Case: 4:13-cv-01577-JCH Doc. #: 1 Filed: 08/14/13 Page: 1 of 22 PageID #: 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PAUL JOSEPH WIELAND,

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a Missouri resident, and

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TERESA JANE WIELAND,

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a Missouri resident,

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Plaintiffs,

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vs.

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UNITED STATES DEPARTMENT

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OF HEALTH AND HUMAN SERVICES, )

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KATHLEEN SEBELIUS, in her official )

capacity as the Secretary of the United )

States Department of Health and Human )

Services,

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UNITED STATES DEPARTMENT OF )

THE TREASURY,

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JACOB J. LEW, in his official

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capacity as the Secretary of the United )

States Department of the Treasury,

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UNITED STATES DEPARTMENT OF )

LABOR, and

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SETH D. HARRIS, in his official capacity )

as Acting Secretary of the United States )

Department of Labor,

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Defendants.

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Case No.

COMPLAINT

Plaintiffs Paul Joseph Wieland and Teresa Jane Wieland, for their Complaint, state:

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NATURE OF THE ACTION 1. This case challenges regulations issued under the Patient Protection and Affordable Care Act of 2010 (“Act”) that force the Plaintiffs to either (a) violate their sincerelyheld religious opposition to contraceptives, sterilization and abortifacients by paying to make such services available to their three daughters, (b) forfeit the valuable benefit of employersponsored health insurance for themselves and their daughters and purchase more expensive satisfactory coverage on the open market, if such coverage even exists, or (c) forgo health insurance for their daughters altogether. The Act also unconstitutionally interferes with the Plaintiffs’ parental rights and fundamental right to family integrity. 2. Plaintiff Paul Joseph Wieland is a resident of Jefferson County, Missouri and member of the Missouri House of Representatives. 3. Plaintiff Teresa Jane Wieland is a resident of Jefferson County, Missouri and is married to Paul Joseph Wieland. 4. The Plaintiffs have three daughters, ages 12, 18 and 19. 5. The Plaintiffs strive to raise their daughters according to Christian principles and corresponding sincerely held religious beliefs. As part of these beliefs, the Plaintiffs oppose the use, funding, provision or support of contraceptives, sterilization and abortifacients. 6. Health insurance coverage is a benefit of Mr. Wieland’s employment with the State of Missouri and is provided through the Missouri Consolidated Health Care Plan (“MCHCP”), a corporate entity of the State of Missouri that was created by Missouri statute. 7. Mr. and Mrs. Wieland pay a portion of their health care plan premiums in order to maintain coverage for themselves and their daughters. Said premiums also partially fund medical services provided to other employees covered under the same plan. The State of

	  

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Missouri contributes the remaining portion of the health care insurance premiums as a benefit of Mr. Wieland’s employment.
8. Between January 2011, when the Wielands’ coverage under the plan began, and August 1, 2013, the plan did not include coverage for contraceptives, sterilization or abortifacients, because the Wielands had opted out of such coverage. On July 18, 2013, MCHCP sent the Wielands a letter stating that because of federal law MCHCP must provide contraception and sterilization coverage in all medical plans it offers. MCHCP stated that “[e]ffective August 1, 2013, you will be placed in the corresponding medical plan that includes contraception and sterilization coverage in accordance with federal law.”
9. Plaintiffs’ premiums increased in conjunction with and because of the addition of contraception and sterilization coverage.
10. The Plaintiffs do not believe that contraceptives, sterilization, or abortifacients constitute medicine, health care, or a means of providing for the well being of persons. Rather, Plaintiffs believe contraceptives, sterilization, and abortifacients involve gravely immoral practices and that abortion in particular involves the intentional destruction of innocent human life.
11. The Defendants have issued an administrative rule (“Mandate” or “Final Rule”) pursuant to authority created by the Act requiring that group health plans cover, without cost sharing, “all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity.” Such contraceptive methods include certain drugs and devices such as the “Plan B” and “ella” pills and copper IUDs, all of which are widely known as abortifacients in that they frequently function to destroy fertilized eggs, which Plaintiffs consider to be abortion. This not only forces

	  

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the Plaintiffs to treat contraceptives, sterilization, abortifacients and related education and counseling as health care, but also subverts the expression of the Plaintiffs’ religious beliefs by forcing them to fund, promote, and assist and participate in the provision of the acquisition of drugs and services which they believe involve gravely immoral practices, including the intentional destruction of innocent human life.
12. The Mandate unconstitutionally forces the Plaintiffs to violate their sincerely-held religious beliefs under threat of having to forfeit the valuable job benefit of employer-sponsored insurance coverage or health coverage for themselves and their daughters. The Mandate also forces the Plaintiffs to fund government-dictated speech that is directly at odds with their own speech and religious beliefs and practices. The government forcing the Plaintiffs to pay money for the privilege of practicing their religion or controlling their own speech is un-American, unprecedented, and flagrantly unconstitutional. The Mandate also unconstitutionally interferes with Plaintiffs’ parental rights and fundamental right to family integrity.
13. The Defendants’ refusal to accommodate conscience is selective. A patchwork of exemptions shows that Defendants do not believe every insurance plan in the country needs to cover these services. For instance, Defendants have issued thousands of waivers from the Act (in its entirety) for many large corporations and labor unions, purely for reasons of commercial or political convenience. Other exemptions have been awarded based on how old a plan is, or how large an employer is. There are several other exemptions from the Act and from the Mandate, for a variety of groups and for a variety of reasons, including exemptions for certain religious employers. There is, however, no way for individual employees to opt out of coverage based upon their sincerely-held religious beliefs regarding contraceptives, sterilization and abortifacients.

	  

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14. Defendants acted with full knowledge of the beliefs of thousands of employers and the employees they insure, like the Plaintiffs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than the callous disregard of the religious beliefs and parental rights of the Plaintiffs. The Plaintiffs accordingly seek refuge in this Court.
JURISDICTION AND VENUE 15. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,	   1343(a)(4), 1346(a)(2), and 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1. 16. Venue lies in this district pursuant to 28 U.S.C. § 1391(e).
THE PARTIES 17. Plaintiff Paul Joseph Wieland is a resident of Jefferson County, Missouri and a member of the Missouri House of Representatives. 18. Plaintiff Teresa Jane Wieland is a resident of Jefferson County, Missouri and has been married to Plaintiff Paul Joseph Wieland since November 28, 1992. 19. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 20. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 21. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.

	  

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22. Defendant Seth D. Harris is the Acting Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Harris is sued in his official capacity only.
23. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
24. Defendant Jacob J. Lew is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Lew is sued in his official capacity only.
25. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTUAL ALLEGATIONS I. Plaintiffs’ Religious Beliefs and Practices Related to Abortion, Sterilization and
Contraceptives, and Their Health Insurance Plan 26. The Plaintiffs, along with their children, are life-long Roman Catholics. Plaintiff Paul Joseph Wieland is a Fourth Degree member of the Knights of Columbus. 27. The Plaintiffs have three daughters, ages 12, 18 and 19. 28. The Plaintiffs strive to raise their family according to Christian principles and corresponding sincerely-held religious beliefs. As part of these sincerely-held beliefs, the Plaintiffs believe that contraception and sterilization are to be avoided, and that human life begins at conception and that from that point on it is sacred and worthy of protection. Plaintiffs thus oppose the use, funding, provision or support of contraceptives, sterilization and abortifacients.

	  

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29. The Plaintiffs seek to defend and promote certain moral and ethical standards in their family, including promoting a belief in the sanctity and quality of life which precludes the use of contraceptives, sterilization, and abortion on demand through abortifacient drugs and devices or otherwise.
30. Plaintiffs are committed to ensuring the well being and health of their children. In furtherance of these commitments, the Plaintiffs ensure that their daughters have comprehensive medical coverage.
31. Health insurance coverage is a benefit of Mr. Wieland’s employment with the State of Missouri and is provided through the Missouri Consolidated Health Care Plan, a corporate entity of the State of Missouri that was created by Missouri statute.
32. Mr. and Mrs. Wieland pay a portion of the premiums as required in order to maintain coverage for themselves and their daughters. Said premiums also partially fund medical services provided to other employees covered under the same plan. The State of Missouri contributes the remaining portion of the insurance premiums as a benefit of Mr. Wieland’s employment.
33. Because of the Mandate, discussed above and in more detail below, MCHCP now states that Mr. Wieland’s insurance plan must provide coverage for contraception, sterilization and abortifacients.
34. The Plaintiffs oppose the use, funding, provision or support of contraception, sterilization and abortifacients as a matter of sincerely-held religious belief and practice.
35. The Plaintiffs cannot provide, fund or in any way be a participant in the provision of health care coverage for contraception, sterilization, abortions or abortifacient drugs and

	  

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devices, such as Plan B, ella, and copper IUDs, or related education and counseling, without violating their sincerely-held religious beliefs.
36. The Plaintiffs cannot provide, fund or in any way be a participant in the provision of information or guidance to others, including their daughters, about locations at which they can access contraceptives, sterilization or abortifacients, or related education and counseling, without violating their deeply and sincerely-held religious beliefs.
37. The Plaintiffs do not believe that contraceptives, sterilization or abortifacients constitute medicine, health care, or a means of providing for the well being of persons. The Plaintiffs believe abortion involves gravely immoral practices and the intentional destruction of innocent human life.
38. The Plaintiffs believe that forcing them to provide insurance coverage to their daughters for contraceptives, sterilization and abortifacients and related counseling is a governmental interference with their parental rights and fundamental right to their family’s integrity.
39. The Plaintiffs cannot obtain insurance coverage other than through Mr. Wieland’s employee plan without incurring significantly more expense. The Plaintiffs, upon information and belief, cannot obtain insurance coverage without coverage for contraceptives, sterilization or abortifacients from any source. II. The Affordable Care Act
40. In March 2010, Congress passed and President Obama signed into law the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the “Affordable Care Act.”

	  

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41. The Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
42. The Act does not apply equally to all insurers, employers or individuals. 43. The Act does not apply its fine and penalty provisions for failure to offer employer-sponsored insurance to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A). 44. The Act is not generally applicable because it provides for numerous exemptions from its rules. 45. The Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans. The Plaintiffs’ health insurance plan does not qualify as a grandfathered health plan. See 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140. 46. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely. 47. HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of small employers with between 50 and 100 employees may do likewise. See Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans, available at http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html (last visited May 27, 2013). According to government estimates, a total of 191 million Americans belong to plans that may be grandfathered under the Act. Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a

	  

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Grandfathered Health Plan Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 34538, 34540 (June 17, 2010).
48. In addition to grandfathering under the Act, the preventive care guidelines exempt certain religious employers from any requirement to cover contraceptive services.
49. The Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not.
50. Certain provisions of the Act do not apply equally to members of certain religious groups or organizations.
51. None of the several exemptions from the law applies to individuals, like the Plaintiffs, who object to providing their daughters with contraceptive, sterilization or abortifacient coverage.
52. The Department of Health and Human Services has the authority under the Act to grant compliance waivers (“HHS waivers”) to employers and other health insurance plan issuers. HHS waivers release employers and other plan issuers from complying with the provisions of the Act. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers. Upon information and belief, more than a thousand HHS waivers have been granted. The Act is not neutral because some religious groups have received HHS waivers while other religious groups have not.
53. The Act is not generally applicable because Defendants have granted numerous waivers from complying with the Act’s requirements.
54. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers.

	  

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55. Defendants’ waiver practices create a system of individualized assessments to qualify for an exemption.
56. Beginning in 2014, individuals who do not have health insurance will have to pay a penalty. III. The Preventive Care Mandate
57. The Affordable Care Act mandates that health plans “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,” and directs the Secretary of HHS to determine what would constitute “preventive care” under the mandate. 42 U.S.C. § 300gg—l3(a)(4).
58. On July 19, 2010, HHS, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Act. 75 Fed. Reg. 41726 (2010). The interim final rule requires providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
59. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of “health care,” including abortion on demand and abortifacients.
60. HHS directed an independent, non-profit private health policy organization, the Institute of Medicine (“IOM”), to suggest a list of recommended guidelines describing which drugs, procedures, and services should be covered by all health plans as preventive care for women. See Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited August 13, 2013).

	  

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61. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists, John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
62. No religious groups or other groups that oppose government-mandated coverage of abortion and related education and counseling were among the invited presenters.
63. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventive services include “All Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
64. FDA-approved “contraceptive” methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures. See FDA Birth Control Guide, available at http://www.fda.gov/downloads/ ForConsumers/ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited May 27, 2013).
65. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the Department of Labor, and the Department of Treasury adopted the IOM recommendations in full and promulgated an interim final rule (the Mandate), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved

	  

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contraceptive methods and sterilization procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. On the same day the Health Services and Resources Administration (“HRSA”) issued guidelines adopting the IOM recommendations. See Women's Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (last visited May 27, 2013).
66. The Mandate also requires group health care plans and issuers to provide education and counseling, including on the subject of abortifacients, for all women beneficiaries with reproductive capacity.
67. The Mandate went into effect immediately as an “interim final rule.” 68. HHS did not adequately accommodate the concerns of religious organizations or individuals in the comments submitted before the Mandate was issued. The Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations. 69. When it issued the Mandate, HHS requested comments from the public by September 30, 2011, and indicated that comments would be available online. Upon information and belief, over 100,000 comments were submitted against the Mandate. 70. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL (National Abortion Rights Action League) Pro-Choice America. She told the assembled crowd that “we are in a war.” 71. Certain entities, such as qualifying religious organizations and nonprofits, are exempted from compliance with the Mandate; however, the Mandate fails to take into account the statutory and constitutional rights, including religious and parental rights, as well as fundamental family integrity rights of individuals like the Plaintiffs. 72. The Mandate forces the Plaintiffs to provide coverage for or otherwise

	  

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participate in the provision of contraceptives, sterilization, abortifacients and related education and counseling against Plaintiffs’ religiously informed consciences.
73. The Mandate constitutes government-imposed pressure and coercion on the Plaintiffs to change or violate their religious beliefs and practices.
74. The Mandate jeopardizes the Plaintiffs’ and their daughters’ access to affordable health insurance because of the Plaintiffs’ profound desire not to change or violate their religious beliefs and practices.
75. The Mandate forces the Plaintiffs to provide, fund or participate in the provision of contraceptives, sterilization, abortifacients and related education and counseling in violation of their sincerely held religious beliefs, conduct which is equivalent to assisting another to intentionally destroy innocent human life.
76. The Mandate forces the Plaintiffs to provide, fund or participate in the provision of contraceptives and abortifacients to their daughters free of charge in direct conflict with the Plaintiffs’ religious beliefs and practices.
77. The Mandate forces the Plaintiffs to fund or to otherwise participate in the provision of education and counseling concerning contraceptives and abortion that directly conflict with the Plaintiffs’ religious beliefs and practices.
78. The Plaintiffs cannot terminate their daughters’ health insurance coverage without violating their religious duty to provide for the health and well being of their children.
79. The Mandate forces the Plaintiffs to choose among violating their religious beliefs, forfeiting valuable job benefits and therefore being penalized for their beliefs, or terminating their daughters’ health care plans altogether.
80. Providing counseling and education about abortion directly undermines and

	  

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subverts the explicit messages and speech of the Plaintiffs. Being compelled to provide such
counseling and education constitutes compelled speech, in violation of the First Amendment.
Being compelled to refer to abortifacients as “preventive care” also constitutes compelled
speech in violation of the First Amendment.
IV. Mo. Rev. Stat. § 191.724 Protects Plaintiffs’ Rights.
81. Mo. Rev. Stat. § 191.724, in relevant part, states as follows:
2. No employee, self-employed person, or any other person shall be compelled to obtain coverage for, or be discriminated against or penalized for declining or refusing coverage for, abortion, contraception, or sterilization in a health plan if such items or procedures are contrary to the religious beliefs or moral convictions of such employee or person.
3. No employer, health plan provider, health plan sponsor, health care provider, or any other person or entity shall be compelled to provide coverage for, or be discriminated against or penalized for declining or refusing coverage for, abortion, contraception, or sterilization in a health plan if such items or procedures are contrary to the religious beliefs or moral convictions of such employer, health plan provider, health plan sponsor, health care provider, person, or entity.
4. No governmental entity, public official, or entity acting in a governmental capacity shall discriminate against or penalize an employee, self-employed person, employer, health plan provider, health plan sponsor, health care provider, or any other person or entity because of such employee’s, self-employed person's, employer’s, health plan provider’s, health plan sponsor’s, health care provider’s, or other person’s or entity’s unwillingness, based on religious beliefs or moral convictions, to obtain or provide coverage for, pay for, participate in, or refer for, abortion, contraception, or sterilization in a health plan.
82. Section 191.724 protects the Plaintiffs’ constitutional religious, parental, and
fundamental family integrity rights. However, Mr. Wieland’s insurer, the state-created
Missouri Consolidated Health Care Plan, will not provide the Plaintiffs with a health plan that
excludes contraceptive coverage, even despite Section 191.724. MCHCP cites the Mandate
as controlling.
83. The Plaintiffs believe the Mandate is unconstitutional as applied to them and
that they should be able to use and depend upon the guarantees of Section 191.724.

	  

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84. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the Mandate, as applied, Plaintiffs are uncertain as to their legal rights and duties regarding their health insurance plans and regarding the health care of their daughters.
85. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs will endure irreparable harm that outweighs any harm to the Defendants.
86. The Plaintiffs are likely to succeed on the merits of their claims. 87. An injunction, as sought by the Plaintiffs, would not adversely affect the public interest.
CAUSES OF ACTION COUNT I
Violation of the Religious Freedom Restoration Act 88. The Plaintiffs incorporate by reference all preceding paragraphs. 89. The Plaintiffs’ sincerely-held religious beliefs prohibit them from providing, funding or participating in the provision of coverage for contraceptives, sterilization or abortifacients, or related education and counseling. The Plaintiffs’ compliance with these beliefs is a religious exercise. 90. The Mandate creates government-imposed coercive pressure on the Plaintiffs to change or violate their religious beliefs and practices. 91. If the Plaintiffs do not change or violate their religious beliefs and practices, they will have to forfeit their valuable right to employee health insurance or not insure their daughters at all. 92. The Plaintiffs, upon information and belief, cannot obtain insurance coverage without coverage for contraceptives, sterilization or abortifacients from any source. If they were

	  

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to find such coverage, it would come at a greater cost than through Mr. Wieland’s employee plan.
93. The Mandate imposes a substantial burden on the Plaintiffs’ religious exercise, as to both belief and practice.
94. The Government has no compelling governmental interest to require Plaintiffs to comply with the Mandate.
95. The Mandate is not narrowly tailored to achieve any compelling governmental interest in a way that is least restrictive to Plaintiffs’ rights.
96. The Mandate and Defendants’ threatened enforcement of the Mandate violate the Plaintiffs’ rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
97. Absent injunctive and declaratory relief against the Defendants, the Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause 98. The Plaintiffs incorporate by reference all preceding paragraphs. 99. The Plaintiffs’ sincerely-held religious beliefs prohibit them from providing, funding or participating in the provision of coverage for contraceptives, abortion or abortifacients, or related education and counseling. The Plaintiffs’ compliance with these beliefs is a religious exercise. 100. Neither the Affordable Care Act nor the Mandate is neutral. 101. Neither the Affordable Care Act nor the Mandate is generally applicable.

	  

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102. Defendants have created categorical exemptions and individualized assessment exemptions to the Mandate.
103. The Mandate furthers no compelling governmental interest. 104. The Mandate is not narrowly tailored to be the least restrictive means of furthering Defendants’ stated interests. 105. The Mandate creates government-imposed coercive pressure on the Plaintiffs to change or violate their religious beliefs and practices. 106. The Mandate chills the Plaintiffs’ religious exercise. 107. If the Plaintiffs do not change or violate their religious beliefs and practices, they will have to forfeit their valuable right to employee health insurance or not insure their daughters at all. 108. The Plaintiffs, upon information and belief, cannot obtain insurance coverage without coverage for contraceptives, sterilization or abortifacients from any source. If they were to find such coverage, it would come at a greater cost than through Mr. Wieland’s employee plan. 109. The Mandate imposes a substantial burden on the Plaintiffs’ religious exercise, as to both belief and practice. 110. The Mandate is not narrowly tailored to achieve any compelling governmental interest. 111. Despite being informed in detail of the fact that millions of Americans had beliefs similar to those of the Plaintiffs, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for the Plaintiffs to comply with their religious beliefs.

	  

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112. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of the Plaintiffs and others.
113. The Mandate and Defendants’ threatened enforcement of the Mandate violate the Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
114. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the Fifth Amendment to the United States Constitution
Parental Rights/Family Integrity Rights 115. The Plaintiffs incorporate by reference all preceding paragraphs. 116. The Plaintiffs strive to raise their family according to Christian principles, Roman Catholic teachings and corresponding sincerely-held religious beliefs. As part of these beliefs, the Plaintiffs oppose the use, funding, provision or support of contraceptives, sterilization and abortifacients. 117. The Mandate is an unconstitutional government interference with the Plaintiffs’ fundamental rights to direct the upbringing and education of their children and to make decisions concerning the care, custody, control, management and nurture of their children. 118. The Mandate is not narrowly tailored to achieve any compelling governmental interest in a way that is least restrictive to Plaintiffs’ rights.
COUNT IV Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 119. The Plaintiffs incorporate by reference all preceding paragraphs.

	  

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120. The Plaintiffs teach that contraceptives, sterilization and abortifacients violate their religious beliefs.
121. The Mandate would compel the Plaintiffs to subsidize and participate in activities that they teach are violations of their religious beliefs.
122. The Mandate would compel the Plaintiffs to provide, fund or participate in the provision of contraceptives, abortifacients and education and counseling related to abortion.
123. Expenditures are a form of speech protected by the First Amendment. 124. Defendants’ actions thus violate the Plaintiffs’ rights to be free from compelled speech as secured to them by the First Amendment of the United States Constitution. 125. The Mandate’s compelled speech requirement is not narrowly tailored to achieve a compelling governmental interest in a way least restrictive to Plaintiffs’ rights. 126. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT V Violation of the Administrative Procedure Act 127. The Plaintiffs incorporate by reference all preceding paragraphs. 128. The Mandate is contrary to § 1303(b)(1)(A) of the Affordable Care Act, which provides that “nothing in 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.” The Act also leaves it to “the issuer of a qualified health plan,” not the Government, “[to] determine whether or not the plan provides coverage of [abortion].” 42 U.S.C. § 18023(b)(1)(A)(ii). 129. The Defendants, in promulgating the Mandate, failed to consider the constitutional and statutory implications of the Mandate on individuals like the Plaintiffs.

	  

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130. The Mandate is contrary to existing law and is in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2).
131. Absent injunctive and declaratory relief against the Mandate, the Plaintiffs have been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, these Plaintiffs request that the Court: a. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the Religious Freedom Restoration Act; b. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the First Amendment to the United States Constitution; c. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the Fifth Amendment to the United States Constitution; d. Declare that the Mandate and Defendants’ enforcement of the Mandate against
these Plaintiffs violate the Administrative Procedure Act; e. Issue an order prohibiting Defendants from enforcing the Mandate against these
Plaintiffs insofar as it forces them to provide, fund or participate in the provision of contraceptives, sterilization, abortions or abortifacients, or related education and counseling; f. Award these Plaintiffs the costs of this action and reasonable attorney’s and expert’s fees pursuant to 42 U.S.C. § 1988 or as otherwise provided by law; and g. Award such other and further relief as it deems just and necessary.

	  

21

Case: 4:13-cv-01577-JCH Doc. #: 1 Filed: 08/14/13 Page: 22 of 22 PageID #: 22
	  
OTTSEN, LEGGAT AND BELZ, L.C.
By: /s/ Timothy Belz______________ Timothy Belz #MO-31808 J. Matthew Belz #MO-61088 112 South Hanley, Suite 200 St. Louis, Missouri 63105-3418 Phone: (314) 726-2800 Facsimile: (314) 863-3821 tbelz@omlblaw.com
and
Peter Breen* THOMAS MORE SOCIETY 29 S. La Salle Street Suite 440 Chicago, IL 60603 Phone: (312) 782-1680 Facsimile: (312) 782-1887
* Pro hac vice motion pending
Attorneys for Plaintiffs

	  

22

 
 Case: 4:13-cv-01577-JCH Doc. #: 22 Filed: 09/10/13 Page: 1 of 3 PageID #: 211

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

__________________________________________

)

PAUL JOSEPH WIELAND, and

)

TERESA JANE WIELAND,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; KATHLEEN

)

SEBELIUS, in her official capacity as the

)

Secretary of the United States Department of

)

Health and Human Services; UNITED STATES )

DEPARTMENT OF THE TREASURY;

)

JACOB J. LEW, in his official capacity

)

as Secretary of the United States Department of )

the Treasury; UNITED STATES DEPARTMENT )

OF LABOR; THOMAS E. PEREZ, in his official )

capacity as Secretary of the United States

)

Department of Labor,

)

)

Defendants.

)

__________________________________________)

Civil Action No. 4:12-cv-00476-CEJ

DEFENDANTS’ MOTION TO DISMISS Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendants hereby move to dismiss this action. The grounds for this motion are set forth in the accompanying memorandum. Respectfully submitted this 10th day of September, 2013,

STUART
RICHARD United JENNIFER
SHEILA Deputy

F. DELERY Assistant Attorney General
CALLAHAN States Attorney
RICKETTS Director
M. LIEBER Director

Case: 4:13-cv-01577-JCH Doc. #: 22 Filed: 09/10/13 Page: 2 of 3 PageID #: 212

Trial United Civil
Attorneys

s/ Michelle R. Bennett

_

MICHELLE R. BENNETT (CO Bar No. 37050)

Attorney

States Department of Justice

Division, Federal Programs Branch

20 Massachusetts Avenue N.W. Room 7310

Washington, D.C. 20530

Tel: (202) 305-8902

Fax: (202) 616-8470

Email: michelle.bennett@usdoj.gov

for Defendants.

2

Case: 4:13-cv-01577-JCH Doc. #: 22 Filed: 09/10/13 Page: 3 of 3 PageID #: 213
CERTIFICATE OF SERVICE
I hereby certify that on September 10, 2013, a copy of the foregoing was filed electronically with the Clerk of the Court to be served upon the following:
Timothy Belz OTTSEN AND LEGGAT, L.C. 112 S. Hanley Road Suite 200 St. Louis, MO 63105-3418 Email: tbelz@omlblaw.com
Peter C. Breen THOMAS MORE SOCIETY 19 S. LaSalle St. Suite 603 Chicago, IL 60603 Email: pbreen@thomasmoresociety.org

s/ Michelle R. Bennett

_

MICHELLE

R. BENNETT

3

 
 Case: 4:13-cv-01577-JCH Doc. #: 22-1 Filed: 09/10/13 Page: 1 of 45 PageID #: 214

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

__________________________________________

)

PAUL JOSEPH WIELAND, and

)

TERESA JANE WIELAND,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; KATHLEEN

)

SEBELIUS, in her official capacity as the

)

Secretary of the United States Department of

)

Health and Human Services; UNITED STATES )

DEPARTMENT OF THE TREASURY;

)

JACOB J. LEW, in his official capacity

)

as Secretary of the United States Department of )

the Treasury; UNITED STATES DEPARTMENT )

OF LABOR; THOMAS E. PEREZ, in his official )

capacity as Secretary of the United States

)

Department of Labor,

)

)

Defendants.

)

__________________________________________)

Civil Action No. 4:12-cv-00476-CEJ

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS AND IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case: 4:13-cv-01577-JCH Doc. #: 22-1 Filed: 09/10/13 Page: 2 of 45 PageID #: 215
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................4 I. STATUTORY AND REGULATORY BACKGROUND...................................................4 II. CURRENT PROCEEDINGS ..............................................................................................6 STANDARD OF REVIEW .............................................................................................................7 ARGUMENT ...................................................................................................................................8 I. THIS CASE SHOULD BE DISMISSED BECAUSE THE
COURT LACKS SUBJECT MATTER JURISDICTION ..................................................8 II. EVEN IF THE COURT HAD JURISDICTION, PLAINTIFFS FAIL TO STATE A
CLAIM UPON WHICH RELIEF MAY BE GRANTED, AND THEY HAVE NOT SHOWN A LIKELIHOOD OF SUCCESS ON THE MERITS .........................................12 A. Plaintiffs’ Religious Freedom Restoration Act Claim Fails ..................................12
1. Plaintiffs have not shown that the preventive services coverage provision substantially burdens their religious exercise ..............13
2. Even if there were a substantial burden, the preventive services coverage provision serves compelling governmental interests and is the least restrictive means to achieve those interests..........17
B. Plaintiffs’ Free Exercise Claim Fails .....................................................................23 C. Plaintiffs’ Parental Rights Claim Fails ..................................................................27 D. Plaintiffs’ Free Speech Claim Fails .......................................................................29 E. Plaintiffs’ APA Claim Fails ...................................................................................30 III. EVEN IF PLAINTIFFS COULD ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS, THEY ARE NOT ENTITLED TO PRELIMINARY INJUNCTIVE RELIEF ....................................................................33 CONCLUSION ..............................................................................................................................34
i

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TABLE OF AUTHORITIES
FEDERAL CASES
Adams v. CIR, 170 F.3d 173 (3d Cir. 1999).............................................................................................. 23
Allen v. Wright, 468 U.S. 737 (1984).................................................................................................... 10, 11
Am. Family Ass'n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) ........................................................................................ 25
Ashcroft v. Iqbal, 556 U.S. 662 (2009)............................................................................................................ 8
Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970).......................................................................................................... 30
Autocam Corp. v. Sebelius No. 1:12-CV-10962012, WL. 6845677 (W.D. Mich. Dec. 24, 2012) ....................... passim
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)............................................................................................................ 8
Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011) .......................................................................................... 32
Briscoe v. Sebelius, No. 13-cv-285, 2013 WL. 755413 (D. Colo. Feb. 27, 2013) ………………………….. 24
Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1, 690 F.3d 996 (8th Cir. 2012) ............................................................................................ 33
Children's Healthcare Is A Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) .......................................................................................... 25
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)................................................................................................... passim
City of Boerne v. Flores, 521 U.S. 507 (1997).................................................................................................... 16, 19
Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).................................................................................................... 27, 28
ii

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Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008).............................................................................................. 14
Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013) ......................................................................... passim
Conestoga Wood Specialties Corp. v. Sebelius, No. 13-1144, 2013 WL. 1277419 (3d Cir. Feb. 8 2013) .................................................. 29
Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991) ............................................................................................ 27
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) .................................................................................... 33
Council Tree Commc'ns, Inc. v. FCC, 503 F.3d 284 (3d Cir. 2007).............................................................................................. 15
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995) ................................................................................. 20
Doe v. Va. Dep't of State Police, 713 F.3d 745 (4th Cir. 2013) .............................................................................................. 9
Droz v. Comm'r of IRS, 48 F.3d 1120 (9th Cir. 1995) ............................................................................................ 25
Eden Foods, Inc. v. Sebelius, No. 13-11229, 2013 WL. 1190001 (E.D. Mich. Mar. 22, 2013) ...................................... 23
Elrod v. Burns, 427 U.S. 347 (1976).......................................................................................................... 33
Emp't Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872 .............................................................................................................. passim
Geneva Coll. v. Sebelius, No. 12-cv-207, 2013 WL. 838238 (W.D. Pa. Mar. 6, 2013) ............................................ 24
Goehring v. Brophy, 94 F.3d 1294 (9th Cir. 1996) ...................................................................................... 19, 20
Gonzalez v. Arizona, 485 F.3d 1041 (9th Cir. 2007) .......................................................................................... 15
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Case: 4:13-cv-01577-JCH Doc. #: 22-1 Filed: 09/10/13 Page: 5 of 45 PageID #: 218
Gov't Emps. Ins. Co. v. Benton, 859 F.2d 1147 (3d Cir. 1988)............................................................................................ 31
Graham v. CIR, 822 F.2d 844 (9th Cir. 1987) ...................................................................................... 18, 20
Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012) ........................................................................ passim
Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) ........................................................................................ 2, 18
Heartland Academy Community Church v. Waddle, 317 F. Supp. 2d 984 (E.D. Mo. 2004)............................................................................... 28
Henderson v. Biltbest Prods., No. 4:10CV01503, 2010 WL. 5392828 (E.D. Mo. Dec. 22, 2010).................................... 8
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) ............................................................................................ 27
In re Rodriquez, 258 F.3d 757 (8th Cir. 2001) ............................................................................................ 15
Irving v. Jones, No. 1:09CV8SNLJ, 2009 WL. 910687 (E.D ..................................................................... 8
Jenkins v. CIR, 483 F.3d 90 (2d Cir. 2007)................................................................................................ 19
Kissinger v. Board of Trs. of Ohio State Univ., 5 F.3d 177 (6th Cir. 1993) ................................................................................................ 26
Knight v. Conn. Dep't of Pub. Health, 275 F.3d 156 (2d Cir. 2001).............................................................................................. 26
Korte v. HHS, 912 F. Supp. 2d 735 (S.D. Ill. 2012)................................................................................. 24
Legatus v. Sebelius, 901 F. Supp. 2d 980 (E.D. Mich. 2012)............................................................................ 22
iv

Case: 4:13-cv-01577-JCH Doc. #: 22-1 Filed: 09/10/13 Page: 6 of 45 PageID #: 219
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)................................................................................................ 9, 10, 12
Mahoney v. District of Columbia, 662 F. Supp. 2d 74 (D.D.C. 2009) .................................................................................... 27
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) ............................................................................................ 33
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) .............................................................................. 15, 17
Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985).......................................................................................................... 17
Meyer v. Nebraska, 262 U.S. 390 (1923).......................................................................................................... 28
Missouri Ins. Coal. v. Huff, No. 4:12-cv-02354, 2013 WL. 2250430 (E.D. Mo. May 22, 2013) ................................. 10
MK Chambers Co. v. HHS, No. 13-11379, 2013 WL. 1340719 (E.D. Mich. Apr. 3, 2013) .................................. 23, 29
Moore v. City of East Cleveland, 431 U.S. 494 (1977).......................................................................................................... 27
Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930 (D.C. Cir. 2004) .................................................................................... 11, 12
O'Brien v. U.S. Dep't of Health & Human Servs., 894 F. Supp. 2d 1149 (E.D. Mo. 2012)...................................................................... passim
Olsen v. CIR, 709 F.2d 278 (4th Cir. 1983) ............................................................................................ 20
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) ................................................................................ 24, 25, 27
Pierce v. Society of Sisters, 268 U.S. 510 (1925).......................................................................................................... 27
Prince v. Massachusetts 321 U.S. 158 (1944) ........................................................................................................ 28
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Case: 4:13-cv-01577-JCH Doc. #: 22-1 Filed: 09/10/13 Page: 7 of 45 PageID #: 220
Renal Physicians Ass'n v. U.S. Dep't of Health & Human Servs., 489 F.3d 1267 (D.C. Cir. 2007) ........................................................................................ 10
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008)................................................................................................................ 8
Richenberg v. Perry, 73 F.3d 172 (8th Cir. 1995) .............................................................................................. 33
Roberts v. United States Jaycees, 468 U.S. 609 (1984).......................................................................................................... 21
Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031 (8th Cir. 2002) .......................................................................................... 30
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. ("FAIR"), 547 U.S. 47 (2006)............................................................................................................ 29
Seven-Sky v. Holder, 661 F.3d 1, 5 n (D.D.C. 2011) .......................................................................................... 15
Sharpe Holdings, Inc. v. HHS, No. 12-cv-92, 2012 WL. 6738489 (E.D. Mo. Dec. 31, 2012) .......................................... 24
Sherbert v. Verner, 374 U.S. 398 (1963).......................................................................................................... 14
Siebrasse v. U.S. Dep't of Agric., 418 F.3d 847 (8th Cir. 2005) ............................................................................................ 32
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26 (1976)............................................................................................................ 11
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998).............................................................................................................. 7
Suboh v. Dist. Attorney's Office of Suffolk Dist., 298 F.3d 81 (1st Cir. 2002) ............................................................................................... 28
Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707 (1981).................................................................................................... 14, 16
United States v. Ali, 682 F.3d 705 (8th Cir. 2012) ............................................................................................ 14
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United States v. Amer, 110 F.3d 873 (2d Cir. 1997).............................................................................................. 24
United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) ............................................................................................ 23
United States v. Lee, 455 U.S. 252 (1982)................................................................................................... passim
United States v. Oliver, 255 F.3d 588 (8th Cir. 2001) ............................................................................................ 18
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ........................................................................................ 23
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982).......................................................................................................... 34
Wilkinson v. United States, 440 F.3d 970 (8th Cir. 2006) .............................................................................................. 7
Wisconsin v. Yoder, 406 U.S. 205 (1972).......................................................................................................... 14
STATE CASES
Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006)................................................................................. 24, 26, 29
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004) .......................................................................................... 23, 24, 29
FEDERAL STATUTES 29 U.S.C. §§1185-1185c............................................................................................................... 17
29 U.S.C. § 1185d........................................................................................................................... 4
42 U.S.C. § 300............................................................................................................................. 32
42 U.S.C. § 300gg-13 ................................................................................................................. 4, 8
42 U.S.C. § 300gg-13(a)(1) ........................................................................................................ 4, 5
42 U.S.C. § 300gg-13(a)(2)……………………………………………………………………….4
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42 U.S.C. §300gg-91(a)(1) ........................................................................................................... 13 42 U.S.C. 300gg-91(b).............................................................................................................. 4, 13 42 U.S.C. § 1396a(a)(10) .............................................................................................................. 16 42 U.S.C. § 1396d(a)(4)(C) .......................................................................................................... 16 42 U.S.C. § 18021(a)(1)................................................................................................................ 30 42 U.S.C. § 18023(b)(1) ............................................................................................................... 30 42 U.S.C. § 18031(b) ................................................................................................................... 30 42 U.S.C. § 18032(f)..................................................................................................................... 30 42 U.S.C. § 2000bb-1 ................................................................................................................... 12 42 U.S.C. § 2000bb-1(b)............................................................................................................... 12 Pub. L. No. 111-148, 124 Stat. 119 (2010)......................................................................................4 Pub. L. No. 103-141, 107 Stat. 1488 (1993)..................................................................................12 Pub. L. No. 112-74, 125 Stat. 786 (2012)..………………………………………………………15
FEDERAL REGULATIONS 45 C.F.R. § 147.130(a)(1) ............................................................................................................... 8 45 C.F.R. § 147.140(g) ................................................................................................................. 22 45 C.F.R. § 46.202(f) .................................................................................................................... 32 62 Fed. Reg. 8610 (Feb.25, 1997) ................................................................................................ 33 75 Fed. Reg. 34,538 (June 17, 2010) ............................................................................................ 21 75 Fed. Reg. 41,726 (July 19, 2010)............................................................................................... 5
LEGISLATIVE MATERIALS 139 Cong. Rec. S14350-01 S14352 (daily ed. Oct. 26, 1993)...................................................... 16 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) ...................................................... 21
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Case: 4:13-cv-01577-JCH Doc. #: 22-1 Filed: 09/10/13 Page: 10 of 45 PageID #: 223 MISCELLANEOUS
FDA, Birth Control Guide .............................................................................................................31 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services
for Women (August 1, 2011) .............................................................................................31 HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines .....4, 5, 30, 31 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN:
CLOSING THE GAPS (2011) ......................................................................................... passim Kaiser Family Found., State Medicaid Coverage of Family Planning Services…………...........16 Kaiser Family Foundation and Health Research & Educational Trust, Employer
Health Benefits 2012 Annual Survey…………………………...……………………….22
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INTRODUCTION Plaintiffs ask this Court to enjoin a provision of law that does not apply to them and does not require anything of them. The preventive services coverage provision that plaintiffs challenge requires all non-exempt group health plans and health insurance issuers offering nongrandfathered health coverage to provide coverage without cost-sharing for certain recommended preventive services, including, among other things, immunizations; cholesterol screening; mammography; depression screening; autism screening for children; tobacco use counseling and interventions; and all Food and Drug Administration (“FDA”)-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider. But plaintiffs are not a “group health plan” or a “health insurance issuer,” and thus, they are not required by the provision they seek to enjoin to do anything. This flaw – and others – in plaintiffs’ suit warrants dismissal of this case (or, at the very least, denial of plaintiffs’ motion for temporary restraining order and preliminary injunction). At the outset, this case should be dismissed for lack of jurisdiction because plaintiffs have not shown – as it is their burden to do – that their alleged injury is caused by the law they challenge or that it is likely to be redressed by the injunction they seek. Instead, plaintiffs’ alleged injury is inextricably linked with the independent discretionary actions of Mr. Wieland’s employer, the State of Missouri, and the employer’s insurance provider, the Missouri Consolidated Health Care Plan (MCHCP) – third parties that are not before the Court. Plaintiffs have not shown that the challenged law was the cause of the State of Missouri’s or MCHCP’s decision not to offer to Mr. Wieland and other employees a health plan that excludes contraceptive coverage. Nor have plaintiffs shown that, even if they received the injunction they seek, these third parties would offer Mr. Wieland a health plan that excludes contraceptive coverage. Accordingly, plaintiffs lack standing, and the case should be dismissed. Furthermore, even if plaintiffs had standing, all of their claims are without merit. With respect to plaintiffs’ Religious Freedom Restoration Act claim, the preventive services coverage

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provision does not impose any burden – much less a substantial one – on plaintiffs’ religious exercise. As noted above, the provision does not impose any burden on plaintiffs because it does not even apply to them. Mr. Wieland is simply an employee of the entity to which the provision applies and that cannot be a substantial burden. Moreover, the fact that the premiums plaintiffs pay for their health plan are placed into a pool of funds that may ultimately be used by the plan’s issuer to fund contraceptive services obtained by plaintiffs’ daughters or other employees does not amount to a substantial burden. Indeed, another court in this District recently “reject[ed] the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.” O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1159 (E.D. Mo. 2012). RFRA, the court explained, “does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.” Id.
Even if plaintiffs could demonstrate a substantial burden on their religious exercise, their RFRA claim still would fail because the preventive services coverage provision significantly advances the government’s compelling interest in promoting public health and is the least restrictive means to achieve that interest. Congress enacted the provision to increase access to and utilization of recommended preventive services. The government undoubtedly has a compelling interest in having a workable insurance system that covers a wide range of preventive health services. Plaintiffs’ proposed alternative, in which insurance issuers are required to permit individual plan participants and beneficiaries to opt out of paying for coverage for any particular service they object to on religious grounds, is administratively and financially infeasible. “[C]ontraceptive care is by no means the sole form of health care that implicates religious concerns.” Grote v. Sebelius, 708 F.3d 850, 866 (7th Cir. 2013) (Rovner, J., dissenting). Some individuals object on religious grounds to vaccinations, drawing blood, preventive and remedial treatment for sexually-transmitted diseases, among many other services. See id. Permitting
2

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individual plan participants and beneficiaries to pick and choose what preventive services they would like their premiums to cover based on their individual religious beliefs would be an impossible administrative undertaking. It would, moreover, all but lead to the end of group health coverage, which relies on common coverage for a set of insured individuals. This is why, in the similar context of taxes, courts have uniformly held that the collection of tax revenues for expenditures that offend the religious beliefs of individual taxpayers does not violate free exercise rights.
Plaintiffs’ remaining claims also fail. First, the Free Exercise Clause does not prohibit a law that is neutral and generally applicable, even if the law prescribes conduct that an individual’s religion proscribes. Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). The preventive services coverage provision falls squarely within this rubric because it does not target, or selectively burden, religiously motivated conduct. It applies to all nongrandfathered health plans that do not qualify for the religious employer exemption or the accommodations for eligible organizations, not just those of employers with a religious affiliation. Second, the Wielands’ moral disapproval of the law, and their related desire to teach their children that that which the law makes available is sinful, does not render the law an unconstitutional intrusion on the Wielands’ rights to raise their daughters in the manner they choose. Nothing in the preventive services coverage provision prevents plaintiffs from teaching, believing, and fostering in their daughters the belief that contraception is wrong and sinful or from explaining to their daughters that the fact that the group health plan offered by Mr. Wieland’s employer covers contraception should not be understood as an endorsement by them of the use of contraception. The law, therefore, does not unconstitutionally interfere with parental rights. Third, the preventive services coverage provision does not violate the Free Speech Clause because it does not require plaintiffs to say anything or limit what plaintiffs may say. Indeed, as noted above, it does not regulate plaintiffs at all. Finally, plaintiffs lack prudential standing to raise a claim under section 1303(b)(1) of the Patient Protection and Affordable Care Act because plaintiffs are not “health insurance issuers” and they have not purchased a “qualified health
3

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plan.” And, in any event, the preventive services coverage provision does not require qualified health plans to cover abortions as prohibited by section 1303(b)(1).
BACKGROUND I. STATUTORY AND REGULATORY BACKGROUND
Before the enactment of the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of disease, lead productive lives, and reduce health care costs. Due in large part to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”), available at http://www.nap.edu/catalog.php?record_id=13181 (last visited Sept. 9, 2013). The preventive services coverage provision that plaintiffs challenge here seeks to cure this problem by making recommended preventive care affordable and accessible for many more Americans. It requires all non-exempt group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for recommended preventive services without cost-sharing – that is, without requiring plan participants and beneficiaries to make copayments or pay deductibles. 42 U.S.C. § 300gg-13. The provision applies to employment-based group health plans covered by ERISA as well as to health plans offered by health insurance issuers on the health benefit exchanges established by the ACA. See 29 U.S.C. § 1185d; 42 U.S.C. § 300gg-91(b). The provision does not require anything of individual plan participants or beneficiaries.
The preventive health services that must be covered include immunizations recommended by the Advisory Committee on Immunization Practices, 42 U.S.C. § 300gg13(a)(2); items or services that have an “A” or “B” rating from the U.S. Preventive Services Task Force, id. § 300gg-13(a)(1); preventive care and screenings for infants, children and adolescents as provided in guidelines of the Health Resources and Services Administration (“HRSA”), a component of the Department of Health and Human Services, id. § 300gg-13(a)(3); and certain
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additional preventive services for women as provided in HRSA guidelines, id. § 300gg-13(a)(4). Each category encompasses a package of preventive services that have been determined by independent medical experts in the relevant field to improve health outcomes. See 75 Fed. Reg. 41,726, 41,733 (July 19, 2010); IOM REP. at 2. Items or services receiving an A or B rating by the U.S. Preventive Services Task Force, for example, have been determined by an independent panel of private sector experts in primary care and prevention to be supported by fair or good evidence showing that they improve important health outcomes and that the benefits outweigh any harms. 75 Fed. Reg. at 41,733. And the HRSA guidelines for preventive services for women were developed based on recommendations by the Institute of Medicine after it conducted an extensive science-based review of the preventive services that are necessary for women’s health and well-being.1 IOM REP. at 2; HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), available at http://www.hrsa.gov/ womensguidelines/ (last visited Sept. 9, 2013).
The array of recommended preventive health services that must be covered under this provision include, inter alia, immunizations; cholesterol screening; blood pressure screening; mammography; cervical cancer screening; screening and counseling for sexually transmitted infections; domestic violence counseling; depression screening; obesity screening and counseling; diet counseling; hearing loss screening for newborns; autism screening for children; developmental screening for children; alcohol misuse counseling; tobacco use counseling and interventions; well-woman visits; breastfeeding support and supplies; and all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a provider.2
1 IOM was established in 1970 by the National Academy of Sciences and is funded by Congress. IOM REP. at iv. It secures the services of eminent members of appropriate professions to examine policy matters pertaining to the health of the public and provides expert advice to the federal government. Id.
2 For a complete list of services for which coverage is required, see http://www.hhs.gov/healthcare/facts/factsheets/2010/07/preventive-services-list.html.
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By requiring coverage for recommended preventive services and eliminating cost-sharing requirements, Congress sought to increase access to and utilization of these services, which were not used at optimum levels. 75 Fed. Reg. at 41,728. Underutilization of preventive services was caused by three main factors. First, health insurance issuers did not have incentives to provide coverage for preventive services because the benefits may only be realized in the future when, due to high turnover in the health insurance market, an individual may no longer be enrolled in the plan. Id. at 41,731. Second, individuals were less likely to use preventive services due to the direct and immediate costs imposed by cost-sharing requirements. Id. Third, some of the benefits of preventive services accrue to society as a whole and thus individuals do not factor these benefits in when deciding whether to obtain preventive services. Id. Congress enacted the preventive services coverage provision to eliminate these market failures. See id. In particular, by requiring non-grandfathered health plans to provide coverage for recommended preventive services, Congress sought to overcome plans’ lack of incentive to invest in these services. See id. And Congress eliminated cost-sharing requirements to remove a barrier that causes individuals not to obtain such services. See id.
The increased access to and utilization of recommended preventive services that Congress sought to achieve through the ACA is intended to benefit the health of individual Americans and society at large. Id. at 41,733-36. Individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease. Id. Healthier workers and children will be more productive with fewer sick days. Id. Increased utilization will reduce the incidence or severity of illness and thus result in lower health care costs. Id. And the cost of preventive services will be distributed more equitably across the broad insured population. Id. II. CURRENT PROCEEDINGS
Plaintiffs, Paul Joseph Wieland and Teresa Jane Wieland, brought this action to challenge the preventive services coverage provision and implementing regulations. Plaintiffs allege that they receive health coverage for themselves and their three daughters through the Missouri
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Consolidated Health Care Plan, which is provided as an earned benefit of Mr. Wieland’s employment with the State of Missouri. According to plaintiffs, they pay a portion of their health care plan premiums while the State of Missouri contributes the remaining portion. Plaintiffs allege that their premiums “partially fund medical services provided to other employees covered under the same plan.” Compl. ¶ 32.
Plaintiffs were notified in July 2013 that, beginning August 1, 2013, the health plan provided by Mr. Wieland’s employer would include coverage for all FDA-approved contraceptive methods, sterilization procedures, and related patient education and counseling. Plaintiffs allege that their sincerely held religious beliefs prohibit them from providing, funding or participating in the provision of health coverage for such services. Compl. ¶ 35. Plaintiffs claim that, as purportedly applied to them, the preventive services coverage provision, and particularly the requirement that all non-grandfathered health plans cover contraceptive services, violates the Religious Freedom Restoration Act, the First and Fifth Amendments to the United States Constitution, and the Administrative Procedure Act. On August 20, 2013, plaintiffs moved for a temporary restraining order and preliminary injunction, seeking an order from the Court “prohibiting Defendants from requiring that the Plaintiffs’ health benefit plan contain coverage for” the objected to services. Pls.’ Mem. in Supp. of Mot. for Temp. Restraining Ord. & Prelim. Inj. (“Pls.’ Mem.”) at 34, ECF No. 4, Aug. 20, 2013.
STANDARD OF REVIEW Defendants move to dismiss this case for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. The party invoking federal jurisdiction bears the burden of establishing its existence, and the Court must determine whether it has subject matter jurisdiction before addressing the merits of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 9495, 104 (1998); Wilkinson v. United States, 440 F.3d 970, 977 (8th Cir. 2006). Under Rule 12(b)(6), “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
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supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
This memorandum also responds to plaintiffs’ motion for a temporary restraining order and preliminary injunction. A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. “The party requesting injunctive relief bears the ‘complete burden’ of proving that an injunction should be granted.” Henderson v. Biltbest Prods., Inc., No. 4:10CV01503 AGF, 2010 WL 5392828, at *3 (E.D. Mo. Dec. 22, 2010). The elements for obtaining a temporary restraining order are the same as those required for obtaining a preliminary injunction. Irving v. Jones, No. 1:09CV8 SNLJ, 2009 WL 910687, at *1 (E.D. Mo. Apr. 2, 2009).
ARGUMENT I. THIS CASE SHOULD BE DISMISSED BECAUSE THE COURT LACKS
SUBJECT MATTER JURISDICTION Plaintiffs’ motion for preliminary injunction, and their entire case, should be dismissed at the outset for lack of standing. Plaintiffs are individuals who receive health coverage through Mr. Wieland’s employer, the State of Missouri, and their complaint stems from an objection to the nature of the coverage the employer provides in compliance with a federal requirement that acts upon the employer and its health insurance provider only. As plaintiffs themselves explain, the preventive services coverage provision is addressed to “group health plans” and “health insurance issuers.” Compl. ¶¶ 41, 65, 66; see 42 U.S.C. § 300gg-13; 45 C.F.R. § 147.130(a)(1) (“[A] group health plan, or a health insurance issuer offering group or individual health insurance coverage, must provide coverage for all of the following items and services.”).
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Plaintiffs are neither.3 The only provision that plaintiffs challenge thus imposes no direct obligation or requirement on plaintiffs. The Supreme Court has recognized that establishing standing in the case of such an indirect injury is “substantially more difficult” than it is when a law directly makes a plaintiff “the object” of government action. Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992) (citation omitted). Plaintiffs fail to clear that hurdle here.
“[T]he irreducible constitutional minimum of standing” requires that a plaintiff (1) have suffered an injury in fact, (2) that is caused by the defendant’s conduct, and (3) that is likely to be redressed by a favorable ruling. Id. at 560. The requirement of a causal connection between the defendant’s conduct and the plaintiff’s injury means that the injury must be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (citation omitted). Further, for an injury to be redressable, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561 (citation omitted).
It is these latter two elements – causation and redressability – that make establishing standing difficult in a challenge to a law by which one is not personally regulated. As the Court explained in Lujan, “[w]hen . . . a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction – and perhaps on the response of others as well.” 504 U.S. at 562 (emphasis in original); see Doe v. Va. Dep’t of State Police, 713 F.3d 745, 755 (4th Cir. 2013) (“The traceability and redressability prongs become problematic when third persons not party to the litigation must act in order for an injury to arise or be cured.”). Here, plaintiffs’ alleged injury is not caused by the law they challenge, and it is not likely to be redressed by the injunction they seek, because the injury is inextricably linked with
3 Plaintiffs’ allegation that they “provide” health insurance coverage for their daughters, Compl. ¶¶ 75-76, does not make them an issuer of a health insurance plan offering group or individual health insurance coverage. Plaintiffs are simply subscribers to a health plan.
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the independent discretionary actions of third parties not before the Court: the Wielands’ employer, the State of Missouri, and that employer’s insurance provider, MCHCP.
First, the chain of causation between the preventive services coverage provision and plaintiffs’ alleged injury is indirect and attenuated, see Allen v. Wright, 468 U.S. 737, 757-58 (1984), and plaintiffs’ assertions do not satisfy their burden to “adduce facts showing that [the independent] choices [of a third party] have been or will be made in such manner as to produce causation and permit redressability of injury,” Lujan, 504 U.S. at 562. The explanation from MCHCP that plaintiffs have placed in the record simply refers to a “federal court ruling” and a decision of the Board of Trustees, Ex. 2 to Pls.’ Mem., ECF No. 4-2, but this vague reference alone is insufficient to establish causation. See Renal Physicians Ass’n v. U.S. Dep’t of Health & Human Servs., 489 F.3d 1267, 1277 (D.C. Cir. 2007) (finding insufficient an affidavit that “refers vaguely to a ‘new federal law,’” and concluding that “we really have no way of knowing why” the third party took the action that harmed plaintiff).
Plaintiffs believe the court ruling that MCHCP referred to was Judge Fleissig’s decision finding the state statute requiring insurance companies to offer health plans that do not cover contraception to be preempted by federal law. Missouri Ins. Coal. v. Huff, No. 4:12-cv-02354, 2013 WL 2250430, at *5 (E.D. Mo. May 22, 2013). But even if this were true, as plaintiffs recognize, Huff did not address a different state statute that provides that no employee shall be compelled to obtain, and no employer shall be compelled to provide, coverage for contraception. Pls.’ Mem. at 1.n.1 (citing Mo. Rev. Stat. § 191.724). Moreover, the defendant in Huff – a state official who, along with other state officials and legislators, sits on the same MCHCP Board of Trustees that voted to eliminate the opt out option that plaintiffs desire4 – declined to appeal the court’s ruling. Without more evidence of these third parties’ decision-making, plaintiffs cannot draw a line of causation from the challenged law to their own alleged injury that is not severed by the independent acts or omissions of the State of Missouri, MCHCP, or other independent
4 MCHCP, Board of Trus tees, http://www.mchcp.org/aboutUs/board.asp (last visited Sept. 9, 2013).
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actors. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976) (“[T]he ‘case or controversy’ limitation of [Article III] still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.”); Allen, 468 U.S. at 759 (1984) (noting that, in Simon, “[t]he causal connection depended on the decisions hospitals would make in response to withdrawal of tax-exempt status, and those decisions were sufficiently uncertain to break the chain of causation between the plaintiffs’ injury and the challenged Government action”); Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004).
Much more problematic for plaintiffs is the fact that, even if they could establish causation, they cannot establish that their alleged injury is likely to be redressed by a favorable ruling. To start, plaintiffs do not challenge any law from which they could be relieved because the preventive services coverage provision does not apply to them. Plaintiffs have requested an injunction that would prohibit the defendants from “forc[ing] [plaintiffs] to provide, fund, or participate in the provision of contraceptives,” Compl. at 21, ¶ e, but the preventive services coverage provision does not require any such thing. Rather, the provision requires plaintiffs’ employer and the employer’s health insurance provider to cover contraception in the employer’s health plan. Indeed, even if the Court were to grant plaintiffs the injunction they seek, defendants would only be enjoined from imposing a penalty on the State of Missouri or MCHCP in the event either decided to permit plaintiffs to opt out of contraceptive coverage; but whether the State or MCHCP would ultimately permit plaintiffs to opt out is a choice entirely in their hands, and those entities are not before the Court.5 In fact, thus far, neither the State nor MCHCP has evinced any interest in making such an exemption available. Neither the State nor MCHCP has challenged the preventive services coverage provision or the contraceptive coverage requirement. As noted above, the State has evidently declined to appeal a ruling that this federal requirement preempts a state law that required insurance companies to offer health plans that do
5 It is not entirely clear that the Court could enjoin defendants from enforcing the preventive services coverage provision against entities that are not parties to this case.
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not cover contraception. And MCHCP has chosen, as plaintiffs point out, not to offer plaintiffs an exemption under another provision in the Missouri code that deals with contraception coverage. Compl. ¶ 82.
In other words, even if plaintiffs received the injunction they seek against defendants, Mr. Wieland could find that he still works for an employer that covers contraception in its health plan. Whether plaintiffs’ claims of injury would be redressed by a favorable decision in this case thus “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” which is fatal to plaintiffs’ standing. Lujan, 504 U.S. at 562 (quoting ASARCO, Inc. v. Kadish, 490 U.S. 605, 615 (1989) (plurality opinion)); see id. at 569-70 (“[R]esolution by the District Court would not have remedied respondents’ alleged injury anyway, because it would not have been binding upon the agencies. They were not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.”); Nat’l Wrestling Coaches, 366 F.3d at 936-37 (“The direct causes of appellants’ asserted injuries . . . are the independent decisions of educational institutions . . . . Appellants offer nothing but speculation to substantiate their claim that a favorable decision from this court will redress their injuries by altering these schools’ independent decisions.”). II. EVEN IF THE COURT HAD JURISDICTION, PLAINTIFFS FAIL TO STATE A
CLAIM UPON WHICH RELIEF MAY BE GRANTED, AND THEY HAVE NOT SHOWN A LIKELIHOOD OF SUCCESS ON THE MERITS A. Plaintiffs’ Religious Freedom Restoration Act Claim Fails Congress enacted the Religious Freedom Restoration Act (“RFRA”), Pub. L. No. 103141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. §§ 2000bb-1, et seq.) in response to Employment Division v. Smith, 494 U.S. 872 (1990). RFRA was intended to reinstate the preSmith compelling interest test for evaluating legislation that substantially burdens the free exercise of religion. 42 U.S.C. § 2000bb-1(b). Under RFRA, the federal government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. 42 U.S.C. 2000bb-1. Plaintiffs RFRA claim
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fails because the preventive services coverage provision does not substantially burden plaintiffs’
exercise of religion and, in any event, it satisfies strict scrutiny.
1. Plaintiffs have not shown that the preventive services coverage provision substantially burdens their religious exercise
The preventive services coverage provision that plaintiffs challenge does not substantially
burden their religious exercise because it does not apply to plaintiffs at all. The provision applies
only to group health plans and health insurance issuers, and plaintiffs are neither. See 42 U.S.C.
§ 300gg-91(a)(1) (defining group health plan to include a plan established or maintained by an
employer that provides medical care to employees); id. § 300gg-91(b) (defining a health
insurance issuer that offers health insurance coverage as an insurance company, insurance
service, or insurance organization that is licensed to engage in the business of insurance in a state
and that issues a policy or contract to provide group or individual health insurance coverage).
Thus, unlike the employer plaintiffs in the cases the Wielands cite, which are required to provide
coverage for contraceptive services in any health plan they offer to their employees, the
Wielands are not required to “provide . . . coverage” (Compl. ¶ 38; accord Pls.’ Mem. at 4, 10,
14) for contraceptive services or any other preventive services to their daughters or to anyone else. Plaintiffs’ RFRA challenge should be dismissed for this reason alone.6
The fact that the preventive services coverage provision may require Mr. Wieland’s
employer or his employer’s insurance issuer to provide coverage for preventive services in any
6 Motions panels of the Eighth Circuit have granted injunctions pending appeal to employers challenging the contraceptive coverage requirement under RFRA. See O’Brien v. HHS, No. 12-3357, Order (8th Cir. Nov. 28, 2012) (granting injunction pending appeal without explanation); Annex Medical, Inc. v. Sebelius, No. 13-1118, Order (8th Cir. Feb. 1, 2012) (granting injunction pending appeal based on O’Brien). Although the government believes these motions were wrongly decided, it has not opposed the entry of preliminary injunctions in subsequent cases brought by employers in the Eighth Circuit pending a decision by the merits panel in O’Brien or Annex Medical. See, e.g., Bick Holdings, Inc. v. Sebelius, No. 4:13-cv-00462-AGF, ECF No. 18 (E.D. Mo. Mar. 28, 2013). Neither the motions panels’ decisions in O’Brien or Annex Medical nor the government’s position on the entry of preliminary injunctive relief as to employers is controlling in, persuasive in, or even relevant to this case. As noted above, the individual plaintiffs here are not in the same position as the employers in cases like O’Brien because plaintiffs are not required by the challenged law to provide coverage for contraceptive services or to do anything else for that matter. Further, as explained below, this case requires a different strict scrutiny analysis than the one apparently undertaken by the Eighth Circuit motions panels – one that the government easily satisfies.
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health plan they offer – including any plan plaintiffs may decide to subscribe to – does not establish a substantial burden on plaintiffs’ exercise of religion. A plaintiff cannot establish a substantial burden on his religious exercise by invoking this type of trickle-down-burden theory. Instead, cases that find a substantial burden – including those relied on by plaintiffs here – uniformly involve a direct burden on the plaintiffs themselves rather than a burden imposed on another entity. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (law prohibited plaintiff from sacrificing animals); United States v. Lee, 455 U.S. 252 (1982) (law required plaintiff to pay social security taxes); Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981) (law denied plaintiff unemployment benefits because of his religious exercise); Sherbert v. Verner, 374 U.S. 398 (1963) (same); Wisconsin v. Yoder, 406 U.S. 205 (1972) (law required plaintiffs to send their children to school); United States v. Ali, 682 F.3d 705 (8th Cir. 2012) (court order required claimant to stand when court convened and recessed). “In our modern regulatory state, virtually all legislation (including neutral laws of general applicability) imposes an incidental burden at some level by placing indirect costs on an individual’s activity. Recognizing this . . . [t]he federal government . . . ha[s] identified a substantiality threshold as the tipping point for requiring heightened justifications for governmental action.” Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 262 (3d Cir. 2008) (Scirica, C.J., concurring). Here, the alleged burden on plaintiffs’ religious exercise results from obligations that the preventive services coverage provision imposes on other entities (i.e., the State of Missouri and MCHCP) and thus it is not cognizable under RFRA.
Plaintiffs also argue that their religious exercise is substantially burdened because the premiums they pay for their health plan are placed into a pool of funds that may ultimately be used by the plan’s issuer to fund contraceptive services obtained by their daughters or other employees. But this argument fails too, as another court in this District recently recognized. See O’Brien, 894 F. Supp. 2d 1149.7 Although O’Brien involved a challenge by an employer to the
7 The district court’s decision in O’Brien is sound in its reasoning. And although a motions panel of the Eighth Circuit granted an injunction pending appeal in O’Brien, “[d]ecisions by motions panels are
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contraceptive coverage requirement, and thus is not on point as to the Wielands’ providing
coverage argument for the reasons explained above, the court’s reason for rejecting the O’Brien
plaintiffs’ RFRA claim is compelling as to the Wielands’ funding argument. The court
explained,
the challenged regulations do not dem and that plaintiffs alter their behavior in a manner that will d irectly and in evitably prevent plaintiffs from acting in accordance with their religious beliefs. [Plaintiff] is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as comm union. Instead, plaintiffs rem ain free to exercise their religion, by not us ing contraceptives and by dis couraging [other] employees [and their daughters] fr om using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [Mr. W ieland’s employer’s] plan, subsidize someone else’s participation in an activity that is condemned by pl aintiffs’ religion. The Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff him self abstains according to his religious princip les, constitutes a substantial burden on plaintiff’s religious exercise.
Id. at 1159. The court noted that adopting the plaintiffs’ substantial burden argument would turn
RFRA, which was meant as a shield, into a sword. Id. “[RFRA] is not a means to force one’s
religious practices upon others. RFRA does not protect against the slight burden on religious
exercise that arises when one’s money circuitously flows to support the conduct of other free-
exercise-wielding individuals who hold religious beliefs that differ from one’s own.” Id. Indeed,
plaintiffs “routinely contribute to other schemes” that “present the same conflict with their
belief[s]” alleged here. Mead v. Holder, 766 F. Supp. 2d 16, 42 (D.D.C. 2011), aff’d, Seven-Sky
v. Holder, 661 F.3d 1, 5 n.4 (D.C. Cir. 2011) (rejecting RFRA challenge to another ACA
provision). A portion of plaintiffs’ taxes, for example, are used for Medicaid and Medicare,
programs that routinely pay for contraceptive services for the needy and disabled. See
Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. II, 125 Stat. 786, 1075
summary in character, made often on a scanty record, and not entitled to the weight of a decision made after plenary submission.” In re Rodriquez, 258 F.3d 757, 759 (8th Cir. 2001) (quotation omitted). That is particularly so where, as in O’Brien, the motions panel gave no explanation for its decision, which was issued over a dissent. See, e.g., Gonzalez v. Arizona, 485 F.3d 1041, 1046 (9th Cir. 2007) (noting Supreme Court vacated an injunction “because the motions panel gave no reasons for its action”). Indeed, the decision of a motions panel is not even binding on the merits panel in the same case. See Council Tree Commc’ns, Inc. v. FCC, 503 F.3d 284, 291-92 (3d Cir. 2007) (citing cases).
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(2012); 42 U.S.C. § 1396a(a)(10); id. § 1396d(a)(4)(C); IOM REP. at 59; see also Kaiser Family Found., State Medicaid Coverage of Family Planning Services, at 7, 9, 11 (Nov. 2009), available at http://www.kff.org/womenshealth/upload/8015.pdf (last visited Sept. 9, 2013) (identifying contraceptive services covered under Missouri’s Medicaid State Plan). Accordingly, any impact on plaintiffs’ religious exercise is de minimus and too attenuated to constitute a substantial burden, even if it were viewed as a burden at all.
Plaintiffs suggest that the Court cannot look beyond their sincerely held assertion of a religiously based objection to the preventive services coverage provision to assess whether the law actually functions as a substantial burden on the exercise of religion. “But if accepted, this theory would mean that every government regulation could be subject to the compelling interest and narrowest possible means test of RFRA based simply on an asserted religious basis for objection.” Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677, at *7 (W.D. Mich. Dec. 24, 2012). “This would subject virtually every government action to a potential private veto based on a person’s ability to articulate a sincerely held objection tied in some rational way to a particular religious belief.” Id. The “most demanding test known to constitutional law,” City of Boerne v. Flores, 521 U.S. 507, 534 (1997), would thus be transformed into a norm against which Congress must always legislate. Although “‘courts are not the arbiters of scriptural interpretation,’” Thomas, 450 U.S. at 718, “the RFRA still requires the court to determine whether the burden a law imposes on a plaintiff’s stated religious beliefs is ‘substantial.’” Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013), aff’d on other grounds, 2013 WL 3845365 (3d Cir. July 26, 2013). Otherwise, “the standard expressed by Congress under the RFRA would convert to an ‘any burden’ standard.” Id. at 414. Congress, however, amended the initial version of RFRA to add the word “substantially,” and thus made clear that “any burden” would not suffice. See 139 Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy & text of Amendment No. 1082). Because the preventive services coverage provision does not apply to plaintiffs at all and imposes – at most – only a de minimus and attenuated burden on plaintiffs’ religious exercise,
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plaintiffs have not shown – as they are required to do – that the law imposes a substantial burden on their religious exercise.
2. Even if there were a substantial burden, the preventive services coverage provision serves compelling governmental interests and is the least restrictive means to achieve those interests
Even if plaintiffs were able to demonstrate a substantial burden on their religious exercise, they would not prevail on their RFRA claim because the preventive services coverage provision significantly advances the government’s compelling interest in promoting public health and is the least restrictive means to achieve that interest. Having a workable insurance system that covers a wide range of preventive health services is undoubtedly a compelling governmental interest. See, e.g., Lee, 455 U.S. at 258 (affirming government’s compelling interest in social security system, which provides “a comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees”); Mead, 766 F. Supp. 2d at 43 (“[T]he Government clearly has a compelling interest in safeguarding the public health by regulating the health care and insurance markets.”); see also 75 Fed. Reg. at 41,731-36 (explaining that Congress sought to make recommended preventive services more accessible and affordable by requiring coverage of such services and eliminating cost-sharing requirements).8
In contrast to the system of mandatory coverage for recommended preventives services in all non-grandfathered health plans that Congress established, plaintiffs want a system where individual plan participants and beneficiaries can opt out of paying for coverage for any particular service they object to on religious grounds. Plaintiffs’ proposal, however, misunderstands how health insurance works. Health insurance, by design, covers a wide array of services. No one is required to use a particular service that is covered by a comprehensive plan.
8 “Mandated-benefit laws . . . that require an insurer to provide a certain kind of benefit to cover a specified illness or procedure whenever someone purchases a certain kind of insurance” are commonplace. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 728 (1985). By 1985, every State had imposed some coverage requirements on health insurance policies, id. at 729, and Congress has done so as well long before the enactment of the preventive services coverage provision, 29 U.S.C. §§ 1185-1185c.
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Indeed, health insurance plans routinely cover services that a particular participant or beneficiary may not want or may never use. Most health plans, for example, cover prostate cancer screening even though women do not have a prostate. And most plans cover children’s immunizations even though some plan participants do not have children or do not plan to immunize their children. Insurance markets could not function – either administratively or financially – if insurers had to tailor each health plan to the specific needs and desires of each individual plan participant and beneficiary.
Limiting “opt outs” only to objections based on religious beliefs would not eliminate this feasibility problem either. As Judge Rovner explained in another challenge to the contraceptive coverage requirement, “contraceptive care is by no means the sole form of health care that implicates religious concerns. To cite a few examples: artificial insemination and other reproductive technologies; genetic screening, counseling, and gene therapy; preventative and remedial treatment for sexually-transmitted diseases; sex reassignment; vaccination; organ transplantation from deceased donors; blood transfusions; stem cell therapies; [and] end-of-life care[.]” Grote, 708 F.3d at 866 (Rovner, J., dissenting). Many of the health care services that may implicate religious concerns are preventive services required by the preventive services coverage provision. Permitting individual plan participants and beneficiaries to pick and choose what preventive services they would like their premiums to cover based on their individual religious beliefs would be an impossible administrative undertaking. It would, moreover, all but lead to the end of group health coverage, which relies on common coverage for a set of insured individuals. See Graham v. CIR, 822 F.2d 844, 853 (9th Cir. 1987) (explaining that in applying the least restrictive means test courts are not limited to “analyz[ing] the problem solely in terms of exempting the few adherents whose religious views were alleged to conflict with the law,” but rather, should consider the “myriad exemptions flowing from a wide variety of religious beliefs”); see also United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (per curiam) (“Oliver has argued a one-man exemption should be made,” but “[t]here are no safeguards to
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prevent similarly situated individuals from asserting the same privilege and leading to uncontrolled eagle harvesting.”).
The “opt out” system plaintiffs seek here is similar to the one courts have uniformly rejected in the tax context since the Supreme Court’s decision in United States v. Lee, 455 U.S. 252 (1982). See Jenkins v. CIR, 483 F.3d 90, 92 (2d Cir. 2007) (recognizing that it is “well settled that the collection of tax revenues for expenditures that offend the religious beliefs of individual taxpayers does not violate the Free Exercise Clause of the First Amendment”). The plaintiff in Lee sought an exemption from paying social security taxes based on religious objection. The Court rejected the plaintiff’s claim, explaining: “The design of the [social security] system requires support by mandatory contributions from covered employers and employees. This mandatory participation is indispensable to the fiscal vitality of the social security system. [W]idespread individual voluntary coverage under social security . . . would undermine the soundness of the social security program. Moreover, a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer.” Lee, 455 U.S. at 258 (internal quotations and citation omitted). More broadly, the Court acknowledged the difficulty of accommodating religious belief in the area of taxation – a difficulty that similarly exists in the context of mandatory health coverage. The Court noted that “we are a cosmopolitan nation made up of people of almost every conceivable religious preference.” Id. at 259. “To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, but there is a point at which accommodation would radically restrict the operating latitude of the legislature.” Id. (quotations and citations omitted). The same reasoning applies here.
Indeed, in Goehring v. Brophy, 94 F.3d 1294 (9th Cir. 1996), the Ninth Circuit relied on the rationale of the tax cases to reject a RFRA challenge to a mandatory health insurance requirement. Id. at 1298, overruled on other grounds, City of Boerne v. Flores, 521 U.S. 507 (1997). In Goehring, several students at the University of California alleged that their rights to
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free exercise were violated by a mandatory health insurance fee collected by the University for a health insurance program that covered services to which the plaintiffs objected on religious grounds. “[G]uided by cases involving free exercise challenges to the government’s use of tax dollars,” the Ninth Circuit rejected the challenges. Goehring, 94 F.3d at 1301. The court explained that “the fiscal vitality of the University’s fee system would be undermined if the plaintiffs in the present case were exempted from paying a portion of their student registration fee on free exercise grounds. Mandatory uniform participation by every student is essential to the insurance system’s survival.” Id. at 1301.
Like the Social Security program in Lee and the mandatory health insurance program in Goehring, the preventive services coverage provision could not function if individuals could opt out of paying for coverage for particular preventive services by asserting a religious objection to those services. If plaintiffs were granted such an exemption, the number of people who could “potentially claim the exemption,” and the variety of preventive services for which they could claim the exemption, would be limitless. Olsen v. CIR, 709 F.2d 278, 281 (4th Cir. 1983) (it would be impossible “to limit in number the class of persons who might potentially claim the exemption or the scope of the exemption” if the appellant’s exemption request were granted). Congress determined that mandatory, uniform coverage of recommended preventive services in all non-grandfathered health plans was necessary to make such services more accessible and more affordable and thereby improve public health. Because the soundness of the system Congress created “depends on the government’s ability to apply the . . . law in a uniform and even-handed fashion, and the exemption of one presages the exemption of a great many others,” Graham, 822 F.2d at 853, the preventive services coverage provision satisfies strict scrutiny.9
9 Although the proper focus in this case for assessing the government’s interest is the preventive services coverage provision as a whole, the contraceptive coverage requirement in particular also advances compelling governmental interests. Specifically, the contraceptive coverage requirement – which was adopted based on the recommendation of the Institute of Medicine after it conducted an extensive science-based review of the preventive services that are necessary for women’s health and wellbeing – furthers the government’s compelling interest in public health by reducing unintended pregnancies, and the negative health outcomes that disproportionately accompany such pregnancies, and promoting healthy birth spacing. IOM REP. at 2, 20-26, 102-04; see also Dickerson v. Stuart, 877 F. Supp.
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Plaintiffs contend that the government interest underlying the preventive services coverage provision cannot be considered compelling because grandfathered plans are not required to cover recommended preventive services. Pls.’ Mem. at 19. As an initial matter, grandfathering does not provide an exemption or opt out for individual plan participants or beneficiaries like the one plaintiffs seek here. Grandfathering occurs at the plan level, and thus, does not raise the administrative and financial feasibility problems discussed above that would result from allowing individual plan participants and beneficiaries to determine what preventive services they would like their premiums to cover based on their individual religious beliefs. There are in fact no individual opt outs for recommended preventive services, meaning that all participants and beneficiaries enrolled in plans that are required to include coverage for recommended preventive services will have such coverage whether they choose to use it or not.
In any event, this is not a case where underinclusive enforcement of a law suggests that the government’s “supposedly vital interest” is not really compelling. Lukumi, 508 U.S. at 54647. The grandfathering of certain plans is not really a permanent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preventive services coverage provision. The grandfathering provision reflects Congress’s attempts to balance competing interests – specifically, the interest in spreading the benefits of the ACA and the interest in maintaining existing coverage and easing the transition into the new regulatory regime established by the ACA – in the context of a complex statutory scheme. See 75 Fed. Reg. 34,538, 34,540, 34,546 (June 17, 2010). This incremental transition does nothing to call into question the compelling interest furthered by the preventive services
1556, 1559 (M.D. Fla. 1995) (“The State . . . has a compelling interest in the health of expectant mothers and the safe delivery of newborn babies.”). The contraceptive coverage requirement also significantly advances the government’s compelling interest in gender equality. As members of Congress explained “women have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009). Congress’s inclusion of gender-specific preventive health services for women in the preventive services coverage provision to “[a]ssur[e] women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interests.” Roberts v. United States Jaycees, 468 U.S. 609, 626 (1984).
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coverage provision. Even under the grandfathering provision, it is projected that more group
health plans will transition to the preventive services coverage requirements as time goes on.
Changes to a group health plan such as the elimination of certain benefits, an increase in cost-
sharing requirements, or a decrease in employer contributions can cause a plan to lose its
grandfathered status, see 45 C.F.R. § 147.140(g), and defendants estimate that, as a practical
matter, a majority of group health plans will lose their grandfather status by 2013, see 75 Fed. Reg. at 34,552.10 Thus, any purported damage to the compelling interest underlying the provision
will be quickly mitigated, which is in stark contrast to the permanent exemption that plaintiffs
seek. Plaintiffs would have this Court believe that an interest cannot truly be “compelling” unless
Congress is willing to impose it on everyone all at once despite competing interests, but offers no
support for such an untenable proposition. See Legatus v. Sebelius, 901 F. Supp. 2d 980, 994
(E.D. Mich. 2012) (“[T]he grandfathering rule seems to be a reasonable plan for instituting an
incredibly complex health care law while balancing competing interests.”), appeal docketed, No. 13-1092 (6th Cir. Jan. 24, 2013).11
Instead of explaining how the government could create an administratively and
financially feasible system that allows plaintiffs and other individuals with religious objections to
certain preventive services to opt out of paying for such coverage, plaintiffs conjure up several
new statutory schemes they claim would be less restrictive. See Pls.’ Mem. at 20-21. None of
these imagined schemes addresses the problem the government has identified, i.e., making
10 See also Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190, available at http://kaiserfamilyfoundation.files.wordpress.com/ 2013/03/8345-employer-health-benefits-annual-survey-full-report-0912.pdf (last visited Sept. 9, 2013) (indicating that 58 percent of firms had at least one grandfathered health plan in 2012, down from 72 percent in 2011, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in 2011).
11 Contrary to plaintiffs’ assertion (Pls.’ Mem. 18-19), small employers are not exempted from the preventive services coverage provision. Like large businesses, small businesses that offer nongrandfathered health coverage to their employees are required to provide coverage for recommended preventive services without cost-sharing. Moreover, employees of small business (and large businesses) that do not offer health coverage to their employees will be required by the minimum coverage provision to obtain health coverage from another source (most likely the health insurance exchanges). And, because of the preventive services coverage provision, that coverage will include recommended preventive services.
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recommended preventive services, not just contraceptive services, more accessible and more affordable. Moreover, plaintiffs point to no statutory authority for any of their proffered less restrictive alternatives. Nor is there any indication that Congress would have contemplated that agency action could be invalidated under RFRA because the agency in discharging its statutorily delegated authority failed to adopt an alternative scheme absent any statutory authority for doing so. Further, plaintiffs’ suggestion – that, in the face of individual religious objections to a mandatory insurance coverage law, the government could just pay for or provide the covered services to everyone itself – would eviscerate the strict scrutiny test. It would become “strict in theory, but fatal in fact.” United States v. Wilgus, 638 F.3d 1274, 1289 (10th Cir. 2011); see also Adams v. CIR, 170 F.3d 173, 180 n.8 (3d Cir. 1999) (“A judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legislation down.’” (quotations omitted)). RFRA does not require the government “to subsidize private religious practices,” Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 94 (Cal. 2004), by expending significant resources to adopt an entirely new legislative scheme that “would place an unreasonable burden” on the government, United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011).
For these reasons, plaintiffs’ RFRA claim fails and should be dismissed. B. Plaintiffs’ Free Exercise Claim Fails The Supreme Court has made clear that a law that is neutral and generally applicable does not run afoul of the Free Exercise Clause even if it prescribes conduct that an individual’s religion proscribes or has the incidental effect of burdening a particular religious practice. Smith, 494 U.S. at 879. The preventive services coverage provision falls squarely within this rubric and thus does not violate the Free Exercise Clause. Indeed, that was precisely the holding of nearly every court to address this claim.12
12 See MK Chambers Co. v. HHS, No. 13-11379, 2013 WL 1340719, at *5 (E.D. Mich. Apr. 3, 2013); Eden Foods, Inc. v. Sebelius, No. 13-11229, 2013 WL 1190001, at *5 (E.D. Mich. Mar. 22, 2013);
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“Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law is neutral if it does not target religiously motivated conduct either on its face or as applied. Id. at 533. A neutral law has as its purpose something other than the disapproval of a particular religion, or of religion in general. Id. at 545. A law is generally applicable so long as it does not selectively impose burdens only on conduct motivated by religious belief. Id; see also Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008) (observing law was neutral and generally applicable where there is no evidence of “an intent to regulate religious worship” (quotation omitted)).
Unlike such selective laws, the preventive services coverage provision and, in particular, the contraceptive coverage requirement, are neutral and generally applicable. The provision was enacted “not with the object of interfering with religious practices, but instead to improve women’s access to health care and lessen the disparity between men’s and women’s healthcare costs.” O’Brien, 894 F. Supp. 2d at 1161. The requirement reflects expert medical recommendations about the medical necessity of contraceptive services, without regard to any religious motivations for or against such services. See, e.g., Conestoga, 917 F. Supp. 2d at 410 (“It is clear from the history of the regulations and the report published by the Institute of Medicine that the purpose of the [regulations] is not to target religion, but instead to promote public health and gender equality.”); Grote, 914 F. Supp. 2d at 952-53 (“[T]he purpose of the regulations is a secular one, to wit, to promote public health and gender equality.”).
The provision, moreover, does not pursue its purpose “only against conduct motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (concluding law that “punishe[d] conduct within its reach without regard to whether the conduct was religiously motivated” was generally applicable). The requirement applies to all
Briscoe v. Sebelius, No. 13-cv-285, 2013 WL 755413, at *6 (D. Colo. Feb. 27, 2013); Conestoga, 917 F. Supp. 2d at 409-10; Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943, 952-53 (S.D. Ind. 2012); Autocam, 2012 WL 6845677, at *5 (W.D. Mich.); Korte v. HHS, 912 F. Supp. 2d 735, 744-47 (S.D. Ill. 2012); O’Brien, 894 F. Supp. 2d at 1160-62; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, 85 P.3d at 81-87 (same). But see Sharpe Holdings, Inc. v. HHS, No. 12-cv-92, 2012 WL 6738489, at *5 (E.D. Mo. Dec. 31, 2012); Geneva Coll. v. Sebelius, No. 12-cv-207, 2013 WL 838238, at *24-26 (W.D. Pa. Mar. 6, 2013).
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non-grandfathered health plans that do not qualify for the religious employer exemption or the accommodations for eligible organizations. Thus, “it is just not true . . . that the burdens of the [law] fall on religious organizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536); see O’Brien, 894 F. Supp. 2d at 1162; Autocam, 2012 WL 6845677, at *5; Grote, 914 F. Supp. 2d at 953.13
The existence of express exceptions for objectively defined categories of entities, like grandfathered plans, religious employers, and eligible organizations, “does not mean that [the law does] not apply generally.” Autocam, 2012 WL 6845677, at *5. “General applicability does not mean absolute universality.” Olsen, 541 F.3d at 832. “Instead, exemptions undermining ‘general applicability’ are those tending to suggest disfavor of religion.” O’Brien, 894 F. Supp. 2d at 1162. The exception for grandfathered plans is available on equal terms to all employers, whether religious or secular. And the religious employer exemption and eligible organization accommodations serve to accommodate religion, not to disfavor it. Id.
Furthermore, the government’s creation of an exemption for religious employers and an accommodation for eligible organizations in the absence of an “opt out” for individual plan participants and beneficiaries does not amount to improper religious gerrymandering. The First Amendment does not prohibit the government from distinguishing between certain individuals and/or entities when accommodating religion; it only prohibits the government from favoring one religion, denomination, or sect over another. See Lukumi, 508 U.S. at 535 (striking down law that singled out Santeria church members for disfavored treatment); see also Children’s Healthcare Is A Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1090-92 (8th Cir. 2000); Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995) (concluding that religious exemption from self-employment Social Security taxes did not violate the First Amendment even though “some individuals receive exemptions, and other individuals with identical beliefs do not”). Indeed, “[t]o hold that any religious exemption that is not all-inclusive renders a statute non-neutral
13 Again, the requirement does not directly apply to plaintiffs, and no burdens of the law fall on plaintiffs.
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would be to discourage the enactment of any such exemptions – and thus to restrict, rather than promote, freedom of religion.” O’Brien, 894 F. Supp. 2d at 1161 (quoting Diocese of Albany, 859 N.E.2d at 464). Because neither the contraceptive coverage requirement nor the religious employer exemption nor the eligible organization accommodations “differentiate between religions, but [rather] appl[y] equally to all denominations,” they do not evidence any discriminatory intent. O’Brien, 894 F. Supp. 2d at 1162; see also Conestoga, 917 F. Supp. 2d at 410 (“The fact that exemptions were made for religious employers . . . . shows that the government made efforts to accommodate religious beliefs, which counsels in favor of the regulations’ neutrality.”); Grote, 914 F. Supp. 2d at 953 (“[C]arving out an exemption for defined religious entities . . . tends to support an argument in favor of neutrality.”). In short, the contraceptive coverage requirement is not rendered unlawful “merely because the [exemption] does not extend as far as Plaintiffs wish.” Grote, 914 F. Supp. 2d at 953.
Plaintiffs maintain that, even if the preventive services coverage provision is neutral and generally applicable, it is still subject to strict scrutiny under a hybrid rights theory because plaintiffs have also asserted a parental rights claim. The Supreme Court, however, has never invoked this so-called “hybrid rights theory” to justify applying strict scrutiny to a free exercise claim. See Church of Lukumi, 508 U.S. at 567 (Souter, J., concurring in part and concurring in the judgment) (noting the hybrid rights exception would either swallow the Smith rule or be entirely unnecessary). And several circuits have specifically rejected the theory. See Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 167 (2d Cir. 2001) (characterizing Smith’s hybrid rights language as “dicta and not binding on this court” and declining to apply hybrid rights analysis); Kissinger v. Board of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993) (characterizing the hybrid rights exception as “completely illogical”: “We do not see how a state regulation would violate the Free Exercise Clause if it implicates other constitutional rights but would not violate the [F]ree Exercise Clause if it did not implicate other constitutional rights.”).14
14 Although the Eighth Circuit has discussed the hybrid-rights theory, the government is not aware of any case in which the Eighth Circuit has invoked it to justify the application of strict scrutiny. In
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Nevertheless, assuming arguendo that the hybrid rights theory is valid, it applies only where the plaintiff’s non-free-exercise claim is “independently viable.” Mahoney v. District of Columbia, 662 F. Supp. 2d 74, 95 n.12 (D.D.C. 2009). Here, plaintiffs allege that the preventive services coverage provision violates both the right to free exercise of religion and their parental rights, but, as explained here and below, neither claim is viable. “[T]he combination of two untenable claims” does not “equal[] a tenable one.” Henderson v. Kennedy, 253 F.3d 12, 19 (D.C. Cir. 2001). “[I]n law as in mathematics zero plus zero equals zero.” Id. Thus, even if the hybrid rights theory were valid, it would not trigger strict scrutiny in this case.
For these reasons, plaintiffs’ free exercise claim fails.15 C. Plaintiffs’ Parental Rights Claim Fails Plaintiffs’ parental rights claim is baseless. It is no doubt true, as plaintiffs say, that the Constitution protects “freedom of personal choice in matters of marriage and family life.” Pls’ Mem. at 28 (quoting Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632, 639 (1974) (citing Roe v. Wade, 410 U.S. 113 (1973))). But none of the cases cited by plaintiffs stands for the extraordinary proposition that a parent’s moral disapproval of a law, and the related desire to teach one’s children that that which the law makes available is sinful, renders that law an unconstitutional intrusion on a parent’s rights to raise children in the manner the parent seeks fit. The paradigmatic case presenting a valid parental rights claim is Pierce v. Society of Sisters, 268 U.S. 510 (1925), in which the Supreme Court struck down a law that required “every parent, guardian, or other person having control or charge or custody of a child between 8 and 16 years” to send the child to public school, id. at 530. Such a law, the Court said, would “unreasonably interfere[] with the liberty of parents and guardians to direct the upbringing and education of [their] children.” Id. at 534. Similarly, in Moore v. City of East Cleveland, 431 U.S.
Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 473 (8th Cir. 1991), the court merely directed the district court to consider the plaintiff’s hybrid rights claim on remand. And, in Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008), the court relied on the doctrine of collateral estoppel and judgments entered in cases predating Smith’s hybrid rights language.
15 Even if the law were subject to strict scrutiny, plaintiffs’ free exercise challenge still would fail because the preventive services coverage provision satisfies strict scrutiny. See supra.
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494 (1977), the Court struck down a city ordinance that “select[ed] certain categories of relatives
who may live together and declare[d] that others may not” because it impermissibly “intrude[d]
on choices concerning family living arrangements,” id. at 498-99. But whereas the laws in Pierce
and Moore imposed outright bans on certain parental or familial choices – to live together, or to
send children to religious schools – the law at issue here does not ban any parental or familial choices and, indeed, does not even apply to plaintiffs.16
The Wielands, and their children, are merely recipients of health benefits that Mr.
Wieland’s employer makes available. When one disapproves of something that is made
available, one may opt out by not availing himself of it, and if the Wielands find contraception or
contraceptive coverage morally objectionable, they are free not to use it and to encourage their
daughters not to use it. The Wielands claim they want to “teach, believe, and foster in their
daughters” the belief that contraception is wrong and sinful, Pls.’ Mem. at 27, and absolutely
nothing in the challenged law prevents them from doing so. Nothing in the law prevents the
Wielands from explaining to their daughters that the fact that the group health plan offered by
Mr. Wieland’s employer covers contraception should not be understood as an endorsement by
them of the use of contraception and that, in fact, the law that requires the coverage of
contraception is something they strongly disagree with and wish were not the law. In short, they
remain free to be parents. Plaintiffs’ claim – that the government unconstitutionally interferes
16 None of the other cases cited by plaintiffs is of any help to them. Two of those cases did not even involve claims brought by parents that their parental rights were infringed: Meyer v. Nebraska, 262 U.S. 390 (1923), involved a teacher convicted of violating a statute that criminalized the teaching of certain foreign languages in schools, and in Cleveland Board of Education, 414 U.S. at 634-35, the Court struck down a school board rule requiring a pregnant teacher to take unpaid maternity leave for five months before the expected birth of her child. In Prince v. Massachusetts, the Court upheld a parent’s conviction for violating child labor laws, noting that a state’s “authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience.” 321 U.S. 158, 166 (1944). Plaintiffs come closest, while still landing wide of the mark, in their references to Suboh v. Dist. Attorney’s Office of Suffolk Dist., 298 F.3d 81, 91 (1st Cir. 2002), and Heartland Academy Community Church v. Waddle, 317 F. Supp. 2d 984 (E.D. Mo. 2004), because at least these two cases found an interference with a parental right. But in Suboh, state officials interfered with parental custody, 298 F.3d at 92-93, and in Heartland Academy, the court held that parents’ rights were violated when their children were forcibly removed without notice from the school to which their parents had sent them, 317 F. Supp. 2d at 1099-1101. The law at issue here creates no such custodial interference whatsoever.
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with parental rights when it simply makes available something a parent objects to being made available – thus bears no resemblance to the sort of total ban on a certain familial choice that was found unconstitutional in Pierce and Moore.
Indeed, it is telling that plaintiffs’ citations to legal authority vanish when they move from general statements of the right to its alleged application in this case. But it should come as no surprise that plaintiffs have found no support for their extreme interpretation. The Constitution protects a parent’s right to foster and teach his own set of values to his children, but it most certainly does not require the government to be conscripted into requiring the withholding of the mere availability of rights and benefits that the parent would rather teach his children not to exercise. To do so for every person in as heterogeneous a society as ours would be impossible, and the Constitution in no way prescribes the chaos that would ensue.
D. Plaintiffs’ Free Speech Claim Fails Plaintiffs’ free speech claim fares no better.17 The right to freedom of speech “prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). But the challenged provision does not require plaintiffs – or any other person, employer, or entity – to say anything. Nor does it limit what plaintiffs may say. Plaintiffs remain free to express whatever views they may have on the use of contraceptive services (or any other health care services) as well as their views on the requirement that certain group health plans and health insurance issuers cover contraceptive services. Plaintiffs also may encourage their daughters and others not to use contraceptive services. The preventive services coverage provision regulates conduct, not speech. See id. at 60-62 (concluding statute that required law schools to provide military recruiters with equal access to campus and students regulated conduct, not speech).
17 Every court to consider a free speech claim brought by an employer – that, unlike plaintiffs here, is required to provide health coverage for contraceptive services – has rejected the claim. See Conestoga, 2013 WL 1277419, at *2; MK Chambers, 2013 WL 1340719, at *6; Briscoe, 2013 WL 755413, at *8; Conestoga, 917 F. Supp. 2d at 418-19; Grote, 914 F. Supp. 2d at 954-55; Autocam, 2012 WL 6845677, at *8; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento, 85 P.3d at 89; Diocese of Albany, 859 N.E.2d at 465.
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Moreover, the conduct required by the preventive services coverage provision is not “inherently expressive,” id. at 66, such that it is entitled to First Amendment protection. “Giving or receiving health care,” or purchasing insurance coverage for health care, “is not a statement in the same sense as wearing a black armband or burning an American flag.” O’Brien, 894 F. Supp. 2d at 1166-67 (internal citations omitted); see also Autocam, 2012 WL 6845677, at *8 (“Including contraceptive coverage in a health care plan is not inherently expressive conduct.”). Accordingly, plaintiffs’ free speech claim fails and should be dismissed.18
E. Plaintiffs’ APA Claim Fails Plaintiffs claim the preventive services coverage provision violates the APA because it conflicts with section 1303(b)(1) of the ACA. Compl. ¶ 128. Plaintiffs appear to reason that, because the provision requires group health plans to cover emergency contraception, such as Plan B, and certain IUDs, it requires plaintiffs to provide coverage for abortions in violation of federal law. See id. ¶ 35. This claim should be rejected at the outset because plaintiffs lack prudential standing to assert it. The doctrine of prudential standing requires that a plaintiff’s claim fall within “the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970); see Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031, 1037 (8th Cir. 2002). But the necessary link between plaintiffs and section 1303(b)(1) is missing here. Section 1303(b)(1) protects health insurance issuers that offer qualified health plans, 42 U.S.C. § 18023(b)(1), but plaintiffs are neither health insurance issuers nor purchasers of a qualified health plan.19 They therefore do not fall within the
18 Contrary to plaintiffs’ assertion, the contraceptive coverage requirement does not require coverage of education and counseling “in favor” of contraceptive services. Pls.’ Mem. at 31. It requires coverage of “patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider, see HRSA Guidelines, supra, but does not purport to regulate the content of the education or counseling provided – that is between a patient and her health care provider.
19 A “qualified health plan,” within the meaning of this provision, is a health plan that has been certified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance issuer. 42 U.S.C. § 18021(a)(1). Coverage through health insurance exchanges will not begin until January 1, 2014, and, until 2017, qualified health plans will only be available to individuals and small employers (likely excluding Mr. Wieland’s employer). Id. §§ 18031(b), 18032(f). Because Mr.
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Case: 4:13-cv-01577-JCH Doc. #: 22-1 Filed: 09/10/13 Page: 41 of 45 PageID #: 254
zone of interests to be protected by the statute. See O’Brien v. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1167-68 (E.D. Mo. 2012) (holding that plaintiff employer lacked prudential standing to raise a similar claim).
Even if the Court were to reach the merits of this claim, plaintiffs’ premise that the preventive services coverage provision requires abortion coverage is fundamentally incorrect. The provision does not require that any health plan cover abortion as a preventive service, or that it cover abortion at all, as that term is defined in federal law. Rather, it requires that nongrandfathered, non-exempt and non-accommodated group health plans cover all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider. See HRSA Guidelines, supra. The government has made clear that the preventive services covered by the law “do not include abortifacient drugs.”20 Although plaintiffs are certainly entitled to believe that Plan B, Ella, and certain IUDs are abortifacient drugs or cause abortions, neither the government nor this Court is required to accept that characterization, which is inconsistent with the FDA’s scientific views and with federal law. While plaintiffs’ religious beliefs may define abortion more broadly than federal law to include emergency contraception and certain IUDs, statutory interpretation requires that terms be construed as a matter of law and not in accordance with any particular individual’s views or beliefs. See, e.g., Gov’t Emps. Ins. Co. v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).
In recommending what contraceptive services should be covered by health plans without cost-sharing, the IOM Report identified the contraceptives that have been approved by the FDA as safe and effective. See IOM REP. at 10. And the list of FDA-approved contraceptives includes emergency contraceptives such as Plan B. See FDA, Birth Control Guide, available at http://www.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm (last visited Sept. 9,
Wieland’s employer’s health plan was not purchased on a health insurance exchange, it is not a “qualified health plan.”
20 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.healthcare.gov/news/factsheets/2011/08/ womensprevention08012011a.html (last visited Sept. 9, 2013); see also IOM REP. at 22 (recognizing that abortion services are outside the scope of permissible recommendations).
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Case: 4:13-cv-01577-JCH Doc. #: 22-1 Filed: 09/10/13 Page: 42 of 45 PageID #: 255
2013). The basis for the inclusion of such drugs as safe and effective means of contraception dates back to 1997, when the FDA first explained why Plan B and similar drugs act as contraceptives rather than abortifacients. See Prescription Drug Products; Certain Combined Oral Contra for Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997) (noting that “emergency contraceptive pills are not effective if the woman is pregnant” and that there is “no evidence that [emergency contraception] will have an adverse effect on an established pregnancy”); 45 C.F.R. § 46.202(f) (“Pregnancy encompasses the period of time from implantation until delivery.”). In light of this conclusion by the FDA, HHS informed Title X grantees, which are required to offer a range of acceptable and effective family planning methods – and may not offer abortion except under limited circumstances (e.g., rape, incest, or when the life of the woman would be in danger) – that they “should consider the availability of emergency contraception the same as any other method which has been established as safe and effective.” Office of Population Affairs, Memorandum (Apr. 23, 1997), http://www.hhs.gov/opa/ pdfs/opa-97-02.pdf (last visited Sept. 9, 2013); see also 42 U.S.C. §§ 300, 300a-6.
Because it reflects a settled understanding of FDA-approved contraceptives that is in accordance with existing federal laws prohibiting federal funding for certain abortions, the contraceptive coverage requirement is consistent with over a decade of regulatory policy and practice and thus cannot be deemed contrary to any law dealing with abortion. See Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807, 815 (D.C. Cir. 2011) (giving particular deference to an agency’s longstanding interpretation) (citing Barnhart v. Walton, 535 U.S. 212, 220 (2002)); see also Siebrasse v. U.S. Dep’t of Agric., 418 F.3d 847, 851 (8th Cir. 2005) (“When reviewing an agency decision, we accord substantial deference to the agency’s interpretation of the statutes and regulations it administers.”). Plaintiffs’ APA claim, therefore, should be dismissed.
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III. EVEN IF PLAINTIFFS COULD ESTABLISH A LIKELIHOOD OF SUCCESS ON THE MERITS, THEY ARE NOT ENTITLED TO PRELIMINARY INJUNCTIVE RELIEF Even if plaintiffs could establish a likelihood of success on the merits, their motion for
temporary restraining order and preliminary injunction should be denied because they cannot satisfy the remaining preliminary injunction factors. Although “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373 (1976), in this case, plaintiffs have not shown that the preventive services coverage provision intrudes upon their First Amendment rights, so there has been no “loss of First Amendment freedoms” for any period of time. In this respect, the merits and irreparable injury prongs of the preliminary injunction analysis merge together, and plaintiffs cannot show irreparable injury without also showing a likelihood of success on the merits, which they cannot do. See McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012) (“Because McNeilly does not have a likelihood of success on the merits . . . his argument that he is irreparably harmed by the deprivation of his First Amendment rights also fails.”); Child Evangelism Fellowship of Minn. v. Minneapolis Special Sch. Dist. No. 1, 690 F.3d 996, 1004 (8th Cir. 2012). Moreover, contrary to plaintiffs assertion (Pls.’ Mem. at 31), any showing of a likelihood of success on the merits of plaintiffs’ RFRA claim – which plaintiffs in any event have not made – would not automatically establish irreparable injury; in the Eighth Circuit, it is only the loss of First Amendment freedoms that constitutes irreparable harm. Child, 690 F.3d at 1000.
Furthermore, granting plaintiffs’ request for a preliminary injunction – even assuming Mr. Wieland’s employer and the employer’s health insurance provider subsequently decided to provide plaintiffs with a health plan that does not cover contraception, which, as explained above, they would be under no obligation to do – would harm both the government and the public. With regard to the government, “there is inherent harm to an agency in preventing it from enforcing [a law] that Congress found it in the public interest to direct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also Richenberg v. Perry, 73 F.3d 172, 173 (8th Cir. 1995) (indicating that granting an injunction against the
33

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implementation of a likely constitutional statute would harm the government). Allowing the type of individual opt out that plaintiffs seek here would undermine Congress’s goal of improving the public health. And it would all but lead to the end of group health coverage, which relies on common coverage for a set of insured individuals, thereby harming the public. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (“[C]ourts . . . should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.”).
CONCLUSION For the forgoing reasons, the Court should deny plaintiffs’ motion for temporary restraining order and preliminary injunction and grant defendants’ motion to dismiss this case in its entirety. Respectfully submitted this 10th day of September, 2013,

STUART
RICHARD United JENNIFER
SHEILA Deputy
MICHAEL Trial United Civil
Attorneys

F. DELERY Assistant Attorney General
CALLAHAN States Attorney
RICKETTS Director
M. LIEBER Director
s/ Michelle R. Bennett MICHELLE R. BENNETT (CO Bar No. 37050)
C. POLLACK Attorneys
States Department of Justice Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7310 Washington, D.C. 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov
for Defendants.

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Case: 4:13-cv-01577-JCH Doc. #: 22-1 Filed: 09/10/13 Page: 45 of 45 PageID #: 258
CERTIFICATE OF SERVICE
I hereby certify that on September 10, 2013, a copy of the foregoing was filed electronically with the Clerk of the Court to be served upon the following:
Timothy Belz OTTSEN AND LEGGAT, L.C. 112 S. Hanley Road Suite 200 St. Louis, MO 63105-3418 Email: tbelz@omlblaw.com
Peter C. Breen THOMAS MORE SOCIETY 19 S. LaSalle St. Suite 603 Chicago, IL 60603 Email: pbreen@thomasmoresociety.org

s/ Michelle R. Bennett

_

MICHELLE

R. BENNETT

35

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PAUL JOSEPH WIELAND, and

)

TERESA JANE WIELAND,

)

)

Plaintiffs,

)

)

vs.

)

)

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants.

)

Case No. 4:13CV1577JCH

MEMORANDUM AND ORDER

This matter is before the court on the Motion to Dismiss filed by Defendants United States

Department of Health and Human Services, Kathleen Sebelius, in her official capacity as the

Secretary of the United States Department of Health and Human Services, United States Department

of the Treasury, Jacob J. Lew, in his official capacity as Secretary of the United States Department

of the Treasury, United States Department of Labor, and Thomas E. Perez, in his official capacity

as Acting Secretary of the United States Department of Labor (jointly, Defendants). (ECF No. 22).

Also before the court is the Motion for Temporary Restraining Order (TRO) filed by Plaintiffs Paul

Joseph Wieland and Teresa Jane Wieland. (ECF No. 2). The motions are fully briefed and ready

for disposition.

BACKGROUND

Plaintiffs brought this action to challenge regulations issued under the Patient Protection and

Affordable Care Act, Pub. L. 111-148 (Mar. 23, 2010), and the Health Care and Education

Reconciliation Act, Pub. L. 111-152 (Mar. 30, 2010), collectively known as the Affordable Care Act

(the Act),1 which regulations they claim force them to either (1) violate their religious opposition to contraception, sterilization, and abortifacients by paying to make such services available to their daughters, (2) forfeit the benefit of employer-sponsored health insurance for themselves and their daughters and purchase more expensive coverage, if such coverage exists, or (3) forgo health insurance for themselves and their daughters altogether. (ECF No. 1 ¶¶ 1, 40-41, 57-58).
As relevant, Plaintiffs specifically allege the following. As part of their religious principles and beliefs, they oppose the use, funding, provision, or support of contraceptives, sterilization and abortifacients. A benefit of Mr. Wieland’s employment with the State of Missouri is health insurance, provided through the Missouri Consolidated Health Care Plan (MCHCP), a corporate entity of the State. Plaintiffs pay a portion of their health care plan premiums in order to maintain coverage for themselves and their daughters. Their premiums also partially fund medical services provided to other employees covered under MCHCP. Prior to August 1, 2013, Plaintiffs’ coverage under MCHCP did not cover contraception, sterilization, or abortifacients. In July 2013, MCHCP
1The Patient Protection and Affordable Care Act, 2 U.S.C. § 300gg-13, provides: (a) In general 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– . . . (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.
2

notified Plaintiffs that because of federal law it must provide contraception and sterilization coverage in all its medical plans and that, effective August 1, 2013, Plaintiffs would be placed in the “corresponding medical plan that includes contraception and sterilization coverage in accordance with federal law.” As a result of this additional coverage Plaintiffs’ premiums have increased. (ECF No. 1 ¶¶ 1-9).
Plaintiffs further allege that Defendants issued a Mandate pursuant to the Act requiring that group health plans cover, without cost sharing, “all Good and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.”2 Such contraceptive methods include abortifacients in that they frequently function to destroy fertilized eggs, which Plaintiffs consider abortion. Plaintiffs allege this forces them to treat contraceptives, sterilization, abortifacients, and related education and counseling as health care and “subverts” Plaintiffs’ religious beliefs; the Mandate unconstitutionally forces them to violate their sincerely-held religious beliefs under threat of having to forfeit the job benefit of employer sponsored health insurance coverage for themselves and their daughters; the Mandate forces them to fund government dictated speech which is directly at odds with their speech and religious beliefs and practices; and the Mandate unconstitutionally interferes with their parental rights and fundamental right to family integrity. (ECF No. 1 ¶¶ 11-14).
2As stated by 77 Fed. Reg. 8725 (Feb. 15, 2012), the Act “requires that non-grandfathered group health plans and health insurance issuers offering group or individual health insurance coverage provide benefits for certain preventive health services without the imposition of cost sharing.” Health Resources and Services Administration (HRSA) Guidelines provide that these preventive health services include, “without cost sharing, [a]ll Food and Drug Administration [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Also, according to Defendants, HRSA provides the list of women’s preventative services required by the Act, § 300gg-13 at http://www.hrsa.gov/womensguidelines/.
3

Plaintiffs allege that Defendants’ conduct violates of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (Count 1), the Free Exercise Clause of the First Amendment of the United States Constitution (Count 2), their Parental Rights/Family Integrity Rights under the Fifth Amendment to the United States Constitution (Count 3), their Freedom of Speech under the First Amendment of the United States Constitution (Count 4), and the Administrative Procedure Act, 5 U.S.C. § 706(2) (Count 5). Plaintiffs seek declarative and injunctive relief with the object of prohibiting Defendants from enforcing the Mandate. (ECF No. 1 ¶¶ 88-131). Additionally, Plaintiffs filed a Motion for Temporary Restraining Order enjoining Defendants from enforcing the Mandate. (ECF No. 2).
Defendants have moved to dismiss Plaintiffs’ Complaint based on Plaintiffs’ lack of standing. Additionally, Defendants seek dismissal of the Complaint based on Plaintiffs’ failure to state claims upon which relief can be granted and dismissal of Plaintiffs’ Motion for Temporary Restraining Order. (ECF Nos. 21, 22).
STANDARD Standing is a is a jurisdictional issue and, therefore, motions to dismiss for lack of standing are subject to Fed. R. Civ. P. 12(b)(1) (dismissal for lack of subject-matter jurisdiction). See A.J. ex rel. Dixon v. UNUM, 696 F.3d 788, 789 (8th Cir. 2012) (per curiam). “Standing is ‘the threshold question in every federal case,’” and, in ruling on a motion to dismiss for lack of subject matter jurisdiction, this Court must view the allegations in the Complaint in the light most favorable to Plaintiffs. Tarsney v. O’Keefe, 225 F.3d 929, 934 (8th Cir. 2000). Because standing is determined as of the lawsuit’s commencement, the facts are considered as they existed at that time. See Dixon, 696 F.3d at 789.
4

To establish standing, Plaintiffs must sufficiently allege, as a threshold matter, that they “personally [have] suffered some actual or threatened injury as a result of the putatively illegal conduct” of Defendants. See Tarsney, 225 F.3d at 934. If Plaintiffs have not suffered an injury, they do not have standing and the Court is without jurisdiction to consider their action. See id. Plaintiffs bear the burden of showing (1) they have suffered an “injury in fact” - an invasion of a legally protected concrete and particularized interest; (2) there is a causal connection between their injury and the conduct of which they complain; the injury cannot be the result of “the independent action of some third party not before the court”; and (3) “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
To obtain a temporary restraining order Plaintiffs must show that they are likely to succeed on the merits and likely to suffer irreparable harm in the absence of preliminary relief, and an injunction is in the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). The party seeking injunctive relief bears the “complete burden” of proving an injunction should be granted. See Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir.1987).
DISCUSSION Defendants argue that Plaintiffs have not made a threshold showing that their injury was caused by the regulations they challenge - the Mandate, or that their injury is likely to be redressed by the relief which Plaintiffs seek - an injunction, because the relief is inextricably linked to independent discretionary actions of third parties who are not before the Court - Mr. Wieland’s employer, the State, and MCHCP. (ECF Nos. 22, 31). First, the Court will consider whether Plaintiffs sufficiently allege facts, which if true, would show a causal connection between their injuries and the conduct of which they complain. Because
5

Plaintiffs’ alleged injuries are linked with the independent discretionary actions of the State and MCHCP, neither of which are parties to this action or before this Court, they allege only indirect causation between the Mandate and their alleged injuries. See Lujan, 504 U.S. at 562 (finding no standing where causal connection“depends on the unfettered choices made by independent actors not before the courts.”) (internal quotations and citations omitted). Plaintiffs’ standing, however, is not precluded simply because they are not the object of the regulations to which they object. See id. (when plaintiff’s injury arises from government’s “allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed” than when plaintiff himself is object of government’s action). Plaintiffs retain the burden to show that the choices of the third parties “have been or will be made in such manner as to produce causation and permit redressability of [their] injury.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 938 (D.C. Cir. 2004). To meet their burden, Plaintiffs must show more than “unadorned speculation”; they must demonstrate that their achieving the requested change in government policy will alter the behavior of third parties so as to redress their alleged injuries. Id. at 938, 940, 944 (internal quotations and citations omitted).
In cases such as the matter under consideration which challenge government action based on third-party conduct, courts may find standing “where the record presents substantial evidence that would “leav[e] little doubt as to causation and the likelihood of redress” or where a plaintiff challenges “governmental action which permits or authorizes third-party conduct that would otherwise be illegal in the absence of the Government’s action.” Id. at 940. Nonetheless, the causation and redressability requirements must be satisfied. See id. at 940-41.
In support of their argument that they have sufficiently alleged causal connection for purposes of establishing standing, Plaintiffs rely on a letter to Mr. Wieland from MCHCP stating that initially, for 2013, Mr. Wieland was placed in a medical plan without contraception and sterilization coverage
6

because of his religious beliefs, but due to “a recent federal court ruling” requiring MCHCP to provide such coverage in all medical plans, effective August 2013, he would be placed in a plan which included contraception and sterilization coverage. (ECF No. 28 at 4 and Ex. 1). Plaintiffs also rely on minutes from a MCHCP board meeting reflecting that the changes in MCHCP plans to which Plaintiffs object were necessary in light a court decision. (ECF No. 28 at 5-6). To the extent Plaintiffs suggest the letter and the MCHCP Board minutes sufficiently demonstrate causation for purposes of standing, the Court finds to the contrary; the letter and minutes support Defendants’ assertion that the injuries of which Plaintiffs complain are linked with the independent discretionary actions of third parties not before the court. See Renal Physicians Ass’n v. U.S. Dep’t of Health and Human Servs., 489 F.3d 1267, 1275, 1277 (D.C. Cir. 2007) (where actions of third party at issue, at pleading stage “bald assertions” are insufficient and plaintiff must allege facts “sufficient to demonstrate to demonstrate a substantial likelihood that the third party directly injuring the plaintiff would cease doing so as a result of the relief the plaintiff sought”; affidavit referring “vaguely” to new federal law and claiming injury and causation were insufficient to establish causation). Further, Mr. Wieland’s affidavit provided in support of Plaintiffs’ motion for a TRO and referenced in Plaintiffs’ Response to the Motion to Dismiss merely restates and rephrases the allegations of the Complaint and Plaintiffs arguments made in resistance to the Motion to Dismiss and baldly asserts that Plaintiffs’ injuries “can clearly be traced” to Defendants’ challenged action. The Court finds that these attestations are insufficient for purposes of establishing causation. (ECF Nos. 4.1, 28 at 3). See Renal Physicians, 489 F.3d at 1275, 1277.
Plaintiffs suggest that the district court’s decision Missouri Insurance Coalition v. Huff, 2013 WL 2250430 (E.D. Mo. May 22, 2013), establishes causation. (ECF No. 28 at 5). The Huff plaintiffs, which included health insurers, sought declaratory judgment that Mo. Rev. Stat. §
7

376.1199 was void under the Supremacy Clause of the United States Constitution because the State law was in direct conflict with the “contraceptive mandate” of the Act. Mo. Rev. Stat. § 376.1199 required health benefit plans that provide pharmaceutical benefits provide coverage for contraceptives subject to the same payment requirements as other drugs. Subsection 4 of that statute, however, included an “opt out” provision, which required Missouri health insurers to honor requests by employers to issue policies excluding coverage for contraceptives if “the use or provision of such contraceptives [was] contrary to the [employer’s] moral, ethical or religious beliefs or tenets.” Mo. Rev. Stat. § 376.1199.4(1). Similarly, individual enrollees in a health plan that provided contraceptive coverage could opt-out of that coverage, and health insurers that had their own moral, ethical, or religious tenets contrary to the use or provision of contraceptives were themselves exempt from subsection 1(4). Id. § 376.1199.4(2)-(3).
The court in Huff found that the “opt-out” provision of subsection 4 was preempted by the Supremacy Clause of the United States Constitution, even if State law provided more coverage without the cost sharing mandated by federal law. See Huff, 2013 WL 225043, at *2. Plaintiffs’ reliance on Huff to establish both the causation and redressability requirements for standing is misguided; unlike the plaintiffs in Huff, Plaintiffs are not health care insurers, and cannot draw a direct line of causation from the challenged regulations to their own alleged injury. See Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976) (“[T]he ‘case or controversy’ limitation of Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court”). The Court finds, therefore, viewing the facts in a light most favorable to Plaintiffs, that Plaintiffs have failed to allege facts which if true would establish the causal connection element of standing. See Lujan, 504 U.S. at 560; Tarsney, 225 F.3d at 934.
8

Second, the Court will consider whether Plaintiffs sufficiently allege facts which, if true, would show that their injuries are likely to be redressed by the remedy they seek. For purposes of withstanding Defendants’ Motion to Dismiss, Plaintiffs must sufficiently allege facts to suggest the likelihood of their achieving redress is more than speculative. Cf. Allen v. Wright, 468 U.S. 737, 758-59 (1984) (speculative whether change in tax exemption for private schools would lead to change in school policies); Simon, 426 U.S. at 42-43 (speculative whether change in tax rules governing nonprofit hospitals would improve services for indigents).
Plaintiffs argue that an injunction would provide them with the relief they seek; in the event the Court issues an injunction, the State and MCHCP would offer a health plan which does not include the coverage which Plaintiffs find objectionable. The Court finds Plaintiffs’ assertion speculative. See Lujan, 504 U.S. at 562; Warth, 422 U.S. at 504. As argued by Defendants, were this Court to issue an injunction prohibiting Defendants from implementing the Mandate, the State and MCHCP would retain discretion not to offer Mr. Wieland a health plan that excludes contraception and abortion. Whether Plaintiffs’ claimed injury would be redressed by a favorable decision in this matter “depends on the unfettered choices made by independent actors not before the court[] and whose exercise of broad and legitimate discretion the court[] cannot . . . control or . . . predict.” Lujan, 504 U.S. at 562 (internal quotations omitted). The State and MCHCP are not parties to this lawsuit, and, therefore, there is no reason they would be obligated to honor any “incidental legal determination the suit produce[d].” Id. at 569-70.
In support of their argument that a favorable decision in this matter would provide them redress, Plaintiffs rely on matters in which the Eighth Circuit enjoined enforcement of the penalty provisions of the Act applicable to the Mandate. Standing in the cases cited by Plaintiffs was not issue - the plaintiffs in those matters were employers who themselves were required to provide
9

contraception coverage in the health plans they offered their employees - and, therefore the cases are distinguishable from the matter under consideration. See Annex Med. Inc. v. Sebelius, 2013 WL 1276025 (8th Cir. 2013) (unpublished); O’Brien v. U.S. Dep’t of Health and Human Servs., 2012 WL 4481208 (E.D. Mo. Sept. 28, 2012) (unpublished).3 In conclusion, viewing the facts in a light most favorable to Plaintiffs, the Court finds, therefore, that Plaintiffs have failed to allege facts, which if true, would establish the that a favorable judgment in this matter would provide them with redress. See Lujan, 504 U.S. at 560; Tarsney, 225 F.3d at 934.
Plaintiffs suggest that this matter falls “neatly” within the exceptions to the standing requirement articulated in National Wrestling, 366 F.3d at 940. Specifically, Plaintiffs argue that they have standing, despite there being no direct causal relationship between the Mandate and themselves, because the governmental action that authorizes the State and MCHCP’s conduct would otherwise be illegal in the absence of the governmental action. In this regard, Plaintiffs argue that the Mandate is contrary to Mo. Rev. Stat. § 191.724.2 (no person “shall be compelled to obtain coverage for, or be discriminated against or penalized for declining or refusing coverage for, abortion, contraception, or sterilization in a health plan if such items or procedures are contrary to the religious beliefs or moral convictions of such employee or person”), and, thus “the federal government has authorized otherwise illegal activity.” (ECF Nos. 28 at 8; 35 at 2-3). As argued by Defendants, absent the Mandate, the conduct of which Plaintiffs complain would not be illegal under Mo. Rev. Stat. § 191.724.2 because that statute does not prohibit employers or insurers from choosing to offer only a health plan that covers contraception. (ECF Nos. 31 at 4-5). Even assuming Plaintiffs’ assertion regarding Mo. Rev. Stat. § 191.724.2 was correct, as discussed above, they have
3The Eighth’s Circuit’s Order in O’Brien is not reported or published, but the Eighth Circuit discussed its Order in Annex Medical, 2013 WL 1276025.
10

failed to assert facts which would leave little doubt as to the likelihood of redress and/or causation, as required for the exceptions to apply. See National Wrestling, 366 F.3d at 940 (noting standing appropriate where challenged conduct would have been illegal in absence of regulations where redress would be achieved because the intervening choices of third party was not “truly independent of government policy”). Thus, the Court finds the exceptions articulated in National Wrestling, 366 F.3d at 940, do not apply; Plaintiffs have not met their burden to establish standing, see Lujan, 504 U.S. at 560; and, therefore, Defendants’ Motion to Dismiss should be granted. Because Plaintiffs cannot succeed on the merits the Court further finds that Plaintiffs’ Motion for Temporary Restraining Order should be denied. See Winter, 555 U.S. at 22; Gelco, 811 F.2d at 418. Given the Court’s threshold determination that Plaintiffs do not have standing, the Court need not address Defendants’ arguments regarding the merits of Plaintiffs’ claims.
Accordingly, IT IS HEREBY ORDERED that the Motion to Dismiss filed by Defendants (ECF No. 22) is GRANTED; IT IS FURTHER ORDERED that the Motion for Temporary Restraining Order (ECF No. 2) filed by Plaintiffs is DENIED; IT IS FURTHER ORDERED that Plaintiffs’ Complaint (ECF No. 1) is DISMISSED, with prejudice. A separate Order of Dismissal will issue contemporaneously with this Memorandum and Order.

Dated this 16th day of October, 2013.

/s/Jean C. Hamilton UNITED STATES DISTRICT JUDGE
11

12

 
 United States Court of Appeals
For the Eighth Circuit ___________________________
No. 13-3528 ___________________________
Paul Joseph Wieland; Teresa Jane Wieland
lllllllllllllllllllll Plaintiffs - Appellants
v.
United States Department of Health and Human Services; Sylvia Mathews Burwell, in her official capacity as the Secretary of the United States Department of Health and Human Services; United States Department of the Treasury; Jacob J. Lew, in his official capacity as the Secretary of the United States Department of the Treasury; United States Department of Labor; Thomas E. Perez, in his official
capacity as the Secretary of the United States Department of Labor1
lllllllllllllllllllll Defendants - Appellees ____________
Appeal from United States District Court for the Eastern District of Missouri - St. Louis
____________
Submitted: September 8, 2014 Filed: July 20, 2015 ____________
Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges. ____________
WOLLMAN, Circuit Judge.
1Secretary of Health and Human Services Sylvia Mathews Burwell is substituted for her predecessor, Kathleen Sebelius. See Fed. R. App. P. 43(c)(2).

Paul and Teresa Wieland appeal from an order of the district court dismissing their complaint against the U.S. Departments of Health and Human Services, Treasury, and Labor and their respective Secretaries (collectively, HHS). The Wielands argue that the district court erred in concluding that they lacked standing to challenge certain provisions of the Patient Protection and Affordable Care Act (the ACA) and its implementing regulations, which they allege require them to obtain, and provide to their daughters, healthcare coverage for contraceptives, sterilization, and abortifacients (collectively, contraceptives) in violation of their sincerely held religious beliefs. We reverse and remand.
Paul Wieland is a member of the Missouri House of Representatives and obtains healthcare coverage for himself and his family through the Missouri Consolidated Health Care Plan (MCHCP), a group healthcare plan made available to him by his employer, the State of Missouri. Prior to August 1, 2013, MCHCP offered Paul Wieland an opportunity to opt out of coverage for contraceptives under state law. But the State and MCHCP discontinued offering the opportunity to opt out of such coverage following the decision in Missouri Insurance Coalition v. Huff, 947 F. Supp. 2d 1014, 1020 (E.D. Mo. 2013). In Huff, health insurers and insuranceindustry groups sought a declaratory judgment that certain provisions of section 376.1199 of the Missouri Revised Statutes were preempted by the ACA. As relevant here, section 376.1199 required that health insurers offering plans in Missouri offer an employer a healthcare plan that excluded coverage for contraceptives if such coverage was contrary to the employer’s religious beliefs. Huff, 947 F. Supp. 2d at 1017. An individual enrollee in a healthcare plan covering contraceptives was also permitted to opt out of that coverage based on his religious beliefs. Mo. Rev. Stat. § 376.1199.4. The district court in Huff held that these provisions of section 376.1199 were preempted by the ACA under the Supremacy Clause of the U.S. Constitution. The State of Missouri did not appeal the Huff decision, and on August
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1, 2013, MCHCP placed the Wielands in a healthcare plan that included coverage for contraceptives.2
The Wielands, parents of three daughters, are committed to the health and wellbeing of their children and thus seek to ensure that their daughters have comprehensive healthcare coverage. As devout Roman Catholics, they believe that they cannot pay for or participate in a healthcare plan that includes coverage for contraceptives or provide such coverage to their daughters without violating their sincerely held religious beliefs.
The Wielands filed a complaint against HHS, generally contending that HHS’s enforcement or threatened enforcement of certain provisions of the ACA caused MCHCP to place them in a healthcare plan that includes coverage for contraceptives, thereby forcing them to provide that coverage to their dependent daughters. The Wielands challenged provisions of the ACA and its implementing regulations that do not apply to individuals like themselves, but to “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage.” 42 U.S.C. § 300gg-13(a)(4); 75 Fed. Reg. 41726, 41759 (noting application to group health plans and health insurance issuers offering group or individual health insurance coverage). They also challenged an interim final rule, which they defined in their complaint as “the Mandate,” that “requires . . . all ‘group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage’” to provide coverage for contraceptives. 76 Fed. Reg. 46621; 45 C.F.R.
2After the district court entered its order in Huff, the Supreme Court held in Burwell v. Hobby Lobby Stores, Inc., that the Religious Freedom Restoration Act of 1993 prohibited the government from enforcing the ACA and its implementing regulations that require “closely held corporations [to] provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.” 134 S. Ct. 2751, 2759 (2014). On remand, the district court must consider whether Huff remains good law after Hobby Lobby.
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§ 147.130. The Wielands alleged that HHS’s enforcement or threatened enforcement of “the Mandate” against them violated their rights under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4; the Free Exercise, Free Speech, and Due Process Clauses of the U.S. Constitution; and the Administrative Procedure Act, 5 U.S.C. § 706, by forcing them to provide their daughters with coverage for contraceptives.
The Wielands sought a declaration “that the Mandate and [HHS’s] enforcement of the Mandate against these Plaintiffs” violates their rights and “an order prohibiting [HHS] from enforcing the Mandate against these Plaintiffs insofar as it forces them to provide, fund or participate in the provision of contraceptives.” They also sought a temporary restraining order (TRO) and a preliminary injunction “prohibiting [HHS] from requiring that the Plaintiffs’ health benefit plan contain coverage for contraceptives.” The Wielands claimed that if the requested relief were granted, the State and MCHCP would offer them a healthcare plan without coverage for contraceptives or an opportunity to opt out of such coverage.
HHS moved to dismiss the complaint for lack of standing. According to HHS, the Wielands lacked standing because they were challenging provisions of the ACA that did not apply to them and were seeking an injunction prohibiting HHS from enforcing the Mandate against MCHCP and, ultimately, the State of Missouri, neither of which was a party to the case. The district court agreed with HHS, and it concluded that even if it granted the Wielands the relief they sought, whether the Wielands would ultimately be offered a contraceptive-free healthcare plan was “linked with the independent discretionary actions of the State and MCHCP, neither of which [is a] part[y] to this action or before this Court.” The court recognized that MCHCP had previously provided an opportunity to opt out of coverage for contraceptives, but that the provision under which that opt-out had been offered, section 376.1199, was invalidated in Huff—a decision that the State did not appeal. The court also rejected the Wielands’ contention that if it were to enter the requested
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injunction, a different state statute, Missouri Revised Statutes section 191.724, would require the State and MCHCP to offer a contraceptive-free healthcare plan.
Because the district court concluded that the Wielands had not met their burden to establish standing, it dismissed their complaint with prejudice and without reaching the merits. The court also concluded that the Wielands’ failure to establish standing was fatal to their motion for declaratory and injunctive relief, and it denied that motion without further analysis. The Wielands filed a notice of appeal from the district court’s order and also moved for a preliminary injunction pending appeal. HHS opposed the motion for a preliminary injunction, and an administrative panel of this Court denied the motion.
We review de novo the district court’s grant of a motion to dismiss for lack of standing, accepting as true all factual allegations in the complaint and drawing all reasonable inferences in favor of the nonmoving party. Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008). Although courts generally must ignore materials outside the pleadings in deciding Rule 12 motions to dismiss, they “may consider some materials that are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings.” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012) (citations omitted).
Federal court jurisdiction is restricted to “‘cases’ and ‘controversies.’” Flast v. Cohen, 392 U.S. 83, 94 (1968). A case or controversy exists only if a plaintiff “personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 (1979). A plaintiff bears the burden of showing (1) that he has suffered an “injury in fact” that is “actual or imminent, not ‘conjectural or ‘hypothetical’”; (2) that the injury is causally connected to the defendant’s allegedly illegal conduct and not to the “independent action of some third party not before the court”; and (3) that “it [is] ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by
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a favorable decision.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted). A plaintiff’s burden to establish standing depends on the stage of litigation, and “[a]t the pleading stage, general factual allegations . . . may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” Id. at 561 (citations omitted).
The Wielands first argue that the district court erred in concluding that they did not establish a causal connection between their injury and the Mandate sufficient to satisfy the causation element of standing. They argue that their pleadings adequately alleged a chain of causation that runs directly from the Mandate to their placement in a healthcare plan that includes coverage for contraceptives. The district court erred, according to the Wielands, because there was no “independent discretionary action” by the State or MCHCP—MCHCP placed them in a healthcare plan that included coverage for contraceptives, thereby causing their injury, as a direct result of HHS’s threatened enforcement of the Mandate against the State and MCHCP. We agree.
The Wielands alleged in their complaint that “[b]ecause of the Mandate . . . MCHCP now states that Mr. Wieland’s insurance plan must provide” coverage for contraceptives. They also alleged that “upon information and belief,” they “cannot obtain insurance coverage without coverage for contraceptives . . . from any source.” Thus, they contended, “[t]he Mandate forces [them] to provide coverage for or otherwise participate in the provision of” coverage for contraceptives “against [their] religiously informed consciences.” The crux of these general allegations is that absent the Mandate, the Wielands would have a contraceptive-free healthcare plan, whether from MCHCP or from a private insurance issuer.
HHS argues that the Mandate cited by the Wielands as the source of their injury imposes no direct obligation or requirement on them and that the district court did not err in concluding that the Wielands failed to satisfy the causation element of standing.
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An injury may be “fairly traceable” to a defendant for causation purposes even when that defendant’s actions are not “the very last step in the chain of causation.” Bennett v. Spear, 520 U.S. 154, 168-69 (1997). “While . . . it does not suffice if the injury complained of is ‘th[e] result [of] the independent action of some third party not before the court,’ that does not exclude injury produced by determinative or coercive effect upon the action of someone else.” Id. at 169 (internal citations omitted).
Here, the Wielands’ injury is fairly traceable from HHS’s enforcement or threatened enforcement of the Mandate, to MCHCP, to the Wielands. This is not a case where the “unfettered choices made by independent actors” operate to sever the chain of causation. Lujan, 504 U.S. at 562. The Mandate challenged in the Wielands’ complaint requires group health plans and health insurance issuers to include coverage for contraceptives in all healthcare plans, and it is the Mandate that caused the State and MCHCP to eliminate contraceptive-free healthcare plans, to place the Wielands in a healthcare plan that included this coverage, and thus to cause injury to the Wielands.
HHS contends that it was not the Mandate that caused MCHCP to eliminate contraceptive-free healthcare plans and to place the Wielands in a healthcare plan that includes coverage for contraceptives. Rather, HHS argues, it was the State’s independent and discretionary decision not to challenge the ruling in Huff that caused MCHCP to eliminate contraceptive-free healthcare plans. We are not persuaded. In our view, the Huff decision merely put the State and MCHCP on notice that HHS’s enforcement or threatened enforcement of the Mandate would result in significant penalties in the event that MCHCP continued offering contraceptive-free healthcare plans under section 376.1199. Indeed, the MCHCP board of trustees, after acknowledging that Huff clarified how the ACA would be applied, concluded that MCHCP could no longer offer contraceptive-free healthcare plans that were “in direct conflict with the ‘contraceptive mandate’ in the” ACA without “put[ting] MCHCP and its assets at risk.” Because MCHCP did not qualify for an exemption or
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accommodation under the ACA, the board concluded that MCHCP was “subject to the same provisions of federal law that require the offering of contraceptives,” that MCHCP was required to eliminate all contraceptive-free healthcare plans, and that “affected individuals” must be transferred “from the plan they chose without contraception to the same plan with contraception.”3 The Huff decision simply clarified for the State and MCHCP that the section 376.1199 opt-out provisions were preempted by federal law; it was the federal law itself—the Mandate—that was the but-for cause of the change in the Wielands’ healthcare plan. Moreover, as earlier stated, the continued validity of the Huff decision is a matter that must be addressed in light of the Supreme Court’s decision in Hobby Lobby. If Hobby Lobby overruled Huff, a question we leave for the district court in the first instance, the section 376.1199 opt-out provision would again be available, and MCHCP would be required to comply with that statutory provision.
MCHCP eliminated contraceptive-free healthcare plans and transferred the Wielands into a plan including such coverage to avoid violating the Mandate and “put[ing] . . . its assets at risk.” Keeping in mind that at this stage of the litigation we “must accept all factual allegations in the complaint as true and draw all inferences” in favor of the Wielands, we are satisfied that the Wielands have alleged sufficient facts to show that they were placed in a healthcare plan that includes coverage for contraceptives, not because of “independent discretionary actions of the State and MCHCP,” but because of HHS’s enforcement or threatened enforcement of the
3Exempted from the Mandate are “grandfathered” plans, 45 C.F.R. § 147.140; religious employers, id. § 147.131(a); and employers with fewer than 50 full-time employees, as long as the employer does not offer any healthcare coverage, see 26 U.S.C. § 4980H. Certain religious nonprofit organizations may also qualify for an accommodation from the Mandate, 45 C.F.R. § 147.131(b), as may closely held corporations whose owners have religious objections to the Mandate, see Hobby Lobby, 134 S. Ct. at 2759-60. MCHCP does not qualify for these, or any other, exemptions or accommodations and is thus subject to the Mandate.
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Mandate. There was no discretion involved in the decision. The State and MCHCP were required by federal law, by the Mandate, to include coverage for contraceptives in all healthcare plans they offered—including the Wielands’ healthcare plan. The undeniable effect of the Mandate upon the Wielands is that their healthcare plan must now include coverage for contraceptives. We therefore conclude that the Wielands have established a sufficient causal connection between their injury and HHS’s enforcement of the Mandate to satisfy the causation element of standing.
In addition to establishing a sufficient causal connection between the Mandate and their alleged injury, the Wielands were required to allege facts that, if true, would show that it is “likely” and not merely “speculative” that their injury would be redressed if they were granted the remedy they seek. See Lujan, 504 U.S. at 561. The Wielands claim that an injunction prohibiting HHS from enforcing the Mandate against MCHCP would result in MCHCP offering them a contraceptive-free healthcare plan under section 191.724 of the Missouri Revised Statutes. This section was not challenged by the plaintiffs in Huff, and it apparently remains in effect in Missouri. We conclude that the Wielands have sufficiently alleged that it is more than merely speculative that their injury would be redressed if they were granted the remedy they seek.
HHS argued before the district court that MCHCP’s decision to eliminate contraceptive-free healthcare plans “would not be illegal under [section] 191.724.2 because that statute does not prohibit employers or insurers from choosing to offer only a health plan that covers contraception.” The Wielands invoked section 191.724.4, however, which states:
No governmental entity, . . . or entity acting in a governmental capacity shall discriminate against or penalize an employee, . . . employer, health plan provider, health plan sponsor, . . . or any other person or entity because of such employee’s, . . . employer’s, health plan provider’s, health plan sponsor’s, . . . or other person’s or entity’s unwillingness,
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based on religious beliefs or moral convictions, to obtain or provide coverage for, pay for, [or] participate in, . . . abortion, contraception, or sterilization in a health plan.
Mo. Rev. Stat. § 191.724.4. The Wielands contend that under subsection 4, MCHCP, an entity created by the State and acting in a governmental capacity, is prohibited from discriminating against them by refusing to offer them a contraceptive-free healthcare plan despite their religious objections to coverage for contraceptives. They argue that if MCHCP offers State employees a healthcare plan that includes coverage for contraceptives, but refuses to offer a healthcare plan that excludes such coverage to employees who have a religious objection, “[t]here could be no more obvious case of discrimination” against the employees with religious objections to such coverage. Moreover, they argue, because section 191.724.1 states that “[t]he rights guaranteed under [section 191.724] are in addition to the rights guaranteed under . . . section 376.1199,” the provision that was invalidated in Huff, section 191.724 provides a separate basis on which MCHCP must provide them with a contraceptive-free healthcare plan. Thus, the Wielands argue, if the requested injunction is granted, section 191.724 requires that MCHCP offer the Wielands a contraceptive-free healthcare plan.
HHS argues that if section 191.724 required MCHCP to offer contraceptivefree healthcare plans to employees with religious objections, MCHCP would not have eliminated those plans after the Huff decision invalidated the section 376.1199 optout provision. HHS points to an emergency rescission issued by the MCHCP board of trustees after the Huff decision stating that after Huff, “there is no longer a state statutory requirement on which to base” an opt-out opportunity. But the Wielands argue that MCHCP relied on section 191.724 when it offered them the opportunity to opt out of coverage for contraceptives. The MCHCP 2013 Open Enrollment Worksheet, which provided the mechanism for employees to exercise their opt-out rights, specifically refers to section 191.724 as the provision under which “every
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employee . . . has the right to decline or refuse coverage for contraception” if such coverage is “contrary to an employee’s religious beliefs.”
We conclude that it is more than merely speculative that the Wielands’ injury would be redressed if they were granted the injunctive relief they seek. With the benefit of the requested injunction against HHS’s enforcement of the Mandate against MCHCP, MCHCP would be assured that it could safely proceed under section 191.724 to provide the Wielands with an opportunity to opt out of coverage for contraceptives. And if Hobby Lobby overruled Huff, the section 376.1199 opt-out provision would again be available. Before the threatened enforcement of the Mandate, the State and MCHCP were willing to offer the Wielands a contraceptivefree healthcare plan, which is persuasive evidence that they would do so again if the Wielands obtain their requested relief. We conclude therefore that the Wielands have alleged a sufficient basis on which to conclude that it is “likely” and not merely “speculative” that their injury would be redressed if they were granted the injunctive relief they seek.
The judgment of the district court is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion. We express no opinion on the merits of the Wielands’ claims. See Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1023 (8th Cir. 2012) (“The standing inquiry is not . . . an assessment of the merits of a plaintiff’s claim.”).
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PAUL JOSEPH WIELAND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES, )

et al.,

)

)

Defendants.

)

Case No. 4:13-cv-01577-JCH

MEMORANDUM AND ORDER

This matter is before the Court on Defendants’ renewed Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). (ECF No. 53.) The Motion has been fully briefed and

is ready for disposition.

BACKGROUND

In 2010, Congress passed the Patient Protection and Affordable Care Act (“ACA”),

Pub.L. No. 111-148, 124 Stat. 119 (2010). The ACA and its implementing regulations require

group health plans and health-insurance issuers offering health insurance coverage to provide

essential minimum coverage, without cost-sharing requirements. See 26 U.S.C. § 4980H(a); 42

U.S.C. § 300gg-13. For women specifically, such minimum coverage includes coverage for all

Food and Drug Administration approved contraceptive methods and sterilization procedures—

the so-called “contraceptive mandate” (hereinafter, the “Mandate”). See 42 U.S.C.

§ 300gg-13(a)(4); 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012). In general, an employer that offers

employees a group health plan must comply with the Mandate. The ACA provides several

exemptions, however, for employers with fewer than 50 employees, employers maintaining

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“grandfathered” plans, and certain religious employers. See 26 U.S.C. § 4980H(c)(2); 42 U.S.C. § 18011; 45 C.F.R. §§ 147.131, 147.140. In addition, accommodations are available for certain non-exempt, nonprofit religious organizations. See 78 Fed. Reg. 39,870, 39,871 (July 2, 2013).
As life-long Roman Catholics, Plaintiffs Paul and Teresa Wieland, along with their three daughters, oppose the use, funding, provision, and support of contraceptives, sterilization, and abortifacients (collectively and hereinafter, “contraceptives”). Plaintiffs believe that paying for or participating in a healthcare plan that includes coverage for contraceptives violates their sincerely-held religious beliefs, as does providing such coverage to their daughters. Mr. Wieland serves as a State Representative in the Missouri General Assembly. As an employment benefit, he receives health insurance coverage through Missouri Consolidated Health Care Plan (“MCHCP”), an entity of the State. Plaintiffs pay a portion of the insurance premiums in order to maintain coverage for themselves and their daughters, and the State of Missouri contributes the remaining portion. Prior to August 1, 2013, and pursuant to state law, MCHCP offered Mr. Wieland an opportunity to opt out of coverage for contraceptives. Following the decision in Missouri Insurance Coalition v. Huff, 947 F. Supp. 2d 1014, 1020 (E.D. Mo. 2013) (finding certain portions of Mo Rev. Stat. § 376.1119, which required health insurers to offer plans that excluded coverage for contraceptives if such coverage was contrary to enrollee’s religious beliefs, was preempted by ACA), MCHCP discontinued the opt-out offer, and the Wielands were placed in a healthcare plan that included coverage for contraceptives.
In August 2013, Plaintiffs filed suit against Defendants United States Department of Health and Human Services (“HHS”); Kathleen Sebelius, in her official capacity as the Secretary of HHS; United States Department of Treasury (“Treasury”); Jacob Lew, in his official capacity
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as the Secretary of Treasury; United States Department of Labor (“Labor”); and Seth Harris, in his official capacity as Acting Secretary of Labor (collectively, “Defendants”).1 (Compl., ECF No. 1.) Plaintiffs allege that the Mandate forces them to either (1) violate their religious opposition to contraceptives by paying to make such services available to their daughters, (2) forfeit the benefit of employer-sponsored health insurance for themselves and their daughters and purchase more expensive coverage, or (3) forgo health insurance for themselves and their daughters altogether. Plaintiffs further allege that they cannot obtain insurance coverage other than through Mr. Wieland’s employee plan without incurring significantly greater expense, that upon information and belief they cannot obtain any insurance plan that does not provide coverage for contraceptives, and that forgoing health insurance altogether violates their religious duty to provide for the health and well-being of their children. Id.
Plaintiffs assert that the Mandate and Defendants’ enforcement of the Mandate against them violate their rights under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq. (Count 1); the Free Exercise and Free Speech Clauses of the First Amendment, and the Due Process Clause of the Fifth Amendment (Counts 2-4); and the Administrative Procedure Act, 5 U.S.C. § 706 (“APA”) (Count 5). Id. ¶¶ 88-130. Plaintiffs seek declaratory and injunctive relief; specifically, they seek a Court “order prohibiting Defendants from enforcing the Mandate against [them] insofar as it forces them to provide, fund or participate in the provision of [contraceptives].” Id. ¶ 131.
In October 2013, this Court dismissed Plaintiffs’ Complaint for lack of standing. (ECF Nos. 37, 38.) Upon remand from the Eighth Circuit, Defendants renew their request for dismissal pursuant to Rule 12(b)(6). (ECF No. 53.)
1 Since the filing of this suit, Secretary of HHS Sylvia Burwell and Secretary of Labor Thomas Perez have been substituted for their predecessors.
3

DISCUSSION In ruling on a motion to dismiss, the Court must construe the complaint liberally and in the light most favorable to the plaintiff. See Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). The Court “must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.” Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted). A complaint’s factual allegations must be sufficient “to raise a right to relief above the speculative level,” however, and a motion to dismiss must be granted if the complaint does not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). In addition, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). A. RFRA Claim Congress enacted RFRA “in order to provide very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760-61 (2014) (RFRA was enacted in response to Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990), in which Supreme Court held that neutral, generally applicable laws may be applied to religious practices even when not supported by compelling governmental interest). “[T]o ensure broad protection for religious liberty, RFRA provides that the ‘Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.’” Id. at 2761 (quoting 42 U.S.C. § 2000bb-1(a)). “If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the
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Government ‘demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’” Id. (quoting 42 U.S.C. § 2000bb-1(b).) The “exercise of religion” protected under RFRA “involves not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious reasons.” Id. at 2770 (citation omitted). In addition, RFRA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” and “mandate[s] that this concept be construed in favor of a broad protection of religious exercise.” Id. at 2762 (citations omitted).
Here, the parties do not dispute the sincerity of Plaintiffs’ beliefs, and thus the threshold question is whether plaintiffs have alleged sufficient facts to demonstrate that the Mandate substantially burdens their exercise of religion. Defendants argue that the Mandate does not substantially burden Plaintiffs’ exercise of religion because it does not apply to Plaintiffs at all, in that it does not require them to provide coverage, unlike group health plans and health-insurance issuers. Defendants cite various cases from other Circuits in which organizations that were eligible for accommodations under the ACA brought suit challenging the requirement that they complete certain documentation in order to receive such accommodations. The eligible-organization plaintiffs argued that the accommodation process substantially burdened their sincerely-held religious beliefs because their required completion of the documentation indirectly facilitated the delivery of the objectionable coverage, and in effect their only option was to not comply with the ACA and to incur significant financial penalties. The courts rejected the plaintiffs’ challenges to the accommodation process, reasoning that the resulting obligation to provide contraceptive coverage fell on the health-insurance issuers and third-party administrators, not on the eligible organizations opting out. Relying on these cases
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(many of which have since been appealed and are now pending review before the Supreme Court), Defendants assert that “courts have made clear in cases challenging the accommodations for eligible organizations that ‘[a]n asserted burden is … not an actionable substantial burden when it falls on a third party, not on the religious adherent.’” (ECF No. 53.1 at 15-17 (quoting Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 246 (D.C. Cir. 2014), cert. granted, 84 U.S.L.W. 3257 (U.S. Nov. 6, 2015) (No. 14-1453)).) Defendants urge this Court to adopt similar reasoning here.
As Plaintiffs note, however, the Eighth Circuit reached a different conclusion in Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., 801 F.3d 927, 945-46 (8th Cir. 2015), petition for cert. filed, (U.S. Dec. 15, 2015) (No. 15-775). In Sharpe Holdings, the Court concluded that the accommodation process imposed a substantial burden on the eligible-organization plaintiffs because, in the event the plaintiffs adhered to their religious beliefs and refused to comply with the Mandate or accommodation regulations, they faced significant monetary penalties. The Court found that the plaintiffs’ burden “mirrored the substantial burden recognized by the Supreme Court in Hobby Lobby,” and that in view of the plaintiffs’ sincerely-held religious beliefs, “compelling their participation in the accommodation process by threat of severe monetary penalty was a substantial burden on their exercise of religion.” Id. at 937-42. In distinguishing the line of cases that Defendants rely upon here, the Eighth Circuit emphasized that it is not the Court’s role “to second-guess [a plaintiff’s] honest assessment of a ‘difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.’” Id. at 941 (quoting Hobby Lobby, 134 S. Ct. at 2778).
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At least one other district court has addressed a similar challenge to the Mandate by employee plaintiffs, and held that the plaintiffs had demonstrated a substantial burden on their exercise of religion. In March for Life v. Burwell, No. 14-cv-1149 (RJL), 2015 WL 5139099, at *7-11 (D.D.C. Aug. 31, 2015), appeal docketed, No. 15-5301 (D.C. Cir. Oct. 30, 2015), the District Court concluded that “[e]ven though employee plaintiffs are not the direct objects of the Mandate, they are very much burdened by it,” and that the defendants’ arguments that the plaintiffs’ participation in a plan covering contraceptives was “‘not a burden’ at all” was, in essence, “a thinly veiled attack on [the plaintiffs’] beliefs.” Id. at *7. The Court found that the plaintiffs were “caught between the proverbial rock and hard place: they can either buy into and participate in a health insurance plan that includes the coverage they find objectionable and thereby violate their religious beliefs, or they can forgo health insurance altogether and thereby subject themselves to penalties for violating the ACA’s individual mandate, codified at 26 U.S.C. § 5000A.” Id. at *8.
In view of the Eighth Circuit’s decision in Sharpe Holdings and its admonishment therein that it is not the Court’s role to second-guess the reasonableness of a plaintiff’s sincerely-held religious beliefs, this Court finds the reasoning in March for Life highly persuasive. Similar to the plaintiffs in March for Life, Plaintiffs here claim that they cannot maintain health insurance consistent with their religious beliefs. Plaintiffs allege that they cannot obtain any insurance plan that does not provide coverage for contraceptives, and that forgoing health insurance altogether violates their religious duty to provide for the health and well-being of their children. Based upon these allegations, the Court concludes that a reasonable inference can be drawn that the Mandate coerces Plaintiffs into violating their sincerely-held religious beliefs. See Sharpe Holdings, 801 F.3d at 937 (“governmental action substantially burdens the exercise of religion
7

when it coerces private individuals into violating their religious beliefs or penalizes them for those beliefs by denying them the rights, benefits, and privileges enjoyed by other citizens”) (internal quotation and citation omitted).
Defendants further argue that the Court should nevertheless dismiss Plaintiffs’ RFRA claim because they can establish that any burden on Plaintiffs’ religious beliefs is supported by a compelling governmental interest for which it has used the least restrictive means to further. Ultimately, the evidence may very well demonstrate this. However, to state a plausible claim for relief, Plaintiffs need not disprove Defendants’ assertions. Plaintiffs’ allegations that the Defendants’ enforcement of the Mandate imposes a substantial burden of their religious beliefs and that non-enforcement of the Mandate would provide them with relief are sufficient to avoid dismissal at this stage in the proceedings. See Sharpe Holdings, 801 F.3d at 937 (to state claim under RFRA, religious objector must show that government substantially burdened sincere exercise or belief; burden then shifts to government to come forward with evidence showing that it has compelling interest in applying challenged law to person, and that application of burden is least restrictive means of furthering compelling interest); see also Gorog v. Best Buy Co., Inc., 760 F.3d 787, 791 (8th Cir. 2014) (matters outside pleading may not be considered in deciding Rule 12(b)(6) motion to dismiss); cf. Howe v. Burwell, No. 2:15-CV-6, 2015 WL 4479757, at *15 (D. Vt. July 21, 2015) (to survive motion to dismiss, employee plaintiff need only plausibly allege that defendants’ enforcement of certain provisions of ACA imposed substantial burden on his religious beliefs and that non-enforcement of those same provisions would afford plaintiff some measure of relief).
Therefore, the Court finds that dismissal of Plaintiffs’ RFRA claim is not warranted at this time.
8

B. Free Exercise Claim The Free Exercise Clause states that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof…” U.S. Const. amend. I. Under the Free Exercise Clause, an individual’s freedom of religious belief is absolute, but freedom of conduct is not. See, e.g., Bowen v. Roy, 476 U.S. 693, 699 (1986). “In addressing the constitutional protection for free exercise of religion,” Supreme Court caselaw establishes the general proposition that “a law that is neutral and of general applicability need not be justified by a compelling governmental interest, even if the law has the incidental effect of burdening a particular religious practice.” Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). “Neutrality and general applicability are interrelated,” and “failure to satisfy one requirement is a likely indication that the other has not been satisfied.” Id. The Court will first consider neutrality.
“[I]f the object of a law is to infringe upon or restrict practices because of religious motivation, the law is not neutral.” Lukumi, 508 U.S. at 533 (quoting Smith, 494 U.S. at 878-79). Here, the Court finds that the Mandate does not have as its “object the suppression of religion.” Lukumi, 508 U.S. at 533-540. The Mandate and its implementing regulations “were passed, not with the object of interfering with religious practices, but instead to improve women’s access to healthcare and lessen the disparity between men’s and women’s healthcare costs.” O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1160-62 (E.D. Mo. 2012) (citations omitted), rev’d and vacated in part on other grounds, 766 F.3d 862 (8th Cir. 2014) (per curiam). The Court finds Plaintiffs’ argument that the religious-employer exemption compromises the neutrality of the Mandate by categorically favoring religious employers over individual parishioners unavailing. On the contrary, “the religious-employer exemption presents a strong
9

argument in favor of neutrality, demonstrating that the ‘object of the law’ was not ‘to infringe upon or restrict practices because of…religious motivation.’” Id. at 1161 (quoting Lukumi, 508 U.S. at 533). Cf. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335 (1987) (“[I]t is permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.”); Catholic Charities of Diocese of Albany v. Serio, 7 N.Y.3d 510, 522 (2006) (neutral purpose of New York health care law, which was to make contraceptive coverage broadly available to New York women, was not altered because Legislature chose to exempt some religious institutions and not others; “To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions—and thus to restrict, rather than promote, freedom of religion.”), cert. denied., 552 U.S. 816 (2007). In view of the Mandate’s purpose and operation, it is not evident that the Mandate “target[s]” Plaintiffs’ religion. Lukumi, 508 U.S. at 542. Therefore, the Court concludes that the Mandate is neutral.
The Court further concludes that the Mandate is generally applicable. The Mandate does not “in a selective manner impose burdens only on conduct motivated by religious belief.” Id. at 543. Rather, the Mandate applies to all employers not falling under an exemption or accommodation, regardless of those employers’ personal religious inclinations. Contrary to Plaintiffs’ assertions, the exemptions and accommodations also do not undermine the general applicability of the Mandate within the meaning of Free Exercise Clause jurisprudence because, as Defendants argue, such exemptions and accommodations do not disfavor religion, nor do they differentiate between religions. See Id. (“All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious
10

practice.”); cf. Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008) (“General applicability does not mean absolute universality. Exceptions do no negate that the [Controlled Substances Acts] are generally applicable.”).
Based on the foregoing, the Court concludes that the Mandate is neutral and generally applicable and does not offend the First Amendment’s Free Exercise Clause. Therefore, Plaintiffs’ claim under the Free Exercise Clause will be dismissed for failure to state a claim.2 C. Due Process Claim
Plaintiffs assert that the Mandate violates the Due Process Clause of the Fifth Amendment by interfering with their parental rights. The Due Process Clause “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000). See also King v. Olmsted Cnty., 117 F.3d 1065, 1067 (8th Cir. 1997) (“We have recognized a right to familial relations, which includes the liberty interest of parents in the custody, care, and management of their children.”)
Plaintiffs assert that the Mandate coerces them into providing their daughters with free and ready access to contraceptives, despite their beliefs and teachings that contraceptives are gravely immoral. This “Government-coerced hypocrisy,” they argue, “is a clear infringement upon and impediment to their ability to ‘inculcate and pass down many of [their] most cherished values, moral and cultural.’” (ECF No. 58 at 32 (quoting Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 503-04 (1977).)
This Court disagrees. The Court fails to see how the Mandate—which does not require Plaintiffs to provide their daughters with or educate them in any particular manner regarding the
2 Plaintiffs argue that their assertion of “hybrid rights” requires that the Mandate be subject to strict scrutiny even if it is neutral and generally applicable. Because the Court finds that Plaintiffs have also failed to state claims under the Due Process and Free Speech Clauses, the Court rejects their hybrid-rights theory.
11

use of contraceptives—prevents or restricts Plaintiffs from “direct[ing] the upbringing and education of [their] children under their control.” Pierce v. Soc’y of Sisters, 268 U.S. 510, 534535 (1925). The Mandate requires neither Plaintiffs nor their daughters to avail themselves of the contraceptive coverage; rather, Plaintiffs and their daughters retain the choice to do so. Cf. Wisconsin v. Yoder, 406 U.S. 205, 218 (1972) (“The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of sanction, to perform acts undeniably at odds with fundamental tenets of their religious faith.”); Parker v. Hurley, 514 F.3d 87, 100 (1st Cir. 2008) (“Exposure to [curriculum materials intended to encourage respect for gay persons and couples] in dispute here will not automatically and irreversibly prevent the parents from raising [their children] in the religious belief that gay marriage is immoral. [The plaintiffs] retain options, unlike the parents in Yoder.”). Furthermore, Plaintiffs cite no caselaw, nor is the Court aware of any, that recognizes the particular parental right they assert in this matter—the right to have a health insurance plan that excludes coverage of services that a parent objects to for religious reasons. Therefore, Plaintiffs’ due process claim will be dismissed. D. Free Speech Claim
Plaintiffs next assert that the Mandate violates their rights under the Free Speech Clause. The Free Speech Clause states that, “Congress shall make no law … abridging the freedom of speech…” U.S. Const. amend. I. The Supreme Court has long recognized that the First Amendment protects both freedom of speech and freedom from compelled speech. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess
12

by word or act their faith therein.”). Free speech also encompasses the right to refuse financial support to causes with which one disagrees, and the government may not compel persons to express a message or subsidize a message with which they disagree. See Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2288-89 (2012); United States v. United Foods, Inc., 533 U.S. 405, 413-14 (2001).
Plaintiffs assert that the Mandate not only compels them “to subsidize things that [they] find morally objectionable, but it also compels [them] to subsidize others persons to educate and counsel people to engage in those morally objectionable activities.” (ECF No. 58 at 33.) As an initial matter, the Mandate neither limits nor requires Plaintiffs or any “other persons” to say anything. Thus, the Court finds that the Mandate regulates conduct, not speech, and that any unscripted speech arising from the education and counseling of other individuals regarding contraceptives is incidental.
Nevertheless, Plaintiffs further argue that, to the extent they are being compelled to fund conduct, such conduct is inherently expressive. However, in considering whether conduct is inherently expressive the Court must ask “whether an intent to convey a particularized message [i]s present, and whether the likelihood [i]s great that the message w[ill] be understood by those who view[] it.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (quotation and citation omitted). Here, the Court finds that the giving or receiving of health care—which at the discretion of individual doctors and patients may or may not involve education and counseling regarding contraceptives—is not inherently expressive conduct. It “is not a statement in the same sense as wearing a black armband…or burning an American flag.” O’Brien, 894 F. Supp. 2d at 1166-67 (citations omitted). Plaintiffs’ objection to subsidizing health insurance coverage that may result
13

in others engaging in contraceptive education and counseling is not one protected by the First
Amendment. Therefore, Plaintiffs’ Free Speech claim will be dismissed.
E. APA Claim
Plaintiffs’ final claim is that the Mandate violates the APA. Plaintiffs specifically allege
that the Mandate violates a separate provision of the ACA which prohibits requiring any
“‘qualified health plan to provide coverage of [abortion] services.’”3 (ECF No. 58 at 35 (quoting
42 U.S.C. § 18023(b)(1)(A)(i)).) The APA grants standing to persons “adversely affected or
aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. In
addition to Article III standing, plaintiffs must also satisfy the requirements of prudential
standing. As articulated by the Supreme Court, a plaintiff satisfies prudential standing if the
plaintiff is “arguably within the zone of interests to be protected or regulated by the statute” that
the plaintiff says was violated. Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S.
150, 153 (1970).
Plaintiffs here lack prudential standing to claim that the Mandate conflicts with the
separate provision of the ACA. See 42 U.S.C. § 18023(b)(1)(A) (defining “qualified health
3 In their Response to Defendants’ Motion to Dismiss, Plaintiffs assert that they have also pled an arbitrary and capricious claim under the APA, and that the government has failed to dispute this claim. Plaintiffs’ Complaint, however, does not explicitly allege that the Mandate is arbitrary or capricious, only that “Defendants, in promulgating the Mandate, failed to consider the constitutional and statutory implications of the Mandate on individuals like the Plaintiffs.” (Compl. ¶ 129.) Even assuming Plaintiffs have alleged sufficient facts to assert an arbitrary and capricious claim under the APA, and that they maintain prudential standing to do so, the Court would nevertheless find that the Mandate is neither arbitrary nor capricious. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (arbitrary and capricious standard is narrow; generally, agency rule would be arbitrary and capricious if agency has relied on factors which Congress has not intended it to consider, entirely failed to consider important aspect of problem, offered explanation for its decision that runs counter to evidence before agency, or is so implausible that it could not be ascribed to difference in view of product of agency expertise); see also O’Brien, 894 F. Supp. 2d at 1168-69 (rejecting plaintiffs’ claim that Mandate was arbitrary and capricious).
14

plan”); Clarke v. Sec. Industry Ass’n, 479 U.S. 388, 399-400 (1987) (in cases where plaintiff is not subject of contested regulatory action, zone of interests test denies right of review if plaintiff’s interests are so marginally related to or inconsistent with purposes implicit in statute that it cannot reasonably be assumed that Congress intended to permit suit). Plaintiffs are not within the zone of interests protected under that separate provision, since it applies only to “qualified health plans” available through Exchanges, which until 2017 are only available to individuals and small employers, and which MCHCP is not. See 42 U.S.C. §§ 18021(a)(1)(A), 18031(b), 18032(f). Therefore, Plaintiffs’ APA claim will be dismissed.
CONCLUSION Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (ECF No. 53) is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that Counts II, III, IV, and V of Plaintiffs’ Complaint (ECF No. 1) are DISMISSED with prejudice.

Dated this 8th day of January, 2016.

/s/ Jean C. Hamilton UNITED STATES DISTRICT JUDGE

15

 
 Case: 4:13-cv-01577-JCH Doc. #: 87 Filed: 07/21/16 Page: 1 of 2 PageID #: 1195

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PAUL JOSEPH WIELAND, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES, )

et al.,

)

)

Defendants.

)

Case No. 4:13-cv-01577-JCH

ORDER

In accordance with the Memorandum and Order entered this day and incorporated herein,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (ECF No.

75) is DENIED.

IT IS FURTHER ORDERD that Plaintiffs’ Motion for Summary Judgment (ECF No.

78) is GRANTED.

IT IS FURTHER ORDERED that Defendants, their employees, agents, and successors

in office are permanently ENJOINED from enforcing against Plaintiffs and Plaintiffs’ health

insurance issuer, in connection with Plaintiffs’ healthcare plan:

(a) the statutes and regulations requiring a health insurance issuer to provide health

insurance that includes contraceptive coverage; or

(b) any attendant penalties, fines, or assessment for noncompliance with the above

statutes or regulations.

1

Case: 4:13-cv-01577-JCH Doc. #: 87 Filed: 07/21/16 Page: 2 of 2 PageID #: 1196
This Order should not be construed as to prevent enforcement of any statute or regulation against a health insurance issuer in the individual market regarding any plan offered or provided to any individual other than the named Plaintiffs and their dependents.

Dated this 21st day of July, 2016.

/s/ Jean C. Hamilton UNITED STATES DISTRICT JUDGE

2

 
 Case: 4:13-cv-1577 As of: 07/17/2018 12:19 PM CDT 1 of 11
CLOSED,REOPEN,TRCK2
U.S. District Court Eastern District of Missouri (St. Louis) CIVIL DOCKET FOR CASE #: 4:13−cv−01577−JCH

Wieland et al v. United States Department of Health and Human Date Filed: 08/14/2013

Services et al

Date Terminated: 07/21/2016

Assigned to: District Judge Jean C. Hamilton

Jury Demand: None

Cause: 28:2201 Declaratory Judgment

Nature of Suit: 440 Civil Rights: Other

Jurisdiction: U.S. Government Defendant

Plaintiff

Paul Joseph Wieland a Missouri resident

represented by Kevin E. White KEVIN EDWARD WHITE AND ASSOCIATES 233 South Wacker Dr. Suite 5210 Chicago, IL 60606−6368 312−606−8602 Fax: 312−606−8603 Email: kwhite@kevinedwardwhiteassociates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter C. Breen THOMAS MORE SOCIETY 19 S. LaSalle St. Suite 603 Chicago, IL 60603 312−782−1680 Fax: 312−782−1887 Email: pbreen@thomasmoresociety.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas L. Brejcha THOMAS MORE SOCIETY 19 S. LaSalle St. Suite 603 Chicago, IL 60603 312−782−1680 Fax: 312−782−1887 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Belz OTTSEN AND LEGGAT, L.C. 112 S. Hanley Road Suite 200 St. Louis, MO 63105−3418 314−726−2800 Fax: 314−863−3821 Email: tbelz@omlblaw.com ATTORNEY TO BE NOTICED

Plaintiff
Teresa Jane Wieland a Missouri resident

represented by Kevin E. White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter C. Breen (See above for address)

Case: 4:13-cv-1577 As of: 07/17/2018 12:19 PM CDT 2 of 11
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas L. Brejcha THOMAS MORE SOCIETY 19 S. LaSalle St. Suite 603 Chicago, IL 60603 312−782−1680 Fax: 312−782−1887 Email: tbrejcha@thomasmoresociety.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy Belz (See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States Department of Health and Human Services
Defendant Kathleen Sebelius in her official capacity as the Secretary of the United States Department of Health and Human Services Defendant United States Department of Treasury
Defendant Jacob J. Lew in his official capacity as the Secretary of the United States Department of the Treasury Defendant United States Department of Labor
Defendant Seth D. Harris in his official capacity as Acting

represented by Michelle R Bennett U.S. DEPARTMENT OF JUSTICE − CIVIL DIVISION Federal Program Branch 20 Massachusetts Avenue, NW P.O. Box 883 Washington, DC 20530 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address)

Case: 4:13-cv-1577 As of: 07/17/2018 12:19 PM CDT 3 of 11

Secretary of the United States Department of Labor

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/14/2013
08/14/2013 08/20/2013 08/20/2013 08/20/2013 08/22/2013 08/23/2013 08/26/2013 08/27/2013
08/27/2013 08/27/2013 08/27/2013 08/27/2013 08/27/2013 08/27/2013

# Docket Text
1 COMPLAINT against defendant All Defendants with receipt number 0865−3940540, in the amount of $400 Non−Jury Demand,, filed by Paul Joseph Wieland. (Attachments: # 1 Civil Cover Sheet, # 2 Original Filing Form , # 3 Summons , # 4 Summons , # 5 Summons , # 6 Summons , # 7 Summons , # 8 Summons )(Belz, Timothy) (Additional attachment(s) added on 8/14/2013: # 9 Summons Atty Gen, # 10 Summons AUSA) (BAK). (Entered: 08/14/2013)
Case Opening Notification 8 Summons(es) issued, Judge Assigned: U.S. District Judge Jean C. Hamilton. The summons were emailed to attorney Timothy Belz. (BAK) (Entered: 08/14/2013)
2 MOTION for Temporary Restraining Order by Plaintiff Paul Joseph Wieland. (Belz, Timothy) (Entered: 08/20/2013)
3 MOTION for Leave to File in Excess of Page Limitation by Plaintiff Paul Joseph Wieland. (Belz, Timothy) (Entered: 08/20/2013)
4 MEMORANDUM in Support of Motion re 2 MOTION for Temporary Restraining Order filed by Plaintiff Paul Joseph Wieland. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Belz, Timothy) (Entered: 08/20/2013)
5 Docket Text ORDER: Re: 3 MOTION for Leave to File in Excess of Page Limitation by Plaintiff Paul Joseph Wieland. ; ORDERED : LEAVE GRANTED TO FILE. Signed by District Judge Jean C. Hamilton on 8/22/13. (CEL) (Entered: 08/23/2013)
Receipt 4644037643 in the amount of $100.00 for PRO HAC VICE on behalf of Peter Breen (CCAM) (Entered: 08/25/2013)
6 NOTICE by Plaintiff Paul Joseph Wieland (Attachments: # 1 Exhibit 1)(Belz, Timothy)(atty notified to attach summons to each return receipt − Modified on 8/27/2013 (CEL). (Entered: 08/26/2013)
7 MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Temporary Restraining Order by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 08/27/2013)
8 SUMMONS Returned Executed filed by Paul Joseph Wieland. Kathleen Sebellus on 8/19/13 (Attachments: # 1 Exhibit 1)(Belz, Timothy) Modified on 8/27/2013 (CEL). (Entered: 08/27/2013)
9 SUMMONS Returned Executed filed by Teresa Jane Wieland, Paul Joseph Wieland. US Dept. of Health and Human Services on 8/19/13 (Attachments: # 1 Exhibit 1)(Belz, Timothy) Modified on 8/27/2013 (CEL). (Entered: 08/27/2013)
10 SUMMONS Returned Executed filed by Paul Joseph Wieland. Attorney General on 8/19/13 (Attachments: # 1 Exhibit 1)(Belz, Timothy) Modified on 8/27/2013 (CEL). (Entered: 08/27/2013)
11 SUMMONS Returned Executed filed by Paul Joseph Wieland. US Attorney's Office St. Louis on 8/15/13 (Attachments: # 1 Exhibit 1)(Belz, Timothy) Modified on 8/27/2013 (CEL). (Entered: 08/27/2013)
12 SUMMONS Returned Executed filed by Paul Joseph Wieland. Deft. US Department of Labor on 8/20/13(Attachments: # 1 Exhibit 1)(Belz, Timothy) Modified on 8/27/2013 (CEL). (Entered: 08/27/2013)
13 SUMMONS Returned Executed filed by Paul Joseph Wieland. Deft. US Dept. of Treasury on 8/21/13 (Attachments: # 1 Exhibit 1)(Belz, Timothy) Modified on 8/27/2013 (CEL). (Entered: 08/27/2013)

Case: 4:13-cv-1577 As of: 07/17/2018 12:19 PM CDT 4 of 11

08/27/2013 08/27/2013 08/28/2013 08/28/2013 08/29/2013 08/29/2013 09/04/2013
09/10/2013
09/10/2013
09/10/2013
09/10/2013 09/10/2013 09/10/2013 09/10/2013

14 SUMMONS Returned Executed filed by Paul Joseph Wieland. Deft Seth Harris served 8/19/13 (Attachments: # 1 Exhibit 1)(Belz, Timothy) Modified on 8/27/2013 (CEL). (Entered: 08/27/2013)
15 SUMMONS Returned Executed filed by Paul Joseph Wieland. Deft. Jacob J. Lew served on 8/21/13 (Attachments: # 1 Exhibit 1)(Belz, Timothy) Modified on 8/27/2013 (CEL). (Entered: 08/27/2013)
16 RESPONSE to Motion re 7 MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Temporary Restraining Order filed by Plaintiff Paul Joseph Wieland. (Belz, Timothy) (Entered: 08/28/2013)
17 MOTION for Leave to Appear Pro Hac Vice Peter Breen. The Certificate of Good Standing was attached.(Filing fee $100) by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Attachments: # 1 Certificate of Good Standing, # 2 Envelope)(CLK) (Entered: 08/28/2013)
18 Docket Text ORDER: Re: 17 MOTION for Leave to Appear Pro Hac Vice Peter Breen. by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. ; ORDERED : SO ORDERED. Signed by District Judge Jean C. Hamilton on 8/29/13. (CEL) (Entered: 08/29/2013)
ORDER RECEIPT: (see receipt) Docket No: 18. Thu Aug 29 14:49:02 CDT 2013 (Lippold, Carrie) (Entered: 08/29/2013)
19 Docket Text ORDER: Re: 7 MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Temporary Restraining Order by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) filed by United States Department of Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of Labor; GRANTED JCH. Signed by District Judge Jean C. Hamilton on 9/4/13. (CLA) (Entered: 09/04/2013)
20 MOTION for Leave to File in Excess of Page Limitation by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) Modified on 9/11/2013 (CLK). (left detailed message for Atty. Re: wrong case number listed on documents and for future filings to use correct case number) (Entered: 09/10/2013)
21 MEMORANDUM in Opposition re 2 MOTION for Temporary Restraining Order filed by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) Modified on 9/11/2013 (CLK).(left detailed message for Atty. Re: wrong case number listed on documents and for future filings to use correct case number 4:13−cv−1577) (Entered: 09/10/2013)
22 MOTION to Dismiss Case by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Attachments: # 1 Memorandum in Support)(Bennett, Michelle) Modified on 9/11/2013 (CLK).(left detailed message for Atty. Re: wrong case number listed on documents and for future filings to use correct case number 4:13−cv−1577) (Entered: 09/10/2013)
Receipt 4644037993 in the amount of $100.00 for PRO HAC VICE on behalf of Thomas L. Brejcha (CCAM) (Entered: 09/11/2013)
Receipt 4644037994 in the amount of $100.00 for PRO HAC VICE on behalf of Kevin E. White (CCAM) (Entered: 09/11/2013)
23 MOTION for Leave to Appear Pro Hac Vice Kevin E. White. The Certificate of Good Standing was attached.(Filing fee $100) by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Attachments: # 1 Certificate of Good Standing)(CLK) (Entered: 09/11/2013)
24 MOTION for Leave to Appear Pro Hac Vice Thomas L. Brejcha. The Certificate of Good Standing was attached.(Filing fee $100) by Plaintiffs Paul Joseph Wieland,

Case: 4:13-cv-1577 As of: 07/17/2018 12:19 PM CDT 5 of 11

09/11/2013 09/12/2013
09/12/2013 09/20/2013 09/20/2013 09/26/2013 09/30/2013 09/30/2013 10/02/2013
10/04/2013 10/07/2013 10/07/2013 10/08/2013

Teresa Jane Wieland. (Attachments: # 1 Certificate of Good Standing)(CLK) (Entered: 09/11/2013)
25 Docket Text ORDER: Re: 20 MOTION for Leave to File in Excess of Page Limitation by Defendants. ORDERED SO ORDERED JCH. Signed by District Judge Jean C. Hamilton on 09/11/2013. (CLK) (Entered: 09/11/2013)
26 Docket Text ORDER: Re: 24 MOTION for Leave to Appear Pro Hac Vice Thomas L. Brejcha. The Certificate of Good Standing was attached.(Filing fee $100) by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Attachments: # 1 Certificate of Good Standing)(CLK) filed by Teresa Jane Wieland, Paul Joseph Wieland, 23 MOTION for Leave to Appear Pro Hac Vice Kevin E. White. The Certificate of Good Standing was attached.(Filing fee $100) by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Attachments: # 1 Certificate of Good Standing)(CLK) filed by Teresa Jane Wieland, Paul Joseph Wieland ; SO ORDERED JCH. Signed by District Judge Jean C. Hamilton on 9/12/13. (CLA) (Entered: 09/12/2013)
ORDER RECEIPT: (see receipt) Docket No: 26. Thu Sep 12 14:38:13 CDT 2013 (Abrams, Carrie) (Entered: 09/12/2013)
27 MOTION for Leave to File in Excess of Page Limitation by Plaintiff Paul Joseph Wieland. (Belz, Timothy) (Entered: 09/20/2013)
28 REPLY to Response to Motion re 22 MOTION to Dismiss Case , 2 MOTION for Temporary Restraining Order filed by Plaintiff Paul Joseph Wieland. (Attachments: # 1 1)(Belz, Timothy) Modified on 9/23/2013 (CLA)attachment sealed per attys. request. (Entered: 09/20/2013)
29 Docket Text ORDER: Re: 27 MOTION for Leave to File in Excess of Page Limitation by Plaintiff Paul Joseph Wieland. (Belz, Timothy) filed by Paul Joseph Wieland ; LEAVE GRANTED JCH. Signed by District Judge Jean C. Hamilton on 9/26/13. (CLA) (Entered: 09/26/2013)
30 MOTION for Leave to File in Excess of Page Limitation by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 09/30/2013)
31 REPLY to Response to Motion re 22 MOTION to Dismiss Case filed by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 09/30/2013)
32 Docket Text ORDER: Re: 30 MOTION for Leave to File in Excess of Page Limitation by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. ORDERED SO ORDERED JCH. Signed by District Judge Jean C. Hamilton on 10/02/2013. (CLK) (Entered: 10/02/2013)
33 MOTION for Leave to File Surreply by Plaintiff Paul Joseph Wieland. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1a, # 3 Exhibit 2a, # 4 Exhibit 3a)(Belz, Timothy) (Entered: 10/04/2013)
34 Docket Text ORDER: Re: 33 MOTION for Leave to File Surreply by Plaintiff Paul Joseph Wieland. ; ORDERED : LEAVE GRANTED. Signed by District Judge Jean C. Hamilton on 10/7/13. (CEL) (Entered: 10/07/2013)
35 SURREPLY to Motion re 22 MOTION to Dismiss Case , 2 and supplement to MOTION for Temporary Restraining Order filed by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Attachments: # 1 Exhibit 1A, # 2 Exhibit 2A, # 3 Exhibit 3A)(CEL) (Entered: 10/07/2013)
36 RULE 16 ORDER This case is assigned to Track: 2 Joint Scheduling Plan due by 11/11/2013. Rule 16 Conference set for 11/21/2013 10:15 AM by Telephone before District Judge Jean C. Hamilton.. Signed by District Judge Jean C. Hamilton on 10/8/13. (CEL) (Entered: 10/08/2013)

Case: 4:13-cv-1577 As of: 07/17/2018 12:19 PM CDT 6 of 11

10/16/2013
10/16/2013 10/21/2013 10/21/2013 10/29/2013 11/12/2013 11/19/2013
11/22/2013 07/20/2015 07/20/2015
09/10/2015 09/11/2015 09/25/2015
09/28/2015

37 MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Motion to Dismiss filed by Defendants (ECF No. 22) is GRANTED; IT IS FURTHER ORDERED that the Motion for Temporary Restraining Order (ECF No. 2) filed by Plaintiffs is DENIED;IT IS FURTHER ORDERED that Plaintiffs Complaint (ECF No. 1) is DISMISSED, withprejudice. A separate Order of Dismissal will issue contemporaneously with this Memorandum and Order. 22 2 Signed by District Judge Jean C. Hamilton on 10/16/13. (CLA) (Entered: 10/16/2013)
38 JUDGMENT IT IS HEREBY ORDERED, ADJUDGED and DECREED that Judgment is entered infavor of Defendants and that this matter is DISMISSED, with prejudice. Signed by District Judge Jean C. Hamilton on 10/16/13. (CLA) (Entered: 10/16/2013)
39 Emergency MOTION for Preliminary Injunction Pending Appeal by Plaintiff Paul Joseph Wieland. (Belz, Timothy) (Entered: 10/21/2013)
40 MEMORANDUM in Support of Motion re 39 Emergency MOTION for Preliminary Injunction Pending Appeal filed by Plaintiff Paul Joseph Wieland. (Attachments: # 1 Exhibit 1)(Belz, Timothy) (Entered: 10/21/2013)
41 Docket Text ORDER: Re: 39 Emergency MOTION for Preliminary Injunction Pending Appeal by Plaintiff Paul Joseph Wieland. ORDERED DENIED JCH. Signed by District Judge Jean C. Hamilton on 10/29/2013. (CLK) (Entered: 10/29/2013)
42 NOTICE OF APPEAL by Plaintiff Paul Joseph Wieland. Filing fee $ 455, receipt number 0865−4068115. (Attachments: # 1 Form A) (Entered: 11/12/2013)
43 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by clerk to USCA regarding 37 Memorandum & Order, 38 Judgment − (Case). Notice of Appeal filed on 11/12/13 by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. NOTIFICATION TO COUNSEL AND PRO SE PARTY: FILE REQUEST FOR TRANSCRIPT WITH DISTRICT COURT CLERKS OFFICE.(BAK) (Entered: 11/19/2013)
44 Initial Notification and Briefing Schedule from USCA for 42 Notice of Appeal filed by Paul Joseph Wieland USCA Appeal Number: 13−3528 Notice of Appeal forwarded to panel: No (Attachments: # 1 Letter)(CEL) (Entered: 11/22/2013)
45 OPINION from USCA re 42 Notice of Appeal : USCA Appeal #: 13−3528 We reverse and remand. (CLK). Modified on 7/20/2015 (CLK).(wrong document attached replaced with correct document and resent nef) (Entered: 07/20/2015)
46 USCA JUDGMENT as to 42 Notice of Appeal filed by Paul Joseph Wieland: This appeal from the United States District Court was submitted on the record of thedistrict court, briefs of the parties and was argued by counsel. After consideration, it is hereby ordered and adjudged that the judgment of the district court in this cause is reversed and the cause is remanded to the district court for proceedings consistent with the opinion of this court. (CLK) (Main Document 46 replaced on 7/20/2015) (CLK). (Entered: 07/20/2015)
48 MANDATE of USCA as to 42 Notice of Appeal filed by Paul Joseph Wieland USCA #:13−3528 (CLA) (Entered: 09/10/2015)
49 Docket Text ORDER: DEFENDANTS HAVE 20 DAYS TO FILE AN ANSWER TO THE COMPLAINT. SO ORDERED JCH. Signed by District Judge Jean C. Hamilton on 9/11/15. (CLA) (Entered: 09/11/2015)
50 MOTION to Clarify 49 Docket Text Order , Consent MOTION for Extension of Time to File Motion to Dismiss or Answer by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 09/25/2015)
51 ORDER: This matter is before the Court on Defendants' Motion for Clarification of September 11, 2015 Order and Motion for Extension of Time to Respond to Order. (ECF No. 50 .) Defendants "request that the Court clarify its September 11, 2015 Order to make clear that defendants may renew (or refile) the Rule 12(b)(6) portion of their original motion to dismiss, instead of filing an answer." Defendants "also seek a two week extension of time (from October 1, 2015 or the date on which the Court

Case: 4:13-cv-1577 As of: 07/17/2018 12:19 PM CDT 7 of 11

10/15/2015 10/15/2015 10/15/2015 10/20/2015
10/20/2015 11/05/2015 11/05/2015 11/06/2015 11/09/2015
11/10/2015
12/04/2015 12/04/2015 12/07/2015

decides the instant motion for clarification, whichever is later) to respond to the complaint."IT IS HEREBY ORDERED that Defendant' Motion (ECF No. 50 ) is GRANTED. Defendants shall have until October 15, 2015 to respond to the Complaint, and Defendants may renew or refile the Rule 12(b)(6) portion of their original motion to dismiss. Extension date: 10/15/2015 Signed by District Judge Jean C. Hamilton on 09/28/2015. (CLK) (Entered: 09/28/2015)
52 MOTION for Leave to File in Excess of Page Limitation by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 10/15/2015)
53 MOTION to Dismiss Case by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Attachments: # 1 Memorandum in Support)(Bennett, Michelle) (Entered: 10/15/2015)
54 MOTION for Extension of Time to File Response/Reply by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) (Entered: 10/15/2015)
55 Docket Text ORDER: Re: 52 MOTION for Leave to File in Excess of Page Limitation by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle); ORDERED SO ORDERED JCH. Signed by District Judge Jean C. Hamilton on 10/20/2015. (CLK) (Entered: 10/20/2015)
56 Docket Text ORDER: Re: 54 MOTION for Extension of Time to File Response/Reply by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy); ORDERED SO ORDERED JCH, ( Response to Court due by 11/5/2015.). Signed by District Judge Jean C. Hamilton on 10/20/2015. (CLK) (Entered: 10/20/2015)
57 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) (Entered: 11/05/2015)
58 MEMORANDUM in Opposition re 53 MOTION to Dismiss Case filed by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) (Entered: 11/05/2015)
59 Docket Text ORDER: Re: 57 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) filed by Teresa Jane Wieland, Paul Joseph Wieland ; ORDERED SO ORDERED JCH. Signed by District Judge Jean C. Hamilton on 11/6/15. (CLA) (Entered: 11/06/2015)
60 Consent MOTION for Extension of Time to File Response/Reply as to 53 MOTION to Dismiss Case , 58 Memorandum in Opposition to Motion by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 11/09/2015)
61 Docket Text ORDER: Re: 60 Consent MOTION for Extension of Time to File Response/Reply as to 53 MOTION to Dismiss Case filed by United States Department of Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of Labor; GRANTED − SO ORDERED. (Response due 12/4/15.) Signed by District Judge Jean C. Hamilton on 11/10/15. (KJS) (Entered: 11/10/2015)
62 MOTION for Leave to File in Excess of Page Limitation by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 12/04/2015)
63 REPLY to Response to Motion re 53 MOTION to Dismiss Case filed by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 12/04/2015)
64 Docket Text ORDER: Re: 62 MOTION for Leave to File in Excess of Page Limitation by Defendants ; SO ORDERED JCH. Signed by District Judge Jean C. Hamilton on

Case: 4:13-cv-1577 As of: 07/17/2018 12:19 PM CDT 8 of 11

12/18/2015 01/08/2016 01/08/2016
01/13/2016 01/21/2016 01/22/2016 01/28/2016 02/04/2016
03/04/2016 03/24/2016 03/24/2016 03/28/2016

12/7/15. (CLA) (Entered: 12/07/2015)
65 NOTICE Supplemental Authority: by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury re 53 MOTION to Dismiss Case (Attachments: # 1 Exhibit − Real Alternatives Decision)(Bennett, Michelle) (Entered: 12/18/2015)
66 MEMORANDUM AND ORDER :IT IS HEREBY ORDERED that Defendants' Motion to Dismiss (ECF No. 53 ) is GRANTED in part and DENIED in part.IT IS FURTHER ORDERED that Counts II, III, IV, and V of Plaintiffs Complaint (ECF No. 1 ) are DISMISSED with prejudice. Signed by District Judge Jean C. Hamilton on 01/08/2016. (CLK) (Entered: 01/08/2016)
67 RULE 16 ORDER: HEREBY ORDERED Scheduling Conference pursuant to Fed. R. Civ. P. 16 is setfor January 28, 2016, at 11:00 am The conference will be held by telephone with the Plaintiff initiating the call. The phone number for Judge Hamilton's chambers is (314) 244−7600. This case is assigned to Track: 2 Joint Scheduling Plan due by 1/21/2016. Rule 16 Conference set for 1/28/2016 11:00 AM in Telephone before District Judge Jean C. Hamilton. Signed by District Judge Jean C. Hamilton on 01/08/2016. (CLK) (Entered: 01/08/2016)
68 Docket Text ORDER: RESETTING Rule 16 Conference set for 1/28/2016 10:45 AM before District Judge Jean C. Hamilton. (This is a time change only.) Signed by District Judge Jean C. Hamilton on 1/13/16. (KJS) (Entered: 01/13/2016)
69 JOINT SCHEDULING PLAN by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. . (Belz, Timothy) (Entered: 01/21/2016)
70 ANSWER to 1 Complaint, by Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury.(Bennett, Michelle) (Entered: 01/22/2016)
71 CASE MANAGEMENT ORDER − TRACK 2: STANDARD: IT IS HEREBY ORDERED that the following schedule shall apply in this case, and will be modified only upon a showing of exceptional circumstances;(See Order for Details). Signed by District Judge Jean C. Hamilton on 01/28/2016. (CLK) (Entered: 01/28/2016)
72 NOTICE Filing of Certified Administrative Record: by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury (Attachments: # 1 Index for Administrative Record, # 2 Certification of Administrative Record)(Bennett, Michelle) Administrative Recond CD 1,2, and 3 filed in paper form. (Entered: 02/04/2016)
73 NOTICE (Joint Notice): by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury (Bennett, Michelle) (Entered: 03/04/2016)
74 MOTION for Leave to File in Excess of Page Limitation by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 03/24/2016)
75 MOTION for Summary Judgment by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Attachments: # 1 Memorandum in Support, # 2 Statement of Material Facts with Exhibits)(Bennett, Michelle) (Entered: 03/24/2016)
76 Docket Text ORDER: Re: 74 MOTION for Leave to File in Excess of Page Limitation by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) filed by United States Department of Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of Labor ; ORDERED LEAVE GRANTED JCH. Signed by District Judge Jean C. Hamilton on

Case: 4:13-cv-1577 As of: 07/17/2018 12:19 PM CDT 9 of 11

04/15/2016 04/15/2016 04/15/2016 04/15/2016 04/18/2016 04/29/2016 05/04/2016 05/13/2016
06/03/2016 07/21/2016
07/21/2016

03/28/2016. (CLK) (Entered: 03/28/2016)
77 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) (Entered: 04/15/2016)
78 MOTION for Summary Judgment by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) (Entered: 04/15/2016)
79 MEMORANDUM in Support of Motion re 75 MOTION for Summary Judgment , 78 MOTION for Summary Judgment , 77 MOTION for Leave to File in Excess of Page Limitation filed by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Attachments: # 1 Response to Government Statement of Facts)(Belz, Timothy) (Entered: 04/15/2016)
80 STATEMENT of Material Facts re 78 MOTION for Summary Judgment filed by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Belz, Timothy) (Entered: 04/15/2016)
81 Docket Text ORDER: Re: 77 MOTION for Leave to File in Excess of Page Limitation filed by Teresa Jane Wieland, Paul Joseph Wieland ; GRANTED − SO ORDERED. Signed by District Judge Jean C. Hamilton on 4/18/16. (KJS) (Entered: 04/18/2016)
82 Consent MOTION for Extension of Time to File Response/Reply by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 04/29/2016)
83 Docket Text ORDER: Re: 82 Consent MOTION for Extension of Time to File Response/Reply filed by United States Department of Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of Labor; GRANTED − SO ORDERED. Signed by District Judge Jean C. Hamilton on 5/4/16. (KJS) (Entered: 05/04/2016)
84 MEMORANDUM in Opposition re 78 MOTION for Summary Judgment and Reply in Support of Defendants' Motion for Summary Judgment filed by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Attachments: # 1 Exhibit 1, # 2 Response to Pls.' Statement of Material Facts in Supp. of Pls.' Mot. for Summ. J.)(Bennett, Michelle) (Entered: 05/13/2016)
85 REPLY to Response to Motion re 78 MOTION for Summary Judgment filed by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Belz, Timothy) (Entered: 06/03/2016)
86 MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment (ECF No. 75) is DENIED. IT IS FURTHER ORDERD that Plaintiffs Motion for Summary Judgment (ECF No. 78) is GRANTED. IT IS FURTHER ORDERED that Defendants are hereby permanently ENJOINED from enforcing against Plaintiffs and their health insurance issuer the statutes and regulations requiring a health insurance issuer to provide them with health insurance that includes contraceptive coverage. A separate Order will accompany this Memorandum and Order. 75 78 Signed by District Judge Jean C. Hamilton on 7/21/16. (CLA) (Entered: 07/21/2016)
87 ORDER IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment (ECF No. 75) is DENIED. IT IS FURTHER ORDERD that Plaintiffs Motion for Summary Judgment (ECF No. 78) is GRANTED. IT IS FURTHER ORDERED that Defendants, their employees, agents, and successors in office are permanently ENJOINED from enforcing against Plaintiffs and Plaintiffs health insurance issuer, in connection with Plaintiffs healthcare plan: (a) the statutes and regulations requiring a health insurance issuer to provide health insurance that includes contraceptive coverage; or (b) any attendant penalties, fines, or assessment for noncompliance with the above statutes or regulations. This Order should not be construed as to prevent enforcement of any statute or regulation againsta health insurance issuer in the individual market regarding any plan offered or provided to any individual other than

Case: 4:13-cv-1577 As of: 07/17/2018 12:19 PM CDT 10 of 11

08/02/2016 08/08/2016
08/18/2016 08/18/2016 08/18/2016 08/22/2016 09/01/2016 09/16/2016
09/16/2016 09/19/2016
10/04/2016 10/04/2016
11/23/2016

the named Plaintiffs and their dependents. Signed by District Judge Jean C. Hamilton on 7/21/16. (CLA) (Entered: 07/21/2016)
88 Consent MOTION for Extension of Time to File ;Extension to file the following: motion for attorney fees and costs ;Proposed extension date 8/18/2016 by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) (Entered: 08/02/2016)
89 Docket Text ORDER: Re: 88 Consent MOTION for Extension of Time to File ;Extension to file the following: motion for attorney fees and costs ;Proposed extension date 8/18/2016 by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) filed by Teresa Jane Wieland, Paul Joseph Wieland ; ORDERED SO ORDERED JCH. Signed by District Judge Jean C. Hamilton on 8/8/16. (CLA) (Entered: 08/08/2016)
90 (WITHDRAWN) MOTION for Attorney Fees by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) Modified on 12/18/2017 (JAB). (Entered: 08/18/2016)
91 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) (Entered: 08/18/2016)
92 MEMORANDUM in Support of Motion re 90 MOTION for Attorney Fees filed by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9)(Belz, Timothy) (Entered: 08/18/2016)
93 Docket Text ORDER: Re: 91 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) filed by Teresa Jane Wieland, Paul Joseph Wieland ; ORDERED LEAVE GRANTED JCH. Signed by District Judge Jean C. Hamilton on 8/22/16. (CLA) (Entered: 08/22/2016)
94 Consent MOTION to Stay Briefing on Plaintiffs' Motion for Attorneys' Fees and Costs by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) (Entered: 09/01/2016)
95 Docket Text ORDER: Re: 94 Consent MOTION to Stay Briefing on Plaintiffs' Motion for Attorneys' Fees and Costs by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Bennett, Michelle) filed by United States Department of Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of Labor ; ORDERED GRANTED JCH. Signed by District Judge Jean C. Hamilton on 9/16/16. (CLA) (Entered: 09/16/2016)
96 NOTICE OF APPEAL by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. (Entered: 09/16/2016)
97 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by clerk to USCA regarding 87 Order,,, 86 Memorandum & Order,,. Notice of Appeal filed on 9/16/16 by Defendants Seth D. Harris, Jacob J. Lew, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury. NOTIFICATION TO COUNSEL AND PRO SE PARTY: FILE REQUEST FOR TRANSCRIPT WITH DISTRICT COURT CLERKS OFFICE.(BAK) (Entered: 09/19/2016)
98 LETTER from USCA USCA Appeal #: 16−3831(CLA) (Entered: 10/04/2016)
99 Initial Notification and or Briefing Schedule from USCA for 96 Notice of Appeal filed by United States Department of Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of Labor USCA Appeal Number: 16−3831 Method of Appendix due: 14 days from today Notice of Appeal treated as: noa Notice of Appeal forwarded to panel: Yes(CLA) (Entered: 10/04/2016)
100 ORDER of USCA USCA Appeal #: 16−3831 The appellants motion to hold this appeal in abeyance is granted, and the appeal will be heldin abeyance through

Case: 4:13-cv-1577 As of: 07/17/2018 12:19 PM CDT 11 of 11

09/06/2017 11/16/2017
11/16/2017 11/20/2017
12/15/2017 12/18/2017

February 13, 2017. At that time, the parties should submit letters to theclerk stating their positions regarding a further stay of the proceedings.(CLA) (Entered: 11/23/2016)
101 ORDER of USCA as to 96 Notice of Appeal filed by United States Department of Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of Labor: The governments request to file another status report on or before October 30, 2017, is granted. USCA Appeal #: 16−3831 (JAB) (Entered: 09/06/2017)
102 USCA JUDGMENT as to 96 Notice of Appeal filed by United States Department of Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of Labor. The parties have filed a joint stipulation for dismissal of the appeal. Pursuant to theprovisions of Federal Rule of Appellate Procedure 42(b), the matter is dismissed. The courtsmandate shall issue forthwith. (CLA) (Entered: 11/16/2017)
103 MANDATE of USCA as to 96 Notice of Appeal filed by United States Department of Treasury, Kathleen Sebelius, United States Department of Health and Human Services, Jacob J. Lew, Seth D. Harris, United States Department of Labor (CLA) (Entered: 11/16/2017)
104 Docket Text ORDER: Re: 90 MOTION for Attorney Fees filed by Teresa Jane Wieland, Paul Joseph Wieland; IT IS HEREBY ORDERED THAT THE DEFENDANT SHALL FILE A RESPONSE TO THE MOTION FOR ATTORNEY FEES ON OR BEFORE 12/20/17, ANY REPLY BY THE PLAINTIFF SHALL BE FILED ON OR BEFORE 1/3/18 − SO ORDERED. Signed by District Judge Jean C. Hamilton on 11/20/17. (KJS) (Entered: 11/20/2017)
105 Consent MOTION to Withdraw 90 MOTION for Attorney Fees by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) (Entered: 12/15/2017)
106 Docket Text ORDER: Re: 105 Consent MOTION to Withdraw 90 MOTION for Attorney Fees by Plaintiffs Paul Joseph Wieland, Teresa Jane Wieland. (Belz, Timothy) ; ORDERED GRANTED. Signed by District Judge Jean C. Hamilton on 12/18/17. (JAB) (Entered: 12/18/2017)