Case 2:12-cv-00501-SLB Document 13 Filed 03/21/12 Page 1 of 30
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2012 Mar-21 PM 01:19 U.S. DISTRICT COURT
N.D. OF ALABAMA

ETERNAL WORD TELEVISION NETWORK, INC.
Plaintiff,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, HILDA SOLIS, Secretary of the United States Department of Labor, UNITED STATES DEPARTMENT OF LABOR, TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants

2:12-CV-00501-SLB FIRST AMENDED COMPLAINT

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FIRST AMENDED COMPLAINT Comes now Plaintiff Eternal Word Television Network, Inc., by and through its attorneys, and states as follows:
NATURE OF THE ACTION 1. This is a ch allenge to regulations issued under the 2010 A ffordable Care Act that force the Plaintiff—along with a multitude of other religious organizations—to violate their deepest religious beliefs. 2. In 1981, Mother M. Angelica, a Catholic nun of the Poor Clares of Perpetual Adoration order, founded the Eternal Word Television Network (EWTN) on the property of Our Lady of Angels Monastery in Irondale, Alabama. E WTN has grown to become the largest Catholic media network in the world, transmitting television programming on eight different video, radio, and internet services 24 hours a day to more than 217 million homes in 144 countries and territories. 3. EWTN airs family and religious programming that present reliable statements of Catholic belief and practice in keeping with the authoritative teachings of the Catholic Church. EWTN’s sincere religious beliefs forbid it from participating in, paying for, training others to engage in, or otherwise supporting contraception, sterilization, or abortion. E WTN is one of many American religious organizations that hold these beliefs. 4. Based on t he teachings of the Catholic Church, and its own deeply held beliefs, EWTN does not believe that contraception, sterilization, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well being of persons. Indeed,
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EWTN believes these procedures involve gravely immoral practices, including the intentional destruction of innocent human life.
5. With full knowledge of these beliefs, Defendants1 issued an administrative rule (“the Mandate”) that not only forces EWTN to treat contraception, sterilization, abortion, and related education and counseling as health care, but that also subverts the expression of EWTN’s religious beliefs, and the beliefs of millions of other Americans, by forcing EWTN to fund, promote, and assist others to acquire services which EWTN believes involve gravely immoral practices, including the destruction of innocent human life.
6. The Mandate unconstitutionally coerces EWTN to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces EWTN to fund government-dictated speech that is directly at odds with its own speech and religious teachings. Having to pay a fine to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional.
7. The Defendants’ refusal to accommodate conscience is also highly selective. A patchwork of seemingly arbitrary exemptions from the Affordable Care Act announces that Defendants do not believe every insurance plan in the country need cover these services. For instance, Defendants have issued thousands of waivers from the Affordable Care Act altogether for groups, such as many large corporations, purely for reasons of commercial convenience. Other exemptions have been awarded based on how old a plan is or how large an employer is. Missing, however, is any exemption for employers whose religious consciences instruct them that certain mandated services are ethically repugnant. In other words, the Defendants’ pattern

1

All defendants are referred to collectively as “D efendants” unless context requires greater

specificity.

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of exemptions reveals a massive blind spot for groups exercising their fundamental First Amendment freedoms.
8. The Defendants’ actions therefore violate EWTN’s right to freedom of religion, as secured by the First Amendment to the United States Constitution and by a civil rights statute, the Religious Freedom Restoration Act (RFRA).
9. The Defendants’ actions also violate EWTN’s right to the freedom of speech, as secured by the First Amendment to the United States Constitution.
10. Furthermore, the Mandate is also illegal because it w as imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
11. Had EWTN’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 w ide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by the Defendants on the religious beliefs of EWTN and millions of other Americans. The Defendants have, in sum, intentionally used government power to force religious groups to believe something about the mandated services manifestly contrary to their own religious convictions, and then to act on that coerced belief. EWTN seeks declaratory and injunctive relief to protect against this attack.
JURISDICTION AND VENUE 12. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 a nd § 1361. This action arises under the Constitution and laws of the United States. This Court has
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jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1.
13. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). EWTN is located in this district.
IDENTIFICATION OF PARTIES 14. Plaintiff EWTN is a non-profit corporation organized under section 501(c)(3) of the Internal Revenue Code and is principally located in Jefferson County, Alabama. 15. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 16. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (HHS). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 17. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only. 18. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate. 19. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
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20. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTUAL ALLEGATIONS I. EWTN’s Religious Beliefs and Practices Related to Contraception, Sterilization, and
Abortion. 21. In 1981, M other M. Angelica, a cloistered nun of the Poor Clares of Perpetual Adoration order, founded EWTN on the property of Our Lady of Angels Monastery in Irondale, Alabama. Since then, EWTN has grown to become the largest Catholic media network in the world, transmitting programming 24 hour s a day in English and Spanish to more than 217 million homes in 144 countries and territories on more than 4,600 m ultichannel video programming distribution systems, two distinct 24 hour radio services broadcast worldwide on shortwave radio direct over internet, and through more than 175 affiliated broadcast stations in the United States as well as other communications media, such as its principal website which receives about 2 million visits per month. 22. EWTN airs family and religious programming from a Catholic point of view that presents the teachings of the Catholic faith as defined by the Magisterium (teaching authority) of the Catholic Church. Additionally, it provides spiritual devotions from Catholic religious practice, and airs daily live Masses and prayers. P roviding more than 80% original programming, EWTN offers talk shows, children’s animation, teaching series, documentaries, and live coverage of Catholic Church events. 23. A deep devotion to the Catholic faith is central to EWTN’s mission. In the network’s own words:
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Eternal Word Television Network is dedicated to the advancement of truth as defined by the Magisterium of the Roman Catholic Church. The mission of the Eternal Word Television Network is to serve the orthodox belief and teaching of the Church as proclaimed by the Supreme Pontiff and his predecessors. The goal of the Eternal Word Television Network is to provide the means by which the various organizations within the Church will have a nation-wide vehicle of expression. This will be provided for them without charge as long as their spirituality remains within the theological context of Mother Church. This is best evidenced by the acceptance of the Dogmas, Rules and Regulations of the Church in all matters, but especially as they relate to the topics on which their television presentation is based. As the Eternal Word Television Network exists to provide a media for orthodox endeavors, this mission statement should be viewed as the basis of or foundation for this essential spiritual growth ministry, not as an attempt to censor any organization or individual….
Indeed, above and beyond EWTN’s religious programming, the network’s religious centers
themselves are visited daily by pilgrims who travel to worship at the EWTN chapel in Irondale,
Alabama, or to visit the beautiful Shrine of the Most Blessed Sacrament in nearby Hanceville,
Alabama.
24. EWTN thus holds and actively professes religious beliefs that include traditional
Christian teachings on the sanctity of life. It believes and teaches 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. EWTN therefore believes and teaches that abortion ends a human life
and is a grave sin.
25. EWTN’s religious beliefs also include traditional Christian teaching on the nature and
purpose of human sexuality. In particular, EWTN believes, in accordance with Pope Paul VI’s
1968 encyclical Humanae Vitae, that human sexuality has two primary purposes: to “most
closely unit[e] husband and wife” and “for the generation of new lives.” Accordingly, EWTN
believes and actively professes, with the Catholic Church, that “[t]o use this divine gift
destroying, even if only partially, its meaning and its purpose is to contradict the nature both of
man and of woman and of their most intimate relationship, and therefore it is to contradict also
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the plan of God and His Will.” Therefore, EWTN believes and teaches that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception and sterilization—is a grave sin.
26. Furthermore, EWTN subscribes to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, EWTN believes, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.”
27. EWTN has approximately 340 employees. 28. As part of its commitment to Catholic social teaching, EWTN promotes the wellbeing and health of its employees. In furtherance of these beliefs, EWTN has striven over the years to provide employee health coverage superior to coverage generally available in the Alabama market. 29. Moreover, as part of its religious commitment to the authoritative teachings of the Catholic Church, EWTN cannot provide health care insurance covering artificial contraception, sterilization, or abortion, or related education and counseling, without violating its deeply held religious beliefs. 30. EWTN ensures that its insurance policies do no t cover drugs, devices, services or procedures inconsistent with its faith. In particular, EWTN has taken great pains through the years to ensure that its insurance plans do not cover sterilization, contraception, or abortion.
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31. EWTN cannot provide information or guidance to its employees about other locations at which they can access artificial contraception, sterilization, abortion, or related education and counseling, without violating its deeply held religious beliefs.
32. EWTN’s plan year begins on July 1. 33. Furthermore, EWTN exists on donations from the public. EWTN does not generate revenue from carriage fees and advertising, and indeed prohibits any form of commercial advertising on its television services. Donors who give to EWTN do so with an understanding of EWTN’s mission and with the assurance that EWTN will continue to adhere to, disseminate, and report reliable Catholic teachings on morality and practices, as its Mission Statement has declared since its inception. 34. EWTN cannot use donated funds for purposes known to be morally repugnant to its donors and in ways that violate the implicit trust of the purpose of their donations. II. The Affordable Care Act 35. In March 2010, Congress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010 ), collectively known as the “Affordable Care Act.” 36. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.” 37. The Act does not apply equally to all insurers. 38. The Act does not apply equally to all individuals.
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39. The Act does not apply its fine provisions for failure to offer employer-sponsored insurance to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A).
40. According to the United States census, more than 20 m illion individuals are employed by firms with fewer than 20 employees. http://www.census.gov/econ/smallbus.html.
41. Certain provisions of the Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria).
42. The Act’s preventive care requirements do not apply to employers who provide socalled “grandfathered” health care plans.
43. Employers may continue to use grandfathered plans, but only if they abide by HHS guidelines. See 42 U.S.C. § 18011(a)(2); 26 C .F.R. § 54.9815-1251T; 29 C .F.R. § 2590.7151251; 45 C.F.R. § 147.140.
44. HHS has predicted that a m ajority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, a nd that a third of small employers with between 50 and 100 e mployees may do l ikewise. http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html.
45. The Act is not generally applicable because it provides for numerous exemptions from its rules.
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46. The Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not.
47. The Act creates a system of individualized exemptions. 48. The Department of Health and Human Services has the authority under the Act to grant compliance waivers (“HHS waivers”) to employers and other health insurance plan issuers. 49. HHS waivers release employers and other plan issuers from complying with the provisions of the Act. 50. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers. 51. Upon information and belief, more than a thousand HHS waivers have been granted. 52. The Act is not neutral because some secular and religious groups have received statutory exceptions while other religious groups have not. 53. The Act is not neutral because some secular and religious groups have received HHS waivers while other religious groups have not. 54. The Act is not generally applicable because Defendants have granted numerous waivers from complying with its requirements. 55. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers. 56. Defendants’ waiver practices create a system of individualized exemptions. III. The Preventive Care Mandate 57. One of the provisions of the Affordable Care Act mandates that health plans “provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines
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supported by the Health Resources and Services Administration” and directs the Secretary of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
58. On July 19, 2010, H HS, along with the Department of Treasury and the 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).
59. HHS accepted public comments to the 2010 interim final rule until September 17, 2010. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of health care, including contraception, sterilization, and abortion.
60. 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 all health plans as preventative care for women. See http://www.hrsa.gov/womensguidelines.
61. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America and Sara Rosenbaum.
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62. No religious groups or other groups that oppose government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
63. One year after the first interim final rule was published, on J uly 19, 2011, the IOM published its recommendations. It recommended that the preventative services include sterilization procedures and “All Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
64. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures.
65. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the Department of Labor, and the Department of Treasury adopted the IOM recommendations in full and promulgated an interim final rule (“the Mandate”), which requires that all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” provide all FDA-approved contraceptive methods and sterilization procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. On the same day HRSA issued guidelines adopting the IOM recommendations. http://www.hrsa.gov/womensguidelines.
66. The Mandate also requires group health care plans and issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
67. The Mandate went into effect immediately as an “interim final rule.”
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68. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued.
69. Instead the Mandate was unresponsive to the concerns stated in the comments submitted by religious organizations.
70. When it issued the Mandate, HHS requested comments from the public by September 30th and indicated that comments would be available online.
71. Upon information and belief, over 100,000 c omments were submitted against the Mandate.
72. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations like EWTN which have been pointed out in comments.
73. On October 5, 2011, s ix days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.” She did not state whom she and NARAL Pro-Choice America were warring against. IV. The Narrow and Discretionary Religious Exemption
74. The Mandate indicates that 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).
75. The Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] 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
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6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
76. 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.”
77. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
78. Most religious organizations, including EWTN, have more than one purpose. 79. For most religious organizations, including EWTN, the inculcation of religious values is only one purpose among others. 80. Many religious organizations, including EWTN, employ many persons who do not share the religious organization’s beliefs. 81. Many religious organizations, including EWTN, serve many persons who do not share the religious tenets of the religious organization. 82. EWTN is not an organization described in Section 6033(a)(1) and Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 83. EWTN reasonably expects that it will be subject to the Mandate despite the existence of the exemption. 84. EWTN has no conscientious objection to providing preventive services such as mammograms. 85. On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exemption. She added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided
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an additional year, until August 1, 2013, t o comply with the new law,” on t he condition that those employers certify they qualify for the extension. A t the same time, however, Sebelius announced that HHS “intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with incomebased support.” See Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited February 7, 2012). V. The Mandate and the Religious Exemption Become Final, Without Change.
86. On February 10, 2012, President Obama held a press conference at which he announced an intention to initiate, at some unspecified future date, a separate rulemaking process that would work toward creating a different contraceptive services mandate. T his promised mandate would, the President stated, attempt take into account the kinds of religious objections voiced against the original Mandate contained in the interim final rule.
87. On that same day—February 10, 2012—the Defendants issued a “guidance bulletin” describing a “T emporary Enforcement Safe Harbor” (“Safe Harbor”) from the Mandate. T he Safe Harbor applies to “non-exempted, non-grandfathered group health plans established and maintained by non-profit organizations with religious objections to contraceptive coverage (and any health insurance coverage offered in connection with such plans).” Under the Safe Harbor, the Defendants state that qualifying organizations will not be subject to enforcement of the Mandate “until the first plan year that begins on or after August 1, 2013 ,” provided they meet certain criteria outlined in the guidance bulletin.2

2

See “Guidance on Temporary Enforcement Safe Harbor for Certain Employers, Group Health

Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive

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88. Those Safe Harbor criteria require an organization to self-certify that (1) it operates as a non-profit; (2) it has not, from February 10, 2012 onward, offered “contraceptive coverage … by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization”; and (3) it has provided (for the first plan year beginning on or after August 1, 2012) a notice to plan participants stating that “[t]he organization that sponsors your group’s health plan has certified that it qualifies for a temporary enforcement safe harbor with respect to the Federal requirement to cover contraceptive services without cost sharing,” and that “[d]uring this one-year period, coverage under your group health plan will not include coverage of contraceptive services.”
89. On February 15, 2012, the Defendants adopted as final, “without change,” the Mandate and its narrow “religious employer” exemption. 77 Fed. Reg. 8725, 8727, 8730.
90. On March 16, 2012, t he Defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”). The ANPRM announced the Defendants’ intention to create some form of “accommodation” for non-exempt religious organizations under which the Defendants would require a health insurance issuer (or third party administrator) to provide contraceptive coverage—without cost sharing and without charge—to employees covered under the organization’s health plan. The ANPRM solicited public comments on structuring the potential accommodation, and announced the Defendants’ intention to finalize it by the end of the Safe Harbor period. See 77 Fed. Reg. 16501 (published Mar. 21, 2012).
Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code,” U.S. DEP’T OF HEALTH & HUMAN SERV’S (Feb. 10, 201 2), at 3, available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last visited February 17, 2012).
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91. The ANPRM did not announce any intention to alter the Mandate or its narrow “religious employer” exemption, which were “adopted as a final rule, without change” on February 15, 2012. 77 Fed. Reg. 8725, 8727, 8730.
92. In sum, group health plans and issuers will be subject to the Mandate starting with the first insurance plan year that begins on or after August 1, 2012. Group health plans and issuers eligible for the Safe Harbor will be subject to the Mandate starting with the first insurance plan year that begins on or after August 1, 2013. VI. The Mandate’s Actual and Imminent Effects on EWTN
93. Under the terms of the now-final Mandate and the accompanying Safe Harbor, EWTN will be subject to the Mandate starting with its plan year that begins on July 1, 2014.
94. Thus, the Mandate now requires that, on a d ate certain, EWTN will be forced to provide coverage for contraception, sterilization, abortion, and related education and counseling against its conscience in a manner that is contrary to law.
95. The Mandate thus now imposes government pressure and coercion on EWTN to change or violate its religious beliefs.
96. The Mandate threatens EWTN with substantial fines for refusal to change or violate its religious beliefs.
97. The Mandate now imposes a burden on EWTN’s employee recruitment efforts by creating present uncertainty as to whether EWTN will be able to offer health insurance beyond a date certain in the future.
98. The Mandate presently places EWTN at a competitive disadvantage in its efforts to recruit and retain employees.
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99. The Mandate will force EWTN to provide contraception, sterilization, and some abortifacient drugs in violation of EWTN’s religious beliefs that doing so is gravely immoral and, in certain cases, equivalent to assisting another to destroy innocent human life.
100. The Mandate will force EWTN to provide emergency contraception in violation of its religious beliefs that this is equivalent to assisting another to destroy innocent human life.
101. EWTN has a sincere religious objection to providing coverage for emergency contraceptive drugs such as Plan B and ella 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 person.
102. EWTN considers the prevention by artificial means of the implantation of a human embryo to be an abortion.
103. EWTN believes that Plan B and ella can cause the death of the embryo, which is a person.
104. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 105. Ella can prevent the implantation of a human embryo in the wall of the uterus. 106. Plan B and ella can cause the death of the embryo. 107. 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. 108. The use of artificial means to cause the death of a human embryo constitutes an “abortion” as that term is used in federal law. 109. The Mandate will force EWTN to provide emergency contraception, including Plan B and ella, free of charge, regardless of the ability of insured persons to obtain these drugs from other sources.
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110. The Mandate will force EWTN to facilitate education and counseling concerning contraception, sterilization, and abortion that directly conflicts with EWTN’s religious beliefs and teachings.
111. EWTN could not terminate its employees from health insurance coverage without violating its religious duty to provide for the health and well-being of its employees. Additionally, employees would be unable to attain similar coverage in the market as it e xists today.
112. The Mandate will force EWTN to choose among violating its religious beliefs, incurring substantial fines, or terminating its employee health insurance coverage.
113. Providing counseling and education about contraceptives, sterilization, and abortion directly undermines and subverts the explicit messages and speech of EWTN.
114. EWTN has already had to devote significant institutional resources, including both staff time and funds, to determining how to respond to the Mandate. EWTN anticipates continuing to make such expenditures of time and money up until the time that the Mandate goes into effect.
115. Even under the “accommodation” sketched out in the Defendants’ March 16, 2012 ANPRM—and assuming further that such an “accommodation” would ever be finalized under any of the various suggested terms—the Mandate would still impose all of the foregoing harms on EWTN by coercing it to participate in the provision of items and services that violate EWTN’s religious beliefs.
116. EWTN does not believe its employee health plan is eligible for grandfather status. 117. Regardless, EWTN foresees making plan changes effective July 1, 2012 that would likely cause it to lose grandfather status in any event.
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CLAIMS COUNT I Violation of the Religious Freedom Restoration Act 118. EWTN incorporates by reference all preceding paragraphs. 119. EWTN’s sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. EWTN’s compliance with these beliefs is a religious exercise. 120. The Mandate creates government-imposed coercive pressure on EWTN to change or violate its religious beliefs. 121. The Mandate chills EWTN’s religious exercise. 122. The Mandate exposes EWTN to substantial fines for its religious exercise. 123. The Mandate exposes EWTN to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 124. The Mandate imposes a substantial burden on EWTN’s religious exercise. 125. The Mandate furthers no compelling governmental interest. 126. The Mandate is not narrowly tailored to any compelling governmental interest. 127. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 128. The Mandate and Defendants’ threatened enforcement of the Mandate violate EWTN’s rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 129. Absent injunctive and declaratory relief against the Defendants, EWTN has been and will continue to be harmed.
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COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause The Mandate is neither neutral nor generally applicable 130. EWTN incorporates by reference all preceding paragraphs. 131. EWTN’s sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. EWTN’s compliance with these beliefs is a religious exercise. 132. Neither the Affordable Care Act nor the Mandate is neutral. 133. Neither the Affordable Care Act nor the Mandate is generally applicable. 134. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 135. The Mandate furthers no compelling governmental interest. 136. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 137. The Mandate creates government-imposed coercive pressure on EWTN to change or violate its religious beliefs. 138. The Mandate chills EWTN’s religious exercise. 139. The Mandate exposes EWTN to substantial fines for its religious exercise. 140. The Mandate exposes EWTN to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 141. The Mandate imposes a substantial burden on EWTN’s religious exercise. 142. The Mandate is not narrowly tailored to any compelling governmental interest.
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143. The Mandate and Defendants’ threatened enforcement of the Mandate violate EWTN’s rights secured to it by the Free Exercise Clause of the First Amendment to the United States Constitution.
144. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause The Mandate intentionally discriminates 145. EWTN incorporates by reference all preceding paragraphs. 146. EWTN’s sincerely held religious beliefs prohibit it from providing coverage for contraception, sterilization, abortion, or related education and counseling. EWTN’s compliance with these beliefs is a religious exercise. 147. 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 EWTN to comply with its religious beliefs. 148. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of EWTN and others. 149. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate EWTN’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 150. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
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COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise Clause The Mandate discriminates among religions 151. EWTN incorporates by reference all preceding paragraphs. 152. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religions. 153. 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.” 154. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate EWTN’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 155. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Establishment Clause The Mandate prefers certain denominations over others 156. EWTN incorporates by reference all preceding paragraphs. 157. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on EWTN. 158. 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.” 159. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violate EWTN’s rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution.
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160. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 161. EWTN incorporates by reference all preceding paragraphs. 162. EWTN teaches that contraception, sterilization, and abortion violate its religious beliefs. 163. The Mandate would compel EWTN to subsidize activities that EWTN teaches are violations of the College’s religious beliefs. 164. The Mandate would compel EWTN to provide education and counseling related to contraception, sterilization, and abortion. 165. Defendants’ actions thus violate EWTN’s right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 166. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest. 167. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT VII Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 168. EWTN incorporates by reference all preceding paragraphs. 169. EWTN teaches that contraception, sterilization, and abortion violate its religious beliefs.
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170. The Mandate would compel EWTN to subsidize activities that EWTN teaches are violations of EWTN religious beliefs.
171. The Mandate would compel EWTN to provide education and counseling related to contraception, sterilization, and abortion.
172. Defendants’ actions thus violate EWTN’s right of expressive association as secured to it by the First Amendment of the United States Constitution.
173. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT VIII Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
174. EWTN incorporates by reference all preceding paragraphs. 175. By stating that HRSA “may” grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations can have its First Amendment interests accommodated. 176. The Mandate vests HRSA with unbridled discretion to determine whether a religious organization such as EWTN “primarily” serves and employs members of the same faith as the organization. 177. Defendants’ actions therefore violate EWTN’s right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution. 178. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
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COUNT IX Violation of the Administrative Procedure Act
Lack of Good Cause 179. EWTN incorporates by reference all preceding paragraphs. 180. 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.’ 181. 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.” Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 182. Therefore, Defendants have taken agency action not in observance with procedures required by law, and EWTN is entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 183. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT X Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 184. EWTN incorporates by reference all preceding paragraphs. 185. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on EWTN and similar organizations. 186. Defendants’ explanation for its decision not to exempt EWTN and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
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187. Thus, 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.
188. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT XI Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 189. EWTN incorporates by reference all preceding paragraphs. 190. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008). 191. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” 192. The Mandate requires issuers, including EWTN, to provide coverage of all Federal Drug Administration-approved contraceptives. 193. Some FDA-approved contraceptives cause abortions. 194. As set forth above, the Mandate violates RFRA and the First Amendment.
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195. Under 5 U.S.C. § 706( 2)(A), the Mandate is contrary to existing law, and is in violation of the APA.
196. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Affordable Care Act
197. EWTN incorporates by reference all preceding paragraphs. 198. The Mandate is contrary to the provisions of the Affordable Care Act. 199. Section 1303(b)(1)(A) 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.” 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. The Mandate requires issuers, including EWTN, to provide coverage of all Federal Drug Administration-approved contraceptives. 203. Some FDA-approved contraceptives cause abortions. 204. Under 5 U.S.C. § 706( 2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 205. Absent injunctive and declaratory relief against the Mandate, EWTN has been and will continue to be harmed.
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PRAYER FOR RELIEF Wherefore, EWTN requests that the Court:
a. Declare that the Mandate and Defendants’ enforcement of the Mandate against EWTN violates the First Amendment to the United States Constitution;
b. Declare that the Mandate and Defendants’ enforcement of the Mandate against EWTN violates the Religious Freedom Restoration Act;
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
d. Issue an order prohibiting Defendants from enforcing the Mandate against EWTN and other religious organizations that object to providing insurance coverage for contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling;
e. Award EWTN 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 this 21st day of March, 2012.
/s/ S. Kyle Duncan S. Kyle Duncan, LA Bar No. 25038 Eric N. Kniffin, DC Bar No. 999473 Mark Rienzi, DC Bar No. 494336 THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K St. NW, Ste. 220 Washington, DC 20007 Tel.: (202) 955-0095 Fax: (202) 955-0090 kduncan@becketfund.org Counsel for Plaintiff EWTN, Inc. 5817 Old Leeds Rd. Irondale, AL 35210
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 Case 2:12-cv-00501-SLB Document 15 Filed 03/22/12 Page 1 of 21

FILED
2012 Mar-22 AM 08:40 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

STATE OF ALABAMA, by and

)

through Luther Strange, Attorney

)

General of the State of Alabama,

)

LUTHER STRANGE, in his official )

capacity as Attorney General of the )

State of Alabama,

)

Plaintiffs-Intervenors,

)

)

ETERNAL WORD TELEVISION )

NETWORK, INC.

)

Plaintiff,

)

)

v.

)

)

KATHLEEN SEBELIUS, Secretary )

of the United States Department of )

Health and Human Services,

)

UNITED STATES DEPARTMENT )

OF HEALTH AND HUMAN

)

SERVICES,

)

HILDA SOLIS, Secretary of the

)

United States Department of Labor, )

UNITED STATES DEPARTMENT )

OF LABOR, TIMOTHY

)

GEITHNER, Secretary of the United )

States Department of the Treasury, )

and

)

UNITED STATES DEPARTMENT )

OF THE TREASURY,

)

Defendants.

)

2:12-cv-00501-SLB

THE STATE OF ALABAMA AND ATTORNEY GENERAL LUTHER STRANGE’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO
INTERVENE

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INTRODUCTION The State of Alabama and its Attorney General Luther Strange request t o intervene as additional plaintiffs to prot ect and advance three compelling interests. First, the State seeks to preserve its ab ility to provide insurance coverage to its citizens in a mann er that is consistent with Alabama law and the right of conscience. Second, the State seeks to minimize the number of uninsured Alabama citizens for whom th e State bears the burden of providing healthcare. The federal regulation at the heart of this la wsuit thwarts both of these objectives. It mandates the type of health insurance that Al abama can offer on its state-run health insurance exchange and, if lawful, it pr eempts Alabama law guaranteeing citizens’ right of conscience. Moreover, the regul ation would force conscientious objectors to opt-out of the private health plans that currently cover them. The practical result of the regulation will thus be to increas e the num ber of persons that require healthcare from Medicaid and state-support ed hospitals. Lastly, t he Attorney General has statutory responsibilities to ensure that charitable institutions adhere to their purposes and bylaws and to advise state officers on how to conduct programs consistent with state and fe deral law. Because the federal mandate at issue in this lawsuit threatens to interfere with the mission of religious not-for-profits and because the result of this lawsuit will as a practical matter control the
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administration of a state program , the Atto rney General has an interest in this litigation stemming from the prerogatives of his office.
BACKGROUND Eternal World Television Network, Inc., (“EWTN”), an Alabam a non-profit corporation with a charitable and religious purpose, filed this suit for declarator y and injunctive relief against certain o fficers and departm ents of the Federal Government. EWTN challenges the legality of regulations issued pursuant to the 2010 Affordable Care Act that require all “group health plan[s] and . . . health insurance issuer[s] offering group or i ndividual health insurance coverage” to provide all FDA-approved contraceptive methods and sterilization procedures. See 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. EWTN argues that these regulations (“the Mandate”) v iolate the First Am endment to the United States Constitution, the Religious Freed om Restoration Act (“RFRA”), 2 U.S.C. § 2000bb et seq., and the Administrative Procedures Act, 5 U.S.C. § 553.
Alabama’s government and people have a long tradition of respect for religious freedom and the right to cons cience. For the State’s roughly 200-year history, Alabama’s Constitution has declared – in every iteration – “tha t the civil rights, privileges, and capacities of any citi zen shall not be in any manner affected by his religious principles.” Ala. Const. art. I, sec. 3 (1901); A la. Const. art. I, sec. 4 (1875); Ala. Const. art. I, sec. 4 (1865) ; Ala. Const. art I, sec. 6 (1861); Ala.
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Const. art. I, sec. 6 (1819). And, in the 1998 election, Alabama voters ratified the Alabama Religious Freedom Amendment (“ARFA”) to the Constitution, which tracks the language and intent of the fe deral RFRA. Alabama is one of only a dozen states that have enacted such a la w, and it is the only state to have done so by an amendment to its constitution.
Consistent with these principles , Alabama law does not mandate that insurers provide contraception or sterili zation coverage or th at any employer o r person purchase such covera ge. The pharmaceutical insurance coverag e article o f the Alabama Code provides expressly that the article “do[es] not mandate that any type of benefits for pharmaceutical services, including without limitation, prescription drugs, be provided by a health insurance policy or an employee benefit plan.” Ala. Code § 27-45-5. Instead, Al abama citizens enjoy the freedom to selfinsure, to contract for an insurance pl an that does not cover contraceptive and sterilization services, or to contract with a religious-affiliated insurer that does not offer coverage for these services in any of its available plans.
The Patient Protection and Affordable Care Act of 2010 (“ACA”) provides for the creation of state-based Health Insurance Exchan ges that will allow consumers to acces s and evaluate hea lth insurance coverage options from commercial insurers, determine eligibility for federal subsidies, and enroll in health insurance coverage of their choice. Spec ifically, Section 1311 of the ACA requires
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that “[e]ach State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (‘Exchange’) that facilitates the p urchase of qualified health plans; [and] provides for the es tablishment of a Small Business Healt h Options Program (‘SHOP Exchange’) that is designed to assist qualified employers in the State who are sm all employers in facilitating the enrollment of their employees in qualified health plans offered in the small group market in the State.”
Alabama is in the process of establis hing its Exchange. A working group of state officials made f ormal recommendations about the structure and nature of the Exchange to the Governor, whi ch caused the Alabama Department of Insurance to establish an Office of the Alabama Health Insurance Exchange. See Gov. Bentley’s Exec. Order No. 17 (June 2, 2011), att ached as Exhibit A; Alabama Health Insurance Exchange Study Co mmission Recommendations, Ala. Dept. of Ins. (Nov. 2011), attached as Exhibit B. The State is in the process of developing guidelines and regulations to govern the insurance plan s that will be listed on the anticipated Exchange. For exam ple, on February 23, 2012, the Office published a Request for Information to identify vendor s and contracting partners that can structure the program to best fit the State of Alabama. See Alabama Department of Insurance Office of t he Alabama Health Insurance Exchange (HIX), RFI Request Number: HIX2012-01 (Feb. 23, 2012), a ttached as Exhibit C. Additional legislative steps are being taken to esta blish the State’s Exchange. House Bill 245
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was recently introduced in the Alabama Legislature, and would create the Alabama Health Insurance Exchange. See Exhibit D.
At the same ti me that the State is developing an Exchange, the State is experiencing budget shortfalls that lim it the amount and nature of healthcare that the State can provide to its citizens. Th e State currently funds hospitals that provide uncompensated care to indi viduals who are not covered by a health insurance plan. See 42 U.S.C. § 1395dd (1 986) (requiring hospitals to provide emergency uncompensated care). For exam ple, for the fiscal year of 2010 through 2011, the Hospital at the University of Alabama at Birm ingham estimated that i t would receive $33,520,847 from state appropriations, but would spend m uch more than that, $246,130,722, prov iding uncompensated care. See The Un iversity of Alabama at Birm ingham FY 2010-2011 Oper ating Budget, at 43, attached as Exhibit E. Similarly, the State budgeted $502 million in fiscal year 2012 to provide health care to Alabama citizen s who are eligible for Medicai d. See Alabama Dept. of Finance, State General Fund and Ea rmarked Funds Budget Summary, Medicaid Agency, attached as Exhib it F. For fiscal year 2013, however, the Governor proposed budget suggests that the Medicaid budget be reduced to $315 million. Id
ARGUMENT The State of Alabama and its Attorn ey General should be perm itted to intervene in this lawsuit under Federal Ru le of Civil Procedure 24(a) and (b). Rule
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24(a) provides the right to intervene when an applicant “claims an interest relating to the property or transaction that is the su bject of the action, and is so situated that disposing of t he action m ay as a practical matter im pair or im pede the m ovant’s ability to protect its interest, unless exis ting parties adequately represent that interest.” Fed. R. Civ. P. 24(a). Rule 24(b) provides permission to intervene “when an applicant’s claim or defense and the ma in action have a question of la w or fact in common” and when the pending case tu rns on a “statute or executive order administered by a federal or state govern mental officer or agency” that seeks intervention. Fed. R. Civ. P. 24(b).
I. The State Through Its Attorney General Has the Right To Intervene under Rule 24(a)(2).
The Court m ust permit a party to in tervene under Rule 24(a)(2) when: (1) the motion is timely; (2) the party has an interest relating to the transaction which is the subject of the action; (3) the di sposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest; and (4) the party’s interest may not be adequately represented by existing parties. See Chiles v. Thornburgh, 865 F. 2d 1197, 1213 (11t h Cir. 1989). Rule 24(a) is construed “liberally in favor of potential interveners.” Southwest Ctr. For Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001). “Any doubt concerning t he propriety of allowing interv ention should be resol ved in fa vor of the proposed
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intervenors because it allows the court to resolve all related disputes in a single action.” Federal Sav. & Loan Ins. Corp. v. Falls Chase Special Taxing Dist. , 983 F.2d 211, 216 (11th Cir.1993). The State of Alabama through its Attorney General has the right to intervene under Rule 24(a)(2).
A. The motion to intervene is timely. This case is still in its early stages and the m otion to intervene is timely. EWTN’s complaint was file d on February 9, 2012, and the Defendants have not yet filed a responsi ve pleading. The tim ing of t he motion to intervene is wellwithin the time period in whic h the Eleventh Circuit has approved of intervention. See, e.g., Chiles v. Thornburgh , 865 F. 2d 1197, 1213 (11t h Cir. 1989) (m otion filed seven months after complaint, three months after defendants file d motion to dismiss, and before a ny discovery had begun); Diaz v. Southern Dril ling Corp., 427 F.2d 1118, 1125-26 (5th Cir. 1970) (motion to intervene more than a year after the action was co mmenced was timely when there had been no legally signi ficant proceedings other than the compl etion of discovery and motion would not cause any delay in the process of the overall litigation). None of the current parties to the lawsuit could be prejudiced by the State and Attorney General’s intervention at this early time. Chiles, 865 F.2d at 1214. B. The State has an interest in the subject matter of the action.
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The State has a “ direct, substantial, legally protectable interest in th e proceeding.” Chiles, 865 F.2d at 1214. The inquiry on this issue is “‘a flexible one, which focuses on the particular facts a nd circumstances surrounding each [motion for intervention].’ ” United States v. Perry C ounty Board of Education, 567 F.2d 277, 279 (5th Cir.1978) (quoti ng United States v. Alle gheny-Ludlum Indus., Inc. , 517 F.2d 826, 841 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976)). An interv enor’s interests “need not . . . be of a legal nature identical to that of the claims asserted in the mai n action.” Chiles, 865 F.2d at 1214. And “a party seeking to intervene need not demonstrate that he has standing in addition to m eeting the requirem ents of Rule 24 as long as there exists a justiciable case and controversy between the parties already in the lawsuit.” Id. at 1213. Accord Dillard v. Chilton County Com'n 495 F.3d 1324, 1337 (11th Cir. 2007) (per curiam); Loyd v. Alabama Dept. of Corrections , 176 F.3d 1336, 1339 (11th Cir. 1999).
1. The State has two interests that require intervention to protect. The State’s interest in the subject matter of the litigation arises out of its role in creating an insurance ex change and providing health care to uninsure d Alabamians. Because of the Mandate, the St ate will not be able to make insurance available to its citizens or list insurance on its exchange if that insurance excludes contraception and sterilization services, re gardless of the State’s i nterest in
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providing that opt ion to it s citizens and regardless of Alabama citizens’ conscientious objection to subsidizing contraception and sterilization services. The subject matter of this dispute will affect the State in two ways.
First, the Mandate lim its the State’s ab ility to offer insurance options to its citizens on its exchange and re quires the State to structure its insurance exchange in ways that are likely to violate Al abama and federal la w. Like the federal Religious Freedom Restoration Act with re spect to the Federal Governm ent, the Alabama Constitution prevents the State from enforcing a “statute, regulation, ordinance, administrative provision, ruling gui deline, requirement, or any statement of law whatever” th at “burden[s] a person’s freedom of religion” unless it is “in furtherance of a com pelling government interest; and [i] s the least restrictive means of furtheri ng that compelling governmental interest.” A LA. CONST., AMEND. 622. The Mandate, however, nece ssarily excludes insurers from the State’s exchange if they do not offer contraceptive coverage, even if such plans are motivated by the religious principles of the insurer or the insured. Federal law requires that a state-run exchange can not establish rules t hat “conflict with or prevent the application” of other regula tions, such as the Mandate, prom ulgated by HHS under the Affordable Care Act. See 76 Fed. Reg. 136, 41914 (to be codified at 45 C.F.R. § 155.120(a) (July 15, 2011). If the State refuses to incorporate the Mandate into the criteria it sets for its he alth care exchange, the United States will
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reject and take over the State’s program. Id. at 41913 (to be codified at 45 C.F.R. § 155.105(f) (If a State elects not to establish an Exchange, or its Exchange is not approved by HHS, “HHS m ust … establish an d operate such Exchange within the State.”). Because the Mandate requires a ll insurers to offer contraception and sterilization coverage, it also prevents the State from allowing contrary plans to list on the exchange as a practical matter.
Second, the Mandate will impose direct costs on the State’s healthcare system. The Mandate will induce certain religiously-motivated individuals and organizations like EWTN to drop insurance coverage, causing a net increase in the number of un-insured Alabama citizens. “[T]he decision by the uninsured to forego insurance results in a co st-shifting scenario.” Florida ex rel. Atty. Gen. v. U.S. Dept. of Health and Human Services , 648 F.3d 1235, 1244 ( 11th Cir. 2011). Thi s decline in coverage will shift the cost of providing m edical care to these newly uninsured citizens onto Medicaid and State-financed hospitals such as UAB, which must provide emergency care re gardless of ability to pay. See 42 U.S.C. § 1395dd (1986) (requiring hospitals to provide uncompensated emergency care).
2. These are precisely the kind of interests that warrant intervention. The State’s interests in the control of its proposed exchange and in state resources spent to provi de healthcare to citizens ar e substantial and warrant intervention. Although the Eleventh Circu it has held that an intervener does no t
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have to establish standing, “[ t]he standing cases . . . are relevant to help define the type of interest that the intervenor must assert.” Chiles, 865 F.2d at 1213. It is, therefore, powerful evidence of the sufficiency of the Stat es’ interests that they are sufficient to confer standing on the State t o sue federal officers. Because the States have a legally protected interest in “the exercise of sovereign power over individuals and entities within the relev ant jurisdiction,” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601, 102 S.Ct. 3260 (1982), federal regulatory action that preempts state re gulation causes an injury-in-fact that satisfies Article III. See Wyoming v. United States, 539 F.3d 1236 (10th Cir. 2008); Texas Office of Pub. Util. Co unsel v. FCC, 183 F.3d 393, 409 (5th Cir.1999); Alaska v. U.S. Dep't of Transp., 868 F.2d 441, 443 (D.C. Cir. 1989); Ohio ex rel. Celebrezze v. U.S. Dep't of Transp. , 766 F.2d 228, 232-33 (6th Cir. 1985). Similarly, a state has standing to challe nge federal action that imposes additional costs on state program s. See, e.g., Chiles v. United States , 69 F.3d 1094, 1096 (11th Cir. 1995) (State of Fl orida had standing to sue United States Attorney General over her failure to enforce immigration laws which caused Florida to incur expenses in educating and providing other public services to unlawful aliens).
Courts have specifically held that the governmental interests at issue here are sufficient to support a state’s intervention in a suit – like this one – that challenges regulations promulgated by the HHS Secretary. In two cases in t he 1980s, separate
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district courts held that the states of New York and Massachusetts had the right t o
intervene in private lawsuits against th e Secretary of HHS, which challenged the
legality of a social security regulation. See Dixon v. Heckler , 589 F.Supp. 1512
(D.C.N.Y. 1984); Avery v. Heckler, 584 F.Supp. 312 (D. Mass. 1984). These courts
explained that the regulation’s effect on th e states’ social secu rity programs was a
sufficient basis for intervention:
The first interest asserted by the Stat e arises out of its responsibility for making disability determinations and the t hreat of a possibl e federal take-over of the State’s program if it refuses to follow regulations it believes to be illegal. Such an interest appears more than adequate to support intervention.
Id. at 1515-16. Accord Avery, 584 F.Supp. at 316 (hol ding that Massachusetts
could intervene to challenge regulations because “the Secretary promulgates
regulations, which the Co mmonwealth implements”). The courts also held in the
alternative that the states’ eco nomic interest in the proper adm inistration of the
program was another interest sufficient to support intervention as of right:
The State also relies upon its econom ic interest in the proper administration of the federal disa bility programs, contending that disabled individuals who are denied benefits because of the Secretary’s unlawful regulations are compelled to turn to state and local public assistance program s upon which they would otherwise not have to depend. . . . [T]he Stat e’s economic interest in the proper administration of federal disability benefits is adequate to support intervention.
Id. Accord Avery, 584 F. Supp. at 316 (“the Co mmonwealth possesses such an
interest, a proprietary interest , to wh ich we alluded above , in m inimizing the 13

Case 2:12-cv-00501-SLB Document 15 Filed 03/22/12 Page 14 of 21
number of terminated social security beneficiaries on its welfare rolls”). Just as the states of Massachusetts and New York were authorized to intervene in private suits against HHS in the 1980s, the State of Al abama has an interest that justi fies intervention in this suit against the new HHS Mandate.
C. The resolution of this lawsuit will affect the State’s interests. The State’s interests will be affected by the resoluti on of this suit. If a nonparty will be affected in “a pra ctical sense by the determination made in an action, he should, as a general rule, be entitled to intervene.” Fed. R. Civ. P. 24, advisory committee note to 1966 amendment. The judgment in this case will affect the State in several ways, the foremost of which is that the judgment will determine whether the employees of EWTN and or sim ilarly situated parties will be able to remain on their current insurance or whether they will go uninsured. As explained above, an increase in the number of uninsured Alabam ians will directly affect the State’s bottom line. See Chiles, 69 F.3d at 1096; Avery, 584 F. Supp. at 316. The judgment in this case is also likely, as a practi cal matter, to gove rn federal officials’ enforcement of the Mandate in Alabama. The potential “negative stare decisis effect” of an adverse judgment in this case supplies an additi onal “practical disadvantage which warrants intervention of right.’” Stone v. First Union Corp. , 371 F.3d 1305, 1310 (11t h Cir. 2004) (quoti ng Chiles, 865 F.2d at 1241). “Although a[nother] dist rict court would not be bound t o follow [this] district
14

Case 2:12-cv-00501-SLB Document 15 Filed 03/22/12 Page 15 of 21
court’s determination, the decision woul d have si gnificant persuasive effects,” which are “sufficiently signific ant to warrant intervention.” Id. at 1310. The State has the right to intervene to protect its interests.
D. The State’s interest is not adequately represented by EWTN. Although EWTN is well-represente d by com petent attorneys who will vigorously pursue it s lawsuit, EWTN does not adequately represent the State’s interests in this litigation. Rule 24 “is satisfied if the applicant shows that the representation ‘may be’ inadequate,” so th at the applicant’s burden on this matt er should be ‘minimal.’” Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n.10 (1982). “Since the rule is satisfied if there is a serious possibil ity that the representation may be inad equate, all reasonable doubts should be resolved i n favor of a llowing the absentee, who has an interest different from that of any existing party, to intervene so that the absentee may be heard in his own behalf.” 7C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1909 (3d ed. 2011). Even though EWTN and the State bot h oppose the Mandate, EWTN does not adequately represent the interests of the State. See Meek v. Metropoli tan Dade County, Fla., 985 F. 2d 1471, 1478 (11t h Cir. 1993 ) (private intervenor’s i nterest not represented by governm ental party who “was required t o balance a range of interests likely to diverge from those of the intervenors”). EWTN has no interest in
15

Case 2:12-cv-00501-SLB Document 15 Filed 03/22/12 Page 16 of 21
protecting the publi c fisc from increasing num bers of uni nsured Alabamians nor does it have an interest in the State’s freedom to operate its Exchange. This divergence in interests will have a v ery real effect on the difference between EWTN’s and the State’s litigation objectives. For example, EWTN’s interest in the case may be satisfi ed if EWTN is given the freedom to refuse to sponsor an insurance plan that requires contraception coverage without also paying the ACA’s penalties for failing to provide health insurance to its employees. But that judgment would not satisfy either of the State’s interests. The State would still not be free to regulate its insurance exchange without complying with the Mandate. And, if EWTN were allowed to drop it s health insurance coverage without payi ng a fine, the State would still be faced with the cost of providing health care to the uninsured employees of EWTN and other similarly-situated persons in either Statesubsidized emergency room s or throug h Medicaid. EWTN does not adequately represent the State’s interests.
II. The State and Attorney General Should Be Permitted to Intervene under Rule 24(b).
Even if this Court believes that the St ate is not entitled to intervene as of right, the State and Attorney General shoul d still be perm itted to intervene under Rule 24(b). A party seeking to i ntervene under Rule 24(b) m ust show that: (1) his application to intervene is timely; and (2 ) his claim or defens e and the main actio n have a question of law or fact in common. See Chiles, 865 F.2d at 1213. Rule 24(b)
16

Case 2:12-cv-00501-SLB Document 15 Filed 03/22/12 Page 17 of 21
also provides that “the court may perm it a federal or state governmental officer or agency to intervene if a party’s claim or defense is based on (A) a statute or executive order administered by the officer or agency; or (B) any regulation, order, requirement, or agreement issued or m ade under t he statute or executive order.” Fed. R. 24(b)(2). In other words, a publ ic official may intervene when “an aspect of the public interest with w hich he is officially concerned is involved in the litigation.” Nuesse v. Camp, 385 F.2d 694, 706 (D.C. Cir. 1967).
Alabama’s complaint in intervention poses numerous questions of law and fact that are in common with the main action. The cons titutionality of the Mandate and whether it co mplies with the federa l RFRA and the Ad ministrative Procedure Act are two such common leg al issues. That these common questions are of broad public concern strongly favors intervention. See Meek v. Metropolitan Dade County, Fla., 985 F.2d 1471, 1479-80 (11th Cir. 1993) (“T he substantial public interest at stake in the case is an unusual circum stance militating in favor of intervention.”).
Moreover, the State’s officers must c onform the state-run Exchange to the Mandate consistent with the federal RFRA and the C onstitution of Alabama. Th e Attorney General is charged with advisi ng state agencies about how to accomplish that task, which will require the Attorney General to determine whether state law allows active participation in a federal pr ogram that does not respect the right to
17

Case 2:12-cv-00501-SLB Document 15 Filed 03/22/12 Page 18 of 21
conscience. The Attorney Gene ral also has a special interest in the effect of th e Mandate on religious not-for-profits becaus e he is charged by state law with th e supervision of such charities. See, e.g., ALA. CODE §§ 10A-3-7.07, 08, 09; 19-3B110(d); § 19-3C-6(c); Neal v. Neal, 856 So.2d 766, 780 (A la. 2002)(“the Alabama attorney general was the proper party and the only proper party to enforce the charitable or otherwi se beneficent purposes of the trust in the case before us”); Thurlow v. Berry, 247 Ala. 631, 639, 25 So.2d 726, 733 (Ala. 1946)(“It is assumed the Attorney General was p ermitted to intervene on the theory that [the] will provided for a publi c charity.”); 1 Relig ious Organizations and the Law § 5:36 (“Today all states, either by statute or by case law, follow the rule that the Attorney General, or another similar state official, such as a county attorney, has supervisory powers over charitable entities.”). As a c onsequence of “the obligation of th e Attorney General to resolve those questi ons with the aid of this Court, ” he should be permitted to intervene. Miami Health Studios, Inc. v. City of Miami Beach , 491 F.2d 98, 100 (5th Cir. 1974) (reversing lower court for denying motion of Attorney General to intervene on behalf of “people of the State of Florida”).
CONCLUSION The State and Attorney General’s m otion to intervene should be granted under either Rule 24(a) or Rule 24(b).
18

Case 2:12-cv-00501-SLB Document 15 Filed 03/22/12 Page 19 of 21

Attorneys

Respectfully submitted,
LUTHER STRANGE (ASB-0036-G42L) Attorney General BY: s/ Andrew L. Brasher Andrew L. Brasher (ASB-4325-W73B) Deputy Solicitor General
William G. Parker, Jr. (ASB-5142-I72P) Joshua K. Payne (ASB-1041-A55P) Assistant Attorneys General
OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130 Telephone: (334) 242-7300 Facsimile: (334) 353-8440 abrasher@ago.state.al.us wparker@ago.state.al.us jpayne@ago.state.al.us
for the State of Alabama and Attorney General Strange

19

Case 2:12-cv-00501-SLB Document 15 Filed 03/22/12 Page 20 of 21
CERTIFICATE OF SERVICE
I hereby certify that on this the 22nd day of March, 2012, I filed the foregoing document via the CM/ECF system which will send electronic notice of such filing to the following counsel of record:
Kyle Duncan Eric N. Kniffin The Becket Fund For Religious Liberty 3000 K Street NW, Suite 220 Washington, DC 20007 Telephone: (202) 955-0095 Facsimile: (202) 955-0090 kduncan@becketfund.org ekniffin@becketfund.org
I further certify that I mailed the foregoing document to the following parties for whom no counsel has appeared:
Secretary Kathleen Sebelius U.S. Department of Health and Human Services 200 Independence Avenue, SW Washington, DC 20201
Agent for Service of Process U.S. Department of Health and Human Services 200 Independence Avenue, SW Washington, DC 20201
Secretary Hilda Solis U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210
20

Case 2:12-cv-00501-SLB Document 15 Filed 03/22/12 Page 21 of 21
Agent for Service of Process U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210 Secretary Timothy Geithner U.S. Department of Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220 Agent for Service of Process U.S. Department of Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220
s/ Andrew L. Brasher Of Counsel
21

 
 Case 2:12-cv-00501-SLB Document 72 Filed 02/05/13 Page 1 of 4

FILED
2013 Feb-05 PM 01:43 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

)

STATE OF ALABAMA, et al.,

)

Plaintiffs-Intervenors,

)

)

ETERNAL WORD TELEVISION )

NETWORK, INC.

)

Plaintiff,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

Defendants.

)

)

2:12-cv-00501-SLB

INTERVENORS’ NOTICE OF RECENT FACTUAL AND LEGAL DEVELOPMENTS IN ALABAMA

The State of Alabama and Attorney General’s Motion to Intervene (Docs. 14 & 15) was filed almost one year ago. In the motion, their brief in support, and their supplemental filings, the State and Attorney General recounted the State’s efforts to establish a state-run health insurance exchange and explained how Alabama regulates health insurance products.
This filing updates the State’s previous submissions by informing the Court of two recent developments. First, the Governor of Alabama has determined that the State of Alabama will not be establishing a state-run health insurance exchange under the auspices of “Obamacare.” See Letter from Governor Robert Bentley to

1

Case 2:12-cv-00501-SLB Document 72 Filed 02/05/13 Page 2 of 4
Secretary Kathleen Sebelius (Nov. 16, 2012) (Exhibit A). Second, in November 2012, the people of Alabama voted to adopt an amendment to the Alabama Constitution to prohibit any person or employer from being compelled to participate in a health care system. See Alabama Secretary of State, Canvas of Election Results 2012, Amendment 6.1 The amendment provides in relevant part: “In order to preserve the freedom of all residents of Alabama to provide for their own health care, a law or rule shall not compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” See House Bill 60 (Exhibit B).
The State’s intervention in this lawsuit remains justified in light of these developments. The State continues to “ha[ve] a sovereign prerogative to regulate its insurance market . . . in accordance with its own law and policy, without being contradicted by unlawful federal regulations.” Doc. 31 (Reply in Support of Motion to Intervene) at 6. The State of Alabama imposes the second least number of health insurance mandates of any State and has chosen not to impose a contraception mandate on otherwise heavily-regulated insurance plans. See Doc. 43 (Intervenors’ Supplemental Authority). The Alabama Legislature’s aversion to mandates is a conscious, deliberate choice; and the people of Alabama have made that aversion a part of Alabama’s fundamental law by enacting Amendment 6. The
1 http://www.sos.state.al.us/downloads/election/2012/general/2012GeneralResultsAllStateAndFederalOfficesAndAmendments-WithWrite-inAppendix.pdf.
2

Case 2:12-cv-00501-SLB Document 72 Filed 02/05/13 Page 3 of 4
federal contraception mandate—if upheld as lawful—would displace Alabama’s
regulatory choice and strike a new and different balance.
For these reasons and the other unrelated arguments addressed in the State
and Attorney General’s filings, see Doc. 15 at 15-18 (addressing permissive
intervention), the State and Attorney General’s motion to intervene should be
granted.
Respectfully Submitted,
LUTHER STRANGE (ASB-0036-G42L)
Alabama Attorney General
s/ Andrew L. Brasher
Andrew L. Brasher (ASB-4325-W73B) Alabama Deputy Solicitor General
William G. Parker, Jr. (ASB-5142-I72P) Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130 Telephone: (334) 242-7300 Facsimile: (334) 353-8440 abrasher@ago.state.al.us wparker@ago.state.al.us Attorneys for the State of Alabama and Attorney General Strange
3

Case 2:12-cv-00501-SLB Document 72 Filed 02/05/13 Page 4 of 4
CERTIFICATE OF SERVICE I hereby certify that on February 5, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all counsel of record.
Respectfully submitted, s/ Andrew L. Brasher Andrew L. Brasher (ASB-4325-W73B) Alabama Deputy Solicitor General OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130 Telephone: (334) 242-7300 Facsimile: (334) 353-8440 abrasher@ago.state.al.us
4

 
 FILED
2013 Mar-25 PM 04:46 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ETERNAL WORD TELEVISION }

NETWORK, INC.,

}

}

Plaintiff,

}

}

v.

}

}

KATHLEEN SEBELIUS, Secretary }

of the United States Department of }

Health and Human Services,

}

}

UNITED STATES DEPARTMENT }

OF HEALTH AND HUMAN

}

SERVICES,

}

}

HILDA SOLIS, Secretary of the

}

United States Department of Labor, }

}

UNITED STATES DEPARTMENT }

OF LABOR,

}

}

TIMOTHY GEITHNER, Secretary }

of the United States Department of }

the Treasury, and

}

}

UNITED STATES DEPARTMENT }

OF THE TREASURY,

}

}

Defendants.

}

CASE NO. 2:12-cv-501-SLB

MEMORANDUM OPINION

On February 9, 2012, Eternal Word Television Network, Inc. (“EWTN”) filed a

Complaint in this court naming Kathleen Sebelius, Secretary of the United States Department

of Health and Human Services; the United States Department of Health and Human Services;

Hilda Solis, Secretary of the United States Department of Labor; the United States Department of Labor; Timothy Geithner, Secretary of the United States Department of the Treasury; and the United States Department of the Treasury as defendants (collectively “defendants”). (Doc. 1.)1 EWTN’s Complaint, as amended on March 21, 2012, alleges that defendants promulgated regulations pursuant to the Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152, 124 Stat. 1029 (2010) (collectively “Affordable Care Act” or “ACA”) in violation of (1) the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., (2) the Free Exercise Clause of the First Amendment, U.S. Const. amend. I, (3) the Establishment Clause of the First Amendment, U.S. Const. amend. I, (4) the Freedom of Speech Clause of the First Amendment, U.S. Const. amend. I, and (5) the Administrative Procedure Act, 5 U.S.C. 550 et seq. (Doc. 13 ¶¶ 118-205.)
This case is currently before the court on defendants’ Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. 29.) Upon consideration of the record, the submissions of the parties, and the relevant law, the court is of the opinion that defendants’ Motion to Dismiss is due to be granted.
1 Reference to a document number, (“Doc. __”), refers to the number assigned to each document as it is filed in the court’s record.

I. FACTS, STATUTORY BACKGROUND, AND PROCEDURAL HISTORY2 A. Eternal Word Television Network In 1981, Mother Angelica, a Catholic nun of the Poor Clares of Perpetual Adoration
order, founded EWTN in Irondale, Alabama. (Doc. 13 ¶ 2.) EWTN is “dedicated to the advancement of truth as defined by the Magisterium of the Roman Catholic Church.” (Id. ¶ 23.) Its mission is “to serve the orthodox belief and teaching of the Church as proclaimed by the Supreme Pontiff and his predecessors.” (Id.) EWTN claims to be the world’s largest Catholic media network: among other things, it transmits television programing through eight different services, broadcasts in both English and Spanish, has two 24-hour radio services, and maintains a popular website. (Id. ¶¶ 2, 21.) Currently, EWTN has more than 300 employees. (Id. ¶ 27.)
EWTN promotes the Roman Catholic Church’s teachings regarding the sanctity of human life and the purpose of human sexuality. (Id. ¶ 24-25.) In terms of the sanctity of human life, EWTN teaches that “all . . . life is sacred and precious, from the moment of conception.” (Id. ¶ 24.) Accordingly, it believes that “abortion ends a human life and is a grave sin.” (Id.) Regarding human sexuality, EWTN believes that it has two main purposes: (1) to closely unite husband and wife and (2) to generate new life. (Id. ¶ 25.) Thus, EWTN both believes and teaches that “any action which either before, at the moment of, or after
2 For purposes of this Opinion, the “facts” alleged in the Amended Complaint are accepted as true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007); Resnick v. AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012) (citing Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1271 n.4 (11th Cir. 2012)).
3

sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means—including contraception and sterilization—is a grave sin.” (Id. (internal quotation marks and citation omitted).)
In accordance with these beliefs, EWTN provides health care coverage that it considers to be “superior to coverage generally available in the Alabama market,” (id. ¶ 28), but which excludes coverage for artificial contraception, sterilization, and abortion, (id. ¶ 30). EWTN claims that it cannot provide health insurance covering “artificial contraception, sterilization, or abortion, or related education and counseling, without violating its deeply held religious beliefs.” (Id. ¶ 29.) EWTN’s employee insurance plan is a self-funded plan administered by Blue Cross/Blue Shield of Alabama that begins annually on July 1. (Id. ¶ 32, doc. 33 at 10, 12.)
EWTN operates off of donations from the public and does not generate revenue from carriage fees or advertising. (Doc. 13 ¶ 33.) It claims that its donors give with an understanding of its mission and with the aim that their donations will further EWTN’s adherence to, dissemination of, and reporting of reliable teachings on Catholic morality and practices. (Id.) Thus, according to EWTN, using donated funds for purposes known to be morally repugnant to its donors would violate an implicit trust between the donors and the network. (Id. ¶ 34.)
B. Statutory and Regulatory History In March of 2010, Congress passed the ACA. See Patient Protection and Affordable
4

Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010); Health Care and Education
Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (amending the ACA).
Section 1001 of the ACA added section 2713 to the Public Health Service Act (“PHSA”).
See 42 U.S.C. § 300gg-13. Section 2713, in response to the American public’s use of
preventive health care services at approximately half the recommended rate, (see doc. 29-1
at 10), requires, in part, the inclusion of certain preventative care measures in health care
plans:
group health plan[s]3 and [] health insurance issuer[s] offering group or individual health insurance coverage shall . . . provide coverage [without] any cost sharing requirements for–
(1) 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; [and]
. . . .
(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.
42 U.S.C. § 300gg–13(a)(1), (4).
Through section 2713 of the PHSA, Congress intended to increase the public’s access
3 A group health plan includes a plan maintained by an employer that provides medical care to employees. See 42 U.S.C. § 300gg-91(a)(1). Group health plans may be insured (i.e., underwritten through an insurance contract) or self-insured (i.e., funded directly by the employer). The ACA does not require employers to provide health coverage for their employees, but, beginning in 2014, some large employers may be required to make payments if they fail to provide insurance. See 26 U.S.C. § 4980H(a)-(d).
5

to and use of recommended preventive services. See Interim Final Rules Relating to Coverage of Preventive Services Under the ACA, 75 Fed. Reg. 41,726, 41,729 (July 19, 2010). As demonstrated above, the Affordable Care Act gives the Health Resources and Services Administration (“HRSA”)—a division of defendant Department of Health and Human Services (“HHS”)—the authority to develop guidelines determining the recommended preventive services. See 42 U.S.C. § 300gg–13(a)(4). Because no HRSA guidelines relating to preventive care and screening for women existed when the ACA was passed, HHS commissioned the Institute of Medicine (“IOM”) to recommend a set of comprehensive guidelines. (See doc. 13 ¶ 60); Women’s Preventive Services: Required Health Plan Coverage Guidelines, HRSA, http://www.hrsa.gov/womensguidelines/ (last visited Mar. 21, 2013) [hereinafter Preventive Services Guidelines].
On July 19, 2010, defendants promulgated interim final rules that implemented section 2713 of the PHSA. See 75 Fed. Reg. at 41,726, 41,728. In relevant part, the interim final rules require group health plans or health insurance issuers to provide coverage for newly recommended preventive services, without cost-sharing, for plan years (or policy years) that begin “on or after the date that is one year after the date the [new] recommendation or guideline is issued.” 26 C.F.R. § 54.9815-2713T(b)(1); 29 C.F.R. § 2590.715-2713(b)(1); 45 C.F.R. § 147.130(b)(1). In other words, plans must comply with the new recommendations for preventive services starting with the plan year that begins on or after the one year anniversary of the issuance of the new recommendations. However, the interim
6

final rules further specify that these requirements do not apply to “grandfathered health plans.” 75 Fed. Reg. at 41,729. Grandfathered plans are those “in which an individual was enrolled on March 23, 2010” that also comply with certain additional regulations. See 26 C.F.R. § 54.9815-1251T(a); 29 C.F.R. 2590.715-1251(a); 45 C.F.R. § 147.140(a). However, a plan may lose its grandfathered status if it undergoes one or more of the changes set forth in 45 C.F.R. § 147.140(g)(1) after March 23, 2010. See also 26 C.F.R. § 54.98151251T(g)(1); 29 C.F.R. § 2590.715-1251(g)(1). The parties agree that EWTN has alleged that its plan is not eligible for grandfather status.4
On July 19, 2011, one year after the interim final rules were first issued, IOM published its report, which included the preventative services guidelines. (See doc. 13 ¶ 63); Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011), available at http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-forWomen-Closing-the-Gaps.aspx . The report recommends that the HRSA guidelines include, among other services, well-woman visits, breastfeeding support, domestic violence screenings, id. at 110, 117, 123, and, most relevant in this case, “the full range of [FDA]approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 109-10. FDA-approved contraceptive methods include intrauterine devices, oral contraceptive pills, emergency
4 Initially, defendants contended that EWTN had not pled sufficient facts to show its plan fell outside the grandfather provision. However, in their Reply, defendants concede that EWTN does not provide a grandfathered plan. (Doc. 36 at 3 n.1.)
7

contraceptives, and diaphragms. (See doc. 13 ¶ 64); FDA, Birth Control Guide, available at http://www.fda.gov/ForConsumers/ByAudience/ForWomen/ucm118465.htm (last visited March 21, 2012).
On August 1, 2011, HHS adopted IOM’s recommendations in full by issuing an amendment to the interim final rules. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621, 46,625 (Aug. 3, 2011); Preventive Services Guidelines, supra (“HRSA is supporting the IOM’s recommendations on preventive services that address health needs specific to women and fill gaps in existing guidelines.”). The amended rule lists an effective date of August 1, 2011, and also states that “[t]hese interim final regulations generally apply to group health plans and group health insurance issuers on August 1, 2011.” 76 Fed. Reg. at 46,621. Under the requirements discussed earlier, this means that group health plans and health insurance issuers were required to provide coverage for the newly recommended services as of August 1, 2012, one year from when they were added to the guidelines. See 42 U.S.C. § 300gg-13(b)(1), (2); 76 Fed. Reg. at 46,623, 46,624.
However, the interim final rules, as amended (“the amended interim final rules” or “the Mandate”), also contain an exception for group health plans sponsored by religious employers, releasing those employers from any requirement to cover contraceptive services under the HRSA guidelines.5 76 Fed. Reg. at 46,623, 46,626; 45 C.F.R. §
5 The exception became effective on August 3, 2011. See 45 C.F.R. § 147.130. 8

147.130(a)(1)(iv)(A); see also Preventive Services Guidelines, supra (“[P]lans sponsored by certain religious employers . . . are exempt from the requirement to cover contraceptive services.”). In order to qualify for the religious employer exemption outlined in the Mandate, an employer must meet each of the following four criteria:
(1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (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. 45 C.F.R. § 147.130(a)(1)(iv)(B). EWTN asserts in its Amended Complaint that it is reasonably certain that it does not qualify for the exemption. (See doc. 13 ¶ 75, 78-83, 186; doc. 33 at 14.)6 Accordingly, under the Mandate, providers of non-exempt and nongrandfathered health care plans, like EWTN, are required to provide coverage for recommended contraceptive services, without cost sharing, for plan years beginning on or after August 1, 2012. See id. § 147.130(a)-(d). Defendants solicited comments on the Mandate and specifically requested feedback
6 Specifically, based on the facts that EWTN alleges, it appears that it does not qualify under any part of the four-part exemption. (See doc. 13 ¶ 75, 78-83.) Defendants agree that EWTN is not exempt under this provision. (See doc. 36 at 10.)
9

on the definition of religious employer.7 76 Fed. Reg. at 46,623 (“We will be accepting
comments on this definition as well as alternative definitions . . . .”). After considering the
comments received, on February 15, 2012, defendants adopted as final the definition of
religious employer that was originally contained within the amended interim final rules,
stating that the religious employer exemption was finalized “without change.” Group Health
Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the
Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8725, 8729, 8730 (Feb. 15,
2012). This finalized version of the Mandate read as follows:
Section 2712 of the PHS[A], as added by the [ACA,] . . . , requires that non-grandfathered group health plans and health insurance issuers offering group or individual health insurance coverage provide benefits for certain preventive health services without the imposition of cost sharing. These preventive health services include, with respect to women, preventive care and screening provided for in the comprehensive guidelines supported by [HRSA] that were issued on August 1, 2011 (HRSA Guidelines). As relevant here, the HRSA Guidelines require coverage, without cost sharing, for “[a]ll Food and Drug Administration . . . approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a provider. Except as discussed below, non-grandfathered group health plans and health insurance issuers are required to provide
7 Comments were solicited after the Mandate had been implemented (as opposed to before, in accordance with the Administrative Procedure Act’s notice and comment requirements) based on authority to “promulgate any interim final rules as . . . appropriate” under section 9833 of the Internal Revenue Code, section 734 of ERISA, and section 2792 of the PHSA. See 76 Fed. Reg. at 46,624. However, among its other claims, EWTN also challenges the issuance of the Mandate without proper notice and comment under the Administrative Procedure Act. (Doc. 13 ¶¶ 10, 65, 179-83.)
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coverage consistent with the HRSA Guidelines, without cost sharing, in plan years (or, in the individual market, policy years) beginning on or after August 1, 2012. . . . Id. at 8725-26 (footnotes omitted). Importantly however, the finalized rules also provide a “temporary enforcement safe harbor” (“safe harbor”) from enforcement of the Mandate for non-exempt employers with religious objections to covering contraceptive services. Id. at 8727. The safe harbor was implemented in response to the many comments defendants received on the religious employer exemption as defined in the amended interim final rules. Id. at 8726-27. Defendants explained that during the operation of the safe harbor, they would “plan to develop and propose changes to the[] final regulations” in order to meet two goals: “providing contraceptive coverage without cost-sharing . . . and accommodating nonexempted, non-profit organizations’ religious objections to covering contraceptive services . . . .” Id. at 8727. They further stated that they would “work with stakeholders to propose and finalize this policy before the end of the temporary enforcement safe harbor.” Id. at 8728-29. On February 10, 2012, prior to the issuance of the final rule on February 15, 2012, HHS issued a guidance describing the safe harbor and stating that defendants would wait an additional year before enforcing the Mandate against certain non-exempt religious organizations.8 (See doc. 13 ¶ 87, ¶ 87 n.2); HHS, Guidance on the Temporary Enforcement
8 However, this was not the first time that defendants had publicly discussed the possibility of a safe harbor going into effect. On January 20, 2012, defendant Sebelius
11

Safe Harbor, 3 (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/
02102012/20120210-Preventive-Services-Bulletin.pdf. In other words, the safe harbor will
operate until the first plan year that begins on or after August 1, 2013. Id.
In order to qualify for the safe harbor, an employer must meet all of the following four
criteria:
(1) The organization is organized and operates as a non-profit entity.
(2) From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization.
(3) As detailed below, the group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) must provide to participants the attached notice, as described below, which states that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012.
(4) The organization self-certifies that it satisfies criteria 1-3 above, and documents its self-certification in accordance with the procedures detailed herein.
referenced the safe harbor in a statement on behalf of the HHS. (See doc. 13 ¶ 85); A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, HHS.gov (Jan. 20, 2012), http://www.hhs.gov/news/press/2012pres/01/20120120a.html [hereinafter Statement by Sebelius]. She explained that the additional time would allow employers “more time and flexibility to adapt,” and that the HHS would “continue to work closely with religious groups during th[e] transitional period to discuss their concerns.” Statement by Sebelius, supra.
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Id. Consequently, if a noncomplying employer does not fall under either the provision above or the religious exemption, and it does not qualify as grandfathered, it will face large fines. See 26 U.S.C. § 4980H(a); id. § 4980H(c)(1). Specifically, the fines are set to be approximately $2,000 per year per employee, see 26 U.S.C. § 4980H(c)(1), though the number of individual employees will be reduced by thirty for the purposes of calculating the fines each month, see 26 U.S.C. 4980H(c)(2)(D)(i)(I).
In accordance with their statements in the finalized Mandate, on March 16, 2012, defendants issued an advance notice of proposed rulemaking (“ANPRM”). See Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (March 21, 2012); (doc. 13 ¶ 90). The ANPRM sought to address alternatives for providing women access to contraceptive services without cost-sharing and for accommodating religious organizations’ religious liberty interests. Id. at 16,501-03. The purpose of the ANRPM was to give “an early opportunity for any interested stakeholder to provide advice and input into the policy development relating to the accommodation to be made” in the forthcoming amendments to the regulations. Id. at 16,503. It purported to adhere to essentially the same two goals that were set forth in the February 15, 2012 final rule: (1) maintaining “the provision of contraceptive coverage without cost sharing to individuals who receive coverage through non-exempt, non-profit religious organizations with religious objections to contraceptive coverage in the simplest way possible”; and (2) protecting “such religious organizations from
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having to contract, arrange, or pay for contraceptive coverage.” Id. It therefore suggested that health insurance issuers offer health insurance coverage without contraceptive coverage to religious organizations that object to it on religious grounds and simultaneously offer contraceptive coverage directly to the organization’s plan participants at no charge. Id. at 16,505. It also offered ideas and solicited comments on how to accommodate religious organizations that sponsor self-insured group health plans for their employees. Id. at 16,503, 16,505-07. Finally, defendants stated in the ANPRM that they intended “to finalize these amendments to the final regulations such that they are effective by the end of the temporary enforcement safe harbor.” Id. at 16,503.
After a comment period for the ANPRM, defendants issued a Notice of Proposed Rulemaking (“NPRM”) on February 1, 2013. See Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 8456 (Feb. 6, 2013); (doc 75 at 1). As the “next step in the process,” 78 Fed. Reg. at 8458, the NPRM proposes changes to the finalized Mandate and requests comments on its suggestions, which may be submitted until April 8, 2013, see id. at 8457. It states that its goal is two-fold: First, to amend the religious employer exemption in order to keep an employer from being ineligible solely because its “purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths,” and second, to “establish accommodations for health coverage [through] . . . eligible organizations . . . with religious objections to contraceptive
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coverage.” Id. at 8459. Among other proposals, the NPRM suggests changing the religious employer exemption “by eliminating the first three prongs of the definition and clarifying the application of the fourth . . . . [so that] . . . an employer that is . . . a nonprofit entity and referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code would be considered a religious employer . . . .” Id. at 8468-69. Additionally, consistent with defendants’ statements in the ANPRM, the NPRM also maintains that they “intend to finalize all . . . proposed amendments before the end of the temporary enforcement safe harbor.” Id. at 8459.
C. Procedural History On February 9, 2012, EWTN filed a Complaint in this court which it amended on March 21, 2012. (See doc. 1; doc. 13.)9 The Amended Complaint alleges numerous actual and imminent effects the Mandate imposes on EWTN, including: being forced “to provide coverage for contraception, sterilization, abortion, and related education and counseling against its conscience in a manner that is contrary to law,” (doc. 13 ¶ 94); being pressured and coerced into changing or violating its religious beliefs, (id. ¶ 95); being assessed substantial fines for refusing to change or violate its religious beliefs, (id. ¶ 96); being
9 In its Amended Complaint, EWTN has added only a few paragraphs, consisting primarily of factual developments since the case was first filed on February 9, 2012. (See doc. 13 ¶¶ 86-93, 115-17.) All twelve counts against defendants remain the same. (See id. ¶¶ 118-205.) EWTN’s Amended Complaint refers to both the amended interim final rules promulgated on August 1, 2011, and the version finalized on February 15, 2012, as “the Mandate.” (See id. ¶¶ 5, 65, 67, 89, 91, 93.)
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burdened in employee recruitment by creating uncertainty as to whether EWTN will be able to offer health insurance beyond a date certain in the future, (id. ¶ 97); being forced to provide emergency contraception free of charge, regardless of the ability of the insured persons to obtain emergency contraception from other sources, (id. ¶ 109); being forced to facilitate education and counseling concerning contraception, sterilization, and abortion that directly conflicts with EWTN’s religious beliefs and teachings, (id. ¶ 110); being forced to choose among violating its religious beliefs, incurring substantial fines, or terminating its employee health insurance coverage, (id. ¶ 112); and being forced to devote significant institutional resources to determine how to respond to the Mandate, (id. ¶ 114).
Based on these allegations, EWTN asserts twelve counts against defendants claiming that the Mandate violates the following: (1) the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et. seq., (“RFRA”) (id. ¶¶ 118-129); (2) the First Amendment’s Free Exercise Clause because the Mandate is neither neutral nor generally applicable, (id. ¶¶ 130144); (3) the First Amendment’s Free Exercise Clause because the Mandate intentionally discriminates, (id. ¶¶ 145-150); (4) the First Amendment’s Free Exercise Clause because the Mandate discriminates among religions, (id. ¶¶ 151-155); (5) the First Amendment’s Establishment Clause because the Mandate prefers certain denominations over others, (id. ¶¶ 156-160); (6) the First Amendment because the Mandate compels speech, (id. ¶¶ 161167); (7) the First Amendment’s guarantee of freedom of speech by expressive association,
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(id. ¶¶ 168-173); (8) the First Amendment’s Free Exercise Clause and guarantee of the freedom of speech because the Mandate allows for unbridled discretion, (id. ¶¶ 174-178); (9) the Administrative Procedure Act, 5 U.S.C. § 500 et seq., due to lack of good cause, (id. ¶¶ 179-183); (10) the Administrative Procedure Act, 5 U.S.C. § 500 et seq., due to arbitrary and capricious action, (id. ¶¶ 184-188); (11) the Administrative Procedure Act, 5 U.S.C. § 500 et seq., for agency action not in accordance with the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, RFRA, and the First Amendment, (id. ¶¶ 189-196); and (12) the Administrative Procedure Act, 5 U.S.C. § 500 et seq., for agency action not in accordance with the ACA, (id. ¶¶ 197-205).
On May 4, 2012, defendants filed a Motion to Dismiss EWTN’s Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), (doc. 29), and Memorandum in Support, (doc. 29-1). Broadly, defendants argue that the case should be dismissed because (1) EWTN lacks standing and (2) the case is not ripe. (See doc. 29-1 at 20, 26.) Specifically, defendants contend that EWTN lacks standing because it has not “alleged a concrete and imminent injury resulting from the operation of [the Mandate].” (Doc. 29-1 at 20.) Defendants also argue that the case is not fit for judicial review, and therefore not ripe, because issuance of the ANPRM shows that the regulatory scheme has not taken final shape. (Id. at 26-33.)10
10 After defendants filed their Motion to Dismiss on May 4, 2012, and while the Motion was still pending before the court, the NPRM was issued. See generally 78 Fed. Reg. 8456.
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EWTN counters that it has standing because (1) it alleges both actual and imminent
injuries; (2) its plan is not eligible for grandfather status, making the Mandate directly
applicable to its group health plan; (3) the safe harbor does not make its injury non-imminent;
(4) the ANPRM does not make its current harm speculative; and (5) the ANPRM’s proposed
plans will not alleviate its injuries. (Doc. 33 at 14-24).11 Additionally, EWTN argues that
its claims are presumptively ripe because “they involve facial challenges to the mandate’s
constitutionality that require no factual development.” (Id. at 25 (citation omitted).) EWTN
further claims that without judicial review, it would face imminent hardship by operation of
the Mandate. (Id. at 30.)
In their Reply, defendants counter that “[b]ecause [they] are amending the challenged
regulations to address concerns raised by [EWTN], and [EWTN] has not shown that it will
Defendants have diligently kept the court apprised of their position in light of new developments throughout the course of this case. Accordingly, in regards to the NPRM, defendants argue that “[w]hile defendants’ prior assurances and concrete steps toward accommodating employers like plaintiff – the ANPRM, the enforcement safe harbor, and the government’s repeated statements committing to the timely establishment of the new accommodations – are sufficient by themselves to establish that plaintiff lacks standing and its claims are not ripe for review, . . . the NPRM further buttresses defendants’ promise that they will never enforce the current version of the challenged regulations against plaintiff, further demonstrates concrete action to change those regulations, and further undermines plaintiff’s unfounded suggestions that the government will not follow through on its commitment.” (Doc. 74 at 3 (citations omitted).)
11 Like defendants, EWTN has also consistently updated the court on its position. In one of its many helpful supplemental notices to the court, EWTN asserts that the NPRM’s proposed change to the religious employer exemption confirms that EWTN will not be exempt from the requirements of the final Mandate. (See doc. 75 at 3.) It further argues that the NPRM has no effect on its standing or ripeness, and that it does nothing to alleviate the violation of EWTN’s religious beliefs. (Id. at 1-5.)
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suffer hardship during this amendment process, [EWTN]’s challenge is not ripe.” (Doc. 36 at 14.) Defendants further point out that not only is there a lengthy delay before they will enforce the Mandate against EWTN, but they have also initiated the amendment process in which EWTN may participate. (Id. at 8.) According to defendants, these circumstances illustrate the absence of impending injury to EWTN. (Id.)
II. STANDARD OF REVIEW Parties invoking federal jurisdiction “bear[] the burden of establishing its existence.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998). Challenges to subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) take two forms: “[f]acial attacks” and “[f]actual attacks.” Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (per curiam). Facial attacks “require [] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Id. at 1529 (alteration in original) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). Factual attacks, alternatively, challenge “the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.” Id. (internal quotation marks and citation omitted). Given that defendants’ Motion to Dismiss questions whether EWTN sufficiently pled facts establishing subject matter jurisdiction, (see doc. 29-1 at 19), the standards regarding facial attacks apply in this
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case.12 In a facial attack on subject matter jurisdiction, the nonmoving party “receives the
same protections as it would defending against a motion brought under [Federal Rule of Civil Procedure] 12(b)(6).” In re Sea Vessel, Inc., v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994) (quoting Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)) (internal quotation marks omitted). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Furthermore, “[t]he plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). And “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
Additionally, “the tenet that a court must accept as true all of the allegations contained
12 Though EWTN has attached exhibits to its Opposition, the court nevertheless considers this a facial attack because “[a]lthough a court may consider materials beyond the pleadings if the defendant has mounted a factual attack on subject-matter jurisdiction, there is no suggestion in this record that the defendant has done so . . . .” Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1286 n.8 (11th Cir. 2010). In addition, because this case involves matters that touch on administrative rules, guidance documents, government statements, and government studies, the court notes that it is permitted to consider matters of public record on a motion to dismiss. Universal Express, Inc. v. U.S. S.E.C., 177 F. App’x 52, 53-54 (11th Cir. 2006).
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in a complaint is inapplicable to legal conclusions,” id., because “[a] pleading that offers ‘labels and conclusion’ or ‘a formulaic recitation of the elements of a cause of action will not do,’” id. (quoting Twombly, 550 U.S. at 555). Moreover, “a complaint [will not] suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). In other words, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003) (citation omitted).
III. DISCUSSION Defendants argue that this court does not have jurisdiction to decide EWTN’s claims (1) because EWTN lacks standing and (2) because its claims are not ripe, since the regulation that it challenges is in the process of being amended. The court will address these arguments in turn. First, however, it is worth briefly discussing the numerous federal opinions that have already been issued considering these very arguments. A. Federal Cases Reviewing Challenges to the Mandate After the issuance of the Mandate, several lawsuits were filed in federal courts throughout the country by religious organizations challenging its enactment (in most cases, based on the same or similar grounds to EWTN in this case). To date, at least eighteen opinions directly on point—namely, those involving religious not-for-profit employers who would not qualify under the religious employer exemption as defined in the interim final
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rules and later finalized—have been issued.13 See Wheaton Coll. v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012); Geneva Coll. v. Sebelius, 2:12-CV-00207, 2013 WL 838238 (W.D. Pa. Mar. 6, 2013); Roman Catholic Diocese of Dallas v. Sebelius, 3:12-CV-1589-B, 2013 WL 687080 (N.D. Tex. Feb. 26, 2013); Conlon v. Sebelius, 12-CV-3932, 2013 WL 500835 (N.D. Ill. Feb. 8, 2013); Roman Catholic Diocese of Fort Worth v. Sebelius, No. 4:12–CV–314–Y (N.D. Tex. Jan. 31, 2013); Archdiocese of St. Louis v. Sebelius, 4:12-CV-00924-JAR, 2013 WL 328926 (E.D. Mo. Jan. 29, 2013); Roman Catholic Archbishop of Washington v. Sebelius, CIV.A. 12-0815 ABJ, 2013 WL 285599 (D.D.C. Jan. 25, 2013); Persico v. Sebelius, 1:12-CV-123-SJM, 2013 WL 228200 (W.D. Pa. Jan. 22, 2013); Colorado Christian Univ. v. Sebelius, No. 11-CV-03350-CMA-BNB, 2013 WL 93188 (D. Colo. Jan. 7, 2013); Catholic Diocese of Peoria v. Sebelius, 12-1276, 2013 WL 74240 (C.D. Ill. Jan. 4, 2013); Univ. of Notre Dame v. Sebelius, 3:12CV253RLM, 2012 WL 6756332 (N.D. Ind. Dec. 31, 2012); Catholic Diocese of Biloxi, Inc. v. Sebelius, 1:12CV158-HSO-RHW, 2012 WL 6831407 (S.D. Miss. Dec. 20, 2012); Roman Catholic Archdiocese of New York v. Sebelius, 12 CIV. 2542 BMC, 2012 WL 6042864 (E.D.N.Y. Dec. 4, 2012); Zubik v. Sebelius, 2:12CV-00676, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012); Catholic Diocese of Nashville v.
13 In addition, several opinions in cases that are similar, but not completely factually analogous have been issued. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) (involving a for-profit corporation that could not qualify for the safe harbor); Legatus v. Sebelius, 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) (same); Tyndale House Publishers, Inc. v. Sebelius, CIV.A. 12-1635 RBW, 2012 WL 5817323 (D.D.C. Nov. 16, 2012) (same); Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012) (same).
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Sebelius, 3-12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012); Wheaton Coll. v. Sebelius, 887 F. Supp. 2d 102 (D.D.C. 2012) rev’d in part, 703 F.3d 551 (D.C. Cir. 2012); Belmont Abbey Coll. v. Sebelius, 878 F. Supp. 2d 25 (D.D.C. 2012) rev’d in part, 703 F.3d 551 (D.C. Cir. 2012); Nebraska ex rel. Bruning v. U.S. Dept. of Health & Human Services, 877 F. Supp. 2d 777 (D. Neb. 2012). Of these, only one has been a circuit court opinion. See Wheaton Coll., 703 F.3d at 551.
In Wheaton College v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012), the D.C. Circuit consolidated an expedited appeal from the United States District Court for the District of Columbia in two of the earliest decisions to emerge on this issue: Belmont Abbey College v. Sebelius, 878 F. Supp. 2d 25 (D.D.C. 2012) rev’d in part, 703 F.3d 551 (D.C. Cir. 2012), and Wheaton College v. Sebelius, 887 F. Supp. 2d 102 (D.D.C. 2012) rev’d in part, 703 F.3d 551 (D.C. Cir. 2012). These two cases, which were filed on November 10, 2011, see Belmont Abbey Coll., 878 F. Supp. at 29, and July 18, 2012, see Wheaton Coll., 887 F. Supp. 2d at 104, each held that the respective plaintiff lacked standing and that the suit was not ripe for review. See Belmont Abbey Coll., 878 F. Supp. at 29; Wheaton Coll., 887 F. Supp. 2d at 104. Many later opinions followed suit, adopting similar reasoning. See, e.g., Univ. of Notre Dame, 2012 WL 6756332, at *4; Zubik, 2:12-CV-00676, 2012 WL 5932977, at *10, *12; Catholic Diocese of Nashville, 2012 WL 5879796, at *4, *5. However, upon review of Wheaton College and Belmont Abbey, the D.C. Circuit held in a three-page per curiam Order that “[d]ismissal for lack of standing was erroneous because standing is assessed at the time
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of filing, and the colleges clearly had standing when these suits were filed. The ripeness question is more difficult.” Wheaton Coll., 703 F.3d at 552 (citing Chamber of Commerce v. EPA, 642 F.3d 192, 200 (D.C. Cir. 2011)). The court then determined that the case was not ripe for review but decided to hold it in abeyance until the government issued a new rule. Id. at 552-53.
As a consequence of the D.C. Circuit’s opinion, many subsequent district court opinions chose to dismiss similar cases for lack of ripeness, but chose not to decide the question of standing. See, e.g., Roman Catholic Archbishop of Washington, 2013 WL 285599, at *4; Persico v. Sebelius, 1:12-CV-123-SJM, 2013 WL 228200, at *21; Colorado Christian Univ., 2013 WL 93188, at *9; Catholic Diocese of Peoria, 2013 WL 74240, at *45; Catholic Diocese of Biloxi, Inc., 2012 WL 6831407, at *6. Further, only two courts to this point have found both standing and ripeness present, allowing the cases in front of them to move forward, see Roman Catholic Diocese of Fort Worth, No. 4:12–CV–314–Y, at *12 (N.D. Tex. Jan. 31, 2013); Roman Catholic Archdiocese of New York v. Sebelius, 2012 WL 6042864, *15, *22-23. Finally, two of the most recent district court cases, much like the D.C. Circuit, have both found standing, but each has dismissed the case before it for lack of ripeness. See Geneva Coll. v. Sebelius, 2013 WL 838238, *12, *16; Roman Catholic Diocese of Dallas, 2013 WL 687080, *12, *17. These are the only two courts that have issued opinions since the NPRM was published on February 1, 2012.
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B. Standing Article III of the Constitution limits the power of the federal judiciary to the resolution of “Cases” and “Controversies.” U.S. Const. art. III. § 2, cl. 1; see also Allen v. Wright, 468 U.S. 737, 750 (1984) (discussing the case-or-controversy requirement). This limitation “defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.” Allen, 468 U.S. at 750. Standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation omitted). It “requires federal courts to satisfy themselves that ‘the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant [its] invocation of federal-court jurisdiction.’” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). In that vein, standing fundamentally focuses “on the party seeking to get his complaint before the federal court rather than ‘on the issues he wishes to have adjudicated.’” United States v. Richardson, 418 U.S. 166, 174 (1974) (quoting Flast v. Cohen, 392 U.S. 83, 99 (1968)). At its “irreducible constitutional minimum,” the doctrine requires a plaintiff to prove three elements: (1) a concrete and imminent injury-in-fact, (2) causal relationship between the injury and defendants’ challenged conduct, and (3) a likelihood that the injury suffered will be redressed by a favorable decision. See Lujan, 504 U.S. at 560-61; see also Allen, 468 U.S. at 751 (“A plaintiff must allege personal injury fairly traceable to the defendant’s
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allegedly unlawful conduct and likely to be redressed by the requested relief.” (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982))). The injury in fact must also be “an invasion of a legally protected interest.” Lujan, 504 U.S. at 560 (citations omitted).
Particularly relevant to this case is the “injury-in-fact” element. A threat of injury “must be certainly impending to constitute injury in fact.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013)14 (emphasis in original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (internal quotation marks omitted); see also Koziara v. City of Casselberry, 392 F.3d 1302, 1306 (11th Cir. 2004) (requiring plaintiffs to show a “real and immediate threat of future injury” when seeking declaratory and injunctive relief). Though there is no precise definition, imminence requires that “the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all.” Lujan, 504 U.S. at 564 n.2 (citations omitted). However, “imminence is concededly a somewhat elastic concept, [and though] it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes,” Clapper, 133 S. Ct. at 1147 (quoting Lujan, 504 U.S. at 565), “one does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is
14 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013), a recent United States Supreme Court case pointed out by defendants in a Notice of Supplemental Authority, (see doc. 77), reiterates a point that the Court has repeatedly made regarding standing: namely, that “allegations of possible future injury” are not sufficient to confer standing. Clapper, 133 S. Ct. at 1147 (quoting Whitmore, 495 U.S. at 158).
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certainly impending, that is enough,” Babbitt v. UFW Nat’l Union, 442 U.S. 289, 298 (1979) (citations omitted).
Finally, standing and ripeness tend to overlap significantly in the context of preenforcement challenges to laws and regulations. See ACLU v. Fla. Bar, 999 F.2d 1486, 1490 (11th Cir. 1993). Although the overlap often causes the issues to merge, the court “discuss[es] standing and ripeness separately.” Elend v. Basham, 471 F.3d 1199, 1205 (11th Cir. 2006). This is because, despite the overlap, there are differences between the doctrines. One crucial difference between ripeness and standing is that “the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (emphasis added) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000); Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)); see also Am. Civil Liberties Union of Fla., Inc. v. Dixie Cnty., Fla., 690 F.3d 1244, 1257 n.5 (11th Cir. 2012) (“For jurisdiction, standing had to exist when the suit was filed (not arise later). . . . It is not enough for Plaintiff to try to establish, in terms of shifting reality, the requirements of standing as the case progresses through the federal courts.” (internal citation omitted)).15
15 Quite different from standing, which a party always possesses once it is established, “ripeness can be affected by events occurring after the case is filed,” Yacht Club on the Intracoastal Condo. Ass’n v. Lexington Ins. Co., 11-15683, 2013 WL 598389, *3 (11th Cir. Feb. 15, 2013), and thus may be gained or lost throughout a case.
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Defendants contend that EWTN cannot pass the first hurdle in the standing analysis—specifically, defendants do not believe that EWTN has suffered a concrete and imminent injury-in-fact. To satisfy this first prong, EWTN must establish that it will suffer “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted). A threatened injury must be “certainly impending” to confer standing; harm that is possible or even likely will not suffice. Whitmore, 495 U.S. at 158 (internal quotation marks and citations omitted).
While defendants make good points, as the D.C. Circuit noted in Wheaton College, “standing is assessed at the time of filing.” 703 F.3d at 552. Here, EWTN originally filed suit on February 9, 2012. (See doc. 1.) At that time, there can be no question that EWTN had standing: only the amended interim final rules, which were clearly binding and imposed concrete future obligations on EWTN, had at that point been issued. See 76 Fed. Reg. at 46,625, 46,626 (discussing the “binding comprehensive health plan coverage guidelines” (emphasis added)); see also Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1020 (D.C. Cir. 2000) (explaining that legislative rules “have the force and effect of law”); Humane Soc. of U.S. v. Johanns, 520 F. Supp. 2d 8, 30 (D.D.C. 2007) (treating interim final rule as binding because it “create[d] an entirely new regulatory structure” and vacating it on that basis). Thus, the question of standing at the time that the original Complaint was filed is a simple one to answer. Because the amended interim final rules, as the law in effect at the time, were
28

“certainly impending” Clapper, 133 S.Ct. at 1147, EWTN had a “real and immediate threat
of future injury,” Koziara, 392 F.3d at 1306, and therefore had standing. See Geneva Coll.,
2013 WL 838238, at *11 (“The subsequent events and assurances upon which defendants
heavily rely . . . do not remove Geneva’s standing as measured at the time this case was filed
in February 2012.”); Wheaton Coll., 703 F.3d at 552 (holding Belmont Abbey College had
standing at the time the complaint was filed on November 10, 2011, when amended interim
final rules were in place, but the safe harbor and ANPRM had yet to be issued).
However, defendants argue that the Amended Complaint, (doc. 13), which was filed
on March 21, 2012—after the safe harbor and ANPRM were issued—is the operative
Complaint for the purposes of assessing standing. (See doc. 36 at 7; doc. 64 at 3.) Though
it presents a more difficult question, even if the Amended Complaint operates as the relevant
Complaint, the court again finds that as of the time it was filed, EWTN had standing.16 See
16 The court notes, however, that it is not entirely convinced that the time the Amended Complaint was filed is the operative date for purposes of standing. Though defendants observe that “[w]hen a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction,” (doc. 36 at 7 (quoting Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473-74 (2007)), that case involved a situation where the original complaint had made allegations sufficient to confer jurisdiction and was later amended, replacing those allegations with ones that were insufficient to confer jurisdiction. Rockwell Int’l Corp., 549 U.S. at 463-76. And though the allegations in the second complaint controlled, the court reiterated that subject-matter jurisdiction depends on the actual state of things at the time the action is brought. Id. at 473. Moreover, as noted earlier, here, EWTN’s Amended Complaint only adds a few paragraphs to its Complaint; the twelve original claims remain the same. (See doc. 13 ¶¶ 86-93, 115-17, 118-205.) Certainly, were EWTN to add new claims, standing for those claims would be assessed as of March 21, 2012. But EWTN adds only a few new facts based upon later developments in this case. And while adding laterdeveloped facts could also be potentially problematic because standing depends on the “state of things” when the complaint is filed, Rockwell Int’l Corp., 549 U.S. at 473, here, the court
29

Wheaton Coll., 703 F.3d at 552 (holding Wheaton College had standing at the time the
complaint was filed on July 18, 2012). To find otherwise would be to find that the
development of the finalized Mandate and the issuance of the ANPRM essentially mooted
the challenge to the amended interim final rules that EWTN originally brought, which it does
not. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189-
92 (2000) (discussing the interaction between standing and mootness).17
Assuming that the date the Amended Complaint was filed is the operative date,
defendants point to two elements of the regulatory history of this case to contend that EWTN
lacks standing: the safe harbor and the ANPRM. (See doc. 29-1 at 8-9, 23-26; doc. 36 at 3-
8.) The court will discuss below why neither of these developments operate to prevent
considers the amended interim final rules and the finalized Mandate—the development of which EWTN has added to its Amended Complaint—to be, in substance, the same rule. As such, the Amended Complaint would relate back to the date of filing the original Complaint: February 9, 2012. See Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275-76 (11th Cir. 2003) (discussing at length how standing is determined at the time the complaint is filed, and noting that because the second complaint contained the same allegations as original complaint, it related back under Federal Rule of Civil Procedure 15(c)(2) for standing purposes); see also Geneva Coll., 2013 WL 838238, at *11-12 (using original complaint filed in February 2012, as opposed to amended complaint, for purposes of assessing standing).
17 The court realizes that Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167 (2000), discusses how the Supreme Court’s prior statements that “mootness [i]s ‘standing set in a time frame’” were not comprehensive. Id. at 190. The Supreme Court noted that there might be certain instances where a case is not yet moot, but it would be too speculative to confer standing. Id. However, there is still significant overlap between the two doctrines, and while the ANPRM’s existence at the time of filing the Amended Complaint indicated that EWTN’s challenge might have someday become moot, it in no way approached satisfying the extremely high bar that mootness requires. See id. (explaining the “formidable burden” to show mootness). Thus, the court cannot say that when EWTN filed its Amended Complaint on March 21, 2012, its harms were too speculative to confer standing.
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EWTN’s standing at the time of filing its Amended Complaint. 1. The Safe Harbor Defendants argue that, under the safe harbor, they will not take action against any
qualifying organization until the first plan year that begins on or after August 1, 2013. (Doc. 29-1 at 23-24.) Given that EWTN’s plan year begins on July 1 each year, (doc. 13, ¶ 32), the Mandate would not be enforced against it until July 1, 2014. Defendants argue that “[w]ith such a long time before the inception of any possible injury and the challenged regulations undergoing amendment before then, plaintiff cannot satisfy the imminence requirement for standing . . . .” (Doc. 29-1 at 24.) EWTN acknowledges that it falls within the safe harbor. (See doc. 13 ¶ 93). Notwithstanding application of the safe harbor, EWTN argues that “[w]here the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant . . . that there will be a time delay before the disputed provisions will come into effect.” (Doc. 33 at 16 (alterations in original) (quoting Reg’l Rail Reorg. Act Cases, 419 U.S. 102, 143 (1974)) (internal quotation marks omitted).) EWTN additionally cites New York v. United States, 505 U.S. 144 (1992), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), to show that the Supreme Court has held enforcement delays varying from three to six years insufficient to deny a plaintiff’s standing. (Doc. 33 at 17.)
The court finds that the law favors EWTN. The safe harbor will end on a definite date. At that point, the Mandate will take effect against non-grandfathered and non-exempt organizations’ group health plans absent a change in the regulatory scheme. Moreover, the
31

time delay will be approximately two years, a relatively short period of time in the context
of Supreme Court jurisprudence regarding standing. See New York, 505 U.S. at 153-54, 174-
75 (three-year delay); Pierce, 268 U.S. at 530-36 (1925) (several year delay). Tellingly,
defendants impliedly concede this point, citing to Eleventh Circuit precedent and
acknowledging that “the mere passage of time alone may not defeat standing.” (Doc. 29-1
at 24 (citing Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008)).)
And, as EWTN correctly points out, (doc. 33 at 18), as a general rule, policies of non-
enforcement do not deprive a plaintiff of standing. See Va. Soc’y for Human Life, Inc. v.
Fed. Election Comm’n, 263 F.3d 379, 388 (4th Cir. 2001) (holding that a non-enforcement
policy “not contained in a final rule . . . . [and] not carry[ing] the binding force of law”
cannot defeat standing). Accordingly, the court finds that the safe harbor, by itself, does not
defeat EWTN’s standing. Given this finding, the court need not address the parties’
conflicting interpretations of Fla. ex. rel. Att’y Gen. v. HHS, 648 F.3d 1235 (11th Cir. 2011).18
18 EWTN cites Fla. ex. rel. McCollum, 716 F. Supp. 2d 1120, 1145-46 (N.D. Fla. 2010), to support its argument that the two-year gap between filing its Complaint and enforcement of the Mandate does not destroy standing. (Doc. 33 at 17.) Defendants argue that EWTN impliedly contends that, because the defendants in McCollum conceded standing upon appeal to the Eleventh Circuit, Fla. Ex rel. Att’y Gen., 648 F.3d at 1243, the defendants in this case—who significantly overlap with the defendants in that case—should be forestalled from challenging standing. (Doc. 36 at 4, 4 n.4.) Defendants are right to point out that such non-mutual offensive collateral estoppel does not apply against the government. See United States v. Mendoza, 464 U.S. 154, 162 (1984); (doc. 36 at 4, 4 n.4.) However, the court does not necessarily agree that EWTN cited to McCollum for that purpose. Rather, the court sees EWTN’s citation as additional support for the proposition that a two-year enforcement gap does not defeat standing.
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2. The ANPRM
Just as the safe harbor does not prevent an actual and imminent injury to EWTN,
neither does the ANPRM. Defendants’ argument regarding the ANPRM is based on
Eleventh Circuit and Supreme Court precedent “requir[ing] that ‘the injury proceed with a
high degree of immediacy, so as to reduce the possibility of deciding a case in which no
injury would have occurred at all.’” Alabama-Tombigbee Rivers Coal. v. Norton, 338 F.3d
1244, 1253 (11th Cir. 2003) (quoting Lujan, 504 U.S. at 564 n.2). Specifically, defendants
contend that by operation of the ANPRM, EWTN will not endure injury as a result of the
Mandate:
In light of the forthcoming amendments, and the opportunity the rulemaking process provides for [EWTN] to help shape those amendments, there is no basis to conclude that [EWTN] will be, or is likely to be, required to sponsor a health plan that covers contraceptive services in contravention of its religious beliefs once the . . . safe harbor expires.
(Doc. 29-1 at 25-26.) EWTN counters that defendants’ arguments actually address mootness
and, under that guise, fail. (Doc. 33 at 19-20.) It further argues that because defendants have
not amended the Mandate, but have only offered “statements of future . . . intentions,” the
current Mandate’s impending harm is not speculative. (Id. at 18, 20.) Finally, EWTN
contends that even if the ANPRM were implemented exactly as planned, it still would not
Regardless, the court in no way permits non-mutual offensive collateral estoppel against defendants based on McCollum, nor does it find it necessary to consider its holding regarding the two-year delay, given that EWTN has presented ample authority to prove its point without the support of McCollum.
33

alleviate its injuries. (Id. at 22-23.) The court agrees with EWTN that the ANPRM does not operate to undermine its injury in fact.
Even using the Amended Complaint, (doc. 13), as the operative complaint for purposes of measuring standing, the court finds that as of March 21, 2012, EWTN possessed standing to file suit. As discussed earlier, standing is measured at the time of filing. See Davis, 554 U.S. at 734. Thus, it is at this moment in time that the standing requirement operates, attempting to avoid the issuance of what amounts to an advisory opinion. See United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947) (stating that federal courts do not issue advisory opinions on abstract issues). Here, though defendants assert that the ANPRM creates a case in which there is “no basis to conclude” that EWTN will be injured, so that there is no case or controversy, the court disagrees. At the time of filing, “the mandate [wa]s the current law, notwithstanding defendants’ assurances that its requirements will eventually be changed.” Geneva Coll., 2013 WL 838238, at *11. As the law in effect at the time of filing, it had a direct and immediate impact upon EWTN, regardless of the safe harbor or the fact that a new rulemaking process had been initiated.
It is true that the ANPRM launched an amendment process to the Mandate. See generally 77 Fed. Reg. at 16,501-08. The name itself—advance notice of proposed rulemaking—illustrates this fact. However, nowhere in the ANPRM did defendants “promise” that a change would absolutely, unequivocally take place. See id. Though the ANPRM repeatedly refers to the agencies’ “intention” to amend the rules, there was no
34

concrete assurance at the time EWTN had filed suit that the rules would not bind it or that
they would “never be enforced in their present form by defendants against [EWTN].” (Doc.
61 at 6.); see also. 77 Fed. Reg. at 16,501 (“This advance notice of proposed rulemaking
announces the intention of the [agencies] to propose amendments to [the] regulations . . . .”
(emphasis added)); id. at 16,503 (“The Departments intend to finalize these amendments to
the final regulations such that they are effective by the end of the temporary enforcement safe
harbor . . . .” (emphasis added)).19 Accordingly, the court agrees with EWTN that
defendants’ argument “ultimately amounts to a prediction that the unforeseeable results of
a speculative proposed rulemaking might, sometime in the future, remove EWTN’s injury
. . . . [but] cannot change the fact that EWTN faces the real prospect of harm from a concrete
regulatory mandate . . . .” (Doc. 33 at 23.)20
19 Defendants acknowledge this at one point by stating that “[t]he ANPRM published in the Federal Register confirms defendants’ stated intention to propose amendments to the preventive services coverage regulations that accommodate the concerns of religious organizations . . . .” (Doc. 29-1 at 25 (emphasis added).) However, in other places defendants overstate their initial intent to make changes by declaring that through the ANPRM they had “promis[ed] imminent regulatory amendments,” (id. at 24), had “promised new regulations” (id. at 26), had “done more than merely promise a future rulemaking,” (doc. 36 at 4 n.3), had made a “commitment . . . to amend the regulations,” (id. at 8). It was only later, in Defendants’ Response to Plaintiff’s Third Notice of Supplemental Authority, that defendants outright declared that “defendants will never enforce the regulations in their current form against . . . plaintiff,” (doc. 61 at 3 (emphasis in original)), rather than simply framing their past statements of intention as promises. Accordingly, at the time EWTN filed suit, no “promises” had been made.
20 To support this assertion, EWTN cites to Thomas More Law Ctr. v. Obama, 651 F.3d 529, 536 (6th Cir. 2011), rev’d on other grounds, Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), for the proposition that “[i]mminence is a function of probability” and that the ANPRM and its effects are far too speculative to defeat standing. (Doc. 33 at 24.) Further, to
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In a recent decision from the District Court for the Northern District of Texas, Roman
Catholic Diocese of Dallas v. Sebelius, 3:12-CV-1589-B, 2013 WL 687080 (N.D. Tex. Feb.
26, 2013), the court addressed the exact issues before this court based on a lawsuit that was
filed on May 21, 2012, after the issuance of the safe harbor and the ANPRM. See id. at *5.
The court held that the plaintiff, a nonprofit charitable organization existing under the Code
of Canon Law of the Roman Catholic Church, had demonstrated standing at the time the suit
was filed. Id. at *11-12. It reasoned that
publication of the ANPRM is insufficient to undermine the imminence of Plaintiff’s alleged injuries. The ANPRM merely states that the government expects to address concerns similar to those raised by Plaintiff and solicits comment on the same. 77 Fed. Reg. 16,501. The ANPRM is not a proposed amendment and does not proffer contents or substance of a proposed amendment. There is no concrete evidence to indicate that the government is reversing its course. See API v. EPA, 683 F.3d 382, 388 (D.C. Cir. 2012). Although the Court cannot say that every ANPRM would be insufficient to indicate a shift in administrative policy, the ANPRM relevant to this case provides no specifics to quash Plaintiff’s fear of enforcement or to disprove the imminence of Plaintiff’s injury upon enforcement of the current, final regulations.
Id. at *9. A similar rationale was set forth in Roman Catholic Archdiocese of New York v.
Sebelius, 12 CIV. 2542 BMC, 2012 WL 6042864 (E.D.N.Y. Dec. 4, 2012), where the court
demonstrate that the ANPRM shows mere intent to amend the Mandate, EWTN cites to American Petroleum Institute v. EPA, 906 F.2d 729, 739-40 (D.C. Cir. 1990), which observes that “an agency always retains the power to revise a final rule . . . . [and i]f the possibility of unforseen amendments were sufficient to [destroy justiciability], review could be deferred indefinitely.” (Id. at 20.) Finally, EWTN cites American Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1031 n.1 (D.C. Cir. 2008) (per curiam), to similarly show that “agencies cannot avoid judicial review . . . merely because they have opened another docket that may address some related matters.” (Id.) As discussed above, the court finds EWTN’s arguments on this matter persuasive.
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stated
the ANPRM is not a formally announced change[ ] to official government policy. Despite defendants’ attempt to characterize the ANPRM as a binding promise not to enforce the Coverage Mandate, the fact is that the ANPRM does not prevent the Coverage Mandate, as it currently exists, from going into effect. It is not a change in policy; it merely seeks input to allow the Departments to consider possible revisions to the Coverage Mandate. The Departments need not make any changes to the Coverage Mandate to accommodate religious groups at all.
In this light, the Court finds that plaintiffs’ claimed future injuries are certainly impending. The law as it currently [is] written requires that, beginning January 1, 2014, plaintiffs must either pay onerous fines or provide contraceptive coverage in violation of their beliefs. The Departments may alter the Coverage Mandate before that time, but the possibility of a change in the law does not mean that a requirement that will become effective by operation of law is not certainly impending. Thus, plaintiffs’ future injuries are sufficiently imminent to constitute injuries in fact.
Id. at *15 (internal quotation marks and citations omitted). The court agrees with the
rationale of both Roman Catholic Diocese of Dallas and Roman Catholic Archdiocese of
New York. Thus, even if the court were to assess standing as of the time of EWTN’s
Amended Complaint, (doc. 13), the safe harbor and the ANPRM do not operate to make
EWTN’s injuries at the time of filing any less concrete or imminent. Accordingly, the court
finds that EWTN has standing to challenge the Mandate.21
21 It is worth noting that because the NPRM was issued after both EWTN’s original Complaint, (doc. 1), and Amended Complaint, (doc. 13), it “has no bearing on whether [EWTN] adequately alleged its standing to sue,” Roman Catholic Diocese of Dallas, 2013 WL 687080, *11. Therefore, to the extent that defendants argue the issuance of the NPRM affects EWTN’s standing, (see doc. 74 at 3 (“[T]the NPRM further buttresses defendants’ promise that they will never enforce the current version of the challenged regulations against plaintiff, further demonstrates concrete action to change those regulations, and further undermines plaintiff’s
37

C. Ripeness Apart from their standing argument, defendants argue that this court lacks jurisdiction to hear EWTN’s claims because the case is not ripe for review. (Doc. 29-1 at 26.) Specifically, defendants contend that the Mandate is in the process of being amended, and that therefore, there is “a significant chance that the amendments will alleviate altogether the need for judicial review, or at least narrow and refine the scope of any actual controversy to more manageable proportions.” (Id. at 29.) Thus, defendants claim that EWTN’s challenge is not fit for review. (Id. at 32.) Further, defendants argue that a delay in judicial review will not cause EWTN to suffer any hardship because an “alleged desire to plan for . . . contingencies” is not enough to constitute hardship under the test for determining ripeness. (Doc. 36 at 12.) In response, EWTN argues that its claims are ripe because they present purely legal issues which require no factual development, they challenge a final rule that marks the consummation of the agency’s rulemaking process, defendants’ arguments address mootness as opposed to ripeness, and it will suffer hardship if review is delayed because it must “plan now,” (doc. 33 at 30 (emphasis in original)), for the Mandate’s future effects. (Doc. 33 at 24-31.) The court agrees with defendants that the action is due to be dismissed because it is not ripe for review at this time. The ripeness doctrine is comprised of two main questions: (1) whether the issues are
unfounded suggestions that the government will not follow through on its commitment.”)), they are mistaken. (See also doc. 75 at 3.)
38

fit for judicial review; and (2) whether withholding a decision will cause “hardship to the parties.” Abbott Labs. v. Garner, 387 U.S. 136, 149 (1967). As discussed earlier, ripeness and standing often overlap—in particular, in “cases involving pre-enforcement review, the standing and ripeness inquiries may tend to converge.” Elend, 471 F.3d at 1205. And like standing, ripeness is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003). However, it is not a hard and fast rule that ripeness and standing go hand in hand: “there [still] may be standing without ripeness, . . . or there may be ripeness without standing.” Elend, 471 F.3d at 1205.
Moreover, the doctrines have some key differences. Ripeness differs significantly from standing in that it asks whether a case is ready (i.e., “ripe”) for entertaining, while standing focuses on the parties themselves, asking whether they are the right persons to bring the suit. See Wilderness Soc. v. Alcock, 83 F.3d 386, 390 (11th Cir. 1996) (discussing the intersection of standing and ripeness and noting the main difference—that while standing “asks whether these persons are the proper parties to bring the suit,” ripeness “asks whether this is the correct time for the complainant to bring the action (emphasis in original)). Further, as noted earlier, “ripeness can be affected by events occurring after the case is filed,” Yacht Club on the Intracoastal Condo. Ass’n v. Lexington Ins. Co., 11-15683, 2013 WL 598389, *3 (11th Cir. Feb. 15, 2013) (emphasis added) (citing cases), while standing either exists or does not exist at the time the suit is filed, see Focus on the Family v. Pinellas
39

Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003). See also Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974) (“[R]ipeness is peculiarly a question of timing, it is the situation now rather than the situation at [an earlier time] that must govern.”); Geneva Coll., 2013 WL 838238, at *12 (“Unlike standing which is determined as of the time the case commenced, ripeness may consider events which have occurred after the filing of the complaint.” (citing Buckley v. Valeo, 424 U.S. 1, 114–17 (1976))).
In addition, because ripeness, like standing, is concerned with the case and controversy requirement of Article III, see Konikov v. Orange Cnty., Fla., 410 F.3d 1317, 1322 (11th Cir. 2005), it aims to avoid deciding cases which need not yet be decided, and which could eventually be resolved by the agency being challenged, thus avoiding litigation entirely, see Belmont Abbey, 2012 WL 2914417, at *12 (“[I]f we do not decide the issue now, we may never need to.” (alterations omitted) (quoting Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996))). It further “counsel[s] judicial restraint,” Nat’l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005) (quoting Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997)) (internal quotation marks omitted), in part to “protect[] the other branches from judicial meddling,” id. (“When a court is asked to review decisions of administrative agencies, it is hornbook law that courts must exercise patience and permit the administrative agency the proper time and deference for those agencies to consider the case fully.”). Ultimately, the ripeness doctrine “prevent[s] the courts, through avoidance of premature adjudication, from entangling
40

themselves in abstract disagreements over administrative policies, and also . . . protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs., 387 U.S. at 14849.
As discussed earlier, in similar challenges to the Mandate, only two out of at least eighteen cases have found the claims ripe for review. See Roman Catholic Diocese of Fort Worth, No. 4:12–CV–314–Y, at *12; Roman Catholic Archdiocese of New York v. Sebelius, 2012 WL 6042864, *21-23. This court agrees with the reasoning of the majority of cases on the issue and finds that, given the current state of the administrative process, EWTN’s claims are not ripe because they are not fit for review and EWTN will not suffer hardship sufficient to weigh the balance in favor of judicial review.
1. Fitness for Review In evaluating ripeness under its two-part test, the Supreme Court has set forth factors to consider: “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998). Both of the latter considerations relate to whether a plaintiff’s claims are fit for review. Pittman v. Cole, 267 F.3d 1269, 1278 (11th Cir. 2001). Other factors to weigh in considering whether a plaintiff’s claims are fit include “questions of finality, definiteness, and the extent to which resolution
41

of the challenge depends upon facts that may not yet be sufficiently developed.” Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1291 (11th Cir. 2010) (quoting Harrell v. The Fla. Bar, 608 F.3d 1241, 1258 (11th Cir. 2010)) (internal quotation marks omitted). Finally, “claims are less likely to be considered fit . . . when they venture beyond purely legal issues[,] . . . when they require speculation about contingent future events[, or when they] . . . . interfere[] with an agency’s decisionmaking process before it has the opportunity to finalize its policies . . . .” Pittman, 267 F.3d at 1278 (internal quotation marks and citations omitted).
Here, although the ANPRM did not operate to deprive EWTN of standing to challenge the law that it was directly subject to at the time of filing its Complaint, it does, along with the NPRM, operate to make the Mandate unfit for review. As noted above, there are a number of considerations that may be taken into account when considering whether a law or regulation is fit for judicial review. In this case, one particular concern weighs heavily in favor of deferring review: that is, the fact that the agency is in the middle of a rulemaking process which might altogether alleviate the alleged harm, or at the very least narrow the issues involved, making the eventual resolution of the lawsuit better tailored and much more efficient. See Am. Petroleum Inst. v. E.P.A., 683 F.3d 382, 387 (D.C. Cir. 2012) (“[P]ermitting the administrative process to reach its end can at least solidify or simplify the factual context and narrow the legal issues at play, allowing for more intelligent resolution of any remaining claims and avoiding inefficient and unnecessary piecemeal review.”
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(internal quotation marks omitted)). Thus, judicial review at this point—particularly where the NPRM has been issued and a new rule is set to emerge shortly—would inappropriately interfere in the “agency’s decisionmaking process before it has the opportunity to finalize its policies.” Pittman, 267 F.3d at 1278.
Moreover, other courts have found the government’s representations that it will not enforce the present rule and that a new rule will be issued before the end of the enforcement safe harbor persuasive.22 See, e.g., Wheaton Coll., 703 F.3d at 552 (taking the government at its word that it would “never enforce [the Mandate] in its current form” and that it would “issue a new Final Rule before August 2013” because waiting for the new rule could resolve the issues); Catholic Diocese of Peoria, 2013 WL 74240, at *5 (taking government at its word and stating that reviewing the Mandate “before it is amended and before it is to be enforced” would “undermine the interests of judicial economy”). This court agrees with the reasoning of these cases. Accordingly, because defendants “have initiated a rulemaking specifically intended to amend the challenged regulations to address the concerns raised by organizations like [EWTN],” (doc. 36 at 6 n.7), the case is not presently fit for review.23
22 As noted earlier, these representations came too late to affect EWTN’s standing in this case.
23 In response to this, EWTN claims that defendants’ arguments against ripeness are, in reality, about mootness, (doc. 33 at 29), and further argues that its claims would not be undermined by mootness in any event because “[t]he ANPRM promises no change to th[e] status quo,” (id. at 27), and “the NPRM confirms that EWTN will not be exempt from the Mandate,” (doc. 75 at 3). First, the court agrees that EWTN’s claims are not moot because, as mentioned earlier, a high bar must be met in order to moot a claim. See Friends of the Earth, Inc., 528 U.S.
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Reinforcing this conclusion is the fact that yet another factor, lack of finality, weighs
in favor of finding the challenge unripe. While it might seem odd to say that EWTN had
standing to challenge the Mandate when it filed suit, but the Mandate currently lacks finality,
that is the practical result in this case as the administrative rulemaking process progresses.
Though the Mandate is the current state of the law and was binding on EWTN when it filed
its Complaint, the NPRM “illustrate[s] that the challenged regulations are simply
interlocutory.” Roman Catholic Diocese of Dallas, 2013 WL 687080, at *15; see also
Archdiocese of St. Louis, 2013 WL 328926, at *5 (“Because the regulations are in the process
of being amended, in their current form they represent a tentative as opposed to final agency
position.”); Univ. of Notre Dame, 2012 WL 6756332, at *3 (“[T]he challenged regulatory
requirement isn’t sufficiently final. Notre Dame is correct that [the] regulation itself claims
at 190. But second, the court also agrees with defendants that its arguments are not, in fact, about mootness. (See doc. 36 at 6, 6 n.7.) Rather, despite plaintiff’s contentions, they remain fundamentally about ripeness (and standing). (See id.) Certainly, potential mootness is a relevant consideration when assessing ripeness in this case because it underscores the fact that the rules currently being developed could ultimately resolve the contested issues. See Efron By & Through Efron v. United States, 1 F. Supp. 2d 1468, 1470 (S.D. Fla. 1998) aff’d sub nom. Efron v. United States, 189 F.3d 482 (11th Cir. 1999) (stating that there is “an additional, unspoken element of the ripeness doctrine”: the idea that “if we do not need to decide it now, we may never need to”). Because ripeness is about whether issues are ready for review, it is only logical to reason that in some cases involving ongoing agency action or rulemaking that is not yet final, later developments will indeed moot the issues. See, e.g., In re Aiken County, 645 F.3d 428, 435-36 (D.C. Cir. 2011) (taking into account potential future mootness of claims in determining whether agency action was fit for review under a ripeness analysis); Belmont Abbey, 2012 WL 2914417, at *12 (“[I]f we do not decide the issue now, we may never need to.” (quoting Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996))). This is the case even despite EWTN’s protests that no future developments could possibly impact its constitutional claims. (Doc. 33 at 27). Because the rule is currently in the process of being amended, EWTN must wait until its allegation becomes a reality.
44

to be final, but events following the regulation’s adoption make clear that it isn’t final.”
(internal citations omitted)). As discussed earlier, unlike standing, ripeness may come and
go throughout the course of a litigation. Yacht Club on the Intracoastal Condo. Ass’n, 2013
WL 598389, at *3. Thus, after the government’s eventual promises to finalize changes to the
Mandate and to forego enforcement in its current form, (see doc. 61 at 6, 6 n.4), and the
issuance of the NPRM, which sets forth specifics regarding future changes, see generally 78
Fed. Reg. 8456, the Mandate’s fundamental nature has transformed into that of a temporary
rule. See Conlon, 2013 WL 500835, *at 5 (“[T]he promised accommodations regarding
religious objections mean the current regulations are not truly final, rendering any judicial
decision as to the legality of the current regulations premature.”).
Primarily for these two reasons—namely, (1) avoiding any interference with the
ongoing rulemaking process before defendants have finalized their policies, and (2) the
temporary nature of the current rules—the court finds that EWTN’s claims are not ripe for review.24 Nevertheless, to briefly address EWTN’s claim that ripeness requirements are more
24 Whether the question to be resolved presents purely legal issues is yet another of the factors courts look at when assessing ripeness. See La. Envtl. Action Network v. EPA, 172 F.3d 65, 69 (D.C. Cir. 1999) (quoting George E. Warren Corp. v. EPA, 159 F.3d 616, 622 (D.C. Cir. 1998). The parties agree that EWTN’s claims present primarily legal (as opposed to factual) issues, (see doc. 29-1 at 31; doc. 33 at 8, 25-26; doc. 36 at 9), however, “an agency’s [actions] do[] not become final merely because the challenger attacks the agency’s jurisdiction, even where the attack raises a pure question of law,” Ticor Title Ins. Co. v. F.T.C., 814 F.2d 731, 747 (D.C. Cir. 1987). See also Pub. Citizen v. Office of U.S. Trade Representatives, 970 F.2d 916, 921 (D.C. Cir. 1992) (“Even if only purely legal issues remained . . . that would not obviate the need for finality itself. Nor, indeed, would it establish the fitness of the issues for judicial decision, . . . .” (internal quotation marks and citations omitted)). Thus, even if the issues presented are
45

relaxed in First Amendment cases, (doc. 33 at 13, 25, 27), the court finds that even if the relaxed standard were to apply, this alone could not overcome the lack of fitness for judicial review. While the court agrees that EWTN’s observation is an accurate one, the ripeness requirement “may not be ignored” because of the less stringent standard. See Nat’l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005) (“[W]hile it is true that our review of a suit’s ripeness is at its most permissive in cases concerning putative violations of the First Amendment, th[e ripeness] requirement may not be ignored.” (citations omitted)).
Moreover, the court is not convinced that the relaxed standard would apply to this case. The primary reason that the ripeness requirement has been relaxed in First Amendment cases is because of the fear that the challenged statute or regulation would create a chilling effect on speech. See Beaulieu v. City of Alabaster, 454 F.3d 1219, 1227-28 (11th Cir. 2006) (noting the more permissive review of ripeness in First Amendment cases and discussing “the fear that free speech will be chilled even before the law, regulation, or policy is enforced” (quoting Hallandale Prof’l Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 760 (11th Cir. 1991)) (internal quotation marks omitted)). However, any chilling effect on speech is not yet a concern in this case because of the safe harbor and enforcement delay; thus, EWTN cannot now claim that there is a chilling effect on its speech because it fears
purely legal, this does not transform EWTN’s claims into ripe ones.
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“risking criminal or severe civil sanctions” for noncompliance with the Mandate.25 Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1221 (11th Cir. 2010) (quoting Elend, 471 F.3d at 1211). Further, “there [is no] allegation by [EWTN] that their own protected speech, or anyone else’s, is being chilled; rather they complain that the Mandate in its current form compels them to engage in speech which they find objectionable but in which they have not yet actually engaged.” (emphasis in original)). Persico, 2013 WL 228200, at *11; see also Nebraska ex rel. Bruning, 877 F. Supp. 2d at 803 (noting that though the chilling effect is a concern in First Amendment cases, because the plaintiffs did not face “a direct and immediate dilemma that involve[d] the sacrifice of their First Amendment rights,” ripeness could not be established “even under a relaxed standard”). Accordingly, the ripeness of EWTN’s claims is not affected by the relaxed standard that it asks the court to apply.
2. Hardship Finally, as to the hardship prong of the ripeness analysis, EWTN correctly observes that if a dispute otherwise qualifies as fit for review, any lack of hardship is irrelevant. (See doc. 33 at 24-25 (quoting Harrell v. The Fla. Bar, 608 F.3d 1241, 1259 (11th Cir. 2010)).) Conversely, in some circumstances, if a claim is questionably fit, extreme hardship may weigh the balance in favor of judicial review. See Consol. Rail Corp. v. United States, 896 F.2d 574, 577 (D.C. Cir. 1990). What actually constitutes hardship will inevitably change
25 As defendants further observe, the relaxed analysis only applies where there is a “credible threat” of enforcement. (Doc. 36 at 3 n.2).
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depending on the case, however, it cannot simply be a mere inconvenience—it must be “immediate and significant.” Abbott Labs., 387 U.S. at 153; see also Harrell, 608 F.3d at 1258 (“The hardship prong asks about the costs to the complaining party of delaying review until conditions for deciding the controversy are ideal.”); Elend, 471 F.3d at 1211 (“Hardship can sometimes be established if a plaintiff demonstrates that he would have to choose between violating an allegedly unconstitutional statute or regulation and risking criminal or severe civil sanctions.” (citing Steffel v. Thompson, 415 U.S. 452, 462 (1974))); Pittman, 267 F.3d at 1280-81 (discussing Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998), and listing some types of hardship that might weigh a case in favor of judicial review, such as “adverse effects of a strictly legal kind,” “whether the challenged policy inflicts significant practical harm upon the interests that the [plaintiff] advances,” and “any other way in which the [policy] could now force it to modify its behavior in order to avoid future adverse consequences” (alterations in original) (internal quotation marks omitted)).
Further, allegations that a party must presently begin planning for future events which are speculative, or even the inability to plan at all for future events, have generally not constituted hardship sufficient to satisfy the hardship requirement. See Wheaton Coll., 887 F. Supp. 2d at 113 (no hardship where plaintiff desired to plan for contingencies); Cephalon, Inc. v. Sebelius, 796 F. Supp. 2d 212, 218-20 (D.D.C. 2011) (spending financial resources now to plan for “remote and speculative” future events did not constitute hardship).
Here, EWTN claims that it faces imminent hardship absent immediate review because
48

the ANPRM will not alter its claims, and it must begin planning now to address the financial problems it will be faced with as a result. (Doc. 33 at 30.) It further claims that it could be subject to third-party lawsuits attempting to enforce the Mandate, since the safe harbor only protects it against the defendants. (Id. at 30-31.) However, the court finds that “[EWTN’s] hardship claim is insufficient for any [ripeness] exception.” Pub. Citizen v. Office of U.S. Trade Representatives, 970 F.2d 916, 921 (D.C. Cir. 1992). Said differently, EWTN has not shown hardship that is sufficient to overcome its unfit claims because it cannot establish that the alleged harms it faces are “immediate and significant,” Abbott Labs., 387 U.S. at 153.
EWTN furthers the same failing arguments regarding hardship that were made in the numerous other cases addressing the Mandate, most of which held that there was no hardship sufficient to weigh the balance in favor of judicial review. See, e.g., Roman Catholic Diocese of Dallas, 2013 WL 687080, at *16 (“[T]he inability to prepare for contingencies is not a hardship that outweighs the unfitness for review of the issues in this case.”); Conlon, 2013 WL 500835, at *6 (necessity of postponing judicial review outweighed “purported hardship . . . in [plaintiffs’] ability to plan for contingencies”); Wheaton Coll., 887 F. Supp. 2d at 113 (planning insecurity not enough to show hardship); Nebraska ex rel. Bruning, 877 F. Supp. 2d at 802-03 (desire to plan for contingencies that may never arise did not constitute hardship); Belmont Abbey, 878 F. Supp. 2d at 41 (neither planning for the possibility of being forced to give up health insurance plan in 2014 nor risk of third-party lawsuits created hardship sufficient to overcome the lack of fitness for judicial review).
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In addition, the court agrees with defendants that if planning for the future were to constitute hardship, “the hardship prong would become meaningless because organizations are always planning for the future.” (Doc. 36 at 12.) Others courts have agreed. See Tenn. Gas Pipeline Co. v. FERC, 736 F.2d 747, 751 (D.C. Cir. 1984) (planning insecurity not enough to constitute hardship); Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 162-64 (7th Cir. 1976) (uncertainty in business and capital planning not immediate and direct enough to constitute hardship); Cephalon, Inc., 796 F. Supp. at 218-20 (D.D.C. 2011) (financial planning for “remote and speculative” future events did not constitute hardship). And in addition, the “theoretical possibility” of third-party lawsuits is not sufficient to establish the requisite hardship to overcome a lack of fitness for review. Belmont Abbey, 878 F. Supp. 2d at 41. Ultimately, “the ripeness doctrine requires a pragmatic and commonsense application,” Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 918 (D.C. Cir. 1985); in this case, common sense weighs in favor of withholding judicial review until new regulations are created and finalized. At that point, if EWTN still has objections, it may then file suit.
IV. CONCLUSION Based on the foregoing and as directed by the court’s Order entered contemporaneously with this Opinion, defendants’ Motion to Dismiss will be granted. EWTN’s case will be dismissed without prejudice.
50

DONE, this 25th day of March 2013. SHARON LOVELACE BLACKBURN CHIEF UNITED STATES DISTRICT JUDGE
51

 
 Case 2:12-cv-00501-SLB Document 29-1 Filed 05/04/12 Page 1 of 34

FILED
2012 May-04 PM 02:42 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

)

ETERNAL WORD TELEVISION

)

NETWORK, INC.,

)

)

Plaintiff,

)

)

v.

)

)

KATHLEEN SEBELIUS,

)

et al.,

)

)

Defendants.

)

___________________________________ )

Case No. 2:12-cv-00501-SLB

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT

Case 2:12-cv-00501-SLB Document 29-1 Filed 05/04/12 Page 2 of 34
TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION .....................................................................................................1 BACKGROUND .......................................................................................................4 I. STATUTORY BACKGROUND ....................................................................4 II. CURRENT PROCEEDINGS ........................................................................12 STANDARD OF REVIEW .....................................................................................13 ARGUMENT ...........................................................................................................14 I. THE COURT SHOULD DISMISS THE CASE FOR LACK OF
JURISDICTION BECAUSE PLAINTIFF LACKS STANDING ................14 II. THE COURT SHOULD DISMISS THE CASE FOR LACK OF
JURISDICTION BECAUSE IT IS NOT RIPE ............................................20 CONCLUSION ........................................................................................................28
i

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TABLE OF AUTHORITIES
CASES
Abbott Labs. v. Gardner, 387 U.S. 136 (1967)................................................................... 21, 22, 23, 25, 26
Alabama-Tombigbee Rivers Coalition v. Norton, 338 F.3d 1244 (11th Cir. 2003) ..........................................................................19
Alabama v. United States, 630 F. Supp. 2d 1320 (S.D. Ala. 2008) ........................................................26, 27
Ashcroft v. Iqbal, 556 U.S. 662 (2009)............................................................................................15
Bischoff v. Osceola Cnty., 222 F.3d 874 (11th Cir. 2000) ............................................................................13
Califano v. Sanders, 430 U.S. 99, 105 (1977)......................................................................................21
Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995) ............................................................................27
Citizens United v. FEC, 130 S. Ct. 876 (2010)..........................................................................................18
Davila v. Delta Air Lines, Inc., 326 F.3d 1183 (11th Cir. 2003) ..........................................................................15
Davis v. Home Buyers Warranty Corp., No. 2:10-cv-1815-SLB, 2011 WL 3489886 (N.D. Ala. Aug. 8, 2011)..............16
Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008) ..........................................................................18
Koziara v. City of Casselberry, 392 F.3d 1302 (11th Cir. 2004) ....................................................................14, 18
ii

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Lake Pilots Ass'n v. U.S. Coast Guard, 257 F. Supp. 2d 148 (D.D.C. 2003)....................................................................24
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)................................................................................14, 16, 19
McConnell v. FEC, 540 U.S. 93 (2003)..............................................................................................18
Motor Vehicle Mfrs. Assoc. v. N.Y. State Dep't of Envtl. Conservation, 79 F.3d 1298 (2d Cir. 1996) .........................................................................25, 26
Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803 (2003)......................................................................................20, 21
Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998)............................................................................................24
Pittman v. Cole, 267 F.3d 1269 (11th Cir. 2001) ..........................................................................25
Pub. Serv. Comm'n of Utah v. Wycoff Co., 344 U.S. 237 (1952)......................................................................................21, 25
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)..............................................................................................13
Texas Indep. Producers and Royalty Owners Assoc. v. EPA, 413 F.3d 479 (5th Cir. 2005) ..................................................................24, 25, 27
Texas v. United States, 523 U.S. 296 (1998)......................................................................................23, 24
Whitmore v. Arkansas, 495 U.S. 149 (1990)......................................................................................14, 18
Wilderness Soc'y v. Alcock, 83 F.3d 386 (11th Cir. 1996) ........................................................................21, 24
iii

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STATUTES & REGULATIONS 26 C.F.R. § 54.9815-1251T .................................................................................1, 15 26 C.F.R. § 54.9815-1251T(a)...........................................................................15, 16 26 C.F.R. § 54.9815-1251T(a)(2) ............................................................................17 26 C.F.R. § 54.9815-1251T(a)(3) ............................................................................17 26 C.F.R. § 54.9815-1251T(g)(1)......................................................................15, 16 26 C.F.R. § 54.9815-2713T(b)(1)..............................................................................7 29 C.F.R. § 2590.715-1251............................................................................1, 15, 16 29 C.F.R. § 2590.715-1251(a)(2).............................................................................17 29 C.F.R. § 2590.715-1251(a)(3).............................................................................17 29 C.F.R. § 2590.715-2713(b)(1) ........................................................................7, 15 29 C.F.R. § 2590.715-1251(g)(1) ......................................................................15, 16 45 C.F.R. § 147.130(a)(1)(iv)(A)...............................................................................8 45 C.F.R. § 147.130(a)(1)(iv)(B)...............................................................................9 45 C.F.R. §147.130(b)(1)...........................................................................................7 45 C.F.R. § 147.140 .............................................................................................1, 15 45 C.F.R. § 147.140(a).......................................................................................15, 16 45 C.F.R. § 147.140(a)(2)........................................................................................17 45 C.F.R. § 147.140(a)(3)........................................................................................17 45 C.F.R. § 147.140(g)(1)..................................................................................15, 16
iv

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75 Fed. Reg. 41,726 (July 19, 2010)......................................................................6, 7 76 Fed. Reg. 46,621 (Aug. 3, 2011).......................................................................8, 9 77 Fed. Reg. 8,725 (Feb. 15, 2012) .................................................10, 11, 19, 23, 27 77 Fed. Reg. 16,501 (Mar. 21, 2012).............................................. 10, 11, 12, 19, 25 42 U.S.C. § 300gg-13.................................................................................................4 42 U.S.C. § 300gg-91(a)(1) .......................................................................................4 42 U.S.C. § 18011(a)(2)...........................................................................................15 26 U.S.C. § 501(a) .....................................................................................................9 26 U.S.C. § 4980H .....................................................................................................5 26 U.S.C. § 6033(a) ...................................................................................................9 26 U.S.C. § 6033(a)(1)...............................................................................................9 26 U.S.C. § 6033(a)(3)(A)(i) .....................................................................................9 Pub. L. No. 111-152, 124 Stat. 1029 (2010)..............................................................1 Pub. L. No. 111-148, 124 Stat. 119 (2010)................................................................1
LEGISLATIVE MATERIALS 155 Cong. Rec. S12019, S12025 (daily ed. Dec. 1, 2009) ....................................5, 6 155 Cong. Rec. S12261, S12271 (daily ed. Dec. 3, 2009) ....................................5, 6
MISCELLANEOUS INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN:
CLOSING THE GAPS 19-20, 109 (2011) ..........................................................4, 6, 7
v

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INTRODUCTION The Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111148, 124 Stat. 119 (2010),1 and implementing regulations, require all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain recommended preventive services without cost-sharing (such as a copayment, coinsurance, or a deductible).2 As relevant here, except as to group health plans of certain religious employers (and group health insurance coverage sold in connection with those plans), the preventive services that must be covered include all Food and Drug Administration (“FDA”)-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider. Plaintiff, Eternal Word Television Network (“EWTN”), originally filed suit on February 9, 2012, seeking to have the Court invalidate and enjoin the preventive services coverage regulations. Plaintiff alleges that its sincerely held religious beliefs prohibit it from providing the required coverage for certain services.
1 Amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010).
2 A grandfathered plan is one that was in existence on March 23, 2010 and that has not undergone any of a defined set of changes. 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.7151251; 45 C.F.R. § 147.140.
1

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Over the past few months, defendants have issued guidance on a temporary enforcement safe harbor and initiated a rulemaking to further amend the regulations to address religious concerns such as those raised by plaintiff in this case. The enforcement safe harbor provides that defendants will not bring any enforcement action against non-profit organizations with religious objections to providing contraceptive coverage (and associated plans and issuers) if they meet certain criteria. The safe harbor protects such organizations until the first plan year that begins on or after August 1, 2013. Moreover, defendants published an advance notice of proposed rulemaking (“ANPRM”) in the Federal Register that confirms defendants’ intent, before the expiration of the safe harbor period, to propose and finalize additional amendments to the preventive services coverage regulations to further accommodate non-exempt, non-grandfathered religious organizations’ religious objections to covering contraceptive services. The ANPRM suggests ideas and solicits public comment on potential accommodations, including, but not limited to, requiring health insurance issuers to offer health insurance coverage without contraceptive coverage to religious organizations that object to such coverage and simultaneously to offer contraceptive coverage directly to such organizations’ plan participants, at no charge.
This Court lacks authority to adjudicate plaintiff’s claims. At the outset, plaintiff’s suit must be dismissed for lack of jurisdiction because plaintiff – despite
2

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amending its complaint – has not alleged any imminent injury from the operation of the regulations. Plaintiff sponsors a group health plan for its employees, and plaintiff has not made sufficient factual allegations that establish that the plan – which according to the First Amended Complaint does not cover contraceptive services – is ineligible for grandfather status. It has merely offered conclusory and speculative assertions to that effect. Thus, even apart from defendants’ most recent actions, plaintiff has not borne its burden to allege facts from which this Court could conclude that plaintiff is under any current obligation to offer coverage for contraceptive services. Moreover, even assuming that plaintiff’s group health plan is ineligible for grandfather status, plaintiff has not alleged an imminent injury that would support standing in light of the enforcement safe harbor – which plaintiff admits protects it (and the issuer(s) of plaintiff’s employee health plan) until at least July 1, 2014 – and defendants’ initiation of a rulemaking to amend the preventive services coverage regulations well before that date to accommodate the religious objections of organizations like plaintiff.
The Court likewise lacks jurisdiction because this case is not ripe. Plaintiff’s challenge to the preventive services coverage regulations is not fit for judicial review because defendants have initiated a rulemaking to amend the challenged regulations to accommodate religious objections to providing contraceptive coverage, like plaintiff’s. In the meantime, the temporary enforcement safe harbor
3

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will be in effect such that plaintiff, even if its group health plan is not eligible for grandfather status, will not suffer any imminent hardship as a result of its failure to cover contraceptive services.
BACKGROUND I. STATUTORY BACKGROUND
Prior to the enactment of the ACA, many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of disease, lead productive lives, and reduce health care costs. Due in large part to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”). Section 1001 of the ACA – which includes the preventive services coverage provision that is relevant here – seeks to cure this problem by making recommended preventive care affordable and accessible for many more Americans.
The preventive services coverage provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without costsharing.3 42 U.S.C. § 300gg-13. The preventive services that must be covered are:
3 A group health plan includes a plan established or maintained by an employer that provides medical care to employees. 42 U.S.C. § 300gg-91(a)(1). Group health plans may be insured (i.e., medical care underwritten through an insurance contract) or self-insured (i.e.,
4

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(1) evidence-based items or services that have in effect a rating of “A” or “B” from the United States Preventive Services Task Force (“USPSTF”); (2) immunizations recommended by the Advisory Committee on Immunization Practices; (3) for infants, children, and adolescents, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration (“HRSA”)4; and (4) for women, such additional preventive care and screenings not described by the USPSTF as provided in comprehensive guidelines supported by HRSA. Id.
The requirement to provide coverage for recommended preventive services for women, without cost-sharing, was added as an amendment to the ACA during the legislative process. The Women’s Health Amendment was intended to fill significant gaps relating to women’s health that existed in the other preventive care guidelines identified in section 1001 of the ACA. See 155 Cong. Rec. S12019, S12025 (daily ed. Dec. 1, 2009) (statement of Sen. Boxer) (“The underlying bill introduced by Senator Reid already requires that preventive services recommended by [USPSTF] be covered at little to no cost. . . . But [those recommendations] do not include certain recommendations that many women’s health advocates and medical professionals believe are critically important . . . .”); 155 Cong. Rec.
medical care funded directly by the employer). The ACA does not require employers to provide health coverage for their employees, but, beginning in 2014, certain large employers may face assessable payments if they fail to do so under certain circumstances. 26 U.S.C. § 4980H.
4 HRSA is an agency within the Department of Health and Human Services. 5

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S12261, S12271 (daily ed. Dec. 3, 2009) (statement of Sen. Franken) (“The current bill relies solely on [USPSTF] to determine which services will be covered at no cost. The problem is, several crucial women’s health services are omitted. [The Women’s Health Amendment] closes this gap.”).
Research shows that cost-sharing requirements can pose barriers to preventive care and result in reduced use of preventive services, particularly for women. IOM REP. at 109; 155 Cong. Rec. at S12026-27 (daily ed. Dec. 1, 2009) (statement of Sen. Mikulski) (“We want to either eliminate or shrink those deductibles and eliminate that high barrier, that overwhelming hurdle that prevents women from having access to [preventive care].”). Indeed, a 2010 survey showed that less than half of women are up to date with recommended preventive care screenings and services. IOM REP. at 19. By requiring coverage for recommended preventive services and eliminating cost-sharing requirements, Congress sought to increase access to and utilization of recommended preventive services. 75 Fed. Reg. 41,726, 41,728 (July 19, 2010). Increased use of preventive services will benefit the health of individual Americans and society at large: individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease; healthier workers will be more productive with fewer sick days; and increased utilization will result in savings due to lower health care costs. 75 Fed. Reg. at 41,728, 41,733; IOM REP. at 20.
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Defendants published interim final regulations implementing the preventive services coverage provision on July 19, 2010. 75 Fed. Reg. 41,726. The interim final regulations provide, among other things, that a group health plan or health insurance issuer offering non-grandfathered health coverage must provide coverage for newly recommended preventive services, without cost-sharing, for plan years (or, in the individual market, policy years) that begin on or after the date that is one year after the date on which the new recommendation is issued. 26 C.F.R. § 54.9815-2713T(b)(1); 29 C.F.R. § 2590.715-2713(b)(1); 45 C.F.R. § 147.130(b)(1).
Because there were no existing HRSA guidelines relating to preventive care and screening for women, the Department of Health and Human Services (“HHS”) tasked the Institute of Medicine (“IOM”)5 with “reviewing what preventive services are necessary for women’s health and well-being” and developing recommendations for comprehensive guidelines. IOM REP. at 2. IOM conducted an extensive science-based review and, on July 19, 2011, published a report of its analysis and recommendations. Id. at 20-26. The report recommended that HRSA guidelines include, among other things, well-woman visits, breastfeeding support, domestic violence screening, and, as relevant here, “the full range of [FDA]-
5 IOM was established in 1970 by the National Academy of Sciences and is funded by Congress. IOM REP. at iv. It secures the services of eminent members of appropriate professions to examine policy matters pertaining to the health of the public and provides expert advice to the federal government. Id.
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approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Id. at 10-12. FDAapproved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices. FDA, Birth Control Guide, available at http://www.fda.gov/ForConsumers/ByAudience/ForWomen/ucm118465.htm (last visited May 4, 2012).
On August 1, 2011, HRSA adopted IOM’s recommendations in full, subject to an exemption relating to certain religious employers authorized by an amendment to the interim final regulations. See HRSA Guidelines, available at http://www.hrsa.gov/womensguidelines/ (last visited May 4, 2012). The amendment to the interim final regulations, issued on the same day, authorized HRSA to exempt group health plans sponsored by certain religious employers (and associated group health insurance coverage) from any requirement to cover contraceptive services under HRSA’s guidelines. 76 Fed. Reg. 46,621 (Aug. 3, 2011); 45 C.F.R. § 147.130(a)(1)(iv)(A). To qualify for the exemption, an employer must meet 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.
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(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.
45 C.F.R. § 147.130(a)(1)(iv)(B). The sections of the Internal Revenue Code referenced in the fourth criterion refer to “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order,” that are exempt from taxation under 26 U.S.C. § 501(a). 26 U.S.C. § 6033(a)(1), (a)(3)(A)(i), (a)(3)(A)(iii). Thus, as relevant here, the amended interim final regulations required non-grandfathered plans that do not qualify for the religious employer exemption to provide coverage for recommended contraceptive services, without cost-sharing, for plan years beginning on or after August 1, 2012.
Defendants requested comments on the amended interim final regulations and specifically on the definition of religious employer contained in those regulations. 76 Fed. Reg. at 46,623. After carefully considering the more than 200,000 comments they received, defendants decided to adopt in final regulations the definition of religious employer contained in the amended interim final regulations while also creating a temporary enforcement safe harbor for plans sponsored by certain non-profit organizations with religious objections to
9

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contraceptive coverage that do not qualify for the religious employer exemption.
77 Fed. Reg. 8,725-27 (Feb. 15, 2012).
Pursuant to the temporary enforcement safe harbor, defendants will not take
any enforcement action against an employer, group health plan, or group health
insurance issuer with respect to a non-exempt, non-grandfathered group health plan
that fails to cover some or all recommended contraceptive services and that is
sponsored by an organization that meets all of the following criteria:
(1) The organization is organized and operates as a non-profit entity.
(2) From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan sponsored by the organization, consistent with any applicable state law, because of the religious beliefs of the organization.
(3) The group health plan sponsored by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) provides to plan participants a prescribed notice indicating that the plan will not provide contraceptive coverage for the first plan year beginning on or after August 1, 2012.
(4) The organization self-certifies that it satisfies the three criteria above, and documents its self-certification in accordance with prescribed procedures.6
The enforcement safe harbor will be in effect until the first plan year that begins on
or after August 1, 2013. Guidance at 3. By that time, defendants expect
6 HHS, Guidance on the Temporary Enforcement Safe Harbor (“Guidance”), at 3 (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210Preventive-Services-Bulletin.pdf (last visited May 4, 2012); 77 Fed. Reg. 16,501, 16,504 (Mar. 21, 2012).
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significant changes to the preventive services coverage regulations will have altered the landscape with respect to religious accommodations under the regulations by providing further relief to organizations such as plaintiff.
Those intended changes, which were first announced when defendants finalized the religious employer exemption, will establish alternative means of providing contraceptive coverage without cost-sharing while also accommodating non-exempt religious organizations’ religious objections to covering contraceptive services. 77 Fed. Reg. at 8,728. Defendants began the process of amending the regulations on March 21, 2012, when they published an advance notice of proposed rulemaking (“ANPRM”) in the Federal Register. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The ANPRM “presents questions and ideas” on potential alternative means of achieving the goals of providing women access to contraceptive services without cost-sharing and accommodating religious organizations’ religious liberty interests. Id. at 16,503. The purpose of the ANPRM is to provide “an early opportunity for any interested stakeholder to provide advice and input into the policy development relating to the accommodation to be made” in the forthcoming amendments to the regulations. Id. Among other options, the ANPRM suggests requiring health insurance issuers to offer health insurance coverage without contraceptive coverage to religious organizations that object to such coverage on religious grounds and simultaneously
11

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to offer contraceptive coverage directly to the organization’s plan participants, at no charge. Id. at 16,505. The ANPRM also suggests ideas and solicits comments on potential ways to accommodate religious organizations that sponsor self-insured group health plans for their employees. Id. at 16,505, 16,506-07.
After receiving comments on the ANPRM, defendants will publish a notice of proposed rulemaking, which will be subject to further public comment before defendants issue additional amendments to the preventive services coverage regulations. Id. at 16,501. Defendants intend to finalize the amendments to the regulations such that they are effective by the end of the temporary enforcement safe harbor. Id. at 16,503. II. CURRENT PROCEEDINGS
Plaintiff brings this action to challenge the lawfulness of the preventive services coverage regulations to the extent that they require the health coverage it makes available to its employees to cover contraceptive services. Plaintiff describes itself as “the largest Catholic media network in the world,” with approximately 340 employees. First Am. Compl. ¶¶ 2, 27, Dkt. No. 13. According to the First Amended Complaint, plaintiff currently makes available to its employees health coverage that does not cover contraception, sterilization, or abortion. Id. ¶¶ 28-30. Plaintiff alleges that its “religious commitment” prohibits it from “provid[ing] health care insurance covering artificial contraception,
12

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sterilization, or abortion, or related education and counseling, without violating its deeply held religious beliefs.” Id. ¶ 29. Plaintiff further asserts that it does not qualify for the religious employer exemption because, among other things, the inculcation of religious values is only one of its purposes and it employs and serves many persons who do not share its religious tenets. Id. ¶¶ 78-83. Plaintiff claims the preventive services coverage regulations violate the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act. See id. at 20-28.
STANDARD OF REVIEW Defendants move to dismiss the First Amended Complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. “[T]he party invoking federal jurisdiction bears the burden of establishing its existence.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998); Bischoff v. Osceola Cnty., 222 F.3d 874, 878 (11th Cir. 2000). Where, as here, defendants challenge jurisdiction on the face of the Complaint, the Complaint must plead sufficient facts to establish that jurisdiction exists. This Court must determine whether it has subject matter jurisdiction before addressing the merits. See Steel Co., 523 U.S. at 94-95.
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ARGUMENT I. THE COURT SHOULD DISMISS THIS CASE FOR LACK OF
JURISDICTION BECAUSE PLAINTIFF LACKS STANDING Plaintiff lacks standing because it has not alleged a concrete and imminent injury resulting from the operation of the preventive services coverage regulations. To meet its burden to establish standing, 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.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotations and citations omitted). Allegations of possible future injury do not suffice; rather, “[a] threatened injury must be certainly impending to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quotation omitted); see also Koziara v. City of Casselberry, 392 F.3d 1302, 1306 (11th Cir. 2004) (requiring plaintiff seeking declaratory and injunctive relief against future harm to “show a real and immediate threat of future injury”). A plaintiff that “alleges only an injury at some indefinite future time” has not shown an injury in fact, particularly where “the acts necessary to make the injury happen are at least partly within the plaintiff’s own control.” Lujan, 504 U.S. at 564 n.2. In these situations, “the injury [must] proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all.” Id.
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The preventive services coverage regulations do not apply to grandfathered plans. 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. A grandfathered plan is a health plan in which at least one individual was enrolled on March 23, 2010 and that has continuously covered at least one individual since that date. 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T(a), (g)(1); 29 C.F.R. § 2590.715-1251(a), (g)(1); 45 C.F.R. § 147.140(a), (g)(1). A grandfathered plan may lose its grandfather status if, compared to its existence on March 23, 2010, it undergoes one or more of the changes set forth in 45 C.F.R. § 147.140(g)(1). See also 26 C.F.R. § 54.9815-1251T(g)(1); 29 C.F.R. § 2590.715-1251(g)(1).
Here, plaintiff alleges that it sponsors for its employees a group health plan that does not cover contraceptive services. First Am. Compl. ¶¶ 28-30. Plaintiff asserts that it “does not believe its employee health plan is eligible for grandfather status,” and that, in any event, it “foresees making plan changes effective July 1, 2012 that would likely cause it to lose grandfather status.” Id. ¶¶ 116-17. However, neither plaintiff’s unsupported doubt about the status of its group health plan nor its unsupported speculation about potential unspecified future plan changes provide the necessary factual support to demonstrate that the plan is, or will be, ineligible for grandfather status. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003)
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(“[C]onclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.”); Davis v. Home Buyers Warranty Corp., No. 2:10-cv-1815-SLB, 2011 WL 3489886, *2 (N.D. Ala. Aug. 8, 2011) (“It is the conclusory nature of respondent’s allegations . . . that disentitles them to the presumption of truth.”) (internal quotation omitted); see also Lujan, 504 U.S. at 564 (“Such ‘some day’ intentions - without any description of concrete plans, or indeed even any specification of when the some day will be - do not support a finding of the ‘actual or imminent’ injury that our cases require.”).
Merely entering into a new policy, or making changes to an existing policy, will not cause a plan to lose its grandfather status. Instead, the new plan, or changes to an existing plan, must, when compared to the plan in existence on March 23, 2010, eliminate all or substantially all benefits to diagnose or treat a particular condition, increase a percentage cost-sharing requirement, significantly increase a fixed-amount cost-sharing requirement, significantly reduce the employer’s contribution, or impose or tighten an annual limit on the dollar value of any benefit. 26 C.F.R. § 54.9815-1251T(a), (g)(1); 29 C.F.R. § 2590.715-1251(a), (g)(1); 45 C.F.R. § 147.140(a), (g)(1). Plaintiff does not allege that its plan has
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undergone, or will undergo, any of these specific changes, and its doubt about the status of its own health plan cannot supply the lacking factual support.7
Moreover, plaintiff’s conclusory allegation that it “foresees making plan changes . . . that would likely cause it to lose grandfather status” should not be accepted lightly, as such changes would not only be contrary to plaintiff’s purported desire to maintain its existing policy without contraceptive coverage, but it would also require its plan to comply with other ACA requirements. Accordingly, the allegations in the First Amended Complaint simply do not show that plaintiff will be required by the preventive services coverage regulations to provide coverage for contraceptive services – as opposed to continuing to offer the same grandfathered plan that does not, and presumably would not, cover contraceptive services. Plaintiff therefore has not alleged any imminent injury as a result of the challenged regulations.
Furthermore, even if plaintiff had given any sufficient basis for its allegation that its group health plan does not qualify for grandfather status, plaintiff still would not have alleged an injury in fact. Under the enforcement safe harbor, defendants will not take any enforcement action against an organization that qualifies for the safe harbor until the first plan year that begins on or after August
7 A plan also may lose its status as a grandfathered health plan if it fails to satisfy the disclosure and record-keeping requirements described in 45 C.F.R. § 147.140(a)(2), (3). See also 26 C.F.R. § 54.9815-1251T(a)(2), (3); 29 C.F.R. § 2590.715-1251(a)(2), (3). Plaintiff, however, does not allege that its group health plan has failed to satisfy these requirements either.
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1, 2013. Guidance at 3. Plaintiff alleges that it is eligible for the safe harbor and, that, based on the beginning date of its plan year, it could not be subject to any enforcement action by defendants for failing to provide contraceptive coverage until at least July 1, 2014. First Am. Compl. ¶ 93. With such a long time before the inception of any possible injury and the challenged regulations undergoing amendment before then, plaintiff cannot satisfy the imminence requirement for standing; the asserted injury is simply “too remote temporally,” see McConnell v. FEC, 540 U.S. 93, 226 (2003) (concluding Senator lacked standing based on claimed desire to air advertisements five years in the future), overruled in part on other grounds, Citizens United v. FEC, 130 S. Ct. 876 (2010); Whitmore, 495 U.S. at 159-60; Koziara, 392 F.3d at 1306, and too uncertain circumstantially.
Although the mere passage of time alone may not defeat standing, see, e.g., Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008), the defect in plaintiff’s suit does not implicate a mere technical issue of counting intermediate days. Nor does it rest on the truism that a final regulation is always subject to change by the agency that promulgated it; the ANPRM goes much further than that by promising imminent regulatory amendments. Thus, the defect in plaintiff’s case goes to the fundamental limitations on the role of federal courts. “Imminence, while an ‘elastic concept,’ requires that ‘the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in
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which no injury would have occurred at all.’” Alabama-Tombigbee Rivers Coalition v. Norton, 338 F.3d 1244, 1253 (11th Cir. 2003) (quoting Lujan, 504 U.S. at 564 n.2). The ANPRM published in the Federal Register confirms defendants’ stated intention to propose amendments to the preventive services coverage regulations that accommodate the concerns of religious organizations that object to providing contraceptive coverage for religious reasons, like plaintiff. 77 Fed. Reg. at 16,501. And it seeks public comment on and requests suggestions for how to accomplish that goal through final regulatory amendments that will take effect before the rolling expiration of the temporary enforcement safe harbor starting on August 1, 2013. Id. at 16,503; see also 77 Fed. Reg. at 8,728. The ANPRM provides plaintiff, and any other interested party, with the opportunity to, among other things, comment on ideas suggested by defendants for accommodating religious organizations, offer new ideas to “enable religious organizations to avoid . . . objectionable cooperation when it comes to the funding of contraceptive coverage,” and identify considerations defendants should take into account when amending the regulations. Id. at 16,503, 16,507.
In light of the forthcoming amendments, and the opportunity the rulemaking process provides for plaintiff to help shape those amendments, there is no basis to conclude that plaintiff will be, or is likely to be, required to sponsor a health plan that covers contraceptive services in contravention of its religious beliefs once the
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enforcement safe harbor expires. And any suggestion to the contrary is entirely speculative at this point. At the very least, given the anticipated changes to the preventive services coverage regulations, plaintiff’s claim of injury, if any, after the temporary enforcement safe harbor expires and after the promised new regulations are promulgated, would differ substantially from plaintiff’s current claim of injury. And, given the existing enforcement safe harbor, there is no basis for this Court to consider the merits of plaintiff’s First Amended Complaint at this juncture.
Accordingly, this case should be dismissed in its entirety for lack of standing. II. THE COURT SHOULD DISMISS THIS CASE FOR LACK OF
JURISDICTION BECAUSE IT IS NOT RIPE “The ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 808 (2003) (quotation omitted). It “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies.” Id. at 807 (quotation omitted). It also “protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Id. at 807-08 (quotation omitted).
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A case ripe for judicial review cannot be “nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.” Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 244 (1952). In assessing ripeness, courts evaluate both “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), overruled on other grounds in Califano v. Sanders, 430 U.S. 99, 105 (1977); Wilderness Soc’y v. Alcock, 83 F.3d 386, 390 (11th Cir. 1996).
The Supreme Court discussed these two prongs of the ripeness analysis in Abbott Laboratories, the seminal case on pre-enforcement review of agency action. 387 U.S. 136. Abbott Laboratories involved a pre-enforcement challenge to Federal Food, Drug and Cosmetic Act regulations that required drug manufacturers to include a drug’s established name every time the drug’s proprietary name appeared on a label. Id. at 138. The regulations required the plaintiff drug manufacturers to change all their labels, advertisements, and promotional materials at considerable burden and expense. Id. at 152. Noncompliance would have triggered significant civil and criminal penalties. Id. at 153 & n.19.
The Court determined the regulations were fit for judicial review because they were “quite clearly definitive,” id. at 151; the regulations “were made
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effective immediately upon publication,” id. at 152; and “[t]here [was] no hint that th[e] regulation[s] [were] informal . . . or tentative.” Id. at 151. Moreover, the Court noted that “the issue tendered [was] a purely legal one” and there was no indication that “further administrative proceedings [were] contemplated.” Id. at 149. The Court therefore was not concerned that judicial intervention would inappropriately interfere with further administrative action.
With respect to the hardship prong, the Court determined that delayed review would cause sufficient hardship to the plaintiffs. The impact of the regulations, the Court noted, was “sufficiently direct and immediate” because their promulgation put the drug manufacturers in a “dilemma” – “[e]ither they must comply with the every time requirement and incur the costs of changing over their promotional material and labeling” or they must “risk serious criminal and civil penalties for the unlawful distribution of misbranded drugs.” Id. at 152-53 (quotations omitted). In other words, the challenged regulations “require[d] an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance.” Id. at 153.
None of the indicia of ripeness discussed in Abbott Laboratories is present in this case. Plaintiff seeks judicial review of the preventive services coverage regulations as applied to non-exempted, non-profit religious organizations that object to contraceptive coverage for religious reasons. Defendants, however, have
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initiated a rulemaking to amend the preventive services coverage regulations to accommodate the concerns expressed by plaintiff and similarly-situated organizations and have made clear that the amendments are intended to be finalized well before the earliest date on which the challenged regulations could be enforced by defendants against plaintiff. 77 Fed. Reg. at 8,728-29. Therefore, unlike in Abbott Laboratories – where the challenged regulations were definitive and no further administrative proceedings were contemplated – the preventive services coverage regulations will be amended in the near future.
Moreover, the forthcoming amendments are intended to address the very issue that plaintiff raises here by establishing alternative means of providing contraceptive coverage without cost-sharing while accommodating religious organizations’ religious objections to covering contraceptive services. And plaintiff will have several opportunities to participate in the rulemaking process and to provide comments and/or ideas regarding the proposed accommodations. There is, therefore, a significant chance that the amendments will alleviate altogether the need for judicial review, or at least narrow and refine the scope of any actual controversy to more manageable proportions.8 See Texas v. United
8 Plaintiff alleges that under the “‘accommodation’ sketched out in defendants’ March 16, 2012 ANPRM . . . the Mandate would still impose all of the foregoing harms.” First Am. Compl. ¶ 115. Of course, that allegation is only speculation, as plaintiff cannot now know what form the final accommodations will take, as it prejudges the process and ignores the opportunity for notice and comment to inform the rulemaking. However, even if it were assumed that plaintiff would continue to object to any future form that the accommodation may take, it would be premature
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States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”) (quotation omitted). Once the forthcoming amendments are finalized, if plaintiff’s concerns are not laid to rest, plaintiff “will have ample opportunity [] to bring its legal challenge at a time when harm is more imminent and more certain.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 734 (1998); see also Texas Indep. Producers and Royalty Owners Assoc. v. EPA, 413 F.3d 479, 483-84 (5th Cir. 2005) (dismissing challenge to rule as unripe where agency deferred effective date of rule and announced its intent to consider issues raised by plaintiff in new rulemaking during the deferral period); Alcock, 83 F.3d at 390-91 (“Until such actions have been proposed, however, there is no controversy for us to resolve. We have no doubt that some decisions [in the challenged action] make an injury to the appellants more likely. ‘More likely,’ however, does not make the injury imminent enough for purposes of judicial decisionmaking. We do not yet know when or how an injury to the appellants will occur, and this factual underpinning is vital to a full-fledged judicial review of the [action].”); Lake Pilots Ass’n v. U.S. Coast Guard, 257 F. Supp. 2d 148, 160-162 (D.D.C. 2003) (holding challenge to rule was not ripe where agency undertook a new rulemaking to address issue raised by plaintiff in the lawsuit).
for this Court to evaluate plaintiff’s legal challenges on the basis of that purported objection in the absence of finalized amendments.
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Further, although plaintiff’s First Amended Complaint raises largely legal claims, those claims are leveled at regulations that, as applied to plaintiff and similarly-situated organizations, have not “taken on fixed and final shape.” Public Serv. Comm’n, 344 U.S. at 244. Once defendants complete the rulemaking outlined in the ANPRM, plaintiff’s challenge to the current regulations likely will be moot. See Pittman v. Cole, 267 F.3d 1269, 1280 (11th Cir. 2001) (“The ripeness doctrine is designed to prevent federal courts from engaging in such speculation and prematurely and perhaps unnecessarily reaching constitutional issues.”). And judicial review of any future amendments to the regulations that result from the pending rulemaking would be impossible at this time.
The ANPRM offers ideas and solicits input on potential, alternative means of achieving the goals of providing women access to contraceptive services without cost-sharing and accommodating religious organizations’ religious liberty interests. 77 Fed. Reg. at 16,503. It does not preordain what amendments to the preventive services coverage regulations defendants will ultimately promulgate; nor does it foreclose the possibility that defendants will adopt alternative proposals not set out in the ANPRM. Thus, review of any of the suggested proposals contained in the ANPRM would only entangle the Court “in abstract disagreements over administrative policies.” Abbott Labs., 387 U.S. at 148; see also Texas Indep. Producers, 413 F.3d at 484; Motor Vehicle Mfrs. Assoc. v. New York State Dep’t of
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Envtl. Conservation, 79 F.3d 1298, 1306 (2d Cir. 1996) (concluding claims were not ripe where “plaintiffs’ arguments depend upon the effects of regulatory choices to be made by [state] in the future”); Alabama v. United States, 630 F. Supp. 2d 1320, 1329 (S.D. Ala. 2008) (“These are hypotheticals the accuracy and significance of which can best be evaluated in light of the Secretary’s actual conduct . . . .”). Because judicial review at this time would inappropriately interfere with defendants’ pending rulemaking and may result in the Court deciding issues that may never arise, this case is not fit for judicial review.
Withholding or delaying judicial review also would not result in any hardship for plaintiff. Unlike the plaintiffs in Abbott Laboratories, plaintiff here is not being compelled to make immediate and significant changes in its day-to-day operations under threat of serious civil and criminal penalties. As explained above, if the group health plan made available by plaintiff to its employees is a grandfathered health plan – and there are no specific factual allegations in the First Amended Complaint to indicate that it is not – then the plan is not required to cover contraceptive services. Moreover, even if plaintiff sponsors a nongrandfathered group health plan, it allegedly qualifies for the temporary enforcement safe harbor, meaning defendants will not take any enforcement action against plaintiff (or the issuer(s) of plaintiff’s health insurance coverage) for failure to cover contraceptive services until July 1, 2014, at the earliest. See First Am.
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Compl. ¶ 93. And, by that time, defendants will have finalized amendments to the preventive services coverage regulations to accommodate religious objections to providing contraceptive coverage, like plaintiff’s. See 77 Fed. Reg. at 8,728-29. Therefore, this is simply not a case where plaintiff is “forced to choose between foregoing lawful activity and risking substantial legal sanctions.” See Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995); see also Texas Indep. Producers, 413 F.3d at 483 (finding no hardship where effective date of rule was one year away and agency had announced its intention to initiate a new rulemaking to address plaintiff’s concerns); Alabama, 630 F. Supp. 2d at 1330 (noting that plaintiff “may participate in the making of public comments for the agency’s consideration as it refines its proposal, or it may choose not to do so and risk a less satisfactory final rule, but it would be a strange world indeed if [plaintiff] could select neither option and instead take the agency to court to avoid no greater hardship than the expense and aggravation of utilizing the public comment period”).
Because plaintiff’s challenge to the preventive services coverage regulations is not fit for judicial decision and plaintiff would not suffer substantial hardship if judicial review were withheld or delayed, this case should be dismissed in its entirety as unripe.
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CONCLUSION
For all the foregoing reasons, this Court should grant defendants’ motion to
dismiss plaintiff’s First Amended Complaint.
STUART F. DELERY Acting Assistant Attorney General
IAN HEATH GERSHENGORN Deputy Assistant Attorney General
JOYCE WHITE VANCE United States Attorney
JENNIFER RICKETTS Director, Federal Programs Branch
SHEILA M. LIEBER Deputy Director
/s/ Eric R. Womack ERIC R. WOMACK (IL Bar No. 6279517) MICHELLE R. BENNETT JAMES D. NELSON Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7140 Washington, D.C. 20001 Tel: (202) 514-4020 Fax: (202) 616-8470 Email: eric.womack@usdoj.gov
Attorneys for Defendants
28

 
 Case 2:12-cv-00501-SLB Document 30 Filed 05/09/12 Page 1 of 2

FILED
2012 May-09 PM 04:35 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ETERNAL WORD TELEVISION }

NETWORK, INC.,

}

}

Plaintiff,

}

}

v.

}

}

KATHLEEN SEBELIUS, Secretary }

of the United States Department of }

Health and Human Services,

}

}

UNITED STATES DEPARTMENT }

OF HEALTH AND HUMAN

}

SERVICES,

}

}

HILDA SOLIS, Secretary of the

}

United States Department of Labor, }

}

UNITED STATES DEPARTMENT }

OF LABOR,

}

}

TIMOTHY GEITHNER, Secretary }

of the United States Department of }

the Treasury, and

}

}

UNITED STATES DEPARTMENT }

OF THE TREASURY,

}

}

Defendants.

}

CASE NO.: 2:12-cv-00501-SLB

ORDER

Case 2:12-cv-00501-SLB Document 30 Filed 05/09/12 Page 2 of 2 This case is presently before the court on defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint. (Doc. 29.)1 Any opposition to the Motion must be filed on or before June 1, 2012. Defendants must file any argument in reply on or before June 25, 2012. DONE, this 9th day of May, 2012.
SHARON LOVELACE BLACKBURN CHIEF UNITED STATES DISTRICT JUDGE
1 Reference to a document number, [“Doc. ___”], refers to the number assigned to each document as it is filed in the court’s record.

 
 Case 2:12-cv-00501-SLB Document 33 Filed 06/01/12 Page 1 of 33

FILED
2012 Jun-01 PM 06:32 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ETERNAL WORD TELEVISION NETWORK, INC.,
Plaintiff,

v. KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services,

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES
HILDA SOLIS, Secretary of the United States Department of Labor,

2:12-CV-501-SLB PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

UNITED STATES DEPARTMENT OF LABOR,

TIMOTHY GEITHNER, Secretary of the United States Department of the Treasury, and
UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.

Case 2:12-cv-00501-SLB Document 33 Filed 06/01/12 Page 2 of 33 TABLE OF CONTENTS
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TABLE OF AUTHORITIES Cases 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) .................................................. 15 ACLU of Fla. v. Miami Dade Cnty Sch. Bd., 557 F.3d 1177 (11th Cir. 2009) ....... 14, 16 Alabama v. United States, 630 F. Supp. 2d 1320 (S.D. Ala. 2008) ..................................... 29 Alabama-Tombigbee Rivers Coal. v. Norton, 338 F.3d 1244 (11th Cir. 2003) .............. 17 Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027 (D.C. Cir. 2008).......................... 20, 28 Am. Petroleum Inst. v. EPA, 906 F.2d 729 (D.C. Cir. 1990).................................................... 20 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) .............................................. 19 Atlanta Gas Light Co. v. FERC, 140 F.3d 1392 (11th Cir. 1998)......................................... 26 Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) ................................... 16 Beaulieu v. City of Alabaster, 454 F.3d 1219 (11th Cir. 2006) .............................................. 25 Bennett v. Spear, 520 U.S. 154 (1997)................................................................................................. 26 Bloedorn v. Grube, 631 F. 3d 1218 (11th Cir. 2011).................................................................... 13 Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995)................................................. 31 Ciba-Geigy Corp. v. EPA, 801 F.2d 430 (D.C. Cir. 1986).......................................................... 14 Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301
(11th Cir. 2000) ........................................................................................................................................... 24 Consol. Rail Corp. v. United States, 896 F.2d 574 (D.C. Cir. 1990) ................................... 25 Digital Properties Inc. v. City of Plantation, 121 F.3d 586 (11th Cir. 1997)........... 13, 24 Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985) ......................................... 25 Fla. ex rel. Att’y Gen. v. HHS, 648 F.3d 1235 (11th Cir. 2011).............................................. 17 Fla. ex rel. McCollum v. HHS, 716 F. Supp. 2d 1120 (N.D. Fla. 2010) ............................ 17
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Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) ....................... 19 Hamilton v. Schriro, 74 F.3d 1545 (8th Cir. 1996) ...................................................................... 25 Harrell v. The Fla. Bar, 608 F.3d 1241 (11th Cir. 2010) ............................................19, 25, 30 Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301 (11th Cir. 2009) ....................... 25 Henderson v. Washington Nat. Ins. Co., 454 F.3d 1278 (11th Cir. 2006)........................ 13 In re MDL-1824 Tri-State Water Rights Litig., 644 F.3d 1160 (11th Cir. 2011)........ 26 Johnson v. Bd. of Regents, 263 F.3d 1262 (11th Cir. 2001)..................................................... 23 Koziara v. City of Casselberry, 392 F.3d 1302 (11th Cir. 2004) ............................................ 17 Lake Pilots Ass’n, Inc. v. U.S. Coast Guard, 257 F. Supp. 2d 148 (D.D.C. 2003) ....... 28 Los Angeles Cnty. v. Davis, 440 U.S. 625 (1979) ........................................................................... 19 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................................... 15 McConnell v. FEC, 540 U.S. 93 (2003)................................................................................................ 17 Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. New York State Dept. of Envtl.
Conservation, 79 F.3d 1298 (2d Cir. 1996)................................................................................... 28 Mulhall v. UNITE HERE Local 355, 618 F.3d 1279 (11th Cir. 2010) ....................... 16, 24 NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008)................................................................ 16 New York v. United States, 505 U.S. 144 (1992) ........................................................................... 17 Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998) .......................................................... 28 Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925) ................................................................................. 17 Pittman v. Cole, 267 F.3d 1269 (11th Cir. 2001) .................................................................... 13, 25 Regional Rail Reorg. Act Cases, 419 U.S. 102 (1974) ................................................................. 16 Retail Indus. Leaders Ass’n v. Fielder, 475 F.3d 180 (4th Cir. 2007) ................................ 30 Sackett v. EPA, 132 S. Ct. 1367 (2012) ............................................................................................... 20
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Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011) ......................................................................... 17 Sheely v. MRI Radiology Network, PA, 505 F.3d 1173 (11th Cir. 2007).......................... 19 Sierra Club v. Johnson, 436 F.3d 1269 (11th Cir. 2006) .......................................................... 14 Tex. Indep. Producers and Royalty Ass’n v. EPA, 413 F.3d 479 (5th Cir. 2005).......... 28 Texas v. United States, 523 U.S. 296 (1998) .................................................................................... 28 Thomas More Law Ctr. v. Obama, 651 F.3d 529 (6th Cir. 2011).................................. 17, 24 U.S. Dept. of Labor v. N.C. Growers Ass’n, 377 F.3d 345 (4th Cir. 2004) ....................... 18 Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001)................................ 18 Vill. of Bensenville v. FAA, 376 F.3d 1114 (D.C. Cir. 2004).................................................... 17 Whitmore v. Arkansas, 495 U.S. 149 (1990) .................................................................................... 17 Wilderness Soc’y v. Alcock, 83 F.3d 386 (11th Cir. 1996) .................................................. 24, 28 Statutes 26 U.S.C. § 4980H .......................................................................................................................................... 13 29 U.S.C. § 1132 .............................................................................................................................................. 30 29 U.S.C. § 1185d............................................................................................................................................ 30 42 U.S.C. § 300gg–13 ........................................................................................................................... passim 42 U.S.C. § 18011............................................................................................................................................ 15 Public Law No. 111-148............................................................................................................................... 10 Public Law No. 111-152............................................................................................................................... 10 Other Authorities Advance Notice of Proposed Rulemaking, 77 Fed. Reg. 16501 .................................... passim FDA Birth Control Guide,
http://www.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm............ 11 5

Case 2:12-cv-00501-SLB Document 33 Filed 06/01/12 Page 6 of 33 Guidance on the Temporary Enforcement Safe Harbor for Certain Employers,
http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-ServicesBulletin.pdf............................................................................................................................................. 12, 13 Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ ........................................................... 10, 27 Wright & Miller, 13C Fed. Prac. & Proc. Juris. § 3533.7 (3d ed.) ................................ 19, 20 Regulations 26 C.F.R. § 54.9815–1251T........................................................................................................................ 15 29 C.F.R. § 2590.715–1251 ........................................................................................................................ 15 45 C.F.R. § 147.130 ................................................................................................................................. 12, 25 45 C.F.R. § 147.140 ........................................................................................................................................ 15 77 Fed. Reg. 8725..................................................................................................................................... 12, 18
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PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS
Plaintiff Eternal Word Television Network (“EWTN”) hereby opposes defendants’ motion to dismiss. As explained below, defendants’ standing and ripeness arguments depend on a speculative proposed rulemaking that, by its own terms, could not affect EWTN’s challenge to defendants’ contraception, sterilization, and abortion-drug mandate.
INTRODUCTION This case concerns a Catholic television network that wants to practice the faith it preaches and a government mandate that will fine it for doing so. The mandate in question is composed of two parts. Part one is a statute—found in the Patient Protection and Affordable Care Act—that requires most employers to provide free insurance coverage for “preventive care.” Part two is a regulation that defines “preventive care” to include contraceptives and sterilization. Both parts of the mandate—the statute and the implementing regulation—are definitive, final and enforceable on a specific date. EWTN cannot comply with the mandate without violating its faith. In advance of the mandate’s enforcement, EWTN will have to drop insurance for its 340 employees and prepare to pay annual fines of over $600,000. Its only way out would be to publicly abandon the faith that it was founded to promote. EWTN’s final deadline for making that choice is twenty-five months from the date of this pleading—July 1, 2014—when the mandate will be enforceable against it.
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EWTN therefore filed this lawsuit, claiming the mandate violates its religious liberties. Its straightforward legal claims can be resolved with no factual development. Yet defendants say the suit should be dismissed because EWTN has no standing and its claims are not ripe. Why? Defendants have given advance notice of a proposed new rulemaking which, they say, will solve EWTN’s problems before the mandate goes into effect.
This argument is puzzling. By its own terms, the rulemaking proposed in the advance notice will not change anything about the mandate that now inflicts constitutional injury on EWTN. Instead, the advance notice merely brainstorms future strategies of transferring the financial and administrative burdens of providing contraceptive coverage from an employer to a plan administrator. But tweaking the details of a coverage scheme will do nothing to lift the mandate’s burden on religious conscience, and particularly not for an employer like EWTN which self-insures its employees. Whatever might emerge from the future rulemaking—and that is anybody’s guess—the mandate will still make EWTN provide “preventive care” coverage, and it will still define “preventive care” to include contraceptives and sterilization. The Court should deny the motion to dismiss and allow the parties to proceed expeditiously to the merits of that challenge.
STATEMENT OF FACTS The Plaintiff, Eternal Word Television Network
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Eternal Word Television Network was founded in 1981 by Mother Angelica, a Catholic nun of the Poor Clares of Perpetual Adoration order, on the grounds of Our Lady of Angels Monastery in Irondale, Alabama. Doc. 13, Amended Complaint (“Compl”). ¶ 2. EWTN exists to share the teachings of the Catholic Church: “Eternal Word Television Network is dedicated to the advancement of truth as defined by the Magisterium of the Roman Catholic Church. The mission of the Eternal Word Television Network is to serve the orthodox belief and teaching of the Church as proclaimed by the Supreme Pontiff and his predecessors.” Compl. ¶ 23.
From its humble beginnings, EWTN has grown into the world’s largest Catholic television network, broadcasting in English and Spanish to more than 217 million homes in 144 countries and territories, as well as sharing its message through its popular website and other communications media. Compl. ¶ 21. Today, it has more than 300 employees. Compl. ¶ 27.
EWTN holds and shares Catholic teachings on the sanctity of human life and the purpose of human sexuality. It believes that all life is precious and must be protected from the moment of conception. Compl. ¶ 24. Therefore, EWTN believes and teaches that anything which could end human life after the moment of conception is a grave sin. Id. So, too, EWTN holds and shares the teachings of the Catholic Church with regard to human sexuality. Compl. ¶ 25. In particular, EWTN believes and teaches that “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an
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end or as a means”—including contraception and sterilization—is a grave sin. Compl. ¶ 25.
As part of its commitment to its Catholic faith, EWTN provides its roughly 340 employees with health care coverage superior to that generally available in the Alabama market. Compl. ¶ 28. As part of its commitment to its Catholic faith, that insurance coverage excludes coverage for artificial contraception, sterilization, and abortion. Compl. ¶ 30; Warsaw Decl. ¶ 4.
EWTN provides employee insurance through a self-funded plan. EWTN employs Blue Cross/Blue Shield of Alabama to administer that plan. Warsaw Decl. ¶ 3. The Mandate
In March 2010, Congress passed the Patient Protection and Affordable Care Act (“Affordable Care Act” or “Act”).1 Among other things, the Act requires that “[a] group health plan . . . shall . . . provide coverage for” women’s “preventive care and screenings” without cost sharing. 42 U.S.C § 300gg–13(a)(4). “Preventive care and screenings” are defined in guidelines issued by a division of Defendant Department of Health and Human Services (HHS). Id. In August 2011, HHS issued an “amended interim final rule” defining preventive care to include “[a]ll Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Health Resources and Services Administration, Women’s Preventive Services: Required
1 See Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (Mar. 23, 2010); Health Care and Education Reconciliation Act, Pub. L. No. 111-152 (Mar. 30, 2010).
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Health

Plan

Coverage

Guidelines

(Aug.

1,

2011),

http://www.hrsa.gov/womensguidelines/ (last visited May 18, 2012). FDA-approved

contraceptive methods include birth-control pills; prescription IUDs; Plan B (the

“morning-after pill”); and ulipristal (“ella” or the “week-after pill”). See

http://www.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm (last visited

June 1, 2012). These requirements would go into effect one year after their

issuance, on August 1, 2012. 42 U.S.C. § 300gg-13(b)(1), (2); 76 Fed. Reg. at 46624.

The rule added an exemption for those “religious employer[s]” who meet 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 6033(a)(3)(A)(i) or (iii)2 of the Internal Revenue Code of 1986, as amended.
45 C.F.R. § 147.130(a)(1)(B)(1)-(4). EWTN cannot meet all four of these prongs.

Compl. ¶¶ 78-83.

The mandate and the exemption provoked public outcry, including some 200,000

comments. MTD at 9; see also Compl. ¶ 71. This lawsuit and several others

followed. On February 10, 2012, following a press conference on the subject by

President Obama, HHS issued a bulletin describing a “Temporary Enforcement

2 These IRC sections “refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.” 76 Fed. Reg. at 46623.
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Safe Harbor.” Under that Safe Harbor, defendants would wait an additional year before enforcing the mandate against certain non-exempt, religious organizations.3 That same day, defendants adopted the religious employer exemption “as a final rule without change.” 77 Fed. Reg. 8725, 8730.
About a month later, defendants announced an “Advance Notice of Proposed Rulemaking” (ANPRM). 77 Fed. Reg. 16501 (Mar. 21, 2012) (to be codified at 45 C.F.R. pt. 147). The ANPRM does not propose to rescind the mandate or broaden the existing religious employer exemption. Rather, it solicits comments on how to craft another mandate. That theorized mandate would force a non-exempt religious organization’s insurer to provide the mandated contraceptive services separately to employees with “no premium charge.” See ANPRM at 16503. For employers with self-insured plans, the additional mandate would require them to grant certain authority to a plan administrator, who would be required to provide the additional coverage. See ANPRM at 16506. The ANPRM notes the difficulty inherent in creating such a mandate for self-insured insurance plans, where the funds flow directly from the employer. See id. at 16506-07. The ANPRM states that the original mandate will remain in effect. Id. at 16502. The proposals outlined in the ANPRM would still coerce EWTN to violate its religious beliefs. Compl. ¶ 115.
EWTN’s insurance plan year for its 340 employees begins on July 1 of each year. Warsaw Decl. ¶ 5. The mandate takes effect for the first plan year after August 1,

3 HHS

Bulletin

at

3,

6,

available

at

http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-

Bulletin.pdf (last visited June 1, 2012).

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2012. See 42 U.S.C. § 300gg-13(b); 76 Fed. Reg. at 46623. EWTN’s religious beliefs forbid it from complying with the mandate. Compl. ¶ 5, 30-31, 94-96, 99-113. Consequently, EWTN will violate the mandate thirteen months from now, on July 1, 2013. One year later, on July 1, 2014, the government will begin enforcing the mandate, and EWTN will begin paying annual fines of about $2,000 per employee. See HHS Bulletin at 3 (effective date); 26 U.S.C. § 4980H(a), (c)(1) (penalty). It will face fines of $620,000 in the first year alone,4 and will have to drop employee health insurance. Compl. ¶ 97, 112. EWTN has already begun planning for this approaching reality. Compl. ¶ 114.
STANDARD OF REVIEW In evaluating a motion to dismiss, the Court “must accept all factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff.” Henderson v. Washington Nat’l. Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006) (internal quotation omitted). EWTN must allege facts “sufficient to support jurisdiction.” Pittman v. Cole, 267 F.3d 1269, 1282 (11th Cir. 2001). Standing and ripeness are relaxed in First Amendment cases. See, e.g., Digital Properties Inc. v. City of Plantation, 121 F.3d 586, 590 (11th Cir. 1997) (“[T]he injury requirement is most loosely applied when a plaintiff asserts a violation of First Amendment rights based on the enforcement of a law, regulation or policy.”); see also Bloedorn v. Grube, 631 F.3d 1218, 1228 (11th Cir. 2011). Courts weighing ripeness “are appropriately guided by the presumption of reviewability, especially when the
4 See Compl. ¶ 27 (340 employees). Fines are assessed on every employee over 30. See 26 U.S.C. § 4980H(c)(2)(D)(i) ((340 - 30) x $2000 = $620,000).
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affected person is confronted with the dilemma of choosing between

disadvantageous compliance or risking imposition of serious penalties.” Ciba-Geigy

Corp. v. EPA, 801 F.2d 430, 434 (D.C. Cir. 1986).

ARGUMENT

I.

EWTN HAS STANDING TO CHALLENGE THE MANDATE.

To demonstrate standing, EWTN must allege (1) it suffers an actual or imminent

injury (2) fairly traceable to defendants’ actions and (3) likely to be “redressed by a

favorable decision.” Sierra Club v. Johnson, 436 F.3d 1269, 1276 (11th Cir. 2006).

Defendants argue only that EWTN has not alleged an actual or imminent injury.

Mot. to Dismiss (MTD) at 14-20. They are mistaken.

A. EWTN alleges both actual and imminent injuries.

EWTN’s complaint details how the mandate coerces it to violate its faith under

threat of severe penalties. Specifically, EWTN alleges that (1) it now offers coverage

to its 340 employees that excludes the mandated contraceptive services; (2) it will

be subject to the mandate and is not exempt; (3) it cannot provide the mandated

coverage without violating its faith; and (4) it will therefore face, on a date certain,

heavy fines and the inability to offer employee insurance. Compl. ¶¶ 5, 28-31, 78-83,

94-96, 99-113, 116-17. Further, EWTN also alleges that it has already devoted

considerable resources to determine how to respond to the mandate, and must

continue doing so in anticipation of violating the mandate in one year. Compl. ¶

114. These allegations easily establish actual and imminent injuries. See, e.g.,

ACLU of Fla. v. Miami Dade Cnty. Sch. Bd., 557 F.3d 1177, 1194 (11th Cir. 2009)

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(imminent injury “requires only that the anticipated injury occur with[in] some fixed period of time in the future”).
B. EWTN’s plan is not eligible for grandfather status. Defendants claim EWTN fails to allege injury because its complaint does not rule out that its plan may be “grandfathered.” MTD at 15-17. Under the Affordable Care Act, group health plans in effect on March 23, 2010 may be grandfathered and therefore exempt from the mandate. See 42 U.S.C. § 18011. To remain grandfathered, however, a plan must provide annual notices and must avoid certain changes to coverage, annual limits, and cost-sharing. See 45 C.F.R. § 147.140(a), (g); 26 C.F.R. § 54.9815–1251T(a), (g); 29 C.F.R. § 2590.715–1251(a), (g). Defendants argue that EWTN’s complaint does not establish that its plan is ineligible for grandfather status. MTD at 15-17. Defendants are mistaken. EWTN alleges that it is not grandfathered. Compl. ¶ 116. No more specificity is required since “[a]t the pleading stage . . . ‘[the court] presume[s] that general allegations embrace those specific facts that are necessary to support the claim.’” 31 Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).5 If any doubt remained, it is eradicated by the attached declaration and exhibit, which establishes that EWTN has not included any required grandfather notices in
5 Injury is independently alleged by Compl. ¶ 117, which states that EWTN will soon have to make plan changes that will forfeit grandfather status.
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its plan materials. Warsaw Decl. ¶¶ 7-8; Warsaw Decl., Ex. A.6 Defendants admit that the lack of such notices makes a plan ineligible for grandfather status. MTD at 17 n.7. Grandfather status is simply not an issue.
C. The Safe Harbor does not make EWTN’s injury non-imminent. Defendants also try to defeat standing on the ground that defendants will enforce the Mandate against EWTN until July 1, 2014. See MTD at 17-18. They say this makes EWTN’s asserted injury “too remote temporally” and thus lacking “imminence.” Id. at 18. Not so. A plaintiff “does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (citation omitted); see also Miami Dade Cnty. Sch. Bd., 557 F.3d at 1194 (“[i]mmediacy requires only that the anticipated injury occur with[in] some fixed period of time in the future, not that it happen in the colloquial sense of soon or precisely within a certain number of days, weeks, or months.”) (citing NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008)). The Safe Harbor merely delays enforcement by one year. It is settled that, “[w]here the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant . . . that there will be a time delay before the disputed provisions will come into effect.” Regional Rail Reorg. Act Cases, 419 U.S. 102, 143 (1974). The Supreme Court has found delays of three and six years insufficient to
6 The district court may consider extra-pleading material when reviewing a motion to dismiss for lack of jurisdiction. Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1286 n.8 (11th Cir. 2010)
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defeat standing. See Thomas More Law Ctr. v. Obama, 651 F.3d 529, 536-37 (6th Cir. 2011) (citing New York v. United States, 505 U.S. 144 (1992); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)). The D.C. Circuit was not fazed by a thirteen-year gap. Vill. of Bensenville v. FAA, 376 F.3d 1114, 1119 (D.C. Cir. 2004). The mandate will take effect no later than July 1, 2014—a comparatively short twenty-five months from today—and thus is imminent.7
In a nearly identical legal setting in this Circuit, defendants recently conceded that a forty month gap does not defeat standing. In their defense of the Affordable Care Act’s “individual mandate”—which also does not take effect until 2014— defendants argued that the individual plaintiffs’ alleged injuries were not imminent. See Fla. ex rel. McCollum v. HHS, 716 F. Supp. 2d 1120, 1145-46 (N.D. Fla. 2010). The argument failed, however, id. at 1146-47, and on appeal, defendants conceded individual standing. See Fla. ex rel. Att’y Gen. v. HHS, 648 F.3d 1235, 1243 (11th Cir. 2011); see also Seven-Sky v. Holder, 661 F.3d 1, 4 (D.C. Cir. 2011) (addressing constitutionality of same mandate).
7 Defendants’ cited authorities are inapposite. See MTD at 18-19. In McConnell v. FEC, the plaintiff politicians challenged a statute setting broadcasting rates that would not impact them unless and until they ran for re-election in five years. 540 U.S. 93 (2003). In Whitmore v. Arkansas, a death row inmate was denied standing to challenge the validity of a death sentence imposed on another inmate. 495 U.S. 149 (1990). In Koziara v. City of Casselberry, an exotic dancer did not have standing to contest the future revocation of her employer’s license when she did not allege that a future revocation was imminent. 392 F.3d 1302 (11th Cir. 2004). In AlabamaTombigbee Rivers Coal. v. Norton, 338 F.3d 1244 (11th Cir. 2003), the plaintiffs’ injury was imminent because they were “now modifying their facilities, altering their operations, or expending resources to oppose such modifications.”
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Moreover, the “Safe Harbor,” however long it may last, is insufficient to destroy standing. Non-binding promises not to enforce do not deprive plaintiffs of standing. See, e.g., Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 388 (4th Cir. 2001) (holding that “policy of nonenforcement,” “not contained in a final rule that underwent the rigors of notice and comment rulemaking,” did “not carry the binding force of law,” and thus could not defeat standing); see also U.S. Dept. of Labor v. N.C. Growers Ass’n, 377 F.3d 345, 353 (4th Cir. 2004) (“The DOL’s interpretative bulletins, however, were adopted without notice and comment rulemaking and without a formal adjudication, and accordingly, lack the force of law.”). In effect, the government is claiming that a non-binding “bulletin” without the force of law trumps a final administrative rule. The argument is implausible as a matter of fact and insufficient as a matter of law.
D. The speculative promise of an additional future mandate does not make the current mandate’s impending harm speculative.
Defendants also attempt to rely on the future rulemaking promised in the ANPRM to defeat standing. The ANPRM reports that, during the safe-harbor period, defendants have an “intention to propose” a new mandate that will force insurers to provide free contraceptive coverage to employees of certain non-exempt religious organizations. 77 Fed. Reg. at 8728-29; see MTD at 18-20. The ANPRM “suggest[s] multiple options” for how this might be accomplished and invites comment. ANPRM at 16503. In light of that, defendants say there is “no basis to conclude” that EWTN will ever be subject to the mandate and insist that “any
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suggestion to the contrary is entirely speculative at this point.” MTD at 19-20. This self-serving argument fails.
Defendants’ argument is really about mootness. See Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (standing addresses “personal interest that must exist at the commencement” of a suit, whereas mootness requires that interest continue “throughout [the suit’s] existence”). A case is moot when “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979). Under the “stringent” mootness standards, it must be “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000). This “heavy burden” lies with the party claiming mootness. Id; see also, e.g., Sheely v. MRI Radiology Network, PA, 505 F.3d 1173, 1184 (11th Cir. 2007) (noting Laidlaw’s “formidable . . . burden” on “party asserting mootness”).
Mootness is simply out of the question at this point, because there has been no change to the mandate or the exemption. See, e.g., Wright & Miller, 13C Fed. Prac. & Proc. Juris. § 3533.7 (3d ed.) (“It hardly need be added that mootness does not occur when there has been no change in the challenged activity.”). Defendants must do far more than offer prospects for future corrective action to moot ongoing litigation. See, e.g., Harrell v. The Fla. Bar, 608 F.3d 1241, 1265 (11th Cir. 2010) (case mooted if “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation”) (quoting Davis, 440 U.S. at 631) (emphasis
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added). But “an agency always retains the power to revise a final rule through additional rulemaking. If the possibility of unforeseen amendments were sufficient to render an otherwise fit challenge unripe, review could be deferred indefinitely.” Am. Petroleum Inst. v. EPA, 906 F.2d 729, 739-40 (D.C. Cir. 1990). Similarly, “agencies cannot avoid judicial review of their final actions merely because they have opened another docket that may address some related matters.” Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1031 n.1 (D.C. Cir. 2008) (citations omitted).
Here, defendants concede they have presented only “questions and ideas” to shape future discussions about an hypothesized insurer mandate. MTD at 11; 77 Fed. Reg. at 16503. They have not amended the original mandate; they have confirmed it. Id. at 16502. Thus, statements of future good intentions are irrelevant. See Sackett v. EPA, 132 S. Ct. 1367, 1372 (2012) (“The mere possibility that an agency might reconsider in light of ‘informal discussion’ … does not suffice to make an otherwise final agency action nonfinal.”); Wright & Miller § 3533.7 (“Nor does mootness follow announcement of an intention to change or adoption of a plan to work toward lawful behavior.”).
E. The speculative proposed future mandate would not alleviate EWTN’s injuries.
Finally, Defendants cannot defeat standing because the proposed new rule sketched out in the ANPRM is inadequate on its own terms. Defendants want to have it both ways—they wish to moot the case based upon the contents of a speculative future rulemaking, but they insist that the Court cannot consider the
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content of the speculative future rule. See MTD at 18-20 (arguing the ANPRM deprives EWTN of standing); MTD at 23 & n.8 (stating the Court cannot prejudge the contents of ANPRM). Their desire that the Court ignore the content of the ANPRM is understandable, since those accommodations are plainly inadequate. As EWTN explained in its Amended Complaint, the accommodations forecast in the ANPRM—even if they were promulgated as written—would not remedy the religious conflict. See Compl. ¶ 115. This is true for two reasons.
First, it is fanciful to suppose that coverage for the objectionable services can be provided without financial contributions from EWTN. Nothing guarantees that covering contraception (let alone more expensive sterilization procedures, and related counseling and education) will reduce costs, or that savings would be passed on to EWTN. The ANPRM acknowledges the difficulty inherent in providing contraceptive services “for free” in an employer-funded plan. See 77 Fed. Reg. at 16503, 16507. Indeed, the ANPRM assumes these services have costs and discusses how those costs can be recovered by insurers, including through “rebates, service fees, disease management program fees, or other sources,” even though these programs would otherwise ultimately benefit the religious institution. 77 Fed. Reg. at 16507 (“These funds may inure to the third-party administrator rather than the plan or its sponsor . . . .”) (emphasis added). Even more troubling, the ANPRM offers no explanation as to how administrators might pay for the more expensive counseling and sterilization procedures. See generally, id.
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These inadequacies were recently confirmed in comments on the ANPRM from the Self-Insurance Institute of America, an industry group which opposes the proposals in the ANPRM because those supposed solutions range from impracticable to illegal. The SIIA comments on the ANPRM, recently submitted to HHS, are attached. See Windham Decl., Ex. A. Those comments explain in detail why the compromises discussed in the ANPRM are unworkable and would likely run afoul of both federal and state insurance law. See id. Thus, even if the accommodations outlined in the ANPRM come to pass—and knowing that would require a crystal ball—there is no guarantee that they will relieve EWTN of the burden of paying for medical services contrary to its faith.
Second, regardless of the cost issue, the proposed rule sketched out in the ANPRM would still require EWTN to facilitate the provision of contraception, sterilization and abortion-causing drugs. In other words, nothing promised by the ANPRM would alter the fact that EWTN would still be required to empower and authorize its plan administrator to provide the objectionable drugs and services. See id. at 16506 (outlining proposed amendment to apply to self-insured plans); see also Compl. ¶ 115 (proposed new mandate would still “coerce[e] it to participate in the provision of items and services that violate EWTN’s religious beliefs”). For instance, even though its plan administrator would ostensibly be the one “covering” these services, EWTN would nonetheless be required to comply with several conditions that, in and of themselves, would violate EWTN’s rights. First, EWTN would be required to notify its plan administrator that it would not contribute funding for
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contraceptives nor “act as the designated plan administrator or claims administrator with respect to claims for contraceptive services.” Id. at 16506. Second, EWTN would be forced to grant its administrator “authority and control over the funds available to pay the benefit, authority to act as a claims administrator and plan administrator, and access to information necessary to communicate with the plan’s participants and beneficiaries.” 77 Fed. Reg. at 16506. These cosmetic changes to the mandate would not change the status quo, since EWTN already relies on its administrator to administer its plan and facilitate health care for employees. EWTN determines and funds the plan, but the medical care and administration are handled directly between the administrator and employees’ medical providers. Thus, even under the hypothesized new rule, EWTN would be forced to serve as a gatekeeper, making objectionable drugs and services available to employees through a plan it sponsors and underwrites. For purposes of the violation of EWTN’s religious liberty, there would be no meaningful change from the current final rule.
Defendants’ standing argument ultimately amounts to a prediction that the unforeseeable results of a speculative proposed rulemaking might, sometime in the future, remove EWTN’s injury. Prophecies like this, however, cannot change the fact that EWTN faces the real prospect of harm from a concrete regulatory mandate on July 1, 2014—crippling fines for which it must plan well in advance. This is more than enough to show imminent harm. See, e.g., Johnson v. Bd. of Regents, 263 F.3d 1262, 1265 (11th Cir. 2001) (“[T]o have standing to obtain forward-looking
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injunctive relief, a plaintiff must show a sufficient likelihood that he will be affected by the allegedly unlawful conduct in the future.”); see also, e.g., Mulhall, 618 F.3d at 1288 (explaining that “under our law, probabilistic harm is enough injury in fact to confer standing in the undemanding Article III sense”); Thomas More Law Ctr., 651 F.3d at 536-37 (noting that “[i]mminence is a function of probability” and finding imminent injury over two years in the future where “[t]he only developments that could prevent this injury from occurring are not probable and indeed themselves highly speculative”). II. EWTN’S CLAIMS ARE RIPE.
Defendants also claim EWTN’s claims are unripe. Specifically, they say that the future rulemaking projected by the ANPRM raises a “significant chance” that amendments to the mandate will either moot or alter the litigation. MTD at 23. Defendants are mistaken.
The ripeness doctrine addresses the timing of a lawsuit and prevents courts from umpiring “potential or abstract disputes.” Digital Properties, Inc., 121 F.3d at 589; see also Wilderness Soc’y v. Alcock, 83 F.3d 386, 390 (11th Cir. 1996) (unlike standing, ripeness asks “whether this is the correct time . . . to bring the action”) (emphasis in original). “To determine whether a claim is ripe, [courts] assess both the fitness of the issues for judicial decision and the hardship to the parties of withholding judicial review.” Harrell, 608 F.3d at 1258 (citing Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1315 (11th Cir. 2000)). If a dispute is fit, then “[lack of] ‘hardship’ cannot tip the balance against
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judicial review,” and, indeed, need not even be considered. Harrell, 608 F.3d at 1259 (citing Consol. Rail Corp. v. United States, 896 F.2d 574, 577 (D.C. Cir. 1990)) (brackets in original). Finally, ripeness analysis applies “most permissively in the First Amendment context.” Harrell, 608 F.3d at 1258 (citing Beaulieu v. City of Alabaster, 454 F.3d 1219, 1227–28 (11th Cir. 2006)).
A. EWTN’s claims are fit for review. EWTN’s claims are presumptively ripe because they involve facial challenges to the mandate’s constitutionality that require no factual development. See, e.g., Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009) (“In the context of a facial challenge, a purely legal claim is presumptively ripe for judicial review because it does not require a developed factual record.”); Pittman, 267 F.3d at 1278 (ripeness favors disputes involving “pure question[s] of law”). For instance, EWTN’s Free Exercise and Establishment Clause claims present purely legal challenges to the various exemption schemes found on the face of the regulations.8 Its APA and RFRA claims likewise turn on questions of law. See, e.g., Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 916 (D.C. Cir. 1985) (APA review presents “a purely legal question”); Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir. 1996) (“[T]he ultimate conclusion as to whether [a] regulation deprives
8 See, e.g., Compl. ¶ 46, 52-53 (alleging implementing regulations non-neutral under Free Exercise Clause because they expressly exempt a favored class of religious objectors in 45 C.F.R. § 147.130(a)(1)(iv)(A)-(B)); Compl. ¶¶ 47, 56, 134 (alleging same regulations not generally applicable under Free Exercise Clause because they expressly create a system of individualized exemptions); Compl. ¶¶ 156-60 (alleging same regulations violate Establishment Clause by expressly preferring one religious denomination over another).
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[plaintiff] of his free exercise right [under RFRA] is a question of law.”). Defendants themselves agree. See MTD at 25 (noting that plaintiff’s complaint “raises largely legal claims”).
Moreover, EWTN challenges a regulation that is definite and concrete, and that emerged at the conclusion of a lengthy administrative process. See, e.g., Abbott Labs. v. Gardner, 387 U.S. 136, 149-51 (1967) (assessing ripeness by reference to finality of agency action); Atlanta Gas Light Co. v. FERC, 140 F.3d 1392, 1404 (11th Cir. 1998) (assessing ripeness by asking, inter alia, whether “challenged agency action constitutes ‘final agency action’”). Defendants included contraception and sterilization within the Affordable Care Act’s mandated “preventive services” after lengthy deliberation that included an “extensive science-based review” by the Institute of Medicine. MTD at 7. And they finalized the religious employer exemption after “carefully considering”—over an additional six months—“more than 200,000 comments.” Id. at 9. Consequently, the challenged regulation is “quite clearly definitive” because it was “promulgated in a formal manner after announcement in the Federal Register and consideration of comments by interested parties.” Abbott Labs., 387 U.S. at 151. It is not “informal,” nor is it “only the ruling of a subordinate official,” nor is it “tentative.” Id. (citations omitted). To the contrary, the mandate “mark[ed] the ‘consummation’ of the agency’s decisionmaking process.” In re MDL-1824 Tri-State Water Rights Litig., 644 F.3d 1160, 1181 (11th Cir. 2011) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). These indicia of
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finality mark EWTN’s claims as ripe—especially since they involve First Amendment rights.
Nonetheless, defendants insist that the ANPRM’s proposed rulemaking renders EWTN’s lawsuit unripe by raising a “significant chance” that future amendments to
the mandate will either moot or alter EWTN’s claims before the mandate’s effective date. MTD at 23. Defendants’ argument is perplexing and misguided.
First, defendants misunderstand the nature of EWTN’s claims. EWTN challenges the Act’s preventive services mandate because—and only because— defendants have defined “preventive services” to include contraception and sterilization. 9 The ANPRM promises no change to that status quo—that is, it promises neither to alter the preventive services mandate itself, nor to subtract
contraception from the ambit of “preventive services.” Nor does it propose to expand the previously finalized religious employer exemption to relieve EWTN of
any responsibility under the mandate. Instead, the ANPRM merely proposes rulemaking to consider how to route free contraception coverage to EWTN’s employees, subject to EWTN’s compliance and cooperation.10
9 See 42 U.S.C. § 300gg-13 (a)(4) (requiring group health plans to “provide coverage” without cost-sharing for “preventive care … as provided for in [HRSA] guidelines”); HRSA Guidelines, http://www.hrsa.gov/womensguidelines/ (last visited June 1, 2012) (defining “women’s preventive services” to include “[a]ll [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling”). 10 See 77 Fed. Reg. at 16503 (announcing defendants’ “plans for a rulemaking to require issuers to offer group health insurance coverage without contraceptive coverage to such an organization … and simultaneously to provide contraceptive coverage directly to the participants and beneficiaries covered under the organization’s plan with no cost sharing”) (emphasis added).
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Consequently, defendants are wrong that the parameters of the rulemaking
sketched out by the ANPRM could do anything to undermine the ripeness of
EWTN’s claims. “[A]gencies cannot avoid judicial review of their final actions
merely because they have opened another docket that may address some related
matters.” Am. Bird Conservancy, 516 F.3d at 1031 n.1 (and collecting authorities).
Here, defendants’ proposed future rulemaking will, by its own terms, address
matters that cannot impact EWTN’s constitutional claims.
Defendants cite no case to support their novel argument that a speculative and
irrelevant future rulemaking derails a challenge to a final and concrete regulation.
The cases defendants cite, see MTD at 23-26, stand for the ordinary proposition that
challenges to open-ended, non-binding, or rescinded laws and regulations are
unripe.11 In such cases, additional rulemaking undermined ripeness—not because
11 See, e.g., Texas v. United States, 523 U.S. 296, 300-01 (1998) (declaratory judgment that school district law would never trigger Voting Rights Act preclearance was unripe because, absent application, impossible to determine how the law implicated elections); Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998) (suit against forestry plan unripe because plan “d[id] not command anyone to do anything,” “create[d] no legal rights or obligations,” and required further agency action to flesh out application to specific land); Alcock, 83 F.3d at 390-91 (challenge to forestry plan unripe because plan did not injure plaintiff but foresaw more decisionmaking before any dispute could materialize); Tex. Indep. Producers and Royalty Ass’n v. EPA, 413 F.3d 479, 483-84 (5th Cir. 2005) (challenge to EPA permitting rule unripe where, inter alia, rule’s scope impossible to determine on its face; EPA had officially deferred rule and initiated rulemaking to clarify rule); Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. New York State Dept. of Envtl. Conservation, 79 F.3d 1298, 1305 (2d Cir. 1996) (suit against state unripe where the state had yet to “pass the necessary legislation, promulgate the appropriate regulations, and build and staff testing facilities,” and there was no guarantee it would ever do so); Lake Pilots Ass’n, Inc. v. U.S. Coast Guard, 257 F. Supp. 2d 148, 161 (D.D.C. 2003) (challenge unripe because agency had admitted its error respecting challenged rule, had reinstated prior rule, and undertaken new
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it automatically renders challenges to definite rules unripe—but because, there, new rulemaking was necessary to flesh out open-ended rules that courts could not apply in their present form. Those cases might have affected EWTN had it sued before “preventive care” was defined to include FDA-approved contraceptives and sterilization methods. But nothing like that situation is presented here. To the contrary, EWTN has brought facial legal challenges to a concrete and carefullydefined regulatory scheme whose application to religious objectors like EWTN is as clear as it is unconstitutional.
Like their standing argument, supra, defendants’ ripeness argument really concerns mootness. Indeed, in arguing why the challenged regulations “have not ‘taken on fixed and final shape,’” MTD at 25, defendants promise that—following the proposed rulemaking—EWTN’s challenge “likely will be moot.” Id. (emphasis added). But defendants misunderstand which regulations EWTN challenges. EWTN challenges the mandate and exemption—regulations that were finalized after an extensive process on August 1, 2011 and February 10, 2012, respectively. EWTN is not challenging whatever might come out of the proposed rulemaking. Such a challenge would be incoherent because, as defendants point out, the ANPRM “does not preordain what amendments to the preventive services coverage regulations defendants will ultimately promulgate.” MTD at 25. More importantly, any such
rulemaking ); Alabama v. United States, 630 F. Supp. 2d 1320, 1329 (S.D. Ala. 2008) (challenge unripe because it was dependent not merely upon the text of the regulation, but upon speculation about whether the DOI would act impartially in a pending administrative proceeding).
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future amendments would not, by the very terms of the ANPRM, change EWTN’s current challenge.
B. EWTN faces imminent hardship absent immediate review. Because EWTN’s claims are fit, its challenge is ripe. See, e.g., Harrell, 608 F.3d at 1259 (where claim was fit, “we need not consider whether [plaintiff] would suffer any hardship”). But if the Court were to consider hardship, it would find that the hardships EWTN faces from delay weigh decisively in favor of judicial review. First, since the ANPRM will not alter EWTN’s claims, see supra, EWTN will still be compelled to drop employee insurance and pay heavy fines. And, even under the Safe Harbor, EWTN must plan now to address that negative consequence (which will be consummated in only twenty-five months). Inability to offer insurance will severely impact EWTN’s ability to retain and recruit employees. These and other potential implications demand immediate review. Compl. ¶¶ 97-98, 112; see also Retail Indus. Leaders Ass’n v. Fielder, 475 F.3d 180, 188 (4th Cir. 2007) (finding ripeness where plaintiff had to alter “accounting procedures and healthcare spending now” to plan for new law). Moreover, the Safe Harbor protects EWTN only from enforcement by defendants, not third parties. The Affordable Care Act empowers private parties to enforce the mandate, through its incorporation into Part 7 of ERISA. 29 U.S.C. § 1185d (a)(1). Under that part, a plan participant or beneficiary may bring a civil action to recover plan benefits or enforce or clarify plan rights. 29 U.S.C. § 1132(a)(1)(B). Thus even without enforcement by defendants, EWTN would still be subject to actions by plan
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participants or beneficiaries. Chamber of Commerce v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995) (retaining jurisdiction in part because “even without a Commission enforcement,” plaintiffs would be “subject to [private] litigation challenging the legality of their actions”).
Both of these “direct and immediate” consequences of the mandate warrant immediate review. See Abbott Labs., 387 U.S. at 152-53.
CONCLUSION For the foregoing reasons, the Court should deny the motion to dismiss.
Respectfully submitted, /s/ S. Kyle Duncan S. Kyle Duncan, LA Bar No. 25038 Lori H. Windham, VA Bar. No. 71050 Eric N. Kniffin, DC Bar No. 999473 THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street N.W., Suite 220 Washington, D.C. 20007 (202) 955-0095 (tel.) (202) 955-0090 (fax)
Counsel for Plaintiff Eternal Word Television Network Dated: June 1, 2012
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CERTIFICATE OF SERVICE
I hereby certify that on June 1, 2012, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system and that the
following parties were served via that system:
Eric R. Womack United States Department of Justice Civil Divisions, Federal Programs Branch 20 Massachusetts Avenue N.W., Room 7140 Washington, D.C. 20001 eric-womack@usdoj.gov
Joyce White Vance United State Attorney United States Attorney’s Office 1801 4th Avenue North Birmingham, AL 35203-2101 usa-aln-ecf-usa@usdoj.gov
Counsel for Defendants
Andrew L. Brasher Office of the Alabama Attorney General Deputy Solicitor General 501 Washington Avenue P.O. Box 300152 Montgomery, AL 36130-0152 abrasher@ago.state.al.us
Joshua Kerry Payne Office of the Alabama Attorney General 501 Washington Avenue P.O. Box 300152 Montgomery, AL 36130-0152 jpayne@ago.state.al.us
Luther J. Strange, III Office of the Alabama Attorney General 501 Washington Avenue

Case 2:12-cv-00501-SLB Document 33 Filed 06/01/12 Page 33 of 33
P.O. Box 300152 Montgomery, AL 36130-0152 luther.strange@ago.state.al.us William G Parker, Jr. Office of the Alabama Attorney General 501 Washington Avenue P.O. Box 300152 Montgomery, AL 36130-0152 wparker@ago.state.al.us
/s/ S. Kyle Duncan_____ S. Kyle Duncan
2

 
 Case 2:12-cv-00501-SLB Document 36 Filed 06/25/12 Page 1 of 16

FILED
2012 Jun-25 PM 04:03 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

)

ETERNAL WORD TELEVISION

)

NETWORK, INC.,

)

)

Plaintiff,

)

)

v.

)

)

KATHLEEN SEBELIUS,

)

et al.,

)

)

Defendants.

)

___________________________________ )

Case No. 2:12-cv-00501-SLB

DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT

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INTRODUCTION Plaintiff’s opposition to defendants’ motion to dismiss makes clear that plaintiff seeks to challenge regulations – that neither defendants, nor anyone else, is enforcing against plaintiff – as well as forthcoming amendments to those regulations – that do not even exist yet. This Court should reject plaintiff’s request for premature adjudication of its claims because the Court lacks jurisdiction. Plaintiff’s basic premise seems to be that it has standing and its claims are ripe for review unless defendants can show that there is no set of circumstances under which plaintiff could ever be adversely affected by the challenged regulations and prove that plaintiff will be wholly satisfied with forthcoming amendments to those regulations that are designed to accommodate religious organizations’ religious liberty interests. Plaintiff has it backwards. It is plaintiff’s burden – not defendants’ – to demonstrate current or imminent injury from the regulatory actions it seeks to challenge. And it is plaintiff’s burden to show that, even though the challenged regulations will inevitably change before they could have any effect on plaintiff, this Court should nonetheless intervene to review amendments that are still being formulated and whose content is thus unknowable. Because plaintiff has not met its burden, the Court should dismiss this case.
ARGUMENT I. PLAINTIFF LACKS STANDING
Defendants’ opening brief demonstrated that plaintiff lacks standing because it has not alleged a concrete and imminent injury resulting from the operation of the preventive services coverage regulations. Plaintiff’s opposition does not show
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otherwise.1 Plaintiff admits it is eligible for the temporary enforcement safe harbor,
see Opp’n at 13, ECF No. 33, pursuant to which defendants will not bring any
enforcement action against plaintiff for failing to provide contraceptive coverage until at least July 1, 2014.2 By then, defendants will have finalized amendments to
the challenged regulations to accommodate the religious objections of religious
organizations, like plaintiff, to providing contraceptive coverage. Thus, plaintiff
has not been, and never will be, injured by the regulations in their current form.
Plaintiff nevertheless argues that, even though it is eligible for the
enforcement safe harbor, the existence of “‘a time delay before the disputed
provision[] will come into effect’” is “‘irrelevant’” to plaintiff’s standing. Id. at 16
(quoting Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 143 (1974)). Plaintiff
believes it need not await the consummation of a threatened injury to obtain
preventive relief. Id. But this case involves more than mere delay. Defendants also
1 Defendants no longer contend, at this stage, that plaintiff has not sufficiently alleged that its group health plan is not grandfathered. Defs.’ Mot. at 15-17, ECF No. 29-1. The declaration submitted with plaintiff’s opposition plausibly suggests that its health plan has not satisfied certain requirements for maintaining grandfathered status. See 45 C.F.R. § 147.140(a)(2); 26 C.F.R. § 54.9815-1251T(a)(2); 29 C.F.R. § 2590.715-1251(a)(2). 2 Plaintiff errs by suggesting that a somewhat relaxed standing or ripeness analysis applies here. See Opp’n at 13, 25. As the Eleventh Circuit cases cited by plaintiff make clear, the principle on which plaintiff relies applies only where, unlike here, there is a “credible threat” of enforcement. Bloedorn v. Grube, 631 F.3d 1218, 1228 (11th Cir. 2011); Harrell v. The Fla. Bar, 608 F.3d 1241, 1258, 1261 (11th Cir. 2010); see also Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir. 2010) (“[A]n injury must be imminent.”). There is no such threat here because of the existence of the temporary enforcement safe harbor. Indeed, unlike in Bloedorn, there is no “indication that [defendants] would [bring an enforcement action against]” organizations that qualify for the safe harbor. 631 F.3d at 1229; see also Presbytery of N.J. v. Florio, 40 F.3d 1454, 1470-71 (3d Cir. 1994) (dismissing churches’ challenge to discrimination law as unripe where affidavit from State official indicated that State would not prosecute churches for violating law).
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intend to amend the challenged regulations during the safe harbor period to accommodate religious organizations’ religious objections to covering contraceptive services. These forthcoming amendments are not irrelevant to plaintiff’s standing. In fact, the Supreme Court has made clear that a time delay is only “irrelevant” to justiciability when “the inevitability of the operation of a statute against certain individuals is patent.” Reg’l Rail Reorganization Act Cases, 419 U.S. at 143 (emphasis added). Here, there is nothing patently inevitable about the operation of the regulations in their current form against plaintiff. Moreover, this is not a case where defendants are relying on the general authority of an agency to change regulations it promulgated whenever it desires. See Opp’n at 20. The advance notice of proposed rulemaking (ANPRM) goes much further than that by promising imminent regulatory amendments intended to address the concerns raised by organizations like plaintiff.3
Plaintiff’s reliance on defendants’ position in an unrelated appeal, id. at 17 (citing Fla. ex. rel. Attorney Gen. v. HHS, 648 F.3d 1235 (11th Cir. 2011)), fares no better.4 As an initial matter, courts in several other cases – none of which plaintiff cites – dismissed challenges to the minimum coverage provision for lack
3 Contrary to plaintiff’s assertions, see Opp’n at 18-24, 27-30, defendants have done more than merely promise a future rulemaking. They have actually initiated the rulemaking by issuing the ANPRM, made clear that the rulemaking will amend the regulations, and stated they will finalize the amendments before the safe harbor expires. 77 Fed. Reg. 16,501, 16,503 (Mar. 21, 2012). 4 The government’s failure to appeal a decision in one case has no bearing on even the same issue in a related case, much less – as plaintiff urges here – a different issue in an unrelated case. United States v. Mendoza, 464 U.S. 154, 162 (1984) (holding that nonmutual offensive collateral estoppel does not apply against the government); id. at 160-62 (noting that the Solicitor General considers many factors in deciding whether to appeal an issue).
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of standing where the plaintiffs could not show that the provision was certain to injure them when it takes effect in 2014. See, e.g., Baldwin v. Sebelius, 654 F.3d
877, 879 (9th Cir. 2011); New Jersey Physicians, Inc. v. Obama, 653 F.3d 234, 239-40 (3d Cir. 2011). More importantly, this case differs sharply from those challenging the minimum coverage provision. There was no hint that Congress
would amend the minimum coverage provision; the lone question in those cases was whether the particular plaintiff would be subject to the provision. See, e.g., Baldwin, 654 F.3d at 879. Indeed, in concluding that the plaintiff in Thomas More
Law Center v. Obama, 651 F.3d 529, 538 (6th Cir. 2011), had standing, the court specifically noted that there was “no reason to think the law will change.”5 Here, in contrast, there is every reason to think the challenged regulations will change
materially; defendants have publicly announced their intent to amend the regulations to accommodate concerns of the sort at issue here and have in fact begun that process. Because the forthcoming amendments may foreclose any
injury to plaintiff, or at least alter the nature of any injury (and the substance of plaintiff’s legal claims), plaintiff has not established standing.6
5 Similarly, in Village of Bensenville v. FAA, 376 F.3d 1114, 1119 (D.C. Cir. 2004), another case on which Plaintiff relies, only “action by [the court]” prevented the challenged fee collection. Pierce v. Soc’y of Sisters, 268 U.S. 510, 533, 536 (1925), also is inapposite, as there the Court concluded that “injury to [the plaintiff school] was present . . . , not a mere possibility in the remote future” where, among other things, the challenged compulsory education law caused parents to withdraw their children from the plaintiff school or refuse to make contracts for future instruction at the school. 6 Plaintiff suggests it is injured notwithstanding the enforcement safe harbor because the safe harbor is “non-binding.” Opp’n at 18. But plaintiff is dealing with the federal government, which is presumed to act in good faith. See, e.g., Schism v. United States, 316 F.3d 1259, 1302 (11th Cir. 2002) (explaining that government officials presumed to act in good faith). Indeed, courts
(continued on next page…) 4

Case 2:12-cv-00501-SLB Document 36 Filed 06/25/12 Page 6 of 16
Contrary to plaintiff’s argument, see Opp’n at 18-20, the forthcoming
changes to the regulations do make any alleged harm to plaintiff too speculative to
support standing. And the Court should reject plaintiff’s attempts to recast
defendants’ standing argument as a question of mootness, see id. at 19-20, thereby
shifting plaintiff’s burden of proof onto defendants.7 First, this case has not been
litigated “for years” and is not at “an advanced stage,” and thus, the interest served
by the mootness doctrine, i.e. avoiding waste, is simply not implicated here. See
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 191-92
(2000). Second, plaintiff’s First Amended Complaint adds new claims and makes
have found similar promises of non-enforcement by the government sufficient to defeat jurisdiction. See, e.g., Winsness v. Yocom, 433 F.3d 727, 732-33 (10th Cir. 2006) (plaintiff’s prosecution for violation of state flag-abuse law was too speculative to support standing where district attorney filed affidavit promising non-prosecution); Presbytery of N.J., 40 F.3d at 147071 (churches’ challenge to discrimination law was unripe where affidavit from state official indicated that state would not prosecute churches for violating law). The cases cited by plaintiff, Opp’n at 18, do not show otherwise. See Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 388-89 (4th Cir. 2001) (basing decision on fact that agency’s non-enforcement policy was expressly limited to a defined geographic region, and plaintiff alleged a specific intent to engage in advocacy outside of that region); U.S. Dep’t of Labor v. N.C. Growers Ass’n, 377 F.3d 345, 353-54 (4th Cir. 2004) (addressing deference to agency interpretation of statute). Any implication that defendants may take back the safe harbor is not only dubious, but insufficient to establish injury in fact. See Schutz v. Thorne, 415 F.3d 1128, 1134-35 (10th Cir. 2005) (“Standing is not conferred by ‘conjecture’ or ‘speculation’ about future [events].”).
7 In attempting to re-write defendants’ standing argument as a mootness argument, plaintiff relies on cases about standing and/or ripeness, not mootness. See Opp’n at 20. Because defendants have initiated a rulemaking specifically intended to amend the challenged regulations to address the concerns raised by organizations like plaintiff, none of the cases cited by plaintiff establish its standing or that its claims are ripe. See Am. Petroleum Inst. v. EPA, 906 F.2d 729, 739 (D.C. Cir. 1990) (pending rulemaking was “entirely separate from” challenged rule and agency would not have any “occasion to refine” or change challenged rule during pending rulemaking); Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1030 & n.1 (D.C. Cir. 2008) (“new docket” opened by agency was not designed to address problems identified by plaintiff); Sackett v. EPA, 132 S. Ct. 1367, 1372 (2012) (only possibility of future “informal discussion[s]”).
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new allegations with respect to standing. See First Am. Compl. ¶¶ 86-93, 115-117, ECF No. 13 (alleging that final version of amended final rule is unlawful, that plaintiff’s employee health plan is not grandfathered, and that challenged regulations will apply to plaintiff on July 1, 2014). Thus, the First Amended Complaint, which was filed after – and addresses – defendants’ issuance of the safe harbor and the ANPRM, is the operative complaint for assessing standing. See Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991); cf. Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473-74 (2007) (“[W]hen a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction.”).8
Finally, plaintiff’s assertion that “the accommodations forecast in the ANPRM . . . would not remedy the religious conflict,” Opp’n at 21, only underscores the prematurity of this suit and further illuminates why the Court lacks jurisdiction here. Plaintiff makes clear that it is asking the Court to assess the lawfulness of regulations that do not yet exist. Plaintiff’s theory appears to be that, no matter what accommodations defendants ultimately adopt, they will not satisfy plaintiff. But plaintiff has had and will have opportunities – throughout the pending rulemaking – to express its concerns (such as those set forth in pages 21 through 23 of plaintiff’s opposition) and help shape the forthcoming amendments. Defendants
8 Even if the Court determines that standing should be assessed at the time plaintiff filed its original complaint, plaintiff also lacked standing at that time. The contraception coverage requirement is not effective until August 1, 2012. See, e.g., 45 C.F.R. § 147.130(b)(1). Thus, when plaintiff filed its original complaint on February 9, 2012, it was not under any obligation to provide contraception coverage. And plaintiff is under no such obligation today.
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have stressed that the ideas suggested in the ANPRM are not all that they will consider adopting and have expressly invited alternative ideas. 77 Fed. Reg. at 16,501, 16,503.
In sum, this case involves not only a twenty-five month delay before defendants will enforce the challenged regulations against plaintiff, but also a commitment by defendants to amend the regulations as to organizations like plaintiff, initiation of the amendment process, and opportunities for plaintiff to participate in that process. In these circumstances, no injury to plaintiff is “certainly impending.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).
II. THIS CASE IS NOT RIPE Defendants also demonstrated in their opening brief that plaintiff’s challenge
to the preventive services coverage regulations is not ripe. Defendants explained that the challenged regulations are not fit for judicial review because of the ongoing rulemaking, which is intended to amend the regulations to accommodate the religious objections of religious organizations, like plaintiff, to providing contraceptive coverage. Moreover, the temporary enforcement safe harbor will be in effect until defendants finalize the amendments such that plaintiff will not suffer any hardship prior to the regulatory changes.9
Plaintiff contends its claims are fit for judicial review because they “involve facial challenges” to the regulations “that require no factual development.” Opp’n
9 As stated already, supra n. 2, the principle that ripeness doctrine is relaxed in certain First Amendment contexts does not help plaintiff here.
7

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at 25. Plaintiff’s claims may be largely legal,10 but it does not follow that further factual development is unwarranted. One relevant – indeed, essential – fact that has yet to be developed is what the preventive services coverage regulations will actually require of plaintiff, if anything. Until that is known – and it will not be known until the pending rulemaking is completed – the Court cannot know what it is reviewing. See Pub. Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 244 (1952) (to be ripe for review, a case “must have taken on fixed and final shape so that a court can see what legal issues it is deciding”); Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985) (court must consider whether it “will benefit from deferring review until the agency’s policies have crystallized and the question arises in some more concrete and final form” (quotation omitted)).11
Plaintiff further asserts that the preventive services coverage regulations are fit for judicial review because they are final. Opp’n at 26. As evidence of this finality, plaintiff refers to defendants’ issuance of final rules on February 15, 2012. Id. Plaintiff, however, misunderstands the nature of those rules: They did not serve to finalize the preventive services coverage regulations in their entirety as plaintiff claims. See id. Rather, they finalized an amendment to the interim final rules – i.e., the amendment that authorized an exemption from the contraceptive coverage
10 Defendants note, however, that the substantial burden analysis under the Religious Freedom Restoration Act is fact-specific. See, e.g., Mintz v. Roman Catholic Bishop of Springfield, 424 F. Supp. 2d 309, 312 (D. Mass. 2006). 11 The Eleventh Circuit cases cited by plaintiff, Opp’n at 25, are inapposite because neither involved a law that was subject to a forthcoming change. See Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir. 2009); Pittman v. Cole, 267 F.3d 1269 (11th Cir. 2001).
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requirement for certain religious employers. 77 Fed. Reg. 8725, 8730 (Feb. 15, 2012) (“[T]he amendment to the interim final rule . . . is adopted as a final rule without change.”). Indeed, the February 15, 2012 final rules explicitly announced that defendants would engage in a “future rulemaking” to “develop alternative ways of providing contraceptive coverage without cost sharing with respect to nonexempted, non-profit religious organizations with religious objections to such coverage.” Id. at 8728. And defendants then initiated that announced rulemaking by issuing the ANPRM on March 21, 2012. See 77 Fed. Reg. at 16,501. Thus, as applied to non-exempted, non-grandfathered religious organizations with religious objections to providing contraceptive coverage, like plaintiff, the preventive services coverage regulations are not final or definitive. Rather, further administrative proceedings – which may eliminate the need for judicial review or at least narrow and refine the controversy – are contemplated and, indeed, underway. See Am. Petroleum Inst. v. EPA, No. 09-1038, 2012 WL 2053572 (D.C. Cir. June 8, 2012) (concluding challenge to regulation was unripe where agency had initiated a rulemaking that could significantly amend the regulation). The Court lacks jurisdiction to reach out to preview a potential controversy that may well evaporate.
While the “possibility of unforeseen amendments” does not render an otherwise fit challenge unripe, Am. Petroleum Inst., 906 F.2d at 739-40, there is nothing unforeseen about defendants’ intent to amend the regulations challenged here. See Tex. Indep. Producers & Royalty Owners Ass’n v. EPA, 413 F.3d 479, 483 (5th Cir. 2005) (challenge to rule not ripe where agency announced intent to
9

Case 2:12-cv-00501-SLB Document 36 Filed 06/25/12 Page 11 of 16
consider issues raised by plaintiff in new rulemaking); AT&T Corp. v. FCC, 369 F.3d 554, 563 (D.C. Cir. 2004) (claim unripe where issues raised by plaintiff were “still under consideration in ongoing rulemaking proceedings”); Util. Air Regulatory Grp. v. EPA, 320 F.3d 272, 279 (D.C. Cir. 2003) (case not ripe where agency was “currently undertaking a rulemaking to amend [the regulations]”); Lake Pilots Ass’n v. U.S. Coast Guard, 257 F. Supp. 2d 148, 161-62 (D.D.C. 2003) (challenge to rule not ripe where agency undertook new rulemaking to address issue raised by plaintiff in lawsuit).
Nor is plaintiff’s insistence that it will not be satisfied with whatever amendments result from the pending rulemaking, see Opp’n at 27-28, grounds for this Court to issue an advisory opinion on the lawfulness of the ideas proposed in the ANPRM. Courts may not opine on the lawfulness of regulations that are not yet final no matter how “legal” the issues may be. See Columbian Fin. Corp. v. BancInsure, Inc., 650 F.3d 1372, 1376 (10th Cir. 2011) (“It is not the role of federal courts to resolve abstract issues of law.”); Motor Vehicle Mfrs. Ass’n v. New York State Dep’t of Envt’l Conservation, 79 F.3d 1298, 1306 (2d Cir. 1996) (holding claims were not ripe where “plaintiffs’ arguments depend upon the effects of regulatory choices to be made by [the State] in the future”); Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436 (D.C. Cir. 1986) (“The interest in postponing review is powerful when the agency position is tentative. Judicial review at that stage improperly intrudes into the agency’s decisionmaking process” and “squanders judicial resources since the challenging party still enjoys an opportunity to convince the agency to change its mind.”). And, as previously stated, plaintiff
10

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cannot credibly argue that the ANPRM could not possibly alter its challenge to the regulations, see Opp’n at 28, when plaintiff has ample opportunity to express its concerns and help shape the forthcoming amendments.12
Finally, plaintiff suggests it will suffer hardship if judicial review is delayed. Plaintiff contends that it must begin planning now for the possibility that it will drop its health insurance coverage in twenty-five months and begin paying a penalty for failure to provide such coverage. Id. at 30. Plaintiff further notes that its inability to offer insurance may affect its retention and recruitment efforts. Id. These allegations, however, do not demonstrate a “direct and immediate” effect on plaintiff’s “day-to-day business” with “serious penalties attached to noncompliance,” as required to establish hardship. Abbott Labs. v. Gardner, 387 U.S. 136, 152-53 (1967), overruled on other grounds in Califano v. Sanders, 430 U.S. 99 (1977). Instead, they are contingencies that may arise in the future. And plaintiff’s alleged desire to plan for these contingencies twenty-five months in advance does not constitute a hardship; if it did, the hardship prong would become meaningless because organizations are always planning for the future. See Wilmac Corp. v. Bowen, 811 F.2d 809, 813 (3d Cir. 1987) (“Mere economic uncertainty
12 Plaintiff misses the point when it claims to challenge the “finalized” regulations and not “whatever might come out of the proposed rulemaking.” Opp’n at 29. As previously explained, this lawsuit is premature not because it seeks to challenge the ANPRM, but because the ANPRM makes clear that the existing regulations are not, in fact, final as to organizations like plaintiff. Plaintiff’s characterization of its claim as challenging “the Act’s preventive services mandate because – and only because – defendants have defined ‘preventive services’ to including contraception and sterilization” is also not credible. Id. at 27. The First Amended Complaint makes clear that plaintiff takes issue not with defendants’ interpretation of the statute’s preventive services provision, but with the application of that provision to plaintiff.
11

Case 2:12-cv-00501-SLB Document 36 Filed 06/25/12 Page 13 of 16
affecting the plaintiff’s planning is not sufficient to support premature review.”);
Tenn. Gas Pipeline Co. v. FERC, 736 F.2d 747, 751 (D.C. Cir. 1984) (plaintiff’s
“planning insecurity” insufficient to show hardship); Bethlehem Steel Corp. v.
EPA, 536 F.2d 156, 162 (7th Cir. 1976) (“[C]laims of uncertainty in [plaintiff’s]
business and capital planning are not sufficient to warrant [] review of an ongoing administrative process.”).13 Nor is plaintiff’s alleged hardship caused by the
regulations. See Abbott Labs., 387 U.S. at 152. It arises, rather, from plaintiff’s
desire to prepare for a hypothetical situation in which the forthcoming amendments do not sufficiently address its religious concerns.14
Plaintiff also claims hardship from the chance that third parties may sue it to
enforce the challenged regulations. Opp’n at 30-31. But plaintiff does not allege
13 Retail Industry Leaders Ass’n v. Fielder, 475 F.3d 180 (4th Cir. 2007) is not to the contrary. There, the challenged law required the plaintiff to alter its accounting practices immediately because the plaintiff’s existing accounting practices did not permit it to collect the type of information that the challenged law required the plaintiff to report. Id. at 186-87.
14 Plaintiff, moreover, cannot transmute the speculative possibility of future injury into a current concrete injury for standing purposes by asserting that it has “already devoted considerable resources to determine how to respond to” the preventive services coverage regulations. Opp’n at 14. Such reasoning would gut standing doctrine, as a plaintiff could manufacture standing by asserting a current need to prepare for the most remote and ill-defined harms. Even if such manipulation were not so transparent, plaintiff still would bear the burden of pleading standing with specificity. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); R.W. v. Ga. Dep’t of Educ., 353 Fed. App’x 422, 423 (11th Cir. 2009) (per curiam); Brown v. FBI, 793 F. Supp. 2d 368, 374 (D.D.C. 2011). Plaintiff does not meet that burden here because it does not explain what it is devoting resources to, much less why it is doing so in light of the forthcoming amendments to the regulations and the enforcement safe harbor. Further, any planning plaintiff is engaged in now “stems not from the operation of [the challenged regulations], but from [plaintiff’s] own . . . personal choice” to prepare for contingencies that may never occur. McConnell v. FEC, 540 U.S. 93, 228 (2003), overruled in part on other grounds, Citizens United v. FEC, 130 S. Ct. 876 (2010). Thus, even if this preparation were an injury, it would not be fairly traceable to the challenged regulations. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
12

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that any such suit has been filed against it; this alleged hardship is thus purely theoretical and insufficient to make this case ripe. See Salvation Army v. Dep’t of Cmty. Affairs of N.J., 919 F.2d 183, 193 (3d Cir. 1990) (“theoretical possibility of a suit against [plaintiff] by a program beneficiary” insufficient for jurisdiction).15 And if such a suit were filed in the future, plaintiff would be able to raise all the claims it asserts here as a defense in that action. See, e.g., 42 U.S.C. § 2000bb-1(c).
Because defendants are amending the challenged regulations to address concerns raised by plaintiff, and plaintiff has not shown that it will suffer hardship during this amendment process, plaintiff’s challenge is not ripe.
CONCLUSION For these reasons and those set forth in defendants’ opening brief, plaintiff lacks standing to challenge the preventive services coverage regulations and its claims are not ripe. This Court accordingly should grant defendants’ motion to dismiss plaintiff’s First Amended Complaint. Respectfully submitted,
STUART F. DELERY Acting Assistant Attorney General IAN HEATH GERSHENGORN Deputy Assistant Attorney General JOYCE WHITE VANCE United States Attorney
15 Chamber of Commerce v. FEC, 69 F.3d 600, 602-03 (D.C. Cir. 1995), is distinguishable because the plaintiffs in that case had already changed their behavior as a result of the challenged rule and there was no evidence the agency was in the process of amending the rule.
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Case 2:12-cv-00501-SLB Document 36 Filed 06/25/12 Page 15 of 16
JENNIFER RICKETTS Director, Federal Programs Branch SHEILA M. LIEBER Deputy Director /s/ Jacek Pruski JACEK PRUSKI (CA Bar No. 277211) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C. 20001 Tel: (202) 616-2035 Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorneys for Defendants
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Case 2:12-cv-00501-SLB Document 36 Filed 06/25/12 Page 16 of 16
CERTIFICATE OF SERVICE I hereby certify that on June 25, 2012, I caused a true and correct copy of this Reply Brief to be served on counsel by means of the Court’s ECF system.
/s/ Jacek Pruski JACEK PRUSKI
15

 
 FILED
2013 Mar-25 PM 04:46 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ETERNAL WORD TELEVISION }

NETWORK, INC.,

}

}

Plaintiff,

}

}

v.

}

}

KATHLEEN SEBELIUS, Secretary }

of the United States Department of }

Health and Human Services,

}

}

UNITED STATES DEPARTMENT }

OF HEALTH AND HUMAN

}

SERVICES,

}

}

HILDA SOLIS, Secretary of the

}

United States Department of Labor, }

}

UNITED STATES DEPARTMENT }

OF LABOR,

}

}

TIMOTHY GEITHNER, Secretary }

of the United States Department of }

the Treasury, and

}

}

UNITED STATES DEPARTMENT }

OF THE TREASURY,

}

}

Defendants.

}

CASE NO. 2:12-cv-501-SLB

MEMORANDUM OPINION

On February 9, 2012, Eternal Word Television Network, Inc. (“EWTN”) filed a

Complaint in this court naming Kathleen Sebelius, Secretary of the United States Department

of Health and Human Services; the United States Department of Health and Human Services;

Hilda Solis, Secretary of the United States Department of Labor; the United States Department of Labor; Timothy Geithner, Secretary of the United States Department of the Treasury; and the United States Department of the Treasury as defendants (collectively “defendants”). (Doc. 1.)1 EWTN’s Complaint, as amended on March 21, 2012, alleges that defendants promulgated regulations pursuant to the Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152, 124 Stat. 1029 (2010) (collectively “Affordable Care Act” or “ACA”) in violation of (1) the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., (2) the Free Exercise Clause of the First Amendment, U.S. Const. amend. I, (3) the Establishment Clause of the First Amendment, U.S. Const. amend. I, (4) the Freedom of Speech Clause of the First Amendment, U.S. Const. amend. I, and (5) the Administrative Procedure Act, 5 U.S.C. 550 et seq. (Doc. 13 ¶¶ 118-205.)
This case is currently before the court on defendants’ Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. 29.) Upon consideration of the record, the submissions of the parties, and the relevant law, the court is of the opinion that defendants’ Motion to Dismiss is due to be granted.
1 Reference to a document number, (“Doc. __”), refers to the number assigned to each document as it is filed in the court’s record.

I. FACTS, STATUTORY BACKGROUND, AND PROCEDURAL HISTORY2 A. Eternal Word Television Network In 1981, Mother Angelica, a Catholic nun of the Poor Clares of Perpetual Adoration
order, founded EWTN in Irondale, Alabama. (Doc. 13 ¶ 2.) EWTN is “dedicated to the advancement of truth as defined by the Magisterium of the Roman Catholic Church.” (Id. ¶ 23.) Its mission is “to serve the orthodox belief and teaching of the Church as proclaimed by the Supreme Pontiff and his predecessors.” (Id.) EWTN claims to be the world’s largest Catholic media network: among other things, it transmits television programing through eight different services, broadcasts in both English and Spanish, has two 24-hour radio services, and maintains a popular website. (Id. ¶¶ 2, 21.) Currently, EWTN has more than 300 employees. (Id. ¶ 27.)
EWTN promotes the Roman Catholic Church’s teachings regarding the sanctity of human life and the purpose of human sexuality. (Id. ¶ 24-25.) In terms of the sanctity of human life, EWTN teaches that “all . . . life is sacred and precious, from the moment of conception.” (Id. ¶ 24.) Accordingly, it believes that “abortion ends a human life and is a grave sin.” (Id.) Regarding human sexuality, EWTN believes that it has two main purposes: (1) to closely unite husband and wife and (2) to generate new life. (Id. ¶ 25.) Thus, EWTN both believes and teaches that “any action which either before, at the moment of, or after
2 For purposes of this Opinion, the “facts” alleged in the Amended Complaint are accepted as true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007); Resnick v. AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012) (citing Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1271 n.4 (11th Cir. 2012)).
3

sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means—including contraception and sterilization—is a grave sin.” (Id. (internal quotation marks and citation omitted).)
In accordance with these beliefs, EWTN provides health care coverage that it considers to be “superior to coverage generally available in the Alabama market,” (id. ¶ 28), but which excludes coverage for artificial contraception, sterilization, and abortion, (id. ¶ 30). EWTN claims that it cannot provide health insurance covering “artificial contraception, sterilization, or abortion, or related education and counseling, without violating its deeply held religious beliefs.” (Id. ¶ 29.) EWTN’s employee insurance plan is a self-funded plan administered by Blue Cross/Blue Shield of Alabama that begins annually on July 1. (Id. ¶ 32, doc. 33 at 10, 12.)
EWTN operates off of donations from the public and does not generate revenue from carriage fees or advertising. (Doc. 13 ¶ 33.) It claims that its donors give with an understanding of its mission and with the aim that their donations will further EWTN’s adherence to, dissemination of, and reporting of reliable teachings on Catholic morality and practices. (Id.) Thus, according to EWTN, using donated funds for purposes known to be morally repugnant to its donors would violate an implicit trust between the donors and the network. (Id. ¶ 34.)
B. Statutory and Regulatory History In March of 2010, Congress passed the ACA. See Patient Protection and Affordable
4

Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010); Health Care and Education
Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (amending the ACA).
Section 1001 of the ACA added section 2713 to the Public Health Service Act (“PHSA”).
See 42 U.S.C. § 300gg-13. Section 2713, in response to the American public’s use of
preventive health care services at approximately half the recommended rate, (see doc. 29-1
at 10), requires, in part, the inclusion of certain preventative care measures in health care
plans:
group health plan[s]3 and [] health insurance issuer[s] offering group or individual health insurance coverage shall . . . provide coverage [without] any cost sharing requirements for–
(1) 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; [and]
. . . .
(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.
42 U.S.C. § 300gg–13(a)(1), (4).
Through section 2713 of the PHSA, Congress intended to increase the public’s access
3 A group health plan includes a plan maintained by an employer that provides medical care to employees. See 42 U.S.C. § 300gg-91(a)(1). Group health plans may be insured (i.e., underwritten through an insurance contract) or self-insured (i.e., funded directly by the employer). The ACA does not require employers to provide health coverage for their employees, but, beginning in 2014, some large employers may be required to make payments if they fail to provide insurance. See 26 U.S.C. § 4980H(a)-(d).
5

to and use of recommended preventive services. See Interim Final Rules Relating to Coverage of Preventive Services Under the ACA, 75 Fed. Reg. 41,726, 41,729 (July 19, 2010). As demonstrated above, the Affordable Care Act gives the Health Resources and Services Administration (“HRSA”)—a division of defendant Department of Health and Human Services (“HHS”)—the authority to develop guidelines determining the recommended preventive services. See 42 U.S.C. § 300gg–13(a)(4). Because no HRSA guidelines relating to preventive care and screening for women existed when the ACA was passed, HHS commissioned the Institute of Medicine (“IOM”) to recommend a set of comprehensive guidelines. (See doc. 13 ¶ 60); Women’s Preventive Services: Required Health Plan Coverage Guidelines, HRSA, http://www.hrsa.gov/womensguidelines/ (last visited Mar. 21, 2013) [hereinafter Preventive Services Guidelines].
On July 19, 2010, defendants promulgated interim final rules that implemented section 2713 of the PHSA. See 75 Fed. Reg. at 41,726, 41,728. In relevant part, the interim final rules require group health plans or health insurance issuers to provide coverage for newly recommended preventive services, without cost-sharing, for plan years (or policy years) that begin “on or after the date that is one year after the date the [new] recommendation or guideline is issued.” 26 C.F.R. § 54.9815-2713T(b)(1); 29 C.F.R. § 2590.715-2713(b)(1); 45 C.F.R. § 147.130(b)(1). In other words, plans must comply with the new recommendations for preventive services starting with the plan year that begins on or after the one year anniversary of the issuance of the new recommendations. However, the interim
6

final rules further specify that these requirements do not apply to “grandfathered health plans.” 75 Fed. Reg. at 41,729. Grandfathered plans are those “in which an individual was enrolled on March 23, 2010” that also comply with certain additional regulations. See 26 C.F.R. § 54.9815-1251T(a); 29 C.F.R. 2590.715-1251(a); 45 C.F.R. § 147.140(a). However, a plan may lose its grandfathered status if it undergoes one or more of the changes set forth in 45 C.F.R. § 147.140(g)(1) after March 23, 2010. See also 26 C.F.R. § 54.98151251T(g)(1); 29 C.F.R. § 2590.715-1251(g)(1). The parties agree that EWTN has alleged that its plan is not eligible for grandfather status.4
On July 19, 2011, one year after the interim final rules were first issued, IOM published its report, which included the preventative services guidelines. (See doc. 13 ¶ 63); Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011), available at http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-forWomen-Closing-the-Gaps.aspx . The report recommends that the HRSA guidelines include, among other services, well-woman visits, breastfeeding support, domestic violence screenings, id. at 110, 117, 123, and, most relevant in this case, “the full range of [FDA]approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 109-10. FDA-approved contraceptive methods include intrauterine devices, oral contraceptive pills, emergency
4 Initially, defendants contended that EWTN had not pled sufficient facts to show its plan fell outside the grandfather provision. However, in their Reply, defendants concede that EWTN does not provide a grandfathered plan. (Doc. 36 at 3 n.1.)
7

contraceptives, and diaphragms. (See doc. 13 ¶ 64); FDA, Birth Control Guide, available at http://www.fda.gov/ForConsumers/ByAudience/ForWomen/ucm118465.htm (last visited March 21, 2012).
On August 1, 2011, HHS adopted IOM’s recommendations in full by issuing an amendment to the interim final rules. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621, 46,625 (Aug. 3, 2011); Preventive Services Guidelines, supra (“HRSA is supporting the IOM’s recommendations on preventive services that address health needs specific to women and fill gaps in existing guidelines.”). The amended rule lists an effective date of August 1, 2011, and also states that “[t]hese interim final regulations generally apply to group health plans and group health insurance issuers on August 1, 2011.” 76 Fed. Reg. at 46,621. Under the requirements discussed earlier, this means that group health plans and health insurance issuers were required to provide coverage for the newly recommended services as of August 1, 2012, one year from when they were added to the guidelines. See 42 U.S.C. § 300gg-13(b)(1), (2); 76 Fed. Reg. at 46,623, 46,624.
However, the interim final rules, as amended (“the amended interim final rules” or “the Mandate”), also contain an exception for group health plans sponsored by religious employers, releasing those employers from any requirement to cover contraceptive services under the HRSA guidelines.5 76 Fed. Reg. at 46,623, 46,626; 45 C.F.R. §
5 The exception became effective on August 3, 2011. See 45 C.F.R. § 147.130. 8

147.130(a)(1)(iv)(A); see also Preventive Services Guidelines, supra (“[P]lans sponsored by certain religious employers . . . are exempt from the requirement to cover contraceptive services.”). In order to qualify for the religious employer exemption outlined in the Mandate, an employer must meet each of the following four criteria:
(1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (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. 45 C.F.R. § 147.130(a)(1)(iv)(B). EWTN asserts in its Amended Complaint that it is reasonably certain that it does not qualify for the exemption. (See doc. 13 ¶ 75, 78-83, 186; doc. 33 at 14.)6 Accordingly, under the Mandate, providers of non-exempt and nongrandfathered health care plans, like EWTN, are required to provide coverage for recommended contraceptive services, without cost sharing, for plan years beginning on or after August 1, 2012. See id. § 147.130(a)-(d). Defendants solicited comments on the Mandate and specifically requested feedback
6 Specifically, based on the facts that EWTN alleges, it appears that it does not qualify under any part of the four-part exemption. (See doc. 13 ¶ 75, 78-83.) Defendants agree that EWTN is not exempt under this provision. (See doc. 36 at 10.)
9

on the definition of religious employer.7 76 Fed. Reg. at 46,623 (“We will be accepting
comments on this definition as well as alternative definitions . . . .”). After considering the
comments received, on February 15, 2012, defendants adopted as final the definition of
religious employer that was originally contained within the amended interim final rules,
stating that the religious employer exemption was finalized “without change.” Group Health
Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the
Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8725, 8729, 8730 (Feb. 15,
2012). This finalized version of the Mandate read as follows:
Section 2712 of the PHS[A], as added by the [ACA,] . . . , requires that non-grandfathered group health plans and health insurance issuers offering group or individual health insurance coverage provide benefits for certain preventive health services without the imposition of cost sharing. These preventive health services include, with respect to women, preventive care and screening provided for in the comprehensive guidelines supported by [HRSA] that were issued on August 1, 2011 (HRSA Guidelines). As relevant here, the HRSA Guidelines require coverage, without cost sharing, for “[a]ll Food and Drug Administration . . . approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a provider. Except as discussed below, non-grandfathered group health plans and health insurance issuers are required to provide
7 Comments were solicited after the Mandate had been implemented (as opposed to before, in accordance with the Administrative Procedure Act’s notice and comment requirements) based on authority to “promulgate any interim final rules as . . . appropriate” under section 9833 of the Internal Revenue Code, section 734 of ERISA, and section 2792 of the PHSA. See 76 Fed. Reg. at 46,624. However, among its other claims, EWTN also challenges the issuance of the Mandate without proper notice and comment under the Administrative Procedure Act. (Doc. 13 ¶¶ 10, 65, 179-83.)
10

coverage consistent with the HRSA Guidelines, without cost sharing, in plan years (or, in the individual market, policy years) beginning on or after August 1, 2012. . . . Id. at 8725-26 (footnotes omitted). Importantly however, the finalized rules also provide a “temporary enforcement safe harbor” (“safe harbor”) from enforcement of the Mandate for non-exempt employers with religious objections to covering contraceptive services. Id. at 8727. The safe harbor was implemented in response to the many comments defendants received on the religious employer exemption as defined in the amended interim final rules. Id. at 8726-27. Defendants explained that during the operation of the safe harbor, they would “plan to develop and propose changes to the[] final regulations” in order to meet two goals: “providing contraceptive coverage without cost-sharing . . . and accommodating nonexempted, non-profit organizations’ religious objections to covering contraceptive services . . . .” Id. at 8727. They further stated that they would “work with stakeholders to propose and finalize this policy before the end of the temporary enforcement safe harbor.” Id. at 8728-29. On February 10, 2012, prior to the issuance of the final rule on February 15, 2012, HHS issued a guidance describing the safe harbor and stating that defendants would wait an additional year before enforcing the Mandate against certain non-exempt religious organizations.8 (See doc. 13 ¶ 87, ¶ 87 n.2); HHS, Guidance on the Temporary Enforcement
8 However, this was not the first time that defendants had publicly discussed the possibility of a safe harbor going into effect. On January 20, 2012, defendant Sebelius
11

Safe Harbor, 3 (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/
02102012/20120210-Preventive-Services-Bulletin.pdf. In other words, the safe harbor will
operate until the first plan year that begins on or after August 1, 2013. Id.
In order to qualify for the safe harbor, an employer must meet all of the following four
criteria:
(1) The organization is organized and operates as a non-profit entity.
(2) From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization.
(3) As detailed below, the group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) must provide to participants the attached notice, as described below, which states that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012.
(4) The organization self-certifies that it satisfies criteria 1-3 above, and documents its self-certification in accordance with the procedures detailed herein.
referenced the safe harbor in a statement on behalf of the HHS. (See doc. 13 ¶ 85); A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, HHS.gov (Jan. 20, 2012), http://www.hhs.gov/news/press/2012pres/01/20120120a.html [hereinafter Statement by Sebelius]. She explained that the additional time would allow employers “more time and flexibility to adapt,” and that the HHS would “continue to work closely with religious groups during th[e] transitional period to discuss their concerns.” Statement by Sebelius, supra.
12

Id. Consequently, if a noncomplying employer does not fall under either the provision above or the religious exemption, and it does not qualify as grandfathered, it will face large fines. See 26 U.S.C. § 4980H(a); id. § 4980H(c)(1). Specifically, the fines are set to be approximately $2,000 per year per employee, see 26 U.S.C. § 4980H(c)(1), though the number of individual employees will be reduced by thirty for the purposes of calculating the fines each month, see 26 U.S.C. 4980H(c)(2)(D)(i)(I).
In accordance with their statements in the finalized Mandate, on March 16, 2012, defendants issued an advance notice of proposed rulemaking (“ANPRM”). See Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (March 21, 2012); (doc. 13 ¶ 90). The ANPRM sought to address alternatives for providing women access to contraceptive services without cost-sharing and for accommodating religious organizations’ religious liberty interests. Id. at 16,501-03. The purpose of the ANRPM was to give “an early opportunity for any interested stakeholder to provide advice and input into the policy development relating to the accommodation to be made” in the forthcoming amendments to the regulations. Id. at 16,503. It purported to adhere to essentially the same two goals that were set forth in the February 15, 2012 final rule: (1) maintaining “the provision of contraceptive coverage without cost sharing to individuals who receive coverage through non-exempt, non-profit religious organizations with religious objections to contraceptive coverage in the simplest way possible”; and (2) protecting “such religious organizations from
13

having to contract, arrange, or pay for contraceptive coverage.” Id. It therefore suggested that health insurance issuers offer health insurance coverage without contraceptive coverage to religious organizations that object to it on religious grounds and simultaneously offer contraceptive coverage directly to the organization’s plan participants at no charge. Id. at 16,505. It also offered ideas and solicited comments on how to accommodate religious organizations that sponsor self-insured group health plans for their employees. Id. at 16,503, 16,505-07. Finally, defendants stated in the ANPRM that they intended “to finalize these amendments to the final regulations such that they are effective by the end of the temporary enforcement safe harbor.” Id. at 16,503.
After a comment period for the ANPRM, defendants issued a Notice of Proposed Rulemaking (“NPRM”) on February 1, 2013. See Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 8456 (Feb. 6, 2013); (doc 75 at 1). As the “next step in the process,” 78 Fed. Reg. at 8458, the NPRM proposes changes to the finalized Mandate and requests comments on its suggestions, which may be submitted until April 8, 2013, see id. at 8457. It states that its goal is two-fold: First, to amend the religious employer exemption in order to keep an employer from being ineligible solely because its “purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths,” and second, to “establish accommodations for health coverage [through] . . . eligible organizations . . . with religious objections to contraceptive
14

coverage.” Id. at 8459. Among other proposals, the NPRM suggests changing the religious employer exemption “by eliminating the first three prongs of the definition and clarifying the application of the fourth . . . . [so that] . . . an employer that is . . . a nonprofit entity and referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code would be considered a religious employer . . . .” Id. at 8468-69. Additionally, consistent with defendants’ statements in the ANPRM, the NPRM also maintains that they “intend to finalize all . . . proposed amendments before the end of the temporary enforcement safe harbor.” Id. at 8459.
C. Procedural History On February 9, 2012, EWTN filed a Complaint in this court which it amended on March 21, 2012. (See doc. 1; doc. 13.)9 The Amended Complaint alleges numerous actual and imminent effects the Mandate imposes on EWTN, including: being forced “to provide coverage for contraception, sterilization, abortion, and related education and counseling against its conscience in a manner that is contrary to law,” (doc. 13 ¶ 94); being pressured and coerced into changing or violating its religious beliefs, (id. ¶ 95); being assessed substantial fines for refusing to change or violate its religious beliefs, (id. ¶ 96); being
9 In its Amended Complaint, EWTN has added only a few paragraphs, consisting primarily of factual developments since the case was first filed on February 9, 2012. (See doc. 13 ¶¶ 86-93, 115-17.) All twelve counts against defendants remain the same. (See id. ¶¶ 118-205.) EWTN’s Amended Complaint refers to both the amended interim final rules promulgated on August 1, 2011, and the version finalized on February 15, 2012, as “the Mandate.” (See id. ¶¶ 5, 65, 67, 89, 91, 93.)
15

burdened in employee recruitment by creating uncertainty as to whether EWTN will be able to offer health insurance beyond a date certain in the future, (id. ¶ 97); being forced to provide emergency contraception free of charge, regardless of the ability of the insured persons to obtain emergency contraception from other sources, (id. ¶ 109); being forced to facilitate education and counseling concerning contraception, sterilization, and abortion that directly conflicts with EWTN’s religious beliefs and teachings, (id. ¶ 110); being forced to choose among violating its religious beliefs, incurring substantial fines, or terminating its employee health insurance coverage, (id. ¶ 112); and being forced to devote significant institutional resources to determine how to respond to the Mandate, (id. ¶ 114).
Based on these allegations, EWTN asserts twelve counts against defendants claiming that the Mandate violates the following: (1) the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et. seq., (“RFRA”) (id. ¶¶ 118-129); (2) the First Amendment’s Free Exercise Clause because the Mandate is neither neutral nor generally applicable, (id. ¶¶ 130144); (3) the First Amendment’s Free Exercise Clause because the Mandate intentionally discriminates, (id. ¶¶ 145-150); (4) the First Amendment’s Free Exercise Clause because the Mandate discriminates among religions, (id. ¶¶ 151-155); (5) the First Amendment’s Establishment Clause because the Mandate prefers certain denominations over others, (id. ¶¶ 156-160); (6) the First Amendment because the Mandate compels speech, (id. ¶¶ 161167); (7) the First Amendment’s guarantee of freedom of speech by expressive association,
16

(id. ¶¶ 168-173); (8) the First Amendment’s Free Exercise Clause and guarantee of the freedom of speech because the Mandate allows for unbridled discretion, (id. ¶¶ 174-178); (9) the Administrative Procedure Act, 5 U.S.C. § 500 et seq., due to lack of good cause, (id. ¶¶ 179-183); (10) the Administrative Procedure Act, 5 U.S.C. § 500 et seq., due to arbitrary and capricious action, (id. ¶¶ 184-188); (11) the Administrative Procedure Act, 5 U.S.C. § 500 et seq., for agency action not in accordance with the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, RFRA, and the First Amendment, (id. ¶¶ 189-196); and (12) the Administrative Procedure Act, 5 U.S.C. § 500 et seq., for agency action not in accordance with the ACA, (id. ¶¶ 197-205).
On May 4, 2012, defendants filed a Motion to Dismiss EWTN’s Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), (doc. 29), and Memorandum in Support, (doc. 29-1). Broadly, defendants argue that the case should be dismissed because (1) EWTN lacks standing and (2) the case is not ripe. (See doc. 29-1 at 20, 26.) Specifically, defendants contend that EWTN lacks standing because it has not “alleged a concrete and imminent injury resulting from the operation of [the Mandate].” (Doc. 29-1 at 20.) Defendants also argue that the case is not fit for judicial review, and therefore not ripe, because issuance of the ANPRM shows that the regulatory scheme has not taken final shape. (Id. at 26-33.)10
10 After defendants filed their Motion to Dismiss on May 4, 2012, and while the Motion was still pending before the court, the NPRM was issued. See generally 78 Fed. Reg. 8456.
17

EWTN counters that it has standing because (1) it alleges both actual and imminent
injuries; (2) its plan is not eligible for grandfather status, making the Mandate directly
applicable to its group health plan; (3) the safe harbor does not make its injury non-imminent;
(4) the ANPRM does not make its current harm speculative; and (5) the ANPRM’s proposed
plans will not alleviate its injuries. (Doc. 33 at 14-24).11 Additionally, EWTN argues that
its claims are presumptively ripe because “they involve facial challenges to the mandate’s
constitutionality that require no factual development.” (Id. at 25 (citation omitted).) EWTN
further claims that without judicial review, it would face imminent hardship by operation of
the Mandate. (Id. at 30.)
In their Reply, defendants counter that “[b]ecause [they] are amending the challenged
regulations to address concerns raised by [EWTN], and [EWTN] has not shown that it will
Defendants have diligently kept the court apprised of their position in light of new developments throughout the course of this case. Accordingly, in regards to the NPRM, defendants argue that “[w]hile defendants’ prior assurances and concrete steps toward accommodating employers like plaintiff – the ANPRM, the enforcement safe harbor, and the government’s repeated statements committing to the timely establishment of the new accommodations – are sufficient by themselves to establish that plaintiff lacks standing and its claims are not ripe for review, . . . the NPRM further buttresses defendants’ promise that they will never enforce the current version of the challenged regulations against plaintiff, further demonstrates concrete action to change those regulations, and further undermines plaintiff’s unfounded suggestions that the government will not follow through on its commitment.” (Doc. 74 at 3 (citations omitted).)
11 Like defendants, EWTN has also consistently updated the court on its position. In one of its many helpful supplemental notices to the court, EWTN asserts that the NPRM’s proposed change to the religious employer exemption confirms that EWTN will not be exempt from the requirements of the final Mandate. (See doc. 75 at 3.) It further argues that the NPRM has no effect on its standing or ripeness, and that it does nothing to alleviate the violation of EWTN’s religious beliefs. (Id. at 1-5.)
18

suffer hardship during this amendment process, [EWTN]’s challenge is not ripe.” (Doc. 36 at 14.) Defendants further point out that not only is there a lengthy delay before they will enforce the Mandate against EWTN, but they have also initiated the amendment process in which EWTN may participate. (Id. at 8.) According to defendants, these circumstances illustrate the absence of impending injury to EWTN. (Id.)
II. STANDARD OF REVIEW Parties invoking federal jurisdiction “bear[] the burden of establishing its existence.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998). Challenges to subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) take two forms: “[f]acial attacks” and “[f]actual attacks.” Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (per curiam). Facial attacks “require [] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Id. at 1529 (alteration in original) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). Factual attacks, alternatively, challenge “the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.” Id. (internal quotation marks and citation omitted). Given that defendants’ Motion to Dismiss questions whether EWTN sufficiently pled facts establishing subject matter jurisdiction, (see doc. 29-1 at 19), the standards regarding facial attacks apply in this
19

case.12 In a facial attack on subject matter jurisdiction, the nonmoving party “receives the
same protections as it would defending against a motion brought under [Federal Rule of Civil Procedure] 12(b)(6).” In re Sea Vessel, Inc., v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994) (quoting Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)) (internal quotation marks omitted). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Furthermore, “[t]he plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). And “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
Additionally, “the tenet that a court must accept as true all of the allegations contained
12 Though EWTN has attached exhibits to its Opposition, the court nevertheless considers this a facial attack because “[a]lthough a court may consider materials beyond the pleadings if the defendant has mounted a factual attack on subject-matter jurisdiction, there is no suggestion in this record that the defendant has done so . . . .” Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1286 n.8 (11th Cir. 2010). In addition, because this case involves matters that touch on administrative rules, guidance documents, government statements, and government studies, the court notes that it is permitted to consider matters of public record on a motion to dismiss. Universal Express, Inc. v. U.S. S.E.C., 177 F. App’x 52, 53-54 (11th Cir. 2006).
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in a complaint is inapplicable to legal conclusions,” id., because “[a] pleading that offers ‘labels and conclusion’ or ‘a formulaic recitation of the elements of a cause of action will not do,’” id. (quoting Twombly, 550 U.S. at 555). Moreover, “a complaint [will not] suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). In other words, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003) (citation omitted).
III. DISCUSSION Defendants argue that this court does not have jurisdiction to decide EWTN’s claims (1) because EWTN lacks standing and (2) because its claims are not ripe, since the regulation that it challenges is in the process of being amended. The court will address these arguments in turn. First, however, it is worth briefly discussing the numerous federal opinions that have already been issued considering these very arguments. A. Federal Cases Reviewing Challenges to the Mandate After the issuance of the Mandate, several lawsuits were filed in federal courts throughout the country by religious organizations challenging its enactment (in most cases, based on the same or similar grounds to EWTN in this case). To date, at least eighteen opinions directly on point—namely, those involving religious not-for-profit employers who would not qualify under the religious employer exemption as defined in the interim final
21

rules and later finalized—have been issued.13 See Wheaton Coll. v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012); Geneva Coll. v. Sebelius, 2:12-CV-00207, 2013 WL 838238 (W.D. Pa. Mar. 6, 2013); Roman Catholic Diocese of Dallas v. Sebelius, 3:12-CV-1589-B, 2013 WL 687080 (N.D. Tex. Feb. 26, 2013); Conlon v. Sebelius, 12-CV-3932, 2013 WL 500835 (N.D. Ill. Feb. 8, 2013); Roman Catholic Diocese of Fort Worth v. Sebelius, No. 4:12–CV–314–Y (N.D. Tex. Jan. 31, 2013); Archdiocese of St. Louis v. Sebelius, 4:12-CV-00924-JAR, 2013 WL 328926 (E.D. Mo. Jan. 29, 2013); Roman Catholic Archbishop of Washington v. Sebelius, CIV.A. 12-0815 ABJ, 2013 WL 285599 (D.D.C. Jan. 25, 2013); Persico v. Sebelius, 1:12-CV-123-SJM, 2013 WL 228200 (W.D. Pa. Jan. 22, 2013); Colorado Christian Univ. v. Sebelius, No. 11-CV-03350-CMA-BNB, 2013 WL 93188 (D. Colo. Jan. 7, 2013); Catholic Diocese of Peoria v. Sebelius, 12-1276, 2013 WL 74240 (C.D. Ill. Jan. 4, 2013); Univ. of Notre Dame v. Sebelius, 3:12CV253RLM, 2012 WL 6756332 (N.D. Ind. Dec. 31, 2012); Catholic Diocese of Biloxi, Inc. v. Sebelius, 1:12CV158-HSO-RHW, 2012 WL 6831407 (S.D. Miss. Dec. 20, 2012); Roman Catholic Archdiocese of New York v. Sebelius, 12 CIV. 2542 BMC, 2012 WL 6042864 (E.D.N.Y. Dec. 4, 2012); Zubik v. Sebelius, 2:12CV-00676, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012); Catholic Diocese of Nashville v.
13 In addition, several opinions in cases that are similar, but not completely factually analogous have been issued. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) (involving a for-profit corporation that could not qualify for the safe harbor); Legatus v. Sebelius, 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) (same); Tyndale House Publishers, Inc. v. Sebelius, CIV.A. 12-1635 RBW, 2012 WL 5817323 (D.D.C. Nov. 16, 2012) (same); Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012) (same).
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Sebelius, 3-12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012); Wheaton Coll. v. Sebelius, 887 F. Supp. 2d 102 (D.D.C. 2012) rev’d in part, 703 F.3d 551 (D.C. Cir. 2012); Belmont Abbey Coll. v. Sebelius, 878 F. Supp. 2d 25 (D.D.C. 2012) rev’d in part, 703 F.3d 551 (D.C. Cir. 2012); Nebraska ex rel. Bruning v. U.S. Dept. of Health & Human Services, 877 F. Supp. 2d 777 (D. Neb. 2012). Of these, only one has been a circuit court opinion. See Wheaton Coll., 703 F.3d at 551.
In Wheaton College v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012), the D.C. Circuit consolidated an expedited appeal from the United States District Court for the District of Columbia in two of the earliest decisions to emerge on this issue: Belmont Abbey College v. Sebelius, 878 F. Supp. 2d 25 (D.D.C. 2012) rev’d in part, 703 F.3d 551 (D.C. Cir. 2012), and Wheaton College v. Sebelius, 887 F. Supp. 2d 102 (D.D.C. 2012) rev’d in part, 703 F.3d 551 (D.C. Cir. 2012). These two cases, which were filed on November 10, 2011, see Belmont Abbey Coll., 878 F. Supp. at 29, and July 18, 2012, see Wheaton Coll., 887 F. Supp. 2d at 104, each held that the respective plaintiff lacked standing and that the suit was not ripe for review. See Belmont Abbey Coll., 878 F. Supp. at 29; Wheaton Coll., 887 F. Supp. 2d at 104. Many later opinions followed suit, adopting similar reasoning. See, e.g., Univ. of Notre Dame, 2012 WL 6756332, at *4; Zubik, 2:12-CV-00676, 2012 WL 5932977, at *10, *12; Catholic Diocese of Nashville, 2012 WL 5879796, at *4, *5. However, upon review of Wheaton College and Belmont Abbey, the D.C. Circuit held in a three-page per curiam Order that “[d]ismissal for lack of standing was erroneous because standing is assessed at the time
23

of filing, and the colleges clearly had standing when these suits were filed. The ripeness question is more difficult.” Wheaton Coll., 703 F.3d at 552 (citing Chamber of Commerce v. EPA, 642 F.3d 192, 200 (D.C. Cir. 2011)). The court then determined that the case was not ripe for review but decided to hold it in abeyance until the government issued a new rule. Id. at 552-53.
As a consequence of the D.C. Circuit’s opinion, many subsequent district court opinions chose to dismiss similar cases for lack of ripeness, but chose not to decide the question of standing. See, e.g., Roman Catholic Archbishop of Washington, 2013 WL 285599, at *4; Persico v. Sebelius, 1:12-CV-123-SJM, 2013 WL 228200, at *21; Colorado Christian Univ., 2013 WL 93188, at *9; Catholic Diocese of Peoria, 2013 WL 74240, at *45; Catholic Diocese of Biloxi, Inc., 2012 WL 6831407, at *6. Further, only two courts to this point have found both standing and ripeness present, allowing the cases in front of them to move forward, see Roman Catholic Diocese of Fort Worth, No. 4:12–CV–314–Y, at *12 (N.D. Tex. Jan. 31, 2013); Roman Catholic Archdiocese of New York v. Sebelius, 2012 WL 6042864, *15, *22-23. Finally, two of the most recent district court cases, much like the D.C. Circuit, have both found standing, but each has dismissed the case before it for lack of ripeness. See Geneva Coll. v. Sebelius, 2013 WL 838238, *12, *16; Roman Catholic Diocese of Dallas, 2013 WL 687080, *12, *17. These are the only two courts that have issued opinions since the NPRM was published on February 1, 2012.
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B. Standing Article III of the Constitution limits the power of the federal judiciary to the resolution of “Cases” and “Controversies.” U.S. Const. art. III. § 2, cl. 1; see also Allen v. Wright, 468 U.S. 737, 750 (1984) (discussing the case-or-controversy requirement). This limitation “defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.” Allen, 468 U.S. at 750. Standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation omitted). It “requires federal courts to satisfy themselves that ‘the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant [its] invocation of federal-court jurisdiction.’” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498-99 (1975)). In that vein, standing fundamentally focuses “on the party seeking to get his complaint before the federal court rather than ‘on the issues he wishes to have adjudicated.’” United States v. Richardson, 418 U.S. 166, 174 (1974) (quoting Flast v. Cohen, 392 U.S. 83, 99 (1968)). At its “irreducible constitutional minimum,” the doctrine requires a plaintiff to prove three elements: (1) a concrete and imminent injury-in-fact, (2) causal relationship between the injury and defendants’ challenged conduct, and (3) a likelihood that the injury suffered will be redressed by a favorable decision. See Lujan, 504 U.S. at 560-61; see also Allen, 468 U.S. at 751 (“A plaintiff must allege personal injury fairly traceable to the defendant’s
25

allegedly unlawful conduct and likely to be redressed by the requested relief.” (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982))). The injury in fact must also be “an invasion of a legally protected interest.” Lujan, 504 U.S. at 560 (citations omitted).
Particularly relevant to this case is the “injury-in-fact” element. A threat of injury “must be certainly impending to constitute injury in fact.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013)14 (emphasis in original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (internal quotation marks omitted); see also Koziara v. City of Casselberry, 392 F.3d 1302, 1306 (11th Cir. 2004) (requiring plaintiffs to show a “real and immediate threat of future injury” when seeking declaratory and injunctive relief). Though there is no precise definition, imminence requires that “the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all.” Lujan, 504 U.S. at 564 n.2 (citations omitted). However, “imminence is concededly a somewhat elastic concept, [and though] it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes,” Clapper, 133 S. Ct. at 1147 (quoting Lujan, 504 U.S. at 565), “one does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is
14 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013), a recent United States Supreme Court case pointed out by defendants in a Notice of Supplemental Authority, (see doc. 77), reiterates a point that the Court has repeatedly made regarding standing: namely, that “allegations of possible future injury” are not sufficient to confer standing. Clapper, 133 S. Ct. at 1147 (quoting Whitmore, 495 U.S. at 158).
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certainly impending, that is enough,” Babbitt v. UFW Nat’l Union, 442 U.S. 289, 298 (1979) (citations omitted).
Finally, standing and ripeness tend to overlap significantly in the context of preenforcement challenges to laws and regulations. See ACLU v. Fla. Bar, 999 F.2d 1486, 1490 (11th Cir. 1993). Although the overlap often causes the issues to merge, the court “discuss[es] standing and ripeness separately.” Elend v. Basham, 471 F.3d 1199, 1205 (11th Cir. 2006). This is because, despite the overlap, there are differences between the doctrines. One crucial difference between ripeness and standing is that “the standing inquiry remains focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (emphasis added) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000); Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)); see also Am. Civil Liberties Union of Fla., Inc. v. Dixie Cnty., Fla., 690 F.3d 1244, 1257 n.5 (11th Cir. 2012) (“For jurisdiction, standing had to exist when the suit was filed (not arise later). . . . It is not enough for Plaintiff to try to establish, in terms of shifting reality, the requirements of standing as the case progresses through the federal courts.” (internal citation omitted)).15
15 Quite different from standing, which a party always possesses once it is established, “ripeness can be affected by events occurring after the case is filed,” Yacht Club on the Intracoastal Condo. Ass’n v. Lexington Ins. Co., 11-15683, 2013 WL 598389, *3 (11th Cir. Feb. 15, 2013), and thus may be gained or lost throughout a case.
27

Defendants contend that EWTN cannot pass the first hurdle in the standing analysis—specifically, defendants do not believe that EWTN has suffered a concrete and imminent injury-in-fact. To satisfy this first prong, EWTN must establish that it will suffer “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted). A threatened injury must be “certainly impending” to confer standing; harm that is possible or even likely will not suffice. Whitmore, 495 U.S. at 158 (internal quotation marks and citations omitted).
While defendants make good points, as the D.C. Circuit noted in Wheaton College, “standing is assessed at the time of filing.” 703 F.3d at 552. Here, EWTN originally filed suit on February 9, 2012. (See doc. 1.) At that time, there can be no question that EWTN had standing: only the amended interim final rules, which were clearly binding and imposed concrete future obligations on EWTN, had at that point been issued. See 76 Fed. Reg. at 46,625, 46,626 (discussing the “binding comprehensive health plan coverage guidelines” (emphasis added)); see also Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1020 (D.C. Cir. 2000) (explaining that legislative rules “have the force and effect of law”); Humane Soc. of U.S. v. Johanns, 520 F. Supp. 2d 8, 30 (D.D.C. 2007) (treating interim final rule as binding because it “create[d] an entirely new regulatory structure” and vacating it on that basis). Thus, the question of standing at the time that the original Complaint was filed is a simple one to answer. Because the amended interim final rules, as the law in effect at the time, were
28

“certainly impending” Clapper, 133 S.Ct. at 1147, EWTN had a “real and immediate threat
of future injury,” Koziara, 392 F.3d at 1306, and therefore had standing. See Geneva Coll.,
2013 WL 838238, at *11 (“The subsequent events and assurances upon which defendants
heavily rely . . . do not remove Geneva’s standing as measured at the time this case was filed
in February 2012.”); Wheaton Coll., 703 F.3d at 552 (holding Belmont Abbey College had
standing at the time the complaint was filed on November 10, 2011, when amended interim
final rules were in place, but the safe harbor and ANPRM had yet to be issued).
However, defendants argue that the Amended Complaint, (doc. 13), which was filed
on March 21, 2012—after the safe harbor and ANPRM were issued—is the operative
Complaint for the purposes of assessing standing. (See doc. 36 at 7; doc. 64 at 3.) Though
it presents a more difficult question, even if the Amended Complaint operates as the relevant
Complaint, the court again finds that as of the time it was filed, EWTN had standing.16 See
16 The court notes, however, that it is not entirely convinced that the time the Amended Complaint was filed is the operative date for purposes of standing. Though defendants observe that “[w]hen a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction,” (doc. 36 at 7 (quoting Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473-74 (2007)), that case involved a situation where the original complaint had made allegations sufficient to confer jurisdiction and was later amended, replacing those allegations with ones that were insufficient to confer jurisdiction. Rockwell Int’l Corp., 549 U.S. at 463-76. And though the allegations in the second complaint controlled, the court reiterated that subject-matter jurisdiction depends on the actual state of things at the time the action is brought. Id. at 473. Moreover, as noted earlier, here, EWTN’s Amended Complaint only adds a few paragraphs to its Complaint; the twelve original claims remain the same. (See doc. 13 ¶¶ 86-93, 115-17, 118-205.) Certainly, were EWTN to add new claims, standing for those claims would be assessed as of March 21, 2012. But EWTN adds only a few new facts based upon later developments in this case. And while adding laterdeveloped facts could also be potentially problematic because standing depends on the “state of things” when the complaint is filed, Rockwell Int’l Corp., 549 U.S. at 473, here, the court
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Wheaton Coll., 703 F.3d at 552 (holding Wheaton College had standing at the time the
complaint was filed on July 18, 2012). To find otherwise would be to find that the
development of the finalized Mandate and the issuance of the ANPRM essentially mooted
the challenge to the amended interim final rules that EWTN originally brought, which it does
not. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189-
92 (2000) (discussing the interaction between standing and mootness).17
Assuming that the date the Amended Complaint was filed is the operative date,
defendants point to two elements of the regulatory history of this case to contend that EWTN
lacks standing: the safe harbor and the ANPRM. (See doc. 29-1 at 8-9, 23-26; doc. 36 at 3-
8.) The court will discuss below why neither of these developments operate to prevent
considers the amended interim final rules and the finalized Mandate—the development of which EWTN has added to its Amended Complaint—to be, in substance, the same rule. As such, the Amended Complaint would relate back to the date of filing the original Complaint: February 9, 2012. See Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1275-76 (11th Cir. 2003) (discussing at length how standing is determined at the time the complaint is filed, and noting that because the second complaint contained the same allegations as original complaint, it related back under Federal Rule of Civil Procedure 15(c)(2) for standing purposes); see also Geneva Coll., 2013 WL 838238, at *11-12 (using original complaint filed in February 2012, as opposed to amended complaint, for purposes of assessing standing).
17 The court realizes that Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167 (2000), discusses how the Supreme Court’s prior statements that “mootness [i]s ‘standing set in a time frame’” were not comprehensive. Id. at 190. The Supreme Court noted that there might be certain instances where a case is not yet moot, but it would be too speculative to confer standing. Id. However, there is still significant overlap between the two doctrines, and while the ANPRM’s existence at the time of filing the Amended Complaint indicated that EWTN’s challenge might have someday become moot, it in no way approached satisfying the extremely high bar that mootness requires. See id. (explaining the “formidable burden” to show mootness). Thus, the court cannot say that when EWTN filed its Amended Complaint on March 21, 2012, its harms were too speculative to confer standing.
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EWTN’s standing at the time of filing its Amended Complaint. 1. The Safe Harbor Defendants argue that, under the safe harbor, they will not take action against any
qualifying organization until the first plan year that begins on or after August 1, 2013. (Doc. 29-1 at 23-24.) Given that EWTN’s plan year begins on July 1 each year, (doc. 13, ¶ 32), the Mandate would not be enforced against it until July 1, 2014. Defendants argue that “[w]ith such a long time before the inception of any possible injury and the challenged regulations undergoing amendment before then, plaintiff cannot satisfy the imminence requirement for standing . . . .” (Doc. 29-1 at 24.) EWTN acknowledges that it falls within the safe harbor. (See doc. 13 ¶ 93). Notwithstanding application of the safe harbor, EWTN argues that “[w]here the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant . . . that there will be a time delay before the disputed provisions will come into effect.” (Doc. 33 at 16 (alterations in original) (quoting Reg’l Rail Reorg. Act Cases, 419 U.S. 102, 143 (1974)) (internal quotation marks omitted).) EWTN additionally cites New York v. United States, 505 U.S. 144 (1992), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), to show that the Supreme Court has held enforcement delays varying from three to six years insufficient to deny a plaintiff’s standing. (Doc. 33 at 17.)
The court finds that the law favors EWTN. The safe harbor will end on a definite date. At that point, the Mandate will take effect against non-grandfathered and non-exempt organizations’ group health plans absent a change in the regulatory scheme. Moreover, the
31

time delay will be approximately two years, a relatively short period of time in the context
of Supreme Court jurisprudence regarding standing. See New York, 505 U.S. at 153-54, 174-
75 (three-year delay); Pierce, 268 U.S. at 530-36 (1925) (several year delay). Tellingly,
defendants impliedly concede this point, citing to Eleventh Circuit precedent and
acknowledging that “the mere passage of time alone may not defeat standing.” (Doc. 29-1
at 24 (citing Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008)).)
And, as EWTN correctly points out, (doc. 33 at 18), as a general rule, policies of non-
enforcement do not deprive a plaintiff of standing. See Va. Soc’y for Human Life, Inc. v.
Fed. Election Comm’n, 263 F.3d 379, 388 (4th Cir. 2001) (holding that a non-enforcement
policy “not contained in a final rule . . . . [and] not carry[ing] the binding force of law”
cannot defeat standing). Accordingly, the court finds that the safe harbor, by itself, does not
defeat EWTN’s standing. Given this finding, the court need not address the parties’
conflicting interpretations of Fla. ex. rel. Att’y Gen. v. HHS, 648 F.3d 1235 (11th Cir. 2011).18
18 EWTN cites Fla. ex. rel. McCollum, 716 F. Supp. 2d 1120, 1145-46 (N.D. Fla. 2010), to support its argument that the two-year gap between filing its Complaint and enforcement of the Mandate does not destroy standing. (Doc. 33 at 17.) Defendants argue that EWTN impliedly contends that, because the defendants in McCollum conceded standing upon appeal to the Eleventh Circuit, Fla. Ex rel. Att’y Gen., 648 F.3d at 1243, the defendants in this case—who significantly overlap with the defendants in that case—should be forestalled from challenging standing. (Doc. 36 at 4, 4 n.4.) Defendants are right to point out that such non-mutual offensive collateral estoppel does not apply against the government. See United States v. Mendoza, 464 U.S. 154, 162 (1984); (doc. 36 at 4, 4 n.4.) However, the court does not necessarily agree that EWTN cited to McCollum for that purpose. Rather, the court sees EWTN’s citation as additional support for the proposition that a two-year enforcement gap does not defeat standing.
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2. The ANPRM
Just as the safe harbor does not prevent an actual and imminent injury to EWTN,
neither does the ANPRM. Defendants’ argument regarding the ANPRM is based on
Eleventh Circuit and Supreme Court precedent “requir[ing] that ‘the injury proceed with a
high degree of immediacy, so as to reduce the possibility of deciding a case in which no
injury would have occurred at all.’” Alabama-Tombigbee Rivers Coal. v. Norton, 338 F.3d
1244, 1253 (11th Cir. 2003) (quoting Lujan, 504 U.S. at 564 n.2). Specifically, defendants
contend that by operation of the ANPRM, EWTN will not endure injury as a result of the
Mandate:
In light of the forthcoming amendments, and the opportunity the rulemaking process provides for [EWTN] to help shape those amendments, there is no basis to conclude that [EWTN] will be, or is likely to be, required to sponsor a health plan that covers contraceptive services in contravention of its religious beliefs once the . . . safe harbor expires.
(Doc. 29-1 at 25-26.) EWTN counters that defendants’ arguments actually address mootness
and, under that guise, fail. (Doc. 33 at 19-20.) It further argues that because defendants have
not amended the Mandate, but have only offered “statements of future . . . intentions,” the
current Mandate’s impending harm is not speculative. (Id. at 18, 20.) Finally, EWTN
contends that even if the ANPRM were implemented exactly as planned, it still would not
Regardless, the court in no way permits non-mutual offensive collateral estoppel against defendants based on McCollum, nor does it find it necessary to consider its holding regarding the two-year delay, given that EWTN has presented ample authority to prove its point without the support of McCollum.
33

alleviate its injuries. (Id. at 22-23.) The court agrees with EWTN that the ANPRM does not operate to undermine its injury in fact.
Even using the Amended Complaint, (doc. 13), as the operative complaint for purposes of measuring standing, the court finds that as of March 21, 2012, EWTN possessed standing to file suit. As discussed earlier, standing is measured at the time of filing. See Davis, 554 U.S. at 734. Thus, it is at this moment in time that the standing requirement operates, attempting to avoid the issuance of what amounts to an advisory opinion. See United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947) (stating that federal courts do not issue advisory opinions on abstract issues). Here, though defendants assert that the ANPRM creates a case in which there is “no basis to conclude” that EWTN will be injured, so that there is no case or controversy, the court disagrees. At the time of filing, “the mandate [wa]s the current law, notwithstanding defendants’ assurances that its requirements will eventually be changed.” Geneva Coll., 2013 WL 838238, at *11. As the law in effect at the time of filing, it had a direct and immediate impact upon EWTN, regardless of the safe harbor or the fact that a new rulemaking process had been initiated.
It is true that the ANPRM launched an amendment process to the Mandate. See generally 77 Fed. Reg. at 16,501-08. The name itself—advance notice of proposed rulemaking—illustrates this fact. However, nowhere in the ANPRM did defendants “promise” that a change would absolutely, unequivocally take place. See id. Though the ANPRM repeatedly refers to the agencies’ “intention” to amend the rules, there was no
34

concrete assurance at the time EWTN had filed suit that the rules would not bind it or that
they would “never be enforced in their present form by defendants against [EWTN].” (Doc.
61 at 6.); see also. 77 Fed. Reg. at 16,501 (“This advance notice of proposed rulemaking
announces the intention of the [agencies] to propose amendments to [the] regulations . . . .”
(emphasis added)); id. at 16,503 (“The Departments intend to finalize these amendments to
the final regulations such that they are effective by the end of the temporary enforcement safe
harbor . . . .” (emphasis added)).19 Accordingly, the court agrees with EWTN that
defendants’ argument “ultimately amounts to a prediction that the unforeseeable results of
a speculative proposed rulemaking might, sometime in the future, remove EWTN’s injury
. . . . [but] cannot change the fact that EWTN faces the real prospect of harm from a concrete
regulatory mandate . . . .” (Doc. 33 at 23.)20
19 Defendants acknowledge this at one point by stating that “[t]he ANPRM published in the Federal Register confirms defendants’ stated intention to propose amendments to the preventive services coverage regulations that accommodate the concerns of religious organizations . . . .” (Doc. 29-1 at 25 (emphasis added).) However, in other places defendants overstate their initial intent to make changes by declaring that through the ANPRM they had “promis[ed] imminent regulatory amendments,” (id. at 24), had “promised new regulations” (id. at 26), had “done more than merely promise a future rulemaking,” (doc. 36 at 4 n.3), had made a “commitment . . . to amend the regulations,” (id. at 8). It was only later, in Defendants’ Response to Plaintiff’s Third Notice of Supplemental Authority, that defendants outright declared that “defendants will never enforce the regulations in their current form against . . . plaintiff,” (doc. 61 at 3 (emphasis in original)), rather than simply framing their past statements of intention as promises. Accordingly, at the time EWTN filed suit, no “promises” had been made.
20 To support this assertion, EWTN cites to Thomas More Law Ctr. v. Obama, 651 F.3d 529, 536 (6th Cir. 2011), rev’d on other grounds, Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), for the proposition that “[i]mminence is a function of probability” and that the ANPRM and its effects are far too speculative to defeat standing. (Doc. 33 at 24.) Further, to
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In a recent decision from the District Court for the Northern District of Texas, Roman
Catholic Diocese of Dallas v. Sebelius, 3:12-CV-1589-B, 2013 WL 687080 (N.D. Tex. Feb.
26, 2013), the court addressed the exact issues before this court based on a lawsuit that was
filed on May 21, 2012, after the issuance of the safe harbor and the ANPRM. See id. at *5.
The court held that the plaintiff, a nonprofit charitable organization existing under the Code
of Canon Law of the Roman Catholic Church, had demonstrated standing at the time the suit
was filed. Id. at *11-12. It reasoned that
publication of the ANPRM is insufficient to undermine the imminence of Plaintiff’s alleged injuries. The ANPRM merely states that the government expects to address concerns similar to those raised by Plaintiff and solicits comment on the same. 77 Fed. Reg. 16,501. The ANPRM is not a proposed amendment and does not proffer contents or substance of a proposed amendment. There is no concrete evidence to indicate that the government is reversing its course. See API v. EPA, 683 F.3d 382, 388 (D.C. Cir. 2012). Although the Court cannot say that every ANPRM would be insufficient to indicate a shift in administrative policy, the ANPRM relevant to this case provides no specifics to quash Plaintiff’s fear of enforcement or to disprove the imminence of Plaintiff’s injury upon enforcement of the current, final regulations.
Id. at *9. A similar rationale was set forth in Roman Catholic Archdiocese of New York v.
Sebelius, 12 CIV. 2542 BMC, 2012 WL 6042864 (E.D.N.Y. Dec. 4, 2012), where the court
demonstrate that the ANPRM shows mere intent to amend the Mandate, EWTN cites to American Petroleum Institute v. EPA, 906 F.2d 729, 739-40 (D.C. Cir. 1990), which observes that “an agency always retains the power to revise a final rule . . . . [and i]f the possibility of unforseen amendments were sufficient to [destroy justiciability], review could be deferred indefinitely.” (Id. at 20.) Finally, EWTN cites American Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1031 n.1 (D.C. Cir. 2008) (per curiam), to similarly show that “agencies cannot avoid judicial review . . . merely because they have opened another docket that may address some related matters.” (Id.) As discussed above, the court finds EWTN’s arguments on this matter persuasive.
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stated
the ANPRM is not a formally announced change[ ] to official government policy. Despite defendants’ attempt to characterize the ANPRM as a binding promise not to enforce the Coverage Mandate, the fact is that the ANPRM does not prevent the Coverage Mandate, as it currently exists, from going into effect. It is not a change in policy; it merely seeks input to allow the Departments to consider possible revisions to the Coverage Mandate. The Departments need not make any changes to the Coverage Mandate to accommodate religious groups at all.
In this light, the Court finds that plaintiffs’ claimed future injuries are certainly impending. The law as it currently [is] written requires that, beginning January 1, 2014, plaintiffs must either pay onerous fines or provide contraceptive coverage in violation of their beliefs. The Departments may alter the Coverage Mandate before that time, but the possibility of a change in the law does not mean that a requirement that will become effective by operation of law is not certainly impending. Thus, plaintiffs’ future injuries are sufficiently imminent to constitute injuries in fact.
Id. at *15 (internal quotation marks and citations omitted). The court agrees with the
rationale of both Roman Catholic Diocese of Dallas and Roman Catholic Archdiocese of
New York. Thus, even if the court were to assess standing as of the time of EWTN’s
Amended Complaint, (doc. 13), the safe harbor and the ANPRM do not operate to make
EWTN’s injuries at the time of filing any less concrete or imminent. Accordingly, the court
finds that EWTN has standing to challenge the Mandate.21
21 It is worth noting that because the NPRM was issued after both EWTN’s original Complaint, (doc. 1), and Amended Complaint, (doc. 13), it “has no bearing on whether [EWTN] adequately alleged its standing to sue,” Roman Catholic Diocese of Dallas, 2013 WL 687080, *11. Therefore, to the extent that defendants argue the issuance of the NPRM affects EWTN’s standing, (see doc. 74 at 3 (“[T]the NPRM further buttresses defendants’ promise that they will never enforce the current version of the challenged regulations against plaintiff, further demonstrates concrete action to change those regulations, and further undermines plaintiff’s
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C. Ripeness Apart from their standing argument, defendants argue that this court lacks jurisdiction to hear EWTN’s claims because the case is not ripe for review. (Doc. 29-1 at 26.) Specifically, defendants contend that the Mandate is in the process of being amended, and that therefore, there is “a significant chance that the amendments will alleviate altogether the need for judicial review, or at least narrow and refine the scope of any actual controversy to more manageable proportions.” (Id. at 29.) Thus, defendants claim that EWTN’s challenge is not fit for review. (Id. at 32.) Further, defendants argue that a delay in judicial review will not cause EWTN to suffer any hardship because an “alleged desire to plan for . . . contingencies” is not enough to constitute hardship under the test for determining ripeness. (Doc. 36 at 12.) In response, EWTN argues that its claims are ripe because they present purely legal issues which require no factual development, they challenge a final rule that marks the consummation of the agency’s rulemaking process, defendants’ arguments address mootness as opposed to ripeness, and it will suffer hardship if review is delayed because it must “plan now,” (doc. 33 at 30 (emphasis in original)), for the Mandate’s future effects. (Doc. 33 at 24-31.) The court agrees with defendants that the action is due to be dismissed because it is not ripe for review at this time. The ripeness doctrine is comprised of two main questions: (1) whether the issues are
unfounded suggestions that the government will not follow through on its commitment.”)), they are mistaken. (See also doc. 75 at 3.)
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fit for judicial review; and (2) whether withholding a decision will cause “hardship to the parties.” Abbott Labs. v. Garner, 387 U.S. 136, 149 (1967). As discussed earlier, ripeness and standing often overlap—in particular, in “cases involving pre-enforcement review, the standing and ripeness inquiries may tend to converge.” Elend, 471 F.3d at 1205. And like standing, ripeness is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003). However, it is not a hard and fast rule that ripeness and standing go hand in hand: “there [still] may be standing without ripeness, . . . or there may be ripeness without standing.” Elend, 471 F.3d at 1205.
Moreover, the doctrines have some key differences. Ripeness differs significantly from standing in that it asks whether a case is ready (i.e., “ripe”) for entertaining, while standing focuses on the parties themselves, asking whether they are the right persons to bring the suit. See Wilderness Soc. v. Alcock, 83 F.3d 386, 390 (11th Cir. 1996) (discussing the intersection of standing and ripeness and noting the main difference—that while standing “asks whether these persons are the proper parties to bring the suit,” ripeness “asks whether this is the correct time for the complainant to bring the action (emphasis in original)). Further, as noted earlier, “ripeness can be affected by events occurring after the case is filed,” Yacht Club on the Intracoastal Condo. Ass’n v. Lexington Ins. Co., 11-15683, 2013 WL 598389, *3 (11th Cir. Feb. 15, 2013) (emphasis added) (citing cases), while standing either exists or does not exist at the time the suit is filed, see Focus on the Family v. Pinellas
39

Suncoast Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003). See also Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 140 (1974) (“[R]ipeness is peculiarly a question of timing, it is the situation now rather than the situation at [an earlier time] that must govern.”); Geneva Coll., 2013 WL 838238, at *12 (“Unlike standing which is determined as of the time the case commenced, ripeness may consider events which have occurred after the filing of the complaint.” (citing Buckley v. Valeo, 424 U.S. 1, 114–17 (1976))).
In addition, because ripeness, like standing, is concerned with the case and controversy requirement of Article III, see Konikov v. Orange Cnty., Fla., 410 F.3d 1317, 1322 (11th Cir. 2005), it aims to avoid deciding cases which need not yet be decided, and which could eventually be resolved by the agency being challenged, thus avoiding litigation entirely, see Belmont Abbey, 2012 WL 2914417, at *12 (“[I]f we do not decide the issue now, we may never need to.” (alterations omitted) (quoting Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996))). It further “counsel[s] judicial restraint,” Nat’l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005) (quoting Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997)) (internal quotation marks omitted), in part to “protect[] the other branches from judicial meddling,” id. (“When a court is asked to review decisions of administrative agencies, it is hornbook law that courts must exercise patience and permit the administrative agency the proper time and deference for those agencies to consider the case fully.”). Ultimately, the ripeness doctrine “prevent[s] the courts, through avoidance of premature adjudication, from entangling
40

themselves in abstract disagreements over administrative policies, and also . . . protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs., 387 U.S. at 14849.
As discussed earlier, in similar challenges to the Mandate, only two out of at least eighteen cases have found the claims ripe for review. See Roman Catholic Diocese of Fort Worth, No. 4:12–CV–314–Y, at *12; Roman Catholic Archdiocese of New York v. Sebelius, 2012 WL 6042864, *21-23. This court agrees with the reasoning of the majority of cases on the issue and finds that, given the current state of the administrative process, EWTN’s claims are not ripe because they are not fit for review and EWTN will not suffer hardship sufficient to weigh the balance in favor of judicial review.
1. Fitness for Review In evaluating ripeness under its two-part test, the Supreme Court has set forth factors to consider: “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998). Both of the latter considerations relate to whether a plaintiff’s claims are fit for review. Pittman v. Cole, 267 F.3d 1269, 1278 (11th Cir. 2001). Other factors to weigh in considering whether a plaintiff’s claims are fit include “questions of finality, definiteness, and the extent to which resolution
41

of the challenge depends upon facts that may not yet be sufficiently developed.” Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1291 (11th Cir. 2010) (quoting Harrell v. The Fla. Bar, 608 F.3d 1241, 1258 (11th Cir. 2010)) (internal quotation marks omitted). Finally, “claims are less likely to be considered fit . . . when they venture beyond purely legal issues[,] . . . when they require speculation about contingent future events[, or when they] . . . . interfere[] with an agency’s decisionmaking process before it has the opportunity to finalize its policies . . . .” Pittman, 267 F.3d at 1278 (internal quotation marks and citations omitted).
Here, although the ANPRM did not operate to deprive EWTN of standing to challenge the law that it was directly subject to at the time of filing its Complaint, it does, along with the NPRM, operate to make the Mandate unfit for review. As noted above, there are a number of considerations that may be taken into account when considering whether a law or regulation is fit for judicial review. In this case, one particular concern weighs heavily in favor of deferring review: that is, the fact that the agency is in the middle of a rulemaking process which might altogether alleviate the alleged harm, or at the very least narrow the issues involved, making the eventual resolution of the lawsuit better tailored and much more efficient. See Am. Petroleum Inst. v. E.P.A., 683 F.3d 382, 387 (D.C. Cir. 2012) (“[P]ermitting the administrative process to reach its end can at least solidify or simplify the factual context and narrow the legal issues at play, allowing for more intelligent resolution of any remaining claims and avoiding inefficient and unnecessary piecemeal review.”
42

(internal quotation marks omitted)). Thus, judicial review at this point—particularly where the NPRM has been issued and a new rule is set to emerge shortly—would inappropriately interfere in the “agency’s decisionmaking process before it has the opportunity to finalize its policies.” Pittman, 267 F.3d at 1278.
Moreover, other courts have found the government’s representations that it will not enforce the present rule and that a new rule will be issued before the end of the enforcement safe harbor persuasive.22 See, e.g., Wheaton Coll., 703 F.3d at 552 (taking the government at its word that it would “never enforce [the Mandate] in its current form” and that it would “issue a new Final Rule before August 2013” because waiting for the new rule could resolve the issues); Catholic Diocese of Peoria, 2013 WL 74240, at *5 (taking government at its word and stating that reviewing the Mandate “before it is amended and before it is to be enforced” would “undermine the interests of judicial economy”). This court agrees with the reasoning of these cases. Accordingly, because defendants “have initiated a rulemaking specifically intended to amend the challenged regulations to address the concerns raised by organizations like [EWTN],” (doc. 36 at 6 n.7), the case is not presently fit for review.23
22 As noted earlier, these representations came too late to affect EWTN’s standing in this case.
23 In response to this, EWTN claims that defendants’ arguments against ripeness are, in reality, about mootness, (doc. 33 at 29), and further argues that its claims would not be undermined by mootness in any event because “[t]he ANPRM promises no change to th[e] status quo,” (id. at 27), and “the NPRM confirms that EWTN will not be exempt from the Mandate,” (doc. 75 at 3). First, the court agrees that EWTN’s claims are not moot because, as mentioned earlier, a high bar must be met in order to moot a claim. See Friends of the Earth, Inc., 528 U.S.
43

Reinforcing this conclusion is the fact that yet another factor, lack of finality, weighs
in favor of finding the challenge unripe. While it might seem odd to say that EWTN had
standing to challenge the Mandate when it filed suit, but the Mandate currently lacks finality,
that is the practical result in this case as the administrative rulemaking process progresses.
Though the Mandate is the current state of the law and was binding on EWTN when it filed
its Complaint, the NPRM “illustrate[s] that the challenged regulations are simply
interlocutory.” Roman Catholic Diocese of Dallas, 2013 WL 687080, at *15; see also
Archdiocese of St. Louis, 2013 WL 328926, at *5 (“Because the regulations are in the process
of being amended, in their current form they represent a tentative as opposed to final agency
position.”); Univ. of Notre Dame, 2012 WL 6756332, at *3 (“[T]he challenged regulatory
requirement isn’t sufficiently final. Notre Dame is correct that [the] regulation itself claims
at 190. But second, the court also agrees with defendants that its arguments are not, in fact, about mootness. (See doc. 36 at 6, 6 n.7.) Rather, despite plaintiff’s contentions, they remain fundamentally about ripeness (and standing). (See id.) Certainly, potential mootness is a relevant consideration when assessing ripeness in this case because it underscores the fact that the rules currently being developed could ultimately resolve the contested issues. See Efron By & Through Efron v. United States, 1 F. Supp. 2d 1468, 1470 (S.D. Fla. 1998) aff’d sub nom. Efron v. United States, 189 F.3d 482 (11th Cir. 1999) (stating that there is “an additional, unspoken element of the ripeness doctrine”: the idea that “if we do not need to decide it now, we may never need to”). Because ripeness is about whether issues are ready for review, it is only logical to reason that in some cases involving ongoing agency action or rulemaking that is not yet final, later developments will indeed moot the issues. See, e.g., In re Aiken County, 645 F.3d 428, 435-36 (D.C. Cir. 2011) (taking into account potential future mootness of claims in determining whether agency action was fit for review under a ripeness analysis); Belmont Abbey, 2012 WL 2914417, at *12 (“[I]f we do not decide the issue now, we may never need to.” (quoting Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996))). This is the case even despite EWTN’s protests that no future developments could possibly impact its constitutional claims. (Doc. 33 at 27). Because the rule is currently in the process of being amended, EWTN must wait until its allegation becomes a reality.
44

to be final, but events following the regulation’s adoption make clear that it isn’t final.”
(internal citations omitted)). As discussed earlier, unlike standing, ripeness may come and
go throughout the course of a litigation. Yacht Club on the Intracoastal Condo. Ass’n, 2013
WL 598389, at *3. Thus, after the government’s eventual promises to finalize changes to the
Mandate and to forego enforcement in its current form, (see doc. 61 at 6, 6 n.4), and the
issuance of the NPRM, which sets forth specifics regarding future changes, see generally 78
Fed. Reg. 8456, the Mandate’s fundamental nature has transformed into that of a temporary
rule. See Conlon, 2013 WL 500835, *at 5 (“[T]he promised accommodations regarding
religious objections mean the current regulations are not truly final, rendering any judicial
decision as to the legality of the current regulations premature.”).
Primarily for these two reasons—namely, (1) avoiding any interference with the
ongoing rulemaking process before defendants have finalized their policies, and (2) the
temporary nature of the current rules—the court finds that EWTN’s claims are not ripe for review.24 Nevertheless, to briefly address EWTN’s claim that ripeness requirements are more
24 Whether the question to be resolved presents purely legal issues is yet another of the factors courts look at when assessing ripeness. See La. Envtl. Action Network v. EPA, 172 F.3d 65, 69 (D.C. Cir. 1999) (quoting George E. Warren Corp. v. EPA, 159 F.3d 616, 622 (D.C. Cir. 1998). The parties agree that EWTN’s claims present primarily legal (as opposed to factual) issues, (see doc. 29-1 at 31; doc. 33 at 8, 25-26; doc. 36 at 9), however, “an agency’s [actions] do[] not become final merely because the challenger attacks the agency’s jurisdiction, even where the attack raises a pure question of law,” Ticor Title Ins. Co. v. F.T.C., 814 F.2d 731, 747 (D.C. Cir. 1987). See also Pub. Citizen v. Office of U.S. Trade Representatives, 970 F.2d 916, 921 (D.C. Cir. 1992) (“Even if only purely legal issues remained . . . that would not obviate the need for finality itself. Nor, indeed, would it establish the fitness of the issues for judicial decision, . . . .” (internal quotation marks and citations omitted)). Thus, even if the issues presented are
45

relaxed in First Amendment cases, (doc. 33 at 13, 25, 27), the court finds that even if the relaxed standard were to apply, this alone could not overcome the lack of fitness for judicial review. While the court agrees that EWTN’s observation is an accurate one, the ripeness requirement “may not be ignored” because of the less stringent standard. See Nat’l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005) (“[W]hile it is true that our review of a suit’s ripeness is at its most permissive in cases concerning putative violations of the First Amendment, th[e ripeness] requirement may not be ignored.” (citations omitted)).
Moreover, the court is not convinced that the relaxed standard would apply to this case. The primary reason that the ripeness requirement has been relaxed in First Amendment cases is because of the fear that the challenged statute or regulation would create a chilling effect on speech. See Beaulieu v. City of Alabaster, 454 F.3d 1219, 1227-28 (11th Cir. 2006) (noting the more permissive review of ripeness in First Amendment cases and discussing “the fear that free speech will be chilled even before the law, regulation, or policy is enforced” (quoting Hallandale Prof’l Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 760 (11th Cir. 1991)) (internal quotation marks omitted)). However, any chilling effect on speech is not yet a concern in this case because of the safe harbor and enforcement delay; thus, EWTN cannot now claim that there is a chilling effect on its speech because it fears
purely legal, this does not transform EWTN’s claims into ripe ones.
46

“risking criminal or severe civil sanctions” for noncompliance with the Mandate.25 Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1221 (11th Cir. 2010) (quoting Elend, 471 F.3d at 1211). Further, “there [is no] allegation by [EWTN] that their own protected speech, or anyone else’s, is being chilled; rather they complain that the Mandate in its current form compels them to engage in speech which they find objectionable but in which they have not yet actually engaged.” (emphasis in original)). Persico, 2013 WL 228200, at *11; see also Nebraska ex rel. Bruning, 877 F. Supp. 2d at 803 (noting that though the chilling effect is a concern in First Amendment cases, because the plaintiffs did not face “a direct and immediate dilemma that involve[d] the sacrifice of their First Amendment rights,” ripeness could not be established “even under a relaxed standard”). Accordingly, the ripeness of EWTN’s claims is not affected by the relaxed standard that it asks the court to apply.
2. Hardship Finally, as to the hardship prong of the ripeness analysis, EWTN correctly observes that if a dispute otherwise qualifies as fit for review, any lack of hardship is irrelevant. (See doc. 33 at 24-25 (quoting Harrell v. The Fla. Bar, 608 F.3d 1241, 1259 (11th Cir. 2010)).) Conversely, in some circumstances, if a claim is questionably fit, extreme hardship may weigh the balance in favor of judicial review. See Consol. Rail Corp. v. United States, 896 F.2d 574, 577 (D.C. Cir. 1990). What actually constitutes hardship will inevitably change
25 As defendants further observe, the relaxed analysis only applies where there is a “credible threat” of enforcement. (Doc. 36 at 3 n.2).
47

depending on the case, however, it cannot simply be a mere inconvenience—it must be “immediate and significant.” Abbott Labs., 387 U.S. at 153; see also Harrell, 608 F.3d at 1258 (“The hardship prong asks about the costs to the complaining party of delaying review until conditions for deciding the controversy are ideal.”); Elend, 471 F.3d at 1211 (“Hardship can sometimes be established if a plaintiff demonstrates that he would have to choose between violating an allegedly unconstitutional statute or regulation and risking criminal or severe civil sanctions.” (citing Steffel v. Thompson, 415 U.S. 452, 462 (1974))); Pittman, 267 F.3d at 1280-81 (discussing Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998), and listing some types of hardship that might weigh a case in favor of judicial review, such as “adverse effects of a strictly legal kind,” “whether the challenged policy inflicts significant practical harm upon the interests that the [plaintiff] advances,” and “any other way in which the [policy] could now force it to modify its behavior in order to avoid future adverse consequences” (alterations in original) (internal quotation marks omitted)).
Further, allegations that a party must presently begin planning for future events which are speculative, or even the inability to plan at all for future events, have generally not constituted hardship sufficient to satisfy the hardship requirement. See Wheaton Coll., 887 F. Supp. 2d at 113 (no hardship where plaintiff desired to plan for contingencies); Cephalon, Inc. v. Sebelius, 796 F. Supp. 2d 212, 218-20 (D.D.C. 2011) (spending financial resources now to plan for “remote and speculative” future events did not constitute hardship).
Here, EWTN claims that it faces imminent hardship absent immediate review because
48

the ANPRM will not alter its claims, and it must begin planning now to address the financial problems it will be faced with as a result. (Doc. 33 at 30.) It further claims that it could be subject to third-party lawsuits attempting to enforce the Mandate, since the safe harbor only protects it against the defendants. (Id. at 30-31.) However, the court finds that “[EWTN’s] hardship claim is insufficient for any [ripeness] exception.” Pub. Citizen v. Office of U.S. Trade Representatives, 970 F.2d 916, 921 (D.C. Cir. 1992). Said differently, EWTN has not shown hardship that is sufficient to overcome its unfit claims because it cannot establish that the alleged harms it faces are “immediate and significant,” Abbott Labs., 387 U.S. at 153.
EWTN furthers the same failing arguments regarding hardship that were made in the numerous other cases addressing the Mandate, most of which held that there was no hardship sufficient to weigh the balance in favor of judicial review. See, e.g., Roman Catholic Diocese of Dallas, 2013 WL 687080, at *16 (“[T]he inability to prepare for contingencies is not a hardship that outweighs the unfitness for review of the issues in this case.”); Conlon, 2013 WL 500835, at *6 (necessity of postponing judicial review outweighed “purported hardship . . . in [plaintiffs’] ability to plan for contingencies”); Wheaton Coll., 887 F. Supp. 2d at 113 (planning insecurity not enough to show hardship); Nebraska ex rel. Bruning, 877 F. Supp. 2d at 802-03 (desire to plan for contingencies that may never arise did not constitute hardship); Belmont Abbey, 878 F. Supp. 2d at 41 (neither planning for the possibility of being forced to give up health insurance plan in 2014 nor risk of third-party lawsuits created hardship sufficient to overcome the lack of fitness for judicial review).
49

In addition, the court agrees with defendants that if planning for the future were to constitute hardship, “the hardship prong would become meaningless because organizations are always planning for the future.” (Doc. 36 at 12.) Others courts have agreed. See Tenn. Gas Pipeline Co. v. FERC, 736 F.2d 747, 751 (D.C. Cir. 1984) (planning insecurity not enough to constitute hardship); Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 162-64 (7th Cir. 1976) (uncertainty in business and capital planning not immediate and direct enough to constitute hardship); Cephalon, Inc., 796 F. Supp. at 218-20 (D.D.C. 2011) (financial planning for “remote and speculative” future events did not constitute hardship). And in addition, the “theoretical possibility” of third-party lawsuits is not sufficient to establish the requisite hardship to overcome a lack of fitness for review. Belmont Abbey, 878 F. Supp. 2d at 41. Ultimately, “the ripeness doctrine requires a pragmatic and commonsense application,” Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 918 (D.C. Cir. 1985); in this case, common sense weighs in favor of withholding judicial review until new regulations are created and finalized. At that point, if EWTN still has objections, it may then file suit.
IV. CONCLUSION Based on the foregoing and as directed by the court’s Order entered contemporaneously with this Opinion, defendants’ Motion to Dismiss will be granted. EWTN’s case will be dismissed without prejudice.
50

DONE, this 25th day of March 2013. SHARON LOVELACE BLACKBURN CHIEF UNITED STATES DISTRICT JUDGE
51

 
 Case: 2:12-cv-501 As of: 02/24/2013 02:05 PM CST 1 of 9
U.S. District Court Northern District of Alabama (Southern) CIVIL DOCKET FOR CASE #: 2:12−cv−00501−SLB

Eternal Word Television Network Inc v. Sebelius et al Assigned to: Chief Judge Sharon Lovelace Blackburn Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 02/09/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Eternal Word Television Network Inc

represented by Eric N Kniffin THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K St. NW, Suite 220 Washington, DC 20007 202−955−0095 Fax: 202−055−0090 Email: ekniffin@becketfund.org ATTORNEY TO BE NOTICED

Kyle Duncan THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K St. NW, Suite 220 Washington, DC 20007 202−955−0095 Fax: 202−055−0090 Email: kduncan@becketfund.org ATTORNEY TO BE NOTICED

Lori Windham BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street NW Suite 220 Washington, DC 20007 202−955−0095 Email: lwindham@becketfund.org ATTORNEY TO BE NOTICED

V.
Defendant
Kathleen Sebelius Secretary of the United States Department of Health and Human Services

represented by Eric R Womack US DEPARTMENT OF JUSTICE 20 Massachusetts Avenue NW Washington, DC 20001 202−514−4020 Fax: 202−616−8470 Email: eric.womack@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacek Pruski US DEPARTMENT OF JUSTICE 20 Massachusetts Ave. NW Washington, DC 20001 202−616−2035 Fax: 202−616−8470 Email: jacek.pruski@usdoj.gov ATTORNEY TO BE NOTICED

Case: 2:12-cv-501 As of: 02/24/2013 02:05 PM CST 2 of 9

Defendant
United States Department of Health and Human Services

represented by Eric R Womack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joyce White Vance, US Attorney US ATTORNEY'S OFFICE 1801 4th Avenue North Birmingham, AL 35203−2101 244−2001 Email: usa−aln−ecf−usa@usdoj.gov ATTORNEY TO BE NOTICED

Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED

Defendant
Hilda Solis Secretary of the Department of Labor

represented by Eric R Womack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED

Defendant United States Department of Labor

represented by Eric R Womack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED

Defendant
Timothy Geithner Secretary of the United States Department of the Treasury

represented by Eric R Womack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED

Defendant
United States Department of the Treasury

represented by Eric R Womack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacek Pruski (See above for address) ATTORNEY TO BE NOTICED

Intervenor State of Alabama

represented by Andrew L Brasher OFFICE OF ALABAMA ATTORNEY

Case: 2:12-cv-501 As of: 02/24/2013 02:05 PM CST 3 of 9

GENERAL 501 Washington Avenue P O Box 300152 Montgomery, AL 36130−0152 334−353−2609 Fax: 334−242−4891 Email: abrasher@ago.state.al.us ATTORNEY TO BE NOTICED

Joshua Kerry Payne SPOTSWOOD SANSOM &SANSBURY LLC 1819 5th Ave N, Ste 1050 Birmingham, AL 35203 205−986−3620 Fax: 205−986−3639 Email: jpayne@spotswoodllc.com TERMINATED: 08/13/2012 ATTORNEY TO BE NOTICED

Luther J Strange , III OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue PO Box 300152 Montgomery, AL 36130−0152 334−242−7401 Fax: 334−242−4891 Email: luther.strange@ago.state.al.us ATTORNEY TO BE NOTICED

William G Parker , Jr OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue PO Box 300152 Montgomery, AL 36130−0152 334−242−7997 Fax: 334−353−8440 Email: wparker@ago.state.al.us ATTORNEY TO BE NOTICED

Intervenor Luther Strange

represented by Andrew L Brasher (See above for address) ATTORNEY TO BE NOTICED

Joshua Kerry Payne (See above for address) TERMINATED: 08/13/2012 ATTORNEY TO BE NOTICED

Luther J Strange , III (See above for address) ATTORNEY TO BE NOTICED

William G Parker , Jr (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

Case: 2:12-cv-501 As of: 02/24/2013 02:05 PM CST 4 of 9

02/09/2012
02/09/2012 02/15/2012
02/16/2012
02/17/2012 02/17/2012 02/17/2012 02/17/2012 02/21/2012 03/21/2012 03/21/2012 03/21/2012 03/21/2012 03/21/2012 03/21/2012 03/21/2012 03/21/2012 03/21/2012

1 COMPLAINT against Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, filed by Eternal Word Television Network Inc.(KAM, ) (Entered: 02/09/2012)
2 NOTICE of Corporate Disclosure by Eternal Word Television Network Inc (KAM, ) (Entered: 02/09/2012)
Filing Fee: Filing fee $ 350, receipt_number 1126−1593785. related document 1 COMPLAINT against Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, filed by Eternal Word Television Network Inc.(KAM, ). (Kniffin, Eric) NDAL rec# B4601030988 Modified on 2/16/2012 (KAM, ). (Entered: 02/15/2012)
Summons Issued as to Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury del to pla (KAM, ) (Entered: 02/23/2012)
PHV Fee paid: $ 50, receipt number 1126−1596740. (Kniffin, Eric) ALND rec # B460103076 (Entered: 02/17/2012)
3 MOTION for Leave to Appear Pro Hac Vice by Eternal Word Television Network Inc. (Kniffin, Eric) (Entered: 02/17/2012)
PHV Fee paid: $ 50, receipt number 1126−1596748. (Duncan, Kyle) ALND rec # B4601031077 (Entered: 02/17/2012)
4 MOTION for Leave to Appear Pro Hac Vice by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 02/17/2012)
ORDER granting 3 4 Motions for Leave to Appear Pro Hac. Signed by Chief Judge Sharon Lovelace Blackburn on 02/21/2012. (SDB, ) (Entered: 02/21/2012)
5 SUMMONS Returned Executed by Eternal Word Television Network Inc. Kathleen Sebelius served on 3/5/2012, answer due 3/26/2012. (Duncan, Kyle) (Entered: 03/21/2012)
6 SUMMONS Returned Executed by Eternal Word Television Network Inc. United States Department of Health and Human Services served on 3/5/2012, answer due 3/26/2012. (Duncan, Kyle) (Entered: 03/21/2012)
7 SUMMONS Returned Executed by Eternal Word Television Network Inc. Hilda Solis served on 3/5/2012, answer due 3/26/2012. (Duncan, Kyle) (Entered: 03/21/2012)
8 SUMMONS Returned Executed by Eternal Word Television Network Inc. United States Department of Labor served on 3/5/2012, answer due 3/26/2012. (Duncan, Kyle) (Entered: 03/21/2012)
9 SUMMONS Returned Executed by Eternal Word Television Network Inc. Timothy Geithner served on 3/5/2012, answer due 3/26/2012. (Duncan, Kyle) (Entered: 03/21/2012)
10 SUMMONS Returned Executed by Eternal Word Television Network Inc. United States Department of the Treasury served on 3/5/2012, answer due 3/26/2012. (Duncan, Kyle) (Entered: 03/21/2012)
11 AFFIDAVIT of Service for copies of summonses and complaint served on Civil Process Clerk, U.S. Attorneys Office on 03/05/2012, filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 03/21/2012)
12 AFFIDAVIT of Service for copies of summonses and complaint served on U.S. Attorney General on 03/05/2012, filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 03/21/2012)
13 AMENDED COMPLAINT against All Defendants, filed by Eternal Word Television Network Inc.(Duncan, Kyle) (Entered: 03/21/2012)

Case: 2:12-cv-501 As of: 02/24/2013 02:05 PM CST 5 of 9

03/22/2012 03/22/2012 03/22/2012
03/23/2012 03/23/2012 03/30/2012
04/17/2012 04/17/2012 04/17/2012 04/17/2012 04/17/2012 04/17/2012 04/17/2012 04/17/2012 04/23/2012 04/23/2012
04/27/2012 04/27/2012

14 MOTION to Intervene by State of Alabama, Luther Strange. (Attachments: # 1 Exhibit 1)(Brasher, Andrew) (Entered: 03/22/2012)
15 Brief re 14 MOTION to Intervene filed by State of Alabama, Luther Strange. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Brasher, Andrew) (Entered: 03/22/2012)
16 ORDER re 14 MOTION to Intervene filed by Luther Strange, State of Alabama ; any opposition to the motion is due by 4/23/2012; the putative interveners must file any argument by 5/23/2012. Signed by Chief Judge Sharon Lovelace Blackburn on 3/22/2012. (KAM, ) (Entered: 03/22/2012)
17 CERTIFICATE OF SERVICE by State of Alabama, Luther Strange Amended (Payne, Joshua) (Entered: 03/23/2012)
Answer due date reset for all USA dfts to reflect 60 days after service, answers due 5/4/2012 (KAM, ) (Entered: 03/23/2012)
Summons Issued as to Timothy Geithner, Kathleen Sebelius, Hilda Solis, 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 del to plaintiff for service (KAM, ) (Entered: 03/30/2012)
18 SUMMONS Returned Executed by Eternal Word Television Network Inc. Kathleen Sebelius served on 4/9/2012, answer due 6/8/2012. (Duncan, Kyle) (Entered: 04/17/2012)
19 SUMMONS Returned Executed by Eternal Word Television Network Inc. United States Department of Health and Human Services served on 4/9/2012, answer due 6/8/2012. (Duncan, Kyle) (Entered: 04/17/2012)
20 SUMMONS Returned Executed by Eternal Word Television Network Inc. Hilda Solis served on 4/9/2012, answer due 6/8/2012. (Duncan, Kyle) (Entered: 04/17/2012)
21 SUMMONS Returned Executed by Eternal Word Television Network Inc. United States Department of Labor served on 4/9/2012, answer due 6/8/2012. (Duncan, Kyle) (Entered: 04/17/2012)
22 SUMMONS Returned Executed by Eternal Word Television Network Inc. Timothy Geithner served on 4/10/2012, answer due 6/11/2012. (Duncan, Kyle) (Entered: 04/17/2012)
23 SUMMONS Returned Executed by Eternal Word Television Network Inc. United States Department of the Treasury served on 4/10/2012, answer due 6/11/2012. (Duncan, Kyle) (Entered: 04/17/2012)
24 AFFIDAVIT of Service for Copies of summonses and amended complaint served on Civil Process Clerk, U.S. Attorneys Office on 4/6/2012, filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 04/17/2012)
25 AFFIDAVIT of Service for Copies of summonses and amended complaint served on U.S. Attorney General on 4/9/2012, filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 04/17/2012)
26 NOTICE of Appearance by Eric R Womack on behalf of All Defendants (Womack, Eric) (Entered: 04/23/2012)
27 RESPONSE in Opposition re 14 MOTION to Intervene filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Womack, Eric) (Entered: 04/23/2012)
28 MOTION for Leave to Appear Pro Hac Vice by Eternal Word Television Network Inc. (Windham, Lori) (Entered: 04/27/2012)
PHV Fee paid: $ 50, receipt number 1126−1649737. (Windham, Lori) ALND rec# B4601033084 Modified on 5/17/2012 (KAM, ). (Entered: 04/27/2012)

Case: 2:12-cv-501 As of: 02/24/2013 02:05 PM CST 6 of 9

04/30/2012 05/04/2012
05/09/2012
05/23/2012 05/23/2012 06/01/2012 06/15/2012 06/15/2012 06/25/2012 06/25/2012
07/10/2012 07/10/2012
07/12/2012 07/18/2012
07/19/2012
07/19/2012 07/20/2012

ORDER granting 28 Motion for Leave to Appear Pro Hac Vice. Signed by Chief Judge Sharon Lovelace Blackburn on 04/30/12. (SDB, ) (Entered: 04/30/2012)
29 MOTION to Dismiss for Lack of Jurisdiction by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Memorandum in Support)(Womack, Eric) (Entered: 05/04/2012)
30 ORDER re 29 MOTION to Dismiss for Lack of Jurisdiction filed by United States Department of the Treasury, Hilda Solis, Kathleen Sebelius, Timothy Geithner, United States Department of Health and Human Services, United States Department of Labor ; any opposition is due by 6/1/2012; reply is due by 6/25/2012. Signed by Chief Judge Sharon Lovelace Blackburn on 5/9/2012. (KAM, ) (Entered: 05/09/2012)
31 REPLY to Response to Motion re 14 MOTION to Intervene filed by State of Alabama, Luther Strange. (Brasher, Andrew) (Entered: 05/23/2012)
32 REPLY to re 14 Motion to Intervene filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 05/23/2012)
33 RESPONSE in Opposition re 29 MOTION to Dismiss for Lack of Jurisdiction filed by Eternal Word Television Network Inc. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Affidavit, # 4 Exhibit)(Duncan, Kyle) (Entered: 06/01/2012)
34 NOTICE of Appearance by Jacek Pruski on behalf of All Defendants (Pruski, Jacek) (Entered: 06/15/2012)
35 Joint MOTION for Extension of Time by Eternal Word Television Network Inc. (Windham, Lori) (Entered: 06/15/2012)
ORDER granting 35 Motion for Extension of Time. Signed by Chief Judge Sharon Lovelace Blackburn on 06/25/2012. (SDB, ) (Entered: 06/25/2012)
36 REPLY Brief filed by Defendants Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re: 29 MOTION to Dismiss for Lack of Jurisdiction, 33 Response in Opposition to Motion filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 06/25/2012)
37 REPORT of Rule 26(f) Planning Meeting. (Duncan, Kyle) (Entered: 07/10/2012)
38 MOTION to Stay Discovery by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 07/10/2012)
39 MOTION for Leave to File Surreply by Eternal Word Television Network Inc. (Attachments: # 1 Exhibit Plaintiff's Surreply in Opposition to Defendants' Motion to Dismiss)(Duncan, Kyle) (Entered: 07/12/2012)
40 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury of Supplemental Authority (Attachments: # 1 Exhibit State of Nebraska v. HHS)(Pruski, Jacek) (Entered: 07/18/2012)
41 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury of Supplemental Authority (Attachments: # 1 Exhibit Belmont Abbey College v. Sebelius)(Pruski, Jacek) (Entered: 07/19/2012)
42 RESPONSE to Defendants Citation of Supplemental Authority filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 07/19/2012)
43 RESPONSE to re 40 Defendants' Supplemental Authority filed by State of Alabama, Luther Strange. (Attachments: # 1 Exhibit A − List of Alabama Health

Case: 2:12-cv-501 As of: 02/24/2013 02:05 PM CST 7 of 9

07/20/2012 07/27/2012 08/07/2012 08/07/2012 08/09/2012 08/13/2012 08/13/2012 08/15/2012 08/24/2012 08/28/2012
08/28/2012 09/12/2012 11/09/2012 11/27/2012
11/27/2012 11/29/2012

Insurance Mandates, # 2 Exhibit B − 2011 Health Insurance Mandates in the States)(Brasher, Andrew) (Entered: 07/20/2012)
44 RESPONSE to re 40 filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 07/20/2012)
45 RESPONSE to re 43 Proposed Intervenors' Response to Nebraska v. HHS filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 07/27/2012)
46 RESPONSE in Opposition re 38 MOTION to Stay Discovery filed by Eternal Word Television Network Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Duncan, Kyle) (Entered: 08/07/2012)
47 NOTICE by Eternal Word Television Network Inc of Supplemental Authority (Attachments: # 1 Exhibit A)(Duncan, Kyle) (Entered: 08/07/2012)
48 RESPONSE to re 47 Plaintiff's Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 08/09/2012)
49 MOTION to Withdraw as Attorney by State of Alabama, Luther Strange. (Payne, Joshua) (Entered: 08/13/2012)
ORDER granting 49 Motion to Withdraw as Attorney. Attorney Joshua Kerry Payne terminated. Signed by Chief Judge Sharon Lovelace Blackburn on 08/13/2012. (SDB, ) (Entered: 08/13/2012)
50 REPLY to Response to Motion re 38 MOTION to Stay Discovery filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 08/15/2012)
51 NOTICE by Eternal Word Television Network Inc of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Duncan, Kyle) (Entered: 08/24/2012)
52 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 29 MOTION to Dismiss for Lack of Jurisdiction of Supplemental Authority (Attachments: # 1 Exhibit)(Pruski, Jacek) (Entered: 08/28/2012)
53 RESPONSE to re 51 Plaintiff's Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 08/28/2012)
54 RESPONSE to re 52 Defendants' Notice of Supplemental Authority filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 09/12/2012)
55 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury of Supplemental Authority (Pruski, Jacek) (Entered: 11/09/2012)
56 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury of Supplemental Authority (Attachments: # 1 Exhibit Catholic Diocese of Nashville v. Sebelius)(Pruski, Jacek) (Entered: 11/27/2012)
57 RESPONSE to re 56 Defendants' Notice of Supplemental Authority filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 11/27/2012)
58 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor,

Case: 2:12-cv-501 As of: 02/24/2013 02:05 PM CST 8 of 9

12/06/2012 12/06/2012 12/12/2012 12/12/2012 12/19/2012 12/26/2012
01/03/2013 01/04/2013
01/11/2013
01/14/2013 01/25/2013
01/30/2013
01/31/2013

United States Department of the Treasury of Supplemental Authority (Attachments: # 1 Exhibit Zubik v. Sebelius)(Pruski, Jacek) (Entered: 11/29/2012)
59 NOTICE by Eternal Word Television Network Inc of Supplemental Authority (Attachments: # 1 Exhibit A)(Duncan, Kyle) (Entered: 12/06/2012)
60 NOTICE by Eternal Word Television Network Inc of Supplemental Authority (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Duncan, Kyle) (Entered: 12/06/2012)
61 RESPONSE to re 59 Plaintiff's Third Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 12/12/2012)
62 RESPONSE to re 60 Plaintiff's Fourth Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Pruski, Jacek) (Entered: 12/12/2012)
63 NOTICE by Eternal Word Television Network Inc of Supplemental Authority (Attachments: # 1 Exhibit A)(Duncan, Kyle) (Entered: 12/19/2012)
64 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 63 Notice (Other) Defs.' Seventh Notice of Supplemental Authority and Response to Pl.'s Notice of Supplemental Authority (Attachments: # 1 Exhibit Biloxi − Order Granting MTD)(Pruski, Jacek) (Entered: 12/26/2012)
65 RESPONSE to re 64 Defendants' Seventh Notice of Supplemental Authority filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 01/03/2013)
66 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 29 MOTION to Dismiss for Lack of Jurisdiction Defs.' Eighth Notice of Supplemental Authority (Attachments: # 1 Exhibit Univ. of Notre Dame v. Sebelius)(Pruski, Jacek) (Entered: 01/04/2013)
67 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 29 MOTION to Dismiss for Lack of Jurisdiction Defs.' Ninth Notice of Supplemental Authority (Attachments: # 1 Exhibit Peoria Order Dismissing Case, # 2 Exhibit Colorado Christian University Order Dismissing Case)(Pruski, Jacek) (Entered: 01/11/2013)
68 RESPONSE to re 67 , 66 Defendants' Eighth and Ninth Notices of Supplemental Authority filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 01/14/2013)
69 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 29 MOTION to Dismiss for Lack of Jurisdiction Defs.' Tenth Notice of Supplemental Authority (Pruski, Jacek) (Entered: 01/25/2013)
70 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 29 MOTION to Dismiss for Lack of Jurisdiction Defs.' Eleventh Notice of Supplemental Authority (Pruski, Jacek) (Entered: 01/30/2013)
71 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 29 MOTION to Dismiss for Lack of Jurisdiction Defs.' Twelfth Notice of Supplemental Authority (Pruski, Jacek) (Entered: 01/31/2013)

Case: 2:12-cv-501 As of: 02/24/2013 02:05 PM CST 9 of 9

02/05/2013 02/14/2013 02/19/2013
02/22/2013

72 NOTICE by State of Alabama, Luther Strange re 14 MOTION to Intervene, 15 Brief NOTICE OF RECENT FACTUAL AND LEGAL DEVELOPMENTS IN ALABAMA (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Brasher, Andrew) (Entered: 02/05/2013)
73 RESPONSE to re 71 , 70 , 69 Notices of Supplemental Authority filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 02/14/2013)
74 NOTICE by Timothy Geithner, Kathleen Sebelius, Hilda Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury re 29 MOTION to Dismiss for Lack of Jurisdiction Defs.' Thirteenth Notice of Supplemental Authority (Attachments: # 1 Exhibit Roman Catholic Diocese of Ft. Worth v. Sebelius, # 2 Exhibit Bishop Conlon v. Sebelius)(Pruski, Jacek) (Entered: 02/19/2013)
75 RESPONSE to re 74 Defendants' Thirteenth Notice of Supplemental Authority filed by Eternal Word Television Network Inc. (Duncan, Kyle) (Entered: 02/22/2013)