2:13-cv-11379-DPH-MJH Doc # 1 Filed 03/28/13 Pg 1 of 30 Pg ID 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

M.K. CHAMBERS COMPANY, a Michigan corporation; GERALD D. CHAMBERS, an individual; and ROBERT W. CHAMBERS, an individual,
Plaintiffs,
v.

Judge Magistrate Judge Case No.

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB J. LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants.
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THE TROY LAW FIRM DANIEL E. CHAPMAN (P41043) KIMBERLY A. COCHRANE (P73032) Attorneys for Plaintiffs 888 W Big Beaver Road, Ste 1400 Troy, MI 48084 (248) 244-9100 dchapman@troylawfirm.com kcochrane@troylawfirm.com - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -I
VERIFIED COMPLAINT - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -I
Plaintiffs, M.K. Chambers Company ("MKC"), Gerald D. Chambers ("GDC"), and
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Robert W. Chambers ("RWC"), (collectively MKC, GDC and RWC referred to as "Plaintiffs"), by their attorneys, The Troy Law Firm, bring this Complaint against the above-named Defendants, their employees, agents, and successors in office, and in support thereof state the following upon information and belief:

NATURE OF THE ACTION

1.

Plaintiffs bring this action to challenge Defendants' promulgation and

implementation of certain regulations adopted under the "Patient Protection and Affordable Care

Act" (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the "Health Care and Education

Reconciliation Act" (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (collectively known and

hereinafter referred to as the "Affordable Care Act"), which went into effect on August 1, 2012

and force individuals, such as Plaintiffs, to violate some of their deepest held religious beliefs

and moral values.

2.

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 supported by the Health Resources and Services Adn1inistration" and directs the

Secretary of the United States Department of Health and Human Services to determine what

would constitute "preventative care." 42 U.S.C § 300gg-13(a)(4).

3.

Without notice of rulemaking or opportunity for public comment, the United

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

the United States Department of Treasury adopted the Institute of Medicine ("10M")

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

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insurance coverage" provide all FDA-approved contraceptive methods and procedures. 76 Fed.

Reg. 46621 (published Aug. 3, 2011); 45 C.P.R.§ 147.130.

4.

The Health Resources and Services Administration also issued guidelines

adopting the IOM recommendations. (http://www.hrsa.gov/womensguidelines ).

5. Under the IOM guidelines, the Mandate requires all insurance insurers (e.g. Blue

Cross/Blue Shield of Michigan) to provide in all of its insurance plans, group and individual, not

only contraception, but also abortion, because certain drugs and devices such as the "morning-

after pill," "Plan B," and "ella" come within the Mandate's and Health Resources and Services

Administration's definition of "Food and Drug Administration-approved contraceptive methods,"

despite their known abortifacient mechanisms of action.

6. The Mandate forces employers and individuals, such as Plaintiffs, to violate their religious beliefs, because it requires employers and individuals to pay for insurance from insurance issuers which funds and directly provides for drugs, devices, and services which violate some of their deeply held religious beliefs.
7. Since under the Mandate all insurance issuers must provide what the United States Department of Health and Human Services has declared "preventative care," employers and individuals are stripped of any choice between insurance issuers or insurance plans to avoid violating their religious beliefs.
8. The United States Department of Health and Human Services, in an unprecedented despoiling of religious rights, forces religious employers and individuals, who believe that funding and providing for contraception, abortion, and abortifacients is wrong, to participate in acts that violate their beliefs and their conscience, and are forced out of the health insurance market in its entirety in order to comply with their religious beliefs.

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9. Plaintiffs seek a Preliminary Injunction and Permanent Injunction, enJOlntng Defendants from further implementing and enforcing provisions of the regulations promulgated under the Affordable Care Act, specifically the Mandate. The Mandate violates Plaintiffs' rights to the free exercise of religion. and the freedom of speech under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
10. Plaintiffs also seek a Declaratory Judgment that the regulations promulgated under the Affordable Care Act, specifically the Mandate, violate Plaintiffs' rights to the free exercise of religion and the freedom of speech under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
11. Plaintiffs bring this action to vindicate not only their own rights, but also to protect the rights of all Americans who care about our Constitutional guarantees of free exercise of religion and their freedom of speech, as well as the protection of innocent human life.
JURISDICTION AND VENUE 12. This court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343, and 1346 because it is a civil action against agencies and officials of the United States based on claims arising under the Constitution, laws of the United States, and regulations of executive departments and it seeks equitable or other relief under an Act of Congress, and also pursuant to 28 U.S.C. § 1361 as this Court may compel officers and agencies of the United States to perform a duty owed to Plaintiffs. 13. Plaintiffs' claims for declaratory and preliminary and permanent injunctive relief are authorized by 5 U.S.C. § 702, 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by 42 U.S.C. § 2000bb-1, and by the general legal and
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equitable powers of this Court. 14. Venue is proper under 28 U.S.C. § 1391(e) because this is the judicial district in
which Plaintiffs are located. 15. This Court has the authority to award Plaintiffs their costs and attorneys' fees
pursuant to 28 U.S.C. § 2413 and 42 U.S.C. § 1988. PLAINTIFFS
16. MKC 1s a Michigan corporation with a registered office 1n North Branch, Michigan.
17. GDC is an individual and a citizen of the State of Michigan and the United States. 18. RWC is an individual and a citizen of the State of Michigan and the United States. 19. GDC is the President ofMKC and its 50% shareholder; RWC is Vice President of MKC and its other 50% shareholder. GDC and RWC are Christians and faith-driven individuals who are responsible for setting all policies that govern the conduct and all phases of business of MKC. 20. For decades, GDC and RWC, via MKC, formulated MKC's health insurance policy with Blue Cross/Blue Shield of Michigan, which specifically excluded contraception, abortion, drugs commonly referred to as "life style drugs," and otherwise exempted MKC from pay1ng, contributing, or supporting contraception and abortion for others, or for "life style drugs." 21. GDC and RWC, via MKC, ensured that their insurance policy contained these exclusions, because they adhere to the Catholic Church's teachings regarding the immorality of artificial means of contraception and sterilization, and they believe, among other things, that actions intended to terminate an innocent human life by abortion are gravely sinful.
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22. Based on their Christian faith and deeply held religious beliefs, Plaintiffs do not believe that contraception, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well being of persons. Indeed, Plaintiffs' Christian beliefs and fundamental understanding of life, means that these procedures kill people.
23. Plaintiffs know and state unequivocally, that their Christian religious beliefs forbid them from participating in, paying for, training others to engage in, or otherwise supporting contraception or the killing of people by abortion.
24. GDC and RWC have always managed and operated MKC in a way that reflects the teachings, mission, and values of their Christian faith. Also, in furtherance of their Christian faith, they strongly support, financially and otherwise, Catholic fundraisers and other events, and have refused providing support, financially or otherwise, for events or entities that do not reflect the teachings, mission, and values of their Catholic faith, such as requiring that their facilities remain closed and otherwise not servicing any of their customers on Sundays, elin1inate any organization from a supplier list that knowingly supports, endorses, or contributes to organizations that actively participate in killing people, such as Planned Parenthood.
DEFENDANTS
25. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate.
26. Defendant Kathleen Sebelius (or whoever is her successor) is the Secretary of the United States Department of Health and Human Services. In this capacity, she has responsibility for the operation and management of the United States Department of Health and Human Services ("HHS"). Defendant Sebelius is sued in her official capacity only.
27. Defendant HHS is an executive agency of the United States government and is
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responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
28. Defendant Seth D. Harris (or whoever is his successor) is the Acting Secretary of the United States Department of Labor. In this capacity, he holds responsibility for the operation and management of the United States Department of Labor. Defendant Harris is sued in his official capacity only.
29. Defendant United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
30. Defendant Jacob J. Lew (or whoever is his successor) is the Secretary of the United States Department of the Treasury. In this capacity, he holds responsibility for the operation and management of the United States Department of Treasury. Defendant Lew is sued in his official capacity only.
31. Defendant United States Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
FACTUAL ALLEGATIONS 32. MKC is family owned and operated and was created 56 years ago by the father of GDCandRWC. 33. Plaintiffs follow the teachings, mission, and values of the Catholic faith, and share a common mission of conducting their business operations in a manner that does not conflict with their Catholic faith and other Christian beliefs. 34. Plaintiffs do not discriminate against anyone's personal belief system in their
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workforce, and would not base a hiring decision upon an applicant's religious or personal beliefs. 35. In an effort to be a competitive employer, Plaintiffs have striven over the years to
provide its workforce with insurance coverage generally available in the Michigan market. 36. Plaintiffs obtain their group insurance through Blue Cross/Blue Shield of
Michigan, and currently provide this insurance to its full-time workforce. 37. For decades, and in line with their religious beliefs, Plaintiffs specifically
designed a workforce health insurance plan with Blue Cross/Blue Shield of Michigan to exclude contraception, abortion, and abortifacients.
38. So as not to violate their deeply held religious beliefs, and prior to January 1, 2013, Plaintiffs have not funded drugs, devices, services or procedures inconsistent with their faith or the otherwise abhorrent killing of voiceless people, or provided information or guidance to its workforce regarding artificial contraception, abortion, abortifacients or related education and counseling.
39. With full knowledge of these aforementioned beliefs, Defendants issued an administrative rule ("the Mandate") that destructively dismisses Plaintiffs' religious beliefs, the religious beliefs of millions of other Americans, and for that matter the religious beliefs of billions of people on this planet.
40. The Mandate not only forces Plaintiffs to now finance, support, and even endorse contraception, abortion, and related education and counseling as health care, but also subverts the expression of Plaintiffs' religious beliefs, and the beliefs of millions of other Americans, by forcing Plaintiffs to fund, promote, and assist others to acquire services which Plaintiffs believe involve gravely immoral practices and kill people.
41. The Mandate unconstitutionally coerces, if not requires, Plaintiffs to violate their
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deeply held religious beliefs under threat of directly violating their consc1ences, in addition to any imposed fines and penalties. The Mandate also forces Plaintiffs to fund governmentdictated speech that is directly at odds with their own speech and religious beliefs. Having to pay a fine to the taxing authorities or being entirely forced out of the insurance market in order to ensure the privilege of practicing one's religion or controlling one's own speech substantially burdens Plaintiffs' religious liberty and freedom of speech under the First Amendment.
42. The Mandate strips Plaintiffs of any choice to select an insurance plan that does not cover and finance contraception, the killing of people, and abortifacients, as the Mandate requires that all insurance insurers provide this coverage.
43. None of Plaintiffs' plans are considered "grandfathered" and are now subject to the provisions of the Mandate.
44. Blue Cross/Blue Shield of Michigan deemed that, due to the Mandate, Plaintiffs may no longer exclude contraception, abortion, and abortifacients from their insurance plans, and must now provide and pay for these services which violate their religious beliefs.
45. Plaintiffs wish to conduct their businesses in a manner that does not violate the principles of their religious faith.
46. Complying with the Mandate has resulted in a direct violation of Plaintiffs' religious beliefs, because it requires Plaintiffs to pay for and assist others in paying for or obtaining not only contraception, but also abortion, because certain drugs and devices such as the "morning-after pill," "Plan B," and "ella" come within the Mandate's and Health Resources and Services Administration's definition of "Food and Drug Administrationapproved contraceptive methods," despite their known abortifacient mechanisms of action.
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47. Defendants' refusal to accommodate the conscience of Plaintiffs, and of other Americans who share Plaintiffs' religious views, is highly selective. Numerous exemptions exist in the Affordable Care Act which appear arbitrary and were granted to employers who purchase group insurance. This evidences that Defendants do not mandate that all insurance plans need to cover "preventative services" (e.g. the thousands of waivers from the Affordable Care Act issued by Defendants for group insurance based upon the commercial convenience of large corporations, the age of the insurance plan, or the size of the en1ployer).
48. Despite granting waivers upon a seemingly arbitrary basis, no exemption exists for an employer or individual whose religious conscience instructs him that certain mandated services are unethical, immoral, and volatile to one's religious beliefs. Defendants' plan fails to give the same level of weight or accommodation to the exercise of one's fundamental First Amendment freedoms that it assigns to the yearly earnings of a corporation.
49. Defendants' actions violate Plaintiffs' right to freedom of religion, as secured by the First Amendment to the United States Constitution and civil rights statutes, including the Religious Freedom Restoration Act (RFRA).
50. Defendants' actions also violate Plaintiffs' right to the freedom of speech, as secured by the First Amendment to the United States Constitution.
51. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
52. Had Plaintiffs' religious beliefs, or the beliefs of the million other Americans who share Plaintiffs' religious beliefs, been obscure or unknown, Defendants' actions might have been an accident. But because Defendants acted with full knowledge of those beliefs,
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and because they arbitrarily exempt some plans for a wide range of reasons, other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by Defendants on the religious beliefs held by Plaintiffs and the similar religious beliefs held by millions of other Americans. Defendants have, in sum, intentionally used government power to force individuals to believe in, support, and endorse the mandated services manifestly contrary to their own religious convictions, and then to act on that coerced belief, support, or endorsement. Plaintiffs seek declaratory and injunctive relief to protect against this attack.
THE AFFORDABLE CARE ACT 53. 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, 124 Stat. 119) and the "Health Care and Education Reconciliation Act" (Pub. L. 111-152, March 30, 2010, 124 Stat. 1029) (referred to in this complaint as the "Affordable Care Act"). The Affordable Care Act regulates the national health insurance market by directly regulating "group health plans" and "health insurance issuers." 54. The Affordable Care Act does not apply equally to all insurers. 55. The Affordable Care Act does not apply equally to all individuals. 56. The Affordable Care Act requires employers with more than 50 full-time employees or full-time employee equivalents to provide federal government-approved health insurance or pay a substantial per-employee fine. 26 U.S.C. § 4980H. 57. MKC has a workforce of over 120 full-time employees. 58. Plaintiffs must provide federal government-approved health insurance under the Affordable Care Act or pay substantial per-employee fines; employers with at least 50 employees that do not comply with the Mandate are subject to "fines, penalties [in the form of a
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tax], and enforcement actions for non-compliance. See 29 U.S.C. §1132(a) (civil enforcement actions by the Department of Labor and insurance plan participants); 26 U.S.C. §4980D(a), (b) (penalty of $100 per day per employee for noncompliance with coverage provisions of the Affordable Care Act); 26 U.S.C. §4980H (annual tax assessment for noncompliance with requirement to provide health insurance)." Tyndale House Publishers, Inc. v. Sebelius, F.Supp.2d _ , 2012 WL 5817323 *2 (D.D.C., Nove. 16, 2012). See also 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012).
59. The Affordable Care Act purports to not apply to the 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).
60. However, even etnployers with fewer than 50 employees purchase insurance from health insurance issuers, who are subject to the Affordable Care Act. 42 USC § 300GG-13 (a)(1 )-(4).
61. Certain provisions of the Affordable Care Act do not apply equally tomembers 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 memhers of'' health care sharing ministry" that meets certain criteria).
62. Plaintiffs do not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(A)(i) and (ii), as Plaintiffs do not object to acceptance of public or private insurance funds in their totality and currently enjoy health insurance benefits that exclude contraceptives, abortion, and abortifacients.
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employers who provide so-called "grandfathered" health care plans. 64. Employers who follow HHS guidelines may continue to use grandfathered plans
indefinitely. 65. Plaintiffs' current insurance plans do not qualify as "grandfathered" health care
plans, and are considered "non-grandfathered." 66. Furthermore, Plaintiffs do not qualify for the "religious employer" exemption
contained in 45 C.F.R § 147.130 (a)(l)(A) and (B). 67. Since Plaintiffs do not qualify for the "religious employer" exemption, they are
not permitted to take advantage of the "temporary safe harbor" as set forth by the Defendants at 77 Fed. Reg. 8725 (Feb. 15, 2012).
68. Plaintiffs are thus subjected to the Mandate now and are confronted with choosing between complying with its requirements in violation of their religious beliefs or violating federal law.
69. Plaintiffs must choose between complying with the requirements of the Affordable Care Act in violation of their religious beliefs or pay fines which would make MKC substantially and economically unviable as an ongoing business entity, or eliminate all health care programs.
70. Plaintiffs are collectively confronted with complying with the requirements of the Affordable Care Act in violation of their religious beliefs or removing themselves from the health insurance market in its entirety, endangering the health and economic stability of their workforce families and forcing their company to be non-competitive as an employer in a market where other employers will be able to provide insurance to their employees under the Affordable Care Act without violating their beliefs.
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71. The Affordable Care Act creates a system that is not generally applicable because it provides for numerous individualized exemptions from its rules.
72. The Affordable Care Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not. Some groups, both secular and religious, have received waivers from complying with the provisions of the Affordable Care Act, while others - such as Plaintiffs - have not.
73. The United States Department of Health and Human Services has the authority under the Affordable Care Act to grant compliance waivers ("HHS waivers") to employers and other health insurance plan issuers.
74. HHS waivers release employers and other plan issuers from complying with the provisions of the Affordable Care Act.
75. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers.
76. Upon information and belief, more than one thousand HHS waivers have been granted.
THE "PREVENTIVE CARE" MANDATE 77. A provision 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 supported by the Health Resources and Services Administration" and directs the Secretary of United States Department of Health and Human Services to determine what would constitute "preventative care" under the mandate. 42 U.S.C § 300gg-13(a)(4). 78. On July 19, 2010, HHS, along with the United States Department of Treasury and
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the United States Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726 (2010). The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
79. On February 15, 2012, the United States Department of Health and Human Services promulgated a mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedures, patient education, and counseling for all women with reproductive capacity in plan years beginning on or after August 1, 2012 (hereafter, "the Mandate"). See 45 CPR § 147.130 (a)(l)(iv), as confirmed at 77 Fed. Reg. 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines).
80. The Mandate was enacted pursuant to statutory authority under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended by the Health Care and Education Act of 2010, Pub. L. No. 111-152 (ACA). 77 Fed. Reg. 31, 8725 ("Affordable Care Act").
81. In its ruling, HHS included all FDA-approved contraceptives under the banner of preventive services, including contraception, abortion, and abortifacients such as the "morningafter pill," "Plan B," and "ella," a close cousin of the abortion pill RU-486. (http://www.hrsa.gov/womensguidelines ).
82. The Mandate's reach seeks to control the decisions of employers, individuals and also the decisions of all insurance issuers (i.e. "Blue Cross/Blue Shield of Michigan," etc.). 42 USC§ 300gg-13 (a)(1)-(4). ("A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not
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impose any cost sharing requirements for evidence-based items or services that have in effect a rating of "A" or "B" in the current recommendations of the United States Preventive Services Task Force; ... with respect to women, such additional 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.").
83. All insurance issuers are mandated to include contraception, abortion, and abortifacients such as the "morning-after pill," "Plan B," and "ella" in all of its group and individual plans, not specifically exempted, beginning as of August 1, 2012.
84. Individuals and employers, regardless of the number of employees they employ, will eventually be forced to select an insurance plan which includes what HHS deemed "preventative care."
85. All individuals and employers will be stripped of their choice not to pay for the "preventative care," regardless of whether paying for such "services" violates one's conscience or deeply held religious beliefs.
86. Health insurance issuers include insurance companies such as Blue Cross/Blue Shield of Michigan, which is the insurance issuer used by Plaintiffs.
87. The Mandate reaches even further than the Affordable Care Act to eliminate all employers and individuals from selecting a health insurance plan in which the insurance issuers do not automatically provide contraception, abortion, and abortifacients.
88. Prior to promulgating the Mandate, HHS accepted public comments to the 2010 interim final regulations from July 19, 2010 to September 17, 2010. Upon information and belief, a large number of groups filed comments, warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of services,
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including contraception, abortion, and abortifacients. 89. 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. (http://www.hrsa.gov/womensguidelines).
90. No religious groups or other groups that oppose government-mandated coverage of contraception, abortion, and related education and counseling were among the invited presenters.
91. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventative services include "All Food and Drug Administration approved contraceptive methods." (Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011)).
92. Preventative services therefore include FDA-approved contraceptive methods such as 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.
93. Plan B and "ella" can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each constitute an "abortion" as that term is used in federal law. Consequently, Plan B and "ella" are abortifacients.
94. Thirteen days later, on August 1, 2011, without notice of rulemaking or opportunity for public comment, HHS, the United States Department of Labor, and the United
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States 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 procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.P.R. § 147.130. Health Resources and Services Administration issued guidelines adopting the IOM recommendations. (http://www.hrsa.gov/womensguidelines).
95. The Mandate also requires group health care plans and insurance tssuers to provide education and counseling for all women beneficiaries with reproductive capacity.
96. The Mandate went into effect immediately as an "interim final rule." 97. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued. 98. Instead the Mandate was unresponsive to the concerns stated in the con1illents submitted by religious organizations. 99. When it issued the Mandate, HHS requested comments from the public by September 30th and indicated that comments would be available online. 100. Upon information and belief, over 100,000 comments were submitted against the Mandate. 101. The Mandate fails to take into account the statutory and constitutional conscience rights of Plaintiffs, which has been a subject of comment. 102. The Mandate requires that Plaintiffs assist, provide, endorse, or fund coverage for contraception, abortion, abortifacients, and related education and counseling against its conscience in a manner that is contrary to law. 103. The Mandate constitutes government-imposed pressure and coercion on Plaintiffs
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to change or violate their religious beliefs. 104. The Mandate exposes Plaintiffs, as individuals and as employers of companies
with over 50 full-time employees, to substantial fines for refusal to change or violate their religious beliefs.
105. The Mandate imposes a burden on Plaintiffs' workforce recruitment efforts by creating uncertainty as to whether Plaintiffs will be able to offer health insurance to its workforce.
106. The Mandate places Plaintiffs at a competitive disadvantage in its efforts to recruit and retain a workforce.
107. The Mandate forces Plaintiffs to provide, fund, or approve and assist its workforce in purchasing contraception and abortifacient drugs in violation of Plaintiffs' religious beliefs, that doing so is gravely immoral and, in certain cases, equivalent to assisting another to kill innocent human life.
108. Plaintiffs have a sincere religious objection to providing coverage for emergency contraceptive drugs such as Plan B and "ella" since they believe 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.
109. Plaintiffs consider the prevention by artificial means of the implantation of a human embryo to be an abortion.
110. Plaintiffs believe that Plan B and "ella" can cause the death of the embryo, which is a person.
111. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 112. "Ella" can prevent the implantation of a human embryo in the wall of the uterus.
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113. Plan Band "ella" can cause the death of the embryo. 114. 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. 115. The use of artificial means to cause the death of a human embryo constitutes an "abortion" as that term is used in federal law. 116. The Mandate forces Plaintiffs 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. 117. The Mandate forces Plaintiffs to fund education and counseling concerning contraception, and abortion that directly conflicts with Plaintiffs' religious beliefs and teachings. 118. Plaintiffs could not cease providing its workforce with health insurance coverage without violating its religious duty to provide for the health and well-being of its workforce and their families. Additionally, employees would be unable to attain similar coverage in the market as it now exists. 119. The Mandate forces Plaintiffs to choose among violating their religious beliefs, incurring substantial fines, or terminating their workforce or individual health insurance coverage. 120. Providing counseling and education about contraceptives and abortion directly undermines and subverts the explicit messages and speech of Plaintiffs. 121. Group health plans and insurance issuers were subject to the Mandate as of August 1, 2012. 122. Plaintiffs have already devoted significant institutional resources, including both staff time and funds, to determine how to respond to the Mandate.
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THE NARROW AND DISCRETIONARY RELIGIOUS EXEMPTION 123. The Mandate indicates that the Health Resources and Services Administration ("HRSA") "may" grant religious exemptions to certain religious employers. 45 C.F .R. § · 14 7 .130( a)(iv)(A). 124. 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 6033(a)(l) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." 45 C.P.R.§ 147.130(a)(iv)(B). 125. 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." 126. Most companies, including MKC, have more than one purpose. 127. For Plaintiffs, the inculcation of religious values is only one purpose among others. 128. Many compantes, including MKC, employ many persons who do not share common religious beliefs. 129. Many companies, including MKC, serve many persons who do not share certain religious tenets of a religious organization. 130. Plaintiffs are, as confirmed by their respective insurance issuers, subject to the Mandate despite the existence of exemptions to the Mandate, as none of the exemptions
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apply to Plaintiffs.

131. On January 20, 2012, Defendant Sebelius mmounced 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 an additional year, until August 1, 2013, to comply with the new law," on the condition that those employers certify they qualify for the extension. At 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 income- based support." See Statement by U.S. Department of Health and

Human

Services

Secretary

Kathleen

Sebelius,

(http://www.hhs.gov/news/press/2012pres/01/20120120a.html). To date, Defendant HHS has

not released any official rule implementing either the one-year extension or the additional

forced-speech requirement that applies to Plaintiffs.

132. Plaintiffs have had to comply with the Mandate, despite the fact that Plaintiffs

are violating the teachings of their religious beliefs by directly providing, funding, and/or engaging in disseminating information and guidance about where to obtain contraception,

abortion, or abortifacient services.

CLAIMS

COUNT I Violation of the First Amendment to the United States Constitution Establishment Clause
133. Plaintiffs incorporate by reference all preceding paragraphs.
134. By design, Defendants imposed the Mandate on some religious organizations but

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not on others, resulting in a selective burden on Plaintiffs. 135. Defendants also imposed the Mandate on some religious individuals and religious
organizations but not on others, resulting in a selective burden on Plaintiffs. 136. 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." 137. The Mandate also vests HRSA with unbridled discretion in deciding whether to
allow exemptions to some, all, or no individuals. 138. The Mandate and Defendants' threatened enforcement of the Mandate therefore
violates Plaintiffs' rights secured to them by the Establishment Clause of the First Amendment to the United States Constitution.
139. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution Freedom of Speech 140. Plaintiffs incorporate by reference all preceding paragraphs. 141. The Mandate compels Plaintiffs to fund and to provide education and counseling related to contraception, abortion, and abortifacients. 142. Defendants' actions thus violate Plaintiffs' right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 143. The Mandate's compelled speech requirement is not narrowly tailored to a compelling governmental interest. 144. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
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COUNT III Violation of the First Amendment to the United States Constitution Expressive Association 145. Plaintiffs incorporate by reference all preceding paragraphs. 146. The Mandate compels Plaintiffs to fund and to provide education and counseling related to contraception, abortion, and abortifacients. 147. Defendants' actions thus violate Plaintiffs' right of expressive association as secured to them by the First Amendment of the United States Constitution. 148. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech 149. Plaintiffs incorporate by reference all preceding paragraphs. 150. By stating that HRSA "may" grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations or individuals may have their First Amendment interests accommodated. 151. The Mandate vests HRSA with unbridled discretion to determine whether religious individuals such as Plaintiffs fall under the individual religious exemption. See 26 U.S.C. § 5000A(d)(2)(a)(i)-(ii). 152. The Mandate furthermore seems to have completely failed to address the constitutional and statutory implications of the Mandate on for-profit, secular employers such as Plaintiffs. As such, Plaintiffs are subject to the unbridled discretion of HRSA to determine whether such companies would be exempt. 153. Defendants' actions therefore violate Plaintiffs' right not to be subjected to a
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system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to them by the First Amendment of the United States Constitution.
154. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNTV Violation of the Religious Freedom Restoration Act 155. Plaintiffs incorporate by reference all preceding paragraphs. 156. Plaintiffs' sincerely held religious beliefs prohibit them from providing or purchasing coverage for contraception, abortion, abortifacients, or related education and counseling. Plaintiffs' compliance with these beliefs is a religious exercise. 157. The Mandate creates government-imposed coerc1ve pressure on Plaintiffs to change or violate their religious beliefs. 158. The Mandate chills Plaintiffs' religious exercise. 159. The Mandate exposes Plaintiffs to substantial fines for their religious exercise. 160. The Mandate exposes Plaintiffs, who constitute employers with 50 or more fulltime employees to substantial fines for their religious exercise. 161. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that they will no longer be permitted to offer or purchase health insurance. 162. The Mandate imposes a substantial burden on Plaintiffs' religious exercise. 163. The Mandate furthers no compelling governmental interest. 164. The Mandate is not narrowly tailored to any compelling governmental interest. 165. The Mandate is not the least restrictive means of furthering Defendants' stated interests. 166. The Mandate and Defendants' threatened enforcement of the Mandate violate
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Plaintiffs' rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et. seq. ("RFRA").
167. Absent injunctive and declaratory relief against the Defendants, Plaintiffs have been and will continue to be harmed.
COUNT VI Violation of the Administrative Procedure Act 168. Plaintiffs incorporate by reference all preceding paragraphs. 169. The Affordable Care Act expressly delegates to an agency within Defendant United States Department of Health and Human Services, the Health Resources and Services Administration, the authority to establish "preventive care" guidelines that a group health plan and health insurance issuer must provide. 170. Given this express delegation, Defendants were obliged to engage in formal notice and comment rulemaking as prescribed by law before Defendants issued the guidelines regarding what group health plans and insurers must provide. 171. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given a chance to take part in the rulemaking through the submission of written data, views, or arguments. 172. Defendants promulgated the "preventive care" guidelines without engaging in the formal notice and comment rulemaking as prescribed by law. Defendants delegated the responsibilities for issuing "preventive care" guidelines to a non-governmental entity, the Institute of Medicine, which did not permit or provide for broad public comment otherwise required by the Administrative Procedures Act. 173. Defendants also failed to engage in the required notice and comment rulemaking when Defendants issued the interim final rules and the final rule that incorporates the "preventive
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care" guidelines. 174. 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." 175. 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.
176. Therefore, Defendants have taken agency action not tn observance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
177. Moreover, 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 (September 30, 2008) ("Weldon Amendment").
178. The Weldon Amendment provides that "[n]one of the funds made available in this Act [making appropriations for Defendants United States Department of Labor and United States Department of Health and Human Services] may be made available to a Federal agency or program . .. if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions."
179. The Mandate requires issuers, employers, and individuals, including Plaintiffs to provide and purchase coverage of all Federal Drug Administration-approved contraceptives.
180. Some FDA-approved contraceptives cause abortions. 181. As set forth above, the Mandate violates RFRA and the First Amendment.
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182. Moreover, the Mandate is contrary to the provisions of the Affordable Care Act. 183. Section 1303(b)(l)(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." 184. 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. 185. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does. 186. However, the Mandate requires all issuers, including Plaintiffs and Plaintiffs' insurance issuer, Blue Cross/Blue Shield of Michigan, to provide coverage of all Federal Drug Administration-approved contraceptives. 187. Some FDA-approved contraceptives cause abortions. 188. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the Mandate on Plaintiffs and similar companies arid individuals. 189. Defendants' explanation for its decision not to exempt Plaintiffs and similar religious individuals from the Mandate runs counter to the evidence submitted by religious organizations during the comment period. 190. 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. 191. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
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PRAYER FOR RELIEF

Wherefore, Plaintiffs request that the Court:

a.

Declare that the Mandate and Defendants' enforcement of the Mandate against

Plaintiffs violates the First Amendment to the United States Constitution;

b.

Declare that the Mandate and Defendants' enforcement of the Mandate against

Plaintiffs violates the Religious Freedom Restoration Act;

c.

Declare that the Mandate was issued in violation of the Administrative

Procedure Act;

d.

Issue both a preliminary and a permanent injunction prohibiting and enjoining

Defendants from enforcing the Mandate against Plaintiffs and other religious individuals,

employers, and companies that object to funding and providing insurance coverage for

contraceptives, abortion, abortifacients, and related education and counseling;

e.

Award Plaintiffs the costs of this action and reasonable attorney's fees; and

f.

Award such other and further relief as it deems equitable and just.

VERIFICATIONS
I HEREBY VERIFY, UNDER PENALTY OF PERJURY, THAT THE CONTENTS OF THE COMPLAINT ARE TRUE AND ACCURATE TO THE BEST OF MY KNOWLEDGE,
~ INFORMATION, AND BELIEF BASED ON THE FACTS CURRENTLY KNOWN BY ME.
Dated: J-2A-13 eraidD:Cha.llbefS:individually and as President ofM.K. Chambers Company

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2:13-cv-11379-DPH-MJH Doc # 1 Filed 03/28/13 Pg 30 of 30 Pg ID 30

I HEREBY VERIFY, UNDER PENALTY OF PERJURY, THAT THE CONTENTS OF THE COMPLAINT ARE TRUE AND ACCURATE TO THE BEST OF MY KNOWLEDGE,
INFORMATION, AND BELIEF BASED ON THE FACTS CURRENTLY KNOWN BY ME.

Dated:

~U/~
Robert W. Chambers, individually and as Vice President of M.K. Chambers Company

Dated: ::J/7.- ('/13

Respectfully submitted,
Is/ Daniel E. Chapman
THE TROY LAW FIRM DANIEL E. CHAPMAN (P41043) KIMBERLY A. COCHRANE (P73032) Attorneys for Plaintiffs 888 W Big Beaver Road, Ste 1400 Troy, MI 48084 (248) 244-9100 dchapman@troylawfirm.com kcochrane@troylawfirm.com

30

 
 2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 1 of 66 Pg ID 275

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

M.K. CHAMBERS COMPANY, a Michigan corporation; GERALD D. CHAMBERS, an individual; and ROBERT W. CHAMBERS, an individual,
Plaintiffs,

Judge Denise Page Hood Magistrate Judge Michael J. Hluchaniuk

Case No. 2:13-cv-11379 v.

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB J. LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants. ____________________________________________________________________________/

THE TROY LAW FIRM DANIEL E. CHAPMAN KIMBERLY A. COCHRANE Attorneys for Plaintiffs 888 W Big Beaver Road, Ste 1400 Troy, MI 48084 (248) 244-9100 dchapman@troylawfirm.com kcochrane@troylawfirm.com

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch BRADLEY P. HUMPHREYS Attorneys for Defendants 20 Massachusetts Avenue N.W. Washington, D.C. 20001 (202) 514-3367 bradley.p.humphreys@usdoj.gov

_____________________________________________________________________________/

PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION _____________________________________________________________________________/

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Plaintiffs, M.K. Chambers Company (“MKC”), Gerald D. Chambers (“GDC”), and Robert W. Chambers (“RWC”), (collectively MKC, GDC, and RWC referred to as "Plaintiffs"), by their attorneys, The Troy Law Firm, hereby move this Honorable Court to enter an order for preliminary injunction, pursuant to Fed. R. Civ. P. 65(a) and L.R. 65.1, in order to prevent continued and immediate irreparable injury to Plaintiffs’ fundamental rights and interests.
In support of their emergency motion, Plaintiffs rely upon the pleadings and papers of record, as well as their brief filed with this motion, and the declarations and exhibits attached hereto. For the reasons set forth more fully below, Plaintiffs hereby request that this Honorable Court enjoin the enforcement of Defendants’ Health and Human Services Mandate of the Affordable Care Act (“HHS Mandate”) which violates Plaintiffs’ rights guaranteed by the First Amendment to the United States Constitution and the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq.
Prior to the filing of this Emergency Motion for Preliminary Injunction, the attorneys for the parties, Kimberly A. Cochrane and Bradley P. Humphreys, held a telephone conference on April 23, 2013, discussing the nature of the relief sought and its legal basis. Plaintiffs’ Counsel requested but did not obtain concurrence in the relief sought. Such has been the case with plaintiffs across the country who have filed similar lawsuits in objection to the HHS Mandate.
Across the country, the federal district courts are disagreeing as to how these cases should be decided, and some cases in this district have made their way up to the Sixth Circuit Court. Before deciding the merits of these cases, guidance from the appellate courts and/or the Supreme Court may be beneficial. In the meantime, as discussed more fully in their brief, Plaintiffs contend that there would be no harm to any party if a preliminary injunction were
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issued in this case now, as such injunction would merely maintain the status quo that has existed in this country for the past 237 years.
WHEREFORE, for all the above reasons, and the reasons stated in Plaintiffs’ attached brief, Plaintiffs hereby request that this Honorable Court issue an order for preliminary injunction, and any other relief it deems appropriate.

Dated: April 26, 2013

Respectfully submitted,
/s/ Kimberly A. Cochrane THE TROY LAW FIRM DANIEL E. CHAPMAN KIMBERLY A. COCHRANE Attorneys for Plaintiffs 888 W Big Beaver Road, Ste 1400 Troy, MI 48084 (248) 244-9100 dchapman@troylawfirm.com kcochrane@troylawfirm.com

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2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 4 of 66 Pg ID 278

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

M.K. CHAMBERS COMPANY, a Michigan corporation; GERALD D. CHAMBERS, an individual; and ROBERT W. CHAMBERS, an individual,
Plaintiffs,

Judge Denise Page Hood Magistrate Judge Michael J. Hluchaniuk

Case No. 2:13-cv-11379 v.

KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; SETH D. HARRIS, Acting Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB J. LEW, Secretary of the United States Department of the Treasury; and UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants. ____________________________________________________________________________/

THE TROY LAW FIRM DANIEL E. CHAPMAN KIMBERLY A. COCHRANE Attorneys for Plaintiffs 888 W Big Beaver Road, Ste 1400 Troy, MI 48084 (248) 244-9100 dchapman@troylawfirm.com kcochrane@troylawfirm.com

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch BRADLEY P. HUMPHREYS Attorneys for Defendants 20 Massachusetts Avenue N.W. Washington, D.C. 20001 (202) 514-3367 bradley.p.humphreys@usdoj.gov

_____________________________________________________________________________/

PLAINTIFFS’ BRIEF IN SUPPORT OF EMERGENCY MOTION FOR PRELIMINARY INJUNCTION _____________________________________________________________________________/

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TABLE OF CONTENTS INDEX OF AUTHORITIES……………………………………………………………………iv INDEX OF EXHIBITS…………………………………………………………………..…..…xii INTRODUCTION………..……………………………………………………………….……..1 STATEMENT OF FACTS……………………………………………………………….……...2 ARGUMENT……………..……………………………………………………………….……..7
I. PLAINTIFFS’ ARE LIKELY TO SUCCEED ON THE MERITS.…………7 A. The HHS Mandate violates the Religious Freedom Restoration Act..8 1. Plaintiffs’ abstention from providing abortion-inducing drugs in their workforce health insurance plans qualifies as “religious exercise” under the RFRA……………..10 a. MKC exercises religious beliefs……………..………..12 b. MKC’s religious owners can exercise religion under the RFRA………………………………………..15 2. The HHS Mandate substantially burdens MKC’s and its Owners’ religious exercise………………………………………17 3. The HHS Mandate cannot satisfy strict scrutiny ………………..22 a. Defendants cannot identify a compelling interest…….24 b. There is no “business exception” to the RFRA’s compelling interest test…………………………………28 c. The Government cannot meets its evidentiary burden…………………………………………………...30 d. Defendants cannot show that the HHS Mandate is the least restrictive means of furthering their interests..…34 B. The HHS Mandate violates the First Amendment to the United States Constitution, Free Exercise Clause……………………………………37
ii

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 6 of 66 Pg ID 280 C. The HHS Mandate violates the First Amendment to the Constitution, Establishment Clause…………………………………………………..40 D. The HHS Mandate violates the First Amendment to the Constitution, Free Speech and Expressive Association………..………………….…41 E. The HHS Mandate violates the Administrative Procedure Act……..45
II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM WITHOUT INJUNCTIVE RELIEF……………………………………………………...…46
III. THE BALANCE OF EQUITIES TIPS IN PLAINTIFFS’ FAVOR…….…..48 IV. AN INJUNCTION IS IN THE PUBLIC INTEREST………………………..49 CONCLUSION …………………………………………………………………………………50 CERTIFICATE OF SERVICE………………………………………………………………..…51
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Cases

TABLE OF AUTHORITIES

Abood v. Detroit Board of Education, 431 U.S. 209 (1977) .................................................. 42, 44

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).................................................................. 15

American Pulverizer Co., et al. v. Dep’t of Health & Human Servs, et al., No. 12-3459 (W.D.

Mo. December 20, 2012) ............................................................................................................ 2

Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004) ........................................................... 39

Boy Scouts of America v. Dale, 530 U.S. 640 (2000)................................................................... 43

Braunfeld v. Brown, 366 U.S. 599 (1961) ...................................................................................... 9

Brown v. Entm’t Merchs. Ass’n, 564 U.S. ___ (2011) .......................................................... passim

Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) ................................................................. 23

Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021 (9th Cir.

2009) ......................................................................................................................................... 39

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)....................... passim

Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010) ............................................ 14

City of Boerne v. Flores, 521 U.S. 507 (1997) ............................................................................. 22

Colo. Christian U. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) ................................................... 41

Commack Self-Service Kosher Meats, Inc. v. Hooker, 800 F. Supp. 2d 405 (E.D.N.Y. 2011).... 13

Connection Distributing Co. v. Reno, 154 F.3d 281 (6th Cir. 1998).................................. 7, 42, 48

Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474 (6th Cir. 1995)............... 50

Dunn v. Blumstein, 405 U.S. 330 (1971) ...................................................................................... 34

EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) ..................................... 12, 16

Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................ 46

Employment Division v. Smith, 494 U.S. 872 (1990) ............................................................ passim

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2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 8 of 66 Pg ID 282
First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)................................................... 13 Fraternal Order of Police v. City of Newark 170 F.3d 359 (3d Cir. 1999) ................................. 39 G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) .......... 50 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ........... passim Grand Canyon Air Tour Coalition v.F.A.A., 154 F.3d 455 (D.C. Cir. 1998) .............................. 45 Grutter v. Bollinger, 539 U.S. 306 (2003).................................................................................... 34 Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644 (6th Cir. 2007) ............................................ 7 Healy v. James, 408 U.S. 169 (1972) ........................................................................................... 42 Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995)........... 41, 43, 44 Jasniowski v. Rushing, 678 N.E.2d 743 (Ill. App. Dist. 1, 1997)........................................... 13, 22 Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002) ....................................................... 34 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) .............................................................................. 47 Keller v. State Bar of California, 496 U.S. 1 (1990) .................................................................... 42 Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) .................................................................... 47 Knox v. Service Employees Intern. Union, 567 U.S. ___ (2012) ................................................. 44 Larson v. Valente, 456 U.S. 228 (1982) ....................................................................................... 41 Legatus, et al. v. Sebelius, et al., No. 12-12061 (E.D. Mich. Oct. 31, 2012) ................... 34, 46, 48 Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985) ............................................. 15 Maruani v. AER Services, Inc., 2006 WL 2666302 (D. Minn. 2006) .......................................... 13 McClure v. Sports and Health Club, Inc., 370 N.W.2d 844 (Minn. 1985) ...................... 12, 16, 22 McLouth Steel Products Corporation v. Thomas, 838 F.2d 1317 (D.C. Cir. 1988)..................... 45 Mitchell Cnty. v. Zimmerman, 810 N.W.2d 1 (Iowa 2012) .......................................................... 40 Monell v. Dept. of Social Services, 436 U.S. 658 (1978) ............................................................. 15
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Morr-Fitz, Inc. et al. v. Blagojevich, No. 2005-CH-000495, slip op. at 6–7, 2011 WL 1338081 (Ill. Cir. Ct. 7th, Apr. 5, 2011) ............................................................................................ 13, 22
NAACP v. Alabama, 357 U.S. 449 (1958).................................................................................... 42 New York Times Co. v. Sullivan, 376 U.S. 254 (1964)................................................................. 15 Newland, et al. v. Sebelius, et al., No. 12-1123 (D. Colo. July 27, 2012).......................... 2, 20, 24 NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) ........................................................ 39 O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) ... 50 O’Brien v. U.S. Dep’t of Health & Human Srvs., 2012 WL 4481208 (E.D. Mo. 2012) ........ 20, 21 Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295 (11th
Cir. 2006) .................................................................................................................................. 15 Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988) ............ 36 Roberts v. Bradfield, 12 App. D.C. 453 (D.C. Cir. 1898) ............................................................ 13 Roberts v. United States Jaycees, 468 U.S. 609 (1984) ............................................................... 42 Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47 (2006) ................................. 44 Sampson v. Murray, 415 U.S. 61 (1974) ...................................................................................... 46 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ................................................ 12, 16, 22 Thomas v. Collins, 323 U.S. 516 (1945)....................................................................................... 23 Thomas v. Review Bd., 450 U.S. 707 (1981) ......................................................................... passim Tyndale House Publishers, Inc. v. Sebelius, et al., No. 12-1635 (D.D.C. Nov. 16, 2012)............. 2 United States v. Amedy, 24 U.S. 392, 11 Wheat. 392 (1826) ....................................................... 15 United States v. Lee, 455 U.S. 252 (1982)............................................................................. passim United States v. Philadelphia Yearly Meeting of the Religious Soc’y of Friends, 322 F. Supp. 2d
603 (E.D. Pa. 2004)................................................................................................................... 12
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United States v. United Foods, 533 U.S. 405 (2001) ................................................................... 44 Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2001)................................................... 39 W. Presbyterian Church v. Bd. of Zoning Adjustment of Dist. of Columbia, 849 F. Supp. 77
(D.D.C. 1994) ........................................................................................................................... 47 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) .......................................................... 7 W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ........................................................... 41 Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990)........................................................................... 41 Wooley v. Maynard, 430 U.S. 705 (1977) .............................................................................. 41, 42 Statutes 5 U.S.C. § 553(b) & (c)................................................................................................................. 45 5 U.S.C. § 701, et seq...................................................................................................................... 1 5 U.S.C. § 706(2)(D)..................................................................................................................... 45 20 U.S.C. § 1688........................................................................................................................... 14 26 U.S.C. § 4980D .................................................................................................................. 11, 17 26 U.S.C. § 4980H ........................................................................................................ 6, 11, 17, 29 26 U.S.C. § 5000A .............................................................................................................. 5, 24, 29 29 U.S.C. § 1132(a) ...................................................................................................................... 17 42 U.S.C § 300gg-13(a)(4) ............................................................................................................. 3 42 U.S.C. § 1395w-22(j)(3)(B)..................................................................................................... 14 42 U.S.C. § 1396u-2(b)(3)(B)....................................................................................................... 14 42 U.S.C. § 18011(a)(2).................................................................................................................. 5 42 U.S.C. § 18023......................................................................................................................... 13 42 U.S.C. § 2000bb et seq...................................................................................................... passim
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42 U.S.C. § 2000cc-5(7)(A).................................................................................................... 10, 12 42 U.S.C. § 2000e–1(a)................................................................................................................. 14 42 U.S.C. § 238n........................................................................................................................... 14 42 U.S.C. § 2996f(b)(8) ................................................................................................................ 14 42 U.S.C. § 300a-7........................................................................................................................ 14 42 U.S.C. § 300gg-13 ......................................................................................................... 3, 36, 40 42 U.S.C. § 300gg-13(a)(4) .......................................................................................................... 36 42 U.S.C. 2000bb-1 ...................................................................................................................... 34 Pub. L. 112-74, Title VII, Div. C, § 727................................................................................. 14, 19 Pub. L. 112-74, Title V, § 507(d) ................................................................................................. 14 Title VII .................................................................................................................................. 14, 19 Title VIII, Div. C, § 808 ......................................................................................................... 14, 19 Title X ........................................................................................................................................... 35 Title XIX ....................................................................................................................................... 35 Regulations 26 C.F.R. § 54.9815-1251T ............................................................................................................ 5 29 C.F.R. § 2590.715-1251............................................................................................................. 5 45 C.F.R. § 147.130 ............................................................................................................ 5, 38, 40 45 C.F.R. § 147.140 ........................................................................................................................ 5 48 C.F.R. § 1609.7001(c)(7) ......................................................................................................... 14 75 Fed. Reg. 34538 ....................................................................................................................... 25 75 Fed. Reg. 34540 ....................................................................................................................... 25 75 Fed. Reg. 34558 ....................................................................................................................... 25
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75 Fed. Reg. 34562 ....................................................................................................................... 25 75 Fed. Reg. 34566 ....................................................................................................................... 25 75 Fed. Reg. 41726 ................................................................................................................... 4, 45 76 Fed. Reg. 46621 ......................................................................................................................... 4 76 Fed. Reg. 46621–26 ................................................................................................................. 45 76 Fed. Reg. 46623 ........................................................................................................... 19, 24, 40 76 Fed. Reg. 46624 ....................................................................................................................... 45 76 Fed. Reg. 46626 ................................................................................................................. 24, 27 77 Fed. Reg. 8725 ........................................................................................................... 4, 5, 29, 46 77 Fed. Reg. 8726 ......................................................................................................................... 29 77 Fed. Reg. 16501 ..................................................................................................... 19, 35, 40, 46 77 Fed. Reg. 16503 ....................................................................................................................... 19 Other Authorities Cooper, Helene & Laurie Goodstein, “Rule Shift on Birth Control Is Concession to Obama
Allies” (Feb. 10, 2012), available at http://www.nytimes.com/2012/02/11/ health/ policy/ obama-to-offer-accommodation-on-birth-control-rule-officials-say.html? pagewanted = all&_r=0 .................................................................................................................................... 28 Ctrs. For Disease Control and Prevention, Morbidity and Mortality Weekly Report, Prepregnancy Contraceptive Use Among Teens with Unintended Pregnancies Resulting in Live Births — Pregnancy Risk Assessment Monitoring System (PRAMS), 2004–2008,” 61(02); 25-29 (Jan. 20, 2012), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ mm6102a1.htm?s_cid=mm6102a1_e ....................................................................................... 31
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Duenas, J.L., et al., “Trends in the Use of Contraceptive Methods and Voluntary Interruption of Pregnancy in the Spanish Population During 1997–2007,” Contraception, January 2011, at 8287............................................................................................................................................... 33
Edgardh, K., et al., “Adolescent Sexual Health in Sweden,” 78 Sexual Transmitted Infections 352-56 (2002) available at http://sti.bmjjournals.com/cgi/content/full/78/5/352 .................... 33
Finer, L. B., and S. K. Henshaw, “Disparities in rates of unintended pregnancy in the United States, 1994 and 2001,” 38(2) Perspectives on Sexual & Reprod. Health 90–96 (2006) available at http://www.guttmacher.org/pubs/journals/3809006.html ..................................... 33
Girma, Sourafel, David Paton, “The Impact of Emergency Birth Control on Teen Pregnancy and STIs,” Journal of Health Economic, March 2011, at 373-380 ................................................. 33
Glasier, A., “Emergency Contraception,” British Medical Journal (Sept 2006): 560-561........... 33 Guttmacher Institute, Facts on Contraceptive Use in the United States (June 2010), available at
http://www.guttmacher.org/pubs/fb_contr_use.html ................................................................ 31 Guttmacher Institute, Facts on Publicly Funded Contraceptive Services in the United States
(May 2012), available at http://www.guttmacher.org/pubs/fb_contraceptive_serv.html ........ 35 HealthCare.Gov, “Keeping the Health Plan You Have: The Affordable Care Act and
“Grandfathered” Health Plans,” (June 14, 2010), available at http://www.healthcare.gov/news/ factsheets/2010/06/keeping-the-health-plan-you-have-grandfathered.html ....................... 25, 29 HHS, News Release (January 20, 2012), available at http://www.hhs.gov/news/ press/ 2012pres/01/20120120a.html.................................................................................................... 19 HRSA, “Women’s Preventive Services,” available at http://www.hrsa.gov/ womensguidelines................................................................................................................... 4, 5
Institute of Medicine, The Best Intentions (1995) available at http://books.nap.edu/openbook.
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2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 14 of 66 Pg ID 288 php?record_id=4903&page=64 ................................................................................................ 32 Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (2011), available at http://books.nap.edu/openbook.php?record_id=13181......................................... 30 Jones, R., J. Darroch and S.K. Henshaw “Contraceptive Use Among U.S. Women Having Abortions,” 34 Perspectives on Sexual and Reproductive Health 294–303 (2002) ................. 31 Laycock, Douglas & Oliver S. Thomas, “Interpreting the Religious Freedom Restoration Act,” 73 Tex. L. Rev. 209, 224 (1994). ......................................................................................... 30, 36 Mosher WD & Jones J, Use of contraception in the United States: 1982–2008, Vital and Health Statistics, 2010, Series 23, No. 29, at 14 and Table E, available at http://www.cdc.gov/ NCHS/data/series/sr_23/sr23_029.pdf...................................................................................... 31 WhiteHouse.gove, “Remarks by the President on Preventive Care” (Feb. 10, 2012), available at http://www.whitehouse.gov/the-press-office/2012/02/10/ remarks-president-preventive-care ........................................................................................... 19
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INDEX OF EXHIBITS

Exhibit 1 Exhibit 2

Affidavit of Gerald D. Chambers Affidavit of Robert W. Chambers

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INTRODUCTION This action arises because Defendants’ Health and Human Services Mandate of the Affordable Care Act (“HHS Mandate”) violates rights guaranteed to Plaintiffs’ by the First Amendment to the United States Constitution and the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. Defendants are mandating that MKC and its owners, GDC and RWC, allow coverage in their workforce health insurance policy for contraception, abortion, and drugs commonly referred to as “life style drugs,” in violation of their Catholic faith and other Christian beliefs, which forbid Plaintiffs from participating in, paying for, training others to engage in, or otherwise supporting contraception or the killing of people by abortion. Defendants’ HHS Mandate subjects Plaintiffs to having to defend lawsuits brought against them by the Secretary of Labor, as well as fines and penalties accruing in the amount of more than $240,000.00 per year. Forcing Plaintiffs to choose between their faith and such penalties is a blatant violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”), the First Amendment to the United States Constitution, and the Administrative Procedure Act, 5 U.S.C. § 701, et seq. Defendants cannot satisfy the strict scrutiny required under the RFRA and these laws. Plaintiffs are currently faced with imminent harm under Defendants’ HHS Mandate. Despite the current availability of contraceptives, abortion, and “life style drugs” through other means, without forcing Plaintiffs to provide them, the Government refuses to consent to this motion and instead fully threatens its penalties. Defendants have already been the subject of a preliminary injunction against the HHS Mandate. See Legatus, et al. v. Sebelius, et al., No. 1212061 (E.D. Mich. Oct. 31, 2012); Domino’s Farms Corporation, et al. v. Sebelius, et al., No.
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12-15488 (E.D. Mich. Dec. 30, 2012); American Pulverizer Co., et al. v. Dep’t of Health & Human Servs, et al., No. 12-3459 (W.D. Mo. Dec. 20, 2012); Newland, et al. v. Sebelius, et al., No. 12-1123 (D. Colo. Jul. 27, 2012); and Tyndale House Publishers, Inc. v. Sebelius, et al., No. 12-1635 (D.D.C. Nov. 16, 2012).
While great legal minds may differ, Plaintiffs contend that immediate injunctive relief is necessary to protect their religious freedom and preserve the status quo that has existed in this country for the last 237 years before the HHS Mandate.
STATEMENT OF FACTS Plaintiff, M.K. Chambers Company (“MKC”), is a Michigan corporation with a registered office in North Branch, Michigan.1 Plaintiff, Gerald D. Chambers (“GDC”), is the President of MKC and a 50% shareholder, and Plaintiff, Robert W. Chambers (“RWC”), is the Vice President of MKC and the other 50% shareholder.2 MKC is family owned and operated and was created 56 years ago by GDC’s and RWC’s father.3 GDC and RWC follow the teachings, mission, and values of the Catholic faith, and operate their business in a manner that does not conflict with their Catholic faith and other Christian beliefs.4 For decades, GDC and RWC formulated MKC’s health insurance policy with Blue Cross/Blue Shield of Michigan, to specifically exclude contraception, abortion, drugs commonly referred to as “life style drugs,” and otherwise exempted MKC from paying, contributing, or supporting contraception and abortion for others, or for “life style drugs.”5 GDC and RWC do not believe that contraception or abortion properly constitute health care, and involve immoral
1 See paragraph 3 of Affidavits of Gerald D. Chambers and Robert W. Chambers, attached as Exhibits 1 and 2, respectively. 2 See Exs. 1 and 2, ¶¶ 4-5. 3 See Exs. 1 and 2, ¶ 6. 4 See Exs. 1 and 2, ¶ 7. 5 See Exs. 1 and 2, ¶ 8.
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practices and the destruction of innocent human life.6 GDC and RWC formulated their workforce insurance policy with these exclusions in an effort to adhere to the Catholic Church’s teachings regarding the immorality of artificial means of contraception and sterilization, and their belief that actions intended to terminate an innocent human life by abortion are gravely sinful.7 Further, their religious beliefs forbid them from participating in, paying for, training others to engage in, or otherwise supporting contraception or the killing of people by abortion.8
GDC and RWC have always managed and operated MKC in a way that reflects the teachings, mission, and values of their Christian faith. For example, the MKC facilities remain closed and do not service any of their customers on Sundays. Additionally, through MKC, GDC and RWC strongly support, financially and otherwise, Catholic fundraisers and other events, and have refused to provide support, financially or otherwise, to events or entities that do not reflect the teachings, mission, and values of the Catholic faith, such as Planned Parenthood.9
Sadly, on January 1, 2013 and pursuant to the HHS Mandate, Plaintiffs lost the right to make health care insurance decisions in line with their Catholic views. The Affordable Care Act10 calls for health insurance plans to provide coverage and “not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines” and directed the Secretary of the United States Department of Health and Human Services, Defendant Sebelius, to determine what would constitute “preventative care.” 42 U.S.C. § 300gg-13(a)(4). Defendants United States Health and 6 See Exs. 1 and 2, ¶ 9. 7 See Exs. 1 and 2, ¶ 10. 8 See Exs. 1 and 2, ¶ 11. 9 See Exs. 1 and 2, ¶ 12. 10 The Patient Protection and Affordable Care Act, Public Law 111148, was enacted on March 23, 2010; the Health Care and Education Reconciliation Act of 2010, Public Law 111-152, was enacted on March 30, 2010 (collectively, the Affordable Care Act).
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Human Services, United States Department of Treasury, and United States Department of Labor, published an interim final rule under the Affordable Care Act, requiring providers of group health insurance to cover “preventive care” for women as provided in guidelines to be published on a later date.11 Prior to adopting those guidelines, Defendants accepted public comments. Upon information and belief, a large number of groups filed comments, warning of the potential conscience implications of requiring religious individuals and groups to pay for contraception, abortion, and abortifacients.
On February 15, 2012, Defendant United States Department of Health and Human Services (“HHS”) promulgated the Mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedures, patient education, and counseling for all women with reproductive capacity in plan years beginning on or after August 1, 2012 (the “HHS Mandate”). See 45 C.F.R. § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines). All FDAapproved contraceptives included contraception, abortion, and abortifacients such as birthcontrol pills; prescription contraceptive devices, including IUDs; Plan B, also known as the

11 Defendants directed the Institute of Medicine (“IOM”) to

compile recommended guidelines describing which drugs,

procedures, and services should be covered as preventative care

for women. (http://www.hrsa.gov/womensguidelines). IOM invited

select groups to make presentations on the preventive care that

should

be

mandated

by

all

health

plans.

(http://www.nap.edu/openbook.php?record_id=13181&PAGE=217). No

religious groups or groups opposing Government-mandated coverage

of contraception, abortion, and related education and counseling

were invited to present. Defendants adopted the IOM

recommendations in full. 76 Fed. Reg. 46621 (Aug. 3, 2011); 45

C.F.R. § 147.130.

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“morning-after pill”; and ulipristal, also known as “ella” or the “week-after pill”; and other drugs, devices, and procedures. (http://www.hrsa.gov/womensguidelines).
The Affordable Care Act and the HHS Mandate include a number of exemptions. The allowable factors for receiving exemptions under the Affordable Care Act include: the age of the plan, 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 (exempting plans that qualify for “grandfathered” status by meeting criteria such as abstaining from plan changes since the date of March 23, 2010); a non-profit company which qualifies as a “religious employer,” 45 C.F.R. § 147.130 (a)(iv)(A) and (B) (exempting non-profit companies which adopt certain hiring practices and exist to further the organization’s religious doctrine); and individuals of certain religions which disapprove of insurance in its entirety such as the Muslim or Amish religion, 26 U.S.C. § 5000A(d)(2)(A)(i)-(ii) (exempting members of “recognized religious sect or division” that conscientiously object to acceptance of public or private insurance funds). Because Plaintiffs do not fall under any of the abovedescribed exemptions, they are currently forced to pay for, fund, contribute, provide, or support artificial contraception, sterilization, abortion, abortifacients or related education and counseling, in violation of their Constitutional rights and deeply held religious beliefs. See 45 C.F.R. § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines).
Because of the HHS Mandate, MKC’s workforce insurance carrier has refused to continue writing a policy for MKC, as it has for decades, excluding contraception, abortion, and drugs commonly referred to as “life style drugs.” Thus, on January 1, 2013, when MKC’s current plan year began, MKC was forced to choose between one of two evils: (1) exercising its
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rights under the RFRA and the First Amendment and not offering workforce insurance coverage that includes contraception, abortion, and “life style drugs,” or (2) violating its rights and religious beliefs and offering workforce insurance coverage that includes contraception, abortion, and “life style drugs.” MKC unwillingly chose to sacrifice its religious beliefs, as opposed to not offering its workforce any insurance coverage at all.
If Plaintiffs choose not to provide insurance to its workforce, Plaintiffs will incur, at minimum, a $2,000 annual fine per employee, of which they have approximately 120 employees. 26 U.S.C. § 4980H.12 The fines are even more insurmountable if Plaintiffs decide to offer insurance that does not comply with the HHS Mandate. Moreover, if Plaintiffs discontinue providing health insurance, they will face disadvantages in employee recruitment and retention, and their workforce will be forced to seek expensive insurance on the private market.
Plaintiffs wish to simply continue providing health insurance in compliance with their sincere and deeply held religious beliefs, as they have done for decades.13 Plaintiffs bring this motion for injunctive relief to enjoin the unconstitutional and illegal directives of the HHS Mandate, and to preserve the status quo that has existed in this country for the last 237 years before the HHS Mandate. Currently, Defendants are forcing businesses and organizations which hold sincerely held religious beliefs to violate those beliefs by supplying contraceptive and abortifacient coverage through their workforce insurance plans. Such action blatantly disregards religious freedom and the right of conscience, and is nothing short of irreconcilable with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”), and the First Amendment.
12 See Exs. 1 and 2, ¶ 3. 13 See Exs. 1 and 2, ¶ 8.
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ARGUMENT The standard for issuing a preliminary injunction in this Circuit is well established. In Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998), the court stated:
In determining whether or not to grant a preliminary injunction, a district court considers four factors: (1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff could suffer irreparable harm without the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of the injunction on the public interest. See also Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007). Typically, the reviewing court will balance these factors, and no single factor will necessarily be determinative of whether or not to grant the injunction. Connection Distributing Co., 154 F.3d at 288. However, because this case deals with a violation of Plaintiffs’ First Amendment rights, the crucial and often dispositive factor is whether Plaintiffs are likely to prevail on the merits. Id.
I. PLAINTIFFS’ ARE LIKELY TO SUCCEED ON THE MERITS. It is not surprising that, in our country, founded by individuals who sought refuge from
religious persecution, the Supreme Court has succinctly avowed, If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (emphasis added). The statement written by Justice Jackson in his majority opinion is considered one of the Court's greatest statements about our fundamental freedoms established by the Bill of Rights. It is upon this backdrop, and resting upon this body of jurisprudence built upon deference to the inalienable freedom of religion, that the constitutionality of the HHS Mandate must be decided.
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A. The HHS Mandate violates the Religious Freedom Restoration Act. Congress enacted the RFRA in response to Employment Division v. Smith, 494 U.S. 872 (1990), where, in upholding a generally applicable law that burdened the sacramental use of peyote, the Supreme Court held that the First Amendment's Free Exercise Clause did not require the court to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws. Id. at 883-90. Congress, by enacting the RFRA three years after the decision in Smith, purposefully adopted a statutory rule comparable to the constitutional rule rejected in Smith. The RFRA strictly prohibits the Federal Government from substantially burdening a person's exercise of religion, "even if the burden results from a rule of general applicability," 42 U.S.C. § 2000bb-1(a), except when the Government can "demonstrate[] that application of the burden to the person--(1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that . . . interest." 42 U.S.C. § 2000bb-1(b). See also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (holding that the RFRA applies to the federal government); Newland, et al. v. Sebelius, et al., 2012 WL 3069154 (D. Colo. Jul. 27, 2012) (granting preliminary injunction from HHS Mandate due to violation of the RFRA). In its formulation of the RFRA, Congress expressly adopted the compelling interest test of Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). In both cases, the Court “looked beyond broadly formulated interests justifying the general applicability of government mandates, scrutinized the asserted harms, and granted specific exemptions to particular religious claimants.” Gonzales, 546 U.S. at 431; see also Yoder, 406 U.S. at 213, 221, 236; and Sherbert, 374 U.S. at 410. In Sherbert, the Court held that the State’s
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denial of unemployment benefits to an employee who refused to work on Saturdays because of her religious beliefs was an impermissible burden on her free exercise of religion because it “force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404. In Sherbert, the court held that the Government could not impose the same kind of burden upon the free exercise of religion as it would impose a fine against noncompliant parties of the law. Id. at 402 (“Government may neither compel affirmation of a repugnant belief, nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, nor employ the taxing power to inhibit the dissemination of particular religious views.”) (internal citations omitted).
In Yoder, Amish and Mennonite parents of teenaged children held religious beliefs that prohibited them from sending their children to high school as required by Wisconsin law. Yoder, 406 U.S. at 207. Each parent was fined $5 per child for failing to comply with state law for not sending their children to school beyond the eighth grade in accordance with their sincerely held religious belief that “higher learning tends to develop values they reject as influences that alienate man from God.” Id. at 208-13. The Court held that the impact of Wisconsin law, while recognizing the "paramount" interest in education that the law sought to promote, impermissibly compelled the parents to perform acts undeniably at odds with the fundamental tenets of their religious beliefs. Id. at 218, 213, 221; see also Braunfeld v. Brown, 366 U.S. 599, 605 (1961). The Court found that this compulsion “carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent.” Yoder, 406 U.S. at 218. The same constitutionally forbidden compulsion is before the court in this case.
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In accordance with the Supreme Court rulings in Sherbert and Yoder, and with the plain language of the RFRA expressly enacted by Congress to protect religious freedom, the HHS Mandate substantially burdens Plaintiffs’ sincere exercise of religion; it requires Plaintiffs to choose between complying with federal law and violating their deeply held religious beliefs, or disobeying federal law and suffering the consequences. Furthermore, the Government cannot "demonstrate[] that application of the burden to the person--(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(b).
1. Plaintiffs’ abstention from providing abortion-inducing drugs in their workforce health insurance plans qualifies as “religious exercise” under the RFRA.
Plaintiffs’ formulation of their workforce health insurance plans according to their religious beliefs is the “exercise of religion” under the RFRA. The RFRA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). To refrain from morally objectionable activity is part of the exercise of religion; the Supreme Court has recognized that the “exercise of religion” encompasses a belief that one must avoid participation in certain acts. See, e.g., Employment Division v. Smith, 494 U.S. 872, 877 (1990) (explaining under the Free Exercise Clause that “the ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts”). Thus, a person exercises religion by avoiding work on certain days (see Sherbert, 374 U.S. at 399), or by refraining from sending children over a certain age to school (see Yoder, 406 U.S. at 208). See 42 U.S.C. § 2000bb(b)(1) (incorporating Sherbert and Yoder into the RFRA). Similarly, a person’s religious convictions may compel him to refrain from facilitating prohibited conduct by others. See, e.g. Thomas v. Review Bd., 450 U.S. 707, 714-16
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(1981) (recognizing religious exercise in refusing to “produc[e] or directly aid[] in the manufacture of items used in warfare”).
Pursuant to the teachings of the Catholic Church, Plaintiffs’ sincerely held religious beliefs require them to abstain from providing or purchasing health insurance coverage for contraception, abortion, abortifacients, or related education and counseling. Plaintiffs’ abstention from providing contraceptives and abortion-inducing drugs in their workforce health insurance plans qualifies as “religious exercise” under the RFRA. The HHS Mandate creates Government-imposed coercive pressure on Plaintiffs to promote and otherwise support contraception and the killing of people by abortion, and to purchase health insurance that provides contraception, abortion, and abortifacients—or, in other words, to change or violate their beliefs. By failing to provide an exemption for Plaintiffs’ religious beliefs, the HHS Mandate not only forces Plaintiffs to engage in repugnant activity and speech, but exposes Plaintiffs to substantial per employee fines for their religious exercise—roughly $2,000 annually per each of their 120 employees, a fine significantly more severe than the $5 per student fine struck down by the Court in Yoder—but also exposes Plaintiffs to substantial competitive disadvantages if they are no longer permitted to offer or purchase health insurance due to their religious beliefs. 26 U.S.C. §§ 4980D & 4980H; Legatus, et al. v. Sebelius, et al., No. 12-12061 (E.D. Mich. Oct. 31, 2012) (holding Plaintiffs likely to show HHS Mandate substantially burdens religious exercise); see also Sherbert at 374 U.S. at 403-04 (finding “a fine imposed against appellant” to be a quintessential burden). The HHS Mandate imposes a substantial burden on Plaintiffs’ religious exercise by forcing Plaintiffs to violate their deeply held religious beliefs and the teachings of the Catholic Church.
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a. MKC exercises religious beliefs. In several lawsuits against the HHS Mandate, the Government has argued that a for-profit entity is categorically incapable of exercising religion. This position is flawed on a number of levels. First, MKC is undeniably and thoroughly religious and thus can exercise religious beliefs. It is and has always been managed and operated in a manner that does not conflict with the Catholic faith and other Christian beliefs.14 For example, the MKC facilities remain closed and do not service any of their customers on Sundays, and, for each of the 56 years of its existence, MKC’s health insurance policy has always excluded contraception, abortion, and drugs commonly referred to as “life style drugs.” Additionally, MKC strongly supports, financially and otherwise, Catholic fundraisers and other events, and has refused to provide support, financially or otherwise, to events or entities that do not reflect the teachings, mission, and values of the Catholic faith, such as Planned Parenthood.15 Second, the “free exercise of religion” in the RFRA, and in the First Amendement that the RFRA explicitly seeks to enhance, has always been recognized as including the exercise of religion in all areas of life, including in business and “profitable” enterprise. There is simply no “business exception” to the RFRA to the First Amendment. The RFRA protects “any” exercise of religion. 42 U.S.C. § 2000bb-2(4); 42 U.S.C. § 2000cc-5(7)(A); see also United States v. Philadelphia Yearly Meeting of the Religious Soc’y of Friends, 322 F. Supp. 2d 603 (E.D. Pa. 2004) (Quaker Church’s refusal to levy its employee’s wages was an exercise of religion under the RFRA). The Government’s proposal that a business corporation has no capability to exercise religion is “conclusory” and “unsupported.” McClure v. Sports and Health Club, Inc., 370 N.W.2d 844, 850 (Minn. 1985). Both Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119-20 & n.9
14 See Exs. 1 and 2, ¶ 7. 15 See Exs. 1 and 2, ¶ 12.
12

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(9th Cir. 2009), and EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 620 n.15 (9th Cir. 1988), recognized that a for-profit and even “secular” corporation could assert free exercise claims.
In several lawsuits against the HHS Mandate, the Government’s premise seems to be that one cannot exercise religion while engaging in business. But, judicially, the context of free exercise has usually involved the pursuit of financial gain. In Sherbert, 374 U.S. at 399, an employee’s religious beliefs were burdened by not receiving unemployment benefits; likewise in Thomas, 450 U.S. at 709. In United States v. Lee, 455 U.S. 252, 257 (1982), the Court held an employer’s religious beliefs were sufficiently burdened by paying taxes for workers and required the Government to justify its burden. Many other cases have recognized that business corporations can exercise religion. See, e.g., Jasniowski v. Rushing, 678 N.E.2d 743, 749 (Ill. App. Dist. 1, 1997) (for profit corporation may assert free exercise claim), vacated, 685 N.E.2d 622 (Ill. 1997). Morr-Fitz, Inc. et al. v. Blagojevich, No. 2005-CH-000495, slip op. at 6–7, 2011 WL 1338081 (Ill. Cir. Ct. 7th, Apr. 5, 2011) (ruling in favor of the free exercise rights of three pharmacy corporations and their owners); Roberts v. Bradfield, 12 App. D.C. 453, 464 (D.C. Cir. 1898) (recognizing that the right of “free exercise of religion” inheres in “an ordinary private corporation”). See also Commack Self-Service Kosher Meats, Inc. v. Hooker, 800 F. Supp. 2d 405 (E.D.N.Y. 2011) (analyzing free exercise claims without regard to profit motive); Maruani v. AER Services, Inc., 2006 WL 2666302 (D. Minn. 2006) (analyzing religious First Amendment claims by a for-profit business). A court analyzing a free exercise claim does not ask whether the claimant is the right category of person; it asks “whether [the challenged statute] abridges [rights] that the First Amendment was meant to protect.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978).
13

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Congress has rejected the Government’s restrictive view in many ways. The Affordable Care Act itself lets employees and “facilit[ies]” assert religious beliefs for or against “provid[ing] coverage for” abortions generally, without requiring them to be non-profits. 42 U.S.C. § 18023. Congress has repeatedly authorized similar objections, including to contraceptive insurance coverage.16 These protections cannot be reconciled with the Government’s view that anything connected with commerce excludes religion.
Third, the Government has tended to confuse the protection of “any” “exercise of religion” under the RFRA, with narrower categories such as “religious employer” in Title VII employment discrimination. See 42 U.S.C. § 2000e–1(a). This argument cannot help the Government in this case. The text Congress used in the RFRA does not limit its protections to a “religious corporation, association, or society” as stated in Title VII. In the RFRA, Congress instead protects the “exercise of religion,” period, by anyone. To read a “religious employer” limit into the RFRA would violate the text of the statute. In any event, the RFRA protects “free exercise of religion,” which does not turn on whether the plaintiff is a “religious corporation.”
Fourth, to the extent that the Government might argue the RFRA only protects religious exercise by “persons,” and that persons do not include corporations, this argument contradicts clear Supreme Court precedent. “First Amendment protection extends to corporations,” and a First Amendment right “does not lose First Amendment protection simply because its source is a corporation.” See Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010). In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), the lead 16 See, e.g., Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, Title VII, Div. C, § 727; Id. at Title VIII, Div. C, § 808; see also 42 U.S.C. § 300a-7; 42 U.S.C. § 2996f(b)(8); 20 U.S.C. § 1688; 42 U.S.C. § 238n; 42 U.S.C. § 1396u-2(b)(3)(B); 42 U.S.C. § 1395w-22(j)(3)(B); and Pub. L. 112-74, Title V, § 507(d). See also 48 C.F.R. § 1609.7001(c)(7).
14

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plaintiff was an entity rather than a natural person, and the Supreme Court vindicated free exercise rights on behalf of Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (emphasis added). “[I]t is well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis.” Monell v. Dept. of Social Services, 436 U.S. 658, 687 (1978). “That corporations are in law, for civil purposes, deemed persons is unquestionable.” United States v. Amedy, 24 U.S. 392, 11 Wheat. 392 (1826). “[C]orporations possess Fourteenth Amendment rights . . . through the doctrine of incorporation, [of] the free exercise of religion.” Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295 (11th Cir. 2006). It must be presumed that when Congress passed the RFRA to build on the First Amendment’s protection of free exercise of religion, it was aware of the centuries-old judicial interpretation that corporations are “persons” with constitutional rights. See Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985) (“Congress is presumed to be aware of an administrative or judicial interpretation . . . .” (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8 (1975)). If for-profit corporations can have no First Amendment “purpose,” this would overturn the Supreme Court’s vindication of First Amendment rights for for-profit companies such as the New York Times. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
b. MKC’s religious owners can exercise religion under the RFRA. MKC can and has brought free exercise of religion claims on behalf of not only itself, but its religious owners. Plaintiff, Gerald D. Chambers (“GDC”), is the President of MKC and a 50% shareholder, and Plaintiff, Robert W. Chambers (“RWC”), is the Vice President of MKC and the other 50% shareholder.17 GDC and RWC follow the teachings, mission, and values of
17 See Exs. 1 and 2, ¶¶ 4-5. 15

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 31 of 66 Pg ID 305
the Catholic faith, and operate their business in a manner that does not conflict with their Catholic faith and other Christian beliefs.18 MKC’s owners, GDC and RWC, share MKC’s religious beliefs against allowing a contraception or abortifacient provision in MKC’s health insurance policy. As such, for decades, GDC and RWC formulated MKC’s health insurance policy to specifically exclude contraception, abortion, drugs commonly referred to as “life style drugs,” and otherwise exempted MKC from paying, contributing, or supporting contraception and abortion for others, or for “life style drugs.”19 GDC and RWC do not believe that contraception or abortion properly constitute health care, and involve immoral practices and the destruction of innocent human life.20 GDC and RWC formulated their workforce insurance policy with these exclusions in an effort to adhere to the Catholic Church’s teachings regarding the immorality of artificial means of contraception and sterilization, and their belief that actions intended to terminate an innocent human life by abortion are gravely sinful.21 Further, their religious beliefs forbid them from participating in, paying for, training others to engage in, or otherwise supporting contraception or the killing of people by abortion.22
Several cases recognize that a corporation can assert religious beliefs on behalf of its owners when the Government requires the corporation to do things in violation of the owners’ religious beliefs. This is because a business is an extension of the moral activities of its owners and operators. Both Stormans, 586 F.3d at 1119–20 & n.9, and Townley, 859 F.2d at 620 n.15, affirm that the owners of a for-profit and even “secular” corporation had their religious beliefs burdened by regulation of that corporation, and that the corporation could sue on behalf of its owners to protect those beliefs. See also McClure, 370 N.W.2d at 850. To the extent the 18 See Exs. 1 and 2, ¶ 7. 19 See Exs. 1 and 2, ¶ 8. 20 See Exs. 1 and 2, ¶ 9. 21 See Exs. 1 and 2, ¶ 10. 22 See Exs. 1 and 2, ¶ 11.
16

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Government argues that MKC’s owners are “free” to abandon their specialty fastener manufacturing enterprise and sell it to a secular company that will comply with the HHS Mandate, such expulsion from a 56 year family business would be an extreme form of Government burden.
2. The HHS Mandate substantially burdens MKC’s and its owners’ religious exercise.
Not only does the HHS Mandate burden MKC’s and its owners’ exercise of religious beliefs, but the burden is substantial. The Government “substantially burdens” religious exercise when it puts “‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Thomas, 450 U.S. at 718.
The HHS Mandate directly orders MKC to provide its workforce with insurance coverage that MKC and its owners consider repulsive. If MKC offers insurance lacking the mandated coverage, it faces a penalty of $100 per day per employee, as well as the prospect of lawsuits by the Defendant Secretary of Labor and by its own plan participants. 26 U.S.C. § 4980D(a), (b) (financial penalties); 29 U.S.C. § 1132(a) (providing for civil enforcement actions by the Secretary of Labor, as well as by plan participants). Alternatively, if MKC ceased offering workforce health insurance altogether, this would not only harm its 120 employees, but MKC would be subjected to an annual assessment of $2,000 per employee. 26 U.S.C. § 4980H. If MKC provides the workforce insurance coverage that the HHS Mandate directly orders MKC to provide, as it has been doing since January 1, 2013, it violates its beliefs and religious integrity.
To call these burdens “substantial” is an understatement. The Supreme Court has struck down religious burdens far less dramatic. For instance, Sherbert involved a plaintiff who was not required to work on the Sabbath, but was merely denied unemployment benefits for refusing such work, and the Court deemed this an “unmistakable” substantial pressure on the plaintiff to
17

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abandon that observance. Sherbert, 374 U.S. at 404 (reasoning that the law “force[d] [plaintiff] to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand,” and that “the pressure on her to forego that practice is unmistakable”); see also Thomas, 450 U.S. at 717–18 (finding burden on religious exercise “[w]here the state conditions receipt of an important benefit upon conduct proscribed by a religious faith. . . thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs”). Sherbert and Thomas therefore declared even “indirect” pressure to be a substantial burden. See Thomas, 450 U.S. at 718 (explaining “[w]hile the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial”).
With “direct” pressure, the Supreme Court has been even more exacting. For instance, Yoder struck down a five dollar fine on Amish parents for not sending their children to high school. Yoder, 406 U.S. at 208. The Court reasoned that “[t]he [law’s] impact” on religious practice was “not only severe, but inescapable, for the. . . law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218. This exactly describes the HHS Mandate on its face; it “affirmatively compels” MKC, under threat of severe consequences—lawsuits by the Defendants, fines, regulatory penalties, a prohibition on providing employee health benefits, competitive disadvantage—“to perform acts undeniably at odds with the fundamental tenets of their religious beliefs.” Yoder, 406 U.S. at 218. MKC could avoid this steep price, of course, by abandoning its religious convictions about participating in activities it believes destructive of human life, but, it is black letter law that “[a] substantial burden exists when government action
18

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puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs[.]’” Thomas, 450 U.S. at 718; see also Lee, 455 U.S. at 254 ($27,000 penalty).
Defendants themselves have acted as if they understand this kind of burden. The HHS Mandate contains an exemption for certain churches and religious orders, in order to “take[] into account the effect on the religious beliefs of certain religious employers.” 76 Fed. Reg. 46623. And both Defendant Sebelius and President Obama have publicly recognized that the Mandate burdens religious believers. In her January 20, 2012 announcement previewing the one-year safe harbor, Secretary Sebelius stated that the extension “strikes the appropriate balance between respecting religious freedom and increasing access to important preventative services.”23 Likewise, in his February 10, 2012 press conference President Obama acknowledged that religious liberty is “at stake here” because some institutions “have a religious objection to directly providing insurance that covers contraceptive services.”24 The President explained that this religious liberty interest is why “we originally exempted all churches from this requirement.” Finally, the basic premise of the Defendants’ most recent rule-making on the Mandate is to explore alternate insurance arrangements that would avoid burdening religious organizations’ consciences. See 77 Fed. Reg. 16501, 16503. These statements candidly acknowledge that coercing religious objectors substantially burdens their religious exercise.25

23 The Secretary’s statement regarding the one-year extension can

be

found

at:

http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last

visited April 24, 2013). 24 A transcript of the President’s remarks is available at

http://www.whitehouse.gov/the-press-office/2012/02/10/remarks-

president-preventive-care (last visited April 24, 2013). 25 Congress has elsewhere recognized the need to accommodate the

same burden. See, e.g., Consolidated Appropriations Act of 2012,

Pub. L. No. 112-74, Title VII, Div. C, § 727 (protecting

religious health plans in the federal employees’ health benefits

19

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The United States District Court for the District of Colorado ruled that the HHS Mandate threatens a substantial burden on the religious beliefs of a for-profit company run by religious believers, such that a preliminary injunction is warranted. Newland, et al. v. Sebelius, et al., No. 12-1123 (D. Colo. Jul. 27, 2012). A court in Missouri disagreed, however, and accepted the Government’s argument that health insurance provision of abortion-inducing pills, contraception or sterilization is not a substantial burden. O’Brien v. U.S. Dep’t of Health & Human Srvs., 2012 WL 4481208 (E.D. Mo. 2012). The O’Brien decision, however, is both incorrect and inapplicable to MKC.
In O’Brien, the court said that payment into a health insurance plan that covers objectionable practices is merely “indirect financial support of a practice,” in contrast to “directly and inevitably prevent[ing] plaintiffs from acting in accordance with their religious beliefs.” Id. at *6. This is not factually true regarding MKC, because, while MKC may be paying an insurance company and not directly paying for objectionable items itself, the coverage of contraceptive and abortifacients itself— not merely use—is a violation of Plaintiffs’ religious beliefs.26 More fundamentally, O’Brien is an impermissible judicial decision of moral theology; a determination that promotion of contraceptives and abortifacients is morally acceptable if it is not too proximate. The Supreme Court rejected the same attempt in Thomas, where the Government deemed the armament manufacturing activity to which plaintiff objected “sufficiently insulated” from his objection to war. 450 U.S. at 715. “Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs . . . .” Id. program from being forced to provide contraceptive coverage); id. at Title VIII, Div. C, § 808 (affirming that the District of Columbia must respect the religious and moral beliefs of those who object to providing contraceptive coverage in health plans). 26 See Exs. 1 and 2, ¶ 11.
20

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O’Brien likewise contradicts Lee, which explicitly held that the for-profit religious plaintiff had met its showing to establish a sufficient burden for a free exercise of religion claim. 455 U.S. at 257. In doing so, the Court rejected the Government’s attempt to insist that despite the plaintiff’s sincerity of beliefs, there was no substantial burden on “the integrity of the Amish religious belief or observance.” Id. Instead the Supreme Court found the burden sufficiently “interferes with the free exercise rights of the Amish.” Id. In Lee, the Court said that determining if a burden sufficiently violates a faith, in order to satisfy a free exercise claim, is an interpretation of faith that is “not within ‘the judicial function and judicial competence’” Id. (quoting Thomas, 450 U. S. at 716). The O’Brien court’s attempt to judge between different levels of moral culpability is incompatible with the Supreme Court’s definition of substantial burden, by which it is not a measure of religious beliefs, but is a measure of the “pressure” the Government applies against beliefs. Thomas, 450 U.S. at 718. As explained above, the HHS Mandate here explicitly orders a violation of beliefs and imposes intense penalties as pressure to do so.
The HHS Mandate here is even more proximate than the substantial burden found in Lee, because the Plaintiffs here must provide objectionable coverage directly to other private citizens, whereas in Lee they sent the money to a multi-trillion dollar budget in Washington. O’Brien constrains free exercise to “ritual,” the “Sabbath,” and child-rearing, but allows the Government to coerce believers to help other people engage in objectionable activities. O’Brien, 2012 WL 4481208 at *6. This idea severely constricts the First Amendment and the RFRA (which protects “any” free exercise of religion, not merely freedom of worship). Instead, Lee requires that the Court recognize a sufficient burden and apply the applicable scrutiny level, which is strict scrutiny under the RFRA and O Centro.
21

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The Government is also foreclosed from arguing that merely because a corporation shields its owners from liability, there is no religious burden on the owners. That conclusion does not follow. Protecting an owner from liability is merely one characteristic of a business corporation, and it is not the morally relevant one here. MKC’s religious owners have adopted beliefs that make it immoral for them to implement the HHS Mandate’s commands through the entity they own. This is why Stormans and several other cases concluded, matter-of-factly, that a Government burden on a business corporation is a burden on its close holding family owners and directors. 586 F.3d at 1119–20; McClure, 370 N.W.2d at 850; Jasniowski, 678 N.E.2d at 749; Morr-Fitz, Inc., No. 2005-CH-000495, slip op. at 6–7. Liability protection is not a talisman by which the Government may trample on the religious beliefs of business owners.
3. The HHS Mandate cannot satisfy strict scrutiny. It is Defendants, not Plaintiffs, who must demonstrate both a compelling interest and their use of the least restrictive means before this Court, even at the preliminary injunction stage. Gonzales, 546 U.S. at 428-30. See also Newland, et al. v. Sebelius, et al., No. 12-1123 (D. Colo. Jul. 27, 2012) (“The initial burden is borne by the party challenging the law. Once that party establishes that the challenged law substantially burdens her free exercise of religion, the burden shifts to the government to justify that burden. The nature of this preliminary injunction proceeding does not alter these burdens.”). Defendants cannot establish that their coercion of MKC is “in furtherance of a compelling governmental interest.” The RFRA, with “the strict scrutiny test it adopted,” O Centro Espirita, 546 U.S. at 430, imposes “the most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). A compelling interest is an interest of “the highest order,” Lukumi, 508 U.S. at 546, and is implicated only by
22

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“the gravest abuses, endangering paramount interests,” Thomas v. Collins, 323 U.S. 516, 530 (1945).
Defendants cannot propose such a generalized interest “in the abstract,” but must show a compelling interest “in the circumstances of this case” by looking at the particular “aspect” of the interest as “addressed by the law at issue.” Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000); O Centro Espirita, 546 U.S. at 430–32 (RFRA’s test can only be satisfied “through application of the challenged law ‘to the person’—the particular claimant”); see also Lukumi, 508 U.S. at 546 (rejecting the assertion that protecting public health was a compelling interest “in the context of these ordinances”). The Government must “specifically identify an ‘actual problem’ in need of solving” and show that coercing MKC is “actually necessary to the solution.” Brown v. Entm’t Merchs. Ass’n, 564 U.S. ___; 131 S. Ct. 2729, 2738 (June 27, 2011). If Defendants’ “evidence is not compelling,” they fail their burden. Id. at 2739. To be compelling, Defendant’s evidence must show not merely a correlation but a “caus[al]” nexus between their HHS Mandate and the grave interest it supposedly serves. Id. The Government “bears the risk of uncertainty . . . ambiguous proof will not suffice.” Id.
Defendants’ interest in coercing MKC to provide coverage of abortifacients is not compelling. In other cases the Government has attempted to identify two interests—women’s health and equality, by reducing unintended pregnancy—to justify the HHS Mandate under the RFRA. But these interests are generic and abstract. In O Centro Espirita, the Court held that evidence, showing that Schedule I controlled substances were “extremely dangerous,” was insufficient, and that “categorical” support could not meet the Government’s burden under the RFRA. 546 U.S. at 432.
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The simple fact is that, even if contraceptives and abortifacient drugs are assumed to provide health and equality to women, Defendants have not shown a compelling interest to deliver those benefits by means of coercing MKC itself. As discussed below, the Government already delivers and subsidizes contraceptives and abortifacients to women and could do so here as well, without forcing MKC to do it.
a. Defendants cannot identify a compelling interest. The most striking obstacle to Defendants’ assertion of a compelling interest is that the Government itself has voluntarily omitted 191 million people from the Mandate. Newland, et al. v. Sebelius, et al., No. 12-1123 (D. Colo. Jul. 27, 2012). This amounts to nearly two-thirds of the nation, and is being offered by the Government for secular reasons. But Defendants still refuse to exempt MKC. The HHS Mandate does not apply to thousands of plans that are “grandfathered” under the Affordable Care Act. See 76 Fed. Reg. 46623 & n.4. Also, the HHS Mandate does not apply to members of a “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds. 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii). And, the HHS Mandate exempts from its requirements “religious employers,” defined as churches or religious orders that primarily hire and serve their own adherents and that have the purpose of inculcating their values. 76 Fed. Reg. 46626. The Government has decided that employers in any of these categories simply do not have to comply with the HHS Mandate. These are massive exemptions that cannot coexist with a compelling interest against MKC. “[A] law cannot be regarded as protecting an interest ‘of the highest order’ when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 520. Defendants cannot claim a “grave” or “paramount” interest to impose the HHS Mandate on
24

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MKC or other religious objectors, while allowing the identical “appreciable damage” to 191 million people. No compelling interest exists when the Government “fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort.” Id. at 546–47. The exemptions to the HHS Mandate “fatally undermine[] the Government’s broader contention that [its law] will be ‘necessarily . . . undercut’” if MKC is exempted too. O Centro Espirita, 546 U.S. at 434.
Defendants’ immense grandfathering exemption has nothing to do with a determination that those 191 million people do not need contraceptive coverage, whereas MKC’s employees somehow do. The exemption was instead a purely political maneuver to garner votes for the Affordable Care Act, by letting “President Obama ma[k]e clear to Americans that ‘if you like your health plan, you can keep it.’”27 The grandfathering rule is in no way temporary. There is no sunset on grandfathering status in the Affordable Care Act or its regulations. Instead, a plan can keep grandfathered status in perpetuity, even if it raises fixed-cost employee contributions and, for several items, even if the increases exceed medical inflation plus 15% every year. Id. The Government repeatedly calls it a “right” for a plan to maintain grandfathered status. See 75 Fed. Reg. 34538, at 34540, 34558, 34562, & 34566.
Notably, grandfathered plans are subject to a variety of mandates under the Affordable Care Act: no lifetime limits on coverage; extension of dependent coverage to age 26; no exclusions for children with pre-existing conditions; and others.28 But Congress deemed the HHS Mandate in this case not important enough to impose it on grandfathered plans.

27 HHS, HealthCare.Gov, “Keeping the Health Plan You Have: The

Affordable Care Act and “Grandfathered” Health Plans,” available

at

http://www.healthcare.gov/news/factsheets/2010/06/keeping-

the-health-plan-you-have-grandfathered.html (last visited April

24, 2013).

28 HealthCare.Gov, supra.

25

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Defendants therefore contradict the text of the Affordable Care Act when they take a litigation position, contrary to Congress, that the HHS Mandate of contraceptive and abortifacient coverage is an interest “of the highest order.”
The flaw of Defendants’ supposed compelling interest is even more fatal here because MKC is a large employer of 120 employees, and, according to Defendants, “[m]ost of the 133 million Americans with employer-sponsored health insurance through large employers will maintain the coverage they have today.” Id. In other words, Defendants have voluntarily excluded most Americans situated alongside the employees of MKC. They cannot demonstrate they have a paramount interest to force it to comply in violation of its beliefs. Defendants are completely content to leave 2/3 of the nation’s women without “health and equality” flowing from this HHS Mandate. Yet they would insist those same interests can pass the most demanding test known to constitutional law. They cannot. If the Government can toss aside such a massive group of employees for political expediency, their “interest” in mandating costfree birth control coverage cannot possibly be “paramount” or “grave” enough to justify coercing MKC to violate its and its owners’ religious beliefs. See O Centro Espirita, 546 U.S. at 434 (“Nothing about the unique political status of the [exempted peoples] makes their members immune from the health risks the Government asserts”).
In O Centro Espirita, the Supreme Court held that no compelling interest exists behind a law that has a much more urgent goal—regulating extremely dangerous controlled substances— and far fewer exemptions than the broad swath of omissions in the HHS Mandate. In O Centro Espirita, the Court dealt with the Controlled Substances Act’s prohibition on “all use,” with “no exception,” of a hallucinogenic ingredient in a tea along with other Schedule I substances. 546 U.S. at 423, 425. But because elsewhere in the statute there was a narrow religious exemption for
26

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Native American use of a different substance, peyote, the Court held that the Government could not meet its compelling interest burden even in its generalized interest to regulate Schedule I substances as applied to the plaintiffs in that case. Id. at 433. Even more so here, the Government cannot satisfy its burden by pointing to general health benefits of contraception. Halting the use of extremely dangerous drugs is far more urgent than forcing religious objectors to provide contraception coverage. Defendants’ grant of secular and religious exemptions for millions of other employees betrays any alleged compelling interest they may have in forcing MKC to comply with the HHS Mandate against their religious beliefs.
The Government cannot satisfactorily explain why employees of MKC must be subject to the HHS Mandate, while the Government itself voluntarily omits 191 million people. The Government has no data showing the number of religious employers objecting to the HHS Mandate, but that total number of employees could only constitute a fraction of a percent of the tens of millions of employees the Government is voluntarily omitting. This is a quintessential illustration of Brown v. Entm’t Merchs.’s insistence that the “government does not have a compelling interest in each marginal percentage point by which its goals are advanced.” 131 S.Ct. at 2741. As in O Centro, where Government exclusions apply to “hundreds of thousands” (here, millions), the RFRA requires “a similar exception for the 130 or so” and even less affected here. 546 U.S. at 433.
The HHS Mandate on its face is also inconsistent with a compelling interest rationale. Defendants have used their discretion to write a “religious employer” exemption into the HHS Mandate for certain churches. 76 Fed. Reg. 46626. But there is no nexus between the HHS Mandate exemption’s criteria and Defendants’ alleged interest, such that a compelling interest exists for non-exempt religious entities like MKC but is absent for exempt ones like churches.
27

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On the contrary, Defendants have simply engaged in political line-drawing based on what the President’s political base will accept, weighed against how much election-year resistance he may encounter.29 Under the RFRA, MKC cannot be denied a religious exemption on the premise that Defendants can pick and choose between religious objectors. See O Centro Espirita, 546 U.S. at 434 (since the law does “not preclude exceptions altogether; RFRA makes clear that it is the obligation of the courts to consider” other exemptions).
b. There is no “business exception” to the RFRA’s compelling interest test.
In other cases, the Government, referencing United States v. Lee, 455 U.S. 252, 257 (1982), has attempted to characterize the RFRA’s scrutiny as not being very strict in commercial contexts. But O Centro Espirita does not allow the Court to apply a “strict scrutiny lite” for a business RFRA claim, or indeed for any RFRA claim. “[T]he compelling interest test” of “RFRA challenges should be adjudicated in the same manner as constitutionally mandated applications of the test,” such as in speech cases. 546 U.S. at 430. O Centro explicitly confined Lee to its context of a tax that was nearly universal, and the court did not allow the Government to claim “that a general interest in uniformity justified a substantial burden on religious exercise.” Id. at 435.
Lee does discuss “statutory schemes which are binding on others in that activity.” 455 U.S. at 261. But the HHS Mandate here is emphatically not “binding on others in th[e] activity”

29 The New York Times describes in great detail the politically-

driven deliberation that led to the Mandate. Helene Cooper &

Laurie Goodstein, “Rule Shift on Birth Control Is Concession to

Obama

Allies”

(Feb.

10,

2012),

available

at

http://www.nytimes.com/2012/02/11/health/policy/obama-to-offer-

accommodation-on-birth-control-rule-officials-

say.html?pagewanted=all&_r=0 (last visited April 24, 2013).

28

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 44 of 66 Pg ID 318
of large employers providing insurance. Whereas Lee’s tax contained only a tiny exemption for some Amish, the HHS Mandate here excludes:
 191 million Americans in “grandfathered” plans, that are not subject to the HHS Mandate, including “most” large employers, of which MKC is one. “Keeping the Health Plan You Have,” supra note 27.
 Members of certain objecting religious groups need not carry insurance at all. See, e.g., 26 U.S.C. § 5000A(d)(2)(a) (“recognized religious sect or division”); § 5000A(d)(2)(b)(ii) (“health care sharing ministries”).
 Small employers (i.e., those with fewer than 50 employees) can drop employee insurance with no Government penalty. 26 U.S.C. § 4980H(c)(2).
 Churches, church auxiliaries, and religious orders enjoy a blanket exemption from the HHS Mandate. 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012).
The HHS Mandate is many things, but “uniform” is not one of them. O Centro was impatient with the Government’s uniformity argument:
The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” 546 U.S. at 436. Lee’s universal tax is not comparable to the Mandate and its exceptions. The law upheld in Lee was a tax to raise Government funding. Governments cannot function without taxes. Lee ruled that if exemptions were allowed “[t]he tax system could not function.” 455 U.S. at 260. But the United States has functioned for 237 years without a federal mandate compelling MKC or anyone else to cover contraceptives and abortifacients in insurance. The HHS Mandate is not a “government program,” as discussed in Lee. It requires MKC to give contraceptives and specific abortifacient services to private citizens, not to pay money to the Government for use in the Government’s own activities. The HHS Mandate is private, not governmental. In fact, the Government has decided not to pursue its goals with a Government
29

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program offering contraception—of which many exist—but instead to conscript religiously objecting citizens.
Lee does not apply the scrutiny test applicable under the RFRA. Lee was a precursor to Smith, which expanded on Lee to adopt the standard that the RFRA affirmatively rejected. The RFRA specifies that it is codifying its test “as set forth in Sherbert, 374 U.S. 398 and Wisconsin v. Yoder, 406 U.S. 205 (1972).” 42 U.S.C. § 2000bb. The RFRA omits Lee from this list. Lee itself never says it is requiring a “compelling interest” or “least restrictive means.” But Sherbert and Yoder did apply the RFRA’s test. Sherbert involved a plaintiff’s bid for financial gain, despite the Government’s generally applicable law. As scholars note:
The standard thus incorporated [by RFRA] is a highly protective one. . . . The cases incorporated by Congress explain “compelling” with superlatives: “paramount,” “gravest,” and “highest.” Even these interests are sufficient only if they are “not otherwise served,” if “no alternative forms of regulation would combat such abuses”. . . . Douglas Laycock and Oliver S. Thomas, “Interpreting the Religious Freedom Restoration Act,” 73 Tex. L. Rev. 209, 224 (1994).
c. The Government cannot meet its evidentiary burden. The Government also fails the compelling interest test because its “evidence is not compelling.” Brown v. Entm’t Merchs., 131 S. Ct. at 2739. It points only to generic interests, marginal benefits, correlation but not causation, and uncertain methodology. The Institute of Medicine Report on which the Mandate is based (“2011 IOM”),30 does not demonstrate the Government’s conclusions. At best, its studies argue for a generic health benefit from contraception. But the HHS Mandate’s evidence must be tailored to the effect of exempting

30 Inst. of Med., Clinical Preventive Services for Women: Closing

the

Gaps

(2011),

available

at

http://books.nap.edu/openbook.php?record_id=13181 (last visited

April 25, 2013).

30

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MKC, not to generic health interests. O Centro, 546 U.S. at 430–31. Likewise the Government cites no pandemic of unwanted births at MKC or similar entities, which cause catastrophic consequences for health and employees. It could be that employees of such entities experience zero negative health consequences absent the HHS Mandate, for any number of reasons. At best, Defendants do not know. But Defendants “bear the risk of uncertainty,” Brown, 131 S. Ct. at 2739. Speculation and generalizations will not suffice.
Nowhere does the IOM cite evidence showing that the HHS Mandate would even increase contraception use. Instead, the IOM’s sources show: 89% of women avoiding pregnancy are already practicing contraception;31 among the other 11%, lack of access is not a statistically significant reason why they do not contracept;32 even among the most at-risk populations, cost is not the reason those women do not contracept.33 The studies cited at 2011

31 The Guttmacher Institute, “Facts on Contraceptive Use in the

United

States

(June

2010),”

available

at

http://www.guttmacher.org/pubs/fb_contr_use.html (last visited

April 25, 2013). 32 Mosher WD and Jones J, “Use of contraception in the United

States: 1982–2008,” Vital and Health Statistics, 2010, Series

23, No. 29, at 14 and Table E, available at

http://www.cdc.gov/NCHS/data/series/sr_23/sr23_029.pdf

(last

visited April 25, 2013). 33 R. Jones, J. Darroch and S.K. Henshaw “Contraceptive Use Among

U.S. Women Having Abortions,” Perspectives on Sexual and

Reproductive Health 34 (Nov/Dec 2002): 294–303 (Perspectives is

a publication of the Guttmacher Institute). The Centers for

Disease Control released a study this year showing that even

among those most a risk for unintended pregnancy, only 13% cite

cost as a reason for not using contraception. CDC, “Prepregnancy

Contraceptive Use Among Teens with Unintended Pregnancies

Resulting in Live Births — Pregnancy Risk Assessment Monitoring

System (PRAMS), 2004–2008,” Morbidity and Mortality Weekly

Report 61(02);25-29 (Jan. 20, 2012), available at

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6102a1.htm?s_cid=mm61

02a1_e (last visited April 25, 2013).

31

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 47 of 66 Pg ID 321
IOM pp. 109 do not show that cost leads to non-use generally, but relate only to women switching from one contraception method to another.
The Government’s evidence also does not apply universally. Women who suffer “unintended pregnancy” are primarily young, unmarried, and low income. 2011 IOM at 102. MKC’s workforce has jobs and health insurance. The Government asserts that women incur more preventive care costs generally, citing 2011 IOM at 19–20. But the IOM does not say if those studies specifically include contraception as part of “preventive care.” Nor, if they do, does the IOM say what percentage of the preventive care gap contraception accounts for.
The Government cannot show that the HHS Mandate would prevent negative health consequences. “Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” Brown v. Entm’t Merchs., 131 S. Ct. at 2739 (quotation marks omitted). The IOM admits that “research is limited” regarding negative outcomes from unintended pregnancy. 2011 IOM at 103. The IOM therefore cites its own 1995 report, which similarly emphasizes the fundamental flaws in determining which pregnancies are “unintended,” and “whether the effect is caused by or merely associated with unwanted pregnancy.”34 The 1995 IOM admits that no causal link exists for most of its alleged factors. This makes sense, since the intendedness or unintendedness of a pregnancy cannot itself physiologically change its health effect. Thus, a delay in seeking prenatal care upon unintended pregnancy is “no longer statistically significant” for women not

34 Institute of Medicine, The Best Intentions (1995) (“1995 IOM”),

available

at

http://books.nap.edu/openbook.php?record_id=4903&page=64 (last

visited April 25, 2013).

32

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 48 of 66 Pg ID 322
already disposed to delay or who have a “support network.”35 The IOM’s recital of possible
health consequences shows that the evidence is not compelling:
 The alleged increase in smoking and drinking drops significantly where studies control for other causes; while data on domestic violence and depression “provide little systematic assessment” and merely “suggest” association (not causation).36
 The alleged reduction in low birth weight and prematurity overlooks the fact that, like other cited factors, these are merely “associated” with, not caused by, unintended pregnancy (1995 IOM at 70; 2011 IOM at 103). Several studies show no connection between it and pregnancy-spacing in the U.S.37 And several studies show that low birth weight is associated not with contraception but with shorter pregnancy intervals, further distancing itself from a contraception connection. 2011 IOM at 103.
 Evidence is not compelling that the HHS Mandate against MKC would certainly cause pregnancy-prevention. In 48% of all unintended pregnancies, contraception was used.38 Multiple peer-reviewed studies demonstrate that there is no scholarly consensus that increased contraception use reduces either abortion (which occurs upon pregnancy) or sexually transmitted diseases.39

35 Id. at 68. 36 Id. at 69, 73, 75.

37 Id. at 70–71.

38 Finer, L. B., and S. K. Henshaw, “Disparities in rates of

unintended pregnancy in the United States, 1994 and 2001,” 38(2)

Perspectives on Sexual & Reprod. Health 90–96 (2006) available

at http://www.guttmacher.org/pubs/journals/3809006.html (last

visited April 25, 2013). 39 K. Edgardh, et al., “Adolescent Sexual Health in Sweden,”

Sexual

Transmitted

Infections

78

(2002):

352-6

(http://sti.bmjjournals.com/cgi/content/full/78/5/352); Sourafel

Girma, David Paton, “The Impact of Emergency Birth Control on

Teen Pregnancy and STIs,” Journal of Health Economic, (March

2011): 373-380; A. Glasier, “Emergency Contraception,” British

Medical Journal (Sept 2006): 560-561; 37 J.L. Duenas, et al.,

“Trends in the Use of Contraceptive Methods and Voluntary

Interruption of Pregnancy in the Spanish Population During 1997–

2007,” Contraception (January 2011): 82-87.

33

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 49 of 66 Pg ID 323
Notably, no evidence shows that the HHS Mandate is the only method to provide the items in question. MKC suggests that such evidence would not be possible, since Governmentprovided contraceptives and abortifacients are just as free and effective as any other kind.
d. Defendants cannot show that the HHS Mandate is the least restrictive means of furthering their interests.
Even if a compelling interest exists, the Government cannot possibly show that the HHS Mandate against MKC is “the least restrictive means of furthering” it under 42 U.S.C. 2000bb-1. In weighing whether the Government applies the least restrictive means in the HHS Mandate, a court in this District has already found that, “The cost to Plaintiffs appears provably substantial. The cost to the Government appears provably small.” Legatus, et al. v. Sebelius, et al., No. 1212061 (E.D. Mich. Oct. 31, 2012). The fact that the Government could subsidize contraception itself to give it to employees at exempt entities, and that it already does so on a wide scale, shows that the Government fails the RFRA’s least restrictive means requirement. Defendants bear the burden to show both of these elements—compelling interest and least restrictive means— including at the preliminary injunction stage. O Centro Espirita, 546 U.S. at 428–30.
“[I]f there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, [the Government] may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means.’” Johnson v. City of Cincinnati, 310 F.3d 484, 503 (6th Cir. 2002) (quoting Dunn v. Blumstein, 405 U.S. 330, 343 (1971)). Strict scrutiny requires a “serious, good faith consideration of workable . . . alternatives that will achieve” the alleged interests. Grutter v. Bollinger, 539 U.S. 306, 339 (2003). “[W]ithout some affirmative evidence that there is no less severe alternative,” the HHS Mandate cannot survive the RFRA’s requirements. Johnson, 310 F.3d at 505.
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2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 50 of 66 Pg ID 324

Defendants fail the least restrictive means test because the Government could, if the political will existed, achieve its desire for free coverage of birth control by providing that benefit itself. Rather than coerce MKC to provide contraceptive and abortifacient coverage in their workforce insurance plan, the Government could possibly create its own “contraceptive and abortifacient insurance” plan covering the items to which MKC objects, and then allow free enrollment in that plan for whomever the Government seeks to cover. Or the Government could directly compensate providers of contraceptives and abortifacients. Or the Government could offer tax credits or deductions for contraceptives and abortifacient purchases. Or the Government might impose a mandate on the contraceptive and abortifacient manufacturing industry to give its items away for free.40 These and other options could fully achieve Defendants’ goal while being less restrictive of MKC’s beliefs. There is no essential need to coerce MKC to provide the objectionable coverage itself.
Defendants cannot deny that the Government could pursue its goal more directly. This conclusion is not only dictated by common sense, but is also proven because the federal Government and many states already directly subsidize birth control coverage for many citizens through Title XIX (Medicaid) and Title X (Family Planning Services) funding, among others.41 Thus the Court’s RFRA inquiry could end here: the HHS Mandate is not the least restrictive

40 And by virtue of Defendants’ recent attempts to quell political

backlash by claiming they may create an “accommodation” for some

additional religious entities (but still not for Plaintiffs),

Defendants are necessarily admitting that the HHS Mandate is not

the least restrictive means to achieve their goals. See 77 Fed.

Reg. 16501–08 (Mar. 21, 2012). 41 See Facts on Publicly Funded Contraceptive Services in the

United States (Guttmacher Inst. May 2012) (citations omitted),

available

at

http://www.guttmacher.org/pubs/fb_contraceptive_serv.html (last

visited April 25, 2013).

35

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 51 of 66 Pg ID 325
means of furthering Defendants’ interest. Other options may be more difficult to pass as a political matter (which further illustrates the public’s disbelief that the HHS Mandate’s interest is “compelling”). Indeed the Affordable Care Act itself does not require the HHS Mandate. 42 U.S.C. § 300gg-13(a)(4). But political difficulty does not exonerate the HHS Mandate’s burdens on Plaintiffs’ religious beliefs, nor does it allow the HHS Mandate to pass RFRA’s strict scrutiny. The availability of many alternative methods fatally undermines Defendants’ burden under the RFRA and the HHS Mandate from applying to MKC.
The Government cannot propose a watered-down least restrictive means test. The RFRA requires the HHS Mandate to be “the least restrictive means,” not the least restrictive means among only what the Government wants to select. In Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988), the Supreme Court required alternative means instead of fundamental rights violations. There, North Carolina sought to curb fraud by requiring professional fundraisers to disclose during solicitations how much of the donation would go to them. 487 U.S. at 786. Applying strict scrutiny, the Supreme Court declared that the state’s interest could be achieved by publishing the same disclosures itself online, and by prosecuting fraud. Id. at 799–800. Although these alternatives would be costly, less directly effective, and a restructuring of the governmental scheme, strict scrutiny demanded they be prioritized. Id. Here, the RFRA similarly requires full consideration of other ways the Government can and does provide women free contraceptives and abortifacients. “The lesson” of the RFRA’s pedigree of caselaw “is that the Government must show something more compelling than saving money.” Laycock at 224.
In Newland, the Government attempted to argue that it has an alleged need to impose the HHS Mandate within the employer-based insurance market. But this fails the compelling
36

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 52 of 66 Pg ID 326
interest/least restrictive means test because it redefines the Government’s interest from securing health and equality to accomplishing those goals in a specific way. The Government has zero evidence, much less compelling evidence, that it has a “paramount” and “grave” need to achieve its alleged health and equality interests by coercion of MKC, instead of by providing contraceptives and abortifacients itself. The Government does not even have a hint of evidence that its interests would not be served if the Government itself provided the contraceptives and abortifacients it desires. In Newland, the court stated, “Defendants have failed to adduce facts establishing that government provision of contraception services will necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventative health care coverage to women.” Newland, et al. v. Sebelius, et al., 2012 WL 3069154 (D. Colo. Jul. 27, 2012).
Furthermore, the Government cannot possibly show that even if all the women in MKC’s plan received the Mandated items free from the Government, that they would still suffer adverse health consequences and an inability to be free from work-interrupting pregnancy, solely because the Mandated items have not been delivered by their religiously objecting employers, but by the Government’s coverage. “[T]he Government has not offered evidence demonstrating” compelling harm from an alternative that is available and less restrictive of religion. O Centro, 546 U.S. at 435–37.
The HHS Mandate substantially burdens the religious exercise of MKC and its owners, and Defendants fail strict scrutiny. MKC has a likelihood of success under its RFRA claim.
B. The HHS Mandate violates the First Amendment to the United States Constitution, Free Exercise Clause.
In addition to violating the RFRA, the HHS Mandate violates the Free Exercise Clause because it is not “neutral and generally applicable.” Lukumi, 508 U.S. 520 at 545 (citing Smith,
37

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 53 of 66 Pg ID 327
494 U.S. at 880). When a law burdens religious exercise because it is not actually neutral or generally applicable it must be "justified by a compelling governmental interest" and be "narrowly tailored to advance that interest.” Id. at 531-32 (citing Employment Div., Dep't of Human Res. of Ore. v. Smith, 494 U.S. 872 (1990)). As discussed above, the Government cannot meet strict scrutiny.
The HHS Mandate is not neutral on its face because it explicitly discriminates among religious organizations on a religious basis. It thus fails the most basic requirement of facial neutrality. See, e.g., Lukumi, 508 U.S. at 533 (explaining that “the minimum requirement of neutrality is that a law not discriminate on its face”). Indeed, the HHS Mandate is a more patent violation of neutrality than the ordinances unanimously struck down in Lukumi, which involved ostensibly neutral animal cruelty laws structured to target religiously-motivated practices only. By contrast, on its face, the religious employer exemption to the HHS Mandate divides religious objectors into favored and disfavored classes, forgetting Lukumi’s warning that “[a] law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.” Lukumi, 508 U.S. at 533.
The religious employer exemption protects the consciences only of certain religious bodies, which it defines with reference to their internal religious characteristics. Namely, it exempts only those organizations whose “purpose” is to inculcate religious values; who “primarily” employ and serve co-religionists; and who qualify as churches or religious orders under the tax code. See 45 C.F.R. § 147.130(a)(iv)(B)(1)–(4). These criteria openly do what Lukumi says a neutral law cannot do – refer to religious qualities without any discernible secular reason. Lukumi, 508 U.S. at 533. There is no conceivable secular purpose, for instance, in limiting conscience protection to religious groups that “primarily serve” co-religionists while
38

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 54 of 66 Pg ID 328
denying it to those who serve persons regardless of their faith. These criteria practice religious “discriminat[ion] on [their] face” and therefore trigger strict scrutiny. Lukumi, 508 U.S. at 533; cf. Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1337 (D.C. Cir. 2001) (rejecting “substantial religious character” test for NLRB jurisdiction as contrary to both the Free Exercise and Establishment Clauses because it would effectively exempt only “religious institutions with hard-nosed proselytizing, … that limit their enrollment to members of their religion”) (relying on NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)).
In addition to not being neutral on its face, the HHS Mandate is not generally applicable. A law is not generally applicable if it regulates religiously-motivated conduct, yet leaves unregulated similar secular conduct. See, e.g., Lukumi, 508 U.S. at 544–45. As explained above, the HHS Mandate here exempts 191 million Americans on a variety of grounds, but refuses to exempt MKC based on its religious objections. In Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999), the court held that a police department’s no-beard policy was not generally applicable because it allowed a medical exemption but refused religious exemptions. “[T]he medical exemption raises concern because it indicates that the [police department] has made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not.” 170 F.3d at 366 (Alito, J.). See also Blackhawk v. Pennsylvania, 381 F.3d 202, 210–11, 214 (3d Cir. 2004) (Alito, J.) (rule against religious bear-keeping violated Free Exercise Clause due to categorical exemptions for zoos and circuses); Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021, 1035 (9th Cir. 2009) (Noonan, J., concurring) (campaign finance requirements were not generally applicable where they included categorical exemptions for newspapers and media, but not for churches); Mitchell Cnty. v. Zimmerman, 810
39

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 55 of 66 Pg ID 329
N.W.2d 1, 16 (Iowa 2012) (categorical exemptions for secular conduct allowed Mennonite farmers to use steel-wheeled tractors on county roads).
The religious exemption from the HHS Mandate in particular is not generally applicable because the Affordable Care Act itself awards Defendants unlimited discretion to shape its scope. Defendants “may establish exemptions,” 45 C.F.R. § 147.130 (emphasis added), and pursuant to 42 U.S.C. § 300gg-13, Defendants’ discretion to craft its exemptions is unlimited. 76 Fed. Reg. 46623 (asserting that § 300gg-13 grants HHS/HRSA “authority to develop comprehensive guidelines” under which Defendants believe “it is appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious employers”). Using their unfettered assessments, Defendants continue to change their exemptions and accommodations, as evidenced by two different versions of a “safe harbor” they issued, in addition to the religious exemption itself, and the fact that in recent rulemaking, yet another category of nonprofit religious entities subject to different treatment than the HHS Mandate will be created. 77 Fed. Reg. 16501. This built-in discretion means that Defendants have broad discretion to create exemptions based on an “individualized … assessment of the reasons for the relevant conduct,” a feature that deprives the HHS Mandate of general applicability and subjects it to strict scrutiny. Lukumi, 508 U.S. at 537 (quoting Smith, 494 U.S. at 884).
C. The HHS Mandate violates the First Amendment to the Constitution, Establishment Clause.
The HHS Mandate also violates the Establishment Clause of the First Amendment. The HHS Mandate’s “religious employer” exemption, as discussed above, sets forth Defendants’ notion of what “counts” as religion and what doesn’t for the purposes of who will be exempt under the HHS Mandate. But the Government may not adopt a caste system of different
40

2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 56 of 66 Pg ID 330
religious organizations and belief-levels when it imposes a burden. Instead it “must treat individual religions and religious institutions ‘without discrimination or preference.’” Colo. Christian U. v. Weaver, 534 F.3d 1245, 1257 (10th Cir. 2008); Larson v. Valente, 456 U.S. 228 (1982); see also Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990) (holding that section 19 of the National Labor Relations Act, which exempts from mandatory union membership any employee who “is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations,” is unconstitutional because it discriminates among religions and would involve an impermissible Government inquiry into religious tenets), cert. denied, 505 U.S. 1218 (1992).
In this case, as an example, the HHS Mandate’s four-pronged religious exemption deems religious organizations insufficiently “religious” if they do not focus on co-religionists in hiring and service, which would involve the Government’s probing of what exactly count as the organization’s religious “tenets.”
D. The HHS Mandate violates the First Amendment to the Constitution, Free Speech and Expressive Association.
The HHS Mandate additionally violates the First Amendment by coercing MKC to provide for speech that is contrary to its and its owners’ religious beliefs. The “right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705, 714 (1977) (quoting W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943)). Accordingly, the First Amendment protects the right to “decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 573 (1995) (internal quotation marks omitted).
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2:13-cv-11379-DPH-MJH Doc # 20 Filed 04/26/13 Pg 57 of 66 Pg ID 331
Additionally, “[a]mong the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition.” Healy v. James, 408 U.S. 169, 181 (1972) (citations omitted). The Sixth Circuit echoed this fundamental understanding of the right to association by stating, “Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of freedom of speech.” Connection Distributing Co. v. Reno, 154 F.3d 281, 295 (6th Cir. 1998) (citing NAACP v. Alabama, 357 U.S. 449, 460 (1958).
Indeed, “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). The Government traditionally has not been allowed to force a person—who objects to an activity or conduct on moral grounds—to subsidize, and thereby endorse, conduct that he believes, teaches, or otherwise states is wrong. See, e.g., Keller v. State Bar of California, 496 U.S. 1 (1990) (holding that the Government cannot compel state bar members to finance political and ideological activities of which they disagree); Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (holding that the Government cannot require state employees to provide financial support for ideological union activities they oppose which are unrelated to collective bargaining); Wooley v. Maynard, 430 U.S. 705 (1977) (enjoining a state law which required that plaintiff affix the motto “Live Free or Die” on his license plate when the plaintiff, who was a Jehovah’s Witness, found the motto morally repugnant).
Despite the Government not being allowed to force an objector to subsidize, and thereby endorse, conduct that he believes, teaches, or otherwise states is wrong, in this case, the
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Government is wrongfully forcing MKC to participate in, pay for, train others to engage in, or otherwise support contraception or the killing of people by abortion. Moreover, for the reasons stated below, this Court should not consider any argument by the Government that the HHS Mandate affects what MKC must do, and not what it says. Conduct communicates a message; MKC’s conduct for the last 56 years has been to exclude contraception, abortion, and “life style drugs” from its workforce health insurance plans. The message that MKC has been sending to its workforce for the last 56 years is the same – that its health insurance plan excludes contraception, abortion, and “life style drugs.”
Based on the speech at issue here (expressing one’s faith), Plaintiffs are also protected by “the First Amendment’s expressive associational right.” See Boy Scouts of America v. Dale, 530 U.S. 640, 648-650 (2000) (finding that the Boy Scouts are protected by the First Amendment and stating, “It seems indisputable that an association that seeks to transmit . . . a system of values engages in expressive activity”). In Boy Scouts of America, the Supreme Court held that “freedom of expressive association” under the Free Speech Clause prohibited the enforcement of a public accommodation law when it required the Boy Scouts be led by a homosexual scoutmaster. Id. at 648. The Supreme Court held that compelling the enforcement of the public accommodation law would “force the organization to send a message, both to the youth members and the world, that the [organization] accepts homosexual conduct as a legitimate form of behavior.” Id. at 653. Correspondingly, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995), the Supreme Court held that the First Amendment gave the plaintiffs, organizers of a private St. Patrick’s Day parade, the right to exclude a homosexual group from the parade, when plaintiffs believed that the group’s presence would communicate a message about homosexual conduct to which plaintiffs objected. The First Amendment
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protected plaintiffs’ right “not to propound a particular point of view,” and the Supreme Court protected the “principle of speaker’s autonomy.” Id. at 575, 580.
The HHS Mandate compels expressive speech. At the least, it requires MKC’s workforce insurance plan to cover “education and counseling” in favor of contraceptives and abortifacients. Education and counseling are, by definition, speech. The Supreme Court has explained that its compelled speech jurisprudence is triggered when the Government forces a speaker to fund objectionable speech. See, e.g, Abood v. Detroit Bd. of Ed., 431 U.S. 209, 234– 35 (1977) (forced contributions for union political speech); United States v. United Foods, 533 U.S. 405, 411 (2001) (forced contributions for advertising). The Supreme Court recently reaffirmed that “compulsory subsidies for private speech” violate the First Amendment unless they involve a “mandated association” that meets the compelling interest / least restrictive means test. Knox v. Service Employees Intern. Union, 567 U.S. ___; 132 S. Ct. 2277, 2289 (June 21, 2012). Here there is no “mandated association” because the Government omits many employers from the HHS Mandate, and the HHS Mandate violates the compelling interest test. These factors, and because the HHS Mandate is not a condition on Government funding, distinguish it from Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47 (2006). Rumsfeld does not negate Knox, Abood, and United Foods.
Since the First Amendment, through its free speech and expressive association provisions, protects nonreligious organizations based upon moral objections to exclude individuals whose mere presence was thought to send an objectionable message, then, reasonably, the Court should protect the free speech and association of Plaintiffs who object to subsidizing and supporting certain messages and conduct based upon their deeply held religious beliefs. The compelled subsidization and support of contraceptives, abortion, and abortifacients
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in the instant case strikes at the heart of one’s ability to communicate unambiguous moral teachings and religious beliefs, and one’s ability to form associations that maintain adherence to those teachings.
E. The HHS Mandate violates the Administrative Procedure Act. The HHS Mandate was finalized while transparently, even admittedly, refusing to satisfy Defendants’ statutory duty to actually “consider” objections issued during the comment period. Section 706 of the APA provides that courts “shall hold unlawful and set aside agency action, findings, and conclusions found to be without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). Defendants must follow the procedure found in § 553, which requires administrative agencies to: (1) publish notice of proposed rulemaking in the Federal Register; (2) “give interested parties an opportunity to participate in the rule making through submission of written data, views, or arguments”; and (3) consider all relevant matter presented before adopting a final rule that includes a statement of its basis and purpose. 5 U.S.C. § 553(b) & (c). “An agency is required to provide a meaningful opportunity for comments, which means that the agency’s mind must be open to considering them.” Grand Canyon Air Tour Coalition v. F.A.A., 154 F.3d 455, 468 (D.C. Cir. 1998) (citing McLouth Steel Products Corporation v. Thomas, 838 F.2d 1317, 1323 (D.C. Cir. 1988)). The Court need not engage in any subjective judgment about whether Defendants provided due consideration to objections to the HHS Mandate. In this case, Defendants essentially admit that they did not do so: (1) The Affordable Care Act prohibits the HHS Mandate from going into effect until
one year after it is in final, unchanged form. 75 Fed. Reg. 41726; 76 Fed. Reg. 46624. (2) Defendants themselves insisted, in August 2011, prior to the comment period, that they believed the HHS Mandate must exist in final form, unchanged from as it was written on August 1, 2011, in order to deliver Mandated items to college women by August 2012. 76 Fed. Reg. 46621–26.
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(3) Defendants delivered on their promise to ignore comments by finalizing their rule “without change” in February 2012. 77 Fed. Reg. 8725–30.

(4) Due to public outcry, Defendants then admitted in a new regulatory process in March 2012, 77 Fed. Reg. 16501, that the same objections offered in the 2011 comment period actually did require alterations that they had refused to consider in 2011 but would now pursue.

(5) Yet Defendants continue to impose their HHS Mandate on MKC and others as if

their rule had actually been finalized in August 2011, in a process

that

meaningfully considered suggested changes prior to finalization.

Defendants’ mockery of the notice and comment process has led to palpable injury to

MKC. The HHS Mandate’s adoption of HRSA’s preventive services guidelines against religious

objectors should be vacated and remanded to the Defendant agencies until they actually finalize a

Mandate after meaningful consideration, and then wait an additional year to impose it.

II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM WITHOUT INJUNCTIVE RELIEF. Granting preliminary injunctive relief is necessary to prevent MKC from suffering
continued irreparable harm. “The basis of injunctive relief in the federal courts has always been irreparable harm.” Sampson v. Murray, 415 U.S. 61, 88 (1974).
Application of the HHS Mandate to MKC violates its rights under the First Amendment and the RFRA. It is settled that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); Legatus, et al. v. Sebelius, et al., No. 12-12061 (E.D. Mich. Oct. 31, 2012) (holding that the HHS Mandate causes irreparable harm to First Amendment rights, “The potential for harm to Plaintiffs exists, and with the showing Plaintiffs have made thus far of being able to convincingly prove their case at trial, it is properly characterized as irreparable.”). Deprivation
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of rights secured by the RFRA—which affords even greater protection to religious freedom than the Free Exercise Clause—also constitutes irreparable harm. See, e.g., Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (noting that “courts have held that a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (explaining under RFRA that “although the plaintiff's free exercise claim is statutory rather than constitutional, the denial of the plaintiff's right to the free exercise of his religious beliefs is a harm that cannot be adequately compensated monetarily”); W. Presbyterian Church v. Bd. of Zoning Adjustment of Dist. of Columbia, 849 F. Supp. 77, 79 (D.D.C. 1994) (granting a preliminary injunction against a zoning ordinance prohibiting a church’s feeding of the homeless based on likely violations of the First Amendment and RFRA). The District Court in Colorado reached the same conclusion in the Newland case. See Newland, 2012 WL 3069154 at *4 (noting “it is well-established that the potential violation of Plaintiffs’ constitutional and RFRA rights threatens irreparable harm”) (citation omitted).
MKC is currently suffering irreparable harm by not being able to operate their business in a manner that reflects their Catholic faith and other Christian beliefs. MKC does not qualify for any of Defendants’ exemptions for non-enforcement and has been subject to the HHS Mandate since January 1, 2013. Because of the HHS Mandate, MKC’s workforce insurance carrier has refused to continue writing a policy for MKC, as it has for decades, excluding contraception, abortion, and drugs commonly referred to as “life style drugs.” Thus, on January 1, 2013, MKC was forced to choose between exercising its rights under the First Amendment and RFRA and not offering workforce insurance coverage that includes contraception, abortion, and “life style drugs,” or violating their religious beliefs and offering workforce insurance coverage that includes contraception, abortion, and “life style drugs.” MKC unwillingly chose to sacrifice its
47

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religious beliefs, as opposed to not offering its workforce any insurance coverage at all. Further, even assuming arguendo that MKC could obtain third party group insurance coverage that specifically excludes contraception, abortion, and “life style drugs,” the payment of penalties which would be imposed upon MKC for not providing this coverage would be the ringing of a bell announcing its Death Knell – further irreparable harm.
The deprivation of Plaintiffs’ First Amendment freedoms, even for minimal periods, constitutes irreparable injury. By virtue of the fact that the law applies to MKC now, and Defendants have expressed opposition to this motion, MKC’s harm will continue absent injunctive relief.
III. THE BALANCE OF EQUITIES TIPS IN PLAINTIFFS’ FAVOR. Here, the balance of equities overwhelmingly favors MKC. Granting preliminary
injunctive relief will merely prevent Defendants from enforcing the HHS Mandate against one religious entity and will simply preserve the status quo between the parties. If the HHS Mandate is not enforced against Plaintiffs, Defendants will suffer no harm, because the exercise of constitutionally protected expression can never harm Defendants’ or others’ legitimate interests. See Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); see also Legatus, et al. v. Sebelius, et al., No. 12-12061 (E.D. Mich. Oct. 31, 2012) (holding that the HHS Mandate should be enjoined, “The Government will suffer some, but comparatively minimal harm if the injunction is granted. . . . The balance of harms tips strongly in Plaintiffs’ favor.”).
Defendants have already exempted a number of churches and church-related entities from the HHS Mandate. Even more notably, Defendants have granted what nearly amounts to its own voluntary “injunction” by granting delayed enforcement of the HHS Mandate against a broad
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array of religious organizations until their first plan years start after August 2013. Omission of MKC from the “safe harbor” is arbitrary and unwarranted in the first place. Defendants cannot possible show that applying the HHS Mandate to one other religious entity would “substantially injure” others’ interests.
Balanced against this de minimis injury to Defendants is the real and immediate threat to MKC’s and its owners’ integrity of religious belief. In sum, any minimal harm in not applying the HHS Mandate against one additional entity, in light of Defendants’ willingness to not enforce it against thousands of others, “pales in comparison to the possible infringement upon Plaintiffs’ constitutional and statutory rights.” Newland, 2012 WL 3069154 at *4.
Moreover, arguing that equity does not weigh in Plaintiffs’ favor because it took them twelve weeks after the HHS Mandate became effective to file this suit is unjust. The Government did not send business owners advanced notice of the HHS Mandate, and Plaintiffs only became aware of it at the end of 2012 through Catholic publications and their health insurance carrier who was attempting to renew their policy. Initially believing that they did not have a right or a chance to fight the Government over implementation of the HHS Mandate, Plaintiffs did not initially seek legal advice. Once they realized, again through Catholic publications, that the HHS Mandate could be challenged, Plaintiffs hired counsel, who prepared and filed the instant lawsuit as quickly as possible to eliminate or minimize Plaintiffs’ harm.
IV. AN INJUNCTION IS IN THE PUBLIC INTEREST. The impact of the preliminary injunction on the public interest turns in large part on
whether Plaintiffs’ Constitutional rights are violated by the enforcement of Defendants’ HHS Mandate. As the Sixth Circuit noted, “[I]t is always in the public interest to prevent the violation
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of a party’s Constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994); see also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (stating “the public as a whole has a significant interest in ensuring equal protection of the laws and protection of First Amendment liberties”). Aforementioned, the enforcement of Defendants’ HHS Mandate is a direct violation of Plaintiffs’ fundamental rights protected by the RFRA and the First Amendment. Therefore, the public interest is best served by preventing Defendants from compelling individuals to violate their religious beliefs and rights of conscience, protected by the RFRA and the First Amendment.
A preliminary injunction will serve the public interest by protecting MKC’s First Amendment and RFRA rights. “There is a strong public interest in the free exercise of religion even where that interest may conflict with [another statutory scheme].” O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc), aff’d and remanded, O Centro, 546 U.S. 418. Furthermore, any interest of Defendants in uniform application of the mandate “is … undermined by the creation of exemptions for certain religious organizations and employers with grandfathered health insurance plans and a temporary enforcement safe harbor for non-profit organizations.” Newland, 2012 WL 3069154 at *4.
CONCLUSION Plaintiffs hereby request that this Honorable Court issue an order for preliminary injunction, and any other relief it deems appropriate. The HHS Mandate violates both the RFRA and the First Amendment. Unless this Honorable Court issues an order for preliminary injunction, Plaintiffs will continue to suffer irreparable harm. Defendants, conversely, would
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face no harm if an injunction is issued, as the HHS Mandate already exempts millions of other

companies and organizations.

Dated: April 26, 2013

Respectfully submitted,

/s/ Kimberly A. Cochrane THE TROY LAW FIRM DANIEL E. CHAPMAN KIMBERLY A. COCHRANE Attorneys for Plaintiffs 888 W Big Beaver Road, Ste 1400 Troy, MI 48084 (248) 244-9100 dchapman@troylawfirm.com kcochrane@troylawfirm.com

CERTIFICATE OF SERVICE
I certify, that on April 26, 2013, I electronically filed a document entitled “Plaintiffs’ Emergency Motion For Preliminary Injunction” with the Clerk of the Court using the ECF system which will send notification of such filing to the following:

THE TROY LAW FIRM DANIEL E. CHAPMAN 888 W Big Beaver Road, Ste 1400 Troy, MI 48084 (248) 244-9100 dchapman@troylawfirm.com

U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch BRADLEY P. HUMPHREYS 20 Massachusetts Avenue N.W. Washington, D.C. 20001 (202) 514-3367 bradley.p.humphreys@usdoj.gov

Dated: April 26, 2013

Respectfully submitted, THE TROY LAW FIRM
/s/ Kimberly A. Cochrane Kimberly A. Cochrane 888 W Big Beaver Road, Ste 1400 Troy, MI 48084 (248) 244-9100 kcochrane@troylawfirm.com P73032
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 2:13-cv-11379-DPH-MJH Doc # 37 Filed 06/06/13 Pg 1 of 62 Pg ID 678

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

____________________________________

)

M.K. CHAMBERS CO., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.,

)

)

Defendants.

)

____________________________________)

Case No. 2:13-cv-11379 Judge Denise Page Hood Magistrate Judge Michael J. Hluchaniuk

DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN SUPPORT

2:13-cv-11379-DPH-MJH Doc # 37 Filed 06/06/13 Pg 2 of 62 Pg ID 679
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii
ISSUES PRESENTED................................................................................................................. xiii
CONTROLLING OR MOST APPROPRIATE AUTHORITY .................................................. xiv
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................5
I. STATURY AND REGULATRY BACKGROUND ...........................................................5
II. CURRENT PROCEEDINGS ..............................................................................................8
STANDARD OF REVIEW .............................................................................................................8
ARGUMENT ...................................................................................................................................9
I. PLAINTIFFS’ RELIGIOUS FREEDOM RESTORATION ACT CLAIM IS WITHOUT MERIT .............................................................................................................9
A. The Preventive Services Coverage Regulations Do Not Substantially Burden Any Exercise of Religion By A For-Profit, Secular Company and Its Owners ................................................................................................................9 1. There is no substantial burden on MKC because a for-profit, secular corporation does not exercise religion .......................................................10
2. The regulations do not substantially burden the Chambers’ religious exercise because the regulations apply only MKC, a separate and distinct legal entity .............................................................15
3. Alternatively, any burden imposed by the regulations is too attenuated to constitute a substantial burden ...............................................................20
B. Even if there were a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests............................................................................................21
1. The regulations significantly advance compelling governmental interests in public health and gender equality.....................21
2. The regulations are the least restrictive means of advancing the government’s compelling interests ............................................................31
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II. PLAINTIFFS’ FIRST AMENDMENT CLAIMS LACK MERIT, AND SHOULD ALL BE DISMISSD ..........................................................................................................34 A. The Regulations Do Not Violate the Free Exercise Clause ...................................34 B. The Regulations Do Not Violate the Establishment Clause ..................................35 C. The Regulations Do Not Violate the Free Speech Clause or the Right to Expressive Association ......................................................................................37
III. PLAINTIFFS’ ADMINISTRATIVE PROCEDURE ACT CLAIMS ARE MERITLESS, AND SHOULD BE DISMISSED..............................................................39 A. Issuance of the Regulations Was Procedurally Proper ..........................................39 B. The Regulations Are Neither Arbitrary Nor Capricious........................................40 C. The Regulations Do Not Violate Federal Restrictions Relating to Abortion ........42
CONCLUSION ..............................................................................................................................46
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TABLE OF AUTHORITIES
CASES
Adams v. Comm'r of Internal Revenue, 170 F.3d 173 (3d Cir. 1999)...............................................................................................33
Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) .............................................................................................35
Annex Med., Inc. v. Sebelius, No. 12-2804, 2013 WL 101927 (D. Minn. Jan. 8, 2013)...................................................21
Anselmo v. Cnty. of Shasta, 873 F. Supp. 2d 1247 (E.D. Cal. 2012)..............................................................................12
Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................................................................................9
Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)...........................................................................................................43
Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012) ....................... passim
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .........................................................................................35
Bartel v. Kemmerer City, 482 F. App'x 323, 326 (10th Cir. 2012).............................................................................18
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994)...........................................................................................................37
Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011) ...........................................................................................45
Braunfeld v. Brown, 366 U.S. 599 (1961).....................................................................................................17, 31
Briscoe v. Sebelius, Civil Action No. 13-cv-00285-WYD-BNB, 2013 WL 755413 (D. Colo. Feb. 27, 2013) ...................................................3, 5, 19, 36, 37
Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ...........................................................................................22
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Cal. ex rel. Lockyer v. United States, 450 F.3d 436 (9th Cir. 2006) .............................................................................................46
Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158 (2001)...........................................................................................................18
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)...........................................................................................................25
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).........................................................................................15, 17, 27, 35
Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752 (7th Cir. 2003) .............................................................................................17
Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008)...............................................................................................17
Commack Self-Serv. Kosher Meats, Inc. v. Hooker, 800 F. Supp. 2d 405 (E.D.N.Y. 2011) ...............................................................................15
Conestoga Wood Specialties Corp. v. Sebelius, Civil Action No. 12-6744, 2013 WL 140110 (E.D. Pa. Jan. 11, 2013) ..................... passim
Conestoga Wood Specialties, Corp. v. Sebelius, No. 13-1144, 2013 WL 1277419 (3d Cir. Feb. 8, 2013) .......................................21, 37, 38
Corp. of the Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos,
483 U.S. 327 (1987)...............................................................................................14, 16, 38
Cutter v. Wilkinson, 544 U.S. 709 (2005)...........................................................................................................37
Dialysis Ctrs., Ltd. v. Schweiker, 657 F.2d 135 (7th Cir. 1981) .............................................................................................44
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995) ..................................................................................22
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) ...........................................................................................24
Droz v. Comm'r of IRS, 48 F.3d 1120 (9th Cir. 1995) .............................................................................................37
iv

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Eden Foods v. Sebelius., Civ. A. No. 13-11229 (E.D. Mich. May 21, 2013) ..................................4, 5, 21, 35, 36, 46
EEOC v. Townley Eng'g and Mfg. Co., 859 F.2d 610 (9th Cir. 1988) .......................................................................................14, 20
Elrod v. Burns, 427 U.S. 347 (1976)...........................................................................................................47
Emp't Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872 (1990).................................................................................................4, 35, 36
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976)...........................................................................................................46
Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) .............................................................................................33
Fund for Animals v. Frizzell, 530 F.2d 982 (D.C. Cir. 1975) ...........................................................................................47
Gilardi v. Sebelius, Civil Action No. 13-104(EGS), 2013 WL 781150 (D.D.C. Mar. 3, 2013) ...................3, 19
Gillette v. United States, 401 U.S. 437 (1971)...........................................................................................................37
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)...................................................................................10, 15, 24, 25, 31
Gooden v. Crain, 353 F. App'x 885, 888 (5th Cir. 2009)...............................................................................33
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006) ...........................................................................................35
Graham v. Comm'r, 822 F.2d 844 (9th Cir. 1987) .................................................................................24, 26, 33
Grote Indus., LLC v. Sebelius, No. 4:12-cv-00134-SEB-DML, 2012 WL 6725905 (S.D. Ind. Dec. 27, 2012) ........ passim
Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) .............................................................................4, 11, 19, 21
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Heartwood, Inc. v. U.S. Forest Serv., 230 F.3d 947 (7th Cir. 2000) .............................................................................................42
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) .................................................................. passim
Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302 (10th Cir. Dec. 20, 2012)..........................................4, 21
Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57 (D.D.C. 2002), aff'd, 333 F.3d............................................................10
Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) .....................................................................................10, 13
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) ...................................................................................................12, 20
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995)...........................................................................................................40
Huron Mountain Club v. U.S. Army Corps of Eng'rs, No. 2:12-CV-197, 2012 WL 3060146 (W.D. Mich. July 25, 2012)..................................47
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ...........................................................................................34
Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94 (1952).............................................................................................................12
Korte v. U.S. Dep't of Health & Human Servs., Case No. 3:12-CV-01072-MJR, 2012 WL 6553996 (S.D. Ill. Dec. 14, 2012) ......... passim
Larson v. Valente, 456 U.S. 228 (1982).....................................................................................................37, 38
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217 (3d Cir. 2007)...............................................................................................13
Legatus v. Sebelius, Case No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) ..........................11, 28
Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002) .........................................................................................10
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Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App'x 729, 734 (6th Cir. 2007) ...........................................................................17
Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (1989)...........................................................................................................25
Maruani v. AER Servs., Inc., No. 06-176, 2006 WL 2666302 (D. Minn. Sept. 18, 2006)...............................................15
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) .............................................................................................47
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) .....................................................................................22
Morr-Fitz, Inc. v. Blagojevich, No. 2005-CH-000495, 2011 WL 1338081 (Ill. Cir. Ct. 7th, Apr. 5, 2011).......................15
Motor Vehicle Mfrs. Ass'n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).............................................................................................................42
Murphy v. State of Ark., 852 F.2d 1039 (8th Cir. 1988) ...........................................................................................34
Nautilus Ins. Co. v. Reuter, 537 F.3d 733 (7th Cir. 2008) .............................................................................................19
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989) ..............................................................................................33
O'Brien v. U.S. Dep't of Health & Human Servs., 894 F. Supp. 2d 1149 (E.D. Mo. 2012)...................................................................... passim
Oakland Tribune, Inc. v. Chronicle Publ'g Co., 762 F.2d 1374 (9th Cir. 1985) ...........................................................................................47
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) .............................................................................................35
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009) ...........................................................................................17
Potthoff v. Morin, 245 F.3d 710 (8th Cir. 2001) .............................................................................................18
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Primera Iglesia Bautista Hispana v. Broward Cnty., 450 F.3d 1295 (11th Cir. 2006) .........................................................................................15
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)...........................................................................................................23
Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR), 547 U.S. 47 (2006).......................................................................................................38, 39
S. Ridge Baptist Church v. Indus. Comm'n of Ohio, 911 F.2d 1203 (6th Cir. 1990) ...............................................................................27, 31, 33
Sherbert v. Verner, 374 U.S. 398 (1963).....................................................................................................14, 24
Spencer v. World Vision, Inc., 633 F.3d 723 (9th Cir. 2010) .............................................................................................13
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998).............................................................................................................19
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) .....................................................................................14, 20
Thomas v. Review Board, 450 U.S. 707 (1981).....................................................................................................14, 21
Torco Oil Co. v. Innovative Thermal Corp., 763 F. Supp. 1445 (N.D. Ill. 1991) ....................................................................................19
Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964 (2d Cir. 1995).................................................................................................47
Tyndale House Publishers, Inc. v. Sebelius, Civil Action No. 12-1635 (RBW), 2012 WL 5817323 (D.D.C. Nov. 16, 2012) ..............11
United States v. Israel, 317 F.3d 768 (7th Cir. 2003) .............................................................................................31
United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) .............................................................................................33
United States v. Lee, 455 U.S. 252 (1982)................................................................................................... passim
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United States v. Oliver, 255 F.3d 588 (8th Cir. 2001) .............................................................................................24
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) .............................................................................................32
United States v. United Foods, Inc., 533 U.S. 405 (2001)...........................................................................................................39
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ...................................................................................32, 33
United States v. Winddancer, 435 F. Supp. 2d 687 (M.D. Tenn. 2006)......................................................................24, 27
Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) .........................................................................................13
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)...........................................................................................................40
Walz v. Tax Commission of New York, 397 U.S. 664 (1970)...........................................................................................................38
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)...........................................................................................................48
Werft v. Desert Sw. Annual Conference of the United Methodist Church, 377 F.3d 1099 (9th Cir. 2004) ...........................................................................................12
Wisconsin v. Yoder, 406 U.S. 205 (1972).....................................................................................................14, 24
STATE STATUTES
Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006)...................................................................................... passim
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004) ............................................................................................... passim
Handley v. Wyandotte Chems. Corp., 325 N.W.2d 447 (Mich. Ct. App. 1982) ............................................................................18
Jasniowski v. Rushing, 678 N.E.2d 743 (Ill. App. Dist. 1, 1997) ...........................................................................15
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McClure v. Sports and Health Club, 370 N.W.2d 844 (Minn. 1985).....................................................................................15, 16
Roberts v. Bradfield, 12 App. D.C. 453 (D.C. Cir. 1898)....................................................................................15
Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274 (Alaska 1994)...............................................................................................16 FEDERAL STATUTES
5 U.S.C. § 553................................................................................................................................41 26 U.S.C. § 1402......................................................................................................................29, 30 26 U.S.C. § 5000A .........................................................................................................................29 29 U.S.C. § 1132............................................................................................................................18 26 U.S.C. § 4980H .........................................................................................................................29 42 U.S.C. § 18011..........................................................................................................................27 42 U.S.C. § 18021..........................................................................................................................29 42 U.S.C. § 18023....................................................................................................................43, 44 42 U.S.C. § 2000bb-1 ..........................................................................................................1, 10, 13 42 U.S.C. § 2000e-1.................................................................................................................13, 20 42 U.S.C. § 2000e-2.......................................................................................................................13 42 U.S.C. § 300..............................................................................................................................45 42 U.S.C. § 300a-6.........................................................................................................................45 42 U.S.C. § 300gg-13 ..........................................................................................................6, 28, 29 Pub. L. No. 103-141, 107 Stat. 1488 (1993)..................................................................................10 Pub. L. No. 108-447, 118 Stat. 2809 (2005)..................................................................................46 Pub. L. No. 111-148, 124 Stat. 119 (2010)......................................................................................6
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Pub. L. No. 112-74, § 125 Stat. 786 (2012)...................................................................................43 FEDERAL REGULATIONS
45 C.F.R. § 147.130 ...................................................................................................................8, 30 45 C.F.R. § 147.140 .......................................................................................................................27 45 C.F.R. § 46.202 ...........................................................................................................................7 62 Fed. Reg. 8610 (Feb. 25, 1997) ............................................................................................7, 45 75 Fed. Reg. 34,540 (June 17, 2010) .............................................................................................28 75 Fed. Reg. 41,726 (July 19, 2010)..............................................................................................22 76 Fed. Reg. 46,603 (Aug. 3, 2011)...............................................................................8, 28, 41, 42 77 Fed. Reg. 8725 (Feb. 15, 2012) ........................................................................................ passim 78 Fed. Reg. 8456 (Feb. 6, 2013) ....................................................................................................8
LEGISLISLATIVE MATERIALS 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) ............................................................46 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) .......................................................23 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) .......................................................24 H.R. Rep. No. 111-443 (2010).................................................................................................32, 33
MISCELLANEOUS FDA, Birth Control Guide ...............................................................................................................7 Federal Rule of Civil Procedure 12(b)(1) ........................................................................................1 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services
for Women (August 1, 2011) .............................................................................................44 HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines .....................7 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN:
CLOSING THE GAPS (2011) ...................................................................................................7
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2:13-cv-11379-DPH-MJH Doc # 37 Filed 06/06/13 Pg 13 of 62 Pg ID 690 M.K. Chambers Articles of Incorporation .....................................................................................11 Office of Population Affairs, Memorandum (Apr. 23, 1997)........................................................45
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2:13-cv-11379-DPH-MJH Doc # 37 Filed 06/06/13 Pg 14 of 62 Pg ID 691 ISSUES PRESENTED
1. Do the preventive services coverage regulations substantially burden plaintiffs’ religious exercise under the Religious Freedom Restoration Act? 2. Assuming the regulations substantially burden any religious exercise, do the regulations serve compelling governmental interests and are they the least restrictive means to achieve those interests? 3. Do the regulations violate the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses? 4. Do the regulations violate the Administrative Procedure Act?
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CONTROLLING OR MOST APPROPRIATE AUTHORITIES United States v. Lee, 455 U.S. 252 (1982) Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) Cedric Kushner Promotions, Ltd. v. King, 533 158 (2001) Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) Autocam Corp. v. Sebelius, Order, No. 12-2673 (6th Cir. Dec. 28, 2012) Autocam Corp. v. Sebelius, No. 1:12-CV-1096, slip op. (W.D. Mich. Dec. 24, 2012) Hobby Lobby v. Sebelius, Order, No. 12-6294 (10th Cir. Dec. 20, 2012) Hobby Lobby v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) Conestoga Wood Specialties Corp. v. Sebelius, No. 13-1144 (3d Cir. Jan. 29, 2013) Conestoga Wood Specialties Corp. v. Sebelius, Civil Action No. 12-6744, 2013 WL 140110
(E.D. Pa. Jan. 11, 2013) Korte v. U.S. Dep’t of Health & Human Servs., No. 12-cv-01072-MJR, 2012 WL 6553996 (S.D.
Ill. Dec. 14, 2012) Grote Indus., LLC v. Sebelius, No. 4:12-cv-00134-SEB-DML, 2012 WL 6725905 (S.D. Ind.
Dec. 27, 2012) O’Brien v. U.S. Dep’t of Health & Human Servs., No. 4:12-CV-476(CEJ), 2012 WL 4481208
(E.D. Mo. Sept. 28, 2012) Annex Med., Inc. v. Sebelius, No. 12-2804, 2013 WL 101927 (D. Minn. Jan. 8, 2013) Gilardi v. Sebelius, Civil Action No. 13-104(EGS), 2013 WL 781150 (D.D.C. Mar. 3, 2013),
appeal docketed, No. 13-5069 (D.C. Cir. Mar. 5, 2013) Briscoe v. Sebelius, Civil Action No. 13-cv-00285-WYD-BNB, 2013 WL 755413 (D. Colo. Feb.
27, 2013)
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INTRODUCTION1 Advancing claims that are indistinguishable from those that the Sixth Circuit, as well as the Tenth and Third Circuits, have already deemed unlikely to succeed in similar litigation, plaintiffs—a for profit, secular corporation and its owners—challenge regulations that are intended to help ensure that women have access to health coverage, without cost-sharing, for preventive services that medical experts deem necessary for women’s health and well-being. Plaintiffs’ challenge rests largely on the theory that M.K. Chambers Company (“MKC”), a forprofit, secular machinery supplier, can exercise religion and thereby avoid the reach of laws designed to regulate commercial activity. This cannot be. Indeed, the Supreme Court has recognized that, “‘[w]hen followers of a particular sect enter into commercial activit[y] as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.’” Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677, *7 (W.D. Mich. Dec. 24, 2012) (quoting United States v. Lee, 455 U.S. 252, 261 (1982)), motion for injunction pending appeal denied, No. 12-2673 (6th Cir. Dec. 28, 2012), reconsideration denied, No. 122673 (6th Cir. Dec. 31, 2012). Nor can such a company’s owners or officers eliminate the legal separation provided by the corporate form to impose their personal religious beliefs on the corporation’s employees. To hold otherwise would permit for-profit, secular corporations and their shareholders and officers to become laws unto themselves, claiming countless exemptions
1 On May 22, 2013, defendants filed a nearly identical version of this motion to dismiss in a combined document with an opposition to plaintiffs’ motion for a preliminary injunction. See Defs.’ Mot. to Dismiss & Mem. in Opp’n to Pls.’ Mot. for Prelim. Inj., ECF No. 25. The Court’s case manager has informed undersigned counsel that this combined filing violates the Court’s local rules. Accordingly, defendants now refile their motion to dismiss as a stand-alone document. Defendants have altered the May 22 memorandum only by removing references to defendants’ opposition to plaintiffs’ motion for a preliminary injunction, which defendants have filed as an independent docket entry, see Pls.’ Mot. to Dismiss, ECF No. XX.
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from an untold number of general laws designed to improve the health and well-being of individual employees based on an infinite variety of alleged religious beliefs. Such a system would not only be unworkable, it would also cripple the government’s ability to solve national problems through laws of general application. This Court, therefore, should reject plaintiffs’ effort to bring about an unprecedented expansion of free exercise rights.
For these reasons and others, plaintiffs’ claims should be dismissed. As this Court suggested in its April 3, 2013 Order denying plaintiffs’ motion for a temporary restraining order, plaintiffs cannot succeed on the merits of their claims. See Order Denying Ex Parte Emergency Mot. for TRO at 7-10 (“Order Denying TRO”), ECF No. 8. And in a case that plaintiffs conspicuously fail to cite, a motions panel for the Sixth Circuit denied a motion for preliminary injunctive relief pending appeal that raised the same arguments at issue here. See Autocam Corp. v. Sebelius, Order, No. 12-2673 (6th Cir. Dec. 28, 2012). The Autocam motions panel’s analysis is persuasive, as was the district court’s reasoning in that case, and therefore counsels strongly in favor of dismissing plaintiffs’ claims in their entirety.
With respect to plaintiffs’ Religious Freedom Restoration Act (“RFRA”) claim, none of the plaintiffs can show, as each must, that the regulations impose a substantial burden on any religious exercise. MKC is a for-profit secular employer, and a secular entity—by definition— does not exercise religion. Every court to have directly addressed this question in cases similar to this one has held that “secular, for-profit corporations . . . do not have free exercise rights.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1296 (W.D. Okla. 2012), appeal docketed, No. 12-6294 (10th Cir. Nov. 19, 2012); see also, e.g., Order at 6, Conestoga Wood Specialties Corp. v. Sebelius, No. 13-1144 (3d Cir. Jan. 29, 2013) (Garth, J., concurring) (“As the District Court properly recognized, . . . for-profit corporate entities, unlike religious non-
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profit corporations or organizations, do not—and cannot—legally claim a right to exercise or establish a ‘corporate’ religion under the First Amendment or the RFRA.”); Gilardi v. Sebelius, Civil Action No. 13-104(EGS), 2013 WL 781150, at *7 (D.D.C. Mar. 3, 2013), (concluding that the for-profit corporation plaintiffs “are engaged in purely commercial conduct and do not exercise religion under RFRA”), appeal docketed, No. 13-5069 (D.C. Cir. Mar. 5, 2013); Briscoe v. Sebelius, Civil Action No. 13-cv-00285-WYD-BNB, 2013 WL 755413, at *5 (D. Colo. Feb. 27, 2013) (“Secular, for-profit corporations neither exercise nor practice religion.”); Korte v. U.S. Dep’t of Health & Human Servs., Case No. 3:12-CV-01072-MJR, 2012 WL 6553996, at *6 (S.D. Ill. Dec. 14, 2012) (“[T]he exercise of religion [i]s a purely personal guarantee that cannot be extended to corporations” (quotation omitted)), appeal docketed, No. 12-3841 (7th Cir. Dec. 18, 2012).
The Chambers’ allegations of a substantial burden on their own individual religious exercise fare no better, as the regulations that purportedly impose such a burden apply only to certain group health plans and health insurance issuers. It is well established that a corporation and its owners/shareholders are wholly separate entities, and the Court should not permit the Chambers to eliminate that legal separation to impose their personal religious beliefs on MKC’s health plan or its employees. Only the company is subject to the challenged regulations, and thus the company’s owners have not shown a substantial burden on their individual religious exercise. See, e.g., Hobby Lobby, 870 F. Supp. 2d at 1294; Conestoga Wood Specialties Corp. v. Sebelius, Civil Action No. 12-6744, 2013 WL 140110, at *7-8 (E.D. Pa. Jan. 11, 2013); Conestoga, Order at 7 (Garth, J., concurring) (adopting the district court’s reasoning); Autocam, 2012 WL 6845677, at *7; Gilardi, 2013 WL 781150, at *4-5; Briscoe, 2013 WL 755413, at *6. The
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Chambers cannot use the corporate form alternatively as a shield and a sword, depending on what suits them in any given circumstance.
Furthermore, even if a secular entity could exercise religion, the regulations still do not substantially burden MKC’s or the Chambers’ exercise of religion for an independent reason; any burden caused by the regulations is simply too attenuated to qualify as a substantial burden. See, e.g., Eden Foods v. Sebelius, Order at 6-10, Civ. A. No. 13-11229 (E.D. Mich. May 21, 2013), ECF No. 22; Autocam, 2012 WL 6845677, at *6-7; Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2012 WL 6930302, *3 (10th Cir. Dec. 20, 2012); Hobby Lobby, 870 F. Supp. 2d at 1294; Conestoga, 2013 WL 140110, at *12-14; Grote v. Sebelius, 708 F.3d 850, 856-67 (7th Cir. 2013) (Rovner, J., dissenting). Just as MKC’s employees have always retained the ability to choose whether to procure contraceptive services by using the salaries the corporation pays them, under the current regulations those employees retain the ability to choose what health services they wish to obtain according to their own beliefs and preferences. Plaintiffs remain free to advocate against their employees’ use of contraceptive services (or any other services). Ultimately, an employee’s health care choices remain those of the employee, not MKC or the Chambers.
Finally, even if the challenged regulations were deemed to substantially burden any religious exercise, the regulations would not violate RFRA because they are narrowly tailored to serve two compelling governmental interests: improving the health of women and children, and equalizing the provision of preventive care for women and men so that women who choose to can be a part of the workforce on an equal playing field with men.
Plaintiffs’ First Amendment claims are equally meritless. The Free Exercise Clause does not prohibit a law that is neutral and generally applicable, even if the law prescribes conduct that
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an individual’s religion proscribes. Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). The preventive services coverage regulations fall within this rubric because they do not target, or selectively burden, religiously motivated conduct. The regulations apply to all non-exempt, non-grandfathered plans, not just those of employers with a religious affiliation. See Eden Foods, Order at 11-12; Briscoe, 2013 WL 755413, at *6-7; Hobby Lobby, 870 F. Supp. 2d at 1287-90; Conestoga, 2013 WL 140110, at *6-9; Autocam, 2012 WL 6845677, at *4-5; Grote Indus., LLC v. Sebelius, No. 4:12-cv-00134-SEB-DML, 2012 WL 6725905, at *7-8 (S.D. Ind. Dec. 27, 2012); Korte, 2012 WL 6553996, at *6-8; O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1160-61 (E.D. Mo. 2012), appeal docket, No. 12-3357 (8th Cir.). Plaintiffs’ Establishment Clause claim is similarly flawed. The religious employer exemption distinguishes between organizations based on their purpose and composition; it does not favor one religion, denomination, or sect over another. The distinctions drawn by the exemption, therefore, simply do not violate the constitutional prohibition against denominational preferences. Nor do the regulations violate plaintiffs’ free speech rights. The regulations compel conduct, not speech. They do not require plaintiffs to say anything; nor do they prohibit plaintiffs from expressing to company employees or the public its views in opposition to the use of contraceptive services.
Nor can plaintiffs succeed on their Administrative Procedure Act (“APA”) claims. In promulgating the challenged regulations, defendants complied with the relevant procedural rulemaking requirements and the regulations are not arbitrary, capricious, or contrary to law.
For these reasons, and the reasons explained below, defendants respectfully ask the Court to grant defendants’ motion to dismiss this case in its entirety.
BACKGROUND
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I. STATUTORY AND REGULATORY BACKGROUND Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148,
124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of disease, lead productive lives, and reduce health care costs. Due largely to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1920, 109 (2011) (“IOM REP.”), available at http://www.nap.edu/catalog.php?record_id=13181 (last visited May 22, 2013). Section 1001 of the ACA, which includes the preventive services coverage provision relevant here, seeks to cure this problem by making preventive care affordable and accessible for many more Americans. Specifically, the 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 cost-sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).
Because there were no existing HRSA guidelines relating to preventive care and screening for women, HHS tasked the Institute of Medicine (“IOM”) with developing recommendations to implement the requirement to provide preventive services for women. IOM REP. at 2.2 After conducting an extensive science-based review, IOM recommended that HRSA guidelines include, as relevant here, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive
2 IOM, which was established by the National Academy of Sciences in 1970, is funded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv.
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capacity.” Id. at 10-12. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (IUDs).3 FDA, Birth Control Guide, available at http://www.fda.gov/downloads/ForConsumers/ ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited May 22, 2013). IOM determined that coverage, without cost-sharing, for these services is necessary to increase access, and thereby reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. IOM REP. at 102-03.
On August 1, 2011, HRSA adopted IOM’s recommendations, subject to an exemption relating to certain religious employers authorized by an amendment to the interim final regulations. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), available at http://www.hrsa.gov/womensguidelines/ (last visited May 22, 2013). The amendment, issued the same day, authorized HRSA to exempt group health plans established or maintained by certain religious employers (and associated group health insurance coverage) from any requirement to cover contraceptive services under HRSA’s guidelines. 76 Fed. Reg. 46,603, 46,621 (Aug. 3, 2011); 45 C.F.R. § 147.130(a)(1)(iv)(A).4
3 Although plaintiffs describe Plan B and Ella as abortion-causing drugs, see Compl. ¶¶ 107-16, ECF No. 1, these drugs are not abortifacients within the meaning of federal law. See, e.g., 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997) (“Emergency contraceptive pills are not effective if the woman is pregnant[.]”); 45 C.F.R. § 46.202(f).
4 To qualify, an employer must meet the following criteria: (1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization, and (4) the organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 45 C.F.R. § 147.130(a)(1)(iv)(B). A recently published Notice of Proposed Rulemaking (“NPRM”) would eliminate the first three criteria and modify the fourth criterion. 78 Fed. Reg. 8456, 8459, 8474 (Feb. 6, 2013).
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In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the amended interim final regulations while also creating a temporary enforcement safe harbor for non-grandfathered group health plans sponsored by certain nonprofit organizations with religious objections to contraceptive coverage. 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012). The government intends to amend the preventive services coverage regulations during the safe harbor period to further accommodate non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728. To this end, the government issued a NPRM on February 6, 2013. 78 Fed. Reg. 8456. II. CURRENT PROCEEDINGS
Plaintiffs challenge the regulations to the extent they require the health coverage MCK makes available to its employees to cover recommended contraceptive services. On March 28, 2013, nearly nineteen months after the contraceptive coverage requirement was established— plaintiffs filed suit and, on April 2, moved for a temporary restraining order, claiming that they will suffer irreparable harm if the regulations are not enjoined as to them. See Compl.; Pls.’ TRO Mot., ECF No. 7. The Court denied plaintiffs motion for a TRO on April 3, 2013. Plaintiffs have now moved for a preliminary injunction. See Pls.’ Mem. in Supp. of Mot. for Prelim. Inj. (“Pls.’ Mem.”), ECF No. 20.
STANDARD OF REVIEW Defendants move to dism iss the Complaint fo r failure to state a claim upon which relief may be gra nted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under this Rule, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
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(2009). Defendants also m ove to dism iss one claim , see infra at 43-44, under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The party invoking federal jurisdiction bears the burden of establishing its existence, and the Court must determine whether it has jurisdiction before addressing the merits of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 104 (1998).
ARGUMENT I. PLAINTIFS’ RELIGIOUS FREEDOM RESTORATION ACT CLAIM IS
WITHOUT MERIT A. The Preventive Services Coverage Regulations Do Not Substantially Burden
Any Exercise of Religion by A For-Profit, Secular Company and Its Owners Under the Religious Freedom Restoration Act, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. § 2000bb-1), the federal government generally may not “substantially burden a person’s exercise of religion, ‘even if the burden results from a rule of general applicability.’” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (quoting 42 U.S.C. § 2000bb-1(a)). But the government may substantially burden the exercise of religion if the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). For several reasons, plaintiffs cannot show that the challenged regulations substantially burden any exercise of religion, and thus cannot succeed on their RFRA claim. First, MKC is not an individual or a “religious organization,” and thus cannot “exercise religion,” under RFRA. Second, because the regulations apply only to the corporation, and not to the Chambers, the Chambers’ religious exercise is not substantially burdened. And third, any burden imposed by the regulations is attenuated and thus cannot be substantial.
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1. There is no substantial burden on MKC because a for-profit, secular corporation does not exercise religion
Plaintiffs’ contention that MKC “exercise[s] . . . religion” within the meaning of RFRA, 42 U.S.C. § 2000bb-1(b), cannot be reconciled with MKC’s status as a secular company. The terms “religious” and “secular” are antonyms; a “secular” entity is defined as “not overtly or specifically religious.” See Merriam-Webster’s Collegiate Dictionary 1123 (11th ed. 2003). Thus, by definition, a secular company does not engage in any “exercise of religion,” 42 U.S.C. § 2000bb-1(a), as required to assert a claim under RFRA. See Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002) (“[T]he practice[] at issue must be of a religious nature.”); Holy Land Found. for Relief & Dev. v. Ashcroft, 219 F. Supp. 2d 57, 83 (D.D.C. 2002), aff’d, 333 F.3d 156 (D.C. Cir. 2003). Numerous courts have rejected RFRA challenges nearly identical to MKC on this basis. See, e.g., Korte, 2012 WL 6553996, at *6 (“[T]he exercise of religion [i]s a purely personal guarantee that cannot be extended to corporations.” (quotation omitted)); Hobby Lobby, 870 F. Supp. 2d at 1287, 1296 (“[S]ecular, for-profit corporations do not have free exercise rights.”).5 And, of course, this Court has already strongly suggested that a for-profit corporation—like MKC—cannot exercise religion within the meaning of RFRA or the Free Exercise Clause. See Order Denying TRO at 7-8.
MKC is plainly secular. The company’s pursuits and products are not religious; it is a forprofit machinery supplier. The corporation was not organized for carrying out a religious
5 By contrast, those courts that have ruled against defendants in similar cases have bypassed the question of whether a for-profit, secular corporation can “exercise religion” under RFRA. See, e.g., Legatus v. Sebelius, Case No. 12-12061, 2012 WL 5359630, at *5 (E.D. Mich. Oct. 31, 2012) (“[T]he court need not, and does not, decide whether [plaintiff], as a for-profit business, has an independent First Amendment right to free exercise of religion.”), appeal docket, No. 13-1092 (6th Cir.); Tyndale House Publishers, Inc. v. Sebelius, Civil Action No. 121635 (RBW), 2012 WL 5817323, at *5 (D.D.C. Nov. 16, 2012) (“This Court, like others before it, declines to address the unresolved question of whether for-profit corporations can exercise religion within the meaning of the RFRA and the Free Exercise Clause.”).
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purpose; its Articles of Incorporation make no reference at all to any religious purpose. See M.K. Chambers Articles of Incorporation, available at http://www.dleg.state.mi.us/bcs_corp/ sr_corp.asp (last visited May 22, 2013) (search by corporation name required). Nor does the corporation assert that it employs persons of a particular faith. Although defendants do not question the sincerity of the Chambers’ religious beliefs as set forth in the Complaint, the sincere religious beliefs of a corporation’s owners do not make the corporation religious. Otherwise, every corporation with a religious owner—no matter how secular the corporation’s purpose— would be considered religious, which would dramatically expand the scope of RFRA and the Free Exercise Clause. See Grote, 708 F.3d at 856-58 (Rovner, J., dissenting) (describing the potential consequences of such an expansion); see also Autocam, 2012 WL 6845677, at *7-8.
The government is aware of no case in which a for-profit, secular employer like MKC prevailed on a RFRA claim. Because MKC is a secular employer, it is not entitled to the protections of the Free Exercise Clause or RFRA. This is because, although the First Amendment freedoms of speech and association are “right[s] enjoyed by religious and secular groups alike,” the Free Exercise Clause “gives special solicitude to the rights of religious organizations.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012) (emphasis added). The cases are replete with statements like this. See, e.g., Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952) (stating that the Supreme Court’s precedent “radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation”) (emphasis added); Hosanna-Tabor, 132 S. Ct. at 706 (Free Exercise Clause “protects a religious group’s right to shape its own faith and mission”) (emphasis added); Werft v. Desert Sw. Annual Conference of the United Methodist Church, 377 F.3d 1099, 1102 (9th Cir. 2004) (“The Free Exercise Clause protects . . . religious
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organizations . . . .”) (citations and quotation marks omitted) (emphasis added); Anselmo v. Cnty. of Shasta, 873 F. Supp. 2d 1247, 1264 (E.D. Cal. 2012) (“Although corporations and limited partnerships have broad rights, the court has been unable to find a single [Religious Land Use and Institutionalized Persons Act] case protecting the religious exercise rights of a non-religious organization such as Seven Hills.”); Hobby Lobby, 870 F. Supp. 2d at 1288 (holding “secular, for-profit corporations . . . do not have constitutional free exercise rights”); Korte, 2012 WL 6553996, at *6, *9-10. Because RFRA incorporates Free Exercise jurisprudence, the same logic applies. Anselmo, 873 F. Supp. 2d 1247. Because RFRA incorporates Free Exercise jurisprudence, the same logic applies. See Holy Land Found., 333 F.3d at 167. In short, only a religious organization can “exercise religion” under RFRA.
Indeed, no court has ever held that a for-profit, secular corporation is a “religious corporation” for purposes of federal law. For this reason, secular companies such as MKC cannot permissibly discriminate on the basis of religion in hiring or firing employees or otherwise establishing the terms and conditions of employment. Title VII of the Civil Rights Act generally prohibits religious discrimination in the workplace. See 42 U.S.C. § 2000e-2(a). But that bar does not apply to “a religious corporation . . . with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [a corporation] of its activities.” Id. § 2000e-1(a). It is clear that MKC does not qualify as a “religious corporation.” See, e.g., LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 226 (3d Cir. 2007); Spencer v. World Vision, Inc., 633 F.3d 723, 734, 748 (9th Cir. 2010) (explicitly holding that a for-profit entity can never qualify for the Title VII exemption); cf. Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1343 (D.C. Cir. 2002) (holding that an organization can only be religious, and thus exempt from NLRB jurisdiction, if it is organized as a non-profit).
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It would be extraordinary to conclude that MKC is not a “religious corporation” under Title VII (and it clearly is not) and thus cannot discriminate in employment on the basis of religion, 42 U.S.C. § 2000e-1(a), but nonetheless “exercise[s] . . . religion” within the meaning of RFRA, id. § 2000bb-1(b). Such a conclusion would allow a secular corporation to impose its owner’s religious beliefs on its employees in a way that denies those employees the protection of general laws designed to protect their health and well-being. A host of laws and regulations would be subject to attack. Moreover, any secular corporation would have precisely the same right as a religious organization to, for example, require that its employees “observe the [company owner’s] standards in such matters as regular church attendance, tithing, and abstinence from coffee, tea, alcohol, and tobacco.” Corp. of the Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 330 n.4 (1987). These consequences underscore why the Free Exercise Clause, RFRA, and Title VII distinguish between secular and religious organizations, with only the latter receiving special protection.
Supreme Court Free Exercise jurisprudence is not to the contrary, as no case has held that a for-profit corporation may exercise religion. For example, Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972); Thomas v. Review Board, 450 U.S. 707 (1981); and Lee, 455 U.S. 252, all involved individual plaintiffs. Sherbert was an employee discharged for refusing to work on Saturdays; Yoder was a member of the Old Order Amish religion who objected to a compulsory school attendance law; Thomas was a Jehovah’s Witness who objected to fabricating turrets for military tanks; and Lee was also a member of the Old Order Amish who objected to paying social security tax for his employees. None of the plaintiffs was a secular, for-profit corporation. Nor is plaintiff helped by Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009), or EEOC v. Townley Eng’g and Mfg. Co., 859 F.2d 610 (9th Cir.
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1988). Both cases expressly declined to decide whether “a for-profit corporation can assert its
own rights under the Free Exercise Clause.” Stormans, 586 F.3d at 1119; see also Townley, 859
F.2d at 619-20. Instead, they held that the particular plaintiff corporations had standing to raise
the rights of their owners. Stormans, 586 F.3d at 1119-22; Townley, 859 F.2d at 619-20 & n.15.
But this case does not present that standing question, as the Chambers are also plaintiffs here.
See Hobby Lobby, 870 F. Supp. 2d at 1288 n.10. None of the other cases cited by plaintiffs fares
any better. Id. at 1288 (“Plaintiffs have not cited, and the court has not found, any case
concluding that secular, for-profit corporations . . . have a constitutional right to the free exercise
of religion.”).6
6 The court in Commack Self-Serv. Kosher Meats, Inc. v. Hooker, 800 F. Supp. 2d 405 (E.D.N.Y. 2011), held that the challenged law “does not restrict any religious practice” and therefore had no reason to reach the question whether a for-profit organization can exercise religion. Id. at 416. And nothing in the opinion discussed the secular or religious characteristics of the plaintiffs. McClure v. Sports and Health Club, 370 N.W.2d 844 (Minn. 1985), expressly declined to decide whether the corporation could assert a right to free exercise of religion; the court assumed for purposes of the case that the owners and the corporation were “alter ego[s]” and thus considered only the free exercise rights of the owners. Id. at 850-51 & n.12. What relevant language there is in McClure supports defendants, not plaintiffs. See id. at 853 (“Sports and Health, however, is not a religious corporation—it is a Minnesota business corporation engaged in business for profit. By engaging in this secular endeavor, appellants have passed over the line that affords them absolute freedom to exercise religious beliefs . . . . [W]hen appellants entered into the economic arena and began trafficking in the market place, they have subjected themselves to the standards the legislature has prescribed not only for the benefit of prospective and existing employees, but also for the benefit of the citizens of the state as a whole in an effort to eliminate pernicious discrimination.”); see also Maruani v. AER Servs., Inc., No. 06-176, 2006 WL 2666302, at * 6 (D. Minn. Sept. 18, 2006) (“AER is a secular employer under any standard. It is a for profit business, not owned or operated by any church . . . . Accordingly, AER, as a secular employer is not entitled to First Amendment protections for religious institutions”). Jasniowski v. Rushing, 678 N.E.2d 743 (Ill. App. Dist. 1, 1997), vacated, 685 N.E.2d 622 (Ill. 1997), relied on the standing analysis in Townley to allow the plaintiff corporation to assert the Free Exercise rights of its owner in the “limited context” where the owner is the corporation’s “its alter ego.” Id. at 749. The court in Morr-Fitz, Inc. v. Blagojevich, No. 2005-CH-000495, 2011 WL 1338081 (Ill. Cir. Ct. 7th, Apr. 5, 2011), had no need to, and did not, address the question of whether a for-profit corporation can exercise religion, as the owners of the plaintiff corporations were also parties. See id. In Primera Iglesia Bautista Hispana v. Broward Cnty., 450 F.3d 1295 (11th Cir. 2006), the plaintiff was a “religious organization,” id. at 1300
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It is significant that the Chambers elected to organize MKC as a secular, for-profit entity
and to enter commercial activity. “When followers of a particular sect enter into commercial
activity as a matter of choice, the limits they accept on their own conduct as a matter of
conscience and faith are not to be superimposed on the statutory schemes which are binding on
others in that activity.” Lee, 455 U.S. at 261; see also McClure, 370 N.W.2d at 853 (“By
engaging in this secular endeavor, appellants have passed over the line that affords them absolute
freedom to exercise religious beliefs.”). Having chosen this path, the corporation may not impose
its owners’ personal religious beliefs on its employees (many of whom may not share the
owners’ beliefs), by refusing to cover contraception. Lee, 455 U.S. at 261 (“Granting an
exemption from social security taxes to an employer operates to impose the employer’s religious
faith on the employees.”); Hobby Lobby, 870 F. Supp. 2d at 1295-96. In this respect,
“[v]oluntary commercial activity does not receive the same status accorded to directly religious
activity.” Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274, 283 (Alaska 1994) (interpreting the Free Exercise Clause of the Alaska Constitution).7
2. The regulations do not substantially burden the Chambers’ religious exercise because the regulations apply only MKC, a separate and distinct legal entity
The preventive services coverage regulations also do not substantially burden the
(emphasis added), not a secular corporation. See also O Centro, 546 U.S. 418 (plaintiff nonprofit church); Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (same). Finally, there is no indication that the religiously-affiliated hospital in Roberts v. Bradfield, 12 App. D.C. 453 (D.C. Cir. 1898), was a for-profit corporation. And Roberts was decided more than a century ago, and therefore pre-dates the cases cited by defendants confirming that only religious organizations can exercise religion.
7 A for-profit, secular employer like MKC therefore stands in a fundamentally different position from a church or a religiously affiliated non-profit organization. Cf. Amos, 483 U.S. at 344 (Brennan, J., concurring in the judgment) (“The fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation . . . . but that [its] activities themselves are infused with a religious purpose.”); see also Hobby Lobby, 870 F. Supp. 2d at 1288.
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religious exercise of MKC’s owners, the Chambers. By their terms, the regulations apply to group health plans and health insurance issuers. See, e.g., 45 C.F.R. § 147.130. The Chambers are neither. Nonetheless, the Chambers claim that the regulations substantially burden their religious exercise because the regulations require the group health plan sponsored by their forprofit secular company to provide health insurance that includes certain contraceptive coverage. But a plaintiff cannot establish a substantial burden on his religious exercise by invoking this type of trickle-down theory; to constitute a substantial burden within the meaning of RFRA, the burden must be imposed on the plaintiff himself. See Hobby Lobby, 870 F. Supp. 2d at 1293-96; Korte, 2012 WL 6553996, *9-11; see also Grote Indus., 2012 WL 6725905, at *6 (explaining that for a burden to be substantial, it must apply directly to the plaintiff). “To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature.” Braunfeld v. Brown, 366 U.S. 599, 606 (1961). Indeed, “[i]n our modern regulatory state, virtually all legislation (including neutral laws of general applicability) imposes an incidental burden at some level by placing indirect costs on an individual’s activity. Recognizing this . . . [t]he federal government . . . ha[s] identified a substantiality threshold as the tipping point for reqfuiring heightened justifications for governmental action.” Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 262 (3d Cir. 2008) (Scirica, C.J., concurring); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (warning, in the RLUIPA context, that “[a]pplication of the substantial burden provision to a regulation inhibiting or constraining any religious exercise . . . would render meaningless the word ‘substantial’”); Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. App’x 729, 734 (6th Cir. 2007) (“In the ‘Free Exercise’ context, the Supreme
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Court has made clear that the ‘substantial burden’ hurdle is high.”). Here, any burden on the religious exercise of MKC’s owners results from obligations that
the regulations impose on a legally separate, secular corporation’s group health plan. This type of attenuated burden is not cognizable under RFRA. Indeed, cases that find a substantial burden uniformly involve a direct burden on the plaintiff rather than a burden imposed on another entity. See, e.g., Lukumi, 508 U.S. at 524; Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009); Grote Indus., 2012 WL 6725905, at *5-6. Not so here, where the regulations apply to the group health plans sponsored by MKC, but not to its owners. See Hobby Lobby, 870 F. Supp. 2d at 1294; Korte, 2012 WL 6553996, at *9 (“[T]he RFRA ‘substantial burden’ inquiry makes clear that business forms and so-called ‘legal fictions’ cannot be entirely ignored—in this situation, they are dispositive”); Autocam, 2012 WL 6845677, at *7.
The Chambers’ theory boils down to the claim that what’s done to the corporation (or group health plan sponsored by the corporation)8 is also done to its owner. But, as a legal matter, that is simply not so. The Chambers have chosen to enter into commerce and elected to do so by establishing a for-profit corporation—a “creature of statute” that is its “own ‘person’ under Michigan law, [] distinct and separate from [its] owners.” Handley v. Wyandotte Chems. Corp., 325 N.W.2d 447, 449 (Mich. Ct. App. 1982). Indeed, “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). In short, “[t]he corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status.” Id.
8 The attenuation here is in fact twice removed, as a group health plan is a legally separate entity from the company that sponsors it. 29 U.S.C. § 1132(d).
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“Generally, if a harm has been directed toward the corporation, then only the corporation
has standing to assert a claim,” and this “shareholder standing rule applies even if the plaintiff is
the sole shareholder of the corporation.” Potthoff v. Morin, 245 F.3d 710, 716 (8th Cir. 2001)
(citing cases); see also Bartel v. Kemmerer City, 482 F. App’x 323, 326 (10th Cir. 2012)
(unpublished). The Chambers “‘may not move freely between corporate and individual status to
gain the advantages and avoid the disadvantages of the respective forms.’” Potthoff, 245 F.3d at
717 (citation omitted). “So long as the business’s liabilities are not [the Chambers’] liabilities—
which is the primary and ‘invaluable privilege’ conferred by the corporate form, Torco Oil Co. v.
Innovative Thermal Corp., 763 F. Supp. 1445, 1451 (N.D. Ill. 1991) (Posner, J., sitting by
designation)—neither are the business’s expenditures [the Chambers’] own expenditures.”
Grote, 708 F.3d at 858 (Rovner, J., dissenting). The money used to pay for health coverage under
the MKC’s group health plan “belongs to the company, not to” the Chambers. Id. The Chambers
should not be permitted to eliminate the legal separation between corporation and owners only
when it suits them to impose their personal religious beliefs on the corporate entity’s group
health plan or its employees. For this reason, numerous courts have rejected RFRA challenges nearly identical to the Chambers’ claim.9
9 See Gilardi, 2013 WL 781150, at *4-5, *9-10; Briscoe, 2013 WL 755413, at *5-6; Conestoga, 2013 WL 140110, at *14; Autocam, 2012 WL 6845677, at *7; Korte, 2012 WL 6553996, at *9-11; Hobby Lobby, 870 F. Supp. 2d at 1293-96.
On the other hand, the courts to have granted preliminary injunctive relief in cases similar to this one have uniformly ignored or disregarded the legal separation between corporations and their owners. A company and its owners, however, cannot be treated as alter-egos for some purposes and not others; if the corporate veil is pierced, it is pierced for all purposes. See, e.g., Nautilus Ins. Co. v. Reuter, 537 F.3d 733, 738 (7th Cir. 2008); Korte, 2012 WL 6553996, at *11; Autocam, 2012 WL 6845677, at *7 (“Whatever the ultimate limits of this principle may be, at a minimum it means the corporation is not the alter ego of its owners for purposes of religious belief and exercise.”); Conestoga, 2013 WL 140110, at *8 (“It would be entirely inconsistent to allow the [corporation’s owners] to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.”); Grote, 708
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A contrary view would expand RFRA’s scope in an extraordinary way. All corporations act through human agency; but that cannot mean that any legal obligation imposed on a corporation is also the obligation of the owners or that the owners’ and corporation’s rights and responsibilities are coextensive. If that were the rule, any of the millions of shareholders of publicly traded companies could assert RFRA claims on behalf of those companies and thereby impose the owners’ or shareholders’ beliefs on the companies’ employees in a way that deprives those employees of legal rights they would otherwise have, such as by discriminating against the company’s employees on the basis of religion in establishing the terms and conditions of employment notwithstanding the limited religious exemption that Congress established under Title VII. This result would constitute a wholesale evasion of the rule that a company must be a “religious organization” to assert free exercise rights, Hosanna-Tabor, 132 S. Ct. at 706, or a “religious corporation[]” to permissibly discriminate on the basis of religion in employment, 42 U.S.C. § 2000e-1(a).
Stormans and Townley do not suggest otherwise. See Pls.’ Mem. at 12-13, 16. Both ca ses held that the plaintiff corporati ons had standing to raise the righ ts of their owners. But neithe r case had anything to say about whether an alle ged burden on a corporation could also be a substantial burden on its owners. While Stormans discussed whether the challen ged rules were neutral and genera lly applicable, see 586 F.3d at 1130-37, it did no t address the substantial burden prong at all. Similarly, nothing in Townley suggests that a burden on a corporation is also a burden on its owners. Although the court allo wed the com pany to asse rt the rights of its owners, see 859 F.2d at 619-20 & n.15, it did not find that Title VII imposed a substantial burden on the owners’ religious exercise. R ather, Townley acknowledged that the ch allenged statute “to
F.3d at 856 (Rovner, J., dissenting).
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some extent would adv ersely affect [plain tiffs’] religious practices,” and then p roceeded to uphold Title VII on compelling interest grounds. Id. at 620. Nor, as explained already, supra at n.6, do McClure, Jasniowski, or Morr-Fitz support the pro position that a burden on a legally separate corporation is a burden on its owners and directs. In s hort, no case cited by plaintiffs supports their claim that the preventive servi ces coverage regulations im pose a substantial burden on the Chambers.
3. Alternatively, any burden imposed by the regulations is too attenuated to constitute a substantial burden
Although the preventive services coverage regulations do not require MKC or the Chambers to provide contraceptive services directly, plaintiffs’ complaint appears to be that, through MKC’s health plan and the benefits it provides to employees, plaintiffs will facilitate conduct (the use of certain contraceptives) that they find objectionable. But this complaint has no limits. A company provides numerous benefits, including a salary, to its employees and by doing so in some sense facilitates whatever use its employees make of those benefits. But the owners have no right to control the choices of their company’s employees, who may not share their religious beliefs, when making use of their benefits. Those employees have a legitimate interest in access to the preventive services coverage made available under the challenged regulations.
Indeed, in denying the plaintiffs’ motion for emergency relief pending appeal, a motions panel of the Sixth Circuit concluded as much. See Autocam, Order at 2 (relying on the district court’s reasoned opinion in determining that the plaintiffs had not established more than a mere possibility of relief). And other courts, too, have relied on similar reasoning to reject similar plaintiffs’ RFRA claims. See Hobby Lobby, 2012 WL 6930302, at *3; O’Brien, 894 F. Supp. 2d at 1159 (“[RFRA] is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously
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flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.”), appeal pending, No. 12-3357 (8th Cir. Oct. 4, 2012).10

Although “[c]ourts are not arbiters of scriptural interpretation,” Thomas, 450 U.S. at 716, “RFRA

still requires the court to determine whether the burden a law imposes on a plaintiff’s stated

religious belief is ‘substantial.’” Conestoga, 2013 WL 140110, at *12; see also Autocam, 2012

WL 6845677, at *6 (“The Court does not doubt the sincerity of Plaintiff Kennedy’s decision to

draw the line he does, but the Court still has a duty to assess whether the claimed burden—no

matter how sincerely felt—really amounts to a substantial burden on a person’s exercise of

religion.”). For the reasons set forth above, any burden imposed by the challenged regulations is

not substantial within the meaning of RFRA.

B. Even if there were a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests

1. inte

The regulations significantly advance compelling governmental rests in public health and gender equality

Even if plaintiffs were able to demonstrate a substantial burden on their religious

exercise, they would not prevail because the challenged regulations are justified by two

compelling governmental interests, and are the least restrictive means to achieve those interests.

The promotion of public health is unquestionably a compelling governmental interest. Mead v.

Holder, 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also, e.g., Buchwald v. Univ. of N.M. Sch. of

10 See also Eden Foods, Order at 6-10; Conestoga Wood Specialties, Corp. v. Sebelius, No. 13-1144, 2013 WL 1277419, at *2 (3d Cir. Feb. 8, 2013); Grote, 708 F.3d at 856-60 (Rovner, J., dissenting); Conestoga, 2013 WL 140110, at *13-14; Annex Med., Inc. v. Sebelius, No. 12-2804, 2013 WL 101927, at *4-5 (D. Minn. Jan. 8, 2013); Grote Indus., 2012 WL 6725905, at *4-7; Hobby Lobby, 870 F. Supp. 2d at 1293-96.
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Med., 159 F.3d 487, 498 (10th Cir. 1998); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995). And the challenged regulations further this compelling interest.
As explained in the interim final regulations, the primary predicted benefit of the regulations is that “individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010); see also 77 Fed. Reg. at 8728. Indeed, “[b]y expanding coverage and eliminating cost sharing for recommended preventive services, these interim final regulations could be expected to increase access to and utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733. Increased access to FDA-approved contraceptive services is a key part of these predicted health outcomes, as a lack of contraceptive use has proven in many cases to have negative health consequences for both women and a developing fetus. As IOM concluded in identifying services recommended to “prevent conditions harmful to women’s health and well-being,” unintended pregnancy may delay “entry into prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04. Contraceptive coverage also helps to avoid “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103. In fact, “pregnancy may be contraindicated for women with serious medical conditions such as pulmonary hypertension . . . and cyanotic heart disease, and for women with the Marfan Syndrome.” Id. at 103-04.
Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations. As the Supreme Court explained in Roberts v. U.S. Jaycees, 468 U.S. 609, 626 (1984), there is a fundamental “importance, both to the individual and to society, of removing the barriers to economic advancement and political and social integration that have
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historically plagued certain disadvantaged groups, including women.” Thus, “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interests.” Id. By including in the ACA gender-specific preventive health services for women, Congress made clear that the goals and benefits of effective preventive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into account in the ACA. As explained by members of Congress, “women have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009); IOM REP. at 19. These costs result in women often forgoing preventive care. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009); IOM REP. at 20. Accordingly, this disproportionate burden on women creates “financial barriers . . . that prevent women from achieving health and well-being for themselves and their families.” IOM REP. at 20. Thus, Congress intended to equalize health care for women and men in the area of preventive care, including the provision of family planning services for women. See, e.g., 155 Cong. Rec. at S12271; see also 77 Fed. Reg. at 8728. Congress’s attempt to equalize the provision of preventive health care services, with the resulting benefit of women being able to contribute to the same degree as men as healthy and productive members of society, furthers a compelling governmental interest. Cf. Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92-93 (Cal. 2004).11
11 In arguing that the government’s interests are not in fact compelling, plaintiffs refer to MCK specifically, see Pls.’ Mem. at 24, as though the government must separately analyze the impact of and need for the regulations as to each and every employer and employee in America. But this level of specificity would rather obviously lead to an unworkable standard and would render this regulatory scheme—and potentially any regulatory scheme that is challenged due to religious objections—completely unworkable. See Lee, 455 U.S. at 259-60. In practice, courts have not required the government to analyze the impact of a regulation on the single entity
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Plaintiffs miss the point when they attempt to minimize the magnitude of these interests
by arguing that contraception is widely available and even subsidized for certain low-income
individuals. See Pls.’ Mem. at 24. Although a majority of employers cover FDA-approved
contraceptives, see IOM Rep. at 109, many women forgo preventive services, including certain
reproductive health care, because of cost-sharing imposed by their health plans, see id. at 19-20,
109.12 The challenged regulations eliminate that cost-sharing. 77 Fed. Reg. at 8728. And, of
seeking an exemption, but have expanded the inquiry to all similarly situated individuals or organizations. See, e.g., id. at 260 (considering the impact on the tax system if all religious adherents—not just the plaintiff—could opt out); United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (per curiam) (“Oliver has argued a one-man exemption should be made, however, there is nothing so peculiar or special with Oliver’s situation which warrants an exception. There are no safeguards to prevent similarly situated individuals from asserting the same privilege and leading to uncontrolled eagle harvesting.”); Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1398 (4th Cir. 1990) (“There is no principled way of exempting the school without exempting all other sectarian schools and thereby the thousands of lay teachers and staff members on their payrolls.”); see also, e.g., Graham v. Comm’r, 822 F.2d 844, 853 (9th Cir. 1987), overruled in part on other grounds by Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1033 (9th Cir. 2007) (en banc); United States v. Winddancer, 435 F. Supp. 2d 687, 697 (M.D. Tenn. 2006). O Centro is not to the contrary. To be sure, the Court rejected “slippery-slope” arguments for refusing to accommodate a particular claimant. See 546 U.S. at 435-36. But it construed the scope of the requested exemption as encompassing all members of the plaintiff religious sect. See id. at 433. Similarly, the exemption in Yoder, 406 U.S. 205, encompassed all Amish children; and the exemption in Sherbert, 374 U.S. 398, encompassed all individuals who had a religious objection to working on Saturdays. See O Centro, 546 U.S. at 431. The Court’s warning in O Centro against “slippery-slope” arguments was a rejection of arguments by analogy—that is, speculation that providing an exemption to one group will lead to exemptions for other nonsimilarly situated groups. It was not an invitation to ignore the reality that an exemption for a particular claimant might necessarily lead to an exemption for an entire category of similarly situated entities. And according to plaintiffs, any for-profit corporation—even an indisputably secular company—is entitled to restrict its employees’ statutory and regulatory protections to coincide with the owner’s religious views.
12 In general, plaintiffs do not dispute that equalizing the provision of preventive care so as to level the playing field between women and men is a compelling governmental interest or that it is furthered by the regulations. Nor do plaintiffs dispute that improving the health of women and newborn children is a compelling governmental interest. Plaintiffs question only whether the regulations will actually further the government’s public health goals, and they flyspeck the IOM Report to suggest that the regulations will not. See Pls.’ Mem. at 31-34. But the IOM Report and its recommendations are the work of independent experts in the field of
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course, the government’s interest in ensuring access to contraceptive services is particularly compelling for women employed by companies not currently offering such coverage, like MKC. Taking into account the “particular claimant whose sincere exercise of religion is [purportedly] being substantially burdened,” O Centro, 546 U.S. at 430-31, exempting MKC and other similar companies from the obligation of their health plans to cover contraceptive services without costsharing would remove its employees (and their employees’ families) from the very protections that were intended to further the compelling interests recognized by Congress. See, e.g., Graham, 822 F.2d at 853 (“Where, as here, the purpose of granting the benefit is squarely at odds with the creation of an exception, we think the government is entitled to point out that the creation of an exception does violence to the rationale on which the benefit is dispensed in the first instance.”).
Women who work for MKC or similarly situated companies would be, as a whole, less likely to use contraceptive services in light of the financial barriers to obtaining them and would then be at risk of unhealthier outcomes, both for themselves and their newborn children. IOM REP. at 102-03. They also would have unequal access to preventive care and would be at a competitive disadvantage in the workforce due to their inability to decide for themselves if and when to bear children. These harms would befall female employees (and covered spouses and dependents) who do not necessarily share the individual plaintiffs’ religious beliefs. Plaintiffs’ desire not to provide a health plan that permits such individuals to exercise their own choice
public health. After undertaking an extensive science-based review of the available evidence, IOM determined that coverage, without cost-sharing, for the full range of FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity is necessary for women’s health and well-being. The HRSA Guidelines adopting the IOM’s expert, scientific recommendations are entitled to deference. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984); see also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 376-77 (1989) (emphasizing that deference is particularly appropriate when an interpretation implicates scientific and technical judgments within the scope of agency expertise). Plaintiffs’ flyspecking does not overcome that deference.
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must yield to the government’s compelling interest in avoiding the adverse and unfair consequences that such individuals would suffer as a result of the company’s decision to impose the company’s owners’ religious beliefs on them. See Lee, 455 U.S. at 261 (noting that a religious exemption is improper where it “operates to impose the employer’s religious faith on the employees”).
Plaintiffs’ primary argument is that the interests underlying the regulations cannot be considered compelling when millions of people are not protected by the regulations at the moment. Pls.’ Mem. at 24. But this is not a case where underinclusive enforcement of a law suggests that the government’s “supposedly vital interest” is not really compelling. Lukumi, 508 U.S. at 546-47. Many of the “exemptions” referred to by plaintiffs are not exemptions from the preventive services coverage regulations at all, but are instead provisions of the ACA that exclude individuals and entities from other requirements imposed by the ACA. They reflect the government’s attempts to balance the compelling interests underlying the challenged regulations against other significant interests supporting the complex administrative scheme created by the ACA. See Lee, 455 U.S. at 259 (“The Court has long recognized that balance must be struck between the values of the comprehensive social security system, which rests on a complex of actuarial factors, and the consequences of allowing religiously based exemptions.”); Winddancer, 435 F. Supp. 2d at 695-98 (recognizing that the regulations governing access to eagle parts “strike a delicate balance” between competing compelling interest). And, unlike the exemption plaintiffs seek for all employers that object to the regulations on religious grounds, the existing exemptions do not undermine the government’s interests in any significant way. See Lukumi, 508 U.S. at 547; S. Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1208-09 (6th Cir. 1990) (rejecting the plaintiff’s argument that the existence of exemptions
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indicates that a law is the not the least restrictive means of achieving a compelling interest where the exemptions do not undermine that interest).
For example, the grandfathering of certain health plans with respect to certain provisions of the ACA is not specifically limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140. In fact, the effect of grandfathering is not really a permanent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preventive services coverage provision. The grandfathering provision reflects Congress’s attempts to balance competing interests— specifically, the interest in spreading the benefits of the ACA, including those provided by the preventive services coverage provision, and the interest in maintaining existing coverage and easing the transition into the new regulatory regime established by the ACA—in the context of a complex statutory scheme. See 75 Fed. Reg. 34,540, 34,546 (June 17, 2010).
The incremental transition of the marketplace into the ACA administrative scheme does nothing to call into question the compelling interests furthered by the preventive services coverage regulations. Even under the grandfathering provision, it is projected that more group health plans will transition to the requirements under the regulations as time goes on. Defendants estimate that, as a practical matter, a majority of group health plans will lose their grandfather status by 2013. See id. at 34,552. Thus, any purported damage to the compelling interests underlying the regulations will be quickly mitigated, which is in stark contrast to the permanent exemption plaintiffs seek.13 Plaintiffs would have this Court believe that an interest cannot truly be “compelling” unless Congress is willing to impose it on everyone all at once despite
13 The same is true of the temporary enforcement safe harbor for certain non-profit organizations with religious objections to contraceptive coverage.
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competing interests, but plaintiffs offer no support for such an untenable proposition. See Legatus, 2012 WL 5359630, at *9 (“[T]he grandfathering rule seems to be a reasonable plan for instituting an incredibly complex health care law while balancing competing interests.”).
Second, 26 U.S.C. § 4980H(c)(2) does not, as plaintiffs assert, exempt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 76 Fed. Reg. at 46,622 n.1. Instead, it excludes employers with fewer than fifty full-time equivalent employees from the employer responsibility provision, meaning that, starting in 2014, such employers are not subject to assessable payments if they do not provide health coverage to their full-time employees and certain other criteria are met.14 See 26 U.S.C. § 4980H(c)(2). Employees of these small businesses can get health insurance through other ACA provisions, primarily premium tax credits and health insurance exchanges, and the coverage they receive will include all preventive services, including contraception.15 In addition, small businesses that offer non-grandfathered health coverage to their employees are required to provide coverage for recommended preventive services, including contraceptive services, without cost-sharing. And there is reason to believe that many small employers will continue to offer health coverage to their employees, because the
14 In contrast, beginning in 2014, certain large employers face assessable payments if they fail to provide health coverage for their employees under certain circumstances. 26 U.S.C. § 4980H.
15 For this reason, even if there were some connection between the preventive services coverage provision and the employer responsibility provision, excluding small employers from the employer responsibility provision would not undermine the government’s compelling interest in ensuring that employees have access to recommended preventive services. As noted, employees of small employers that do not provide health coverage will be able to obtain health coverage through health insurance exchanges, and, if eligible, receive premium tax credits and cost-sharing reductions to assist them in affording such coverage. See 42 U.S.C. § 18021; id. § 18031(d)(2)(B)(i). Because the preventive services coverage requirement applies to the health plans being offered through the exchanges, the coverage individuals buy there will necessarily cover recommended contraceptive services. Id. § 300gg-13(a).
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ACA, among other things, provides for tax incentives for small businesses to encourage the purchase of health insurance. See id. § 45R.
Third, although 26 U.S.C. § 5000A(d)(2) exempts from the minimum coverage provision of the ACA “member[s] of a recognized religious sect or division thereof” who, on the basis of their religion, are opposed to the concept of health insurance and members of health care sharing ministries, this provision is entirely unrelated to the preventive services coverage regulations. See also id. § 1402(g)(1). The minimum coverage provision will require certain individuals who fail to maintain a minimum level of health insurance to pay a tax penalty beginning in 2014. It provides no exemption from the preventive services coverage regulations, as it only excludes certain individuals from the requirement to obtain health coverage and says nothing about the requirement that non-grandfathered group health plans provide preventive services coverage to their participants. It is also clearly an attempt by Congress to accommodate religion and, unlike the broad exemption sought by plaintiffs, is sufficiently narrow so as not to undermine the larger administrative scheme. See Lee, 455 U.S. at 260-61.
Furthermore, exempting these discrete and “readily identifiable,” id., classes of individuals from the minimum coverage provision is unlikely to appreciably undermine the compelling interests motivating the preventive services coverage regulations. By definition, a woman who is “conscientiously opposed to acceptance of the benefits of any private or public insurance which . . . makes payments toward the cost of, or provides services for, medical care,” 26 U.S.C. § 1402(g)(1), or is a member of a health care sharing ministry described in 26 U.S.C. § 5000A(d)(2)(B)(ii) would not utilize health coverage—including contraceptive coverage— even if it were offered.
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The only true exemption from the preventive services coverage regulations cited by plaintiffs is the exemption for “religious employer[s],” 45 C.F.R. § 147.130(a)(1)(iv)(B). But there is a rational distinction between the narrow exception currently in existence and the expansion plaintiffs seek. A “religious employer” is an employer that, among other things, has the “inculcation of religious values” as its purpose and “primarily employs persons who share the religious tenets of the organization.” Id. Thus, the exception does not undermine the government’s compelling interests. It anticipates that the impact on employees of exempted organizations will be minimal, given that any religious objections of the exempted organizations are presumably shared by most of the individuals actually making the choice of whether to use contraceptive services. See 77 Fed. Reg. at 8728.
The same is not true for MKC, which does not and cannot discriminate based upon religious beliefs in hiring, and therefore almost certainly employs many individuals who do not share the Chambers’ religious beliefs. If courts were to grant plaintiffs’ request to extend the protections of RFRA to any employer whose owners or shareholders object to the regulations, it is difficult to see how the regulations could continue to function or be enforced in a rational manner. See O Centro, 546 U.S. at 435. Providing for voluntary participation among for-profit, secular employers would be “almost a contradiction in terms and difficult, if not impossible, to administer.” Lee, 455 U.S. at 258. We are a “cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U.S. at 606; see also S. Ridge Baptist Church, 911 F.2d at 1211, and many people object to countless medical services. If any organization, no matter the high degree of attenuation between the mission of that organization and the exercise of religious belief, were able to seek an exemption from the operation of the preventive services coverage regulations, it is difficult to see how defendants could administer
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the regulations in a manner that would achieve Congress’s goals of improving the health of women and children and equalizing the coverage of preventive services for women. See United States v. Israel, 317 F.3d 768, 772 (7th Cir. 2003) (recognizing that granting plaintiff’s RFRA claim “would lead to significant administrative problems for the [government] and open the door to a . . . proliferation of claims”). Indeed, women who receive their health coverage through corporations like MKC would face negative health and employment outcomes because they had obtained employment with a company that imposes its owners’ religious beliefs on their health care needs. See id. (noting consequences “for the public and the government”); 77 Fed. Reg. at 8728.
2. The regulations are the least restrictive means of advancing the government’s compelling interests
The preventive services coverage regulations, moreover, are the least restrictive means of furthering the government’s interests. When determining whether a particular regulatory scheme is “least restrictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme—or whether the scheme can otherwise be modified—without undermining the government’s compelling interest. See, e.g., United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987) (describing the least restrictive means test as “the extent to which accommodation of defendant would impede the state’s objectives”); United States v. Wilgus, 638 F.3d 1274, 1289-95 (10th Cir. 2011). The government is not required “to do the impossible—refute each and every conceivable alternative regulation scheme.” Id. 1289. Instead, the government need only “refute the alternative schemes offered by the challenger.” Id.
Instead of explaining how MKC and similarly situated secular companies could be exempted from the regulations without significant damage to the government’s compelling
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interests, plaintiffs conjure up several new statutory and regulatory schemes—most of which would require the government to pay for contraceptive coverage—that they claim would be less restrictive. See Pls.’ Mem. at 34-35. Rather than suggesting modifications to the current employer-based system that Congress enacted, see generally H.R. Rep. No. 111-443, pt. II, at 984-86 (2010), plaintiffs would have the system turned upside-down to accommodate the Chambers’ beliefs at enormous administrative and financial cost to the government. But just because plaintiffs can devise an entirely new legislative and administrative scheme does not make that scheme a feasible less restrictive means. See Wilgus, 638 F.3d at 1289; Adams v. Comm’r of Internal Revenue, 170 F.3d 173, 180 n.8 (3d Cir. 1999) (“A judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legislation down.’” (quotations omitted)).
In effect, plaintiffs want the government “to subsidize private religious practices,” Catholic Charities of Sacramento, 85 P.3d at 94, by expending significant resources to adopt an entirely new legislative or administrative scheme. But a proposed alternative scheme is not an adequate alternative—and thus not a viable less restrictive means to achieve the compelling interest—if it is not feasible or plausible. See, e.g., New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940, 947 (1st Cir. 1989) (Breyer, J.); Graham, 822 F.2d at 852. In determining whether a proposed alternative scheme is feasible, courts often consider the additional administrative and fiscal costs of the scheme. See, e.g., e.g., S. Ridge Baptist Church, 911 F.2d at 1206; Fegans v. Norris, 537 F.3d 897, 905-06 (8th Cir. 2008); United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011); New Life Baptist, 885 F.2d at 947. Plaintiffs’ alternatives would impose considerable new costs and other burdens on the government and
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would otherwise be impractical. See, e.g., Lafley, 656 F.3d at 942; Gooden v. Crain, 353 F. App’x 885, 888 (5th Cir. 2009); Adams, 170 F.3d at 180 n.8.16
Nor would the proposed alternatives be equally effective in advancing the government’s compelling interests. See, e.g., Kaemmerling v. Lappin, 553 F.3d 669, 684 (D.C. Cir. 2008) (finding that means was least restrictive where no alternative means would achieve compelling interests); Murphy v. State of Ark., 852 F.2d 1039, 1042-43 (8th Cir. 1988) (same). As discussed above, Congress determined that the best way to achieve the goals of the ACA, including expanding preventive services coverage, was to utilize the existing employer-based system. The anticipated benefits of the preventive services coverage regulations are attributable not only to the fact that recommended contraceptive services will be available to women with no cost sharing, but also to the fact that these services will be available through the existing employerbased system of health coverage through which women will face minimal logistical and administrative obstacles to receiving coverage of their care. Plaintiffs’ alternatives, by contrast, have none of these advantages. They would require establishing entirely new government programs and infrastructures or fundamentally altering an existing one, and would almost certainly require women to take steps to find out about the availability of and sign up for the new benefit, thereby ensuring that fewer women would take advantage of it. Nor do plaintiffs offer any suggestion as to how these programs could be integrated with the employer-based system or how women would obtain government-provided preventive services in practice. Thus, plaintiffs’ proposals—in addition to raising myriad administrative and logistical difficulties and being
16 The costs and administrative burdens that plaintiffs’ alternative schemes would impose on the government are not the only reason that they are infeasible. The ACA requires that recommended preventive services be covered without cost-sharing through the existing employer-based system. See H.R. Rep. No. 111-443, pt. II, at 984-86. Thus, even if defendants wanted to adopt one of plaintiffs’ non-employer-based alternatives, they would be constrained by the statute from doing so.
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unauthorized by statute and not funded by appropriation—are less likely to achieve the compelling interests furthered by the regulations, and therefore do not represent reasonable less restrictive means. II. PLAINTIFFS’ FIRST AMENDMENT CLAIMS LACK MERIT, AND SHOULD
ALL BE DISMISSED A. The Regulations Do Not Violate the Free Exercise Clause Plaintiffs’ Free Exercise claim fails at the outset because, as explained above, for-profit, secular employers like MKC do not engage in any exercise of religion protected by the First Amendment. But even if it did, the preventive services coverage regulations do not violate the Free Exercise Clause because—as numerous courts have held—the regulations are neutral laws of general applicability. See, e.g., Autocam, 2012 WL 6845677 at *5. A neutral and generally applicable law does not violate the Free Exercise Clause even if it prescribes conduct that an individual’s religion proscribes or has the incidental effect of burdening a particular religious practice. Smith, 494 U.S. at 879; see also Lukumi, 508 U.S. 520. The challenged regulations are neutral and generally applicable because they “do[] not target a particular religion or religious practice or have as [their] objective the interference with a particular religion or religious practice.” Autocam, 2012 WL 6845677 at *5. Rather, the regulations “appl[y] to all non-exempt, non-grandfathered plans,” and, to the extent the regulations burden on plaintiffs’ religious exercise, they do so only “incidentally.” Id. The Complaint suggests the regulations are not neutral and generally applicable because the regulations contain exemptions and because some groups qualify for those exemptions and others do not. Compl. ¶ 41. But as numerous courts—including this one—have recognized, the existence of categorical exemptions “does not mean that the law does not apply generally.” Autocam, 2012 WL 6845677 at *5 (citing Lee, 455 U.S. at 261); see Axson-Flynn v. Johnson,
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356 F.3d 1277, 1298 (10th Cir. 2004); Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 651 (10th Cir. 2006); Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957, 961 (9th Cir. 1991); see also Eden Foods, Order at 11-12. And indeed, the regulations and the exemptions are categorical and are neutral with respect to religion. To warrant strict scrutiny, a system of exemptions must be so individualized so as to enable the government to engage in subjective, case-by-case inquiries, and the government must utilize that system to grant exemptions only for secular reasons and not for religious reasons. Smith, 494 U.S. at 884. Plaintiffs point to no such system with respect to the challenged regulations, and there is none. Rather, the regulations “appl[y] to all nongrandfathered, non-exempt plans, regardless of employers’ religious persuasions, and this is enough to create a neutral law of general application.” Autocam, 2012 WL 6845677 at *5.
Virtually every court to consider similar claims has agreed with this conclusion. See Eden Foods, Order at 11-12; Conestoga, Order at 3; O’Brien., 894 F. Supp. 2d at 1157-61; Conestoga, 2013 WL 140110, at *6-9, *18; Briscoe, Order at 14; Grote Indus., 2012 WL 6725905, *7-8; Hobby Lobby, 870 F. Supp. 2d at 1287-91; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006); Catholic Charities of Sacramento, 85 P.3d at 81-87.
Because the regulations are neutral and generally applicable, they do not run afoul of the Free Exercise Clause.17
B. The Regulations Do Not Violate the Establishment Clause Plaintiffs’ Establishment Clause claim has been rejected by every court to consider it,18 and this Court should do the same. “The clearest command of the Establishment Clause is that 17 Even if the regulations were subject to strict scrutiny, plaintiffs’ Free Exercise challenge would still fail. As explained above, see supra at 22-35, the regulations satisfy strict scrutiny.
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one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982) (emphasis added). A law that discriminates among religions by “aid[ing] one religion” or “prefer[ing] one religion over another” is subject to strict scrutiny. Id. at 246. Thus, for example, the Supreme Court has struck down on Establishment Clause grounds a state statute that was “drafted with the explicit intention” of requiring “particular religious denominations” to comply with registration and reporting requirements while excluding other religious denominations. Id. at 254; see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 703-07 (1994) (striking down statute that “single[d] out a particular religious sect for special treatment”). The Court, on the other hand, has upheld a statute that provided an exemption from military service for persons who had a conscientious objection to all wars, but not those who objected to only a particular war. Gillette v. United States, 401 U.S. 437 (1971). The Court explained that the statute did not discriminate among religions because “no particular sectarian affiliation” was required to qualify for conscientious objector status. Id. at 450-51. “[C]onscientious objector status was available on an equal basis to both the Quaker and the Roman Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson, 544 U.S. 709, 724 (2005).
Like the statute at issue in Gillette, the preventive services coverage regulations do not grant any denominational preference or otherwise discriminate among religions. It is of no moment that the religious employer exemption applies to some religious employers but not others. See Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995); Diocese of Albany, 859 N.E.2d at 468-69 (“this kind of distinction—not between denominations, but between religious
18 See Conestoga, 2013 WL 1277419, at *2; Briscoe, 2013 WL 755413, at *7-8; Conestoga, 2013 WL 140110, at *15; Grote Indus., 2012 WL 6725905, at *8-9; O’Brien, 894 F. Supp. 2d at 1162; see also Diocese of Albany, 859 N.E.2d at 468-69; Catholic Charities of Sacramento, 85 P.3d at 83-87.
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organizations based on the nature of their activities—is not what Larson condemns”). The relevant inquiry is whether the distinction drawn by the regulations between exempt and nonexempt entities is based on religious affiliation. Here, it is not.
The regulations’ definition of “religious employer” does not refer to any particular denomination. The criteria for the exemption focus on the purpose and composition of the organization, not on its sectarian affiliation. The exemption is available on an equal basis to organizations affiliated with any and all religions. The regulations, therefore, do not promote some religions over others. Indeed, the Supreme Court upheld a similar statutory exemption for houses of worship in Walz v. Tax Commission of New York, 397 U.S. 664, 672-73 (1970). The same result should obtain here. Nothing in the Establishment Clause, or the cases interpreting it, requires the government to create an exemption for for-profit, secular companies whenever it creates an exemption for religious organizations. See, e.g., Amos, 483 U.S. at 334. Thus, plaintiffs’ Establishment Clause claim fails.19
C. The Regulations Do Not Violate the Free Speech Clause or the Right to Expressive Association
Plaintiffs’ free speech claim fares no better, as every court to address this claim has rejected it.20 The right to freedom of speech “prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). But the preventive services coverage regulations do not require plaintiff—or any
19 Even if the regulations discriminate among religions (and they do not), they are valid under the Establishment Clause because they satisfy strict scrutiny. See supra at 22-35; Larson, 456 U.S. at 251-52.
20 See Conestoga, 2013 WL 1277419, at *2; Briscoe, 2013 WL 755413, at *8; Conestoga, 2013 WL 140110, at *16-17; Grote Indus., 2012 WL 6725905, at *9-10; Autocam, 2012 WL 6845677, at *8; O’Brien, 894 F. Supp. 2d at 1160-66; see also Catholic Charities of Sacramento, 85 P.3d at 89; Diocese of Albany, 859 N.E.2d at 464-65
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other person, employer, or entity—to say anything. Nor do the regulations limit what plaintiff may say. Indeed, plaintiff may encourage MKC’s employees not to use contraceptive services. The preventive services regulations regulate only conduct, not speech. See FAIR, 547 U.S. at 6062 (concluding that statute that required law schools to provide military recruiters with equal access to campus and students regulated conduct, not speech).
Plaintiffs appear to concede that they are not required to speak. Rather, they claim only that because they must cover “education and counseling,” they are made to pay for speech with which they disagree. Pls.’ Mem. at 44. But any assertion that this counseling will be in favor of services to which plaintiff objects is an invention. Conversations that may take place between a patient and her doctor or counselor cannot be known or screened in advance and may cover any number of approaches to women’s health. And the very occurrence of such a conversation is due to a choice of the insured, not her employer. Accepting plaintiffs’ theory would mean that the First Amendment is violated by the mere possibility of an employer’s disagreement with a potential subject of discussion between an employee and her doctor. Far from supporting that position, the cases plaintiffs cite involve the compelled funding of a particular message, see, e.g., United States v. United Foods, Inc., 533 U.S. 405, 411 (2001), not the funding of an employee’s ability to seek out whatever message she sees fit. O’Brien, 894 F. Supp. 2d at 1166; Grote Indus., 2012 WL 6725905, at *9-10.
Similarly, the conduct required by the preventive services coverage regulations is not “inherently expressive,” such that it is entitled to First Amendment protection. FAIR, 547 U.S. at 66. An employer that provides a health plan that covers contraceptive services, along with numerous other medical items and services, because it is required by law to do so is not engaged in the sort of conduct the Supreme Court has recognized as inherently expressive. Compare id. at
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65-66 (making space for military recruiters on campus is not conduct that indicates colleges’
support for, or sponsorship of, recruiters’ message), with Hurley v. Irish-Am. Gay, Lesbian &
Bisexual Grp. of Bos., 515 U.S. 557, 568-70 (1995) (openly gay, lesbian, and bisexual group
marching in parade is expressive conduct), and W. Va. State Bd. of Educ. v. Barnette, 319 U.S.
624 (1943) (not saluting American flag is expressive conduct). Because the regulations do not
compel any speech or expressive conduct, they do not violate the Free Speech Clause. For these reasons, all of plaintiffs’ First Amendment claims fail.21
III. PLAINTIFFS’ ADMINISTRATIVE PROCEDURE ACT CLAIMS ARE MERITLESS, AND SHOULD BE DISMISSED
A. Issuance of the Regulations Was Procedurally Proper
Plaintiffs’ claim that defendants failed to follow the procedures required by the APA in
issuing the preventive s ervices coverage regulations, Compl. ¶¶ 170-76; Pl s.’ Mem. at 45-46, is
baseless. See Grote Indus., 2012 WL 6725905, *11 (rejecting identic al APA claim). The APA’s
rulemaking provisions generally require that agencies provide notice of a proposed rule, invite
and consider public comme nts, and adopt a final rule that includes a statement of basis an d
21 Indeed, the highest courts of two states have rejected First Amendment claims like those raised by plaintiffs here in cases challenging similar provisions of state law. Under both California and New York law, group health insurance coverage that includes coverage for prescription drugs must also provide coverage for prescription contraceptives. Diocese of Albany, 859 N.E.2d at 461; Catholic Charities of Sacramento, 85 P.3d at 74 n.3. Both states’ laws contain an exemption for religious employers’ health insurance coverage that is similar to the exemption contained in the preventive services coverage regulations. Catholic Charities of Diocese of Albany, 859 N.E.2d at 462; Catholic Charities of Sacramento, 85 P.3d at 74 n.3. The highest courts in both states held that the laws do not violate the Free Exercise Clause because they are neutral laws of general applicability. Diocese of Albany, 859 N.E.2d at 468-69; Catholic Charities of Sacramento, 85 P.3d at 81-87. The courts rejected the Establishment Clause challenge because the exemptions for religious employers’ health insurance coverage do not discriminate among religious denominations or sects. Diocese of Albany, 859 N.E.2d at 468-69; Catholic Charities of Sacramento, 85 P.3d at 83-87. And they upheld the laws under the Free Speech Clause because “a law regulating health care benefits is not speech.” Catholic Charities of Sacramento, 85 P.3d at 89; see also Diocese of Albany, 859 N.E.2d at 465.
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purpose. See 5 U.S.C. § 553(b), (c). Defendants complied with these requirements On August 3, 2011, Defendants issued an amendment to the interim final regulations
authorizing 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. That amendment was issued pursuant to express statutory authority granting defendants discretion to promulgate regulations relating to health coverage on an interim final basis.22 Id. at 46,624. Defendants requested comments for a period of 60 days on the amendment to the regulations and specifically on the definition of “religious employer” contained in the exemption authorized by the amendment. Id. at 46,621. After receiving and carefully considering thousands of comments, defendants adopted the definition of “religious employer” contained in the amended interim final regulations, and created a temporary enforcement safe harbor period during which time defendants would consider additional amendments to the regulations to further accommodate religious organizations’ religious objections to providing contraception coverage. 77 Fed. Reg. at 8,72627. Because defendants provided notice and an opportunity to comment on the amendment to the interim final regulations, they satisfied the APA’s procedural requirements.
B. The Regulations Are Neither Arbitrary Nor Capricious Plaintiff also contends that defendants acted arbitrarily and capriciously by failing to exempt MKC and other similar organizations from the scope of the preventive services coverage regulations. Compl. ¶ 189. But plaintiffs’ contention is belied by defendants’ careful consideration of the scope of the religious employer exemption, which is intended to “reasonably
22 Defendants also made a determination, in the alternative, that issuance of the regulations in interim final form was in the public interest, and, thus, defendants had “good cause” to dispense with the APA’s notice-and-comment requirements. 76 Fed. Reg. at 46,624.
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balance the extension of any coverage of contraceptive services . . . to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.” 76 Fed. Reg. at 46,623. An identical APA claim was accordingly rejected in O’Brien. See 894 F. Supp. 2d at 1167.
In response to comments on the amended interim final regulations, defendants “carefully considered whether to eliminate the religious employer exemption or to adopt an alternative definition of religious employer, including whether the exemption should be extended to a broader set of religiously-affiliated sponsors of group health plans and group insurance coverage.” 77 Fed. Reg. at 8727. Ultimately, defendants chose not to expand the exemption, as a broader exemption “would lead to more employees having to pay out of pocket for contraceptive services, thus making it less likely that they would use contraceptives, which would undermine the benefits described above.” Id. at 8728. Defendants also explained that including a broader class of employers within the scope of the exemption “would subject their employees to the religious views of the employer, limiting access to contraceptives, and thereby inhibiting the use of contraceptive services and the benefits of preventive care.” Id. Although plaintiff may take issue with defendants’ purported omission of a discussion about for-profit corporate employers per se, plaintiff cannot dispute that defendants’ conclusions in the final rules as applied to religiously-affiliated organizations could only apply with greater force to for-profit, secular corporations like MKC. See Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (indicating that, under the arbitrary and capricious standard, agency action must be upheld, so long as “the agency’s path may reasonably be discerned” (quotations omitted)); Heartwood, Inc. v. U.S. Forest Serv., 230 F.3d 947, 953 (7th Cir. 2000) (under APA, reviewing court “may not substitute [its] judgment for that of the agency”); O’Brien, 894 F.
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Supp. 2d at 1167. Defendants’ consideration of the relevant concerns shows that they acted neither arbitrarily nor capriciously.
C. The Regulations Do Not Violate Federal Restrictions Relating to Abortion Plaintiff also contends that the preventive services coverage regulations violate the APA because they conflict with two federal prohibitions relating to abortions: (1) § 1303(b)(1) of the ACA, and (2) the Weldon Amendment to the Consolidated Appropriations Act of 2012. Compl. ¶¶ 177-78, 182-85. Section 1303(b)(1)(A) of the ACA provides that “nothing in this title . . . shall be construed to require a qualified health plan to provide” abortion services. 42 U.S.C. § 18023(b)(1)(A)(i). The Weldon Amendment denies funds made available in the Consolidated Appropriations Act of 2012 to any federal, state, or local agency, program, or government that “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.” Pub. L. No. 112-74, § 506(d)(1), 125 Stat. 786, 1111 (2012). Plaintiff appears to reason that, because the preventive services regulations require group health plans to cover emergency contraception, such as Plan B, they in effect require plaintiff to provide coverage for abortions in violation of federal law. Plaintiffs’ claim that the regulations conflict with § 1303(b)(1) of the ACA should be dismissed at the outset because plaintiff lacks prudential standing to assert it. The doctrine of prudential standing requires that a plaintiff’s claim fall within “the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). But the necessary link between plaintiff and § 1303(b)(1)—which protects health insurance issuers that offer qualified health plans, 42 U.S.C. § 18023(b)(1)—is missing here, as plaintiff does not allege that it is either a
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health insurance issuer or the purchaser of a qualified health plan. Nor could it reasonably do so. Because § 1303(b)(1) is inapplicable to the health plan that MKC offers to its employees, the Court should dismiss this claim for lack of prudential standing. See Dialysis Ctrs., Ltd. v. Schweiker, 657 F.2d 135, 138 (7th Cir. 1981); O’Brien, 894 F. Supp. 2d at 1167 (holding that similar plaintiff lacked prudential standing to raise identical claim).
Even if the Court were to reach the merits of plaintiffs’ claims that the regulations violate § 1303(b)(1) and the Weldon Amendment, the Court should nevertheless dismiss those claims because they are based on a misunderstanding of the scope of these laws as they relate to emergency contraceptives. The preventive services coverage regulations do not, in contravention of federal law, mandate that any health plan cover abortion as a preventive service or that it cover abortion at all. Rather, they require that non-grandfathered group health plans cover all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider. See HRSA Guidelines, supra. In fact, the government has made clear that these regulations “do not include abortifacient drugs.” HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.healthcare.gov/news/factsheets/2011/08/ womensprevention08012011a.html (last visited May 22, 2012); see also IOM REP. at 22 (recognizing that abortion services are outside the scope of permissible recommendations).
In recommending what contraceptive services should be covered by health plans without cost-sharing, the IOM Report identified those contraceptives that have been approved by the FDA as safe and effective. See IOM REP. at 10. And the list of FDA-approved contraceptives includes emergency contraceptives such as Plan B. See FDA, Birth Control Guide, supra. The basis for the inclusion of such drugs as safe and effective means of contraception dates back to
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1997, when the FDA first explained why Plan B, and similar drugs, act as contraceptives rather than abortifacients:
Emergency contraceptive pills are not effective if the woman is pregnant; they act by delaying or inhibiting ovulation, and/or altering tubal transport of sperm and/or ova (thereby inhibiting fertilization), and/or altering the endometrium (thereby inhibiting implantation). Studies of combined oral contraceptives inadvertently taken early in pregnancy have not shown that the drugs have an adverse effect on the fetus, and warnings concerning such effects were removed from labeling several years ago. There is, therefore, no evidence that these drugs, taken in smaller total doses for a short period of time for emergency contraception, will have an adverse effect on an established pregnancy. Prescription Drug Products; Certain Combined Oral Contraceptives for Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997). In light of this conclusion by the FDA, HHS over 15 years ago informed Title X grantees, which are required to offer a range of acceptable and effective family planning methods and may not offer abortion, that they “should consider the availability of emergency contraception the same as any other method which has been established as safe and effective.” Office of Population Affairs, Memorandum (Apr. 23, 1997), http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited May 22, 2012); see also 42 U.S.C. §§ 300, 300a-6. Thus, although plaintiff might seek to re-litigate this issue in the present context, the preventive services coverage regulations simply adopted a settled understanding of FDAapproved emergency contraceptives that is in accordance with existing federal laws prohibiting federal funding for certain abortions. Such an approach cannot be deemed arbitrary or capricious or contrary to law when it is consistent with over a decade of regulatory policy and practice. See Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807, 815 (D.C. Cir. 2011) (giving particular deference to an agency’s longstanding interpretation) (citing Barnhart v. Walton, 535 U.S. 212, 220 (2002)).
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2:13-cv-11379-DPH-MJH Doc # 37 Filed 06/06/13 Pg 60 of 62 Pg ID 737
The conclusion that the term “abortion” in these federal laws was not intended to cover contraceptives, including emergency contraceptives, is reinforced by the legislative history of the Weldon Amendment. The Amendment was initially passed by the House of Representatives as part of the Abortion Non-Discrimination Act of 2002, and was later incorporated as a “rider” to the Consolidated Appropriations Act of 2005, Pub. L. No. 108-447, 118 Stat. 2809 (2005), and subsequent years. See Cal. ex rel. Lockyer v. United States, 450 F.3d 436, 439 (9th Cir. 2006). During the floor debate on the House vote, Representative David Weldon, after whom the Amendment is named, went out of his way to clarify that the definition of “abortion” is a narrow one. Weldon remarked:
There have been people who have come to this floor today and tried to assert that the language in this bill would bar the provision of contraception services in many institutions that are already providing it. Please show me in the statute where you find that interpretation. I think it could be described as a tremendous misinterpretation or a tremendous stretch of the imagination. The provision of contraceptive services has never been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as the morning-after pill. Now, some religious groups may interpret that as abortion, but we make no reference in this statute to religious groups or their definitions; and under the current FDA policy that is considered contraception, and it is not affected at all by this statute. 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002). That Representative Weldon himself did not consider “abortion” to include FDA-approved emergency contraceptives leaves little doubt that the Weldon Amendment was not intended to apply to those items. See Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564 (1976) (indicating that a statement of one of the legislation’s sponsors deserves to be accorded substantial weight in interpreting a statute). For these reasons, plaintiffs’ APA claims should be dismissed.
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CONCLUSION

For the foregoing reasons, defendants respectfully ask that the Court dismiss this case in

its entirety.

Respectfully submitted this 6th day of June, 2013,

Acting

STUART F. DELERY Assistant Attorney General

IAN Deputy

HEATH GERSHENGORN Assistant Attorney General

BARBARA L. MCQUADE United States Attorney

JENNIFER RICKETTS Director

SHEILA Deputy

M. LIEBER Director

U.S. Civil 20 Washington, Tel: Em

/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS Trial Attorney
Department of Justice Division, Federal Programs Branch Massachusetts Avenue N.W.
D.C. 20001 (202) 514-3367; Fax: (202) 616-8470 ail: bradley.p.humphreys@usdoj.gov VA Bar. No. 83212

Attorneys for Defendants

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2:13-cv-11379-DPH-MJH Doc # 37 Filed 06/06/13 Pg 62 of 62 Pg ID 739

CERTIFICATE OF SERVICE I certify that, on June 6, 2013, I electronically filed the foregoing paper with the Clerk of Court using the ECF system, which will send notification of such filing to the following:

THE TROY LAW FIRM DANIEL E. CHAPMAN KIMBERLY A. COCHRANE 888 W. Big Beaver Road, Ste 1400 Troy, MI 48084 (248) 244-9100 dchapman@troylawfirm.com kcochrane@troylawfirm.com (248) 244-9100
U.S. Civil 20 Washington, Tel: Em

/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS Trial Attorney
Department of Justice Division, Federal Programs Branch Massachusetts Avenue N.W.
D.C. 20001 (202) 514-3367; Fax: (202) 616-8470 ail: bradley.p.humphreys@usdoj.gov VA Bar. No. 83212

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MK CHAMBERS COMPANY, GERALD D. CHAMBERS and ROBERT W. CHAMBERS,
Plaintiffs,
v.

Civil Action No. 13-11379 Honorable Denise Page Hood

DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEPARTMENT OF LABOR, DEPARTMENT OF TREASURY, SECRETARY OF HEALTH AND HUMAN SERVICES, SECRETARY OF DEPARTMENT OF LABOR and SECRETARY OF DEPARTMENT OF TREASURY,

Defendants. ___________________________________________/

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION and
ORDER GRANTING MOTIONS TO FILE AMICUS CURIAE BRIEFS

I. BACKGROUND This matter is before the Court on Plaintiffs’ Motion for Preliminary Injunction filed April
26, 2013. Plaintiffs did not cite the rule they are proceeding under, but Rule 65(a) of the Rules of Civil Procedure governs motions for preliminary injunction. Defendants filed a response, combined with a Motion to Dismiss, which the Court considers separately. The E.D. Mich. CM/ECF r ules provide that “a response or reply to a m otion must not be com bined with a counter-m otion.” CM/ECF Pol. & Proc. R5(e). A reply was filed to the response and a hearing held on the matter.
Plaintiffs M.K. Chambers Company (“MKC”), Gerald D. Chambers (“GDC”) and Robert W. Chambers (“RWC”) filed an action on March 28, 2013 against Defendants Kathleen Sebelius,

Secretary of the United States Department of Health and Human Services; United States Department of Health and Hum an Services (“HHS”); Seth Harris, Acting Secre tary of the United States Department of Labor (“DOL”); United States Department of Labor; Jacob J. Lew, Secretary of the United States Departm ent of the Treasury; a nd United States Departm ent of the Treasury (“Treasury”). Plaintiffs allege the f ollowing claims: Violation of the First Am endment to the United States Constitution Establishment Clause (Count I); Violation of the First Amendment to the United States Constitution Freedom of Speech (Count II); Violation of the First Amendment to the United States Constitution Expressive Association (Count III); Violation of the First Amendment to the United States Constitution Free ExerciesClause and Freedom of Speech (Count IV); Violation of the First Amendment to the United States Constitution Free Exercise Clause (Count V); Violation of the Religious Freedom Restoration Act (“RFRA”) (Count V); and, Violation of the Administrative Procedure Act (Count VI).
Plaintiffs bring this action to challenge Defendants’ promulgation and implementation of certain regulations adopted under the Patient Protection and Affordable Care Act (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the Health Care and Education Reconciliation Act (Pub. L. 111152, March 30, 2010, 124 Stat. 1029) (collectively, the “Affordable Care Act”). (Comp., ¶ 1) One of the provisions of the Affordable Care Act mandates that health plans provide certain coverage with respect to women, such as additional preventive care and screenings and directs the Secretary of HHS to determine what would constitute “preventive care” under 42 U.S.C. § 300gg-13(a)(4). (Comp., ¶ 2) Without notice of rulemaking or opportunity for public comment, HHS, DOL and the Treasury, adopted the Institute of Medicine (“IOM”) recommendations in full and promulgated an interim final rule (“Mandate”) which requires all group health plans and health insurance insurers
2

offering group or individual health insurance c overage provide all FDA-approve d contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011) ; 45 C.F.R. § 147.130. (Comp., ¶ 3) The Mandate requires all insurance crariers to provide, not only contraception, but also certain drugs and devices such as the “morning-after pill,” Plan B,” and “ella” which come within the Mandates’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods,” despite their known abortifacient mechanisms of action. (Comp., ¶ 5)
Plaintiffs assert that the Mandate forces em ployers and individuals, such as Plaintiffs, to violate their religious beliefs because it requires employers and individuals to pay forinsurance from insurance issuers which fund and directly provideofr drugs, devices, and services which violate their deeply held religious beliefs regarding contraception and abortion. (Comp., ¶ 6) Plaintiffs seek to enjoin Defendants from further im plementing and enforcing pr ovisions of the regulations, specifically the Mandate, asserting that the Mandate violates Plaintiffs’ rights to the free exercise of religion and the freedom of speech under the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act. (Comp., ¶ 9) Plaintiffs seek a Declaratory Judgment that the regulations, specifically the Mandate, violate Plaintiffs’ rights to the free exercise of religion and the freedom of speech under the First Am endment, the Re ligious Freedom Restoration Act, and the Administrative Procedures Act. (Comp., ¶ 10)
GDC is the President ofMKC and its 50% shareholder; RWC is the Vice President of MKC and its other 50% shareholder. (Com p., ¶ 19) GDC and RW C are Christians and faith-driven individuals who are responsible for setting all pol icies that govern the conduct and all phases of business of MKC. (Comp., ¶ 19) MKC has a workforce of over 120 full-time employees. (Comp.,
3

¶ 57) For decades, GDC and RWC, via MKC, formulated MKC’s health insurance policy with Blue Cross/Blue Shield of Michigan, which sp ecifically excluded contraception, abortion, drugs commonly referred to as “life style drugs,” andotherwise exempted MKC from paying, contributing, or supporting contraception and abortion for others, or for “life style drugs.” (Com p., ¶ 20) Plaintiffs ensured that their insurance policy contained these exclusions because they adhere to the Catholic Church’s teachi ngs regarding im morality of artificial m eans of contraception and sterilization, and they believe, among other things, that actions intended to terminate an innocent human life by abortion are gravely sinful. (Comp., ¶ 21) GDC and RWC have always managed and operated MKC in a way that reflects the teachings, m ission, and values of their Christian faith. (Comp., ¶ 24) Plaintiffs also support financially and otherwise, Catholic fundraisers and other events. (Comp., ¶ 24) They have refused to provide financial support or otherwise, for events or entities that do not reflect the teachings, m ission, and values of thei r Catholic faith, including requiring that their facilities remain closed and otherwise not servicing any of their customers on Sundays, eliminating any organization from a supplier list that knowingly supports, endorses, or contributes to organizations that actively participate in killing people, such as Planned Parenthood. (Comp., ¶ 24)
The Mandate not only forces Plaintiffs to finance, support and endorse contraception, abortion, and related education and counseling as health care, but also subverts the expression of Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans. (Comp., ¶ 40) Plaintiffs claim that Defendants’ refusal to accommodate the conscience of Plaintiffs, and of other Americans who share Plaintiffs’ religious views, is highly seelctive. (Comp., ¶ 47) Numerous exemptions exist in the ACA, which appear arbitrary and were granted to employers who purchase group insurance
4

which evidences that Defendants do not mandate that all insurance plans need to cover preventive services. (Comp., ¶ 47)
Plaintiffs do not qualify for the “religious em ployer” exemption contained in 45 C.F.R. § 147.130(a)(1)(A) and (B). (Com p., ¶ 66) Since Plaintiffs do not qualif y for the “religious employer” exemption, they are not permitted to take advantage of the “temporary safe-harbor” set forth at 77 Fed. Register 8725 (Feb. 15, 2012). (Com p., ¶ 67) On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exemption, but that Defendant HHS has not released any official rule implementing either the one-year extension or the additional forced-speech requirement that applies to Plain tiffs. (Comp., ¶ 132) Plaintiffs assert they have complied with the Mandate, despite the f act that Plaintiffs are violating the teachings of their religious beliefs. (Comp., ¶ 132)
Motions for Leave to File Amicus Curiae Brief were filed by the American Civil Liberties Union and Am erican Civil Liberties Union Fund of Michigan (collectively, “ACLU”) and the Attorney General for the State of Michigan. To date, no opposition has been filed to the motions, other than the footnote noted in Plaintiffs’ re ply brief, “[f]iled Amicus Curiae Brief s that misrepresent social science data are not neutral or objective an represent m isguided advocacy.” (Reply Br., n. 1) II. ANALYSIS
A. Preliminary Injunction Standard “The court may issue a preliminary injunction only on notice to the adverse party.” Fed. R. Civ. P. 65(a)(1). Four factors m ust be balan ced and considered before the Court m ay issue a preliminary injunction under Rule 65(a): 1) the likelihood of the plaintiff's success on the merits;
5

2) whether plaintiff will suffer irreparable injury without the injunction; 3) the harmto others which will occur if the injunction is granted; and 4) whether the injunction would serve the public interest. In re Delorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1985)I;n re Eagle-Pitcher Industries, Inc., 963 F.2d 855, 858 (6th Cir. 1992); andN.A.A.C.P. v. City of Mansfield, Ohio, 866 F.2d 162, 166 (6th Cir. 1989). The first factor is the m ost critical inquiry of the four criteria. Mason County Med. Ass’n v. Knebel, 563 F.22d 256, 261 (6th Cir. 1977). In making its determination the “district court is required to make specific findings concerning each of the four factors, unless fewer factors are dispositive of the issue.” Six Clinics Holding Corp., II v. Cafcomp Sys., Inc.1, 19 F.3d 393, 399 (6th Cir. 1997).
B. Likelihood of Plaintiff’s Success on the Merits Plaintiffs assert the Manda te violates Pl aintiffs’ rights under the RFRA and the First Amendment of the Constitution as a corporate en tity and as owners of the entity. Defendants respond that Plaintiffs have not shown a likelihood of success on their claim under the RFRA and the First Am endment’s Free Exercise and Free Sp eech Clauses. Plaintiffs’ RFRA and First Amendment claims are addressed below.
1. RFRA The RFRA strictly prohibits the Governm ent from substantially burdening a person’s exercise of religion, 42 U.S.C. § 2000bb-1(a), except when the Government can demonstrate that application of the burden to the person furthers a com pelling government interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(b). The RFRA was enacted in response to the Supreme Court’s decision in Employment Division, Department of Human Services of Oregon v. Smith, 494 U.S. 872 (1990), where the Supr eme Court held that the right to free
6

exercise of religion under the First Amendment does not exempt an individual from a law that is neutral and ofgeneral applicability, and explicitly disavowed the test used in earlier decisions which prohibited the government from substantially burdening a plaintiff’s religious exercise unless the government could show that its action served a co mpelling interest and w as the least restrictive means to achieve that interest. 42 U.S.C. § 2000bb. The purpose of the RFRA was to “restore the compelling interest test” as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 204 (1972).
The Court takes as true, Plaintiffs’ deeply heldreligious beliefs. However, courts have held that the Mandate in question applies only to the corporate entity, not to its officers or owners, and that as to the i ndividual owners, any burden im posed on them individually by the contraception mandate is rem ote and too attenuated to be considered substa ntial for purposes of the RFRA. Gilardi v. Sebelius, 2013 WL 781150, at *9 (D.D.C. Mar. 3, 2013); Conestoga Wood Specialties Corp. v. Sebelius, 917 F.Supp.2d 394, 415-16 (E.D. 2013);Grote v. Sebelius, 708 F.3d 850, 858-59 (7th Cir. 2013)(dissent).
The Tenth Circuit, in addressing a motion for an injunction pending resolution of the appeal on the Mandate issue found that the plaintiffs/appellants failed to demonstrate entitlement to such relief. See Hobby Lobby Stores, Inc. v. Sebelius,2012 WL 6930302 at *1 (10th Cir. Dec. 20, 2012). Three types of prelim inary injunctions noted by the Tenth Circuit are specifi cally disfavored: injunctions that alter the status quo (the last peaceable uncontested status existing between the parties before the dispute developed); mandatory injunctions (requiring the nonmoving party to take affirmative action before trial on the merits); and injunctions that afford the movant all of the relief it could recover at the conclusion of a full trial on the m erits. Id. The m ovant must show the
7

preliminary injunction factors “weigh heavily and compellingly in its favor.”Id. The Tenth Circuit, in denying the request for injunction, found that thpelaintiffs/appellants failed to satisfy their burden as to the first element on their RFRA claim, that the challenged mandate substantially burdened their exercise of religion. Id. at *2. When plaintiffs/appellants do not meet this burden, there is no need to further consider whether the defendants have shown that the m andate is in furthe rance of a compelling governmental interest and is the least restrictive m eans of furthering that compelling governmental interest. Id. The Tenth Circuit agreed with the district court’s substantial-burden analysis that:
[T]he particular burden of which plaintiffs com plain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by the [corpora te] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff[s’] religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.” Id. at *3 (quoting Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012)). Plaintiffs in this case raise a similar argument that the Mandate substantially burdens their religious beliefs since the corporate entity providingat least part of the funds for its employees and its shareholder hol ds religious beliefs contrary to the Mandate’s requirem ent that wom en are provided with birth control choices. The Tenth Ci rcuit’s analysis on this issue applies in this instance because an em ployee’s participation (specifically wom en) after consultation wi th healthcare providers, as to whether to take advantage of the birth control choices in the Mandate is indirect and attenuated to the Plaintifs’ religious beliefs. The employee may or may not participate in the Mandate’s offer.
8

On leave to appeal to the United States Supreme Court as to the denial of the preliminary injunction motion, Justice Sonya Sotom ayor found that the applications did not satisfy t he demanding standard for extraordinary relief sought because it is not “indisputably clear” t hat the applicants are entitled to such relie.f Hobby Lobby Stores, Inc. v. Sebelius,133. S.Ct. 641, 643 (Dec. 26, 2012) (in chambers). Justice Sotomayor noted that the Supreme Court has yet to address similar RFRA or free exercise of religion claims brought by closely held for-profit-corporations and their controlling shareholders alleging that the m andatory provision of certain em ployee benefits substantially burdens their exercise of religion. Id. Justice Sotomayor recognized that lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims and that no court has issued a final decision granting permanent relief with respect to such claim s. Id. W hile the applicants allege irreparable harm if they are forced to choose between complying with the contraception-coveragerequirement and paying significant fines, they cannot show that an injunction is necessary or apporpriate to aid in the Supreme Court’s jurisdiction. Id.
The Sixth Circuit has addressed a m otion for an injunction pendi ng an appeal of the plaintiffs’ motion for preliminary injunction which was denied by the district court in the Western District of Michigan. Autocam Corp. v. Sebelius,Case No. 12-2673 (Dec. 28, 2012) (Moore, Rogers and Griffin). The panel noted Justice Sotomayor’s decision referenced above. Although the panel noted that the divergence of opinion by the district courts establishes the possibility of success on the merits, in light of the lower court’s reasoned opinion and the Supreme Court’s recent denial of an injunction pending appeal, the panel concluded thatthe plaintiffs had not demonstrated more than a possibility of relief. Id. at 2. The panel further noted that purely monetary damages, in this case
9

the penalty the corporate entity may have to pay, do not warrant an injunction. Id. at 3. Also, if the penalties are codified as a tax, which the district court so noted, then taxes cannot be subject to a preliminary or permanent enjoinment. Id.; see Autocam Corp. v. Sebelius,2012 WL 6845677 (W.D. Mich. Dec. 24, 2012)(Jonker).
As stated by Justice Sotom ayor and the Sixth Circuit, there are divergent opinions as to whether preliminary injunction should be granted pending a hearing on the merits before the district court on the Mandate issue based on a claimunder the RFRA. In light of the initial issue of whether a corporate entity and its shareholder have such an established right under the RFRA, Plaintiffs in this case have not carried their burden that they are likely to succeed on the merits.
2. First Amendment Free Exercise Clause Plaintiffs argue that the HHS M andate violates the Free Exercise Clause of the First Amendment to the United States Constitution. The Free Exercise Clause is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Sch. Dist. of Abington Twp. v. Schempp, 377 U.S. 203, 223 (1963). Religious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely human rights provided by the Constitution. Courts have held that the nature, history and purpose of the Free Exercise Cl ause demonstrate that it is one of the “purely personal” rights and as such, is unavailable to a secular, for-profit corporation. See, Eden Foods, Inc. v. Sebelius, 2013 WL 1190001 at * 4 (E.D. Mich. Mar. 22, 2013). An inc orporation’s basic purpose is to create a legal ent ity, with legal rights, obligations, powers, and privileges different from those of natural individuals who creaetd it, who own it, or whomit employs. Id. (citing Cedric Kushner Promotions, Ltd. v. King,533 U.S. 158, 163 (2001)). The sepraation between a corporation
10

and its owners means the corporation is not the alter ego of its owne rs for purposes of religious belief and exercise. Id.
For the same reasons set forth above under the RFRA analysis and the law cited regarding corporate entities, MKC has not carried its burden that it will likely succeed on the m erits on its claim under the Free Exercise Clause of the First Amendment.
Regarding the individual shareholders of MKC, the Court is not persuaded at this time that they have demonstrated that the Mandate violates the Free Exercise Clause based on the argument that the Mandate is not neutral nor generally applicable.
The protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). Where a law is found to violate the Free Exercise Clause, it is invalid unless it is justifi ed by a compelling interest and is narrowly tailored to advance that interest. Id. at 533. The Free Exercise Clause is not violated by a “valid and neutral lwa of general applicability on the ground that the law proscribes conduct that a plaintiff’s religion prescribes. Employment Div., Dep’t of Human Res. of Or. v. Smit h, 494 U.S. 872, 879 (1990). A neutral law of general applicability need only be “rationally related to a legitimate government objective” to be upheld. Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 243 (3d Cir. 2008). Courts have held that the Women’s Preventive Healthcare Regulations are not specifically targeted at conduct motivated by religious belief. O’Brien v. U.S Dep’t of Health & Human Services, 894 F.Supp.2d 1149, 1161-62 (E.D. Mo. 2012). Even though exemptions were made for religious em ployees, this does not show that the regulations seek to burden religion but that the government made efforts to accommodate religious beliefs. Id. The
11

purpose of the Women’s Preventive Healthcare Regulations is not to target religion, but instead to promote public health and gender equality. Id. at 1161; Hobby Lobby, 870 F.Supp.2d at 1289-90. Since courts have held that the regulations at issue do not offend t he Free Exercise Clause, the individual shareholders have not carried their burden to show that they will likely succeed on the merits of their Free Exercise Clause claim.
3. First Amendment Establishment Clause Plaintiffs argue that their constitutional right under the Establishm ent Clause of the First Amendment is violated by the Mandate. The Establishment Clause commands that one religious denomination cannot be officially preferred over another. Larson v. Valente, 456 U.S. 228, 244 (1982). Strict scrutiny is applied to a law that discrim inates among religions by aiding one religion or preferring one religion over another. Id. at 246. A statute that singles out a particular reli gious sect for special treatm ent is unconstitutional. Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 703-07 (1994). Statutes do not violate th e Establishment Clause if no pa rticular sectarian affiliation or theological position is identified. Gillette v. United States, 401 U.S. 437, 450-51 (1971). Plaintiffs have not carried their burden t o show at this stage of the proceedings that the preventive services coverage set forth in the Mandate grants any denom inational preference or discriminate against any particular religious sect or denomination. The Mandate specifically does not promote one religious organization over another.
4. First Amendment Free Speech Clause orRight to Expressive Association Plaintiffs argue that the Mandate violates their right to Free Speech and the right to Expressive Association.
12

The right to free speech “prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 61 (2006). Plaintiffs have not cited to any provision in the Mandate thatdirects Plaintiffs to say certain things about the Mandate. Nothing in the Mandate prohibits Plaintiffs from expressing their views and disagreements about the Mandate. Plaintiffs have not carried their burden to show that the Mandate violates their right to free speech.
5. Administrative Procedure Act Plaintiffs claim that Defendants violated the Administrative Procedure Act when the Mandate was issued. The rulemaking procedure of the APA requires that notice of a proposed rule be given and that the public is invited to comment on the proposed rule. Once a rule is adopted, a statement must be made as to the basis and purpose of the rule. 5U.S.C. § 553(b) & (c). Courts that have addressed the Mandate at issue as to the APA challenge have found that this claim is baseless. See Grote v. Sebelius, 2012 WL 6725905 at *11 (S.D. Ind. Dec. 27, 2012). An amendment to the interim final regulations authorizing to exempt group health plans sponsored by certain religious employers and associated group health insurance coverage from any requirement to cover contraceptive services was issued on August 3, 2011. 76 Fed. Reg. 46,621. The com ment period was 60 days. Id. at 46,621. Thousands of com ments were recei ved and considered. A definition of “religious employer” was thereafter adopted. 77 Fed. Reg. at 8,726-27. Plaintiffs have not shown for purposes of this prelimi nary injunction proceeding that the APA was violated. C. Irreparable Injury
13

Because the Court finds Plaintiffs have not carried their burden as to the likelihood of success on the merits factor, the Court need not addr ess the remaining factors. Even if Plaintiffs could meet the likelihood of success factor, Plaintiffs harm is monetary. As noted above by the Sixth Circuit panel, purely monetary damages do not warrant an injunction.Autocam, Case No. 122673 at 3. In addition, if the penalties are codified aas tax, which the district court noted, then taxes cannot be subject to a preliminary or permanent enjoinment. Id.; see Autocam, 2012 WL 6845677. It is well settled that a plaintif f's harm is not irreparable if it is f ully compensable by money damages. Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992);Overstreet v. LexingtonFayette Urban County Government, 305 F.3d 566, 579 (6th Cir. 2002).
In addition, Plaintiffs’ delay in filing the instant suit undermines this factor. The definition of “religious employer” was issued in August 2011and the final definition was adopted in February 2012. Plaintiffs waited until March 2013 to file the isntant lawsuit seeking to be exempted from the Mandate.
D. Harm to Others and Public Interest Because Plaintiffs are unable to meet the likelihood of success on the merits and irreparable injury factors, the two most important factors, the harm to others and public interest factors need not be addressed. However, based on both parties’ briefs andamici briefs, these two remaining factors do not weigh in favor of any party. There is public interest in being able to exercise one’s religious belief under the RFRA and the First Am endment. There is also public interest in providing healthcare options to all. III. CONCLUSION For the reasons set forth above,
14

IT IS ORDERED that the Emergency Motion for Preliminary Injunction (Doc. No. 20) is DENIED.
IT IS FURTHER ORDERED that the Motions ofr Leave to FileAmicus Curiae Briefs (Doc. Nos. 26 and 31) are GRANTED.
s/Denise Page Hood Denise Page Hood United States District Judge Dated: September 13, 2013 I hereby certify that a copy of the foregoing docum ent was served upon counsel of record on September 13, 2013, by electronic and/or ordinary mail. s/LaShawn R. Saulsberry Case Manager
15

 
 2:13-cv-11379-DPH-MJH Doc # 48 Filed 02/21/14 Pg 1 of 1 Pg ID 849

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

____________________________________

)

M.K. CHAMBERS COMPANY, et al., )

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.,

)

)

Defendants.

)

____________________________________)

Case No. 2:13-cv-11379 Judge Denise Page Hood Magistrate Michael J. Hluchaniuk

STIPULATED ORDER STAYING CASE

Upon joint motion of the parties, and the Court being fully advised, IT IS HEREBY

ORDERED:

The parties’ motion is GRANTED. The above-captioned matter is hereby stayed pending

a decision by the United States Suprem e Court in Sebelius v. Hobby Lobby Stores, Inc. , No. 13-

354; and Conestoga Woods Specialties Corp. v. Sebelius, No. 13-356.

Dated: February 21, 2014 s/Denise United

Page Hood States District Court Judge

/s/ Kimberly A. Cochrane

KIMBERLY A. COCHRANE

The Troy Law Firm

Trial

888 W. Big Beaver Road, Ste 1400

Troy, MI 48084

Tel: (248) 244-9100

20

Fax: (248) 244-1333

Washington,

Email: kcochrane@troylawfirm.com

Em

Attorneys for Plaintiffs

Attorneys

/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS
Attorney U.S. Department of Justice Civil Division, Federal Programs Branch
Massachusetts Avenue N.W. D.C. 20530
Tel: (202) 514-3367; Fax: (202) 616-8470 ail: bradley.p.humphreys@usdoj.gov
for Defendants

 
 2:13-cv-11379-DPH-MJH Doc # 50 Filed 08/21/14 Pg 1 of 2 Pg ID 852

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

____________________________________

)

M.K. CHAMBERS COMPANY, et al., )

)

Plaintiffs,

)

)

v.

)

)

SYLVIA M. BURWELL, et al.,

)

)

Defendants.

)

____________________________________)

Case No. 2:13-cv-11379 Judge Denise Page Hood Magistrate Michael J. Hluchaniuk

STIPULATED ORDER ENTERING PRELIMINARY INJUNCTION

IT IS HEREBY ORDERED that Defendants are preliminarily ENJOINED until further

order of the Court from enforcing against Plaintiffs, their group health plan, and the group health

insurance coverage provided in connection with that plan, the statute and regulations that require

Plaintiffs to provide their employees coverage for “[a]ll Food and Drug Administration approved

contraceptive methods, sterilization procedures, and patient education and counseling for all

women with reproductive capacity,” 77 Fed. Reg. 8725 (Feb. 15, 2012). This Order applies only

to requirements regarding the provision of coverage for the contraceptive services to which

Plaintiffs object on religious grounds. It should not be construed as applying to any other

healthcare coverage required by law, including coverage of the other services required by the

regulations regarding Women’s Preventive Healthcare.

IT IS FURTHER ORDERED that no bond is required.

IT IS SO ORDERED.

Dated: August 21, 2014

s/Denise Page Hood Hon. Denise Page Hood United States District Court Judge

2:13-cv-11379-DPH-MJH Doc # 50 Filed 08/21/14 Pg 2 of 2 Pg ID 853

/s/ Kimberly A. Cochrane THE TROY LAW FIRM DANIEL E. CHAPMAN KIMBERLY A. COCHRANE 888 W. Big Beaver Road, Ste. 1400 Troy, MI 48084 (248) 244-9100 dchapman@troylawfirm.com kcochrane@troylawfirm.com (248) 244-9100
Attorneys for Plaintiffs

/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C. 20001 Tel: (202) 514-3367; Fax: (202) 616-8470 Email: bradley.p.humphreys@usdoj.gov VA Bar. No. 83212
Attorneys for Defendants

2

 
 2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 1 of 12 Pg ID 240

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MK CHAMBERS COMPANY, GERALD D. CHAMBERS and ROBERT W. CHAMBERS,
Plaintiffs,
v.

Civil Action No. 13-11379 Honorable Denise Page Hood

DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEPARTMENT OF LABOR, DEPARTMENT OF TREASURY, SECRETARY OF HEALTH AND HUMAN SERVICES, SECRETARY OF DEPARTMENT OF LABOR and SECRETARY OF DEPARTMENT OF TREASURY,

Defendants. ___________________________________________/

ORDER DENYING EX-PARTE EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
I. BACKGROUND Plaintiffs M.K. Chambers Company (“MKC”), Gerald D. Chambers (“GDC”) and Robert
W. Chambers (“RWC”) filed an action on March 28, 2013 against Defendants Kathleen Sebelius, Secretary of the United States Department of Health and Human Services; United States Department of Health and Human Services (“HHS”); Seth Harris, Acting Secretary of the United States Department of Labor (“DOL”); United States Department of Labor; Jacob J. Lew, Secretary of the United States Department of the Treasury; and United States Department of the Treasury (“Treasury”). Plaintiffs allege the following claims: Violation of the First Amendment to the United States Constitution Establishment Clause (Count I); Violation of the First Amendment to the United States Constitution Freedom of Speech (Count II); Violation of the First Amendment to the

2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 2 of 12 Pg ID 241
United States Constitution Expressive Association (Count III); Violation of the First Amendment to the United States Constitution Free Exercise Clause and Freedom of Speech (Count IV); Violation of the First Amendment to the United States Constitution Free Exercise Clause (Count V); Violation of the Religious Freedom Restoration Act (“RFRA”) (Count V); and, Violation of the Administrative Procedure Act (Count VI).
Plaintiffs bring this action to challenge Defendants’ promulgation and implementation of certain regulations adopted under the Patient Protection and Affordable Care Act (Pub. L. 111-148, March 23, 2010, 124 Stat. 119) and the Health Care and Education Reconciliation Act (Pub. L. 111152, March 30, 2010, 124 Stat. 1029) (collectively, the “Affordable Care Act”). (Comp., ¶ 1) One of the provisions of the Affordable Care Act mandates that health plans provide coverage with respect to women, such as additional preventive care and screenings and directs the Secretary of HHS to determine what would constitute “preventive care” under 42 U.S.C. § 300gg-13(a)(4). (Comp., ¶ 2) Without notice of rulemaking or opportunity for public comment, HHS, DOL and the Treasury, adopted the Institute of Medicine (“IOM”) recommendations in full and promulgated an interim final rule (“Mandate”) which requires all group health plans and health insurance insurers offering group or individual health insurance coverage provide all FDA-approved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. (Comp., ¶ 3) The Mandate requires all insurance carriers to provide, not only contraception, but also abortion, because certain drugs and devices such as the “morning-after pill,” Plan B,” and “ella” come within the Mandates’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods,” despite their known abortifacient mechanisms of action. (Comp., ¶ 5)
2

2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 3 of 12 Pg ID 242
Plaintiffs assert that the Mandate forces employers and individuals, such as Plaintiffs, to violate their religious beliefs because it requires employers and individuals to pay for insurance from insurance issuers which fund and directly provide for drugs, devices, and services which violate their deeply held religious beliefs. (Comp., ¶ 6) Plaintiffs seek to enjoin Defendants from further implementing and enforcing provisions of the regulations, specifically the Mandate, asserting that the Mandate violates Plaintiffs’ rights to the free exercise of religion and the freedom of speech under the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act. (Comp., ¶ 9) Plaintiffs seek a Declaratory Judgment that the regulations, specifically the Mandate, violate Plaintiffs’ rights to the free exercise of religion and the freedom of speech under the First Amendment, the Religious Freedom Restoration Act, and the Administrative Procedure Act. (Comp., ¶ 10)
GDC is the President of MKC and its 50% shareholder; RWC is the Vice President of MKC and its other 50% shareholder. (Comp., ¶ 19) GDC and RWC are Christians and faith-driven individuals who are responsible for setting all policies that govern the conduct and all phases of business of MKC. (Comp., ¶ 19) MKC has a workforce of over 120 full-time employees. (Comp., ¶ 57) For decades, GDC and RWC, via MKC, formulated MKC’s health insurance policy with Blue Cross/Blue Shield of Michigan, which specifically excluded contraception, abortion, drugs commonly referred to as “life style drugs,” and otherwise exempted MKC from paying, contributing, or supporting contraception and abortion for others, or for “life style drugs.” (Comp., ¶ 20) Plaintiffs ensured that their insurance policy contained these exclusions because they adhere to the Catholic Church’s teachings regarding immorality of artificial means of contraception and sterilization, and they believe, among other things, that actions intended to terminate an innocent
3

2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 4 of 12 Pg ID 243
human life by abortion are gravely sinful. (Comp., ¶ 21) GDC and RWC have always managed and operated MKC in a way that reflects the teachings, mission, and values of their Christian faith. (Comp., ¶ 24) Plaintiffs also support financially and otherwise, Catholic fundraisers and other events. (Comp., ¶ 24) They have refused to provide financial support or otherwise, for events or entities that do not reflect the teachings, mission, and values of their Catholic faith, including requiring that their facilities remain closed and otherwise not servicing any of their customers on Sundays, eliminating any organization from a supplier list that knowingly supports, endorses, or contributes to organizations that actively participate in killing people, such as Planned Parenthood. (Comp., ¶ 24)
The Mandate not only forces Plaintiffs to finance, support and endorse contraception, abortion, and related education and counseling as health care, but also subverts the expression of Plaintiffs’ religious beliefs, and the beliefs of millions of other Americans. (Comp., ¶ 40) Plaintiffs claim that Defendants’ refusal to accommodate the conscience of Plaintiffs, and of other Americans who share Plaintiffs’ religious views, is highly selective. (Comp., ¶ 47) Numerous exemptions exist in the ACA, which appear arbitrary and were granted to employers who purchase group insurance which evidences that Defendants do not mandate that all insurance plans need to cover preventive services. (Comp., ¶ 47)
Plaintiffs do not qualify for the “religious employer” exemption contained in 45 C.F.R. § 147.130(a)(1)(A) and (B). (Comp., ¶ 66) Since Plaintiffs do not qualify for the “religious employer” exemption, they are not permitted to take advantage of the “temporary safe-harbor” set forth at 77 Fed. Register 8725 (Feb. 15, 2012). (Comp., ¶ 67) On January 20, 2012, Defendant Sebelius announced that there would be no change to the religious exemption, but that Defendant
4

2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 5 of 12 Pg ID 244
HHS has not released any official rule implementing either the one-year extension or the additional forced-speech requirement that applies to Plaintiffs. (Comp., ¶ 132) Plaintiffs assert they have complied with the Mandate, despite the fact that Plaintiffs are violating the teachings of their religious beliefs. (Comp., ¶ 132)
This matter is before the Court on Plaintiffs’ Ex-Parte Motion for Temporary Restraining Order pursuant to Fed. R. Civ. P. 65(b)(1) filed April 2, 2013. Plaintiffs seek a temporary restraining order to permit Plaintiffs to continue to provide insurance to their employees that does not violate Plaintiffs’ constitutionally and statutorily granted rights to free exercise of religion, free speech, and free association. (Motion, ¶ 1) Plaintiffs assert that they have been subject to irreparable harms since January 1, 2013, because the HHS became effective as to Plaintiffs on that date. (Motion, ¶ 3) II. ANALYSIS
A. Motion for Temporary Restraining Order 1. Standard/Certification Requirement
The sole issue presented by Plaintiffs in this Motion for Temporary Restraining Order is whether a government mandate, which forces Plaintiffs to provide health insurance that violates their sincerely held religious beliefs, right to free speech, and right to freedom of association, causes irreparable harm sufficient to warrant injunctive relief. (Motion, p. 1) Plaintiffs cite the RFRA, the Free Exercise Clause of the First Amendment and the Free Speech and Expressive Association Clause of the First Amendment, as a basis for the issuance of the temporary restraining order.
Plaintiffs filed the instant Motion for Temporary Restraining Order citing Fed. R. Civ. P. 65(b)(1). Rule 65(b) of the Federal Rules of Civil Procedures provides the Court with authority to
5

2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 6 of 12 Pg ID 245
issue a temporary restraining order as follows: Rule 65(b) Temporary Restraining Order. (1) Issuing Without Notice. The court may issue a temporary restraining
order without written or oral notice to the adverse party or its attorney only if: (A) specific facts shown by affidavit or by a verified
complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition;
(B) the movant’s attorney certifies to the court in writing any efforts made to give the notice and the reasons why it should not be required. Fed. R. Civ. P. 65(b). A temporary restraining order expires 14 days after entry of the order granting the motion. Fed. R. Civ. P. 65(b)(2). Rule 65(b) is clear that the possibly drastic consequences of a restraining order mandate careful consideration by a trial court faced with such a request. 1966 Advisory Committee Note to 65(b). As to the certification requirement, Plaintiffs’ counsel did not certify to the court in writing any efforts made by Plaintiffs’ counsel in this case to give notice to Defendant, nor were reasons given why such notice should not be required. Plaintiffs assert that Defendants have already been provided with notice of Plaintiffs’ concerns, “not through this lawsuit, which was just filed on March 29, 2013, but through at least five previously filed lawsuits addressing the same issues, including two cases in the Eastern District of Michigan, wherein the court enjoined the HHS Mandate for forprofit companies indistinguishably situated and structured to the Plaintiffs,” citing Legatus v. Sebelius, Case No. 12-12061 (E.D. Mich. Oct. 31, 2012) and Domino’s Farms Corporation v. Sebelius, Case No. 12-15488 (E.D. Mich. Dec. 30, 2012). (Motion, ¶ 4) This statement does not fulfill the certification requirement under Rule 65(b) since Plaintiffs’ counsel did not certify in
6

2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 7 of 12 Pg ID 246
writing any efforts made to give the notice and the reasons why such notice is not required. Before a court may issue a temporary restraining order, it should be assured that the movant
has produced compelling evidence of irreparable and imminent injury and that the movant has exhausted reasonable efforts to give the adverse party notice. Fuentes v. Shevin, 407 U.S. 67 (1972); Boddie v. Connecticut, 401 U.S. 371 (1971); Sniadach v. Family Finance Corp., 339 U.S. 337 91969); 11 Wright & Miller, Federal Practice and Procedure § 2951, at 504-06 (1973). Other factors such as the likelihood of success on the merits, the harm to the non-moving party and the public interest may also be considered. 11 Wright & Miller at § 2951, at 507-08; Workman v. Bredesen, 486 F.3d 896, 904-05 (6th Cir. 2007).
2. RFRA Plaintiffs argue that the HHS Mandate substantially burdens Plaintiffs’ sincere exercise of religion, violating the RFRA, 42 U.S.C. § 2000bb et seq. The RFRA strictly prohibits the Government from substantially burdening a person’s exercise of religion, 42 U.S.C. § 2000bb-1(a), except when the Government can demonstrate that application of the burden to the person furthers a compelling government interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(b). The RFRA was enacted in response to the Supreme Court’s decision in Employment Division, Department of Human Services of Oregon v. Smith, 494 U.S. 872 (1990), where the Supreme Court held that the right to free exercise of religion under the First Amendment does not exempt an individual from a law that is neutral and of general applicability, and explicitly disavowed the test used in earlier decisions which prohibited the government from substantially burdening a plaintiff’s religious exercise unless the government could show that its action served a compelling interest and was the least restrictive means to achieve that interest. 42 U.S.C. §
7

2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 8 of 12 Pg ID 247
2000bb. The purpose of the RFRA was to “restore the compelling interest test” as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 204 (1972).
There is no doubt that Plaintiffs sincerely hold and exercise their religious beliefs. However, at this preliminary stage of the litigation without a response from Defendants, the Court will not issue a temporary restraining order based on the RFRA. Plaintiffs do not expressly make a distinction between the corporate entity MKC and the individual Plaintiffs, who are MKC’s shareholders. The issue of what constitutes a “person” under the RFRA was not briefed by Plaintiffs.
Courts have held that the Mandate in question applies only to the corporate entity, not to its officers or owners, and that as to the individual owners, any burden imposed on them individually by the contraception mandate is remote and too attenuated to be considered substantial for purposes of the RFRA. See Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1294 (W.D. Okla. 2012); Gilardi v. Sebelius, 2013 WL 71150, at *9 (D.D.C. Mar. 3, 2013); Conestoga Wood Specialties Corp. v. Sebelius, 2013 WL 140110, at **10, 14 (E.D. Pa. Jan. 11, 2013); Autocam Corp. v. Sebelius, 2012 WL 6845677, at *7 (W.D. Mich. Dec. 24, 2012); Grote v. Sebelius, 2013 WL 362725, at *6 (7th Cir. Jan. 30, 2013)(dissent). At this stage of the proceedings, without benefit of Defendants’ response, Plaintiffs have not shown that Plaintiffs will prevail under the RFRA.
3. First Amendment Free Exercise Clause Plaintiffs also assert that the HHS Mandate violates the Free Exercise Clause of the First Amendment to the United States Constitution. The Free Exercise Clause is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Sch. Dist. of Abington Twp. v. Schempp, 377 U.S. 203, 223
8

2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 9 of 12 Pg ID 248
(1963). Religious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely human rights provided by the Constitution. Courts have held that the nature, history and purpose of the Free Exercise Clause demonstrate that it is one of the “purely personal” rights and as such, is unavailable to a secular, for-profit corporation. See, Conestoga Wood, 2013 WL 140110 at * 7. An incorporation’s basic purpose is to create a legal entity, with legal rights, obligations, powers, and privileges different from those of natural individuals who created it, who own it, or whom it employs. Id. at *8, citing Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 163 (2001). The separation between a corporation and its owners means the corporation is not the alter ego of its owners for purposes of religious belief and exercise. Conestoga Wood, 2013 WL at *8.
Based on the Complaint and the documents submitted with this motion, the Court is not persuaded that MKC has a right to proceed under the Free Exercise Clause of the First Amendment. As to the individual shareholders, the Court is not persuaded at this time that they have demonstrated that the Mandate violates the Free Exercise Clause based on their argument that the Mandate is not neutral nor generally applicable.
The protections of the Free Exercise Clause are applicable if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). Where a law is found to violate the Free Exercise Clause, it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. Id. at 533. The Free Exercise Clause is not violated by a “valid and neutral law of general applicability on the ground that the law proscribes conduct that a plaintiff’s religion prescribes.” Employment Div., Dep’t of
9

2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 10 of 12 Pg ID 249
Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). A neutral law of general applicability need only be “rationally related to a legitimate government objective” to be upheld. Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 243 (3d Cir. 2008). Courts have held that the Women’s Preventive Healthcare Regulations are not specifically targeted at conduct motivated by religious belief. O’Brien v. U.S Dep’t of Health & Human Services, 2012 WL 4481208, at *8 (E.D. Mo. Sept. 28, 2012). Even though exemptions were made for religious employers, that does not indicate that the regulations seek to burden religion but that the government made efforts to accommodate religious beliefs. Id. The purpose of the Women’s Preventive Healthcare Regulations is not to target religion, but instead to promote public health and gender equality. Id. at *7; Hobby Lobby, 870 F.Supp.2d at 1289-90. Since courts have held that the regulations at issue do not offend the Free Exercise Clause, the individual Plaintiffs have not carried their burden that they will likely succeed on the merits of their Free Exercise Clause claim.
4. First Amendment Free Speech and Expressive Clause Plaintiffs argue that their right to Free Speech and Expressive Association under the First Amendment have been violated. Plaintiffs assert that “the First Amendment protects nonreligious organizations based upon moral objections to exclude individuals whose mere presence was thought to send an objectionable message.” (Motion, p. 19) On this basis, the Court should protect the free speech and association of Plaintiffs who object to subsidizing and supporting certain messages and conduct based upon their deeply held religious beliefs. The Supreme Court has addressed this theory involving the Solomon Amendment, a statute denying federal funding to law schools that refuse to permit military recruiters from gaining access to campuses or to students. See, Rumsfield v. Forum for Academic and Institutional Rights, 547 U.S.
10

2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 11 of 12 Pg ID 250
47 (2006). The Supreme Court explained that the statute “neither limits what law schools may say nor requires them to say anything,” and that the schools remain free to express whatever views they may have on the congressionally mandated policy. Id. at 60. Courts have held that the same reasoning applies to the contraceptive coverage requirement under the ACA. The Sixth Circuit has noted that as it relates to the individual mandate under the ACA, the individual mandate does not impair plaintiffs’ ability to engage in expressive conduct–they are free to voice their disapproval of the ACA or health insurance in general, and “nothing about the statute affects the composition of the group by making group membership less desirable.” U.S. Citizens Ass’n v. Sebelius, 705 F.3d 588, 600 (6th Cir. 2013). Like the Solomon Amendment, “the contraceptive requirement ‘regulates conduct, not speech. It affects what [employers] must do ... not what they may or may not say.” Autocam, 2012 WL 6845677, at *8. First Amendment protection does not extend to conduct that is not inherently expressive. Id. Based on prior courts’ rulings as to the Free Speech and Free Exercise Clause of the First Amendment, the Court finds that Plaintiffs have not carried their burden that they will likely succeed on the merits of their Free Speech and Expressive Clause claim at this stage of the proceedings.
5. Irreparable Injury The Court will address briefly the irreparable injury requirement under Rule 65(b), even though it has initially found Plaintiffs are not likely to succeed on the merits. Plaintiffs claim they have suffered irreparable injury since January 1, 2013 and yet did not file the instant suit until March 28, 2013. Equity does not weigh in Plaintiffs’ favor since they waited two months after the Mandate was in effect as to Plaintiffs, before they filed their lawsuit. See, Autocam, 2012 WL 68645677, at *9. Any claim of irreparable harm based on financial impact should Plaintiffs fail to comply with
11

2:13-cv-11379-DPH-MJH Doc # 8 Filed 04/03/13 Pg 12 of 12 Pg ID 251
the Mandate or discontinue group coverage altogether cannot be enjoined. Injunctions are not normally granted to protect a party from monetary harm. It is well settled that a plaintiff's harm is not irreparable if it is fully compensable by money damages. Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992); Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566, 579 (6th Cir. 2002). In this Motion for Temporary Restraining Order, the Court finds that equities do not weigh in favor of a finding of irreparable injury.
III. CONCLUSION For the reasons set forth above, IT IS ORDERED that the Emergency Motion for Temporary Restraining Order (Doc. No.
7, filed April 2, 2013) is DENIED. S/Denise Page Hood Denise Page Hood United States District Judge
Dated: April 3, 2013 I hereby certify that a copy of the foregoing document was served upon counsel of record on April 3, 2013, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry Case Manager
12

 
 2:13-cv-11379-DPH-MJH Doc # 54 Filed 11/21/14 Pg 1 of 3 Pg ID 866

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

____________________________________

)

M.K. CHAMBERS COMPANY, et al., )

)

Civil Action No.

Plaintiffs,

)

2:13-cv-11379-DPH

)

v.

)

)

SYLVIA M. BURWELL, in her official )

capacity as the Secretary of the United )

States Department of Health and Human )

Services, et al.,

)

)

Defendants.

)

____________________________________)

STIPULATED ORDER AND JUDGMENT In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), it is hereby ORDERED that defendants, their employees, agents, and successors in office are enjoined (a) from enforcing
(1) the “June 30, 2014 Contraceptive Coverage Requirement,” defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiff M.K. Chambers Company to provide its employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and

2:13-cv-11379-DPH-MJH Doc # 54 Filed 11/21/14 Pg 2 of 3 Pg ID 867

(2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132 and 1185d; and
(b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement
against plaintiff M.K. Chambers Company, its employee health plan(s), the group health coverage provided in connection with such plan(s), and/or M.K. Chambers Company’s health insurance issuers and/or third-party administrators with respect to M.K. Chambers Company’s health plan(s); and it is further
ORDERED that judgment is entered in favor of plaintiffs and against defendants on plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is further
ORDERED that all other claims against Defendants are dismissed; and it is further ORDERED that any petition by Plaintiffs for attorneys’ fees or costs shall be submitted on or before 60 days (or the next business day if that day falls on a weekend or court holiday) from the date this judgment is issued; and it is further ORDERED that this injunction does not apply with respect to any changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents Plaintiffs from filing a new civil action to challenge any such future changes.

Date: November 21, 2014

s/Gerald E. Rosen Honorable Denise Page Hood United States District Judge

2

2:13-cv-11379-DPH-MJH Doc # 54 Filed 11/21/14 Pg 3 of 3 Pg ID 868

/s/ Kimberly A. Cochrane THE TROY LAW FIRM DANIEL E. CHAPMAN KIMBERLY A. COCHRANE 888 W. Big Beaver Road, Ste 1400 Troy, MI 48084 (248) 244-9100 dchapman@troylawfirm.com kcochrane@troylawfirm.com (248) 244-9100
Attorneys for Plaintiffs

/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C. 20001 Tel: (202) 514-3367; Fax: (202) 616-8470 Email: bradley.p.humphreys@usdoj.gov VA Bar. No. 83212
Attorneys for Defendants

3

 
 Case: 2:13-cv-11379 As of: 09/19/2016 08:44 AM EDT 1 of 7
CLOSED,STAYED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:13−cv−11379−DPH−MJH

MK Chambers Company et al v. Department of Health and Human Services et al Assigned to: District Judge Denise Page Hood Referred to: Magistrate Judge Michael J. Hluchaniuk Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/28/2013 Date Terminated: 11/21/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

MK Chambers Company

represented by Kimberly A. Cochrane The Troy Law Firm 888 W. Big Beaver Road Suite 1400 Troy, MI 48084 248−244−9100 Fax: 248−244−1333 Email: kcochrane@troylawfirm.com ATTORNEY TO BE NOTICED

Daniel E. Chapman The Troy Law Firm 888 W. Big Beaver Road Suite 1400 Troy, MI 48084 248−244−9100 Email: dchapman@troylawfirm.com ATTORNEY TO BE NOTICED

Plaintiff Gerald D Chambers

represented by Kimberly A. Cochrane (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Chapman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Robert W Chambers

represented by Kimberly A. Cochrane (See above for address) ATTORNEY TO BE NOTICED

Daniel E. Chapman (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Department of Health and Human Services

represented by Bradley P. Humphreys − INACTIVE U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Room 7219 Washington, DC 20530 202−514−3367 Fax: 202−616−8470 ATTORNEY TO BE NOTICED

Case: 2:13-cv-11379 As of: 09/19/2016 08:44 AM EDT 2 of 7

Defendant Department of Labor Defendant Department of Treasury Defendant Department of Health and Human Services, Secretary of Defendant Department of Labor, Secretary of Defendant Department of Treasury, Secretary of Amicus American Civil Liberties Union of Michigan
Amicus American Civil Liberties Union
Amicus

represented by Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley P. Humphreys − INACTIVE (See above for address) ATTORNEY TO BE NOTICED
represented by Michael J. Steinberg American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6814 Email: msteinberg@aclumich.org ATTORNEY TO BE NOTICED
represented by Daniel Mach American Civil Liberties Union 915 15th St., NW Washington, DC 20005 202−675−2330 Email: dmach@aclu.org ATTORNEY TO BE NOTICED
Jennifer Lee American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212−549−2601 Fax: 212−549−2651 Email: jlee@aclu.org ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Case: 2:13-cv-11379 As of: 09/19/2016 08:44 AM EDT 3 of 7

Bill Schuette

represented by B. Eric Restuccia Michigan Department of Attorney General P.O. Box 30217 Lansing, MI 48909 517−373−4875 Email: restucciae@michigan.gov ATTORNEY TO BE NOTICED

Date Filed 03/28/2013
03/28/2013 03/28/2013 03/29/2013 03/29/2013 04/01/2013 04/02/2013
04/03/2013 04/04/2013 04/11/2013 04/16/2013 04/16/2013 04/16/2013 04/16/2013

# Docket Text
1 COMPLAINT Verified filed by All Plaintiffs against Department of Health and Human Services, Department of Labor, Department of Treasury, Department of Health and Human Services, Secretary of, Department of Labor, Secretary of, Department of Treasury, Secretary of. Plaintiff requests summons issued. Receipt No: 0645−4016384 − Fee: &#036 350. County of 1st Plaintiff: Lapeer − County Where Action Arose: Lapeer − County of 1st Defendant: USA. [Previously dismissed case: No] [Possible companion case(s): Federal District Court Easteran District of Michigan Southern division, 12−12061, Judge Cleland] (Chapman, Daniel) (Entered: 03/28/2013)
2 NOTICE of Appearance by Kimberly A. Cochrane on behalf of All Plaintiffs. (Cochrane, Kimberly) (Entered: 03/28/2013)
3 Ex Parte MOTION for Leave to File Excess Pages in Support of Emergency Motion For Temporary Restraining Order by All Plaintiffs. (Attachments: # 1 Exhibit 1 Motion for TRO) (Cochrane, Kimberly) (Entered: 03/28/2013)
4 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (TMcg) (Entered: 03/29/2013)
5 SUMMONS Issued for * All Defendants * (TMcg) (Entered: 03/29/2013)
6 EX PARTE ORDER Allowing Plaintiffs to File Brief in Excess of Page Limits in Support of Their Emergency Motion for Temporary Restraining Order 3 . Signed by District Judge Denise Page Hood. (LSau) (Entered: 04/01/2013)
7 Ex Parte MOTION for Temporary Restraining Order and Certificate of Service by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 Affidavit of Gerald D. Chambers, # 3 Exhibit 2 Affidavit of Robert W. Chambers, # 4 Exhibit 3 Opinion; Legatus, et al. v. Sebelius, et al., # 5 Exhibit 4 Opinion; Domino's Farms Corp., et al. v. Sebelius, et al., # 6 Exhibit 5 Opinion; American Pulverizer Co., et al. v. Dep't of Health & Human Servs, et al., # 7 Exhibit 6 Opinion; Newland, et al. v. Sebelius, et al., # 8 Exhibit 7 Opinion; Tyndale House Publishers, Inc. v. Sebelius, et al.) (Cochrane, Kimberly) (Entered: 04/02/2013)
8 ORDER Denying Ex−Parte Emergency Motion for Temporary Restraining Order 7 . Signed by District Judge Denise Page Hood. (LSau) (Entered: 04/03/2013)
9 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by MK Chambers Company (Cochrane, Kimberly) (Entered: 04/04/2013)
10 Ex Parte MOTION for Leave to File Excess Pages In Support of Plaintiffs' Motion For Preliminary Injunction by All Plaintiffs. (Cochrane, Kimberly) (Entered: 04/11/2013)
11 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney served on 04/09/2013. (Cochrane, Kimberly) (Entered: 04/16/2013)
12 CERTIFICATE of Service/Summons Returned Executed. U.S. Department of Treasury served on 04/10/2013. (Cochrane, Kimberly) (Entered: 04/16/2013)
13 CERTIFICATE of Service/Summons Returned Executed. Secretary of U.S. Department of Treasury served on 04/11/2013. (Cochrane, Kimberly) (Entered: 04/16/2013)
14 CERTIFICATE of Service/Summons Returned Executed. Secretary of U.S. Department of Health & Human Services served on 04/08/2013. (Cochrane, Kimberly) (Entered: 04/16/2013)

Case: 2:13-cv-11379 As of: 09/19/2016 08:44 AM EDT 4 of 7

04/16/2013 04/19/2013 04/24/2013 04/24/2013 04/25/2013 04/26/2013 05/01/2013 05/02/2013 05/02/2013 05/06/2013 05/22/2013 05/22/2013
05/24/2013 05/30/2013 05/30/2013 05/31/2013

15 CERTIFICATE of Service/Summons Returned Executed. Secretary for U.S. Department of Labor served on 04/08/2013. (Cochrane, Kimberly) (Entered: 04/16/2013)
16 NOTICE of Appearance by Bradley P. Humphreys on behalf of All Defendants. (Humphreys, Bradley) (Entered: 04/19/2013)
17 CERTIFICATE of Service/Summons Returned Executed. Department of Health and Human Services served on 04/08/2013. (Cochrane, Kimberly) (Entered: 04/24/2013)
18 ORDER granting 10 Motion for Leave to File Excess Pages. Signed by District Judge Denise Page Hood. (JOwe) (Entered: 04/24/2013)
19 STIPULATION AND ORDER Allosing Plaintiffs to File a Brief in Exess of Page Limits in Support of their Motion for Preliminary Injunction, and Defendants to File a Brief in Excess of Page Limits in Repsonse to Plaintifffs' Motion for Preliminary Injunction. Signed by District Judge Denise Page Hood. (JOwe) (Entered: 04/25/2013)
20 Emergency MOTION for Preliminary Injunction and Certificate of Service by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 Affidavit of Gerald D. Chambers, # 3 Exhibit 2 Affidavit of Robert W. Chambers) (Cochrane, Kimberly) (Entered: 04/26/2013)
21 NOTICE OF HEARING on 20 Emergency MOTION for Preliminary Injunction and Certificate of Service. Motion Hearing set for 5/15/2013 02:00 PM before District Judge Denise Page Hood (LSau) (Entered: 05/01/2013)
22 CERTIFICATE of Service/Summons Returned Executed. U.S. Department of Labor served on 04/08/2013. (Cochrane, Kimberly) (Entered: 05/02/2013)
Set/Reset Deadlines as to 20 Emergency MOTION for Preliminary Injunction and Certificate of Service. Responses due by 5/22/2013 Replies due by 5/31/2013 Motion Hearing set for 6/7/2013 02:00 PM before District Judge Denise Page Hood (LSau) (Entered: 05/02/2013)
23 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of All Defendants. (Cochrane, Kimberly) (Entered: 05/06/2013)
24 MOTION for Leave to File Excess Pages in Support of Defendants' Motion to Dismiss and in Opposition to Plaintiffs' Motion for a Preliminary Injunction by All Defendants. (Humphreys, Bradley) (Entered: 05/22/2013)
25 MOTION to Dismiss and Memorandum in Opposition to Plaintiffs' Motion for a Preliminary Injunction by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Autocam Corp. v. Sebelius (6th Cir.), # 3 Exhibit Autocam Corp. v. Sebelius (6th Cir. − Denying Motion for Reconsideration), # 4 Exhibit Autocam Corp. v. Sebelius (W.D. Mich.), # 5 Exhibit Hobby Lobby v. Sebelius (10th Cir.), # 6 Exhibit Conestoga Wood Specialities Corp. v. Sebelius (3d Cir.), # 7 Exhibit Conestoga Wood Specialities Corp. v. Sebelius (E.D. Pa.), # 8 Exhibit Annex Med., Inc. v. Sebelius (D. Minn.), # 9 Exhibit Annex Med., Inc. v. Sebelius (D. Minn. − Denying Motion for Injunction Pending Appeal), # 10 Exhibit Grote Indus., Inc. v. Sebelius (S.D. Ind.), # 11 Exhibit Grote Indus., Inc. v. Sebelius (S.D. Ind. − Denying Motion for Reconsideration), # 12 Exhibit Korte v. U.S. Dep't of Health & Human Servs. (S.D. Ind.), # 13 Exhibit Gilardi v. Sebelius (D.D.C.)) (Humphreys, Bradley) (Entered: 05/22/2013)
26 MOTION for Leave to File Amicus Brief by American Civil Liberties Union of Michigan, American Civil Liberties Union. (Attachments: # 1 Exhibit Proposed Amicus Brief) (Steinberg, Michael) (Entered: 05/24/2013)
27 NOTICE of Appearance by Daniel Mach on behalf of American Civil Liberties Union, American Civil Liberties Union of Michigan. (Mach, Daniel) (Entered: 05/30/2013)
28 STIPULATED ORDER Allowing Plaintiffs to File a Reply Brief in Excess of Page Limits in Support of Their Motion for Preliminary Injunction. Signed by District Judge Denise Page Hood. (LSau) (Entered: 05/30/2013)
29 REPLY to Response re 20 Emergency MOTION for Preliminary Injunction and Certificate of Service, 25 MOTION to Dismiss and Memorandum in Opposition to

Case: 2:13-cv-11379 As of: 09/19/2016 08:44 AM EDT 5 of 7

05/31/2013 05/31/2013 05/31/2013 05/31/2013 06/05/2013 06/05/2013 06/05/2013
06/06/2013 06/06/2013 06/07/2013 06/07/2013
06/10/2013 06/14/2013 06/20/2013 06/27/2013
07/10/2013 07/15/2013 07/15/2013

Plaintiffs' Motion for a Preliminary Injunction and Certificate of Service filed by All Plaintiffs. (Cochrane, Kimberly) (Entered: 05/31/2013)
30 ATTORNEY APPEARANCE: B. Eric Restuccia appearing on behalf of Bill Schuette with certificate of service (Restuccia, B.) (Entered: 05/31/2013)
31 MOTION for Leave to File an Amicus Brief with Certificate of Service by Bill Schuette. (Restuccia, B.) (Entered: 05/31/2013)
32 Amicus Curiae BRIEF by Bill Schuette (Restuccia, B.) (Entered: 05/31/2013)
33 REQUEST for Leave to Appear Telephonically at the Hearing on Plaintiffs' Motion for a Preliminary Injunction by All Defendants. (Humphreys, Bradley) (Entered: 05/31/2013)
TEXT−ONLY ORDER Granting 24 MOTION for Leave to File Excess Pages. Signed by District Judge Denise Page Hood. (LSau) (Entered: 06/05/2013)
34 NOTICE OF HEARING on 25 MOTION to Dismiss and Memorandum in Opposition to Plaintiffs' Motion for a Preliminary Injunction. Motion Hearing set for 7/24/2013 03:00 PM before District Judge Denise Page Hood (LSau) (Entered: 06/05/2013)
35 NOTICE OF HEARING on 31 MOTION for Leave to File an Amicus Brief with Certificate of Service, 26 MOTION for Leave to File Amicus Brief. Motion Hearing set for 6/7/2013 02:00 PM before District Judge Denise Page Hood (LSau) (Entered: 06/05/2013)
36 RESPONSE to 20 Emergency MOTION for Preliminary Injunction and Certificate of Service REFILED filed by All Defendants. (Humphreys, Bradley) (Entered: 06/06/2013)
37 Amended MOTION to Dismiss by All Defendants. (Humphreys, Bradley) (Entered: 06/06/2013)
38 NOTICE of Appearance by Jennifer Lee on behalf of American Civil Liberties Union, American Civil Liberties Union of Michigan. (Lee, Jennifer) (Entered: 06/07/2013)
Minute Entry for proceedings held before District Judge Denise Page Hood: Motion Hearing held on 6/7/2013 re 26 MOTION for Leave to File, 20 Emergency MOTION for Preliminary Injunction, 31 MOTION for Leave to File Disposition: TAKEN UNDER ADVISEMENT(Court Reporter Cheryl Warren Daniel) (LSau) (Entered: 06/10/2013)
TEXT−ONLY ORDER Denying Request for Leave to Appear Telephonically 33 . Signed by District Judge Denise Page Hood. (LSau) (Entered: 06/10/2013)
39 NOTICE OF HEARING on 37 Amended MOTION to Dismiss . Motion Hearing set for 7/24/2013 03:00 PM before District Judge Denise Page Hood (LSau) (Entered: 06/14/2013)
40 STIPULATED ORDER Allowing Plaintiffs to File a Brief In Excess of Page Limits in Support of Their Response To re 37 Amended MOTION to Dismiss. Signed by District Judge Denise Page Hood. (Loury, R) (Entered: 06/20/2013)
41 RESPONSE to 37 Amended MOTION to Dismiss and Certificate of Service filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 Affidavit of Gerald D. Chambers, # 3 Exhibit 2 Affidavit of Robert W. Chambers) (Cochrane, Kimberly) (Entered: 06/27/2013)
42 MOTION for Extension of Time to File Response/Reply as to 37 Amended MOTION to Dismiss by All Defendants. (Humphreys, Bradley) (Entered: 07/10/2013)
43 MOTION for Leave to File Excess Pages for Defendants' Reply in Support of Defendants' Motion to Dismiss by All Defendants. (Humphreys, Bradley) (Entered: 07/15/2013)
44 REPLY to Response re 37 Amended MOTION to Dismiss filed by All Defendants. (Humphreys, Bradley) (Entered: 07/15/2013)

Case: 2:13-cv-11379 As of: 09/19/2016 08:44 AM EDT 6 of 7

07/18/2013 07/24/2013
09/13/2013 01/31/2014 02/21/2014 03/04/2014
08/21/2014 09/23/2014 09/24/2014 11/07/2014 11/07/2014 11/21/2014 12/17/2014
12/30/2014 01/05/2015
01/05/2015 01/05/2015

45 STIPULATED ORDER Allowing Defendants to File a Reply Brief in Excess of Page Limits re 43 Motion for Leave to File Excess Pages. Signed by District Judge Denise Page Hood. (Monda, H) (Entered: 07/18/2013)
Minute Entry for proceedings held before District Judge Denise Page Hood: Motion Hearing held on 7/24/2013 re 37 Amended MOTION to Dismiss − TAKEN UNDER ADVISEMENT and 20 Emergency MOTION for Preliminary Injunction − DENIED (Court Reporter Cheryl Warren Daniel) (LSau) (Entered: 07/26/2013)
46 ORDER denying 20 Motion for Preliminary Injunction and Order granting 26 , 31 Motions to File Amicus Curiae Briefs. Signed by District Judge Denise Page Hood. (JOwe) (Entered: 09/13/2013)
47 Joint MOTION to Stay Case by All Defendants. (Humphreys, Bradley) (Entered: 01/31/2014)
48 STIPULATED ORDER STAYING CASE. Signed by District Judge Denise Page Hood. (LSau) (Entered: 02/21/2014)
49 ORDER Dismissing Motions Without Prejudice re 25 MOTION to Dismiss, 37 Amended MOTION to Dismiss and 42 MOTION for Extension of Time to File Response/Reply as to 37 Amended MOTION to Dismiss. Signed by District Judge Denise Page Hood. (Monda, H) (Entered: 03/04/2014)
50 STIPULATED ORDER Entering Preliminary Injunction Signed by District Judge Denise Page Hood. (JOwe) (Entered: 08/21/2014)
51 NOTICE by All Defendants of Consent to Injunction and Judgement (Attachments: # 1 Exhibit Text of Proposed Injunction and Judgment) (Humphreys, Bradley) (Entered: 09/23/2014)
52 NOTICE by All Plaintiffs Objection to Entry of Defendants' Proposed Injunction And Judgment (DOC #51 AND #51−1) (Attachments: # 1 Exhibit 1 Proposed Injunction And Judgment) (Cochrane, Kimberly) (Entered: 09/24/2014)
53 NOTICE TO APPEAR: Miscellaneous Hearing Regarding Entry of Consent Injunction and Judgment set for 11/19/2014 03:30 PM before District Judge Denise Page Hood (LSau) (Entered: 11/07/2014)
TEXT−ONLY NOTICE: Miscellaneous Hearing on November 19, 2014 is Cancelled re 53 Notice to Appear. (LSau) (Entered: 11/07/2014)
54 STIPULATED ORDER and JUDGMENT. Signed by District Judge Denise Page Hood. (JOwe) (Entered: 11/21/2014)
55 MOTION for Attorney Fees , Costs, and Expenses, and Certificate of Service by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 June 30, 2014 Opinion − Burwell v Hobby Lobby, 573 U.S. _____ (2014), # 3 Exhibit 2 November 21, 2014 Stipulated Order and Judgment, # 4 Exhibit 3 Bill of Costs, # 5 Exhibit 4 Affidavit of Daniel E. Chapman and Affidavit of Kimberly A. Cochrane, # 6 Exhibit 5 State Bar of Michigan's 2014 Economics of Law Practice, Attorney Income and Billing Rate Summary Report) (Cochrane, Kimberly) (Entered: 12/17/2014)
56 MOTION for Extension of Time to File Response/Reply as to 55 MOTION for Attorney Fees , Costs, and Expenses, and Certificate of Service by All Defendants. (Humphreys, Bradley) (Entered: 12/30/2014)
57 ORDER REFERRING MOTION to Magistrate Judge Michael J. Hluchaniuk: 55 MOTION for Attorney Fees , Costs, and Expenses, and Certificate of Service filed by MK Chambers Company, Gerald D Chambers, Robert W Chambers. Signed by District Judge Denise Page Hood. (LSau) (Entered: 01/05/2015)
58 STIPULATED ORDER Extending Time for Defendant to File Opposition to Plaintiffs' Motion for Attorneys' Fees and Costs 55 ( Response due by 1/5/2015) Signed by District Judge Denise Page Hood. (LSau) (Entered: 01/05/2015)
59 Second MOTION for Extension of Time to File Response/Reply as to 55 MOTION for Attorney Fees , Costs, and Expenses, and Certificate of Service by All Defendants. (Humphreys, Bradley) (Entered: 01/05/2015)

Case: 2:13-cv-11379 As of: 09/19/2016 08:44 AM EDT 7 of 7

01/06/2015
01/07/2015 01/09/2015 01/27/2015
03/13/2015 03/13/2015

TEXT−ONLY ORDER granting 59 Motion for Extension of Time to File Response/Reply re 55 MOTION for Attorney Fees , Costs, and Expenses, and Certificate of Service Response due by 1/7/2015. Signed by Magistrate Judge Michael J. Hluchaniuk. (THal) (Entered: 01/06/2015)
60 RESPONSE to 55 MOTION for Attorney Fees , Costs, and Expenses, and Certificate of Service filed by All Defendants. (Humphreys, Bradley) (Entered: 01/07/2015)
61 REPLY to Response re 55 MOTION for Attorney Fees , Costs, and Expenses, and Certificate of Service filed by All Plaintiffs. (Attachments: # 1 Exhibit Billing Records) (Cochrane, Kimberly) (Entered: 01/09/2015)
62 ORDER Setting Hearing on 55 MOTION for Attorney Fees , Costs, and Expenses : Resolved/Unresolved Issues due by 4/22/2015. Telephonic Motion Hearing set for 4/29/2015 09:00 AM before Magistrate Judge Michael J. Hluchaniuk. Signed by Magistrate Judge Michael J. Hluchaniuk. (THal) (Entered: 01/27/2015)
63 NOTICE by All Plaintiffs of withdrawal of 55 MOTION for Attorney Fees , Costs, and Expenses, and Certificate of Service . (Cochrane, Kimberly) (Entered: 03/13/2015)
TEXT−ONLY NOTICE: Hearing on 4/29/15 is Cancelled re 62 Order Setting Hearing on Motion. Motion withdrawn. (DWor) (Entered: 03/13/2015)