 Constitution Avenue, N.W., Room N-5718, Washington, DC 20210 or email ebsa.opr@dol.gov and reference the OMB Control Number 12100150.
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Little Sisters et al. v. Burwell, Nos. 13-1540, 14-6026, 14-6028 BALDOCK, Circuit Judge, dissenting in part.
Today the Court holds, among other things, that the ACA contraceptive Mandate’s accommodation scheme does not substantially burden religious non-profits that object to facilitating contraceptive or abortifacient coverage because opting out does not cause, authorize, or otherwise facilitate such coverage.1 The Court’s opinion provides perhaps the most thorough explanation of the accommodation scheme’s nuanced mechanics that I have yet read. And for argument’s sake, I follow its holding as to the insured plaintiffs’ and Little Sisters plaintiffs’ RFRA claims.2 But I cannot join the Court’s holding as to the other self-insured plaintiffs’ RFRA claims, as that holding contradicts the Court’s own reasoning and thorough explanation of the accommodation scheme.
In reality, the accommodation scheme forces the self-insured plaintiffs to perform an act that causes their beneficiaries to receive religiously objected-to coverage. The fines the government uses to compel this act thus impose a substantial burden on the selfinsured plaintiffs’ religious exercise. Moreover, less restrictive means exist to achieve the government’s contraceptive coverage goals here. I must therefore dissent in part.
1 For consistency, I adopt the Court’s glossary. 2 As I explain below, the Little Sisters plaintiffs, though self-insured, have not shown that their opting out will necessarily cause their plan participants and beneficiaries to receive contraceptive coverage. Accordingly, my use of the term “self-insured plaintiffs” does not refer to the Little Sisters unless otherwise stated.

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 110

I.

WHEN IS A BURDEN ON RELIGIOUS EXERCISE “SUBSTANTIAL?”

The first step of a RFRA claim requires plaintiffs to show (1) that the federal

government has imposed a substantial burden on a (2) sincere (3) exercise of religion.

See 42 U.S.C. § 2000bb-1(a). The unique threshold question we and so many other

courts are currently grappling with, however, is how to determine whether a substantial

burden exists where a law compels religious adherents to perform an act they sincerely

oppose when this opposition might be based on a faulty understanding of the law. See,

e.g., E. Tex. Baptist Univ. v. Burwell, 2015 WL 3852811, at *3 (5th Cir. June 22, 2015).

Several learned judges have argued compellingly that, under Burwell v. Hobby

Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the amount of coercion the government uses

to force a religious adherent to perform an act she sincerely believes is inconsistent with

her understanding of her religion’s requirements is the only consideration relevant to

whether a burden is “substantial” under RFRA. See, e.g., Priests For Life v. U.S. Dep’t

of Health & Human Servs., No. 13-5368, slip op. at 17–22 (D.C. Cir. May 20, 2015)

(Brown, J., dissenting from the denial of rehearing en banc); id. at 35 (Kavanaugh, J.,

dissenting from the denial of rehearing en banc); Univ. of Notre Dame v. Burwell, 786

F.3d 606, 628 (7th Cir. 2015) (Flaum, J., dissenting); Eternal Word Television Network,

Inc. v. Sec’y, Dep’t of Health & Human Servs., 756 F.3d 1339, 1340 (11th Cir. 2014)

(Pryor, J. specially concurring); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d

1114, 1137 (10th Cir. 2013) (“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.”); cf. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. 2

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 111
Ct. 2028, 2031–33 (2015) (analyzing a plaintiff’s exercise as a “religious practice” under Title VII where the act was motivated by “her understanding of her religion’s requirements”).
These judges assert that whether religious objectors properly understand the legal significance of the compelled act has no bearing on the substantial burden analysis. E.g. Priests For Life., No. 13-5368, slip op. at 35 (Kavanaugh, J., dissenting) (“But what if the religious organizations are misguided in thinking that this scheme . . . makes them complicit in facilitating contraception or abortion? That is not our call to make under the first prong of RFRA.”). And Hobby Lobby supports this position well, as questioning a religious adherent’s understanding of the significance of a compelled action comes dangerously close to questioning “whether the religious belief asserted in a RFRA case is reasonable”—a “question that the federal courts have no business addressing.” Hobby Lobby, 134 S. Ct. at 2778.
Under this understanding of RFRA, the accommodation scheme substantially burdens any religious non-profit that objects to performing an act that would cause or otherwise make it complicit in providing contraceptive coverage simply because the scheme uses substantial fines to compel an act that the non-profit sincerely believes would have that effect. The actual legal significance of the compelled act is irrelevant to the substantial burden analysis. And because the government has conceded (2) the sincerity of (3) the religious exercise at issue, the only issue left to address is whether the government has shown that the accommodation scheme survives strict scrutiny. The judges who take this position, so far, all agree that the government has not made this
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showing. Priests For Life., No. 13-5368, slip op. at 22–25 (Brown, J., dissenting); id. at 46–51 (Kavanaugh, J., dissenting); Notre Dame, 786 F.3d at 629–30 (Flaum, J., dissenting); Eternal Word Television Network, 756 F.3d at 1348–49 (Pryor, J. specially concurring).
Notwithstanding the strength of those positions, I will proceed under the following assumptions to highlight an even deeper problem lurking within the self-insured accommodation scheme: First, I will assume that whether a burden on religious exercise is “substantial” turns not only on the amount of coercion the government uses to compel an act (no one disputes the substantiality of the fines at issue here), but also on “how the law or policy being challenged actually operates and affects religious exercise.” Slip Op. at 39. Second, I will assume this Court may tell a religious adherent she does not face a substantial burden on her religious exercise if her understanding of the law is flawed. Third, I will assume that any burden the accommodation scheme imposes on Plaintiffs— who object to performing any act that would cause or otherwise make them complicit in providing various forms of contraceptive coverage—cannot be substantial unless they show, for example, how their compelled act causes that coverage. See Slip Op. at 45–66.
The Court tells Plaintiffs they cannot make this showing “because opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage.” Slip Op. at 65. If showing this causation is a prerequisite to establishing a substantial burden, the Court properly rejects the insured plaintiffs’ RFRA claim, as their action or inaction will not affect whether their plan beneficiaries receive objected-to coverage. But the self-insured plaintiffs’ inaction will prevent their plan beneficiaries
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from receiving the coverage. If their beneficiaries receive this coverage, it is only because the self-insured plaintiffs, by opting out, caused that effect. Thus, the selfinsured plaintiffs have shown how their opting out would cause the provision and receipt of objected-to coverage and established a substantial burden on their religious exercise.
II. THE CRITICAL DISTINCTION IN THIS CASE I have nothing to add to the Court’s summary of the background in these cases, and very little to add to its explanation of the detailed mechanics of the ACA accommodation scheme. But a critical distinction within scheme bears repeating. Under the ACA accommodation scheme, in the insured health plan context, “a health insurance issuer . . . would be obligated to provide contraceptive coverage under the ACA whether or not [the insured non-profit] delivered the Form or notification to HHS.” Slip Op. at 48 n.28 (citing 42 U.S.C. § 300gg-13). But in the self-insured context, a TPA would be “authorized and obligated to provide the coverage . . . only if the religious non-profit . . . opts out.” Slip Op at 49 (emphases added); see also 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The Fifth, Sixth, and Seventh Circuits failed to recognize this distinction. See E. Tex. Baptist, 2015 WL 3852811, at *5; Notre Dame, 789 F.3d at 614; Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 387 (6th Cir. 2014) cert. granted, judgment vacated 135 S. Ct. 1914 (2015). The Third and D.C. Circuits failed to appreciate its significance. See Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 438 (3d Cir. 2015); Priests For Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 254–56 (D.C. Cir. 2014). This Court considers the
5

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distinction “unremarkable.” Slip Op. at 49. I disagree. The distinction makes a difference, and juxtaposing the insured plaintiffs and self-insured plaintiffs forces that difference into bold relief.
A. The Insured Plaintiffs Assuming causation is key, I agree the accommodation scheme does not substantially burden the insured plaintiffs’ religious exercise. As the Court explains, even total inaction on the part of an insured non-profit still results in its plan participants and beneficiaries receiving the coverage to which they are entitled under the ACA because the government has independently obligated a third party (insurance issuers) to provide it.3 See Slip Op. at 46–47. Opting out in the insured context does not cause the receipt of contraceptive coverage; rather, it merely absolves the eligible insured nonprofit of any responsibility for the contraceptive coverage its plan participants and beneficiaries will receive whether it opts out or not. Thus, assuming Plaintiffs must show how opting out causes coverage, the accommodation scheme does not substantially burden the insured plaintiffs’ exercise of religion. The insured accommodation is more akin to traditional conscientious objector schemes: the government can and will conscript the actors it needs to achieve its goals whether objectors opt out or not. The same cannot be said of the self-insured plaintiffs, however.
3 Even the government’s proffered fourth option—declining to sponsor a group health plan—would not interfere with contraceptive coverage for the insured plaintiffs’ plan beneficiaries. Without an employer-sponsored plan, these beneficiaries would have to find other health insurance. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2664 (2012) (Scalia, J., dissenting). And that insurance would likely cover contraceptives. See 42 U.S.C. § 300gg-13.
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B. The Self-Insured Plaintiffs Unlike the insured plaintiffs, the ACA leaves the self-insured plaintiffs in a position where, by refusing to opt out, they can prevent their plan beneficiaries from receiving the objected-to coverage the beneficiaries are entitled to and would otherwise receive under the ACA. In other words, their plan participants and beneficiaries will receive the coverage only if they opt out as the government commands. This makes their opting out a but-for cause of the receipt of the coverage. The Court views this ability to prevent contraceptive coverage by inaction as nothing more than the ability to disobey the law. See Slip Op. at 54–55 & n.35. But that is the same limited ability the plaintiffs in Hobby Lobby possessed, and it goes to the heart of the substantial burden the self-insured plaintiffs face here. “In Hobby Lobby, the plaintiff[s] . . . could choose only between (1) complying with the ACA by providing the coverage or (2) not complying and paying significant penalties.” Slip Op. at 3 (citing Hobby Lobby, 134 S. Ct. at 2759–60). Similarly, these self-insured plaintiffs must choose between (1) complying with the ACA by taking an action that ultimately causes their beneficiaries to receive this coverage or (2) not complying and paying significant penalties. This is a Hobson’s choice, which we have long held imposes a substantial burden under RFRA. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010) (“We conclude that a religious exercise is substantially burdened under [RFRA] 42 U.S.C. § 2000cc–1(a) when a government . . . presents the plaintiff with a Hobson’s choice—an illusory choice where the only realistically possible course of action trenches on an adherent’s sincerely held religious belief.”); Hobby Lobby, 723 F.3d at 1141 (10th
7

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Cir. 2013) (explaining that the choice between compromising religious beliefs and paying fines under the ACA “is precisely the sort of Hobson’s choice described in Abdulhaseeb”).
1. The Obvious Causal Connection If causation is key to showing a substantial burden, see Slip Op. at 32–33, 45–66, the self-insured plaintiffs have surely shown that burden. Certainly, a shifting legal responsibility alone may not necessarily create a causal relationship. But here, the selfinsured plaintiffs’ opt out causes the coverage because (1) the government cannot force plaintiffs themselves to provide the coverage, Hobby Lobby, 134 S. Ct. at 2785, and (2) the government cannot shift the ability (let alone the responsibility) to provide the coverage to non-objectors unless the self-insured plaintiffs opt out. See 29 C.F.R. § 2590.715-2713A(b)(2); Slip Op. at 48–49. Opting out is thus the only way their plan participants and beneficiaries may receive the coverage. Put another way, if the self-insured plaintiffs do not opt out, who will provide the coverage for their plan participants and beneficiaries? The answer: no one. The selfinsured plaintiffs cannot do so per their faith; the TPAs cannot do so per the law. Thus, the self-insured accommodation renders any duty to provide, and any entitlement to receive, contraceptive coverage wholly unenforceable and thus illusory—unless and until the self-insured plaintiffs opt out. Cf. Pennington v. Northrop Grumman Space & Mission Sys. Corp., 269 F. App’x 812, 819 (10th Cir. 2008) (unpublished) (“[W]hen a promise, in reality, promises nothing—it is illusory.” (Internal marks and citation omitted)).
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To fully understand why no one can or will provide this objected-to coverage unless the self-insured plaintiffs perform a compelled act, one must view the ACA Mandate and accommodation scheme in light of Hobby Lobby. Hobby Lobby clearly holds forcing religious employers to provide objected-to contraceptive coverage violates RFRA. 134 S. Ct. at 2785. So, if any entity is to provide the coverage, it must be a third party. The insured accommodation independently conscripts third parties to provide the coverage. But as this Court points out, the self-insured accommodation was drafted such that no third party can provide the coverage in the self-insured context unless and until the objecting religious employer opts out. Slip Op. at 48–49; see also Eternal Word Television Network, 756 F.3d at 1347 (Pryor, J., specially concurring) (explaining that, without the Form or letter, a TPA “has no legal authority to step into the shoes of the [non-profit] and provide contraceptive coverage to the employees and beneficiaries of the [non-profit]”). As such, a third party’s legal authority (i.e. permission) to provide the coverage is wholly dependent upon (i.e. caused by) the self-insured non-profit opting out.
The Court believes we should focus on the fact that the ACA “entitle[s] plan participants and beneficiaries to coverage whether or not the plaintiffs opt out” and imposes a duty on “either the religious non-profit organization or the TPA” to provide that coverage. Slip Op. at 33, 57. But this reasoning (1) fails to consider the ACA Mandate in light of the limitations Hobby Lobby already imposed, and (2) confuses legal concepts (duty and entitlement) with real-world effects (provision and receipt).
First, the Court’s focus on the ACA’s requirement that “either the religious nonprofit organization or the TPA” provide the coverage, Slip Op. at 57, ignores the fact that
9

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the government cannot require the religious non-profit to provide the coverage under Hobby Lobby. By ignoring the limitation Hobby Lobby imposes on the government, the Court simultaneously acknowledges that “opting out is necessarily a but-for cause of someone else—the TPA—providing contraceptive coverage,” Slip Op. at 56, and nevertheless rejects the self-insured plaintiffs’ RFRA claims for lack of causation. Slip Op. at 64–65. But again, Hobby Lobby forbids the government from placing this requirement on the non-profits themselves. So if opting out is necessarily a but-for cause of someone else providing the coverage, it is necessarily a but-for cause of anyone providing the coverage at all. Essentially, the Court concedes but-for cause and then turns around and denies the existence of any causation. What?
Second, the Court asserts that the self-insured plaintiffs’ opt out will not cause the actual provision and receipt of objected-to coverage because the ACA creates an independent, albeit illusory, duty and entitlement related to that coverage. True, opting out does not cause entitlement to contraceptive coverage—the ACA entitles all health plan beneficiaries to contraceptive coverage. But these beneficiaries will not receive that coverage unless the self-insured plaintiffs do something to cause its provision from a third party. In other words, the ACA may independently say “someone” has a duty to provide contraceptive coverage, see 29 C.F.R. § 2590.715–2713, but no one can or will honor that duty and provide the coverage unless the self-insured plaintiffs opt out. No self-insured plaintiff will honor it because the government cannot force them to under Hobby Lobby, and no third party can honor it because no third party has authority to do so without an opt out. Based on this error, the Court concludes that “federal law, not the
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actions of the religious objector, ensures that plan participants and beneficiaries will
receive contraceptive coverage.” Slip Op. at 52 (emphasis added). But that is simply
wrong. As explained above, federal law alone does not ensure receipt of the coverage
from the self-insured plaintiffs; and it does not even allow, let alone ensure, receipt of
that coverage from a third party unless the self-insured plaintiffs opt out. Rather, federal
law, only in conjunction with the self-insured plaintiffs’ opt out, allows plan participants
and beneficiaries to receive contraceptive coverage.4
These errors, taken together, cause the Court to reject a straw man rather than the
self-insured plaintiffs’ RFRA claims. The self-insured plaintiffs do not claim a RFRA
violation based on the fact that the ACA created an entitlement to contraceptive
coverage; they object to the causal role they must play in providing that coverage. 5
4 Even with the opt-out, federal law does not always ensure receipt of the coverage. For example, the Court asserts “the ACA ensures plan participants and beneficiaries will receive contraceptive coverage” but simultaneously contradicts itself by acknowledging that TPAs for self-insured church plans may in fact decline to provide that coverage, in which case “plan participants and beneficiaries would not get the coverage to which they are otherwise entitled.” Slip Op. at 61 & n.41 (emphases added).
The Court’s attempt to paint these contradictory positions as consistent suffers from the same logical flaw highlighted above; that is, it confuses the actual provision and receipt of coverage with a concededly unenforceable entitlement and duty to provide it. If the law cannot force an unwilling TPA to provide contraceptive coverage, the TPA will not provide it, and the plan beneficiaries will not receive it. Cf. Mach Mining, LLC v. E.E.O.C., 135 S. Ct. 1645, 1652–53 (2015) (acknowledging that even the government may violate the law, “especially so when [it faces] no consequence”). Thus, the existence of an unenforceable duty to provide contraceptive coverage does not ensure receipt, as this Court seems to believe.
5 The Court also asserts that religious non-profits “cannot preclude the government from requiring others to provide the legally required coverage in its stead,” Slip Op. at 51–52, and “cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled under the ACA,” Slip Op. at
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A proper accommodation may relieve otherwise substantial burdens on religious exercise, but this accommodation fails to do so, at least in the self-insured context. And to be sure, “[a] burden does not rise to the level of being substantial when it places an inconsequential or de minimis burden on an adherent’s religious exercise.” Slip Op. at 41 (quoting Priests for Life, 772 F.3d at 246). But here, the accommodation scheme foists upon the self-insured plaintiffs a choice with dire consequences. Either (1) they refuse to act, which would avoid causing their plan beneficiaries to receive objected-to coverage but trigger crippling fines for violating the law or (2) they act, which would cause the receipt of this coverage and violate their faith. If “the purpose of religious accommodation” was to permit religious objectors “to avoid a religious burden and to comply with the law,” see Slip Op. at 55, it fails to achieve that purpose. Rather, the accommodation foists upon the self-insured plaintiffs a Hobson’s choice and thus a substantial burden on their exercise of religion. Abdulhaseeb, 600 F.3d at 1315.
2. This is Not a Conscientious Objector Accommodation Scheme The Court believes this accommodation scheme akin to the conscientious objector schemes used for military conscription. See Slip Op. at 52 n.33. Not so. The
71. I agree that this should not be the case but, unfortunately, the government drafted the self-insured accommodation such that the self-insured plaintiffs can, by inaction, do exactly that. As explained above, that is precisely why their opting out causes the receipt of objected-to coverage.
Moreover, to the extent this language connotes dissatisfaction with the problems created by the self-insured accommodation, such dissatisfaction is irrelevant to whether the law imposes a substantial burden under RFRA. Our job is not to “add words to the law to produce what is thought to be a desirable result.” Abercrombie & Fitch, 135 S. Ct. at 2033.
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accommodation scheme may function like a conscientious objector scheme in some regards, but it ultimately forces objectors to play a very different and causal role.
Military conscription law generally requires male citizens to register for the draft and allows the President to draft a certain number of men from that pool of candidates into active duty in the Armed Forces.6 See, e.g., Arver v. United States, 245 U.S. 366, 375–76 (1918) (allowing the President to draft up to two groups of 500,000 men). After registering, conscientious objectors can opt out of serving in combat. 50 App. U.S.C. § 456(j). But they cannot reduce the number of men the President ultimately drafts. Whether objectors lawfully register and opt out, or register and then choose unlawfully to avoid induction, or even choose unlawfully not to register at all, the President can and will draft the same number of men needed for war. See LAWRENCE M. BASKIR & WILLIAM A. STRAUSS, CHANCE AND CIRCUMSTANCE: THE DRAFT, THE WAR, AND THE VIETNAM GENERATION 14–28 (1978) (explaining that the government’s Vietnam draft policies “did not care who was drafted as long as enough people were drafted”).
Indeed, the Court’s reliance on Sheridan v. United States, 483 F.2d 169 (8th Cir. 1973), highlights this difference. In Sheridan, the defendant registered for the draft but did not lawfully opt out. Instead, he simply refused to be inducted. Id. at 170. But the result under conscription law was the same: “another person [was] called in his place.” Id. at 174. In other words, like the insured plaintiffs, no matter what conscientious objectors do or refuse to do, the government can and will achieve its military draft goals. 6 Currently, “every male citizen of the United States . . . between the ages of eighteen and twenty-six” must register in order to facilitate any eventual conscription into the Armed Forces. 50 App. U.S.C. § 453(a).
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The opposite result occurs under the self-insured accommodation scheme. If a self-insured plaintiff simply refuses to provide coverage and does not opt out, the government cannot call a third party in its place. The accommodation scheme thus places the self-insured plaintiffs in a very different position vis-à-vis helping the government achieve its religiously objectionable goals. Conscientious objectors cannot prevent the government from conscripting their replacements; but the self-insured plaintiffs can completely prevent the government from even authorizing their TPAs to provide objected-to coverage. Conscientious objectors also need not identify a related third party to serve in their stead; but the self-insured plaintiffs must identify a related third party through a form or letter. And this form or letter is the only means by which the government can authorize that third party to serve in their stead. Under conscientious objector schemes, the government may independently draft non-objecting Americans into combat to further its war efforts; conscientious objectors have no power to stop it. But under the self-insured accommodation scheme the government needs the self-insured plaintiffs to commit an act to further its contraceptive coverage efforts; their beneficiaries will not receive this coverage unless they commit that act and cause that result. Such a conscientious objector scheme—where the government could draft a replacement soldier only if the initial conscientious objector opted out and identified a previously ineligible relative to serve in his stead—would be immensely problematic, to say the least.7
7 The Court attempts to counter this point by referencing the Enrollment Act of 1863, which “permitted a draftee to avoid service only by either providing a substitute or paying $300.” Slip Op. at 52 n.33 (quoting Act of March 3, 1863, ch. 75, § 13, 12 Stat. 731, 733 (1863)). But this act was a short-lived experiment that did not even survive to
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In relying on conscientious objector schemes the Court commits the same error it
levies against this dissent: it fails to appreciate the broader structures of both the
accommodation and conscientious objector schemes. In comparing the two schemes, the
Court focuses only on the acts the objector must perform to opt out, and what happens if
the objector performs those acts. The comparison totally ignores the broader and more
critical difference between the two schemes: what happens if the objector refuses to
perform those acts? Conscription law requires that “someone” go to war, and in the end
“someone” will go to war. The law is such that the government can and will shift this
legal duty to a non-objector regardless of the objector’s action or inaction. Conversely,
the ACA says “someone” must provide contraceptive coverage, but the self-insured
accommodation was drafted such that if the self-insured plaintiffs choose to do nothing
rather than opt out, no one will actually provide that coverage. Again, the government
cannot force the plaintiffs to provide the coverage, and it cannot shift the duty to provide
the coverage unless the self-insured plaintiffs choose to opt out. If the government could
independently shift this duty (as conscription law allows) or eliminate the need to shift
the duty at all (as the insured accommodation does) that might eliminate the causal role
the end of that war. Moreover, resentment over the Enrollment Act and its opt-out provision triggered the “New York City draft riot, the largest [and deadliest] civil insurrection in American history apart from the South’s rebellion itself.” ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863–1877 at 32 (1988). “No case questioning the Civil War draft was heard by the Supreme Court, but it is known that Chief Justice Roger Taney prepared a rough outline of an opinion declaring the act unconstitutional.” Leon Friedman, Conscription and the Constitution, 67 MICH. L. REV. 1493, 1546 (1969). Indeed, one eminent historian called the substitution provision a “grotesque monstrosit[y]” and stated “[t]he government could hardly have devised a worse law.” BRUCE CATTON, THE CIVIL WAR 208 (1987). I would call that problematic.
15

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 124
the self-insured plaintiffs currently face. But presently, the law forces the self-insured plaintiffs into gatekeeping positions and then uses fines to force them to open the gates.
3. The Supreme Court’s Little Sisters and Wheaton College Orders The Court also believes the accommodation scheme does not impose a substantial burden on self-insured non-profits because the government’s new alternative notice accommodation—which forces an objecting non-profit to write a letter to HHS opting out and identifying its TPAs and/or health insurance issuers—is essentially akin to the Supreme Court’s injunctions pending appeal in Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, 134 S. Ct. 1022 (2014), Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), and most recently Zubik v. Burwell, Nos. 14A1065, 141418, 2015 WL 3947586, at *1 (U.S. June 29, 2015). See Slip Op. at 42 n.25, 59 n.39. But the Court’s reliance on these interim orders appears to be based on two flawed assumptions: (1) that the notices required by these orders were sufficient to authorize a TPA to provide coverage it could not provide before, and (2) even assuming this dubious interpretation of the orders, that they approved of compelling religious non-profits to play this causal role under RFRA’s first step (no substantial burden) as opposed to approving of such compulsion only where it satisfies RFRA’s second step (strict scrutiny). As to the first assumption, the Little Sisters order nowhere contemplates allowing the government to use the Little Sisters’ interim written notice to facilitate coverage by alternative means. And the Wheaton College order did not allow the government to rely on Wheaton’s interim written notice, either. Rather, it allowed the government to rely on preexisting knowledge that Wheaton qualified for exemption and would not provide
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 125
certain contraceptive coverage. See Wheaton Coll., 134 S. Ct. at 2807 (“But [Wheaton] has already notified the Government—without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” (emphases added)). Moreover, as Justice Sotomayor’s dissent in Wheaton College shows, the written notices required in Wheaton College, Little Sisters, and Zubik were insufficient to authorize TPA coverage under the then-effective accommodation, and may remain insufficient even under the new alternative accommodation. See Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).8
To the extent Wheaton College allows the government to rely on its knowledge of Wheaton’s objection, this merely tracks the Supreme Court’s decision in Bowen v. Roy, where the Court rejected a Free Exercise challenge to the government’s use of a social security number it already possessed and concluded that the First Amendment does not “require the government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” 476 U.S. at 693, 699 (1986). But importantly:
8 That is, even under the new alternative notice scheme, the “information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a),” see Zubik, 2015 WL 3947586, at *1, does not contain all the information required by the regulations and thus might not qualify as a valid opt out sufficient to trigger TPA coverage, see 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B) (requiring the self-insured organization to provide, among other things “the plan name and type . . . and the name and contact information for any of the plan’s third party administrators”); Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 126
a majority of justices [in Roy] indicated that the requirement that applicants furnish a social security number was a different matter. Five justices either concluded or strongly suggested that the government could not require an applicant to provide the number on a benefits application if the applicant had a sincere religious objection to doing so. Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 567 (7th Cir. 2014) (Flaum, J., dissenting) (emphasis in original), cert. granted, judgment vacated sub nom. Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015); see Roy, 476 U.S. at 714–16 (Blackmun, J., concurring in part), 732 (O’Connor, J., concurring in part and dissenting in part) (“The rise of the welfare state was not the fall of the Free Exercise Clause.”), 733 (White, J., dissenting). Moreover, the Court may well have expressly allowed for this reliance in Wheaton College because, unlike the Little Sisters, Wheaton provides insurance through both selfinsured plans and insured plans subject to the Mandate. See Wheaton Coll. v. Burwell, 50 F. Supp. 3d 939, 944 (N.D. Ill. 2014) (Wheaton “offers its health insurance pursuant to six plans: two insured HMO plans, a [grandfathered] PPO plan, two self-funded prescription drug plans, and an insured student health plan.” (footnote omitted)). Thus, unlike the wholly self-insured Little Sisters, the government might independently ensure that an issuer from at least one of these insured health plans provides full contraceptive coverage to at least some of Wheaton’s various plan beneficiaries under the current ACA regime without forcing Wheaton to play a causal role in the receipt of that coverage. Thus, the Little Sisters, Wheaton College, and Zubik orders allow religious nonprofits to simply notify the government that they qualify for exemption and will not provide contraceptive coverage. The government may use its knowledge of these
18

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 127
objections when choosing between independently available alternative means to ensure coverage is provided (as the conscientious objector and insured schemes do). But these orders do not allow the government to compel religious non-profits to furnish the document that is essential to cause their plan beneficiaries to receive objected-to coverage.
And yet, suppose these orders could be read to say that the written notices they required were legally sufficient to authorize a previously ineligible TPA to provide objected-to coverage. Under that dubious interpretation, the orders would indeed force self-insured religious objectors to perform an act that causes the ultimate provision of the coverage, as they would make the provision of the coverage wholly contingent upon the religious objectors’ acts of providing HHS with that notice. For all the reasons discussed above, that interpretation of the orders would impose a substantial burden on the selfinsured plaintiffs’ exercise of religion.
So, turning to the Court’s second assumption, even under its dubious interpretation of the orders, the orders nowhere say that forcing religious non-profits to play this sort of causal role avoids imposing a substantial burden on their religious exercise. Instead, assuming the Court’s interpretation of these orders is correct, these orders would impose a substantial burden under RFRA’s first step and therefore must comply with RFRA’s second step (strict scrutiny). Indeed, Judge Kavanaugh has compellingly argued that these orders simply set forth a less restrictive means of achieving the government’s compelling interest in facilitating access to contraceptive coverage. See Priests For Life, No. 13-5368, slip op. at 46–51 (Kavanaugh, J., dissenting). These orders do not require
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Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 128
religious non-profits to identify related third parties for the government to authorize and possibly conscript in their stead. Rather, they only require the non-profits to inform HHS that they qualify for exemption and will not provide objected-to coverage. As discussed above regarding conscientious objector schemes, a significant difference exists between asking a religious objector to say simply “no” and compelling that objector to identify a related entity to serve as a scapegoat where no one else can.9
4. ERISA-Bound Plans v. ERISA-Exempt Church Plans The burden the self-insured plaintiffs face is most salient with regards to Southern Nazarene, whose TPA is subject to ERISA enforcement and therefore will be not only authorized but also required to provide contraceptives to the participants and beneficiaries of Southern Nazarene’s self-insured plan only if Southern Nazarene opts out. See 29 C.F.R. § 2590.715-2713A(b)(2). Southern Nazarene’s opt out will thus clearly cause someone to provide contraceptive coverage where no one would or could before. But the lack of an enforcement mechanism as to ERISA-exempt church plans does not itself remove the causal role and substantial burden that the accommodation scheme foists upon the church-plan plaintiffs. For example, the Guidestone Plan is an ERISAexempt church plan, but at least one of its TPAs, Highmark, has indicated it will provide full contraceptive coverage for those self-insured organizations that use the Guidestone Plan and validly opt out. And plaintiffs Reaching Souls, Truett-McConnell College, and
9 Moreover, this less restrictive means of achieving the same goal necessarily dooms the current self-insured accommodation scheme under strict scrutiny. See infra Part III.
20

Appellate Case: 13-1540 Document: 01019459253 Date Filed: 07/14/2015 Page: 129
Mid-America Christian University are all self-insured plaintiffs that use the Guidestone Plan. Slip Op. at 21; SN Supp. Br. II at 9 n.2. So even though their opting out might not trigger an enforceable duty to provide objected-to coverage, these church plan plaintiffs have established that their opting out will actually cause Highmark to provide the coverage—coverage it cannot provide unless they opt out.
True, given the repeal of the accommodation scheme’s non-interference provision, church plans like the Guidestone Plan might try to fire TPAs like Highmark and replace them with TPAs that promise not to provide coverage for objected-to contraceptives, and those plaintiffs that use the Guidestone Plan might be able to fire Guidestone if it refuses to do so. See RS Oral at 12:57–13:10. Thus, by economic coercion, these plaintiffs might be able to ultimately stop the provision of the coverage they were initially forced to cause. But, the government maintains that “such conduct is generally unlawful and is prohibited under . . . state and federal laws.” See 79 Fed. Reg. at 51,095. And none of this changes the present fact that if plaintiffs who use the Guidestone Plan opt out, they will cause Highmark to perform a religiously objected-to act on their behalf where Highmark previously could not do so. Thus, those self-insured plaintiffs that use the Guidestone Plan have shown “presently threatened injuries” warranting injunctive relief. Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931).
The Little Sisters plaintiffs, on the other hand, have not established this causal connection. The Little Sisters’ primary TPA, Brothers Services, is not bound by ERISA and has promised not to provide contraceptive coverage even if Little Sisters opts out. Little Sisters asserts that Brothers Trust also uses other TPAs who might choose to
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provide contraceptive coverage if they opt out, but they have not sufficiently developed this theory to bear the burden of establishing that their opting out will presently cause someone to provide contraceptive coverage to their plan beneficiaries.
The Court also suggests self-insured non-profits “could relieve themselves of any lingering doubts they may have about causation by [1] employing an insured plan, [2] employing a self-insured church plan where the Departments lack authority to enforce the Mandate against their TPA, or [3] administering the self-insured plan on their own inhouse without using a TPA.” Slip Op. at 52 n.32. But none of these options alleviate the substantial burden the accommodation scheme imposes. First, choosing to switch from a self-insured plan, where no coverage can be provided without an opt out, to an insured plan, where coverage will be provided by a third party, would simply mean choosing to cause that coverage by switching plans rather than opting out. Second, as discussed above, even in the church plan context, opting out may still cause a TPA to provide the coverage. Third, no plaintiff in this case administers its plan in-house. So to the extent the Court opines on the legal effect the ACA Mandate might have on a plan not at issue in this case, the Court impermissibly exceeds its jurisdiction by “advising what the law would be upon a hypothetical state of facts.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)).
Given that we do not have jurisdiction to pass on this hypothetical, the self-insured plaintiffs should not have to rebut it to prove a present substantial burden under RFRA. But, because the Court goes there, administering a self-insured plan in-house without a TPA can be prohibitively complex, limit options for managing care, and create legal
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pitfalls that many non-profits simply cannot afford to handle. See Thomas R. McLean & Edward P. Richards, Health Care’s “Thirty Years War”: The Origins and Dissolution of Managed Care, 60 N.Y.U. ANN. SURV. AM. L. 283, 313 (2004); see generally Rhonda D. Orin and Daniel J. Healy, Self-Administering, Insuring and Funding Benefit Plans, 197– 213 in HUMAN RESOURCES (Thompson 2007 Summer Edition).
C. Summing Up the Substantial Burden On the Self-Insured Plaintiffs The Court concludes that the Plaintiffs’ causation arguments fail because “opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage.” Slip Op. at 65–66. This conclusion is correct in the insured context. But the self-insured plaintiffs, with the exception of Little Sisters, have shown exactly how their act of opting out will cause someone to provide contraceptive coverage where their refusal to act would prevent that result. Unfortunately, the Court fails to see this obvious causal relationship because it ignores the clear holding of Hobby Lobby and fails to comprehend the difference between unenforceable entitlement and actual receipt. The government has left self-insured plaintiffs in a position where they must decide whether their beneficiaries will actually receive objected-to contraceptive coverage. The accommodation does not absolve these plaintiffs of this responsibility. Instead, it forces them to either (1) violate their sincere religious beliefs by performing an action that will cause their beneficiaries to receive objected-to coverage, or (2) violate the law and incur steep fines to obey those religious beliefs. Again, this is a Hobson’s choice and thus a substantial burden on their religious exercise under RFRA. Abdulhaseeb, 600 F.3d at 1317; Hobby Lobby, 723 F.3d at 1141.
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III. STRICT SCRUTINY Because the government has imposed a substantial burden on at least the selfinsured plaintiffs’ religious exercise, under RFRA it must demonstrate that this burden is “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. Our precedent currently holds the government has no compelling interest in contraceptive coverage. See Hobby Lobby, 723 F.3d at 1143. But even assuming such a compelling interest, see Hobby Lobby, 134 S. Ct. at 2780 (assuming the same), 2785–86 (Kennedy, J., concurring), 2799 (Ginsburg, J., dissenting), the government cannot show this scheme is the least restrictive means of furthering that interest. As discussed above, the Supreme Court’s interim orders in Little Sisters, Wheaton College, and Zubik, even when interpreted so as to force self-insured non-profits to play a necessary causal role in contraceptive coverage, provide a less restrictive means of achieving the same goal. See Priests For Life, No. 13-5368, slip op. at 46–51 (Kavanaugh, J., dissenting). The existence of this less restrictive means dooms the current accommodation scheme under strict scrutiny. Hobby Lobby, 134 S. Ct. at 2781–82.
IV. CONCLUSION “Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty,” Hobby Lobby, 134 S. Ct. at 2760, a liberty essential to our country’s constitutional tradition, albeit with boundaries difficult to define, see id. at 2785 (Kennedy, J., concurring). The Court today makes causation one of those boundaries. Even assuming this boundary, however, the self-insured plaintiffs in this case, with the
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exception of the Little Sisters plaintiffs, have clearly shown how their compelled act will cause their plan beneficiaries to receive objected-to coverage that they could not otherwise receive. Therefore, I dissent from the Court’s holding regarding these selfinsured plaintiffs. Even assuming a causation requirement, I would still hold these selfinsured plaintiffs have shown a substantial likelihood of success on the merits of their RFRA claim and that the other requirements for a preliminary injunction are met. I would therefore affirm the district court’s denial of a preliminary injunction in Little Sisters, 6 F. Supp. 3d 1225, affirm the district court’s grant of a preliminary injunction in Reaching Souls, 2013 WL 6804259, and affirm in part (as to the self-insured plaintiffs: Southern Nazarene University and Mid-America University) and reverse in part (as to the insured plaintiffs: Oklahoma Baptist University and Oklahoma Wesleyan University) the district court’s grant of a preliminary injunction in Southern Nazarene, 2013 WL 6804265.
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Appellate Case: 13-1540 Document: 01019459264 Date Filed: 07/14/2015 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
July 14, 2015

Chris Wolpert Chief Deputy Clerk

Mr. Daniel Howard Blomberg Ms. Adele Auxier Keim Becket Fund for Religious Liberty 1200 New Hampshire Avenue, NW Suite 700 Washington, DC 20036
Ms. Alisa Beth Klein Mr. Adam C. Jed Mr. Patrick Nemeroff Mr. Mark B. Stern U.S. Department of Justice Appellate Staff, Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530
Mr. Mark Rienzi Becket Fund for Religious Liberty 1200 New Hampshire Avenue, NW Suite 700 Washington, DC 20036
Mr. Seth Michael Roberts Mr. Carl Christopher Scherz Locke Lord 2200 Ross Avenue, Suite 2200 Dallas, TX 75201
Mr. Kevin C. Walsh University of Richmond School of Law 28 Westhampton Way Richmond, VA 23173
RE: 13-1540, 14-6026, 14-6028, Little Sisters of the Poor, et al v. Burwell, et al

Appellate Case: 13-1540 Document: 01019459264 Date Filed: 07/14/2015 Page: 2
Dist/Ag docket: 1:13-CV-02611-WJM-BNB
Dear Counsel:
Enclosed is a copy of the opinion of the court issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 12 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R. 35 and 40 for further information governing petitions for rehearing.
Please contact this office if you have questions.
Sincerely,

cc: Leila Abolfazli Kimberley K Allen Brigitte Amiri Megan Barbero Gregory Baylor Michelle Renee Bennett Gretchen Borchelt Matthew Scott Bowman Stephen Robert Clark Kimberlee Wood Colby Miles E. Coleman David Andrew Cortman John Dillon Curran Charles E. Davidow Deborah Jane Dewart Steven W. Fitschen Noel Francisco

Elisabeth A. Shumaker Clerk of the Court
2

Appellate Case: 13-1540 Document: 01019459264
Derek L. Gaubatz Jared D. Giddens Andree J. Goldsmith Marcia D. Greenberger Brady Ross Henderson Bradley Philip Humphreys Jonathan Keim Ayesha N. Khan Ovide Marc Lamontagne Francis J. Manion Emily Martin Colby M. May Mary Elizabeth McAlister Martha Jane Perkins Stuart J. Roth Jay Sekulow Jordan Sekulow Mailee R. Smith Geoffrey R. Surtees Kevin H. Theriot Jay T. Thompson Judith G. Waxman Walter Martin Weber Edward Lawrence White Erik Zimmerman

Date Filed: 07/14/2015

Page: 3

EAS/bv

3

 
 PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT _________________________________

FILED United States Court of Appeals
Tenth Circuit
September 3, 2015
Elisabeth A. Shumaker Clerk of Court

LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation, et al.,

Plaintiffs - Appellants,

v.

No. 13-1540

SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services, et al.,

Defendants - Appellees.

------------------------------

ASSOCIATION OF GOSPEL RESCUE MISSIONS, et al.,

Amici Curiae.

–––––––––––––––––––––––––––––––––––

SOUTHERN NAZARENE UNIVERSITY, et al.,

Plaintiffs - Appellees, v.

No. 14-6026

SYLVIA MATHEWS BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services, et al.,

Defendants - Appellants.

------------------------------

AMERICAN CIVIL LIBERTIES UNION, et al.,

Amici Curiae.

–––––––––––––––––––––––––––––––––––

REACHING SOULS INTERNATIONAL, INC., an Oklahoma not for profit corporation, et al.,

Plaintiffs - Appellees, v.

No. 14-6028

SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services, et al.,

Defendants - Appellants. _________________________________

ORDER _________________________________

Before BRISCOE, Chief Judge, KELLY, LUCERO, HARTZ, TYMKOVICH, GORSUCH, HOLMES, MATHESON, BACHARACH, PHILLIPS, MCHUGH, and MORITZ, Circuit Judges.
_________________________________

On July 14, 2015, the original panel opinion issued in these matters. On July 23,

2015, the Plaintiffs filed petitions for certiorari to the United States Supreme Court and

did not petition for rehearing to this court. Nonetheless, a poll was called, sua sponte, to

consider en banc rehearing. Upon that consideration, a majority of the active judges of

2

the court voted to deny. Judges Kelly, Hartz, Tymkovich, Gorsuch, and Holmes voted to grant en banc rehearing.
Judge Hartz has written separately in dissent. Judges Kelly, Tymkovich, Gorsuch and Holmes join in that dissent.
Entered for the Court ELISABETH A. SHUMAKER, Clerk
3

13-1540, 14-6026, 14-6028 – Little Sisters v. Burwell HARTZ, Circuit Judge, dissenting, in which Judges KELLY, TYMKOVICH, GORSUCH and HOLMES join:
I respectfully dissent from the denial of en banc review. The opinion of the panel majority is clearly and gravely wrong—on an issue that has little to do with contraception and a great deal to do with religious liberty. When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion? Yet the panel majority holds otherwise. Where did it go wrong? It does not doubt the sincerity of the plaintiffs’ religious belief. But it does not accept their statements of what that belief is. It refuses to acknowledge that their religious belief is that execution of the documents is sinful. Rather, it reframes their belief. It generalizes the belief as being only opposition to facilitating the use and delivery of certain contraceptives to which they object. Under this reframing, the plaintiffs have no religious objection to executing the forms; it is just that executing the forms burdens their religious opposition to certain contraceptives. The burden would be akin to that caused by a tax on sales of religious tracts at the church bookstore, where the church has no religious objection to

paying a tax but complains that the tax will make it harder to spread the Gospel. After so framing the plaintiffs’ belief, the panel majority then examines the particulars of the governing law and decides that executing the documents does not really implicate the plaintiffs in the use or delivery of the contraceptives. If one accepts this reframing of plaintiffs’ belief, the analysis of the panel majority may be correct; perhaps one could say that the exercise of this reframed belief was not substantially burdened. But it is not the job of the judiciary to tell people what their religious beliefs are.
Or perhaps the panel majority recognizes the plaintiffs’ belief but is simply refusing to recognize its importance because it is merely an “uninformed derivative” of their core belief. Some of its language could be read as saying the following: (1) Yes, the plaintiffs have a religious objection to executing the documents. (2) But the religious core of that objection is the plaintiffs’ opposition to certain types of contraception; their religious objection to executing documents is merely the expression of the view that being required to perform that task substantially burdens their beliefs regarding contraception. (3) To let the plaintiffs decide whether executing the documents is independently sinful in itself would be contrary to the court’s duty to determine whether the document-execution requirement substantially burdens what the plaintiffs’ religious concern is really all about—the provision and use of contraceptives. Put another way, the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that
2

executing the documents is sinful. This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative? A Christian could be required to work on December 25 because, according to a court, his core belief is that he should not work on the anniversary of the birth of Jesus but a history of the calendar and other sources show that Jesus was actually born in March; a December 25 work requirement therefore does not substantially burden his core belief. Or a Jewish prisoner could be provided only non-kosher food because the real purpose of biblical dietary laws is health, so as long as the pork is well-cooked, etc., the prisoner’s religious beliefs are not substantially burdened. The Supreme Court has refused to examine the reasonableness of a sincere religious belief—in particular, the reasonableness of where the believer draws the line between sinful and acceptable—at least since Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 715 (1981), and it emphatically reaffirmed that position in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2778 (2014).
Fortunately, the doctrine of the panel majority will not long survive. It is contrary to all precedent concerning the free exercise of religion. I am aware of no precedent holding that a person’s free exercise was not substantially burdened when a significant penalty was imposed for refusing to do something prohibited by the person’s sincere religious beliefs (however strange, or even silly, the court may consider those beliefs). And the law of this circuit is clear. Chief Judge Henry expressed the point for a panel of this court in Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010): “We
3

conclude that a religious exercise is substantially burdened under [RFRA] when a government . . . requires participation in an activity prohibited by a sincerely held religious belief . . . .” The en banc court adopted that proposition in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013), aff’d, 134 S. Ct. 2751 (2014).
Resolution of the substantial-burden question does not, however, resolve this litigation. I would set aside the panel decision regarding substantial burden and then return this case to the panel to determine whether the certification requirement is the least restrictive means of furthering a compelling governmental interest.
4

 
 Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 1 of 14
CLOSED,ERWIN,_BG
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:13−cv−01015−F

Southern Nazarene University et al v. Azar et al Assigned to: Honorable Stephen P. Friot Case in other court: Tenth Circuit Court of Appeals, 14−06026 Cause: 42:1981 Civil Rights
Plaintiff

Date Filed: 09/20/2013 Date Terminated: 05/15/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Southern Nazarene University

represented by John P Jordan The Jordan Law Firm 1703 Professional Circ Suite 501A Yukon, OK 73099 405−222−8721 Fax: 877−335−5521 Email: jp@jpjordanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A Cortman Alliance Defending Freedom − GEORGIA 1000 Hurricane Shoals Rd NE Suite D−1100 Lawrenceville, GA 30043 770−339−0774 Fax: 770−339−6744 Email: dcortman@alliancedefendingfreedom.org PRO HAC VICE ATTORNEY TO BE NOTICED

Gregory S Baylor Alliance Defending Freedom − WASHINGTON 440 First Street NW Suite 600 Washington, DC 20001 202−393−8690 Fax: 202−347−3622 Email: gbaylor@ADFlegal.org PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin H Theriot Alliance Defending Freedom − SCOTTSDALE 15100 N 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028 Email: ktheriot@alliancedefendingfreedom.org PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew S Bowman Alliance Defending Freedom − WASHINGTON 440 First Street NW Suite 600 Washington, DC 20001

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 2 of 14

202−393−8690 Fax: 202−347−3622 Email: mbowman@alliancedefendingfreedom.org TERMINATED: 01/17/2017 PRO HAC VICE

Plaintiff Oklahoma Wesleyan University

represented by John P Jordan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Gregory S Baylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin H Theriot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew S Bowman (See above for address) TERMINATED: 01/17/2017 PRO HAC VICE

Plaintiff Oklahoma Baptist University

represented by John P Jordan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Gregory S Baylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Kevin H Theriot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Matthew S Bowman (See above for address) TERMINATED: 01/17/2017 PRO HAC VICE

Plaintiff Mid−America Christian University

represented by John P Jordan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 3 of 14

David A Cortman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gregory S Baylor (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin H Theriot (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Matthew S Bowman (See above for address) TERMINATED: 01/17/2017 PRO HAC VICE

V.
Defendant
Kathleen Sebelius in her official capacity as Secretary of the United States Department of Health and Human Services TERMINATED: 11/21/2017

represented by Adam A Grogg US Attorney's Office − Federal Programs Branch DC 20 Massachusetts Ave NW Rm 7144 Washington, DC 20530 202−514−2395 Fax: 202−616−8470 Email: adam.a.grogg@usdoj.gov TERMINATED: 08/16/2017
Benjamin L Berwick US Attorney's Office − Federal Programs Branch DC 20 Massachusetts Ave NW Rm 7144 Washington, DC 20530 202−305−8573 Fax: 202−616−8470 Email: benjamin.l.berwick@usdoj.gov ATTORNEY TO BE NOTICED
Michael C Pollack US Attorney's Office − Federal Programs Branch DC 20 Massachusetts Ave NW Rm 7144 Washington, DC 20530 202−305−8550 Fax: 202−616−8470 Email: michael.c.pollack@usdoj.gov TERMINATED: 06/09/2014
Michelle R Bennett US Dept of Justice Civil Div−20−DC Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20001 202−305−8902 Fax: 202−616−8470

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 4 of 14

Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Thomas E Perez in his official capacity as Secretary of the United States Department of Labor TERMINATED: 04/16/2018

represented by Adam A Grogg (See above for address) TERMINATED: 08/16/2017
Benjamin L Berwick (See above for address) ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 06/09/2014

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

Defendant
Jacob J Lew in his official capacity as Secretary of the United States Department of the Treasury TERMINATED: 04/16/2018

represented by Adam A Grogg (See above for address) TERMINATED: 08/16/2017
Benjamin L Berwick (See above for address) ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 06/09/2014

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

Defendant
United States Department of Health and Human Services

represented by Adam A Grogg (See above for address) TERMINATED: 08/16/2017

Benjamin L Berwick (See above for address) ATTORNEY TO BE NOTICED

Michael C Pollack (See above for address) TERMINATED: 06/09/2014

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

Defendant United States Department of Labor

represented by Adam A Grogg (See above for address) TERMINATED: 08/16/2017

Benjamin L Berwick (See above for address) ATTORNEY TO BE NOTICED

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 5 of 14

Defendant United States Department of the Treasury
Defendant Eric D Hargan in his official capacity as Secretary of the United States Department of Health and Human Services TERMINATED: 04/16/2018
Defendant Alex M Azar, II in his official capacity as Secretary of the United States Department of Health and Human Services
Defendant R Alexander Acosta in his official capacity as Secretary of the United States Department of Labor
Defendant Steven T Mnuchin in his official capacity as Secretary of the

Michael C Pollack (See above for address) TERMINATED: 06/09/2014
Michelle R Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Adam A Grogg (See above for address) TERMINATED: 08/16/2017
Benjamin L Berwick (See above for address) ATTORNEY TO BE NOTICED
Michael C Pollack (See above for address) TERMINATED: 06/09/2014
Michelle R Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick (See above for address)

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 6 of 14

United States Department of the Treasury

LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Amicus American Civil Liberties Union

represented by Brady R Henderson ACLU of Oklahoma Foundation PO Box 1626 Oklahoma City, OK 73101 405−525−3831 Fax: 405−524−2296 Email: brady@creamcity.law ATTORNEY TO BE NOTICED

Brigitte A Amiri American Civil Liberties Union − NY 125 Broad St 18th Flr New York, NY 10004 212−519−7897 Fax: 212−549−2651 Email: bamiri@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel Mach American Civil Liberties Union − DC 915 15th Street NW 6th Floof Washington, DC 20005 202−675−2330 Fax: 202−546−0738 Email: dmach@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Jennifer K Lee American Civil Liberties Union − NY 125 Broad St 18th Flr New York, NY 10004 212−549−2601 Fax: 212−549−2651 Email: jlee@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union of Oklahoma

represented by Brady R Henderson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/20/2013

# Docket Text
1 COMPLAINT against Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury filed by Oklahoma Wesleyan University, Mid−America Christian University, Southern Nazarene University, Oklahoma Baptist

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 7 of 14

09/20/2013 09/23/2013
09/23/2013 09/23/2013 09/23/2013 09/23/2013 09/24/2013
09/24/2013
10/03/2013 10/03/2013 10/03/2013 10/03/2013 10/03/2013
10/03/2013
10/03/2013
10/03/2013 10/03/2013

University. (Attachments: # 1 Civil Cover Sheet)(kr) (Entered: 09/20/2013)
2 Summons Issued Electronically as to All Defendants, U.S. Attorney and U.S. Attorney General (kr) (Entered: 09/20/2013)
3 Receipt for Money Received from Mid−America Christian University, Oklahoma Baptist University, Oklahoma Wesleyan University, Southern Nazarene University in the amount of $400.00, receipt number OKW500035172 regarding 1 Complaint, (kr) (Entered: 09/23/2013)
4 ENTRY of Appearance by John P Jordan on behalf of All Plaintiffs (Jordan, John) (Entered: 09/23/2013)
5 DISCLOSURE STATEMENT − CORPORATE by All Plaintiffs . (Jordan, John) (Entered: 09/23/2013)
6 MOTION for Leave to Appear Pro Hac Vice Gregory S. Baylor by All Plaintiffs. (Jordan, John) (Entered: 09/23/2013)
7 MOTION for Leave to Appear Pro Hac Vice Request by Gregory S. Baylor by All Plaintiffs. (Jordan, John) (Entered: 09/23/2013)
8 Receipt for Money Received from Mid−America Christian University, Oklahoma Baptist University, Oklahoma Wesleyan University, Southern Nazarene University in the amount of $50.00, receipt number OKW500035207 regarding 6 MOTION for Leave to Appear Pro Hac Vice Gregory S. Baylor (kr) (Entered: 09/24/2013)
9 ORDER granting 6 Motion for Admission Pro Hac Vice of Gregory S. Baylor; granting 7 Request for Admission Pro Hac Vice of Gregory S. Baylor. Gregory S. Baylor is admitted pro hac vice to this ct in this case on behalf of plfs, provided that he submits an ECF registration form & files an entry of appearance, consistent w/LCvR83.4. Signed by Honorable Stephen P. Friot on 9/24/13. (llg) (Entered: 09/24/2013)
10 ENTRY of Appearance by Gregory S Baylor on behalf of All Plaintiffs (Baylor, Gregory) (Entered: 10/03/2013)
11 SUMMONS Returned Executed by Oklahoma Wesleyan University, Mid−America Christian University, Southern Nazarene University, Oklahoma Baptist University. Kathleen Sebelius served on 9/30/2013. (Baylor, Gregory) (Entered: 10/03/2013)
12 SUMMONS Returned Executed by Oklahoma Wesleyan University, Mid−America Christian University, Southern Nazarene University, Oklahoma Baptist University. Thomas E Perez served on 9/30/2013. (Baylor, Gregory) (Entered: 10/03/2013)
13 SUMMONS Returned Executed by Oklahoma Wesleyan University, Mid−America Christian University, Southern Nazarene University, Oklahoma Baptist University. Jacob J Lew served on 10/2/2013. (Baylor, Gregory) (Entered: 10/03/2013)
14 SUMMONS Returned Executed by Oklahoma Wesleyan University, Mid−America Christian University, Southern Nazarene University, Oklahoma Baptist University. United States Department of Health and Human Services served on 9/30/2013. (Baylor, Gregory) (Entered: 10/03/2013)
15 SUMMONS Returned Executed by Oklahoma Wesleyan University, Mid−America Christian University, Southern Nazarene University, Oklahoma Baptist University. United States Department of Labor served on 9/30/2013. (Baylor, Gregory) (Entered: 10/03/2013)
16 SUMMONS Returned Executed by Oklahoma Wesleyan University, Mid−America Christian University, Southern Nazarene University, Oklahoma Baptist University. United States Department of the Treasury served on 10/2/2013. (Baylor, Gregory) (Entered: 10/03/2013)
17 SUMMONS RETURNED EXECUTED by All Plaintiffs. All Defendants. (Baylor, Gregory) (Entered: 10/03/2013)
18 SUMMONS RETURNED EXECUTED by All Plaintiffs. All Defendants. (Baylor, Gregory) (Entered: 10/03/2013)

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 8 of 14

11/27/2013 11/27/2013 12/12/2013
12/13/2013 12/13/2013
12/13/2013
12/17/2013 12/17/2013 12/17/2013 12/18/2013
12/18/2013 12/18/2013 12/19/2013 12/19/2013 12/19/2013 12/19/2013 12/19/2013 12/19/2013

19 MOTION for Preliminary Injunction by All Plaintiffs. (Baylor, Gregory) (Entered: 11/27/2013)
20 MEMORANDUM in Support re 19 MOTION for Preliminary Injunction filed by All Plaintiffs. (Baylor, Gregory) (Entered: 11/27/2013)
21 UNOPPOSED MOTION for Leave to File Excess Pages by Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Proposed Order)(Pollack, Michael) (Entered: 12/12/2013)
NOTICE from the Court re 21 Defendants' UNOPPOSED MOTION for Leave to File Overlength Brief. Counsel for defendants is DIRECTED to forthwith file an entry of appearance on behalf of the defendants in this case. (llg) (Entered: 12/13/2013)
22 ORDER granting 21 Defendants' Unopposed Motion for Leave to File Overlength Brief. Dfts may file a 50−pg brief, excluding the cover pg, table of contents, table of authorities, signature block & certificate of service. Signed by Honorable Stephen P. Friot on 12/13/13. (llg) (Entered: 12/13/2013)
23 ENTRY of Appearance by Michael C Pollack on behalf of Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Pollack, Michael) (Entered: 12/13/2013)
24 NOTICE (other) by All Defendants of Filing of Certified Administrative Record (Attachments: # 1 Index, # 2 Certification)(Pollack, Michael) (Entered: 12/17/2013)
25 RESPONSE in Opposition re 19 MOTION for Preliminary Injunction filed by All Defendants. (Pollack, Michael) (Entered: 12/17/2013)
26 MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative, MOTION for Summary Judgment , and Memorandum in Support by All Defendants. (Pollack, Michael) Modified on 8/15/2014 (llg). (Entered: 12/17/2013)
27 ORDER Setting Hearing on 19 Plaintiffs' MOTION for Preliminary Injunction: Motion Hearing set for 12/23/2013 09:00 AM in Courtroom 305 before Honorable Stephen P. Friot. Signed by Honorable Stephen P. Friot on 12/18/13. (llg) (Entered: 12/18/2013)
NOTICE from the Court 24 Notice (other). 3 CD's containing the Administrative were received in the court clerk's office and conventionally filed. (kr) (Entered: 12/20/2013)
35 ADMINISTRATIVE RECORD filed conventionally by Defendants re 24 Notice. (kr) Modified on 12/20/2013 (kr, ). (Entered: 12/20/2013)
28 ENTRY of Appearance by Brady R Henderson on behalf of American Civil Liberties Union (Henderson, Brady) (Entered: 12/19/2013)
29 MOTION for Leave to Appear Pro Hac Vice of Brigitte Amiri by American Civil Liberties Union. (Attachments: # 1 Attachment Pro Hac Vice Request Form)(Henderson, Brady) (Entered: 12/19/2013)
30 MOTION for Leave to Appear Pro Hac Vice of Daniel Mach by American Civil Liberties Union. (Attachments: # 1 Attachment Pro Hac Vice Request Form)(Henderson, Brady) (Entered: 12/19/2013)
31 MOTION for Leave to Appear Pro Hac Vice of Jennifer Lee by American Civil Liberties Union. (Attachments: # 1 Attachment Pro Hac Vice Request Form)(Henderson, Brady) (Entered: 12/19/2013)
32 MOTION to File Amicus Brief by American Civil Liberties Union. (Henderson, Brady) (Entered: 12/19/2013)
33 BRIEF IN SUPPORT of Defendants' Motion to Dismiss, or in the alternative, for summary judgement, and in opposition to Plaintiff's Motion for Preliminary Injunction, submitted pending leave to enter as Amicus Curiae, by American Civil Liberties Union. (Henderson, Brady) (Entered: 12/19/2013)

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 9 of 14

12/19/2013
12/19/2013
12/20/2013 12/20/2013 12/20/2013 12/20/2013 12/20/2013 12/20/2013 12/20/2013
12/21/2013 12/21/2013
12/23/2013
12/26/2013 12/31/2013

NOTICE from the Court re 29 MOTION for Leave to Appear Pro Hac Vice of Brigitte Amiri, 31 MOTION for Leave to Appear Pro Hac Vice of Jennifer Lee, 30 MOTION for Leave to Appear Pro Hac Vice of Daniel Mach. The motions for admission pro hac vice will be granted upon payment of the required pro hac vice fees and upon submission of proposed orders, in compliance with ECF Policies & Procedures Manual, Section II.G. (llg) (Entered: 12/19/2013)
34 Receipt for Money Received from American Civil Liberties Union in the amount of $150.00, receipt number OKW500037020, OKW500037018 and OKW500037019 regarding 29 MOTION for Leave to Appear Pro Hac Vice of Brigitte Amiri, 31 MOTION for Leave to Appear Pro Hac Vice of Jennifer Lee, 30 MOTION for Leave to Appear Pro Hac Vice of Daniel Mach (kr, ) (Entered: 12/20/2013)
36 ENTRY of Appearance by Benjamin L Berwick on behalf of All Defendants (Berwick, Benjamin) (Entered: 12/20/2013)
37 NOTICE (other) by All Defendants Supplemental Authority (Attachments: # 1 Exhibit Priests for Life v. HHS)(Pollack, Michael) (Entered: 12/20/2013)
38 REPLY to Response to Motion re 19 MOTION for Preliminary Injunction filed by All Plaintiffs. (Baylor, Gregory) (Entered: 12/20/2013)
39 MOTION for Leave to Appear Pro Hac Vice of Kevin H. Theriot by All Plaintiffs. (Attachments: # 1 Request for Admission Pro Hac Vice Form)(Baylor, Gregory) (Entered: 12/20/2013)
40 Receipt for Money Received from All Plaintiffs in the amount of $50.00, receipt number OKW500037024 regarding 39 MOTION for Leave to Appear Pro Hac Vice of Kevin H. Theriot. (njr) (Entered: 12/20/2013)
41 ORDER granting 39 Motion for Admission Pro Hac Vice of Kevin H. Theriot, provided that Mr. Theriot files an entry of appearance, consistent w/LCvR83.4. Signed by Honorable Stephen P. Friot on 12/20/13. (llg) (Entered: 12/20/2013)
42 ORDER granting 29 Motion to Appear Pro Hac Vice of Brigitte Amari; granting 30 Motion to Appear Pro Hac Vice of Daniel Mach; granting 31 Motion to Appear Pro Hac Vice Jennifer Lee, provided that attys Amari, Mach & Lee submit ECF registration forms & file entries of appearance, consistent w/LCvR83.4. Signed by Honorable Stephen P. Friot on 12/20/13. (llg) (Entered: 12/20/2013)
43 STIPULATION re 19 MOTION for Preliminary Injunction Joint Stipulation of Facts by All Plaintiffs. (Baylor, Gregory) (Entered: 12/21/2013)
44 ORDER striking 12/23/13 9:00 AM hearing on 19 MOTION for Preliminary Injunction filed by Southern Nazarene University, Oklahoma Wesleyan University, Mid−America Christian University, Oklahoma Baptist University. The court will rule on the Motion for Preliminary Injunction on the basis of the stipulated facts as set out in 43 Joint Stipulation of Facts. Signed by Honorable Stephen P. Friot on 12/21/13. (llg) (Entered: 12/21/2013)
45 ORDER granting 19 Motion for Preliminary Injunction; denying 26 Motion to Dismiss to the extent that it seeks dismissal under Rule 12(b)(6). The defendants, their agents, officers, and employees, and all others in active concert or participation with them, Rule 65, Fed.R.Civ.P., are ENJOINED and RESTRAINED from any effort to apply or enforce, as to plaintiffs, the substantive requirements imposed by 42 U.S.C. § 300gg−13(a)(4) and at issue in this case, or the self−certification regulations related thereto, or any penalties, fines or assessments related thereto, until the further order of the court.. Signed by Honorable Stephen P. Friot on 12/23/13. (kw, ) Modified on 12/23/2013 to correct docket text (kw, ). (Entered: 12/23/2013)
46 ENTER ORDER granting 32 Motion of the American Civil Liberties Union and the American Civil Liberties Union of Oklahoma for Leave to File Amicus Curiae Brief. Entered at the direction of Honorable Stephen P. Friot on 12/26/13. (llg) (Entered: 12/26/2013)
47 ENTRY of Appearance by Kevin H Theriot on behalf of All Plaintiffs (Theriot, Kevin) (Entered: 12/31/2013)

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 10 of 14

01/03/2014 01/06/2014
01/07/2014 01/07/2014 01/07/2014 01/16/2014 01/17/2014 02/11/2014 02/11/2014 02/11/2014
02/13/2014 02/18/2014 02/18/2014 02/19/2014
02/21/2014 02/21/2014
02/21/2014

48 UNOPPOSED MOTION for Extension of Time to File Response/Reply in Opposition to Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment by All Plaintiffs. (Baylor, Gregory) (Entered: 01/03/2014)
49 ORDER granting 48 Plaintiffs' Uncontested Motion for Extension of Time to File Response in Opposition to 26 Defendants' MOTION to Dismiss or, in the Alternative, MOTION for Summary Judgment. Response due by 1/22/2014. Signed by Honorable Stephen P. Friot on 1/6/14. (llg) (Entered: 01/06/2014)
50 ENTRY of Appearance by Daniel Mach on behalf of American Civil Liberties Union (Mach, Daniel) (Entered: 01/07/2014)
51 ENTRY of Appearance by Jennifer K Lee on behalf of American Civil Liberties Union (Lee, Jennifer) (Entered: 01/07/2014)
52 ENTRY of Appearance by Brigitte A Amiri on behalf of American Civil Liberties Union (Amiri, Brigitte) (Entered: 01/07/2014)
53 UNOPPOSED MOTION to Stay Case by All Defendants. (Attachments: # 1 Attachment Proposed Order)(Pollack, Michael) (Entered: 01/16/2014)
54 ORDER granting 53 Defendants' Unopposed Motion for Stay of Proceedings. All proceedings in this case are stayed until 3/1/14. Signed by Honorable Stephen P. Friot on 1/17/14. (llg) (Entered: 01/17/2014)
55 NOTICE OF APPEAL by All Defendants. (Pollack, Michael) (Entered: 02/11/2014)
56 PRELIMINARY RECORD LETTER − Electronic Transmission of Notice of Appeal with Preliminary Record sent to Tenth Circuit Court of Appeals re 55 Notice of Appeal (kr) (Entered: 02/11/2014)
57 Tenth Circuit Court of Appeals USCA Case Number 14−6026 for 55 Notice of Appeal filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew. (kr) (Entered: 02/12/2014)
58 MOTION to Stay Case Pending Appeal by All Defendants. (Attachments: # 1 Exhibit Ozinga v. HHS, # 2 Exhibit Domino's Farms Corp. v. Sebelius)(Pollack, Michael) (Entered: 02/13/2014)
59 MOTION for Leave to Appear Pro Hac Vice of Attorney David A. Cortman by All Plaintiffs. (Attachments: # 1 Request for Admission Pro Hac Vice)(Baylor, Gregory) (Entered: 02/18/2014)
60 Receipt for Money Received from All Plaintiffs in the amount of $50.00, receipt number OKW500038133 regarding 59 MOTION for Leave to Appear Pro Hac Vice of Attorney David A. Cortman (kr) (Entered: 02/18/2014)
61 ORDER granting 59 Motion for Admission Pro Hac Vice of David A. Cortman. David A. Cortman is admitted pro hac vice to this court in this matter, provided that he submits an ECF registration form & files an entry of appearance, consistent w/LCvR83.4. Signed by Honorable Stephen P. Friot on 2/19/14. (llg) (Entered: 02/19/2014)
62 ENTRY of Appearance by David A Cortman on behalf of All Plaintiffs (Cortman, David) (Entered: 02/21/2014)
63 MOTION for Leave to Appear Pro Hac Vice for Attorney Matthew S. Bowman Filing fee $ 50, receipt number 1087−1818390 by All Plaintiffs. (Attachments: # 1 Request for Admission Pro Hac Vice for Matthew S. Bowman)(Baylor, Gregory) (Entered: 02/21/2014)
64 ORDER granting 63 Motion for Admission Pro Hac Vice of Matthew S. Bowman. Matthew S. Bowman is admitted pro hac vice to this court in this matter, provided that he submits an ECF registration form & files an entry of appearance, consistent w/LCvR83.4. Signed by Honorable Stephen P. Friot on 2/21/14. (llg) (Entered: 02/21/2014)

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 11 of 14

02/25/2014
02/25/2014 02/28/2014 02/28/2014
03/03/2014 03/06/2014 03/06/2014 03/06/2014
03/06/2014
03/31/2014
06/09/2014 06/09/2014 06/09/2014 04/13/2015 07/14/2015
07/14/2015

65 TRANSCRIPT LETTER advising Tenth Circuit Court of Appeals re 55 Notice of Appeal filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew. The record is ready for appeal purposes. (kr) (Entered: 02/25/2014)
66 TRANSCRIPT Order Form by All Defendants re 55 Notice of Appeal that transcripts Are Not necessary. See order form for dates and proceedings. (Pollack, Michael) (Entered: 02/25/2014)
67 ENTRY of Appearance by Matthew S Bowman on behalf of All Plaintiffs (Bowman, Matthew) (Entered: 02/28/2014)
68 UNOPPOSED MOTION for Leave to File Excess Pages for Plaintiffs' Response in Opposition to Defendants' Motion to Dismiss, or in the Alternative for Summary Judgment by All Plaintiffs. (Attachments: # 1 Proposed Order)(Baylor, Gregory) (Entered: 02/28/2014)
69 ORDER granting 68 Plaintiffs' Uncontested Motion for Leave to File Overlength Brief. Signed by Honorable Stephen P. Friot on 3/3/14. (llg) (Entered: 03/03/2014)
70 RESPONSE in Opposition re 58 MOTION to Stay Case Pending Appeal filed by All Plaintiffs. (Baylor, Gregory) (Entered: 03/06/2014)
71 REPLY to Response to Motion re 58 MOTION to Stay Case Pending Appeal filed by All Defendants. (Pollack, Michael) (Entered: 03/06/2014)
72 MEMORANDUM in Opposition re 26 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative MOTION for Summary Judgment , and Memorandum in Support filed by All Plaintiffs. (Baylor, Gregory) (Entered: 03/06/2014)
73 ORDER granting 58 Defendants' Motion for Stay of Proceedings. Proceedings in this case are stayed pndg resolution of dfts' appeal of this court's order granting plfs' mtn for preliminary injunction. Signed by Honorable Stephen P. Friot on 3/6/14. (llg) (Entered: 03/06/2014)
74 ORDER of USCA as to 55 Notice of Appeal filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew (kr) (Entered: 04/08/2014)
75 ENTRY of Appearance by Adam A Grogg on behalf of All Defendants (Grogg, Adam) (Entered: 06/09/2014)
76 MOTION to Withdraw as Attorney Michael C. Pollack by All Defendants. (Pollack, Michael) (Entered: 06/09/2014)
77 ORDER granting 76 Motion to Withdraw as Attorney. Attorney Michael C Pollack withdrawn. Signed by Honorable Stephen P. Friot on 6/9/14. (llg) (Entered: 06/09/2014)
78 NOTICE of Change of Address by Gregory S Baylor (Baylor, Gregory) (Entered: 04/13/2015)
79 USCA OPINION as to 55 Notice of Appeal filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew (kr) (Entered: 07/16/2015)
80 USCA JUDGMENT as to 55 Notice of Appeal filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew. These cases originated in the District of Colorado and the Western District of Oklahoma and were argued by counsel. The District Courts denial of a preliminary injunction in Little Sisters, 6 F. Supp. 3d 1225, is affirmed, and the District Courts grant of a preliminary injunction in Southern Nazarene, 2013 WL 6804265, and Reaching Souls, 2013 WL 6804259, is reversed. The cases are remanded to the United States District Courts for the District of Colorado and the Western District of Oklahoma for further proceedings

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 12 of 14

07/28/2015 11/10/2015 05/16/2016
06/17/2016
06/17/2016
06/17/2016
06/17/2016 01/16/2017 01/17/2017 08/15/2017 08/15/2017 08/16/2017

in accordance with the opinion of this court. (kr) (Entered: 07/16/2015)
81 PETITION FOR WRIT OF CERTIORARI re Supreme Court Number:15−119 (kr) (Entered: 07/28/2015)
82 PETITION FOR WRIT OF CERTIORARI Granted (kw) (Entered: 11/12/2015)
83 SUPREME COURT OPINION as to 55 Notice of Appeal. The opinion of this Court was announced today in the above stated case. A copy of the opinion is available on the Courts website at www.supremecourt.gov. The judgment or mandate of this Court will not issue for at least twenty−five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing. (kr) (Entered: 05/18/2016)
84 SUPREME COURT JUDGMENT as to 55 Notice of Appeal filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew. It is ordered and adjudged by this Court that the judgment of the above court is vacated with partial costs, and the case is remanded to the United States Court of Appeals for the Tenth Circuit for such further proceedings consistent with the opinion of this Court. IT IS FURTHER ORDERED that the petitioners Southern Nazarene University, et al. recover from Sylvia Burwell, Secretary of Health and Human Services, et al. One Thousand One Hundred and Thirteen Dollars and Ninety−three cents ($1,113.93) for costs herein expended. (kr) (Entered: 06/17/2016)
85 ORDER of USCA as to 55 Notice of Appeal filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew. The Supreme Court of the United States entered a judgment on May 16, 2016 reversing the judgment of this court and remanding the cause for further proceedings. Upon further consideration, the judgment of this court filed on July 14, 2015 is vacated. Counsel will be notified if this court desires further briefing prior to disposition of this appeal upon remand. (kr) DISREGARDED BY NOTICE FILED 6/17/16. Modified on 6/17/2016 (kr). (Entered: 06/17/2016)
86 AMENDED ORDER of USCA as to 55 Notice of Appeal filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew. The June 17, 2016 order stating that the Supreme Court of the United States reversed the judgment of this court was issued in error. The Supreme Court's May 16, 2016 decision expressed no view on the merits of the cases at issue; the judgments of the Courts of Appeals in those cases were vacated and the cases were remanded for further proceedings consistent with the Supreme Court's decision. Accordingly, the judgment of this court filed on July 14, 2015 is vacated. Counsel will be notified if this court desires further briefing prior to disposition of this appeal upon remand. (kr) (Entered: 06/17/2016)
Docket Annotation: As per 10th Circuit re Doc. 85 This entry has been removed from the docket as the order was issued in error. Amended order issued on 06/17/2016. (kr) (Entered: 06/17/2016)
87 MOTION to Withdraw as Attorney by All Plaintiffs. (Bowman, Matthew) (Entered: 01/16/2017)
88 ORDER granting 87 Motion for Leave to Withdraw as Attorney. Attorney Matthew S Bowman withdrawn as counsel. Signed by Honorable Stephen P. Friot on 1/17/2017. (llg) (Entered: 01/17/2017)
89 ENTRY of Appearance by Michelle R Bennett on behalf of All Defendants (Bennett, Michelle) (Entered: 08/15/2017)
90 MOTION to Withdraw as Attorney by All Defendants. (Grogg, Adam) (Entered: 08/15/2017)
91 ORDER granting 90 Motion to Withdraw as Attorney. Attorney Adam A Grogg withdrawn as counsel for defendants. Signed by Honorable Stephen P. Friot on 8/16/2017. (llg) (Entered: 08/16/2017)

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 13 of 14

10/23/2017
10/23/2017 10/24/2017
11/21/2017 11/22/2017 11/22/2017 12/22/2017 01/02/2018 01/18/2018 01/22/2018 02/26/2018

92 ORDER of USCA as to 55 Notice of Appeal filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew. This matter is before us on Appellants Motion for Voluntary Dismissal filed October 6, 2017. The motion states that Appellants had not determined Appellees position on the relief requested in the motion prior to its filing. The time for Appellees to file a response to the motion has now expired, and no response has been filed. See Fed. R.App. P. 27(a)(3) and 10th Cir. R. 27.3(A)(1). Accordingly, Appellants motion is deemed unopposed. In light of the foregoing, Appellants Motion for Voluntary Dismissal is GRANTED, and this matter is dismissed pursuant to Fed. R. App. P. 42(b). A copy of his order shall stand as and for the mandate of this court. (kr) (Entered: 10/23/2017)
93 USCA MANDATE Issued re 55 Notice of Appeal filed by United States Department of the Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Thomas E Perez, United States Department of Labor, Jacob J Lew. Please be advised that the court issued an order today dismissing this case.In addition, please be advised that the mandate for this case has issued today. The clerk of the originating court shall file accordingly. (kr) (Entered: 10/23/2017)
94 ORDER. Proceedings in this case have been stayed pending resolution of defendants' appeal of this court's order granting plaintiffs' motion for preliminary injunction. On October 23, 2017, the Tenth Circuit Court of Appeals granted appellants' motion for voluntary dismissal of that appeal. See, doc. nos. 92 (order), 93 (mandate issued).Defendants are DIRECTED to file, within thirty days of the date of this order, a notice advising the court as to whether defendants adhere to the arguments advanced in the motion to dismiss or for summary judgment. Plaintiffs are DIRECTED to file, within thirty days of the date of this order, a notice advising the court as to whether plaintiffs adhere to the arguments advanced in their response brief. In the meantime, the briefing remains STAYED. Signed by Honorable Stephen P. Friot on 10/24/17. (kr) Modified on 11/17/2017 (llg). (Entered: 10/24/2017)
95 NOTICE (other) by All Plaintiffs re 94 Order,,, (Baylor, Gregory) (Entered: 11/21/2017)
96 NOTICE (other) by All Defendants re 94 Order,,, (Bennett, Michelle) (Entered: 11/22/2017)
97 ORDER STRIKING as withdrawn 26 Defendants' MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative MOTION for Summary Judgment , and Memorandum in Support. This case remains STAYED. Counsel are DIRECTED to file a joint status report by 12/22/20177, advising the court of the status of this case, including the status of their discussions regarding an appropriate resolution. Signed by Honorable Stephen P. Friot on 11/22/2017. (llg) (Entered: 11/22/2017)
98 JOINT STATUS REPORT by Defendants Eric D Hargan, Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 12/22/2017)
99 ORDER re 98 Joint Status Report. Case remains STAYED. Joint Status Report, advising the court of the status of this case, including the status of discussions re an appropriate resolution, due by 1/22/2018. Signed by Honorable Stephen P. Friot on 1/2/2018. (llg) (Entered: 01/02/2018)
100 JOINT STATUS REPORT by Defendants Eric D Hargan, Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 01/18/2018)
101 ORDER re 100 Joint Status Report. This case remains STAYED. Counsel are DIRECTED to file a joint status report by 2/26/2018, advising the court of the status of this case, including the status of their discussions regarding an appropriate resolution. Signed by Honorable Stephen P. Friot on 1/22/2018. (llg) (Entered: 01/22/2018)
102 JOINT STATUS REPORT by Defendants Eric D Hargan, Jacob J Lew, Thomas E Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 02/26/2018)

Case: 5:13-cv-1015 As of: 12/02/2019 09:21 AM CST 14 of 14

03/01/2018 03/16/2018 04/16/2018 04/16/2018
04/27/2018 05/01/2018 05/07/2018 05/15/2018 05/15/2018 06/29/2018 06/29/2018

103 ORDER re 102 Joint Status Report. This case remains STAYED. Counsel are DIRECTED to file a joint status report by 4/27/2018, advising the court of the status of this case, including the status of their discussions regarding an appropriate resolution. Signed by Honorable Stephen P. Friot on 3/1/2018. (llg) (Entered: 03/01/2018)
104 NOTICE of Change of Address by Kevin H Theriot (Theriot, Kevin) (Entered: 03/16/2018)
105 MOTION for Permanent Injunction and Declaratory Relief by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Baylor, Gregory) (Entered: 04/16/2018)
NOTICE from the Court re 105 Plaintiffs' MOTION for Permanent Injunction and Declaratory Relief. Counsel for plaintiffs is DIRECTED, in future filings, to comply with the court's ECF Policies & Procedures Manual, Section II.A.4.a. − "Exhibits... shall be clearly labeled with the appropriate exhibit number.... Do not use alphabetical or alpha−numeric designations for exhibits. A description [more than just the exhibit no.] of the numbered exhibit must be provided in the docket entry...." Failure to comply in the future may result in filings being stricken. Counsel for plaintiffs is FURTHER DIRECTED to submit the proposed order which is attached to its motion via email, in Word format, as required by this court's ECF Policies & Procedures Manual. (llg) (Entered: 04/16/2018)
106 JOINT STATUS REPORT by Defendants R Alexander Acosta, Alex M Azar, II, Steven T Mnuchin, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 04/27/2018)
107 ORDER LIFTING STAY so that the court may decide plfs' mtn for permanent injunction & declaratory relief, once that mtn is fully briefed. Signed by Honorable Stephen P. Friot on 5/1/2018. (llg) (Entered: 05/01/2018)
108 RESPONSE to Motion re 105 MOTION for Permanent Injunction and Declaratory Relief filed by R Alexander Acosta, Alex M Azar, II, Steven T Mnuchin, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 05/07/2018)
109 ORDER granting 105 Plaintiffs' Motion for Permanent Injunction and Declaratory Relief (as fully set out in this order). Signed by Honorable Stephen P. Friot on 5/15/2018. (llg) (Entered: 05/15/2018)
110 JUDGMENT in favor of plaintiffs and against defendants. Signed by Honorable Stephen P. Friot on 5/15/2018. (llg) (Entered: 05/15/2018)
111 UNOPPOSED MOTION for Extension of Time to File Petition for Attorneys' Fees and Costs by All Plaintiffs. (Baylor, Gregory) (Entered: 06/29/2018)
112 ORDER granting 111 Plaintiffs' Unopposed Motion for Extension of Time to File Petition for Attorneys' Fees and Costs. Ddl extended to 7/31/2018. Signed by Honorable Stephen P. Friot on 6/29/2018. (llg) (Entered: 06/29/2018)

 
 (ORDER LIST: 577 U. S.)

FRIDAY, NOVEMBER 6, 2015

14-1418 14-1453 14-1505 15-35 15-105 15-119 15-191
15-109
15-145 15-5238

CERTIORARI GRANTED ZUBIK, DAVID A. ET AL. V. BURWELL, SEC. OF H&HS, ET AL. PRIESTS FOR LIFE, ET AL. V. DEPT. OF H&HS, ET AL. ROMAN CATHOLIC ARCHBISHOP V. BURWELL, SEC. OF H&HS, ET AL. E. TX BAPTIST UNIV., ET AL. V. BURWELL, SEC. OF H&HS LITTLE SISTERS, ET AL. V. BURWELL, SEC. OF H&HS, ET AL. SOUTHERN NAZARENE UNIV., ET AL. V. BURWELL, SEC. OF H&HS, ET AL. GENEVA COLLEGE V. BURWELL, SEC. OF H&HS, ET AL.
The petition for a writ of certiorari in No. 14-1418 is granted limited to Question 1 presented by the petition. The motion of Association of American Physicians & Surgeons, et al. for leave to file a brief as amici curiae and the petition for a writ of certiorari in No. 14-1453 are granted. The petitions for writs of certiorari in Nos. 14-1505, 15-35, 15-119, and 15-191 are granted. The petition for a writ of certiorari in No. 15-105 is granted limited to Questions 1 and 2 presented by the petition. The cases are consolidated. SIMMONS, JERMAINE, ET AL. V. HIMMELREICH, WALTER J.
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. HUSKY ELECTRONICS, INC. V. RITZ, DANIEL L.
The petition for a writ of certiorari is granted. NICHOLS, LESTER V. UNITED STATES
The motion of petitioner for leave to proceed in forma

1

pauperis is granted. The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.
2

 
 Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001

May 16, 2016

Scott S. Harris Clerk of the Court (202) 479-3011

Clerk United States Court of Appeals for the Third Circuit 601 Market Street, Room 21400 Philadelphia, PA 19106

Re: David A. Zubik, et al. v. Sylvia Burwell, Secretary of Health and Human Services, et al. No. 14-1418 (Your No. 14-1376, 14-1377)

Dear Clerk:
The opinion of this Court was announced today in the above stated case. A copy of the opinion is available on the Court’s website at www.supremecourt.gov.
The judgment or mandate of this Court will not issue for at least twenty-five days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing.

Sincerely,
Scott S. Harris, Clerk by Cynthia Rapp Deputy Clerk (202) 479-3031

(Slip Opinion)

Cite as: 578 U. S. ____ (2016)

1

Per Curiam

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

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–1418, 14–1453, 14–1505, 15–35, 15–105, 15–119, and 15–191
_________________

DAVID A. ZUBIK, ET AL., PETITIONERS

14–1418

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE THIRD CIRCUIT


PRIESTS FOR LIFE, ET AL., PETITIONERS

14–1453

v.

DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,

ET AL., PETITIONERS

14–1505

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


EAST TEXAS BAPTIST UNIVERSITY, ET AL., 
 PETITIONERS 


2

ZUBIK v. BURWELL

Per Curiam

15–35

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LITTLE SISTERS OF THE POOR HOME FOR 


THE AGED, DENVER, COLORADO, ET AL., 


PETITIONERS 


15–105

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

SOUTHERN NAZARENE UNIVERSITY, ET AL.,

PETITIONERS

15–119

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.; AND

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

GENEVA COLLEGE, PETITIONER

15–191

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
[May 16, 2016]

Cite as: 578 U. S. ____ (2016)

3

Per Curiam
PER CURIAM.
Petitioners are primarily nonprofit organizations that provide health insurance to their employees. Federal regulations require petitioners to cover certain contraceptives as part of their health plans, unless petitioners submit a form either to their insurer or to the Federal Government, stating that they object on religious grounds to providing contraceptive coverage. Petitioners allege that submitting this notice substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. §2000bb et seq.
Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Post, p. ___. Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. Supplemental Brief for Petitioners 4. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” Supplemental Brief for Respondents 14–15.
In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits. Given the gravity of the dispute and the substantial clari-

4

ZUBIK v. BURWELL

Per Curiam
fication and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.” Id., at 1. We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.
The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance. Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them. This Court has taken similar action in other cases in the past. See, e.g., Madison County v. Oneida Indian Nation of N. Y., 562 U. S. 42, 43 (2011) (per curiam) (vacating and remanding for the Second Circuit to “address, in the first instance, whether to revisit its ruling on sovereign immunity in light of [a] new factual development, and—if necessary— proceed to address other questions in the case consistent with its sovereign immunity ruling”); Kiyemba v. Obama, 559 U. S. 131, 132 (2010) (per curiam) (vacating and remanding for the D. C. Circuit to “determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments”); Villarreal v. United States, 572 U. S. ___ (2014) (vacating and remanding to the Fifth Circuit “for further consideration in light of the position asserted by the Solicitor General in his brief for the United States”).
The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened,

Cite as: 578 U. S. ____ (2016)

5

Per Curiam
whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.
Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans “obtain, without cost, the full range of FDA approved contraceptives.” Wheaton College v. Burwell, 573 U. S. ___, ___ (2014) (slip op., at 1). Through this litigation, petitioners have made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds.” Id., at ___ (slip op., at 2). Nothing in this opinion, or in the opinions or orders of the courts below, “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage” going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.
The judgments of the Courts of Appeals are vacated, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.

Cite as: 578 U. S. ____ (2016)

1

SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 14–1418, 14–1453, 14–1505, 15–35, 15–105, 15–119, and 15–191
_________________

DAVID A. ZUBIK, ET AL., PETITIONERS

14–1418

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE THIRD CIRCUIT


PRIESTS FOR LIFE, ET AL., PETITIONERS

14–1453

v.

DEPARTMENT OF HEALTH AND HUMAN

SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,

ET AL., PETITIONERS

14–1505

v.

SYLVIA BURWELL, SECRETARY OF HEALTH

AND HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


EAST TEXAS BAPTIST UNIVERSITY, ET AL.,

PETITIONERS

15–35

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

2

ZUBIK v. BURWELL

SOTOMAYOR, J., concurring
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE FIFTH CIRCUIT


LITTLE SISTERS OF THE POOR HOME FOR 


THE AGED, DENVER, COLORADO, ET AL., 


PETITIONERS 


15–105

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE TENTH CIRCUIT


SOUTHERN NAZARENE UNIVERSITY, ET AL.,

PETITIONERS

15–119

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.; AND

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE TENTH CIRCUIT


GENEVA COLLEGE, PETITIONER

15–191

v.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE THIRD CIRCUIT

[May 16, 2016]


JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring.
I join the Court’s per curiam opinion because it expresses no view on “the merits of the cases,” “whether petition-

Cite as: 578 U. S. ____ (2016)

3

SOTOMAYOR, J., concurring
ers’ religious exercise has been substantially burdened,” or “whether the current regulations are the least restrictive means of serving” a compelling governmental interest. Ante, at 4–5. Lower courts, therefore, should not construe either today’s per curiam or our order of March 29, 2016, as signals of where this Court stands. We have included similarly explicit disclaimers in previous orders. See, e.g., Wheaton College v. Burwell, 573 U. S. ___ (2014) (“[T]his order should not be construed as an expression of the Court’s views on the merits”). Yet some lower courts have ignored those instructions. See, e.g., Sharpe Holdings, Inc., v. Department of Health and Human Servs., 801 F. 3d 927, 944 (CA8 2015) (“[I]n Wheaton College, Little Sisters of the Poor, and Zubik, the Supreme Court approved a method of notice to HHS that is arguably less onerous than [existing regulations] yet permits the government to further its interests. Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests”). On remand in these cases, the Courts of Appeals should not make the same mistake.
I also join the Court’s opinion because it allows the lower courts to consider only whether existing or modified regulations could provide seamless contraceptive coverage “ ‘to petitioners’ employees, through petitioners’ insurance companies, without any . . . notice from petitioners.’ ” Ante, at 3. The opinion does not, by contrast, endorse the petitioners’ position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a “separate policy, with a separate enrollment process.” Supp. Brief for Petitioners 1; Supp. Reply Brief for Petitioners 5. Such separate contraceptive-only policies do not currently exist, and the Government has laid out a number of legal and practical obstacles to their creation. See Supp. Reply Brief

4

ZUBIK v. BURWELL

SOTOMAYOR, J., concurring
for Respondents 3–4. Requiring standalone contraceptiveonly coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act. And requiring that women affirmatively opt into such coverage would “impose precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate.” Id., at 6.
Today’s opinion does only what it says it does: “afford[s] an opportunity” for the parties and Courts of Appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the Government’s clarification about what the existing regulations accomplish, how they might be amended, and what such an amendment would sacrifice. Ante, at 4. As enlightened by the parties’ new submissions, the Courts of Appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.