RIGHT TO LIFE OF MICHIGAN, A Michigan non-profit..., 2013 WL 5913362...
2013 WL 5913362 (W.D.Mich.) (Trial Pleading) United States District Court, W.D. Michigan. Southern Division
RIGHT TO LIFE OF MICHIGAN, A Michigan non-profit corporation, Plaintiff, v.
Kathleen SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services, United States Department of Health and Human Services, Jack Lew, in his official capacity as the
Secretary of the United States Department of the Treasury, United States Department of the Treasury, Thomas Perez, in his Official Capacity as the Secretary of the United States Department of Labor, United States Department of Labor, Defendants.
No. 1:13CV01202. November 4, 2013.
Verified Complaint
Rizik & Rizik, Michael B. Rizik Jr. (P33431), Attorney for Plaintiff, 9400 South Saginaw Street, Ste E, Grand Blanc, MI 48439, Phone: 810-953-6000, Fax: 810-953-6005, Cell: 810-610-2673, Email: lawyers@riziklaw.com.
NOW COMES the Right to Life of Michigan (“RLM” or “Plaintiff), through Michael B. Rizik Jr. of Rizik & Rizik, its attorneys and undersigned counsel, who bring this Complaint against the above-named Defendants, their employees, agents, and successors in office. In support of this Complaint they state the following;
NATURE OF THE ACTION
1. This case involves religious freedom and freedom from coerced speech.
2. This case challenges the constitutionality of regulations (“Mandate”) arguably issued under the “Patient Protection and Affordable Care Act” (Pub. L, 111-148, March 23, 2010, 124 Stat. 119) and the “Health Care and Education Reconciliation Act” (Pub. L 111-152, March 30, 2010, 124 Stat. 1029) (collectively the “Affordable Care Act” or “ACA”) that force Plaintiff to violate its deeply held religious beliefs that it is intrinsically disordered and gravely immoral to take the life of an unborn human being by abortion.
3. The sanctity and protection of innocent life at every stage on its continuum is the sole reason for RLM’s organizational existence.
4. Not only is abortion disordered, but it violates the due process of the laws accorded every human being, and belies reasoned reflection and scientific fact on when life begins. As such, abortion is an act of injustice, and the Mandate forces Plaintiff to violate its only reason for existence, as well as 501(C)(3) charter which the Interna! Revenue Service granted it.
5. The Affordable Care Act mandates health plans to “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 the United States Department of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg-13(a)(4).
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6. Without required notice of rulemaking or opportunity for public comment, the United States Department of Health and Human Services, the United States Department of Labor, and the United States Department of Treasury adopted the Institute of Medicine (“IOM”) recommendations in full and promulgated an interim final rule, the Mandate, which requires all “group health plan[s] and ... health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
7. The Mandate requires ail insurance issuers (e.g. Blue Cross/Blue Shield of Michigan) to include abortifacient drugs and devices in ail of its insurance plans, group and individual.
8. Health Resources and Services Administration issued guidelines adopting the IOM recommendations, (http://www.hrsa.gov/womensguideiines)
9. Under the IOM guidelines, the Mandate requires all insurance issuers to provide not only sterilization and contraception but also abortions, because certain drugs and devices such as “ella,” known as the “week-after pill,” and possibly “Plan B,” known as the “morning-after pill,” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action, as well as sterilization methods approved by the FDA. The Mandate also requires counseling relating to the same, in all of its insurance plans, group and individual
10. The Mandate, therefore, forces employers and individuals to violate their religious beliefs because it requires employers and individuals to pay for insurance from insurance issuers which fund and directly provide for drugs, devices, and services which violate their deeply held religious beliefs, as well, in the case of this Plaintiff, reasoned reflection, and sole reason for existence as an organization.
11. Since under the Mandate all insurance issuers must provide what the United States Department of Health and Human Services has deemed “preventative care,” employers and individuals are stripped of all choice between insurance issuers or insurance plans to avoid violating a) their religious beliefs, in cooperation with practices they consider intrinsically evil and mortally sinful, and, in Plaintiff’s particular case, b) its sole reason for existing and c) legal mandate as a 501(c)(3) organization.
12. Without relief to this Plaintiff, the cost of complying with the Mandate will be burdensome, and cost Plaintiff; 33 employees x 365 days per year x $100 each day = $1,204,500.00 per year tax.
13. Plaintiff seeks preliminary and permanent injunctive relief, enjoining Defendants from implementing and enforcing provisions of the regulations promulgated under the ACA, specifically the Mandate. The Mandate violates Plaintiff’s rights to the free exercise of religion and the freedom of speech under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act (“RFRA”), and the Administrative Procedure Act (“APA”).
14. Plaintiff also seeks a Declaratory Judgment that the Mandate promulgated under the ACA violates Plaintiff’s rights to the free exercise of religion and the freedom of speech under the First Amendment to the United States Constitution, RFRA, and the APA.
15. The Affordable Care Act’s contraceptive/abortifacient mandate violates the rights of Plaintiff.
16. Plaintiff employs 33 full-time employees and 10 part-time employees, and is forced under the Mandate to conduct business in a manner that violates their religious faith by providing and funding abortifacient drugs and devices, which violates deeply held religious beliefs and the sole reason they work for Plaintiff.
17. Plaintiff brings this action to vindicate not only its rights, but also to protect its organizational existence and the rights of all Americans who care about our Constitutional guarantees of free exercise of religion and freedom of speech, as well as the protection of innocent human life, the sole and exclusive reason for the organization, its Board of Directors and employees.
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JURISDICTION AND VENUE
18. This action in which the United States is a defendant arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1346.
19. Plaintiffs claims for declaratory and preliminary and permanent injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by 28 U.S.C. § 2000bb-i, and by the general legal and equitable powers of this Court.
20. Venue is proper under 28 U.S.C. § 1391(e) because this is the judicial district in which Plaintiff is located.
PLAINTIFF
21. Plaintiff operates as both a 501(c)(3) and 501(c)(4) non-profit organization whose principal office is at 2340 Porter S.W., Grand Rapids MI 49509-0901.
22. On or about August 15, 1974, James L. Ryan, Gloria Klein and Arthur F. Barkey filed Articles of Incorporation with the State of Michigan’s Department of Commerce, Corporation and Securities Bureau under the name of “MICHIGAN CITIZENS FOR LIFE,” a non-profit, domestic corporation. The organization’s stated purpose was, in pertinent part:
“To promote the dignity and protect the rights that are possessed by all human beings from the moment of conception including the greatest right of all, the right to life itself.”
That remains the organization’s sole and exclusive reason for existing today.
23. On or about August 30, 1979, the organization changed its name to “Right To Life Of Michigan.”
24. Plaintiff is also legally known as “Choose Life Michigan,” “Advocates For A Better Life,” and “Advocates For Better Care,” each assumed name of which indicates the organization’s mission is focused exclusively on the sanctity and dignity of each human life from the moment of conception until natural death.
25. “Right to Life of Michigan is a nonpartisan, nonsectarian, nonprofit organization of diverse and caring people united to protect the precious gift of human life from fertilization to natural death.” http:// rtl.org/aboutus/missionstatement.html
26. Plaintiff works “work on the behalf of defenseless or vulnerable human beings, born and unborn, within our identified life issues of abortion, infanticide and assisted suicide.” (Id).
27. In May 1986, the U.S. government through the Internal Revenue Service recognized Plaintiff’s mission by granting it section 501(c)(3) status. That same status remains in effect.
28. According to 26 USC 501(c)(3), the U.S. government recognizes that Plaintiff is “operated exclusively for religious, charitable” or “other purposes.”
29. Although Plaintiff is non-sectarian, each of the Plaintiff’s Board of Directors is either Catholic or Evangelical Christian, who see their commitment to the organization’s mission as a the logical extension of their freely exercised religious beliefs and free speech as Americans.
30. The Plaintiff’s President, Barbara A. Listing, is Catholic.
31. The Plaintiff’s Chairman of the Board of Directors, Paul Miller, is Catholic.
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32. The Plaintiff’s Legislative Director, Ed Rivet, is Catholic. 33.The organization’s founding father and first president, James L. Ryan, is Catholic.
34. Fifteen of Plaintiff’s Board members are Catholic, and one is Christian Reformed.
35. The vast majority, if not all, of Plaintiff’s employees are Catholic or Evangelical Christian. All employees subscribe unequivocally to Plaintiffs sole and exclusive mission protecting life.
36. Plaintiff’s website advertises “Faith Resources,” including links to Catholic and Protestant Bibles, the Knights of Columbus, “Reflection on Psalm 139” by Rabbi Loren Jacobs, a presentation and script (in English and Spanish) entitled how all human life is created “In the Image of God,” interactive, prolife materials for Bible study groups, and more. http://rtl.org/faith school/faithresources.html
37. Plaintiff believes that: “Abortion is any act or procedure performed with the willful intent to cause the death of an unborn child from conception to birth. As such, abortion is a grave act of injustice toward the child and a clear violation of the child’s natural, unalienable right to life and his/her legal right not to be deprived of life without due cause. Right to Life of Michigan, therefore, is unalterably opposed to abortion.” At the same time, Plaintiff does not oppose abortion when it is the unintended consequence of saving the mother’s life. http://rtl.org/aboutus/poiicystatements.html
38.Plaintiff “opposes all attempts to legalize or condone euthanasia...” while at the same time it “supports the tradition which allows persons suffering from a terminal illness to die naturally. Under this centuries-old ethic, patients are not obligated to use extraordinary or heroic medical treatment that would only prolong the dying process.” (Id).
39. Right to Life of Michigan “finds human cloning to be an inherent violation of human dignity. As with abortion and assisted reproductive technologies, such as in vitro fertilization, human cloning research denies the most fundamental of human rights - the right to life.” (!d).
40. Plaintiff sees itself as an American human and civil rights leader, part of a long line of other such leaders including Susan B. Anthony (the feminist who referred to abortion as “child murder” - from her weekly suffragist newspaper The Revolution, 4(1 ):4 July 8, 1869); Elizabeth Cody Stanton; Alice Paul (who authored the original Equal Rights Amendment in 1923, and said; “Abortion is the ultimate exploitation of women.”); Emma Goldman (“The custom of procuring abortions has reached such appalling proportions in America as to be beyond belief...So great is the misery of the working classes that seventeen abortions are committed in every one hundred pregnancies.” -Mother Earth, 1911); as well as humanitarian activists who promoted civil rights through nonviolent means, completely inspired and informed by their religious beliefs: Mother Theresa, Martin Luther King, Jr. and Gandhi.
41. Plaintiff advocates: “Peaceful solutions to the violence of abortion is the goal of Right to Life of Michigan... Any bombings, vandalism, assaults, or arson in other parts of the nation against abortion facilities concern Right to Life of Michigan. To counter violence with violence is against our principles. Prolifers have consistently worked peacefully through the democratic process in order to reach our goal - the end of violence within clinic wails. We are a peaceful movement.” (Id).
42. Simultaneously, reasoned reflection consistent with God’s laws guides Plaintiff, who believes that the free exercise of religious faith and speech are inextricably bound with reason. You cannot have one without the other, which is why the Mandate is so ominous: it violates the organization’s free exercise of religion, free speech and rightly informed reason.
43. Prior to the issuance of the Mandate, Plaintiff structured a morally acceptable health insurance policy through Blue Cross Blue Shield of Michigan that specifically excluded contraception, abortion and abortifacients, and exempted Plaintiff from paying, contributing, or supporting contraception and abortion for others.
44. Plaintiff obtained these exclusions from coverage due to its deeply held religious beliefs and right to exercise its free 4

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speech as stated in this Complaint.
45. Before Defendants issued the Mandate, Plaintiffs employees received coverage under this specially structured insurance policy with Blue Cross Blue Shield of Michigan that specifically excluded contraception, abortion, and abortifacients, and exempted Plaintiff from paying, contributing, or supporting contraception and abortion for others.
46. Plaintiff’s Board of Directors is the final decision-maker when it comes to setting all policies governing the conduct of ail phases of the organization.
47. Plaintiff and its Board of Directors ensured that health insurance insurance policy contained these exclusions to reflect their deeply held religious beliefs, free speech, and sole reason for existence as an organization.
48. Based on the teachings of their religious faith and their deeply held religious beliefs, Plaintiff and its Board of Directors do not believe that abortion, even at its earliest stages, are properly understood to constitute medicine, health care, or a means of providing for the well-being of persons.
49. Plaintiff and its Board of Directors believe abortion involves a grave injustice and immoral and sinful practices, specifically the intentional destruction of innocent human life,
DEFENDANTS 50. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate.
51. Defendant Kathleen Sebeiius (“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. Defendant Sebelius is sued in her official capacity only,
52. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation that is the subject of this lawsuit.
53. Defendant Thomas Perez is the Secretary of the United States Department of Labor. In this capacity, he holds responsibility for the operation and management of the United States Department of Labor. Defendant Perez is sued in his official capacity only.
54. Defendant United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation that is the subject of this lawsuit.
55. Defendant Jack Lew is the Secretary of the United States Department of the Treasury. In this capacity, he holds responsibility for the operation and management of the United States Department of Treasury. Defendant Lew is sued in his official capacity only.
56. Defendant United States Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation that is the subject of this lawsuit.
FACTUAL ALLEGATIONS
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Plaintiff’s Religious Beliefs
57. Plaintiff holds and actively professes religiously based beliefs in accordance with the traditional Judeo-Christian teachings on the sanctity of life. Plaintiff believes that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Plaintiff therefore believes that abortion ends an innocent human life, and is a grave sin and the ultimate injustice.
58. Plaintiff subscribes to or agrees with traditional Judeo-Christian teachings about the proper nature and aims of health care and medical treatment. For instance, Plaintiff believe, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “Absolute respect for every innocent human life also requires the exercise of conscientious objection in relation to procured abortion and euthanasia. ‘Causing death’ can never be considered a form of medical treatment, even when the intention is solely to comply with the patient’s request. Rather, it runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.” Pope John Paul Il, “Evangelium Vitae: On The Value and Inviolability of Human Life,” Vatican: the Holy See, 25 March 1995, No. 89.
59. Several leaders within the Catholic Church and Protestant churches have publicly spoken out about how the Mandate is a direct violation of Christian beliefs.
60. Cardinal Timothy Dolan, Archbishop of New York and President of the United States Conference of Catholic Bishops wrote, “Since January 20 [2012], when the final, restrictive HHS Rule was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. We recall the words of our Holy Father Benedict XVI to our brother bishops on their recent ad limina visit: ‘Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion.’ ... We have made it clear in no uncertain terms to the government that we are not at peace with its invasive attempt to curtail the religious freedom we cherish as Catholics and Americans.” (http:// www.usccb.org. March 2, 2012).
61. Archbishop Charles J. Chaput, the Archbishop of Philadelphia, has expressed that the Affordable Care Act and the Mandate seek “to coerce Catholic employers, private and corporate, to violate their religious convictions ... [t]he HHS mandate, including its latest variant, is belligerent, unnecessary, and deeply offensive to the content of Catholic belief... The HHS mandate needs to be rescinded. In reality, no similarly aggressive attack on religious freedom in our country has occurred in recent memory ... [t]he HHS mandate is bad law; and not merely bad, but dangerous and insulting. It needs to be withdrawn-now.”
http://the-american-cathplic.com/2012/02/14/archbishop-chaput-hhs-mandate-dangerous-and-insulting/
62. Several Protestant leaders described how the mandate violates the Protestant faith. Michael Milton, chancellor and CEO-elect of Reformed Theological Seminary in Charlotte, N.C., one of America’s largest Protestant seminaries, declared, “This is not a Catholic issue only. It is not a contraception issue. It is a religious-liberty issue. It is an American issue.”
http://www.ncregister.com/daily-news/reiigious-leaders-of-other-denominations-and-faiths-weigh-in-on-hhs-mandate
63. The Billy Graham Evangelistic Association writes: “It is also sin that produces the misbelief that women have a ‘right’ to take the lives of unborn babies. The apostle Paul writes, ‘The acts of the sinful nature are obvious: sexual immorality, impurity and debauchery; idolatry and witchcraft; hatred, discord, jealousy, fits of rage, selfish ambition, dissensions, factions and envy; drunkenness, orgies, and the like’ (Galatians 5:19-21 a).”
“Life is sacred, and we must seek to protect all human life: the unborn, the child, the adult, and the aged. Several Bible passages tell of the sacredness of life and speak to the subject of abortion.” http:// www.biilygraham.org/articiepage,asp?articleid=2000
64. In 1972, the Christian Reformed Church took its official stand against abortion. Its position is clearly stated: “Because the CRC believes that all human beings are image bearers of God, it affirms the unique value of all human life. Mindful of the
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sixth commandment - ‘You shall not murder’ (Ex. 20:13) - the church condemns the wanton or arbitrary destruction of any human being at any stage of its development from the point of conception to the point of death.” http://www.crcna.org/welcome/beliefs/position-statemients/abortion
65. Orthodox Judaism condemns abortion: “Judaism regards all life-including fetal life-as inviolate. Abortion is not a private matter between a woman and her physician. It infringes upon the most fundamental right of a third party-that of the unborn child.” - Statement of the Union of Orthodox Jewish Congregations of America, issued at its 78th National Convention in 1976,
66. The Jewish Pro-Life Foundation states: “The use of elective abortion violates the most fundamental principle of the sanctity of human life, introduced in the Natural Law set forth in the Noahide scripture, ‘he who sheds the blood of man, in man (adam ba’adam) shall his blood be shed’ (Genesis 9:6). Using and condoning elective abortion is demographic and spiritual suicide, and promotes the eugenics movement, which historically has targeted Jews for extinction.” http://jewishprolifefoundation.org/Jewish Pro-life Foundation/Welcome.html
67. With full knowledge of these beliefs described above, Defendants issued the Mandate that brutally forces Plaintiff to violate its religious beliefs, and those of millions of other Americans, under the pain of severe financial penalties.
68. The Mandate not only forces Plaintiff to finance abortifacients, and related education and counseling as health care, but also subverts the expression of Plaintiff’s religious beliefs, and the beliefs of millions of other Americans, by forcing Plaintiff to fund, promote, and assist others to acquire services which Plaintiff believe involve gravely immoral and unjust practices, including the destruction of innocent human life.
69. The Mandate unconstitutionally bullies Plaintiff to violate its deeply held religious beliefs under threat of directly violating its collective conscience and sole reason to exist, in addition to any imposed fines and penalties.
70. The Mandate forces Plaintiff to fund government-dictated speech that is directly at odds with its own faith-formed speech. Being entirely forced out of the insurance market in order to ensure the privilege of practicing one’s religion or controlling one’s own constitutionally protected speech substantially burdens Plaintiff’s religious liberty and freedom of speech under the First Amendment.
71. The Mandate shreds Plaintiff’s choice to select an insurance plan that does not cover and finance contraceptives and abortifacients, because the Mandate requires all insurance issuers provide this coverage.
72. Plaintiff’s plan is not considered “grandfathered” and will be subject to the provisions of the Mandate.
73. Blue Cross/Blue Shield of Michigan deemed that due to the Mandate, Plaintiff is no longer allowed to exclude contraception and abortifacients from its insurance plans, and are now involuntarily forced to provide and pay for these services that violate its religious beliefs and right of free speech,
74. Plaintiff intends to conduct its mission in a manner that does not violate the principles of its religious beliefs and free speech.
75. Complying with the Mandate requires a direct violation of the Plaintiff’s religious beliefs and free speech, because it requires Plaintiff to pay for and assist others in paying for or obtaining abortion, because certain drugs and devices such as intrauterine devices (“IUD”), “ella” and possibly “Plan B” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods”, which is included in the BCBS health care plan as “FDA-approved generic prescription contraceptive medication” and “FDA-approved brand name prescription contraceptive medication,” despite their known abortifacient mechanisms of action.
76. Defendants’ refusal to accommodate the conscience of the Plaintiff, and of other Americans who share the Plaintiff’s religious principles and free speech, is highly selective. Numerous exemptions exist in the Affordable Care Act that appear
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arbitrary and inexplicably were granted to employers who purchase group insurance. This is evidence that Defendants do not mandate that all insurance plans need to cover “preventative services” (e.g. the thousands of waivers from the Affordable Care Act issued by Defendants for group insurance based upon the commercial convenience of large corporations, the age of the insurance plan, or the size of the employer).
77. Despite granting waivers inexplicably and upon a seemingly arbitrary basis, no exemption exists for an employer or individual whose religious conscience instructs him that certain mandated services are unethical, immoral, fundamentally unjust and violative to one’s religious dogmas and free speech. Defendants’ plan fails to give the same level of weight or accommodation to the exercise of one’s fundamental First Amendment freedoms that it assigns to the yearly earnings of a corporation.
78. The Defendants’ blatantly unconstitutional actions violate Plaintiffs absolute right to freely exercise its conscience and motivating religious principles under the First Amendment to the U.S. Constitution, which states pertinently: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”
79. The Defendants’ actions violate Plaintiff’s right to exercise its conscience and motivating religious principles that civil rights statutes, such as Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb to 42 U.S.C. § 2000bb-4, secure with unmistakable clarity.
80. The Defendants’ actions also violate Plaintiffs right to free and unforced speech that the First Amendment to the United States Constitution guarantees in absolute language when it states; “Congress shall make no law...abridging the freedom of speech...”
81. The Mandate is illegal because Defendants imposed it without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
82. Had Plaintiff’s religious beliefs, or the beliefs of the millions of other Americans who share Plaintiff’s religious beliefs been obscure or unknown, the Defendants’ actions might have been an accident. But because the Defendants acted with full knowledge of those beliefs, 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 Defendants’ intentional and deliberate attack on the Judeo-Christian faith tradition, the religious beliefs and free speech rights that Plaintiff holds. The Defendants have, in sum, intentionally used the federal government’s coercive power to compel individuals to support and endorse the mandated services manifestly contrary to their own religious convictions and rights of free speech, and then to act on that coerced support or endorsement. Such coercion is tantamount to a form religious persecution against which these United States were founded.
83. Plaintiff seeks declaratory and injunctive relief to protect against these attacks.
The Affordable Health Care Law Act
84. In March 2010, Congress passed, and President Barack Hussein Obama signed into law, the “Patient Protection and Affordable Care Act” (Pub. L 111- 148, March 23, 2010, 124 Stat. 119) and the “Health Care and Education Reconciliation Act” (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029} (“Affordable Care Act”).
85. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
86. The Affordable Care Act does not apply equally to all insurers. The Affordable Care Act does not apply equally to all individuals.
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87. Plaintiff employs 33 full-time and 10 part-time employees.
88. Plaintiff constitutes a “single employer” for purposes of the Affordable Care Act as defined at 42 U.S.C. § 18024(b)(4)(A).
89. Plaintiff must provide federal government-approved health insurance under the Affordable Care Act or provide no health insurance at ail to its employees.
90. Employers with fewer than 50 employees who purchase insurance for their employees from health insurance issuers are subject to the Affordable Care Act. 42 USC § 300GG-13 (a)(1), (4).
91. Certain provisions of the Affordable Care Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5O00A(d)(2)(A)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(B)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
92. Plaintiff does not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii) as Plaintiff does not object to acceptance of public or private insurance funds in their totality, and maintains health insurance benefits that, prior to the Mandate, excluded contraceptives, abortion and abortifacients. 93. Plaintiff does not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(B)(ii), because it is not a member of a health care ministry. 94.The Affordable Care Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans.
95. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
96. Plaintiff’s current insurance plans does not qualify as “grandfathered” health care plans, and are considered “non-grandfathered.”
97. Plaintiff does not qualify for the “religious employer” exemption contained in 45 CFR § 147.130 (a)(1)(A) and (B).
98. There have been changes made to Plaintiff’s plan after March 23, 2010, and participants have never been notified of a “grandfathered” status.
99. Plaintiff is not eligible for “grandfathered” status under the Affordable Care Act, and is subject to the requirements of the Affordable Care Act and the Health and Human Services Mandate because: (1) the health care plan does not include the required “disclosure of grandfather status” statement; (2) Plaintiff does not take the position that its health care plan is a grandfathered plan and thus does not maintain the records necessary to verify, explain, or clarify its status as a grandfathered plan nor will it make such records available for examination upon request; and (3) the health care plan has an increase in a percentage cost-sharing requirement measured from March 23, 2010. 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.
100. Since the Plaintiff does not qualify for the “religious employer” exemption, it is not permitted to take advantage of the “temporary safe-harbor” as set forth by the Defendants at 77 Fed. Register 8725 (Feb. 15, 2012).
101. Plaintiff is, therefore, subjected to the Mandate now, and is confronted with choosing between complying with the Mandate’s requirements in violation of Plaintiff’s religious beliefs and free speech rights, or violating federal law.
102. Plaintiff is confronted with complying with the requirements of the Affordable Care Act in violation of its religious beliefs and rights of free speech, or removing itself and and its employees from the health insurance market in its entirety endangering the health and economic stability of its employees, and forcing Plaintiff to be uncompetitive as employers in a market where other, non-religious employers will be able to provide insurance to their employees under the Affordable Care Act without violating their religious beliefs and free speech rights.
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103. The Affordable Care Act is not generally applicable because it provides for numerous exemptions from its rules.
104. The Affordable Care Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not. Some groups, both secular and religious, have received waivers from complying with the provisions of the Affordable Care Act, while others-such as the Plaintiff-have not.
105. The Affordable Care Act creates a system of individualized exemptions.
106. The United States Department of Health and Human Services has the authority under the Affordable Care Act to grant compliance waivers (“HHS waivers”) to employers and other health insurance plan issuers.
107. HHS waivers release employers and other plan issuers from complying with the provisions of the Affordable Care Act.
108. HHS appears to arbitrarily decide whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers.
109. Upon information and belief, more than a thousand HHS waivers have been granted.
The “Preventive Care” Mandate
110. A provision of the Affordable Care Act mandates that health plans “provide coverage for and shall not impose any cost sharing requirements ... 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 United States Department of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg-13(a)(4).
111. On July 19, 2010, HHS, along with the United States Department of Treasury and the United States Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726 (2010). The interim final rule required 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).
112. On February 15, 2012, the United States Department of Health and Human Services promulgated a mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedures, patient education, and counseling for ail women with reproductive capacity in plan years beginning on or after August 1, 2012 (the “Mandate”). See 45 CFR § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines).
113. The Mandate was enacted pursuant to statutory authority under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, as amended by the Health Care and Education Act of 2010, Pub. L No. 111-152, 124 Stat. 1029 (ACA). 77 Fed. Reg. 31, 8725 (“Affordable Care Act”).
114. In its ruling, HHS included all FDA-approved contraceptives under the banner of preventive services, including contraception and abortifacients such “ella,” a close cousin of the abortion pill RU-486. (http:// www.hrsa.gov/womensguidelines), and possibly “Plan B.”
115. The Mandate’s reach seeks to control the decisions of employers, individuals and also the decisions of all insurance issuers (i.e. “Blue Cross/Blue Shield of Michigan,” etc.). 42 USC § 300gg-13 (a)(1), (4). (“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 evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force; ... with respect to women, such additional
10

RIGHT TO LIFE OF MICHIGAN, A Michigan non-profit..., 2013 WL 5913362...
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.”).
116. The Mandate demands ail insurance issuers include contraception, sterilization and abortifacients such as “ella” and possibly “Plan B” in all of its group and individual plans, not specifically exempted, beginning as of August 1, 2012 and effective on the anniversary of the employer’s plan year.
117. The Mandate strong-arms individuals and employers, regardless of the number of employees the latter employ, to select an insurance plan which includes what HHS deemed “preventative care.”
118. The Mandate husks all individuals and employers of their choice not to pay for the “preventative care,” regardless of whether paying for such “services” violates one’s conscience or deeply held religious beliefs or free speech rights.
119. Health insurance issuers include insurance companies such as Blue Cross/Blue Shield of Michigan, the Plaintiff’s insurance provider.
120. The Mandate reaches even further than the Affordable Care Act to eliminate all employers and individuals from selecting a health insurance plan in which the insurance issuers do not automatically provide contraception and abortifacients.
121. Before HHS promulgated the Mandate, it accepted public comments to the 2010 interim final regulations from July 19, 2010 to September 17, 2010. Upon information and belief, a large number of groups filed comments, warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of services, including contraception, sterilization, abortion, and abortifacients.
122. HHS directed a 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 ail health plans as preventative care for women, (http://www.hrsa.gov/womensguidelines).
123. 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 included the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America and Sara Rosenbaum. (http://www.nap.edu/openbook.php?record_ id=13181&PAGE=217).
124. Upon information and belief, no religious groups or other groups that oppose government-mandated coverage of contraception, abortion, and related education and counseling were among the invited presenters.
125. One year after the first interim final rule was published, on July 19, 2011, the lOM published its recommendations. It recommended that the preventative services include “All Food and Drug Administration approved contraceptive methods.” (Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011)).
126. Preventative services therefore include FDA-approved contraceptive methods such as birth-control pills; prescription contraceptive devices, including lUDs; ulipristal, also known as “ella” or the “week-after pill”; possibly “Plan B”, and other drugs, devices, and procedures.
127. “Ella” and possibly “Plan B” can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each constitute an “abortion” as that term is used in federal law and Catholic teaching. Consequently, “ella” and possibly “Plan B” are abortifacients.
128. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the United States Department of Labor, and the United States Department of Treasury adopted the IOM recommendations in full
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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 ail FDA- approved contraceptive methods and procedures. 76 Fed. Reg, 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. Health Resources and Services Administration issued guidelines adopting the IOM recommendations, (http:// www.hrsa.gov/womensguidelines).
129. The Mandate also requires group health care plans and insurance issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
130. The Mandate went into effect immediately as an “interim final rule.”
131. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued.
132. instead the Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations.
133. When it issued the Mandate, HHS requested comments from the public by September 30, 2011, and indicated that comments would be available online.
134. Upon information and belief, over 100,000 comments were submitted against the Mandate.
135. On October 5, 2011, six days after the comment period ended, Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.” She did not state whom she and NARAL Pro-Choice America were warring against, except that the implication was opponents included religious and like-minded organizations such as Plaintiff who have the temerity to exercise their constitutional rights described above.
136. During a Congressional hearing on April 26, 2012, Sebelius incredulously admitted that she was totally unfamiliar with the United States Supreme Court’s religious freedom doctrines and rulings.
137. Defendant Sebelius showed little concern for the constitutional issues involved in promulgating the Mandate. At the aforementioned congressional hearing, she admitted that prior to issuing the Mandate she did not review any written materials or any sort of legal memo from her general counsel discussing the effects of the Mandate on religious freedom.
138. Sebelius’ admissions raise the question: “How could the current Administration’s cabinet officer primarily responsible for drafting and promulgating the Mandate not know or carelessly disregard the U.S. Constitution, enforcing statutes and interpretative case law?
139. The Mandate fails to take into account the statutory and constitutional conscience rights of non-profit organizations like Plaintiff that exercise business practices in compliance with certain faith practices.
140. The Mandate requires that Plaintiff assist, provide, or fund coverage for contraceptives, abortifacients, and related education and counseling against its conscience and fundamental human justice, which may necessitate civil disobedience if this Court does not enjoin its application and effect.
141. The Mandate constitutes government-imposed influence and coercion on Plaintiff to change or violate its religious beliefs and freedom of speech.
142. The Mandate exposes Plaintiff to substantial fines.
143. As an employer with less than 50 full-time employees if Plaintiff provides insurance that conforms to their religious beliefs but not to the mandate, Plaintiff faces penalties of $100 a day per employee,
144. Under the United States Internal Revenue Code, 26 U.S.C. § 4980D(a), there is a tax imposed on any failure of a group 12

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plan to meet the requirements of Chapter 100 (relating to group plan requirements). Under 26 U.S.C. § 49800(b), the amount of the tax is $100 for each day in the non-compliance period with respect to each individual to whom such failure relates. This tax penalty would generally be: 33 employees x 365 days per year x $100 each day = $1,204,500.00 per year tax.
145. Alternatively, Plaintiff can terminate health care coverage for all employees, which puts it at a disadvantage in the market place for the type of excellent, dedicated employees it has had the benefit of hiring. Plaintiff does not want to take this course of action.
146. The Mandate imposes a burden on Plaintiff’s employee recruitment and retention efforts by creating uncertainty as to whether Plaintiff will continue to offer health insurance.
147. The Mandate places Plaintiff at a competitive disadvantage in their efforts to recruit and retain employees.
148. As Christians, Plaintiffs religious beliefs and the principle of stewardship require it to care for employees by providing insurance coverage for them and their families. Such health care coverage is a practical, real way of living its mission upholding the fundamental right to life.
149. The Mandate forces Plaintiff its employees, members and donors to be complicit in the purchasing and subsidizing others’ acquisition of abortifacient drugs in violation of Plaintiff’s religious beliefs that doing so is gravely immoral and equivalent to assisting another to destroy innocent human life,
150. Plaintiff has sincere religious and free speech objections to providing coverage for contraceptive drugs and devices such as the IUD, “ella” and possibly “Plan B”, since it believes those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a human being.
151. Plaintiff considers the prevention by artificial means of the implantation of a human embryo to be an abortion.
152. Plaintiff believes that “ella” and possibly “Plan B” can cause the death of the embryo, which is a person.
153. “Ella” and possibly “Plan B” can prevent the implantation of a human embryo in the wall of the uterus.
154. The IUD can prevent the implantation of a human embryo in the wall of the uterus.
155. The IUD, “ella” and possibly “Plan B” can cause the death of the embryo.
156. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law.
157. The use of artificial means to cause the death of a human embryo constitutes an “abortion” as that term is used in federal law.
158. The Mandate forces Plaintiff to provide emergency contraception, and “ella,” and possibly “Plan B”, free of charge, regardless of the ability of insured persons to obtain these drugs from other sources.
159. The Mandate forces Plaintiff to fund education and counseling concerning abortion that directly conflicts with Plaintiff’s religious beliefs and teachings, and constitutionally protected right of free speech.
160. Plaintiff could not cease in providing its employees with health insurance coverage without likewise violating its religious duty to provide for the health and well being of its employees and their families.
161. The Mandate forces Plaintiff to choose between violating its religious beliefs and protected right of free speech and 13

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incurring substantial fines, or terminating their employee or individual health insurance coverage.
162. Providing counseling and education about abortion directly undermines and subverts the explicit messages and speech of Plaintiff.
163. Group health plans and insurance issuers have been subject to the Mandate as of August 1, 2012.
164. Plaintiff’s plan year begins on March 1 of each year, and has been subject to the Mandate as of that date.
165. Plaintiff has already devoted significant institutional resources, including attorney, accountant, and human resource, Board of Director, outside professionals and staff time and funds, to determine how to respond to the Mandate. Plaintiff anticipates this will continue in the future.
The Narrow, Discretionary Religious Exemption and Exemption for Non-profit Corporations 166. The Mandate indicates that the Health Resources and Services Administration (“HRSA”) “may,” grant religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A).
167. According to 45 C.F.R. § 147.130(a)(iv)(B):
“For purposes of this subsection, a ‘religious employer” is an organization that meets all of the following criteria: “(1) The inculcation of religious values is the purpose of the organization.
“(2) The organization primarily employs persons who share the religious tenets of the organization.
“(3) The organization serves primarily persons who share the religious tenets of the organization. “(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.”
168. The Mandate imposes no constraint on HRSA’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.”
169. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
170. Plaintiff is not “religious” enough under this definition in several respects, including: a) purposes other than the “inculcation of religious values,” b) it does not primarily serve persons who share the religious tenets of the organization (nor does it even require faith in God to be a member of Plaintiff), and c) it is not itself a church, integrated auxiliary of a particular church, convention or association of a church, or the exclusively religious activities of a religious order or sect.
171. There are no clear guidelines restricting the discretion of Defendants when applying the Mandate and its many exceptions.
172. The Mandate fails to protect the statutory and constitutional conscience rights of religiously motivated organizations like Plaintiff, even though those rights were repeatedly raised in the public comments.
173. The Mandate requires that Plaintiff provide coverage for abortifacient methods, and education and counseling related to abortifacients, against its conscience.
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174. The Mandate constitutes government-imposed coercion on Plaintiff to change or violate its religious beliefs. 175. The Mandate exposes Plaintiff to substantial fines for refusal to change or violate its religious beliefs and free speech rights. 176. The Mandate will impose a burden on Plaintiffs employee recruitment efforts by creating uncertainty as to whether or on what terms it will be able to offer health insurance beyond the Mandate’s effect or will suffer penalties therefrom. 177. Any alleged interest Defendants have in providing free FDA-approved abortifacients without cost-sharing could be advanced through other, more narrowly tailored mechanisms that do not burden the fundamental rights of Plaintiff. 178. Plaintiff has expended and will continue to expend a great deal of time and money ascertaining the requirements of the Mandate and how it applies to the Plaintiff’s health insurance benefits. 179. Without injunctive and declaratory relief as requested in this Verified Complaint, the Plaintiff is suffering and will continue to suffer irreparable harm. 180. Plaintiff has no adequate remedy at law.
CLAIMS
COUNT I. Violation of the First Amendment to the United States Constitution Free Exercise Clause 181. Plaintiff incorporates by reference paragraph 1 through 180 into Count I as though set forth completely within. 182. Plaintiff’s sincerely held religious beliefs prohibit it from providing coverage for abortifacients and abortion, or related education and counseling. Plaintiff’s compliance with these beliefs is a religious exercise. 183. Neither the Affordable Care Act nor the Mandate is neutral. 184. Neither the Affordable Care Act nor the Mandate is generally applicable. 185. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 186. The Mandate furthers no compelling governmental interest. 187. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 188. The Mandate creates government-imposed coercive pressure on Plaintiff to change or violate their religious beliefs. 189. The Mandate chilis Plaintiffs religious exercise. 190. The Mandate exposes Plaintiff to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 191. The Mandate exposes Plaintiff to substantial fines for their religious exercise. 192. 190. The Mandate exposes Plaintiff to monetary and health risks as they will no longer be able to accept health insurance, nor be able to purchase or provide health care insurance without violating their religious beliefs.
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193. The Mandate imposes a substantial burden on Plaintiff’s religious exercise. 194. The Mandate is not narrowly tailored to any compelling governmental interest. 195. The Mandate and Defendants’ threatened enforcement of the Mandate violate Plaintiff’s rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution, 196. Absent injunctive and declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
COUNT II. Violation of the First Amendment to the United States Constitution Free Exercise Clause 197. Plaintiff incorporates by reference paragraph 1 through 196 into Count II as though set forth completely within. 198. Plaintiff’s sincerely held religious beliefs prohibit them from purchasing or providing coverage for abortifacients, abortion, or related education and counseling, 199. Plaintiff’s compliance with these beliefs is a religious exercise. 200. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiff to comply with its religious beliefs, 201. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of Plaintiff and others. 202. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiff’s rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution. 203. Absent injunctive and declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
COUNT III. Violation of the First Amendment to the United States Constitution Free Exercise Clause 204. Plaintiff incorporates by reference paragraph 1 through 203 into Count III as though set forth completely within. 205. By design, Defendants imposed the Mandate on some religious organizations or religious individuals but not on others, resulting in discrimination among religions. 206. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 207. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no religious individuals. 208. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiff’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 209. Absent injunctive and declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
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COUNT IV. Violation of the First Amendment to the United States Constitution Establishment Clause
210. Plaintiff incorporates by reference paragraph 1 through 209 into Count IV as though set forth completely within.
211. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on Plaintiff.
212. Defendants also imposed the Mandate on some religious individuals and religious organizations but not on others, resulting in a selective burden on Plaintiff.
213. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.”
214. The Mandate also vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no individuals.
215. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violates Plaintiff’s rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution.
216. Absent injunctive and declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
COUNT V. Violation of the First Amendment to the United States Constitution Freedom of Speech
217. Plaintiff incorporates by reference paragraph 1 through 216 into Count V as though set forth completely within.
218. Plaintiff professes, educates, lectures, and engages in outreach amongst the community that abortion, and abortifacients violate their faith-informed, religious beliefs.
219. In fact, Plaintiff’s raison d’etre exclusively focuses on the human and civil right to life, as explicated in the religions, as stated above, raised in religious documents quoted above, and clearly stated in The Declaration of Independence;
“We hold these truths to be self-evident, that ail men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life...”
220. The Mandate would compel Plaintiff to provide or subsidize activities that it professes, educates, lectures, and engages in outreach amongst the community are violations of the Plaintiff’s religious beliefs and constitutionally protected free speech, and would amount to coerced speech.
221. The Mandate would compel Plaintiff to fund and to provide education and counseling related to abortion and abortifacients, another example of coerced speech.
222. Defendants’ actions thus violate Plaintiff’s right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution.
223. Defendants’ actions violate and contradict their own government’s approval of Plaintiff’s exclusive mission when granting Section 501(C)(3) tax-exempt status in May 1986.
224. At this point, there is no other religious, nonsectarian, non-profit organization with the exclusive mission dedicated to the human and civil right to life from moment of conception to the moment of natural death that has challenged the Mandate, or filed suit to nullify it.
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225. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest. 226. Absent injunctive and declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
COUNT VI. Violation of the First Amendment to the United States Constitution Expressive Association 227. Plaintiff incorporates by reference paragraph 1 through 226 into Count VI as though set forth completely within. 228. Plaintiff professes, educates, and engages in outreach amongst the community that abortion and abortifacients violate their religious beliefs. 229. The Mandate would compel Plaintiff to subsidize activities that Plaintiff profess, educate, and engage in outreach in the community are violations of Plaintiffs religious beliefs and constitutionally protected right of free expression. 230. The Mandate would compel Plaintiff to fund and to provide education and counseling related to abortion and abortifacients. 231. Defendants’ actions thus violate Plaintiff’s right of expressive association as secured to it by the First Amendment of the United States Constitution. 232. Absent injunctive and declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
COUNT VII. Violation of the Religious Freedom Restoration Act 233. Plaintiff incorporates by reference paragraph 1 through 232 into Count V! l as though set forth completely within. 234. Plaintiff’s sincerely held religious beliefs prohibit it from providing or purchasing coverage for abortion, abortifacients, or related education and counseling. 235. Plaintiff’s compliance with these beliefs is a religious exercise. 236. The Mandate creates government-imposed coercive pressure on Plaintiff’s to change or violate their religious beliefs. 237. The Mandate chills Plaintiff’s religious exercise. 238. The Mandate exposes Plaintiff to substantial fines for their religious exercise. 239. The Mandate exposes Plaintiff to substantial competitive disadvantages, in that it will no longer be permitted to offer or purchase health insurance. 240. The Mandate imposes a substantial burden on Plaintiff’s religious exercise. 241. The Mandate furthers no compelling governmental interest. 242. The Mandate is not narrowly tailored to any compelling governmental interest. 243. The Mandate is not the least restrictive means of furthering Defendants’ stated interests.
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244. The Mandate and Defendants’ threatened enforcement of the Mandate violate Plaintiff’s rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
245. Absent injunctive and declaratory relief against the Mandate, Plaintiff has been and wilt continue to be harmed,
COUNT VIII. Violation of the Administrative Procedure Act 246. Plaintiff incorporates by reference paragraph 1 through 245 into Count VIll as though set forth completely within.
247. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute “good cause.”
248. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful “consideration of the relevant matter presented.”
249. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule.
250. Therefore, Defendants have taken agency action without observing procedures required by law, and Plaintiff is entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
251. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Plaintiff and similar organizations, companies, and individuals.
252. Defendants’ explanation for its decision not to exempt organizations similar to Plaintiff from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
253. Therefore, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them.
254. The Mandate requires issuers, employers, and individuals, including Plaintiff, to purchase coverage of all Federal Drug Administration-approved contraceptives. Some of these FDA-approved contraceptives cause abortions, as stated above in this Verified Complaint.
255. As set forth above, the Mandate violates RFRA and the First Amendment to the United States Constitution.
256. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in the Administrative Procedure Act.
257. The Mandate is contrary to the provisions of the Affordable Care Act.
258. Section 1303(a)(1)(A)(i) of the Affordable Care Act states that “nothing in this title”-i.e., title I of the Act, which includes the provision dealing with “preventive services”- “shall be construed to require a qualified health plan to provide coverage of [abortion] services ... as part of its essential health benefits for any plan year.”
259. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services.
260. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only 19

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“the issuer” does. 261. However, the Mandate requires all issuers, including Plaintiff and Plaintiff’s insurance issuer Blue Cross/Blue Shield of Michigan, to provide coverage of all Federal Drug Administration-approved contraceptives. 262. Some FDA-approved contraceptives cause abortions, such as those described above in this Verified Complaint. 263. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and violates the Administrative Procedure Act. 264. Absent injunctive and declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Plaintiff requests that this Court; A. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiff violates the First Amendment to the United States Constitution; B. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiff violates the Religious Freedom Restoration Act; C. Declare that the Mandate was issued in violation of the Administrative Procedure Act; D. Issue both a preliminary and a permanent injunction prohibiting and enjoining Defendants from enforcing the Mandate against Plaintiff and other religious individuals, employers, companies and organizations that object to funding and providing insurance coverage for abortion, abortifacients, and related education and counseling; E. Award Plaintiff the costs of this action and reasonable attorney’s fees; and F. Award such other and further relief as it deems equitable and just. Dated: 11/4/2013 Respectfully submitted by, <<signature>> Rizik & Rizik By: Michael B. Rizik Jr. (P33431) Attorney for Plaintiff 9400 South Saginaw Street, Ste E Grand Blanc, MI 48439 Phone: 810-953-6000 Fax: 810-953-6005
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RIGHT TO LIFE OF MICHIGAN, A Michigan non-profit..., 2013 WL 5913362... Cell: 810-610-2673 Email: lawyers@riziklaw.com
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 Case 1:13-cv-01202-RJJ Doc #22 Filed 02/03/14 Page 1 of 1 Page ID#351

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RIGHT TO LIFE OF MICHIGAN,

Plaintiff, v. KATHLEEN SEBELIUS, et al.,

CASE NO. 1:13-CV-1202 HON. ROBERT J. JONKER

Defendants. __________________________________/

ORDER

Plaintiff has filed a First Amended Complaint that, in part, responds to Defendant’s Motion

to Dismiss. The First Amended Complaint replaces the original complaint challenged by the Motion

to Dismiss, and so that Motion (docket # 14) is DISMISSED AS MOOT. Defendants’ may answer

or move afresh against the First Amended Complaint, within the time permitted by Rule.

Dated: February 3, 2014

/s/ Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE

 
 Case 1:13-cv-01202-RJJ Doc #25 Filed 02/14/14 Page 1 of 1 Page ID#360

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RIGHT TO LIFE OF MICHIGAN,

Plaintiff, v. KATHLEEN SEBELIUS, et al.,

CASE NO. 1:13-CV-1202 HON. ROBERT J. JONKER

Defendants. __________________________________/

ORDER

Defendants move to stay this matter pending the outcome of cases pending in the United

States Court of Appeals for the Sixth Circuit on issues that, at a minimum, may overlap and inform

issues in this case. Plaintiff does not oppose a stay, and actually supports it. The Court is not

convinced that the cases pending before the Sixth Circuit are on all fours with the claims in this case,

but the issues are certainly sufficiently related to expect significant guidance from the eventual

decisions. The cases also appear to be proceeding swiftly in the Court of Appeals.

Accordingly, the Court GRANTS the Motion to Stay all deadlines, disclosures and discovery

in the case. The Rule 16 Conference scheduled for March 19, 2014 is CANCELLED. A telephone

conference with counsel is scheduled for July 18, 2014 at 3:00 p.m. to discuss case status. It is the

responsibility of Plaintiff's counsel to initiate the call, getting the other parties on the line and calling

into chambers at 616.456.2551, (unless you make other arrangements between your offices).

Dated: February 14, 2014

/s/ Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE

 
 Case 1:13-cv-01202-RJJ Doc #15 Filed 01/13/14 Page 1 of 11 Page ID#115

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

____________________________________

)

RIGHT TO LIFE OF MICHIGAN,

)

)

Plaintiff,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

Case No. 1:13-cv-1202

DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS

Case 1:13-cv-01202-RJJ Doc #15 Filed 01/13/14 Page 2 of 11 Page ID#116
INTRODUCTION While the regulatory scheme at issue in this litigation is complex, this case itself is quite simple. In short, plaintiff Right to Life of Michigan (“RLM”) challenges the wrong regulations. More precisely, RLM challenges a version of the regulations that no longer applies to RLM because it was superseded in July 2013 – four months before RLM filed its Complaint. Because RLM cannot possibly be injured by regulations that are no longer operative, this Court lacks jurisdiction over RLM’s claims and this case should be dismissed in its entirety. The Patient Protection and Affordable Care Act (“ACA”) requires group health plans and health insurance issuers that offer non-grandfathered health coverage to their employees to provide coverage for certain preventive services without cost-sharing, including, as relevant to this case, FDA-approved contraceptive services. As explained in more detail below, the defendant agencies have promulgated regulations implementing this requirement. RLM alleges that a prior version of these regulations violates its rights under the First Amendment, the Religious Freedom Restoration Act and the Administrative Procedure Act. But RLM challenges regulations that do not apply to it. The allegations in RLM’s Complaint paint an incomplete and outdated picture of the relevant regulatory scheme. Specifically, RLM fails to acknowledge that regulations adopted in July 2013 – four months before RLM filed its Complaint – create an accommodation for organizations such as RLM, under which RLM would not be required to contract, arrange, pay, or refer for contraceptive coverage. RLM suffers no injury from the inapplicable regulations it challenges. Because RLM cannot prove that it has or will suffer any injury stemming from the defunct regulatory scheme that it describes in its Complaint, RLM lacks standing to challenge the 2012 regulations, and the Court should dismiss the Complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
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BACKGROUND Before the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed. Due largely to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”). Section 1001 of the ACA seeks to cure this problem by making preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration,” which is a component of the Department of Health and Human Services (HHS). 42 U.S.C. § 300gg-13(a)(4). Because there were no such existing HRSA guidelines relating to preventive care and screening for women, HHS requested that the Institute of Medicine (IOM) develop recommendations for it. IOM REP. at 2. After conducting an extensive science-based review, IOM recommended that preventive services for women include “the full range of [FDA]approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10-12. IOM determined that coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany them) and promote healthy birth spacing. Id. at 102-03. On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, encompassing all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling” as prescribed by a healthcare provider, subject to an exemption
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relating to certain religious employers, which was authorized by regulations issued that same day
(“2011 amended interim final regulations”). See HRSA Women’s Preventive Services Guidelines (“HRSA Guidelines”).1 In February 2012, the government adopted in final
regulations the definition of “religious employer” contained in the 2011 amended interim final
regulations while also creating a temporary enforcement safe harbor for non-grandfathered group
health plans sponsored by certain non-profit organizations with religious objections to
contraceptive coverage (and any associated group health insurance coverage) (“2012 final
regulations”). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012).
RLM challenges the 2012 final regulations in its Complaint. However, during the safe
harbor period announced in the 2012 final regulations, the government committed to undertake a
new rulemaking to adopt new regulations to further accommodate non-profit religious
organizations’ religious objections to covering contraceptive services. Id. at 8728. The
regulations adopted on July 2, 2013, represent the culmination of that process. See 78 Fed. Reg.
39,870 (July 2, 2013); see also 77 Fed. Reg. 16,501 (Mar. 21, 2012); 78 Fed. Reg. 8456 (Feb. 6, 2013).2
1 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and (4) the organization is a nonprofit organization as described in section 6033(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). The 2013 final rules simplify and clarify the religious employer exemption by eliminating the first three criteria and clarifying the fourth. Under the 2013 final rules, a “religious employer” is “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended,” which refers to churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a). 2 The 2013 final rules generally apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, except the amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013. See 78 Fed. Reg. at 39,87172.
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The 2013 final rules represent a significant accommodation by the government of the religious objections of certain non-profit religious organizations and promote two important policy goals. The regulations provide women who work for accommodated non-profit religious organizations with access to contraceptive coverage without cost sharing, thereby advancing the government’s compelling interests in safeguarding public health and ensuring that women have equal access to health care. And the regulations do so in a narrowly tailored way that does not require non-profit religious organizations with religious objections to such coverage to contract, arrange, pay, or refer for that coverage.
Specifically, the 2013 final rules also establish accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations.” 78 Fed. Reg. at 39,875-80. An “eligible organization” is an organization that satisfies the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the
Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75. Based on the allegations in the Complaint, it appears likely that RLM meets these criteria and is therefore eligible for an accommodation. Under the 2013 final rules, an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at
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39,874. To be relieved of any such obligations, the 2013 final rules require only that an eligible organization complete a self-certification form stating that it is an eligible organization and provide a copy of that self-certification to its health insurance issuer or third party administrator. Id. at 39,878-79. An eligible organization’s issuer or third party administrator, upon receipt of the self-certification, must provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan without cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80. RLM alleges that it contracts with an outside issuer – Blue Cross Blue Shield – that provides healthcare coverage to its employees. Compl. at ¶ 43. Thus, RLM need not contract, arrange, pay or refer for contraceptive coverage under the 2013 final rules.
STANDARD OF REVIEW Defendants move to dismiss this case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). 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). In determining its jurisdiction, the Court may consider evidence in addition to the Complaint when defendants assert a factual challenge to subject matter jurisdiction. See Lovely v. U.S., 570 F.3d 778, 781-82 (6th Cir. 2009).
ARGUMENT THIS CASE SHOULD BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION BECAUSE PLAINTIFFS LACK STANDING TO CHALLENGE THE
2012 REGULATIONS This Court’s jurisdiction is limited by Article III of the United States Constitution to “Cases” and “Controversies.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). Standing is a “core component” of the case-or-controversy requirement. Id. at 560. “[T]he
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irreducible constitutional minimum of standing requires that a plaintiff (1) 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. As to the injury prong, a plaintiff must demonstrate that it has “suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (quotations omitted).
RLM challenges the 2012 final regulations and alleges injury resulting from the application of those regulations. However, based on the allegations in the Complaint, it appears likely that RLM is eligible for an accommodation under the 2013 final rules, and therefore need not contract, arrange, pay, or refer for contraceptive coverage. In other words, RLM challenges regulations that no longer apply to it, because they have been superseded by those adopted in July 2013 – a full four months before RLM filed its Complaint.
As a jurisdictional requirement, standing is analyzed based on the time that the complaint was filed. In the words of the Supreme Court, “[i]t has long been the case that ‘the jurisdiction of the court depends upon the state of things at the time of the action brought.’” Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570 (2004) (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824)). Under the currently operative regulatory scheme, which was in effect at the time the Complaint was filed, RLM appears – based on the allegations in the Complaint – to be eligible for an accommodation. Thus, RLM has challenged a version of the regulations that no longer apply to it. RLM cannot establish that it has been injured by a now supplanted version of the regulations, with which it is not obligated to comply. 3
Notably, after the 2012 final regulations were issued, and before the government adopted the 2013 final rules, numerous non-profit religious organizations with religious objections to
3 If and when plaintiff challenges the operative version of the regulations, defendants will defend those regulations on the merits.
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contraceptive coverage challenged the 2012 final regulations on grounds similar to those alleged by RLM. Many federal courts dismissed these challenges as unripe, and some also found that the plaintiffs lacked standing because the government had committed to engage in further rulemaking. See, e.g., Priests for Life v. Sebelius, No. 12-CV-753 (FB), ECF No. 56 (E.D.N.Y. April 2012, 2013); Ave Maria Univ. v. Sebelius, No. 2:12-cv-88-Ftm-99SPC, ECF No. 72 (M.D. Fla. Mar. 29, 2013); Most Reverend Wenski v. Sebelius, No. 12-23820-CIVGRAHAM/GOODMAN (S.D. Fla. Mar. 5, 2013); Franciscan Univ. v. Sebelius, No. 2:12-CV440, 2013 WL 1189854 (S.D. Ohio Mar. 22, 2013); Eternal Word Television Network, Inc. v. Sebelius, No. 2:12-cv-00501-SLB (N.D. Ala. Mar. 25, 2013); Diocese of Dallas v. Sebelius, No. 3:12-cv-1589-B, 2013 WL 687080 (N.D. Tex. Feb. 26, 2013); Conlon v. Sebelius, No. 1:12-cv3932, 2013 WL 500835 (N.D. Ill. Feb. 8, 2013); Archdiocese of St. Louis v. Sebelius, No. 4:12cv-924-JAR, 2013 WL 328926 (E.D. Mo. Jan. 29, 2013); Roman Catholic Archbishop of Washington v. Sebelius, No. 12-cv-0815 (ABJ), 2013 WL 285599 (D.D.C. Jan. 25, 2013); Persico v. Sebelius, 919 F. Supp. 2d 622 (W.D. Pa. Jan. 22, 2013); Colo. Christian Univ. v. Sebelius, No. 11-cv-03350-CMA-BNB, 2013 WL 93188 (D. Colo. Jan. 7, 2013); Catholic Diocese of Peoria v. Sebelius, No. 1:12-cv-01276, 2013 WL 74240 (C.D. Ill. Jan. 4, 2013); Univ. of Notre Dame v. Sebelius, No. 3:12-cv-00253, 2012 WL 6756332 (N.D. Ind. Dec. 31, 2012); Catholic Diocese of Biloxi v. Sebelius, No. 1:12-cv-00158, 2012 WL 6831407 (S.D. Miss. Dec. 20, 2012), mot. to alter or amend j. denied, 2013 WL 690990 (S.D. Miss. Feb. 15, 2013); Zubik v. Sebelius, No. 2:12–cv–00676, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012); Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012); Legatus v. Sebelius, 901 F. Supp. 2d. 980 (E.D. Mich. Oct. 31, 2012); Nebraska v. U.S. Dep’t of Health & Human Servs., No. 4:12CV3035, 2012 WL 2913402 (D. Neb. July 17, 2012). In one such challenge, for example, the court dismissed the complaint for lack of jurisdiction, finding
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“the challenged regulatory requirement isn’t the cause of the injuries of which Notre Dame complains . . . It is enough to know that the present regulation is to be replaced by another, and the safe harbor is protecting Notre Dame from harm to its religious precepts until that replacement occurs.” Univ. of Notre Dame, 2012 WL 6756332, at *4. Thus, even before the 2013 final rules were
adopted, courts recognized that they lacked jurisdiction to consider challenges to the 2012
regulations brought by non-profit religious organizations raising religious objections to those
regulations, because new regulations would soon be promulgated that would supersede the
challenged regulations.
Accordingly, RLM cannot show that it has suffered any injury in fact stemming from the
version of the regulations that it challenges. Thus, RLM lacks standing to challenge the 2012
final regulations, and this Court lacks jurisdiction to review the Complaint.
CONCLUSION For the foregoing reasons, defendants respectfully ask that the Court dismiss plaintiff’s Complaint for lack of subject matter jurisdiction. Respectfully submitted this 13th day of January, 2014,
STUART F. DELERY Assistant Attorney General
PATRICK MILES, JR. United States Attorney
JENNIFER RICKETTS Director
SHEILA M. LIEBER Deputy Director
/s/ Julie S. Saltman JULIE S. SALTMAN (DC Bar 975015) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 7111 Washington, DC 20530 Tel: (202) 532-4252
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Case 1:13-cv-01202-RJJ Doc #15 Filed 01/13/14 Page 10 of 11 Page ID#124 Fax: (202) 616-8470 Email: julie.saltman@usdoj.gov Attorneys for Defendants
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Case 1:13-cv-01202-RJJ Doc #15 Filed 01/13/14 Page 11 of 11 Page ID#125 CERTIFICATE OF SERVICE
I hereby certify that on January 13, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Julie S. Saltman JULIE S. SALTMAN
11

 
 Case 1:13-cv-01202-RJJ Doc #19 Filed 01/29/14 Page 1 of 6 Page ID#172

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

* * * * * * ** * * * * * * * * * * * * * * * * * * * *

RIGHT TO LIFE OF MICHIGAN, a Michigan non-profit corporation
Plaintiff, -v-

CASE NO. 1:13cv1202 Hon. Robert J. Jonker

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

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

JACK LEW, in his official capacity as the Secretary of the United States Department of the Treasury

UNITED STATES DEPARTMENT OF THE TREASURY

THOMAS PEREZ, in his official capacity as the Secretary of the United States Department of Labor

UNITED STATES DEPARTMENT OF LABOR

Defendants. _______________________________/

PLAINTIFF’S BRIEF OPPOSING MOTION TO DISMISS

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FACTUAL BACKGROUND The Defendants generally stated the facts of this case accurately. However, there are certain “facts” with which Right to Life of Michigan (“RLM”) disagrees. First, RLM challenges the Basic Protection and Affordable Care Act (“ACA”), as well as all the regulations (the “Mandate”). Missing from the original Verified Complaint, however, was a clear enough statement of the final regulation, to which the Defendants alluded in their Brief. This Plaintiff remedied that by filing a First Amended Complaint on January 27, 2014 (Exhibit 1), which renders moot Defendants’ motion, Plaintiff argues below. RLM indeed suffers injuries from the ACA and the Mandate that it challenges. As noted in the First Amended Complaint (Id) it was forced, in violation of its religious convictions and sole purpose for existing, to purchase insurance that covered preventative services including FDA-approved contraceptives that cause abortions. This violates RLM’s First Amendment rights to freely exercise its religious convictions as a 501(c)(4) religious organization, First Amendment rights of free speech, and religious rights guaranteed by the Religious Freedom Restoration Act. Defendants have generally and accurately stated the facts in the “Background” portion of their Brief. However, this Plaintiff disagrees with some of those “facts” too. While Plaintiff may have been less than perfectly unclear about which regulations it specifically challenged, the Verified Complaint nevertheless stated it “challenges the constitution of regulations (“Mandate”) arguably issued
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under the “Patient Protection and Affordable Care Act” . . .” See Verified Complaint, ¶ 2. The remainder of the Verified Complaint specifically challenged the “Mandate”, but unclearly specified the Final Rule that went into effect in 2013. To the extent the Verified Complaint did not specifically challenge the Final Rule, the First Amended Complaint that Plaintiff filed January 27, 2014, did.
Plaintiff further disagrees that the so-called “safe harbor” was safe, or that it properly accommodated Plaintiff. Finally, Plaintiff challenges that the 2013 Final Rule or so-called accommodations were anything more than an accounting trick, and failed to consider Plaintiff’s religious convections. As such, this Plaintiff challenges the ACA and the Final Rule of 2013.
STANDARD OF REVIEW Plaintiff has accurately stated the Standard of Review, but asserts that it is moot as is the motion to dismiss.
ARGUMENT PLAINTIFF’S FIRST AMENDED COMPLAINT DATED JANUARY 27, 2014, SUPERSEDES THE VERIFIED COMPLAINT; THEREFORE, THE COURT SHOULD DENY THE DEFENDANTS’ MOTION.
On or about January 13, 2014, Plaintiff’s counsel spoke with legal counsel from the United States Attorney General’s Office, who asked Plaintiff’s counsel to concur with the relief requested in its then-soon-to-be-filed motion to dismiss. Plaintiff’s counsel asked defense counsel for an extension of time to file a First Amended Complaint to address Defendants’ concerns; however, this was refused. Therefore, on January 27, 2014, Plaintiff filed a First Amended
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Complaint (Exhibit 1). The First Amended Complaint verified that Plaintiff
challenges the ACA and all regulations promulgated pursuant to it, including the
2013 Final Rule.
It is given in almost every American jurisdiction that a later amended
complaint supersedes all complaints and amended complaints filed previously.
In Washer, et al v Bullitt, 110 US 558, 4 S Ct 249, 28 L Ed 249 (1884), the courts
held that an amended petition which increased the amount in controversy from
$5,000.00 in the original petition to $5,325.14 in the amended petition
superseded the original petition. See 110 US at 561-562). The court held
specifically:
“When a petition is amended by leave of the court, the cause proceeds on the amended petition.” (Id, p 562)
In LaFountain v Brevard, et al, 2009 WL 427245, (WD Mich, February 20,
2009), Plaintiff filed an amended complaint on February 6, 2009. The United
States District Court for the Western District of Michigan “accepted LaFountain’s
first amended complaint for filing.” (Id, p 1) The Western District of Michigan
court, citing cases from its own jurisdiction and the U.S. Supreme Court, held:
“ ‘[O]nce accepted, an amended complaint replaces the original.’ “ Malik v. AT & T Mobility, LLC, 2008 WL 4104555, *3 (W.D.Mich. Aug.29, 2008) (Maloney, C.J.) and ABB, Inc. v. Reed City Power Line Supply Co., 2007 WL 2713731, *1 (W.D.Mich. Sept.18, 2007) (Maloney, J.) (both quoting FL Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 702, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982) (White, J., concurring in part & dissenting in part o.g., joined by Powell, Rehnquist, & O'Connor, JJ .)). The filing of the amended complaint “render[s] the original complaint null and void....” Malik, 2008 WL 4104555 at *3 (quoting Vadas v. US, 527 F.3d 16, 22 n. 4 (2d Cir.2007)). See also Essroc, 2009 WL 129809 at * 1 (Maloney, C.J.) (“a prior ‘complaint is a nullity, because an amended complaint supercedes [sic] all prior complaints' ”) (citing B
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& H Med., LLC v. ABP Admin., Inc., 526 F.3d 257, 268 n. 8 (6th Cir.2008) (citations omitted)).” (Id) The LaFountain, supra, Court also held:
“Because the original ‘complaint has been superseded and nullified, there is no longer a live dispute about the propriety or merit of [the] claims ... asserted therein.’ “ Essroc, 2009 WL 129809 at *1 (quoting Van Vels v. Betten, 2007 WL 2461933, *1 (W.D.Mich. Aug.27, 2007) (Maloney, J.) (citing May v. Sheahan, 226 F.3d 876, 879 (7th Cir.2000) (“If these ... superseded May's original amended complaint, the present appeal would be moot because there would no longer be a live dispute over whether Sheahan is entitled to qualified immunity based on the allegations in the Amended Complaint.”)))” (Id, p 2; Emphasis supplied)
Attached to this brief is a copy of LaFountain, supra, as Exhibit 2. Other
cases that follow this majority rule of law include Atlas Van Lines, et al v Poplar Bluff Transfer Co., et al, 209 F 3rd 1064 (CCA 8, 2000) (Exhibit 3); In Re Wireless Telephone Federal Cost Recoveries Litigation, 396 F 3rd 922, 60 Fed R
Serv, 3d 914 (CCA 8, 2005) (Exhibit 4); and, Pavlik v Brand Scaffold Builders,
LLC, 2008 WL 597160 (Ed Mich, 2008) (Exhibit 5).
Here, immediately after counsel with the Attorney General’s Office refused
to provide Plaintiff additional time to file the First Amended Complaint, Defendant
filed a motion to dismiss on January 13, 2014. According to FRCP 15(a)(1),
Plaintiff was allowed to file its amended pleading once as a matter of course:
“(B) If the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading, or 21 days after service of a motion under Rule 12(B), (e), or (f), whichever is earlier.”
Therefore, Plaintiff had until February 3, 2014, to file its First Amended
Complaint. On January 27, 2014, Plaintiff filed the First Amended Complaint in a
timely fashion.
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The First Amended Complaint addressed Defendants’ alleged deficiencies in the Verified Complaint, and, according to the case law cited above, the First Amended Complaint superseded the Verified Complaint, rendering it a nullity. As such, Defendants’ motion should be dismissed as moot, or denied.
On January 28, 2014, at 5:52 a.m., Plaintiff’s counsel emailed legal counsel with the United States Attorney General’s Office asking if it would withdraw its motion to dismiss based upon the First Amended Complaint. (Exhibit 6). As of the date this answer to the motion is filed, the U.S. Attorney General’s Office has failed and/or refused to dismiss its motion, in spite of almost universal case law that states the First Amended Complaint supersedes and renders a nullity the Verified Complaint.
RELIEF REQUESTED Based upon the above, Plaintiff respectfully requests this Honorable Court to dismiss Defendant’s motion as moot, or deny it.
Respectfully submitted by,

Dated: January 29, 2014

/s/ Michael B. Rizik Jr. Rizik & Rizik By: Michael B. Rizik Jr. (P33431) Attorney for Plaintiff 9400 South Saginaw Street, Ste E Grand Blanc, MI 48439 Phone: 810-953-6000 Fax: 810-953-6005 Cell: 810-610-2673 Email: lawyers@riziklaw.com

Certificate of Service
I hereby certify that on January 29, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of all such filing to all parties.
_M6/sic/hMaieclhBa.elRBiz.ikR,izJrik. , Jr._______

 
 Case 1:13-cv-01202-RJJ Doc #17 Filed 01/27/14 Page 1 of 39 Page ID#131

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

* * * * * * ** * * * * * * * * * * * * * * * * * * * *

RIGHT TO LIFE OF MICHIGAN, a Michigan non-profit corporation

FIRST AMENDED COMPLAINT

Plaintiff,

-v-

KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services 200 Independence Avenue, SW Washington, DC 20201

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES 200 Independence Avenue, SW Washington, DC 20201

JACK LEW, in his official capacity as the Secretary of the United States Department of the Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220

UNITED STATES DEPARTMENT OF THE TREASURY 1500 Pennsylvania Avenue, NW Washington, DC 20220

THOMAS PEREZ, in his official capacity as the Secretary of the United States Department of Labor 200 Constitution Avenue, NW Washington, DC 20210

UNITED STATES DEPARTMENT OF LABOR 200 Constitution Avenue, NW Washington, DC 20210,

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Defendants. _______________________________/ NOW COMES the Right to Life of Michigan (“RLM” or “Plaintiff”), through Michael B. Rizik Jr. of Rizik & Rizik, its attorneys and undersigned counsel, who bring this First Amended Complaint against the above-named Defendants, their employees, agents, and successors in office. In support of this First Amended Complaint they state the following:
NATURE OF THE ACTION 1. This case involves religious freedom and freedom from coerced speech. 2. This case challenges the constitutionality of rules and the comprehensive
guidelines regarding preventive services for women supported by the Health Resources and Services Administration arguably issued under the “Patient Protection and Affordable Care Act” (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the “Health Care and Education Reconciliation Act” (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (collectively the “Affordable Care Act” or “ACA”) that force Plaintiff to violate its deeply held religious beliefs that it is intrinsically disordered and gravely immoral to take the life of an unborn human being by abortion. 3. The sanctity and protection of innocent life at every stage on its continuum is the sole reason for RLM’s organizational existence. 4. Not only is abortion inherently disordered, and, therefore, immoral, but it violates the due process of the laws accorded every human being, and belies reasoned reflection and scientific fact on when life begins. As such, abortion is an act of injustice, and the Mandate forces Plaintiff to violate its only reason
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for existence, as well as 501(c)(4) charter that the Internal Revenue Service granted it. 5. The Affordable Care Act mandates health plans to “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 the United States Department of Health and Human Services (“HHS”) to determine what would constitute “preventative care” under the Mandate. 42 U.S.C § 300gg–13(a)(4). 6. The Defendants adopted regulations and requirements that require the Plaintiff to provide health benefits for its employees that include coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling. This requirement (“Mandate”) triggered a variety of penalties and created certain rules and exemptions pertaining to different kinds of organizations. The statutory provisions, regulations, policies and penalties being challenged here are referenced below. 7. Consequently, Plaintiff faces a choice: abandon its sole purpose for existing, namely, the protection of life from the moment of conception, or face penalties in the millions of dollars that would bankrupt it. 8. The threat of such penalties imposes a substantial burden on the Plaintiff’s religious exercise, because it “requires participation in an activity prohibited by a sincerely held religious belief,” prevents participation in conduct motivated by a sincerely held religious belief, and “places substantial
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pressure on” Plaintiff “to engage in conduct contrary to a sincerely held religious belief.” Hobby Lobby Stores, Inc v Sebelius, 723 F 3d 1114, 1138 (CCA 10, 2013). 9. Contrary to Defendants coercion of this Plaintiff, federal law forbids the government from forcing the Plaintiffs to face such penalties and harm for exercising their religion. In particular, the Religious Freedom Restoration Act (“RFRA”) forbids such burdens on religious exercise unless the government can demonstrate that the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The government cannot meet that standard, making it illegal to impose the Mandate on the Plaintiff. The Mandate is likewise invalid under the First Amendment’s Religion and Speech Clauses, the Fifth Amendment’s Due Process Clause, and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”).
REGULATORY BACKGROUND & HISTORY 10. On August 1, 2011, the Defendants promulgated an amendment to Interim
Final Rules that until that time had not specified the scope of women’s preventive services or whether groups might be exempt based on their ideological objections. See 76 Fed. Reg. 46621 (Aug. 3, 2011). Those rules recognized the inclusion of implantation preventing or –dislodging abortifacients, contraception, sterilization, and related education and counseling, within the Mandate. 11. As amended, the Interim Final Rules granted the Health Resources and
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Services Administration (“HRSA”) “discretion to exempt certain religious employers from the [Institute of Medicine, or “IOM”] Guidelines where contraceptive services are concerned.” (Id, at 46623). 12. However, the “religious employers” exemption was severely limited to formal churches, their integrated auxiliaries, and religious orders whose purpose is to inculcate faith and that hire and serve primarily people of their own faith tradition. 76 Fed. Reg. at 46626. 13. The majority of faith-informed and other religious organizations, including non-profits such as Right to Life of Michigan, with conscience objections to providing contraceptive or abortifacient services, were excluded from the “religious employers” exemption. 14. The HRSA exercised its discretion under the amended Interim Final Rules to grant an exemption for defined “religious employers” through a footnote on its website listing the Women’s Preventive Services Guidelines. The footnote states that “guidelines concerning contraceptive methods and counseling described above do not apply to women who are participants or beneficiaries in-group health plans sponsored by religious employers.” http://www.hrsa.gov/womensguidelines. (Last visited January 15, 2014) 15. Like the original Interim Final Rules, the amended Interim Final Rules were made effective immediately, without prior notice or opportunity for public comment. 76 Fed. Reg. at 46624. 16. Following strong public demands for a broader “religious employer” exemption that continued for many months, on January 20, 2012, the
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Case 1:13-cv-01202-RJJ Doc #17 Filed 01/27/14 Page 6 of 39 Page ID#136
Department of Health & Human Services (“HHS”) issued a press release acknowledging “the important concerns some have raised about religious liberty,” and stating that religious objectors would be “provided an additional year . . . to comply with the new law.” See Press Release, U.S. Department of Health and Human Services, Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (“Sebelius”) (Jan. 20, 2012), http://www.hhs.gov/news/press/2012pres/01/20120120a.html (Last visited January 15, 2014). 17. Consequently, on January 20, 2012, Sebelius announced a temporary, one-year safe harbor, or stay of regulation enforcement. . Defendants then finalized the August 2011 rules without change. 77 Fed. Reg. 8725 (Feb. 15, 2012). 18. This so-called “safe harbor” would remain in effect for a qualified organization until its first plan year that began on or after August 1, 2013. See HHS Guidance on Temporary Enforcement Safe Harbor (Feb. 10, 2012); 77 Fed. Reg. 16501, 16504 (March 21, 2012). 19. The “temporary enforcement safe harbor” applied to nonexempt, nongrandfathered “group health plans sponsored by nonprofit organizations that, on and after February 10, 2012, do not provide some or all of the contraceptive coverage otherwise required . . . because of the religious beliefs of the organization.” See 77 Fed. Reg. at 16502-03. 20. The Defendants indicated they would develop and propose changes to regulations to accommodate the objections of non-exempt, nonprofit religious
6

Case 1:13-cv-01202-RJJ Doc #17 Filed 01/27/14 Page 7 of 39 Page ID#137
organizations following August 1, 2013 (Id at 16503). This Plaintiff considered itself one such non-exempt, non-profit, faith-informed organization. 21. After comment on the Interim Final Rule, on June 28, 2013, Defendants issued final rules that ignored objections that religious organizations raised, and continued to require objecting religious employers, like this Plaintiff, to participate in the government’s scheme of expanding free access to contraceptive and abortifacient services. See 78 Fed. Reg. 39870. (July 2, 2013) 22. The final rules assert, without explanation or analysis, that the Mandate and the narrow exemption comply with the requirements of RFRA. However, that is untrue. 23. Under the Mandate, the discretionary “religious employer” exemption, which is still implemented via footnote on the HRSA website, http://www.hrsa.gov/womensguidelines (Last visited January 15, 2014), is limited to formal churches and religious orders “organized and operate[d]” as nonprofit entities and “referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” 78 Fed. Reg. at 39896 (codified at 45 C.F.R.§ 147.131(a)). A religious, non-profit organization like this Plaintiff is excluded from this exemption. 24. Non-profit, religious organizations like RLM share the same religious beliefs and concerns as Catholic, Evangelical and other conservative churches (e.g., Orthodox Judaism), their integrated auxiliaries, and religious orders that are exempt as “religious employers”; however, the Defendants deliberately
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ignored the regulation’s impact on this Plaintiff’s religious liberty, stating by exclusion that the “simplified and clarified definition of religious employer continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental interests furthered by the contraceptive coverage requirement.” (Emphasis supplied) 78 Fed. Reg. at 39874. 25. In a sleight of hand accounting maneuver, the Mandate purports to fashion an “accommodation” for certain non-exempt religious organizations defined as “eligible organizations”. 78 Fed. Reg. at 39874 (codified at 45 C.F.R. § 147.131(b)&(c)). 26. An organization is an “eligible organization” and therefore eligible for the “accommodation” if it (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874 (codified at 45 C.F.R.§ 147.131(b)). 27. Upon information and belief, Defendants will ask this Court to dismiss this case because Plaintiff qualifies under the accommodation. Upon further information and belief, Defendants will as this Court to dismiss this case, because Plaintiff failed to seek the accommodation. However, this Plaintiff refuses to be complicit in the diabolical accounting trick at the heart of the socalled “accommodation,” and will not self-certify. Consequently, the Mandate and its so-called “accommodation” continue to violate Plaintiff’s constitutional
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Case 1:13-cv-01202-RJJ Doc #17 Filed 01/27/14 Page 9 of 39 Page ID#139
and federally guaranteed statutory rights as further explained in this First Amended Complaint. 28. The Mandate applies to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, except that the amendments to the religious employers exemption apply to plan years beginning on or after August 1, 2012. See 78 Fed. Reg. at 39870. Defendants also extended the “temporary enforcement safe harbor” to encompass plan years beginning on or after August 1, 2013, and before January 1, 2014. Id. at 3987. 29. An eligible organization seeking an “accommodation” must execute a selfcertification “prior to the beginning of the first plan year to which an accommodation is to apply”, and deliver it to the organization’s insurer or, if the organization has a self-insured plan, to the plan’s third party administrator. Id. at 39875. 30. An eligible organization would need to execute the self-certification prior to its first plan year that begins on or after January 1, 2014. Id. Plaintiff cannot and will not comply. 31. The so-called accommodation is an unacceptable alternative for Plaintiff, because it would require Plaintiff to contract for, facilitate or pay for the provision of contraception, sterilization, abortifacients, and related education and counseling in violation of Right to Life of Michigan’s express mission, sole reason for existing, and faith-informed beliefs. Likewise, Plaintiff’s religious convictions forbid it from continuing to contract with any insurance company
9

Case 1:13-cv-01202-RJJ Doc #17 Filed 01/27/14 Page 10 of 39 Page ID#140
that will provide free coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling. 32. The Obama administration has repeatedly delayed implementation of the Act for various reasons, most notably because the Act and its Mandate simply don’t work. 33. Therefore, there is no public benefit in enforcing the Mandate and its “accommodation” against this Plaintiff, forcing it to violate its religious beliefs. 34. By forcing these religious believers to continue to violate their faith by participating in a broken Mandate, the Defendants insist that Plaintiff violate its religious beliefs by providing directly the objectionable insurance coverage, or signing forms authorizing others to do so in its place. 35. As such, this is a simple and straightforward Religious Freedom And Restoration Act case.
THE ACT AND MANDATE REQUIREMENTS 36. The Act requires participants in a group health plan to be given a Summary
of Benefits and Coverage that “accurately describes the benefits and coverage” of the plan. Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C § 300gg-9). 37. Plan participants must be given a written notice of any material change in the Summary of Benefits and Coverage at least 60 days’ in advance notice of any such change. See 77 Fed. Reg. 8668, 8698-8705 (Feb. 14, 2012) (codified at 26 C.F.R. § 54.9815- 2715(b), 29 C.F.R. § 2590.715-2715(b) and 45 C.F.R. § 147.200(b)). Any change to a fully insured plan would likely constitute a
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material change in the information previously provided to covered employees of a Class Action Plaintiff in the Summary of Benefits and Coverage, which would require 60 days’ advance notice to the participants. 77 Fed. Reg. at 8698-8705. However, because of the lateness of the Final Mandate, there is inadequate time in which to change coverage within the law. 38. The Mandate requires all insurance issuers (e.g. Blue Cross/Blue Shield of Michigan) to include abortifacient drugs and devices in all of its insurance plans, group and individual. 39. The Mandate requires all insurance issuers to provide not only sterilization and contraception but also early abortions, because certain drugs and devices such as "ella," known as the "week-after pill," and possibly "Plan B," known as the "morning-after pill," can act to prevent the implantation of an embryo after its conception/fertilization, and in the case of ella, might act to dislodge an already implanted embryo. Yet such items come within the Mandate's and Health Resources and Services Administration's definition of "Food and Drug Administration-approved contraceptive methods" despite their known abortifacient mechanisms of action,. The Mandate also requires counseling relating to the Mandated methods, in all of its insurance plans, group and individual 40. The Mandate, therefore, forces employers and individuals to violate their religious beliefs because it requires employers and individuals to pay for insurance from insurance issuers which fund and directly provide for drugs, devices, and services which violate their deeply held religious beliefs, as well,
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in the case of this Plaintiff, reasoned reflection, and sole reason for existence as an organization. 41. By having to take active steps to identify an insurance company that provides contraceptive and abortifacient services, to contract with that insurer, and to supply and adopt plan documentation and information that triggers coverage for those services (including the self-certification form), Plaintiff is required to actively facilitate and promote the distribution of these services in ways that the organization’s religious beliefs forbid. 42. Defendants maintain they “continue to believe, and have evidence to support,” that providing payments for contraceptive and abortifacient services will be “cost neutral for issuers,” because “[s]everal studies have estimated that the costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. at 39877. 43. Even if the payments were—over time—to become cost neutral, it is undisputed that there will be up-front costs for making the payments. See, e.g., Id at 39877-78 (addressing ways insurers can cover up-front costs). 44. Moreover, if cost savings arise that make insuring an employer’s employees cheaper, the savings would have to be passed on to employers through reduced premiums, not retained by insurance issuers to cover so-called “free” services. 45. The chief reason this Plaintiff calls the “accommodation” a blatantly disingenuous accounting trick is that Defendants suggest to maintain cost
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neutrality issuers may simply ignore this fact and “set the premium for an eligible organization’s large group policy as if no payments for contraceptive services had been provided to plan participants.” Id at 39877. In other words, Defendants encourage policy issuers to artificially inflate the organization’s premiums on unobjectionable coverage, in order to provide “free” but objectionable coverage, and this Plaintiff would, therefore, still pay for services that violate its religious beliefs. In other words, the accommodation is a lie. 46. Since under the Mandate all insurance issuers must provide what the HHS has deemed “preventative care,” employers and individuals are stripped of all choice between insurance issuers or insurance plans to avoid violating a) their religious beliefs, in cooperation with practices they consider intrinsically evil and gravely immoral, and, in Plaintiff’s particular case, b) its sole reason for existing and c) legal mandate as a (c)(4) organization. 47. Plaintiff could adopt a self-insured employee benefit plan for its employees and appoint a “third party administrator” under the Mandate to provide or arrange for the provision of abortifacients, sterilizations and contraceptives, and related education and counseling. However, this is an equally unacceptable, because it involves Plaintiff in contracting for, facilitating or paying for the provision of abortifacients, sterilizations and contraceptives, and related education and counseling. 48. Plaintiff would have to contract a third-party administrator would be required to provide objectionable services “in a manner consistent” with other covered
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services. Id at 39876, 39877, under the organization’s plan’s documents. 49. Plaintiff would facilitate the Defendants’ scheme by: a) identifying the third-
party administrator; b) coordinate with the administrator the required coverage; and, c) provide notice to employees of the objectionable coverage. 50. Finally, the third-party administrator would identify an issuer willing to make payments on behalf of the administrator for these objectionable services. The issuers would recover these payments from user fees they paid to participate in the federal exchange. Then the issuer would pay the administrator from these user fees its administrative costs, thus completing the cost shifting that ultimately are borne by all employers, employees and organizations, including those who object to paying anything towards objectionable services. If there is a shortfall, there will be a bailout by the people. And, there is no way to assure this Plaintiff will not pay for the objectionable coverage, or administering it. 51. Without relief from the Mandate, or its accommodation, employers are subject to monetary fines and also lawsuits from the government coercing their compliance. Under one of those penalties, this Plaintiff’s cost of complying will be burdensome, and cost Plaintiff: 33 employees x 365 days per year x $100 each day = $1,204,500.00 per year penalty. 52. Plaintiff seeks a Declaratory Judgment that the Mandate promulgated under the ACA violates Plaintiff’s rights to the free exercise of religion and the freedom of speech under the First Amendment to the United States Constitution, RFRA, and the APA.
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53. Plaintiff brings this action to vindicate not only its rights, but also to protect its organizational existence and the rights of all Americans who care about our Constitutional guarantees of free exercise of religion and freedom of speech, as well as the protection of innocent human life, the sole and exclusive reason for the organization, its Board of Directors and employees. JURISDISCTION AND VENUE
54. This action in which the United States is a defendant arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1346.
55. Plaintiff's claims for declaratory relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by 28 U.S.C. § 2000bb-l, and by the general legal and equitable powers of this Court.
56. Venue is proper under 28 U.S.C. § 1391(e) because this is the judicial district in which Plaintiff is located. PLAINTIFF
57. Plaintiff operates as a 501(c)(4) non-profit organization whose principal office is at 2340 Porter S.W., Grand Rapids, MI 49509-0901.
58. On or about August 15, 1974, James L. Ryan, Gloria Klein and Arthur F. Barkey filed Articles of Incorporation with the State of Michigan's Department of Commerce, Corporation and Securities Bureau under the name of “MICHIGAN CITIZENS FOR LIFE,” a non-profit, domestic corporation. The organization’s stated purpose was, in pertinent part:
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“To promote the dignity and protect the rights that are possessed

by all human beings from the moment of conception including the

greatest right of all, the right to life itself.”

That remains the organization’s sole and exclusive reason for existing today.

59. On or about August 30, 1979, the organization changed its name to “Right To

Life Of Michigan.”

60. Plaintiff is also legally known as “Choose Life Michigan,” “Advocates For A

Better Life,” and “Advocates For Better Care,” each assumed name of which

indicates the organization’s mission is focused exclusively on the sanctity and

dignity of each human life from the moment of conception until natural death.

61. “Right to Life of Michigan is a nonpartisan, nonsectarian, nonprofit

organization of diverse and caring people united to protect the precious gift of

human

life

from

fertilization

to

natural

death.”

http://rtl.org/aboutus/missionstatement.html (Last visited January 15, 2014)

62. Plaintiff works “work on the behalf of defenseless or vulnerable human

beings, born and unborn, within our identified life issues of abortion,

infanticide and assisted suicide.” (Id).

63. In May 1986, the U.S. government through the Internal Revenue Service

recognized Plaintiff’s mission by granting it section 501(c)(4) status. That

same status remains in effect.

64. According to 26 USC 501(c)(4), the U.S. government recognized that Plaintiff

was “operated exclusively for religious, charitable” or “other purposes.”

65. Plaintiff is a non-sectarian, religious organization. Each of the Plaintiff’s Board

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of Directors is either Catholic or Evangelical Christian, who see their

commitment to the organization’s mission as a the logical extension of their

freely exercised religious beliefs and free speech as Americans.

66. The Plaintiff’s President, Barbara A. Listing, is Catholic.

67. The Plaintiff’s Chairman of the Board of Directors, Paul Miller, is Catholic.

68. The Plaintiff’s Legislative Director, Ed Rivet, is Catholic.

69. The organization’s founding father and first president, James L. Ryan, is

Catholic.

70. Fifteen of Plaintiff’s Board members are Catholic, and one is Christian

Reformed.

71. The vast majority, if not all, of Plaintiff’s employees are Catholic or

Evangelical Christian. All employees subscribe unequivocally to Plaintiff’s

sole and exclusive mission protecting life.

72. Plaintiff’s website advertises “Faith Resources,” including links to Catholic and

Protestant Bibles, the Knights of Columbus, “Reflection on Psalm 139” by

Rabbi Loren Jacobs, a presentation and script (in English and Spanish)

entitled how all human life is created “In the Image of God,” interactive, prolife

materials

for

Bible

study

groups,

and

more.

http://rtl.org/faith_school/faithresources.html (Last visited January 16, 2014)

73. Plaintiff believes that: “Abortion is any act or procedure performed with the

willful intent to cause the death of an unborn child from conception to birth. As

such, abortion is a grave act of injustice toward the child and a clear violation

of the child’s natural, unalienable right to life and his/her legal right not to be

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deprived of life without due cause. Right to Life of Michigan, therefore, is unalterably opposed to abortion.” At the same time, Plaintiff does not oppose abortion when it is the unintended consequence of saving the mother’s life. http://rtl.org/aboutus/policystatements.html (Last visited January 16, 2014) 74. Plaintiff “opposes all attempts to legalize or condone euthanasia...” while at the same time it “supports the tradition which allows persons suffering from a terminal illness to die naturally. Under this centuries-old ethic, patients are not obligated to use extraordinary or heroic medical treatment that would only prolong the dying process.” (Id). (Last visited January 16, 2014) 75. Right to Life of Michigan “finds human cloning to be an inherent violation of human dignity. As with abortion and assisted reproductive technologies, such as in vitro fertilization, human cloning research denies the most fundamental of human rights -- the right to life.” (Id). (Last visited January 16, 2014) 76. Plaintiff sees itself as an American human and civil rights leader, part of a long line of other such leaders including Susan B. Anthony (the feminist who referred to abortion as “child murder” – from her weekly suffragist newspaper The Revolution, 4(1):4 July 8, 1869); Elizabeth Cody Stanton; Alice Paul (who authored the original Equal Rights Amendment in 1923, and said; “Abortion is the ultimate exploitation of women."); Emma Goldman (“The custom of procuring abortions has reached such appalling proportions in America as to be beyond belief...So great is the misery of the working classes that seventeen abortions are committed in every one hundred pregnancies." – Mother Earth, 1911); as well as humanitarian activists who promoted civil
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rights through nonviolent means, completely inspired and informed by their religious beliefs: Mother Theresa, Martin Luther King, Jr. and Gandhi. (Id). (Last visited January 16, 2014) 77. Plaintiff advocates: “Peaceful solutions to the violence of abortion is the goal of Right to Life of Michigan... Any bombings, vandalism, assaults, or arson in other parts of the nation against abortion facilities concern Right to Life of Michigan. To counter violence with violence is against our principles. Prolifers have consistently worked peacefully through the democratic process in order to reach our goal - the end of violence within clinic walls. We are a peaceful movement.” (Id). (Last visited January 16, 2014) 78. Simultaneously, reasoned reflection consistent with God’s laws guides Plaintiff, who believes that the free exercise of religious faith and speech are inextricably bound with reason. You cannot have one without the other, which is why the Mandate is so ominous: it violates the organization’s free exercise of religion, free speech and rightly informed reason. 79. Prior to January 1, 2013, after the issuance of the Interim Final Rules on August 1, 2011, Plaintiff structured a morally acceptable health insurance policy through Blue Cross Blue Shield of Michigan that specifically excluded contraception, abortion and abortifacients, and exempted Plaintiff from paying, contributing, or supporting contraception and abortion for others. 80. Plaintiff obtained these exclusions from coverage due to its deeply held religious beliefs and right to exercise its free speech as stated in this First Amended Complaint.
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81. Plaintiff’s employees received coverage under this specially structured insurance policy with Blue Cross Blue Shield of Michigan that specifically excluded contraception, abortion, and abortifacients, and exempted Plaintiff from paying, contributing, or supporting contraception and abortion for others.
82. Plaintiff’s Board of Directors is the final decision-maker when it comes to setting all policies governing the conduct of all phases of the organization.
83. Before January 1, 2013, Plaintiff and its Board of Directors ensured that health insurance insurance policy contained these exclusions to reflect their deeply held religious beliefs, free speech, and sole reason for existence as an organization.
84. As of January 1, 2013, on advice from its insurance carrier, and further advice that the so-called “safe-harbor” was illusory, Plaintiff purchased the offensive coverage, thereby avoiding penalties.
85. Based on the teachings of their religious faith and their deeply held religious beliefs, Plaintiff and its Board of Directors do not believe that abortion, even at its earliest stages, are properly understood to constitute medicine, health care, or a means of providing for the well-being of persons.
86. Plaintiff and its Board of Directors believe abortion involves a grave injustice and immoral and sinful practices, specifically the intentional destruction of innocent human life.
87. After promulgation of the Interim Final Rules, and in spite of Plaintiff’s deeply held religious beliefs, as stated in this First Amended Complaint, on January 1, 2013, Blue Cross Blue Shield of Michigan provided insurance coverage to
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Case 1:13-cv-01202-RJJ Doc #17 Filed 01/27/14 Page 21 of 39 Page ID#151
Plaintiff that included ella and Plan B One Step. 88. Plaintiff is a nonprofit organization that holds itself out as religious and has
religious objections to continuing to provide coverage for contraceptive services that cause or it believes causes abortion, as more fully described elsewhere in this First Amended Complaint. Little Sisters of the Poor et al v Sebelius et al, Order In Pending Case, Order List 571 U.S.
DEFENDANTS 89. Defendants are appointed officials of the United States government and
United States governmental agencies responsible for issuing the Mandate. 90. Defendant-Sebelius is the Secretary of the HHS. In this capacity, she has
responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 91. HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation that is the subject of this lawsuit. 92. Defendant Thomas Perez is the Secretary of the United States Department of Labor. In this capacity, he holds responsibility for the operation and management of the United States Department of Labor. Defendant Perez is sued in his official capacity only. 93. Defendant United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation that is the subject of this lawsuit.
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94. Defendant Jack Lew is the Secretary of the United States Department of the Treasury. In this capacity, he holds responsibility for the operation and management of the United States Department of Treasury. Defendant Lew is sued in his official capacity only.
95. Defendant United States Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation that is the subject of this lawsuit. FACTUAL ALLEGATIONS Plaintiff’s Religious Beliefs
96. Plaintiff holds and actively professes religiously based beliefs that entirely parallel the traditional Judeo-Christian teachings on the sanctity of life. Plaintiff believes that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Plaintiff therefore believes that abortion ends an innocent human life, and is a grave sin and the ultimate injustice.
97. Plaintiff subscribes to or agrees with traditional Judeo-Christian teachings about the proper nature and aims of health care and medical treatment. For instance, Plaintiff believes, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “Absolute respect for every innocent human life also requires the exercise of conscientious objection in relation to procured abortion and euthanasia. ‘Causing death’ can never be considered a form of medical treatment, even when the intention is solely to comply with the patient's request. Rather, it runs completely counter to the health-care
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profession, which is meant to be an impassioned and unflinching affirmation of life.” Pope John Paul II, “Evangelium Vitae: On The Value and Inviolability of Human Life,” Vatican: the Holy See, 25 March 1995, No. 89. 98. Several leaders within the Catholic Church and Protestant churches have publicly spoken out about how the Mandate is a direct violation of Christian beliefs. 99. Cardinal Timothy Dolan, Archbishop of New York and President of the United States Conference of Catholic Bishops wrote, “Since January 20 [2012], when the final, restrictive HHS Rule was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. We recall the words of our Holy Father Benedict XVI to our brother bishops on their recent ad limina visit: ‘Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion.’ . . . We have made it clear in no uncertain terms to the government that we are not at peace with its invasive attempt to curtail the religious freedom we cherish as Catholics and Americans.” (http://www.usccb.org. March 2, 2012). 100. Archbishop Charles J. Chaput, the Archbishop of Philadelphia, has expressed that the Affordable Care Act and the Mandate seek “to coerce Catholic employers, private and corporate, to violate their religious convictions . . . [t]he HHS Mandate, including its latest variant, is belligerent, unnecessary, and deeply offensive to the content of Catholic belief . . . The HHS Mandate needs to be rescinded. In reality, no similarly aggressive attack
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on religious freedom in our country has occurred in recent memory . . . [t]he

HHS Mandate is bad law; and not merely bad, but dangerous and insulting. It

needs

to

be

withdrawn-now.”

http://the-american-

catholic.com/2012/02/14/archbishop-chaput-hhs-mandate-dangerous-and-

insulting/ (Last visited January 16, 2014)

101. Several Protestant leaders described how the Mandate violates the

Protestant faith. Michael Milton, chancellor and CEO-elect of Reformed

Theological Seminary in Charlotte, N.C., one of America’s largest Protestant

seminaries, declared, “This is not a Catholic issue only. It is not a

contraception issue. It is a religious-liberty issue. It is an American issue.”

http://www.ncregister.com/daily-news/religious-leaders-of-other-

denominations-and-faiths-weigh-in-on-hhs-mandate (Last visited January 16,

2014)

102. The Billy Graham Evangelistic Association writes: “It is also sin that

produces the misbelief that women have a ‘right’ to take the lives of unborn

babies. The apostle Paul writes, ‘The acts of the sinful nature are obvious:

sexual immorality, impurity and debauchery; idolatry and witchcraft; hatred,

discord, jealousy, fits of rage, selfish ambition, dissensions, factions and

envy; drunkenness, orgies, and the like’ (Galatians 5:19-21a).”

“Life is sacred, and we must seek to protect all human life: the unborn, the

child, the adult, and the aged. Several Bible passages tell of the sacredness

of life and speak to the subject of abortion.”

http://www.billygraham.org/articlepage.asp?articleid=2000 (Last visited

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Case 1:13-cv-01202-RJJ Doc #17 Filed 01/27/14 Page 25 of 39 Page ID#155
January 16, 2014) 103. In 1972, the Christian Reformed Church took its official stand against
abortion. Its position is clearly stated: “Because the CRC believes that all human beings are image bearers of God, it affirms the unique value of all human life. Mindful of the sixth commandment – ‘You shall not murder’ (Ex. 20:13) - the church condemns the wanton or arbitrary destruction of any human being at any stage of its development from the point of conception to the point of death.” http://www.crcna.org/welcome/beliefs/positionstatements/abortion (Last visited January 16, 2014) 104. Orthodox Judaism condemns abortion: “Judaism regards all life-including fetal life-as inviolate. Abortion is not a private matter between a woman and her physician. It infringes upon the most fundamental right of a third party-that of the unborn child.” - Statement of the Union of Orthodox Jewish Congregations of America, issued at its 78th National Convention in 1976. 105. The Jewish Pro-Life Foundation states: “The use of elective abortion violates the most fundamental principle of the sanctity of human life, introduced in the Natural Law set forth in the Noahide scripture, ‘he who sheds the blood of man, in man (adam ba’adam) shall his blood be shed’ (Genesis 9:6). Using and condoning elective abortion is demographic and spiritual suicide, and promotes the eugenics movement, which historically has targeted Jews for extinction.” http://jewishprolifefoundation.org/Jewish_ProLife_Foundation/Welcome.html (Last visited January 16, 2014) 106. With full knowledge of these beliefs described above, Defendants issued
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the Mandate that brutally forces Plaintiff to violate its religious beliefs, and those of millions of other Americans, under the pain of severe financial penalties. 107. The Mandate not only forces Plaintiff to finance abortifacients, and related education and counseling as health care, but also subverts the expression of Plaintiff’s religious beliefs, and the beliefs of millions of other Americans, by forcing Plaintiff to fund, promote, and assist others to acquire services which Plaintiff believe involve gravely immoral and unjust practices, including the destruction of innocent human life. 108. The Mandate unconstitutionally bullies Plaintiff to violate its deeply held religious beliefs under threat of directly violating its collective conscience and sole reason to exist, in addition to any imposed fines and penalties. 109. The Mandate forces Plaintiff to fund government-dictated speech that is directly at odds with its own faith-formed speech. Being entirely forced out of the insurance market in order to ensure the privilege of practicing one’s religion or controlling one’s own constitutionally protected speech substantially burdens Plaintiff’s religious liberty and freedom of speech under the First Amendment. 110. The Mandate shreds Plaintiff’s choice to select an insurance plan that does not cover and finance contraceptives and abortifacients, because the Mandate requires all insurance issuers provide this coverage. 111. Blue Cross/Blue Shield of Michigan deemed that due to the Mandate, Plaintiff is no longer allowed to exclude contraception and abortifacients from
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Case 1:13-cv-01202-RJJ Doc #17 Filed 01/27/14 Page 27 of 39 Page ID#157
its insurance plans, and are now involuntarily forced to provide and pay for these services that violate its religious beliefs and right of free speech. 112. Plaintiff intends to conduct its mission in a manner that does not violate the principles of its religious beliefs and free speech. 113. Complying with the Mandate requires a direct violation of the Plaintiff’s religious beliefs and free speech, because it requires Plaintiff to pay for and assist others in paying for or obtaining abortion, because certain drugs and devices such as intrauterine devices (“IUD”), “ella” and possibly “Plan B” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods”, which is included in the BCBS health care plan as “FDA-approved generic prescription contraceptive medication” and “FDAapproved brand name prescription contraceptive medication,” despite their known abortifacient mechanisms of action. 114. Defendants’ refusal to accommodate the conscience of the Plaintiff, and of other Americans who share the Plaintiff’s religious principles and free speech, is highly selective. Numerous exemptions exist in the Affordable Care Act that appear arbitrary and inexplicably were granted to employers who purchase group insurance. This is evidence that Defendants do not mandate that all insurance plans need to cover “preventative services” (e.g. the thousands of waivers from the Affordable Care Act issued by Defendants for group insurance based upon the commercial convenience of large corporations, the age of the insurance plan, or the size of the employer).
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115. Despite granting waivers inexplicably and upon a seemingly arbitrary basis, no exemption exists for an employer or individual whose religious conscience instructs him that certain mandated services are unethical, immoral, fundamentally unjust and violative to one’s religious dogmas and free speech. Defendants’ plan fails to give the same level of weight or accommodation to the exercise of one’s fundamental First Amendment freedoms that it assigns to the yearly earnings of a corporation.
116. The Defendants’ blatantly unconstitutional actions violate Plaintiff’s absolute right to freely exercise its conscience and motivating religious principles under the First Amendment to the U.S. Constitution, which states pertinently: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”
117. The Defendants’ actions violate Plaintiff’s right to exercise its conscience and motivating religious principles that civil rights statutes, such as Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb to 42 U.S.C. § 2000bb-4, secure with unmistakable clarity.
118. The Defendants’ actions also violate Plaintiff’s right to free and unforced speech that the First Amendment to the United States Constitution guarantees in absolute language when it states: “Congress shall make no law...abridging the freedom of speech...”
119. The Mandate is illegal because Defendants imposed it without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
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120. Had Plaintiff’s religious beliefs, or the beliefs of the millions of other Americans who share Plaintiff’s religious beliefs been obscure or unknown, the Defendants’ actions might have been an accident. But because the Defendants acted with full knowledge of those beliefs, 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 Defendants’ intentional and deliberate attack on the Judeo-Christian faith tradition, the religious beliefs and free speech rights that Plaintiff holds. The Defendants have, in sum, intentionally used the federal government’s coercive power to compel individuals to support and endorse the mandated services manifestly contrary to their own religious convictions and rights of free speech, and then to act on that coerced support or endorsement. Such coercion is tantamount to a form religious persecution against which these United States were founded.
121. Plaintiff seeks declaratory relief to protect against these attacks. CLAIMS
COUNT I. Violation of the First Amendment to the United States Constitution Free Exercise Clause
122. Plaintiff incorporates by reference paragraph 1 through 121 into Count I as though set forth completely within.
123. Plaintiff’s sincerely held religious beliefs prohibit it from providing coverage for abortifacients and abortion, or related education and counseling. Plaintiff’s compliance with these beliefs is a religious exercise.
124. Neither the Affordable Care Act nor the Mandate is neutral.
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Case 1:13-cv-01202-RJJ Doc #17 Filed 01/27/14 Page 30 of 39 Page ID#160
125. Neither the Affordable Care Act nor the Mandate is generally applicable. 126. Defendants have created categorical exemptions and individualized
exemptions to the Mandate. 127. The Mandate furthers no compelling governmental interest. 128. The Mandate is not the least restrictive means of furthering Defendants’
stated interests. 129. The Mandate creates government-imposed coercive pressure on Plaintiff
to change or violate their religious beliefs. 130. The Mandate chills Plaintiff’s religious exercise. 131. The Mandate exposes Plaintiff to substantial competitive disadvantages,
in that it will no longer be permitted to offer health insurance. 132. The Mandate exposes Plaintiff to substantial fines for their religious
exercise. 133. 190. The Mandate exposes Plaintiff to monetary and health risks as they
will no longer be able to accept health insurance, nor be able to purchase or provide health care insurance without violating their religious beliefs. 134. The Mandate imposes a substantial burden on Plaintiff’s religious exercise. 135. The Mandate is not narrowly tailored to any compelling governmental interest. 136. The Mandate and Defendants’ threatened enforcement of the Mandate violate Plaintiff’s rights secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
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137. Absent declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed. COUNT II. Violation of the First Amendment to the United States Constitution Free Exercise Clause
138. Plaintiff incorporates by reference paragraph 1 through 137 into Count II as though set forth completely within.
139. Plaintiff’s sincerely held religious beliefs prohibit them from purchasing or providing coverage for abortifacients, abortion, or related education and counseling.
140. Plaintiff’s compliance with these beliefs is a religious exercise. 141. Despite being informed in detail of these beliefs beforehand, Defendants
designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiff to comply with its religious beliefs. 142. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of Plaintiff and others. 143. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiff’s rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution. 144. Absent declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
COUNT III. Violation of the First Amendment to the United States Constitution Free Exercise Clause
145. Plaintiff incorporates by reference paragraph 1 through 144 into Count III as though set forth completely within.
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Case 1:13-cv-01202-RJJ Doc #17 Filed 01/27/14 Page 32 of 39 Page ID#162
146. By design, Defendants imposed the Mandate on some religious organizations or religious individuals but not on others, resulting in discrimination among religions.
147. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.”
148. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no religious individuals.
149. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Plaintiff’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
150. Absent declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed. COUNT IV. Violation of the First Amendment to the United States Constitution Establishment Clause
151. Plaintiff incorporates by reference paragraph 1 through 150 into Count IV as though set forth completely within.
152. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on Plaintiff.
153. Defendants also imposed the Mandate on some religious individuals and religious organizations but not on others, resulting in a selective burden on Plaintiff.
154. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of
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Case 1:13-cv-01202-RJJ Doc #17 Filed 01/27/14 Page 33 of 39 Page ID#163
“religious employers.” 155. The Mandate also vests HRSA with unbridled discretion in deciding
whether to allow exemptions to some, all, or no individuals. 156. The Mandate and Defendants’ threatened enforcement of the Mandate
therefore violates Plaintiff’s rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution. 157. Absent declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
COUNT V. Violation of the First Amendment to the United States Constitution Freedom of Speech
158. Plaintiff incorporates by reference paragraph 1 through 157 into Count V as though set forth completely within.
159. Plaintiff professes, educates, lectures, and engages in outreach amongst the community that abortion, and abortifacients violate their faith-informed, religious beliefs.
160. In fact, Plaintiff’s raison d’etre exclusively focuses on the human and civil right to life, as explicated in the religions, as stated above, raised in religious documents quoted above, and clearly stated in The Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life...”
161. The Mandate would compel Plaintiff to provide or subsidize activities that it professes, educates, lectures, and engages in outreach amongst the community are violations of the Plaintiff’s religious beliefs and constitutionally
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protected free speech, and would amount to coerced speech. 162. The Mandate would compel Plaintiff to fund and to provide education and
counseling related to abortion and abortifacients, another example of coerced speech. 163. Defendants’ actions thus violate Plaintiff’s right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 164. Defendants’ actions violate and contradict their own government’s approval of Plaintiff’s exclusive mission when granting Section 501(c)(4) taxexempt status in May 1986. 165. At this point, there is no other religious, nonsectarian, non-profit organization with the exclusive mission dedicated to the human and civil right to life from moment of conception to the moment of natural death that has challenged the Mandate, or filed suit to nullify it. 166. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest. 167. Absent declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
COUNT VI. Violation of the First Amendment to the United States Constitution Expressive Association
168. Plaintiff incorporates by reference paragraph 1 through 167 into Count VI as though set forth completely within.
169. Plaintiff professes, educates, and engages in outreach amongst the community that abortion and abortifacients violate their religious beliefs.
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170. The Mandate would compel Plaintiff to subsidize activities that Plaintiff profess, educate, and engage in outreach in the community are violations of Plaintiff’s religious beliefs and constitutionally protected right of free expression.
171. The Mandate would compel Plaintiff to fund and to provide education and counseling related to abortion and abortifacients.
172. Defendants’ actions thus violate Plaintiff’s right of expressive association as secured to it by the First Amendment of the United States Constitution.
173. Absent declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed. COUNT VII. Violation of the Religious Freedom Restoration Act
174. Plaintiff incorporates by reference paragraph 1 through 173 into Count VII as though set forth completely within.
175. Plaintiff’s sincerely held religious beliefs prohibit it from providing or purchasing coverage for abortion, abortifacients, or related education and counseling.
176. Plaintiff’s compliance with these beliefs is a religious exercise. 177. The Mandate creates government-imposed coercive pressure on Plaintiff’s
to change or violate their religious beliefs. 178. The Mandate chills Plaintiff’s religious exercise. 179. The Mandate exposes Plaintiff to substantial fines for their religious
exercise. 180. The Mandate exposes Plaintiff to substantial competitive disadvantages,
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in that it will no longer be permitted to offer or purchase health insurance. 181. The Mandate imposes a substantial burden on Plaintiff’s religious exercise. 182. The Mandate furthers no compelling governmental interest. 183. The Mandate is not narrowly tailored to any compelling governmental
interest. 184. The Mandate is not the least restrictive means of furthering Defendants’
stated interests. 185. The Mandate and Defendants’ threatened enforcement of the Mandate
violate Plaintiff’s rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 186. Absent declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
COUNT VIII. Violation of the Administrative Procedure Act 187. Plaintiff incorporates by reference paragraph 1 through 186 into Count VIII
as though set forth completely within. 188. Defendants’ stated reasons that public comments were unnecessary,
impractical, and opposed to the public interest are false and insufficient, and do not constitute “good cause.” 189. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful “consideration of the relevant matter presented.” 190. Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule.
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191. Therefore, Defendants have taken agency action without observing procedures required by law, and Plaintiff is entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
192. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Plaintiff and similar organizations, companies, and individuals.
193. Defendants’ explanation for its decision not to exempt organizations similar to Plaintiff from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
194. Therefore, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them.
195. The Mandate requires issuers, employers, and individuals, including Plaintiff, to purchase coverage of all Federal Drug Administration-approved contraceptives. Some of these FDA-approved contraceptives cause abortions, as stated above in this Verified Complaint.
196. As set forth above, the Mandate violates RFRA and the First Amendment to the United States Constitution.
197. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in the Administrative Procedure Act.
198. The Mandate is contrary to the provisions of the Affordable Care Act. 199. Section 1303(a)(1)(A)(i) of the Affordable Care Act states that “nothing in
37

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this title”—i.e., title I of the Act, which includes the provision dealing with “preventive services”— “shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 200. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services. 201. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only “the issuer” does. 202. However, the Mandate requires all issuers, including Plaintiff and Plaintiff’s insurance issuer Blue Cross/Blue Shield of Michigan, to provide coverage of all Federal Drug Administration-approved contraceptives. 203. Some FDA-approved contraceptives cause abortions, such as those described above in this Verified Complaint. 204. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and violates the Administrative Procedure Act. 205. Absent declaratory relief against the Mandate, Plaintiff has been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Plaintiff requests that this Court:
A. Declare that the Mandate and Defendants’ enforcement of the Mandate against Plaintiff violates the First Amendment to the United States Constitution;
B. Declare that the Mandate and Defendants’ enforcement of the Mandate
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against Plaintiff violates the Religious Freedom Restoration Act; C. Declare that the Mandate was issued in violation of the Administrative
Procedure Act; D. Declare that Plaintiff is no longer required to obey the Mandate; E. Award Plaintiff the costs of this action and reasonable attorney’s fees; and F. Award such other and further relief as it deems equitable and just.
Respectfully submitted by,

Dated: January 27, 2014

________________________________ Rizik & Rizik By: Michael B. Rizik Jr. (P33431) Attorney for Plaintiff 9400 South Saginaw Street, Ste E Grand Blanc, MI 48439 Phone: 810-953-6000 Fax: 810-953-6005 Cell: 810-610-2673 Email: lawyers@riziklaw.com

39

 
 Case 1:13-cv-01202-RJJ Doc #23 Filed 02/10/14 Page 1 of 4 Page ID#352

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

____________________________________

)

RIGHT TO LIFE OF MICHIGAN,

)

)

Plaintiff,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

Case No. 1:13-cv-1202

DEFENDANTS’ UNOPPOSED MOTION TO STAY PROCEEDINGS

Defendants respectfully move to stay all further proceedings in this case pending the

Sixth Circuit’s ruling in The Catholic Diocese of Nashville, et al., v. Sebelius, No. 13-6640 (6th

Cir.), and Michigan Catholic Conference v. Sebelius, No. 13-2723 (6th Cir.), consolidated cases

that raise legal issues that are substantially similar to those presented in this case. The

undersigned spoke with counsel for plaintiff regarding this motion, and he advised that plaintiff

does not oppose a stay.

“[T]he power to stay proceedings is incidental to the power inherent in every court to

control the disposition of the causes of its docket with economy of time and effort for itself, for

counsel, and for litigants. How this can best be done calls for the exercise of judgment, which

must weigh competing interests and maintain an even balance.” Landis v. N. Am. Co., 299 U.S.

248, 254-55 (1936). Plaintiff here challenges regulations issued in July 2013 that establish

accommodations for non-profit religious organizations that object on r eligious grounds to

providing health coverage for Food and Drug Administration-approved contraceptive methods,

sterilization procedures, and patient education and counseling for women with reproductive

1

Case 1:13-cv-01202-RJJ Doc #23 Filed 02/10/14 Page 2 of 4 Page ID#353
capacity. There are two appeals currently pending in the 6th Circuit that challenge the same accommodations. See Catholic Diocese of Nashville, No. 13-6640; Michigan Catholic Conference, No. 13-2723. In those consolidated appeals, the Sixth Circuit will be addressing legal issues that are substantially similar to those presented here, involving facts that are analogous to those in this case, and raising claims that are also largely indistinguishable from those in this case. Therefore, the Sixth Circuit’s ruling likely will have a significant effect on any further proceedings in this case, and the Court and the parties will likely benefit from the D.C. Circuit’s views.
If this case is not stayed, defendants will file a motion to dismiss or, in the alternative, for summary judgment. That motion would raise many of the same legal issues that are likely to be addressed by the Sixth Circuit. It would be highly inefficient to spend the resources and time of the parties and this Court for litigation to proceed on these issues simultaneously in both courts. See Ass’n of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 2d 1081, 1094 (E.D. Cal. 2008) (“[T]he district court has broad discretion to decide whether a stay is appropriate to promote economy of time and effort for itself, for counsel, and for litigants.”).
The requested stay, moreover, will not prejudice plaintiff. Plaintiff chose not to seek an accommodation and purchased a healthcare plan for its employees that complies with the contraceptive coverage requirement for a plan year beginning on January 1, 2014. Compl. ¶ 84. The Sixth Circuit has set a b riefing schedule in Catholic Diocese of Nashville and Michigan Catholic Conference under which briefing will be completed by February 21, 2014. Thus, it is likely the D.C. Circuit will issue its ruling before plaintiff’s current healthcare plan ends on December 31, 2014.
2

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For these reasons, defendants ask this Court to stay all proceedings in this case pending resolution of the consolidated appeals in Catholic Diocese of Nashville and Michigan Catholic Conference.1
Respectfully submitted this 10th day of February, 2014, STUART F. DELERY Assistant Attorney General PATRICK MILES, JR. United States Attorney JENNIFER RICKETTS Director SHEILA M. LIEBER Deputy Director /s/ Julie S. Saltman JULIE S. SALTMAN (DC Bar 975015) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 7111 Washington, DC 20530 Tel: (202) 532-4252 Fax: (202) 616-8470 Email: julie.saltman@usdoj.gov Attorneys for Defendants
1 Defendants’ response to the complaint is currently due on February 10, 2014. If the Court decides to deny this unopposed motion for a stay, defendants respectfully request that the Court grant them an extension of time to respond to the complaint until 14 days after the Court rules on this stay motion.
3

Case 1:13-cv-01202-RJJ Doc #23 Filed 02/10/14 Page 4 of 4 Page ID#355 CERTIFICATE OF SERVICE
I hereby certify that on February 10, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Julie S. Saltman JULIE S. SALTMAN
4

 
 Case 1:13-cv-01202-RJJ ECF No. 45 filed 05/21/15 PageID.449 Page 1 of 37

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

__________________________________________

)

RIGHT TO LIFE OF MICHIGAN,

)

)

Plaintiff,

)

)

No. 1:13-cv-1202

v.

)

)

SYLVIA M. BURWELL, et al.,

)

)

Defendants.

)

__________________________________________)

DEFENDANTS’ MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Case 1:13-cv-01202-RJJ ECF No. 45 filed 05/21/15 PageID.450 Page 2 of 37
INTRODUCTION The Affordable Care Act established additional minimum standards for group health plans, including coverage of certain preventive health services for women without cost-sharing. Regulations implementing this provision generally require group health plans to include coverage of contraceptive services as prescribed by a health care provider. The regulations contain accommodations, however, for plans established by non-profit organizations that hold themselves out as religious and that have a religious objection to providing contraceptive coverage. Such organizations may opt out of the contraceptive coverage requirement by notifying either their insurers or third-party administrators, or the Secretary of Health and Human Services (“HHS”), that they are eligible for an accommodation and are declining to provide contraceptive coverage. When an eligible organization declines to provide such coverage, the regulations generally require the insurer or third-party administrator to provide contraceptive coverage separately for the affected women, at no cost to the eligible organization. Plaintiff Right to Life of Michigan concedes that it is eligible for an accommodation. Plaintiff nevertheless claims that the regulations violate its rights under the Religious Freedom Restoration Act (“RFRA”). The implications of plaintiff’s argument are sweeping. It is one thing to urge that the government may not impose a requirement to provide contraceptive coverage on a religious organization that objects on religious grounds. It is quite another thing to urge that the government may not ensure that women have access to separate coverage through third parties after such an organization exercises its option not to provide such coverage. That latter argument, if accepted, would make access to contraceptive coverage for the female employees of eligible organizations dependent on the religious beliefs of their employers. Plaintiff’s theory—that it “triggers” the provision of coverage by opting out—is fundamentally mistaken. A number of courts, including the only courts of appeals to have
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addressed the merits of claims like plaintiff’s, have rejected them. See Geneva Coll. v. Secretary,
U.S. Dep’t of Health & Human Servs., 778 F.3d 422 (3d Cir. 2015), reh’g en banc denied, Nos.
14-1376, 14-1377 (Apr. 6, 2015), Nos. 13-3536, 14-1374 (Apr. 13, 2015)1; Priests For Life v.
U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014), petition for reh’g en banc
filed, Nos. 13-5368, 13-5371, 14-5021 (Dec. 26, 2014); see also Michigan Catholic Conference
v. Burwell (“Michigan Catholic Conf. II”), 755 F.3d 372 (6th Cir. 2014), vacated, No. 14-701,
2015 WL 1879768 (S. Ct. Apr. 27, 2015) 2; University of Notre Dame v. Sebelius (“Notre Dame
III”), No. 13-3853 (7th Cir. 2015) (Attachment 1).3
The infirmity of plaintiff’s position is further underscored by the Supreme Court’s recent
decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). The Supreme Court in
that case held that the contraceptive coverage requirement violated RFRA with respect to closely
held for-profit corporations that, unlike plaintiff, could not opt out of the requirement. The
existence of the opt-out regulations that plaintiff challenges here was crucial to the Court’s
1 In two of the Third Circuit cases, Circuit Justice Alito entered an administrative stay of the mandate, pending further decision on a motion to stay the mandate. Zubik v. Burwell, No. 14A1065 (S. Ct.). This prompted the Third Circuit to recall and stay the mandate in the third case pending the Supreme Court’s further action in Zubik. See No. 13-3536 (3d Cir.) (order of May 6, 2015).
2 In Michigan Catholic Conference and Notre Dame, the Supreme Court granted petitions for writs of certiorari, vacated the decisions below, and remanded (GVR) for further consideration in light of the subsequent decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). “A GVR makes no decision as to the merits of a case,” Diaz v. Stephens, 731 F.3d 370, 378 (5th Cir. 2013), and “does not indicate, nor even suggest, that the lower court’s decision was erroneous.” Communities for Equity v. Michigan High Sch. Athletic Ass’n, 459 F.3d 676, 680 (6th Cir. 2006); accord, e.g., Gonzalez v. Justices of Mun. Court of Boston, 420 F.3d 5, 7-8 (1st Cir. 2005). Rather, a GVR “promotes fairness and respects the dignity of the Court of Appeals by enabling it to consider potentially relevant decisions and arguments that were not previously before it.” Stutson v. United States, 516 U.S. 193, 197 (1996). On May 19, 2015, the Seventh Circuit again affirmed the district court’s denial of a preliminary injunction on remand in Notre Dame III, No 13-3853 (7th Cir. 2015).
3 See also, e.g., Eternal World Television Network, Inc. v. Burwell (“EWTN”), 26 F. Supp. 2d 1228,1232-36 (S.D. Ala. 2014), injunction pending appeal granted, No. 14-12696 (11th Cir., June 30, 2014); Diocese of Cheyenne v. Sebelius, 21 F. Supp. 2d 1215, 1221-27 (D. Wyo. 2014), injunction pending appeal granted, No. 14-8040 (10th Cir., June 30, 2014); Mich. Catholic Conf. v. Sebelius (“Mich. Catholic Conf. I”), 989 F. Supp. 2d 577, 584-88 (W.D. Mich. 2013), and Catholic Diocese of Nashville v. Sebelius, No. 3:13-cv-1303, 2013 WL 6834375, at *4-5 (M.D. Tenn., Dec. 26, 2013), aff’d sub nom. Mich. Catholic Conf. II, 755 F.3d 372 (6th Cir. 2014); Univ. of Notre Dame v. Sebelius (“Notre Dame I”), 988 F. Supp. 2d 912, 920-27 (N.D. Ind. 2013), aff’d, 743 F.3d 547 (7th Cir. 2014); Priests for Life v. HHS, 7 F. Supp. 2d 88, 98-104 (D.D.C. 2013), aff’d, 772 F.3d 229 (D.C. Cir. 2014).
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reasoning. The Court observed that the opt-out regulations “effectively exempt[]” organizations that are eligible for an accommodation. Id. at 2763. The Court expressly stated that the regulations “seek[] to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” Id. at 2759.
The Supreme Court concluded that the opt-out regulations demonstrated that HHS “ha[d] at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.” Id. at 2782. The Court reasoned that the accommodations allowed under the regulations “serve[] HHS’s stated interests equally well” because “female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to ‘face minimal logistical and administrative obstacles’” in obtaining the coverage. Id. at 2782 (citation omitted). Indeed, “[t]he effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.” 134 S. Ct. at 2760 (emphasis added); see also id. at 2759 (explaining that the accommodation “ensur[es] that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage”).
On August 22, 2014, the Departments augmented the regulatory accommodation process in light of the Supreme Court’s interim order in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). See Coverage of Certain Preventive Services Under the Affordable Care Act, 79 Fed. Reg. 51,092 (Aug. 27, 2014) (interim final regulations). In its Wheaton College order, the
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Supreme Court identified an alternative form of accommodation that would neither affect “the ability of [Wheaton College’s] employees and students to obtain, without cost, the full range of FDA approved contraceptives,” nor preclude the government from relying on the notice it receives from Wheaton College “to facilitate the provision of full contraceptive coverage under the [Affordable Care] Act.” 134 S. Ct. at 2807. The accommodation, as originally challenged in Wheaton College and in this case, contemplated that an eligible organization would notify its insurer or third-party administrator of its decision to opt out. Under the interim final regulations, an organization may also opt out by notifying HHS directly of its decision rather than by notifying its insurance issuer or third-party administrator. 79 Fed. Reg. at 51,094-95. This provides eligible organizations like plaintiff with an alternative mechanism for opting out of the contraceptive coverage requirement.
Because plaintiff is eligible for the accommodations, it is—in the words of the Supreme Court—“effectively exempt[]” from the contraceptive coverage requirement. Hobby Lobby, 134 S. Ct. at 2763. Plaintiff’s argument goes beyond its own exemption from providing contraceptive coverage and would preclude the government from independently ensuring that plaintiff’s employees have the “same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” Id. at 2759. That argument lacks support in precedent and contradicts the reasoning of Hobby Lobby.
Plaintiff’s First Amendment claims are likewise meritless. Similar challenges to the regulations have been rejected by nearly every court to have considered them, including the Sixth Circuit. See, e.g., Mich. Catholic Conf. II, 755 F.3d at 393-96. Plaintiff’s Administrative Procedure Act (“APA”) claims similarly fail.
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BACKGROUND I. Statutory and Regulatory Background
Congress has long regulated employer-sponsored group health plans. In 2010, the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119, established certain additional minimum standards for group health plans as well as health insurance issuers that offer coverage in the group and individual health insurance markets. The ACA requires nongrandfathered group health plans, and health insurance issuers offering non-grandfathered health insurance coverage, to cover four categories of recommended preventive-health services without cost-sharing—that is, without requiring plan participants and beneficiaries to make copayments or pay deductibles or coinsurance. 42 U.S.C. § 300gg-13. As relevant here, these services include preventive care and screenings for women as provided for in comprehensive guidelines supported by the Health Resources and Services Administration (“HRSA,” a component of HHS). Id. § 300gg-13(a)(4).
HHS requested the assistance of the Institute of Medicine (“IOM”) in developing such comprehensive guidelines for coverage of preventive services for women. 77 Fed. Reg. 8,725, 8,726 (Feb. 15, 2012). Experts, “including specialists in disease prevention, women’s health issues, adolescent health issues, and evidence-based guidelines,” developed a list of services “shown to improve well-being, and/or decrease the likelihood or delay the onset of a targeted disease or condition.” See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (IOM REP.) 2-3 (2011). These include the “full range” of “contraceptive methods” approved by the Food and Drug Administration (“FDA”), id. at 10, which the IOM found can greatly decrease the risk of unwanted pregnancies, adverse pregnancy outcomes, and other adverse health consequences, and vastly reduce medical expenses for women, see id. at
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102-10.4 FDA approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and ella), and intrauterine devices (“IUDs”). See id. at 105.
Consistent with those recommendations, the HRSA Guidelines include coverage of “‘all [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,’ as prescribed” by a health care provider. 77 Fed. Reg. at 8,725 (quoting HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines, AR at 283-84 (“HRSA Guidelines”)). The relevant regulations adopted by the three Departments implementing this portion of the ACA (HHS, Labor, and Treasury) require coverage of, among other preventive services, the contraceptive services recommended in the HRSA Guidelines. 45 C.F.R. § 147.130(a)(1)(iv) (HHS); 29 C.F.R. § 2590.7152713(a)(1)(iv) (Labor); 26 C.F.R. § 54.9815-2713(a)(1)(iv) (Treasury).
The implementing regulations authorize an exemption from the contraceptive coverage requirement for the group health plan of a “religious employer.” 45 C.F.R. § 147.131(a). A religious employer is defined as a non-profit organization described in the Internal Revenue Code provision that refers to churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order. Id. (cross-referencing 26 U.S.C. § 6033(a)(3)(A)(i) and (iii)).
When the initial final regulations were issued, the Departments announced, in response to religious objections raised by some commenters, that they would develop “‘changes to these final regulations that would meet two goals’—providing contraceptive coverage without costsharing to covered individuals and accommodating the religious objections of [additional] non-
4 The IOM, which was established by the National Academy of Sciences in 1970, is funded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv.
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profit organizations.” Wheaton Coll. v. Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012) (per curiam) (quoting 77 Fed. Reg. at 8,727).
After notice and comment rulemaking, the Departments published the regulations that plaintiff challenges in its complaint. 78 Fed. Reg. 39,869 (July 2, 2013) (“the 2013 final rules”). The 2013 final rules maintain the exemption for “religious employers,” 45 C.F.R. § 147.131(a), and also provide accommodations for additional nonprofit religious organizations, id. § 147.131(b). The accommodations are available to group health plans established or maintained by “eligible organizations” (and group health insurance coverage provided in connection with such plans). Id. An “eligible organization” is an organization that satisfies the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation . . . applies. 45 C.F.R. § 147.131(b); see 78 Fed. Reg. at 39,874-75. An eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. Id. at 39,874. Under the 2013 final rules, to be relieved of any such obligations, the organization need only “self-certify” that it is an eligible organization that “opposes providing coverage for particular contraceptive services” and provide a copy of that self-certification to its insurance issuer or third-party administrator (“TPA”). Hobby Lobby, 134 S. Ct. at 2782; see 78 Fed. Reg. at 39,878-79; 29 C.F.R. § 2590.715-2713A(a)(4), (b)(1), (c)(1).
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If an eligible organization opts out, individuals covered under its plan generally will “still have access to insurance coverage without cost-sharing for all FDA-approved contraceptives,” but without involvement by the objecting organization. Hobby Lobby, 134 S. Ct. at 2759; see 78 Fed. Reg. at 39,847. Where, as here, the eligible organization is one that offers an insured plan, the insurance issuer—in this case, Blue Cross/Blue Shield of Michigan—is required to “provide separate payments for contraceptive services for plan participants without imposing any costsharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries.” Hobby Lobby, 134 S. Ct. at 2763; see 45 C.F.R. § 147.131(c)(2); Pl.’s Am. Compl. at ¶ 79.5 Indeed, the accommodations are what enable eligible organizations’ issuers to comply with their independent legal obligation to cover contraceptive services. See id. § 147.131(c)(2)(i) (cross-referencing 45 C.F.R. § 147.130(a)(1)(iv)); 78 Fed. Reg. at 39,876. The issuer must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the . . . plan,” 45 C.F.R. § 147.131(c)(2)(i)(A), and “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services,” id. § 147.131(c)(2)(ii). The issuer must “not impose . . . any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization[ or] the group health plan.” Id.6
5 Where the eligible organization is one that offers a self-insured plan, its TPA ordinarily “must ‘provide or arrange payments for contraceptive services’ for the organization’s employees without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries.” Hobby Lobby, 134 S. Ct. at 2763 n.8 (quoting 78 Fed. Reg. at 39,893); see 29 C.F.R. § 2590.715-2713A(b)(2). Any costs incurred by the TPA will be reimbursed through an adjustment to Federally-facilitated Exchange user fees. 78 Fed. Reg. at 39,880. Because plaintiff has an insured group health plan, Pl.’s Compl. ¶ 79, no claims involving self-insured plans or TPAs are before this Court. 6 Plaintiff is therefore incorrect when it states that were it to avail itself of an accommodation it would “still pay for” coverage of contraceptives. Pl.’s Compl. at 46. (citing 78 Fed. Reg. at 39,877). As explained above, the regulations specifically prohibit plaintiff’s issuer from charging any premium or otherwise passing on any costs to plaintiff with respect to the issuer’s payments for contraceptive services. 45 C.F.R. § 147.131(c)(2)(ii).
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In addition, the Departments have augmented the regulatory accommodation process in light of the Supreme Court’s interim order in connection with an application for an injunction in Wheaton College. The interim order provided that, “[i]f [Wheaton College] informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the [Departments] are enjoined from enforcing against” Wheaton College provisions of the ACA and related regulations “pending final disposition of appellate review.” Wheaton Coll., 134 S. Ct. at 2807. The order stated that this relief neither affected “the ability of [Wheaton College’s] employees and students to obtain, without cost, the full range of FDA approved contraceptives,” nor precluded the government from relying on the notice it receives from Wheaton College “to facilitate the provision of full contraceptive coverage under the Act.” Id.
The Wheaton College injunction does not reflect a final Supreme Court determination that RFRA requires the government to apply the accommodations in this manner. Nevertheless, the Departments issued regulations that augment the accommodation process in light of Wheaton College by “provid[ing] an alternative process for the sponsor of a group health plan or an institution of higher education to provide notice of its religious objection to coverage of all or a subset of contraceptive services.” 79 Fed. Reg. at 51,094. Under the interim final regulations, an organization may opt out by notifying HHS of its decision directly rather than by notifying its insurance issuer or TPA. An organization need not use any particular form and need only indicate the basis on which it qualifies for an accommodation and its objection to providing some or all contraceptive services, as well as the type of plan and contact information for the plan’s issuer. 45 C.F.R. § 147.131(c)(1)(ii).
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If a group health plan notifies HHS that it is opting out, the Departments will then make the necessary communications to ensure that health insurance issuers or TPAs make or arrange separate payments for contraception. In the case of an “insured” group health plan, such as plaintiff’s, HHS “will send a separate notification to each of the plan’s health insurance issuers informing the issuer” that HHS “has received a notice” that the group health plan is opting out of providing contraceptive coverage on religious grounds “and describing the obligations of the issuer” under the regulations. Id. An issuer that receives such a notice from HHS will “remain responsible for compliance with the statutory and regulatory requirement to provide coverage for contraceptive services to participants and beneficiaries,” but the objecting organization “will not have to contract, arrange, pay, or refer for such coverage.” 79 Fed. Reg. at 51,095.
In all cases, the eligible organization that opts out of providing contraceptive coverage has no obligation to inform plan participants or enrollees of the availability of these separate payments made by third parties. Instead, the health insurance issuer provides this notice, and does so “separate from” materials that are distributed in connection with the eligible organization’s group health coverage. 45 C.F.R. § 147.131(d). That notice must make clear that the eligible organization is neither administering nor funding the contraceptive benefits. Id.
II. Nature and Stage of the Proceeding Plaintiff filed suit on November 4, 2013, ECF No. 1, and amended its complaint on
January 27, 2014, challenging the contraceptive coverage regulations under the Free Exercise Clause (Counts I, II, and III), Establishment Clause (Count IV), and Free Speech Clause (Counts V, VI) of the First Amendment of the United States Constitution; the Religious Freedom Restoration Act (Count VII); and the Administrative Procedure Act (Count VIII). The case was stayed pending the Sixth Circuit’s decision in Michigan Catholic Conference II. See Order
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Granting Motion To Stay, ECF No. 25. On February 17, 2015, the Court lifted the stay and set a briefing schedule for dispositive motions.7 See Order Lifting Stay and Setting Briefing Sechedule, ECF No. 38. In lieu of a motion for summary judgment, plaintiff filed a motion for declaratory relief (“Pl.’s Mot.”) on May 13, 2015.8 ECF No. 42.
STANDARD OF REVIEW Defendants move to dismiss plaintiff’s Amended Complaint in its entirety for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). Under this Rule, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To the extent that the Court must consider the administrative record in addition to the allegations in plaintiff’s Amended Complaint, defendants move, in the alternative, for summary judgment pursuant to Rule 56. Defendants are entitled to summary judgment where the administrative record demonstrates that they are “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
ARGUMENT I. The Opt-Out Regulations Do Not Violate RFRA
A. The Supreme Court’s Decision in Hobby Lobby and Order in Wheaton College Confirm the Validity of the Accommodations
7 Defendants will file the administrative record on or before May 22, 2105. 8 Plaintiff’s counsel confirmed plaintiff’s intention not to file an additional summary judgment motion. Defendants will therefore respond to plaintiff’s motion for declaratory judgment on June 22, 2015, in accordance with this Court’s order. April 29, 2015 Order, ECF No. 41.
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The Affordable Care Act generally requires group health plans to cover recommended women’s preventive health services without cost sharing. Under the regulations implementing that requirement, group health plans generally must cover FDA-approved contraceptives as prescribed by a health care provider without cost sharing. The regulations automatically exempt from the contraceptive coverage requirement all religious employers as defined by reference to a provision of the Internal Revenue Code, and also provide accommodations for non-profit religious organizations that meet criteria set forth in the regulations such that they also are relieved of the requirement to provide contraceptive coverage.
To opt out of the contraceptive coverage requirement, an organization need only provide to its insurance issuer or TPA a copy of a form stating that it is an eligible organization, see 78 Fed. Reg. 39,870, 39,874-39,875 (July 2, 2013); see also, e.g., 29 C.F.R. § 2590.7152713A(a)(4), (b)(1), (c)(1), or notify HHS of its objection, the plan name and type, and the name and contact information of the insurance issuer(s) or TPA(s), see, e.g., 29 C.F.R. § 2590.7152713A(b)(1)(ii)(B), (c)(1)(ii).
If an eligible organization declines to provide contraceptive coverage, the regulations generally require the insurance issuer or third party administrator to make or arrange separate payments for contraceptive services for the plan participants and beneficiaries. See, e.g., 29 C.F.R. § 2590.715-2713A(c). The regulations bar the insurance issuer or third party administrator from charging the eligible organization, directly or indirectly, with respect to payments for contraceptive services. See 45 C.F.R. § 147.131(c)(2)(ii) (insured plans) (“With respect to payments for contraceptive services, the issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the
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group health plan, or plan participants or beneficiaries.”); 29 C.F.R. § 2590.715-2713A(b)(2)(i), (ii) (same for self-insured plans).
The insurance issuer or third party administrator—not the eligible organization—must notify plan participants and beneficiaries of the availability of separate payments for contraceptive services, and “[t]he notice must specify that the [organization] does not administer or fund contraceptive benefits, but that the issuer provides separate payments for contraceptive services[.]” 45 C.F.R. § 147.131(d) (insured plans); accord 29 C.F.R. § 2590.715-2713A(d) (same for self-insured plans).
Plaintiff here is eligible to opt out of the contraceptive coverage requirement. Plaintiff urges, however, that it is insufficient that plaintiff is free to decline to provide contraceptive coverage, and that the government may not require third parties to provide the coverage that plaintiff declines to provide itself.
The Supreme Court’s decision in Hobby Lobby confirms the validity of the regulatory accommodations, and its reasoning cannot be reconciled with plaintiff’s position here. The Supreme Court held that application of the contraceptive coverage requirement to the plaintiffs in that case—closely held companies that were not eligible for the regulatory opt-out—violated their rights under RFRA. Central to the Court’s reasoning was the existence of the opt-out alternative that the Departments afford to organizations such as the plaintiff here. As the D.C. Circuit has noted, “the opt out already available to [p]laintiff[] is precisely the alternative the Supreme Court considered in Hobby Lobby and assumed would not impinge on the for-profit corporations’ religious beliefs even as it fully served the government’s interest.” Priests For Life, 772 F.3d at 245 (citing Hobby Lobby, 134 S. Ct. at 2782).
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In Hobby Lobby, the Court explained that the opt-out regulations “effectively exempt[]” organizations that are eligible for an accommodation. 134 S. Ct. at 2763. This accommodation, the Supreme Court explained, “seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” Id. at 2759. The Court declared that this accommodation is “an alternative” that “achieves” the aim of seamlessly providing coverage of recommended health services to women “while providing greater respect for religious liberty.” Id.
The Supreme Court did not suggest that employers could (or should be entitled to) prevent their employees from obtaining contraceptive coverage from third parties through the regulatory accommodations. See Hobby Lobby, 134 S. Ct. at 2781 n.37 (“in applying RFRA ‘courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries’ ”) (quoting Cutter v. Wilkinson, 544 U.S. 709, 720 (2005)). Indeed, the Hobby Lobby majority found it necessary to emphasize in at least seven separate places that the accommodations would not interfere with the ability of female employees to access contraceptives without additional burdens. See, e.g., id. at 2759 (the accommodations “ensur[e] that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage”); id. (the “system available to religious nonprofits . . . . constitutes an alternative that achieves all of the Government’s aims”); id. at 2760 (“The effect of the HHScreated accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”); id. at 2781 n.37 (“[O]ur decision in these
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cases need not result in any detrimental effect on any third party”); id. at 2782 (the accommodations would “protect the asserted needs of women as effectively” insofar as employees “would continue to receive contraceptive coverage without cost sharing for all FDAapproved contraceptives, and they would continue to face minimal logistical and administrative obstacles because their employers’ insurers would be responsible for providing information and coverage”) (internal quotation marks and citation omitted); id. (the accommodation “serves HHS’s stated interests equally well”); id. at 2783 (the accommodations would not “ ‘[i]mped[e] women’s receipt of benefits by “requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit” ’ ”) (alterations in original, quoting dissent (in turn quoting 78 Fed. Reg. 39,870, 39,888 (July 2, 2013) (with alterations))).
Justice Kennedy’s concurrence similarly emphasized that “the means to reconcile” the “two priorities” of respecting religious freedom without “unduly restrict[ing] other persons, such as employees, in protecting their own interests, interests the law deems compelling” “are at hand in the existing accommodation.” Hobby Lobby, 134 S. Ct. at 2787 (Kennedy, J., concurring). And he confirmed that “a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees” and explained that the accommodation “works by requiring insurance companies” to provide contraceptive coverage and “equally furthers the Government’s interest.” Id. at 2786. He also made clear that the majority opinion should not be read to suggest that religious objectors need be accommodated through the adoption of a new government program. Id.
The Supreme Court’s interim order in connection with an application for an injunction in Wheaton College further underscores the validity of the alternative method of opting out promulgated in the interim final regulations. The Supreme Court’s interim order provided that
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Wheaton College could “inform[] the Secretary of Health and Human Services in writing” that it satisfied the eligibility requirements for the accommodations and made clear that the Departments could “rely[] on” this notice to “facilitate the provision of full contraceptive coverage under the Act.” Id. at 2807. Accordingly, the Court emphasized that “[n]othing in [its] interim order affects the ability of [Wheaton’s] employees and students to obtain, without cost, the full range of FDA approved contraceptives.” Id. The Supreme Court’s acknowledgment that an objector must notify the government that it is opting out, and the government may rely on that notice to compel third parties to provide coverage, is in significant tension with plaintiff’s position here—that it may state a RFRA claim by alleging that the government will rely on plaintiff’s opt-out to arrange for these third parties to provide coverage.
The Supreme Court’s interim order in Wheaton College made clear that it was not a decision on the merits and does not reflect a final determination that RFRA requires the government to apply the accommodations in this manner. 134 S. Ct. at 2807. Nevertheless, the Departments augmented the accommodations to provide an alternative means by which plaintiff may opt out of providing contraceptive coverage that, like the Supreme Court’s interim order, provides for notice to the government, rather than to the insurer or third party administrator.
B. The Challenged Accommodations, Which Allow Plaintiff To Opt Out Of Providing Contraceptive Coverage, Do Not Substantially Burden Plaintiff’s Religious Exercise Under RFRA
RFRA’s compelling interest test applies only where government action “substantially burden[s]” a person’s exercise of religion. 42 U.S.C. § 2000bb-1(a); see, e.g., Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (“only substantial burdens on the exercise of religion trigger the compelling interest requirement” (emphasis added)). Whether a burden is “substantial” under RFRA is “a question of law for the courts to decide, not a question of fact.”
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Priests for Life, 772 F.3d at 247; accord Mich. Catholic Conf. II, 755 F.3d at 385 (quoting Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011)); Notre Dame III, No. 13-3853 at p. 33 (concurrence, Hamilton J.) (“Under Roy, whether the government is causing a substantial burden on a person’s religious exercise is a question of federal law.”); Kaemmerling v. Lappin, 553 F.3d 669, 673-674, 678-679 (D.C. Cir. 2008); see also Bowen v. Roy, 476 U.S. 693, 701 n.6 (1986) (“Roy’s religious views may not accept this distinction between individual and governmental conduct,” but the law “recognize[s] such a distinction.”); Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 448 (1988) (similar).
In determining whether a law imposes a substantial burden on a plaintiff’s religious exercise under RFRA, courts must determine (1) whether the plaintiff’s religious objection to the challenged law is sincere, (2) whether the law applies significant pressure to comply, and (3) whether the challenged regulations actually require plaintiff to modify its behavior in a significant—or more than de minimis—way. See, e.g., Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004); Mich. Catholic Conf. II, 755 F.3d at 384 (citing Lyng, 485 U.S. at 449); Kaemmerling, 553 F.3d at 678 (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)). “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unimportant to the adherent’s religious scheme.” Id.
Defendants do not dispute that plaintiff’s objection to opting out of providing contraceptive coverage is based on a sincere religious belief, but do argue that the challenged regulations do not substantially burden plaintiff’s religious exercise. Indeed “[a]ccepting the sincerity of Plaintiffs’ beliefs . . . does not relieve this Court of its responsibility to evaluate the substantiality of any burden on Plaintiffs’ religious exercise.” Priests for Life, 772 F.3d at 247.
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Plaintiff does not object to informing third parties or the government that it is legally permitted to opt out of providing contraceptive coverage and chooses to do so. Plaintiff has done so in the past and would presumably continue to do so even if it obtained the injunction that it seeks. Nor would doing so impose a financial burden on plaintiff, because the regulations bar an insurance issuer from charging the eligible organization, directly or indirectly, with respect to payments for contraceptive services. See 45 C.F.R. § 147.131(c)(2)(ii). The insurance issuer must also notify plan participants and beneficiaries of the availability of separate payments for contraceptive services, and “[t]he notice must specify that the eligible organization does not administer or fund contraceptive benefits, but that the third party administrator or issuer, as applicable, provides separate payments for contraceptive services.” 45 C.F.R. § 147.131(d).
Plaintiff objects instead to the fact that after it opts out of providing contraceptive coverage, the government requires companies like BlueCross/Blue Shield of Michigan to make or arrange separate payments for contraceptive services for the plan participants and beneficiaries. But “[t]he accommodation here works in the way such mechanisms ordinarily do: the objector completes the written equivalent of raising a hand in response to the government’s query as to which religious organizations want to opt out.” Priests For Life, 772 F.3d at 250. Plaintiff is then discharged from any responsibility to provide contraceptive coverage, and the government tasks third-parties, who do not share plaintiff’s religious objections, with providing contraceptive coverage in plaintiff’s stead. Id. at 250-52.
The linchpin of plaintiff’s RFRA claim is its insistence that because out, the government will require someone else to provide coverage after plaintiff opts, the act of opting out is a “trigger” and the third party’s provision of these services is a “substantial burden” under RFRA. See Pl.’s Am. Compl. at ¶¶ 41, 181, Pl.’s Mot. at 20. But, plaintiff cannot attempt to collapse its
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decision not to provide contraceptive coverage with the government’s arrangements for others to provide such coverage in plaintiff’s stead. “Federal law, rather than any involvement by the [plaintiff] in filling out or submitting the self-certification form, creates the obligation of the insurance issuers and third-party administrators to provide coverage for contraceptive services.” Geneva Coll., 778 F.3d at 437; Priests For Life, 772 F.3d at 253 (“[T]he beneficiaries receive contraceptive coverage not because Plaintiffs have completed the self-certification or alternative notice, but because the ACA imposes an independent obligation on insurers and [third party administrators] to provide this coverage.”); Notre Dame III, No. 13-3853 at 15-16 (““It is federal law, rather than the religious organization’s signing and mailing the form, that requires healthcare insurers . . . to cover contraceptive services.”); see also Michigan Catholic Conference II, 755 F.3d at 387).
Plaintiff’s contrary argument is “extraordinary and potentially far reaching.” Priests For Life, 772 F.3d at 245. Plaintiff’s view that its opt-out can constitute a “substantial burden” under RFRA is at odds with our Nation’s long history of allowing religious objectors to opt out and the government then requiring others to fill the objectors’ shoes. See, e.g., Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716-18 (1981); cf. EEOC Compliance Manual § 12-IV.C. (Example 43) (July 22, 2008), available at http://www.eeoc.gov/policy/docs/religion.html#_Toc203359529 (explaining that reasonable accommodations of workplace religious objections can include requiring the objecting employee to transfer objectionable tasks to co-workers). Plaintiff’s reasoning “is analogous to a religious conscientious objector to a military draft claiming that the act of identifying himself as such on his Selective Service card constitutes a substantial burden because that identification would then ‘trigger’ the draft of a fellow selective service registrant in his place and thereby implicate the
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objector in facilitating war.” Priests For Life, 772 F.3d at 246. Similarly, under plaintiff’s logic, the claimant in Thomas could have demanded not only that he not make weapons but also that he not be required to opt out of doing so, because his opt-out would cause someone else to take his place on the assembly line. Plaintiff’s claim that it is substantially burdened by the opt-out procedure merely because contraceptives will be provided despite that opt-out is thus “paradoxical and virtually unprecedented.” Id. (quotation ommitted.).
In arguing that the challenged regulations impose a substantial burden under RFRA, plaintiff seeks to pretermit the pertinent legal inquiry by urging that it views the burden as significant. But while it is not for this Court to “say [whether plaintiff’s] religious beliefs are mistaken,” Hobby Lobby, 134 S. Ct. at 2779, it is the Court that determines whether the type of burden alleged is a “substantial burden” under RFRA, the type of burden that triggers RFRA’s compelling interest test. See, e.g., Priests For Life, 772 F.3d at 247 (this “is a question of law for courts to decide, not a question of fact.”); Notre Dame III, No. 13-3853 at p. 33 (concurring, Hamilton, J.); cf. Bowen v. Roy, 476 U.S. 693, 701 n.6 (1986) (“Roy’s religious views may not accept this distinction between individual and governmental conduct,” but the law “recognize[s] such a distinction.”); Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 448 (1988) (similar). In framing this Court’s inquiry into the burden at issue here, plaintiff incorrectly states that “[t]he focus is . . . on [its] religious belief.” Pl.’s Mot. at 19. But plaintiff may not “collapse[] the distinction between sincerely held belief and substantial burden.” Priests For Life, 772 F.3d at 249; see also Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (explaining that
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“[i]n addition to showing . . . a sincerely held religious belief,” plaintiffs “also b[ear] the burden of proving” that the challenged policy constitutes a substantial burden).9 As to that legal question, plaintiff’s argument hinges on its attempt to collapse its decision not to provide contraceptive coverage with the government’s arrangements for others to provide such coverage in plaintiff’s stead. As courts of appeals have repeatedly recognized, it is the government that requires or offers to pay third parties to provide contraceptive coverage if an eligible organization declines to do so.
Plaintiff does not advance its argument by noting that the government will enlist the same insurer that administers plaintiff’s health coverage to provide contraceptive coverage to plaintiff’s employees. See, e.g., Pl.’s Mot. at 20 (claiming that the “objectionable abortifacient coverage is still accessible through Plaintiff”); Pl.’s Am. Compl. at ¶ 41. Plaintiff objects not to a requirement imposed on itself but to obligations that the government imposes on third parties. It is those entities—such as BlueCross/Blue Shield of Michigan—not the plaintiff, that would provide coverage. And they would do so “separate from” materials that are distributed in connection with plaintiff’s group health coverage and would have to make clear that plaintiff is neither administering nor funding the contraceptive benefits. 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(d). See Notre Dame III, No. 13-3853 at 14-15 (“The university is permitted
9 While the initial version of RFRA applied where government action resulted in any “burden” on religious exercise, Congress added the word “substantially” “to make it clear that the compelling interest standards set forth in the act” apply “only to Government actions [that] place a substantial burden on the exercise of” religion, as contemplated by the case law leading up to Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). See 139 Cong. Rec. S14350, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy); id. (statement of Sen. Hatch). Consistent with RFRA’s restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” S. Rep. No. 111, 103d Cong., 1st Sess. 8-9 (1993); see H.R. Rep. No. 88, 103d Cong., 1st Sess. 6-7 (1993) (same); see also 146 Cong. Rec. S7774, S7776 (daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy) (explaining that, for purposes of the Religious Land Use and Institutionalized Persons Act of 2000, which was modeled on RFRA, “[t]he term ‘substantial burden’ . . . is not intended to be given any broader interpretation than the Supreme Court’s articulation of the concept of substantial burden or religious exercise”).
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to opt out of providing federally mandated contraceptive services, and the federal government determines (enlists, drafts, conscripts) substitute providers, and it is not surprising that they are the providers who already are providing health services to university students and staff.”); see also Priests For Life, 772 F.3d at 253-54 (rejecting argument that there is a substantial burden because the plans serve as a “conduit”). The fact that plaintiff has a contractual relationship with BlueCross does not strip the government of its regulatory authority over this non-party.
In sum, plaintiff’s attempt to collapse the provision of contraceptive coverage by third parties with its own decision not to provide such coverage fails. If employees of organizations that have opted out of providing contraceptive coverage nonetheless receive contraceptive coverage, they will do so “‘despite plaintiffs’ religious objections, not because of them.’” Michigan Catholic Conference, 755 F.3d at 389 (emphases added; citation omitted).
C. Plaintiff’s Reasoning Would Deprive The Government Of Reasonable Means To Advance Its Compelling Interests In Seamlessly Providing Contraceptive Coverage
Plaintiff’s claims would fail even if the accommodations were subject to RFRA’s compelling interest test. The challenged accommodations serve a number of interrelated and compelling interests, as the Supreme Court acknowledged in Hobby Lobby. And they are the least restrictive means of vindicating those interests.
1. As the Supreme Court acknowledged in Hobby Lobby, the challenged accommodations serve interrelated and compelling interests. Five members of the Court endorsed the position that providing contraceptive coverage to employees “serves the [g]overnment’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee.” Hobby Lobby, 134 S. Ct. at 2785-86 (Kennedy, J., concurring); accord id. at 2799-800 & n.23 (Ginsburg, J., dissenting).
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The remaining Justices assumed without deciding that the contraceptive coverage requirement furthers compelling interests, id. at 2780, and emphasized that, under the accommodations for eligible non-profit organizations, employees “would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to face minimal logistical and administrative obstacles because their employers’ insurers would be responsible for providing information and coverage,” id. at 2782 (citation and internal quotation marks omitted); see id. at 2760 (stressing that “[t]he effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero”); id. at 2783 (emphasizing that the accommodations would not “‘[i]mped[e] women’s receipt of benefits by “requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit”’”) (alterations in original, quoting dissent (in turn quoting 78 Fed. Reg. at 39,888 with alterations)); id. at 2786 (Kennedy, J., concurring) (explaining that the accommodation “works by requiring insurance companies” to provide contraceptive coverage and “equally furthers the Government’s interest”).
Hobby Lobby confirms that, when religious objectors opt out of their legal obligations, the government may fill those gaps and do so as seamlessly as possible. See 134 S. Ct. at 278283. In our diverse Nation, many requirements may be the object of religious objections. But government programs, and particularly national systems of health and welfare, need not vary from point to point or, for example, be based around what, if any, method of provision of medical coverage can be agreed upon by all parties, including those who object. The challenged accommodations provide an administrable way for organizations to state that they object and opt out, and for the government to require third parties to provide contraceptive coverage. The Supreme Court has made clear that “[t]he Free Exercise Clause simply cannot be understood to
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require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Bowen, 476 U.S. at 699. It cannot be correct that the government may not accommodate religious concerns by permitting an objector to opt out of an objectionable requirement and then filling the resulting gap by shifting the objector’s obligations to a third party.
The D.C. Circuit correctly found that “[a] confluence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it.” Priests For Life, 772 F.3d at 237; see id. at. 259-64. The government’s requirement that insurance issuers and third party administrators provide contraceptive coverage after employers decline to do so in particular furthers compelling interests by directly and substantially reducing the incidence of unintended pregnancies, improving birth spacing, protecting women with certain health conditions for whom pregnancy is contraindicated, and otherwise preventing adverse health conditions. See 78 Fed. Reg. at 39,872; IOM Report 103-09; see also Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J., concurring) (“There are many medical conditions for which pregnancy is contraindicated,” and “[i]t is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”).
Physician and public health organizations, such as the American Medical Association, the American Academy of Pediatrics, and the March of Dimes accordingly “recommend the use of family planning services as part of preventive care for women.” IOM Report 104. Use of contraceptives reduces the incidence of unintended pregnancies. IOM Report 102-04. Unintended pregnancies pose special health risks because a woman with an unintended pregnancy “may not immediately be aware that [she is] pregnant, and thus delay prenatal care”
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and engage in behaviors that “pose pregnancy-related risks.” 78 Fed. Reg. at 39,872; see IOM Report 103. As a result, “[s]tudies show a greater risk of preterm birth and low birth weight among unintended pregnancies.” 78 Fed. Reg. at 39,872. And, because contraceptives reduce the number of unintended pregnancies, they “reduce the number of women seeking abortions.” Id.
The contraceptive coverage regulations, including the religious accommodations, also advance the government’s related compelling interest in assuring that women have equal access to recommended health care services. 78 Fed. Reg. at 39,872, 39,887. Congress enacted the women’s preventive-services coverage provision because “women have different health needs than men, and these needs often generate additional costs.” 155 Cong. Rec. 29,070 (2009) (statement of Sen. Feinstein); see IOM Report 18. Prior to the Affordable Care Act, “[w]omen of childbearing age spen[t] 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. at 29,070 (statement of Sen. Feinstein); see Ctrs. for Medicare & Medicaid Servs., National Health Care Spending By Gender and Age: 2004 Highlights, available at http://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-andReports/NationalHealthExpendData/downloads/2004GenderandAgeHighlights.pdf. These disproportionately high costs had a tangible impact: Women often found that copayments and other cost sharing for important preventive services “[were] so high that they avoid[ed] getting [the services] in the first place.” 155 Cong. Rec. at 29,302 (statement of Sen. Mikulski). Studies have demonstrated that “even moderate copayments for preventive services” can “deter patients from receiving those services.” IOM Report 19.
Plaintiff’s contention that its employees share its religious beliefs (Pl.’s Mot. at 11), does not further its argument. Plaintiff cannot contend that, to satisfy strict scrutiny, the government
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must conduct discovery of these non-parties’ gender, age, medical needs, religious views, and
sexual activities to determine how many will benefit from the availability of FDA-approved, doctor-prescribed contraception.10 Regardless of plaintiff’s employees’ beliefs or intentions with
respect to contraceptive services, if plaintiff declines to provide those individuals with important
medical coverage, the government should be able to make such coverage available.
Plaintiff notes that not every employer is presently required to provide contraceptive
coverage. Pl.’s Mot. at 7, 22. But, of course, “[t]he government can have an interest in the
uniform application of a law, even if that law allows some exceptions.” Priests For Life, 772
F.3d at 266. Numerous organizations are not required to pay taxes; more than half of the country
is exempt from registering for the draft; and Title VII does not apply to the 80% of employers in the United States that have fewer than fifteen employees. See 42 U.S.C. § 2000e(b).11 Yet it
does not follow that raising tax revenue, raising an army, and combatting race discrimination are
not compelling interests.
For example, plaintiff notes that houses of worship are exempted from the regulations.
Pl.’s Mot. at 21. But, as discussed above, this exemption must be understood in light of the long
10 In determining whether application of a “burden to the person” being burdened “is in furtherance of a compelling governmental interest,” 42 U.S.C. § 2000bb-1(b), courts must look to the type of exception being demanded. The outcome does not vary, for example, based on whether there is a large class of plaintiffs (and thus a high likelihood that some employees or students will benefit from contraceptive coverage), or a small class. Thus, in analogous contexts, the Supreme Court looked at the effect of a religious exception writ large, not just as applied to particular plaintiffs before the Court. See Wisconsin v. Yoder, 406 U.S. 205, 221 (1972) (evaluating the effects of “the claimed Amish exemption” even though only three families were before the Court); see also Thomas, 450 U.S. at 719 (considering “the number of people” who may be affected by the kind of accommodation sought in the case); United States v. Lee, 455 U.S. 252, 260 (1982) (looking at the effect if other adherents opted out of the Social Security system). This mode of analysis was preserved in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006), which described Yoder as having recognized an “Amish exemption,” and described Sherbert v. Verner, 374 U.S. 398 (1963), as relating to claims of “those who would not work on Saturdays,” rather than that of the single plaintiff in that case.
11 Nearly 79% of firms that employed others in 2008 had nine or fewer employees, while more than 89% of those firms had 19 or fewer employees. See U.S. Census Bureau, U.S. Dep’t of Commerce, Statistics about Business Size (including Small Business), tbl. 2a (2008), https://www.census.gov/econ/smallbus.html.
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tradition of protecting the autonomy of a church through exemptions of this kind, and the Religion Clauses of the First Amendment, which limit “government interference with an internal church decision that affects the faith and mission of the church itself.” See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 707 (2012); 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011) (exemption intended in part to “respect[ ] the unique relationship between a house of worship and its employees in ministerial positions”). Indeed, the exception for religious employers draws on the definition used in 26 U.S.C. § 6033(a)(3)(A)(i) and (iii), which defines the organizations exempt from filing a tax return. See 45 C.F.R. § 147.131(a). Under plaintiff’s logic, there can be no interest in requiring Catholic hospitals and schools to file tax returns because the government has chosen to exempt archdioceses. That a special solicitude has been shown for churches does not mean that there is no compelling interest in providing plaintiff’s employees and students with access to important medical services.
2. Plaintiff makes little effort to identify less-restrictive alternative means through which the government could achieve its compelling interests. Indeed, plaintiff could characterize any alternative that is only available if plaintiff declines to provide coverage as rendering plaintiff’s provision of health coverage or its opt-out from contraceptive coverage a “trigger.” Plaintiff states that “a narrow ‘least restrictive means’ would be to declare in this case that Plaintiff, without further justification or notice, and based on its religious objections, is exempt” from the contraceptive coverage requirement. Pl.’s Mot. at 22 (emphasis in original). Plaintiff also states that the government could assume the cost of providing coverage for the objectionable services. Id. But these suggestions ignore the core teachings of Hobby Lobby.
As the Supreme Court emphasized, the accommodations ensure that women “would continue to receive contraceptive coverage without cost sharing for all FDA-approved
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contraceptives, and they would continue to face minimal logistical and administrative obstacles because their employers’ insurers would be responsible for providing information and coverage.” Hobby Lobby, 134 S. Ct. at 2782 (citation and internal quotation marks omitted); see also supra pp. 23-25.
Plaintiff’s “alternatives” would not “protect the asserted needs of women as effectively,” Hobby Lobby, 134 S. Ct. at 2782, or “equally further[] the Government’s interest,” id. at 2786 (Kennedy, J., concurring), because—as the Supreme Court disclaimed—it would require an employee who wants coverage to seek health insurance outside of that provided by her employer. Such an “alternative[] would substantially impair the government’s interest” because, at the very least, it “would add steps—requiring women to identify different providers or reimbursement sources, enroll in additional and unfamiliar programs, pay out of pocket and wait for reimbursement, or file for tax credits (assuming their income made them eligible)—or pose other financial, logistical, informational, and administrative burdens.” Priests For Life, 772 F.3d at 265. Indeed, the very point of requiring that health coverage include coverage of preventive services, including contraception, without cost sharing is that even small burdens prevent people from obtaining important preventive services, including contraception. See, e.g., 78 Fed. Reg. at 39,888 (purpose of the program is “providing coverage of recommended preventive services through the existing employer-based system of health coverage so that women face minimal logistical and administrative obstacles” and “[i]mposing additional barriers to women receiving the intended coverage . . . by requiring them to take steps to learn about, and to sign up for, a new health benefit, would make that coverage accessible to fewer women”); IOM Report 18-19, 109; see also Wheaton College, 134 S. Ct. at 2807 (“Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA
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approved contraceptives.”); see generally Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874 (1997) (question under free speech strict scrutiny is whether “less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve”) (emphasis added).
The regulatory accommodation process is the least restrictive means of ensuring that women seamlessly obtain coverage for contraception alongside their other health coverage. Accordingly, plaintiff’s RFRA challenge (Count VII) fails.
III. Plaintiff’s Claims Under The First Amendment And The APA Fail A. The Regulations Do Not Violate the Free Exercise Or Establishment Clauses
Plaintiff explains in its motion for declaratory judgment that its claims under the Free Exercise Clause (Counts I, II, and III) boil down to a challenge that the accommodations are “neither religiously neutral nor generally applicable.” Pl.’s Mot. at 22. But nearly every court to have addressed such a free exercise challenge to the regulations has rejected it, including this Court, see Autocam Corp. v. Sebelius, No. 12-1096, 2012 WL 6845677 at *4-5 (W.D. Mich. Dec. 24, 2012).12
1. The Free Exercise Clause is not implicated in this case, because the regulations are neutral and generally applicable. See Employment Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). It prohibits only laws with “the unconstitutional object of targeting religious beliefs and practices.” City of Boerne v. Flores, 521 U.S. 507, 529 (1997). “Neutrality
12 See, e.g., Mich. Catholic Conf. II, 755 F.3d at 393-94, aff’g Mich. Catholic Conf. I, 989 F. Supp. 2d at 588-89, and EWTN, 2014 WL 2739347 at *5-6; Catholic Charities of the Archdiocese of Phila. v. Burwell, No. 14-cv-3096, 2014 WL 2892502, at *7-8 (E.D. Pa., June 26, 2014); Roman Catholic Archdiocese of Atlanta v. Sebelius, No. 1:12-cv3489, 2014 WL 1256373, at *23-26 (N.D. Ga., May 30, 2014), on reconsideration in part, No. 1:12-cv-03489, 2014 WL 2441742 (N.D. Ta. May 30, 2014); Roman Catholic Archbishop of Wash. v. Sebelius, 19 F. Supp. 2d 48, 2013 WL 6729515, at *27-31 (D.D.C. 2013), aff’d in part, vacated in part sub nom Priests for Life, 77 F. Supp. 3d 88 (D.D.C. 2013); Notre Dame I, 988 F. Supp. 2d at 927-30. But see Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402, 437 (W.D. Pa. Mar. 6, 2013); Sharpe Holdings v. HHS, No. 2:12-CV-92-DDN, 2012 WL 6738489, at *5 (E.D. Mo., Dec. 31, 2012).
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and general applicability are interrelated.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). A law is not neutral “if the object of the law is to infringe upon or restrict practices because of their religious motivation.” Id. at 533. A law is not generally applicable if it “in a selective manner impose[s] burdens only on conduct motivated by religious belief.” Id. at 543. The contraceptive coverage requirement “is both, in the relevant sense of not selectively targeting religious conduct, whether facially or intentionally, and broadly applying across religious and nonreligious groups alike.” Priests For Life, 772 F.3d at 268. Plaintiff makes no specific argument to the contrary.
The contraceptive coverage requirement reflects expert medical recommendations about the medical necessity of contraceptive services, without regard to any religious motivations for or against such services. It applies to all 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 [regulations] fall on religious organizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536). And “the availability of the exemption and the accommodation means that the law imposes a lesser burden on those who object for religious reasons. Mich. Catholic Conf. II, 755 F.3d at 394. “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.” Priests for Life, 2013 WL 6672400, at *10 (quotation omitted).
Furthermore, even if the regulations were not neutral or generally applicable, plaintiff’s free exercise challenge still would fail because the regulations satisfy strict scrutiny. See supra Section I(C).
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2. To the extent plaintiff is attempting to argue that the regulations unconstitutionally discriminate by exempting houses of worship and their integrated auxiliaries from the contraceptive coverage requirement while making opt-out accommodations available to other religious non-profit organizations (Count IV), plaintiff has failed to state a claim to support this challenge.
The D.C. Circuit has rejected the same argument that plaintiff raises here, explaining that “[t]he regulations at issue here draw distinctions based on organizational form and purpose, and not religious belief or denomination.” Priests For Life, 772 F.3d at 273. Indeed, the regulations “draw a long-recognized and permissible distinction between houses of worship and religious nonprofits.” Id. at 272.
Plaintiff also refers to the Affordable Care Act’s grandfathering provision; however, this provision applies to a wide array of the Act’s requirements, and has the effect of allowing a transition period for compliance with a number of the Act’s requirements (including, but not limited to, the contraceptive coverage and other preventive-services coverage provisions). And, indeed, grandfathered plans are being steadily phased out. See Priests For Life, 772 F.3d at 266 n.25 (“According to a 2013 study conducted by Kaiser Health News, the grandfathering is already quickly phasing down.”).
Finally, to the extent plaintiff makes an “unbridled discretion” claim, see Pl.’s Am. Compl. ¶¶ 147-48, 154-55, the Court must reject it. Plaintiff alleges incorrectly that the regulations “vest[] HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no religious individuals,” or to “some, all, or no organizations meeting the definition of ‘religious employers.’” Id. Under the challenged regulations, an entity that is organized and operates as a nonprofit and that is referred to in Section 6033(a)(3)(A)(i) or
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(a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended, qualifies for the exemption. 45 C.F.R. § 147.131(a). And an organization that satisfies the four criteria to be an “eligible organization” is eligible for the accommodation. Id. § 147.131(b). There is no discretion, let alone “unbridled discretion,” that is left to defendants to decide who is exempt or who is accommodated; the regulations set out the criteria for both determinations.
B. The Regulations Do Not Violate The Free Speech Clause Plaintiff has alleged two claims—Counts V and VI of the Amended Complaint—raising the same challenge under the Free Speech clause, both of which fail to state a claim for relief.13 Plaintiff argues that the regulations unconstitutionally compel speech involved in opting out. Pl.’s Am. Compl. at ¶¶ 158-67. But “[r]equiring Plaintiffs to give notice that they wish to opt out of the contraceptive coverage requirement no more compels their speech in violation of the First Amendment than does demanding that a conscientious objector self-identify as such.” Priests For Life, 772 F.3d at 271. As the D.C. Circuit has explained, although the opt-out mechanisms “may include ‘elements of speech’” they are “‘a far cry from the compelled speech’ that the Supreme Court previously has found to be unconstitutional.” Id. (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR), 547 U.S. 47, 61-62 (2006)). “[A]ny speech required by the self-certification or alternative notice is . . . incidental to the accommodation’s regulation of conduct.” Id.; see FAIR, 547 U.S. at 61-62. Moreover, “[n]othing in these final regulations prohibits an eligible organization from expressing its opposition to the use of contraceptives.” 78 Fed. Reg. at 39,880 n.41; see also Priests For Life, 772 F.3d at 271 (“Completing the self-certification form does not limit what Plaintiffs may say about contraception—or any other topic—nor does it limit where, when, or how they may say
13 Plaintiff did not raise either of the claims in Counts V and VI of the Amended Complaint in its motion for declaratory judgment.
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it.”). In fact, by opting out, plaintiff would explicitly proclaim its objection to contraception. “[T]he opt out here is designed to ensure that Plaintiffs do not have to express, in words or symbolic backing, any support for contraception.” Id.
C. The Regulations Do Not Violate The Administrative Procedure Act Count VIII14 of plaintiff’s Amended Complaint asserts several disparate and inaccurate claims purporting to allege a violation of the APA; this does not amount to a claim on which relief can be granted, and plaintiff’s purported challenge is meritless anyway. First, plaintiff is wrong that Defendants failed to meet the APA’s procedural requirements, see Pl.’s Am. Compl. at ¶¶189-90. In fact, the preamble to the 2013 final rule demonstrates the multiple opportunities for notice and comment on the proposed regulations—and more than 400,000 comments were submitted in response to the proposed regulations published on February 6, 2013—and specifically addresses issues raised by some of the comments in its analysis. See 78 Fed. Reg. 39,871; see id. 39,872-884. Plaintiff’s claim that the final rule is arbitrary and capricious is also meritless. First, plaintiff alleges that defendants failed to consider “the full extent of [the regulations’] implications” and did not “take into consideration the evidence against” promulgating the rule. However, the extensive analysis in the preamble to the final rule belies this claim. See generally 78 Fed. Reg. 39,870, et seq. Second, plaintiff errs when it asserts that because the preventive services coverage regulations require group health plans to cover emergency contraception, such as Plan B, they effectively require plaintiff to provide coverage for abortions in violation of federal law. See Am. Compl. ¶¶ 199-204 (citing Section 1303 of the ACA). The regulations at issue in this case
14 Plaintiff does not raise any APA challenge in its motion for declaratory judgment.
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do not require that any health plan cover abortion as a preventive service, or that it cover abortion at all, as that term is defined in federal law. Rather, the regulations require 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, AR at 283-84. The government has made clear that the preventive services covered by the regulations do not include abortifacient drugs.15 Although plaintiff may believe that certain FDA-approved contraceptive services are abortifacient drugs or cause abortions, this Court is not required to accept that characterization, which is inconsistent with the FDA’s scientific assessment and with federal law. While plaintiff’s religious beliefs may define abortion more broadly than federal law to include emergency contraception, the terms should be construed as a matter of law, and not based on any particular individual’s views or beliefs. See Mich. Catholic Conf. I, 989 F. Supp. 2d at 593 (“Plaintiffs believe that FDA-approved emergency contraceptives are ‘abortion-inducing products’—as is their right. However, federal law does not define them as such.” (citation omitted)); see, e.g., 62 Fed. Reg. 8611 (Feb. 25, 1997); 45 C.F.R 46.202(f). Accordingly, plaintiff’s APA claims—Count VIII of the Amended Complaint—fail.
CONCLUSION Defendants respectfully request that the Court grant defendants’ motion to dismiss or, in the alternative, for summary judgment on all of plaintiff’s claims.
15 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited March 3, 2014); see also IOM REP. at 22 (recognizing that abortion services are outside the scope of permissible recommendations), AR at 320.
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Respectfully submitted this 20th day of May, 2015 BENJAMIN C. MIZER Principal Deputy Assistant Attorney General PATRICK MILES, JR. United States Attorney JENNIFER RICKETTS Director SHEILA M. LIEBER Deputy Director /s/ Julie S. Saltman JULIE S. SALTMAN (DC Bar 975015) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 7111 Washington, DC 20530 Tel: (202) 532-4252 Fax: (202) 616-8470 Email: julie.saltman@usdoj.gov Attorneys for Defendants
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Case 1:13-cv-01202-RJJ ECF No. 45 filed 05/21/15 PageID.485 Page 37 of 37 CERTIFICATE OF SERVICE
I hereby certify that on May 20, 2015 I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Julie S. Saltman JULIE S. SALTMAN
-36-

 
 Case 1:13-cv-01202-RJJ ECF No. 74 filed 10/27/15 PageID.374001 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RIGHT TO LIFE OF MICHIGAN,

Plaintiff, v. SYLVIA BURWELL, et al.,

CASE NO. 1:13-CV-1202 HON. ROBERT J. JONKER

Defendants. __________________________________/

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion for Declaratory Judgment (docket # 42)

and Defendants’ Motion to Dismiss (docket # 44). Plaintiff challenges an accommodation under the

Patient Protection and Affordable Care Act (the “ACA”) that insulates eligible non-profit

organizations, including Plaintiff, from the ACA’s general requirement that health insurance plans

provide coverage for contraception. Plaintiff asserts that the accommodation violates the

Establishment Clause of the First Amendment; Plaintiff’s rights to free exercise and freedom of

speech under the First Amendment; the Religious Freedom and Restoration Act (“RFRA”); and the

Administrative Procedures Act (“APA”). In its Motion for Declaratory Judgment, Plaintiff seeks

a declaratory judgment on its RFRA and Free Exercise Clause claims. (docket # 42.) Defendants

seek dismissal or summary judgment on all of Plaintiff’s claims (docket # 44).

Plaintiff’s claims are legally indistinguishable from those the Sixth Circuit already decided

in Michigan Catholic Conference and Catholic Family Services v. Burwell, — F.3d — , 2015 WL

4979692 (Sixth Cir. August 21, 2015) (“Mich. Cath. Conf. II”) and its predecessor case, Michigan

Case 1:13-cv-01202-RJJ ECF No. 74 filed 10/27/15 PageID.374002 Page 2 of 3
Catholic Conference and Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014) (Mich. Cath.
Conf. I), which Mich. Cath. Conf. II explicitly re-issued and reaffirmed. In Mich. Cath. Conf. I and
II, the Sixth Circuit rejected precisely the kinds of challenges to the accommodation under the First Amendment and RFRA Plaintiff makes in this case.1 This Court gave the parties an opportunity to
file briefs regarding the effect of the Mich. Cath. Conf. I and II on this case (docket # 70). Even
Plaintiff does not dispute that Mich. Cath. Conf. I and II forecloses the claims in this case (docket # 72).2 The Sixth Circuit precedent is controlling and binding on this Court, and the government’s motion must therefore be granted. 3
ACCORDINGLY, IT IS ORDERED:
1. Plaintiff’s Motion for Declaratory Judgment (docket # 42) is DENIED.
2. Defendants’ Motion to Dismiss or for Summary Judgment (docket # 44) is
GRANTED.
1Mich. Cath. Conf. I and II foreclose all but Plaintiff’s APA claim. Plaintiff neither mentioned its APA claim in its Motion for Declaratory Judgment nor responded to the portion of Defendants’ motion seeking dismissal or summary judgment on Plaintiff’s APA claim. Plaintiff has waived the APA claim.
2Instead, Plaintiff urges the Court to disregard the holdings of Mich. Cath. Conf. I and II and adopt the logic of an out-of-Circuit district court decision obviously not binding on the Court.
3The Court notes that all but one of the Circuits to consider challenges to the accommodation under RFRA have reached the same conclusion as the Sixth Circuit. See Geneva College v. Secretary of the U.S. Dep’t of Health and Human Servs, 778 F. 3d 422 (3d Cir. 2015); Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014); E. Tex. Baptist Univ. v. Burwell, 793 F.3d 449 (5th Cir. 2015); Catholic Health Care Sys. v. Burwell, 796 F.3d 207 (2d Cir. 2015); Wheaton College v. Burwell, 791 F.3d 792 (7th Cir. July 1, 2015); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Burwell, 794 F.3d 1151 (10th Cir. 2015); contra. Sharpe Holdings, Inc. v. U.S. Dep’t of Health and Human Servs., — F.3d —, 2015 WL 5449491 (8th Cir. September 17, 2015); Dordt College v. Burwell, — F.3d — , 2015 WL 5449504 (8th Cir. Sept. 17, 2015).
2

Case 1:13-cv-01202-RJJ ECF No. 74 filed 10/27/15 PageID.374003 Page 3 of 3

3. The motion hearing scheduled for November 16, 2015 at 699 Federal Building before the undersigned is CANCELLED.

Dated: October 27, 2015

/s/ Robert J. Jonker ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

3

 
 United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:13-cv-01202-RJJ

Right to Life of Michigan v. Sebelius et al Assigned to: Chief Judge Robert J. Jonker Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 11/04/2013 Date Terminated: 10/27/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

plaintiff
Right to Life of Michigan a Michigan non-profit corporation

represented by Michael B. Rizik Rizik & Rizik 9400 S Saginaw St., Ste. E Grand Blanc, MI 48439 (810) 953-6000 Email: lawyers@riziklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. defendant Sylvia Mathews Burwell identified on initiating document as Kathleen Sebelius
defendant United States Department of Health and Human Services
defendant

represented by Julie Saltman U.S. Department of Justice, Civil Division (DC) Federal Programs Branch 20 Massahusetts Ave., NW Washington, DC 20530 (202) 532-4252 Email: julie.saltman@usdoj.gov ATTORNEY TO BE NOTICED
represented by Julie Saltman (See above for address) ATTORNEY TO BE NOTICED

Jack Lew in his official capacity as the Secretary of the United States Department of Treasury
defendant United States Department of the Treasury
defendant Thomas Perez in his official capacity as the Secretary of the United States Department of Labor
defendant United States Department of Labor

represented by Julie Saltman (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Saltman (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Saltman (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Saltman (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/04/2013 11/04/2013
11/04/2013 11/04/2013
11/05/2013 11/05/2013

# Docket Text
1 COMPLAINT Verified Complaint against All Defendants filed by Right to Life of Michigan(Rizik, Michael) (Entered: 11/04/2013)
FILING FEE PAID re 1 by plaintiff Right to Life of Michigan in the amount of $400, receipt number 0646-2726499 (Rizik, Michael) (Entered: 11/04/2013)
2 PROPOSED SUMMONS to be issued re 1 (Rizik, Michael) (Entered: 11/04/2013)
MOTION for preliminary injunction , MOTION for permanent injunction (as taken from Doc 1 ) by plaintiff Right to Life of Michigan; (pjw) (Entered: 11/05/2013)
3 Civil Cover Sheet EXHIBIT re 1 Verified Complaint by plaintiff Right to Life of Michigan (Rizik, Michael) (Entered: 11/05/2013)
4 CORPORATE DISCLOSURE STATEMENT by Right to Life of Michigan (Rizik, Michael) (Entered: 11/05/2013)

11/05/2013 11/05/2013
11/05/2013 11/06/2013
11/21/2013 11/21/2013 11/21/2013 11/21/2013
11/21/2013
11/21/2013

5 NOTICE that this case has been assigned to Judge Robert J. Jonker (pjw) (Entered: 11/05/2013)
SUMMONS NOT ISSUED as to defendants Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (incomplete) (pjw) (Entered: 11/05/2013)
6 PROPOSED SUMMONS to be issued re 1 (Rizik, Michael) (Entered: 11/05/2013)
7 SUMMONS ISSUED as to defendants Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, U.S. Attorney and U.S. Attorney General (jlg) (Entered: 11/06/2013)
8 SUMMONS returned executed; Thomas Perez served on 11/12/2013, answer due 1/13/2014 (Rizik, Michael) Modified text on 12/2/2013 (jlg). (Entered: 11/21/2013)
9 SUMMONS returned executed; Kathleen Sebelius served on 11/12/2013, answer due 1/13/2014 (Rizik, Michael) Modified text on 12/2/2013 (jlg). (Entered: 11/21/2013)
10 SUMMONS returned executed; Jack Lew served on 11/12/2013, answer due 1/13/2014 (Rizik, Michael) Modified text on 12/2/2013 (jlg). (Entered: 11/21/2013)
11 SUMMONS returned executed on United States Department of Health and Human Services, US Attorney and US Attorney General; service upon defendant, United States Department of Health and Human Services complete on 11/12/2013, answer due 1/13/2014 (Rizik, Michael) (Entered: 11/21/2013)
12 SUMMONS returned executed on United States Department of Labor, US Attorney and US Attorney General; service upon defendant, United States Department of Labor complete on 11/12/2013, answer due 1/13/2014 (Rizik, Michael) (Entered: 11/21/2013)
13 SUMMONS returned executed on United States Department of the Treasury, US Attorney and US Attorney General; service upon defendant, United States Department of the Treasury complete on 11/12/2013, answer due 1/13/2014 (Rizik, Michael) (Entered: 11/21/2013)

01/13/2014
01/13/2014
01/21/2014
01/27/2014 01/29/2014 01/29/2014 01/30/2014 01/31/2014
02/03/2014 02/10/2014

14 MOTION to dismiss for lack of jurisdiction by defendants Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury; (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 01/13/2014)
15 BRIEF in support of MOTION to dismiss for lack of jurisdiction 14 filed by Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury(Saltman, Julie) (Entered: 01/13/2014)
16 ORDER setting Rule 16 scheduling conference: Rule 16 scheduling conference is set for 3/19/2014 at 4:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; status report due by 3/13/2014 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 01/21/2014)
17 First AMENDED COMPLAINT against All Defendants filed by Right to Life of Michigan(Rizik, Michael) Modified text on 1/28/2014 (jlg). (Entered: 01/27/2014)
18 RESPONSE in opposition to MOTION to dismiss for lack of jurisdiction 14 Plaintiff's Anwer to Defendant's Motion to Dismiss filed by Right to Life of Michigan (Rizik, Michael) (Entered: 01/29/2014)
19 BRIEF by plaintiff Right to Life of Michigan re 18 Plaintiff's Brief Opposing Motion to Dismiss (Attachments: # 1 Exhibits 1-6)(Rizik, Michael) Modified text on 1/30/2014 (jlg). (Entered: 01/29/2014)
20 NOTICE to attorney Michael Rizik regarding recent filing 19 (jlg) (Entered: 01/30/2014)
21 CORRECTED BRIEF by plaintiff Right to Life of Michigan re 18 with Corrected Exhibits (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Rizik, Michael) Modified text on 2/3/2014; this entry replaces 19 (jlg). (Entered: 01/31/2014)
22 ORDER dismissing as moot 14 motion to dismiss for lack of jurisdiction; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 02/03/2014)
23 UNOPPOSED MOTION to stay by defendants Jack Lew, Thomas Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States

02/11/2014 02/14/2014 05/29/2014
05/29/2014
07/16/2014 07/16/2014 07/17/2014 07/18/2014 09/09/2014

Department of the Treasury; (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 02/10/2014)
24 RESPONSE in support of UNOPPOSED MOTION to stay 23 filed by Right to Life of Michigan (Rizik, Michael) Modified text on 2/12/2014 (jlg). (Entered: 02/11/2014)
25 ORDER granting 23 motion to stay; Rule 16 Conference scheduled for 3/19/2014 is CANCELLED; Telephone Status Conference with counsel is set for 7/18/2014 at 3:00 PM; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 02/14/2014)
26 (DISREGARD) NOTICE rescheduling hearing that was previously set for 7/18/14 at 3:00 p.m. (change in time only); telephone status conference set for 7/18/2014 at 02:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker;(Judge Robert J. Jonker, mil) Modified text on 6/2/2014 (dfw). (Entered: 05/29/2014)
27 NOTICE rescheduling hearing that was previously set for 7/18/14 at 3:00 (change in time only); status conference reset for 7/18/2014 at 02:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; (Judge Robert J. Jonker, mil) (Entered: 05/29/2014)
28 UNOPPOSED MOTION to amend/correct Plaintiff's Unopposed Motion to Amend Caption by plaintiff Right to Life of Michigan; (Rizik, Michael) (Entered: 07/16/2014)
29 PROPOSED ORDER regarding Order to Amend Caption by plaintiff Right to Life of Michigan (Rizik, Michael) (Entered: 07/16/2014)
30 NOTICE rescheduling hearing that was previously set for 7/18/14 at 2:00 p..m.; status conference set for 9/9/2014 at 03:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; (Judge Robert J. Jonker, mil) (Entered: 07/17/2014)
31 ORDER granting 28 motion to amend/correct; terminating PROPOSED ORDER 29 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 07/18/2014)
33 MINUTES of telephone status conference held before Judge Robert J. Jonker (Court Reporter: Glenda Trexler) (Judge Robert J. Jonker, ymc) (Entered: 09/10/2014)

09/10/2014 01/13/2015
01/14/2015 01/14/2015 02/12/2015 02/17/2015 04/24/2015
04/27/2015 04/29/2015 05/13/2015

32 ORDER STAYING CASE, all deadlines, disclosures, and discovery remain stayed; ORDER setting status conference: status conference set for 1/14/2015 at 4:00 PM by telephone before Judge Robert J. Jonker; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 09/10/2014)
34 UNOPPOSED MOTION to continue Telephonic Status Conference on January 14, 2015 at 4:00 p.m. by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury; (Attachments: # 1 Proposed Order)(Saltman, Julie) (Entered: 01/13/2015)
35 ORDER granting 34 motion to continue telephone status conference ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 01/14/2015)
36 NOTICE of telephonic status conference set for 2/12/2015 at 04:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; (Judge Robert J. Jonker, mil) (Entered: 01/14/2015)
37 MINUTES of status conference held before Judge Robert J. Jonker (Court Reporter: Glenda Trexler) (Judge Robert J. Jonker, mil) (Entered: 02/13/2015)
38 ORDER LIFTING STAY and setting briefing schedule ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 02/17/2015)
39 UNOPPOSED MOTION for extension of time to by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury; (Attachments: # 1 Proposed Order) (Saltman, Julie) (Entered: 04/24/2015)
40 RESPONSE in support of UNOPPOSED MOTION for extension of time to 39 Plaintiff's Concurrence With Defendants' Motion for Extension filed by Right to Life of Michigan (Rizik, Michael) (Entered: 04/27/2015)
41 ORDER granting 39 motion for extension of time ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 04/29/2015)
42 MOTION for declaratory judgment, brief in support, and request for oral argument by plaintiff Right to Life of Michigan;

05/18/2015 05/21/2015 05/21/2015 05/21/2015 05/21/2015 05/22/2015 05/22/2015

(Attachments: # 1 Exhibit 1) (Rizik, Michael) Modified text on 5/13/2015 (clp). (Entered: 05/13/2015)
43 NOTICE OF MOTION HEARING regarding document number 42 : motion hearing is set for 7/9/2015 at 02:00 PM at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; (Judge Robert J. Jonker, mil) (Entered: 05/18/2015)
44 MOTION to dismiss, or in the alternative, for summary judgment by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury; (Attachments: # 1 Proposed Order) (Saltman, Julie) (Entered: 05/21/2015)
45 MEMORANDUM in support of Motion to Dismiss, or in the alternative, for Summary Judgment, 44 filed by Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Attachment 1) (Saltman, Julie) (Entered: 05/21/2015)
46 UNOPPOSED MOTION for leave to file excess pages by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury; (Attachments: # 1 Proposed Order) (Saltman, Julie) (Entered: 05/21/2015)
47 CONSENT MOTION for extension of time to file motion to dismiss or, in the alternative, for summary judgment (nunc pro tunc) by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury; (Attachments: # 1 Proposed Order) (Saltman, Julie) (Entered: 05/21/2015)
48 NOTICE of Filing of Certified Administrative Record by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 Index, # 2 Certification) (Saltman, Julie) (Entered: 05/22/2015)
49 ADMINISTRATIVE RECORD from 1-574 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States

05/22/2015 05/22/2015 05/22/2015

Department of Labor, United States Department of the Treasury (Attachments: # 1 575-633, # 2 634, # 3 635-653, # 4 654-872, # 5 873-907, # 6 908-1229, # 7 1230-1328, # 8 1329-1504, # 9 1505-1650, # 10 1651-2142, # 11 2143-2556, # 12 2557-6033, # 13 6034-9602, # 14 9603-12997, # 15 12998-16429, # 16 1643019832, # 17 19833-23545, # 18 23546-25414) (Saltman, Julie) (Entered: 05/22/2015)
50 ADMINISTRATIVE RECORD from ANPRM Comments Part 1 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 ANPRM Comments Part 2, # 2 ANPRM Comments Part 3, # 3 ANPRM Comments Part 4, # 4 ANPRM Comments Part 5, # 5 ANPRM Comments Part 6, # 6 ANPRM Comments Part 7, # 7 ANPRM Comments Part 8, # 8 ANPRM Comments Part 9, # 9 ANPRM Comments Part 10, # 10 ANPRM Comments Part 11, # 11 ANPRM Comments Part 12, # 12 ANPRM Comments Part 13, # 13 ANPRM Comments Part 14, # 14 ANPRM Comments Part 15, # 15 ANPRM Comments Part 16) (Saltman, Julie) (Entered: 05/22/2015)
51 ADMINISTRATIVE RECORD from ANPRM Comments Part 17 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 ANPRM Comments Part 18, # 2 ANPRM Comments Part 19, # 3 ANPRM Comments Part 20, # 4 ANPRM Comments Part 21, # 5 ANPRM Comments Part 22, # 6 ANPRM Comments Part 23, # 7 ANPRM Comments Part 24, # 8 ANPRM Comments Part 25, # 9 ANPRM Comments Part 26, # 10 ANPRM Comments Part 27, # 11 ANPRM Comments Part 28, # 12 ANPRM Comments Part 29, # 13 ANPRM Comments Part 30, # 14 ANPRM Comments Part 31, # 15 ANPRM Comments Part 32, # 16 ANPRM Comments Part 33, # 17 ANPRM Comments Part 34) (Saltman, Julie) (Entered: 05/22/2015)
52 ADMINISTRATIVE RECORD from NPRM Comments Part 1 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 NPRM Comments Part 2, # 2 NPRM Comments Part 3, # 3 NPRM Comments Part 4, # 4 NPRM Comments Part 5, # 5 NPRM Comments Part 6, # 6 NPRM Comments Part 7, # 7 NPRM Comments Part 8, # 8 NPRM Comments Part 9, # 9 NPRM Comments Part 10, # 10 NPRM

05/22/2015 05/22/2015 05/22/2015

Comments Part 11, # 11 NPRM Comments Part 12, # 12 NPRM Comments Part 13, # 13 NPRM Comments Part 14, # 14 NPRM Comments Part 15, # 15 NPRM Comments Part 16, # 16 NPRM Comments Part 17, # 17 NPRM Comments Part 18, # 18 NPRM Comments Part 19, # 19 NPRM Comments Part 20) (Saltman, Julie) (Entered: 05/22/2015)
53 ADMINISTRATIVE RECORD from NPRM Comments Part 21 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 NPRM Comments Part 22, # 2 NPRM Comments Part 23, # 3 NPRM Comments Part 24, # 4 NPRM Comments Part 25, # 5 NPRM Comments Part 26, # 6 NPRM Comments Part 27, # 7 NPRM Comments Part 28, # 8 NPRM Comments Part 29, # 9 NPRM Comments Part 30, # 10 NPRM Comments Part 31, # 11 NPRM Comments Part 32, # 12 NPRM Comments Part 33, # 13 NPRM Comments Part 34, # 14 NPRM Comments Part 35, # 15 NPRM Comments Part 36, # 16 NPRM Comments Part 37, # 17 NPRM Comments Part 38, # 18 NPRM Comments Part 39, # 19 NPRM Comments Part 40) (Saltman, Julie) (Entered: 05/22/2015)
54 ADMINISTRATIVE RECORD from NPRM Comments Part 41 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 NPRM Comments Part 42, # 2 NPRM Comments Part 43, # 3 NPRM Comments Part 44, # 4 NPRM Comments Part 45, # 5 NPRM Comments Part 46, # 6 NPRM Comments Part 47, # 7 NPRM Comments Part 48, # 8 NPRM Comments Part 49, # 9 NPRM Comments Part 50, # 10 NPRM Comments Part 51, # 11 NPRM Comments Part 52, # 12 NPRM Comments Part 53, # 13 NPRM Comments Part 54, # 14 NPRM Comments Part 55, # 15 NPRM Comments Part 56, # 16 NPRM Comments Part 57, # 17 NPRM Comments Part 58, # 18 NPRM Comments Part 59, # 19 NPRM Comments Part 60) (Saltman, Julie) (Entered: 05/22/2015)
55 ADMINISTRATIVE RECORD from NPRM Comments Part 61 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 NPRM Comments Part 62, # 2 NPRM Comments Part 63, # 3 NPRM Comments Part 64, # 4 NPRM Comments Part 65, # 5 NPRM Comments Part 66, # 6 NPRM

05/22/2015 05/22/2015 05/22/2015

Comments Part 67, # 7 NPRM Comments Part 68, # 8 NPRM Comments Part 69, # 9 NPRM Comments Part 70, # 10 NPRM Comments Part 71, # 11 NPRM Comments Part 72, # 12 NPRM Comments Part 73, # 13 NPRM Comments Part 74, # 14 NPRM Comments Part 75, # 15 NPRM Comments Part 76, # 16 NPRM Comments Part 77, # 17 NPRM Comments Part 78, # 18 NPRM Comments Part 79, # 19 NPRM Comments Part 80) (Saltman, Julie) (Entered: 05/22/2015)
56 ADMINISTRATIVE RECORD from NPRM Comments Part 81 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 NPRM Comments Part 82, # 2 NPRM Comments Part 83, # 3 NPRM Comments Part 84, # 4 NPRM Comments Part 85, # 5 NPRM Comments Part 86, # 6 NPRM Comments Part 87, # 7 NPRM Comments Part 88, # 8 NPRM Comments Part 89, # 9 NPRM Comments Part 90, # 10 NPRM Comments Part 91, # 11 NPRM Comments Part 92, # 12 NPRM Comments Part 93, # 13 NPRM Comments Part 94, # 14 NPRM Comments Part 95, # 15 NPRM Comments Part 96, # 16 NPRM Comments Part 97, # 17 NPRM Comments Part 98, # 18 NPRM Comments Part 99, # 19 NPRM Comments Part 100) (Saltman, Julie) (Entered: 05/22/2015)
57 ADMINISTRATIVE RECORD from NPRM Comments Part 101 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 NPRM Comments Part 102, # 2 NPRM Comments Part 103, # 3 NPRM Comments Part 104, # 4 NPRM Comments Part 105, # 5 NPRM Comments Part 106, # 6 NPRM Comments Part 107, # 7 NPRM Comments Part 108, # 8 NPRM Comments Part 109, # 9 NPRM Comments Part 110, # 10 NPRM Comments Part 111, # 11 NPRM Comments Part 112, # 12 NPRM Comments Part 113, # 13 NPRM Comments Part 114, # 14 NPRM Comments Part 115, # 15 NPRM Comments Part 116, # 16 NPRM Comments Part 117, # 17 NPRM Comments Part 118, # 18 NPRM Comments Part 119, # 19 NPRM Comments Part 120) (Saltman, Julie) (Entered: 05/22/2015)
58 ADMINISTRATIVE RECORD from NPRM Comments Part 121 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 NPRM Comments Part 122,

05/22/2015 05/22/2015 05/22/2015

# 2 NPRM Comments Part 123, # 3 NPRM Comments Part 124, # 4 NPRM Comments Part 125, # 5 NPRM Comments Part 126, # 6 NPRM Comments Part 127, # 7 NPRM Comments Part 128, # 8 NPRM Comments Part 129, # 9 NPRM Comments Part 130, # 10 NPRM Comments Part 131, # 11 NPRM Comments Part 132, # 12 NPRM Comments Part 133, # 13 NPRM Comments Part 134, # 14 NPRM Comments Part 135, # 15 NPRM Comments Part 136, # 16 NPRM Comments Part 137, # 17 NPRM Comments Part 138, # 18 NPRM Comments Part 139, # 19 NPRM Comments Part 140) (Saltman, Julie) (Entered: 05/22/2015)
59 ADMINISTRATIVE RECORD from NPRM Comments Part 141 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 NPRM Comments Part 142, # 2 NPRM Comments Part 143, # 3 NPRM Comments Part 144, # 4 NPRM Comments Part 145, # 5 NPRM Comments Part 146, # 6 NPRM Comments Part 147, # 7 NPRM Comments Part 148, # 8 NPRM Comments Part 149, # 9 NPRM Comments Part 150, # 10 NPRM Comments Part 151, # 11 NPRM Comments Part 152, # 12 NPRM Comments Part 153, # 13 NPRM Comments Part 154, # 14 NPRM Comments Part 155, # 15 NPRM Comments Part 156, # 16 NPRM Comments Part 157, # 17 NPRM Comments Part 158, # 18 NPRM Comments Part 159, # 19 NPRM Comments Part 160) (Saltman, Julie) (Entered: 05/22/2015)
60 ADMINISTRATIVE RECORD from NPRM Comments Part 161 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Attachments: # 1 NPRM Comments Part 162, # 2 NPRM Comments Part 163, # 3 NPRM Comments Part 164, # 4 NPRM Comments Part 165, # 5 NPRM Comments Part 166, # 6 NPRM Comments Part 167, # 7 NPRM Comments Part 168, # 8 NPRM Comments Part 169, # 9 NPRM Comments Part 170, # 10 NPRM Comments Part 171, # 11 NPRM Comments Part 172, # 12 NPRM Comments Part 173, # 13 NPRM Comments Part 174, # 14 NPRM Comments Part 175, # 15 NPRM Comments Part 176, # 16 NPRM Comments Part 177, # 17 NPRM Comments Part 178, # 18 NPRM Comments Part 179, # 19 NPRM Comments Part 180) (Saltman, Julie) (Entered: 05/22/2015)
61 ADMINISTRATIVE RECORD from NPRM Comments Part 181 by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services,

05/27/2015 05/27/2015 06/16/2015
06/16/2015 06/16/2015 06/18/2015

United States Department of Labor, United States Department of the Treasury (Attachments: # 1 NPRM Comments Part 182, # 2 NPRM Comments Part 183, # 3 NPRM Comments Part 184, # 4 NPRM Comments Part 185, # 5 NPRM Comments Part 186, # 6 NPRM Comments Part 187, # 7 NPRM Comments Part 188, # 8 NPRM Comments Part 189, # 9 NPRM Comments Part 190, # 10 NPRM Comments Part 191, # 11 NPRM Comments Part 192, # 12 NPRM Comments Part 193, # 13 NPRM Comments Part 194, # 14 NPRM Comments Part 195, # 15 NPRM Comments Part 196, # 16 NPRM Comments Part 197) (Saltman, Julie) (Entered: 05/22/2015)
62 ORDER granting 46 motion for leave to file excess pages ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil) (Entered: 05/27/2015)
63 ORDER granting 47 motion for extension of time ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 05/27/2015)
64 MOTION for leave to file excess pages Plaintiff's Unopposed Motion to File Its Brief Opposing Defendants' Motion for and Memorandum in Support of Their Motion to Dismiss or, in the Alternative, for Summary Judgment in Excess of 25 Pages by plaintiff Right to Life of Michigan; (Attachments: # 1 Proposed Order) (Rizik, Michael) (Entered: 06/16/2015)
65 RESPONSE TO MOTION to dismiss, or in the alternative, for summary judgment 44 Answer to Defendants' Motion to Dismiss Inter Alia filed by Right to Life of Michigan (Rizik, Michael) (Entered: 06/16/2015)
66 BRIEF IN SUPPORT of response in opposition to MOTION to dismiss, or in the alternative, for summary judgment 65 filed by Right to Life of Michigan (Rizik, Michael) Modified text on 6/17/2015 (clp). (Entered: 06/16/2015)
67 NOTICE RESCHEDULING MOTION HEARING regarding document number 42 , that was previously set for 7/9/15 at 2:00 p.m.; motion hearing is reset for 9/1/2015 at 03:00 PM. NOTICE OF HEARING regarding document number [44}also set for 9/1/15 at 3:00 PM; at 699 Federal Building, Grand Rapids, MI before Judge Robert J. Jonker; (Judge Robert J. Jonker, mil) (Entered: 06/18/2015)

06/18/2015 06/22/2015
08/26/2015
08/28/2015 09/16/2015 09/17/2015 10/27/2015 10/27/2015

68 ORDER granting 64 motion for leave to file excess pages ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc) (Entered: 06/18/2015)
69 RESPONSE in opposition to MOTION for declaratory judgment and Request for Oral Argument 42 filed by Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury (Saltman, Julie) (Entered: 06/22/2015)
70 ORDER CANCELLING oral argument on dispositive motions currently set for 9/1/2015. This hearing will be resecheduled by separate order. Parties to file briefing re Michigan Catholic Conference and Catholic Family Services v. Burwell no later than 9/17/2015 (Chief Judge Robert J. Jonker, ymc) (Entered: 08/26/2015)
71 NOTICE OF MOTION HEARING regarding document number 44 , 42 : motion hearing is reset for 11/16/2015 at 02:00 PM at 699 Federal Building, Grand Rapids, MI before Chief Judge Robert J. Jonker; (Chief Judge Robert J. Jonker, mil) (Entered: 08/28/2015)
72 BRIEF by plaintiff Right to Life of Michigan re 42 Plaintiff's Position Regarding the Effect of Michigan Catholic Conference and Catholic Family Services v Burwell in This Case (Rizik, Michael) (Entered: 09/16/2015)
73 BRIEF by defendants Sylvia Mathews Burwell, Jack Lew, Thomas Perez, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 70 , 44 (Saltman, Julie) (Entered: 09/17/2015)
74 ORDER denying 42 motion for declaratory judgment; granting 44 motion to dismiss or in the alternative for summary judgment; motion hearing set for 11/16/2015 is CANCELLED ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc) (Entered: 10/27/2015)
75 JUDGMENT in favor of all named Defendants against Plaintiff ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc) (Entered: 10/27/2015)

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