Case 2:13-cv-01459-AJS Document 1 Filed 10/08/13 Page 1 of 60

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

MOST REVEREND DAVID A. ZUBIK, )

BISHOP OF THE ROMAN CATHOLIC )

DIOCESE OF PITTSBURGH, as Trustee )

of The Roman Catholic Diocese of

)

Pittsburgh, a Charitable Trust; THE

)

ROMAN CATHOLIC DIOCESE OF

)

PITTSBURGH, as the Beneficial Owner of )

the Pittsburgh series of The Catholic

)

Benefits Trust; and CATHOLIC

)

CHARITIES OF THE DIOCESE OF

)

PITTSBURGH, INC., an affiliate

)

nonprofit corporation of The Roman

)

Catholic Diocese of Pittsburgh,

) CASE NUMBER: _________

)

Plaintiffs,

) DATE STAMP: ___________

)

v.

) JURY TRIAL DEMAND

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

)

Department of Health and Human

)

Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S.

)

Department of Labor; JACOB J. LEW, in )

his official capacity as Secretary of the

)

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

)

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; U.S.

)

DEPARTMENT OF LABOR; and U.S.

)

DEPARTMENT OF TREASURY

)

Defendants.

)

)

COMPLAINT 1. This case is a continuation of Plaintiffs’ prolonged fight for their religious freedom. Federal law (the “U.S. Government Mandate”) has required religious organizations such as Plaintiffs to provide services that violate their long-standing teachings on abortion and the sanctity of human life by subsidizing, providing, and/or facilitating coverage for abortion-

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inducing drugs, sterilization services, contraceptives, and related counseling services (also referred to herein as the “objectionable services”).
2. In 2011, Defendants first issued regulations which violated Plaintiffs’ long and sincerely-held religious beliefs in an unprecedented manner. Since issuing those regulations, the Government has consistently promised that changes were coming and that these changes would accommodate Plaintiffs’ sincerely-held religious beliefs.
3. Two years later, it is clear that these promises were empty words. The Government ignored the views of religious organizations like Plaintiffs by promulgating a final rule that is more damaging than the initial regulations.
4. Despite repeated promises to protect Plaintiffs’ religious freedom, the Government has chosen not to do so. After the Government issued its proposed rule, Plaintiff the Roman Catholic Diocese of Pittsburgh (the “Diocese”) submitted extensive public comments outlining how “the proposed rule continue[d] the surprising recent detour into requiring religious objectors to fund or facilitate coverage for abortifacients, contraception, sterilization, and related education and counseling.”
5. The Diocese’s comments were bolstered by a report from a renowned healthcare economist, whose report explained that “the accommodation will not operate as the Government claims it will” and that the scheme proposed by the Government would result in religious organizations funding and/or facilitating coverage of the objectionable services. In its comments, the Diocese “offer[ed] two proposals that could alleviate some or all of the issues raised in [its] comment[.]” These proposals were ignored.
6. Despite the Diocese’s comments, over 400,000 other public comments, repeated requests from Church leaders, and repeated promises from the Government that it
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would fix the problem, the Government has not changed the core principle of the U.S. Government Mandate. On June 28, 2013, the Government issued its Final Rule, which still requires Plaintiffs to subsidize and/or facilitate the provision of abortion-inducing drugs, contraception, sterilization, and related education and counseling, in violation of their religious beliefs.
7. The Government, through the U.S. Government Mandate, is forcing Plaintiffs to violate their sincerely-held religious beliefs. Plaintiff Catholic Charities of the Diocese of Pittsburgh, Inc. (“Catholic Charities”) is forced to comply with the U.S. Government Mandate or face significant fines and penalties. Plaintiffs Most Reverend David A. Zubik (the “Bishop”) and the Diocese are forced to facilitate coverage of the objectionable services because the insurance trust which the Diocese operates currently offers coverage to Diocesanaffiliated entities subject to the U.S. Government Mandate.
8. Not only is the Government continuing to attack Plaintiffs’ religious liberties, but it waited right up until the expiration of the safe harbor to announce its Final Rule. Although the Government extended the safe harbor until December 31, 2013, the Government still is forcing parties such as Plaintiffs, on a highly compressed schedule, to choose between violating their faith, paying massive fines, or discontinuing their health plans for their employees.
9. The Government’s violation of religious freedom is irreconcilable with the First Amendment, the Religious Freedom Restoration Act (“RFRA”), the Administrative Procedure Act (“APA”), and other laws. The Government has not demonstrated any compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception. Nor has the Government
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demonstrated that the U.S. Government Mandate is the least restrictive means of advancing any interest it has in increasing access to these services, which are already widely available and which the Government could make more widely available without conscripting Plaintiffs as vehicles for the dissemination of products and services to which they so strongly object.
10. The Government cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these services in violation of their sincerely-held religious beliefs. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. I. PRELIMINARY MATTERS
11. Plaintiff Most Reverend David A. Zubik, Bishop of The Roman Catholic Diocese of Pittsburgh, is the Trustee of The Roman Catholic Diocese of Pittsburgh, a Pennsylvania Charitable Trust. Bishop Zubik resides in Pittsburgh, Pennsylvania.
12. Plaintiff The Roman Catholic Diocese of Pittsburgh is a Pennsylvania Charitable Trust with a principal place of administration in Pittsburgh, Pennsylvania. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
13. Plaintiff Catholic Charities of the Diocese of Pittsburgh, Inc. is a nonprofit corporation affiliated with the Diocese and with a principal place of administration in Pittsburgh, Pennsylvania. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
14. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services (“HHS”). She is sued in her official capacity.
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15. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
16. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury. He is sued in his official capacity.
17. Defendant U.S. Department of Health and Human Services is an executive agency of the United States within the meaning of RFRA and the APA.
18. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
19. Defendant U.S. Department of the Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
20. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1.
21. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Plaintiffs will be required to provide, pay for, and/or facilitate access to objectionable products and services in contravention of their sincerely-held religious beliefs, as described below.
22. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
23. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
24. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1).
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B. The Bishop and the Diocese (1) Background on the Religious Mission of the Bishop and the Diocese 25. The Bishop is the shepherd of the Catholic faithful in Southwestern
Pennsylvania. The Bishop in his capacity as Bishop of the Diocese also serves as Trustee for 200 parishes and their charitable trusts. The Diocese provides services throughout six counties in Southwestern Pennsylvania—Allegheny, Beaver, Butler, Greene, Lawrence, and Washington Counties—including a Catholic population of approximately 700,000 people.
26. The Bishop also oversees the multifaceted mission of spiritual, educational, and social service to residents of this six-county region, Catholic and non-Catholic alike. Specifically, the Bishop oversees the mission of social service in his role as Chairman of the Membership Board of Plaintiff Catholic Charities.
27. The Diocese serves the community through its affiliated Catholic schools. The Diocese’s Catholic schools include approximately 11 high schools, 66 elementary schools, two non-residential schools for individuals with disabilities, and various preschool programs. These schools educate approximately 22,000 students and provide inner-city children with an alternative to failing public education. Only three school districts in the entire Commonwealth of Pennsylvania educate more children than the Diocese.
28. The Diocesan schools are open to and serve all children, without regard to the students’ religion, race, or financial condition.
29. Eight Catholic high schools are affiliated with the Diocese, including Bishop Canevin High School, Central Catholic High School, Cardinal Wuerl North Catholic High School, Oakland Catholic High School, Quigley Catholic High School, Saint Joseph High School, Serra Catholic High School, and Seton-La Salle Catholic High School. Ninety-nine percent of senior high school students in the Diocesan schools graduate and 97% continue
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further education after high school. Many of the Diocesan schools are located in districts where the public schools are “failing.” Indeed, Governor Tom Corbett has recognized that, “[w]here we have failing schools, we have failing students.”
30. The elementary schools within the Diocese are not exclusive to Catholics and educate many minority students. For example, East Catholic, Northside Catholic School, and St. Bartholomew School educate many non-Catholic and minority students. Additionally, Sister Thea Bowman Catholic Academy and St. Benedict the Moor School educate predominantly non-Catholic students.
31. As described below, the U.S. Government Mandate will result in the elementary schools within the Diocese being treated differently, in that certain elementary schools within the Diocese will be exempt from compliance with the U.S. Government Mandate while others will not. Defendants’ religious employer exemption rests on formalistic distinctions which do not work in practice and rather, seek to create a division in the Catholic church between houses of worship and charitable organizations which provide good works to those in need.
32. The Diocese also provides numerous other social services to the residents of its six-county community. These services are provided without regard to national origin, race, color, sex, religion, age, or disability. For example, the Diocese provides crisis pregnancy assistance and post-abortion healing ministries.
33. The Diocese assists the work of many other local organizations, including organizations that provide support to the homeless, provide scholarships to disadvantaged children of all faiths, and provide counseling and support to struggling families.
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(2) Operation and Beneficial Ownership of the Catholic Benefits Trust 34. The Diocese of Pittsburgh operates a self-insured health plan through the
Catholic Benefits Trust (or the “Trust”). The Catholic Benefits Trust was formed in June 2013 by an agreement between the Diocese of Pittsburgh, the Diocese of Altoona-Johnstown, and the Diocese of Greensburg (the “Trust Agreement”) in an effort to pool resources with regard to health benefits. The Trust was formed by the Diocese of Pittsburgh converting its Catholic Employers Benefits Plan Delaware Trust to a Delaware statutory trust and expanding the Trust to include the Dioceses of Altoona-Johnstown and Greensburg.
35. The three Dioceses are the Beneficial Owners of the Catholic Benefits Trust, which is split into three series: the Pittsburgh series, the Altoona-Johnstown series, and the Greensburg series. Each Diocese is sole “Beneficial Owner” and sole beneficiary of its respective series. Accordingly, the Diocese of Pittsburgh is the sole Beneficial Owner and sole beneficiary of the Pittsburgh series of the Trust.
36. The Catholic Benefits Trust provides coverage to “Diocesan Entit[ies],” defined in the Trust Agreement as “any Agency, Parish, School, seminary or other similar entity subject to the supervision, or administrative and pastoral care, of a Diocese.” Presently, approximately 230 Catholic organizations, including the Diocese of Pittsburgh, Catholic Charities of the Diocese of Pittsburgh, all of the parishes and schools with the Diocese of Pittsburgh, and several other entities affiliated with the Diocese of Pittsburgh, along with the Dioceses of Altoona-Johnstown and Greensburg and affiliated entities within those Dioceses, participate in the Catholic Benefits Trust. Within these organizations, approximately 3,100 employees and 5,000 participants receive their health insurance through the Trust. This structure allows even very small organizations to benefit from economies of scale, to be self-
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insured and to spread their risks. As a result, each religious organization can offer its employees better benefits at lower costs.
37. The three Dioceses do not contract with a separate insurance company that pays for the employee health plans sponsored by the Trust. Instead, the Trust functions as the insurance company underwriting the covered employees’ medical costs, with all funding coming from each respective Diocese and its covered affiliates.
38. The health plans sponsored by the Trust are administered by Third Party Administrators (“TPAs”), who are paid a flat fee for each covered individual for administering the plans but who do not pay for any services received by covered employees.
39. The Trust sponsors one set of group health plans for the Diocese of Pittsburgh and the majority of Diocesan-affiliated entities with the Diocese of Pittsburgh (the “Diocesan plan”). The Trust sponsors separate group health plans for Catholic Charities of the Diocese of Pittsburgh.
40. Approximately 3,000 employees at the Diocese and its various affiliated entities are eligible for coverage through the Catholic Benefits Trust. Approximately 2,200 employees are covered and approximately 3,500 individuals are covered, including dependents.
41. The next Diocesan plan year begins on January 1, 2014. 42. The Diocesan plan is “grandfathered.” The Diocese has included a statement describing its grandfathered status in plan materials, as required by 26 C.F.R. § 54.98151251T(a)(2)(ii). While the Diocesan plan is “grandfathered,” the Diocese is presently injured by the U.S. Government Mandate, as described below.
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43. Consistent with Church teachings, the Diocesan plan offered through the Trust does not cover abortion-inducing drugs, contraceptives, or sterilization, except when medically necessary.
44. Many Diocesan-affiliated entities currently insured through the Trust likely do not qualify for Defendants’ religious employer exemption and so are instead subject to the socalled “accommodation.”
45. Plaintiff Catholic Charities is one such entity, which likely does not qualify for the exemption and which does not have a “grandfathered” health plan.
46. While the Diocese is exempt from compliance with the U.S. Government Mandate, both the Bishop and the Diocese will be forced to facilitate coverage for the objectionable services through their participation in the operation of the Catholic Benefits Trust. The Diocese, through the Bishop, has the power to manage, oversee, and direct the Pittsburgh series of the Trust in its role as sole Beneficial Owner and beneficiary of that series. The Bishop and the Diocese will be forced to facilitate provision of the objectionable services because accommodated entities currently included in the Trust, such as Plaintiff Catholic Charities, will be forced to comply with the U.S. Government Mandate.
47. The Trust Agreement provides that “each Director” of the Board of Directors of the Trust shall be “appointed by the Bishop of each Diocese that is or becomes a Beneficial Owner” of the Trust. The Board of Directors is then responsible for “[t]he management of the Trust[.]” Thus, the Bishop is forced to appoint a Director to the Board of the Trust with the knowledge that, under the U.S. Government Mandate, the Director must then allow the Trust to facilitate provision of the objectionable services for accommodated entities. The Bishop knows that his appointee will be forced to violate the Catholic faith.
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48. While “all powers to manage the business and affairs of the Trust and each Series shall be exclusively vested in the Board and the Board may exercise all powers of the Trust[,]” “a majority of the Beneficial Owners may amend [the Trust] Agreement in writing at any time and thereby broaden or limit the Board’s power and authority[.]” Accordingly, while the Board of Directors manages the daily affairs of the Trust, the Dioceses and their Bishops have ultimate decision-making authority and ultimately are forced to facilitate provision of the objectionable services to the employees of accommodated entities within the Trust.
49. Additionally, it is the Diocese, as operator and sole Beneficial Owner of the Pittsburgh series of the Trust, which decides whether accommodated entities should be permitted to continue participating in the Trust. The Trust Agreement provides that: “Each Beneficial Owner may allow such Diocesan Entities to benefit in such Series in respect of which such Beneficial Owner is the holder of the sole Interest in accordance with the terms and conditions established by such Beneficial Owner in consultation with its advisors.” Since accommodated, non-grandfathered entities, like Plaintiff Catholic Charities, currently participate in the Trust, the Diocese will be facilitating coverage of the objectionable services for the employees of these accommodated entities by permitting these entities to participate in the Trust. The Diocese is now faced with the decision of whether to expel these accommodated entities from the Trust.
50. Finally, the Diocese, as sole Beneficial Owner of the Pittsburgh series of the Trust, is ultimately responsible for any fines incurred by accommodated entities as a result of non-compliance with the U.S. Government Mandate. Under the Trust Agreement, “[a]
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particular Series shall be charged with the liabilities of that Series, and all expenses, costs, charges and reserves attributable to any particular Series shall be borne by such Series.”
51. In all of these ways, the Bishop and the Diocese are forced to facilitate coverage for the objectionable services.
C. Catholic Charities of the Diocese of Pittsburgh, Inc. (1) Background on the Religious Mission of Catholic Charities 52. Plaintiff Catholic Charities is the primary social service agency of the Diocese
under the leadership of Bishop Zubik. 53. The mission of Catholic Charities is to serve all regardless of religious
affiliation in their time of greatest need. 54. Catholic Charities provides approximately 230,000 acts of service for people in
need in Southwestern Pennsylvania, with approximately 115 employees, and with offices in all six counties that the Diocese serves.
55. Catholic Charities serves the needy, underserved, and underprivileged in countless ways. Its programs and services include adoption, counseling, safety net and stability services, health care for the uninsured, housing and homeless assistance, pregnancy and parenting support, and refugee and senior services. Catholic Charities also maintains crisis pregnancy assistance and post-abortion healing ministries.
56. Each of the county offices of Catholic Charities provides counseling and other support services to pregnant women and new mothers.
57. Catholic Charities offer a post-abortion healing retreat to individuals struggling with the emotional and spiritual pain of abortion.
58. Catholic Charities is able to serve the Southwestern Pennsylvania community through its “Ambassadors of Hope,” the hundreds of men, women, and teens who volunteer
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their time in support of the various social service programs run by Catholic Charities and thus answer the call of their faith to serve all in need, regardless of religious affiliation.
59. Through its various social service programs, in 2012, Catholic Charities provided approximately 68,141 meals to the hungry, 14,430 hours of case management to struggling individuals and families, and participated in 16,542 patient visits.
60. Catholic Charities supports additional programs, including: the Catholic Charities Free Health Care Center, St. Joseph House of Hospitality, Team HOPE, and two centers for seniors.
61. Catholic Charities, through its wholly-owned subsidiary the Catholic Charities Free Health Care Center, provides quality medical and dental care at no cost to the working poor. The Free Health Care Center is the only free health care facility of its kind in the Pittsburgh region that serves low or moderate income individuals who do not have employersponsored health insurance, cannot afford private insurance, or who do not qualify for Medicaid or other types of assistance.
62. The Catholic Charities Free Health Care Center is critical to that underserved population who typically delay medical and dental visits, thereby magnifying health problems, overburdening emergency rooms, and disrupting their employers’ work flow. This segment of the population is not being served by the Government. The free health services provided at the Catholic Charities Free Health Care Center in 2012 are valued at nearly $1.5 million.
63. The Catholic Charities Free Health Care Center is often referred to as “The Miracle on Ninth Street” by patients, volunteers, and staff because of its unique model of operation. Since opening in November 2007, the Catholic Charities Free Health Care Center has provided free, quality preventive and primary care to nearly 15,000 individuals during
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more than 35,000 patient visits. Like all Catholic Charities’ programs, the Free Health Care Center treats clients without discrimination as to their race, religion, sex, national origin, age, or any disability.
64. Catholic Charities also supports a pregnancy and parenting support program throughout the six counties of the Diocese of Pittsburgh. Women who are pregnant or have recently given birth are provided with supportive counseling (whether parenting or making an adoption plan), and access to workshops and classes to learn parenting and life skills, in addition to employment preparedness in order to become more stable. Last year, 2,545 parents accessed these services.
65. Catholic Charities supports Team HOPE (help on the path to empowerment), which provides individualized service plans to help the needy gain independence. A service plan includes programs focusing on workforce development, a “Life Skills University,” and parenting support, in addition to other services. In a 2012 audit by Allegheny County, a funder of the program, Team HOPE was congratulated for achieving outstanding results having exceeded in enrollment in the program by 108% and helping 93% of participants in the program find employment in the first 6 months.
66. Catholic Charities supports St. Joseph House of Hospitality, a residential and transitional housing facility located in Pittsburgh’s Hill District, which provides rooms, meals, and supportive services to men over 50 who are homeless or at risk for homelessness.
67. Catholic Charities also supports two centers for seniors. One of those centers is Challenges: Options in Aging, a facility located in Lawrence County that provides recreational, social, protective, and educational services, as well as in-home services, to the
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aging. This program provided 167,721 acts of service to older individuals in the past calendar year.
68. Donors are the life blood of Catholic Charities and make the mission of Catholic Charities, its programs, and its Free Health Care Center possible. Additionally, the Diocese provides funding to Catholic Charities, its programs, and the Free Health Care Center.
(2) Participation in the Catholic Benefits Trust 69. All of Catholic Charities’ health plans are self-insured through the Diocese,
which is part of the Catholic Benefits Trust. 70. Catholic Charities offers its employees health plans separate from the Diocesan
plan, but because the Diocese provides insurance to Catholic Charities through the Trust, Catholic Charities is able to pool resources to provide comprehensive benefits to its employees.
71. Currently, approximately 80 of Catholic Charities’ approximately 115 employees participate in its group health plans.
72. The next plan year for Catholic Charities’ health plans begins on January 1, 2014.
73. Catholic Charities’ current health plans are not “grandfathered.” Indeed, Catholic Charities did not include a statement describing its grandfathered status in plan materials, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(ii) for grandfathered plans.
74. Consistent with Church teachings, Catholic Charities’ plans do not cover abortion-inducing drugs, contraceptives, or sterilization, except when medically necessary.
75. Catholic Charities does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Catholic Charities likely
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does not currently qualify as a “religious employer” under the exemption to the U.S. Government Mandate.
76. Catholic Charities is an affiliated corporation of the Diocese. The Diocese has direct oversight of the governance of Catholic Charities and the Bishop has direct oversight of the governance of Catholic Charities in his role as Chairman of the Membership Board of Catholic Charities. II. STATUTORY AND REGULATORY BACKGROUND
77. Plaintiffs are now at the end of a long-running regulatory saga, dating back to 2011, when the Government began its historically unprecedented violation of the core constitutional right to religious freedom. Since that time, the Government has bobbed and weaved around various legal challenges by, (i) saying whatever it needed to get by the moment, (ii) promising courts around the country on record that it would resolve the concerns that Plaintiffs have raised over the years, and (iii) inviting public comments and representing that it would take these comments seriously. But, despite all that it said, and all that has happened, the Government has now finalized a rule that respects nothing, resolves nothing, and attempts to confine what constitutes one’s practice of faith to the four corners, bricks and mortar of a house of worship.
A. Statutory Background 78. In March 2010, Congress enacted the Patient Protection and Affordable Care
Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the “Affordable Care Act” or the “Act”). The Affordable Care Act established many new requirements for “group health plan[s],” broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1),
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that “provide[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg91(a)(1).
79. As relevant here, the Act requires an employer’s group health plan to cover certain women’s “preventive care.” Specifically, it indicates that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” 42 U.S.C. § 300gg-13(a)(4). Because the Act prohibits “cost sharing requirements,” the health plan must pay for the full costs of these “preventive care” services without any deductible or co-payment.
80. “[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.” Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19, 2010) (“Interim Final Rules”); 42 U.S.C. § 18011. These so-called “grandfathered health plans do not have to meet the requirements” of the U.S. Government Mandate. 75 Fed. Reg. at 41,731. HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732.
81. Federal law provides several mechanisms to enforce the requirements of the Act, including the U.S. Government Mandate. For example:
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a. Under the Internal Revenue Code, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
b. Under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to a penalty of $100 a day per affected beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Affordable Care Act).
c. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700.
d. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act).
82. Several of the Act’s provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the “preventive care” required by § 300gg-13(a)(4) should exclude all abortion-related services.
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83. For example, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, prohibits certain agencies from discriminating against an institution based on that institution’s refusal to provide abortionrelated services. Specifically, it states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). The term “health care entity” is defined to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Id. § 507(d)(2) (emphasis added).
84. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as “budget reconciliation” that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed to adequately
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prohibit federal funding of abortion. In an attempt to address these concerns, President Barack Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
85. The Act, therefore, was passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
B. Regulatory Background – Defining “Preventive Care” and the Narrow Exemption 86. In a span of less than two years, Defendants promulgated the U.S. Government
Mandate, subverting the Act’s clear purpose to protect the rights of conscience. The U.S. Government Mandate immediately prompted intense criticism and controversy, in response to which the Government has undertaken various revisions. None of these revisions, however, alleviates the burden that the U.S. Government Mandate imposes on Plaintiffs’ religious beliefs. To the contrary, these revisions have resulted in a final rule that is significantly worse than the original one.
(1) The Original Mandate and Advance Notice of Proposed Rulemaking 87. On July 19, 2010, Defendants issued interim final rules addressing the statutory
requirement that group health plans provide coverage for women’s “preventive care.” 75 Fed. Reg. 41,726 (citing 42 U.S.C. § 300gg-13(a)(4)). Initially, the rules did not define “preventive care,” instead noting that “[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1, 2011.” Id. at 41,731.
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88. To develop the definition of “preventive care,” HHS outsourced its deliberations to the Institute of Medicine (“IOM”), a non-governmental “independent” organization. The IOM in turn created a “Committee on Preventive Services for Women,” composed of 16 members who were selected in secret without any public input. At least eight of the Committee members had founded, chaired, or worked with “pro-choice” advocacy groups (including five different Planned Parenthood entities) that have well-known political and ideological views, including strong animus toward Catholic teachings on abortion and contraception.
89. Unsurprisingly, the IOM Committee invited presentations from several “prochoice” groups, such as Planned Parenthood and the Guttmacher Institute (named for a former president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization. Instead, opponents were relegated to lining up for brief open-microphone sessions at the close of each meeting.
90. At the close of this process, on July 19, 2011, the IOM issued a final report recommending that “preventive care” for women be defined to include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity.” Inst. Of Med., Clinical Preventive Services for Women: Closing the Gaps,” at 218-219 (2011).
91. The extreme bias of the IOM process spurred one member of the Committee, Dr. Anthony Lo Sasso, to dissent from the final recommendation, writing: “[T]he committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a
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mix of objective and subjective determinations filtered through a lens of advocacy.” Id. at 232.
92. At a press briefing the next day, the chair of the IOM Committee fielded a question from a representative of the U.S. Conference of Catholic Bishops regarding the “coercive dynamic” of the U.S. Government Mandate, asking whether the Committee considered the “conscience rights” of those who would be forced to pay for coverage that they found objectionable on moral and religious grounds. In response, the chair illustrated her cavalier attitude toward the religious-liberty issue, stating bluntly: “[W]e did not take into account individual personal feelings.” See Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women, Press Briefing (July 20, 2011), available at http://www.iom .edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-the-Gaps.aspx. The chair later expressed concern to Congress about considering religious objections to the Mandate because to do so would risk a “slippery slope” that could occur by “opening up that door” to religious liberty. See Executive Overreach: The HHS Mandate Versus Religious Liberty: Hearing Before the H. Comm. On the Judiciary, 112th Cong. (2012) (testimony of Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women).
93. Less than two weeks after the IOM report, without pausing for notice and comment, HHS issued a press release on August 1, 2011, announcing that it would adopt the IOM’s definition of “preventive care,” including all “FDA-approved contraception methods and contraceptive counseling.” See U.S. Dept. of Health and Human Services, “Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost,” available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html. HHS ignored the religious, moral and ethical dimensions of the decision and the ideological bias of the IOM Committee
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and stated that it had “relied on independent physicians, nurses, scientists, and other experts” to reach a definition that was “based on scientific evidence.” Under the final “scientific” definition, the category of mandatory “preventive care” extends to “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See “Women’s Preventive Services: Required Health Plan Coverage Guidelines,” http://www.hrsa.gov/womensguidelines.
94. The Government’s definition of mandatory “preventive care” also includes abortion-inducing products. For example, the FDA has approved “emergency contraceptives” such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.
95. Shortly after announcing its definition of “preventive care,” the Government proposed a narrow exemption from the U.S. Government Mandate for a small category of “religious employers” that met all of the following four criteria: “(1) The inculcation of religious values is the purpose of the organization”; “(2) The organization primarily employs persons who share the religious tenets of the organization”; “(3) The organization serves primarily persons who share the religious tenets of the organization”; and “(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. at 46,626 (Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(iv)(B)).
96. As the Government itself admitted, this narrow exemption was intended to protect only “the unique relationship between a house of worship and its employees in
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ministerial positions.” Id. at 46,623. It provided no protection for religious universities, elementary and secondary schools, hospitals, and charitable organizations.
97. The sweeping nature of the U.S. Government Mandate was subject to widespread and withering criticism. Religious leaders from across the country protested that they should not be punished or considered less religious simply because they chose to live out their faith by serving needy members of the community who might not share their beliefs. As Cardinal Wuerl later wrote, “Never before has the government contested that institutions like Archbishop Carroll High School or Catholic University are religious. Who would? But HHS’s conception of what constitutes the practice of religion is so narrow that even Mother Teresa would not have qualified.”
98. Despite such pleas, the Government at first refused to reconsider its position. Instead, the Government “finalize[d], without change,” the narrow exemption as originally proposed. 77 Fed. Reg. at 8,729 (Feb. 15, 2012). At the same time, the Government announced that it would offer a “a one-year safe harbor from enforcement” for religious organizations that remained subject to the Mandate. Id. at 8,728. As noted by Cardinal Timothy Dolan, the “safe harbor” effectively gave religious groups “a year to figure out how to violate our consciences.”
99. A month later, under increasing public pressure, the Government issued an Advance Notice of Proposed Rulemaking (“ANPRM”) that, it claimed, set out a solution to the religious-liberty controversy created by the U.S. Government Mandate. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The ANPRM did not revoke the U.S. Government Mandate, and in fact reaffirmed the Government’s view at the time that the “religious employer” exemption would not be changed. Id. at 16,501-08. Instead, the ANPRM offered hypothetical “possible
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approaches” that would, in the Government’s view, somehow solve the religious-liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507. As the U.S. Conference of Catholic Bishops soon recognized, however, any semblance of relief offered by the ANPRM was illusory. Although it was designed to “create an appearance of moderation and compromise, it [did] not actually offer any change in the Administration’s earlier stated positions on mandated contraceptive coverage.” See Comments of U.S. Conference of Catholic Bishops, at 3 (May 15, 2012), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/comments-on-advancenotice-of-proposed-rulemaking-on-preventive-services-12-05-15.pdf.
(2) Plaintiffs’ First Lawsuit and the Government’s Promise of Non-Enforcement 100. Plaintiffs’ first lawsuit challenging the U.S. Government Mandate was
dismissed without prejudice based on the Government’s promises that it would never enforce the then-current regulations against Plaintiffs and the Government’s commitment to amend the regulations at issue to accommodate the concerns of entities with religious objections like Plaintiffs.
101. Specifically, Plaintiffs’ first lawsuit was filed on May 21, 2012 in the U.S. District Court for the Western District of Pennsylvania. Plaintiffs’ Complaint sought to enjoin the U.S. Government Mandate on the grounds that, among other things, it violated their rights of religious conscience under RFRA and the First Amendment. See Most Rev. Zubik, et al v. Sebelius et al., Docket No. 2:12-cv-00676 (W.D. Pa.). In response to this and similar litigation, the Government promised this Court that “these regulations almost certainly will never be enforced against plaintiffs.” (Gov’t Reply Br. in Supp. Mot. Dismiss, Dkt. 40 at 10).
102. In their motion to dismiss, Defendants represented that the Government “ha[d] initiated a rulemaking to amend the challenged regulations to accommodate religious
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organizations’ religious objections to providing contraceptive coverage, like plaintiffs.” (Gov’t Mem. in Supp. Mot. Dismiss, Dkt. 18 at 9); see also id. at 22-23 (“the forthcoming amendments are intended to address the very issue that plaintiffs raise here by establishing alternative means of providing contraceptive coverage without cost-sharing while further accommodating religious organizations’ religious objections to covering contraceptive services”).
103. Defendants asserted their “commitment” “to amend the regulations as they relate to organizations like plaintiffs” was demonstrated by their “initiation of the amendment process, and opportunities for plaintiffs to participate in that process.” (Gov’t Reply Br. in Supp. Mot. Dismiss, Dkt. 40 at 15).
104. Based on Defendants’ representations, this Court granted without prejudice the Government’s motion to dismiss for lack of standing and ripeness. See Most. Rev. Zubik v. Sebelius, No. 2:12-cv-00676, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012). The Court relied on “the clear and concrete steps that Defendants are taking to address the concerns of Plaintiffs[,]” as well as Defendants’ “commitment not to enforce the challenged regulations against Plaintiffs while accommodations are under consideration.” Id. at*1. The Court also found that certain Plaintiffs with grandfathered plans were not confronted with imminent enforcement. Id. at *17 and n.14.
(3) The Government’s Final Offer of an Empty “Accommodation” and Issuance of the “Final Rule”
105. On February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”), setting forth in further detail its proposal to “accommodate” the rights of Plaintiffs and other religious organizations. Contrary to the Government’s previous assurances, the NPRM adopted the proposals contained in the ANPRM.
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106. Despite opposition from the U.S. Conference of Catholic Bishops, Plaintiffs, and various other commenters, as described below, on June 28, 2013, the Government finalized the U.S. Government Mandate, adopting the core proposals in the NPRM. See 78 Fed. Reg. 39870 (July 2, 2013) (“Final Rule”).
107. The Final Rule makes three changes to the U.S. Government Mandate. As described below, none of these changes relieves the unlawful burdens placed on Plaintiffs and other religious organizations. Indeed, one of them significantly increases that burden by significantly increasing the number of religious organizations subject to the U.S. Government Mandate.
108. First, the Final Rule makes what the Government concedes to be a nonsubstantive, cosmetic change to the definition of “religious employer.” In particular, it eliminates the first three prongs of that definition, such that, under the new definition, an exempt “religious employer” is simply “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. 39874 (codified at 45 CFR § 147.131(a)). As the Government has admitted, this new definition does “not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” 78 Fed. Reg. 8456, 8461 (Feb. 6, 2013). Instead, it continues to “restrict[]the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders.” Id. In this respect, the Final Rule mirrors the intended scope of the original “religious employer” exemption, which focused on “the unique relationship between a house of worship and its employees in
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ministerial positions.” 76 Fed. Reg. at 46,623. Religious organizations that have a broader mission are still not, in the Government’s view, “religious employers.”
109. The “religious employer” exemption, moreover, creates an official, Government-favored category of religious groups that are exempt from the U.S. Government Mandate, while denying this favorable treatment to all other religious groups. The exemption applies only to those groups that are “refer to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.” This category includes only (i) “churches, their integrated auxiliaries, and conventions or associations of churches,” and (iii) “the exclusively religious activities of any religious order.” The IRS has adopted an intrusive 14-factor test to determine whether a group meets these qualifications. See Foundation of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009). Among these 14 factors is whether the group has “ a recognized creed and form of worship,” “a definite and distinct ecclesiastical government,” “a formal code of doctrine and discipline,” “a distinct religious history,” “an organization of ordained ministers” “a literature of its own,” “established places of worship,” “regular congregations, “regular religious services,” “Sunday schools for the religious instruction of the young,” and “schools for the preparation of its ministers.” Id. Not only do these factors favor some religious groups at the expense of others, but they also require the Government to make intrusive judgments regarding religious beliefs, practices, and organizational features to determine which groups fall into the favored category. Similar problems arise in evaluating whether an organization is an “integrated auxiliary” under Treasury Regulations that assess, among other things whether an organization “shares common religious doctrines, principles, disciplines, or practices with a church,” or “receives more than 50% of its support” from nonchurch sources. See 26 C.F.R. § 1.6033-2(h).
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110. Second, the Final Rule establishes an illusory “accommodation” for certain nonexempt objecting religious entities that qualify as “eligible organizations.” To qualify as an “eligible organization,” a religious entity must (1) “oppose[] providing coverage for some or all of [the] contraceptive services,” (2) be “organized and operate[] as a non-profit entity”; (3) “hold[] itself out as a religious organization,” and (4) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance company or, if the religious organization is self-insured, to its TPA. 26 CFR § 54.9816-2713A(a). The provision of this self-certification then automatically requires the insurance issuer or TPA to provide or arrange “payments for contraceptive services” for the organization’s employees, without imposing any “cost-sharing requirements (such as a copayment, coinsurance, or a deductible).” Id. § 54.9816-2713A(b)(2), (c)(2). The objectionable coverage, moreover, is directly tied to the organization’s health plan, lasting only as long as the employee remains on that plan. See 29 CFR § 2590.715-2713 45 CFR § 147.131(c)(2)(i)(B). In addition, selfinsured organizations are prohibited from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure contraceptive services. 26 CFR § 54.9815–2713.
111. This so-called “accommodation” fails to relieve the burden on religious organizations. Under the original version of the U.S. Government Mandate, a nonexempt religious organization’s decision to offer a group health plan resulted in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling. Under the Final Rule, a nonexempt religious organization’s decision to offer a group health plan still results in the provision of coverage—now in the form of “payments”—for abortion-
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inducing products, contraception, sterilization, and related counseling. Id. § 54.98162713A(b)-(c).
112. In both scenarios, Plaintiffs’ decision to provide a group health plan triggers the provision of “free” contraceptive coverage to their employees in a manner contrary to Plaintiffs’ beliefs. The provision of the objectionable products and services is directly tied to Plaintiffs’ insurance policies, as the objectionable “payments” are available only so long as an employee is on the organization’s health plan. See 29 CFR § 2590.715-2713 (for self-insured employers, the TPA “will provide or arrange separate payments for contraceptive services . . . for so long as [employees] are enrolled in [their] group health plan”); 45 CFR § 147.131(c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan”).
113. For self-insured organizations, like Plaintiffs, the self-certification constitutes the religious organization’s “designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (emphasis added). Thus, employer health plans offered by nonexempt religious organizations are the vehicle by which “free” abortion-inducing products, contraception, sterilization, and related counseling are delivered to the organizations’ employees.
114. This shell game does not address Plaintiffs’ fundamental religious objection to improperly facilitating access to the objectionable products and services. As before, Plaintiffs are coerced, through threats of crippling fines and other pressure, into facilitating access to contraception, abortion-inducing products, sterilization, and related counseling for their employees, contrary to their sincerely-held religious beliefs.
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115. The so-called “accommodation,” moreover, requires Plaintiffs to cooperate in the provision of objectionable coverage in other ways as well. For example, in order to be eligible for the so-called “accommodation,” Catholic Charities must provide a “certification” to Plaintiffs’ TPA setting forth its religious objections to the U.S. Government Mandate. The provision of this “certification,” in turn, automatically triggers an obligation on the part of the TPA to obtain the objectionable coverage for Catholic Charities’ employees. A religious organization’s self-certification, therefore, is a trigger and but-for cause of the objectionable coverage.
116. Moreover, the Bishop and Diocese are forced to facilitate coverage for the objectionable services through accommodated entities currently participating in the Catholic Benefits Trust, such as Catholic Charities.
117. The Bishop oversees the governance of Catholic Charities in his role as Chairman of the Membership Board of Catholic Charities, and is forced to facilitate coverage of the objectionable services when Catholic Charities, an organization which he oversees, provides the “certification” to Plaintiffs’ TPA. That “certification” triggers an obligation on the part of the TPA to obtain the objectionable coverage for Catholic Charities’ employees.
118. The Diocese is also forced to facilitate coverage for the objectionable services in that it oversees the governance of Catholic Charities and offers health coverage to Catholic Charities, through the Trust.
119. Additionally, as pointed out in Plaintiffs’ public comments and the expert report submitted with the comments, described below, the U.S. Government Mandate requires religious organizations such as Plaintiffs to subsidize the objectionable services.
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120. For organizations that procure insurance through a separate insurance provider, the Government asserts that the cost of the objectionable products and services will be “cost neutral” and, therefore, that these organizations will not actually be paying for it, notwithstanding the fact that the organizations’ premiums are the only source of funding that their insurance providers will receive for the objectionable products and services.
121. The Government’s “cost-neutral” assertion, however, is based on smoke and mirrors. It rests on the unproven (and implausible) assumption that cost “savings” from “fewer childbirths” will be at least as large as the direct costs of paying for contraceptive products and services and the costs of administering individual policies. 78 Fed. Reg. at 8,463. Some employees, however, will choose not to use contraception notwithstanding the U.S. Government Mandate. Others would use contraception regardless of whether it is being paid for by an insurance company. And yet others will shift from less expensive to more expensive products once coverage is mandated and cost-sharing is prohibited. Consequently, there can be no assurance that cost “savings” from “fewer childbirths” will offset the cost of providing contraceptive services.
122. More importantly, even if the Government’s “cost-neutral” assertion were true, it is irrelevant. The so-called “accommodation” is nothing more than a shell game. Premiums previously paid by the objecting employers to cover, for example, “childbirths,” will now be redirected to pay for contraceptive products and services. Thus, the objecting employer is still required to pay for the objectionable products and services.
123. For self-insured organizations, like Plaintiffs, the Government’s “cost-neutral” assumption is likewise implausible. The Government asserts that TPAs required to provide or procure the objectionable products and services will be compensated by reductions in user
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fees that they otherwise would pay for participating in federally-facilitated health exchanges. See 78 Fed. Reg. 39,882. Those TPAs that are willing to participate in this regime are likely to increase fees charged to the self-insured organizations.
124. Either way, as with insured plans, self-insured organizations, like Plaintiffs, likewise will be required to subsidize contraceptive products and services notwithstanding the so-called “accommodation.”
125. For all of these reasons, the U.S. Government Mandate continues to require Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related education and counseling, in violation of their sincerely-held religious beliefs.
126. Third, the Final Rule actually increases the number of religious organizations that are subject to the U.S. Government Mandate. Under the Government’s initial “religious employer” definition, if a nonexempt religious organization “provided health coverage for its employees through” a plan offered by a separate, “affiliated” organization that was “exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.” 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012).
127. For example, the Diocese, through the Catholic Benefits Trust operates a selfinsurance plan that covers not only the Diocese itself, but other affiliated Catholic organizations within the Diocese. Under the religious employer exemption that was originally proposed, if the Diocese was an exempt “religious employer,” then these other organizations under the Diocesan plan would have received the benefit of that exemption, regardless of whether they independently qualified as a “religious employer,” since they could continue to
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participate in the plan offered by the Diocese. These affiliated organizations, therefore, could benefit from the Diocese’s exemption even if they, themselves, could not meet the Government’s unprecedentedly narrow definition of “religious employer.”
128. The Final Rule eliminates this safeguard. Instead, it provides that “each employer” must “independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respect to its employees and their covered dependents.” 78 Fed. Reg. 39,886. See also 78 Fed. Reg. at 8467 (NPRM).
129. In this respect, the U.S. Government Mandate seeks to divide the Catholic Church. The Church’s faith in action, carried out through its charitable and educational arms, is every bit as central to the Church’s religious mission as is the administration of the Sacraments. In the words of Pope Benedict, “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Yet the U.S. Government Mandate seeks to separate these consubstantial aspects of the Catholic faith, treating one as “religious” and the other as not. The U.S. Government Mandate therefore deeply intrudes into internal Church governance.
130. Moreover, since nonexempt organizations including Plaintiff Catholic Charities are part of the Diocese’s Trust, the Diocese, as the entity which determines which organizations will participate in the Trust, is now required by the U.S. Government Mandate to do one of two things: (1) provide the employees of these organizations with a separate insurance policy that covers abortion-inducing drugs, contraception, sterilization, and related counseling or (2) expel these organizations from the Trust and thereby force these organizations to enter into an arrangement with another insurance provider that will, in turn,
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provide the objectionable coverage. Either alternative violates the Diocese’s sincerely-held religious beliefs, and will jeopardize the ability of the Trust to continue to operate in its current fashion of providing affordable, quality health insurance.
131. Expelling nonexempt organizations from the Catholic Benefits Trust would result in increased costs for the Diocese and the expelled organizations, including Catholic Charities, because each organization would be pooling financial resources in a smaller group.
132. In sum, the Final Rule not only fails to alleviate the burden that the U.S. Government Mandate imposes on Plaintiffs’ religious beliefs; it in fact makes that burden significantly worse by increasing the number of religious organizations that are subject to the U.S. Government Mandate and jeopardizes the continued operation of Plaintiffs’ health plans. The U.S. Government Mandate, therefore, requires Plaintiffs to act contrary to their sincerelyheld religious beliefs.
(4) The Government Ignored Opposition to the Proposed Rule 133. The NPRM, like the Government’s previous proposals, was once again met
with strenuous opposition, including over 400,000 comments. For example, the U.S. Conference of Catholic Bishops stated that “the ‘accommodation’ still requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage. Such organizations and their employees remain deprived of their right to live and work under a health plan consonant with their explicit religious beliefs and commitments.” Comments of U.S. Conference of Catholic Bishop, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-Comments-320-final.pdf.
134. Additionally, the Diocese submitted public comments on the NPRM on April 8, 2013. Public Comments and Expert Opinion submitted by the Roman Catholic Diocese of
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Pittsburgh, (April 8, 2013), available at http://www.regulations.gov/#!documentDetail;D=CMS-2012-0031-160262.
135. In its public comments, the Diocese asserted that the proposed “religious employer” exemption draws indefensible and unconstitutional distinctions between equally religious Diocesan affiliates. Specifically, the exemption uses corporate formalities to restrict religion to worship alone, when religious service is an essential part of the Catholic faith. Id.
136. Additionally, the Diocese explained that the now-final exemption will needlessly increase insurance costs. The exemption could require the Diocese to alter the Catholic Benefits Trust since it will no longer be able to insure nonexempt entities. Expelling nonexempt entities would decrease the pooled financial resources which currently enable the Diocese, through the Catholic Benefits Trust, to offer comprehensive health coverage to its employees and to employees of affiliated religious entities, including Plaintiff Catholic Charities. Id.
137. The Diocese asserted that the proposed “accommodation” violates its religious beliefs by requiring accommodated entities to pay for and facilitate immoral acts. Action by these entities will trigger the U.S. Government Mandate requirement to provide the objectionable coverage, including: (i) signing the self-certification form that triggers the TPA’s duties to provide the coverage; (ii) providing the names of covered individuals that the TPA will contact for coverage; and (iii) providing the self-certification of their objections to their TPA will trigger coverage for the objectionable services. Id.
138. The Diocese demonstrated that the proposed “accommodation” will not, in practice, work as currently written. The Diocese engaged Dr. Scott E. Harrington, the Alan B. Miller Professor in Health Care Management, Insurance and Risk Management, and Business
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Economics and Public Policy at the Wharton School of the University of Pennsylvania, a renowned healthcare economist, to determine how the proposed rule will work.
139. Dr. Harrington’s expert opinion detailed that the proposed rule, in application: (i) will likely make obtaining health insurance more costly for both fully-insured and selfinsured eligible organizations; (ii) will require fully-insured eligible organizations to directly fund coverage of the objectionable services; (iii) puts in place a regulatory scheme which will limit the insurance market available to self-insured eligible organizations; and (iv) on its face requires self-insured eligible organizations to facilitate coverage without funding the objectionable services, but in application may result in these organizations funding such services as it may be difficult if not impossible to ensure that administrative fees paid by these organizations are not contributing to such coverage. Id.
140. The Diocese offered solutions on how the Government could protect the Plaintiffs’ religious liberty with revisions to the proposed rule. The Diocese advanced two proposals: (i) The Departments should broaden the religious employer exemption to include organizations such as Catholic Charities and its Free Health Care Center, which do good, religious works under the guidance and leadership of Bishop Zubik; or (ii) The Departments should delay enforcement of any new rule so that there is time to adjudicate the substantive rights of religious organizations, like the Diocese and Catholic Charities. Id.
141. Thus, despite all of its promises and Plaintiffs’ representations that the Government had not in fact fixed the problem, the Government adopted the core proposals in the NPRM and issued the Final Rule.
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III. THE U.S. GOVERNMENT MANDATE IMPOSES A SUBSTANTIAL BURDEN ON PLAINTIFFS’ RELIGIOUS LIBERTY
A. The U.S. Government Mandate Substantially Burdens Plaintiffs’ Religious Beliefs 142. Responding to the U.S. Government Mandate, Cardinal Wuerl has declared
that “what is at stake here is a question of human freedom.” And indeed it is. Since the founding of this country, our law and society have recognized that individuals and institutions are entitled to freedom of conscience and religious practice. Absent a compelling reason, no government authority may compel any group or individual to act contrary to their religious beliefs. As noted by Thomas Jefferson, “[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.”
143. The U.S. Government Mandate violates Plaintiffs’ rights of conscience by forcing them to participate in an employer-based scheme to provide insurance coverage to which they strenuously object on moral and religious grounds.
144. It is a core tenet of Plaintiffs’ religion that abortion, contraception, and sterilization are serious moral wrongs.
145. Plaintiffs’ Catholic beliefs therefore prohibit them from providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization.
146. As a corollary, Plaintiffs’ Catholic beliefs prohibit them contracting with an insurance company or TPA that will, as a result, provide or procure the objectionable services for Plaintiffs’ employees.
147. Moreover, the manner in which the U.S. Government Mandate achieves the cost-savings necessary for it to operate effectively is predicated on the Government’s prediction of a decrease in the number of births due to a predicted increase in the number of
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individuals utilizing the objectionable services. The U.S. Government Mandate thus forces Plaintiffs to not only directly facilitate access to objectionable products and services, but also to participate in a Government scheme specifically designed to thwart the transmission of life contrary to Plaintiffs’ religious beliefs.
148. Plaintiffs’ beliefs are deeply and sincerely held. 149. The U.S. Government Mandate, therefore, requires Plaintiffs to do precisely what their sincerely-held religious beliefs prohibit—provide, pay for, and/or facilitate access to the objectionable services or else incur crippling sanctions. 150. The U.S. Government Mandate therefore imposes a substantial burden on Plaintiffs’ religious beliefs. (1) The Narrow “Religious Employer” Exemption 151. The U.S. Government Mandate’s exemption for “religious employers” does not alleviate the burden. 152. The “religious employers” exemption likely does not apply to Plaintiff Catholic Charities. 153. Additionally, the “religious employer” exemption does not work as the Government claims it will and instead seeks to divide the Catholic church. For example, the exemption creates artificial distinctions between the elementary schools within the Diocese. The majority of the elementary schools are run directly through a parish and therefore, are exempt from the U.S. Government Mandate. However, certain elementary schools that were run directly by parishes have consolidated in the past few years in order to be more costeffective and offer better education. These consolidated elementary schools are separately incorporated and are not run directly through a parish and therefore, likely are not exempt from the U.S. Government Mandate. These consolidated elementary schools adhere to the
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same curriculum as those schools run directly through parishes, and are similarly under the supervision of the Bishop and Diocese. In many instances, the consolidated elementary schools use the same teachers and buildings as prior to consolidation, when the schools were run directly by a parish. The only difference between the consolidated elementary schools and those schools run directly through parishes is a formalistic one: corporate structure.
154. The Government relies on this formalistic distinction in determining that the elementary schools run through a parish are “religious enough” to be exempt, while the consolidated elementary schools likely will not be exempt. There is no rational basis for treating these schools and their employees differently based merely on corporate structure.
(2) The So-Called “Accommodation” 155. Notwithstanding the so-called “accommodation,” Plaintiffs are still required to
provide, pay for, and/or facilitate access to the objectionable products and services. 156. Plaintiffs’ Catholic beliefs do not simply prohibit them from using or directly
paying for the objectionable coverage. Their beliefs also prohibit them from facilitating access to the objectionable products and services in the manner required by the U.S. Government Mandate.
157. Starting January 1, 2014, Catholic Charities will be forced to facilitate coverage of the objectionable services for their employees. Moreover, the Bishop and the Diocese will be facilitating coverage of the objectionable services by operating and overseeing the Catholic Benefits Trust, which sponsors health plans for accommodated entities forced to comply with the U.S. Government Mandate, like Catholic Charities. The Bishop will also be forced to facilitate coverage of the objectionable services in his role as Chairman of the Membership Board of Catholic Charities.
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158. The Bishop is facilitating coverage of the objectionable services for accommodated entities in his legal role as Trustee of the Diocese and also in his role as good shepherd and spiritual leader of the Catholic faithful in Southwestern Pennsylvania. The Bishop is forced to appoint a Director to the Board of the Catholic Benefits Trust with the knowledge that the Director will facilitate coverage for the objectionable services for the employees of accommodated entities, such as Plaintiff Catholic Charities.
159. Although the Diocese is a “religious employer,” the U.S. Government Mandate still burdens its sincerely-held religious beliefs by requiring it either to (1) provide Plaintiff Catholic Charities and other affiliated Catholic organizations with insurance coverage for the objectionable services, (2) or else expel these affiliates from its Trust, thereby forcing them into an arrangement with another insurance provider that will, in turn, provide or procure the objectionable products and services. Expelling these accommodated entities would require significant restructuring of the Catholic Benefits Trust and would affect the pooling of resources which enables the Diocese to offer comprehensive and affordable health benefits.
160. Both of these alternatives violate the Diocese’s sincerely-held religious beliefs. 161. In addition to offering coverage for both exempt and accommodated entities, currently, the Diocese, through the Catholic Benefits Trust, provides both grandfathered and non-grandfathered health plans depending on the entity as issue. The U.S. Government Mandate imposes significant administrative burdens on the Diocese by requiring it to: (1) offer coverage for exempt entities, which offer contraceptive coverage when medically necessary as is consistent with Catholic beliefs; (2) offer coverage for accommodated entities which then have to comply with the U.S. Government Mandate in violation of Catholic beliefs; (3) maintain grandfathered status for accommodated entities to prevent these entities
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being subject to the U.S. Government Mandate. Administratively, the burdens of this coverage scheme are significant.
162. The so-called “accommodation” does not alleviate the burden on Plaintiffs’ sincerely-held religious beliefs.
163. Finally, the Plaintiffs cannot avoid the U.S. Government Mandate without incurring crippling fines. If they eliminate their employee health plans, they could be subject to annual fines of $2,000 per full-time employee. If Catholic Charities keeps its health plans but refuse to provide or facilitate the objectionable coverage, it is subject to daily fines of $100 a day per affected beneficiary. The Diocese, as the Beneficial Owner of the Pittsburgh series of the Catholic Benefits Trust, could be held liable for any fines incurred by the Trust as a result of noncompliance with the U.S. Government Mandate. The fines therefore coerce Plaintiffs into violating their religious beliefs.
164. In short, while the President claims to have “found a solution that works for everyone” and that ensures that “religious liberty will be protected,” his promised “accommodation” does neither. Unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiffs’ religious beliefs.
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability 165. The U.S. Government Mandate is not a neutral law of general applicability. It
offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing products, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with Plaintiffs’ religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
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166. For example, the U.S. Government Mandate exempts all “grandfathered” plans from its requirements, thus excluding tens of millions of people from the mandated coverage. As the government has admitted, while the numbers are expected to diminish over time, “98 million individuals will be enrolled in grandfathered group health plans in 2013.” 75 Fed. Reg. 41726,41732 (July 19, 2010). Elsewhere, the government has put the number at 87 million. See “Keeping the Health Plan You Have” (June 14, 2010), http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html. And according to one district court last year, “191 million Americans belong[ed] to plans which may be grandfathered under the ACA.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1291 (D. Colo. 2012).
167. Similarly, small employers (i.e., those with fewer than 50 employees) are exempt from certain enforcement mechanisms to compel compliance with the U.S. Government Mandate. See 26 U.S.C. §§ 4980D(d) (exempting certain small employers from penalties imposed for failing to provide the objectionable services), 4980H(a) (exempting small employers from the assessable payment for failure to provide health coverage).
168. In addition, the U.S. Government Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the Internal Revenue Code. The Government cannot justify its protection of the religiousconscience rights of the narrow category of exempt “religious employers,” but not of Plaintiffs and other religious organizations that remain subject to the U.S. Government Mandate.
169. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain
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Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long supported abortion rights and criticized Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America 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.” In addition, the Mandate was modeled on a California law that was motivated by discriminatory intent against religious groups that oppose contraception.
170. Consequently, Plaintiffs allege that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest 171. The U.S. Government Mandate is not narrowly tailored to serve a compelling
governmental interest. 172. The Government has no compelling interest in forcing Plaintiffs to violate their
sincerely-held religious beliefs by requiring them to participate in a scheme for the provision of abortion-inducing products, sterilization, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The
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U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plaintiffs do inhibits any individual from exercising that right.
173. Even assuming the interest was compelling, the Government has numerous alternative means of furthering that interest without forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable services itself through other programs established by a duly enacted law. Or, at a minimum, it could have created a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
174. The U.S. Government Mandate, moreover, would simultaneously undermine both religious freedom—a fundamental right enshrined in the U.S. Constitution—and access to the wide variety of social and educational services that Plaintiffs provide. The Diocese educates inner-city children whose families want an alternative to the public school system and Catholic Charities provides a range of social services to the citizens of Western Pennsylvania. As President Obama acknowledged in his announcement of February 10, 2012, religious organizations like Plaintiffs do “more good for a community than a government program ever could.” The U.S. Government Mandate, however, puts these good works in jeopardy.
175. That is unconscionable. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the U.S. Government Mandate.
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IV. THE U.S. GOVERNMENT MANDATE THREATENS PLAINTIFFS WITH IMMINENT INJURY THAT SHOULD BE REMEDIED BY A COURT 176. The U.S. Government Mandate is causing serious, ongoing hardship to
Plaintiffs that merits relief now. 177. On June 28, 2013, Defendants finalized the U.S. Government Mandate,
including the narrow “religious employer” exemption and the so-called “accommodation” proposed in the NPRM. By the terms of the Final Rule, Plaintiffs must comply with the U.S. Government Mandate by the beginning of the next plan year on or after January 1, 2014.
178. Plaintiffs’ next plan year begins on January 1, 2014. 179. Defendants have indicated that they intend to enforce the essential provisions of the U.S. Government Mandate that impose a substantial burden on Plaintiffs’ rights for Plaintiffs’ next plan year. Consequently, absent the relief sought herein, Plaintiffs will be required to provide, pay for, and/or facilitate access to contraception, abortion-inducing products, sterilization, and related education and counseling, in violation of their sincerelyheld religious beliefs. 180. The U.S. Government Mandate is also harming Plaintiffs in other ways. 181. Health plans do not take shape overnight. A number of analyses, negotiations, and decisions must occur each year before Plaintiffs can offer a health benefits package to their employees. For example, an employer that is self-insured—like the Diocese—after consulting with its actuaries, must negotiate with its TPA. 182. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year at least one year before the plan year begins. For example, the Diocese finalizes rates for the next plan year in early Fall. This means that in September 2012, the Diocese began projecting costs for its 2013-2014 fiscal year, which
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includes the plan year that begins on January 1, 2014. The multiple levels of uncertainty surrounding the U.S. Government Mandate have made this already lengthy process even more complex and promulgation of the Final Rule on June 28, 2013 has forced this complex process into an extremely compressed timeframe.
183. Restructuring the Catholic Benefits Trust to expel nonexempt entities would require significant lead time.
184. In addition, if Catholic Charities does not comply with the U.S. Government Mandate, it may be subject to government fines and penalties, which will in turn affect the Diocese, which is ultimately liable for fines incurred by entities within the Pittsburgh series of the Trust. Plaintiffs require time to budget for any such additional expenses.
185. Catholic Charities and its Membership Board, of which the Bishop is Chairman, is presently being forced to consider whether to: (1) drop its employee health plan; (2) offer coverage for the objectionable services in violation of Catholic beliefs; or (3) incur penalties for refusing to self-certify and offer the objectionable coverage.
186. The U.S. Government Mandate and its uncertain legality, moreover, have been undermining Catholic Charities’ ability to hire and retain employees since August 2011. Benefits is one of the biggest attractions for employees of Catholic Charities, thus, if forced to drop its benefits plan, Catholic Charities is likely to lose competitive advantage in the labor market.
187. Additionally, the U.S. Government Mandate will impact donations in that a significant numbers of donors give to Catholic Charities because of its Catholic mission and will no longer donate if Catholic Charities is forced to stray from that mission by providing coverage for the objectionable services.
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188. Plaintiffs therefore need judicial relief now in order to prevent the serious, ongoing harm that the U.S. Government Mandate is already imposing on them.
V. CAUSES OF ACTION COUNT I
Substantial Burden on Religious Exercise in Violation of RFRA
189. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
190. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest.
191. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise.
192. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States.
193. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to products, services, practices, and speech that are contrary to their religious beliefs.
194. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion.
195. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
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196. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
197. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
198. Plaintiffs have no adequate remedy at law. 199. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 200. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 201. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 202. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 203. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs. 204. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion. 205. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling.
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206. The U.S. Government Mandate is not a neutral law of general applicability because it was passed with discriminatory intent.
207. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech, free association, and freedom from excessive government entanglement with religion.
208. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
209. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
210. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiffs’ religious exercise in violation of the Free Exercise Clause of the First Amendment.
211. Plaintiffs have no adequate remedy at law. 212. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III Compelled Speech in Violation of the Free Speech Clause of the First Amendment 213. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 214. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 215. The First Amendment protects organizations as well as individuals against compelled speech. 216. Expenditures are a form of speech protected by the First Amendment.
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217. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious beliefs.
218. The U.S. Government Mandate would compel Plaintiffs to provide health care plans to their employees that include or facilitate access to products and services that violate their religious beliefs.
219. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these objectionable products and services.
220. The U.S. Government Mandate would compel Plaintiffs to issue a certification of its beliefs that, in turn, would result in the provision of objectionable products and services to Plaintiffs’ employees.
221. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs, and compelling Plaintiffs to engage in speech that will result in the provision of objectionable products and services to Plaintiffs’ employees.
222. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
223. The U.S. Government Mandate furthers no compelling governmental interest. 224. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 225. Plaintiffs have no adequate remedy at law. 226. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
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COUNT IV Prohibition of Speech in Violation of the First Amendment 227. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 228. The First Amendment protects the freedom of speech, including the right of religious groups to speak out to persuade others to refrain from engaging in conduct that may be considered immoral. 229. The U.S. Government Mandate violates the First Amendment freedom of speech by imposing a gag order that prohibits Plaintiffs from speaking out in any way that might “influence,” “directly or indirectly,” the decision of a TPA to provide or procure contraceptive products and services to Plaintiffs’ employees. 230. Plaintiffs have no adequate remedy at law. 231. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V Official “Church” Favoritism and Excessive Entanglement with Religion
in Violation of the Establishment Clause of the First Amendment 232. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 233. The Establishment Clause of the First Amendment prohibits the Government from adopting an official definition of a “religious employer” that favors some religious groups while excluding others. 234. The Establishment Clause also prohibits the Government from becoming excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices,
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and organizational features to determine whether they meet the Government’s favored definition.
235. The “religious employer” exemption violates the Establishment Clause in two ways.
236. First, it favors some religious groups over others by creating an official definition of “religious employers.” Religious groups that meet the Government’s official definition receive favorable treatment in the form of an exemption from the Mandate, while other religious groups do not.
237. Second, even if it were permissible for the Government to favor some religious groups over others, the “religious employer” exemption would still violate the Establishment Clause because it requires the Government to determine whether groups qualify as “religious employers” based on intrusive judgments about their beliefs, practices, and organizational features. The exemption turns on an intrusive 14-factor test to determine whether a group meets the requirements of section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. These 14 factors probe into matters such as whether a religious group has “a distinct religious history” or “a recognized creed and form of worship.” But it is not the Government’s place to determine whether a group’s religious history is “distinct,” or whether the group’s “creed and form of worship” are “recognized.” By directing the Government to partake of such inquiries, the “religious employer” exemption runs afoul of the Establishment Clause prohibition on excessive entanglement with religion. Similar problems arise in evaluating whether an organization is an “integrated auxiliary,” an inquiry governed by Treasury Regulations that assesses, among other things whether an organization “shares
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common religious doctrines, principles, disciplines, or practices with a church,” or “receives more than 50% of its support” from non-church sources. See 26 C.F.R. § 1.6033-2(h).
238. Plaintiffs have no adequate remedy at law. 239. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Interference in Matters of Internal Church Governance in Violation of
the Religion Clauses of the First Amendment 240. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 241. The Free Exercise Clause and Establishment Clause and the Religious Freedom Restoration Act protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. 242. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine. 243. Under these Clauses, the Government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself. 244. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 245. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices.
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246. Plaintiffs have abided and must continue to abide by the decision of the Catholic Church on these issues.
247. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views.
248. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortion, sterilization, or contraception.
249. The Diocese has further made the internal decision that its affiliated religious entities, including Catholic Charities, should offer their employees health-insurance coverage through the Catholic Benefits Trust, which allows the Diocese to ensure that these affiliates do not offer coverage for services that are contrary to Catholic teaching.
250. The U.S. Government Mandate interferes with Plaintiffs’ internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic beliefs.
251. The U.S. Government Mandate’s interference with Plaintiffs’ internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
252. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiffs in a manner that affects Plaintiffs’ faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act.
253. Plaintiffs have no adequate remedy at law.
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254. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Illegal Action in Violation of the APA 255. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 256. The APA requires that all Government agency action, findings, and conclusions be “in accordance with law.” 257. The U.S. Government Mandate, its exemption for “religious employers,” and its so-called “accommodation” for “eligible” religious organizations are illegal and therefore in violation of the APA. 258. The Weldon Amendment states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). 259. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans that include coverage for abortion-inducing products, sterilization, contraception, or related education and counseling should be required to provide such plans.
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260. The U.S. Government Mandate requires employer-based health plans to provide coverage for abortion-inducing products, contraception, sterilization, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
261. The U.S. Government Mandate violates RFRA. 262. The U.S. Government Mandate violates the First Amendment. 263. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 264. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 265. Plaintiffs have no adequate remedy at law. 266. Defendants’ failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII Erroneous Interpretation of the Exemption with Respect to Multi-Employer Plans
267. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
268. The U.S. Government Mandate explicitly exempts “group health plan[s] established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer)” from “any requirement to cover contraceptive services.” 45 C.F.R. § 147.131(a).
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269. In the ANPRM, Defendants acknowledged that the religious employer exemption was “available to religious employers in a variety of arrangements.” 77 Fed. Reg. at 16,502.
270. Specifically, Defendants indicated that a nonexempt entity could “provide[] health coverage for its employees through” a plan offered by a separate, “affiliated” organization that is a “distinct common-law employer.” Id.
271. In such a situation, Defendants stated that if the “affiliated” organization was “exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.” Id.
272. This reading is consistent with the text of the regulation, which by its plain terms exempts “group health plan[s]” so long as they are “established or maintained by a religious employer.”
273. Nonetheless, when issuing the Final Rule, the Defendants reversed course, rejecting a “plan-based approach” and adopting an “employer-by-employer approach” whereby “each employer [must] independently meet the definition of religious employer . . . in order to avail itself of the exemption.” 78 Fed. Reg. at 39,886.
274. An employer-based approach contradicts the plain text of the regulation, which exempts “group health plan[s],” not individual employers.
275. The Diocese meets the U.S. Government Mandate’s definition of a religious employer, and therefore, the group health plan it has “established or maintained” is exempt from providing coverage for abortion-inducing products, sterilization, contraception, and related education and counseling.
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276. The Defendants erroneous interpretation of the religious employer exemption, however, precludes the Diocese’s affiliated entities, including Plaintiff Catholic Charities, from obtaining the benefit of the exemption by participating in the exempt group health plan established and maintained by the Diocese.
277. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
278. Plaintiffs have no adequate remedy at law. 279. Defendants’ erroneous interpretation imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was
promulgated in violation of the APA; 4. In the alternative, enter a declaratory judgment that Defendants have
erroneously interpreted the scope of the religious employer exemption, and that nonexempt organizations may obtain the benefit of the religious employer exemption if they provide insurance through a group health plan established and maintained by a religious employer. 5. Enter an injunction prohibiting the Defendants from enforcing the U.S.
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Government Mandate against Plaintiffs;
6. Enter an order vacating the U.S. Government Mandate;
7. Award Plaintiffs attorneys’ and expert fees under 42 U.S.C. § 1988; and
8. Award all other relief as the Court may deem just and proper.
Respectfully submitted, this the 8th day of October, 2013.
_/s/ Paul M. Pohl_______________________ Paul M. Pohl (PA ID No. 21625) John D. Goetz (PA ID No. 47759) Leon F. DeJulius, Jr. (PA ID No. 90383) Ira M. Karoll (PA ID No. 310762) Mary Pat Stahler (PA ID No. 309772) JONES DAY 500 Grant Street – Suite 4500 Pittsburgh, PA 15219 (412) 391-3939 (412) 394-7959 (fax)
Counsel for Plaintiffs Most Reverend David A. Zubik, The Roman Catholic Diocese of Pittsburgh, and Catholic Charities of the Diocese of Pittsburgh, Inc.
Rita Ferko Joyce (PA ID No. 21918) DIOCESE OF PITTSBURGH 111 Blvd. of the Allies Pittsburgh, PA 15222 (412) 456-3126 (412) 456-3183 (fax)
Counsel for Plaintiffs Most Reverend David A. Zubik and The Roman Catholic Diocese of Pittsburgh
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 Case 2:13-cv-01459-AJS Document 42 Filed 11/07/13 Page 1 of 1

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


MOST REVEREND DAVID A. ZUBIK, Bishop ofthe Roman Catholic Diocese of Pittsburgh, as Trustee ofthe Roman Catholic Diocese ofPittsburgh, a Charitable Trust, ET AL.,

13cv1459 iELECTRONICALLY FILED

Plaintiffs,

v.

KATHLEEN SEBELIUS, In Her Official Capacity as Secretary ofthe Us. Department ofHealth and Human Services, ET AL.,

Defendants.
i
ORDER RE: MOTION FOR PROTECTIVE ORDER (Doc. No. 39)

Upon consideration of Defendants' Motion for a Protective Order (Doc. No. 39) and Plaintiffs' Opposition thereto (Doc. No. 40),
IT IS ORDERED that Defendants' Motion is granted in part and denied in part. At Defendants' election, Shawn Braxton shall be deposed on November 8, 2013, as noticed, or she shall appear and testify at the upcoming Preliminary Injunction Hearing of November 12,2013.

BY THE COURT:

 
 Case 2:13-cv-01459-AJS Document 74 Filed 11/20/13 Page 1 of 4

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

MOST REVEREND DAVID A. ZUBIK, Bishop of the Roman Catholic Diocese of Pittsburgh, as Trustee of the Roman Catholic Diocese of Pittsburgh, a Charitable Trust, ET AL.,
Plaintiffs,

13cv1459 ELECTRONICALLY FILED

v.

KATHLEEN SEBELIUS, In Her Official Capacity as Secretary of the U.S. Department of Health and Human Services, ET AL.,

Defendants.

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

MOST REVEREND LAWRENCE T. PERSICO, Bishop of the Roman Catholic Diocese of Erie, as Trustee of the Roman Catholic Diocese of Erie, a Charitable Trust, ET AL.
Plaintiffs,

13cv0303 Erie ELECTRONICALLY FILED

v.

KATHLEEN SEBELIUS, In Her Official Capacity as Secretary of the U.S. Department of Health and Human Services, ET AL.,

Defendants.

MEMORANDUM ORDER DENYING MOTIONS TO STRIKE CERTIFICATION (13-cv-1459 AT DOC. NO. 51; 13-cv-303, AT DOC. NO. 50)
Before the Court are Plaintiffs’ Motions to Strike the Certification of Ms. Shawn Braxton
Concerning the Administrative Record in each of the cases referenced above. See 13-cv-1459 at
doc. no. 51; and 13-cv-303 at doc. no. 50. Defendants (“the Government”) filed Responses, and

Case 2:13-cv-01459-AJS Document 74 Filed 11/20/13 Page 2 of 4
Plaintiffs filed Replies. See 13-cv-1459 at doc. nos. 69 and 71, respectively; and 13-cv-303 at doc nos. 68 and 70, respectively. The matter is now ripe for adjudication.
During the October 24, 2013, status conference which the Court held in advance of the November 12-13, 2013, Preliminary Injunction Hearing, the Court asked Plaintiffs what they planned to present as evidence in support of their Motions for Expedited Preliminary Injunction, and Plaintiffs indicated they needed some discovery and would present witness testimony at the Preliminary Injunction Hearing. See, 13-cv-1459, doc. no. 22, generally. Likewise, the Court asked the Government what it would present in defense of Plaintiffs’ Motions for Expedited Preliminary Injunction, and in particular, asked the Government to highlight for the Court during the Preliminary Injunction Hearing what “irreparable harm” the Government would face if a preliminary injunction would issue. Id. at pp. 42-43. The Government responded that the Court’s review would be “limited to the administrative record.” Id at p. 44. The Government further asserted that if the Court were to reach the strict scrutiny test under the RFRA, the Government’s position was that the Court could stand on “that [administrative] record[.]” Id. at p. 45. In short, the Government summed up its position by stating, “[t]he Court’s review of whether or not the regulations can survive Plaintiffs’ legal challenges in terms of evidence should be based exclusively on the administrative record.” Id.
Following this status conference, the parties filed a Joint Status Report (dated October 31, 2013), a Joint Stipulation of Undisputed Facts (dated November 7, 2013), and a Joint Exhibit List (dated November 8, 2013) – all of which pertained to the (then) upcoming Preliminary Injunction Hearing. The Joint Exhibit List contained sixteen exhibits that were being proffered by the Government. See 13-cv-1459 at doc. no. 45, pp. 23-27; and 13-cv-303 at doc. no. 43, pp. 23-27. Plaintiffs raised no objection to the authenticity or admissibility of these exhibits. Id.
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These sixteen exhibits comprise only a portion of the entire “Administrative Record” that exists with respect to the promulgation of various regulations related to the Patient Protection and Affordable Care Act (“ACA”), at least one of which is at issue in the instant cases. See case no. 13-cv-1459 at doc. no. 61, p. 139, and case no. 13-cv-303 at doc. no. 60, pp. 139, where the Government indicates its belief that the entire “official administrative record” consists of 185,000 pages.
Plaintiffs’ current Motions seek to strike the certification supplied by Ms. Braxton which accompanied the portion of the Administrative Record which was submitted to the Court for the Preliminary Injunction Hearing and was divided into sixteen exhibits. Plaintiffs’ Motions and the oral arguments indicate that if the Court were to strike Ms. Braxton’s certification, the Government would be foreclosed from submitting evidence predicated upon those portions of the Administrative Record submitted as Defendants’ Exhibits 1 through 16. See case no. 13-cv1459 at doc. nos. 51, p. 11, and doc. no. 61, p. 138; and case no. 13-cv-303 at doc. no. 50, p. 11 and doc. no. 60, pp. 138.
Given that the Court has been asked to rule in an expedited fashion on Plaintiffs’ Motions for Preliminary Injunction, the Court will DENY the Plaintiffs’ Motion to Strike the Certification of Ms. Braxton, without prejudice to re-raise this issue at a later point in the litigation, so that the Court may consider the evidence presented by the Government in its Exhibits 1 through 16 in ruling on the Motions for Expedited Preliminary Injunction. Further, Plaintiffs may take an appropriate Rule 30(b)(6) deposition in either or both cases (13-cv-1459 and/or 13-cv-303) on the issue relating to the Administrative Record, should Plaintiffs deem it necessary to do so as these cases progress.
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Case 2:13-cv-01459-AJS Document 74 Filed 11/20/13 Page 4 of 4 SO ORDERED, this 20th day of November, 2013. s/ Arthur J. Schwab Arthur J. Schwab United States District Judge
cc: All Registered ECF Counsel and Parties
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 Case 2:13-cv-01459-AJS Document 75 Filed 11/21/13 Page 1 of 65

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

MOST REVEREND DAVID A. ZUBIK, Bishop of the Roman Catholic Diocese of Pittsburgh, as Trustee of the Roman Catholic Diocese of Pittsburgh, a Charitable Trust, ET AL.,

13cv1459 ELECTRONICALLY FILED

Plaintiffs,

v.

KATHLEEN SEBELIUS, In Her Official Capacity as Secretary of the U.S. Department of Health and Human Services, ET AL.,

Defendants.

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

MOST REVEREND LAWRENCE T. PERSICO, Bishop of the Roman Catholic Diocese of Erie, as Trustee of the Roman Catholic Diocese of Erie, a Charitable Trust, ET AL.,

13cv0303 Erie ELECTRONICALLY FILED

Plaintiffs,

v.

KATHLEEN SEBELIUS, In Her Official Capacity as Secretary of the U.S. Department of Health and Human Services, ET AL.,

Defendants.

MEMORANDUM OPINION RE: PLAINTIFFS’ MOTIONS FOR EXPEDITED PRELIMINARY INJUNCTION
(13-CV-1459: DOC. NO. 4; 13-CV-0303E: DOC. NO. 6)

Case 2:13-cv-01459-AJS Document 75 Filed 11/21/13 Page 2 of 65
I. Introduction Presently before the Court are two cases which challenge the application of provisions of the Patient Protection and Affordable Care Act (“ACA”). These cases present the Court with the issue of whether the Dioceses of Pittsburgh and Erie, which are exempt from provisions of the ACA requiring employers to provide health insurance coverage for contraceptive products, services, and counseling (“the contraceptive mandate”), are divisible from their nonprofit, religious affiliated/related charitable and educational organizations which, under the current provisions, will be compelled to facilitate/initiate coverage of contraceptive products, services, and counseling, beginning January 1, 2014, in violation of their sincerely-held religious beliefs.1 On October 8, 2013, in the Pittsburgh division of the United States District Court of the Western District of Pennsylvania, Plaintiffs: Most Reverend David A. Zubik, as Trustee of the Roman Catholic Diocese of Pittsburgh, a charitable trust; the Roman Catholic Diocese of Pittsburgh, as the Beneficial Owner of the Pittsburgh series of the Catholic Benefits Trust; and Catholic Charities of the Diocese of Pittsburgh, Inc. (“Pittsburgh Plaintiffs”), filed a Complaint in which they assert eight causes of action against Defendants: United States Departments of Health and Human Services, Labor, and Treasury, and their respective Secretaries. Zubik v. Sebelius, Civil Action 2:13-cv-1459 (W.D. Pa. 2013). Pittsburgh Plaintiffs simultaneously filed a Motion for Expedited Preliminary Injunction, asking this Court to issue a preliminary
1 Generally, the three most relevant sincerely-held religious beliefs of the Catholic faith at issue in these cases are: (1) the sanctity of human life from conception to natural death; (2) unity of worship, faith, and good works (“faith without good works is dead”); and (3) the facilitation of evil is as morally odious as the proliferation of evil. See Hearing testimony: Bishop Zubik, pg. 21, lines 12-14, pg. 28, lines 17-20, pg. 35, lines 17-18, pg. 42, lines 21-25; Bishop Persico, pg. 73, lines 7-9, pg. 75, lines 16-19, pg. 79, lines 24-25, pg. 80, lines 6-8, pg. 83, lines 6-9. These three sincerely-held religious beliefs and their intersection with the ACA will be more thoroughly discussed, infra.
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injunction to enjoin the issuance, application, and enforcement of the contraceptive mandate, as codified in 45 C.F.R. § 147.130(a)(1)(iv). Doc. No. 4.
Also, on October 8, 2013, in the Erie division of this District Court, Plaintiffs: Most Reverend Lawrence T. Persico, as Trustee of the Roman Catholic Diocese of Erie, a charitable trust; the Roman Catholic Diocese of Erie; St. Martin Center, Inc.; Prince of Peace Center, Inc.; and Erie Catholic Preparatory School (“Erie Plaintiffs”), filed a Complaint in which they assert the same eight causes of action against the same Defendants (“the Government”) related to the implementation of the contraceptive mandate of the ACA. Persico v. Sebelius, Civil Action 1:13-cv-303 (W.D. Pa. 2013). Erie Plaintiffs also filed a Motion for Expedited Preliminary Injunction asking the Court to issue a preliminary injunction to enjoin the issuance, application, and enforcement of the contraceptive mandate, as codified in 45 C.F.R. § 147.130(a)(1)(iv). Doc. No. 6.
Plaintiffs allege that the contraceptive mandate, as applied via the “accommodation,” requires them to facilitate/initiate the process for providing health insurance coverage for abortion-inducing drugs, sterilization services, contraceptives, and related educational and counseling services (“contraceptive products, services, and counseling”). The Dioceses, as “religious employers,” are exempt from these provisions. See generally Stipulations of Fact, ¶ 31; 13-cv-1459, Doc. No. 1, ¶ 44-46. A safe harbor for non-grandfathered, non-exempt organizations (including Plaintiffs: Catholic Charities, St. Martin Center, Prince of Peace Center, and Erie Catholic) from enforcement of these provisions has been extended until December 31, 2013. Additional Stipulated Facts, ¶ 7, citing 77 Fed. Ref. 8725, 8727 (Feb. 15, 2012). Nonexempt Plaintiffs in both cases must comply with the contraceptive mandate on or before January
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1, 2014, or potentially face substantial governmental penalties. 13-cv-303, Doc. No. 1, ¶ 164; Declaration of David Murphy2 (P-91), ¶ 9.
Plaintiffs allege that facilitating/initiating the process for providing health insurance coverage for contraceptive products, services, and counseling would cause immediate and irreparable injury to their fundamental rights and religious liberties, in violation of the Religious Freedom Restoration Act (“RFRA”) and the First Amendment to the United States Constitution.3 Doc. No. 4, 2.
This Memorandum Opinion will address both cases because the cases (although not consolidated) involve: similar facts (including the same religious tenets), the same counsel, the same causes of action advanced against the same Defendants, and the same legal tests apply to the Motions for Expedited Preliminary Injunction.
After consideration of Plaintiffs’ Motions (13-cv-0303: Doc. No. 6; 13-cv-1459: Doc. No. 4), the Parties’ submissions, the testimony presented during an evidentiary hearing, the hearing Exhibits, and an amici curiae brief,4 Plaintiffs’ Motions for Expedited Preliminary Injunction will be GRANTED.
2 David Murphy is employed as the Chief Financial Officer of the Diocese of Erie. P-91, ¶ 2. 3 Plaintiffs also assert violations of the Administrative Procedure Act (“APA”), Count VII, and erroneous interpretation of the exemption with respect to multi-employer plans, Count VIII. 13-cv-303, Doc. No. 1, ¶¶ 240-264; Doc. No. 1, ¶¶ 255-279. For the purposes of this Memorandum Opinion, the Court will focus its analysis on Plaintiffs’ arguments related to alleged violations of the RFRA and the First Amendment of the United States Constitution. 4 The American Civil Liberties Union Foundation and the American Civil Liberties Union Foundation of Pennsylvania have filed a brief of Amici Curiae in Opposition to Pittsburgh Plaintiffs’ Motion for Expedited Preliminary Injunctions. 13-cv-1459, Doc. No. 29.
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II. Findings of Fact5
A. Plaintiffs
The Pittsburgh Plaintiffs in Zubik v. Sebelius are: (1) the Most Reverend David A. Zubik,
Bishop and Trustee of the Roman Catholic Diocese of Pittsburgh (“the Bishop” or “Bishop
Zubik”); (2) the Roman Catholic Diocese of Pittsburgh, a Pennsylvania Charitable Trust (“the
Diocese” or “the Diocese of Pittsburgh”); and (3) Catholic Charities of the Diocese of Pittsburgh,
Inc. (“Catholic Charities”), an affiliate nonprofit corporation of the Diocese of Pittsburgh. Doc.
No. 1, 4.
The Pittsburgh Plaintiffs are interrelated because of their affiliation with the Catholic
Church and their shared sincerely-held religious beliefs and mission. Bishop Zubik is the
spiritual leader of the Diocese and is responsible for the spiritual, charitable, and educational
arms of the Diocese. Catholic Charities is a nonprofit corporation affiliated with the Diocese and
5 The Government does not challenge Plaintiffs’ factual contentions as set forth in Declarations in Support of the Motions for Expedited Preliminary Injunction or the sincerity of Plaintiffs’ religious beliefs as set forth in the Complaints. Stipulations of Fact (filed in 13-cv-303, Doc. No. 39 and 13-1459, Doc. No. 43), ¶¶ 52-56, 114-117; Doc. No. 16, ¶ 5(a)-(b); Declarations re-filed as part of the record as 13cv-303, Doc. Nos. 54-50-54-56; 13-cv-1459, Doc. Nos. 55-86-55-56. Plaintiffs’ Exhibits P-1-P-36, P-46, P-51, P-75, P-79, P-85, P-86-P-92 were admitted without objection (the same Exhibits and Exhibit numbers were used in reference to both cases). The Parties also filed Additional Stipulated Facts. 13-cv303, Doc. No. 58; 13-cv-1459, Doc. No. 59.
The Court appreciates the Parties’ efficient, thorough, and extensive Stipulations of Fact, and the professionalism of counsel throughout this entire matter. Throughout the Opinion, the Court will cite to the Parties’ Joint Stipulations, Plaintiffs’ respective Complaints, hearing Exhibits, and where possible, to Declarations in Support and hearing testimony.
The burdens imposed on Plaintiffs by the contraceptive mandate, the Government’s stated compelling interest, and potential alternatives to the contraceptive mandate, are not agreed upon by the parties, because the Government is unwilling to stipulate to these matters. 13-cv-303, Doc. No. 30, (II)(2)(b); 13cv-1459, Doc. No. 25, (II)(2)(b).
The Findings of Fact also are founded upon credibility determinations made by this Court based upon the Court’s observation of the witnesses.
For ease of reference, when discussing the case pending in Erie, documents referenced are filed in 13-cv303; for the case pending in Pittsburgh, all documents are filed in 13-cv-1459.
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with a principal place of administration in Pittsburgh, Pennsylvania. The Diocese of Pittsburgh and Catholic Charities are organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. Doc. No. 1, ¶¶ 11-13.
The Plaintiffs in Persico v. Sebelius are: (1) the Most Reverend Lawrence T. Persico, Bishop and Trustee of the Roman Catholic Diocese of Erie (“the Bishop” or “Bishop Persico”); (2) St. Martin Center, Inc. (“St. Martin Center”), a nonprofit corporation affiliated with Catholic Charities, with its principal place of business in Erie, Pennsylvania; (3) Prince of Peace Center, Inc. (“Prince of Peace Center”), a nonprofit corporation affiliated with Catholic Charities, with its principal place of business in Farrell, Pennsylvania; and (4) Erie Catholic Preparatory School (“Erie Catholic”), a nonprofit corporation, with its principal place of business in Erie, Pennsylvania. Doc. No. 1, ¶¶ 11-14.
The Erie Plaintiffs are interrelated because of their affiliation with the Catholic Church and their shared sincerely-held religious beliefs and mission. St. Martin Center, Prince of Peace Center, Erie Catholic, and the Diocese of Erie are organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. Doc. No. 1, ¶¶ 11-14.
B. Immediate Harm Claimed by Plaintiffs The Dioceses of Pittsburgh and Erie provide health insurance coverage to employees of their nonprofit, religious affiliated/related entities (such as Catholic Charities, St. Martin Center, Prince of Peace Center, and Erie Catholic) which are directed by the Dioceses to implement the spiritual, charitable, and educational mission of the Dioceses.
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1. Immediate Harm as to the Dioceses Based upon the credible testimony of Bishop Zubik and Bishop Persico, as Trustees for the Plaintiff nonprofit, religious affiliated/related organizations, the practical results of the application of the contraceptive mandate, via the “accommodation,” would be that the Dioceses would be required to either:
(a) provide their nonprofit, religious affiliated/related organizations with a separate insurance policy that covers contraceptive products, services, and counseling (which the Dioceses refuse to do, according to the trial testimony). Hearing Testimony, Bishop Zubik, pg. 43, lines 2-10; Hearing Testimony Bishop Persico, pg. 80, lines 18, pg. 82, lines 14-16, pg. 91, lines 7-9; or (b) decline to continue offering health coverage to their nonprofit, religious affiliated/related organizations. This would force the nonprofit, religious affiliated/related organizations to enter into their own arrangements with a health insurance provider that would arrange no-cost coverage of contraceptive products, services, and counseling. 13-cv-303, Doc. No. 1, ¶ 118; Doc. No. 1, ¶ 159; Declaration of Susan Rauscher6 (P-86),7 ¶¶ 13-15; Declaration of David S. Stewart8 (P-87), ¶ 18.
6 Susan Rauscher is employed as the Executive Director of Catholic Charities of the Diocese of Pittsburgh. P-86, ¶ 2. 7 All Declarations in these cases were originally filed as attachments to Plaintiffs’ Motions for Expedited Preliminary Injunctions. 13-cv-303, Doc. Nos. 9-8, 9-9, 9-10, 9-11; 13-cv-1459, Doc. Nos. 4-10, 4-11, 412. During the hearing on Plaintiffs’ pending Motions, the Declarations were assigned Exhibit numbers and admitted into evidence. P-86-P-92. The Court will cite to Declarations by the relevant Exhibit numbers. These documents have been filed and can be found at: 13-cv-303, Doc. Nos. 54-50 through 5456 and 13-cv-1459, Doc. Nos. 55-50 through 55-56. 8 David Stewart is employed as the Risk/Benefits Manager of the Diocese of Pittsburgh. P-87, ¶ 2.
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The contraceptive mandate would be unequally applied to Plaintiffs and would result in some schools, organizations, etc., being exempt from the mandate, while other organizations would not. 13-cv-1459, Doc. No. 1, ¶ 31. The result would cause a division between the Dioceses and their nonprofit, religious affiliated/related spiritual/charitable/educational organizations which fulfill portions of Dioceses’ mission. Id. Further, any nonprofit, religious affiliated/related organizations expelled from the Dioceses’ health insurance plans would require significant restructuring of the plans which would adversely affect the benefits received from pooling resources. 13-cv-303, Doc. No. 1, ¶ 119; Doc. No. 1, ¶ 159.
2. Immediate Harm as to Nonprofit, Religious Affiliated/Related Organizations
Based upon the credible testimony of Susan Rauscher (Executive Director of Catholic Charities of the Diocese of Pittsburgh), Father Scott William Jabo (President of Erie Catholic), and Mary Claire Maxwell (Executive Director of Catholic Charities of the Diocese of Erie), and the Stipulations of the Parties, the nonprofit, religious affiliated/related organizations expelled from a Diocese’s health plan would be forced to choose one of the following courses of action:
(a) purchase health insurance coverage that includes contraceptive products, services, and counseling [which would violate their sincerely-held religious beliefs, according to the trial testimony]. Cardinal Dolan Deposition9 (13-cv-303, Doc. No. 52; 13-cv-1459, Doc. No. 53), pg. 25, lines 15-19, 23-25, pg, 26, lines 1-12; Hearing Testimony, Bishop Zubik, pg. 28, lines 16-22; Declaration of Father Ronald P. Lengwin (P-88), ¶¶ 12-13;
9 Cardinal Dolan’s testimony was presented at the hearing via video-taped deposition that was taken on November 7, 2013, in New York City, New York. 13-cv-303, Doc. No. 52; 13-cv-1459, Doc. No. 53.
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(b) provide a self-certification to their third-party administrator (“TPA”), thus
facilitating/initiating the process by which the TPA will obtain coverage for the
contraceptive products, services, and counseling for the organizations’ employees
(“the accommodation”10) [which the Bishops would refuse to permit]. Plaintiffs’
Exhibit 10 “Certification”; Hearing Testimony, Bishop Zubik, pg. 43, lines 2-10;
Hearing Testimony, Bishop Persico, pg. 80, lines 1-8, pg. 82, lines 14-16, pg. 91,
lines 7-9;
(c) drop health insurance coverage for employees (i.e., fail to offer “full-time
employees (and their dependents) the opportunity to enroll in minimum essential
coverage under an eligible employer-sponsored plan”) (i.e., comprehensive
coverage), and be subject to annual fines of $2,000 per full-time employee.
Stipulations of Fact, ¶ 51; see 26 U.S.C. § 4980H(a), (c)(1); 13-cv-303, Doc. No.
1, ¶ 150. Said assessed payment shall be “paid upon notice and demanded by the
10 Per the “accommodation,” the organization must self-certify that it: (1) “opposes providing coverage for some or all of [the] contraceptive services”; (2) is “organized and operates as a nonprofit entity”; and (3) “holds itself out as a religious organization.” The organization must then provide a signed selfcertification to its insurance company, or if self-insured, to its TPA. 26 CFR § 54.9815-2713A(a).
Per trial testimony, the self-certification would be completed by the head of the respective nonprofit, religious affiliated/related charitable and educational organizations at the direction of the Bishop of the Diocese. Hearing Testimony, Susan Rauscher, pg. 57, line 1, pg. 60, line 15-16; Hearing Testimony, Father Jabo, pg. 95, lines 6-7, pg. 98, lines 7-8; Hearing Testimony, Mary Maxwell, pg. 114, lines 20-23. The Court notes that Bishop Zubik testified that he believed that he would have to sign the selfcertification because of his position as Chairman of the Membership Board of Catholic Charities. Hearing Testimony, Bishop Zubik, pg. 43, lines 5-7.
As a result of the self-certification, the designated insurance company or TPA is required to arrange contraceptive services coverage of the organization’s employees. Such services are provided without “cost-sharing requirements (such as copayment, coinsurance, or a deductible.)” Id. at § 54.98152713A(b)(2), (c)(2); 13-cv-303, Doc. No. 1, ¶¶ 99, 110. After providing the signed self-certification, the Dioceses would be obliged to provide the TPA with the names of individuals insured through the Diocesan health plan who are employees of non-exempt entities and sponsor the insurance. Hearing Testimony, Bishop Zubik, pg. 35, lines 17-19, Doc. No. 4-12, ¶ 31.
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Secretary,” “assessed and collected in the same manner as taxes”. . . and provided for “on an annual, monthly or other periodic basis as the Secretary may prescribe.” See 26 U.S.C. §§ 4980H(d)(1)-(2), 6671(a); or (d) purchase health insurance coverage for full-time employees without contraceptive products, services, and counseling, and potentially be subject to a tax penalty of $100 per day per affected beneficiary.11 Stipulations of Fact, ¶ 50(a); Additional Stipulated Facts, ¶ 13; see 26 U.S.C. § 4980D(b); 13-cv-303, Doc. No. 1, ¶ 150; Declaration of David Murphy (P-91), ¶ 17; 13-1459: Declaration of Susan Rauscher (P-86), ¶ 22; Doc. No. 1, ¶ 70. Any of these courses of action would harm the Dioceses and their nonprofit, religious affiliated/related charitable and educational organizations. Potential effects of imposition of fines include: decreased donations, loss of employees to other employers, loss of services, and such fines may “close [the organizations’] doors, denying thousands in the local community its charitable services.” Declaration of Susan Rauscher (P-86), ¶¶ 28-30. During the Injunction Hearing, credible testimony was presented that fines related to the contraceptive mandate will compel Plaintiff nonprofit, religious affiliated/related organizations to limit services or close. Hearing Testimony, Susan Rauscher (re: Catholic Charities of the Diocese of Pittsburgh), pg. 61, lines 17-18 (fines could not be paid “without significant changes to the organization.”), pg. 62, lines 21-25; Hearing Testimony Father Jabo (re: Erie Catholic), pg. 99, lines 8-10 (“In essence we’d have to shut our doors completely because we cannot sustain ourselves. As a school with a budget, limited resources, we would close our doors.”); Hearing Testimony of Mary Maxwell 11 The Parties have stipulated that “it is not possible to determine the exact amount of tax Plaintiffs could be assessed under this penalty.” Additional Stipulated Facts, ¶ 14; 13-cv-303, Doc. No. 58; 13-cv-1459, Doc. No. 59. Where applicable, the Court will refer to testimony presented as to estimated fines that may be levied on various Plaintiffs for non-compliance.
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(re: St. Martin Center and Prince of Peace Center), pg. 115, lines 23-25 (fines “would be devastating for all of our clients, the poor – these are single women, children.”); Declaration of Mary Maxwell (P-90), ¶ 20; Declaration of Father Scott Detisch, Ph.D.12 (P-92), ¶ 32.
Currently, Plaintiffs are experiencing and may continue to experience increased administrative burdens, lost personnel hours, and the fear of increased insurance premiums. Deposition of Cardinal Timothy Michael Dolan (13-cv-303, Doc. No. 52; 13-cv-1459, Doc. No. 53), pg. 40, lines 22-25, pg. 41, 1-7; Declaration of David S. Stewart (P-87), ¶¶ 23-26.
Failure to comply with the contraceptive mandate would expose the organizations, and ultimately the Dioceses, to civil actions by ERISA-covered plan participants for unpaid benefits, and enforcement actions by the Secretary of Labor. Stipulations of Fact, ¶ 50(b)-(c); Doc. No. 1, ¶ 81(c)-(d); see 29 U.S.C. §§ 1132(a)(1)(B), 1132(a)(5), and 1132(b)(3). The Secretary of HHS may impose a civil monetary penalty for failure to provide certain required coverage. Stipulations of Fact, ¶ 50(d); 42 U.S.C. § 300gg-22(b)(2)(C)(i). Failure to pay levied fines would subject Plaintiffs to additional fines and potential property liens. See 26 U.S.C. §§ 6321, 6672.
C. The Organization and Religious Mission of the Dioceses 1. Organization of Dioceses
Bishop Zubik, in his capacity as Bishop and Trustee of the Diocese of Pittsburgh, manages 200 parishes and their charitable trusts. Stipulations of Fact, ¶ 118. The Diocese provides services throughout six counties in Southwestern Pennsylvania – Allegheny, Beaver,
12 Father Detisch is serving as a theological advisor to Bishop Persico on matters of Catholic doctrine, including moral theology. P-92, ¶ 2.
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Butler, Greene, Lawrence, and Washington – including a Catholic population of approximately 700,000 people. Stipulations of Fact, ¶ 119; 13-cv-1459, Doc. No. 1, ¶¶ 25-33.
Bishop Persico, in his capacity as the Bishop and Trustee of the Diocese of Erie, is responsible for 117 parishes serving approximately 187,500 people over a thirteen-county region in Northwestern Pennsylvania. Stipulations of Fact, ¶¶ 57, 65; 13-cv-303, Doc. No. 1, ¶¶ 26, 29.
2. Religious Mission of the Dioceses through Good Works Plaintiffs sincerely believe that religious worship, faith, and good works are essential and integral components of the Catholic faith and constitute the core mission of the Catholic Church.13 Declaration of Susan Rauscher (P-86), ¶ 21. “The Church’s deepest nature is expressed in her three-fold responsibility: of proclaiming the word of God (kerygma-martyria), celebrating the sacraments (leitourgia), and exercising the ministry of charity (diakonia). These duties presuppose each other and are inseparable.” Plaintiff’s Exhibit 3, “Apostolic Letter Issued ‘Motu Proprio’ on the Supreme Pontiff Benedict XVI on the Service of Charity,” pg. 1; Cardinal Dolan Deposition, (13-cv-303, Doc. No. 52, 13-cv-1459, Doc. No. 53), pg. 36, lines 1-36, pg. 38, lines 11-13 (“That’s your daily life. That’s everything we do, dream, believe, breathe, wake, sleep, is our – is our faith.”); Hearing Testimony, Bishop Zubik, pg. 21, lines 12-14; Declaration of Father Ronald P. Lengwin14 (P-88), ¶ 37. “The service of charity is also a constructive element of the Church’s mission and an indispensable expression of her very being . . . ; all the faithful have the right and duty . . . to provide charitable services.” Plaintiffs’ Exhibit 3, pg. 1.
13 Hearing Testimony of Bishop Zubik, pg. 42, lines 21-25, pg. 43, line 1 (“We argue that the purpose of faith is not simply what we do in our churches on the weekend, but what we do at our work places and especially how we have the obligation to be reaching out to people who are in need. So that’s an absolute essential to our faith and there is no split between the two.”); Hearing Testimony of Bishop Persico, pg. 73, lines 7-9 (“Well, if we look at [S]cripture, faith without good works is dead, so I don’t see how we can separate it. It’s essential. It’s who we are as Christians.”). 14 Father Lengwin is the Vicar General and General Secretary of the Diocese of Pittsburgh. P-88, ¶ 2.
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D. Nonprofit Religious Affiliated/Related Charitable and Educational Organizations of the Dioceses of Pittsburgh and Erie 1. Role of Bishops in Organizations
As the heads of their respective Dioceses, the Bishops carry out the “good works” of the Catholic Church through: educating children regardless of their religion, promoting spiritual growth (including conducting religious services, operating seminaries, and hosting religious orders), and providing community service to others regardless of the recipient’s religion or other factors. Stipulations of Fact, ¶¶ 58-61, 120; 13-cv-303, Doc. No. 1, ¶ 27; 13-cv-1459, Doc. No. 1, ¶ 26. “. . . [T]he duty of charity [is] a responsibility incumbent upon the whole Church and upon each Bishop in his Diocese . . . .” Plaintiffs’ Exhibit 3, pg. 1. Bishops have a duty to prevent parishes and “diocesan structures” from taking actions at odds with the Church’s teachings. Plaintiffs’ Exhibit 3, Article 9, § 3 (“It is the duty of the diocesan Bishop and the respective parish priests to see that in this area the faithful are not led into error or misunderstanding; hence they are to prevent publicity being given through parish or diocesan structures to initiatives which, while presenting themselves as charitable, propose choices or methods at odds with the Church’s teaching.”). Bishops also are responsible for “ensur[ing] that in the activities and management of these activities, the norms of the Church’s universal, and particular law are respected, as well as the intentions of the faithful who made donations or bequests for these specific purposes.” Plaintiffs’ Exhibit 3, Article 4, § 3.
2. Catholic Schools Education is an integral component of the Catholic faith. Hearing Testimony, Father Jabo, pg. 90, lines 24-25.
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a. Diocese of Pittsburgh The Diocese of Pittsburgh runs, organizes, and supervises approximately 11 high schools, 66 elementary schools, two non-residential schools for individuals with disabilities, and various preschool programs. Stipulations of Fact, ¶ 122. These schools educate approximately 22,000 students. Stipulations of Fact, ¶ 123; Doc. No. 1, ¶¶ 27-28. The Diocesan schools are open to and serve all children, without regard to the students’ religion, race, or financial condition. Stipulations of Fact, ¶ 125. Some of the schools educate predominantly non-Catholic students. Stipulations of Fact, ¶ 129; Doc. No. 1, ¶ 30. The contraceptive mandate, as applied via the “accommodation” and the “exemption,” will result in elementary schools within the Diocese being treated differently – certain elementary schools within the Diocese will be exempt from compliance with the regulations, while others will not. Stipulations of Fact, ¶ 130.
b. Diocese of Erie The Diocese of Erie operates approximately 30 elementary schools, 3 middle schools, and 6 secondary schools. These schools educate approximately 6,400 students. Stipulations of Fact, ¶ 62; Doc. No. 1, ¶ 28. Students are accepted regardless of religion. Stipulations of Fact, ¶ 63. Tuition assistance is offered to students based solely on financial need and for those who otherwise would have no alternative to the public school system. Stipulations of Fact, ¶¶ 63-64. These schools include Erie Catholic (an affiliated corporation), a preparatory high school, which was formed in 2010 by the merger of two Catholic schools and has approximately 870 students. Stipulations of Fact, ¶¶ 96, 98, 108; Doc. No. 1, ¶¶ 54, 60. Erie Catholic’s vision is “steeped in Gospel values and the mission of the Catholic Church.” Stipulations of Fact, ¶ 103. The
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school’s mission is to “form a Christ-centered, co-institutional, college preparatory Catholic school of the Diocese of Erie.” Doc. No. 1, ¶ 57.
Erie Catholic implements the Church’s teaching mission and has a strong religious component: daily mass is celebrated at the school; four years of theology are required for all students; students are required to perform qualified community service which may include “service to the school and parish community”; and religious retreats are organized. Stipulations of Fact, ¶¶ 104-107; Doc. No. 1, ¶¶ 58-59; Declaration of Father Scott Jabo (P-89), ¶ 4. The school is an affiliated corporation of the Diocese and endeavors to educate students in academic subjects and the Catholic faith as defined by the Diocese. Declaration of Father Scott Jabo (P-89), ¶ 13. Father Jabo, as President of Erie Catholic, is responsible for ensuring that the school and all of its functions are in line with Catholic Church teachings. Hearing Testimony, Father Jabo, pg. 91, lines 18-25, pg. 92, lines 1-4. The Diocese directly oversees the school’s management and offers financial aid to its students through the Bishop assistance plan and the STAR Foundation. Stipulations of Fact, ¶¶ 97, 111; Doc. No. 1, ¶¶ 62, 65.
Erie Catholic is exempt from filing Form 990 (“Return of Organization Exempt from Income Tax”)(26 C.F.R. § 1.6033-2(g)(vii). Stipulations of Fact, ¶ 112; Declaration of David Murphy (P-91), ¶ 13; 26 C.F.R. § 1.6033-2(g)(1)(vii). Erie Catholic is not exempt from the contraceptive mandate because it is not an “integrated auxiliary” under the definition in 26 C.F.R. § 1.6033-2(h). Stipulations of Fact, ¶ 113; Doc. No. 1, ¶ 64. If Erie Catholic does not comply with the contraceptive mandate, as applied via the “accommodation,” it could face estimated annual fines of approximately $2.8 million against an annual budget of approximately $10 million. Hearing Testimony of Father Jabo, pg. 98, lines 19-20, 23.
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3. Social Service Organizations Providing social services to others is a central tenet of the Catholic faith. Plaintiffs’ Exhibit 12, “Catholic Charities of Diocese of Pittsburgh Bylaws”; 13-cv-303, Doc. No. 1, ¶ 33; Declaration of Susan Rauscher (P-86), ¶ 21. These “good works” are integral to the practice of the Catholic faith. Hearing Testimony, Bishop Persico, pg. 83, lines 6-9 (“ . . . it’s faith and good works. You don’t have two separate, [] they don’t co-exist. It’s all part of the same.”). Social services must be provided in conformity with the Catholic faith. Hearing Testimony, Bishop Zubik, pg. 22, lines 22-23 (“The Catholic teaching and tradition and its teachings has to be observed in all instances.”). Consistent with this tenet, the Dioceses of Pittsburgh and Erie provide social services to the residents of their nineteen-county community. These services are provided without regard to national origin, race, color, sex, religion, age, or disability. Stipulations of Fact, ¶ 131. The Dioceses also assist many other local organizations, including organizations that: provide support to the homeless; provide scholarships to disadvantaged children of all faiths; and provide counseling and support to struggling families. Stipulations of Fact, ¶ 132; 13-cv-303, Doc. No. 1, ¶¶ 31-32; 13-cv-1459, Doc. No. 1, ¶¶ 32-33. These social service programs receive support from the Diocese. 13-cv-303, Doc. No. 1, ¶ 33.
a. Pittsburgh Plaintiff Catholic Charities is the primary social service agency of the Diocese under the leadership of Bishop Zubik, who serves as the Chairman of the Membership Board. Declaration of Susan Rauscher (P-86), ¶ 4; Declaration of Father Ronald P. Lengwin (P-88), ¶ 5. Per its Bylaws, the Diocese of Pittsburgh “recognizes its obligation to bear witness to the charity of Christ, both in work and deed,” and “performs its mission of social welfare through Catholic
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Charities . . . .” Plaintiffs’ Exhibit 12 “Catholic Charities Diocese of Pittsburgh Bylaws, December 5, 2012,” pg. 1.
As Chairman of the Membership Board, Bishop Zubik oversees the management of Catholic Charities. Charitable and educational agencies, such as Catholic Charities, must conform with the Bishop’s authority. Plaintiffs’ Exhibit 3, pg. 4, Article 4, §§ 3-4 (“For agencies not approved at the national level . . . the competent authority is understood to be the diocesan Bishop where the agency has its principal office.)
Catholic Charities is required to completely adhere to the Catholic doctrine. Plaintiffs’ Exhibit 3, pg. 2 (“ . . . there is a need to ensure that they are managed in conformity with the demands of the Church’s teachings and the intentions of the faithful, and that they likewise respect the legitimate norms laid down by civil authorities.”). As such, Catholic Charities may not take actions that are inconsistent with the tenets of the Catholic Church. Plaintiffs’ Exhibit 3, pg. 3, Article 1, § 3 (“. . . the collective charitable initiatives to which this Motu Proprio refers are required to follow Catholic principles in their activity and they may not accept commitments which could in any way affect the observance of those principles.”) (emphasis original.)
Annually, Catholic Charities provides approximately 230,000 acts of service for people in need in Southwestern Pennsylvania. Stipulations of Fact, ¶ 135. The organization has offices in all six counties of the Diocese of Pittsburgh and employs approximately 115 individuals. Stipulations of Fact, ¶¶ 136-137.
Like other charitable and educational organizations affiliated with the Catholic Church, the Diocese provides funding to Catholic Charities, its programs, and the Free Health Care Center. Stipulations of Fact, ¶ 154; 13-cv-1459, Doc. No. 1, ¶ 68. Catholic Charities serves the needy, underserved, and underprivileged through the efforts of its “Ambassadors of Hope”
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volunteers. Stipulations of Fact, ¶ 141. Catholic Charities could not exist without its volunteers and donor funding. Stipulations of Fact, ¶ 153. Catholic Charities supports other charitable organizations including Team HOPE (assists the needy to gain independence), St. Joseph House of Hospitality (residential and transitional housing facility), and two senior centers.
Catholic Charities’ programs and services include adoption, counseling, safety net and stability services, health care for the uninsured, housing and homeless assistance, pregnancy and parenting support, and refugee and senior services. In 2012, through its various social service programs, Catholic Charities provided approximately 68,141 meals to the hungry, 14,430 hours of case management to struggling individuals and families, and participated in 16,542 patient visits. Stipulations of Fact, ¶¶ 141, 148.
Catholic Charities offers free health services through the Free Health Care Center (a wholly-owned subsidiary of Catholic Charities). The free health services provided at the Free Health Care Center in 2012 are valued at nearly $1.5 million. Stipulations of Fact, ¶ 144-148. The Free Health Care Center is the only facility of its kind in the Pittsburgh region. Stipulations of Fact, ¶ 145. The Center is critical to the region and has provided free preventative and primary care to nearly 15,000 individuals during more than 35,000 patient visits. Id. at ¶ 147.
Catholic Charities also supports a pregnancy and parenting support program. In 2012, 2,545 parents utilized the services. Stipulations of Fact, ¶ 149. Catholic Charities also maintains crisis pregnancy assistance and post-abortion healing ministries and offers post-abortion healing retreats. Stipulations of Fact, ¶¶ 138-41.
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b. Erie The Diocese of Erie, through its supported social services organizations, provides aid to approximately 56,000 people per year, including many who would otherwise not receive necessary food, shelter, and other services. Stipulations of Fact, ¶¶ 75-76; Doc. No. 1, ¶¶ 33-34. Residents of Northwestern Pennsylvania are served by the Diocese’s prison, family, and disability ministries, as well as respect life organizations, and pregnancy and new mother services. Stipulations of Fact, ¶¶ 69-70. The Diocese also financially supports numerous secular and religious charities including: St. Elizabeth Center (food pantry and thrift and clothing store); the Good Samaritan Center (homeless shelter and emergency assistance provider); Better Homes for Erie (provider of affordable low-income housing); and Catholic Charities Counseling and Adoption Services (provider of professional, adoption, and pregnancy counseling and refugee resettlement services). Stipulations of Fact, ¶¶ 70-74. Other Diocese affiliated organizations include Plaintiffs: St. Martin Center and Prince of Peace Center. Doc. No. 1, ¶¶ 41, 47. St. Martin Center is a nonprofit social service organization based in Erie that provides individuals and families with resources to become self-sufficient. Stipulations of Fact, ¶ 79; Doc. No. 1, ¶ 41. The Center is an affiliated corporation of the Diocese, which directly oversees its management. Doc. No. 1, ¶ 46. Services provided include social services, a food pantry, housing services, an early learning center, a job preparation program, and hospitality industry training. Stipulations of Fact, ¶¶ 88-93; Doc. No. 1, ¶ 46. The Center does not qualify as a “religious employer” as defined by the exemption to the contraceptive mandate. Doc. No. 1, ¶ 45. Prince of Peace Center is a nonprofit social service organization which provides various social services to the needy of greater Mercer County who do not receive all of their necessities
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from the Government. Stipulations of Fact, ¶ 78; Doc. No. 1, ¶¶ 47, 50. The Center is an affiliated corporation of the Diocese, which directly oversees its management. Doc. No. 1, ¶ 53. Services provided include family support services, emergency assistance programs (funded by private donations), a thrift store, workforce preparation, a soup kitchen (serves approximately 700 individuals a month with groceries to supplement food stamps and 5,700 people per year at the soup kitchen), job preparation programs, computer classes, and various programs and charity drives. Stipulations of Fact ¶¶ 80-87; Doc. No. 1, ¶ 48. The Center does not qualify as a “religious employer” as defined by the exemption to the contraceptive mandate. Doc. No. 1, ¶ 52.
The majority of the individuals served by St. Martin Center and Prince of Peace Center live below the poverty line and would be without food, shelter, and necessary services if not for the Centers. Stipulations of Fact, ¶ 94. The Diocese would not be able to provide all of the social services offered, including at St. Martin Center and Prince of Peace Center, without financial contributions from donors and volunteers. Stipulations of Fact, ¶¶ 77, 95.
Bishop Persico serves as Chairman for the membership boards of the St. Martin Center and Prince of Peace Center. Declaration of Mary Maxwell (P-90), ¶ 3. Both Centers are “required to adhere to Catholic doctrine at all times and in all manners,” particularly as defined by the Diocese. Id. Bishop Persico is responsible for carrying out that doctrine and implementing the Centers’ missions. Declaration of Father Scott Detisch, Ph.D. (P-92), ¶ 5. As such, he is ultimately responsible for ensuring that all of the Centers’ policies comply with Catholic doctrine. Id. at ¶ 6.
Failure to adhere to the contraceptive mandate, as applied via the “accommodation,” could subject St. Martin Center and Prince of Peace Center to “several million” dollars in
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collective fines against budgets of four million dollars and $800,000.00, respectively. Hearing Testimony, Mary Maxwell, pg. 115, lines 9, 11-13, 16.
E. Plaintiffs’ Employee Health Insurance Coverage 1. Religious Components of Employee Health Care
The sanctity of human life from conception to natural death and the dignity of all persons are central tenets of the Catechism of the Catholic Church. Hearing Testimony, Bishop Persico, pg. 75, lines 16-19. The Catholic Church believes that health care is a basic right because of the sanctity and dignity of human life. See Cardinal Dolan Deposition (13-cv-303, Doc. No. 52; 13cv-1459, Doc. No. 53), pg. 28, lines 19-23; Hearing Testimony, Bishop Zubik, pg. 38, lines 2324; Hearing Testimony, Bishop Persico, pg. 73, lines 23-25; Declaration of Father Scott Detisch, Ph.D. (P-92), ¶ 25; Declaration of Father Ronald P. Lengwin (P-88), ¶ 34.
The Catholic Church also believes that contraception and abortion are prohibited, and Catholics cannot facilitate/initiate, directly or indirectly, the provision of abortions. Cardinal Dolan Deposition (13-cv-303, Doc. No. 52; 13-cv-1459, Doc. No. 53), pg. 25, lines 15-19, 2325, pg, 26, lines 1-12; Hearing Testimony, Bishop Zubik, pg. 28, lines 16-22; Declaration of Father Ronald P. Lengwin (P-88), ¶¶ 12-13; Plaintiffs’ Exhibit 2 “Ethical and Religious Directives for Catholic Health Care Services, United States Conference of Catholic Bishops November 17, 2009,” ¶¶ 45, 52 (“Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted. Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion, which, in its moral context, includes the interval between conception and implementation of the embryo. Catholic health care institutions are not to provide abortion
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services, even based upon the principle of material cooperation. In this context, Catholic health care institutions need to be concerned about the danger of scandal15 in any association with abortion providers.”).
This belief necessarily prohibits providing, subsidizing, initiating, or facilitating insurance coverage for abortion-inducing drugs, sterilization services, contraceptives, and related educational and counseling services. Declaration of Father Ronald P. Lengwin (P-88), ¶ 10; Plaintiffs’ Exhibit 2, pg. 28, ¶ 52 (“Catholic health institutions may not promote or condone contraceptive practices but should provide, for married couples and the medical staff who counsel them, instruction both about the Church’s teaching on responsible parenthood and in the methods of natural family planning.”).
2. Diocese of Pittsburgh and the Catholic Benefits Trust (SelfInsured Health Plan) – Doc. No. 1, ¶¶ 34-40
The Diocese of Pittsburgh provides health insurance to its employees through a selfinsured health plan through the Catholic Benefits Trust (“Trust”). Declaration of David S. Stewart (P-87), ¶ 4. The Trust was formed in June 2013 by an agreement between the Diocese of Pittsburgh, the Diocese of Altoona-Johnstown, and the Diocese of Greensburg (the “Trust Agreement”), in an effort to pool resources with regard to health benefits. Stipulations of Fact, ¶ 133. The Trust was formed by the Diocese of Pittsburgh converting its Catholic Employers Benefits Plan Delaware Trust to a Delaware statutory trust and expanding the Trust to include the Dioceses of Altoona-Johnstown and Greensburg. Doc. No. 1, ¶ 34.
The three Dioceses are the Beneficial Owners of the Trust, which is split into three series: the Pittsburgh series, the Altoona-Johnstown series, and the Greensburg series. Each Diocese is 15 Per testimony, “scandal,” within the Catholic faith, means cooperating with an objectionable practice that goes against the faith, or “teaching one thing and behaving in another manner.” Hearing Testimony, Bishop Zubik, pg. 35, lines 20-23; Hearing Testimony, Bishop Persico, pg. 81, lines 18-20.
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the sole “Beneficial Owner” and sole beneficiary of its respective series. Thus, Plaintiff Diocese of Pittsburgh is the sole Beneficial Owner and sole beneficiary of the Pittsburgh series of the Trust. Declaration of David S. Stewart (P-87), ¶ 5.
The Diocese itself provides health insurance coverage to approximately 200 individuals who are its direct employees and their beneficiaries. Declaration of David S. Stewart (P-87), ¶ 6. The offered plans are self-insured through the Catholic Benefits Trust and administered by TPAs. Id. Consistent with the teachings of the Catholic Church, all of the Diocesan plans offered through the Trust, including those for its nonprofit, religious affiliated/related organizations, such as Catholic Charities, do not cover abortion-inducing drugs, contraceptives, or sterilization, except when medically necessary. Declaration of Susan Rauscher (P-86), ¶ 19; Declaration of David S. Stewart (P-87), ¶ 9. In the past, the Diocese has notified its TPAs that it would not cover contraceptive products, services, and counseling. Declaration of David S. Stewart (P-87), ¶ 14.
The Catholic Benefits Trust also provides coverage to “Diocesan Entit[ies],” defined in the Trust Agreement as “an Agency, Parish, School, seminary or other similar entity subject to the supervision, or administrative and pastoral care, of a Diocese.” Stipulations of Fact, ¶ 134; Doc. No. 1, ¶ 36. Presently, approximately 230 Catholic organizations, including the Diocese of Pittsburgh, Catholic Charities, all of the parishes and schools with the Diocese, and several other entities affiliated with the Diocese of Pittsburgh, along with the Dioceses of Altoona-Johnstown and Greensburg and affiliated entities within those Dioceses, participate in the Trust. Within these organizations, approximately 3,100 employees and 5,000 participants receive their health insurance through the Trust. This structure allows organizations to benefit from “economies of
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scale,” to be self-insured, and to spread their risks. As a result, each religious organization can offer its employees better benefits at lower costs. Doc. No. 1, ¶ 36.
The three Dioceses do not contract with a separate insurance company that pays for the employee health plans sponsored by the Trust. Instead, the Trust functions as the insurance company underwriting the covered employee’s medical costs, with all funding coming from each respective Diocese and its covered affiliates. The health plans sponsored by the Trust are administered by TPAs, who are paid a flat fee for each covered individual for administering the plans but who do not pay for any services received by covered employees. The Trust sponsors one set of group health plans for the Diocese of Pittsburgh and the majority of Diocesanaffiliated entities within the Diocese of Pittsburgh (the “Diocesan Health Plan”). Doc. No. 1, ¶ 39.
The Diocesan health plans offered – except to Catholic Charities – are “grandfathered” and therefore are exempt from the requirements of the contraceptive mandate. Doc. No. 1, ¶ 166. The Diocese has included a statement describing its “grandfathered” status in plan materials, as required by 26 C.F.R. §54.9815-1251T(a)(2)(ii). Id.
The Trust sponsors separate group health plans for Plaintiff Catholic Charities of the Diocese of Pittsburgh. Catholic Charities provides health insurance coverage to approximately 80 full-time employees and their dependents (300 individuals). Declaration of Susan Rauscher (P-86), ¶ 7. The plan offered to employees of Catholic Charities is not a “grandfathered” health plan, and as such, it did not include a statement describing its “grandfathered” status in plan materials, as required by 26 C.F.R. § 54.9815-1251T(1)(ii) for “grandfathered” plans. Doc. No.
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1, ¶ 44; Declaration of David S. Stewart (P-87), ¶ 10.16 The next Diocesan Health Plan year
begins on January 1, 2014. Declaration of Susan Rauscher (P-86), ¶¶ 7-10; Declaration of David
S. Stewart (P-87), ¶ 12. Many Diocesan-affiliated entities currently insured through the Trust
likely do not qualify for the religious employer exemption and would be subjected to the
accommodation after that date. Doc. No. 1, ¶ 44.
3. Trust Agreement – See Doc. No. 1, ¶¶ 47-50
The Trust Agreement provides that “each Director” of the Board of Directors of the Trust
shall be “appointed by the Bishop of each Diocese that is or becomes a Beneficial Owner” of the
Trust. The Board of Directors is then responsible for “[t]he management of the Trust[.]”
While “all powers to manage the business and affairs of the Trust and each Series shall be
exclusively vested in the Board and the Board may exercise all powers of the Trust[,]” “a
majority of the Beneficial Owners may amend [the Trust] Agreement in writing at any time and
thereby broaden or limit the Board’s power and authority[.]” The Diocese, through the Bishop,
16 The distinction between plans that are “grandfathered” and those that are not is important because as defined in federal regulations, plans that are “grandfathered” do not have to provide coverage without cost sharing of “preventive health services.” 45 C.F.R. § 147.140; 26 C.F.R. § 54.9815-125T; and 29 C.F.R. § 2590.7151251. A plan is “grandfathered” if: (1) at least one person was enrolled on March 23, 2010; (2) the plan continuously covered at least one individual since that date; (3) the plan provides annual notice of its grandfathered status; and (4) the plan has not been subject to significant changes as outlined in the regulations. See 42 U.S.C. § 18011; 26 C.F.R. §§54.9815-1251T(a), (g); 29 C.F.R. §§ 2590.715-1251(a), (g); 45 C.F.R. §§147.140(a)(g). A plan may maintain its grandfathered status so long as, if, compared to its existence on March 23, 2010, it does not: eliminate all or substantially all benefits to diagnose or treat a particular condition; increase a percentage cost-sharing requirement; significantly increase a fixedamount cost-sharing requirement; significantly reduce the employer’s contribution; or impose or tighten an annual limit on the dollar value of any benefits. Additional Stipulated Facts, ¶ 3, citing 26 C.F.R. § 54.9815-1251T(a), (g)(1); 29 C.F.R. § 2590.715-1251(a), (g)(1); 45 C.F.R. § 147.140(a), (g)(1).
In July 2013, the Government announced that it will provide an additional year before the ACA mandatory employer and insurer reporting requirements begin. Plaintiffs’ Exhibit 93, Doc. No. 63-1, pg, 2. As of February 2012, 1,200 employers had been granted waivers for certain coverage requirements. Id.
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has ultimate decision-making authority and has the power to manage, oversee, and direct the Trust. Doc. No. 1, ¶ 46.
Additionally, the Diocese decides whether an entity may participate in the Trust. The Trust Agreement provides that “[e]ach Beneficial Owner may allow such Diocesan Entities to benefit in such Series in respect of which such Beneficial Owner is the holder of the sole interest in accordance with the terms and conditions established by such Beneficial Owner in consultation with its advisors.” The Diocese, as sole beneficial owner, also is responsible for the liability and other costs of the Trusts – “[a] particular Series shall be charged with the liabilities of that Series, and all expenses, costs, charges and reserves attributable to any particular Series shall be borne by such Series.” Doc. No. 1, ¶ 50.
4. Diocese of Erie The Diocese of Erie operates a self-insured health plan (“the Diocesan health plan”) by which it functions as the insurance company in underwriting the medical costs of its employees and the employees of its affiliated organizations. Doc. No. 1, ¶ 36. As such, the Diocese does not contract with a separate health insurance company. Id. The Diocesan health plan is administrated by a TPA. Id. The plan provides benefits for approximately 774 employees and 980 individuals, including those who are employed directly by the Diocese as well as by schools and charitable agencies of the Diocese (approximately 280 insured employees are employed by nonexempt entities). Declaration of David Murphy (P-91), ¶¶ 6, 27. Employees of St. Martin Center, Prince of Peace Center, and Erie Catholic (approximately 90 employees) are insured under the Diocesan health plan. Id. at ¶¶ 43, 51, 63; Declaration of Father Scott Jabo (P-89), ¶ 5. Employees, regardless of the specific employer within the plan, are provided three options for health plans. Declaration of David Murphy (P-91), ¶ 18. Consistent with the tenets
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of the Catholic faith, none of these plans cover abortion-inducing drugs, contraceptives, or sterilization, except when “medically necessary.” Declaration of David Murphy (P-91), ¶ 40. The Diocese has previously notified its TPA that it would not cover contraceptive products, services, and counseling, and has never designated the TPA to provide those products, services, or counseling. Declaration of David Murphy (P-91), ¶ 15. Such actions never triggered the provision of contraceptive products, services, or counseling. Id.
The next administrative year for the health plan (the date which all benefits for the July 1, 2014, plan year must be implemented) begins on January 1, 2014. Declaration of David Murphy (P-91), ¶¶ 9, 25. The plan does not meet the ACA’s definition of a “grandfathered” plan and therefore is not exempt from provisions of the ACA. Declaration of David Murphy (P-91), ¶ 9. As such, the Diocesan health plan must comply with the provisions of the ACA on or before January 1, 2014 (after the safe harbor provision has elapsed and first date of next administrative year for the plan). Id.
F. Plaintiffs’ Religious Beliefs as to the Contraceptive Mandate As previously noted, a tenet of the Catholic faith is the belief that human life must be preserved from conception through natural death. See generally Hearing Testimony, Bishop Zubik, pg. 28, lines 16-20. The ACA includes the provision that eight categories of preventative services for women must generally be covered by group health plans without cost sharing. Additional Stipulated Facts, ¶ 15, citing HRSA, Women’s Preventive Services Guidelines (Aug. 1, 2011), available at http://www.hrsa.gov/womensguidelines; 13-cv-303, Doc. No. 54-49; 13-cv-1459, Doc. No. 5549. Plaintiffs object to only one of the eight categories, “contraceptive methods and counseling,”
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that covers FDA approved “contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Additional Stipulated Facts, ¶¶ 16-17. Plaintiffs object to the “contraceptive methods and counseling” category because such products, services, and counseling violate their belief in the sanctity of human life. See generally Hearing Testimony, Bishop Zubik, pg. 28, lines 16-20.
Completing the self-certification form required by the contraceptive mandate’s “accommodation” also violates that tenet. Hearing Testimony, Bishop Zubik, pg. 33, lines 19-21 (“ . . . we are being asked to violate a tenet or belief that’s important to us and a matter of conscience.”). Completing the self-certification also would burden the signer’s exercise of religion. Hearing Testimony, Mary Maxwell, pg. 113, lines 15-17.
Completion of the self-certification form would be akin to cooperating with/facilitating “an evil” and would place the Diocese “in a position of providing scandal” because “it makes it appear as though [the Diocese] is cooperating with an objectionable practice that goes against [Church] teaching.” Hearing Testimony, Bishop Zubik, pg. 35, lines 17-18, 20-23, pg. 37, lines 7-9; Hearing Testimony, Bishop Persico, pg. 79, lines 24-25, pg. 80, lines 6-8; Hearing Testimony, Father Jabo, pg. 96, lines 4-5. Completing the self-certification form would violate personal religious beliefs and cause “eternal” “ramifications.” Hearing Testimony, Father Jabo, pg. 97, lines 2-4; Hearing Testimony, Bishop Persico, pg. 81, line 25.
Bishop Zubik will not complete the self-certification form and would instruct the head of Catholic Charities not to complete the self-certification form. Hearing Testimony, Bishop Zubik, pg. 43, lines 2-10. Bishop Persico stated: “I would have a real moral issue in signing [the selfcertification form] because I would be afraid of giving scandal to the faithful” and “I would have a very difficult time in [directing the heads of St. Martin Center, Prince of Peace Center, or Erie
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Catholic to complete the self-certification form]. I don’t see how I could.” Hearing Testimony, Bishop Persico, pg. 80, lines 1-8, pg. 82, lines 14-16, pg. 91, lines 7-9.
III. Statutory and Regulatory History The applicable statutory and regulatory history, as set forth by the parties in the Stipulations of Fact (¶¶ 1-49) and Addition Stipulations of Fact (as cited), is:
A. Introduction In March 2010, Congress enacted the ACA. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010). The ACA established new requirements for “group health plan[s],” broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1). Section 1001 of the ACA requires all group health plans and health insurance issuers that offer non-grandfathered, non-exempt group or individual health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(“HRSA”)].” 42 U.S.C. § 300gg-13(a)(4). The ACA provides that certain of its provisions apply to “grandfathered health plans” and certain of its provisions, including 42 U.S.C. § 300gg-13, do not apply to “grandfathered health plans.” 42 U.S.C. § 18011. The contraceptive mandate does not apply to qualifying
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“grandfathered” plans, and such plans are not required to comply with the preventive services coverage requirement of 42 U.S.C. § 300gg-13 . Additional Stipulated Facts, ¶¶ 1-2.
B. Regulatory Background 1. Rulemaking from July 2010 to March 2012
On July 19, 2010, Defendants issued interim final rules, incorporating the statutory requirement that group health plans provide coverage for women’s “preventive care.” 75 Fed. Reg. 41,726 (citing 42 U.S.C. § 300gg-13(a)(4)). These initial rules did not define “preventive care,” noting that “[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1, 2011.” Id. at 41,731. At that time, there were no existing HRSA guidelines relating to preventive care and screening for women.
The Department of Health and Human Services (“HHS”) tasked the Institute of Medicine (“IOM”), a non-governmental organization, with “review[ing] what preventive services are necessary for women’s health and well-being and should be considered in the development of comprehensive guidelines for preventive services for women.” IOM Report at 2. On July 19, 2011, the IOM Committee released a report entitled “Clinical Preventive Services for Women: Closing the Gaps 19-20, 109 (2011) (“IOM Report”). The IOM Report recommended that the HRSA guidelines include, among other things, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity” (“Preventive Services”). IOM Report at 10-12. 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. The IOM Report included a dissent from Committee member Anthony Lo Sasso.
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On August 1, 2011, HHS issued a press release announcing that it would adopt the recommendations of the IOM Report. U.S. Dept. of Health and Human Services, “Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost,” available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html.
Also, on August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, encompassing all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider, subject to an exemption relating to certain religious employers authorized by regulations issued that same day (the “2011 amended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”).
In August 2011, the Government issued interim final rules implementing the statutory requirement that group health plans provide coverage for women’s “preventive care and screenings . . . as provided for in comprehensive guidelines supported by [HRSA].” 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011).
The August 2011 interim final rules also amended the July 19, 2010 interim rules to provide HRSA additional discretion to exempt “religious employers” from the contraceptive coverage requirement. Id. To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
a. The inculcation of religious values is the purpose of the organization; b. The organization primarily employs persons who share the religious tenets of
the organization; c. The organization serves primarily persons who share the religious tenets of
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d. The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended [i.e., an organization exempted from filing IRS Form 990].
Id. at 46,623. The Government sought “to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions.” Id.
In February 2012, the Government “finalize[d], without change,” the “religious employer” exemption as originally proposed in the August 2011 interim final rules. 77 Fed. Reg. at 8,729 (Feb. 15, 2012). In February 2012, the Government also created a “one-year safe harbor from enforcement” for non-grandfathered group health plans sponsored by certain nonprofit organizations with religious objections to contraceptive coverage. See 77 Fed. Reg. 8725, 872628 (Feb. 15, 2012). The Government undertook a new rulemaking during the safe harbor period to adopt new regulations applicable to non-grandfathered nonprofit religious organizations with religious objections to covering Preventive Services. Id. at 8728.
On March 21, 2012, the Government issued an Advance Notice of Proposed Rulemaking (“ANPRM”) that stated it was part of the Government’s effort “to develop alternative ways of providing contraceptive coverage without cost sharing in order to accommodate non-exempt, nonprofit religious organizations with religious objections to such coverage.” 77 Fed. Reg. 16,501, 16,503 (Mar. 21, 2012).
2. Rulemaking from February to July 2013 On February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”), setting forth a proposal that stated it was to “amend the criteria for the religious employer exemption to ensure that an otherwise exempt employer plan is not disqualified
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because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths,” and to “establish accommodations for health coverage established or maintained by eligible organizations, or arranged by eligible organizations that are religious institutions of higher education, with religious objections to contraceptive coverage.” See 78 Fed. Reg. 8456 (Feb. 6, 2013).
Defendants received over 400,000 comments (many of them standardized form letters) in response to the proposals set forth in the NPRM. 78 Fed. Reg. 39,870, 39,872 (July 2, 2013).
On June 28, 2013, the Government issued final rules adopting and/or modifying proposals in the NPRM. See 78 Fed. Reg. 39,870 (“Final Rule”). The regulations challenged here (the “2013 final rules”) include the new regulations issued by the Government and applicable to non-grandfathered, nonprofit religious organizations with religious objections to covering Preventive Services. See 78 Fed. Reg. 39,870; see also 77 Fed. Reg. 16,501 (ANPRM); 78 Fed. Reg. 8456 (NPRM).
a. The 2013 Final Rules’ “Religious Employer” Exemption The Final Rule states that it “simplify[ied] and clarify[ied] the definition of “religious employer.” 78 Fed. Reg. at 39,871. Under the new definition, an exempt “religious employer” is “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. 39874 (codified at 45 CFR § 147.131(a)). The groups that are “refer[red] to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code,” are:
(i) churches, their integrated auxiliaries, and conventions or associations of churches, and
* * * (iii) the exclusively religious activities of any religious order.
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26 U.S.C. § 6033(a)(3)(A)(i) or (iii). Section 6033 of the Internal Revenue Code addresses
whether and when nonprofit entities that are exempt from paying taxes under the Code must file
“annual information [tax] return[s].” 26 C.F.R. § 1.6033-2(a).
The new definition of “religious employer” does “not expand the universe of religious
employers that qualify for the exemption beyond that which was intended in the 2012 final
regulations.” 78 Fed. Reg. at 39,874 (citing 78 Fed. Reg. 8461). Entities that are included in
Section 6033(a)(3)(A) are exempt from filing an annual Form 990 with the IRS.17
17 The IRS has developed a non-exhaustive list of fourteen facts and circumstances that may be considered, in addition to “any other facts and circumstances that may bear upon the organization’s claim for church status,” in assessing whether an organization is a “church” under section 6033(a)(3)(A)(i) of the Internal Revenue Code. See Foundation of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009); Internal Revenue Manual 7.26.2.2.4. The list of fourteen facts and circumstances includes the following:
(1) a distinct legal existence; (2) a recognized creed and form of worship; (3) a definite and distinct ecclesiastical government; (4) a formal code of doctrine and discipline; (5) a distinct religious history; (6) a membership not associated with any church or denomination; (7) an organization of ordained ministers; (8) ordained ministers selected after completing prescribed studies; (9) a literature of its own; (10) established places of worship; (11) regular congregations; (12) regular religious services; (13) Sunday schools for the religious instruction of the young; and (14) schools for the preparation of its ministers. Id.
In 26 C.F.R. § 1.6033-2(h), the Treasury Regulations provide a 3-factor test to determine whether a group is an “integrated auxiliary” under section 6033(a)(3)(A)(i) of the Internal Revenue Code. According to the Treasury Regulation, the term “integrated auxiliary of a church” means an “organization that is: (i) [d]escribed in both sections 501(c)(3) and 509(a)(1), (2), or (3); (ii) [a]ffiliated with a church or a convention or association of churches; and (iii) [i]nternally supported.” 26 C.F.R. § 1.6033-2(h)(1).
An organization is “internally supported” for purposes of subparagraph (h)(1)(iii), above, of this section, unless it both,
(i) Offers admissions, goods, services or facilities for sale, other than on an incidental basis, to the general public (except goods, services, or facilities sold at a nominal charge or for an insubstantial portion of the cost); and
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The 2013 final rules’ amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013. See id. at 39,871.
b. The 2013 Final Rules’ “Accommodation” The 2013 final rules establish regulations regarding the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations.” 78 Fed. Reg. at 39,875-80; 45 C.F.R. § 147.131(b). An “eligible organization” is an organization that satisfies the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies.
(ii) Normally receives more than 50 percent of its support from a combination of governmental sources, public solicitation of contributions, and receipts from the sale of admissions, goods, performance of services, or furnishing of facilities in activities that are not unrelated trades or businesses. An entity’s eligibility for exemption as a religious employer is determined on an employer-by-employer basis. See 78 Fed. Reg. at 39,886. An entity that offers a health plan to its employees that is administered by a qualified religious employer must independently qualify for the religious employer exemption to be exempt. 78 Fed. Reg. 39,886; see also 78 Fed. Reg. at 8456, 8463.
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45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75. The 2013 final rules state that an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874.
To be relieved of the obligations that otherwise apply to non-grandfathered, non-exempt employers, the 2013 final rules require that an eligible organization complete a self-certification form, certifying that it is an eligible organization, sign the form, and provide a copy of that selfcertification to its insurer or TPA. Id. at 39,878-79.
For self-insured organizations, the self-certification “will afford the [TPA] notice of [its] obligations” under the 2013 final rules, “and will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” 78 Fed. Reg. at 39,879. Section 3(16) of ERISA provides the definition of “administrator” under ERISA. 29 U.S.C. § 1002(16).
Under the 2013 final rules, in the case of an eligible organization with a self-insured group health plan, the organization’s TPA, upon receipt of the self-certification, will provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan without cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80; 26 C.F.R. § 54.9816-2713A(b)(2), (c)(2).
Under the 2013 final rules, costs incurred by TPAs relating to the coverage of Preventive Services for employees of eligible organizations will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See 78 Fed. Reg. at 39,880. The payments for Preventive Services required by the challenged regulations applicable to employer-sponsored health insurance plans are available to an employee only while the employee is on an organization’s health plan. 29 C.F.R. § 2590.715-2713; 45 C.F.R. § 147.131(c)(2)(i)(B).
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Self-insured religious employers and eligible organizations are prohibited from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure Preventive Services. 26 C.F.R. § 54.9815–2713.
The 2013 final rules’ “accommodation” applies to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014. See id. at 39,872.
IV. Summation of Findings of Fact Based upon testimony presented at the Injunction Hearing, credibility determinations of the witnesses by this Court, and the sum of evidence presented in various forms, the Court finds in summary that:
(1) Plaintiffs hold sincerely to the religious beliefs of the Catholic faith that: (a) human life is sacred from conception to natural death; (b) worship, faith, and good works are essential and integral to the practice of Catholicism (“faith without good works is dead”); and (c) the facilitation of evil is as morally odious as the proliferation of evil.
(2) Plaintiffs will refuse to provide, directly or indirectly, employee health insurance coverage for contraceptive products, services, or counseling, because doing so would violate their sincerely-held religious beliefs.
(3) The nonprofit, religious affiliated/related Plaintiffs (Catholic Charities, St. Martin Center, Prince of Peace Center, and Erie Catholic) will not complete the selfcertification form. These Plaintiffs will partake in this act of civil disobedience because to do otherwise – meaning signing the self-certification form – will initiate (“cause a process of action to begin”) and facilitate coverage of contraceptive products, services,
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and counseling by a TPA or health insurer. The act of signing the self-certification form will violate these Plaintiffs’ sincerely-held religious beliefs. Hearing Transcript, November 13, 2013, pg. 54, lines 23-25, pg. 55, lines 1-9. Further, the Bishops will direct these Plaintiffs not to complete the self-certification form. Hearing Testimony, Bishop Zubik, pg. 43, lines 2-10; Hearing Testimony, Bishop Persico, pg. 80, lines 1-8, pg. 82, lines 14-16, pg. 91, lines 7-9.
(4) The nonprofit, religious affiliated/related Plaintiffs will be subject to substantial fines/penalties/“taxes” and other coercive governmental sanctions.
(5) The effect of the imposition of these fines/penalties/“taxes” will gravely impact Plaintiffs’ spiritual, charitable, and educational activities, and the individuals who rely on the Catholic Church’s nonprofit, religious affiliated/related organizations for the basic needs of food, shelter, and education, as well as other charitable programs. Cardinal Dolan Deposition, (13-cv-303, Doc. No. 52; 13-cv-1459, Doc. No. 53), pg. 29, lines 5-21. The fines/penalties/“taxes” also will negatively affect Plaintiffs’ financial situation as donors to these spiritual/charitable/educational organizations may not wish to donate funds when the funds could be diverted to the Government in the form of fines/penalties/“taxes.”
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V. Conclusions of Law
A. Overview
As far as this Court is aware, the facts presented by these two cases make them one of
first-impression. As of this writing, no appellate court has rendered a decision on the merits of a
non-secular, nonprofit organization’s rights under the RFRA, as impacted by the ACA’s
contraceptive mandate, and the “religious employer exemption” and “accommodation” which relate to that mandate.18
In reaching its decision in these two cases, this Court has found the recent decisions
pertaining to secular, for-profit organizations to be instructive. See Korte v. Sebelius, --- F.3d ---, 2013 WL 5960692 (7th Cir. Nov. 8, 2013) (granting preliminary injunction to secular, for-profit
corporations finding them to be “persons” who could assert claims under the RFRA alleging that
the ACA’s contraceptive mandate placed substantial burden on their exercise of religion);
18 In Liberty University, Inc. v. Lew, 733 F.3d 72 (4th Cir. 2013), the Court of Appeals upheld the constitutionality of two provisions of the ACA – the “individual mandate,” which requires individuals to purchase a minimum level of health insurance coverage, and the “employer mandate,” which requires certain employers to offer such coverage to their employees and their dependents. Following a remand by the United States Supreme Court, and while on appeal to the Court of Appeals for the Fourth Circuit, Liberty University, for the first time, challenged as abortifacients all forms of FDA-approved contraception that “may act after fertilization,” including emergency contraceptive pills and intra-uterine devices. 733 F3.d at 103. Because this claim had never been raised before, the Court of Appeals refused to “consider an issue not passed upon below” and declined to rule on the merits of this claim. Id. Thus, assuming Liberty University is a non-secular, nonprofit educational institution, the appellate court did not reach the merits of its “contraceptive mandate” claim.
The Court further notes that there are other United States District Courts addressing whether the contraceptive mandate applies to non-secular, nonprofit organizations via the “accommodation.” See, i.e., Geneva College v. Sebelius, --- F.Supp.2d ----, 2013 WL 3071481 (W.D. Pa. June 18, 2013) (granting preliminary injunction preliminary injunction to religious college, protecting it from complying the ACA’s contraceptive mandate), notice of appeal filed, United States Court of Appeals for the Third Circuit, Case Number 13-2814; and the recently re-opened East Texas Baptist University v. Sebelius, Civil Action No. H–12–3009 (S.D. Tex).
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Gilardi v. U.S. Dept. Health and Human Services, --- F.3d ----, 2013 WL 5854246 (C.A. D.C. Nov. 1, 2013) (holding secular, for-profit entity was not a “person” capable of religious exercise, but individual owners were); Conestoga Wood Specialties Corporation v. Secretary of U.S. Dept. of Health and Human Services, 724 F.3d 377 (3d Cir. July 26, 2013) (a secular, for-profit corporation could not assert claim under Free Exercise Clause of First Amendment); and Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. June 27, 2013) (in moving for a preliminary injunction, secular, for-profit corporations showed a substantial likelihood of success on the merits as to the substantial-burden element of their claim under the RFRA).
The Court begins its analysis by considering the four criteria Plaintiffs must prove in order to obtain a preliminary injunction.
B. Preliminary Injunction Test The primary purpose of a preliminary injunction is to maintain the status quo until a decision on the merits of the case is rendered. University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). “Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Id. “Four factors determine whether a preliminary injunction is appropriate: ‘(1) whether the movant has a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed by denying the injunction; (3) whether there will be greater harm to the nonmoving party if the injunction is granted; and (4) whether granting the injunction is in the public interest.’” B.H. ex rel. Hawk v. Easton Area School Dist., 725 F.3d 293, 301-2 (3d Cir.
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2013) (quoting Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 252 (3d Cir. 2002) quoting Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 170 (3d Cir. 2001)).
“A plaintiff seeking an injunction must meet all four criteria, as ‘[a] plaintiff’s failure to establish any element in its favor renders a preliminary injunction inappropriate.’” Conestoga Wood Specialties Corp. v. Secretary of U.S. Dept. of Health and Human Svcs., 724 F.3d 377, 382 (3d Cir. 2013) (quoting NutraSweet Co. v. Vit–Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999)); accord, Duraco Products, Inc. v. Joy Plastic Enterprises, Ltd., 40 F.3d 1431, 1438 (3d Cir. 1994) ( “The injunction should issue only if the plaintiff produces evidence sufficient to convince the district court that all four factors favor preliminary relief.”).
As to the first criterion, the movant bears the burden of proving a reasonable probability of success on the merits. “[O]n an application for preliminary injunction, the plaintiff need only prove a prima facie case, not a certainty that he or she will win.” Highmark, Inc., 276 F.3d at 173, citing 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.3 (Civil 2d ed. 1995).
The second criterion requires the movant prove that “irreparable injury is likely in the absence of an injunction” – the mere “possibility” of such irreparable harm “is too lenient.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). “While the burden rests upon the moving party to make these [first] two requisite showings, the district court ‘should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest.’” Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994), quoting Delaware River Port Auth. v. Transamerican Trailer Transp., Inc., 501 F.2d 917, 919–20 (3d Cir. 1974) (footnote omitted).
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In order to satisfy the third criterion, this Court must find “that the party seeking the injunction would suffer more harm without the injunction than would the enjoined party if it were granted.” Pittsburgh Newspaper Printing Pressmen’s Union No. 9 v. Pittsburgh Press Co. 479 F.2d 607, 609 -610 (3d Cir. 1973). In Winter, the Supreme Court of the United States noted that although it did “not question the seriousness of [the movant’s] interests, . . . the balance of the equities and consideration of the overall public interest in this case tip[ped] strongly in favor of the [non-moving party].” 555 U.S. at 26. Thus, this criterion requires this Court to employ a balancing test that compares the harms the movant and non-movant would suffer and then weighs them to discern which party would be more greatly harmed by the Court’s grant or denial of the injunction.
The fourth and final criterion is closely tied to the third in that it requires this Court to determine if the public’s interest will be furthered or harmed by the issuance of a preliminary injunction. See Trefelner ex rel. Trefelner v. Burrell School Dist., 655 F.Supp.2d 581, 597-8 (W.D. Pa. 2009) (“With regard to the public interest prong, the court finds that granting the temporary restraining order is in the public interest. The focus of this prong is ‘whether there are policy considerations that bear on whether the order should issue,’” citing 11A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE § 2948.4 (Civil 2d ed. 1995)). “‘The grant or denial of a preliminary injunction is committed to the sound discretion of the district judge, who must balance all of these factors in making a decision.’” Spartacus, Inc. v. Borough of McKees Rocks, 694 F.2d 947, 949 (3d Cir. 1982), quoting Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir. 1972).
Turning to the instant matter, Plaintiffs in these cases have requested that this Court grant them a preliminary injunction, arguing that the ACA and the religious employer
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“accommodation,” which requires them to facilitate/initiate compliance with the contraceptive mandate, violates their rights under the RFRA and the Free Exercise Clause of the First Amendment.
1. Likelihood of Success on the Merits a. Background
Plaintiffs’ Motions for Expedited Preliminary Injunction ask this Court to enjoin the issuance, application, and enforcement of a federal regulation, specifically 45 C.F.R. § 147.130(a)(1)(iv), arguing that they are likely to succeed on their RFRA and First Amendment claims. 13-cv-1459, Doc. No. 4; 13-cv-303, Doc. No. 6.
As noted in Section “III. B. 2.” above, 45 C.F.R. § 147.130(a)(1)(iv) is the regulation that allows HRSA to “establish exemptions” from group health plans maintained by “religious employers” with respect “to any requirement to cover contraceptive services[.]” See 45 C.F.R. § 147.130(a)(1)(iv)(A); see also Gilardi, supra, 2013 WL 5854246, *1 (C.A. D.C. Nov. 1, 2013).
After receiving hundreds of thousands of comments from the public, including religious individuals and entities, concerning the definition of “religious employer” for the benefit of receiving an “exemption” from the contraceptive mandate, the “final rule” promulgated by HRSA defined a “religious employer” as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code . . . .” 45 C.F.R. § 147.131(a).
Again, as noted in Section “III. B. 2.” above, the nonprofit entities included in the relevant portion of Section 6033 of the Internal Revenue Code are:
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(i) churches, their integrated auxiliaries, and conventions or associations of churches,
* * * (iii) the exclusively religious activities of any religious order.
26 U.S.C.A. § 6033(a)(3)(A).
Given this description, Plaintiffs in the instant cases (the nonprofit, religious
affiliated/related entities) fail to meet the definition of a “religious employer” entitled to the
“exemption.” As the United States Court of Appeals for the Seventh Circuit noted in Korte:
The religious-employer exemption did not leave room for the conscientious religious objectors other than houses of worship, their integrated affiliate organizations, and religious orders acting as such. In other words the definition of ‘religious employer’ was so circumscribed that it left out religious colleges and universities; religious hospitals and clinics; religious charities and social-service organizations; other faithbased nonprofits; and for-profit, closely held businesses managed in accordance with a religious mission or creed.
Korte, 2013 WL 5960692, *3. Plaintiffs in the instant cases are akin to the Korte plaintiffs in
that the instant Plaintiffs are entities to which the religious employer “exemption” does not
apply. If HRSA had stopped here, non-secular, nonprofit entities such as Plaintiffs would have
been required to directly provide for contraceptive products, services, and counseling pursuant to
the contraceptive mandate.
However, in response to concerns that the application of the religious employer
“exemption” was too narrow, and instead of broadening the “exemption,” a second regulation
was enacted that allowed for non-secular, nonprofit employers to receive an “accommodation,”
whereby these entities could self-certify that they were “eligible organizations” and thereby
avoid directly providing contraceptive products, services, and counseling.
As noted above, this “accommodation” is limited to “eligible organizations” which:
(1) oppose providing coverage for some or all of any contraceptive services required to be 44

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covered under the contraceptive mandate “on account of religious objections[;]” (2) are organized and operate as a nonprofit entity; (3) hold themselves out as a religious organization; and (4) “self-certify,” in a form and manner specified by the Secretary, that it satisfies the criteria in (1) through (3) above. See 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75. “The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.” Id.
Since the non-secular, nonprofit Plaintiffs in the instant cases meet the first three criteria of the “accommodation,” they need to “self-certify,” as required by the fourth criterion, to be deemed an “eligible organization” and thus, entitled to obtain the religious employer “accommodation.” It is the fourth criterion of the religious employer “accommodation” which Plaintiffs contend violates their rights under the RFRA and the First Amendment.19
In order to qualify for the religious employer “accommodation,” and thus avoid directly providing or paying for contraceptive products, services, and counseling through their own health plans, Plaintiffs in these cases must self-certify that they: (1) oppose providing such contraceptive coverage on account of their religious objections; (2) are organized and operate as nonprofit entities; and (3) hold themselves out as a religious organization. This Court found as fact that Plaintiffs’ self-certification forms must be executed by the Bishop of Pittsburgh (with respect to the Pittsburgh Plaintiffs in 13-cv-1459) and by the Bishop for the Diocese of Erie (with respect to the Erie Plaintiffs in 13-cv-303), or at their directive.
19 Notably, subpart “(c)” of same regulation provides that entities who meet all four criteria, thereby entitles them to an “accommodation,” and will not have to pay for the contraceptive products, services, and counseling. A third party will. See 45 C.F.R. § 147.131(c).
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b. Substantial Burden20 under RFRA i. The RFRA
Plaintiffs assert that by requiring self-certification and thereby facilitating or initiating the process of providing contraceptive products, services, and counseling, via a third party, the “accommodation,” violates their rights under the RFRA.
The RFRA provides, in pertinent part, as follows: 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 means of furthering that compelling governmental interest.
42 U.S.C.A. § 2000bb-1. As noted by the Government, under the “substantial burden test,” this Court must look to
what is meant by “substantial burden” under the RFRA. As the Court of Appeals for the Seventh Circuit recently noted in Korte, “[a]t a minimum, a substantial burden exists when the government compels a religious person to ‘perform acts undeniably at odds with fundamental tenets of [his] religious beliefs.’” 2013 WL 5960692 at *22, citing Wisconsin v. Yoder, 406 U.S. 205, 218 (1972). Korte further instructs that “a burden on religious exercise also arises when the
20 The Government declined to stipulate to the “substantial burden” portion of this test. 13-cv-303, Doc. No. 30, 4; 13-cv-1459, Doc. No. 25, 4.
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government ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Id., citing Thomas v. Review Bd. of Indiana Employment Sec. Division, 450 U.S. 707, 718 (1981). “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unimportant to the adherent’s religious scheme.” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (citing Thomas, 450 U.S. at 718 (1981)).
The Government argues that the “accommodation” merely requires the Pittsburgh and Erie Bishops (or their designees) to sign the self-certification form on behalf of their respective nonprofit, religious affiliated/related entities, and does not rise to the level of a “substantial burden,” as that term has been defined in connection with the RFRA. The Government argues that any impact on Plaintiffs’ sincerely-held religious beliefs created by Plaintiffs’ selfcertification is too attenuated to rise to the level of creating a substantial burden on Plaintiffs.
The Government acknowledges that the act of self-certification will require the Plaintiffentities to sign the self-certification and supply a third party with the names of the Plaintiffs’ respective employees so that the third-party may provide (and/or pay for) contraceptive products, services, and counseling. The Government also concedes that Plaintiffs have sincerely-held religious beliefs with respect to: (1) the sanctity of human life from conception to natural death; (2) unity of worship, faith, and good works (“faith without good works is dead”); and (3) the facilitation of evil is as morally odious as the proliferation of evil.
Given these concessions, the Court disagrees with the Government that Plaintiffs’ ability or inability to “merely sign a piece of paper,” and thus comport with the “accommodation,” is all that is at issue here. Again, as stated by the Court of Appeals in Korte:
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. . . the test for substantial burden does not ask whether the claimant has correctly interpreted his religious obligations. See Lee, 455 U.S. at 257; Thomas, 450 U.S. at 715–16. Indeed, that inquiry is prohibited. “[I]n this sensitive area, it is not within the judicial function and judicial competence to inquire whether the [adherent has] . . . correctly perceived the commands of [his] . . . faith. Courts are not arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716. It is enough that the claimant has an “honest conviction” that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion. Korte at *22. Here, the issue is whether Plaintiffs, being non-secular in nature, are likely to succeed on the merits of proving that their right to freely exercise their religion has been substantially burdened by the “accommodation” which requires the Bishops of two separate Dioceses (or their designees) to sign a form which thereby facilitates/initiates the provision of contraceptive products, services, and counseling.
ii. The “Accommodation” Creates a New Substantial Burden
The Government contends that the affirmative acts of: (1) signing the self-certification form stating Plaintiffs’ religious objections; (2) compiling a list of Plaintiffs’ employees; and (3) providing those items to the health insurer or TPA, does not place a substantial burden on Plaintiffs. The Government further argues that these same acts have been undertaken by Plaintiffs in the past. In response, Plaintiffs concede that they have provided similar information in the past to their TPA, and that the physical acts themselves are not onerous. However, in the past, such actions barred the provision of contraceptive products, services, or counseling. Now, this type of information previously submitted to an insurer or TPA will be used to facilitate/initiate the provision of contraceptive products, services, or counseling – in direct contravention to their religious tenets.
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Plaintiffs liken this result by analogy to a neighbor who asks to borrow a knife to cut something on the barbecue grill, and the request is easily granted. The next day, the same neighbor requests a knife to kill someone, and the request is refused. It is the reason the neighbor requests the knife which makes it impossible for the lender to provide it on the second day.
The same is true here. In all prior instances where the Government, an insurer, or a TPA has requested employee names or other information from Plaintiffs, the reason the information was sought was of no moment to Plaintiffs. Now, under the “accommodation,” the reason the documentation is required is so that contraceptive products, services, and counseling can be provided in direct contravention of Plaintiffs’ sincerely-held religious beliefs. The Government is asking Plaintiffs for documentation for what Plaintiffs sincerely believe is an immoral purpose, and thus, they cannot provide it.
In sum, although the “accommodation” legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides contraceptive products, services, and counseling, the “accommodation” requires them to shift the responsibility of purchasing insurance and providing contraceptive products, services, and counseling, onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.
iii. The “Accommodation” and the “Exemption” Divide the Catholic Church which Creates a Substantial Burden
The Government, by enacting the religious employer “exemption,” allowed certain religious employers (i.e., the Dioceses and “houses of worship”) to freely exercise the religious
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belief that “contraception violates the sanctity of human life,” by completely exempting them from the contraceptive mandate. Thus, the “exempt” religious employers do not have to directly provide contraceptive products, services, and counseling through their own health plans, nor do they have to provide a list of their employees to a third party and thereby indirectly provide contraceptive products, services, and counseling through that same third party. However, the religious employer “accommodation” separates the “good works (faith in action) employers” from the “houses of worship employers” within the Catholic Church by refusing to allow the “good works employers” the same burden-free exercise of their religion.
Under the “accommodation,” Plaintiffs here (i.e., the “good works (faith in action) employers”) will be forced to facilitate/initiate the provision of contraceptive products, services, and counseling, through a third party, despite the fact that the sincerity of their religious beliefs – “contraception violates the sanctity of human life” and “facilitation of evil is as morally odious as the proliferation of evil” – are not in question.
Simply put, the Court is constrained to understand why all religious employers who share the same religious tenets – (1) the sanctity of human life from conception to natural death; (2) unity of worship, faith, and good works (“faith without good works is dead”); and (3) the facilitation of evil is as morally odious as the proliferation of evil – are not exempt; or conversely, why all religious employers do not fall within the confines of the “accommodation.” The Court made the factual determination that Plaintiffs sincerely believe that the “good works, or faith-in-action” arms of the Catholic Church implement a core and germane guiding principle in the exercise of their religious beliefs. Why should religious employers who provide the charitable and educational services of the Catholic Church be required to facilitate/initiate the
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provision of contraceptive products, services, and counseling, through their health insurers or TPAs, when religious employers who operate the houses of worship do not?
To this question, the Government does not provide a direct answer. Rather, the Government takes the position that Plaintiffs cannot use the RFRA as a sword to prevent the Government from creating “alternate mechanisms” to essentially protect the rights of employees and to make sure that they are receiving the mandated health services. However, the Government, through its “exemption” regulation, allows the religious employers who operate the houses of worship to do just that, while denying the same benefit to the religious employers who operate on behalf of, and at the direction of, the Catholic Church.
What this Court finds equally problematic with the Government’s position is that the Bishops of these two Dioceses may freely exercise those same three religious tenets referred to above, as long as they espouse them within the confines of a “house of worship.” When they provide health insurance for the employees who work for the houses of worship, they are not in any moral danger of directly or indirectly providing contraceptive products, services, and counseling. However, these same two individuals, as the spiritual leaders for the Plaintiffs at issue in these cases, must personally take at least three affirmative actions (sign a selfcertification form, compile a list of employees, and provide these to an insurer or TPA) in order to escape directly providing contraceptive products, services, and counseling to the employees of the charitable and educational agencies, while knowingly facilitating/initiating the process for the provision of contraceptive services, products, and counseling through a third party. The Bishops, given their three sincerely-held religious beliefs, while wearing their “house-of-worship” hats, are not in any moral peril; yet, when they wear their “head-of-the-‘good works’-agencies” hats,
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they must take affirmative actions which facilitate/initiate the provision of contraceptive products, services, and counseling in violation of their religious tenets.
Thus, the practical application of the two distinct regulations (one an “exemption” and one an “accommodation”) allows the same members of the same religion to completely adhere to their religious beliefs at times (when the “exemption” applies), while other times, forces them to violate those beliefs (when the “accommodation” applies). Stated another way, even though Plaintiffs here share identical, religious beliefs, and even though they share the same persons as the religious heads of their organizations, the heads of Plaintiffs’ service organizations may not fully exercise their right to those specific beliefs, when acting as the heads of the charitable and educational arms of the Church. The Court finds this enigmatic.
Furthermore, the Court is constrained to understand why religious employers such as Catholic Charities and Prince of Peace Center– which were borne from the same religious faith, and premised upon the same religious tenets and principles, and operate as extensions and embodiments of the Church, but are not subsidiaries of a parent corporation – would not be treated the same as the Church itself with respect to the free exercise of that religion. If the contraceptive mandate creates such a substantial burden on the Dioceses’ exercise of religion so as to require the religious employer “exemption,” the contraceptive mandate obviously creates the same substantial burden on the nonprofit, religious affiliated/related organizations like Plaintiffs (i.e., Catholic Charities, Prince of Peace Center, et al.), which implement the “good works” of the Dioceses.
The Court concludes that the religious employer “exemption” enables some religious employers to completely eliminate the provision of contraceptive products, services, and counseling through the Dioceses’ health plans and third parties; while the religious employer
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“accommodation” requires other religious employers (often times the same member with the same sincerely-held beliefs) to take affirmative actions to facilitate/initiate the provision of contraceptive products, services, and counseling – albeit from a third-party.
The application of these two regulations – one an exemption and one an accommodation – has the effect of dividing the Catholic Church into two separate entities. Now, one regulation (the “exemption”) applies to the worship arm of the Catholic Church and thus applies to all of those employees who work inside a church’s walls. While the other regulation (the “accommodation”) applies to the “good works” arms of the Catholic Church, and thus applies to those who stand on the church steps and pass out food and clothes to the needy. The Court concludes that by dividing the Catholic Church in such a manner with the enactment of these two regulations, the Government has created a substantial burden on Plaintiffs’ right to freely exercise their religious beliefs.
iv. Conclusion re: Substantial Burden For the reasons set forth above, the Court concludes that the religious employer “accommodation” places a substantial burden on Plaintiffs’ right to freely exercise their religion – specifically their right to not facilitate or initiate the provision of contraceptive products, services, or counseling. Thus, Plaintiffs have met their burden of proving that complying with the “accommodation” provision of the contraceptive mandate is a substantial burden on their free exercise of religion.
c. Compelling Governmental Interest under the RFRA Given that the Court has concluded (for purposes of these Motions for Expedited Preliminary Injunction) that the “accommodation” places a substantial burden on Plaintiffs’ free exercise of religion under the RFRA, the Court will now consider whether the RFRA’s exception
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has been met. Accordingly, the Court must determine whether the contraceptive mandate, as
applied to Plaintiffs via the “accommodation”: (1) furthers a compelling governmental interest,
and (2) is the least restrictive means of furthering that compelling governmental interest. 42
U.S.C.A. § 2000bb-1.
As to the compelling interest test, the Court of Appeals in Korte stated:
The compelling-interest test generally requires a “high degree of necessity.” Brown v. Entm’t Merchs. Ass’n, ––– U.S. ––––, ––––, 131 S.Ct. 2729, 2741, 180 L.Ed.2d 708 (2011). The government must “identify an ‘actual problem’ in need of solving, and the curtailment of [the right] must be actually necessary to the solution.” Id. at 2738 (citations omitted). In the free-exercise context, “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Yoder, 406 U.S. at 215. “[I]n this highly sensitive constitutional area, only the gravest abuses, endangering paramount interests, give occasion for permissible limitation . . . .” Sherbert, 374 U.S. at 406 (internal quotation marks and alteration omitted). The regulated conduct must “pose[ ] some substantial threat to public safety, peace[,] or order.” Id. at 403. Finally, “a law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547 (internal quotation marks omitted).
Korte, 2013 WL 5960692, *25.
The “compelling governmental interests” identified by the Government in this case are
two-fold: (1) “the promotion of public health,” and (2) “assuring that women have equal access
to health care services.” 13-cv-1459, Doc. No. 23, 20-21; 13-cv-303, Doc. No. 28, 20.
While the Court agrees that these two interests are certainly important governmental
interests, the Court concludes that these two interests, as so broadly stated,21 are not “of the
21 This Court further notes that, the Court of Appeals in Korte took great offense to the Government’s identification of its two “compelling” interests stating:
The government identifies two public interests—“public health” and “gender equality”— and argues that the contraception mandate furthers these interests by reducing unintended pregnancies, achieving greater parity in health-care costs, and promoting the autonomy of
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highest order” such that “those not otherwise served can overbalance legitimate claims to the free
exercise of religion.” Yoder, 406 U.S. at 215.
In reaching this conclusion, the Court first notes that the existence of a religious
employer “exemption” is an acknowledgment of the lack of a compelling governmental interest
as to religious employers who hire employees for their “houses of worship.” Simply put, as
stated more fully above, the religious employers who qualify for the “exemption” do not have to
directly provide, nor indirectly facilitate/initiate, the provision of any contraceptive products,
services, and counseling. At a minimum, the existence of the “exemption” is an indication that
the Government found its compelling interests to (1) promote public health, and (2) assure that
women would have equal access to health care services, could not “overbalance the legitimate
claims to the free exercise of religion” asserted by some religious employers – i.e., the houses of
worship. Yoder, 406 U.S. at 215; see also Geneva College, 2013 WL 3071481 at *10.
Thus, the Government’s argument that its two stated compelling interests will not
overbalance the exact same legitimate claims to the free exercise of religion (at times being
women both economically and in their reproductive capacities. This argument seriously misunderstands strict scrutiny. By stating the public interests so generally, the government guarantees that the mandate will flunk the test. Strict scrutiny requires a substantial congruity—a close “fit”—between the governmental interest and the means chosen to further that interest. Stating the governmental interests at such a high level of generality makes it impossible to show that the mandate is the least restrictive means of furthering them. There are many ways to promote public health and gender equality, almost all of them less burdensome on religious liberty. Other Courts have deemed these to be too broad to be held to be compelling. 2013 WL 5960692 at *25. See also Gonzales v. O Centro Espirita, 546 U.S. 418, 420 (2006) in which the Supreme Court of the United States held that Courts must look beyond “broadly formulated interests” justifying the application of Government mandates and scrutinize the asserted harm of granting specific exemptions to particular religious claimants. Invocation of general characteristics “cannot carry the day.” Id.
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raised by the same individuals – i.e., Bishop Zubik in the Pittsburgh case 13-cv-1459) when asserted on behalf of a different religious affiliated/related employer fails. If the Court were to conclude that the Government’s stated interests were sufficiently “compelling” to outweigh the legitimate claims raised by the nonprofit, religious affiliated/related Plaintiffs, the net effect (as noted above) would be to allow the Government to cleave the Catholic Church into two parts: worship, and service and “good works,” thereby entangling the Government in deciding what comprises “religion.” Accordingly, for purposes of reaching a decision on Plaintiffs’ Motions for Expedited Preliminary Injunction, the Court refuses to conclude that the Government has compelling interests which overbalance the legitimate claims to the free exercise of religion raised by the nonprofit, religious affiliated/related Plaintiffs.
The Court also notes that the “exemption” itself (which dictates that certain religious employers can legally decline to directly and indirectly facilitate the provision of contraceptive products, services, and counseling) was not predicated upon a “public health” basis to meet the two purported compelling interests. Instead, a religious employer’s qualifications for the “exemption” is predicated upon the unrelated question of whether that religious employer files the IRS Form 990. 45 C.F.R. § 147.131(a) (August 1, 2013).
If there is no compelling governmental interest to apply the contraceptive mandate to the religious employers who operate the “houses of worship,” then there can be no compelling governmental interest to apply (even in an indirect fashion) the contraceptive mandate to the religious employers of the nonprofit, religious affiliated/related entities, like Plaintiffs in these cases.
Despite the fact that the Government contends this analysis is “perverse” (see 13-cv1459, Doc. No. 29, 24), the only argument it offers to support its position is that “[h]ouses of
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worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers, including organizations eligible for the accommodation [i.e., Plaintiffs in the instant cases], to employ people of the same faith who share the same objection, and who would therefore be less likely to use contraceptive services even if such services were covered under their plan.” The Court finds this statement speculative, and unsubstantiated by the record and, therefore, unpersuasive.
Next, the portions of the Administrative Record offered into evidence by the Government suggest that “women who receive their health coverage through employers like plaintiffs would face negative health and other outcomes . . . .” 77 Fed. Reg. at 8728; 78 Fed. Reg., at 39, 887 (emphasis added). Despite this assertion, the Government has failed to offer any testimony or other evidence during the Injunction Hearing to support the Government’s claim that employees of these Plaintiffs have, in fact, suffered in the past, or will in the future, any “negative health or other outcomes,” without the enforcement of the contraceptive mandate. In fact, the evidence was to the contrary.
Finally, as stated above, whether intended or not, the application of two distinct regulations (one providing a complete “exemption,” the other merely providing an “accommodation”) to religious employers who hold the same basic religious tenets unnecessarily – and in direct contravention to the RFRA and the Free Exercise Clause of the First Amendment – entangles the Government into determining what constitutes “religion.” By having these two, separate regulations “on the books,” the Government has essentially detached worship and faith from “good works” and has determined that a religious employer’s complete freedom to exercise religion ends at the church doors. Once outside the church doors, that employer’s religious beliefs must take a back seat to the stated compelling governmental interests. The Government
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thus seeks to restrict the Right to the Free Exercise of Religion set forth in the First Amendment to a Right of Worship only.
For all of the reasons set forth above, the Court concludes that the Government has failed, factually and legally, to establish that its two stated governmental interests are “of the highest order” such that “those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Yoder, 406 U.S. at 215.
d. Least Restrictive Means under the RFRA Given that Plaintiffs have met their burden of showing that the “accommodation” creates a substantial burden on their free exercise of religion, and given that the Government has failed to meet its burden of proving that it had a compelling interest to apply the contraceptive mandate, via the “accommodation,” to Plaintiffs, the Court need not consider whether the “accommodation” was the least restrictive means of meeting the stated compelling interests. Nevertheless, the Court also concludes that the Government failed to adduce evidence that definitively establishes that it used the least restrictive means to meet the stated compelling government interests. First, the Government proffers that the “accommodation” was not only the “least restrictive means,” but the “only possible means” of furthering the two compelling governmental interests to: (1) promote public health, and (2) assure that women would have equal access to health services. The Government’s position is simply that this “accommodation” (i.e., the acts of signing a self-certification form and gathering/delivering employee list(s) to their health insurer or TPA) was the “least” and the “only possible means,” of furthering the two stated compelling governmental interests.
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If the Government is correct that the entire fundamental statutory scheme set forth in the ACA will fail, without the participation in the contraceptive mandate by nonprofit, religious affiliated/related Plaintiffs and others like them (i.e., food pantries, homeless shelters, etc.), which operate under the authority of an already exempt religious body (i.e., Plaintiff Erie Diocese), then the foundation of the “statutory scheme” is certainly troubled.
Under the RFRA, the “accommodation” must be the “least restrictive means” to further the two stated compelling governmental interests. The Government neither at the Injunction Hearing, nor in the Administrative Record, offered any evidence concerning: (1) the identity of all other possible “least restrictive means” considered by the Government; (2) the analysis of each of the “means” to determine which was the “least” restrictive; (3) the identity of the person(s) involved in the identification and evaluation of the alternative “means”; or (4) “evidence-based” analysis as to why the Government believes that the “accommodation” is the “least restrictive means.”
Instead, the Government argues that all the “accommodation” requires is a signature on a piece of paper. Once the signed document is received by the insurer or TPA, the contraceptive products, services, and counseling will then be made part of the nonprofit, religious affiliated/related Plaintiffs’ health care plan at no cost to the Plaintiffs – except, of course, for the incalculable cost of the loss of their rights to freely exercise their religion.
As noted throughout this Opinion, this Court has found that the Government conceded that Plaintiffs’ beliefs are sincerely-held. Despite these concessions, the Government trivializes these sincerely-held beliefs of Plaintiffs throughout its Brief in Opposition, to wit, the “accommodation”: (1) “requires virtually nothing of Plaintiffs” (13-cv-1459, Doc. No. 23, 9-10; 13-cv-303, Doc. No. 28, 9-10, 20); (2) “certainly does not require Plaintiffs to modify their
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behavior in any meaningful way” (id.); (3) is “no more than a de minimis burden” (id.); (4) requires Plaintiffs to “do next to nothing” (id.); and (5) Plaintiffs “need only fulfill the selfcertification requirement and provide the completed self-certification to their issuers and TPAs” (13-cv-1459, Doc. No. 23, 21). Further, there is nothing in the record to establish, or even hint, that a broader “religious employer” exemption, to include Plaintiffs (i.e., Catholic Charities, Prince of Peace Center, et al.), would have any impact at all on “the entire statutory scheme.”
During the Injunction Hearing, the Court specifically asked the Government about its stated compelling interests and the means it took to advance them. The Government directed the Court’s attention to a precise section of the Administrative Record which reads, in pertinent part:
Fifth, some commentators asserted that the contraceptive coverage requirement [the contraceptive mandate] is not the least restrictive means of advancing those compelling interests, and proposed various alternatives to these regulations. All of these proposals were considered, and it was determined that they were not feasible and/or would not advance the government’s compelling interests as effectively as the mechanisms established in these final regulations and the preventative services coverage more generally. 78 Fed.Reg. 39888 (July 2, 2013). As to this “argument,” the Court first notes that it is not the commentators’ responsibility to draft the regulations employing the least restrictive means – that obligation rests with the Government. Second, the regulation itself clearly announces that the alternatives to the current regulations – including the contraceptive mandate – would not advance the Government’s interests “as effectively as” the contraceptive mandate and the “accommodation.” Greater efficacy does not equate to the least restrictive means. Thus, the Court concludes that the Government failed to present any credible evidence tending to prove that it utilized the least restrictive means of advancing those interests.
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e. Conclusion – Likelihood of Success After hearing the testimony of Cardinal Dolan, Bishop Zubik, Bishop Persico, and all of the other witnesses for Plaintiffs, the Court made the factual determination that Plaintiffs possess a sincerely-held belief that the burden imposed by the execution of the self-certification form is not de minimis. Plaintiffs sincerely believe that by signing the self-certification form, required by the “accommodation,” they will facilitate/initiate the provision of contraceptive products, services, and counseling. Plaintiffs also sincerely believe that this facilitation/initiation is no different than if Plaintiffs directly provided those same products, services, and counseling. The Court concludes that the “accommodation,” in effect, causes these Plaintiffs to comply with the contraceptive mandate which violates their sincerely-held religious beliefs – that “the sanctity of human life which begins at conception,” and “facilitation of evil is the same as proliferation of evil” – and thus, places a substantial burden on Plaintiffs’ ability to exercise their religion. The Court also concludes that the Government has, thus far, in this litigation, failed to show these regulations meet a compelling governmental interest and are sufficiently narrowly-tailored to meet those interests, and/or to demonstrate that the “accommodation” is the least restrictive means to meet those stated interests. Based on the foregoing analysis, the Court finds that Plaintiffs are likely to succeed on the merits, and thus, they have met the first element of the preliminary injunction test.
2. Irreparable Harm to Plaintiffs In the context of a preliminary injunction, irreparable harm is harm that cannot be adequately compensated at a later date in the ordinary course of litigation. Acierno v. New Castle Cnty. 40 F.3d 645, 653 (3d Cir. 1994) (In general, to show irreparable harm a plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy
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following a trial.) The Supreme Court of the United States has held “[t]he loss of First Amendment freedoms,” which implicates the Free Exercise Clause as protected by the RFRA, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
Recently, in a First Amendment-free speech case, the United States Court of Appeals for the Third Circuit held that a ban preventing students in a school from exercising their right to free speech, “unquestionably constitute[d] irreparable injury,” where “[a]n after-the-fact money judgment would hardly make up for their lost opportunity” to exercise their right to free speech. B.H. ex rel. Hawk v. Easton Area School Dist., 725 F.3d 293, 323 (3d Cir. 2013).
Turning to the instant matter, Plaintiffs need to decide by December 31, 2013, whether or not to sign the self-certification form thereby by violating their sincerely-held religious beliefs. Plaintiffs will not drop health coverage as of January 1, 2014, for their employees – because they believe that health care is a basic human right. See Cardinal Dolan Deposition (13-cv-303, Doc. No. 52; 13-cv-1459, Doc. No. 53), pg. 28, lines 19-23; Hearing Testimony, Bishop Zubik, pg. 38, lines 23-24; Hearing Testimony, Bishop Persico, pg. 73, lines 23-25; Declaration of Father Scott Detisch, Ph.D. (P-92), ¶ 25; Declaration of Father Ronald P. Lengwin (P-88), ¶ 34. Plaintiffs cannot sign the self-certification form knowing that their signatures will facilitate/initiate the provision of the contraceptive products, services, and counseling which violate their sincerely-held beliefs.
Plaintiffs also have provided credible testimony and evidence which support their contentions that they will provide health coverage, but will conscientiously object to the contraceptive mandate and the “accommodation” by refusing to sign the self-certification form, thereby potentially suffering financial penalties which would negatively impact those entities
62

Case 2:13-cv-01459-AJS Document 75 Filed 11/21/13 Page 63 of 65
that provide services to individuals who depend upon Plaintiffs for food, shelter, educational, and other basic services. Hearing Testimony, Susan Rauscher, pg. 61, lines 17-18, pg. 62, lines 2125; Hearing Testimony Father Jabo, pg. 99, lines 8-10; Hearing Testimony of Mary Maxwell, pg. 115, lines 23-25; Declaration of Mary Maxwell (P-90), ¶ 20; Declaration of Father Scott Detisch, Ph.D. (P-92), ¶ 32. In addition, Plaintiffs’ failure to sign the self-certification form by December 31, 2013, places them in a situation where they may be faced with enforcement proceedings such as liens on their property, and possible execution on those liens.
Given the evidence presented by Plaintiffs, the Court concludes that the harm to Plaintiffs, and the ripple effect of that harm impacting members of the public who depend upon Plaintiffs for food, shelter, educational, and other basic services, is such that Plaintiffs could never be adequately compensated at a later date in the ordinary course of this litigation. Accordingly, the Court concludes Plaintiffs stand to suffer irreparable harm if the injunction were not granted.
3. Greater Harm to the Government Conversely, the Court concludes that there will be no irreparable harm to the Government if the preliminary injunction is granted.22 In reaching this conclusion, the Court notes that despite the Government’s two stated interests: (1) “the promotion of public health,” and (2) “assuring that women have equal access to health care services”), any employers with fifty (50) or less employees do not have to provide their employees with any health care coverage at all. 26 U.S.C. § 4980H(c)(2)(A). In addition, religious employers who can meet the criteria for an “exemption” have to provide health coverage to their employees, but do not have to offer
22 Plaintiffs seek narrowly-tailored injunctive relief – only as to one of the eight categories of preventive services for women required by the ACA and its implementing regulations. Additional Stipulations of Fact, ¶¶ 15-17.
63

Case 2:13-cv-01459-AJS Document 75 Filed 11/21/13 Page 64 of 65
contraceptive products, services, and counseling. They do not have to “sign a form” thereby facilitating/initiating the provision of contraceptive products, services, and counseling through a third party. Finally, there are “innumerable” employers who have “grandfathered” health coverage plans which may or may not provide for all of the components required under the ACA, including the contraceptive products, services, and counseling required by the contraceptive mandate.
The Court concludes that the combined nationwide total of all of those employers who fall within an exclusion, an exemption, or whose plans are “grandfathered” (approximately 100 million individuals are on “grandfathered” health plans) creates such an “underinclusiveness” which demonstrates that the Government will not be harmed in any significant way by the exclusion of these few Plaintiffs. Gilardi, 2013 WL 5854246, at * 13; Geneva College, 2013 WL 3071481, at * 10; Additional Stipulated Facts, ¶¶ 4, 6. This conclusion again weighs in favor of the Court granting a preliminary injunction, keeping the parties at status quo while the significant issues involved in these cases are resolved in a thoughtful and orderly manner.
4. Public Interest Lastly, granting the preliminary injunction furthers the public interest. As noted above, the Court concludes that it is in the public interest to have the issues presented herein, considered in a thoughtful and orderly manner. These issues include whether the Government will be permitted to sever the Catholic Church into two parts (i.e., worship and faith, and “good works”) – in other words, whether the Government will be successful in restricting the Right to the Free Exercise of Religion as set forth in the First Amendment to a Right to Worship only. This reflective consideration as to nonprofit, religious affiliated/related entities, including Plaintiffs, is all the more in the public interest, because the Free Exercise of Religion is a fundamental right.
64

Case 2:13-cv-01459-AJS Document 75 Filed 11/21/13 Page 65 of 65
The public interest also is best served if Plaintiffs (non-profit, affiliated/related organizations) can continue to provide needed educational and social services, without the threat of substantial fines for non-compliance with the contraceptive mandate as imposed upon them via the “accommodation.” As previously noted, such fines would impede the provision of those services to thousands of individuals who have no other means of obtaining necessary food, shelter, and other basic assistance. Hearing Testimony of Mary Maxwell (re: St. Martin Center and Prince of Peace Center), pg. 115, lines 23-25 (fines “would be devastating for all of our clients, the poor - - these are single women, children.”)
[I]t would be drastic if- if these fines had to be dealt with. . . . [P]eople would lose jobs. Our community in Erie counts on the St. Martin Center. It – it would be devastating for all concerned, for our church. It just – it – it isn’t something that we could cope with. Id. at pg. 116, lines 5-10. A preliminary injunction, preserving the status quo, prevents any reduction in those services and thus is in the best interests of the public.
VI. Conclusion Based upon the foregoing Findings of Fact, Conclusions of Law, and cited legal authority, the Court concludes that Plaintiffs have met their burden of proving all four criteria of the preliminary injunction test, and thus, for the reasons set forth herein, Plaintiffs’ Motions for Expedited Preliminary Injunction will be GRANTED.
s/ Arthur J. Schwab Arthur J. Schwab United States District Court Judge cc: All Registered ECF Counsel and Parties 65

 
 Case 2:13-cv-01459-AJS Document 76 Filed 11/21/13 Page 1 of 2

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


MOST REVEREND DAVID A. ZUBIK, Bishop ofthe Roman Catholic Diocese of Pittsburgh, as Trustee ofthe Roman Catholic Diocese ofPittsburgh, a Charitable Trust, ET AL.,
Plaintiffs,

13cv1459 ELECTRONICALLY FILED

v.

KATHLEEN SEBELIUS, In Her Official Capacity as Secretary ofthe US Department ofHealth and Human Services, ET AI.,

Defendants.

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


MOST REVEREND LAWRENCE T. PERSICO, Bishop ofthe Roman Catholic Diocese ofErie, as Trustee ofthe Roman Catholic Diocese ofErie, a Charitable Trust, ETAI.,
Plaintiffs,

13cv0303 Erie ELECTRONICALLY FILED

v.

KATHLEEN SEBELIUS, In Her Official Capacity as Secretary ofthe US Department ofHealth and Human Services, ET AI.,

Defendants.

ORDER OF COURT GRANTING PLAINTIFFS' MOTIONS FOR EXPEDITED PRELIMINARY INJUNCTION
(13-CV-1459: DOC. NO.4; 13-CV-0303E: DOC. NO.6)
Upon consideration of the Motions for Expedited Preliminary Injunction (13-cv-1459:
Doc. No.4; 13-cv-0303E: Doc. No.6), their memorandum and affidavits in support and in

Case 2:13-cv-01459-AJS Document 76 Filed 11/21/13 Page 2 of 2
opposition, the testimony and evidence received at the Injunction Hearing, the Parties' oral argument during the Preliminary Injunction Hearing and for the reasons set forth in the preceding Memorandum Opinion which includes the Court's Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that Plaintiffs' Motions for Preliminary Injunction are hereby GRANTED;
IT IS FURTHER ORDERED that Defendants, their agents, officers, and employees, are hereby ENJOINED from applying or enforcing the requirements imposed in 42 U.S.c. § 300gg­ 13(a)(4) and as further regulated by 45 C.F.R. §147.130(a)(1)(iv) upon the Plaintiffs;
IT IS FURTHER ORDERED that the preliminary injunctions hereby granted shall remain in effect until this Court makes a full determination on the merits of these two cases, or the United States Supreme Court or United States Court of Appeals for the Third Circuit renders a decision on the merits of these cases;
IT IS FURTHER ORDERED that Defendants shall send Notice of these preliminary injunctions to Plaintiffs' Third Party Administrators, Highmark, Inc. and UPMC, on or before December 2, 2013; and
IT IS FURTHER ORDERED that a bond in the amount of zero (0) dollars is appropriate.
SO ORDERED, this 21st day of November, 2013.
a istrict Court Judge cc: All Registered ECF Counsel and Parties
2

 
 Case 2:13-cv-01459-AJS Document 81 Filed 12/20/13 Page 1 of 4

-


IN THE UNITED STATES DISTRICT COURT 


FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


MOST REVEREND LAWRENCE T. 


)

PERSICO, BISHOP OF THE ROMAN 


)

CATHOLIC DIOCESE OF ERIE, et aI., 


)

)

PLAINTIFFS

)

)

v.

)

)

KATHLEEN SEBELIUS, et al., 


)

)

DEFENDANTS. 


)

)

-------------- )
MOST REVEREND DAVID A. ZUBIK, 
 )

BISHOP OF THE ROMAN CATHOLIC 
 )

DIOCESE OF PITTSBURGH, et al., 


)

)

PLAINTIFFS,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al., 


)

DEFENDANTS. 


) )

)

-------------- )


CIVIL ACTION NO. 1:13-00303 JUDGE ARTHUR J. SCHWAB
CIVIL ACTION NO. 2:13-cv-001459 JUDGE ARTHUR J. SCHWAB

Upon consideration ofthe Unopposed Motion to Convert Preliminary Injunction Into Permanent Injunction, Plaintiffs' Memorandum in support, and the Government's Notice of Non-Opposition, as well as the Memorandum and declarations in support and in opposition to Plaintiffs' Motions for Expedited Preliminary Injunction (l3-cv-1459: Doc. No.4; 13-cv-0303: Doc. No.6), the testimony and evidence received at the November 12 and 13, 2013 Preliminary Injunction Hearing, the Parties' oral argument during the Preliminary Injunction Hearing and for the reasons set forth in the Court's November 21,2013 Memorandum Opinion which includes

Case 2:13-cv-01459-AJS Document 81 Filed 12/20/13 Page 2 of 4

-


the Court's Findings of Fact and Conclusions of Law (Doc. No. 75),

THE COURT hereby expressly incorporates, adopts, re-affirms, and follows its November 21,2013 Memorandum Opinion (Doc. No. 75).

THE COURT hereby finds: • Defendants have conceded that they would not present any additional evidence if the Court ordered briefing and a hearing before granting a permanent injunction; • The Court's November 21,2013 Memorandum Opinion is a sufficient basis to grant a permanent injunction;

THE COURT further hereby finds, based on the Government's concession that it would
not present additional evidence and for the reasons stated in the Court's November 21, 20 13 Memorandum Opinion:
• Plaintiffs have met their burden of demonstrating a substantial burden on their religious exercise;
• The Government has not met its burden of demonstrating that it used the least restrictive means of achieving any compelling governmental interest; and
• Therefore, Plaintiffs have established actual success on their claim that the requirements imposed upon the Plaintiffs in 42 U.S.C. § 300gg-13(a)(4), and as further regulated by 45 C.F.R. § 147.l30(a)(1)(iv), violate the Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb-l;

Case 2:13-cv-01459-AJS Document 81 Filed 12/20/13 Page 3 of 4

-

THE COURT hereby finds that Plaintiffs have satisfied all four elements of the

permanent injunction standard as articulated in Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir.

2001), based on the foregoing Findings, based on the Government's concession that it would not

present additional evidence, and for the reasons stated in the Court's November 21, 2013

Memorandum Opinion.

IT IS HEREBY ORDERED that Plaintiffs' Unopposed Motion to Convert Preliminary Injunction Into Permanent Injunction is hereby GRANTED;

IT IS FURTHER ORDERED that Defendants, their agents, officers, and employees are hereby ENJOINED from applying or enforcing the requirements imposed in 42 U.S.c. § 300gg­ 13(a)(4) and as further regulated by 45 C.F.R. § 147.130(a)(l)(iv) upon the Plaintiffs, including:
(a) Plaintiffs Most Reverend David A. Zubik and Most Reverend Lawrence T. Persico shall not have to sign or authorize any entity under their control to sign the self-certification form;
(b) Plaintiffs The Roman Catholic Diocese of Pittsburgh and The Roman Catholic Diocese of Erie shall be allowed to continue sponsoring their health plans, including through the Pittsburgh Series of the Catholic Employers Benefits Trust, without having to comply with the Mandate, including the accommodation;
(c) Plaintiffs Catholic Charities of the Diocese of Pittsburgh, Inc.; S1. Martin Center, Inc.; Prince of Peace Center, Inc.; and Erie Catholic Preparatory School shall not have to comply with the Mandate, including the accommodation;

Case 2:13-cv-01459-AJS Document 81 Filed 12/20/13 Page 4 of 4

--

IT IS FURTHER ORDERED that Defendants shall send Notice ofthis permanent

injunction to Plaintiffs' Third Party Administrators, Highmark, Inc. and UPMC, on or before
a~ h, ~dl'l (lo8 tilt,:! "15M eftt,,· eHnis Or8@r~, with a copy to Plaintiffs' counsel

and to the Court; and

IT IS FURTHER ORDERED that a bond in the amount of zero (0) dollars is appropriate.

THIS COURT shall retain jurisdiction to enforce this Final Judgment and Order.

::lOra; ~~. SO ORDERED, this

of

 
 Case: 13-3536 Document: 003111874118 Page: 1 Date Filed: 02/11/2015
PRECEDENTIAL UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 13-3536, 14-1374, 14-1376, 14-1377
GENEVA COLLEGE; WAYNE HEPLER; THE SENECA HARDWOOD LUMBER COMPANY, INC., a Pennsylvania
Corporation; WLH ENTERPRISES, a Pennsylvania Sole Proprietorship of Wayne L. Hepler; CARRIE E. KOLESAR
v. SECRETARY UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY
UNITED STATES DEPARTMENT OF LABOR; SECRETARY UNITED STATES DEPARTMENT OF THE
TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY, Appellants in case no. 13-3536

Case: 13-3536 Document: 003111874118 Page: 2 Date Filed: 02/11/2015
GENEVA COLLEGE; WAYNE L. HEPLER, in his personal capacity and as owner and operator of the sole proprietorship WLH Enterprises; THE SENECA HARDWOOD LUMBER COMPANY, INC., a Pennsylvania Corporation; CARRIE E.
KOLESAR
v.
SECRETARY UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY
UNITED STATES DEPARTMENT OF LABOR; SECRETARY UNITED STATES DEPARTMENT OF THE
TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY,
Appellants in case no. 14-1374
MOST REVEREND LAWRENCE T. PERSICO, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF ERIE, AS TRUSTEE OF THE ROMAN CATHOLIC DIOCESE OF
ERIE, A CHARITABLE TRUST; THE ROMAN CATHOLIC DIOCESE OF ERIE; ST. MARTIN CENTER, INC., AN AFFILIATE NONPROFIT CORPORATION OF
CATHOLIC CHARITIES OF THE DIOCESE OF ERIE; PRINCE OF PEACE CENTER, INC., AN AFFILIATE
NONPROFIT CORPORATION OF CATHOLIC CHARITIES OF THE DIOCESE OF ERIE; ERIE CATHOLIC PREPARATORY SCHOOL, AN AFFILIATE NONPROFIT CORPORATION OF THE ROMAN
CATHOLIC DIOCESE OF ERIE
2

Case: 13-3536 Document: 003111874118 Page: 3 Date Filed: 02/11/2015
v. SECRETARY OF UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY OF
UNITED STATES DEPARTMENT OF LABOR; SECRETARY OF UNITED STATES DEPARTMENT OF THE TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY, Appellants in case no. 14-1376
MOST REVEREND DAVID A. ZUBIK, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, as Trustee of the Roman Catholic Diocese of Pittsburgh, a
Charitable Trust; THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, as the Beneficial Owner of the Pittsburgh series of The Catholic Benefits Trust; CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., an affiliate nonprofit corporation of The Roman Catholic Diocese of Pittsburgh v. SECRETARY OF UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY OF UNITED STATES DEPARTMENT OF LABOR; SECRETARY OF UNITED STATES DEPARTMENT OF THE TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES
3

Case: 13-3536 Document: 003111874118 Page: 4 Date Filed: 02/11/2015
DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY, Appellants in case no. 14-1377
On Appeal from the United States District Court for the Western District of Pennsylvania
(District Court Nos.: 1-13-cv-00303; 2-12-cv-00207 and 2-13-cv-01459)
District Judges: Honorable Joy Flowers Conti; Honorable Arthur J. Schwab
Argued on November 19, 2014
Before: McKEE, Chief Judge, RENDELL, SLOVITER, Circuit Judges
(Opinion filed: February 11, 2015)
Stuart F. Delery, Esquire David J. Hickton, Esquire Beth S. Brinkmann, Esquire Mark B. Stern, Esquire (ARGUED) United States Department of Justice Civil Division Room 7531 950 Pennsylvania Avenue, N.W. Washington, DC 20530
4

Case: 13-3536 Document: 003111874118 Page: 5 Date Filed: 02/11/2015
Michael A. Comber, Esquire Office of United States Attorney 700 Grant Street Suite 4000 Pittsburgh, PA 15219
Bradley P. Humphreys, Esquire United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Room 7130 Washington, DC 20530
Adam C. Jed, Esquire United States Department of Justice Civil Division Appellate Section, Room 7240 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Alisa B. Klein, Esquire United States Department of Justice Civil Division Appellate Section, Room 7325 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Patrick Nemeroff, Esquire United States Department of Justice Civil Division, Room 7217 950 Pennsylvania Avenue, N. W. Washington, DC 20530
5

Case: 13-3536 Document: 003111874118 Page: 6 Date Filed: 02/11/2015
Eric R. Womack, Esquire Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N. W. Room 7130 Washington, DC 20530
Counsel for Appellants Secretary United States Department of Health and Human Services; Secretary United States Department of Labor; Secretary United States Department Of Treasury; United States Department of Health and Human Services; United States Department of Labor; United States Department of the Treasury
Steven H. Aden, Esquire Gregory S. Baylor, Esquire (ARGUED) Matthew S. Bowman, Esquire Alliance Defending Freedom 801 G Street, N.W. Suite 509 Washington, DC 20001 Erik W. Stanley, Esquire Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 Kevin H. Theriot, Esquire Alliance Defending Freedom 15192 Rosewood Street Leawood, KS 66224
6

Case: 13-3536 Document: 003111874118 Page: 7 Date Filed: 02/11/2015
David A. Cortman, Esquire Alliance Defending Freedom 1000 Hurricane Shoals, N.E. Building D - Suite 1100 Lawrenceville, GA 30043
David J. Mongillo, Esquire Bradley S. Tupi, Esquire Tucker Arensberg 1500 One PPG Place Pittsburgh, PA 15222
Counsel for Appellees Geneva College; Seneca Hardwood Lumber Company, Inc.; Carrie E. Kolesar; Wayne Hepler
Paul M. Pohl, Esquire (ARGUED) John D. Goetz, Esquire Leon F. DeJulius, Jr., Esquire Ira M. Karoll, Esquire Alison M. Kilmartin, Esquire Mary Pat Stahler, Esquire Jones Day 500 Grant Street, Suite 4500 Pittsburgh, PA 15219
Counsel for Appellees Most Reverend Lawrence T. Persico, Bishop Of The Roman Catholic Diocese of Erie, as Trustee of the Roman Catholic Diocese Of Erie, a Charitable Trust; The Roman Catholic Diocese of Erie; ST. Martin Center, Inc., an affiliate Nonprofit Corporation of Catholic Charities of the Diocese of Erie; Prince of Peace Center, Inc.,
7

Case: 13-3536 Document: 003111874118 Page: 8 Date Filed: 02/11/2015
an Affiliate Nonprofit Corporation Of Catholic Preparatory School, an Affiliate Nonprofit Corporation Of The Roman Catholic Diocese of Erie; Most Reverend David A. Zubik, Bishop of the Roman Catholic Diocese of Pittsburgh, as Trustee of the Roman Catholic Diocese of Pittsburgh, a Charitable Trust, Roman Catholic Diocese of Pittsburgh, Catholic Charities Diocese Of Pittsburgh
Deborah J. Dewart, Esquire Liberty, Life and Law Foundation 620 East Sabiston Drive Swansboro, NC 28584
Counsel for Amicus Liberty, Life and Law Foundation
Witold J. Walczak, Esquire Sara J. Rose, Esquire American Civil Liberties Union 313 Atwood Street Pittsburgh, PA 15213
Brigitte Amiri, Esquire Jennifer Lee, Esquire American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004
Daniel Mach, Esquire American Civil Liberties Union Foundation 915 15th Street, 6th Floor Washington, DC 20005
8

Case: 13-3536 Document: 003111874118 Page: 9 Date Filed: 02/11/2015
Counsel for Amicus Julian Bond, The American Civil Liberties Union and the American Civil Liberties Union of Pennsylvania
Charles E. Davidow, Esquire Andree J. Goldsmith, Esquire Karin Dryhurst, Esquire Paul, Weiss, Rifkind, Wharton & Garrison 2001 K Street, N.W., Suite 600 Washington, DC 20006 Marcia D. Greenberger, Esquire Judith G. Waxman, Esquire Emily J. Martin, Esquire Gretchen Borchelt, Esquire Leila Abolfazli, Esquire National Women’ Law Center 11 DuPont Circle, NW, Suite 800 Washington, DC 20036
Counsel for Amicus National Women’s Law Center and Twenty Other National, State and Local Organizations
Ayesha N. Khan, Esquire American United For Separation of Church and State 1301 K Street, NW, Suite 850, East Tower Washington, DC 20005
Counsel for Amicus American United for Separation of Church and State
9

Case: 13-3536 Document: 003111874118 Page: 10 Date Filed: 02/11/2015
Sarah Somers, Esquire Martha Jane Perkins, Esquire Dipti Singh, Esquire National Health Law Program 101 East Weaver Street, Suite G-7 Carrboro, NC 27510
Counsel for National Health Law Program, American Public Health Association, National Family Planning & Reproductive Health Association, National Women’s Health Network, National Latina Institute For Reproductive Health, National Asian Pacific American Women’s Forum, Asian Americans Advancing Justice, AAJC, Asian Americans Advancing Justice, Los Angeles, Asian & Pacific Islander American Health Forum, National Hispanic Medical Association, Forward Together, IPAS, Sexuality Information and Education Council of the U. S. (Siecus), HIV Law Project, and California Women’s Law Center as Amici Curiae
Kimberlee Wood Colby, Esquire Center for Law & Religious Freedom Christian Legal Society 8001 Graddock Road, Suite 302 Springfield, VA 22151
The Association of Gospel Rescue Missions, Prison Fellowship Ministries, Association of Christian Schools International, National Association of Evangelicals, Ethics & Religious Liberty Commission of the Southern Baptist Convention, American Bible Society, The Lutheran
10

Case: 13-3536 Document: 003111874118 Page: 11 Date Filed: 02/11/2015
Church – Missouri Synod, Institutional Religious Freedom Alliance, and Christian Legal Society in Support of Appellees and Urging Affirmance
O P I N I O N
RENDELL, Circuit Judge:
The appellees in these consolidated appeals challenge the preventive services requirements of the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to 2000bb-4. Particularly, the appellees object to the ACA’s requirement that contraceptive coverage be provided to their plan participants and beneficiaries. However, the nonprofit appellees are eligible for an accommodation to the contraceptive coverage requirement, whereby once they advise that they will not pay for the contraceptive services, coverage for those services will be independently provided by an insurance issuer or third-party administrator. The appellees urge that the accommodation violates RFRA because it forces them to “facilitate” or “trigger” the provision of insurance coverage for contraceptive services, which they oppose on religious grounds. The appellees affiliated with the Catholic Church also object on the basis that the application of the accommodation to Catholic nonprofit organizations has the impermissible effect of dividing the Catholic Church, because the Dioceses themselves are eligible for an actual exemption from the
11

Case: 13-3536 Document: 003111874118 Page: 12 Date Filed: 02/11/2015
contraceptive coverage requirement. The District Courts granted the appellees’ motions for a preliminary injunction, and, in one of the cases, converted the preliminary injunction to a permanent injunction. Because we disagree with the District Courts and conclude that the accommodation places no substantial burden on the appellees, we will reverse.
I. BACKGROUND A. Statutory and Regulatory Background
1. The Affordable Care Act, the Preventive Services Coverage Requirement, and the Accommodation for Religious Nonprofit Organizations
In 2010, Congress passed the ACA, which requires group health plans and health insurance issuers offering health insurance coverage1 to cover preventive care and screenings for women, without cost sharing (such as a copayment, coinsurance, or a deductible), as provided for in guidelines established by the Department of Health and
1 Eligible organizations may be either “insured” or “selfinsured.” An employer has an “insured” plan if it contracts with an insurance company to bear the financial risk of paying its employees’ health insurance claims. An employer has a “self-insured” plan if it bears the financial risk of paying its employees’ claims. Many self-insured employers use third-party administrators to administer their plans and process claims. See Cong. Budget Office, Key Issues in Analyzing Major Health Insurance Proposals 6 (2008). The appellees here fall into both categories.
12

Case: 13-3536 Document: 003111874118 Page: 13 Date Filed: 02/11/2015

Human Services (“HHS”). 42 U.S.C. § 300gg-13(a)(4).2

HHS requested assistance from the Institute of Medicine

(“IOM”), a nonprofit arm of the National Academy of

Sciences, to develop guidelines regarding which preventive

services for women should be required. 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) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2590; and

45 C.F.R. pt. 147). The IOM issued a report recommending a

list of preventive care services, including all contraceptive

methods approved by the Food and Drug Administration

(“FDA”). The regulatory guidelines accordingly included

“[a]ll Food and Drug Administration . . . approved

contraceptive methods, sterilization procedures, and patient

education and counseling for all women with reproductive

capacity,” as prescribed by a health care provider. 77 Fed.

Reg. at 8725 (alteration in original). The relevant regulations

require coverage of the contraceptive services recommended

in the guidelines. See 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29

C.F.R.

§ 2590.715-2713(a)(1)(iv);

45

C.F.R.

§ 147.130(a)(1)(iv).

2 The ACA’s preventive care requirements apply only to nongrandfathered group health plans and health insurance issuers offering non-grandfathered health insurance coverage. See 45 C.F.R. § 147.140 (exempting “grandfathered” plans— “coverage provided by a group health plan, or a group or individual health insurance issuer, in which an individual was enrolled as of March 23, 2010,” the date on which the ACA was enacted “for as long as it maintains that status under the rules of this section”).

13

Case: 13-3536 Document: 003111874118 Page: 14 Date Filed: 02/11/2015
The implementing regulations authorize an exemption from contraceptive coverage for the group health plan of a “religious employer.” 45 C.F.R. § 147.131(a). The regulations define a religious employer as a nonprofit organization described in the Internal Revenue Code provision referring to churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. Id. (citing 26 U.S.C. § 6033(a)(3)(A)(i), (iii)).
After notice-and-comment rulemaking, the Department of the Treasury, the Department of Labor, and the Department of Health and Human Services (the “Departments”) published final regulations in July 2013 that provided relief for organizations that, while not “religious employers,” nonetheless oppose coverage on account of their religious objections. These regulations include an “accommodation” for group health plans established or maintained by “eligible organizations” (and group health coverage provided in connection with such plans). See 26 C.F.R. § 54.98152713A(a), 29 C.F.R. § 2590-2713A(a), 45 C.F.R. § 147.131(b); Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870 (July 2, 2013) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pts. 2510 & 2590; and 45 C.F.R. pts. 147 & 156). An “eligible organization” means a nonprofit organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of any contraceptive services required to be covered . . . on account of religious objections.” 45 C.F.R. § 147.131(b). To invoke this accommodation, an employer must certify that it is such an organization. Id. § 147.131(b)(4). Here, there is no dispute that the nonprofit religious organization appellees are eligible organizations under these regulations.
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Case: 13-3536 Document: 003111874118 Page: 15 Date Filed: 02/11/2015

To take advantage of the accommodation to the contraceptive coverage requirement, the eligible organization must complete the self-certification form, EBSA Form 700, issued by the Department of Labor’s Employee Benefits Security Administration, indicating that it has a religious objection to providing coverage for the required contraceptive services. The eligible organization then is to provide a copy of the form to its insurance issuer or third-party administrator. 78 Fed. Reg. at 39,875.3

3 After these suits had been filed, the Supreme Court granted

an injunction pending appeal in Wheaton College v. Burwell,

134 S. Ct. 2806 (2014), and ordered that the eligible

organization applicant need not use EBSA Form 700 to notify

its insurance issuer or third-party administrator of its religious

objection to the contraceptive coverage requirement; instead,

if the organization notifies the government in writing of its

objection, the government is enjoined from enforcing the

contraceptive coverage requirement against the organization.

Id. at 2807. In response, interim final regulations were issued

in August 2014 allowing an eligible organization to opt out

by notifying HHS directly, rather than notifying its insurance

issuer or third-party administrator; the eligible organization

also need not use EBSA Form 700. Coverage of Certain

Preventive Services Under the Affordable Care Act, 79 Fed.

Reg. 51,092 (Aug. 27, 2014) (codified at 26 C.F.R. pt. 54; 29

C.F.R. pts. 2510 & 2590; and 45 C.F.R. pt. 147); see also 29

C.F.R. § 2590.715-2713A(b)(1)(ii)(B), (c)(1)(ii); 45 C.F.R.

§ 147.131(c)(1)(ii).

We conclude here that the

accommodation, even when utilizing EBSA Form 700, poses

no substantial burden. To the extent that the Supreme Court’s

order in Wheaton may be read to signal that the alternative

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Case: 13-3536 Document: 003111874118 Page: 16 Date Filed: 02/11/2015
The submission of the form has no real effect on the plan participants and beneficiaries. They still have access to contraception, without cost sharing, through alternate mechanisms in the regulations.4 Under these regulations, an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it objects on religious grounds. 78 Fed. Reg. at 39,874. As a result, either the health insurance issuer or the third-party administrator is required by regulation to provide separate payments for contraceptive services for plan participants and beneficiaries. The ACA’s prohibition on cost sharing for preventive services, including contraception, bars the insurance issuer or third-party administrator from imposing any premium or fee on the group health plan, or plan participants and beneficiaries. Furthermore, the accommodation prohibits the insurance issuer or third-party administrator from imposing such fees on the eligible organization. See 42 U.S.C.
notification procedure is less burdensome than using EBSA Form 700, we also conclude that the alternative compliance mechanism set forth in the August 2014 regulations poses no substantial burden.
4 The Supreme Court has recognized that the accommodation ensures that employees of entities with religious objections have the same access to all FDA-approved contraceptives as employees of entities without religious objections to providing such coverage. “The effect of the HHS-created accommodation on the women employed . . . would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760 (2014).
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§ 300gg-13(a); 29 C.F.R. § 2590.715-2713A(b)(2), (c)(2)(ii); 45 C.F.R. § 147.131(c)(2)(ii). The insurance issuer or thirdparty administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the [eligible organization’s] group health plan” and “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 29 C.F.R. § 2590.7152713A(c)(2)(i)(A), (ii); 45 C.F.R. § 147.131(c)(2)(i)(A), (ii). The third-party administrator may seek reimbursement for payments for contraceptive services from the federal government. 29 C.F.R. § 2590.715-2713A(b)(3).
Furthermore, the health insurance issuer or third-party administrator, not the eligible organization, provides notice to the plan participants and beneficiaries regarding contraceptive coverage “separate from” materials that are distributed in connection with the eligible organization’s group health coverage, specifying that “the eligible organization does not administer or fund contraceptive benefits, but that the third party administrator or issuer, as applicable, provides separate payments for contraceptive services, and must provide contact information for questions and complaints.” See 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(d).5 This is in accordance with the preventive services requirement of the ACA.
5 As part of this separate notice regime, eligible organizations do not need to provide the names of their beneficiaries to their insurance issuers or third-party administrators, or otherwise coordinate notices with them. See Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 254 (D.C. Cir. 2014) (agreeing that “[n]o regulation related to the
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Case: 13-3536 Document: 003111874118 Page: 18 Date Filed: 02/11/2015
2. RFRA Challenge to the Accommodation
The appellees challenge the ACA’s contraceptive coverage requirement as posing a substantial burden on their religious exercise, in violation of RFRA. RFRA places requirements on all federal statutes that impact a person’s exercise of religion, even when that federal statute is a rule of general applicability. 42 U.S.C. § 2000bb-1(a).6 Under RFRA, the “[g]overnment 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 means of furthering that compelling governmental interest.” Id. § 2000bb-1(b).
accommodation imposes any such duty on Plaintiffs”); see also 29 C.F.R. § 2590.715-2713A(b)(4) (“A third party administrator may not require any documentation other than a copy of the self-certification from the eligible organization or notification from the Department of Labor”); id. § 2590.7152713A(c)(1)(i) (“When a copy of the self-certification is provided directly to an issuer, the issuer has sole responsibility for providing such coverage . . . . An issuer may not require any further documentation from the eligible organization regarding its status as such.”).
6 Because the issue was not raised before us, we assume that RFRA is constitutional as applied to federal laws and regulations. But see City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (holding that Congress did not have authority under the Fourteenth Amendment to impose RFRA on state or local laws).
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Case: 13-3536 Document: 003111874118 Page: 19 Date Filed: 02/11/2015
Congress enacted RFRA in 1993 in response to the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). In Smith, the Supreme Court rejected the balancing test for evaluating claims under the Free Exercise Clause of the First Amendment set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), under which the Court asked whether the challenged law substantially burdened a religious practice and, if it did, whether that burden was justified by a compelling governmental interest. The Smith Court concluded that the continued application of the compellinginterest test would produce a constitutional right to ignore neutral laws of general applicability and would “open the prospect of constitutionally required religious exemptions from civil obligations of almost every conceivable kind,” which the First Amendment does not require. 494 U.S. at 888-89. “The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’” Id. at 885 (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988)). Making an individual’s obligation to obey a generally applicable law contingent upon the individual’s religious beliefs, except where the state interest is compelling, permits that individual, “by virtue of his beliefs, ‘to become a law unto himself,’” which “contradicts both constitutional tradition and common sense.” Id. (quoting Reynolds v. United States, 98 U.S. 145, 167 (1878)).
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Case: 13-3536 Document: 003111874118 Page: 20 Date Filed: 02/11/2015
Congress then passed RFRA to legislatively overrule the Smith standard for analyzing claims under the Free Exercise Clause of the First Amendment. RFRA’s stated purposes are: (1) to restore the compelling-interest test as set forth in Sherbert and Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by the government. 42 U.S.C. § 2000bb(b). The Supreme Court has characterized RFRA as “adopt[ing] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006).
B. Factual Background and Procedural History7
We review here the following District Court opinions: two preliminary injunctions issued in Geneva College v. Sebelius, and a preliminary injunction and permanent injunction issued in the related cases of Most Reverend David A. Zubik v. Sebelius and Most Reverend Lawrence T. Persico v. Sebelius. The Zubik and Persico appeals were consolidated and now have also been consolidated with the Geneva appeal.
1. Geneva Appellee
Appellee Geneva College (“Geneva”) is a nonprofit institution of higher learning established by the Reformed Presbyterian Church of North America. Geneva believes that
7 The District Courts in these cases had jurisdiction pursuant to 28 U.S.C. § 1331, and this Court has appellate jurisdiction pursuant to 28 U.S.C. §§ 1291, 1292(a)(1).
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Case: 13-3536 Document: 003111874118 Page: 21 Date Filed: 02/11/2015
it would be sinful and immoral for it to intentionally participate in, pay for, facilitate, enable, or otherwise support access to abortion (including emergency contraceptives Plan B and ella, and two intrauterine devices, all of which Geneva characterizes as causing abortion) because such participation violates religious prohibitions on murder. Geneva contracts with an insurance issuer for its student and employee health insurance plans.
2. Geneva District Court Opinions
The District Court granted Geneva’s motion for a preliminary injunction with respect to its student plan on June 18, 2013, and enjoined the government from applying or enforcing 42 U.S.C. § 300gg-13(a)(4) and requiring that Geneva’s student health insurance plan, its plan broker, or its plan insurer provide “abortifacients” contrary to Geneva’s religious objections. (J.A. 35-36.) The District Court began by stating that the Supreme Court has cautioned courts to be reluctant to “dissect religious beliefs” when engaging in a substantial burden analysis. (J.A. 24 (quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 715 (1981)).)
The District Court concluded that Geneva had shown a likelihood of success on the merits with respect to the presence of a substantial burden under RFRA and found that three Supreme Court free exercise cases supported Geneva’s argument regarding the presence of a substantial burden under RFRA. First, it noted that in Yoder, 406 U.S. at 23435, a state compulsory education law for children up to age sixteen, with a penalty of a criminal fine, violated the free exercise rights of the Amish plaintiffs. Second, in Sherbert, 374 U.S. at 410, the state could not withhold unemployment
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Case: 13-3536 Document: 003111874118 Page: 22 Date Filed: 02/11/2015
benefits from a worker who refused employment on the grounds that working Saturdays violated her religious beliefs. Third, in Thomas, 450 U.S. at 719, the state could not deny unemployment benefits to a worker whose religious beliefs forbade his participation in manufacturing tanks for use by the military. The District Court interpreted these cases as standing for the proposition that these indirect burdens on religious exercise are substantial enough to be cognizable under RFRA. The District Court concluded that Geneva had only two choices under the regulations—either provide the objected-to coverage or drop its health insurance—and by being forced to choose between those two options, both repugnant to its religious beliefs,8 Geneva faced a substantial burden.
The District Court then granted Geneva’s second motion for a preliminary injunction, this time with respect to
8 We recognize that the appellees believe providing health insurance to their employees and students is part of their religious commitments. The appellees urge, at most, that dropping their health insurance coverage would be a violation of their moral beliefs, but they do not argue that it would be, in and of itself, another substantial burden imposed on their religious exercise. (Geneva Br. at 5 (“To fulfill its religious commitments and duties in the Christ-centered educational context, the College promotes the spiritual and physical wellbeing and health of its employees and students. This includes the provision of general health insurance to employees and their dependants and the facilitation of a student health plan.”); Zubik/Persico Br. at 6 (“As part of overseeing their affiliates and as part of Catholic social teaching, the Dioceses provide self-insured health plans for Diocesan entities, including the Affiliates.”).)
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its employee plan, on December 23, 2013. The District Court again enjoined the government from enforcing 42 U.S.C. § 300gg-13(a)(4) and requiring that Geneva’s employee health insurance plan, its plan broker, or its plan insurer provide “abortifacients” contrary to Geneva’s religious objections. (J.A. 67-68.) The District Court concluded that Geneva had shown a likelihood of success on the merits as to the presence of a substantial burden because the self-certification process forced Geneva to facilitate access to services it finds religiously objectionable. First, the District Court emphasized that a court must assess the intensity of the coercion and pressure from the government, rather than looking at the merits of the religious belief. (J.A. 58 (citing Korte v. Sebelius, 735 F.3d 654, 683 (7th Cir. 2013), cert. denied sub nom. Burwell v. Korte, 134 S. Ct. 2903 (2014), and Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1137 (10th Cir.), aff’d sub nom. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)).) The District Court analogized to cases involving the contraceptive coverage mandate for entities not eligible for the accommodation, such as the Hobby Lobby opinion in the Court of Appeals for the Tenth Circuit, which found that the substantial fines and penalties imposed on an entity that refused to offer health care coverage to its employees at all, or refused to provide coverage for the mandated preventive services, constituted a substantial burden.
The District Court was convinced by Geneva’s explanation that, although Geneva must engage in the same conduct that it did before the ACA—namely, notify the insurance carrier that it would not provide coverage for the objected-to services—the effect of that conduct is now different. Before the ACA, Geneva’s notification resulted in
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its employees being unable to obtain coverage for contraceptive services; after the ACA, Geneva’s employees are still provided access to the services as a matter of law. “Under the ACA, Geneva has two choices: (1) provide insurance coverage to its employees, which will result in coverage for the objected to services; or (2) refuse to provide insurance coverage for its employees, which will result in fines, harm to its employees’ well-being and competitive disadvantages. Both options require Geneva to act contrary to its religious duties and beliefs.” (J.A. 61 n.12.)
Geneva argues that the District Court was correct that a substantial burden is present here because (1) complying with either the contraceptive coverage requirement or the accommodation would cause Geneva to “trigger,” “facilitate,” or be “complicit” in the commission of acts that it likens to abortion; and (2) the fines that Geneva faces for its refusal to comply with the contraceptive coverage requirement or the accommodation would pressure it to conform.
3. Zubik/Persico Appellees
Appellees in the Zubik and Persico cases include: the Bishop of Pittsburgh, David A. Zubik, and the Bishop of Erie, Lawrence T. Persico; the Diocese of Pittsburgh and the Diocese of Erie, both of which qualify for the exemption to the contraceptive coverage requirement under 45 C.F.R. § 147.131(a); and Catholic Charities of the Diocese of Pittsburgh, Prince of Peace Center, St. Martin Center, and Erie Catholic Cathedral Preparatory School, which are all nonprofit organizations affiliated with the Catholic Church. The Catholic religious nonprofit organizations are controlled by their respective Dioceses and operate in accordance with Catholic doctrine and teachings. The Bishops oversee the
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management of the affiliated nonprofits with regard to adherence to Catholic doctrine. The Catholic faith prohibits providing, subsidizing, initiating, or facilitating insurance coverage for sterilization services, contraceptives, other drugs that the Catholic Church believes to cause abortion, and related reproductive educational and counseling services. The Dioceses provide self-insured health plans to the nonprofits and contract with third-party administrators to handle claims administration of the plans. As a result of their provision of coverage to the nonprofits, the Dioceses, which are otherwise exempt, must comply with the contraceptive coverage requirement as to the nonprofits.
4. Zubik/Persico District Court Opinions
The District Court issued a preliminary injunction that applied to both the Zubik and Persico cases on November 21, 2013, and converted that injunction into a permanent injunction on December 20, 2013.
The District Court characterized the issue before it as “whether [the appellees], being non-secular in nature, are likely to succeed on the merits of proving that their right to freely exercise their religion has been substantially burdened by the ‘accommodation’ which requires the Bishops of two separate Dioceses . . . to sign a form which thereby facilitates/initiates the provision of contraceptive products, services, and counseling.” (J.A. 116.) The Zubik/Persico appellees conceded that they have provided similar information as is required by the self-certification form to their third-party administrator in the past. However, their past actions barred the provision of contraceptive products, services, or counseling. Now, under the ACA, this information will be used to “facilitate/initiate the provision of
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contraceptive products, services, or counseling – in direct contravention to their religious tenets.” (Id.) Accordingly, the District Court concluded that the government is impermissibly asking the appellees for documentation for what the appellees sincerely believe is an immoral purpose, and thus “they cannot provide it.” (J.A. 117.) In conclusion, the District Court acknowledged that the accommodation allows the appellees to avoid directly paying for contraceptive services by shifting responsibility for providing contraceptive coverage. Despite this fact, because the appellees had a sincerely held belief that this shift in responsibility did not exonerate them from the moral implications of the use of contraception, the accommodation imposed a substantial burden.

Furthermore, the District Court held that the differing

application of the exemption and the accommodation—the

former applying to the Catholic Church, and the latter

applying to Catholic nonprofit organizations—has the effect

of dividing the Catholic Church, thereby imposing a

substantial burden.

“[T]he religious employer

‘accommodation’ separates the ‘good works (faith in action)

employers’ from the ‘houses of worship employers’ within

the Catholic Church by refusing to allow the ‘good works

employers’ the same burden-free exercise of their religion”

under the exemption. (J.A. 118.) The District Court

questioned why religious employers who share the same

religious tenets are not exempt, or why all religious

employers do not fall within the accommodation, such that

“even though [the appellees] here share identical, religious

beliefs, and even though they share the same persons as the

religious heads of their organizations, the heads of [the

appellees’] service organizations may not fully exercise their

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right to those specific beliefs, when acting as the heads of the charitable and educational arms of the Church.” (J.A. 118, 120.) The District Court concluded that “the religious employer ‘exemption’ enables some religious employers to completely eliminate the provision of contraceptive products, services, and counseling through the Dioceses’ health plans and third parties,” whereas “the religious employer ‘accommodation’ requires other religious employers (often times the same member with the same sincerely-held beliefs) to take affirmative actions to facilitate/initiate the provision of contraceptive products, services, and counseling – albeit from a third-party.” (J.A. 120-21.)
The Zubik/Persico appellees argue that the District Court was correct in finding a substantial burden because (1) they interpret the accommodation to require them to authorize and designate a third party to add the objectionable coverage to their plans, in violation of their sincerely held religious beliefs that they cannot provide or facilitate that coverage; and (2) the different scope of the religious employer exemption and the accommodation impermissibly splits the Catholic Church.
The government, as appellant in both the Zubik/Persico and Geneva appeals, argues that the District Courts were incorrect and the appellees are not subject to a substantial burden, because the submission of the form is not in itself burdensome and does not give rise to the coverage. Rather, federal law requires third parties—insurance issuers and third-party administrators—to provide coverage after the appellees refuse to provide contraceptive coverage themselves. By invoking the accommodation process, the appellees do not facilitate the provision of contraceptive
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coverage by third parties. Rather, the third parties providing coverage do so as a result of legal obligations imposed by the ACA.
II. DISCUSSION
A. Standard of Review
We employ a tripartite standard of review for preliminary injunctions. “We review the District Court’s findings of fact for clear error. Legal conclusions are assessed de novo. The ultimate decision to grant or deny the injunction is reviewed for abuse of discretion.” K.A. ex rel. Ayers v. Pocono Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir. 2013) (quoting Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 252 (3d Cir. 2002)). The same framework applies to the review of a grant of a permanent injunction. See United States v. Bell, 414 F.3d 474, 477-78 (3d Cir. 2005).9 Because we conclude that the appellees have not demonstrated a likelihood of success on the merits of their
9 “A party seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). It is the plaintiff’s burden to establish every element in its favor. P.C. Yonkers, Inc. v. Celebrations the Party & Seasonal Superstore, LLC, 428 F.3d 504, 508 (3d Cir. 2005). A permanent injunction requires actual success on the merits. See Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001).
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RFRA claim, we need not reach the other prongs of the injunction analysis.
B. Likelihood of Success as to Substantial Burden
1. Trigger/Facilitation/Complicity
Argument
We first must identify what conduct the appellees contend is burdensome to their religious exercise. It is not the act of filling out or submitting EBSA Form 700 itself. The appellees conceded at oral argument that the mere act of completing EBSA Form 700 does not impose a burden on their religious exercise.
The appellees’ essential challenge is that providing the self-certification form to the insurance issuer or third-party administrator “triggers” the provision of the contraceptive coverage to their employees and students. The appellees reframed this proposition at oral argument, stating that the accommodation requires them to be “complicit” in sin. Appellees urge that there is a causal link between providing notification of their religious objection to providing contraceptive coverage and the offering of contraceptive coverage by a third party. That link, they argue, makes them complicit in the provision of certain forms of contraception, which is prohibited by their religious beliefs.
Without testing the appellees’ religious beliefs, we must nonetheless objectively assess whether the appellees’ compliance with the self-certification procedure does, in fact, trigger, facilitate, or make them complicit in the provision of
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contraceptive coverage. Through RFRA’s adoption of the Supreme Court’s pre-Smith free exercise jurisprudence, Congress has required qualitative assessment of the merits of the appellees’ RFRA claims. See Korte, 735 F.3d at 705 (Rovner, J., dissenting).10 “It is virtually self-evident that the Free Exercise Clause does not require an exemption from a governmental program unless, at a minimum, inclusion in the program actually burdens the claimant’s freedom to exercise religious rights.” Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 303 (1985). Furthermore, the Supreme Court has stated that “[a] governmental burden on religious liberty is not insulated from review simply because it is indirect; but the nature of the burden is relevant to the standard that the government must meet to justify the burden.” Bowen v. Roy, 476 U.S. 693, 706-07 (1986) (citation omitted). These principles were applied in Lyng, where the Supreme Court recognized that the Native American respondents’ beliefs were sincere, and that the government’s proposed actions would have severe adverse effects on their religious practice. However, the Court disagreed that the burden on the respondents’ belief was “heavy enough to violate the Free Exercise Clause unless the
10 We note that the Korte majority opinion may have been undermined by the later decision of the Court of Appeals for the Seventh Circuit in Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 554 (7th Cir. 2014), petition for cert. filed, No. 14392 (Oct. 3, 2014). The majority opinion in Notre Dame, decided after Korte but before Hobby Lobby, analyzes the mechanics of the accommodation and weakens the Korte majority’s urge for deference. This type of analysis remains good law after Hobby Lobby. See Priests for Life, 772 F.3d 229, 247 (D.C. Cir. 2014).
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Government can demonstrate a compelling need to complete the . . . road to engage in timber harvesting in the . . . [challenged] area.” 485 U.S. at 447 (emphasis added).
While the Supreme Court reinforced in Hobby Lobby that we should defer to the reasonableness of the appellees’ religious beliefs, this does not bar our objective evaluation of the nature of the claimed burden and the substantiality of that burden on the appellees’ religious exercise. This involves an assessment of how the regulatory measure actually works. Indeed, how else are we to decide whether the appellees’ religious exercise is substantially burdened? “[T]here is nothing about RFRA or First Amendment jurisprudence that requires the Court to accept [the appellees’] characterization of the regulatory scheme on its face.” Mich. Catholic Conference & Catholic Family Servs., 755 F.3d 372, 385 (6th Cir. 2014) (quoting Roman Catholic Archbishop of Wash. v. Sebelius, 19 F. Supp. 3d 48, 71 (D.D.C. 2013)). 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, e.g., Korte, 735 F.3d at 710 (Rovner, J., dissenting). For example, the court in Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008), “[a]ccept[ed] as true the factual allegations that Kaemmerling’s beliefs are sincere and of a religious nature— but not the legal conclusion, cast as a factual allegations, that his religious exercise is substantially burdened.” The court further explained: “we conclude that Kaemmerling does not allege facts sufficient to state a substantial burden on his
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religious exercise because he cannot identify any ‘exercise’ which is the subject of the burden to which he objects.” Id.11
The Supreme Court in Hobby Lobby evaluated whether the requirement to provide contraceptive coverage absent the accommodation procedure substantially burdened the religious exercise of the owners of closely-held, for-profit corporations. The issue of whether there is an actual burden was easily resolved in Hobby Lobby, since there was little doubt that the actual provision of services did render the plaintiffs “complicit.” And in Hobby Lobby, the Court came to its conclusion that, without any accommodation, the contraceptive coverage requirement imposed a substantial burden on the religious exercise of the for-profit corporations, because those plaintiffs were required to either provide health insurance that included contraceptive coverage, in violation of their religious beliefs, or pay substantial fines.12 See 134
11 The Zubik/Persico appellees argue that we should not independently analyze the burdens imposed on them, or the substantiality of that burden, because the government stipulated to facts contained in the appellees’ declarations— particularly, that the appellees believe that participation in the accommodation, including signing the self-certification form, facilitates moral evil in violation of Catholic doctrine. The appellees are mistaken, because the government’s factual stipulation does not preclude this Court from determining the contours of the asserted burden or whether the burden is substantial. 12 Indeed, Justice Alito’s majority opinion in Hobby Lobby comments favorably on the accommodation procedure at issue here, which separates an eligible organization from the objected-to contraceptive services:
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HHS itself has demonstrated that it has at its

disposal an approach that is less restrictive than

requiring employers to fund contraceptive

methods that violate their religious beliefs. As

we explained above, HHS has already

established an accommodation for nonprofit

organizations with religious objections. Under

that accommodation, the organization can self-

certify that it opposes providing coverage for

particular contraceptive services. If the

organization makes such a certification, the

organization’s insurance issuer or third-party

administrator must “[e]xpressly exclude

contraceptive coverage from the group health

insurance coverage provided in connection with

the group health plan” and “[p]rovide separate

payments for any contraceptive services

required to be covered” without imposing “any

cost-sharing requirements . . . on the eligible

organization, the group health plan, or plan

participants

or

beneficiaries.”

We do not decide today whether an

approach of this type complies with RFRA for

purposes of all religious claims. At a minimum,

however, it 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.

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S. Ct. at 2775-76; see also Priests for Life, 772 F.3d at 245. Here, the appellees are not faced with a “provide” or “pay” dilemma because they have a third option—notification pursuant to the accommodation—to avoid both providing contraceptive coverage to their employees and facing penalties for noncompliance with the contraceptive coverage requirement.
The appellees urge that a burden exists here because the submission of the self-certification form triggers, facilitates, and makes them complicit in the provision of objected-to services. But after testing that assertion, we cannot agree that the submission of the self-certification form has the effect the appellees claim. First, the self-certification form does not trigger or facilitate the provision of contraceptive coverage because coverage is mandated to be otherwise provided by federal law. Federal law, rather than any involvement by the appellees in filling out or submitting the self-certification form, creates the obligation of the insurance issuers and third-party administrators to provide coverage for contraceptive services. As Judge Posner has explained, this is not a situation where the self-certification form enables the provision of the very contraceptive services that the appellees find sinful. Rather, “[f]ederal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured plans, to cover contraceptive services.” Notre Dame, 743 F.3d at 554. Thus, federal law, not the submission of the self-certification form, enables the provision of contraceptive coverage.
Hobby Lobby, 134 S. Ct. at 2782 (alterations in original) (footnotes omitted) (citations omitted).
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The Court of Appeals for the Sixth Circuit adopted Judge Posner’s logic that the obligation to cover contraception is not triggered by the act of self-certification. Rather, it is triggered by the force of law—the ACA and its implementing regulations. See Mich. Catholic Conference, 755 F.3d at 387 (“Submitting the self-certification form to the insurance issuer or third-party administrator does not ‘trigger’ contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.”). Most recently, and after the Supreme Court’s opinion in Hobby Lobby, the Court of Appeals for the D.C. Circuit agreed with these courts’ explanations of the mechanics of the accommodation. See Priests for Life, 772 F.3d at 252 (“As the Sixth and Seventh Circuits have also concluded, the insurers’ or [the third-party administrators’] obligation to provide contraceptive coverage originates from the ACA and its attendant regulations, not from Plaintiffs’ self-certification or alternative notice.”). Thus, submitting the self-certification form means only that the eligible organization is not providing contraceptive coverage and will not be subjected to penalties. By participating in the accommodation, the eligible organization has no role whatsoever in the provision of the objected-to contraceptive services.13
13 Geneva argues that there is no guarantee that its employees and students would obtain the objected-to contraceptive coverage if they were not enrolled in Geneva’s health plans. Therefore, Geneva asserts, the obligation to provide contraceptive coverage arises only because it sponsors an employee or student health plan. Geneva cites the following passage from Notre Dame in support: “By refusing to fill out
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Case: 13-3536 Document: 003111874118 Page: 36 Date Filed: 02/11/2015
Moreover, the regulations specific to the Zubik and Persico appellees’ self-insured plan are no different in this respect, and in no way cause the appellees to facilitate or trigger the provision of contraceptive coverage. Those Department of Labor regulations state that EBSA Form 700 “shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for any contraceptive services required to be covered.” 29 C.F.R. § 2510.3-16(b). The Zubik/Persico appellees argue that these regulations cause it to “facilitate” the provision of contraceptives because the signed selfcertification form authorizes the third-party administrator to serve as the plan administrator. However, this purported
the form Notre Dame would subject itself to penalties, but Aetna and Meritain would still be required by federal law to provide the services to the university’s students and employees unless and until their contractual relation with Notre Dame terminated.” 743 F.3d at 554 (emphasis added). However, Geneva’s argument is unavailing. The provision of contraceptive coverage is not dependent upon Geneva’s contract with its insurance company. “Once [the appellees] opt out of the contraceptive coverage requirement, . . . contraceptive services are not provided to women because of [the appellees’] contracts with insurance companies; they are provided because federal law requires insurers and TPAs to provide insurance beneficiaries with coverage for contraception.” Priests for Life, 772 F.3d at 253. “RFRA does not entitle [the appellees] to control their employees’ relationships with other entities willing to provide health insurance coverage to which the employees are legally entitled.” Id. at 256.
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Case: 13-3536 Document: 003111874118 Page: 37 Date Filed: 02/11/2015
causal connection is nonexistent. The eligible organization has no effect on the designation of the plan administrator; instead, it is the government that treats and designates the third-party administrator as the plan administrator under ERISA. See Notre Dame, 743 F.3d at 555. “[The appellees] submit forms to communicate their decisions to opt out, not to authorize [the third-party administrators] to do anything on their behalf. The regulatory treatment of the form as sufficient under ERISA does not change the reality that the objected-to services are made available because of the regulations, not because [the appellees] complete a selfcertification.” Priests for Life, 772 F.3d at 254-55. Indeed, this “opt-out” is just that—an indication that the eligible organization chooses not to provide coverage for the objected-to services.
Moreover, the submission of the self-certification form does not make the appellees “complicit” in the provision of contraceptive coverage. 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. Ultimately, the regulatory notice requirement does not necessitate any action that interferes with the appellees’ religious activities. “The organization must send a single sheet of paper honestly communicating its eligibility and sincere religious objection in order to be excused from the contraceptive coverage requirement.” Id. at 249. The appellees “need only reaffirm [their] religiously based opposition to providing contraceptive coverage, at which point third parties will provide the coverage separate and apart from [the appellees’] plan of benefits.” Priests for Life v. U.S. Dep’t of Health & Human Servs., 7 F. Supp. 3d 88,
37

Case: 13-3536 Document: 003111874118 Page: 38 Date Filed: 02/11/2015
104 (D.D.C. 2013), aff’d, Priests for Life, 772 F.3d 229 (D.C. Cir. 2014). The appellees’ real objection is to what happens after the form is provided—that is, to the actions of the insurance issuers and the third-party administrators, required by law, once the appellees give notice of their objection. “RFRA does not grant [the appellees] a religious veto against plan providers’ compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties.” Priests for Life, 772 F.3d at 251. “The fact that the regulations require the insurance issuers and third-party administrators to modify their behavior does not demonstrate a substantial burden on the [appellees].” Mich. Catholic Conference, 755 F.3d at 389.14
14 A hypothetical example serves as a useful tool to demonstrate the fallacy in the appellees’ characterization of the accommodation: Assume that a person, John Doe, has a job that requires twenty-four-hour coverage, such as an emergency room doctor or nurse. John Doe is unable to work his shift on a certain Tuesday, as that day is a religious holiday that mandates a day of rest. As a result, John Doe believes that it is inappropriate for anyone to work on that holiday. John Doe can request time off by filling out a certain form, but he will be penalized if he fails to show up for work without appropriately requesting time off. However, by filling out this form, he believes that he will facilitate or trigger or be complicit in someone else working in his place on the religious holiday. John Doe sincerely believes that the simple filling out of the time-off request imposes a substantial burden on his religious beliefs. In this example, John Doe, like the appellees, is able to express his religious objection to working on a religious holiday by declining to work that day.
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Case: 13-3536 Document: 003111874118 Page: 39 Date Filed: 02/11/2015
Thus, we cannot agree with the appellees’ characterization of the effect of submitting the form as triggering, facilitating, or making them complicit in the provision of contraceptive coverage. At oral argument, the appellees argued that it was not merely the filing of the form that imposed a burden, but, rather, what follows from it. But free exercise jurisprudence instructs that we are to examine the act the appellees must perform—not the effect of that act—to see if it burdens substantially the appellees’ religious exercise. The Supreme Court has consistently rejected the argument that an independent obligation on a third party can
John Doe’s time-off request indicates that he will not be complicit in working on the religious holiday. Furthermore, declining to work on that Tuesday does not serve as a trigger or facilitator because one of his other colleagues will be forced to work that day, regardless of whether John Doe works or not. However, just because John Doe does not wish to be associated with or play any role in the result (working on a religious holiday), does not mean the conduct to which he objects (filling out the time-off request form) substantially burdens his free exercise of religion. Just as we cannot conclude that John Doe’s religious exercise is being burdened by filling out the form, we cannot conclude that the appellees’ religious exercise is burdened by filling out the selfcertification form. Furthermore, any “coercive” force attached to John Doe’s refusal to fill out the time-off request is similar to the fines that the appellees face if they refuse to either participate in the accommodation or provide contraceptive coverage. In any event, such “coercive” force is relevant only if the conduct itself actually does substantially burden one’s religious exercise. That is not the case in this analogy, and it is not the case for the appellees.
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Case: 13-3536 Document: 003111874118 Page: 40 Date Filed: 02/11/2015
impose a substantial burden on the exercise of religion in violation of RFRA, as we discuss below. Pre-Smith free exercise cases, which RFRA was crafted to resurrect, have distinguished between what a challenged law requires the objecting parties to do, and what it permits another party— specifically, the government—to do.
In Bowen, the Supreme Court determined that the Free Exercise Clause did not require the government to accommodate a religiously based objection to the statutory requirement that a Social Security number be provided to applicants for certain welfare benefits. Roy, a Native American, argued that the government’s use of his daughter’s Social Security number would “‘rob the spirit’ of his daughter and prevent her from attaining greater spiritual power.” 476 U.S. at 696. Roy’s claim was unsuccessful because “[t]he Federal Government’s use of a Social Security number for . . . [his daughter] d[id] not itself in any degree impair Roy’s ‘freedom to believe, express, and exercise’ his religion.” Id. at 700. Rather, Roy was attempting to use the Free Exercise Clause to dictate how the government should transact its business.
Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family. 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. Just as the Government may not insist
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that appellees engage in any set form of religious observance, so appellees may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. “[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.” . . . The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government’s internal procedures.
Id. at 699-700 (quoting Sherbert, 374 U.S. at 412 (Douglas, J., concurring)).
And, echoing the principles of Bowen, in Lyng, members of Native American tribes claimed that the federal government violated their rights under the Free Exercise Clause by permitting timber harvesting and construction on land used for religious purposes. 485 U.S. at 441-42. The Supreme Court concluded that the Free Exercise Clause “does not and cannot imply that 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, require government to bring forward a compelling justification for its otherwise lawful actions.” Id. at 450-51.
Building on this line of cases, the Court of Appeals for the D.C. Circuit concluded that a federal prisoner failed to
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state a RFRA claim when he sought to enjoin application of the DNA Analysis Backlog Elimination Act on the basis that DNA sampling, storage, and collection without limitations violated his religious beliefs about the proper use of the “building blocks of life.” Kaemmerling, 553 F.3d at 674. Kaemmerling could not state a claim that his religious exercise was substantially burdened because he did not identify any religious exercise that was subjected to the burden to which he objected:
The government’s extraction, analysis, and storage of Kaemmerling’s DNA information does not call for Kaemmerling to modify his 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 (alteration in original) (quoting Thomas, 450 U.S. at 718). “Like the parents in Bowen, Kaemmerling’s opposition to government collection and storage of his DNA profile does not contend that any act of the government pressures him to change his behavior and violate his religion, but only seeks to require the government itself to conduct its affairs in conformance with his religion.” Id. at 680.
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Thus, the case law clearly draws a distinction between what the law may impose on a person over religious objections, and what it permits or requires a third party to do. Although that person may have a religious objection to what the government, or another third party, does with something that the law requires to be provided (whether it be a Social Security number, DNA, or a form that states that the person religiously objects to providing contraceptive coverage), RFRA does not necessarily permit that person to impose a restraint on another’s action based on the claim that the action is religiously abhorrent.
These cases confirm that we can, indeed should, examine the nature and degree of the asserted burden to decide whether it amounts to a substantial burden under RFRA. Furthermore, we must assess how the objected-to action relates to the appellees’ religious exercise, and whether the appellees’ objections focus on the action itself or the result of the action, i.e., the obligations placed upon a third party.
Far from “triggering” the provision of contraceptive coverage to the appellees’ employees and students, EBSA Form 700 totally removes the appellees from providing those services. “[T]he regulations provide an opt-out mechanism that shifts to third parties the obligation to provide contraceptive coverage to which health insurance beneficiaries are entitled, and that fastidiously relieves [the appellees] of any obligation to contract, arrange, pay, or refer for access to contraception . . . .” Priests for Life, 772 F.3d at 252. The self-certification form requires the eligible organization or its plan to provide a copy to the organization’s insurance issuer or third-party administrator in
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order for the plan to be administered in accordance with both the eligible organization’s religious objection and the contraceptive coverage requirement. The ACA already takes into account beliefs like those of the appellees and accommodates them. “The accommodation in this case consists in the organization’s . . . washing its hands of any involvement in contraceptive coverage, and the insurer and the third-party administrator taking up the slack under compulsion of federal law.” Notre Dame, 743 F.3d at 557. The regulations accommodate the interests of religious institutions that provide health services, while not curtailing the public interest that motivates the federally mandated requirement that such services shall be provided to women free of charge. Id. at 551.
Because we find that the self-certification procedure does not cause or trigger the provision of contraceptive coverage, appellees are unable to show that their religious exercise is burdened. Even if we were to conclude that there is a burden imposed on the appellees’ religious exercise, we would be hard-pressed to find that it is substantial. Whether a burden is “substantial” under RFRA is a question of law, not a question of fact. See Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011). RFRA’s reference to “substantial” burdens expressly calls for a qualitative assessment of the burden that the accommodation imposes on the appellees’ exercise of religion. Korte, 735 F.3d at 705 (Rovner, J., dissenting). RFRA calls for a threshold inquiry into the nature of the burden placed on the appellees’ free exercise of religion: “substantial” is a term of degree that invites the courts to distinguish between different types of burdens. Id. at 708.
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We have stated that a substantial burden exists where (1) “a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other [persons] versus abandoning one of the precepts of his religion in order to receive a benefit”; or (2) “the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs.” See Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007) (interpreting a related statute, the Religious Land Use and Institutionalized Persons Act, which applies to prisoner and land use cases). However, a government action does not constitute a substantial burden, even if the challenged action “would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs,” if the government action does not coerce the individuals to violate their religious beliefs or deny them “the rights, benefits, and privileges enjoyed by other citizens.” Lyng, 485 U.S. at 449. Under this definition, can the submission of the self-certification form, which relieves the appellees of any connection to the provision of the objectedto contraceptive services, really impose a “substantial” burden on the appellees’ free exercise of religion? We think not. While Hobby Lobby rejected the argument that the burden was too attenuated because the actual use of the objected-to contraceptive methods was a matter of individual choice, here, where the actual provision of contraceptive coverage is by a third party, the burden is not merely attenuated at the outset but totally disconnected from the appellees.
The reasoning of the District Courts was misguided in two ways. First, the District Courts accepted the appellees’ characterization of the accommodation as causing them to
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“facilitate,” act as the “central cog,” or serve as the “necessary stimulus” for the provision of the objected-to contraceptive services. (J.A. 60-61.) For the reasons we have detailed, we cannot accept that characterization as a matter of fact or law. Second, the District Courts focused on the coercive effect, i.e., the fact that the appellees faced a choice: submit the self-certification form and “facilitate” the provision of contraceptive coverage, or pay fines for noncompliance. However, now that we have dispelled the notion that the self-certification procedure is burdensome, we need not consider whether the burden is substantial, which involves consideration of the intensity of the coercion faced by the appellees. We will accordingly reverse the challenged injunctions.
2. Dividing the Catholic Church Argument
in Zubik/Persico
The appellees in Zubik/Persico argue that a second substantial burden is imposed on their religious exercise in that the contraceptive coverage regulatory scheme improperly partitions the Catholic Church by making the Dioceses eligible for the exemption, while the Catholic nonprofits can only qualify for the accommodation, even though all the Catholic entities share the same religious beliefs. The District Court agreed with the appellees and concluded that the contraceptive mandate “would cause a division between the Dioceses and their nonprofit, religious affiliated/related spiritual/charitable/educational organizations which fulfill portions of Dioceses’ mission. Further, any nonprofit, religious affiliated/related organizations expelled from the Dioceses’ health insurance plans would require significant
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restructuring of the plans which would adversely affect the benefits received from pooling resources.” (J.A. 76 (citation omitted).) We conclude that the inclusion of houses of worship in the exemption and religious nonprofits in the accommodation does not impose a substantial burden on the Zubik/Persico appellees.
The definition of a “religious employer” who receives an exemption from the contraceptive coverage requirement under the regulations is based on longstanding Internal Revenue Code provisions. See 45 C.F.R. § 147.131(a) (citing 26 U.S.C. § 6033(a)(3)(A)(i), (iii)). “[R]eligious employers, defined as in the cited regulation, have long enjoyed advantages (notably tax advantages) over other entities, without these advantages being thought to violate the establishment clause.” Notre Dame, 743 F.3d at 560 (citation omitted) (citing Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 666, 672-73 (1970)). The Departments chose this definition from the Internal Revenue Code to categorize the entities subject to the exemption and the accommodation because that provision was a bright line that was already statutorily codified and frequently applied: “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.” 78 Fed. Reg. at 39,874; see also Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 8456, 8461 (proposed Feb. 6, 2013) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2590, and 45 C.F.R. pts. 147, 148, & 156) (“[T]his definition was intended to focus the religious employer exemption on ‘the unique relationship between a house of worship and its
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employees in ministerial positions.’” (quoting 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) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2590; and 45 C.F.R. pt. 147))).
Furthermore, we are not persuaded that the challenged accommodation poses any burden on the exempted appellees’ religious exercise, particularly a burden that would require the appellees to “expel” the religious nonprofit organizations from the Dioceses’ health insurance plans. See, e.g., Roman Catholic Archdiocese of N.Y. v. Sebelius, 987 F. Supp. 2d 232, 252 (E.D.N.Y. 2013) (“First, it is not at all clear why the Diocesan plaintiffs would have to ‘expel’ their non-exempt affiliates from their health plans. . . . Second, even if the law did pressure the Diocesan plaintiffs to ‘expel’ their affiliates, plaintiffs do not state that the Diocesan plaintiffs’ religious beliefs require them to have all their affiliate organizations on a single health plan, such that ‘expelling’ the non-exempt affiliates would be an act forbidden by their religion.”).
Thus, we cannot agree that the different treatment afforded to the Catholic Church as a house worship versus the Catholic nonprofit organizations imposes a substantial burden in violation of RFRA.
III. CONCLUSION
We will reverse the District Courts’ orders granting the challenged injunctions. Because we conclude that the appellees have not shown a likelihood of success on the merits of their RFRA claim, based on the determination that
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Case: 13-3536 Document: 003111874118 Page: 49 Date Filed: 02/11/2015 the accommodation does not impose a substantial burden on their religious exercise, we need not reach the question of whether the accommodation is the least restrictive means of furthering a compelling governmental interest.
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 Case: 14-1376 Document: 003111935732 Page: 1 Date Filed: 04/16/2015
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 14-1376
MOST REVEREND LAWRENCE T. PERSICO, et al. v.
SECRETARY OF UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Appellants (W.D. Pa. 1-13-cv-00303) No. 14-1377 MOST REVEREND DAVID A. ZUBIK, et al. v.
SECRETARY OF UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; et al., Appellants (W.D. Pa. No. 2-13-cv-01459)
ORDER By order entered April 15, 2015, the Supreme Court of the United States order that the mandate issued by the Third Circuit Court of Appeals be recalled and stayed pending receipt of a response and further order of the Supreme Court. In accordance with this directive, it is hereby O R D E R E D that the mandate in this matter is hereby recalled. For the Court,
Marcia M. Waldron, Clerk Date: April 16, 2015 tmm/cc: all counsel of record

 
 Case: 14-1376 Document: 003111935733 Page: 1 Date Filed: 04/16/2015

Supreme Court of the United States
No. 14A1065
MOST REVEREND DAVID A. ZUBIK, ET AL., Applicants
v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.

O R D E R

UPON CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the mandate of the United States Court of Appeals for the Third Circuit, case Nos. 14-1376 & 14-1377, issued April 15, 2015, is hereby recalled and stayed pending receipt of a response, due on or before April 20, 2015, and further order of the undersigned or of the Court.

Dated this 15th day of April, 2015.

/s/ Samuel A. Alito, Jr. Associate Justice of the Supreme
Court of the United States

 
 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made th is 13th day of October 2017, by and between the entities and individuals listed in Exhibit A ("Plaintiffs") and the United States of America, acting by and through Eric D. Hargan, in hi s offic ial capacity as Acting Secretary of Health and Human Services; R. A lexander Acosta, in hi s offic ial capacity as Secretary ofLabor; Steven T. M nuchin, in his official capacity as Secretary of the Treasury; the United States Department of Health and Human Services; the United States Department ofLabor; and the United States Department of the Treasury (the "Government" or the " D epartme nts") (collectively, the " Parties").
R EC ITALS WHEREAS, there is now pending a series of lawsuits listed in Exh ibit B (collectively, the " Litigation'") in which Pla intiffs a llege that the Government has, among other things, vio lated the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-I et seq., by promulgating and enforcing regulations pursuant to 42 U.S.C. § 300gg-13 that required Plaintiffs to take actions that facilitated the prov is ion, through or in connection with their health plans, of Food and Drug Administration-approved contraceptive methods and abortifacients, as wel I as sterilization procedures and re lated patient education and counseling to which Plaintiffs object on relig ious grounds ("the Objectionable Coverage"). The regulations were found at 26 C.F.R. § 54.98 l 5-27 I 3A (Sept. 14, 20 15), 26 C.F. R. § 54.98 15-27 13(a)(l)(iv) (July 19, 2010), 29 C.F.R. § 2590.7 152713A (Sept. 14, 2015), 29 C.F. R. § 2590.715- 2713(a)(l)(iv) (July 19, 20 10), 45 C.F.R.
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§ 147.13 1 (Sept. 14, 20 15), and 45 C.F.R. § 147.l30(a)(l)(iv) (July 19, 20 10) (the ·' Regulations' ').
\\'HEREAS, the Departments of Hea lth and Huma n Services, Labor, and T reasury have issued new regulations afford ing Plaintiffs an exemption. 82 Fed. Reg. 47.792 (Oct. 13, 20 17), available at https://www.gpo.gov/ fd sys/pkg/F R-20 17-I 013/pd f/2 017-21851 .pdf.
WHEREAS, those new regulations state that " requiring certain objecting entities or indiv idua ls to choose between the Mandate, the accommodatio n, o r penalties fo r noncompliance imposes a substantia l burden on relig ious exercise under RFRA," that " the application of the Mandate to certa in o bjecting employers [i]s [not] necessary to serve a compelli ng governmental interest,"' and that "alternati ve approaches can further the interest the Departments prev ious ly identified behind the Mandate." 82 Fed. Reg. 47,792, 4 7,800. 47,806 (O ct. 13, 20 17), available at https://www.gpo.gov/fdsys/pkg/FR-20 17- 1013/pdf/20 17-2 185 1.pdf.
WH EREAS, recent Executi ve Orders establish that it is the po licy of the Government •·to vigorous ly enfo rce Federal law's robust protecti ons for re ligious freed om." and to '·exercise al l authority and discretion available ... to waive, defer, grant exem ptio ns from, o r delay the implementation o f any provision o r req uire ment of the [Affordab le Ca re] Act that wou ld impose ... a cost, fee, tax, pena lty, o r regulatory burden on ... health insurers, ... [o r] purchasers of hea lth insurance ." Executi ve Order 13798, Promoting Free Speech and Religio us Liberty 82 Fed. Reg.2 1,675 (May4, 20 17); Executi ve
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Order 13765, Minimizing the Economic Burden on the Patient Protectio n and Affordable Care Act Pending Repeal 82 Fed. Reg. 8,351 (Jan. 20, 2017).
WHEREAS, after yea rs of liti gatio n, the Supreme Court considered the claims m these cases and, instead of reso lving the legal issues, remanded the cases to allow the parties to "resolve any o utstanding issues between them." Zubik v. Burwell, 136 S. Ct. 1557, 1560(2016).
WHEREAS, the Supreme Court's remand orders provided that "the Government may not impose taxes o r penalties on [Plaintiffs] for fa il ure to provide the ... notice" required by the Regu lations. Id. at 1561.
WHEREAS, the new regulations, the Supreme Court's remand order, and the President's Executive Orders have placed this litigation in an extraordi nary posture.
WHEREAS, it is the desire of the Parties to resolve finally and permanently a ll disputes, asserted or unasserted, arising out o f, or related to the matters set forth , a lleged , embraced by, o r otherwi se referred to in the Litigation.
NOW THEREFORE, in consideration of the Rec itals and mutual promises contained herein, including the discontinuation of the pending Litigation, and fo r other good and valuable consideration hereby deemed rece ived , the Parties agree as follows :
TERMS OFAGREEMENT
I. The Paities agree that, under the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Affordable Care Act's "contraceptive mandate." if applied as set out in 26 C.F.R. § 54.98 l 5-27 l 3(a)(l )(iv) (July 19, 2010), 29 C.F.R. §2590.715- 2713(a)(l)(iv) (July 19, 20 10), and 45 C.F.R. § 147.130(a)( l)( iv) (Ju ly
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19, 2010), would .. impose(] a substantial burden on [Plaintiffs'] exercise of religion," id. at 2779, and "violate[] RFRA," id. at 2785. The Government therefore agrees that the "contraception mandate" as described in Hobby lobby cannot be legal ly enforced. under RFRA, against Plaintiffs or their health plans.
2. The Government agrees, with respect to all Plaintiffs, to abide by the terms of the permanent injunction in Zubik v. Sebelius, 13-cv- 1459, l3-cv-303. 20 13 WL 6922024 (W.D. Pa. Dec. 20, 20 13), as it relates to the Objectionable Coverage. The Government accordingly will treat Plaintiffs and their health plans, including their insurance issuers and/or third party administrators in connection with those health plans, as exempt from the Regulations or any materially similar regulation or agency policy. A materially similar regulation or agency policy includes any requirement that Plaintiffs, their insurance issuers, or their third-pa11y administrators provide any of the Objectionable Coverage through or in connection with Plaintiffs' health plans, wh ich means:
a. Plainti ffs (and their insurers and third-party administrators acting in connection with Plaintiffs' health plans) may provide health coverage without the Objectionable Coverage, and no procedure for providing any of the Objectionable Coverage may require any action by Plaintiffs;
b. If the Objectionable Coverage is provided, it may not be provided as part of any health plan sponsored by Plaintiffs, but instead must be provided through a separate and distinct health plan or other arrangement that is separate and distinct from Plaintiffs' health plan;
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c. Plaintiffs or the ir health plans may not be requ ired to pay fo r the provision of the Objectionable Coverage, either directly or indirectly (though Plai ntiffs are not excused from paying generally appl icable taxes);

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

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

f.

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

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

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

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

a nd

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

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

5 of I0

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

42(b). After the appea ls are dism issed, the parties agree that they wil ljointly file stipulations of dismissal or motions fo r dismissa l under Federa l Rule of Civ il Procedure 41 (a), except in cases where there is a final judgment in the district court. This agreement shall not be effective until the Parties fil e dismissals of all appeals currently pending.
7. The Government agrees to pay Plaintiffs $3 million in costs and fees . 8. The Parties agree that this Agreement constitutes a good-fa ith settlement of the Litigation for good and va luable consideration and acknowledge that it is entered into freely and voluntarily. 9. The Parties further agree that thi s Agreement has been full y read and understood by them, and that each of them has received independent legal advice from their respective attorney(s) as to the effect and import of its prov isions. The Parties furth er agree that this Agreement is being entered into for the express purpose and intention of mak ing and entering inco a full and final compromise, adjustment, and settlement of all c laims which were or could have been asserted in the Litigation, whether or not referred to therein. I0. This Agreement constitutes the sole and entire agreement between Plaintiffs and the Government. and supersedes all prior agreements, negotiations, and discuss ions between the Parties with respect to the subject matter covered hereby. It is express ly understood and agreed that this Agreement may not be altered, amended, waived, mod ified, or otherwise changed except by writing, du ly executed by authorized representatives of Pla intiffs and the Gove rnment, respectively. The Parties furth er acknowledge and agree that they wi ll make no claim at any time or place that this Agreement has been orally supp lemented, mod ified, or altered.
7of 10

11. AII signatories represent that they have authority to enter into this Agreement on behalf of the ir respective clients.
12. This Agreement may be executed in counterparts. IN WITNESS WHEREOF, thi s Agreement is executed as of the date and year first indicated above.
8 of10

of!O

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

EXHIBIT A

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

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

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

EXHIBITB

E XHIBIT B

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

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

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

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

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

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

2

 
 Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 1 of 15
U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:13−cv−01459−AJS

CLOSED

ZUBIK et al v. SEBELIUS et al Assigned to: Judge Arthur J. Schwab related Cases: 2:13−cv−00930−AJS
2:14−cv−00681−AJS
Case in other court: USCA, 14−01377 Cause: 42:2000 Civil Rights: Other
Plaintiff
MOST REVEREND DAVID A. ZUBIK BISHOP OF THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, as Trustee of The Roman Catholic Diocese of Pittsburgh, a Charitable Trust

Date Filed: 10/08/2013 Date Terminated: 12/20/2013 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by John D. Goetz Jones Day One Mellon Center Suite 4500 Pittsburgh, PA 15219 (412) 391−3939 Email: jdgoetz@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leon F. DeJulius Jones Day 500 Grant Street One Mellon Center Suite 4500 Pittsburgh, PA 15219 (412) 394−9528 Fax: (412) 394−7959 Email: lfdejulius@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul M. Pohl Jones Day 500 Grant St. Suite 4500 Pittsburgh, PA 15219 (412) 391−3939 Email: pmpohl@jonesday.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ira M. Karoll Jones Day 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 412−391−3939 Fax: 412−394−7959 Email: ikaroll@jonesday.com ATTORNEY TO BE NOTICED
Jeffrey A. McSorley 613 8th Street NE Washington, DC 20002 202−302−0318 Email: jamcsorley@yahoo.com ATTORNEY TO BE NOTICED
Mary Pat Stahler

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 2 of 15

Morgan Lewis & Bockius LLP One Oxford Centre 32nd Floor Pittsburgh, PA 15219 412−560−7442 Fax: 412−560−7001 Email: marypat.stahler@morganlewis.com TERMINATED: 10/01/2015 ATTORNEY TO BE NOTICED

Plaintiff
THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH as the Beneficial Owner of the Pittsburgh series of The Catholic Benefits Trust; and

represented by John D. Goetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leon F. DeJulius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul M. Pohl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ira M. Karoll (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A. McSorley (See above for address) ATTORNEY TO BE NOTICED

Mary Pat Stahler (See above for address) TERMINATED: 10/01/2015 ATTORNEY TO BE NOTICED

Plaintiff
CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC. an affiliate nonprofit corporation of The Roman Catholic Diocese of Pittsburgh

represented by John D. Goetz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leon F. DeJulius (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul M. Pohl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ira M. Karoll (See above for address) ATTORNEY TO BE NOTICED

Jeffrey A. McSorley (See above for address) ATTORNEY TO BE NOTICED

Mary Pat Stahler

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 3 of 15
(See above for address) TERMINATED: 10/01/2015 ATTORNEY TO BE NOTICED

V. Defendant KATHLEEN SEBELIUS in her official capacity as Secretary of the U.S. Department of Health and Human Services
Defendant THOMAS PEREZ in his official capacity as Secretary of the U.S. Department of Labor
Defendant JACOB J. LEW in his official capacity as Secretary of the U.S. Department of Treasury

represented by Adam Grogg U.S. Department of Justice, Civil Division, Federal Programs 20 Massachusetts Ave. NW Washington, DC 20037 202−514−2395 Email: adam.a.grogg@usdoj.gov TERMINATED: 08/24/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley P. Humphreys U.S. Department of Justice, Civil Division, Federal Programs 20 Massachusetts Ave, N.W. Room 7219 Washington, DC 20530 (202) 514−3367 Fax: (202) 616−8470 Email: bradley.p.humphreys@usdoj.gov TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Bennett U.S. Department of Justice 20 Massachusetts Avenue NW, Rm. 7310 Washington, DC 20001 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED
represented by Adam Grogg (See above for address) TERMINATED: 08/24/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Adam Grogg (See above for address) TERMINATED: 08/24/2017 LEAD ATTORNEY

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 4 of 15

ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Defendant
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

represented by Adam Grogg (See above for address) TERMINATED: 08/24/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Defendant
U.S. DEPARTMENT OF LABOR and

represented by Adam Grogg (See above for address) TERMINATED: 08/24/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Defendant U.S. DEPARTMENT OF TREASURY

represented by Adam Grogg (See above for address) TERMINATED: 08/24/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) TERMINATED: 03/06/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 5 of 15

Movant AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF PENNSYLVANIA
Movant AMERICAN CIVIL LIBERTIES UNION FOUNDATION

represented by Brigitte Amiri American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2633 Fax: 212−549−2650 Email: bamiri@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Mach American Civil Liberties Union Foundation 125 Broad St 18th Floor New York, NY 10004 202−675−2330 Email: dmach@dcaclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lee American Civil Liberties Union Foundation 125 Broad St 18th Floor New York, NY 10004 212−549−2633 Email: jlee@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Witold J. Walczak ACLF of PA 313 Atwood Street Pittsburgh, PA 15213 (412) 681−7864 Email: vwalczak@aclupa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brigitte Amiri (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Mach (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lee (See above for address) LEAD ATTORNEY

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 6 of 15
PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 10/08/2013
10/08/2013 10/08/2013 10/08/2013
10/08/2013 10/08/2013
10/08/2013 10/08/2013 10/08/2013 10/08/2013 10/08/2013 10/09/2013

# Docket Text
1 COMPLAINT against JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY (Filing fee, including Administrative fee, $400, receipt number 0315−2955420), filed by THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK, CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC. (Attachments: # 1 Civil Cover Sheet, # 2 Summons US Attorney General, # 3 Summons US Attorney, # 4 Summons Sebelius, # 5 Summons Perez, # 6 Summons Lew, # 7 Summons Dept. of HHS, # 8 Summons Dept. of Labor, # 9 Summons Dept. of Treasury) (jsp) (Entered: 10/08/2013)
2 Disclosure Statement identifying None as corporate parent or other affiliate, by THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH. (jsp) (Entered: 10/08/2013)
3 Disclosure Statement identifying None as corporate parent or other affiliate, by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC. (jsp) (Entered: 10/08/2013)
4 MOTION for Expedited Preliminary Injunction by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Attachments: # 1 Proposed Order, # 2 Index of Exhibits, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5 Part 1, # 8 Exhibit 5 Part 2, # 9 Exhibit 5 Part 3, # 10 Exhibit 6, # 11 Exhibit 7, # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10, # 15 Exhibit 11) (jsp) (Entered: 10/08/2013)
5 MOTION for Expedited Scheduling Order or Expedited Status Conference by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Attachment: # 1 Proposed Order) (jsp) (Entered: 10/08/2013)
6 BRIEF in Support re 4 Motion for Expedited Preliminary Injunction, 5 Motion for Expedited Scheduling Order or Expedited Status Conference filed by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (jsp) (Entered: 10/08/2013)
Summons Issued as to JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (jsp) (Entered: 10/08/2013)
7 NOTICE of Appearance by John D. Goetz on behalf of CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Goetz, John) (Entered: 10/08/2013)
8 NOTICE of Appearance by Leon F. DeJulius on behalf of CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (DeJulius, Leon) (Entered: 10/08/2013)
9 NOTICE of Appearance by Ira M. Karoll on behalf of CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Karoll, Ira) (Entered: 10/08/2013)
10 NOTICE of Appearance by Mary Pat Stahler on behalf of CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Stahler, Mary Pat) (Entered: 10/08/2013)
11 NOTICE that instant civil action has been designated for placement into the United States District Court's Alternative Dispute Resolution program. Parties are directed to fully complete the required 26(f) report, which includes the stipulation of selecting an ADR process. Counsel for plaintiff (or in the case of a removal action, counsel for removing defendant) shall make service of the notice on all parties. (ms) (Entered:

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 7 of 15

10/09/2013
10/10/2013
10/15/2013 10/15/2013 10/15/2013 10/16/2013 10/16/2013 10/22/2013 10/22/2013
10/22/2013

10/09/2013)
ORDER OF COURT: Consistent with the Court's practices, the Court hereby ORDERS a STATUS CONFERENCE be held on Thursday, October 24, 2013 at 10:30 a.m. in Courtroom 7C, 7th Floor, United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania. Counsel for Plaintiffs is further ORDERED to provide a copy of this Court Order to Defendants and/or Defendants' Chief Trial Counsel. Signed by Judge Arthur J. Schwab on 10/09/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (lck) (Entered: 10/09/2013)
12 ORDER, in preparation for the Status Conference set for 10/24/13, Lead Counsel are directed to meet and confer, face−to−face, to hold extensive and in−depth discussions on the issues relevant to the orderly preparation and trial of these matters, at a date, time, and place convenient to Counsel. If Counsel are unable to agree on a date, time, and/or place, Lead Trial Counsel will meet and confer, face−to−face, in the jury room of this Court at 9:30 a.m. on Monday, October 21, 2013. Detailed Joint Status Report due by 10/22/2013 at 4:00 PM. Counsel for Plaintiffs is further ORDERED to promptly provide a copy of this Court Order to Defendants and/or Defendants' Lead Trial Counsel. Signed by Judge Arthur J. Schwab on 10/10/13. (lck) (Entered: 10/10/2013)
TEXT ORDER − In light of the Court's Text Order dated 10/09/13, scheduling a Status Conference for 10/24/13 at 10:30 AM, Doc. No. 5 Motion for Expedited Scheduling Order Or Status Conference is DENIED AS MOOT. Signed by Judge Arthur J. Schwab on 10/15/13. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (lck) (Entered: 10/15/2013)
13 NOTICE of Appearance by Bradley P. Humphreys on behalf of JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 10/15/2013)
14 Unopposed MOTION to Modify 12 Order to Permit the Parties to Meet and Confer Telephonically or, in the Alternative, by Video Conference by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachment: # 1 Proposed Order) (Humphreys, Bradley) Modified on 10/16/2013. (jsp) (Entered: 10/15/2013)
15 ORDER GRANTING 14 Motion to Modify the Court's October 10, 2013 Order. The parties are relieved of the requirement that they meet and confer face−to−face. The Court expects the conference to be conducted in good faith and be meaningful in substance. Signed by Judge Arthur J. Schwab on 10/16/13. (lck) (Entered: 10/16/2013)
TEXT ORDER − The Status Conference scheduled for 10/24/13 at 10:30 AM has been RESCHEDULED to 11:00 AM. Signed by Judge Arthur J. Schwab on 10/16/13. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (ms) (Entered: 10/16/2013)
16 JOINT STATUS REPORT by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Attachments: # 1 Plaintiffs' Exhibit 1) (Goetz, John) (Entered: 10/22/2013)
17 SUMMONS/Return of Service Returned Executed by THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK, CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC.. THOMAS PEREZ served on 10/17/2013, answer due 12/16/2013; KATHLEEN SEBELIUS served on 10/15/2013, answer due 12/16/2013; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 10/15/2013, answer due 12/16/2013. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D) (Pohl, Paul) (Entered: 10/22/2013)
18 MOTION to Reassign Case by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S.

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 8 of 15

10/23/2013 10/24/2013 10/25/2013 10/25/2013
10/29/2013 10/30/2013 10/30/2013 10/31/2013 10/31/2013
10/31/2013 10/31/2013

DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 10/22/2013)
19 RESPONSE to Motion re 18 MOTION to Reassign Case filed by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Goetz, John) (Entered: 10/23/2013)
20 Minute Entry for proceedings held before Judge Arthur J. Schwab: Status Conference held on 10/24/2013. Response to Motion for Preliminary Injunction due by 10/29/2013; Reply due by 11/5/2013; Joint Status Report due by 10/31/2013 at noon; and Preliminary Injunction Hearing set for 11/12/2013 at 08:30 AM before Judge Arthur J. Schwab. (Court Reporter: Richard Ford) (lck) Modified on 10/25/2013 − SEE ERRATA DOC NOT 21 − Corrected Hearing Memo. (lck) (Entered: 10/24/2013)
21 Errata re 20 Status Conference Minute Entry. Reason for Correction: Correction on Hearing Memo. (lck) (Entered: 10/25/2013)
22 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on October 24, 2013 before Judge Arthur J. Schwab. Court Reporter Richard Ford, Telephone number (412) 261−0802. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 11/1/2013. Redaction Request due 11/15/2013. Redacted Transcript Deadline set for 11/25/2013. Release of Transcript Restriction set for 1/23/2014. (rtf, ) (Entered: 10/25/2013)
23 BRIEF in Opposition re 4 Motion for Preliminary Injunction, filed by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 10/29/2013)
TEXT ORDER − The Court hereby schedules argument for 8:30 AM on Wednesday, November 13, 2013, subsequent to the Preliminary Injunction Hearing, scheduled for Tuesday, November 12, 2013, from 8:30 AM to 2:30 PM. Signed by Judge Arthur J. Schwab on 10/30/13. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. (ms) (Entered: 10/30/2013)
24 ORDER denying 18 Motion to Reassign Case. Signed by Judge Arthur J. Schwab on 10−30−2013. (lmt) (Entered: 10/30/2013)
25 JOINT STATUS REPORT by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Pohl, Paul) Modified on 11/1/2013. (plh) (Entered: 10/31/2013)
26 MOTION for Leave to File Brief as Amici Curiae by American Civil Liberties Union and American Civil Liberties Union of Pennsylvania by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachments: # 1 Exhibit Brief of Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Pennsylvania in Opposition to Plaintiffs' Motion for Preliminary Injunction, # 2 Proposed Order) (Walczak, Witold) (Entered: 10/31/2013)
27 ORDER OF COURT SETTING INITIAL CASE MANAGEMENT CONFERENCE. An Initial Case Management Conference in this case shall be held on November 13, 2013, at 8:00AM. On or before November 8, 2013, the parties shall submit the required joint documents as set forth in this Order. Defendant shall file an Answer or otherwise plead on or before November 8, 2013. Signed by Judge Arthur J. Schwab on 10/31/2013. (lcb) (Entered: 10/31/2013)
28 ORDER OF COURT GRANTING 26 Motion for Leave to File Brief as Amici Curiae. The Brief in Opposition to Plaintiffs' Motion for Preliminary Injunction by the American Civil Liberties Union and the American Civil Liberties Union of

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 9 of 15

11/01/2013 11/04/2013
11/04/2013 11/04/2013 11/04/2013 11/04/2013 11/05/2013 11/05/2013 11/05/2013 11/05/2013 11/06/2013 11/07/2013
11/07/2013

Pennsylvania, previously filed as an attachment to said Motion, shall be filed on ECF on or before November 1, 2013. Signed by Judge Arthur J. Schwab on 10/31/2013. (lcb) (Entered: 10/31/2013)
29 BRIEF of Amici Curiae in Opposition re 4 Motion for Preliminary Injunction, filed by AMERICAN CIVIL LIBERTIES UNION FOUNDATION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF PENNSYLVANIA. (Walczak, Witold) Modified on 11/4/2013. (jsp) (Entered: 11/01/2013)
30 Unopposed MOTION to Modify the Court's October 31, 2013 Order to Permit the Parties to Conduct Their Rule 26(f) Conference Telephonically or, in the Alternative, by Video Conference 27 Order, Set Hearings, by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 11/04/2013)
31 ORDER GRANTING 30 Motion to Modify the Court's 10/31/13 Order. The parties are relieved of the requirement that they conduct their Rule 26(f) conference face−to−face. Signed by Judge Arthur J. Schwab on 11/4/13. (lck) (Entered: 11/04/2013)
32 MOTION for attorney Daniel Mach to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2985748) by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Affidavit, # 2 Proposed Order) (Mach, Daniel) (Entered: 11/04/2013)
33 MOTION for attorney Brigitte Amiri to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2985783) by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Affidavit, # 2 Proposed Order) (Amiri, Brigitte) (Entered: 11/04/2013)
34 MOTION for attorney Jennifer Lee to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2985806) by AMERICAN CIVIL LIBERTIES UNION FOUNDATION. (Attachments: # 1 Affidavit, # 2 Proposed Order) (Lee, Jennifer) (Entered: 11/04/2013)
35 ORDER GRANTING 32 Motion for Daniel Mach to Appear Pro Hac Vice. Signed by Judge Arthur J. Schwab on 11/5/13. (lck) (Entered: 11/05/2013)
36 ORDER GRANTING 33 Motion for Brigitte Amiri to Appear Pro Hac Vice. Signed by Judge Arthur J. Schwab on 11/5/13. (lck) (Entered: 11/05/2013)
37 ORDER GRANTING 34 Motion for Jennifer Lee to Appear Pro Hac Vice. Signed by Judge Arthur J. Schwab on 11/5/13. (lck) (Entered: 11/05/2013)
38 REPLY BRIEF re 4 Motion for Preliminary Injunction, filed by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Pohl, Paul) (Entered: 11/05/2013)
39 MOTION for Protective Order by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Proposed Order) (Humphreys, Bradley) (Entered: 11/06/2013)
ORDER re 39 Motion for Protective Order, filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, JACOB J. LEW, THOMAS PEREZ, U.S. DEPARTMENT OF TREASURY, KATHLEEN SEBELIUS. Response to Motion due by 11/7/2013 at noon. Signed by Judge Arthur J. Schwab on 11/7/13. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (lck) (Entered: 11/07/2013)
40 JOINT RESPONSE IN OPPOSITION to 39 Motion for Protective Order, filed by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK.

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 10 of 15

11/07/2013 11/07/2013 11/07/2013 11/08/2013 11/08/2013 11/08/2013 11/08/2013 11/08/2013 11/08/2013
11/08/2013
11/11/2013 11/12/2013

(Attachments: # 1 Exhibit 1 IRS Emails, # 2 Exhibit 2 Email produced in Pohl v HHS, # 3 Exhibit 3 Excerpts of Gary Cohen Deposition Transcript and Notice, # 4 Exhibit 4 Data on Catholic Organizations, # 5 Exhibit 5 Proposed Stipulations) (Pohl, Paul) Modified on 11/8/2013. (jsp) (Entered: 11/07/2013)
41 AFFIDAVIT of Service for Complaint served on Jacob Lew, US Dept of Treasury, and US Dept of Labor on October 8, 2013, filed by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Karoll, Ira) (Entered: 11/07/2013)
42 ORDER granting in part and denying in part 39 Motion for Protective Order. At Defendants' election, Shawn Braxton shall be deposed on November 8, 2013, as noticed, or she shall appear and testify at the upcoming Preliminary Injunction Hearing of November 12, 2013. Signed by Judge Arthur J. Schwab on 11/7/13. (lck) (Entered: 11/07/2013)
43 STIPULATION to Undisputed Facts by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Pohl, Paul) Modified on 11/8/2013. (jsp) (Entered: 11/07/2013)
44 MOTION for attorney Jeffrey A. McSorley to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−2991358) by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Attachments: # 1 Affidavit of Jeffrey A. McSorley, # 2 Proposed Order) (McSorley, Jeffrey ) (Entered: 11/08/2013)
45 Joint Exhibit List Chart by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Pohl, Paul) Modified on 11/13/2013. (jsp) (Entered: 11/08/2013)
46 ORDER granting 44 Motion for Jeffrey A. McSorley to Appear Pro Hac Vice. Signed by Judge Arthur J. Schwab on 11/8/13. (lck) (Entered: 11/08/2013)
47 REPORT of Rule 26(f) Planning Meeting. (Humphreys, Bradley) (Entered: 11/08/2013)
48 Proposed Case Management Order by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) Modified on 11/13/2013. (jsp) (Entered: 11/08/2013)
49 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or, in the Alternative, for Summary Judgment by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley). Added MOTION for Summary Judgment on 11/13/2013 (jsp). (Entered: 11/08/2013)
50 BRIEF in Support re 49 Motion to Dismiss for Failure to State a Claim, or, in the Alternative, Motion for Summary Judgment filed by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) Modified on 11/13/2013. (jsp) (Entered: 11/08/2013)
51 Joint MOTION to Strike the Certification of Ms. Shawn Braxton Concerning the Administrative Record by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Attachments: # 1 Proposed Order, # 2 Exhibit A) (Pohl, Paul) (Entered: 11/11/2013)
52 DEPOSITION of Gary M. Cohen taken on April 16, 2013 by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Pohl, Paul) (Entered: 11/12/2013)

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 11 of 15

11/12/2013 11/12/2013 11/12/2013
11/12/2013
11/12/2013 11/13/2013 11/13/2013 11/13/2013 11/13/2013
11/13/2013

53 DEPOSITION of Cardinal Timothy Dolan taken on November 7, 2013 by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Attachments: # 1 Exhibit A) (Pohl, Paul) (Entered: 11/12/2013)
54 DEPOSITION of Shawn Braxton taken on November 8, 2013 by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Pohl, Paul) (Entered: 11/12/2013)
55 NOTICE of Filing of Plaintiffs' Exhibits Admitted into Evidence at the November 12, 2013 Hearing on Plaintiffs' Motion for Preliminary Injunction by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK (Attachments: # 1 P1, # 2 P2, # 3 P3, # 4 P4, # 5 P5, # 6 P6, # 7 P7, # 8 P8, # 9 P10, # 10 P11, # 11 P12, # 12 P13, # 13 P14, # 14 P15, # 15 P16, # 16 P17, # 17 P18, # 18 P19, # 19 P20, # 20 P21, # 21 P23, # 22 P24, # 23 P25, # 24 P26, # 25 P27, # 26 P28, # 27 P29, # 28 P30, # 29 P31, # 30 P32, # 31 P33, # 32 P34, # 33 P35, # 34 P36, # 35 P44, # 36 P46 − part 1, # 37 P46 − part 2, # 38 P46 − part 3, # 39 P46 − part 4, # 40 P46 − part 5, # 41 P46 − part 6, # 42 P46 − part 7, # 43 P46 − part 8, # 44 P46 − part 9, # 45 P46 − part 10, # 46 P51, # 47 P75, # 48 P79, # 49 P85, # 50 P86, # 51 P87, # 52 P88, # 53 P89, # 54 P90, # 55 P91, # 56 P92) (Pohl, Paul) (Entered: 11/12/2013)
56 Minute Entry for proceedings held before Judge Arthur J. Schwab: Motion Hearing held on 11/12/2013 re 4 MOTION for Preliminary Injunction filed by DAVID A. ZUBIK, THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC. Defendants to file their Response to Motion to Strike (doc no. 51 at 13−1459 and doc no 50 at 13−303 Erie) by 11/15/13; Reply due 11/18/13. Supplemental Briefing to Motion for Preliminary Injunction from all parties including amicus due 11/15/13 by 5:00 PM. Briefs limited to 10 pages. (Court Reporter: Richard Ford/Shirley Hall) (lck) (Entered: 11/13/2013)
57 EXHIBITS Shown at Hearing on Motion for Preliminary Injunction held on 11/12/13. (lck) (Entered: 11/13/2013)
Minute Entry for proceedings held before Judge Arthur J. Schwab: Case Management Conference held on 11/13/2013. Plaintiffs' shall file a new proposed Case Management Order. Case is exempt from ADR requirement. Text−only entry; no PDF document will issue. This text−only entry constitutes the Court's order or notice on the matter. Signed by Judge Arthur J. Schwab on 11/13/13. (Court Reporter: R. Ford) (ms) (Entered: 11/13/2013)
58 EXEMPTION of Case from ADR Program. Signed by Judge Judge Arthur J. Schwab on 11/13/13. (ms) (Entered: 11/13/2013)
59 ADDITIONAL STIPULATED FACTS by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Pohl, Paul) Modified on 11/15/2013. (jsp) (Entered: 11/13/2013)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 49 Motion to Dismiss for Failure to State a Claim. ERROR: MULTIPLE Relief Motion Filed as One Relief. CORRECTION: Attorney advised in future that Motions of this nature are to be filed using the Motion Event and clicking on all the reliefs sought in said motion. Clerk of Court added/docketed Motion for Summary Judgment. This message is for informational purposes only. CLERK'S OFFICE QUALITY CONTROL MESSAGE. ERROR: Proposed Order was not attached. CORRECTION: Attorney is advised to file a proposed order by using the Proposed Order event and linking it to the document in question. This message is for informational purposes only. (jsp) (Entered: 11/13/2013)
60 Minute Entry for proceedings held before Judge Arthur J. Schwab: Motion Hearing held on 11/13/2013 re 4 MOTION for Preliminary Injunction filed by DAVID A. ZUBIK, THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC. The Court hears argument from the parties. The Court rules that Exhibit No. P 93 is Admitted. Defense Counsel may file a supplement to Ex. No. P93 by 11/15/13. Parties agree on exhibits admitted into the record. (Court Reporter: Richard Ford) (lck) (Entered: 11/13/2013)

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 12 of 15

11/13/2013
11/13/2013
11/13/2013 11/14/2013 11/14/2013 11/14/2013 11/14/2013 11/15/2013 11/15/2013 11/15/2013

61 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on November 12, 2013 before Judge Arthur J. Schwab. Court Reporter Richard Ford, Telephone number (412) 261−0802. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reportert or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 11/20/2013. Redaction Request due 12/4/2013. Redacted Transcript Deadline set for 12/16/2013. Release of Transcript Restriction set for 2/11/2014. (rtf, ) (Entered: 11/13/2013)
62 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on November 13, 2013 before Judge Arthur J. Schwab. Court Reporter Richard Ford, Telephone number (412) 261−0802. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 11/20/2013. Redaction Request due 12/4/2013. Redacted Transcript Deadline set for 12/16/2013. Release of Transcript Restriction set for 2/11/2014. (rtf, ) (Entered: 11/13/2013)
63 NOTICE of Filing Plaintiffs' Exhibit 93: Federal Rule of Evidence 1006 Summary to Prove Contents of Plaintiffs' Exhibits by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK (Attachments: # 1 P93) (Pohl, Paul) (Entered: 11/13/2013)
TEXT ORDER: Upon further reflection of Plaintiffs' Exhibit P−93, filed at Doc. No. 63 −1, said Exhibit is admitted only as to Part I: Lack of Compelling Government Interest for the Preventative Services Mandate. Defendants' objection as to Parts II and III is sustained as Parts II and III are not relevant to the pending Motions for Expedited Preliminary Injunctions. Signed by Judge Arthur J. Schwab on 11/14/2013. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (lcb) (Entered: 11/14/2013)
64 NOTICE of Appearance by Michelle Bennett on behalf of JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Bennett, Michelle) (Entered: 11/14/2013)
65 NOTICE of Filing of Defendants' Cross Designations of Testimony from the Deposition Transcripts for Gary M. Cohen and Shawn L. Braxton by JACOB J. LEW, THOMAS PEREZ, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY (Attachments: # 1 Exhibit, # 2 Exhibit) (Humphreys, Bradley) (Entered: 11/14/2013)
66 Proposed Order re 49 Motion to Dismiss for Failure to State a Claim, Motion for Summary Judgment,, by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 11/14/2013)
67 JOINT SUPPLEMENTAL BRIEF in Support re: 6 Brief in Support of re: 4 Motion for Preliminary Injunction, filed by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Pohl, Paul) Modified on 11/18/2013. (plh) (Entered: 11/15/2013)
68 BRIEF in Opposition to 4 MOTION for Preliminary Injunction, filed by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 11/15/2013)
69 BRIEF in Opposition re 51 Motion to Strike, filed by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND

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11/18/2013 11/18/2013 11/19/2013
11/20/2013
11/20/2013 11/21/2013 11/21/2013 12/13/2013
12/20/2013 12/20/2013 12/20/2013
12/20/2013 02/11/2014

HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Humphreys, Bradley) (Entered: 11/15/2013)
70 Proposed Case Management Order Revised Proposed Case Management Order by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Pohl, Paul) (Entered: 11/18/2013)
71 REPLY in support to 51 Motion to Strike, filed by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Pohl, Paul) (Entered: 11/18/2013)
72 REVISED CASE MANAGEMENT ORDER: Parties shall move to amend the pleadings or add new parties by 12/2/13; Exchange of required Rule 26(a)(1) information due by 12/20/2013; Motion to Compel due by 1/10/2014; Response to Motion to Compel due by 1/24/2014; Fact Discovery completed by 7/11/2014. Response to Motion to Dismiss or in the alternative, Motion for Summary Judgment due by 12/13/2013 Reply brief due by 1/3/2014; Surreply due 1/10/14. Signed by Judge Arthur J. Schwab on 11/19/13. (lck) (Entered: 11/19/2013)
73 SUMMONS/Return of Service Returned Executed by THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK, CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC.. Civil Process Clerk served 10/9/2013. (Attachments: # 1 Exhibit A) (Stahler, Mary Pat) Modified on 11/21/2013 to edit docket text. (ksa) (Entered: 11/20/2013)
74 ORDER denying 51 Motion to Strike Certification without prejudice. Signed by Judge Arthur J. Schwab on 11/20/2013. (lmt) (Entered: 11/20/2013)
75 MEMORANDUM OPINION RE: 4 Plaintiffs' Motions for Expedited Preliminary Injunction. An appropriate Order follows. Signed by Judge Arthur J. Schwab on 11/21/2013. (lcb) (Entered: 11/21/2013)
76 ORDER OF COURT GRANTING 4 Plaintiffs' Motions for Expedited Preliminary Injunction. Signed by Judge Arthur J. Schwab on 11/21/2013. (lcb) (Entered: 11/21/2013)
77 BRIEF in Opposition re 49 Motion to Dismiss for Failure to State a Claim, Motion for Summary Judgment, filed by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Attachments: # 1 Index to Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D) (Pohl, Paul) (Entered: 12/13/2013)
78 Unopposed MOTION for Permanent Injunction by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Attachments: # 1 Proposed Order) (Pohl, Paul) (Entered: 12/20/2013)
79 BRIEF in Support re 78 Motion for Permanent Injunction filed by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Pohl, Paul) (Entered: 12/20/2013)
80 NOTICE of Non−Opposition to Plaintiffs' Motion to Convert Preliminary Injunction into Permanent Injunction by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY re 78 Motion for Permanent Injunction (Humphreys, Bradley) (Entered: 12/20/2013)
81 ORDER GRANTING 78 Unopposed Motion for Permanent Injunction. Signed by Judge Arthur J. Schwab on 12/20/13. (lck) (Entered: 12/20/2013)
82 NOTICE OF APPEAL as to 81 Order on Motion for Permanent Injunction by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. Motion for IFP N/A. Certificate of Appealability N/A. Court Reporter(s): Richard Ford. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 14 of 15

02/11/2015
03/03/2015 03/06/2015 03/06/2015 04/15/2015
09/30/2015 10/01/2015 10/01/2015 08/15/2017 08/16/2017
08/16/2017 08/24/2017

and/or the certified copy of the docket entries. The Transcript Purchase Order form will NOT be mailed to the parties. The form is available on the Court's internet site. (Humphreys, Bradley) (Entered: 02/11/2014)
84 JUDGMENT OF USCA as to 82 Notice of Appeal, filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, JACOB J. LEW, THOMAS PEREZ, U.S. DEPARTMENT OF TREASURY, KATHLEEN SEBELIUS Reversing judgment/order of the district court. Costs taxed against the appellees. Mandate will follow. (pdb3, ) Modified on 2/12/2015. (jsp) (Entered: 02/11/2015)
85 NOTICE of Appearance by Adam Grogg on behalf of JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Grogg, Adam) (Entered: 03/03/2015)
86 Unopposed MOTION of Bradley P. Humphreys to Withdraw as Attorney by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Attachment: # 1 Proposed Order) (Humphreys, Bradley) Modified on 3/9/2015. (jsp) (Entered: 03/06/2015)
87 ORDER GRANTING 86 Motion to Withdraw as Attorney. Attorney Bradley P. Humphreys terminated. Signed by Judge Arthur J. Schwab on 3/6/15. (lck) (Entered: 03/06/2015)
88 MANDATE of USCA issued as to 82 Notice of Appeal, filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, JACOB J. LEW, THOMAS PEREZ, U.S. DEPARTMENT OF TREASURY, KATHLEEN SEBELIUS, reversing judgment/order of the district court. Costs taxed against the appellees. (Attachments: # 1 mandate letter, # 2 opinion) (tmm3, ) Modified on 4/16/2015. (jsp) (Entered: 04/15/2015)
89 MOTION of Mary Pat Stahler to Withdraw as Attorney by CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, DAVID A. ZUBIK. (Stahler, Mary Pat) Modified on 10/1/2015. (jsp) (Entered: 09/30/2015)
90 TEXT ORDER GRANTING 89 Motion to Withdraw as Attorney. Attorney Mary Pat Stahler terminated. Signed by Judge Arthur J. Schwab on 10/1/15. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (lck) (Entered: 10/01/2015)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 89 Motion to Withdraw as Attorney. ERROR: Proposed Order was not attached. CORRECTION: Attorney is advised for future reference that motions are to be submitted with an attached proposed order. No further action is required. This message is for informational purposes only. (jsp) (Entered: 10/01/2015)
91 MOTION to Withdraw as Attorney by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Grogg, Adam) (Entered: 08/15/2017)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 91 Motion to Withdraw as Attorney. ERROR: Proposed Order was not attached. CORRECTION: Attorney is advised to file a proposed order by using the Proposed Order event (Located under "Other Documents" in the electronic filing system) and linking it to 91 Motion to Withdraw as Attorney. This message is for informational purposes only. (jv) (Entered: 08/16/2017)
92 Proposed Order re 91 Motion to Withdraw as Attorney by JACOB J. LEW, THOMAS PEREZ, KATHLEEN SEBELIUS, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, U.S. DEPARTMENT OF TREASURY. (Grogg, Adam) (Entered: 08/16/2017)
93 ORDER granting 91 Motion to Withdraw as Attorney. Attorney Adam Grogg terminated. Signed by Judge Arthur J. Schwab on 8/24/17. (lck) (Entered: 08/24/2017)

Case: 2:13-cv-1459 As of: 11/03/2017 12:12 PM EDT 15 of 15

10/20/2017

94 ORDER of USCA re 82 Notice of Appeal filed by U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. DEPARTMENT OF LABOR, JACOB J. LEW, THOMAS PEREZ, U.S. DEPARTMENT OF TREASURY, KATHLEEN SEBELIUS, dismissing case pursuant to Fed. R. App. P. 42(b). (tmm3) Modified on 10/26/2017. (jsp) (Entered: 10/20/2017)

 
 (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

 
 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
Nos. 14-1376 and 14-1377 _____________
MOST REVEREND LAWRENCE T. PERSICO, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF ERIE, AS TRUSTEE OF THE ROMAN CATHOLIC DIOCESE OF ERIE,
A CHARITABLE TRUST; THE ROMAN CATHOLIC DIOCESE OF ERIE; ST. MARTIN CENTER, INC., AN AFFILIATE NONPROFIT CORPORATION OF CATHOLIC CHARITIES OF THE DIOCESE OF ERIE; PRINCE OF PEACE CENTER, INC., AN AFFILIATE NONPROFIT CORPORATION OF CATHOLIC CHARITIES OF THE DIOCESE OF ERIE; ERIE CATHOLIC PREPARATORY SCHOOL, AN AFFILIATE NONPROFIT
CORPORATION OF THE ROMAN CATHOLIC DIOCESE OF ERIE
v.
SECRETARY OF UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;
SECRETARY OF UNITED STATES DEPARTMENT OF LABOR; SECRETARY OF UNITED STATES DEPARTMENT OF THE TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;
UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY,
Appellants in Case No.: 14-1376
MOST REVEREND DAVID A. ZUBIK, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, as Trustee of the Roman Catholic Diocese of Pittsburgh, a Charitable Trust;
THE ROMAN CATHOLIC DIOCESE OF PITTSBURGH, as the Beneficial Owner of the Pittsburgh series of The Catholic Benefits Trust;
CATHOLIC CHARITIES OF THE DIOCESE OF PITTSBURGH, INC., an affiliate nonprofit corporation of The Roman Catholic Diocese of Pittsburgh
v.

SECRETARY OF UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;
SECRETARY OF UNITED STATES DEPARTMENT OF LABOR; SECRETARY OF UNITED STATES DEPARTMENT OF THE TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;
UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY,
Appellants in Case No.: 14-1377 ___________________________ (District Court Nos.: 1-13-cv-00303 and 2-13-cv-01459)
SUR PETITION FOR REHEARING
Present: McKEE, Chief Judge, RENDELL, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SHWARTZ, KRAUSE, and SLOVITER* Circuit Judges
The petition for rehearing filed by appellees in the above-entitled cases having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the judges of the circuit in regular service not having voted for rehearing, the petitions for rehearing by the panel and the Court en banc, is denied.
* The vote of Judge Dolores K. Sloviter, is limited to Panel Rehearing only.
2

BY THE COURT,

Dated: April 6, 2015 CJG/cc: All Counsel of Record

s/MARJORIE O. RENDELL Circuit Judge

3

 
 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT April 9, 2015
Nos. 14-1376 & 14-1377
MOST REVEREND LAWRENCE T. PERSICO, BISHOP OF THE ROMAN CATHOLIC DIOCESE OF ERIE, AS TRUSTEE OF THE ROMAN CATHOLIC DIOCESE OF ERIE, A CHARITABLE
TRUST; THE ROMAN CATHOLIC DIOCESE OF ERIE; ST. MARTIN CENTER, INC., AN AFFILIATE NONPROFIT CORPORATION
OF CATHOLIC CHARITIES OF THE DIOCESE OF ERIE; PRINCE OF PEACE CENTER, INC., AN AFFILIATE NONPROFIT CORPORATION
OF CATHOLIC CHARITIES OF THE DIOCESE OF ERIE; ERIE CATHOLIC PREPARATORY SCHOOL, AN AFFILIATE NONPROFIT
CORPORATION OF THE ROMAN CATHOLIC DIOCESE OF ERIE
v.
SECRETARY OF UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SECRETARY OF UNITED STATES DEPARTMENT OF LABOR; SECRETARY OF UNITED STATES DEPARTMENT OF THE TREASURY; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF THE TREASURY,
Appellants
(W.D. Pa. Nos. 1-13-cv-00303, 2-13-cv-01459)
Present: MCKEE, Chief Judge, RENDELL and SLOVITER, Circuit Judges
1. Appellees’ Motion for Stay of Mandate Pending Petition for Writ of Certiorari.
Respectfully, Clerk/tmm
_________________________________ORDER________________________________ The foregoing Appellees’ Motion for Stay of Mandate Pending Petition for Writ of Certiorari is hereby denied.

Dated: April 15, 2015 tmm/cc: all counsel of record

By the Court,
s/Theodore A. McKee Chief Judge

 
 (ORDER LIST: 576 U.S.)

MONDAY, JUNE 29, 2015

14A1065

ORDER IN PENDING CASE
ZUBIK, DAVID A. ET AL. V. BURWELL, SEC. OF H&HS, ET AL.
The application for an order recalling and staying the issuance of the mandate of the Court of Appeals pending the filing and disposition of a petition for a writ of certiorari, having been submitted to Justice Alito and by him referred to the Court, the application as presented is denied. The Court furthermore orders: If 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), the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of their petition for certiorari.
Nothing in this interim order affects the ability of the applicants’ or their organizations’ employees to obtain, without cost, the full range of FDA approved contraceptives. Nor does this order preclude the Government from relying on the information provided by the applicants, to the extent it considers it necessary, to facilitate the provision of full

contraceptive coverage under the Act. See Wheaton College v. Burwell, 573 U. S. ___ (2014).
This order should not be construed as an expression of the Court’s views on the merits. Ibid.
Justice Sotomayor would deny the application.

 
 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.