case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 1 of 69

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

)

DIOCESE OF FORT WAYNE-SOUTH )

BEND, INC.; CATHOLIC CHARITIES )

OF THE DIOCESE OF FORT WAYNE- )

SOUTH BEND, INC.; SAINT ANNE

)

HOME & RETIREMENT COMMUNITY )

OF THE DIOCESE OF FORT WAYNE- )

SOUTH BEND, INC.; FRANCISCAN

)

ALLIANCE, INC.; UNIVERSITY OF

)

SAINT FRANCIS; and OUR SUNDAY)

VISITOR, INC.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

)

Department of Health and Human

)

Services; HILDA SOLIS, in her official )

capacity as Secretary of the U.S.

)

Department of Labor; TIMOTHY

)

GEITHNER, 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.

)

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

--
CASE NO.: I. I 1 2 C V 1 5 9 ~C

COMPLAINT AND DEMAND FOR JURY TRIAL 1. This lawsuit is about one of America's most cherished freedoms: the freedom to practice one's religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are, and will continue to be, freely available in the United States, and nothing prevents the Government itself

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 2 of 69
from making them more widely available. But the right to such services does not authorize the Government to force the Plaintiffs to violate their own consciences by making them provide, pay for, and/or facilitate those services to others, contrary to their sincerely held religious beliefs. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act ("RFRA"), protects religious entities from such overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights.
2. This country was founded by those searching for religious liberty and freedom from religious persecution. And since the founding of this country, religious organizations such as Plaintiffs have been free to fulfill their religious beliefs through service to all, including the underprivileged and underserved, without regard to the beneficiaries' religious views. As a result, Plaintiffs and other such organizations have played a vital role in securing and protecting the civillibemes of all citizens.
3. The U.S. Constitution and federal statutes protect religious organizations from governmental interference with their religious views-'-particularly minority religious views. The founders recognized, through their own experiences, that the mixture of government and religion is destructive to both institutions and divisive to the social fabric upon which the country depends. The Constitution and federal law thus stand as bulwarks against oppressive government actions even if supported by a majority of citizens. This "wall of separation between church and state" is critical to the preservation of religious freedom. As the Supreme Court has recognized, "[t]he structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of civil authority." Through this lawsuit, Plaintiffs do not seek to
2

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 3 of 69
impose their religious beliefs on others. They simply ask that the Government not impose its values and policies on Plaintiffs, in direct violation of their religious beliefs.
4. Under current federal law described below (the "U.S. Government Mandate"), many Catholic organizations must provide, or facilitate the provision of, abortifacients, sterilization, and contraceptive services to their employees in violation of the centuries' old teachings of the Catholic Church. Ignoring broader religious exemptions from other federal laws, the Government has crafted a narrow, discretionary exemption to this U.S. Government Mandate for "religious employers." Group health plans are eligible for the exemption only if they are "established or maintained by religious employers," and only if the "religious employer" can convince the Government that it satisfies four criteria:
• "The inculcation of religious values is the purpose ofthe organization"; • "The organization primarily employs persons who share the religious tenets of
the organization"; • "The organization primarily serves persons who share the religious tenets of the
organization"; and • "The organization is a nonprofit organization as described in section 6033(a)(I)
and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." Thus, in order to safeguard their religious freedoms, religious employers must plead with government bureaucrats for a determination that they are sufficiently "religious." 5. It is unclear whether Plaintiffs' health benefits plans qualify for this religious exemption. 6. With respect to the fourth requirement, it is unclear whether Plaintiffs Franciscan Alliance and the University of Saint Francis's health benefits plans qualify for this religious exemption because, for example, while they are nonprofit charitable organizations that are firmly
3

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 4 of 69
grounded in the tenets of Catholicism, they appear not to fall within sections 6033(a)(I) and 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
7. The U.S. Government Mandate, including the narrow exemption for certain "religious employers," is irreconcilable with the First Amendment, RFRA, and other laws. The Government has not shown any compelling need to force Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception, or for requiring Plaintiffs to submit to an intrusive governmental examination of their religious missions. The Government also has not shown that the U.S. Government Mandate is narrowly tailored to advancing its interest in increased access to these services, since these services are already widely available and nothing prevents the Government from making them even more widely available by providing or paying for them directly through a duly enacted law. The Government, therefore, 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.
8. Despite repeated requests from Church leaders, the Government has insisted that it will not change the core principle of the U.S. Government Mandate-that Plaintiffs must subsidize and/or facilitate providing their employees free access to drugs and services that are contrary to Plaintiffs' religious beliefs. If the Government can force religious institutions to violate their beliefs in such a manner, there is no apparent limit to the Government's power. Such an oppression of religious freedom violates Plaintiffs' clearly established constitutional and statutory rights.
9. The First Amendment also prohibits the Government from becoming excessively entangled in religious affairs and from interfering with a religious institution's internal decisions
4

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 5 of 69
concerning the organization's religious structure, ministers, or doctrine. The U.S. Government Mandate tramples all of these rights.
BACKGROUND I. PRELIMINARY MATTERS
10. Plaintiff, Diocese of Fort Wayne-South Bend, Inc. ("Diocese"), is a nonprofit Indiana corporation with its principal place of business in Fort Wayne, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
11. Plaintiff, Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. ("Catholic Charities"), is a nonprofit Indiana corporation with its principal place of business in Fort Wayne, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
12. Plaintiff, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend, Inc. ("St. Anne Home"), is a nonprofit health care and retirement community incorporated in Indiana with its principal place of business in Fort Wayne, Indiana. It is organized exclusively for charitable, religious, and scientific purposes within the meaning of Section 501 (c)(3) of the Internal Revenue Code.
13. Plaintiff, Franciscan Alliance, Inc. ("Franciscan"), is a nonprofit hospital system incorporated in Indiana with eleven hospitals in Indiana, two hospitals in Illinois, and its principal place of business in Mishawaka, Indiana. it is organized exclusively for charitable, religious, and scientific purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
14. Plaintiff, University of Saint Francis ("Saint Francis" or "University"), is a nonprofit four year liberal arts university incorporated in Indiana with its principal place of
5

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 6 of 69
business in Fort Wayne, Indiana, and a regional campus in Crown Point, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. It is also an educational organization under Section 170(b)(I)(A)(ii) of the Internal Revenue Code.
15. Plaintiff, Our Sunday Visitor, Inc. ("Our Sunday Visitor"), is a nonprofit Indiana corporation with its principal place of business in Huntington, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
16. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services. She is sued in her official capacity.
17. Defendant Hilda Solis is the Secretary of the U.S. Department of Labor. She is sued in her official capacity.
18. Defendant Timothy Geithner is the Secretary of the U.S. Department of Treasury. He is sued in his official capacity.
19. Defendant U.S. Department of Health and Human Services ("HHS") is an executive agency of the United States within the meaning ofRPRA and the Administrative Procedure Act ("APA").
20. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RPRA and the APA.
21. Defendant U.S. Department of Treasury is an executive agency of the United States within the meaning of RPRA and the APA.
22. 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(c).
6

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 7 of 69
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). A. Diocese of Fort Wayne-South Bend, Inc. ("Diocese") 25. Plaintiff Diocese is the civil law entity for the Diocese of Fort Wayne-South Bend, which is the local embodiment of the Universal Roman Catholic Church, a community of the baptized confessing the Catholic faith, sharing in sacramental life, and entrusted since January 2010 to the ministry of Bishop Kevin C. Rhoades. The Diocese encompasses fourteen counties located in Northeast Indiana, including Allen County, Indiana. 26. Bishop Rhoades is the sole member of the Diocesan nonprofit corporation. 27. The Diocese, through its eighty-one local community parishes and two oratories situated throughout the Diocese, serves the spiritual needs of its Catholic population of approximately 160,000. 28. Through its parishes, the Diocese ensures the regular availability of the sacraments to all Catholics living in or visiting the Fort Wayne-South Bend area. The Diocese also provides numerous other opportunities for prayer, worship, and faith formation. 29. In 2011, approximately 2,582 adults and youth received formation in the Catholic faith through parish-level and Diocesan classes, lectures, and retreats. 30. In addition to overseeing the sacramental life of its parishes, the Diocese coordinates Catholic campus ministries at five colleges and universities within its borders. 31. Through its parishes, the Diocese also serves the needs of its communities with programs such as chapters of the St. Vincent DePaul Society, food pantries, soup kitchens, adopt-a-family programs at Christmas, and visits to nursing homes. These parishes serve an indeterminate number of persons who are homeless, hungry, elderly, or otherwise in need of
7

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 8 of 69
material assistance without regard to whether the recipient is Catholic or non-Catholic. In 2010, the Diocese provided over $1 million dollars in support to such programs.
32. In the fiscal year ending June 30, 2010, the Diocese provided approximately $3.9 million dollars in financial assistance to, among others, Women's Care Center, St. Augustine Soup Kitchen, Little Flower Food Pantry, St. Mary's Soup Kitchen, and Catholic Charities. Each of these organizations provides services to individuals from a diversity of faiths, means, and heritages.
33. Neither the Diocese nor its parishes keeps a tally of persons served through the parishes' outreach programs, nor do they request to 1<.now the religious affiliation of those served.
34. Church law, canon law, requires a diocesan bishop to establish Catholic schools based on the principles of Catholic doctrine, with teachers who are outstanding for their correct doctrine and integrity of life, so that schools imparting an education imbued with the Christian spirit are available to the faithful in the diocese. See Code of Canon Law, Canons 802 § 1 and 803 § 2.
35. The Diocese conducts its educational mission through its schools. 36. The first Catholic school opened in Fort Wayne-South Bend in 1846, at least ten years before the city had a public-school system. 37. The Diocese currently operates a total of forty-one private, Catholic schools in its geographic territory, thirty-seven elementary and four high schools. 38. Catholic schools within the Diocese have been among those schools nationwide to receive the u.S. Department of Education's Blue Ribbon Schools Award.
8

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 9 of 69
39. Presently the Diocese has approximately 10,783 students enrolled in its elementary schools and approximately 3,125 students enrolled in its high schools. Enrollment in Diocesan schools is open to Catholics and non-Catholics.
40. The Diocesan schools serve poor and underprivileged students; approximately 2,446 of its students live at or below the federal poverty line.
41. The Diocese's educational mission is all the more important in Indiana where recent legislation gives low- to moderate-income families vouchers to transfer their children from a public school to, among others, one of the Diocese's private schools.
42. To make a Catholic education available to as many children as possible-no matter their faith, means, or heritage-the Diocese expends substantial funds in tuition assistance programs. For example, for the 2011-2012 academic year, the Diocese has granted over $2.1 million dollars in financial aid through its four high schools.
43. Diocesan schools also serve minorities. For example, Bishop Luers High School has approximately 20% minority students and St. Adalbert Elementary School has approximately 91 % minority students.
44. The Diocese employs Catholic and non-Catholic teachers in its schools who must have a knowledge of and respect for the Catholic faith, abide by the tenets of the Catholic Church as they apply to that person, exhibit a commitment to the ideal of Christian living, and be supportive of the Catholic faith.
45. The Diocese has approximately 2,741 employees, with over 1,500 classified as full-time (working an average of at least 30 hours per week) and over 1,200 classified as parttime (working an average of less than 30 hours per week).
9

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 10 of 69
46. The Diocese does not know how many of those it hires or serves are Catholic. In order to determine those statistics, the Diocese would be required to ask the religious affiliation of all individuals that it employs or serves. That inquiry, however, would substantially burden the Diocese's religious exercise.
47. Consistent with Church teachings on social justice, the Diocese makes health insurance benefits available to its religious personnel, seminarians, and full-time employees. Approximately 116 active and retired priests, religious sisters and seminarians of the Diocese, and approximately 1,043 of the Diocese's full-time lay employees participate in the Diocesan employee health plan.
48. The Diocesan employee health plan is a self-insured plan. That is, the Diocese does not contract with a separate insurance company that provides health coverage to its employees. Instead, the Diocese itself underwrites its employees' medical costs.
49. Consistent with Church teachings regarding the sanctity oflife, the Diocesan employee health plan specifically excludes coverage for abortion, sterilization, and contraceptives.
50. The Diocesan health plan year begins each year on January 1st. 51. The Diocesan health plan meets the Affordable Care Act's definition of a "grandfathered" plan and includes a statement in plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-1251T(a)(2)(i).
10

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 11 of 69
B. Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. ("Catholic Charities")
52. Plaintiff Catholic Charities-a nonprofit corporation affiliated with the Diocesewas created in 1922 to provide organized, concerted charitable efforts. Bishop Rhoades is a member ofthe nonprofit corporation.
53. Catholic Charities provided social services to over 22,500 people in 2011. 54. The more than twelve programs run by Catholic Charities at locations in and around the Fort Wayne-South Bend community provide a panoply of services including adoption and pregnancy services, food pantries, refugee resettlement, immigration services, retired senior volunteer programs, senior employment programs, Hispanic health advocacy, foreclosure prevention, community education, and many other community services. 55. For example, Catholic Charities' Resource and Referral Services, which distributed over $233,918 in fiscal year 2011, serves as an integral part of the Fort Wayne community's services by helping families receive assistance for their basic needs, such as housing, utilities, food, clothing, personal products, and bus passes. Resource and Referral Services also helps families that are facing the disconnection of their utilities, but are above the maximum income level to qualify for the Energy Assistance Program. 56. Together, Catholic Charities' two food pantries served over 15,000 individuals from 2010 to 2011, one-third of who were new to the pantry. When possible, the food pantries distribute to their clients hats, scarves, blankets, mittens, toiletries, personal-care items, nonperishable products, recipes, community referrals, and nutrition and food-handling safety information. 57. In Fort Wayne, Catholic Charities' Adoption and Pregnancy Services facilitates the placement of newborn infants, in addition to home studies for agency, private, stepparent,
11

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 12 of 69
relative, special-needs, and international adoptions. Over the years, Catholic Charities has placed more than 1,600 children in homes through its adoption program.
58. Catholic Charities recently entered into an agreement with the U.S. Conference of Catholic Bishops Migration and Refugee Services to participate in the Unaccompanied Alien Children Program, which provides for the release and family reunification and long-term foster care of unaccompanied, undocumented children who have been taken into custody by immigration officials. There are no statistics on this program yet.
59. Catholic Charities' own Refugee Resettlement program, during fiscal year 20102011, resettled and provided services to a total of 111 refugees. Refugee health advocates and interpreters assisted with approximately 1,051 appointments for infectious disease control.
60. Volunteers from Catholic Charities' Retired Seniors Volunteer Program ("RSVP") provide free services to the elderly. According to the Points of Light Institute, during fiscal year 2010-2011, RSVP volunteers provided services to the community that had a privatesector value of over $2.5 million dollars.
61. In addition to serving older adults, in fiscal year 2010-2011, Catholic Charities' RSVP volunteers provided 900 backpacks filled with school supplies to children in need and lazy-eye screenings for more than 500 children. RSVP volunteers also helped 100 individuals through its new Volunteer Income Tax Assistance program that provides tax assistance to lowincome individuals.
62. Catholic Charities serves people in need without regard to their religion. It does not ask whether the people it serves are Catholic and, therefore, it does not know whether they are Catholic.
12

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 13 of 69
63. Catholic Charities does not inquire about the religion of its applicants for employment. As a result, it does not know how many of its employees are Catholic.
64. Catholic Charities' thirty-nine full-time employees are offered health insurance through the Diocesan health plan, which does not cover abortion, sterilization, or contraceptives.
65. Though the Government's position is unclear, it appears that if an entity qualifies as a "religious employer" for purposes of the exemption, any affiliated corporation that provides coverage to its employees through the exempt entity's group health plan would also receive the benefit of the exemption. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. at 16,502 (Mar. 21,2012).
66. If the Diocese qualifies as a "religious employer" under the exemption to the U.S. Government Mandate, Catholic Charities thus also appears to receive the benefit of the exemption.
C. Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend, Inc. ("St. Anne Home")
67. Plaintiff st. Anne Horne is a nonprofit corporation that provides quality and compassionate care for the aged in a horne-like setting within a spiritual environment. Bishop Rhoades is a member of the nonprofit corporation.
68. St. Anne Horne was created by Geneva Davidson who, upon her death, left the residue of her estate in trust to the Diocese with instructions that the money be used to build a horne for the aged of the Diocese. On January 3, 1966, groundbreaking ceremonies were held on what is now St. Anne Horne. This horne was intended to be a partial solution to the lack of critical housing in the area for the elderly.
69. Since opening, st. Anne Horne has become the benchmark for high-quality health care in Fort Wayne, Indiana.
13

'I
case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 14 of 69
70. Today, St. Anne Home offers residential apartments, a nursing facility, rehab suites, and adult day services. The ninety-seven residential apartments include both independent and assisted living. The nursing facility with approximately 164 beds includes specialized programs for Alzheimer's and dementia care.
71. St. Anne Home's Alzheimer's and dementia care unit provides care for approximately fifty-two people, the majority of which are women.
72. St. Anne Home serves approximately 563 people a year. 73. All of St. Anne Home's facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time. St. Anne Home also abides by The National Catholic Bioethics Center's A Catholic Guide to End-ol-Life Decisions: An Explanation ofChurch Teaching on Advanced Directives, Euthanasia, and PhYSician-Assisted Suicide. 74. St. Anne Home's mission is to "offer[] residents a culture of self-respect and dignity in a Christian atmosphere. Each resident is offered individualized, high quality health care that encourages freedom and independence while preserving their dignity and uniqueness as creations of God." This mission is driven by the Catholic belief that all human life is equally valuable and worthy of respect and support. 75. St. Anne Home's goal is to maintain the highest level of self esteem and dignity for its residents, and it strives to enrich its residents' spiritual, social, cognitive, and physical well-beings. 76. Since opening its doors, St. Anne Home has been committed to serving the aged of all faiths, and that commitment continues to the present day. The residents at St. Anne Home
14

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 15 of 69
also serve the local community through their Tools for Schools program. Residents donate funds that are then used to purchase "tools" for children to use in local elementary schools.
77. St. Anne Home collects religious census information in order to meet the physical and spiritual needs of its residents, but does not discriminate on the basis of religion. Although the census shows that most residents identify themselves as Catholic, St. Anne Home does not know or inquire into their religious tenets.
78. St. Anne Home has approximately 310 employees and does not inquire about the religious persuasion of its applicants for employment. As a result, it does not know how many of its employees are Catholic.
79. St. Anne Home's employees are offered the Saint Anne Home of the Diocese of Fort Wayne-South Bend Employee Benefit Plan. This self-insured healthplan does not cover abortion, sterilization, or contraceptives. St. Anne Home's plan year begins on January 1st.
80. St. Anne Home's self-insured health plan has undergone a number of changes and amendments since March 23, 2010, and, accordingly, does not meet the Affordable Care Act's definition of a "grandfathered" health plan. Additionally, the St. Anne Home plan does not include a statement in any plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-1251T(a)(2)(i).
D. Franciscan Alliance, Inc. ("Franciscan") 81. Plaintiff Franciscan is a nonprofit health system that includes eleven facilities in Indiana, two facilities in Illinois, and a number of support companies for these facilities. It is one of the strongest regional health systems in the country and in the State of Indiana. 82. Performing more than 3.5 million outpatient services and caring for more than 100,000 inpatients annually, Franciscan's vision is to be a recognized leader in the provision of
15

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 16 of 69
high quality, value based, compassionate care through collaboration with others in the communities it is privileged to serve.
83. Franciscan's major service locations have at least 3,500 beds and it has significant market share in the markets where it provides health care.
84. Franciscan, since its founding by Mother Maria Theresia Bonzel in 1875, has been and is faithful to the Catholic Church. For example, one of Franciscan's core values is that the witness of Franciscan presence throughout the institution encompasses, but is not limited to, joyful availability, compassionate and respectful care, and dynamic stewardship in the service of the Church.
85. Another of Franciscan's core values is that Christian stewardship is evidenced by the just and fair allocation of human, spiritual, physical, and financial resources in a manner respectful of the individual, responsive to the needs of society, and consistent with Church teachings.
86. All of Franciscan's facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time.
87. Franciscan's goal to advocate for those in need is demonstrated by its commitment to providing charity medical care at cost. For example, from January to December of2011, Franciscan spent over $189.3 million dollars through its various medical care and community service programs helping over 503,000 people living in poverty.
88. Franciscan's benefits to the broader community-including health screenings; health fairs; programs for children, the elderly, and the community at large; and health
16

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 17 of 69
professions education-from January to December 2011, benefitted more than 2.3 million individuals at a cost to Franciscan of over $63.2 million dollars.
89. Franciscan specifically serves women through its Franciscan Alliance Spirit of Women membership program, which seeks to bring together women of all ages and backgrounds by motivating and inspiring them to make positive changes in their lives. Franciscan does this through innovative clinical care, education, and wellness programs.
90. In December of2011, Franciscan was selected by the Center for Medicare & Medicaid Services as one of thirty-two Pioneer Accountable Care Organizations ("ACOs"). ACOs are groups of doctors, hospitals, and other health care providers who come together voluntarily to give coordinated high quality care to their Medicare patients. The goal of coordinated care is to ensure that patients, especially the chronically ill, get the right care at the right time, while avoiding unnecessary duplication of services and preventing medical errors.
91. Franciscan serves individuals of all faiths. Franciscan receives religious information in order to meet the physical and spiritual needs of its patients, but does not discriminate on the basis of religion.
92. Franciscan has approximately 18,000 employees, approximately 600 of which are physicians. Franciscan does not inquire about the religious commitments of its applicants for employment; as a result, it does not know how many of its employees are Catholic.
93. Franciscan's benefits-eligible employees may participate in a number of health benefits programs, depending on the region in which they work: Central Indiana Region, Northern Indiana Region, Western Indiana Region, and the South Suburban Chicago Region in Illinois.
17

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 18 of 69
94. Franciscan's approximately 3,963 benefits-eligible employees in its Central Indiana Region are offered six Advantage Health Solutions, Inc. fully-insured benefits program options. All six of these Advantage health plans lost their grandfathered status as of January 1, 2012 after Franciscan added various co-pay and co-insurance provisions to those plans. Nor do plan materials provided to participants or beneficiaries contain a statement that Franciscan believes they are grandfathered plans, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-1251T(a)(2)(i).
95. Franciscan's approximately 8,266 benefits-eligible employees in its Western Indiana and Northern Indiana Regions are offered six benefits plan options, four of which are self-insured plans administered by Advantage Health Solutions, Inc., and two of which are Blue Cross Blue Shield of Illinois fully-insured benefits plans. All four of the self-insured Advantage plans lost their grandfathered status as of January 1,2012 after various co-insurance provisions were added to those plans. Nor do plan materials provided to participants or beneficiaries contain a statement that Franciscan believes they are grandfathered plans, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-1251 T(a)(2)(i). The two Blue Cross Blue Shield of Illinois fully-insured benefits plans are not grandfathered, and never were, because they were not in existence as of March 23,2010.
96. Franciscan's approximately 1,789 benefits-eligible employees in its South Suburban Chicago Region are offered three benefits plan options, two of which are Blue Cross Blue Shield of Illinois fully-insured benefits plans, and one of which is a self-insured benefits plan that is administered by Blue Cross Blue Shield of Illinois. All three of these plans lost their grandfathered status as of January 1, 2011 after employee premiums were increased. Nor do plan materials provided to participants or beneficiaries contain a statement that Franciscan
18

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 19 of 69
believes they are grandfathered plans, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-1251 T(a)(2)(i).
97. None of the benefits plans offered by Franciscan covers abortion, sterilization, or contraceptives. Franciscan's employee health benefits plans years begin on January 1st.
E. University of Saint Francis ("Saint Francis" or "University") 98. Plaintiff Saint Francis is a nonprofit corporation that confers undergraduate and graduate degrees. The University's members are the Sisters of Saint Francis of Perpetual Adoration Provincial and her Council. 99. The University was established in 1890 in Lafayette, Indiana as a teacher training school for the Sisters of Saint Francis and transformed into a Catholic, Franciscan-sponsored, coeducational, liberal arts college in 1940. In 1944, Saint Francis moved to its current location in Fort Wayne, Indiana, and was designated a "university" in 1998. 100. Saint Francis has approximately 2,300 undergraduate and graduate students enrolled, the majority of which are from the midwest, although students from other regions of the United States and foreign countries attend as well. 101. As described in its mission statement, "Rooted in the Catholic and Franciscan traditions of Faith and Reason, the University of Saint Francis engages a diverse community in learning, leadership and service." The University's five widely held Franciscan values are: (1) reverence the unique dignity of each person; (2) encourage a trustful, prayerful community of learners; (3) serve one another, society and the Church; (4) foster peace and justice; and (5) respect creation. 102. At the same time, the University's commitment to continuous study and improvement is underscored by its participation in the Academic Quality Improvement Program of the Higher Learning Commission, and by the variety of professional accreditations for its
19

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 20 of 69
academic programs. Quality at the University of Saint Francis is a persistent quest for excellence shaped by the needs of students, professional and academic standards, and best practices.
103. Saint Francis pursues the highest academic achievement in every discipline. To that end, the University is composed of five undergraduate schools-Arts & Sciences, Business, Creative Arts, Health Sciences, and Professional Studies-and one Graduate School. The Graduate School offers degree and certification programs in art, business, education, environmental science, school and mental health counseling, nursing, physician assistant, theology, and psychology. In the past two decades, Saint Francis has conferred more than 5,000 graduate degrees.
104. Nearly half of the University's students are studying health care, which makes Saint Francis the largest provider of health care graduates in the northern half ofIndiana. For example, Saint Francis offers an associate, bachelor, and master degree in nursing, in addition to programs such as radiologic technology, physical therapy, and surgical technology.
105. Students currently enrolled in the University'S Crown Point, Indiana campus are exclusively pursuing health care degrees.
106. At the core of the University's curriculum is the Franciscan value of service to all, and its mission to educate and serve others extends beyond the borders of campus.
107. The Saint Francis community, through its Center for Service Engagement, creates positive change in local, national, and global communities. Saint Francis also acknowledges that although many in its community do not daily experience social justice issues such as hunger, homelessness, poverty, or illiteracy, these issues continue to affect the lives of many in the global community. Through service, God calls the Saint Francis community to work for the common good in the world.
20

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 21 of 69
108. Service opportunities through the Center for Service Engagement help nonprofit agencies and organizations maintain and/or expand their programs to those in need, while providing students, faculty, staff, and alumni with opportunities to build awareness, appreciation, and commitment to social justice issues that impact everyone. Through community/volunteer service, service-learning, service days or projects, and service/missions trips, the University is committed to the Franciscan values of "Serve one another, society and the Church" and "Foster Peace and Justice."
109. For example, during academic year 2010-2011, campus clubs, organizations, and residence hall students engaged in multiple service activities. Campus-wide events included the 3rd Annual "USF Feeds the Fort," a collection to benefit a local food bank, through which over 34,200 items were collected and approximately $9,000 was raised. The University's 8th annual MLK Day of Service involved approximately 256 faculty, staff, students, and alumni in service at eighteen local agencies, providing around 910 hours of service.
110. During the 2009-2010 academic year, approximately 1,820 students contributed around 12,125 service hours to alleviating issues related to homelessness, feeding the hungry, and preserving the environment. These service hours aided programs such as Fort Wayne's Rescue Mission, Habitat for Humanity, Community Harvest Food Bank, Black Pine Animal Park, and Great Tree Canopy Comeback.
111. For its service, the University has been awarded the President's Volunteer Service Award, created by the President's Council on Service and Civic Participation.
112. In addition, Saint Francis hosts a number of educational events, lectures, and programs on its campuses that are open to the public. For example, for the past eighteen years
21

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 22 of 69
the University has hosted a "CEO Forum," which is a three-quarter day seminar attended by around 500 business people from the community.
113. The University is also committed to providing a quality education to students of all financial backgrounds. More than 99% of the University's students apply for and receive some form of financial aid, with the Office of Student Financial aid awarding nearly $16 million in institutional grants and scholarships as well as more than $24 million in federal and state grant funds to undergraduate students in the 2010-2011 school year. Over 50% of the University's students are low income, first generation college attendees who qualify for federal grants.
114. Faith is at the heart of the University's efforts. The apostolic constitution Ex Corde Ecc/esiae, which governs and defines the role of Catholic colleges and universities, provides that "the objective of a Catholic University is to assure . . . [f]idelity to the Christian message as it comes to us through the Church."
115. In accordance with the Ex Corde Ecc/esiae, Saint Francis believes and teaches that "besides the teaching, research and services common to all Universities," it must "bring[] to its task the inspiration and light of the Christian message." "Catholic teaching and discipline are to influence all university activities," and "[a]ny official action or commitment of the University [must] be in accord with its Catholic identity."
116. "In a word, being both a University and Catholic, it must be both a community of scholars representing various branches of human knowledge, and an academic institution in which Catholicism is vitally present and operative."
117. Though committed to remaining a distinctly Catholic institution, the University opens its doors to students, academics, and prospective employees of all faiths and creeds. The majority of the University's faculty, students, and staff are not Catholic.
22

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 23 of 69
118. The University has approximately 2,300 students. Approximately 30% of the undergraduate population is Catholic and approximately 20% of the graduate population is Catholic. The University's students are not offered a health plan.
119. The University has approximately 413 total faculty and staff members. While approximately 50% of the faculty are Catholic, only 31 % of all University employees are Catholic. Saint Francis retains approximately 346 full-time employees eligible for health care benefits.
120. The University's employees are offered a self-insured health care plan. This plan does not cover abortion, sterilization, or contraception. The plan year begins on January 1st.
121. The health plan offered by Saint Francis to its employees was at one point in time grandfathered under the Affordable Care Act's definition of a "grandfathered" plan. Changes made to the University's employee health plan in 2012, however, caused the plan to lose its grandfathered status. Going forward, Saint Francis's employee health plan will not include a statement in any plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-125IT(a)(2)(i).
F. Our Sunday Visitor, Inc. ("Our Sunday Visitor") 122. Plaintiff OUf Sunday Visitor is a nonprofit Catholic publishing company located in Huntington, Indiana. Our Sunday Visitor is comprised of a publishing division and an offertory solutions division. 123. The publishing division is responsible for the writing and promotion of six religious periodicals, which include: OSV Newsweekly, Take Out: Family Faith on the Go, The Catholic Answer, The Priest, My Daily Visitor, and Grace In Action. In addition to the religious
23

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 24 of 69
periodicals, Our Sunday Visitor publishes and markets over 1,800 products including books, parish education resources, and curricula.
124. The offertory solutions division offers envelope products and services to Catholic parishes throughout the United States.
125. As a nonprofit company, Our Sunday Visitor serves the Church not only with its products and services, but also by fmancially supporting charitable activities of other Catholic organizations. The Our Sunday Visitor Institute funds Catholic projects throughout the United States, including projects that address evangelism, catechesis, service to the needy, vocation, and stewardship.
126. For example, the Institute supports a program at Seton Hall University that is designed to encourage graduate students to teach for two years in New Jersey's poorest Catholic schools while earning their master's degrees. New Jersey's poorest Catholic schools serve students of all faiths, in keeping with the Catholic value to serve all.
127. The Institute also supports Bethlehem Farm, Inc., which is a Catholic community in Appalachia dedicated to serving the area's poor in various ways, including home repair, soup kitchens, and visiting the sick.
128. In the past five years, the Institute has granted approximately $30,000 to seven dioceses in Florida that developed a one year volunteer program for fifteen to twenty-five recent college graduates from throughout the United States to serve in health care, homeless shelters, food banks, prisons, and inner-city Catholic schools.
129. Between its publishing and offertory solutions divisions, Our Sunday Visitor employs approximately 300 benefits-eligible employees. Our Sunday Visitor does not document the religious status of its employees.
24

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 25 of 69
130. Our Sunday Visitor's employees are offered a self-insured health care plan. This plan does not cover abortion, sterilization, or contrac~ptives for non-therapeutic purposes. Our Sunday Visitor's plan year begins on October 1st.
131. The health plan offered by Our Sunday Visitor to its employees was at one point in time grandfathered under the Affordable Care Act's definition of a "grandfathered" plan. Changes made to its employee health plan as of January 1,2012 caused that plan to lose its grandfathered status. Going forward, Our Sunday Visitor's employee health plan will not include a statement in any plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-1251 T(a)(2)(i). II. STATUTORY AND REGULATORY BACKGROUND
A. Statutory Background 132. 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. 119 (2010) (collectively, the "Affordable Care Act" or the "Act"). 133. 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), that "provide[] medical care ... to employees or their dependents." 42 U.S.C. § 300gg-91(a)(1). 134. The Affordable Care Act requires an employer's group health plan to cover certain women's "preventive care," leaving the definition ofthat term up to an agency within HHS. Specifically, it provided 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
25

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 26 of 69
shall not impose any cost sharing requirements for---{4) 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." Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg-13(a)(4)).
135. 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.
136. Some provisions of the Affordable Care Act exempt individuals with religious objections. For example, individuals are exempt from the requirement to obtain health insurance if they are members of a "recognized religious sect or division" that conscientiously objects to acceptance of public or private insurance funds or arc members of a "health care sharing ministry." 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii) (conscientious objectors); 5000A(d)(2)(b)(ii) ("health care sharing ministry").
137. Not every employer is required to immediately comply with the U.S. Government Mandate. "Grandfathered" health plans are exempt from the "preventive care" U.S. Government Mandate. 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. 41,276,41,731 (July 19, 2010)("Interim Final Rules"); 42 U.S.C. § 18011. Such plans cannot undergo substantial change after March 23, 2010. Id HHS estimates that "98 million individuals will be enrolled in grandfathered group health plans in 2013." Id at 41,732.
138. Violations of the Affordable Care Act can subject an employer and an insurer to substantial monetary penalties.
26

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 27 of 69
139. Under the Internal Revenue Code, employers who fail to provide all coverage required by the U.S. Government Mandate will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
140. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to an assessment of $100 a day per individual. See id § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Congo 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 assessment applies to employers who violate the "preventive care" provision of the Affordable Care Act).
141. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $100 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); see also Congo Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the "preventive care" provision of the Affordable Care Act).
142. ERISA may provide for additional fmes. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Congo Research Serv., RL 7-5700. 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 Congo Research Serv., RL 7-5700 (asserting that these fines can apply to employers and insurers who violate the "preventive care" provision of the Affordable Care Act).
143. The Affordable Care Act limits the Government's regulatory authority. The Act and an accompanying Executive Order reflect a clear intent to exclude abortion-related services
27

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 28 of 69
from the Act and regulations implementing it. The Act itself provides that "nothing in this title (or any amendment made by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year." 42 U.S.C. § 18023(b)(1)(A)(i). The ability "[to] determine whether or not the plan provides coverage of" abortifacients is expressly reserved for "the issuer of a qualified health plan," not the Government. Id § 18023(b)(1)(A)(ii).
144. Likewise, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004--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 of2012, Pub. 1. No. 112-74, div. F, tit. V., § 507(d)(1), 125 Stat 786, 1111 (2011).
145. The intent to exclude abortions was instrumental in the Mfordable Care Act's passage, as cemented by an executive order without which the Act would not have passed. Indeed, the Act's legislative history could not show a clearer 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, l1lth Congo § 265 (Nov. 7,2009). The Senate version, however, lacked that
restriction. S. Amend. No. 2786 to H.R. 3590, 11lth Congo (Dec. 23, 2009). To avoid filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as "budget
28

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 29 of 69
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 indicated that they would refuse to vote for the Senate version because it failed adequately to prohibit federal funding of abortion. To appease these Representatives, President Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13,535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
146. The Act was, therefore, passed based 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
147. 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 conscience of those who disagree with abortion, and draft sensible conscience clauses.
B. Regulatory Background - Derming "Preventive Care" and the Narrow Exemption
148. Less than two years later, Defendants promulgated the U.S. Government Mandate, subverting the Act's clear purpose to protect the rights of conscience. Over that time, they issued interim rules and press releases-----.none of which followed notice-and-comment rulemaking-that required the federal funding of abortifacients, sterilization services, contraceptives and related counseling services and commandeered religious organizations to facilitate those services as well.
149. Within four months of the Act's passage, on July 19,2010, Defendants issued their initial interim final rules concerning section 300gg-13(a)(4)'s requirement that group health plans provide coverage for women's "preventive care." Interim Final Rules, 75 Fed. Reg. at 41,726.
29

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 30 of 69
150. Defendants dispensed with notice-and-comment rulemaking for these rules. 151. Even though federal law had never required coverage of abortifacients, sterilization, or contraceptives, Defendants claimed both that the APA did not apply to the relevant provisions of the Affordable Care Act and that "it would be impracticable and contrary to the public interest to delay putting the provisions in these interim final regulations in place until a full public notice and comment process was completed." Id at 41,730. 152. The interim final rules did not resolve what services constitute "preventive care"; instead, they merely track the Affordable Care Act's statutory language. They provide that "a group health plan ... must provide coverage for all of the following items and services, and may not impose any cost-sharing requirements (such as a copayment, coinsurance, or deductible) with respect to those items or services: ... (iv) With respect to women, to the extent not described in paragraph (a)(l)(i) of this section, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration." Interim Final Rules, 75 Fed. Reg. at 41,759 (codified at 45 C.F.R. § 147.130(a)(iv». 153. The interim final rules did not identify the women's "preventive care" that Defendants planned to require employer group health plans to cover, nor give any notice as to how it would identify those services. 42 U.S.C. § 300gg-13(a)(4). Instead, Defendants noted that "[t]he Department ofHHS [was] developing these guidelines and expects to issue them no later than August 1, 2011." Interim Final Rules, 75 Fed. Reg. at 41,731. 154. Defendants permitted concerned entities to provide written comments about the interim final rules. See id at 41,726. But, as Defendants have conceded, they did not comply with the notice-and-comment requirements of the APA. Id at 41,730.
30

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 31 of 69
155. In response, several groups engaged in a lobbying effort to persuade Defendants to include various contraceptives and abortion-inducing drugs in the "preventive care" requirements for group health plans. See, e.g., http://www.plannedparenthood.orglaboutus/newsroomlpress-releases/planned-parenthood-supports-initial-white-house-regulationspreventive-care-highlights-need-new-33140.htm.
156. Other commenters noted that "preventive care" could not reasonably be interpreted to include such practices. These groups explained that pregnancy was not a disease that needed to be "prevented," and that a contrary view would intrude on the sincerely held beliefs of many religiously affiliated organizations by requiring them to pay for services that violate their religious beliefs. See, e.g., Comments of United States Conference of Catholic Bishops, at 1-2 (Sept. 17,2010), available at http://old.usccb.org/ogclpreventive.pdf.
157. On August I, 20 II, HHS issued the "preventive care" services that group health plans would be required to cover. See HHS, Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost, available at http://www.hhs.gov/news/press/2011 pres/08/20110801b.html. Again acting without notice-andcomment rulemaking, HHS announced these guidelines through a press release rather than enactments in the Code of Federal Regulations or statements in the Federal Register. The press release made clear that the guidelines were developed by a non-governmental "independent" organization, the Institute of Medicine ("10M"). See id In developing the guidelines, 10M invited certain groups to make presentations on preventive care. On information and belief, no groups that oppose government-mandated coverage of contraception, abortifacients, and related education and counseling were among the invited presenters. Comm. on Preventive Servs. for
31

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 32 of 69
Women, Inst. of Med., Clinical Preventive Services for Women app. B at 217-21 (2011), http://www.nap.eduiopenbook.php?record_id=13181&page=Rl.
158. The 10M's own report, in turn, included a dissent that suggested that the 10M's recommendations were made on an unduly short time frame required by politicians without the appropriate transparency for all concerned persons.
159. The 10M also did not adhere to the rules governing federal agencies, including the notice-and-comment rulemaking process.
160. In stark contrast with the central premise necessary for the Affordable Care Act's passage and President Obama's promise to protect religious liberty, HHS's new guidelines required insurers and group health plans to cover "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." See Health Res. Servs. Admin., Women's Preventive Services: Required Health Plan Coverage Guidelines, available at http://www.hrsa.gov/womensguidelines/ .
161. FDA-approved contraceptives that qualify under these guidelines include drugs that induce abortions. For example, the FDA has approved "emergency contraceptives" such as the morning-after pill (otherwise known as Plan B), which can operate by preventing a fertilized embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or Ella), which likewise can induce abortions of living embryos.
162. A few days later, on August 3, 2011, Defendants issued amendments to the interim final rules that they had previously enacted in July 2010. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3,2011).
32

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 33 of 69
163. The Government issued the amendments again without notice-and-comment rulemaking on the same grounds (namely that it would be "impracticable and contrary to the public interest" to delay putting the rules into effect) that they had provided for bypassing the APA with the original rules. See id. at 46,624.
164. When announcing the amended regulations, Defendants ignored the view that "preventive care" should exclude abortion-inducing drugs, sterilization, or contraceptives that do not prevent disease. Instead, they noted only that "commenters [had] asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom." ld. at 46,623.
165. Defendants sought "to provide for a religious accommodation that respect[ed]" only "the unique relationship between a house of worship and its employees in ministerial positions." ld.
166. Specifically, the regulatory "religious employer" exemption ignored definitions of religious employers already existing in federal law, and, instead, is available only to those employers whose purpose is to inculcate religious values, and who employ and serve primarily individuals with the same religious tenets. It provides in full:
(A) In developing the binding health plan coverage guidelines specified in this paragraph (a)(1)(iv), the Health Resources and Services Administration shall be informed by evidence and may establish exemptions from such guidelines with respect to group health plans established or maintained by religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services under such guidelines. (8) For purposes ofthis subsection, a "religious employer" is an organization that meets all of the following criteria:
33

- - - - - - - - - - - - - - - - - ---~-----

------~-----

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 34 of 69

(1) The inculcation of religious values is the purpose of the

organization.

(2) The organization primarily employs persons who share

the religious tenets of the organization.

(3) The organization serves primarily persons who share

the religious tenets of the organization.

(4) The organization is a nonprofit organization as

described in section 6033(a)(1) and section

6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of

1986, as amended.

'

Id. at 46,626 (codified at 45 C.F.R. § 147.130(a)(iv)(A)-(B)).

167. The regulation delegates to the Government the job of issuing exemptions, on an

ad hoc basis, based on a determination of whether an organization is sufficiently "religious" to

qualify for the exemption.

168. The religious employer exemption mandates an unconstitutionally invasive

inquiry into an organization's religious purpose, beliefs, and practices.

169. Similarly, the religious employer exemption further mandates an impermissibly

invasive inquiry into the private religious beliefs of the individuals that an organization employs

and serves.

170. The religious employer exemption also uses impermissibly vague, undefined

terms that extend the agency's already broad discretion and fail to provide organizations with

notice of their duties and obligations. There is no definition for the vague terms "inculcation of

religious values," "purpose of the organization," "primarily," and "religious tenets." Similarly,

there is no indication of whether an agency with multiple purposes can qualify and how much

overlap there must be for religious tenets to be "share[d]."

171. The religious employer exemption does not appear to apply to educational

organizations as defined in Section 170(b)(1)(A)(ii) of the Internal Revenue Code.

34

---,-,------
case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 35 of 69
172. Defendants ignored all other religiously-affiliated employers and insurance issuers, excluding from the narrow exemption all religious organizations that view their missions as providing charitable, educational, and employment opportunities to all those who request it, regardless of the requesters' religious faith.
173. When issuing this interim final rule, Defendants did not explain why they issued such a narrow religious exemption. Nor did Defendants explain why they refused to incorporate other "longstanding Federal laws to protect conscience" that President Obama's executive order previously had promised to respect. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
174. ERISA, for example, has long excluded "church plans" from its requirements, more broadly defined to cover civil law corporations, including organizations like many of the Plaintiffs, that share common religious bonds and convictions with a church. See 29 U.S.C. §§ 1002(33)(C)(iv), 1003.
175. It is unclear whether Plaintiffs qualify for the exemption from compliance with the U.S. Government Mandate offered to organizations deemed "religious employers" under the U.S. Government Mandate's narrow exemption.
176. Moreover, determining whether organizations-such as Plaintiffs---<}ualify for the exemption will require the Government to engage in an intrusive inquiry, based on principles inconsistent with the Catholic faith, into whether, in the view ofHHS, (1) Plaintiffs' "purpose" is the "inculcation of religious values"; (2) whether Plaintiffs "primarily" employ "persons who share [its] religious tenets," even though they hire people of all faiths and do not know how many Catholics they employ; and (3) whether Plaintiffs "primarily" serve such people, even
35

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 36 of 69
though their facilities, schools, hospitals, and social services are open to all, without regard to their religion.
177. Regardless of the outcome, Plaintiffs strongly object to such an intrusive and misguided governmental investigation into their religious missions.
178. Nor did Defendants consider whether they had a compelling interest to require religiously affiliated employers' health plans to include services that violate the employers' religious beliefs, or whether Defendants could achieve their views of sound policy in a more religiously accommodating manner.
179. Suggesting that they were open to good~faith discussion, Defendants once again permitted parties to provide comments to the amended rules. Numerous organizations expressed the same concerns that they had before, noting that abortifacients, sterilization, and contraceptive services could not be viewed as "preventive care." They also explained that the religious exemption was "narrower than any conscience clause ever enacted in federal law, and narrower than the vast majority of religious exemptions from state contraceptive mandates." Comments of United States Conference of Catholic Bishops, at 1-2 (Aug. 31, 2011), available at http://www.usccb.orglabout/general-counsel/rulemakinglupload/comments-to-hhs-onpreventive-services-2011-08.pdf.
180. On October 10,2011, Defendant Sebelius spoke at a fundraiser for NARAL ProChoice America. She told the pro-choice audience that "we are in a war," apparently with opponents of either federal funding of abortion-related services or federal mandates requiring coverage for abortion-related services in health care plans.
181. Three months later, allegedly "[a]fter evaluating [the new] comments" to the interim final rules, Defendants gave their response. They did not request further discussion or
36

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 37 of 69
make attempts at compromise. Nor did they explain the basis for their decision. Instead, Defendant Sebelius issued a short, Friday-afternoon press release. See HHS, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html.
182. The press release announced a one-year "safe harbor" from enforcement. With little analysis or reasoning, HHS opted to keep the exemption unchanged, but indicated that "[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1,2013, to comply with the new law." Id The safe harbor also applies to student health plans. 77 Fed. Reg. 16,453, 16,457 (Mar. 21, 2012).
183. Taken together, these various rules and press releases amount to a U.S. Government Mandate that requires most religiously affiliated organizations to pay, sponsor and facilitate abortifacients, sterilization services, contraceptives and related counseling services through their health plans. As noted by Cardinal Timothy Dolan, the "safe harbor" effectively gave objecting religious institutions "a year to figure out how to violate [their] consciences."
C. The White House Has Refused To Expand The Exemption 184. On February 10, 2012, given the continued public outcry to the U.S. Government Mandate and its exceedingly narrow conscience protections, the White House held a press conference and issued another press release about the U.S. Government Mandate, announcing that it had come up with a "solution" to the religious objections based on First Amendment protections for religious freedom. 185. According to the White House, Defendants planned to issue regulations at some unspecified date prior to August 1,2013, to exempt religious organizations that have religious
37

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 38 of 69
objections to providing abortifacients, sterilization, or contraception services from directly paying for those services under the tenns of their health plans.
186. When such religious organizations provide health plans, the "insurance company will be required to directly offer ... contraceptive care free of charge." White House, Fact Sheet: Women's Preventive Services and Religious Institutions (Feb. 10,2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.htrnl.
187. Despite continued objections that this "accommodation" did nothing of substance to protect the right of conscience, when asked ifthere would be further room for compromise, White House Chief of Staff Jacob Lew responded: "No, this is our plan." David Eldridge & Cheryl Wetzstein, White House says contraception compromise will stand, THE WASHINGTON TIMES, Feb. 12,2012, available at http://www.washingtontimes.comlnews/2012/feb/12/whitehouse-birth-control-compromise-will-stand/printl.
188. Defendants have since "finalize[d], without change," the interim final rules containing the religious employer exemption, 77 Fed. Reg. at 8729, and issued guidelines regarding the previously announced "temporary enforcement safe harbor" for "non-exempted, non-profit religious organizations with religious objections to such coverage." Id at 8725; see Ctr for Consumer Info. & Ins. Oversight, Guidance on the Temporary Enforcement Safe Harbor (Feb. 10, 2012), available at http://cciio.cms.gov/resources/fileslFiles2/021 02012/20120210Preventive-Services-Bulletin.pdf.
189. The U.S. Government Mandate is therefore the current, operative law. 190. On March 16, 2012, the Government announced an Advance Notice of Proposed Rulemaking ("ANPRM"), seeking comment on various ways to structure the proposed accommodation. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg.
38

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 39 of 69
16,501 (Mar. 21, 2012). The Government has indicated that a similar arrangement will apply to student health plans. Id at 16,457.
191. The ANPRM launches a 90-day comment period, to be followed by several other steps in the rulemaking process; it offers no clear end date other than repeating the assurance that an accommodation will be in place by August 1,2013. See id
192. The ANPRM's recurring theme is that the Government has not found a solution to the problems it created when it promulgated its U.S. Government Mandate.
193. In fact, the ANPRM contains little more than a recitation of proposals, hypotheticals, and "possible approaches." It offers almost no analysis of the relative merits of the various proposals. It is, in essence, an exercise in public brainstorming.
194. This "regulate first, think later" approach is not an acceptable method o~ rulemaking when the Government is regulating in a way that may require monumental changes of the regulated entities.
195. The ANPRM does not alter existing law. It merely states that it may do so at some point in the future. But a promise to change the law, whether issued by the White House or in the form of an ANPRM, does not, in fact, change the law.
196. Nor does the ANPRM alter the scope of the narrow religious employer exemption.
197. In promulgating the U.S. Government Mandate, the Government rationalized that the time-sensitive nature of the issue justified dispensing with notice and comment. This justification is inconsistent with the Government's subsequent delays in implementing the U.S. Government Mandate.
39

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 40 of 69
198. The ANPRM does nothing of substance to avoid involving Plaintiffs in the subsidy, provision and/or facilitation of abortifacients, sterilization services, contraceptives and related counseling services or otherwise eliminate the constitutional infirmity of the U.S. Government Mandate.
199. The U.S. Government Mandate is already causing serious, ongoing hardship to Plaintiffs that merits judicial review now.
200. Moreover, the uncertainty surrounding the implementation of the U.S. Government Mandate has actually increased the harms Plaintiffs are incurring. With the regulatory landscape so unsettled, it is impossible for Plaintiffs to develop their future health plans.
201. Health plans do not take shape overnight. Many analyses, negotiations, and decisions must occur before Plaintiffs can implement health plans for their employees.
202. Under normal circumstances, Plaintiffs must begin the process of determining their health care packages around one year before the plan years begin. The multiple levels of uncertainty swirling around the U.S. Government Mandate and the ANPRM make the already lengthy process of preparing a health benefits package even more complex.
203. For example, the planning process for Franciscan's health plan-including analysis, consultation, and negotiations-begins in early Spring and all decisions must then be made by May for the following plan year. Implementing even basic changes to Plaintiffs' health plans requires substantial lead time.
204. The U.S. Government Mandate, however, may require Plaintiffs to make significant, and likely revolutionary, changes to its employee health coverage. Plaintiffs,
40

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 41 of 69
moreover, may need to restructure their programs or health plans to fit within the U.S. Government Mandate's requirements. Such changes will require substantially more lead time.
205. Even assuming Plaintiffs are entitled to the benefit of the safe harbor, they must be prepared to implement modified health coverage as early as October 2013 for Our Sunday Visitor and January 2014 for the other Plaintiffs.
206. By the time that any new rule is finalized, if ever, it will be too late for Plaintiffs to bring their health plans into compliance with the law.
207. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they may be subject to huge annual government fines and penalties. The uncertainty of the U.S. Government Mandate's applications and penalties may cause other budgeted expenses to go unfunded.
208. The U.S. Government Mandate thus imposes a present and ongoing hardship on Plaintiffs. III. The U.S. Government Mandate, The Proposed Accommodation, And The Religious
Employer Exemption Violate Plaintiffs' Religious Beliefs A. The U.S. Government Mandate Violates Plaintiffs' Religious Beliefs 209. The Catholic Church's well-established religious beliefs are articulated in the Catechism of the Catholic Church. One of the central tenets of the Catholic faith is belief in the sanctity of human life and the dignity of all persons. Thus, the Church believes that the "dignity of the human person is rooted in his creation in the image and likeness of God." Catechism of the Catholic Church ,-r 1700. 210. One outgrowth of belief in human life and dignity is the Church's wellestablished belief that "[h]uman life must be respected and protected absolutely from the
41

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 42 of 69
moment of conception." ld. ~ 2270. As a result, the Church believes that abortion is prohibited and that it cannot facilitate the provision of abortifacients. ld. ~~ 2271·72.
211. Catholic teachings prohibit any action which "render[s] procreation impossible" and, more specifically, regard direct sterilization as "unacceptable." ld. ~~ 2370,2399.
212. These Catholic teachings have been reaffirmed as doctrine at various times including on July 25, 1968, when his holiness Pope Paul VI issued his encyclical Humanae Vitae (Human Life) and again on March 25, 1995, when his holiness Pope John Paul II issued his encyclical Evangelium Vitae (The Gospel of Life).
213. Partially quoting Humanae Vitae, the Catechism states that '''every action which, whether in anticipation of the conjugal act, or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible' is intrinsically evil." Catechism of the Catholic Church ~ 2370.
214. Plaintiffs' health plans are consistent with the Church's teachings on abortifacients and sterilization.
215. Catholic teachings also prohibit the use of contraceptives to impede conception. As articulated by the Catechism of the Catholic Church, the sexual union of spouses "achieves the twofold end of marriage: the good of the spouses themselves and the transmission of life. These two meanings or values of marriage cannot be separated without altering the couple's spiritual life and compromising the goods of marriage and the future ofthe family." ld. ~ 2363. Consequently, artificial contraception and sterilization cannot be used for the purpose of impeding procreation. ld. ~ 2370.
216. The Church, however, does not oppose the use of non·abortifacient drugs commonly used as contraceptives when a physician prescribes the medication not for the
42

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 43 of 69
purpose of acting as a contraceptive, but rather with the intent of remedying another medical condition.
217. Consistent with the Church's teachings, Plaintiffs' health plans cover nonabortifacient drugs commonly used as contraceptives only when prescribed with the intent of treating another medical condition, not with the intent to prevent pregnancy.
218. Plaintiffs cannot, without violating their sincerely held religious beliefs, subsidize, facilitate, and/or sponsor coverage for abortifacients, sterilization services, contraceptives and related counseling services, which are inconsistent with the teachings of the Catholic Church.
219. The u.s. Government Mandate irreconcilably conflicts with Plaintiffs' well-
established, sincerely held beliefs that strictly forbid the subsidy, facilitation, and/or sponsorship of abortifacients, sterilization, and contraception that the U.S. Government Mandate forces upon them.
220. All of the required "contraceptive methods" and "sterilization procedures" violate Plaintiffs' well-established and sincerely held religious beliefs that prohibit contraception and sterilization to inhibit procreation.
221. As Plaintiffs' employee health plans are self-insured-with the exception of a few of Franciscan's health plans-Plaintiffs would be paying directly for contraception and sterilization in direct conflict with their religious beliefs.
222. Refusal or failure to provide these drugs and services to employees might expose Plaintiffs to substantial fines. See Congo Research Serv., RL 7-5700 (analyzing some of the available fines).
223. This unprecedented, direct assault on the religious beliefs of Plaintiffs and all Catholics is irreconcilable with American law.
43

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 44 of 69
224. Since the founding of this country, one of the basic freedoms central to our society and legal system is that individuals and institutions are entitled to freedom of conscience
and religious practice. See, e.g., James Madison, Memorial and Remonstrance Against Religious Assessments, ~ 1 (1785).
225. Requiring Plaintiffs to provide, subsidize, and!or facilitate devices, drugs, procedures, or services that violate their beliefs constitutes a substantial burden on Plaintiffs' free exercise of religion.
226. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely held religious beliefs by requiring them to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilizations, and contraceptives. 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 U.S. Supreme Court has held that individuals have a constitutional right to use such services.
227. Furthermore, the U.S. Government Mandate is not narrowly tailored to promoting a compelling governmental interest. Even assuming the interest was compelling, the Government has numerous alternatives to furthering that interest other than forcing Plaintiffs to violate their religious beliefs.
228. For example, the Government could provide or pay for the objectionable services through expansion of its existing network of family planning clinics funded by HHS under Title X or through other programs established by a duly enacted law. Or, at a minimum, it could create a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws.
44

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 45 of 69
229. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
230. 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, medical, and educational services that Plaintiffs provide. As President Obama acknowledged in his February 10th announcement, religious organizations like Plaintiffs do "more good for a community than a government program ever could."
B. The U.S. Government Mandate's Religious Employer Exemption Aggravates The Constitutional And Statutory Violations
231. The constitutional and statutory violations of the U.S. Government Mandate are aggravated, not alleviated, by its "religious employer" exemption.
232. The religious employer exemption substantially burdens Plaintiffs' religious exercise. The exemption forces Plaintiffs to choose between their religious beliefs (that abortifacients, sterilization, and contraception are strictly forbidden), their mission (serving, employing, providing care for, and educating individuals of all faith traditions to enrich and enlighten), and obeying the law.
233. The U.S. Government Mandate also seeks to compel Plaintiffs to fund "patient education and counseling for all women with reproductive capacity." It therefore compels Plaintiffs to pay for, provide, and/or facilitate speech that is contrary to their firmly held religious beliefs.
234. In addition to believing in the sanctity of human life from conception, Plaintiffs believe that devotion to God is demonstrated through devotion to fellow man and service of others; the two are so closely related and dependent upon each other that they cannot be
45

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 46 of 69
separated. Catholic doctrine recognizes that, "[l]iving faith 'work[s] through charity.'" Catechism of the Catholic Church 11814.
235. To effectuate this religious belief, Plaintiffs-like the Catholic Church that inspires their work-are committed to serving anyone in need, regardless of religion.
236. In addition to serving individuals of all faiths, Plaintiffs also employ, serve, and in some cases provide medical care for and educate individuals of all faiths.
237. Although the Government exempts some religious institutions from the U.S. Government Mandate, it has crafted such a narrow exemption that thousands of sincere religious institutions are being forced to make the unconscionable "choice" between violating their religious beliefs or violating the law.
238. Both the Constitution and RFRA protect religious institutions, whether or not their purpose is the "inculcation of religious values" and whether or not they "primarily" serve and employ people with shared "religious tenets."
239. However, only institutions with such a narrow purpose and with such limitations on employees and services qualify for the religious employer exemption under the U.S. Government Mandate.
240. Forcing Plaintiffs to choose between violating their religious beliefs or violating the law constitutes a substantial burden on Plaintiffs' exercise of religion, which is protected by the Constitution and RFRA.
241. The Government also has not provided any process by which Plaintiffs can determine whether they fit within the exemption.
242. It is unclear whether Plaintiffs qualify for the exemption. 243. It is unclear how the Government defines or will interpret religious "purpose."
46

--------------------------------------------------------~-------
case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 47 of 69
244. It is unclear how the Government defines or will interpret vague terms, such as "primarily," "share," and "religious tenets."
245. It is unclear how the Government will ascertain the "religious tenets" of Plaintiffs, those they employ, and those they serve.
246. It is unclear how much overlap the Government will require for religious tenets to be "share[d]."
247. Plaintiffs encourage their employees to remain committed to Catholicism's core values. For example, Franciscan's employee handbook addresses Ethical and Religious Directives for Catholic Health Care Services. However, it is unclear how the Government will view Plaintiffs' employees' religious tenets.
248. Any attempt by Plaintiffs to qualify for the narrow religious employer exemption by restricting their charitable and educational missions to serving primarily Catholics would have devastating effects on the communities Plaintiffs serve.
249. Indeed, the Government does not even provide Plaintiffs the option to attempt to avoid the U.S. Government Mandate by exiting the health care market. Eliminating its employee group health plan or refusing to provide plans that cover abortion-inducing drugs, sterilization, or contraceptives would expose each Plaintiff to substantial annual fines. It is no "choice" to leave those employees scrambling for health insurance while subjecting Plaintiffs to significant fines for breaking the law. Yet that is what the U.S. Government Mandate requires for Plaintiffs to adhere to their religious beliefs.
250. The U.S. Government Mandate also inhibits Plaintiffs' ability to hire and retain employees, attract students, and solicit charitable contributions.
47

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 48 of 69
251. The limited and ill-defined religious exemption provided in the U.S. Government Mandate conflicts with the Constitution and RFRA.
C. The U.S. Government Mandate's Religious Employer Exemption Excessively Entangles The Government In Religion, Interferes With Religious Institutions' Religious Doctrine, And Discriminates Against And Among Religions
252. The U.S. Government Mandate's religious employer exemption further excessively entangles the Government in defining the religious tenets of each Plaintiff organization and their employees and beneficiaries.
253. In order to detennine whether Plaintiffs-or any other religious organizationqualify for the exemption, the Government would have to decide Plaintiffs' "religious tenets" and detennine whether "the purpose" of the organization is to "inculcate" those tenets.
254. The Government would then have to conduct an inquiry into the practices and beliefs ofthe individuals that Plaintiffs ultimately employ and in some cases provide medical care for and educate.
255. The Government would then have to compare and contrast those religious practices and beliefs to detennine whether and how many of them are "share[d]."
256. Regardless of the outcome, this inquiry is unconstitutional, and Plaintiffs strongly object to such an intrusive governmental investigation into their religious missions.
257. The religious employer exemption is based on an improper Government detennination that "inculcation" is the only legitimate religious purpose.
258. The Government should not base an exemption on an assessment of the "purity" or legitimacy of an institution's religious purpose.
259. By limiting that legitimate purpose to inculcation, at the expense of other sincerely held religious purposes, the U.S. Government Mandate interferes with religious
48

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 49 of 69
autonomy. Plaintiffs have the right to determine their own religious purposes, including religious purposes broader than inculcation, without Government interference and without losing their religious liberties.
260. Likewise, the exemption seeks to improperly limit the definition of legitimate religious organizations to those who primarily employ and serve "persons who share the religious tenets of the organization." 45 C.F.R. § 147.130(a)(iv)(B)(2)-(3). This is inconsistent with the definition of religion under the Constitution and RFRA.
261. Defining religion based on employing and serving primarily people who share the organization's religious tenets directly contradicts Plaintiffs' sincerely held religious beliefs regarding their religious mission to serve all people, regardless of whether or not they share the same faith.
262. The U.S. Government Mandate and its extremely narrow religious employer exemption discriminate against Catholic religious institutions.
263. The U.S. Government Mandate targets Plaintiffs precisely because of their adherence to their religious opposition to abortifacients, sterilization, and contraception.
264. The religious employer exemption targets Plaintiffs precisely because of their commitment to serve, employ, and in some cases provide medical care for and educate, people of all faiths.
265. Plaintiffs cannot be forced to give up their beliefs on abortifacients, sterilization, or contraception, nor their devotion to serving all mankind, without violating their religious beliefs and compromising their religious purpose.
49

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 50 of 69
266. The U.S. Government Mandate and its extremely narrow religious employer exemption discriminate among religions. The U.S. Government Mandate favors religions that do not oppose abortifacients by putting the Government imprimatur on those beliefs as correct.
267. Similarly, the religious employer exemption favors religions that do not believe in serving all humanity by exempting them from its requirements.
268. As a result of such discrimination, the U.S. Government Mandate is subject to the strictest scrutiny under the Constitution, as well as RFRA.
D. The U.S. Government Mandate Is Not A Neutral Law Of General Applicability
269. 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 drugs, sterilization, contraception, and related education and counseling. For example, the U.S. Government Mandate exempts all "grandfathered" plans from its requirements. Moreover, the legislative history indicates that the U.S. Government Mandate was implemented at the behest of individuals and organizations who disagree with certain religious beliefs regarding abortifacients and contraception, and thus it targets religious organizations for disfavored treatment.
270. The Government has also crafted a reFgious employer exemption to the U.S. Government Mandate that favors certain religions over others. As noted, it applies only to plans sponsored by religious organizations that have, as their "purpose," the "inculcation of religious values"; that "primarily" serve individuals that share those religious tenets; and that "primarily" employ such individuals. 45 C.F.R. § 147.130(a)(iv)(B).
271. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose Catholic
50

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 51 of 69
teachings and beliefs regarding marriage and family. For example, on October 5, 2011, after Defendants announced the interim final rule but before they announced the final rule, Defendant Sebe1ius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebe1ius has long been a staunch supporter of abortion rights and a vocal critic of Catholic teachings and beliefs regarding abortifacients 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."
272. Consequently, on information and belief, 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 contraception, sterilization, and abortifacients.
273. An actual, justiciable controversy exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate and exemption, Plaintiffs are uncertain as to their rights and duties in planning, negotiating, and/or implementing their group health plans, and they are threatened with the impossible choice between paying for prescriptions and procedures in violation of the Catholic Church's moral teaching, or discontinuing their health plans in violation ofthe Catholic Church's social teaching. IV. CAUSES OF ACTION
COUNT I Substantial Burden on Religious Exercise
in Violation of RFRA 274. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
51

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 52 of 69
275. 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.
276. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise.
277. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States.
278. Abortifacients, sterilization, and contraception violate the Catholic beliefs and tenets to which Plaintiffs must adhere according to the Church's magisterial teachings and the Catechism of the Catholic Church.
279. Plaintiffs' religious beliefs preclude them from offering health care plans to their employees that include or facilitate coverage for abortifacients, sterilization, and contraception, or related education and counseling about those practices.
280. Plaintiffs have exercised their religious beliefs by refusing to offer health care plans to their employees that include or facilitate coverage for abortifacients, sterilization, and contraception, or related education and counseling about those practices.
281. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs concerning abortifacients, sterilization, and contraception.
282. The U.S. Government Mandate exposes Plaintiffs to substantial monetary fines if they refuse to abandon their religious beliefs by offering an employee health care plan that
52

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 53 of 69
includes or facilitates coverage for abortifacients, sterilization, contraception, and related education and counseling about those practices.
283. In order to qualify for the narrow exemption to the U.S. Government Mandate, Plaintiffs would have to submit to an intrusive and burdensome governmental inquisition into whether their "purpose" is the "inculcation of religious values," whether they "primarily" employ Catholics, and whether they "primarily" serve Catholics. And Plaintiffs may not meet those standards.
284. It is unclear whether Plaintiffs are eligible for the religious employer exemption. 285. The U.S. Government Mandate substantially burdens Plaintiffs' exercise of religion. 286. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate. 287. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest. 288. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, the Government has violated RFRA. 289. Plaintiffs have no adequate remedy at law. 290. The U.S. Government Mandate and its impending enforcement impose 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 291. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 292. The Free Exercise Clause ofthe First Amendment prohibits the Government from substantially burdening an entity's exercise of religion.
53

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 54 of 69
293. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise..
294. Abortifacients, sterilization, and contraception violate the Catholic beliefs and tenets to which Plaintiffs must adhere according to the Church's magisterial teachings and the Catechism of the Catholic Church.
295. Plaintiffs' religious beliefs preclude them from offering health care plans to their employees that include or facilitate coverage for abortifacients, sterilization, contraception, or related education and counseling about those practices.
296. Plaintiffs have exercised their religious beliefs by deciding not to offer their employees health care plans that include or facilitate coverage for abortifacients, sterilization, and contraception, or related education and counseling about those practices.
297. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs concerning abortifacients, sterilization, and contraception.
298. The U.S. Government Mandate exposes Plaintiffs to substantial monetary fines if they refuse to abandon their religious beliefs by offering health care plans that include or facilitate coverage for abortifacients, sterilization, contraception, and related education and counseling about those practices.
299. In order to qualify for the narrow exemption to the U.S. Government Mandate, Plaintiffs would have to submit to an intrusive and burdensome governmental investigation into whether their "purpose" is the "inculcation of religious values," whether they "primarily" employ Catholics, and whether they "primarily" serve Catholics. And Plaintiffs may not meet those standards.
54

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 55 of 69
300. It is unclear whether Plaintiffs are eligible for the religious employer exemption. 301. The U.S. Government Mandate therefore substantially burdens Plaintiffs' exercise of religion. 302. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions. It offers mUltiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortifacients, sterilization, contraception, and related education and counseling. 303. The U.S. Government Mandate is not a neutral law of general applicability, because it discriminates against certain religious viewpoints and targets certain religious organizations for disfavored treatment. Defendants enacted the U.S. Government Mandate despite being aware of the substantial burden it would place on Plaintiffs' exercise of religion. 304. 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 and to freedom from excessive government entanglement with religion. 305. The U.S. Government Mandate offers discretionary exemptions for certain religious entities, but not for others. 306. In its practical effect, the U.S. Government Mandate targets and predominantly burdens religiously motivated conduct. 307. The Government issued the U.S. Government Mandate to suppress the religious exercise of Plaintiffs and other entities with analogous religious beliefs. 308. The U.S. Government Mandate is not a neutral law of general applicability, and so is subject to strict scrutiny.
55

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 56 of 69
309. The u.s. Government Mandate infringes not simply the Free Exercise Clause, but
also the Free Speech Clause, and so is subject to strict scrutiny. 310. The Government was aware of the substantial burden the U.S. Government
Mandate would place on Plaintiffs' exercise of religion, but the Government did not identify any compelling governmental interest for requiring Plaintiffs to comply with the U.S. Government Mandate.
311. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
312. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
313. 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.
314. Plaintiffs have no adequate remedy at law. 315. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNTm Excessive Entanglement in Violation of the Free Exercise and Establishment Clauses of the First Amendment 316. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 317. The Free Exercise Clause and the Establishment Clause of the First Amendment prohibit intrusive government inquiries into the religious beliefs of individuals and institutions, and other forms of excessive entanglement between religion and Government. 318. This prohibition on excessive entanglement protects organizations as well as individuals.
56

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 57 of 69
319. In order to qualify for the exemption to the U.S. Government Mandate for "religious employers," an entity must submit to an invasive government investigation into its religious beliefs, including whether the organization's "purpose" is the "inculcation of religious values" and whether the organization "primarily employs" and "primarily serves" individuals who share the organization's religious tenets.
320. It is unclear how the Government will determine whether an organization meets the U.S. Government Mandate's defmition of a sufficiently "religious" organization.
321. The U.S. Government Mandate thus requires the Government to engage in invasive inquiries and judgments regarding questions of religious belief or practice.
322. The U.S. Government Mandate results in an excessive entanglement between religion and Government.
323. The U.S. Government Mandate is therefore unconstitutional and invalid. 324. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 325. Plaintiffs have no adequate remedy at law. 326. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV ReliJrlous Discrimination in Violation of the Free Exercise and Establishment Clftuses of the First Amendment 327. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 328. The First Amendment mandates the equal treatment of all religious faiths and institutions without discrimination or preference.
57

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 58 of 69
329. The Free Exercise Clause and the Establishment Clause of the First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference.
330. This mandate of equal treatment protects organizations as well as individuals. 331. The U.S. Government Mandate offers exemptions from its requirement that health plans include coverage for abortifacients, sterilization, contraception, and related education and counseling for some religious institutions on the basis of stated criteria. 332. The U.S. Government Mandate discriminates on the basis of religious views or religious status. 333. The U.S. Government Mandate's narrow exemption for certain "religious employers" but not others discriminates on the basis of religious views or religious status. 334. The U.S. Government Mandate's definition of religious employer likewise discriminates among different types of religious entities based on the nature of those entities' religious beliefs or practices. 335. The U.S. Government Mandate's definition of religious employer likewise furthers no compelling governmental interest. 336. The U.S. Government Mandate's definition of religious employer likewise is not narrowly tailored to further a compelling governmental interest. 337. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 338. Plaintiffs have no adequate remedy at law. 339. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
58

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 59 of 69
COUNT V Excessive Interference in Matters oflnternal Governance in Violation of
the Free Exercise and Establishment Clauses of the First Amendment 340. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 341. The Free Exercise Clause and Establishment Clause 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. 342. Under these Clauses, the Government may not interfere with a religious organization's internal decisions concerning the organization'S religious structure, ministers, or doctrine. 343. 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. 344. Plaintiffs are nonprofit, religiously based organizations which operate in a fashion consistent with and supportive ofthe religious mission and teachings of the Universal Roman Catholic Church. 345. The Catholic Church views abortifacients, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. Plaintiffs have abided and must continue to abide by the decision of the Catholic Church on these issues. 346. The Government may not interfere with, or otherwise question, the final decision ofthe Catholic Church that its religious organizations must abide by these views. 347. The Government may not interfere with the Catholic Church and its affiliated religious organizations, including Plaintiffs, with regard to their religious beliefs on abortifacients, sterilization, and contraception.
59

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 60 of 69
348. In accordance with this Catholic doctrine, Plaintiffs' have made the internal decision that their employee health plans do not cover, subsidize, or facilitate abortifacients, sterilization, and contraception.
349. The U.S. Government Mandate interferes with Plaintiffs' internal decisions concerning their structure and mission by requiring them to either facilitate practices that directly conflict with Catholic tenets or face substantial penalties.
350. Plaintiffs and the Church believe that Plaintiffs are integral parts of the Church that serve from the heart of the Church.
351. The U.S. Government Mandate and its religious employer exemption interfere with the organizational structure of Plaintiffs as part of the Church by requiring Plaintiffs to include or facilitate coverage for practices that directly conflict with their Catholic tenets but purporting to exempt the Church.
352. Before issuing the U.S. Government Mandate, the Government made no showing that their interference with the internal decision-making and organizational structure of Plaintiffs was necessary to advance any compelling government interest.
353. The U.S. Government Mandate's interference with Plaintiffs' internal decisionmaking and organizational structure is not narrowly tailored to serve any compelling government interest.
354. Because the U.S. Government Mandate interferes with the internal decisionmaking and organizational structure of Plaintiffs in a manner that affects Plaintiffs' faith and mission, the U.S. Government Mandate violates the Establishment Clause and the Free Exercise Clause of the First Amendment.
355. Plaintiffs have no adequate remedy at law.
60

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 61 of 69
356. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Compelled Speech in Violation of the Free Speech Clause ofthe First Amendment 357. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 358. The First Amendment protects against'the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 359. The First Amendment protects organizations as well as individuals against compelled speech. 360. Expenditures are a form of speech protected by the First Amendment. 361. The First Amendment protects against the use of a speaker's money to support a viewpoint that conflicts with the speaker's religious or ideological beliefs. 362. Plaintiffs consistently hold and publicly proclaim that abortifacients, sterilization, and contraception violate fundamental tenets of their Catholic religion. 363. The U.S. Government Mandate would compel Plaintiffs to provide or sponsor health care plans for their employees that include or facilitate coverage for abortifacients, sterilization, and contraception services, practices that violate their religious beliefs. 364. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services to their employees on abortifacients, sterilization, and contraception services. 365. 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.
61

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 62 of 69
366. Plaintiffs' decisions about health care for their employees should be guided by their consciences and moral values consistent with Catholic religious standards, not artificial government guidelines.
367. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
368. The U.S. Government Mandate furthers no compelling governmental interest. 369. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 370. Plaintiffs have no adequate remedy at law. 371. The U.S. Government Mandate imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Failure to Conduct Notice-and-Comment Rulemaking and Improper
Delegation in Violation of the APA 372. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 373. The Affordable Care Act expressly delegates to an agency within Defendant HHS, the Health Resources and Services Administration, the authority to establish guidelines concerning the "preventive care" that a group health plan and health insurance issuer must provide. 374. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments.
62

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 63 of 69
375. Defendants promulgated the "preventive care" guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law.
376. Defendants, instead, wholly delegated their responsibilities for issuing preventive care guidelines to a non-governmental entity, the 10M (the Institute of Medicine).
377. When crafting its guidelines recommendations, the 10M did not permit or provide for the broad public comment otherwise required under the APA concerning the guidelines that it would recommend. The dissent to the 10M report noted both that the 10M conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
378. Within two weeks of the 10M issuing its guidelines, Defendant HHS issued a press release announcing that the 10M's guidelines were required under the Affordable Care Act.
379. Defendants have never explained why they failed to enact these "preventive care" guidelines through notice-and-comment rulemaking as required by the APA.
380. Defendants also failed to engage in notice-and-comment rulemaking when issuing the interim fmal rules and the fmal rule incorporating the guidelines.
381. Defendants' stated reasons for promulgating these rules without engaging in formal notice-and-comment rulemaking do not constitute "good cause." Providing public notice and an opportunity for comment was not impracticable, unnecessary, or contrary to the public interest for the reasons claimed by Defendants.
382. Defendants have since undertaken the first step toward a prolonged notice and comment process to promulgate amended regulations, which undermines their claims that good cause warranted abandoning notice and comment for the current regulations.
63

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 64 of 69
383. By enacting the "preventive care" guidelines and interim and final rules through delegation to a non-governmental entity and without engaging in notice-and-comment rulemaking, Defendants failed to observe a procedure required by law and thus violated 5 U.S.C. § 706(2)(D).
384. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
385. Plaintiffs have no adequate remedy at law. 386. The enactment of the U.S. Government Mandate without observance of a procedure required by law and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNTVIll Arbitrary and Capricious Action in Violation of the APA 387. Plaintiffs repeat and reallege each ofthe foregoing allegations in this Complaint. 388. The APA condemns agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). 389. The APA requires that an agency examine the relevant data and articulate an explanation for its action that includes a rational connection between the facts found and the policy choice made. 390. Agency action is arbitrary and capricious under the APA if the agency has failed to consider an important aspect of the problem before it. 391. A court reviewing agency action may not supply a reasoned basis that the agency itself has failed to offer.
64

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 65 of 69
392. Defendants failed to consider the suggestion of many commenters that abortifacients, sterilization, and contraception as well as counsel and education for these services could not be viewed as "preventive care."
393. Defendants failed adequately to engage with voluminous comments suggesting that the scope of the religious exemption to the U.S. Government Mandate should be broadened.
394. Defendants did not articulate a reasoned basis for its action by drawing a connection between facts found and the policy decisions it made.
395. Defendants failed to provide any standards or processes for how the Administration will decide which religious institutions will be included in the religious exemption.
3%. Defendants failed to consider the use of broader religious exemptions in many other federal laws and regulations. Defendants' promulgation of the U.S. Government Mandate violates the APA.
397. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
398. Plaintiffs have no adequate remedy at law. 399. The enactment of the U.S. Government Mandate that is not in accordance with law and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IX Actine: Illegally in Violation of the APA 400. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 401. The APA requires that all government agency action, findings, and conclusions be "in accordance with law."
65

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 66 of 69
402. The U.S. Government Mandate and its exemption are illegal and therefore in violation of the APA.
403. The Weldon Amendment states that "[n]one ofthe 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 of2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat 786, 1111 (2011).
404. The Affordable Care Act states that "nothing in this title (or any amendment by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year." 42 U.S.C. § 18023(b)(1)(A)(i). It adds that "the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion.]" Id § 18023(b)(1)(A)(ii).
405. 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 abortifacients, sterilization, contraception, or related education and counseling should be required to provide such plans.
406. The U.S. Government Mandate requires employer based-health plans to provide coverage for abortion-inducing drugs, contraception, sterilization, and related education. It does not permit employers or issuers to determine whether the plan covers abortifacients, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
66

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 67 of 69
407. The U.S. Government Mandate violates RFRA. 408. The U.S. Government Mandate violates the First Amendment. 409. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 410. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 411. Plaintiffs have no adequate remedy at law. 412. The enactment of the U.S. Government Mandate that is not in accordance with law and its impending enforcement impose an immediate and ongoing harm on Plaintiffs that warrants relief. V. PRAYER FOR 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. Enter an injunction prohibiting Defendants from enforcing the U.S.
Government Mandate against Plaintiffs; 5. Enter an order vacating the U.S. Government Mandate; 6. Award Plaintiffs attorneys' and expert fees under 42 U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper. VI. JURY DEMAND 1. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiffs hereby demand a trial by jury of all issues so triable.
67

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 68 of 69
Respectfully submitted, this the 21st day of May, 2012.
By: ?//~~
Matthew A. Kairis (0 No. 5502) Eric E. Murphy (OH No. 83284) Brandy H. Ranjan (OH No. 86984)* JONES DAY 325 John H. McConnell Blvd., Suite 600 P.O. Box 165017 Columbus,OH 43216 (614) 469-3939
Carol A. Hogan (IL No. 06202430)* Brian J. Murray (IL No. 06272767) JONES DAY 77 West Wacker Drive Chicago, IL 60601 (312) 782-8585
Leon F. DeJulius, Jr. (PA No. 90383) Alison M. Kilmartin (PA No. 306422)* JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219-2514 (412) 391-3939
Counselfor Plaintiffs
Scott Hall (IN No. 12060-49) HALL & GOODEN LLP 810 South Calhoun Street, Suite 100 Fort Wayne, IN 46802 (260) 422-2035
Counsel for Plaintiffs the Diocese ofFort WayneSouth Bend, Inc., Catholic Charities ofthe Diocese ofFort Wayne-South Bend, Inc., and Saint Anne Home & Retirement Community ofthe Diocese of Fort Wayne-South Bend, Inc.
W. Patrick Downes (IN No. 4587-45) General Counsel FRANCISCAN ALLIANCE, INC. 1515 South Court Street Crown Pointe, IN 46307 (219) 662-3754

case 1:12-cv-00159-WCL-RBC document 1 filed 05/21/12 page 69 of 69
Counsel for PlaintiffFranciscan Alliance, Inc.
William T. Hopkins, Jr. (IN No. 8074-02) BARNES & THORNBURG LLP 600 One Summit Square 110 E. Wayne Street Fort Wayne, IN 46802-3119 (260) 425-4644
Counselfor Plaintiffthe University ofSaint Francis
Robert E. Doelling, Jr. (IN No. 14540-49) BURT BLEE DIXON SUTTON & BLOOM, LLP 200 East Main Street, Suite 1000 1st Source Banking Center Fort Wayne, IN 46802 (260) 426-1300
Counsel for PlaintiffOur Sunday Visitor, Inc.
'" pending pro hac vice admission

 
 11/2/2017

CM/ECF USDC-INND Version 6.1 Live DB

CASREF,TERMED

U.S. District Court Northern District of Indiana [LIVE] USDC Northern Indiana (Fort Wayne)
CIVIL DOCKET FOR CASE #: 1:12-cv-00159-JD-SLC

Diocese of Fort Wayne-South Bend Inc et al v. Sebelius et al Assigned to: Judge Jon E DeGuilio Referred to: Magistrate Judge Susan L Collins Case in other court: USCA, 14-01431 Cause: 05:702 Administrative Procedure Act

Date Filed: 05/21/2012 Date Terminated: 10/24/2017 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff Diocese of Fort Wayne-South Bend Inc

represented by M Scott Hall Hall & Gooden LLP 810 S Calhoun St Ste 100 Fort Wayne, IN 46802 260-422-2035 Fax: 260-424-2541 Email: shall@hallgooden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M Kilmartin Jones Day - Pit/PA 500 Grant St Suite 4500 Pittsburgh, PA 15219 412-391-3939 Fax: 412-394-7959 Email: amkilmartin@jonesday.com TERMINATED: 09/17/2015

Brandy H Ranjan Jones Day - Col/OH 325 John H McConnell Blvd Suite 600 PO Box 165017 Columbus, OH 43216-5017 614-281-3894 Fax: 614-461-4198 Email: branjan@jonesday.com ATTORNEY TO BE NOTICED

Brian J Murray Jones Day - Chi/IL 77 W Wacker Drive Suite 3500 Chicago, IL 60601-1692 312-782-3939 Fax: 312-782-8585 Email: bjmurray@jonesday.com ATTORNEY TO BE NOTICED

Carol A Hogan

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

1/22

11/2/2017

CM/ECF USDC-INND Version 6.1 Live DB
Jones Day - Chi/IL 77 W Wacker Drive Suite 3500 Chicago, IL 60601-1692 312-782-3939 Fax: 312-782-8585 Email: chogan@jonesday.com ATTORNEY TO BE NOTICED

Eric E Murphy Jones Day - Col/OH 325 John H McConnell Blvd Ste 600 PO Box 165017 Columbus, OH 43216-5017 614-281-3925 Fax: 614-461-4198 Email: eric.murphy@ohioattorneygeneral.gov TERMINATED: 09/03/2013

Leon F DeJulius , Jr Jones Day - Pit/PA 500 Grant St Suite 4500 Pittsburgh, PA 15219 412-394-9528 Fax: 412-394-7959 Email: lfdejulius@jonesday.com ATTORNEY TO BE NOTICED

Matthew A Kairis Jones Day - Col/OH 325 John H McConnell Blvd Suite 600 PO Box 165017 Columbus, OH 43216-5017 614-281-3605 Fax: 614-461-4198 Email: makairis@jonesday.com ATTORNEY TO BE NOTICED

Plaintiff
Catholic Charities of the Diocese of Fort Wayne-South Bend Inc

Melissa D Palmisciano Jones Day - Col/OH 325 John H McConnell Blvd Suite 600 PO Box 165017 Columbus, OH 43216-5017 614-469-3950 Fax: 614-461-4198 Email: mpalmisciano@jonesday.com TERMINATED: 09/29/2016
represented by M Scott Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

2/22

11/2/2017
Plaintiff Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc

CM/ECF USDC-INND Version 6.1 Live DB
Alison M Kilmartin (See above for address) TERMINATED: 09/17/2015
Brandy H Ranjan (See above for address) ATTORNEY TO BE NOTICED
Brian J Murray (See above for address) ATTORNEY TO BE NOTICED
Carol A Hogan (See above for address) ATTORNEY TO BE NOTICED
Eric E Murphy (See above for address) TERMINATED: 09/03/2013
Leon F DeJulius , Jr (See above for address) ATTORNEY TO BE NOTICED
Matthew A Kairis (See above for address) ATTORNEY TO BE NOTICED
Melissa D Palmisciano (See above for address) TERMINATED: 09/29/2016
represented by M Scott Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison M Kilmartin (See above for address) TERMINATED: 09/17/2015
Brandy H Ranjan (See above for address) ATTORNEY TO BE NOTICED
Brian J Murray (See above for address) ATTORNEY TO BE NOTICED
Carol A Hogan (See above for address) ATTORNEY TO BE NOTICED

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

3/22

11/2/2017

CM/ECF USDC-INND Version 6.1 Live DB
Eric E Murphy (See above for address) TERMINATED: 09/03/2013

Leon F DeJulius , Jr (See above for address) ATTORNEY TO BE NOTICED

Matthew A Kairis (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Franciscan Alliance Inc

Melissa D Palmisciano (See above for address) TERMINATED: 09/29/2016
represented by Alison M Kilmartin (See above for address) TERMINATED: 09/17/2015

Brandy H Ranjan (See above for address) ATTORNEY TO BE NOTICED

Brian J Murray (See above for address) ATTORNEY TO BE NOTICED

Carol A Hogan (See above for address) ATTORNEY TO BE NOTICED

Eric E Murphy (See above for address) TERMINATED: 09/03/2013

Leon F DeJulius , Jr (See above for address) ATTORNEY TO BE NOTICED

Matthew A Kairis (See above for address) ATTORNEY TO BE NOTICED

Melissa D Palmisciano (See above for address) TERMINATED: 09/29/2016

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

W Patrick Downes Franciscan Alliance Inc 1505 S Court St Suite 202 Crown Point, IN 46307 219-662-3753
4/22

11/2/2017
Plaintiff Saint Francis University of

CM/ECF USDC-INND Version 6.1 Live DB
Fax: 219-662-6197 Email: pat.downes@franciscanalliance.org ATTORNEY TO BE NOTICED
represented by William T Hopkins , Jr Barnes & Thornburg LLP - FW/IN 888 S Harrison St Ste 600 Fort Wayne, IN 46802 260-425-4644 Fax: 260-424-8316 Email: tuck.hopkins@btlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alison M Kilmartin (See above for address) TERMINATED: 09/17/2015

Brandy H Ranjan (See above for address) ATTORNEY TO BE NOTICED

Brian J Murray (See above for address) ATTORNEY TO BE NOTICED

Carol A Hogan (See above for address) ATTORNEY TO BE NOTICED

Eric E Murphy (See above for address) TERMINATED: 09/03/2013

Leon F DeJulius , Jr (See above for address) ATTORNEY TO BE NOTICED

Matthew A Kairis (See above for address) ATTORNEY TO BE NOTICED

Melissa D Palmisciano (See above for address) TERMINATED: 09/29/2016

Plaintiff

Our Sunday Visitor Inc

represented by Robert E Doelling

Burt Blee Dixon Sutton & Bloom LLP

200 E Main St Suite 1000

Fort Wayne, IN 46802

260-426-1300

Fax: 260-422-2722

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

5/22

11/2/2017
Plaintiff Specialty Physicians of Illinois, LLC

CM/ECF USDC-INND Version 6.1FLaivxe:D2B60-422-2722 Email: rdoelling@burtblee.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alison M Kilmartin (See above for address) TERMINATED: 09/17/2015
Brandy H Ranjan (See above for address) ATTORNEY TO BE NOTICED
Brian J Murray (See above for address) ATTORNEY TO BE NOTICED
Carol A Hogan (See above for address) ATTORNEY TO BE NOTICED
Eric E Murphy (See above for address) TERMINATED: 09/03/2013
Leon F DeJulius , Jr (See above for address) ATTORNEY TO BE NOTICED
Matthew A Kairis (See above for address) ATTORNEY TO BE NOTICED
Melissa D Palmisciano (See above for address) TERMINATED: 09/29/2016
Shane C Mulholland Burt Blee Dixon Sutton & Bloom LLP 200 E Main St Suite 1000 Fort Wayne, IN 46802 260-426-1300 Fax: 260-422-2722 Email: SMulholland@burtblee.com ATTORNEY TO BE NOTICED
represented by Melissa D Palmisciano (See above for address) TERMINATED: 09/29/2016
Matthew A Kairis (See above for address) ATTORNEY TO BE NOTICED

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

6/22

11/2/2017

CM/ECF USDC-INND Version 6.1 Live DB

V.
Defendant
Kathleen Sebelius in her ofﬁcial capacity as Secretary of the US Department of Health and Human Services

represented by Benjamin L Berwick AUSA US Department of Justice - Was/DC/20 Civil Division Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20530 202-305-8573 Fax: 202-616-8470 Email: Benjamin.L.Berwick@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Hilda Solis in her ofﬁcial capacity as Secretary of the US Department of Labor
Defendant Timothy Geithner in his ofﬁcial capacity as Secretary of the US Department of Treasury TERMINATED: 09/06/2013

Joel McElvain AUSA US Department of Justice - Was/DC/20 Civil Division Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20530 202-514-2988 Fax: 202-616-8202 Email: joel.mcelvain@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joel McElvain AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick AUSA (See above for address) TERMINATED: 09/06/2013 LEAD ATTORNEY

Defendant
US Department of Health and Human Services

Joel McElvain AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

7/22

11/2/2017
Defendant US Department of Labor

CM/ECF USDC-INND Version 6.1 Live DB
Joel McElvain AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant US Department of Treasury

Joel McElvain AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jacob J Lew in his ofﬁcial capacity as Secretary of the US Department of Treasury

Joel McElvain AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus American Center for Law & Justice, et al.
Amicus American Civil Liberties Union American Civil Liberties Union Foundation 125 Broad Street
https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

Joel McElvain AUSA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward L White American Center for Law & Justice 3001 Plymouth Rd Ste 203 Ann Arbor, MI 48105 734-662-2984 Fax: 734-302-1758 Email: ewhite@aclj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brigitte A Amiri PHV American Civil Liberties Union - NY/NY 125 Broad St 18th Fl
8/22

11/2/2017
18th Fl. New York, NY 10004 2125492633

CM/ECF USDC-INND Version 6.1 Live DB
New York, NY 10004-2454 212-549-2633 Fax: 212-549-2650 Email: bamiri@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel I Mach PHV American Civil Liberties Union - Was/DC 915 15th St NW 6th Fl Washington, DC 20005 202-675-2330 Fax: 202-546-0738 Email: dmach@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer K Lee American Civil Liberties Union - NY/NY 125 Broad St 18th Floor New York, NY 10004-2454 212-549-2601 Email: jlee@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/21/2012
05/21/2012
05/21/2012 05/21/2012 05/21/2012 05/21/2012 05/21/2012

# Docket Text
1 COMPLAINT with Jury Demand against Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury (Filing fee $ 350.) Receipt #INN1002139, ﬁled by Our Sunday Visitor Inc, Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Saint Francis University of, Diocese of Fort Wayne-South Bend Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc. (Attachments: # 1 Civil Cover Sheet)(kjm) (Entered: 05/21/2012)
2 NOTICE of Appearance by Matthew A Kairis on behalf of Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc (kjm) (Entered: 05/21/2012)
3 Corporate Disclosure Statement by Diocese of Fort Wayne-South Bend Inc. (kjm) (Entered: 05/21/2012)
4 Corporate Disclosure Statement by Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc. (kjm) (Entered: 05/21/2012)
5 Corporate Disclosure Statement by Saint Francis University of. (kjm) (Entered: 05/21/2012)
6 Corporate Disclosure Statement by Franciscan Alliance Inc. (kjm) (Entered: 05/21/2012)
7 Corporate Disclosure Statement by Our Sunday Visitor Inc. (kjm) (Entered: 05/21/2012)

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

9/22

11/2/2017
05/21/2012
05/21/2012 05/24/2012 05/25/2012 05/30/2012
06/01/2012 06/04/2012 06/29/2012 07/02/2012
07/09/2012
07/12/2012 07/12/2012 07/12/2012 07/13/2012 07/13/2012 07/13/2012 07/13/2012 07/27/2012

CM/ECF USDC-INND Version 6.1 Live DB
8 Summons Issued as to Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury, U.S. Attorney and U.S. Attorney General (kjm) (ap). (Entered: 05/21/2012)
12 Corporate Disclosure Statement by Catholic Charities of the Diocese of Fort WayneSouth Bend Inc. (jcp) (Entered: 05/31/2012)
9 NOTICE of Appearance by W Patrick Downes on behalf of Franciscan Alliance Inc (Downes, W) (Entered: 05/24/2012)
10 NOTICE of Appearance by William T Hopkins, Jr on behalf of Saint Francis University of (Hopkins, William) (Entered: 05/25/2012)
11 NOTICE of Appearance by M Scott Hall on behalf of Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc (Hall, M) (Entered: 05/30/2012)
13 NOTICE of Appearance by Robert E Doelling on behalf of Our Sunday Visitor Inc (Doelling, Robert) (Entered: 06/01/2012)
14 NOTICE of Appearance by Shane C Mulholland on behalf of Our Sunday Visitor Inc (Mulholland, Shane) (Entered: 06/04/2012)
15 NOTICE of Appearance by Benjamin L Berwick on behalf of All Defendants (Berwick, Benjamin) (Entered: 06/29/2012)
16 Joint MOTION for Extension of Time to File Response to Complaint by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Attachments: # 1 Proposed Order)(Berwick, Benjamin) (Entered: 07/02/2012)
17 ENTRY for Magistrate Judge Roger B. Cosbey: The 16 Motion for Extension of Time is GRANTED. Defendants' motion to dismiss the Complaint is due on or before 8/6/2012. Plaintiffs' response due on or before 8/27/2012. Defendants' reply due by 9/24/2012. So Ordered. (mr) (Entered: 07/09/2012)
18 NOTICE of Appearance by Carol A Hogan on behalf of All Plaintiffs (Hogan, Carol) (Entered: 07/12/2012)
19 NOTICE of Appearance by Brian J Murray on behalf of All Plaintiffs (Murray, Brian) (Entered: 07/12/2012)
20 NOTICE of Appearance by Brandy H Ranjan on behalf of All Plaintiffs (Ranjan, Brandy) (Entered: 07/12/2012)
21 NOTICE of Appearance by Leon F DeJulius, Jr on behalf of All Plaintiffs (DeJulius, Leon) (Entered: 07/13/2012)
22 NOTICE of Appearance by Alison M Kilmartin on behalf of All Plaintiffs (Kilmartin, Alison) (Entered: 07/13/2012)
23 CERTIFICATE of Service. (Ranjan, Brandy) (Entered: 07/13/2012)
24 NOTICE of Appearance by Eric E Murphy on behalf of All Plaintiffs (Murphy, Eric) (Entered: 07/13/2012)
25 SUMMONS Returned Executed by Our Sunday Visitor Inc, Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Saint Francis University of, Diocese of Fort Wayne-South Bend Inc, Saint Anne Home & Retirement Community

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

10/22

11/2/2017
08/06/2012 08/06/2012
08/20/2012 08/20/2012
08/27/2012
08/27/2012 08/27/2012 08/27/2012 08/27/2012 08/27/2012 08/27/2012 08/27/2012
08/27/2012

CM/ECF USDC-INND Version 6.1 Live DB
of the Diocese of Fort Wayne-South Bend Inc. All Defendants. (Attachments: # 1 Exhibit Exs. A-H - Certiﬁed Mail Receipts)(Kairis, Matthew) (Entered: 07/27/2012)
26 MOTION to Dismiss for Lack of Jurisdiction by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Berwick, Benjamin) (Entered: 08/06/2012)
27 MEMORANDUM in Support of 26 MOTION to Dismiss for Lack of Jurisdiction ﬁled by Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Berwick, Benjamin) (Entered: 08/06/2012)
28 Corporate Disclosure Statement by American Center for Law & Justice, et al.. (White, Edward) (Entered: 08/20/2012)
29 MOTION for Leave to Appear as Amici Curiae and File Amici Curiae Brief in Support of Plaintiffs on Behalf of the American Center for Law & Justice and 79 Members of Congress by Amicus American Center for Law & Justice, et al.. (Attachments: # 1 Amici Curiae Brief of the ACLJ and 79 Members of Congress in Support of Plaintiffs)(White, Edward) (Entered: 08/20/2012)
30 RESPONSE to Motion re 26 MOTION to Dismiss for Lack of Jurisdiction ﬁled by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort WayneSouth Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of. (Kairis, Matthew) (Entered: 08/27/2012)
31 AFFIDAVIT of Joseph Ryan re 30 Response to Motion, by Diocese of Fort Wayne-South Bend Inc. (Kairis, Matthew) (Entered: 08/27/2012)
32 AFFIDAVIT of Debra J. Schmidt re 30 Response to Motion, by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc. (Kairis, Matthew) (Entered: 08/27/2012)
33 AFFIDAVIT of Jason E. Wardwell re 30 Response to Motion, by Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc. (Kairis, Matthew) (Entered: 08/27/2012)
34 AFFIDAVIT of Sister Elise Kriss, O.S.F. re 30 Response to Motion, by Saint Francis University of. (Attachments: # 1 Exhibit A)(Kairis, Matthew) (Entered: 08/27/2012)
35 AFFIDAVIT of Sister Jane Marie Klein, O.S.F. re 30 Response to Motion, by Franciscan Alliance Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Kairis, Matthew) (Entered: 08/27/2012)
36 AFFIDAVIT of Gregory R. Erlandson re 30 Response to Motion, by Our Sunday Visitor Inc. (Kairis, Matthew) (Entered: 08/27/2012)
37 MOTION For Oral Argument re 26 MOTION to Dismiss for Lack of Jurisdiction by Plaintiffs Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of. (Kairis, Matthew) (Entered: 08/27/2012)
38 CERTIFICATE OF SERVICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort WayneSouth Bend Inc, Saint Francis University of re 31 Afﬁdavit, 36 Afﬁdavit, 34 Afﬁdavit, 32 Afﬁdavit, 35 Afﬁdavit, 33 Afﬁdavit (Kairis, Matthew) (Entered: 08/27/2012)

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

11/22

11/2/2017
09/07/2012 09/07/2012 09/07/2012 09/24/2012 09/24/2012
10/02/2012
10/02/2012
10/10/2012 10/19/2012 11/13/2012 11/21/2012
11/21/2012

CM/ECF USDC-INND Version 6.1 Live DB
39 ORDER GRANTING 29 Motion for Leave to Appear as Amici Curiae and File Amici Curiae Brief in Support of Plaintiffs. The Amici Curiae Brief that accompanied the motion shall be ﬁled by the clerk of court. Signed by Magistrate Judge Roger B Cosbey on 9/7/2012. (kjm) (Entered: 09/07/2012)
40 AMICI CURIAE BRIEF In Support of Plaintiffs Filed by the American Center for Law and Justice and Seventy-Nine (79) Members of the United States Congress. (kjm) (Entered: 09/07/2012)
41 NOTICE of Appearance by Edward L White on behalf of American Center for Law & Justice, et al. (White, Edward) (Entered: 09/07/2012)
42 REPLY to Response to Motion re 26 MOTION to Dismiss for Lack of Jurisdiction ﬁled by Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Berwick, Benjamin) (Entered: 09/24/2012)
43 RESPONSE to Motion re 37 MOTION For Oral Argument re 26 MOTION to Dismiss for Lack of Jurisdiction MOTION For Oral Argument re 26 MOTION to Dismiss for Lack of Jurisdiction ﬁled by Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Berwick, Benjamin) (Entered: 09/24/2012)
44 MOTION to Consolidate Cases by Plaintiffs Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of. (Attachments: # 1 Proposed Order)(Kairis, Matthew) (Entered: 10/02/2012)
45 MEMORANDUM in Support of 44 MOTION to Consolidate Cases ﬁled by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kairis, Matthew) (Entered: 10/02/2012)
46 RESPONSE to Motion re 44 MOTION to Consolidate Cases ﬁled by Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Berwick, Benjamin) (Entered: 10/10/2012)
47 ORDER REASSIGNING CASE. Case reassigned to Judge Jon E DeGuilio for all further proceedings. Judge William C Lee no longer assigned to case. Signed by Judge William C Lee on 10/19/2012. (lns) (Entered: 10/19/2012)
48 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 26 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Berwick, Benjamin) (Entered: 11/13/2012)
49 RESPONSE to DEFENDANTS' NOTICE OF SUPPLEMENTAL AUTHORITY by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort WayneSouth Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of to 48 Notice (Other), Notice (Other). (Kairis, Matthew) (Entered: 11/21/2012)
50 NOTICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

12/22

11/2/2017
11/28/2012 12/06/2012 12/07/2012 12/11/2012 12/21/2012 12/21/2012 01/14/2013 01/16/2013 02/04/2013

CM/ECF USDC-INND Version 6.1 Live DB
Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of re 26 MOTION to Dismiss for Lack of Jurisdiction SUPPLEMENTAL AUTHORITY (Kairis, Matthew) (Entered: 11/21/2012)
51 RESPONSE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury to 50 Notice (Other), Notice (Other). (Attachments: # 1 Exhibit Catholic Diocese of Nashville v. Sebelius, # 2 Exhibit Zubik v. Sebelius)(Berwick, Benjamin) (Entered: 11/28/2012)
52 REPLY to Defendants' Response to Plaintiffs' Notice of Supplemental Authority by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort WayneSouth Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of to 51 Response/Reply,. (Kairis, Matthew) (Entered: 12/06/2012)
53 NOTICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of re 26 MOTION to Dismiss for Lack of Jurisdiction Second Notice of Supplemental Authority (Attachments: # 1 Exhibit A)(Kairis, Matthew) (Entered: 12/07/2012)
54 RESPONSE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury to 53 Notice (Other), Notice (Other) Supplemental Authority. (Berwick, Benjamin) (Entered: 12/11/2012)
55 NOTICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of of Supplemental Authority (Attachments: # 1 Exhibit A - Wheaton College v. Sebelius Order)(Kairis, Matthew) (Entered: 12/21/2012)
56 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 26 MOTION to Dismiss for Lack of Jurisdiction and Response to 55 Plaintiffs' Third Notice of Supplemental Authority (Attachments: # 1 Exhibit Catholic Diocese of Biloxi v. Sebelius)(Berwick, Benjamin) (Entered: 12/21/2012)
57 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 26 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Berwick, Benjamin) (Entered: 01/14/2013)
58 NOTICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of re 57 Notice (Other), Notice (Other) Plaintiffs' Response to Defendants' 1/14/13 Notice of Supplemental Authority (Attachments: # 1 Exhibit 1) (Kairis, Matthew) (Entered: 01/16/2013)
59 NOTICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of Fourth Notice of Supplemental Authority (Attachments: # 1 Exhibit

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

13/22

11/2/2017
02/13/2013 03/14/2013 04/01/2013 04/12/2013
04/19/2013 05/13/2013
07/03/2013 07/11/2013

CM/ECF USDC-INND Version 6.1 Live DB
Forth Worth v. Sebelius, No. 4:12cv314 (N.D. Tex. Jan. 31, 2013))(Kairis, Matthew) (Entered: 02/04/2013)
60 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 59 Notice (Other), Notice (Other), 26 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority and Response to Plaintiffs' Fourth Notice of Supplemental Authority (Attachments: # 1 Exhibit Bishop Conlon v. Sebelius)(Berwick, Benjamin) (Entered: 02/13/2013)
61 ORDER: Parties to ﬁle by 4/12/2013 a Joint Report as outlined in Order. This case is STAYED for a period of no more than 45 days from today's date. Such stay may be extended by order of the Court after consideration of the parties' Joint Report addressing the case stay issue. Signed by Judge Jon E DeGuilio on 3/14/13. (cer) (Entered: 03/14/2013)
62 ORDER re 44 MOTION to Consolidate Cases by Plaintiffs Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of. The Court, in its discretion, DECLINES to consolidate the instant action with the Tonn and Blank case (Case No. 1:12-CV-325). Signed by Judge Jon E DeGuilio on 4/1/13. (cer) (Entered: 04/02/2013)
63 REPORT by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Timothy Geithner, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort WayneSouth Bend Inc, Saint Francis University of, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury Concerning A Stay of the Case. (Attachments: # 1 Exhibit A - Comments of The Roman Catholic Diocese of Pittsburgh on the NPRM)(Kairis, Matthew) (Entered: 04/12/2013)
64 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 26 MOTION to Dismiss for Lack of Jurisdiction Supplemental Authority (Attachments: # 1 Exhibit Most Reverend Wenski v. Sebelius, # 2 Exhibit Criswell College v. Sebelius) (Berwick, Benjamin) (Entered: 04/19/2013)
65 ORDER re 63 REPORT Concerning a Stay of the Case by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Timothy Geithner, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. This case is STAYED until such time as the Defendants ﬁnalize their proposed rules or until 7/1/2013, whichever date comes ﬁrst. Signed by Judge Jon E DeGuilio on 5/13/13. (cer) (Entered: 05/13/2013)
66 NOTICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of Regarding Defendants' Issuance of Final Rules (Kairis, Matthew) (Entered: 07/03/2013)
67 ORDER - Plaintiffs have up to and including Friday, 7/26/2013 to ﬁle a notice with the Court stating their intentions relative to the instant lawsuit. The stay will remain in effect

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

14/22

11/2/2017
07/11/2013 07/26/2013 07/31/2013
08/30/2013 09/03/2013 09/06/2013 09/06/2013

CM/ECF USDC-INND Version 6.1 Live DB
until such time as the Court has had an opportunity to consider the parties' positions and issue a subsequent order lifting the stay. Signed by Judge Jon E DeGuilio on 7/11/2013. (saj) (Entered: 07/11/2013)
68 NOTICE of Change of Address by Edward L White counsel for amici curiae American Center for Law & Justice, et al. (White, Edward) (Entered: 07/11/2013)
69 NOTICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of JOINT REPORT CONCERNING CASE STATUS AND AGREEDUPON SCHEDULE (Kairis, Matthew) (Entered: 07/26/2013)
70 ORDER re 69 REPORT (Joint) Concerning Case Status and Agreed Upon Schedule ﬁled by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University. The Court LIFTS THE STAY AND ADOPTS the following pretrial schedule: Plaintiffs to ﬁle any Amended Complaint and any Motion for Preliminary Injunction (leave granted to ﬁle 40 page brief) by 9/6/2013; Defendants to ﬁle Response to Plaintiffs' Motion for Preliminary Injunction and Defendants to ﬁle any Answer or Motion to Dismiss and/or for Summary Judgment (leave granted to ﬁle 50 page brief) by 9/27/2013; Plaintiffs to ﬁle Preliminary Injunction Reply, Response to Defendants' Motion to Dismiss and/or for Summary Judgment, and any Cross-Motion for Summary Judgment (leave granted to ﬁle 60 page brief) by 10/11/2013; Defendants to ﬁle Motion to Dismiss and/or for Summary Judgment Reply and Response to Plaintiffs' Cross-Motion for Summary Judgment (leave granted to ﬁle 50 page brief) by 11/1/2013; Plaintiffs to ﬁle Cross-Motion for Summary Judgment Reply (leave granted to ﬁle 25 page brief) by 11/15/2013. Given the Plaintiffs' stated intention to ﬁle an Amended Complaint and the parties'agreement to allow Plaintiffs to do so, the Court DENIES WITH LEAVE TO REFILE 26 MOTION to Dismiss for Lack of Jurisdiction ﬁled by Defendants and 37 MOTION For Oral Argument re 26 MOTION to Dismiss for Lack of Jurisdiction ﬁled by Plaintiffs. Should no Amended Complaint be ﬁled as represented, then the Court will consider whether reinstatement of those motions is appropriate.Signed by Judge Jon E DeGuilio on 7/31/13. (cer) (Entered: 07/31/2013)
71 MOTION to Withdraw as Attorney of Eric Murphy by Plaintiffs Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of. (Murphy, Eric) (Entered: 08/30/2013)
72 ENTRY for Magistrate Judge Roger B. Cosbey: The 71 Motion to Withdraw as counsel for Plaintiffs ﬁled by atty Eric E Murphy is granted. So Ordered. (mr) (Entered: 09/03/2013)
73 AMENDED COMPLAINT against All Defendants, ﬁled by Our Sunday Visitor Inc, Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Saint Francis University of, Diocese of Fort Wayne-South Bend Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Specialty Physicians of Illinois, LLC.(Kairis, Matthew) (Entered: 09/06/2013)
74 MOTION for Preliminary Injunction and Request for Oral Argument by Plaintiffs Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort WayneSouth Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

15/22

11/2/2017

CM/ECF USDC-INND Version 6.1 Live DB
University of, Specialty Physicians of Illinois, LLC. (Kairis, Matthew) (Entered: 09/06/2013)

09/06/2013

75 MEMORANDUM in Support of 74 MOTION for Preliminary Injunction and Request for Oral Argument ﬁled by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Kairis, Matthew) (Entered: 09/06/2013)

09/06/2013

76 AFFIDAVIT of Joseph Ryan supporting Plaintiffs' Motion for Preliminary Injunction by Diocese of Fort Wayne-South Bend Inc. (Kairis, Matthew) (Entered: 09/06/2013)

09/06/2013

77 AFFIDAVIT of Lisa M. Young supporting Plaintiffs' Motion for Preliminary Injunction by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc. (Kairis, Matthew) (Entered: 09/06/2013)

09/06/2013

78 AFFIDAVIT of Jason Wardwell supporting Plaintiffs' Motion for Preliminary Injunction by Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc. (Kairis, Matthew) (Entered: 09/06/2013)

09/06/2013

79 AFFIDAVIT of Sister Jane Marie Klein supporting Plaintiffs' Motion for Preliminary Injunction by Franciscan Alliance Inc. (Kairis, Matthew) (Entered: 09/06/2013)

09/06/2013

80 AFFIDAVIT of Sister Jane Marie Klein supporting Plaintiffs' Motion for Preliminary Injunction by Specialty Physicians of Illinois, LLC. (Kairis, Matthew) (Entered: 09/06/2013)

09/06/2013

81 AFFIDAVIT of Sister Elise Kriss supporting Plaintiffs' Motion for Preliminary Injunction by Saint Francis University of. (Kairis, Matthew) (Entered: 09/06/2013)

09/06/2013

82 AFFIDAVIT of Gregory R. Erlandson supporting Plaintiffs' Motion for Preliminary Injunction by Our Sunday Visitor Inc. (Kairis, Matthew) (Entered: 09/06/2013)

09/27/2013

83 NOTICE by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury Notice of Filing of Certiﬁed Administrative Record (Attachments: # 1 Exhibit Record Index, # 2 Exhibit Certiﬁcation of Record)(Berwick, Benjamin) (Entered: 09/27/2013)

09/27/2013

84 RESPONSE to Motion re 74 MOTION for Preliminary Injunction and Request for Oral Argument ﬁled by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Berwick, Benjamin) (Entered: 09/27/2013)

09/27/2013

85 MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative, MOTION for Summary Judgment by Defendants Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Berwick, Benjamin) (Entered: 09/27/2013)

09/27/2013

86 MEMORANDUM in Support of 85 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative MOTION for Summary Judgment ﬁled by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Attachments: # 1 Statement of Material Facts)(Berwick, Benjamin) (Entered: 09/27/2013)

10/01/2013 87 MOTION for Leave to File Amicus Curiae Brief by Amicus American Civil Liberties

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

16/22

11/2/2017

CM/ECF USDC-INND Version 6.1 Live DB
Union. (Attachments: # 1 Exhibit Proposed Amicus Brief)(Lee, Jennifer) (Entered: 10/01/2013)

10/02/2013

88 ORDER GRANTING 87 MOTION for Leave to File Amicus Curiae Brief by Amicus American Civil Liberties Union. Clerk DIRECTED to ﬁle the "Brief of Amicus Curiae American Civil Liberties Union in Opposition to Plaintiff's Motion for Preliminary Injunction and in Support of Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment" attached to the 87 Motion. Signed by Magistrate Judge Roger B Cosbey on 10/2/13. (cer). Modiﬁed on 10/2/2013. (cer). (Entered: 10/02/2013)

10/02/2013

89 BRIEF of Amicus Curiae American Civil Liberties Union in Opposition to 74 MOTION for Preliminary Injunction and Request for Oral Argument and in Support of 85 MOTION to Dismiss for Failure to State a Claim, or in the Alternative, Motion for Summary Judgment . (cer) (Entered: 10/02/2013)

10/08/2013

90 APPLICATION for Attorney Brigitte Amiri to Appear Pro Hac Vice on behalf of Amicus Curiae American Civil Liberties Union; Receipt #INN1003855. (cer) (Entered: 10/08/2013)

10/08/2013

91 APPLICATION for Attorney Daniel Mach to Appear Pro Hac Vice on behalf of Amicus Curiae American Civil Liberties Union; Receipt #INN1003855. (cer) (Entered: 10/08/2013)

10/09/2013

92 ORDER GRANTING 90 APPLICATION to Appear Pro Hac Vice of Attorney Brigitte A Amiri PHV for Amicus Curiae American Civil Liberties Union. Signed by Magistrate Judge Roger B Cosbey on 10/9/13. (cer) (Entered: 10/09/2013)

10/09/2013

93 ORDER GRANTING 91 APPLICATION to Appear Pro Hac Vice of Attorney Daniel Mach PHV for Amicus Curiae American Civil Liberties Union. Signed by Magistrate Judge Roger B Cosbey on 10/9/13. (cer) (Entered: 10/09/2013)

10/11/2013

94 STATEMENT Plaintiffs Response to Defendants Statement of Material Facts in Support of Defendants Motion for Summary Judgment re 86 Memorandum in Support, ﬁled by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort WayneSouth Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC. (Kairis, Matthew) (Entered: 10/11/2013)

10/11/2013

95 MOTION for Summary Judgment by Plaintiffs Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC. (Kairis, Matthew) (Entered: 10/11/2013)

10/11/2013

96 STATEMENT of Material Facts Pursuant to Rule 56-1 re 95 MOTION for Summary Judgment ﬁled by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC. (Kairis, Matthew) (Entered: 10/11/2013)

10/11/2013

97 MEMORANDUM in Support of 95 MOTION for Summary Judgment and Reply in Support of Plaintiffs' Motion for Preliminary Injunction, and Opposition to Defendants' Motion to Dismiss, or, in the Alternative, For Summary Judgment ﬁled by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

17/22

11/2/2017
10/11/2013
11/01/2013 11/01/2013 11/14/2013 11/15/2013
11/18/2013 11/20/2013 11/25/2013
11/25/2013

CM/ECF USDC-INND Version 6.1 Live DB
University of, Specialty Physicians of Illinois, LLC. (Kairis, Matthew) (Entered: 10/11/2013)
98 APPENDIX to 74 MOTION for Preliminary Injunction and Request for Oral Argument , 95 MOTION for Summary Judgment , 85 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative MOTION for Summary Judgment by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC. (Attachments: # 1 Appendix Plaintiffs Appendix - Part 1 of 3, # 2 Appendix Plaintiffs Appendix - Part 2 of 3, # 3 Appendix Plaintiffs Appendix - Part 3 of 3)(Kairis, Matthew) (Entered: 10/11/2013)
99 RESPONSE to Motion re 95 MOTION for Summary Judgment ﬁled by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Attachments: # 1 Response to Plaintiffs' Statement of Material Facts)(Berwick, Benjamin) (Entered: 11/01/2013)
100 REPLY to Response to Motion re 85 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative MOTION for Summary Judgment ﬁled by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Berwick, Benjamin) (Entered: 11/01/2013)
101 NOTICE of Appearance by Melissa D Palmisciano on behalf of All Plaintiffs (Palmisciano, Melissa) (Entered: 11/14/2013)
102 REPLY to Response to Motion re 95 MOTION for Summary Judgment ﬁled by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC. (Kairis, Matthew) (Entered: 11/15/2013)
103 Consent MOTION for Leave to File Sur-Reply by Defendants Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Berwick, Benjamin) (Entered: 11/18/2013)
104 ORDER GRANTING 103 Consent MOTION for Leave to File Sur-Reply by Defendants Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. Signed by Magistrate Judge Roger B Cosbey on 11/20/2013. (lhc) (Entered: 11/20/2013)
105 DEFENDANTS SUR-REPLY IN OPPOSITION TO PLAINTIFFS 95 CROSS-MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF DEFENDANTS 85 MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT ﬁled by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Berwick, Benjamin) Modiﬁed text to match caption on 11/27/2013 (mc). (Entered: 11/25/2013)
106 NOTICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC re 74 MOTION for Preliminary Injunction and Request for Oral Argument , 95 MOTION for Summary

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

18/22

11/2/2017
12/11/2013 12/11/2013 12/19/2013
12/19/2013 12/20/2013 12/20/2013 12/20/2013 12/23/2013 12/23/2013

CM/ECF USDC-INND Version 6.1 Live DB
Judgment Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kairis, Matthew) (Entered: 11/25/2013)
107 RESPONSE by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury to 106 Notice (Other),, Defendants' Response to Plaintiffs' Notice of Supplemental Authority. (Berwick, Benjamin) (Entered: 12/11/2013)
108 AMENDED DOCUMENT by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. Amendment to 107 Response/Reply, Defendants' Response to Plaintiffs' Notice of Supplemental Authority (Corrected). (Berwick, Benjamin) (Entered: 12/11/2013)
109 NOTICE by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 74 MOTION for Preliminary Injunction and Request for Oral Argument , 95 MOTION for Summary Judgment , 85 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative MOTION for Summary Judgment Supplemental Authority (Attachments: # 1 Exhibit Priests for Life v. HHS)(Berwick, Benjamin) (Entered: 12/19/2013)
110 RESPONSE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC to 109 Notice (Other),, And Additional Notice of Supplemental Authority. (Attachments: # 1 Exhibit A)(Kairis, Matthew) (Entered: 12/19/2013)
111 RESPONSE by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury to 110 Response/Reply, Response to Plaintiffs' Notice of Supplemental Authority. (Berwick, Benjamin) (Entered: 12/20/2013)
112 NOTICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC re 74 MOTION for Preliminary Injunction and Request for Oral Argument , 95 MOTION for Summary Judgment (Attachments: # 1 Exhibit A)(Kairis, Matthew) (Entered: 12/20/2013)
113 NOTICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC re 74 MOTION for Preliminary Injunction and Request for Oral Argument of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Kairis, Matthew) (Entered: 12/20/2013)
114 NOTICE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC re 74 MOTION for Preliminary Injunction and Request for Oral Argument Notice of Supplemental Authority (Attachments: # 1 Exhibit A)(Kairis, Matthew) (Entered: 12/23/2013)
115 PLAINTIFFS NOTICE OF SUPPLEMENTAL AUTHORITY by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

19/22

11/2/2017
12/23/2013 12/23/2013 12/24/2013 12/26/2013 12/26/2013 12/27/2013 12/27/2013 02/24/2014

CM/ECF USDC-INND Version 6.1 Live DB
Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC re 74 MOTION for Preliminary Injunction (Attachments: # 1 Exhibit A)(Kairis, Matthew) Modiﬁed text to match caption on 1/2/2014 (mc). (Entered: 12/23/2013)
116 RESPONSE TO 113 PLAINTIFFS NOTICE OF SUPPLEMENTAL AUTHORITY and DEFENDANTS NOTICE OF SUPPLEMENTAL AUTHORITY by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury (Attachments: # 1 Exhibit Univ. of Notre Dame v. Sebelius, # 2 Exhibit Archbishop of Washington v. Sebelius)(Berwick, Benjamin) Modiﬁed text to match document's caption on 1/2/2014 (mc). (Entered: 12/23/2013)
117 RESPONSE by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC to 116 Response/Reply, to Defendants' Additional Notice of Supplemental Authority. (Kairis, Matthew) (Entered: 12/23/2013)
118 DEFENDANTS RESPONSE TO PLAINTIFFS 115 and 114 NOTICES OF SUPPLEMENTAL AUTHORITY by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury . (Berwick, Benjamin) Modiﬁed text to match document's caption on 1/2/2014 (mc). (Entered: 12/24/2013)
119 DEFENDANTS NOTICE OF SUPPLEMENTAL AUTHORITY by Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury re 74 MOTION for Preliminary Injunction and Request for Oral Argument (Attachments: # 1 Exhibit Catholic Diocese of Nashville v. Sebelius)(Berwick, Benjamin) Modiﬁed text to match document's caption on 1/2/2014 (mc). (Entered: 12/26/2013)
120 RESPONSE to Defendants' 119 Notice of Supplemental Authority by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC . (Kairis, Matthew) Modiﬁed text to match document's caption on 1/2/2014 (mc). (Entered: 12/26/2013)
121 PLAINTIFFS NOTICE OF SUPPLEMENTAL AUTHORITY by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC re 74 MOTION for Preliminary Injunction and Request for Oral Argument (Attachments: # 1 Exhibit A)(Kairis, Matthew) Modiﬁed text to match document's caption on 1/2/2014 (mc). (Entered: 12/27/2013)
122 MEMORANDUM OPINION AND ORDER GRANTING 74 MOTION for Preliminary Injunction and Request for Oral Argument ﬁled by Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Our Sunday Visitor Inc, Diocese of Fort Wayne-South Bend Inc, Specialty Physicians of Illinois, LLC, Saint Francis University of, Franciscan Alliance Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc. Signed by Judge Jon E DeGuilio on 12/27/2013. (lhc) (Entered: 12/27/2013)
123 NOTICE OF INTERLOCUTORY APPEAL as to 122 Preliminary Injunction, Terminate

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

20/22

11/2/2017

CM/ECF USDC-INND Version 6.1 Live DB
Motions,,,,, ﬁled by Defendants Timothy Geithner, Jacob J Lew, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury. (Berwick, Benjamin) (Entered: 02/24/2014)

02/27/2014 124 SHORT Record Sent to US Court of Appeals re 123 Notice of Interlocutory Appeal. No appeal fees paid. (cer) (Entered: 02/27/2014)

02/27/2014

125 USCA Case Number 14-1431 for 123 Notice of Interlocutory Appeal, ﬁled by US Department of Health and Human Services, US Department of Treasury, US Department of Labor, Timothy Geithner, Hilda Solis, Kathleen Sebelius, Jacob J Lew. (cer) (Entered: 02/28/2014)

10/29/2014 126 LETTER from 7th Circuit Court of Appeals requesting record on appeal. (cer) (Entered: 11/04/2014)

11/05/2014

127 TRANSMITTED Record on Appeal to US Court of Appeals re 123 Notice of Interlocutory Appeal. (cer) (Entered: 11/05/2014)

11/06/2014

128 NOTICE of Docketing Record on Appeal (9 volumes of pleadings) from USCA re 123 Notice of Interlocutory Appeal ﬁled by US Department of Health and Human Services, US Department of Treasury, US Department of Labor, Timothy Geithner, Hilda Solis, Kathleen Sebelius, Jacob J Lew. (cer) (Entered: 11/07/2014)

01/21/2015

Magistrate Judge Susan L Collins added. Magistrate Judge Roger B Cosbey no longer assigned to case. (mr) (Entered: 01/21/2015)

09/16/2015

129 MOTION to Withdraw as Attorney by Plaintiffs Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC. (Kilmartin, Alison) (Entered: 09/16/2015)

09/17/2015

130 ENTRY for Magistrate Judge Susan Collins: The 129 Motion to Withdraw as Attorney is granted. The appearance of Alison M Kilmartin is hereby withdrawn. So Ordered. (mr) (Entered: 09/17/2015)

09/29/2016

131 MOTION to Withdraw as Attorney (Melissa D. Palmisciano) by Plaintiffs Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Our Sunday Visitor Inc, Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc, Saint Francis University of, Specialty Physicians of Illinois, LLC. (Palmisciano, Melissa) (Entered: 09/29/2016)

09/29/2016

132 ENTRY for Magistrate Judge Susan Collins: The 31 Motion to Withdraw as Attorney is granted. The appearance of attorney Melissa D Palmisciano is hereby withdrawn on behalf of Plas. So Ordered. (mr) (Entered: 09/29/2016)

10/03/2016

133 ORDER OF USCA as to 123 Notice of Interlocutory Appeal ﬁled by US Department of Health and Human Services, US Department of Treasury, US Department of Labor, Timothy Geithner, Hilda Solis, Kathleen Sebelius, Jacob J Lew. The Motion to Withdraw as Counsel is GRANTED. Attorney Melissa Palmisciano is withdrawn as counsel for Appellees. Attorney Matthew Kairis will continue to serve as counsel of record for Appellees. (cer) (Entered: 10/04/2016)

10/19/2017

134 MANDATE of USCA as to 123 Notice of Interlocutory Appeal, ﬁled by US Department of Health and Human Services, US Department of Treasury, US Department of Labor, Timothy Geithner, Hilda Solis, Kathleen Sebelius, Jacob J Lew: Ruling on the MOTION TO DISMISS APPEAL, ﬁled on October 6, 2017, by counsel for the appellants and the RESPONSE OF APPELLEES TO MOTION TO DISMISS APPEAL, ﬁled on October

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

21/22

11/2/2017
10/20/2017 10/23/2017 10/24/2017

CM/ECF USDC-INND Version 6.1 Live DB
17, 2017, by counsel for the appellees, IT IS ORDERED that these consolidated appeals are DISMISSED pursuant to Federal Rule of Appellate Procedure 42(b). (Attachments: # 1 Certiﬁed Final Order)(nae) (Entered: 10/20/2017)
135 *** FILING ERROR - ATTORNEY WILL REFILE DOCUMENT *** NOTICE of Appearance by Joel McElvain AUSA on behalf of All Defendants (McElvain AUSA, Joel) Modiﬁed on 10/23/2017 (mtr). (Entered: 10/20/2017)
136 Joint STIPULATION to Dismiss Case by Plaintiffs Our Sunday Visitor Inc, Catholic Charities of the Diocese of Fort Wayne-South Bend Inc, Franciscan Alliance Inc, Saint Francis University of, Diocese of Fort Wayne-South Bend Inc, Specialty Physicians of Illinois, LLC, Saint Anne Home & Retirement Community of the Diocese of Fort WayneSouth Bend Inc. (Kairis, Matthew) (Entered: 10/23/2017)
CASE DISMISSED pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure and the 136 joint stipulation. (saj) (Entered: 10/24/2017)

PACER Service Center

Transaction Receipt

PACER Login:
Description:
Billable Pages:

11/02/2017 21:50:42

hs0328:2563377:0 Client Code:

Docket Report

Search Criteria:

22

Cost:

1:12-cv-00159-JDSLC
2.20

https://ecf.innd.uscourts.gov/cgi-bin/DktRpt.pl?613339708146549-L_1_0-1

22/22

 
 case 1:12-cv-00159-JD-RBC document 61 filed 03/14/13 page 1 of 4

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DIOCESE OF FORT WAYNE-SOUTH BEND, )

INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, in her official capacity )

as Secretary of the U.S. Department of Health and )

Human Services, et al.,

)

)

Defendants.

)

Case No. 1:12-CV-159 JD

ORDER

On May 21, 2012, Plaintiffs filed a 9-count complaint against the U.S. Departments of

Treasury, Labor, and Health and Human Services and their respective Secretaries seeking relief

from government action (the Patient Protection and Affordable Care Act) requiring Plaintiffs, all

nonprofit entities who adhere to the tenants of the Catholic faith, to provide or facilitate

abortion-inducing drugs, contraceptive services and sterilization (characterized as “preventative

care”) through its health plans [DE 1]. The complaint asserts various claims under the Religious

Freedom Restoration Act, the First Amendment, and the Administrative Procedures Act. Id.

Plaintiffs, who are primarily self-insured (with the exception of coverage provided for some

employees of the Franciscan Alliance, Inc.), have health benefit plans that have not been

providing coverage for these preventative care services. Id. Assuming the Plaintiffs meet the

safe-harbor provision, the Plaintiffs’ next insurance plans begin January 2014, with the exception

of Our Sunday Visitor, Inc. which has an insurance renewal date of October 2013. Id.

Defendants have moved for dismissal of the complaint on the basis that the Court lacks

jurisdiction because Plaintiffs lack standing and the case is not ripe [DE 26]. The motion is fully

case 1:12-cv-00159-JD-RBC document 61 filed 03/14/13 page 2 of 4
briefed, including the filing of an amici curiae brief in support of Plaintiffs by the American Center for Law & Justice and various congressional members [DE 30-36, 40, 42].
However, since the complaint was filed and the briefing on the motion to dismiss ran its course, two events have occurred which will likely alter the landscape of this case and decide the issues raised. First, an appeal has been filed in a related case—University of Notre Dame v. Kathleen Sebelius, et al., No. 3:12-cv-253-RLM, 2012 WL 6756332 (N.D. Ind. Dec. 31, 2012), on appeal at No. 13-1479 (“the Notre Dame case”)—contesting this Court’s dismissal of the lawsuit on the ground that the Court had no jurisdiction because it did not present a ripe case or controversy involving a plaintiff with standing [3:12-cv-253-RLM, DE 46]. By way of background, University of Notre Dame, a nonprofit Catholic institution, filed its lawsuit against the same government Defendants named in the underlying complaint, contested the same government action relative to the provision of preventative care via a self-insured employee plan and a fully insured student plan through Aetna, and similarly argued that the action violated the Religious Freedom Restoration Act, the First Amendment, and the Administrative Procedures Act [3:12-cv-253-RLM, DE 1]. As mentioned, dismissal of the Notre Dame case was granted on the same grounds that Defendants believe dismissal is appropriate in the present action. In fact, the briefing on the motion to dismiss in both cases is virtually identical, including the amici curiae briefs. Compare 1:12-cv-159-JD, DE 27, 30, 40, 42 with 3:12-cv-253-RLM, DE 17, 21, 23, 25. It is clear that the issues presented in the Notre Dame case are nearly indistinguishable from the issues raised in the present case. Thus, the outcome of the appeal in the Notre Dame case would most certainly affect the outcome of this case by narrowing the issues and assisting in a determination of the questions of law involved—which are novel questions in this Circuit.
2

case 1:12-cv-00159-JD-RBC document 61 filed 03/14/13 page 3 of 4
Second, proposed rules relative to the preventative care coverage final regulations, 77 Fed. Reg. 8725 (Feb. 15, 2012), recently issued, which simplified the definition of “religious employer” and created accommodations for nonprofit religious organizations, including religious institutions of higher learning. See 78 Fed. Reg. 8456 (Feb. 6, 2013); http://cciio.cms.gov/ resources/factsheets/womens-preven-02012013.html (last visited March 12, 2013). Comments on the proposed rules are due on or before April 8, 2013. Id. These proposed rules, if adopted, would likely spill into every aspect of the present case and necessitate a substantively different legal analysis than if the case were decided now. See e.g., Geneva College v. Sebelius, No. 2:12cv-00207, 2013 WL 838238, *14 (W.D. Pa. Mar. 6, 2013) (holding that the proposed rules appear to exempt Geneva College, a nonprofit religious organization, and determining that its claims, although ripe when the case was filed, are not ripe now).
In light of the recent events and given the time and expense involved in such complex litigation, moving forward on the present case seems inefficient for all involved and a stay pending the outcome of these matters might be appropriate. See e.g., Finova Capital Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898 (7th Cir. 1999) (noting that “[a]lthough federal courts have a ‘virtually unflagging obligation’ to exercise the jurisdiction conferred on them by Congress, in exceptional cases, a federal court should stay a suit and await the outcome of parallel proceedings as a matter of ‘wise judicial administration, giving regard to the conservation of judicial resources and comprehensive disposition of litigation.’”) (citations omitted). However, in order to make this determination, it is necessary to consider the input of counsel regarding the appropriateness of an extended stay of the proceedings given that identical issues now pend before the Seventh Circuit and given the issuance of the proposed rules relative
3

case 1:12-cv-00159-JD-RBC document 61 filed 03/14/13 page 4 of 4

to the preventative care regulations. Accordingly, counsel shall file a joint report with the Court on or before April 12, 2013
indicating their respective positions concerning a stay of the case. While the Court awaits the joint report, the Court STAYS the case for a period of no more than 45 days from today’s date. See e.g., Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (noting that the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants; and, how this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance). Such stay may be extended by order of the Court after consideration of the parties’ joint report addressing the issue.

SO ORDERED. ENTERED: March 14, 2013

/s/ JON E. DEGUILIO Judge United States District Court

4

 
 case 1:12-cv-00159-JD-RBC document 62 filed 04/01/13 page 1 of 6

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DIOCESE OF FORT WAYNE-SOUTH BEND, )

INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, in her official capacity )

as Secretary of the U.S. Department of Health and )

Human Services, et al.,

)

)

Defendants.

)

Case No. 1:12-CV-159 JD

ORDER

On May 21, 2012, Plaintiffs filed a 9-count complaint against the U.S. Departments of

Treasury, Labor, and Health and Human Services and their respective Secretaries seeking relief

from government action (the Patient Protection and Affordable Care Act) requiring Plaintiffs, all

nonprofit entities who adhere to the tenants of the Catholic faith, to provide or facilitate

abortion-inducing drugs, contraceptive services and sterilization (characterized as “preventative

care”) through its health plans [1:12-cv-159, DE 1]. Assuming the Plaintiffs meet the safe-

harbor provision, the Plaintiffs’ next insurance plans begin January 2014, with the exception of

Our Sunday Visitor, Inc. which has an insurance renewal date of October 2013. Id. Defendants

have moved for dismissal of the complaint on the basis that the Court lacks jurisdiction because

Plaintiffs lack standing and the case is not ripe [1:12-cv-159, DE 26]. The motion is fully

briefed. The case has since been temporarily stayed [1:12-cv-159, DE 61] while the Court

awaits the filing of a joint report from the parties providing their respective positions on an

case 1:12-cv-00159-JD-RBC document 62 filed 04/01/13 page 2 of 6
extended stay of the proceedings given that identical issues now pend before the Seventh Circuit1 and given the issuance of the proposed rules relative to the preventative care regulations.2
Now pending before the Court is Plaintiffs’ motion to consolidate [1:12-cv-159, DE 44, DE 45] the underlying case with another case pending against the same defendants, Tonn and Blank Construction LLC v. Sebelius, et al., No. 1:12-cv-325 (“Tonn and Blank case”). Plaintiffs believe consolidation is appropriate because the Plaintiffs are represented by the same law firm in both cases, Tonn and Blank is a wholly-owned subsidiary of Franciscan Alliance, Inc. (one of the Plaintiffs in the underlying action), and the same Defendants and government regulation are involved in both lawsuits. Tonn and Blank supports the consolidation request [1:12-cv-159, DE 44 at 3; 1:12-cv-325, DE 9].
Defendants oppose the motion to consolidate [1:12-cv-159, DE 46] arguing that at this stage of the litigation the Court is presented with entirely different issues and questions of law in the two pending cases, despite the fact that both cases raise similar legal claims and challenge the enforcement of the same regulation. The Defendants do not oppose the transfer of the cases to the same judge—which has already been accomplished for purposes of judicial efficiency given the similarities in the actions [1:12-cv-159, DE 47].
Discussion Federal Rule of Civil Procedure 42(a) provides that: “If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid
1See University of Notre Dame v. Kathleen Sebelius, et al., No. 3:12-cv-253-RLM, 2012 WL 6756332 (N.D. Ind. Dec. 31, 2012), Appellate No. 13-1479.
2See 78 Fed. Reg. 8456 (Feb. 6, 2013).
2

case 1:12-cv-00159-JD-RBC document 62 filed 04/01/13 page 3 of 6
unnecessary cost or delay.” Thus, the issue of common questions of law or fact is a prerequisite for any consolidation. Id.
The primary purpose of consolidation is to promote convenience and judicial economy without causing prejudice to the parties. See Adams v. Northern Indiana Public Service Co., No. 2:10-CV-469, 2012 WL 2375324, *1 (N.D. Ind. June 22, 2012); Miller v. Wolpoff & Abramson, LLP, No. 1:06-CV-207-TS, 2007 WL 2473431, *2 (N.D. Ind. Aug. 28, 2007). The court should consider whether the risks of prejudice and possible confusion are overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on the parties, witnesses and available judicial resources posed by multiple lawsuits, and the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned. Adams, 2012 WL 2375324, *1 (citations omitted). Rule 42 is designed to encourage consolidation and is a “managerial device [that] makes possible the streamlined processing of groups of cases, often obviating the need for multiple lawsuits and trials.” Miller, 2007 WL 2473431, *2 (quoting 8 James W. Moore, et al., Moore’s Federal Practice § 42.10, at 42-8 (3rd ed. 2005)). The decision to consolidate under Rule 42 is within the discretion of the trial judge. Blue Cross Blue Shield of Mass., Inc. v. BCS Ins. Co., 671 F.3d 635, 640 (7th Cir. 2011).
A close look at the Tonn and Blank case reveals that it and the underlying case involve different outcome determinative facts which will require a distinct legal analysis in each case as to each Plaintiff in order to decide the issues raised. Most obvious is the fact that Tonn and Blank is a for-profit entity that is not eligible for the temporary safe harbor provision [1:12-cv325, DE 1 at 9]; whereas, Plaintiffs in the underlying action may meet the safe harbor provision [1:12-cv-159, DE 1, DE 30]. Moreover, unlike Plaintiffs in the underlying action, Tonn and
3

case 1:12-cv-00159-JD-RBC document 62 filed 04/01/13 page 4 of 6
Blank confirm that as a for-profit entity they cannot satisfy the definition of a religious employer [1:12-cv-325, DE 1 at 9]. While Tonn and Blank is currently providing preventative care services to which it objects [1:12-cv-325, DE 1 at 10], the Plaintiffs in the underlying case are not [1:12-cv-159, DE 30 at 20, 23]. Further, Defendants admit that they do not intend to claim that Tonn and Blank lacks standing or that its claims are unripe [1:12-cv-159, DE 46 at 2], which is the procedural argument raised by Defendants in their motion to dismiss the underlying action against the nonprofit entities [1:12-cv-159, DE 26, DE 27]. Instead, Defendants are addressing the merits of Tonn and Blank’s claims (as they have done in their motion to dismiss), and they are not contesting standing or ripeness [1:12-cv-325, DE 24, DE 25].
Not only do the two cases present largely unrelated questions of law at this stage, but the cases are differently situated from a procedural standpoint. Relative to the underlying case, as the Court indicated, the case is temporarily stayed because identical issues now pend before the Seventh Circuit in University of Notre Dame v. Kathleen Sebelius, et al., Appellate No. 13-1479 and because the issuance of the proposed rules are applicable to nonprofit companies like Plaintiffs in the underlying action. If the stay is lifted, then the Court would need to address the procedural arguments raised by Defendants in their motion to dismiss. Yet, relative to the Tonn and Blank case, the Court has issued an agreed preliminary injunction order given that the Seventh Circuit has twice granted similar relief pending appeal to other similarly situated parties. See Grote v. Sebelius, No. 13-1077, 2013 WL 362725, at *4 (7th Cir. Jan. 30, 2013); Korte v. Sebelius, No. 12-3841, 2012 WL 6757353, at *4-5 (7th Cir. Dec. 28, 2012). Further, a request to stay the Tonn and Blank case pending the resolution of Grote and Korte is currently pending for the Court’s consideration [1:12-cv-325, DE 38]—given that Grote and Korte involved for-profit
4

case 1:12-cv-00159-JD-RBC document 62 filed 04/01/13 page 5 of 6
companies, similar to Tonn and Blank. Thus, it is evident that these two cases are proceeding on different courses which would make consolidation impractical.
While it is true that consolidation may be appropriate when cases involve a common question of law or fact, consolidation in the manner proposed by the Plaintiffs would not permit the most effective management of these cases while securing the “just, speedy, and inexpensive determination” of each case without risk of unfair prejudice to the litigants. See Fed. R. Civ. P. 1, 8(e); A. Bauer Mech., Inc. v. Joint Arbitration Bd. of Plumbing Contractors’ Assoc. and Chi. Journeymen Plumbers’ Local Union 130, U.A., 562 F.3d 784, 790 (7th Cir. 2009) (internal citations and citations omitted); Griffin v. Foley, 542 F.3d 209, 217 (7th Cir. 2008) (“[d]istrict court judges, because of the very nature of the duties and responsibilities accompanying their position, possess great authority to manage their caseload.”) (citations omitted). In fact, consolidating the underlying case with the Tonn and Blank case would do nothing to promote judicial efficiency given the distinct circumstances facing Plaintiffs in the two cases. These differing circumstances will require wholly separate legal considerations in order to determine whether Defendants are able to enforce the contested regulations against each Plaintiff. As such, inconsistent rulings in the cases are also unlikely.
Moreover, the parties would likely be prejudiced by any consolidation, given the distinct procedural posture of the cases and the likely delay to be caused by combining distinct legal issues into one case. While it is true that the cases contest the same government regulation as violating similar laws, the problem is that the legal analysis will not be the same in both cases. Consolidation would likely lead to a confusion of the issues and make disposition of the cases by way of trial or dispositive motion unnecessarily complex. Should future developments suggest
5

case 1:12-cv-00159-JD-RBC document 62 filed 04/01/13 page 6 of 6 otherwise, the Court can revisit the subject of consolidation. However, given the above considerations, the Court, in its discretion, declines to consolidate the instant action with the Tonn and Blank case.
SO ORDERED. ENTERED: April 1, 2013
/s/ JON E. DEGUILIO Judge United States District Court
6

 
 case 1:12-cv-00159-JD-RBC document 70 filed 07/31/13 page 1 of 2

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DIOCESE OF FORT WAYNE-SOUTH BEND, )

INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, in her official capacity )

as Secretary of the U.S. Department of Health and )

Human Services, et al.,

)

)

Defendants.

)

Case No. 1:12-CV-159 JD

ORDER

Having considered Plaintiffs and Defendants’ Joint Report Concerning Case Status and

Agreed-Upon Schedule [DE 69], the Court LIFTS the stay and ADOPTS the following pretrial

schedule:

Due Date

Action

Friday, September 6, 2013 Plaintiffs file any Amended Complaint and any Motion for Preliminary Injunction (leave granted to file 40 page brief1)

Friday, September 27, 2013

Defendants file Response to Plaintiffs’ Motion for Preliminary Injunction and Defendants’ to file any Answer or Motion to Dismiss and/or for Summary Judgment (leave granted to file 50 page brief)

Friday, October 11, 2013

Plaintiffs file Preliminary Injunction Reply, Response to Defendants’ Motion to Dismiss and/or for Summary Judgment, and any Cross-Motion for Summary Judgment (leave granted to file 60 page brief)

Friday, November 1, 2013

Defendants file Motion to Dismiss and/or for Summary Judgment Reply and Response to Plaintiffs’ Cross-Motion for Summary Judgment (leave granted to file 50 page brief)

1Where this order grants leave to file an oversized brief, the brief shall comply with N.D. Ind. L.R. 7-1(e).

case 1:12-cv-00159-JD-RBC document 70 filed 07/31/13 page 2 of 2

Due Date
Friday, November 15, 2013

Action
Plaintiffs file Cross-Motion for Summary Judgment Reply (leave granted to file 25 page brief)

Given the Plaintiffs’ stated intention to file an Amended Complaint and the parties’ agreement to allow Plaintiffs to do so, the Court DENIES WITH LEAVE TO RE-FILE the Defendants’ Motion to Dismiss [DE 26] and Motion for Oral Argument on the Motion to Dismiss [DE 37]. Should no Amended Complaint be filed as represented, then the Court will consider whether reinstatement of those motions is appropriate.

SO ORDERED. ENTERED: July 31, 2013
Judge

/s/ JON E. DEGUILIO United States District Court

2

 
 case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 1 of 74

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DIOCESE OF FORT WAYNE-SOUTH BEND, INC.; CATHOLIC CHARITIES OF THE DIOCESE OF FORT WAYNE-SOUTH BEND, INC.; SAINT ANNE HOME & RETIREMENT COMMUNITY OF THE DIOCESE OF FORT WAYNE-SOUTH BEND, INC.; FRANCISCAN ALLIANCE, INC.; SPECIALTY PHYSICIANS OF ILLINOIS, LLC; UNIVERSITY OF SAINT FRANCIS; and OUR SUNDAY VISITOR, INC.,

Plaintiffs, v.

Case No. 1:12-cv-159-JD-RBC

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 the Treasury; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; U.S. DEPARTMENT OF LABOR; and U.S. DEPARTMENT OF THE TREASURY,

Defendants.

AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL 1. This lawsuit is about one of America’s most cherished freedoms: the freedom to

practice one’s religion without government interference. It is not about whether people have a

right to abortion-inducing products, sterilization, and contraception. Those products and services

are widely available in the United States, and nothing prevents the Government itself from

making them more widely available. Here, however, the Government seeks to require

COI-1494593

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 2 of 74
Plaintiffs—all of which are Catholic entities—to violate their sincerely-held religious beliefs by providing, paying for, and/or facilitating access to those products and services. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act (“RFRA”), safeguard religious entities from such overbearing and oppressive governmental action. Plaintiffs, therefore, seek relief in this Court to protect this most fundamental of American rights.
2. Plaintiffs provide a wide range of spiritual, educational, and social services to members of their communities, Catholic and non-Catholic alike. Plaintiff Diocese of Fort Wayne–South Bend, Inc. (the “Diocese”), not only provides pastoral care and spiritual guidance for nearly 160,000 Catholics, but also serves individuals throughout the Fort Wayne-South Bend area through its schools and multiple charitable programs. The Diocese’s programs serve those who are most often overlooked in the community, including those who are homeless, hungry, and elderly. Likewise, Plaintiff Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. (“Catholic Charities”) offers a host of social services—including access to free food, adoption and pregnancy services, refugee resettlement, immigration services, foreclosure prevention, and senior employment programs—to thousands in need throughout the Fort Wayne-South Bend area. Plaintiff Saint Anne Home & Retirement Community of Diocese of Fort Wayne-South Bend, Inc. (“Saint Anne Home”) provides quality and compassionate care to the aged through residential apartments, rehab suites, adult day services, and a nursing facility with specialized dementia and Alzheimer’s care. Plaintiff Franciscan Alliance (“Franciscan”) provides regional health services in Indiana and Illinois, providing care to more than 100,000 inpatients and performing more than 3.5 million outpatient services annually—while remaining faithful to Catholic and Franciscan values. Plaintiff Specialized Physicians of Illinois, LLC (“Specialty Physicians”) provides a
-2-
COI-1494593

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 3 of 74
myriad of physician specialist services in the South Suburban Chicago area. For its part, Plaintiff University of Saint Francis (“Saint Francis” or “University”) offers a Catholic, Franciscansponsored liberal arts education to nearly 2,300 undergraduate and graduate students while also serving the larger community through its Center for Service Engagement. Moreover, Plaintiff Our Sunday Visitor, Inc. (“Our Sunday Visitor”) publishes and markets religious periodicals and other education resources and provides offertory solutions to Catholic parishes throughout the United States.
3. Plaintiffs’ work is in every respect guided by and consistent with Roman Catholic belief, including the requirement that they serve those in need, regardless of their religion. This is perhaps best captured by words attributed to Saint Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Benedict has more recently put it, “[L]ove for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Or as Cardinal James Hickey, former Archbishop of Washington, once commented on the role of Catholic educators: “We do not educate our students because they are Catholic; we educate them because we are Catholic.” Thus, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
4. Catholic Church teachings also uphold the firm conviction that sexual union should be reserved to married couples who are open to the creation of life; thus, artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine.
-3-
COI-1494593

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 4 of 74
5. Defendants have promulgated various rules (collectively, “the U.S. Government Mandate”) that force Plaintiffs to violate their sincerely-held religious beliefs. These rules, first proposed on July 19, 2010, require Plaintiffs and other Catholic and religious organizations to provide, pay for, and/or facilitate insurance access to abortion-inducing products, sterilization, and contraception, in violation of their sincerely-held religious beliefs. In response to the intense public criticism that the Government’s original proposal provoked, including by some of the current Administration’s most ardent supporters, the Government proposed changes to the rules that, it asserted, were intended to eliminate the substantial burden that the Mandate imposed on religious beliefs. In fact, however, these changes made that burden worse by significantly increasing the number of religious organizations subject to the U.S. Government Mandate, and by driving a wedge between religious organizations, such as Plaintiff Diocese, and their equally religious charitable arms, such as Plaintiff Catholic Charities. Reversing course from its original form, the U.S. Government Mandate now prohibits the Diocese from ensuring that all of its religious affiliates provide health insurance consistent with Catholic doctrine.
6. In its final form, the U.S. Government Mandate contains three basic components: 7. First, it requires employer group health plans to cover, without cost-sharing requirements, all “FDA-approved contraceptive methods and contraceptive counseling”—a term that includes abortion-inducing products, contraception, sterilization, and related counseling and education. 8. Second, the Mandate creates a narrow exemption for certain “religious employers,” defined to include only organizations that are “organized and operate[] as a nonprofit entity and [are] referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” The referenced Code section does not, nor is it intended to, address religious liberty.
-4-
COI-1494593

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 5 of 74
Instead, it is a paperwork-reduction provision that addresses whether and when tax-exempt nonprofit entities must file an annual informational tax return, known as a Form 990. As the Government has repeatedly affirmed, this exemption is intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.” 78 Fed. Reg. 8461, 39874. Consequently, the only organizations that qualify for the exemption are “churches, synagogues, mosques, and other houses of worship, and religious orders.” Id. at 8461. This is the narrowest “conscience exemption” ever adopted in federal law. It grants the Government broad discretion to sit in judgment of which groups qualify as “religious employers,” thus favoring certain religious organizations over others and entangling the Government in matters of religious faith and practice.
9. Third, the U.S. Government Mandate creates a second class of religious entities that, in the Government’s view, are not sufficiently “religious” to qualify for the “religious employer” exemption. These religious entities, deemed “eligible organizations,” are subject to a so-called “accommodation” that is intended to eliminate the burden that the Mandate imposes on their religious beliefs. The “accommodation,” however, is illusory: it continues to require “eligible organizations” to participate in a new employer-based scheme to provide, pay for, and/or facilitate access to the objectionable products and services for their employees.
10. In particular, Plaintiffs Catholic Charities, Saint Anne Home, Franciscan, Specialty Physicians, Saint Francis, and Our Sunday Visitor do not qualify under the Government’s narrow definition of “religious employers,” even though they are religious organizations under any reasonable definition of the term. Instead, they are “eligible organizations” subject to the socalled “accommodation.” But notwithstanding the “accommodation,” these Plaintiffs are required to enter into a contract with an insurance company (or, for self-insured organizations, a
-5-
COI-1494593

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 6 of 74
third party administrator), which, as a direct result, is required to provide or procure abortioninducing products, contraception, sterilization, and related counseling for Plaintiffs’ employees. Consequently, the religious organizations’ actions are the trigger and but-for cause of the provision of the objectionable products and services. Plaintiffs cannot avoid facilitating the provision of the objectionable products and services—for example, by contracting with an insurance company that will not provide or procure the objectionable products and services or even dropping their health-insurance plans altogether—without subjecting themselves to crippling fines and/or lawsuits by individuals and governmental entities.
11. Plaintiffs, moreover, must facilitate the provision of the objectionable services in other ways that further exacerbate their religiously impermissible cooperation in the provision of the objectionable products and services. For example, in order to be eligible for the so-called “accommodation,” Plaintiffs must provide a “certification” to their insurance provider setting forth their religious objections to the Mandate. The provision of this “certification,” in turn, automatically triggers an obligation on the part of the insurance provider to provide or procure the objectionable products and services for Plaintiffs’ employees. A religious organization’s self-certification, therefore, is a trigger and but-for cause of the provision of the objectionable products and services.
12. In addition, notwithstanding the “accommodation,” the U.S. Government Mandate “requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage.” Comments of U.S. Conference of Catholic Bishop, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013NPRM-Comments-3-20-final.pdf. The Government asserts that the provision of the objectionable products and services will be “cost-neutral.” This assertion, however, ignores the
-6-
COI-1494593

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 7 of 74
regulatory and administrative costs that will inevitably force insurance companies and third party administrators to increase the prices they charge religious employers subject to the “accommodation.” The Government’s assertion of “cost neutrality” is also based on the implausible (and morally objectionable) assumption that “lower costs” from “fewer childbirths” will offset the cost of the contraceptive services. 78 Fed. Reg. at 8463. More importantly, even if the Government’s assumption were correct, it simply means that premiums previously going toward childbirths will be redirected to contraceptive and related services in order to achieve the (objectionable) goal of “fewer childbirths.”
13. In short, the “accommodation” requires non-exempt religious organizations, including Plaintiffs, to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related counseling, contrary to their sincerely-held religious beliefs.
14. Plaintiff Diocese of Fort Wayne-South Bend appears to qualify as a “religious employer,” and, as such, is eligible for the “religious employer” exemption. Nonetheless, the U.S. Government Mandate likewise requires the Diocese to act in violation of the Diocese’s Catholic beliefs. In particular, the Diocese operates a self-insurance plan that encompasses not only individuals directly employed by the Diocese itself, but, in addition, individuals employed by affiliated Catholic organizations including, but not limited to, Plaintiff Catholic Charities. Because Plaintiff Catholic Charities does not itself appear to qualify as an exempt “religious employer,” the Mandate has forced the Diocese to forego substantial cost savings to maintain the “grandfathered” status of its health plan in order to continue providing a health plan to Catholic Charities’ employees consistent with Catholic doctrine and beliefs.
-7-
COI-1494593

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 8 of 74
15. Otherwise, the U.S. Government Mandate requires that the Diocese must either (1) sponsor a plan that will provide, pay for, and/or facilitate the provision of the objectionable products and services to the employees of Plaintiff Catholic Charities, and other organizations, or (2) expel them from the Diocese’ self-insurance plan, which, in turn, will require Plaintiff Catholic Charities itself to provide, pay for, and/or facilitate access to the objectionable products and services.
16. This aspect of the Mandate reflects a change from the Government’s original proposal of July 19, 2010. That proposal allowed Plaintiff Catholic Charities to remain on the Diocese’ plan, which, in turn, would have shielded it from the Mandate if the Diocese was exempt. See 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012). The Final Rule, in contrast, removes this protection and thereby increases the number of religious organizations subject to the Mandate. And in so doing, the Mandate seeks to divide the Catholic Church, artificially separating its “houses of worship” from its faith in action, directly contrary to Pope Benedict’s admonition that “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.”
17. The U.S. Government Mandate is irreconcilable with the First Amendment, RFRA, the Administrative Procedure Act, and other laws. The Government has not demonstrated any compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortioninducing products, sterilization, and contraception. Nor has the Government demonstrated that the U.S. Government Mandate is the least restrictive means of advancing any interest it has in increasing access to these products and 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. The Government,
-8-
COI-1494593

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 9 of 74
therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these products and services in violation of their sincerely-held religious beliefs.
18. 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
19. Plaintiff Diocese of Fort Wayne-South Bend, Inc. (“Diocese”) is a nonprofit Indiana corporation with its principal place of business in Fort Wayne, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
20. Plaintiff Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. (“Catholic Charities”) is a nonprofit Indiana corporation with its principal place of business in Fort Wayne, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
21. Plaintiff Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend, Inc. (“Saint Anne Home”) is a nonprofit health care and retirement community incorporated in Indiana with its principal place of business in Fort Wayne, Indiana. It is organized exclusively for charitable, religious, and scientific purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
22. Plaintiff Franciscan Alliance, Inc. (“Franciscan”) is a nonprofit hospital system incorporated in Indiana with eleven hospitals in Indiana, two hospitals in Illinois, and its principal place of business in Mishawaka, Indiana. It is organized exclusively for charitable, religious, and scientific purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
-9-
COI-1494593

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 10 of 74
23. Plaintiff Specialty Physicians of Illinois, LLC (“Specialty Physicians”) (formerly known as WellGroup Health Partners, LLC or “WellGroup”), is a nonprofit Illinois limited liability company with its principal place of business in Chicago Heights, Illinois. The sole member of Specialty Physicians is Plaintiff Franciscan. Specialty Physicians is organized exclusively for charitable, religious, and scientific purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
24. Plaintiff University of Saint Francis (“Saint Francis” or “University”) is a nonprofit four-year liberal arts university incorporated in Indiana with its principal place of business in Fort Wayne, Indiana, and a regional campus in Crown Point, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. It is also an educational organization under Section 170(b)(1)(A)(ii) of the Internal Revenue Code.
25. Plaintiff Our Sunday Visitor, Inc. (“Our Sunday Visitor”) is a nonprofit Indiana corporation with its principal place of business in Huntington, Indiana. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
26. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services (“HHS”). She is sued in her official capacity.
27. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
28. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury. He is sued in his official capacity.

COI-1494593

-10-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 11 of 74

29. Defendant U.S. Department of Health and Human Services is an executive agency

of the United States within the meaning of RFRA and the Administrative Procedure Act (“APA”).

30. Defendant U.S. Department of Labor is an executive agency of the United States

within the meaning of RFRA and the APA.

31. Defendant U.S. Department of the Treasury is an executive agency of the United

States within the meaning of RFRA and the APA.

32. 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(c).

33. 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.

34. Plaintiffs have no adequate or available administrative remedy, or, in the

alternative, any effort to obtain an administrative remedy would be futile.

35. This Court has subject-matter jurisdiction over this action under 28 U.S.C.

§§ 1331, 1343(a)(4), and 1346(a)(2).

36. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1).

A. Diocese of Fort Wayne-South Bend, Inc. (“Diocese”)

37. Plaintiff Diocese is the civil law entity for the Diocese of Fort Wayne-South

Bend, which is the local embodiment of the Universal Roman Catholic Church, a community of

the baptized confessing the Catholic faith, sharing in sacramental life, and entrusted since January

2010 to the ministry of Bishop Kevin C. Rhoades. The Diocese encompasses fourteen counties

located in Northeast Indiana, including Allen County, Indiana. The charitable work of the

COI-1494593

-11-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 12 of 74
Diocese is also performed through separate, affiliated corporations, including Catholic Charities and Saint Anne Home.
38. Bishop Rhoades is the sole member of the Diocesan nonprofit corporation. 39. The Diocese, through its eighty-one local community parishes and two oratories situated throughout the Diocese, serves the spiritual needs of its Catholic population of approximately 160,000. 40. Through its parishes, the Diocese ensures the regular availability of the sacraments to all Catholics living in or visiting the Fort Wayne-South Bend area. The Diocese also provides numerous other opportunities for prayer, worship, and faith formation. 41. In 2011, approximately 2,582 adults and youth received formation in the Catholic faith through parish-level and Diocesan classes, lectures, and retreats. 42. In addition to overseeing the sacramental life of its parishes, the Diocese coordinates Catholic campus ministries at five colleges and universities within its borders. 43. Through its parishes, the Diocese also serves the needs of its communities with programs such as chapters of the Saint Vincent DePaul Society, food pantries, soup kitchens, adopt-a-family programs at Christmas, and visits to nursing homes. These parishes serve an indeterminate number of persons who are homeless, hungry, elderly, or otherwise in need of material assistance without regard to whether the recipient is Catholic or non-Catholic. In 2010, the Diocese provided over $1 million dollars in support to such programs. 44. In the fiscal year ending June 30, 2010, the Diocese provided approximately $3.9 million dollars in financial assistance to, among others, Women’s Care Center, Saint Augustine Soup Kitchen, Little Flower Food Pantry, Saint Mary’s Soup Kitchen, and Catholic Charities.

COI-1494593

-12-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 13 of 74

Each of these organizations provides services to individuals from a diversity of faiths, means, and heritages.
45. Neither the Diocese nor its parishes keeps a tally of persons served through the parishes’ outreach programs, nor do they request to know the religious affiliation of those served.
46. Church law (canon law) requires a diocesan bishop to establish Catholic schools based on the principles of Catholic doctrine, with teachers who are outstanding for their correct doctrine and integrity of life, so that schools imparting an education imbued with the Christian spirit are available to the faithful in the diocese. See Code of Canon Law, Canons 802 § 1 and 803 § 2.
47. The Diocese conducts its educational mission through its schools. 48. The first Catholic school opened in Fort Wayne-South Bend in 1846, at least ten years before the city had a public school system. 49. The Diocese currently operates a total of forty-one private, Catholic schools in its geographic territory, including thirty-seven elementary schools and four high schools. 50. Catholic schools within the Diocese have been among those schools nationwide to receive the U.S. Department of Education’s Blue Ribbon Schools Award. 51. Presently the Diocese has approximately 9,829 students enrolled in its elementary schools (K-8) and approximately 3,362 students enrolled in its high schools. Enrollment in Diocesan schools is open to Catholics and non-Catholics. 52. The Diocesan schools serve poor and underprivileged students; approximately 2,712 of its students for the 2012-13 school year qualified for free or reduced lunches under federal guidelines.

COI-1494593

-13-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 14 of 74
53. The Diocese’s educational mission is all the more important in Indiana where recent legislation gives low- to moderate-income families vouchers to transfer their children from a public school to, among others, one of the Diocese’s private schools.
54. To make a Catholic education available to as many children as possible—no matter their faith, means, or heritage—the Diocese expends substantial funds in tuition assistance programs. For example, for the 2011-2012 academic year, the Diocese granted over $2.1 million dollars in financial aid through its four high schools.
55. Diocesan schools also serve minorities. For example, Bishop Luers High School has approximately 32% minority students and Saint Adalbert Elementary School has approximately 91% minority students.
56. The Diocese employs Catholic and non-Catholic teachers in its schools who must have a knowledge of and respect for the Catholic faith, abide by the tenets of the Catholic Church as they apply to that person, exhibit a commitment to the ideal of Christian living, and be supportive of the Catholic faith.
57. The Diocese has approximately 2,502 employees, with over 1,400 classified as full-time (working an average of at least 30 hours per week) and over 1,200 classified as parttime (working an average of less than 30 hours per week).
58. Consistent with Church teachings on social justice, the Diocese makes health insurance benefits available to its religious personnel, seminarians, and full-time employees. Approximately 116 active and retired priests, religious sisters and seminarians of the Diocese, and approximately 1,034 of the Diocese’s full-time lay employees participate in the Diocesan employee health plan.

COI-1494593

-14-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 15 of 74

59. The Diocesan employee health plan is a self-insured plan. That is, the Diocese does not contract with a separate insurance company that provides health coverage to its employees. Instead, the Diocese itself underwrites its employees’ medical costs. The plan is administered by a third party administrator (“TPA”), which handles the administrative aspects of the plan. The Diocese, however, not the TPA, bears the risks for benefits and provides the funds used to pay health-care providers.
60. Plaintiff Catholic Charities also offers coverage through the Diocese’s selfinsurance plan.
61. Consistent with Church teachings, this plan does not cover abortion-inducing products, contraceptives, or sterilization. In limited circumstances, the Diocese’s health plan administrator can override the exclusion of certain drugs commonly used as contraceptives if a physician certifies that they were prescribed with the intent of treating certain medical conditions, not with the intent to prevent pregnancy.
62. The Diocesan health plan meets the Affordable Care Act’s definition of a “grandfathered” plan and includes a statement in plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-1251T(a)(2)(i).
63. In order to maintain the grandfathered status of its health plan, the Diocese foregoes approximately $180,000 a year in increased premiums. The grandfathered Diocesan health plan covers not only the Diocese’s own employees, but also the employees of Plaintiff Catholic Charities.
64. The plan year for the Diocese (and the organizations it insures) begins on January 1st.

COI-1494593

-15-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 16 of 74
B. Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. (“Catholic Charities”)
65. Plaintiff Catholic Charities—a nonprofit corporation affiliated with Plaintiff Diocese—was created in 1922 to provide organized, concerted charitable efforts. Bishop Rhoades is a member of the nonprofit corporation.
66. Catholic Charities provided social services to over 22,500 people in 2011. 67. The more than twelve programs run by Catholic Charities at locations in and around the Fort Wayne-South Bend community provide a panoply of services including the provision of basic needs such as food, housing, and clothing, adoption and pregnancy services, refugee resettlement, immigration services, retired senior volunteer programs, senior employment programs, Hispanic health advocacy, foreclosure prevention, community education, and many other community services. 68. For example, Catholic Charities’ Resource and Referral Services, which distributed over $233,918 in fiscal year 2011, serves as an integral part of the Fort Wayne community’s services by helping families receive assistance for their basic needs, such as housing, utilities, food, clothing, personal products, and bus passes. Resource and Referral Services also helps families that are facing the disconnection of their utilities, but are above the maximum income level to qualify for the Energy Assistance Program. 69. Together, Catholic Charities’ two food pantries served over 15,000 individuals from 2010 to 2011, one-third of who were new to the pantry. When possible, the food pantries distribute to their clients hats, scarves, blankets, mittens, toiletries, personal-care items, nonperishable products, recipes, community referrals, and nutrition and food-handling safety information.

COI-1494593

-16-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 17 of 74
70. In Fort Wayne, Catholic Charities’ Adoption and Pregnancy Services facilitates the placement of newborn infants, in addition to home studies for agency, private, stepparent, relative, special-needs, and international adoptions. Over the years, Catholic Charities has placed more than 1,600 children in homes through its adoption program.
71. Catholic Charities recently entered into an agreement with the U.S. Conference of Catholic Bishops Migration and Refugee Services to participate in the Unaccompanied Alien Children Program, which provides for the release and family reunification and long-term foster care of unaccompanied, undocumented children who have been taken into custody by immigration officials. There are no statistics on this program yet.
72. Catholic Charities’ own Refugee Resettlement program, during fiscal year 20102011, resettled and provided services to a total of 111 refugees. Refugee health advocates and interpreters assisted with approximately 1,051 appointments for infectious disease control.
73. Volunteers from Catholic Charities’ Retired Seniors Volunteer Program (“RSVP”) provide free services to the elderly. According to the Points of Light Institute, during fiscal year 2010-2011, RSVP volunteers provided services to the community that had a privatesector value of over $2.5 million dollars.
74. In addition to serving older adults, in fiscal year 2010-2011, Catholic Charities’ RSVP volunteers provided 900 backpacks filled with school supplies to children in need and lazy-eye screenings for more than 500 children. RSVP volunteers also helped 100 individuals through its new Volunteer Income Tax Assistance program that provides tax assistance to lowincome individuals.

COI-1494593

-17-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 18 of 74
75. Catholic Charities serves people in need without regard to their religion. It does not ask whether the people it serves are Catholic and, therefore, it does not know whether they are Catholic.
76. Catholic Charities does not inquire about the religion of its applicants for employment. As a result, it does not know how many of its employees are Catholic.
77. Catholic Charities’ has thirty-six (36) full-time employees who are offered health insurance through the Diocesan self-insured health plan, which, in accordance with Church teachings, has historically excluded coverage for abortion-inducing products, contraceptives (except when used for non-contraceptive purposes), sterilization, and related education and counseling from its multi-employer health plan.
78. The Diocesan health plan is “grandfathered” within the meaning of the Affordable Care Act. 26 C.F.R. § 54.9815-1251T(a)(2)(i). Every dollar foregone by the Diocese in order to maintain its employee health plan’s grandfathered status is a dollar that cannot be funneled to Catholic Charities in the execution of its programs.
79. 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 does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate.
80. The Catholic Charities plan year (like that of the Diocese) begins on January 1st. C. Saint Anne Home & Retirement Community of Diocese of Fort Wayne-South
Bend, Inc. (“Saint Anne Home”) 81. Plaintiff Saint Anne Home is a nonprofit corporation affiliated with Plaintiff Diocese that provides quality and compassionate care for the aged in a home-like setting within a spiritual environment. Bishop Rhoades is a member of the nonprofit corporation.

COI-1494593

-18-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 19 of 74

82. Saint Anne Home was created by Geneva Davidson who, upon her death, left the residue of her estate in trust to the Diocese with instructions that the money be used to build a home for the aged of the Diocese. On January 3, 1966, groundbreaking ceremonies were held on what is now Saint Anne Home. This home was intended to be a partial solution to the lack of critical housing in the area for the elderly.
83. Since opening, Saint Anne Home has become the benchmark for high-quality health care for the aged in Fort Wayne, Indiana.
84. Today, Saint Anne Home offers residential apartments, a nursing facility, rehab suites, and adult day services. The ninety-five (95) residential apartments include both independent and assisted living. The nursing facility with approximately 164 beds includes specialized programs for Alzheimer’s and dementia care.
85. Saint Anne Home’s Alzheimer’s and dementia care unit provides care for approximately fifty-two (52) people, the majority of which are women.
86. Saint Anne Home serves over 500 people a year. 87. All of Saint Anne Home’s facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time. Saint Anne Home also abides by The National Catholic Bioethics Center’s A Catholic Guide to End-of-Life Decisions: An Explanation of Church Teaching on Advanced Directives, Euthanasia, and Physician-Assisted Suicide. 88. Saint Anne Home’s mission is to “offer[] residents a culture of self-respect and dignity in a Christian atmosphere. Each resident is offered individualized, high quality health care that encourages freedom and independence while preserving their dignity and uniqueness as

COI-1494593

-19-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 20 of 74

creations of God.” This mission is driven by the Catholic belief that all human life is equally valuable and worthy of respect and support.
89. Saint Anne Home’s goal is to maintain the highest level of self esteem and dignity for its residents, and it strives to enrich its residents’ spiritual, social, cognitive, and physical wellbeings.
90. Since opening its doors, Saint Anne Home has been committed to serving the aged of all faiths, and that commitment continues to the present day. The residents at Saint Anne Home also serve the local community through their Tools for Schools program. Residents donate funds that are then used to purchase “tools” for children to use in local elementary schools.
91. Saint Anne Home collects religious census information in order to meet the physical and spiritual needs of its residents, but does not discriminate on the basis of religion. Although the census shows that most residents identify themselves as Catholic, Saint Anne Home does not know or inquire into their religious tenets.
92. Saint Anne Home has approximately 310 employees and does not inquire about the religious persuasion of its applicants for employment. As a result, it does not know how many of its employees are Catholic. Approximately 220 of Saint Anne Home’s employees are eligible for health insurance.
93. Saint Anne Home’s employees are offered health coverage under the Saint Anne Home of the Diocese of Fort Wayne-South Bend Employee Benefit Plan, a self-insured health plan. As a self-insured health plan, Saint Anne Home does not contract with a separate insurance company that provides health coverage to its employees, except for re-insurance coverage for excess claims. Instead, Saint Anne Home itself primarily underwrites its employees’ medical

COI-1494593

-20-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 21 of 74

costs. The plan is administered by a TPA, which handles the administrative aspects of the plan. Saint Anne Home, however, not the TPA, bears the risks for benefits and provides the funds used to pay health-care providers.
94. This health plan does not cover abortion-inducing products, contraceptives, or sterilization.
95. Saint Anne Home’s self-insured health plan has undergone a number of changes and amendments since March 23, 2010, and, accordingly, does not meet the Affordable Care Act’s definition of a “grandfathered” health plan. Additionally, the Saint Anne Home plan has not included and does not include a statement in any plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-1251T(a)(2)(i).
96. Saint Anne Home does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Saint Anne Home does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate.
97. Saint Anne Home’s plan year begins on January 1st. D. Franciscan Alliance, Inc. (“Franciscan”) 98. Plaintiff Franciscan is a nonprofit health system that includes eleven facilities in Indiana, two facilities in Illinois, and a number of support companies for these facilities. It is one of the strongest regional health systems in the country and in the State of Indiana. 99. Performing more than 3.5 million outpatient services and caring for more than 100,000 inpatients annually, Franciscan’s vision is to be a recognized leader in the provision of high quality, value based, compassionate care through collaboration with others in the communities it is privileged to serve.

COI-1494593

-21-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 22 of 74

100. Franciscan’s major service locations have at least 3,500 beds and it has significant market share in the markets where it provides health care.
101. Franciscan, since its founding by Mother Maria Theresia Bonzel in 1875, has been and is faithful to the Catholic Church. For example, one of Franciscan’s core values is that the witness of Franciscan presence throughout the institution encompasses, but is not limited to, joyful availability, compassionate and respectful care, and dynamic stewardship in the service of the Church.
102. Another of Franciscan’s core values is that Christian stewardship is evidenced by the just and fair allocation of human, spiritual, physical, and financial resources in a manner respectful of the individual, responsive to the needs of society, and consistent with Church teachings.
103. All of Franciscan’s facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time.
104. Franciscan’s goal to advocate for those in need is demonstrated by its commitment to providing charity medical care at cost. For example, from January to December of 2011, Franciscan spent over $189.3 million dollars through its various medical care and community service programs helping over 503,000 people living in poverty.
105. Franciscan’s benefits to the broader community—including health screenings; health fairs; programs for children, the elderly, and the community at large; and health professions education—from January to December 2011, benefitted more than 2.3 million individuals at a cost to Franciscan of over $63.2 million dollars.

COI-1494593

-22-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 23 of 74

106. Franciscan specifically serves women through its Franciscan Alliance Spirit of Women membership program, which seeks to bring together women of all ages and backgrounds by motivating and inspiring them to make positive changes in their lives. Franciscan does this through innovative clinical care, education, and wellness programs.
107. In December of 2011, Franciscan was selected by the Center for Medicare & Medicaid Services as one of thirty-two Pioneer Accountable Care Organizations (“ACOs”). ACOs are groups of doctors, hospitals, and other health care providers who come together voluntarily to give coordinated high quality care to their Medicare patients. The goal of coordinated care is to ensure that patients, especially the chronically ill, get the right care at the right time, while avoiding unnecessary duplication of services and preventing medical errors.
108. Franciscan serves individuals of all faiths. Franciscan receives religious information in order to meet the physical and spiritual needs of its patients, but does not discriminate on the basis of religion.
109. Franciscan has approximately 18,000 employees, approximately 600 of which are physicians. Franciscan does not inquire about the religious commitments of its applicants for employment; as a result, it does not know how many of its employees are Catholic.
110. Franciscan’s benefits-eligible employees may participate in a number of health benefits programs, depending on the region in which they work: Central Indiana Region, Northern Indiana Region, Western Indiana Region, and the South Suburban Chicago Region in Illinois.
111. Franciscan’s approximately 4,369 benefits-eligible employees in its Central Indiana Region are offered six (6) Advantage Health Solutions, Inc. fully-insured benefits program options. All six (6) of these Advantage health plans lost their grandfathered status as of

COI-1494593

-23-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 24 of 74

January 1, 2012 after Franciscan added various co-pay and co-insurance provisions to those plans. The Advantage health plan materials also have not included and do not include a statement in plan materials provided to participants or beneficiaries informing them that Franciscan believes they are grandfathered health plans within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i).
112. Franciscan’s approximately 8,719 benefits-eligible employees in its Western Indiana and Northern Indiana Regions are offered six (6) benefits plan options, four (4) of which are self-insured plans administered by Advantage Health Solutions, Inc. (third party administrator), and two (2) of which are Blue Cross Blue Shield of Illinois (“Blue Cross”) fullyinsured benefits plans. All four (4) of the self-insured Advantage plans lost their grandfathered status as of January 1, 2012 after various co-insurance provisions were added to those plans. The Advantage health plan materials have not included and do not include a statement in plan materials provided to participants or beneficiaries informing them that Franciscan believes they are grandfathered health plans within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i). The two (2) Blue Cross fully-insured benefits plans are not grandfathered, and never were, because they were not in existence as of March 23, 2010.
113. Franciscan’s approximately 1,733 benefits-eligible employees in its South Suburban Chicago Region are offered three (3) benefits plan options, two (2) of which are Blue Cross fully-insured benefits plans, and one (1) of which is a self-insured benefits plan that is administered by Blue Cross (third party administrator). All three of these plans lost their grandfathered status as of January 1, 2011 after employee premiums were increased. The Blue Cross health plan materials have not included and do not include a statement in plan materials

COI-1494593

-24-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 25 of 74

provided to participants or beneficiaries informing them that Franciscan believes they are

grandfathered health plans within the meaning of section 1251 of the Affordable Care Act. See,

e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i).

114. For the five (5) Franciscan health plans that are self-insured, Franciscan itself

underwrites its employees’ medical costs. The plans are administered by Advantage Health

Solutions, Inc. (Western Indiana and Northern Indiana Regions) and Blue Cross (South

Suburban Chicago Region), which handles the administrative aspects of the plans. Franciscan,

however, not the third party administrators, bears the risks for benefits and provides the funds

used to pay health-care providers.

115. None of the benefits plans offered by Franciscan covers abortion-inducing

products, contraceptives, or sterilization.

116. Franciscan does not appear to qualify as an entity described in section

6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Franciscan does not qualify

as a “religious employer” under the exemption to the U.S. Government Mandate.

117. All of Franciscan’s employee health benefits plan years begin on January 1st.

E. Specialty Physicians of Illinois, LLC (“Specialty Physicians”)

118. Specialty Physicians (formerly known as WellGroup Health Partners, LLC) is a

nonprofit organization providing specialty healthcare services with five (5) practice sites in Cook

and Will Counties in Illinois. Specialty Physicians is a member managed limited liability

company, of which Franciscan is the sole member.

119. Specialty Physicians endeavors to offer a wide range of testing, treatments and

therapies for patients with circulatory, pulmonary, nervous system and orthopaedic problems.

120. Like its sole member Plaintiff Franciscan, Specialty Physicians is faithful to the

Catholic Church. Specialty Physicians’ core values are that the witness of Franciscan presence

COI-1494593

-25-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 26 of 74

throughout the institution encompasses, but is not limited to, joyful availability, compassionate and respectful care, and dynamic stewardship in the service of the Church.
121. Another of Specialty Physicians’ core values is that Christian stewardship is evidenced by the just and fair allocation of human, spiritual, physical, and financial resources in a manner respectful of the individual, responsive to the needs of society, and consistent with Church teachings.
122. All of Specialty Physicians’ facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time.
123. Specialty Physicians’ commitment to providing care to those in need is demonstrated by the approximately $200,000 in charity care that it provides annually to the residents of Cook and Will Counties, Illinois. Further, Specialty Physicians provides more than $1.2 million a year in uncompensated care.
124. Specialty Physicians serves individuals of all faiths. Specialty Physicians receives religious information in order to meet the physical and spiritual needs of its patients, but does not discriminate on the basis of religion.
125. Specialty Physicians has approximately 342 employees, which includes physicians. Specialty Physicians does not inquire about the religious commitments of its applicants for employment; as a result, it does not know how many of its employees are Catholic.
126. Specialty Physicians’ approximately 317 benefits-eligible employees are offered the choice of a Blue Cross Blue Shield of Illinois (“Blue Cross”) fully-insured health

COI-1494593

-26-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 27 of 74

maintenance organization option, or a Blue Cross fully-insured preferred provider organization option.
127. Blue Cross informed Specialty Physicians that it would not provide health plans without the objectionable services during the current plan year, when the safe harbor applies, unless Specialty Physicians signed an agreement indemnifying Blue Cross against any cost Blue Cross incurs relating to Blue Cross’ obligations to comply with the U.S. Government Mandate. Accordingly, Specialty Physicians is currently indemnifying Blue Cross for any fines assessed against Blue Cross pursuant to the U.S. Government Mandate, and Specialty Physicians has a current financial obligation pursuant to this indemnification agreement.
128. Both of Specialty Physicians’ plans are grandfathered and the plan materials provided to participants or beneficiaries contain a statement that Specialty Physicians believes the plans are grandfathered, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-1251T(a)(2)(i). As of January 1, 2014, Specialty Physicians’ plans will no longer be grandfathered because of changes made to the amount of employee contributions.
129. None of the benefits plans offered by Specialty Physicians cover abortioninducing products, sterilization, or contraceptives.
130. Specialty Physicians’ employee health benefits plan years begin on January 1st. F. University of Saint Francis (“Saint Francis” or “University”) 131. Plaintiff Saint Francis is a nonprofit corporation that confers undergraduate and graduate degrees. The University’s members are the Sisters of Saint Francis of Perpetual Adoration Provincial and her Council. 132. The University was established in 1890 in Lafayette, Indiana as a teacher training school for the Sisters of Saint Francis and transformed into a Catholic, Franciscan-sponsored,

COI-1494593

-27-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 28 of 74

coeducational, liberal arts college in 1940. In 1944, Saint Francis moved to its current location in Fort Wayne, Indiana, and was designated a “university” in 1998.
133. Saint Francis has approximately 2,400 undergraduate and graduate students enrolled, the majority of which are from the Midwest, although students from other regions of the United States and foreign countries attend as well.
134. As described in its mission statement, “Rooted in the Catholic and Franciscan traditions of Faith and Reason, the University of Saint Francis engages a diverse community in learning, leadership and service.” The University’s five widely held Franciscan values are: (1) reverence the unique dignity of each person; (2) encourage a trustful, prayerful community of learners; (3) serve one another, society and the Church; (4) foster peace and justice; and (5) respect creation.
135. At the same time, the University’s commitment to continuous study and improvement is underscored by its participation in the Academic Quality Improvement Program of the Higher Learning Commission, and by the variety of professional accreditations for its academic programs. Quality at the University of Saint Francis is a persistent quest for excellence shaped by the needs of students, professional and academic standards, and best practices.
136. Saint Francis pursues the highest academic achievement in every discipline. To that end, the University is composed of five (5) undergraduate schools—Arts & Sciences, Business, Creative Arts, Health Sciences, and Professional Studies—and one Graduate School. The Graduate School offers degree and certification programs in art, business, education, environmental science, school and mental health counseling, nursing, physician assistant, theology, and psychology. In the past two decades, Saint Francis has conferred more than 5,000 graduate degrees.

COI-1494593

-28-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 29 of 74

137. Nearly half of the University’s students are studying health care, which makes Saint Francis the largest provider of health care graduates in the northern half of Indiana. For example, Saint Francis offers an associate, bachelor, and master’s degree in nursing, in addition to programs such as radiologic technology, physical therapy, and surgical technology.
138. Students currently enrolled in the University’s Crown Point, Indiana campus are exclusively pursuing health care degrees.
139. At the core of the University’s curriculum is the Franciscan value of service to all, and its mission to educate and serve others extends beyond the borders of campus.
140. The Saint Francis community, through its Center for Service Engagement, creates positive change in local, national, and global communities. Saint Francis also acknowledges that although many in its community do not daily experience social justice issues such as hunger, homelessness, poverty, or illiteracy, these issues continue to affect the lives of many in the global community. Through service, God calls the Saint Francis community to work for the common good in the world.
141. Service opportunities through the Center for Service Engagement help nonprofit agencies and organizations maintain and/or expand their programs to those in need, while providing students, faculty, staff, and alumni with opportunities to build awareness, appreciation, and commitment to social justice issues that impact everyone. Through community/volunteer service, service-learning, service days or projects, and service/missions trips, the University is committed to the Franciscan values of “Serve one another, society and the Church” and “Foster Peace and Justice.”
142. For example, during academic year 2010-2011, campus clubs, organizations, and residence hall students engaged in multiple service activities. Campus-wide events included the

COI-1494593

-29-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 30 of 74

3rd Annual “USF Feeds the Fort,” a collection to benefit a local food bank, through which over 34,200 items were collected and approximately $9,000 was raised. The University’s 8th annual MLK Day of Service involved approximately 256 faculty, staff, students, and alumni in service at eighteen local agencies, providing around 910 hours of service.
143. During the 2009-2010 academic year, approximately 1,820 students contributed around 12,125 service hours to alleviating issues related to homelessness, feeding the hungry, and preserving the environment. These service hours aided programs such as Fort Wayne’s Rescue Mission, Habitat for Humanity, Community Harvest Food Bank, Black Pine Animal Park, and Great Tree Canopy Comeback.
144. For its service, the University has been awarded the President’s Volunteer Service Award, created by the President’s Council on Service and Civic Participation.
145. In addition, Saint Francis hosts a number of educational events, lectures, and programs on its campuses that are open to the public. For example, for the past eighteen years the University has hosted a “CEO Forum,” which is a three-quarter day seminar attended by around 500 business people from the community.
146. The University is also committed to providing a quality education to students of all financial backgrounds. More than 99% of the University’s students apply for and receive some form of financial aid, with the Office of Student Financial aid awarding nearly $16 million in institutional grants and scholarships as well as more than $24 million in federal and state grant funds to undergraduate students in the 2010-2011 school year. Over 50% of the University’s students are low income, first generation college attendees who qualify for federal grants.
147. Faith is at the heart of the University’s efforts. The apostolic constitution Ex Corde Ecclesiae, which governs and defines the role of Catholic colleges and universities,

COI-1494593

-30-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 31 of 74

provides that “the objective of a Catholic University is to assure . . . [f]idelity to the Christian message as it comes to us through the Church.”
148. In accordance with the Ex Corde Ecclesiae, Saint Francis believes and teaches that “besides the teaching, research and services common to all Universities,” it must “bring[] to its task the inspiration and light of the Christian message.” “Catholic teaching and discipline are to influence all university activities,” and “[a]ny official action or commitment of the University [must] be in accord with its Catholic identity.” Further, “[i]n a word, being both a University and Catholic, it must be both a community of scholars representing various branches of human knowledge, and an academic institution in which Catholicism is vitally present and operative.”
149. Though committed to remaining a distinctly Catholic institution, the University opens its doors to students, academics, and prospective employees of all faiths and creeds. The majority of the University’s faculty, students, and staff are not Catholic.
150. The University has approximately 2,400 students. Approximately 30% of the undergraduate population is Catholic and approximately 20% of the graduate population is Catholic. The University’s students are not offered a health plan.
151. The University has approximately 413 total faculty and staff members. While approximately 50% of the faculty is Catholic, only 31% of all University employees are Catholic. Saint Francis retains approximately 346 full-time employees eligible for health care benefits.
152. The University’s employees are offered a self-insured health care plan. That is, the University does not contract with a separate insurance company that provides health coverage to its employees. Instead, the University itself underwrites its employees’ medical costs. The plan is administered by a TPA, which handles the administrative aspects of the plan.

COI-1494593

-31-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 32 of 74

The University, however, not the TPA, bears the risks for benefits and provides the funds used to

pay health-care providers.

153. This plan does not cover abortion-inducing products, sterilization, or

contraception.

154. The health plan offered by Saint Francis to its employees was at one point in time

grandfathered under the Affordable Care Act’s definition of a “grandfathered” plan. Changes

made to the University’s employee health plan in 2012, however, caused the plan to lose its

grandfathered status. Going forward, Saint Francis’s employee health plan will not include a

statement in any plan materials provided to participants or beneficiaries that it believes it is a

grandfathered plan, as is required to maintain the status of a grandfathered health plan.

26 C.F.R. § 54.9815-1251T(a)(2)(i).

155. Saint Francis does not appear to qualify as an entity described in section

6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Saint Francis does not

qualify as a “religious employer” under the exemption to the U.S. Government Mandate.

156. The plan year for Saint Francis’ health plan begins on January 1st.

G. Our Sunday Visitor, Inc. (“Our Sunday Visitor”)

157. Plaintiff Our Sunday Visitor is a nonprofit Catholic publishing company located

in Huntington, Indiana. Our Sunday Visitor is comprised of a publishing division and an

offertory solutions division.

158. The publishing division is responsible for the writing and promotion of six (6)

religious periodicals, which include: OSV Newsweekly; Take Out: Family Faith on the Go; The

Catholic Answer; The Priest; My Daily Visitor; and Grace In Action. It is also the official

distributor of the English-language weekly edition of the Vatican’s newspaper L’Osservatore

Romano in this country. In addition to the religious periodicals, Our Sunday Visitor publishes

COI-1494593

-32-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 33 of 74

and markets over 1,800 products including books, parish education resources, and curricula materials.
159. The offertory solutions division offers envelope products and services to Catholic parishes throughout the United States.
160. As a nonprofit company, Our Sunday Visitor serves the Church not only with its products and services, but also by financially supporting charitable activities of other Catholic organizations. The Our Sunday Visitor Institute funds Catholic projects throughout the United States, including projects that address evangelization, catechesis, service to the needy, vocation, and stewardship.
161. For example, the Institute supports a program at Seton Hall University that is designed to encourage graduate students to teach for two years in New Jersey’s poorest Catholic schools while earning their master’s degrees. New Jersey’s poorest Catholic schools serve students of all faiths, in keeping with the Catholic value to serve all.
162. The Institute also supports Bethlehem Farm, Inc., which is a Catholic community in Appalachia dedicated to serving the area’s poor in various ways, including home repair, soup kitchens, and visiting the sick.
163. In the past five years, the Institute has granted approximately $30,000 to seven (7) dioceses in Florida that developed a one year volunteer program for fifteen to twenty-five recent college graduates from throughout the United States to serve in health care, homeless shelters, food banks, prisons, and inner-city Catholic schools.
164. Between its publishing and offertory solutions divisions, Our Sunday Visitor employs approximately 317 benefits-eligible employees. Our Sunday Visitor does not document the religious status of its employees.

COI-1494593

-33-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 34 of 74

165. Our Sunday Visitor’s employees are offered a self-insured health care plan. 166. This plan does not cover abortion-inducing products, sterilization, or contraceptives for non-therapeutic purposes. 167. The health plan offered by Our Sunday Visitor to its employees was at one point in time grandfathered under the Affordable Care Act’s definition of a “grandfathered” plan. Changes made to its employee health plan as of January 1, 2012 caused that plan to lose its grandfathered status. Going forward, Our Sunday Visitor’s employee health plan will not include a statement in any plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-1251T(a)(2)(i). 168. Our Sunday Visitor does not appear to qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Our Sunday Visitor does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate. 169. Our Sunday Visitor’s plan year begins on October 1st. II. STATUTORY AND REGULATORY BACKGROUND A. Statutory Background 170. 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), that “provide[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1).

COI-1494593

-34-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 35 of 74
171. 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.
172. “[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.
173. Federal law provides several mechanisms to enforce the requirements of the Act, including the U.S. Government Mandate. For example:
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

COI-1494593

-35-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 36 of 74

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). 174. 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. 175. 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 abortion-related services. Specifically, it states that “[n]one of the funds made available in this Act [to the

COI-1494593

-36-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 37 of 74
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).
176. 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 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).

COI-1494593

-37-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 38 of 74

177. 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
178. 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 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 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 179. 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. 180. 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 sixteen (16) members who were selected in secret without any public input. At least eight (8) of the

COI-1494593

-38-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 39 of 74

Committee members had founded, chaired, or worked with “pro-choice” advocacy groups (including five (5) different Planned Parenthood entities) that have well-known political and ideological views, including strong animus toward Catholic teachings on abortion and contraception.
181. 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.
182. 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).
183. 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 mix of objective and subjective determinations filtered through a lens of advocacy.” Id. at 232.
184. 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 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

COI-1494593

-39-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 40 of 74

and religious grounds. In response, the chair illustrated her cavalier attitude toward the religiousliberty 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-forWomen-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).
185. 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 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.

COI-1494593

-40-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 41 of 74

186. 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.
187. Shortly after announcing its definition of “preventive care,” the Government proposed a narrow exemption from the 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)).
188. 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 ministerial positions.” Id. at 46,623. It provided no protection for religious universities, elementary and secondary schools, hospitals, and charitable organizations.
189. The sweeping nature of the 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 Donald Wuerl later wrote, “Never before has the government contested that institutions like Archbishop Carroll High

COI-1494593

-41-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 42 of 74

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.”
190. 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.”
191. A month later, under continuing 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 Mandate. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The ANPRM did not revoke the 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 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-advance-notice-ofproposed-rulemaking-on-preventive-services-12-05-15.pdf.

COI-1494593

-42-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 43 of 74

(2) Plaintiffs’ Original Complaint and the Government’s Promise of NonEnforcement
192. On May 21, 2012, Plaintiffs (except for Specialty Physicians) filed suit in the U.S. District Court for the Northern District of Indiana seeking to enjoin the U.S. Government Mandate on the ground that, among other things, it violated their rights of religious conscience under RFRA and the First Amendment. See Diocese of Fort Wayne-South Bend, Inc., et al. v. Sebelius, et al., Docket No. 1:12-cv-00159 (N.D. Ind.). In response to this and similar litigation, the Government promised that “the regulations will change before defendants could ever enforce them against plaintiffs,” Defs.’ Reply Br. Supp. Mot. to Dismiss [Dkt. #42] at 1, and that the Government was planning to “finalize the amendments to the regulations such that they are effective before the end of the temporary enforcement safe harbor.” Defs.’ Br. Supp. Mot. to Dismiss [Dkt. #27] at 10.
193. According to the Government, “the forthcoming amendments [were] intended to address the very issue that plaintiffs raise here by establishing alternative means of providing contraceptive coverage without cost-sharing while accommodating religious organizations’ religious objections to covering contraceptive services.” Id. at 18. Indeed, the Government assured this Court, “[o]nce defendants complete the rulemaking outlined in the ANPRM, plaintiffs’ challenge to the current regulations likely will be moot.” Id. at 20.
194. In response to the Government’s motion to dismiss, Plaintiffs made clear that even if the ANPRM were enacted, it would still require them to provide, pay for, and/or facilitate the provision of objectionable insurance coverage for their employees and, therefore, would not relieve the burden on their religious exercise. Indeed, Plaintiffs submitted six uncontested factual affidavits expressly so stating. See Pls.’ Br. in Opp. [Dkt. #30]; Affidavit of Diocese of Fort Wayne-South Bend, Chief Financial Officer [Dkt. #31] ¶¶ 20-22 (noting that the ANPRM

COI-1494593

-43-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 44 of 74

“force[s the Diocese] to provide, directly or indirectly pay for, or facilitate the provision of

abortifacients, sterilization, and contraception” and that “[i]t is a violation of Catholic doctrine

and the Diocese’s sincerely-held religious beliefs to engage in the facilitation of those services.”);

Affidavit of Saint Anne Home, Director of Human Resources [Dkt. #33] ¶¶ 17-19 (same);

Affidavit of University of Saint Francis, President [Dkt. #34] ¶¶ 18-19 (same); Affidavit of

Franciscan Alliance, Chair [Dkt. #35] ¶¶ 22-25 (same); Affidavit of Our Sunday Visitor,

President [Dkt. #36] ¶¶ 21-24 (same); Affidavit of Catholic Charities, Executive Director [Dkt.

#32] ¶ 7 (noting that Catholic Charities’ employees are covered under the Diocesan employee

health plan).

195. Confronted with these undisputed affidavits, the Government assured the Court

that “the ANPRM is a mere starting point, and plaintiffs have ample opportunity to express their

concerns and help shape the forthcoming amendments,” elaborating: “[t]he entire purpose of

amending the preventive services coverage regulations is to accommodate religious objections

such as those raised by plaintiffs. But plaintiffs simply assume that no such amendment could

ever alleviate the need for judicial review. That assumption is baseless, and prejudges

defendants’ ongoing rulemaking process.” Defs.’ Reply Br. Supp. Mot. to Dismiss [Dkt. #42] at

9 & 11 n.10.

(3) The Government’s Final Offer and the Empty “Accommodation”

196. 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, however,

the NPRM adopted the proposals contained in the ANPRM. 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

COI-1494593

-44-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 45 of 74

‘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-NPRMComments-3-20-final.pdf.
197. Despite this opposition, on June 28, 2013, the Government issued a final rule that adopted substantially all of the NPRM’s proposal without significant change. See 78 Fed. Reg. 39870 (July 2, 2013) (“Final Rule”).
198. The Final Rule makes three changes to the 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 greatly increasing the number of religious organizations subject to the Mandate.
199. 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

COI-1494593

-45-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 46 of 74
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 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.”
200. The “religious employer” exemption, moreover, creates an official, Governmentfavored category of religious groups that are exempt from the Mandate, while denying this favorable treatment to all other religious groups. The exemption applies only to those groups that are “referred 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 fourteen (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 fourteen (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.

COI-1494593

-46-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 47 of 74

201. 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 third party administrator. 26 CFR § 54.98162713A(a). The provision of this self-certification then automatically requires the insurance issuer or third party administrator 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, self-insured 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.
202. This so-called “accommodation” fails to relieve the burden on religious organizations. Under the original version of the Mandate, a non-exempt 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 non-exempt 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-inducing products, contraception, sterilization, and related counseling. Id. § 54.9816-2713A(b)-(c). In both scenarios, Plaintiffs’

COI-1494593

-47-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 48 of 74

decision to provide a group health plan triggers the provision of “free” contraceptive coverage to their employees in a manner contrary to their beliefs. The provision of the objectionable products and services are 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 third party administrator “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”). For selfinsured organizations, moreover, 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 non-exempt religious organizations are the vehicle by which “free” abortion-inducing products, contraception, sterilization, and related counseling are delivered to the organizations’ employees.
203. Needless to say, 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.
204. 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,” Plaintiffs must provide a “certification” to their insurance

COI-1494593

-48-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 49 of 74

provider setting forth their religious objections to the Mandate. The provision of this “certification,” in turn, automatically triggers an obligation on the part of the insurance provider to provide Plaintiffs’ employees with the objectionable coverage. A religious organization’s selfcertification, therefore, is a trigger and but-for cause of the objectionable coverage.
205. The U.S. Government Mandate also requires Plaintiffs to subsidize the objectionable products and services.
206. 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 Plaintiffs will not actually be paying for it, notwithstanding the fact that Plaintiffs’ premiums are the only source of funding that their insurance providers will receive for the objectionable products and services.
207. The Government’s “cost-neutral” assertion, however, is implausible. It rests on the 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 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.
208. 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

COI-1494593

-49-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 50 of 74

redirected to pay for contraceptive products and services. Thus, the objecting employer is still required to pay for the objectionable products and services.
209. For self-insured organizations, the Government’s “cost-neutral” assumption is likewise implausible. The Government asserts that third party administrators required to provide or procure the objectionable products and services will be compensated by reductions in user fees that they otherwise would pay for participating in federally-facilitated health exchanges. See 78 Fed. Reg. 39,882. Such fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third party administrators. Such regulatory regimes, however, do not fully compensate the regulatory entities for the costs and risks incurred. As a result, few if any third party administrators are likely to participate in this regime, and those that do are likely to increase fees charged to the selfinsured organizations.
210. Either way, as with insured plans, self-insured organizations likewise will be required to subsidize contraceptive products and services notwithstanding the so-called “accommodation.”
211. 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.
212. 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 non-exempt religious organization “provided health coverage for its employees through” a plan offered by a separate, “affiliated” organization that was “exempt from

COI-1494593

-50-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 51 of 74

the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [non-exempt entity would be] required to offer contraceptive coverage to its employees.” 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012).
213. For example, Plaintiff Diocese of Fort Wayne-South Bend operates a selfinsurance plan that covers not only the Diocese itself, but other affiliated Catholic organizations—such as Catholic Charities. Under the religious employer exemption that was originally proposed, if the Diocese was an exempt “religious employer,” then affiliated organizations such as Catholic Charities received the benefit of that exemption, regardless of whether they independently qualified as a “religious employer,” because they could continue to participate in the Diocese’s exempt plan. 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.”
214. 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). Because Plaintiff Catholic Charities does not appear to meet the Government’s narrow definition of “religious employer,” it is now subject to the U.S. Government Mandate.
215. Thus, because Plaintiff Catholic Charities is a part of Plaintiff Diocese’s selfinsurance plan, the Mandate has forced Plaintiff Diocese to forego substantial cost savings to maintain the “grandfathered” status of its health plan in order to continue providing a health plan to Catholic Charities’ employees that adheres to Catholic doctrine and beliefs.

COI-1494593

-51-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 52 of 74

216. Because of the Final Rule, Plaintiff Diocese’s only other options would be to (1) sponsor a plan that will provide Catholic Charities and other affiliated Catholic organizations with access to the objectionable products and services, or (2) no longer extend their plans to Catholic Charities and other Catholic organizations thereby subjecting these organizations to massive fines if they do not contract with another insurance provider that will provide the objectionable coverage.
217. The first option forces the Diocese to act contrary to its sincerely-held religious beliefs.
218. The second option not only makes the Diocese complicit in the provision of objectionable coverage, by forcing their affiliates out of their plans and to obtain the objectionable coverage through another insurance provider, but also compels the Diocese to submit to the Government’s interference with their structure and internal operations by accepting a construct that divides churches from their ministries.
219. In this respect, the 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 Mandate seeks to separate these consubstantial aspects of the Catholic faith, treating one as “religious” and the other as not. The Mandate, therefore, deeply intrudes into internal Church governance.
220. 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

COI-1494593

-52-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 53 of 74

Mandate. The U.S. Government Mandate, therefore, requires Plaintiffs to forego substantial cost

savings, act contrary to their sincerely-held religious beliefs, or submit to the Government’s

interference with their structure and internal operations—all of which severely burden Plaintiffs’

exercise of religion.

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
221. 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.”

222. 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.

223. It is a core tenet of Plaintiffs’ religion that abortion, contraception, and

sterilization are serious moral wrongs.

224. Plaintiffs’ Catholic beliefs, therefore, prohibit them from providing, paying for,

and/or facilitating access to abortion-inducing products, contraception, or sterilization.

225. As a corollary, Plaintiffs’ Catholic beliefs prohibit them contracting with an

insurance company or third party administrator that will, as a result, provide or procure the

objectionable products and services to Plaintiffs’ employees.

COI-1494593

-53-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 54 of 74

226. Plaintiffs’ beliefs are deeply and sincerely held. 227. 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 objectionable products and services or else incur crippling sanctions. 228. The U.S. Government Mandate, therefore, imposes a substantial burden on plaintiffs’ religious beliefs. 229. The Mandate’s exemption for “religious employers” does not alleviate the burden. 230. The “religious employers” exemption does not apply to Plaintiffs Catholic Charities, Saint Anne Home, Franciscan, Specialty Physicians, Saint Francis, or Our Sunday Visitor. 231. Although Plaintiff Diocese is a “religious employer,” the Mandate still burdens its sincerely-held religious beliefs by requiring it forego substantial cost savings to maintain the “grandfathered” status of its health care plan in order to provide Plaintiff Catholic Charities and other affiliated organizations with non-objectionable coverage. 232. Otherwise Plaintiff Diocese must either choose to (1) sponsor a plan that will provide Plaintiff Catholic Charities, and other affiliated Catholic organizations, with access to the objectionable products and services, or (2) expel these affiliates from its insurance plan, thereby forcing them into an arrangement with another insurance provider that will, in turn, provide or procure the objectionable products and services. 233. This first alternative violates Plaintiff Diocese’ sincerely-held religious beliefs. 234. The second option compels the Diocese to submit to the government’s interference with its structure and internal operations by accepting a construct that divides churches from their ministries.

COI-1494593

-54-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 55 of 74

235. Thus, the so-called “accommodation” does not alleviate the burden on Plaintiffs’ religious freedom.
236. Notwithstanding the so-called “accommodation,” Plaintiffs are still financially penalized or required to provide, pay for, and/or facilitate access to the objectionable products and services.
237. 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 Mandate.
238. Finally, the Plaintiffs cannot avoid the U.S. Government Mandate without incurring crippling fines. If they eliminate their employee health plans, they are subject to annual fines of $2,000 per full-time employee. If they keep their health plans but refuse to provide or facilitate the objectionable coverage, they are subject to daily fines of $100 a day per affected beneficiary. The fines, therefore, coerce Plaintiffs into violating their religious beliefs.
239. 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
240. 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

COI-1494593

-55-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 56 of 74
organizations who disagree with Plaintiffs’ religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
241. For example, the 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).
242. Similarly, small employers (i.e., those with fewer than 50 employees) are exempt from certain enforcement mechanisms to compel compliance with the Mandate. See 26 U.S.C. §§ 4980D(d) (exempting 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).
243. In addition, the 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 religious-conscience rights of the narrow category of exempt “religious employers,” but not of Plaintiffs and other religious organizations that remain subject to the Mandate.

COI-1494593

-56-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 57 of 74

244. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain 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.
245. 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.
(4) The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
246. The U.S. Government Mandate is not narrowly tailored to serve a compelling governmental interest.
247. 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.

COI-1494593

-57-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 58 of 74

Moreover, these services are widely available in the United States. The 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.
248. 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.
249. 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. Plaintiff 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 the Fort Wayne-South Bend area. Saint Anne Home provides high quality compassionate health care for the aged and mentally infirm whereas Franciscan and Specialty Physicians provide vital medical care and community services in Indiana and Illinois to those who otherwise could not afford these services. Likewise, Saint Francis provides its students with a high-quality education in numerous fields of study including health care, and Our Sunday Visitor, through its Institute, funds Catholic service projects throughout the country. As President Obama acknowledged in his announcement of February 10, 2012, religious organizations like Plaintiffs do “more good for a community than a

COI-1494593

-58-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 59 of 74

government program ever could.” The U.S. Government Mandate, however, puts these good works in jeopardy.
250. 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 Mandate. IV. THE U.S. GOVERNMENT MANDATE THREATENS PLAINTIFFS WITH
IMMINENT INJURY THAT SHOULD BE REMEDIED BY A COURT 251. The U.S. Government Mandate is causing serious, ongoing hardship to Plaintiffs that merits relief now. 252. 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 and its transitional safe harbor, Plaintiffs must comply with the Mandate by the beginning of the next plan year on or after January 1, 2014. 253. For all Plaintiffs (except for Our Sunday Visitor), the next plan year begins on January 1, 2014. 254. For Our Sunday Visitor, the next plan year begins on October 1, 2014. 255. Defendants have given no indication that they will not enforce the essential provisions of the Mandate that impose a substantial burden on Plaintiffs’ rights. Consequently, absent the relief sought herein, Plaintiffs will be required 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. 256. The U.S. Government Mandate is also harming Plaintiffs in other ways. 257. 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

COI-1494593

-59-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 60 of 74
employees. For example, an employer using an outside insurance issuer—such as Franciscan (as to some plans) or Specialty Physicians—must work with actuaries to evaluate its funding reserves, and then negotiate with the insurer to determine the cost of the products and services it wants to offer its employees. An employer that is self-insured—like the Diocese, Franciscan (as to some plans), Saint Anne Home, Saint Francis, and Our Sunday Visitor—after consulting with its actuaries, must similarly negotiate with its third party administrator.
258. 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. The multiple levels of uncertainty surrounding the U.S. Government Mandate make this already lengthy process even more complex.
259. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they may be subject to government fines and penalties. Plaintiffs require time to budget for any such additional expenses.
260. The U.S. Government Mandate and its uncertain legality, moreover, undermine Plaintiffs’ ability to hire and retain employees, thus placing them at a competitive disadvantage in the labor market relative to organizations that do not have a religious objection to the Mandate.
261. 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.

COI-1494593

-60-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 61 of 74

V. CAUSES OF ACTION
COUNT I Substantial Burden on Religious Exercise
in Violation of RFRA
262. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
263. 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. 264. RFRA protects organizations as well as individuals from Government-imposed
substantial burdens on religious exercise.

265. RFRA applies to all federal law and the implementation of that law by any

branch, department, agency, instrumentality, or official of the United States.

266. 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.
267. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion.

268. The Government has no compelling governmental interest to require Plaintiffs to

comply with the U.S. Government Mandate.

269. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
270. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.

271. Plaintiffs have no adequate remedy at law.

COI-1494593

-61-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 62 of 74

272. 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 273. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 274. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 275. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 276. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate practices and speech that are contrary to their religious beliefs. 277. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion. 278. 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. 279. The U.S. Government Mandate is not a neutral law of general applicability because it was passed with discriminatory intent. 280. 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.

COI-1494593

-62-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 63 of 74

281. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
282. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
283. 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.
284. Plaintiffs have no adequate remedy at law. 285. 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 286. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 287. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 288. The First Amendment protects organizations as well as individuals against compelled speech. 289. Expenditures are a form of speech protected by the First Amendment. 290. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious beliefs. 291. 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.

COI-1494593

-63-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 64 of 74

292. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote,

and facilitate education and counseling services regarding these objectionable products and

services.

293. 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.

294. 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.

295. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict

scrutiny.

296. The U.S. Government Mandate furthers no compelling governmental interest.

297. The U.S. Government Mandate is not narrowly tailored to further a compelling

governmental interest.

298. Plaintiffs have no adequate remedy at law.

299. Defendants are imposing an immediate and ongoing harm on Plaintiffs that

warrants relief.

COUNT IV Prohibition of Speech in Violation of the First Amendment

300. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.

301. 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.

COI-1494593

-64-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 65 of 74

302. The 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 third party administrator to provide or procure contraceptive

products and services to Plaintiffs’ employees.

303. Plaintiffs have no adequate remedy at law.

304. 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

305. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.

306. 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.

307. The Establishment Clause also prohibits the Government from becoming

excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices, and

organizational features to determine whether they meet the Government’s favored definition.

308. The “religious employer” exemption violates the Establishment Clause in two

ways.

309. 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.

310. 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

COI-1494593

-65-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 66 of 74
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 fourteen (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 fourteen (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.
311. Plaintiffs have no adequate remedy at law. 312. 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 313. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 314. The Free Exercise Clause and Establishment Clause and the RFRA 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. 315. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine.

COI-1494593

-66-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 67 of 74
316. 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.
317. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 318. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. 319. Plaintiffs have abided and must continue to abide by the decision of the Catholic Church on these issues. 320. 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. 321. 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. 322. Plaintiff Diocese has further made the internal decision that its affiliated religious entities, including Catholic Charities, should offer their employees health-insurance coverage through the Diocesan plan, which allows the Diocese to ensure that these affiliates do not offer coverage for services that are contrary to Catholic teaching. 323. 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.

COI-1494593

-67-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 68 of 74

324. 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.
325. 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 RFRA.
326. Plaintiffs have no adequate remedy at law. 327. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Illegal Action in Violation of the APA 328. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 329. The APA condemns agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 330. 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. 331. 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).

COI-1494593

-68-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 69 of 74

332. 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.
333. The U.S. Government Mandate nevertheless 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 Weldon Amendment requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
334. The U.S. Government Mandate violates the Weldon Amendment, RFRA, and the First Amendment.
335. The U.S. Government Mandate therefore is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A).
336. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
337. Plaintiffs have no adequate remedy at law. 338. Defendants’ failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII Failure to Conduct Notice-and-Comment Rulemaking in Violation of the APA 339. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 340. The Affordable Care Act expressly delegates to an agency within HHS, the Health Resources and Services Administration, the authority to establish guidelines concerning the “preventive care” that a group health plan and health insurance issuer must provide.

COI-1494593

-69-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 70 of 74
341. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the “preventive care” guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments.
342. Defendants promulgated the “preventive care” guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law.
343. Defendants, instead, wholly delegated their responsibilities for issuing “preventive care” guidelines to a non-governmental entity, the IOM.
344. The IOM did not permit or provide for the broad public comment otherwise allowed under the APA concerning the “preventive care” guidelines that it would recommend. The dissent to the IOM report noted both that the IOM conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
345. Within two weeks of the IOM issuing its women’s “preventive care” guidelines, HHS issued a press release announcing that the IOM’s guidelines regarding women’s “preventive care” were required to be covered under the Affordable Care Act.
346. Defendants have never indicated reasons for failing to enact the “preventive care” guidelines through notice-and-comment rulemaking as required by the APA.
347. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
348. Plaintiffs have no adequate remedy at law.

COI-1494593

-70-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 71 of 74
349. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief. VI. PRAYER FOR 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. Enter an injunction prohibiting the Defendants from enforcing the U.S.
Government Mandate against Plaintiffs; 5. Enter an order vacating the U.S. Government Mandate; 6. Award Plaintiffs attorneys’ and expert fees under 42 U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper.
VII. JURY DEMAND 1. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiffs hereby
demand a trial by jury of all issues so triable.

COI-1494593

-71-

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 72 of 74
Respectfully submitted, this 6th day of September, 2013.
By: s/ Matthew A. Kairis Matthew A. Kairis (OH No. 55502) (Trial Attorney) Brandy H. Ranjan (OH No. 86984) JONES DAY 325 John H. McConnell Blvd., Suite 600 P.O. Box 165017 Columbus, OH 43216 (614) 469-3939
Carol A. Hogan (IL No. 06202430) Brian J. Murray (IL No. 06272767) JONES DAY 77 West Wacker Drive Chicago, IL 60601 (312) 782-8585
Leon F. DeJulius, Jr. (PA No. 90383) Alison M. Kilmartin (PA No. 306422) JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219-2514 (412) 391-3939 Counsel for Plaintiffs
Scott Hall (IN No. 12060-49) HALL & GOODEN LLP 810 South Calhoun Street, Suite 100 Fort Wayne, IN 46802 (260) 422-2035 Counsel for Plaintiffs the Diocese of Fort WayneSouth Bend, Inc., Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc., and Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend, Inc.
W. Patrick Downes (IN No. 4587-45) General Counsel FRANCISCAN ALLIANCE, INC. 1515 South Court Street Crown Point, IN 46307 (219) 662-3754 Counsel for Plaintiffs Franciscan Alliance, Inc. and Specialty Physicians of Illinois, LLC
COI-1494593

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 73 of 74
William T. Hopkins, Jr. (IN No. 8074-02) BARNES & THORNBURG LLP 600 One Summit Square 110 E. Wayne Street Fort Wayne, IN 46802-3119 (260) 425-4644 Counsel for Plaintiff the University of Saint Francis Robert E. Doelling, Jr. (IN No. 14540-49) BURT BLEE DIXON SUTTON & BLOOM, LLP 200 East Main Street, Suite 1000 1st Source Banking Center Fort Wayne, IN 46802 (260) 426-1300 Counsel for Plaintiff Our Sunday Visitor, Inc.
COI-1494593

case 1:12-cv-00159-JD-RBC document 73 filed 09/06/13 page 74 of 74
CERTIFICATE OF SERVICE I hereby certify that on September 6, 2013, I electronically filed the foregoing Plaintiffs’ Amended Complaint with the Clerk of the United States District Court for the Northern District of Indiana using the CM/ECF system, which will send notification of such filing to the following counsel of record: Benjamin Berwick (MA Bar No. 679207) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. N.W. Room 7306 Washington, DC 20530 Tel: (202) 305-8573 Fax: (202) 616-8470 Email: Benjamin.L.Berwick@usdoj.gov Attorney for Defendants
s/ Matthew A. Kairis One of the Attorneys for Plaintiff
COI-1494593

 
 case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 1 of 39

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DIOCESE OF FORT WAYNE-SOUTH BEND, )

INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, in her official capacity )

as Secretary of the U.S. Department of Health and )

Human Services, et al.,

)

)

Defendants.

)

Case No. 1:12-CV-159 JD

Memorandum Opinion and Order

Plaintiffs Diocese of Fort Wayne-South Bend, Inc. (“Diocese”), Catholic Charities of the

Diocese of Fort Wayne-South Bend, Inc. (“Catholic Charities”), Saint Anne Home & Retirement

Community of the Diocese of Fort Wayne-South Bend, Inc. (“Saint Anne Home”), Franciscan

Alliance, Inc. (“Franciscan”), Specialized Physicians of Illinois, LLC (“Specialty Physicians”),

University of Saint Francis (“University”), and Our Sunday Visitor, Inc. (“Our Sunday Visitor”)

(collectively “plaintiffs”), have filed their first amended verified complaint [DE 73] seeking

declaratory and injunctive relief claiming that the government defendants have violated their

rights under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et

seq., the First Amendment of the Constitution of the United States, and the Administrative

Procedure Act, 5 U.S.C. § 500 et seq., by enacting the “contraception mandate” which requires

certain employers to provide coverage for contraception and sterilization procedures in their

employee health care plans on a no-cost-sharing basis, or face stiff financial penalties and the

risk of enforcement actions for the failure to do so. Although the defendants have since moved

to dismiss the amended complaint and the parties have sought summary judgment on the various

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 2 of 39
claims presented [DE 85; DE 95], the Court focuses only on plaintiffs’ request for injunctive relief and defendants’ objection thereto,1 in an effort to prevent the possibility of any unjust enforcement of the contraception mandate against plaintiffs come the first of the year.
For the reasons that follow, plaintiffs have shown that their RFRA claim stands a reasonable likelihood of success on the merits, that irreparable harm will result without adequate remedy absent an injunction, and that the balance of harms favor protecting the religious-liberty rights of the plaintiffs. As such, the Court enters a preliminary injunction barring enforcement of the contraception mandate against plaintiffs.
I. Background The Contraception Mandate
Under the Patient Protection and Affordable Care Act (ACA), employment-based group health plans covered by the Employee Retirement Income Security Act must provide certain types of preventive health services. See 42 U.S.C. § 300gg–13; 29 U.S.C. § 1185d. One provision mandates coverage, without cost-sharing by plan participants or beneficiaries, of “preventive care and screenings” for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [HRSA].” 42 U.S.C. § 300gg–13(a)(4). The HRSA, an agency of the U.S. Department of Health and Human Services (HHS), then delegated the task of developing appropriate preventive-services guidelines to the Institute of Medicine (IOM), an arm of the National Academy of Sciences funded by Congress to
1The Court has also carefully considered the supplemental notices of authority and responses filed by counsel, along with the amicus curiae briefs filed by counsel for the American Civil Liberties Union and the American Center for Law & Justice along with 79 Members of the United States Congress.
2

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 3 of 39
provide the government with independent expert advice on matters of public health. After reviewing the type of preventive services necessary for women’s health and well-being, the IOM recommended that the following preventive services be required for coverage: annual well-woman visits; screening for gestational diabetes and breast-feeding support, supplies, and counseling; human papillomavirus screening; screening and counseling for sexually transmitted infections and human immune-deficiency virus; screening and counseling for interpersonal and domestic violence; and contraceptive education, methods, and services so that women can better avoid unwanted pregnancies and space their pregnancies to promote optimal birth outcomes. See IOM, Clinical Preventive Services for Women: Closing the Gaps, http://www.iom.edu/Reports/ 2011/Clinical-Preventive-Services-for-Women-Closing-the-Gaps.aspx (last visited Dec. 9, 2013). Based on the IOM’s recommendations, the HRSA issued comprehensive guidelines requiring coverage of (among other things) “[a]ll Food and Drug Administration [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling2 for all women with reproductive capacity.” HRSA, Women’s Preventive Services Guidelines: Affordable Care Act Expands Prevention Coverage for Women’s Health and Well–Being, http://www.hrsa.gov/womensguidelines/ (last visited Dec. 9, 2013). These include hormonal methods such as oral contraceptives (the pill), implants and injections, barrier methods, intrauterine devices, and emergency oral contraceptives (Plan B and Ella).3 See FDA, Birth
2The defendants clarify that this requirement does not indicate that such education and counseling need necessarily be ‘in support of’ certain contraception services or contraception in general.
3As the government points out, the list of FDA approved contraceptive methods does not include abortion, however, the terms “abortifacients” or “abortion inducing drugs” as used throughout this opinion refers to plaintiffs’ characterization of contraception that artificially
3

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 4 of 39
Control: Medicines To Help You, http://www.fda.gov/ForConsumers/ByAudience/ForWomen/ FreePublications/ucm313215.htm (lasted visited Dec. 9, 2013). On February 15, 2012, HHS published final regulations incorporating the HRSA guidelines. 77 Fed. Reg. 8725 (Feb. 15, 2012). The agency made the mandate effective in the first plan year on or after August 1, 2012, see 45 C.F.R. § 147.130(b)(1), however, a temporary enforcement safe harbor for nonexempt nonprofit religious organizations that objected to covering contraceptive services was also created, making the mandate effective in the first plan year on or after August 1, 2013 for those qualifying organizations who did not meet the religious employer exemption. 77 Fed. Reg. 872829. The government then undertook new rulemaking during the safe harbor period to adopt new regulations applicable to non-grandfathered4 nonprofit religious organizations with religious objections to covering contraceptive services. Id.
On March 21, 2012, the government issued an Advance Notice of Proposed Rulemaking 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). 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
interferes with life and conception in violation of their religious beliefs. 4“Grandfathered” plans are those health plans that do not need to comply with the ACA’s
coverage requirements because they were in existence when the ACA was adopted and did not make certain changes to the terms of the plan. 42 U.S.C. § 18011. The purpose of grandfathering plans was to allow individuals to maintain their current health insurance plan, to reduce short term disruptions in the market, and to ease the transition to market reforms that phase in over time. See 75 Fed. Reg.. 34,546 (June 17, 2010). The number of grandfathered plans is expected to decline over time.
4

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 5 of 39
employer exemption to ensure that an otherwise exempt employer plan is not disqualified 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). On June 28, 2013, the government issued final rules adopting and/or modifying the proposals in the NPRM. See 78 Fed. Reg. 39,870. The regulations challenged here (the “final rules”) include the new regulations issued by the government and applicable to non-grandfathered, nonprofit religious organizations with religious objections to covering contraceptive services. See 78 Fed. Reg. 39,870.
The final rules state that they “simplify[ied] and clarify[ied]” the definition of “religious employer.” 78 Fed. Reg. 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. 39,874 (codified at 45 C.F.R. § 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 “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3)(A)(i), (iii). 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. 39,874 (citing 78 Fed. Reg. 8461). The 2013 final rules’ amendments to the religious employer exemption apply
5

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 6 of 39
to group health plans and group health insurance issuers for plan years beginning on or after
August 1, 2013. See id. at 39,871.
The 2013 final rules also included an “accommodation” regarding the contraceptive
coverage requirement for group health plans established or maintained by “eligible
organizations.” 78 Fed. Reg. 39,874–80; 45 C.F.R. § 147.131(b)-(f). 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. 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.
45 C.F.R. § 147.131(b); see also 78 Fed. Reg. 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. 39,874. To be relieved of the
obligations that otherwise apply to non-grandfathered, nonexempt 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 self-certification to its issuer
or third party administrator (TPA). Id. at 39,878–79. In the case of an organization with an
insured group health insurance issuer, upon receipt of the self certification, the organization’s
health insurance issuer must provide separate payments to plan participants and beneficiaries for
6

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 7 of 39
contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or it’s plan. Id. at 39,875–77. The government expects that its insurers will have options to achieve cost neutrality, including by way of cost savings from improvements in women’s health and fewer pregnancies, and by including the cost of contraceptive services as an administrative cost that is spread across the issuer’s entire risk pool (excluding plans established or maintained by eligible organizations). Id. at 39,877-78. In the case of an organization with a self-insured group health plan, upon receipt of the self certification, the organization’s TPA is designated as plan administrator and claims administrator for purposes of providing or arranging separate payments for contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or it’s plan. Id. at 39,879–80. Under the 2013 final rules, costs incurred by TPAs relating to the coverage of contraception services for employees of eligible organizations can be reimbursed through an adjustment to Federally-Facilitated Exchange user fees. See 78 Fed. Reg. 39,880. The contraceptive services provided are directly tied to the employer’s insurance policy, and are available only so long as the employees are enrolled in the organization’s health plan. 45 C.F.R. § 147.131(c). The 2013 final rules’ “accommodation” applies to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014. 78 Fed. Reg. 39,872.
Ultimately, several exemptions from the ACA’s coverage requirements have survived the law’s revisions, including exemptions for smaller employers—those with fewer than fifty full time employees, 26 U.S.C. § 4980H, and employer health plans that are grandfathered, 42 U.S.C. § 18011. In addition, religious employers meeting the narrow definition of religious employer
7

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 8 of 39
are exempted from the contraceptive coverage requirement. 45 C.F.R. § 147.131(a). A noncomplying employer who does not meet an exemption will face large fines, specifically, $2,000 per year per full time employee (less 30 employees) for not providing insurance meeting the coverage requirements, 26 U.S.C. § 4980H(c), or $100 per day per employee for providing insurance that excludes the coverage required by the contraception mandate, 26 U.S.C. § 4980D, and will face the risk of other enforcement actions.
As detailed below, the Diocese itself is exempted from the mandate under the religious employer exemption, while the remaining plaintiffs are subject to its accommodation [DE 73 at ¶¶ 10, 14] created for nonprofit religiously affiliated employers—which the Seventh Circuit has characterized as “an attempted workaround whereby the objecting employer gives notice to its insurance carrier and the insurer issues a separate policy with the mandated coverage.” Korte v. Sebelius, 735 F.3d 654, 662 (7th Cir. 2013) (Rovner, J., dissenting). The plaintiffs argue that compliance with the contraception mandate, even via the accommodation, violates their religious exercise rights. Factual Background
The plaintiffs have verified the facts applicable to their claims and request for injunctive relief via various affidavits and declarations5 [DE 76-82; DE 98-1 at 00001-00107].
5Unless specifically noted herein, the government defendants do not contest these facts, which are admitted for preliminary injunction purposes. In addition, no hearing was necessary given the controversy was controlled by the undisputed facts detailed in this order.
8

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 9 of 39
1. The Plaintiffs’ Religious Beliefs In sum, Plaintiffs are all religious entities that are part of the Roman Catholic Church [DE 76 at ¶ 4; DE 77 at ¶¶ 5, 20; DE 78 at ¶ 18; DE 79 at ¶ 7; DE 80 at ¶ 10; DE 81 at ¶ 5; DE 82 at ¶¶ 4, 15]. The Catholic Church teaches that life begins at the moment of conception, that sexual union should be reserved to committed marital relationships in which the husband and wife are open to the transmission of life, and, that artificial interference with life and conception are immoral [DE 76 at ¶ 29]. Thus, plaintiffs believe that human life must be respected and protected absolutely from the moment of conception, that contraception is immoral, and that the termination of pregnancy before viability is an abortion [DE 98-1 at 99-100; DE 98-2 at 978]. Catholic religious teaching also prohibits subsidizing, providing, and/or facilitating coverage for abortion-inducing products, sterilization services, artificial contraceptives, and related counseling services [DE 98-1 at 99]. Thus, offering a health insurance plan that provides coverage for or facilitates access to6 abortion-inducing products, contraceptives, sterilization, and related education and counseling, as permitted by the contraception mandate and its accommodation, is inconsistent with plaintiffs’ core moral and religious beliefs [DE 98-1 at 99104]. Plaintiffs’ provision of health benefits to their employees reflects the Catholic social teaching that healthcare is among those basic rights that flow from the sanctity and dignity of human life [DE 98-1 at 103]. And while the government argues plaintiffs only speculate about the likely impact of any
6Defendants dispute that the regulations require plaintiffs to provide or facilitate the provision of contraceptive services to which plaintiffs object; however, this is plaintiffs’ characterization of what the mandate requires of them were the plaintiffs to complete the selfcertification form and provide a copy of it to their issuer/TPA.
9

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 10 of 39
fines, the plaintiffs assert that as a result of the substantial fines to be imposed for noncompliance with the ACA’s coverage requirements, they may be forced to limit the significant services they provide to the community and they may even be required to downsize [DE 98-1 at 57-58, 64, 72, 77-78, 83, 89, 95]. Further, plaintiffs are concerned that fines will likely result in a reduction of donations because donors will be concerned that their money will be used to pay fines as opposed to being used in support of charitable and other community services. Id.
2. The Plaintiffs The Diocese As Chief Financial Officer of the Diocese, Joseph Ryan, provided sworn statements indicating that the Diocese is the civil law entity for the Diocese of Fort Wayne-South Bend, which is the local embodiment of the Universal Roman Catholic Church, a community which encompasses fourteen counties located in Northeast Indiana and consists of the baptized who profess the Catholic faith, share in sacramental life, and has been entrusted since January 2010 to the ministry of Bishop Kevin C. Rhoades [DE 98-1 at 54]. Bishop Rhoades is also a member of plaintiff Catholic Charities and of Saint Anne Home, and as chairman of their boards, Bishop Rhoades oversees the management of Catholic Charities and Saint Anne Home, which are integral components to the fulfillment of the religious and charitable missions of the Diocese and Catholic Church. Id. at 55. The Diocese itself has approximately 2,502 employees, with over 1,400 classified as full-time (working an average of at least 30 hours per week) and over 1,200 classified as parttime (working an average of less than 30 hours per week) [DE 76 at ¶ 23]. The Diocese employs Catholic and non-Catholic teachers in its schools who must have a knowledge of and respect for
10

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 11 of 39
the Catholic faith, abide by the tenets of the Catholic Church as they apply to that person, exhibit a commitment to the ideal of Christian living, and be supportive of the Catholic faith. Id. at ¶ 22.
Consistent with Church teachings on social justice, the Diocese makes health insurance benefits available to its religious personnel, seminarians, and full-time employees through the Diocesan Health Plan. Id. at ¶ 24. Approximately 116 active and retired priests, religious sisters and seminarians of the Diocese, and approximately 1,034 of the Diocese’s full-time employees participate in the Diocesan employee health plan. Id. The Diocesan Health Plan is a self-insured plan that is administered by a TPA, which handles the administrative aspects of the plan. Id. at ¶ 25. While the Diocese itself meets the religious employer exemption, id. at ¶ 31, the Diocesan Health Plan also includes the employees of non-exempt, affiliated entities such as Catholic Charities. Id. at ¶ 26. 33. Currently, the Diocesan Health Plan also meets the ACA’s definition of a grandfathered plan and includes a statement in plan materials provided to participants or beneficiaries that it believes it is a grandfathered plan, as is required to maintain its grandfathered status [DE 76 at ¶ 27]. But in order to maintain its grandfathered status, the Diocese foregoes approximately $180,000 a year in increased premiums, so that it can protect Catholic Charities from the contraceptive mandate. Id. at ¶¶ 27, 32. Absent maintaining its grandfathered status at great expense, the only other options would be to either (1) sponsor a plan that will provide the employees of Catholic Charities with access to “free” contraception, abortion-inducing products, sterilization, and related counseling, or (2) no longer extend its plan to Catholic Charities, subjecting it to massive fines if it does not contract with another insurance provider that will provide the objectionable coverage [DE 76 at ¶ 33]. The Diocese asserts that the first option forces the Diocese to act contrary to its sincerely-held religious beliefs, and the
11

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 12 of 39
second option makes the Diocese complicit in the provision of objectionable coverage and compels the Diocese to submit to the Government’s interference with its structure and internal operations by accepting a construct that divides churches from their ministries. Id. ¶¶ 33- 36. The Diocesan Health Plan year begins on January 1. Id. at ¶ 28.
Catholic Charities Interim Executive Director of Catholic Charities, Lisa Young, confirms in her affidavit that Catholic Charities is a nonprofit corporation affiliated with the Diocese and created in 1922 to provide organized, concerted charitable efforts [DE 77 at ¶¶ 2, 5, 7]. Catholic Charities’ 36 full-time employees are offered health insurance through the Diocesan Health Plan, which, in accordance with Catholic Church teachings (as Catholic Charities bears witness to), has historically excluded coverage for abortion, contraceptives (except when used for noncontraceptive purposes), sterilization, and related education and counseling from its multiemployer health plan. Id. at ¶¶ 16, 20. And every dollar foregone by the Diocese in order to maintain its employee health plan’s grandfathered status is a dollar that cannot be funneled to Catholic Charities in the execution of its programs, and yet compliance with the contraception mandate or its accommodation would be contrary to Catholic Charities’ beliefs. Id. at ¶¶ 19, 21. Saint Anne Home According to the affidavit of Jason Wardwell, the Director of Human Resources of Saint Anne Home and Retirement Community of the Diocese, Saint Anne Home serves the local community by offering residential apartments, a nursing facility, rehab suites, and adult day services [DE 78 at ¶¶ 2, 8, 14]. It has approximately 310 employees, of which approximately 220 are eligible for health insurance via the Saint Anne Home Health Plan, which is a
12

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 13 of 39
self-insured plan administered by a TPA. Id. at ¶¶ 15, 23. Because the Saint Anne Home Health Plan is not grandfathered and the plan year begins on January 1, at that time it must be prepared to comply with the contraception mandate. Id. at ¶¶ 16, 17.
Saint Anne Home is part of the Roman Catholic Church which bears witness to the Church’s teachings [DE 78 at ¶¶ 18, 22]. All of Saint Anne Home’s facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time. Id. at ¶ 11. Saint Anne Home also abides by The National Catholic Bioethics Center’s A Catholic Guide to End-of-Life Decisions: An Explanation of Church Teaching on Advanced Directives, Euthanasia, and Physician-Assisted Suicide. Id. Accordingly, though Saint Anne Home provides health insurance to its employees, it has historically excluded coverage for abortion, abortion-inducing products, contraceptives, sterilization, and related education and counseling from its health plan. Id. at ¶ 19. To comply with the contraception mandate and its accommodation, in order to avoid significant fines, would violate Saint Anne Home’s religious beliefs by facilitating access to objectionable contraceptive services. Id. at ¶¶ 20-25.
Franciscan Sister Jane Marie Klein, O.S.F., the Chair of Franciscan, provided an affidavit on behalf of the Franciscan Alliance, Inc., establishing that Franciscan is a nonprofit health system that includes eleven facilities in Indiana and two facilities in Illinois [DE 79 at ¶¶ 2, 4]. Franciscan’s benefits-eligible employees may participate in a number of health benefits programs, depending on the region in which they work: Central Indiana Region, Northern Indiana Region, Western
13

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 14 of 39
Indiana Region, and the South Suburban Chicago Region in Illinois. Id. at ¶ 13. Franciscan’s approximately 4,369 benefits-eligible employees in its Central Indiana Region are offered six Advantage Health Solutions, Inc. fully-insured benefits program options that are not grandfathered. Id. at ¶ 14. Franciscan’s approximately 8,719 benefits-eligible employees in its Western Indiana and Northern Indiana Regions are offered six benefits plan options, four of which are self-insured plans administered by a TPA, Advantage Health Solutions, Inc., and two of which are Blue Cross Blue Shield of Illinois fully-insured benefits plans—none of them are grandfathered. Id. at ¶ 15. Franciscan’s approximately 1,733 benefits-eligible employees in its South Suburban Chicago Region are offered three benefits plan options, two of which are Blue Cross Blue Shield of Illinois fully-insured benefits plans, and one of which is a self-insured benefits plan that is administered by the TPA Blue Cross Blue Shield of Illinois—none of the plans have grandfathered status. Id. at ¶ 16. Because Franciscan’s health plans’ years begin on January 1, Franciscan must comply with the contraception mandate by that date. Id. at ¶ 18.
Since its founding in 1875, Franciscan has been faithful to the tenets of the Catholic Church [DE 79 at ¶¶ 7, 19, 23]. All of Franciscan’s facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time. Id. at ¶ 9. Accordingly, none of the benefits plans offered by Franciscan covers abortion, sterilization, or contraceptives, and yet, compliance with the accommodation forces Franciscan to facilitate access to contraceptive products and services antithetical to its Catholic faith. Id. at ¶¶ 20-26.
14

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 15 of 39
Specialty Physicians Sister Jane Marie Klein, O.S.F., also filed an affidavit on behalf of Specialty Physicians establishing that Specialty Physicians is a member managed nonprofit limited liability company providing physician and related healthcare services in Illinois, and its sole member is Franciscan Alliance, Inc. [DE 80 at ¶¶ 2, 4]. The approximately 317 benefits-eligible employees are offered the choice of a Blue Cross Blue Shield of Illinois fully-insured health maintenance organization option, or a BCBSI fully-insured preferred provider organization option. Id. at ¶ 7. As of January 1, 2014, both of Specialty Physicians’ plans will no longer be grandfathered because of changes made to the amount of employee contributions [DE 73 ¶ 128; DE 80 at ¶ 15], which means Specialty Physicians must comply with the contraception mandate by that date or face significant fines [DE 80 at ¶¶ 9, 15]. All of Specialty Physicians’ facilities are operated in a manner that abides by The Ethical and Religious Directives for Catholic Health Care Services as promulgated by the United States Conference of Catholic Bishops and interpreted by the local Bishop and as modified from time to time [DE 80 at ¶ 6]. And because Specialty Physicians is faithful to the Roman Catholic Church and its teachings, see id. at ¶¶ 10, 14, Specialty Physicians has historically excluded coverage for abortion, contraceptives (except when used for noncase contraceptive purposes), sterilization, and related education and counseling from its multi-employer health plan. Id. at ¶ 11. The contraception mandate and its accommodation does not resolve Specialty Physicians’ religious objection to the provision or facilitating access to objectionable contraceptive services. Id. at ¶¶ 12-17.
15

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 16 of 39
Saint Francis University The president of Saint Francis University, Sister Elise Kriss, O.S.F., provided an affidavit indicating that the University is a Catholic, Franciscan-sponsored co-educational, liberal arts college that bears responsibility to witness the Church’s teachings [DE 81 at ¶¶ 2, 5, 28, 32]. Faith is at the heart of the University’s efforts, and the apostolic constitution Ex Corde Ecclesiae, which governs and defines the role of Catholic colleges and universities, provides that “the objective of a Catholic University is to assure . . . [f]idelity to the Christian message as it comes to us through the Church.” Id. at ¶ 20. Saint Francis University has approximately 413 total faculty and staff members, of which approximately 346 full-time employees are eligible for health care benefits. Id. at ¶ 24. The University’s employees (but not its students) are offered a self-insured health care plan, which is administered by a TPA and is not grandfathered, thus it must comply with the contraception mandate on January 1. Id. at ¶¶ 23, 25-27. The current Saint Francis employee health plan complies with Catholic teachings, which means abortion and sterilization are not covered, and contraceptives are not covered when prescribed for contraceptive purposes. Id. at ¶ 29. In fact, Sister Kriss indicates that the University will never provide objectionable services to its employees because such services violate Catholic teachings, Franciscan Values and the moral conscience of the Sisters of Saint Francis. Id. at ¶ 28. Further, the accommodation still forces the University to initiate the provision of objectionable contraceptive benefits to its employees in a manner contrary to Saint Francis’ beliefs. Id. at 31-33. Our Sunday Visitor Gregory Erlandson, President of Our Sunday Visitor, established by way of affidavit that
16

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 17 of 39
Our Sunday Visitor is a nonprofit Catholic publishing company located in Huntington, Indiana which publishes religious periodicals and other parish materials [DE 82 at ¶¶ 2, 4, 5, 15]. Our Sunday Visitor is organized under the Indiana Nonprofit Corporation Act of 1991, it is organized and operated exclusively for the benefit of, and to carry out the purposes of, the Roman Catholic Church, and it is operated in connection with the Diocese. Id. at ¶ 20. Between its publishing and offertory solutions divisions, Our Sunday Visitor employs approximately 317 benefits-eligible employees who are offered a self-insured health care plan that is administered by a TPA. Id. at ¶¶ 11, 12. The plan is not grandfathered and will need to comply with the contraception mandate when its new plan begins on October 1, 2014. Id. at ¶¶ 13, 14.
Because Our Sunday Visitor is a Catholic entity which bears witness to the Church’s teachings in its words and deeds, Our Sunday Visitor’s current employee health plan does not cover abortion and sterilization, or contraceptives that are prescribed for contraceptive purposes (although hormone therapies for non-contraceptive purposes are covered) [DE 82 at ¶¶ 15, 16, 19]. The accommodation does not resolve Our Sunday Visitor’s religious objections to the contraception mandate because it would still require Our Sunday Visitor to facilitate access to products and services antithetical to the Catholic faith or face significant fines. Id. at ¶¶ 18, 22.
II. Preliminary Injunction Standard To obtain a preliminary injunction, the moving party must demonstrate that (1) it has no adequate remedy at law and will suffer irreparable harm if a preliminary injunction is denied; and (2) there is some likelihood of success on the merits of the claim. See Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011). If the moving party meets this threshold burden, the court weighs the competing harms to the parties if an injunction is granted or denied and also
17

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 18 of 39
considers the public interest. See Planned Parenthood of Ind., Inc. v. Comm'r of the Ind. State Dep't of Health, 699 F.3d 962, 972 (7th Cir. 2012); Ezell, 651 F.3d at 694. This equitable balancing proceeds on a sliding-scale analysis; the greater the likelihood of success on the merits, the less heavily the balance of harms must tip in the moving party's favor.7 See Planned Parenthood, 699 F.3d at 972. The aim is to minimize the costs of a wrong decision. See Stuller, Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012).
The appropriateness of a preliminary injunction in this case rests on plaintiffs’ RFRA claim and presents the following issues: does the contraception mandate and accommodation substantially burden the religious exercise rights of the plaintiffs, and if so, has the government discharged its burden of justifying its regulations under strict scrutiny. Here, plaintiffs have shown some likelihood of success on the merits of their RFRA claim, that no adequate remedy at law exists, and that they will suffer irreparable harm without an injunction. And, a weighing of the injunction equities and consideration of the public interest also strongly supports issuance of an injunction at this stage of the litigation.
III. Analysis To begin, for purposes of determining whether a preliminary injunction is appropriate in the instant case, no one questions that the issues presented based on the 2013 final rules are ripe
7As an aside, the government noted an objection to applying the sliding scale approach, arguing that the approach is inconsistent with the Supreme Court’s holding in Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008) requiring a plaintiff to show all of the preliminary injunction factors. But the government also recognized that the undersigned is nonetheless bound to apply the Seventh Circuit’s sliding scale approach to an injunction. In fact, the Seventh Circuit has recently determined that its sliding scale approach is “a variant of, though consistent with, the Supreme Court's recent formulations of the standard . . .” Planned Parenthood of Wisc., Inc. v. Van Hollen, No. 13-2726, 2013 WL 6698596 (7th Cir. Dec. 20, 2013) (citing Winter, 555 U.S. at 20).
18

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 19 of 39
for ruling, that the threat of financial penalty and other enforcement action is sufficient to establish the plaintiffs’ standing to challenge the accommodation, and that plaintiffs—nonprofit religious organizations—exercise religion in the sense that their activities are religiously motivated. The Court will thus consider the appropriateness of injunctive relief in the instant case. Success on the Merits of the RFRA Claim
The RFRA prohibits the federal government from placing substantial burdens on “a person’s exercise of religion,” 42 U.S.C. § 2000bb–1(a), unless it can demonstrate that applying the burden is “in furtherance of a compelling government interest” and is the “least restrictive means of furthering that compelling governmental interest,” id. § 2000bb–1(b). RFRA creates a broad statutory right to case-specific exemptions from laws that substantially burden religious exercise even if the law is neutral and generally applicable, unless the government can satisfy the compelling-interest test. Korte, 735 F.3d at 671-72 (reasoning that with RFRA, Congress expressly required accommodation rather than neutrality) (citation and quotation marks omitted). RFRA is structured as a “sweeping ‘super-statute,’ cutting across all other federal statutes (now and future, unless specifically exempted) and modifying their reach.” Id. at 673 (quoting Michael Stokes Paulsen, A RFRA Runs Through It: Religious Freedom and the U.S. Code, 56 Mont. L. Rev. 249, 253 (1995)).
Once a RFRA claimant makes a prima facie case that the application of a law or regulation substantially burdens his religious practice, the burden shifts to the government to justify the burden under strict scrutiny. Id. (citing Gonzales v. O Centro Espirita, 546 U.S. 418, 428 (2006)). “Congress’s express decision to legislate the compelling interest test indicates that
19

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 20 of 39
RFRA challenges should be adjudicated in the same manner as constitutionally mandated
applications of the test . . .”. Id. (citing O Centro Espirita, 546 U.S. at 430). Thus, in RFRA
litigation, as in First Amendment litigation, “the burdens at the preliminary injunction stage track
the burdens at trial.” Id. (citing O Centro Espirita, 546 U.S. at 429).
1. Substantial Burden
While neither the United States Supreme Court nor any Circuit Courts have had the
opportunity to consider whether the contraception mandate creates a substantial burden on a non-
secular, nonprofit organization’s religious exercise rights given the “accommodation” created for
eligible organizations,8 the Seventh Circuit recently discussed in Korte the substantial burden
analysis in the context of RFRA:
Recall that “exercise of religion” means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc–5(7)(A) (emphases added). At 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.” Wisc. v. Yoder, 406 U.S.
8In fact, not many district courts have had the opportunity to consider this question relative to nonprofit religious organizations, and their conclusions vary. Three courts have upheld the accommodation. See Catholic Diocese of Nashville v. Sebelius, No. 3:13-01303 (M.D. Tenn. Dec. 26, 2013); University of Notre Dame v. Sebelius, No. 3:13-cv-1276-PPS-CAN (N.D. Ind. Dec. 20, 2013) (Simon, C.J.); Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 1:13-cv-01261-EGS (D.D.C. Dec. 19, 2013). While the other courts have found the accommodation to pose a substantial burden. See East Texas Baptist Univ. v. Sebelius, No. 4:12cv-3009 (S.D. Tex. Dec. 27, 2013); Geneva College v. Sebelius, No. 12-0207 (W.D. Pa. Dec. 23, 2013); Southern Nazarene Univ. v. Sebelius, No. CIV-13-1015-F (W.D. Okla. Dec. 23, 2013); Legatus v. Sebelius, No. 12-12061, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013); Roman Catholic Archdiocese of New York v. Sebelius, No. 1:12-cv-02542-BMC, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013); Zubik (and Persico) v. Sebelius, Nos. 13cv1459 and 13cv0303, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013); Geneva College v. Sebelius, No. 2:12-cv-00207, 2013 WL 3071481 (W.D. Pa. June 18, 2013); see also Roman Catholic Archbishop of Washington v. Sebelius, No. 13-1441 (ABJ), 2013 WL 6729515 (D.D.C. Dec. 20, 2013) (drawing a distinction between self insured and group insured plans and granting a preliminary injunction only with respect to a self insured plaintiff despite the fact that all eligible organizations are confronted with the self certification process created by the accommodation).
20

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 21 of 39
205, 218, 92 S.Ct. 1526 (1972). But a burden on religious exercise also arises when the government “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425 (1981); see also Nelson v. Miller, 570 F.3d 868, 878 (7th Cir. 2009); Koger v. Bryan, 523 F.3d 789, 799 (7th Cir. 2008). Construing the parallel provision in RLUIPA, we have held that a law, regulation, or other governmental command substantially burdens religious exercise if it “bears direct, primary, and fundamental responsibility for rendering [a] religious exercise . . . effectively impracticable.” Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003). The same understanding applies to RFRA claims.
Importantly, the substantial-burden inquiry does not invite the court to determine the centrality of the religious practice to the adherent's faith; RFRA is explicit about that. And free-exercise doctrine makes it clear that the test for substantial burden does not ask whether the claimant has correctly interpreted his religious obligations. See United States v. Lee, 455 U.S. 252, 257, 102 S.Ct. 1051 (1982); Thomas, 450 U.S. at 715–16, 101 S.Ct. 1425. 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, 101 S.Ct. 1425. It is enough that the claimant has an “honest conviction” that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion. Id.; see also id. at 715, 101 S.Ct. 1425 (“Thomas drew a [religious] line, and it is not for us to say that the line he drew was an unreasonable one.”).
Checking for sincerity and religiosity is important to weed out sham claims. The religious objection must be both sincere and religious in nature. Cf. United States v. Seeger, 380 U.S. 163, 184–86, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) (military-conscription exemption applies only to objections based on sincerely held religious beliefs as opposed to philosophical views or a personal moral code). These are factual inquiries within the court's authority and competence. But we agree with our colleagues in the Tenth Circuit that the substantial-burden test under RFRA focuses primarily on the “intensity of the coercion applied by the government to act contrary to [religious] beliefs.” Hobby Lobby Stores, Inc., v. Sebelius, 723 F.3d 114, 1137 (10th Cir. 2013). Put another way, the substantial-burden inquiry evaluates the coercive effect of the governmental pressure on the adherent's religious practice and steers well clear of deciding religious questions.
Korte, 735 F.3d at 682-83. With these principles in mind, the Seventh Circuit determined, in
relevant part, that it was a substantial burden on the for profit company plaintiffs and their
21

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 22 of 39
owners to require them to purchase or provide the required contraception coverage (or selfinsure for these services). Korte, 735 F.3d at 668.
In the instant case, the government defendants posit that Korte and other similar for profit plaintiff cases, see, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013); Gilardi v. U.S. Dep't of Health & Human Servs., 733 F.3d 1208 (D.C. Cir. 2013), are distinguishable because the burden on plaintiffs in the instant litigation to comply with the accommodation9 is merely de minimus where they would barely have to modify their behavior by complying with the purely administrative self certification requirement which should take a matter of minutes. Moreover, the government believes that any burden cast upon plaintiffs is too attenuated to constitute a substantial burden.
The Court acknowledges that the burden on plaintiffs to complete and submit a self certification is different than the burden imposed on the Korte plaintiffs. Simply put, these plaintiffs are not required “to contract, arrange, pay, or refer for contraceptive coverage” to which they have religious objections, 78 Fed. Reg. 39,874. Rather the non-exempted plaintiffs must complete a self certification form stating that each is an eligible organization which objects to providing the contraceptive coverage on religious grounds and provide a copy of that self certification to its issuer or TPA, so that the payment for the services can then be provided or arranged for by the issuer or TPA at no cost to plaintiffs. 45 C.F.R. § 147.131(b); 78 Fed. Reg. 39,874-75. But even so, the Court cannot agree with the government that the plaintiffs have not
9Admittedly, the Diocese does not have to submit a self certification on its own behalf because it is considered a religious employer exempted from the contraception mandate. However, the government does not contest the fact that the Diocesan Health Plan currently insures employees of the non-exempt Catholic Charities. The burden placed on the Diocese as a result of these facts, although mostly overlooked by the government, is discussed infra.
22

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 23 of 39
shown at least some reasonable likelihood of success on the merits relative to the showing of a substantial burden as defined in Korte.
According to the Seventh Circuit, the pertinent inquiry for the substantial burden test under RFRA is whether the claimant has an honest conviction that what the government is requiring or pressuring him to do conflicts with his religious beliefs and whether the governmental pressure exerts a sufficiently coercive influence on the plaintiffs’ religious practice. Korte, 735 F.3d at 683; see Hobby Lobby, 723 F.3d at 1137 (“Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.”); Gilardi, 733 F.3d at 1217-18 (“ . . . the burden becomes substantial because the government commands compliance by giving the Gilardis a Hobson’s choice. They can either abide by the sacred tenets of their faith, pay a penalty of over $14 million, and cripple the companies they have spent a lifetime building, or they become complicit in a grave moral wrong.”). And in this case, the government defendants concede that plaintiffs’ religious beliefs are sincerely held. In fact, the plaintiffs’ undisputed affirmations concerning their religious views indicate that their beliefs are indeed sincere and religious in nature. Therefore, the government rests its argument on its belief that plaintiffs cannot establish a substantial burden on plaintiffs’ religious exercise rights where the regulations do not, according to the government, require the plaintiffs to modify their religious behavior.
The plaintiffs have established that the accommodation compels them to facilitate and serve as the conduit through which objectionable contraceptive products and services are ultimately provided to their employees, in violation of their unquestionably sincerely held religious beliefs. While it is true that prior to the ACA’s enactment, plaintiffs had notified their
23

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 24 of 39
insurers/TPAs that objectionable contraceptive services were to be excluded from their health plans, never before had that notification triggered the provision of the services, nor were plaintiffs designating another to provide the services. In other words, the government’s argument relative to the de minimus nature of any burden created by the accommodation is too narrow of a focus. The government’s argument, that the completion of a simple self certification form that takes minutes doesn’t create a substantial burden, misses the point. It is not the mere filling out and submitting the certification that creates a burden. Rather, if plaintiffs choose to provide health insurance coverage for employees (to comply with their own religious tenants and to avoid the ACA’s fines for failing to meet coverage requirements), then they must either directly provide contraceptive services themselves (which are clearly contrary to their religious beliefs) or they must invoke the accommodation and facilitate, indeed in their mind enable, the availability of contraceptive services (which is also contrary to their sincerely held religious beliefs). Thus, although plaintiffs avoid paying for the services, the compulsion to offer group health insurance results in their direct facilitation of insurance coverage and the potential use of contraceptive services by their employees, services which plaintiffs morally oppose. That the accommodation scheme allows the plaintiffs to avoid the costs of such services provides no comfort or relief. It’s the facilitation of the objectionable services, not the related cost, that offends their religious beliefs. Ultimately, the plaintiffs would be forced to modify their behavior and violate their religious beliefs by either giving up their health insurance plans or by providing insurance but taking critical steps to facilitate another’s extension of the objectionable coverage. See Korte, 735 F.3d at 682-83; see also Geneva College v. Sebelius, No. 2:12-cv00207, 2013 WL 3071481 (W.D. Pa. June 18, 2013) (citing Thomas, 450 U.S. at 718). And,
24

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 25 of 39
their failure to comply with insurance requirements or provide contraceptive services results in enormous penalties that would be financially detrimental to their operations likely resulting in the reduction of necessary community services and even layoffs. In short, the government’s accommodation results in the plaintiffs violating their sincerely held religious beliefs, as well as the choice between conformity with the ACA’s requirements or face substantial fines. See Korte, 735 F.3d at 683; see also Southern Nazarene Univ. v. Sebelius, No. CIV-13-1015-F (W.D. Okla. Dec. 23, 2013) (DE 45 at 16) (“The self certification is, in effect, a permission slip which must be signed by the institution to enable the plan beneficiary to get access, free of charge, from the institution’s insurer or third party administrator, to the products to which the institution objects. If the institution does not sign the permission slip, it is subject to very substantial penalties or other serious consequences. If the institution does sign the permission slip, and only if the institution signs the permission slip, institution’s insurer or third party administrator is obligated to provide the free products and services to the plan beneficiary.”).
Thus, given the nature of the analysis utilized, the undersigned believes that Korte may logically be extended to conclude that the completion and submission of the self certification is an alteration in plaintiffs’ behavior such that it constitutes a substantial burden under RFRA. See University of Notre Dame, No. 3:13-cv-1276-PPS-CAN (“Perhaps upon review of this case, Korte will be extended by the Seventh Circuit to say that the filing of a certification is an alteration in Notre Dame’s behavior such that it constitutes a substantial burden under RFRA”); see also Zubik (and Persico) v. Sebelius, Nos. 13cv1459 and 13cv0303, 2013 WL 6118696, at *23-25 (W.D. Pa. Nov. 21, 2013) (“although the ‘accommodation’ legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides contraceptive products,
25

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 26 of 39
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.”). Given Korte’s guidance, the lack of mandatory authority on the precise issue at hand, and the divergence of case holdings demonstrating the difficulty of the issue and the uncertainty of the ultimate decision on the merits, the Court believes that plaintiffs have shown at least some reasonable likelihood of success on the merits relative to the substantial burden analysis. And even if that likelihood was just more than slight, the balance of harms could support injunctive relief.10
The government’s alternative argument is that any burden on plaintiffs’ religious exercise is too attenuated to render it substantial. In summary, the government believes that because plaintiffs are not required to actually contract or pay for contraceptive coverage, any burden is too attenuated to be substantial because plaintiffs are separated by a series of events that must occur before the objectionable contraceptive services would be utilized. Specifically, after receiving the certification from plaintiffs, the TPA or issuer would actually pay for or arrange payment for the contraceptive services should employees independently decide to even use those services.
10See Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 315 (7th Cir. 1994) (“Once the district court determined that [plaintiff’s] likelihood of success on the merits of its claim was slight, it required [plaintiff] to make a proportionately stronger showing that the balance of harms was in its favor.”) (citing Accord Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992)).
26

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 27 of 39
Similarly, in Korte, the government argued that the contraception mandate’s burden was insubstantial because any use of contraceptive services could not be attributed to the corporate plaintiffs or their owners since the provision of the contraceptive coverage was several steps removed from an employee’s independent determination to use contraception. See Korte, 735 F.3d at 684. However, the Seventh Circuit’s majority opinion reasoned that the government’s attenuation argument is equivalent to improperly asking whether “providing this coverage impermissibly assist[s] the commission of a wrongful act in violation of the moral doctrines of the [plaintiffs’ religion].” Id. at 685.11 But, “[n]o civil authority can decide that question”. Id.; see Roman Catholic Archdiocese of New York, No. 1:12-cv-02542-BMC, 2013 WL 6579764, at *14 (“The Government feels that the accommodation sufficiently insulates the plaintiffs from the objectionable services, . . . [but] it is not the Court’s role to say that plaintiffs are wrong about their religious beliefs.”); see also Hobby Lobby, 723 F.3d at 1142 (the question here is not whether the reasonable observer would consider the plaintiffs complicit in an immoral act, but rather how the plaintiffs themselves measure their degree of complicity).
Here, no one questions that among the plaintiffs’ religious tenets is that life begins at conception and that providing all FDA approved contraceptive service violates those tenets. And so it follows that plaintiffs object to deliberately providing health insurance that will trigger access to objectionable contraceptive services and related education and counseling. By completing the self certification, plaintiffs sincerely believe that they will be facilitating, and actually supporting, a step in the process by which their employees will eventually secure access
11Judge Rovner understood the majority to be rejecting any assessment on how direct or attenuated the burden imposed on the plaintiff’s religious practices may be. Korte, 735 F.3d at 705 (Rovner, J., dissenting).
27

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 28 of 39
to free contraceptive services. In their minds, this makes them complicit in the provision and use of such services. Again, the government does not contest the sincerity of these beliefs. Because plaintiffs hold these honest religious convictions and because failing to comply with the law will result in heavy financial penalties and the risk of enforcement actions (which will significantly impact their ability to provide religiously based services), id. at 683, plaintiffs have shown that the contraception mandate and accommodation constitute a substantial burden on their religious exercise.
And while the government gives short shrift to any burden imposed specifically on the Diocese simply because it is exempted from the mandate, the Court would note the uncontested fact that the Diocese has foregone almost $200,000 annually in order to maintain its grandfathered status in an effort to protect Catholic Charities from having to comply with the contraceptive mandate and its religiously objectionable self certification requirement. Thus, despite being exempted as a religious employer, the Diocese is forced to modify its behavior and incur substantial costs to stay grandfathered under the ACA, or else it will be compelled to violate its religious beliefs by having Catholic Charities’ employees provided with a plan that covers objectionable contraceptive services or access to the same. Essentially, absent forgoing the annual increased premiums, the Diocese would be prevented from exercising supervisory authority over its constituents in a way that ensures compliance with Church teachings.
The application of the two regulations—the exemption and the accommodation—has the ultimate effect of dividing the Catholic Church into two separate entities, despite overlapping membership and leadership. See Zubik, 2013 WL 6118696, at *26-27. The regulations protect those who work inside a church’s walls, but not those engaging in the fulfillment of the religious
28

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 29 of 39
and charitable missions of the Diocese and Catholic Church—despite the fact that all of the plaintiffs claim the same burden is imposed on their religious exercise rights by the mandate and its accommodation. The Court concludes that this divide and its resulting consequences has similarly created a substantial burden on the Diocese and Catholic Charities, and as a result, the government must justify its regulations under the compelling interest test.
2. Least Restrictive Means and Compelling Government Interest RFRA requires the government to demonstrate that applying the contraception mandate and its accommodation are “the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb–1(b). Again, the Court follows the precedent set forth in Korte, in applying the appropriate test in this context. In fact, the government has since conceded that the recent decision in Korte forecloses its arguments that the regulations satisfy strict scrutiny, even in this context [DE 105 at 2, fn. 1]. Regardless, the Court will conduct an analysis for completeness of the record. Consistent with Korte, the Supreme Court has instructed courts to look beyond “broadly formulated interests justifying the general applicability of government mandates” and “scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” Korte, 735 F.3d at 685 (citing O Centro Espirita, 546 U.S. at 431). In other words, under RFRA’s version of strict scrutiny, the government must establish a compelling and specific justification for burdening these claimants. Id. The compelling-interest test generally requires a “high degree of necessity.” Id. (citing Brown v. Entm't Merchs. Ass'n, –– U.S. –– , 131 S.Ct. 2729, 2741 (2011)). The government must “identify an ‘actual problem’ in need of solving, and the curtailment of [the right] must be
29

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 30 of 39
actually necessary to the solution.” Id. (citing Brown, 131 S.Ct. at 2738). 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.” Id. (citing 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 . . .”. Id. (citing Sherbert, 374 U.S. at 406). The regulated conduct must “pose[ ] some substantial threat to public safety, peace[,] or order.” Korte, 735 F.3d at 686 (citing Sherbert, 374 U.S. 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.” Id. (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (7th Cir. 1993)).
Similar to the interests claimed by the government in Korte, the government identified two legitimate public interests in the instant case, improving the public health and providing equal access to health care services for women. The government (prior to the issuance of Korte) had argued that the contraception mandate and the accommodation furthers these interests in a narrowly tailored fashion by not requiring nonprofit religious organizations with religious objections to providing contraceptive coverage to contract, pay, arrange, or refer for that coverage.
The Court agrees that the government’s stated interests are indeed important, and for the sake of argument (and a thorough analysis) will assume they are even compelling. However, the government has not shown that the contraception mandate employs the least restrictive means of furthering the government’s interests, because strict scrutiny requires a substantial congruity—a close “fit”—between the governmental interest and the means chosen to further that interest.
30

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 31 of 39
Korte, 735 F.3d at 686. As discussed, the regulatory scheme exempts or excludes certain employers from the
contraception mandate and does not apply the ACA’s requirements to employers with grandfathered plans or those with less than 50 employees. Since the government grants so many exceptions already, it cannot legitimately argue that its regulations are narrowly tailored, nor can they argue against exempting these plaintiffs—by the government’s estimate, approximately 20,000 employees (not including the already exempted Diocese). See Korte, 735 F.3d at 686; Gilardi, 733 F.3d at 1222 (“underinclusiveness can suggest an inability to meet the narrow-tailoring requirement, as it raises serious questions about the efficacy and asserted interests served by the regulation”). Also, there is nothing to suggest the ACA would become unworkable if employers objecting on religious grounds could opt out of one part of a comprehensive coverage requirement. See Gilardi, 733 F.3d at 1223-24.
Further, the government’s reason for creating the religious employer exemption in particular was that houses of worship and their integrated auxiliaries are more likely than other employers to employ people of the same faith who share the same objection to contraceptive coverage, and who would be less likely than others to use contraceptive services even if such services were covered. See 78 Fed. Reg. 39,874. This may in fact be true, however, the government amended the religious employer exemption to ensure that an otherwise exempt employer plan is not disqualified “because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths.” See 78 Fed. Reg. 8456 (Feb. 6, 2013). So even though these plaintiffs provide religiously based community services outside the confines of the church and employ people of
31

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 32 of 39
different faiths, these plaintiffs share the same legitimate claim to the free exercise of religion as those exempted as “religious employers.” And despite the religiously affiliated nature of the plaintiffs and their longstanding religious stance (and public pronouncement) against abortion and contraception, these plaintiffs have not received the same exemption as “religious employers” from having to facilitate or initiate the provision of objectionable contraceptive services, merely because they are not organized and operated as a nonprofit entity referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986—a basis which has nothing to do with the government’s stated interests for imposing the requirements of the contraception mandate. See Zubik, 2013 WL 6118696 at *29 (noting that the religious employer exemption was not predicated on the government’s stated interests). And so again, even assuming the government’s interests are compelling, there is no basis indicating the government would be unable to enforce its legislation simply because these plaintiffs could avoid compliance with the contraception mandate.
Finally, there are certainly other ways to promote public health and gender equality less burdensome on religious liberty, and the government has not carried its burden of demonstrating that it cannot achieve its policy goals in ways less damaging to religious-exercise rights. PreKorte, the government maintained that the accommodation provides the least restrictive means because the self certification requires the plaintiffs to act just as they would without the mandate—by informing their TPAs or insurers that coverage should not include certain contraceptive services. But the argument falls short. First, the government has made exemptions from the coverage requirements for other employers, like the Diocese, without requiring the same form of self certification (and resulting consequences), despite the fact that plaintiffs share
32

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 33 of 39
the same legitimate claim to the free exercise of religion as those exempted as religious employers. And second, the self certification process created in the accommodation (and being avoided by the Diocese and Catholic Charities at great expense) essentially transforms a voluntary act that plaintiffs may have utilized to ensure that the objectionable services are not provided, consistent with their religious beliefs, into a compelled act that they sincerely believe provides and promotes conduct that is forbidden by their religious beliefs. See Roman Catholic Archdiocese of New York, No. 1:12-cv-02542-BMC, 2013 WL 6579764, at *14. And so the nature of the act itself has changed, not merely the consequences of that act.
And as identified in Korte and as offered by plaintiffs in the instant action, there are many ways to increase access to free contraception without doing damage to the religious-liberty rights of conscientious objectors. For instance, the government can provide a “public option” for contraception insurance; it can give tax incentives or grants to contraception suppliers to provide these medications and services at no cost to consumers; and it can give tax incentives to consumers of contraception and sterilization services—all without requiring plaintiffs to self certify their religious objections to the contraception mandate and thereby directly facilitate access to objectionable contraceptive services to be arranged or paid for by third parties. Simply because these options may make it more difficult for the government to administer the regulations in a manner that would achieve the government’s stated interests, greater efficacy does not equate to the least restrictive means. See Zubik, 2013 WL 6118696 at *23. And as the government has conceded in the instant case, Korte has recently made clear that its regulations fail the strict scrutiny analysis.
Bearing in mind that at this stage the court need not be certain about the outcome of the
33

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 34 of 39
case to grant a preliminary injunction, the Court concludes the plaintiffs have shown some reasonable likelihood of success on the merits relative to their RFRA claim. See S.E.C. v. Lauer, 52 F.3d 667, 671 (7th Cir. 1995) (“The case is before us on an appeal from the grant of a preliminary injunction, and as is too familiar to require citation such a grant is proper even if the district judge is uncertain about the defendant's liability.”). Adequate Remedy at Law and Irreparable Harm
Although the claim is statutory, RFRA protects First Amendment free-exercise rights, and “in First Amendment cases, ‘the likelihood of success on the merits will often be the determinative factor.’” Korte, 735 F.3d at 666 (citing ACLU of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (quoting Joelner v. Village of Washington Park, Ill., 378 F.3d 613, 620 (7th Cir. 2004))). “This is because the ‘loss of First Amendment freedoms . . . unquestionably constitutes irreparable injury . . .’. ” Korte, 735 F.3d at 666 (citing Alvarez, 679 F.3d at 589 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion))). Furthermore, injunctions are especially appropriate in the context of first amendment violations because the “quantification of injury is difficult and damages are therefore not an adequate remedy.” Alvarez, 679 F.3d at 589 (citing Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982)).
In the instant case, the non-exempt plaintiffs must decide by December 31, 2013 whether or not to provide insurance coverage and sign the self certification with respect to its employee health plan, with the exception of Our Sunday Visitor, who must also make the same decisions in October. Relative to the Diocese, by December 31, 2013, it will have to decide whether to continue to forgo increased premiums in order to maintain its grandfathered status, or permit Catholic Charities to be faced with the same decisions that need be made by the non-exempt
34

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 35 of 39
plaintiffs. Ultimately, should plaintiffs fail to comply with the insurance coverage requirements of the ACA and its contraception mandate, the plaintiffs face financially devastating fines and enforcement actions. Thus, plaintiffs will be irreparably harmed if forced to forgo their religious beliefs by facilitating access to the objected to services in order to avoid detrimental fines, and there simply is insufficient time to litigate the merits of the plaintiffs’ claims without the relief of a preliminary injunction. Given that plaintiffs’ religious exercise rights are at stake in the immediate future, that a loss of these freedoms for even a minimal period of time unquestionably constitutes irreparable injury which cannot be prevented or fully rectified by waiting for a final judgment, see Elrod, 427 U.S. at 373; Anderson v. U.S.F. Logistics (IMS), Inc., 274 F.3d 470, 478 (7th Cir. 2011), and that injunctions are designed to offer relief when legal remedies are inadequate to protect the parties’ rights, see Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380, 397 (7th Cir. 1984) (Swygert, J., dissenting), the Court concludes that these factors weigh strongly in favor of granting the requested relief. Weighing the Equities and Public Interest
In weighing the equities, the court balances each party’s likelihood of success against the potential harms. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S., Inc., 549 F.3d 1079, 1100 (7th Cir. 2008). To do so, the court compares the potential irreparable harms faced by both parties to the suit—the irreparable harm risked by the moving party in the absence of a preliminary injunction against the irreparable harm risked by the nonmoving party if the preliminary injunction is granted. Id. (citing Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001)). We evaluate these harms using a sliding scale approach. Id. (citing Ty, Inc., 237 F.3d at 895). The more likely it is that plaintiffs will win their case on the merits, the less the balance
35

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 36 of 39
of harms need weigh in their favor. Id. (citations omitted). Conversely, if it is very unlikely that plaintiffs will win on the merits, the balance of harms need weigh much more in plaintiffs’ favor. Id. (citations omitted). When conducting this balancing, it is also appropriate to take into account any public interest, which includes the ramifications of granting or denying the preliminary injunction on nonparties to the litigation. Id. (other citations omitted). This analysis is “‘subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.’” Girl Scouts of Manitou Council, Inc., 549 F.3d at 1100 (citations omitted).
As the Court has previously detailed herein, the harm likely to be caused the plaintiffs without an injunction is imminent and irreparable, whereas the government likely faces no risk of harm, let alone irreparable harm, if the preliminary injunction is granted. The Court agrees with the district court’s comments in Zubik, in that the combined nationwide total of the millions of Americans whose employers fall within some type of exclusion, exemption, or plan grandfathered from the ACA and contraception mandate’s requirements demonstrates that the government will not be harmed in any significant way by the exclusion of these plaintiffs. Zubik, 2013 WL 6118696 at *34; see also Geneva College v. Sebelius, No. 2:12-cv-00207, 2013 WL 3071481, *10 (W.D. Pa. June 18, 2013) (“tens of millions of individuals . . . remain unaffected by the mandate’s requirements”). Moreover, the government has itself delayed the enforcement of the contraception mandate by initially granting a safe harbor from its enforcement and agreeing to injunctions in other cases involving challenges to the mandate.
Additionally, granting the preliminary injunction furthers the public interest. While it is true that employees and dependents of the plaintiffs will face an economic burden not shared by
36

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 37 of 39
employees and dependants of organizations that cover all of the contraceptive methods imposed by the mandate, plaintiffs’ long-standing and publically made religious stance regarding contraception and abortion, have kept them from offering procuring, participating in, facilitating, or paying for objectionable contraceptive services up until this point. And while not all employees of the plaintiffs share in the plaintiffs’ religious objections to certain contraceptive services, the plaintiffs’ employees and the public are best served if the plaintiffs can continue to provide needed (and expected) religiously based community services, and the needed (and expected) insurance coverage to its employees, without the threat of substantial fines and the risk of layoffs for noncompliance with the contraception mandate and its accommodation. Moreover, injunctions protecting First Amendment freedoms are always in the public interest, see Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006), and the Court sees no reason to make an exception here.
The Court would also note that plaintiffs quickly filed an amended complaint and sought an injunction after the 2013 final rules were passed. Thus, there has been no delay in their pursuit of a preliminary inunction. See Ty, Inc., 237 F.3d at 903 (a delay in pursuing a preliminary injunction may raise questions regarding irreparable harm). And, it cannot be said that there was any expectation that the plaintiffs would ever facilitate access to all FDA approved contraceptive services for its employees. Undoubtedly, the balance of harms in this case weighs heavily in plaintiffs’ favor, enough so that any weakness in the merits of their case is overcome, thereby making injunctive relief appropriate 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); Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765, 783 (7th Cir. 2011) (“The
37

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 38 of 39
preliminary injunction, after all, is often seen as a way to maintain the status quo until merits issues can be resolved at trial. By moving too quickly to the underlying merits, the district court required too much of the plaintiffs . . .”).
IV. Conclusion Accordingly, it is hereby ORDERED that plaintiffs’ motion for a preliminary injunction [DE 74] is GRANTED, and as a result, defendants, their agents, servants, officers, employees, representatives, and all persons in active concert or participation with them are hereby ENJOINED from: Applying or enforcing against plaintiffs, Diocese of Fort Wayne-South Bend, Inc., Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc., Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend, Inc., Franciscan Alliance, Inc., Specialized Physicians of Illinois, LLC, University of Saint Francis, and Our Sunday Visitor, Inc., or their employee health insurance plans, including their plan brokers, plan insurers, or third party administrators, the requirements set out in 42 U.S.C. § 300gg-13(a)(4) and 45 C.F.R. § 147.130(a)(1)(iv), corresponding guidelines, and corresponding press releases to provide, pay for, or otherwise facilitate access to coverage for FDA approved contraceptive methods, abortion-inducing drugs, sterilization procedures, and related patient education and counseling. It is further ORDERED that plaintiffs shall not be required to post bond; however, should circumstances change prior to the Court’s making a determination on the merits of the case, including new developments in the law, which may make the preliminary injunction or its terms no longer appropriate, then counsel are free to file a motion seeking a modification or vacatur of
38

case 1:12-cv-00159-JD-RBC document 122 filed 12/27/13 page 39 of 39 the injunction.
SO ORDERED. ENTERED: December 27, 2013
/s/ JON E. DEGUILIO Judge United States District Court
39

 
 USDC IN/ND case 1:12-cv-00159-JD-SLC document 136 filed 10/23/17 page 1 of 3

IN UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DIOCESE OF FORT WAYNE-SOUTH )

BEND, INC., et al.,

)

)

Plaintiffs,

)

)

v.

) Case No. 1:12-CV-00159-WCL-RBC

)

ERIC HARGAN, in his official

)

Capacity as Acting Secretary of the U.S. )

Department of Health and Human

)

Services, et al.,

)

Defendants.

)

JOINT STIPULATION OF DISMISSAL

The parties hereby give notice that this case is dismissed pursuant to Rule 41(a)(1)(A)(ii).

This stipulation is signed by counsel for all parties who have appeared, and the dismissal is

effective without a court order.

By: /s/ Matthew A. Kairis Matthew A. Kairis (OH No. 005502) JONES DAY 325 John H. McConnell Blvd. Suite 600 Columbus, OH 43215 T: (614) 469-3939 Email: makairis@jonesday.com
Leon F. DeJulius, Jr. JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 T: (412) 394-9528 Email: lfdejulius@jonesday.com

ETHAN P. DAVIS Deputy Assistant Attorney General
CLIFFORD D. JOHNSON Acting United States Attorney
/s/ Joel McElvain JOEL McELVAIN Assistant Branch Director U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20530 (202) 514-2988 Joel.McElvain@usdoj.gov

M. Scott Hall HALL & GOODEN LLP 810 S. Calhoun Street, Suite 100

USDC IN/ND case 1:12-cv-00159-JD-SLC document 136 filed 10/23/17 page 2 of 3
Fort Wayne, IN 46802 T: (260) 424-2541 Email: shall@hallgooden.com
Counsel for Plaintiffs
W Patrick Downes FRANCISCAN ALLIANCE INC 1505 S Court St Suite 202 Crown Point, IN 46307 T: (219) 662-3753 Email: pat.downes@franciscanalliance.org
Counsel for Plaintiff Franciscan Alliance Inc.
William T Hopkins , Jr BARNES & THORNBURG LLP 888 S Harrison St Ste 600 Fort Wayne, IN 46802 T: (260) 425-4644 Email: tuck.hopkins@btlaw.com
Counsel for Plaintiff University of Saint Francis
Robert E Doelling Shane C Mulholland BURT BLEE DIXON SUTTON
& BLOOM LLP 200 E Main St Suite 1000 Fort Wayne, IN 46802 T: (260) 426-1300 Email: rdoelling@burtblee.com
Counsel for Plaintiff Our Sunday Visitor Inc.
2

USDC IN/ND case 1:12-cv-00159-JD-SLC document 136 filed 10/23/17 page 3 of 3
CERTIFICATE OF SERVICE I hereby certify that on October 23, 2017, I electronically filed the foregoing Joint Stipulation of Dismissal with the Clerk of the United States District Court for the Northern District of Indiana using the CM/ECF system, which will send notification of such filing to all counsel of record.
/s/ Matthew A. Kairis One of the Attorneys for Plaintiffs

 
 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.
I of 10

§ 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
2of 10

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
3of10

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;
4of10

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