Case 1:13-cv-01247-GJQ Doc #1 Filed 11/14/13 Page 1 of 53 Page ID#1

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

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MICHIGAN CATHOLIC

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CONFERENCE in its own name and on )

behalf of the MICHIGAN CATHOLIC

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CONFERENCE SECOND AMENDED )

AND RESTATED GROUP HEALTH

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BENEFIT PLAN FOR EMPLOYEES, and )

CATHOLIC FAMILY SERVICES d/b/a )

CATHOLIC CHARITIES DIOCESE OF )

KALAMAZOO,

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Plaintiffs,

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v.

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KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

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Department of Health and Human

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Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S.

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Department of Labor, JACOB J. LEW, in )

his official capacity as Secretary of the

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U.S. Department of Treasury; U.S.

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DEPARTMENT OF HEALTH AND

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HUMAN SERVICES; U.S.

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DEPARTMENT OF LABOR; and U.S.

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DEPARTMENT OF TREASURY.

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Defendants.

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CASE NUMBER: 1:13-cv-01247 JUDGE: _________________ DATE STAMP: ___________

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

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

right to contraception, abortion-inducing products, and sterilization (the “objectionable

services”). Those products and services are widely available in the United States, and nothing

prevents the government from making them more widely available. Here, however, Defendants

(or, the “Government”) seek to require Plaintiffs—Catholic entities—to violate their sincerely

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held religious beliefs by providing, paying for, and/or facilitating access to those products and services. American history, embodied in the First Amendment to the Constitution and the Religious Freedom Restoration Act (“RFRA”), safeguards religious entities from such overbearing governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of civil rights. Plaintiffs provide a range of spiritual, educational, social, and financial services to members of their communities, Catholic and non-Catholic alike. Plaintiff Michigan Catholic Conference (“MCC”) sponsors a wide range of benefit programs for approximately 827 Catholic institutions in Michigan, providing services to approximately 10,374 participants. Among these institutions are the seven Catholic Dioceses in Michigan and additional non-profit religious organizations that assist the Dioceses in carrying out the Catholic Church’s missions. Plaintiff Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo (“Catholic Charities”)—a nonprofit Michigan corporation—is one such entity, which provides a wide range of services including advocacy, crisis intervention, housing, counseling, and outreach services within the nine counties of southwestern Michigan that make up the Diocese of Kalamazoo.
2. Plaintiffs’ work is guided by Catholic belief, including the requirement that they serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Benedict has more recently put it, “[L]ove for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Thus, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
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3. Catholic Church teachings also uphold the conviction that sexual union should be reserved to married couples open to the creation of life; thus, artificial interference with the creation of life, including contraception, abortion, and sterilization, violates Catholic doctrine.
4. Defendants, however, have promulgated various rules (collectively, the “Mandate”) that force Plaintiffs to violate their sincerely held religious beliefs. These rules require Plaintiffs and other religious organizations to provide, pay for, and/or facilitate insurance access to contraception, abortion-inducing products, sterilization, and related education and counseling. In response to the intense criticism that the Government’s original proposal provoked, including some by the current Administration’s ardent supporters, the Government proposed changes that, it asserted, eliminated the substantial burden imposed on the religious beliefs of nonprofit religious entities. In fact, these changes made that burden worse by significantly increasing the number of organizations subject to the Mandate.
5. In its final form (the “Final Rule”), the Mandate contains three basic components: 6. First, it requires group health plans to cover, without cost-sharing requirements, all “FDA-approved contraceptive methods and contraceptive counseling”—a term that includes, contraception, abortion-inducing products, sterilization, and related education and counseling. 7. Second, the Mandate creates a narrow exemption for certain “religious employers,” defined to include only nonprofit entities described in § 6033(a)(1) and § 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. These provisions are not about religious liberty. Rather, they are paperwork-reduction provisions that address whether tax-exempt nonprofit entities must file an annual informational tax return, known as a Form 990. As the Government has affirmed, this exemption protects only “the unique relationship between a house of worship and its employees in ministerial positions.” Coverage of Certain Preventative
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Services Under the Affordable Care Act, 78 Fed. Reg. 8,456, 8,461 (proposed Feb. 6, 2013). The only entities that qualify are “churches [and their integrated auxiliaries], synagogues, mosques, and other houses of worship, and religious orders.” Id. This is the narrowest “conscience exemption” ever adopted in federal law.
8. Third, the Mandate creates a second class of religious entities that, in the Government’s view, are not sufficiently “religious” to qualify for the “religious employer” exemption. These religious entities, deemed “eligible organizations,” are subject to a so-called “accommodation” that is intended to eliminate the burden that the Mandate imposes on their religious beliefs. The accommodation, however, is illusory: it continues to require “eligible organizations” to participate in a new employer-based scheme to provide, pay for, and/or facilitate provision of the objectionable coverage to their employees.
9. Under these rules, Plaintiff MCC appears to qualify as an integrated auxiliary of a “religious employer” and is eligible for the exemption. But through its health insurance plans, MCC provides coverage to a wide range of Catholic organizations that do not fall within the exemption, including, for example, Plaintiff Catholic Charities, Loyola High School, Catholic Social Services of the Upper Peninsula, Catholic Social Services of Washtenaw County, Baraga Broadcasting, and St. Francis Home (collectively, “non-exempt religious organizations”). MCC must therefore either (1) sponsor a plan that will provide Plaintiff Catholic Charities, and other non-exempt Catholic organizations, with access to the objectionable products and services; (2) sponsor a plan that will require the non-exempt organizations to self-certify and facilitate provision of the objectionable services; (3) sponsor a plan that will subject the non-exempt religious organizations that fail to self-certify and facilitate provision of the objectionable services to onerous fines, see 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012); or (4) expel the non-
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exempt religious organizations from MCC’s health insurance plans, thereby forcing expelled entities into an arrangement with another insurance provider that will, in turn, provide or procure the objectionable products and services.
10. This aspect of the Mandate reflects a change from the original proposal, which tied the exemption to plans rather than employers and thus allowed non-exempt religious organizations to shield themselves from the Mandate by remaining on a plan sponsored by an exempt entity. The Government’s Final Rule, in contrast, removes this protection and thereby increases the number of religious organizations subject to the Mandate. In so doing, the Mandate seeks to divide the Catholic Church, artificially separating its “houses of worship” from its faith in action, its charitable works, directly contrary to Pope Benedict’s admonition that “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.”
11. Plaintiff Catholic Charities, for example, participates in a plan offered by MCC, but it does not qualify for the exemption. Instead, it is subject to the accommodation. As a result, Catholic Charities’ decision to provide insurance to its employees through an MCC plan triggers the requirement that it enter into a contract with the plan’s third party administrator to provide the objectionable coverage for its employees. Catholic Charities thus cannot avoid materially cooperating in the provision of this objectionable coverage without subjecting itself to crippling fines and/or lawsuits.
12. The accommodation also requires Plaintiff Catholic Charities to take a number of actions that result in the objectionable services being provided to its employees, which, according to Catholic doctrine, is impermissible. For example, in order to take advantage of the accommodation, Catholic Charities must provide a “certification” to its third party administrator
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that sets forth its religious objections to the Mandate. This “certification,” in turn, “automatically” triggers an obligation on the part of the third party administrator to provide Catholic Charities’ employees with the objectionable coverage. 78 Fed. Reg. at 8,463. A religious organization’s self-certification, therefore, triggers the objectionable coverage.
13. Contrary to the Government’s position, the Mandate’s accommodation “requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage.” Comments of U.S. Conference of Catholic Bishops, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-Comments-320-final.pdf (Ex. A). The Government asserts that the provision of the objectionable coverage will be “cost-neutral.” This assertion, however, ignores the effect the accommodation will have on premiums and administrative fees charged to religious employers. Regulatory compliance will increase costs to insurers and third party administrators and those costs will be passed on to employers. The Government’s assertion of “cost neutrality” is also based on the implausible (and morally objectionable) assumption that “lower costs” from “fewer childbirths” will offset the cost of the contraceptive coverage. 78 Fed. Reg. at 8,463. More importantly, even if the Government’s assumption were correct, it simply means that premiums previously going toward childbirths will be redirected to contraceptive and related services to achieve “fewer childbirths.” Plaintiffs, therefore, would still actually be paying for the objectionable products and services.
14. In short, the Mandate, even with the accommodation, requires non-exempt religious organizations, like Plaintiff Catholic Charities, to provide, pay for, and/or facilitate objectionable insurance coverage contrary to their sincerely held religious beliefs or face onerous fines. Similarly, the Mandate requires exempt religious employers that sponsor a health plan including non-exempt employers, like Plaintiff MCC, to either sponsor a plan that will provide, pay for,
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and/or facilitate the provision of the objectionable products and services to non-exempt employees, expel the non-exempt entities from its plan, or face potential liability for the nonexempt organizations’ onerous fines.
15. These burdens on religious freedom violate Plaintiffs’ rights secured by the First Amendment and the Religious Freedom Restoration Act (“RFRA”). The manner in which the Mandate was passed, moreover, does not comport with the Administrative Procedure Act (“APA”). Accordingly, Plaintiffs seek a declaration that the Mandate cannot legally apply to them, an injunction barring its enforcement against them, and an order vacating the Mandate. I. BACKGROUND
A. Preliminary Matters 16. Plaintiff MCC is a nonprofit corporation incorporated in Michigan in 1963. Its principal place of business is in Lansing, Michigan. MCC is organized for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. The MCC Second Amended and Restated Group Health Benefit Plan for Employees (“MCC Plan”) is a health plan sponsored and administered by MCC. MCC is a “church plan” generally exempt from the Employee Retirement Income Security Act (“ERISA”). 17. Plaintiff Catholic Charities is a nonprofit subsidiary of the Roman Catholic Diocese of Kalamazoo (“Diocese”) incorporated in Michigan in 1991. Catholic Charities is separately incorporated and independent from the Diocese. Its principal place of business is in Kalamazoo, Michigan. Catholic Charities is organized for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. 18. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services (“HHS”). She is sued in her official capacity.
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19. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
20. Defendant Jacob J. Lew is the Secretary of the U.S. Department of Treasury. He is sued in his official capacity.
21. Defendant U.S. Department of Health and Human Services (“HHS”) is an executive agency of the United States within the meaning of RFRA and the APA.
22. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
23. Defendant U.S. Department of Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
24. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the Mandate, Plaintiffs will be required to provide, pay for, and/or facilitate access to healthcare coverage in contravention of their sincerely held religious beliefs, as described below.
25. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
26. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702; 28 U.S.C. §§ 2201, 2202; and 42 U.S.C. § 2000bb-1(c).
27. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
28. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1).
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B. Plaintiff MCC And The Many Catholic Institutions That Participate In The MCC Plan
29. Plaintiff MCC was established by His Eminence John Cardinal Dearden, then
Archbishop of Detroit, in 1963. It has a Board of Directors of fourteen members, including the
seven bishops of the seven Catholic Dioceses in Michigan, five lay persons, a priest, and a
religious sister. The Archbishop of Detroit, the Most Reverend Allen H. Vigneron, is presently
the Chairman of the Board.
30. Plaintiff MCC sponsors and administers several benefit programs, including the
MCC Plan, and by doing so it can ensure that the health benefits provided by the participating
Catholic institutions are consistent with Catholic Church teachings. Consistent with these
efforts, MCC also serves as a vehicle by which the Catholic Church can speak with one voice in
Michigan on the morality of certain healthcare products and services, including the objectionable
products and services at issue in this litigation.
31. The MCC Plan offers health benefits to qualifying employees of “Covered Units,”
and defines “Covered Unit” to mean:
a parish, school, institution, organization, corporation or other entity in the State of Michigan which is an integral part of the Catholic Church, engaged in carrying out the functions of the Catholic Church, and under the control of an Archbishop or Bishop of a Diocese in the Province of Detroit, unless the Archbishop or Bishop specifically exempts the unit from status as a Covered Unit. The Michigan Catholic Conference shall be a Covered Unit. Any parish, school, institution, organization, corporation or other entity listed within the Kenedy Directory which is an integral part of the Catholic Church and which is engaged in carrying out the functions of the Catholic Church, but which is not under the control of an Archbishop or Bishop of a Diocese in the Province of Detroit, may become a Covered Unit pursuant to a written agreement between its governing authority and the Michigan Catholic Conference.
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Presently, approximately 827 Catholic institutions and approximately 10,374 participants receive their health insurance through the MCC Plan.
32. The seven Catholic Dioceses in Michigan are “Covered Units” in the MCC Plan and offer their employees healthcare coverage through the MCC Plan. These Dioceses cover the entire State:
a. The Archdiocese of Detroit encompasses over 270 parishes in six counties in the greater Detroit area. Since 2009, it has been led by Archbishop Allen Vigneron.
b. The Diocese of Grand Rapids encompasses 98 parishes in eleven counties in western Michigan. Since June 2013, it has been led by Bishop David J. Walkowiak.
c. The Diocese of Lansing encompasses 89 parishes in ten counties in central Michigan. Since 2008, it has been led by Bishop Earl A. Boyea.
d. The Diocese of Kalamazoo encompasses 59 parishes in nine counties in southwestern Michigan. Since 2009, it has been led by Bishop Paul J. Bradley.
e. The Diocese of Saginaw encompasses 109 parishes in eleven counties in Michigan’s “thumb and index finger.” Since 2009, it has been led by Bishop Joseph R. Cistone.
f. The Diocese of Gaylord encompasses 80 parishes in 21 counties in the northern part of Michigan’s lower peninsula. It currently has a Vacant See.
g. The Diocese of Marquette encompasses 94 parishes in the fifteen counties in Michigan’s upper peninsula. It currently has a Vacant See.
33. These seven Dioceses carry out the spiritual, educational, and social service missions of the Catholic Church in Michigan. The Dioceses, along with their local parishes, provide spiritual ministry to the approximately 2.1 million Catholics in Michigan that represent 21% of Michigan’s population. They ensure the availability of the sacraments to all Catholics living in or visiting Michigan. The Dioceses conduct their educational missions, in part, through their various offices for Catholic schools and their many affiliated elementary and high schools, most of whom participate in the MCC Plan. The Dioceses perform charitable social services
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through their various diocesan ministries, their offices of Christian Service, and/or their local parishes. These diocesan and parish programs range from ministering to the prison population, to funding local self-help projects for the poor, to offering low-cost, legal representation to indigent immigrants, to providing meals to the homeless or visits to nursing homes.
34. Many affiliated non-profit Catholic charitable and educational entities that assist the Dioceses in carrying out the Catholic Church’s mission are Covered Units in the MCC Plan and offer their employees healthcare coverage through the MCC Plan. Many of these organizations do not qualify for the Government’s religious-employer exemption and so are instead subject to the so-called accommodation.
35. One such Covered Unit is Loyola High School in Detroit. In the 1990s, the Detroit Board of Education proposed opening several all-male academies to address the alarmingly high dropout rate of high-school males in Detroit. When a court found the state-run plan unconstitutional, Catholic leaders filled the gap by opening Loyola High School in Detroit to be run in the Jesuit tradition. It is an independent high school welcoming male students of all faiths who face the challenges of an urban environment. Its 99% minority student population is 95% non-Catholic. Since its first graduating class, every one of its graduating students has been admitted into a college or university. It offers employment opportunities to people of all faiths.
36. Catholic Social Services of the Upper Peninsula—a nonprofit Michigan corporation located in the Diocese of Marquette—is another Covered Unit under the MCC Plan with a similar service mission. Its mission is, among others, “[t]o promote and improve the healthy social functioning of individuals and families through counseling and prevention programming which enhance and support family life,” “[i]n keeping with the teaching of the Catholic Church.” It provides a broad range of assistance to Michigan families in need, ranging
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from adoption services to counseling services, to assisted-living services. It has seventeen employees and hires people of all faiths.
37. Catholic Social Services of Washtenaw County—a nonprofit Michigan corporation located in the Diocese of Lansing—is a Covered Unit under the MCC Plan. Its mission “[i]s the work of the Catholic Church to share the love of Christ by performing the corporal and spiritual works of Mercy. We help. We participate. We Change Lives.” Serving thousands of individuals and families of all faiths and all walks of life, CSSW offers more than two dozen programs reflecting the diversity of the community: adoption and pregnancy counseling, food assistance, homelessness prevention, domestic and child abuse intervention and prevention, family therapy, and services designed to assist older adults, individuals with developmental disabilities, and at-risk families with young children.
38. Baraga Broadcasting—a nonprofit Michigan corporation located in the Diocese of Gaylord—is another Covered Unit under the MCC Plan. A listener-supported radio network, Baraga Broadcasting seeks to proclaim the Truth and beauty of the Roman Catholic Faith by offering educational and inspirational programming that aims to engage its listeners and encourage them to live out their faith in Jesus Christ. With programs entitled “Catholic Answers,” “Catholic Connection with Teresa Tomeo,” “Word on Fire with Father Robert Barron,” “Christ is the Answer with Father John Ricardo,” as well as broadcasting the Holy Rosary and daily Mass, its coverage area is in the Dioceses of Gaylord and Marquette, Michigan.
39. St. Francis Home—a nonprofit Michigan corporation located in the Diocese of Saginaw—is another Covered Unit under the MCC Plan. It is a provider of quality skilled nursing care and successful rehabilitation services for seniors. As a human service agency, St. Francis Home offers a wide variety of activities and opportunities to serve the physical,
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emotional and spiritual needs of its residents. As an affiliate of the Catholic Diocese of Saginaw, it offers a warm Catholic culture to all residents, regardless of religion, race, or creed through daily Mass, daily rosary, Bible study and adoration of the Blessed Sacrament. As stated in the Mission Statement of St. Francis Home, the “primary goal is to get our residents into heaven.”
40. These entities, and many others that participate in the MCC Plan, may participate in the health-benefit programs that MCC offers for their lay employees and clergy.
41. Covered Units may allow their lay employees to participate in the MCC Plan, which consists of self-funded medical and prescription benefits administered by separate third party administrators, Blue Cross Blue Shield of Michigan and Express Scripts, respectively. Approximately 6,429 employees (10,374 lives) participate in this program.
42. Qualified priests may also participate in self-funded medical and prescription benefits under the MCC Plan, administered by the same third party administrators. Approximately 704 clergy throughout Michigan participate in this program.
43. The MCC Plan limits the benefits that may be offered under any of these programs. It expressly indicates that “in no event shall any benefit be provided which violates the tenets of the Catholic Church, including but not limited to expenses relating to sterilizations, abortions, and/or birth control devices.” Thus, none of the MCC Plan’s programs offer insurance coverage for abortion, sterilization, or contraceptive services.
44. The MCC Plan and its benefit programs do not meet the definition of a “grandfathered” plan. MCC has not included and does not include a statement in the MCC Plan materials provided to participants or beneficiaries informing them that it believes it is a grandfathered plan, as would be required to maintain the status of a grandfathered health plan. 26 C.F.R. § 54.9815-1251T(a)(2)(i).
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45. The MCC Plan lost its grandfathered status because the PPO benefit program increased the emergency room co-payment amount from $50 to $100, and increased the prescription co-payment amount for non-formulary brand name drugs from $30 to $50.
46. The plan year for the MCC Plan begins each year on January 1. C. Plaintiff Catholic Charities 47. Plaintiff Catholic Charities—a nonprofit subsidiary of, and integral entity within, the Diocese of Kalamazoo—is a corporation with a Board of Directors that oversees all major questions of finance, policy, and programming. Catholic Charities was established on a membership, non-stock basis, and the sole member is the Bishop of the Diocese of Kalamazoo, Michigan, Paul J. Bradley (“Diocesan Bishop”). Catholic Charities manages two related corporations, Catholic Family Services Non Profit Housing Corporation and Otsego Senior Apartments, Inc., d/b/a Baraga Manor Apartments, which are also separately incorporated from the Diocese. 48. Catholic Charities’ bylaws state in Article III, Section 3.1 that its “purpose . . . is related to the fulfillment of [its] Christian responsibility to the community at large,” and that the Diocesan Bishop’s approval is required for any policy or program adopted by Catholic Charities. Catholic Charities is therefore required to adhere to Catholic doctrine at all times and in all manners. 49. Catholic Charities seeks to provide human services, and to promote and restore wholesome family life by providing comprehensive social services and related activities to families, children and other individuals that make up the Diocese of Kalamazoo. As indicated in its Mission Statement: “[t]he mission of Catholic Family Services is to provide social services in the manner of Jesus Christ, with compassion, care and concern for justice to all people in need and to advocate for their welfare calling those of good will to assist in this mission in the Diocese
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of Kalamazoo.” Catholic Charities offers a range of programs to individuals in need without regard to their religion, for example, the Ark Shelter and the Caring Network,. The Ark Shelter serves homeless and runaway children by providing them temporary housing and counseling sessions and by helping them reunite with their families. The Caring Network offers assistance to pregnant and parenting women and their babies, including professional counseling services and transitional living apartments for the homeless.
50. Catholic Charities is a Covered Unit under the MCC Plan. 51. Catholic Charities’ approximately 55 employees are offered two options under the MCC Plan (Option 1 and Option 2), both of which comply with Catholic Church teachings on abortion-inducing products, sterilization services, contraceptives, and related counseling services. Specifically, abortion and sterilization are not covered. Contraceptives are not covered when prescribed for contraceptive purposes, but hormone therapies for non-contraceptive purposes are covered. 52. The MCC Plan offered to Catholic Charities’ employees does not meet the Affordable Care Act’s definition of a “grandfathered” plan. 53. The MCC Plan offered to Catholic Charities’ employees begins each year on January 1. II. STATUTORY AND REGULATORY BACKGROUND A. The Affordable Care Act 54. In March 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, “Affordable Care Act” or “Act”). The Act set many new requirements for “group health plan[s].” 42 U.S.C. § 300gg-91(a)(1).
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55. As relevant here, the Act requires an employer’s group health plan to cover certain women’s “preventive care” services. Specifically, it indicates that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” 42 U.S.C. § 300gg-13(a)(4). Because the Act prohibits “cost sharing requirements,” the health plan must pay for the full costs of these “preventive care” services without any deductible or co-payment.
56. Violations of the Affordable Care Act may subject an employer, an insurer, or a group health plan to substantial monetary penalties.
57. Federal law provides several mechanisms to enforce the requirements of the Act, including the Mandate. For example:
a. Under the Internal Revenue Code, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
b. Under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to a penalty of $100 a day per affected beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Affordable Care Act).
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c. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700.
d. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act).
e. Under the Public Health Service Act, the Secretary of HHS may impose a penalty of $100 a day per individual where an insurer fails to provide the required coverage. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); Cong. Research Serv., RL 7-5700.
58. The Act, in addition to other federal statutes, reflects a clear congressional intent that the agencies charged with identifying the required women’s “preventive care” services should exclude all abortion-related services. The Act provides that “nothing in this title (or any amendment made by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits.” 42 U.S.C. § 18023(b)(1)(A)(i). And the Act leaves it to “the issuer of a qualified health plan” “[to] determine whether or not the plan provides coverage of [abortion].” Id. § 18023(b)(1)(A)(ii).
59. Likewise, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, provides that “[n]one of the funds made available in this Act [to the Department of Labor and HHS] 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
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provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011).
60. The Act’s intent to exclude abortions was instrumental in its passage, as cemented by an Executive Order without which the Act would not have passed. The legislative history shows an intent to prohibit executive agencies from requiring group health plans to provide abortion-related services. The House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak from Michigan prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, did not contain the same provision. S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009).
61. To reconcile the different bills while avoiding a potential Senate filibuster, congressional proponents of the Act engaged in a procedure known as “budget reconciliation” that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members indicated that they would refuse to vote for the Senate version because it failed to adequately prohibit the use of federal funds for abortion services. In an attempt to address these concerns, President Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
62. The Act, therefore, was passed on the premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion and draft sensible conscience clauses.
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B. Regulatory Background – Defining “Preventive Care” And The Narrow Exemption
63. The Mandate subverts the Act’s clear purpose to protect the right of conscience and immediately prompted intense criticism and controversy. In response, the Government has undertaken various revisions. None of these revisions, however, alleviate the burden that the Mandate imposes on Plaintiffs’ religious beliefs. To the contrary, these revisions have resulted in a Final Rule that is significantly worse than the original one.
1. The Original Mandate 64. On July 19, 2010, Defendants issued interim final rules concerning the requirement that group health plans cover women’s “preventive care” services. Interim Final Rules, 75 Fed. Reg. at 41,726 (citing 42 U.S.C. § 300gg-13(a)(4)). Initially, the rules did not define “preventive care,” instead noting that “[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1, 2011.” Id. at 41,731. 65. As Defendants have conceded, they did not comply with the notice-and-comment requirements of the APA when determining what services to include within the meaning of “preventive care.” Id. at 41,730. Instead, HHS outsourced its deliberations to the Institute of Medicine (“IOM”), a non-governmental “independent” organization. The IOM in turn created a “Committee on Preventive Services for Women,” composed of sixteen members who were selected in secret without any public input. At least eight of the Committee members had founded, chaired, or worked with “pro-choice” advocacy groups (including five different Planned Parenthood entities) that have well-known political and ideological views, including strong animus toward Catholic teachings on contraception and abortion. 66. In developing the guidelines, the IOM Committee invited presentations from several “pro-choice” groups, such as Planned Parenthood and the Guttmacher Institute (named for
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a former president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for contraception, abortion, and sterilization. Instead, opponents were relegated to lining up for brief open-microphone sessions at the close of each meeting.
67. At the close of this process, on July 19, 2011, the IOM issued a final report recommending that “preventive care” for women be defined to include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity.” Inst. Of Med., Clinical Preventive Services for Women: Closing the Gaps,” (2011) (“IOM Report”) at 218-19.
68. The extreme bias of the IOM process spurred one member, Dr. Anthony Lo Sasso, to dissent from the final report, writing: “[T]he committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.” Id. at 232. The IOM did not adhere to the rules governing federal agencies, including the notice-and-comment rulemaking process.
69. At a press briefing the next day, the chairwoman of the IOM Committee fielded a question from the audience regarding the “coercive dynamic” of the Mandate, asking whether the Committee considered the “conscience rights” of those who would be forced to pay for coverage that they found objectionable on religious grounds. In response, the chairwoman illustrated her cavalier attitude toward the religious-liberty issue, stating bluntly: “[W]e did not take into account individual personal feelings.” Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women, Press Briefing Audio Webinar (July 20, 2011), available at http://www.iom.edu/Reports/2011/Clinical-Preventive-Services-for-Women-Closing-theGaps.aspx.
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70. Less than two weeks after the IOM Report, on August 1, 2011, HHS announced that it would adopt the IOM’s definition of “preventive care,” including all “FDA-approved contraception methods and contraceptive counseling.” See U.S. Dept. of Health and Human Services, “Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost,” available at www.hhs.gov/news/press/2011pres/08/20110801b.html (Ex. B). Again acting without notice-and-comment rulemaking, HHS announced these guidelines through a press release on its website rather than enactments in the Code of Federal Regulations or statement in the Federal Register.
71. Ignoring both the moral and ethical dimensions of the decision and the ideological bias of the IOM Committee, HHS stated that it had “relied on independent physicians, nurses, scientists, and other experts” to reach a definition that was “based on scientific evidence.”
72. This definition of “preventive care,” despite conflicting with the central compromise necessary for the Affordable Care Act’s passage and President Obama’s promise to protect religious conscience, requires group health plans to cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (Aug. 1, 2011), available at www.hrsa.gov/womens guidelines/ (Ex. C).
73. FDA-approved contraceptives that qualify under these guidelines include abortion-inducing products. For example, the FDA has approved “emergency contraceptives,” including the morning-after pill (otherwise known as Plan B) and Ulipristal (otherwise known as HRP 2000 or Ella). Both of these drugs can prevent an embryo from implanting in the womb. Plaintiffs believe, in accordance with the Catechism of the Catholic Church, that “[h]uman life
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must be respected and protected absolutely from the moment of conception.” Catechism of the Catholic Church ¶ 2270. Because these “emergency contraceptives” can prevent implantation of a fertilized egg, it is Plaintiffs’ sincerely held religious belief that these are abortion-inducing products. By forcing Plaintiffs to provide, pay for, and/or facilitate access to these services, the Mandate violates Plaintiffs’ sincerely held religious beliefs.
74. A few days later, on August 3, 2011, Defendants issued amendments to the interim final rules that they had previously enacted in July 2010. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3, 2011). Defendants crafted a narrow religious exemption from the Mandate for a small category of “religious employers” that met all of the following four criteria: “(1) The inculcation of religious values is the purpose of the organization”; “(2) The organization primarily employs persons who share the religious tenets of the organization”; “(3) The organization serves primarily persons who share the religious tenets of the organization”; and “(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. at 46,626 (codified at 45 C.F.R. § 147.130(a)(iv)(B)).
75. As the Government admitted, this narrow exemption was intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.” Id. at 46,623. It provided no protection for religious universities, elementary and secondary schools, hospitals, and charitable organizations.
76. The sweeping nature of the Mandate and the narrow religious-employer exemption were subject to widespread criticism. Numerous organizations expressed concerns that contraception, abortion-inducing products, and sterilization, could not be viewed as
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“preventive care.” They also explained that the exemption was “narrower than any conscience clause ever enacted in federal law, and narrower than the vast majority of religious exemptions from state contraceptive mandates.” Comments of United States Conference of Catholic Bishops (Aug. 31, 2011), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/ comments-to-hhs-on-preventive-services-2011-08.pdf (Ex. D).
77. Despite such pleas, the Government at first refused to reconsider its position. Instead, the Government “finalize[d], without change,” the narrow exemption as originally proposed. 77 Fed. Reg. 8,725, 8,729 (Feb. 15, 2012). At the same time, the Government announced that it would offer a “a one-year safe harbor from enforcement” for religious organizations that remained subject to the Mandate. Id. at 8,728. As noted by Cardinal Timothy Dolan, the “safe harbor” effectively gave religious groups “a year to figure out how to violate our consciences.”
78. A month later, under continuing public pressure, the Government issued an Advance Notice of Proposed Rulemaking (“ANPRM”) that, it claimed, set out a solution to the religious-liberty controversy. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The ANPRM reaffirmed the Government’s view that the “religious employer” exemption would not be changed. Id. at 16,501-08. Instead, the ANPRM offered hypothetical “possible approaches” that would, in the Government’s view, somehow solve the religious-liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507. Any semblance of relief offered by the ANPRM was illusory. Although it was designed to “create an appearance of moderation and compromise, it [did] not actually offer any change in the Administration’s earlier stated positions on mandated contraceptive coverage.” See Comments of U.S. Conference of Catholic Bishops, at 3 (May 15, 2012), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/
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comments-on-advance-notice-of-proposed-rulemaking-on-preventive-services-12-05-15.pdf (Ex. E).
2. MCC’s First Lawsuit And The Government’s Promises Of NonEnforcement
79. On May 21, 2012, Plaintiff MCC—along with Franciscan University in Steubenville, Ohio, which still retains a grandfathered health plan—filed suit in the U.S. District Court for the Southern District of Ohio seeking to enjoin the Mandate on the ground that, among other things, it violated their rights of religious conscience under RFRA and the First Amendment. See Franciscan University, et al v. Sebelius et al., No. 2:12-cv-00440 (S.D. Ohio) (May 21, 2012).
80. According to the Government, the ANPRM “confirm[ed] defendant’s intent, before the expiration of the safe harbor period, to propose and finalize additional amendments to the preventative services coverage regulations to further accommodate non-exempt, nongrandfathered religious organizations . . . .” Mem. in Supp. of Defs.’ Mot. to Dismiss (2:12-cv440, S.D. Ohio (Doc. No. 23-1)) at 2. Indeed, the Government assured the court that the ANPRM was just the beginning and that the finalized “religious employer” exemption “will establish alternative means of providing contraceptive coverage without cost-sharing while also accommodating non-exempt, non-grandfathered religious organizations’ religious objectives to covering contraceptive services.” Id. at 8 (citing 77 Fed. Reg. at 8,728 (Feb. 15, 2012)).
81. The Government conceded, however, that “[t]here is nothing to suggest that, if the amendment process does not alleviate plaintiffs’ concerns altogether, plaintiffs would not have an opportunity to present a legal challenge in a timely manner once there are regulations that are ripe for review. And even if plaintiffs’ worst fears were to somehow come to pass, plaintiffs could then seek preliminary injunctive relieve to preserve the status quo while the Court considers the
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merits of plaintiffs’ claims.” Defs.’ Reply in Support of their Mot. To Dismiss (2:12-cv-00440, S.D. Ohio (Doc. No. 35)) at 12.
82. Based on the Government’s representations, the district court on March 22, 2013 granted the Government’s motion to dismiss for lack of ripeness without prejudice to await the outcome of the ongoing rulemaking process. See Franciscan Univ., et al v. Sebelius et al. (2:12cv-00440, S.D. Ohio (Doc. No. 68)).
3. The Government’s Final Rule And The Empty Accommodation 83. On February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”), setting forth in further detail its proposal to “accommodate” the rights of Plaintiffs and other religious organizations. Contrary to the Government’s previous assurances that the ANPRM was just the beginning of the process, the NPRM simply adopted the proposals contained in the ANPRM. The NPRM was once again met with strenuous opposition, including over 400,000 comments. For example, the U.S. Conference of Catholic Bishops stated that “the ‘accommodation’ still requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage. Such organizations and their employees remain deprived of their right to live and work under a health plan consonant with their explicit religious beliefs and commitments.” Comments of U.S. Conference of Catholic Bishop, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRMComments-3-20-final.pdf (Ex. A). 84. Despite this opposition, on June 28, 2013, the Government issued the Final Rule that adopted substantially all of the NPRM’s proposal without significant change. See 78 Fed. Reg. 39,870 (July 2, 2013). 85. The Final Rule makes three changes to the Mandate, none of which relieve the unlawful burdens placed on Plaintiffs and other religious organizations. Indeed, one change
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significantly increases that burden by increasing the number of religious organizations subject to the Mandate.
86. First, the Final Rule makes a non-substantive, cosmetic change to the definition of “religious employer.” Under the new definition, an exempt “religious employer” is simply “an organization that is organized and operates as a nonprofit entity and is referred in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. at 39,874 (codified at 45 C.F.R. § 147.131(a)). As the Government has admitted, this new definition does “not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” 78 Fed. Reg. 8,456, 8,461 (Feb. 6, 2013). Instead, it continues to “restrict[]the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders.” Id. In this respect, the Final Rule mirrors the intended scope of the original “religious employer” exemption, which focused on “the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. at 46,623. Religious entities that have a broader mission are still not, in the Government’s view, “religious employers.”
87. The “religious employer” exemption, moreover, creates an official, Governmentfavored category of religious groups that are exempt from the Mandate, while denying this favorable treatment to all other religious groups. The exemption applies only to those groups that are “referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.” This category includes only (i) “churches, their integrated auxiliaries, and conventions or associations of churches,” and (iii) “the exclusively religious activities of any religious order.” The IRS has adopted an intrusive fourteen (14)-factor test to determine whether a group meets these qualifications. See Found. of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed.
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Cl. 2009). Among these fourteen (14) factors is whether the group has “a recognized creed and form of worship,” “a definite and distinct ecclesiastical government,” “a formal code of doctrine and discipline,” “a distinct religious history,” “an organization of ordained ministers” “a literature of its own,” “established places of worship,” “regular congregations, “regular religious services,” “Sunday schools for the religious instruction of the young,” and “schools for the preparation of its ministers.” Id. Not only do these factors favor some religious groups at the expense of others, but they also require the Government to make intrusive judgments regarding religious beliefs, practices, and organizational features to determine which groups fall into the favored category.
88. Second, the Final Rule establishes an illusory accommodation for any non-exempt objecting religious entity that qualifies as an “eligible organization” because it (1) “opposes providing coverage for some or all of [the] contraceptive services”; (2) is “organized and operated as a non-profit entity”; (3) “holds itself out as a religious organization”; (4) self-certifies that it meets the first three criteria; and (5) provides a copy of the self-certification either to its insurance company or, if the religious organization is self-insured, its third party administrator. 26 C.F.R. § 54.9815-2713A(a). Insurance issuers and third party administrators in receipt of this self-certification are required to provide, or arrange “payments for[,] contraceptive services” for the non-exempt organization’s employees without imposing any “cost-sharing requirements (such as a copayment, coinsurance, or a deductible).” Id. § 54.9815-2713A(b)(2), (c)(2). The objectionable coverage, moreover, is directly tied to the organization’s health plan, lasting only as long as the employee remains on that plan. See 29 C.F.R. § 2590.715-2713A; 45 C.F.R. § 147.131(c)(2)(i)(B). In addition, self-insured organizations are prohibited from “directly or
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indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure contraceptive services. 26 C.F.R. § 54.9815–2713A(b)(1)(iii).
89. This so-called “accommodation” fails to relieve the burden on religious organizations. Under the original version of the Mandate, a non-exempt religious organization’s decision to offer a group health plan resulted in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling. Under the Final Rule, a non-exempt religious organization’s decision to offer a group health plan still results in the provision of coverage—now in the form of “payments”—for abortion-inducing products, contraception, sterilization, and related counseling. Id. § 54.9816-2713A(b)-(c). In both scenarios, Plaintiffs’ decision to provide a group health plan triggers the provision of “free” contraceptive coverage to their employees in a manner contrary to their beliefs. The provision of the objectionable products and services are directly tied to Plaintiffs’ insurance policies, as the objectionable “payments” are available only so long as an employee is on the organization’s health plan. See 29 C.F.R. § 2590.715-2713A(d) (for self-insured employers, the third party administrator “will provide or arrange separate payments for contraceptive services . . . for so long as [employees] are enrolled in [their] group health plan”); 45 C.F.R. § 147.131(c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan”). For self-insured organizations, moreover, the self-certification constitutes the organization’s “designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (emphasis added). Thus, employer health plans offered by non-exempt religious organizations are the vehicle by which “free” abortion-inducing
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products, contraception, sterilization, and related counseling are delivered to the organizations’ employees.
90. No matter how Defendants may phrase it, it is beyond dispute that a non-exempt religious organization’s employees would be receiving contraceptive coverage by virtue of their participation in the MCC Plan.
91. Furthermore, insurers and third party administrators are required to notify plan participants and beneficiaries of the free contraceptive coverage. 26 C.F.R. § 54.9815-2713A(d). The model language provided by the government to use in the required notice makes it clear even to the employees of non-exempt religious organizations that they are receiving this coverage only because of their participation in the MCC Plan: “Your employer has certified that your group health plan qualifies for an accommodation . . . [and your third party administrator] will provide or arrange separate payments for contraceptive services that you use, without cost sharing and at no other cost, for so long as you are enrolled in your group health plan.” Id. (emphasis added).
92. Needless to say, this shell game does not address Plaintiffs’ fundamental religious objection to facilitating access to the objectionable products and services. As before, Plaintiffs are coerced, through threats of crippling fines and other pressure, into facilitating access to contraception, abortion-inducing products, sterilization, and related counseling for employees on their health plans, contrary to their sincerely held religious beliefs.
93. The so-called “accommodation,” moreover, requires Plaintiffs to cooperate in the provision of objectionable coverage in other ways as well. For example, in order to be eligible for the so-called “accommodation,” Plaintiffs must provide a “certification” to their insurance provider setting forth their religious objections to the Mandate. The provision of this “certification,” in turn, automatically triggers an obligation on the part of the insurance provider
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to provide Plaintiffs’ employees with the objectionable coverage. A religious organization’s self-certification, therefore, is a trigger and but-for cause of the objectionable coverage.
94. The Mandate also requires Plaintiffs to subsidize the objectionable products and services.
95. For self-insured organizations, the Government’s “cost-neutral” assumption is likewise implausible. The Government asserts that third party administrators required to provide or procure the objectionable products and services will be compensated by reductions in user fees that they otherwise would pay for participating in federally-facilitated health exchanges. See 78 Fed. Reg. at 39,882. Such fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third party administrators. Such regulatory regimes, however, do not fully compensate the regulatory entities for the costs and risks incurred. As a result, few if any third party administrators are likely to participate in this regime, and those that do are likely to increase fees charged to the self-insured organizations. The Government naively asserts that non-exempt religious organizations will not pay for such coverage; however, third party administrators can easily increase fees disguised for other purposes to recoup their costs.
96. Either way, as with insured plans, self-insured organizations likewise will be required to subsidize contraceptive products and services notwithstanding the so-called “accommodation.”
97. For all of these reasons, the Final Rule continues to require Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related education and counseling, in violation of their sincerely held religious beliefs.
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98. Third, the Final Rule increases the burden imposed upon religious organizations by significantly increasing the number of religious entities subject to the Mandate. Under the Government’s initial “religious employer” definition, if a non-exempt religious organization “provided health coverage for its employees through” a plan offered by a separate, “affiliated” organization that was “exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [non-exempt entity would be] required to offer contraceptive coverage to its employees.” 77 Fed. Reg. at 16,502.
99. For example, MCC administers the MCC Plan that covers not only its own employees and the seven Catholic Dioceses in Michigan, but also other affiliated Catholic organizations—including, among others, Plaintiff Catholic Charities (“non-exempt religious organizations). Under the religious-employer exemption that was originally proposed, if MCC were an exempt “religious employer,” the affiliated, but non-exempt, religious organizations received the benefit of that exemption, even if they could not meet the Government’s unprecedentedly narrow definition of “religious employer.”
100. The Final Rule eliminates this safeguard. Instead, it provides that “each employer” must “independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respect to its employees and their covered dependents.” See 78 Fed. Reg. at 8,467. Since these affiliated, but non-exempt, religious organizations do not meet the Government’s narrow definition of “religious employer” they are now subject to the Mandate and their participation in the MCC Plan will be frustrated.
101. Because there are non-exempt religious organizations participating as Covered Units in the MCC Plan, MCC is now required by the Mandate to do one of four things: (1) MCC,
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as the plan sponsor for the non-exempt organizations, may either provide the employees of these non-exempt organizations with a separate insurance policy that covers contraception, abortioninducing products, sterilization, and related counseling; (2) MCC may refuse to provide separate insurance and force non-exempt participating religious organizations to self-certify, which would force the MCC Plan’s third party administrator to provide the objectionable coverage; (3) MCC may refuse to comply with the Mandate and potentially face the onerous fines that come with non-compliance; or (4) MCC may expel non-exempt participating religious organizations from the MCC Plan, which is inconsistent with MCC’s purpose and simply passes the objectionable coverage issue on to another insurer or third party administrator.
102. The first and second options force MCC to act contrary to its sincerely held religious beliefs.
103. The third and fourth options not only make MCC complicit in the provision of objectionable coverage by forcing the non-exempt Covered Units out of the MCC Plan, but it also compels MCC to submit to the Government’s interference with its structure and internal operations by accepting a construct that divides churches from their ministries.
104. In this respect, the Mandate seeks to divide the Catholic Church. The Church’s faith in action, carried out through its charitable and educational arms, is every bit as central to the Church’s religious mission as is the administration of the Sacraments. In the words of Pope Benedict, “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Yet the Mandate seeks to separate these consubstantial aspects of the Catholic faith, treating one as “religious” and the other as not. The Mandate therefore deeply intrudes into internal Church governance.
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105. As with MCC, the covered non-exempt religious organizations, for example, Plaintiff Catholic Charities, are being forced to either violate their morals and the tenets of the Catholic church, or face monumental penalties for their failure to do so. The Government has left them with no choice but to either decline to self-certify (resulting in substantial fees under § 4980D), or drop coverage altogether (resulting in monstrous penalties under the Employer Shared Responsibility Mandate for applicable large employers).
106. In sum, the Final Rule not only fails to alleviate the burden that the Mandate imposes on Plaintiffs’ religious beliefs, but it in fact makes that burden significantly worse by increasing the number of religious organizations that are subject to the Mandate. The Mandate, therefore, requires Plaintiffs to act contrary to their sincerely held religious beliefs.
107. Accordingly, through administrative fiat, the Mandate imposes on the public that which has historically been rejected by the people, at both the state and federal level. In Congress, at least 21 bills have been introduced since 1997 to mandate prescription contraceptive coverage in private health plans. Yet not one of these bills, under the titles “Equity in Prescription Insurance and Contraceptive Coverage Act” or “Prevention First Act,” have ever been reported out of a Congressional committee. United States Conference of Catholic Bishops, Comments on the Interim Final Rule on Preventive Services CMS-9992-IFC2, at 4 (Aug. 31, 2011) (Ex. D). III. THE MANDATE, THE RELIGIOUS EMPLOYER EXEMPTION, AND THE
ACCOMMODATION VIOLATE PLAINTIFFS’ RELIGIOUS BELIEFS AND FEDERAL RIGHTS A. The Mandate Substantially Burdens Plaintiffs’ Religion 108. The Mandate violates Plaintiffs’ rights of conscience by forcing them to participate in an employer-based scheme to provide insurance coverage to which they strenuously object on religious grounds.
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109. It is a core tenet of Plaintiffs’ religion that contraception, abortion, and sterilization are serious moral wrongs.
110. Plaintiffs believe, in accordance with the Catechism of the Catholic Church, that the “dignity of the human person is rooted in his creation in the image and likeness of God,” Catechism of the Catholic Church ¶ 1700, and that “[h]uman life must be respected and protected absolutely from the moment of conception,” id. ¶ 2270. Therefore, Plaintiffs believe that abortion is “gravely contrary to the moral law.” Id. ¶ 2271.
111. Likewise, Plaintiffs adhere to traditional Catholic teachings on the nature and purpose of human sexuality. They believe, in accordance with the Catechism of the Catholic Church, that the sexual union of spouses “achieves the twofold end of marriage: the good of the spouses themselves and the transmission of life. These two meanings or values of marriage cannot be separated without altering the couple’s spiritual life and compromising the goods of marriage and the future of the family.” Id. ¶ 2363. Consequently, Plaintiffs believe that “every action,” including artificial contraception and sterilization, “which . . . proposes, whether as an end or as a means, to render procreation impossible is intrinsically evil.” Id. ¶ 2370.
112. Plaintiffs’ sincerely held religious beliefs treat contraception, abortion (including abortion-inducing products), and sterilization, as intrinsically immoral, and prohibit them from paying for, providing, and/or facilitating those practices.
113. As a corollary, Plaintiffs’ Catholic beliefs prohibit them from contracting with an insurance company or third party administrator that will, as a result, provide the objectionable coverage to Plaintiffs’ employees. Thus, Plaintiffs’ Catholic beliefs prohibit them from facilitating access to the objectionable products and services in the manner required by the Mandate.
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114. Plaintiffs have adhered to their religious beliefs and have ensured that their group health plans do not include coverage for prohibited contraception, abortion, sterilization, or related education and counseling.
115. The Mandate seeks to compel Plaintiffs’ to provide, pay for, and/or facilitate access to contraception, abortion-inducing products, and sterilization. It also seeks to compel Plaintiffs to fund related “patient education and counseling for [all] women with reproductive capacity.” IOM Report at 218-19 (2011).
116. The Mandate, therefore, requires Plaintiffs to do precisely what their sincerely held religious beliefs prohibit—provide, pay for, and/or facilitate access to objectionable products and services, or else incur crippling fines.
117. The Mandate therefore imposes a substantial burden on Plaintiffs’ religious beliefs.
118. The Mandate’s exemption for “religious employers” does not alleviate the burden. 119. The “religious employers” exemption does not apply to Plaintiff Catholic Charities. 120. Although Plaintiff MCC is an “integrated auxiliary” of a “religious employer,” the Mandate still burdens its sincerely held religious beliefs. MCC must therefore either (1) sponsor a plan that will provide Plaintiff Catholic Charities, and other non-exempt Catholic organizations, with access to the objectionable products and services; (2) sponsor a plan that will require the non-exempt organizations to self-certify and facilitate provision of the objectionable services; (3) sponsor a plan that will lead to onerous fines for non-exempt organizations that fail to selfcertify and facilitate provision of the objectionable services, see 77 Fed. Reg. at 16,502; or (4) expel these non-exempt organizations from MCC’s health insurance plans, thereby forcing
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expelled entities into an arrangement with another insurance provider that will, in turn, provide or procure the objectionable products and service.
121. This first alternative violates Plaintiff MCC’s sincerely held religious beliefs. 122. The second option constitutes a substantial burden on MCC’s religious beliefs by compelling MCC to submit to the government’s interference with its structure and internal operations by accepting a construct that divides churches from their ministries. 123. The third option is not financially feasible. 124. The fourth option also constitutes a substantial burden on MCC’s religious beliefs by compelling MCC to submit to the government’s interference with its structure and internal operations by accepting a construct that prevents it from ensuring that entities in Michigan do not provide the objectionable products and services. 125. Thus, the so-called “accommodation” does not alleviate the burden on Plaintiffs’ religious freedom. While the President claims to have “found a solution that works for everyone” and that ensures that “religious liberty will be protected,” his promised “accommodation” does neither. Unless and until this issue is definitively resolved, the Mandate does and will continue to impose a substantial burden on Plaintiffs’ religious beliefs. B. The Mandate Is Not A Neutral Law Of General Applicability 126. The Mandate is not a neutral law of general applicability. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for contraception, abortion-inducing products, sterilization, and related education and counseling. It was designed to target employers not offering the objectionable coverage because of religious beliefs. In no uncertain terms, this is a targeted attack on those beliefs. 127. The Mandate exempts “grandfathered” plans covering tens of millions of individuals from its requirements, thus excluding tens of millions of people from the mandated
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coverage. See 75 Fed. Reg. at 41,732 (“98 million individuals will be enrolled in grandfathered group health plans in 2013.”). Elsewhere, the government has put the number at 87 million. See “Keeping the Health Plan You Have” (June 14, 2010), available at http://www.healthcare. gov/news/factsheets/2010/06/keeping-the-health-plan-you-have-grandfathered.html (Ex. F) (“87 million” individuals will be enrolled in grandfathered group health plans in 2013); Newland v. Sebelius, 881 F. Supp. 2d 1287, 1291 (D. Colo. 2012) (“191 million Americans belong[ed] to plans which may be grandfathered under the ACA.”).
128. The Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the Internal Revenue Code. The Government cannot justify its protection of the religious-conscience rights of the narrow category of exempt “religious employers,” but not of other religious organizations that remain subject to the Mandate.
129. Employers that do not have health plans are exempt from compliance with the Act, including the Mandate, until January 1, 2015. U.S. Dep’t of Treasury, Treasury Notes, “Continuing to Implement the ACA in a Careful, Thoughtful Manner” (July 2, 2013) (Ex. G). Employers that already have health plans are, of course, not exempt and enforcement begins on January 1, 2014.
130. The Mandate was directed at religious organizations instead of creating a government program because its purpose is to attack moral objections to contraceptives and abortion-inducing products and services, including, in particular, the teachings of the Catholic Church. On October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long supported abortion rights and criticized Catholic teachings and beliefs regarding contraception and abortion. NARAL Pro-Choice America is a pro-abortion
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organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.” Transcript of Kathleen Sebelius Remarks at NARAL Luncheon (Oct. 5, 2011) (Ex. H) at 4-5. In addition, the Mandate was modeled on a California law that was motivated by discriminatory intent against religious groups that oppose contraception.
131. The purpose of the Mandate, including the deliberately narrow exemption, is to discriminate against religious organizations that oppose contraception and abortion.
C. The Mandate Is Not The Least Restrictive Means Of Furthering A Compelling Governmental Interest
132. The Mandate is not narrowly tailored to serve a compelling governmental interest. 133. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely held religious beliefs by requiring them to participate in a scheme for the provision of contraception, abortion-inducing products, sterilization, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. Nothing that Plaintiffs do inhibits any individual from exercising that right. 134. Even assuming the interest was compelling, the Government has numerous alternative means of furthering that interest without forcing Plaintiffs to violate their religious beliefs. For example, the Government could have created a program to provide the objectionable
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products and services. Or, at a minimum, it could have created a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
135. The Mandate, moreover, would simultaneously undermine both religious freedom—a fundamental right enshrined in the U.S. Constitution—and access to the wide variety of social and educational services that the non-exempt organizations that participate in the MCC Plan provide. As President Obama acknowledged in his announcement of February 10, 2012, religious organizations like these organizations do “more good for a community than a government program ever could.” The Mandate, however, puts these good works in jeopardy.
136. Plaintiffs seek a declaration that the Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. IV. THE MANDATE THREATENS PLAINTIFFS WITH IMMINENT INJURY
THAT SHOULD BE REMEDIED BY A COURT 137. The Mandate is causing serious, ongoing hardship to Plaintiffs that merits relief now. 138. On June 28, 2013, Defendants finalized the Mandate, including the narrow “religious employer” exemption and the so-called “accommodation” proposed in the NPRM. By the terms of the Final Rule, Plaintiffs must comply with the Mandate by the beginning of the next plan year. 139. For Plaintiffs, the next plan year begins on January 1, 2014. 140. Defendants have given no indication that they will not enforce the provisions of the Mandate that impose a substantial burden on Plaintiffs’ rights. Consequently, absent the relief sought herein, Plaintiffs will be required to provide, pay for, and/or facilitate access to
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contraception, abortion-inducing products, sterilization, and related education and counseling, in violation of their sincerely held religious beliefs.
141. Further, Plaintiffs are presently being injured by the Mandate in numerous other ways.
142. Plaintiffs need to know whether they will be forced to comply with the Mandate now, rather than days before the end of the temporary safe harbor. The Government issued press releases and rules that constitute the Mandate without notice-and-comment rulemaking precisely because the “requirements in [those provisions] require significant lead time in order to implement.” 75 Fed. Reg. at 41,730.
143. Health plans do not take shape overnight. A number of analyses, negotiations, and decisions must occur each year before Plaintiffs can offer a health benefits package to their employees. For example, Plaintiff MCC—after consulting with its actuaries—must similarly negotiate with its third party administrator.
144. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year at least one year before the plan year begins. The multiple levels of uncertainty surrounding the Mandate make this already lengthy process even more complex.
145. In addition, if Plaintiffs do not comply with the Mandate, they may be subject to government fines and penalties. Plaintiffs require time to budget for any such additional expenses.
146. The Mandate and its uncertain legality, moreover, undermine Plaintiffs’ ability to hire and retain employees.
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147. Plaintiffs thus need an immediate declaration of rights concerning their legal status and the legal status of the many other Catholic organizations that obtain insurance under the MCC Plan. V. CAUSES OF ACTION
COUNT I Substantial Burden on Religious Exercise
in Violation of RFRA 148. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 149. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 150. RFRA protects organizations as well as individuals from government-imposed substantial burdens on religious exercise. 151. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 152. The Mandate requires Plaintiffs’ group health plans to provide, pay for, and/or facilitate products and services that are contrary to their religious beliefs. 153. The Mandate substantially burdens Plaintiffs’ exercise of religion. 154. The Government has no compelling governmental interest to require Plaintiffs to comply with the Mandate. 155. Requiring Plaintiffs to comply with the Mandate is not the least restrictive means of furthering a compelling governmental interest. 156. By enacting and threatening to enforce the Mandate against Plaintiffs, Defendants have violated RFRA.
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157. Plaintiffs have no adequate remedy at law. 158. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 159. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 160. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 161. The Free Exercise Clause protects organizations as well as individuals from government-imposed burdens on religious exercise. 162. The Mandate requires Plaintiffs to provide, pay for, and/or facilitate services that are contrary to their religious beliefs. 163. The Mandate substantially burdens Plaintiffs’ exercise of religion. 164. The Mandate is not a neutral law of general applicability, because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for contraception, abortion-inducing products, sterilization, and related education and counseling. 165. The Mandate is not a neutral law of general applicability because it was passed with discriminatory intent. 166. The Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech, free association, freedom from excessive government entanglement with religion.
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167. The Government has no compelling governmental interest to require Plaintiffs to comply with the Mandate.
168. The Mandate is not narrowly tailored to further a compelling governmental interest.
169. By enacting and threatening to enforce the Mandate, the Government has burdened Plaintiffs’ religious exercise in violation of the Free Exercise Clause of the First Amendment.
170. Plaintiffs have no adequate remedy at law. 171. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III Compelled Speech in Violation of the Free Speech Clause of the First Amendment 172. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 173. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 174. The First Amendment protects organizations as well as individuals against compelled speech. 175. Expenditures are a form of speech protected by the First Amendment. 176. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious beliefs. 177. The Mandate would compel Plaintiffs to provide health care plans to their employees that include or facilitate access to products and services that violate their religious beliefs.
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178. The Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these objectionable products and services.
179. The Mandate would compel Plaintiffs to issue a certification of its beliefs that, in turn, would result in the provision of objectionable products and services to Plaintiffs’ employees.
180. By imposing the Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs, and compelling Plaintiffs to engage in speech that will result in the provision of objectionable products and services to Plaintiffs’ employees.
181. The Mandate is viewpoint-discriminatory and subject to strict scrutiny. 182. The Mandate furthers no compelling governmental interest. 183. The Mandate is not narrowly tailored to further a compelling governmental interest. 184. Plaintiffs have no adequate remedy at law. 185. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV Prohibition of Speech in Violation of the First Amendment 186. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 187. The First Amendment protects the freedom of speech, including the right of religious groups to speak out to persuade others to refrain from engaging in conduct that may be considered immoral. 188. The Mandate violates the First Amendment freedom of speech by imposing a gag order that prohibits Plaintiffs from speaking out in any way that might “influence,” “directly or
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indirectly,” the decision of a third party administrator to provide or procure contraceptive products and services to Plaintiffs’ employees.
189. Plaintiffs have no adequate remedy at law. 190. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V Official “Church” Favoritism and Excessive Entanglement with Religion
in Violation of the Establishment Clause of the First Amendment 191. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 192. The Establishment Clause of the First Amendment prohibits the Government from adopting an official definition of a “religious employer” that favors some religious groups while excluding others. 193. The Establishment Clause also prohibits the Government from becoming excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices, and organizational features to determine whether they meet the Government’s favored definition. 194. The “religious employer” exemption violates the Establishment Clause in two ways. 195. First, it favors some religious groups over others by creating an official definition of “religious employers.” Religious groups that meet the Government’s official definition receive favorable treatment in the form of an exemption from the Mandate, while other religious groups do not. 196. Second, even if it were permissible for the Government to favor some religious groups over others, the “religious employer” exemption would still violate the Establishment Clause because it requires the Government to determine whether groups qualify as “religious employers” based on intrusive judgments about their beliefs, practices, and organizational
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features. The exemption turns on an intrusive fourteen (14)-factor test to determine whether a group meets the requirements of section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. These fourteen (14) factors probe into matters such as whether a religious group has “a distinct religious history” or “a recognized creed and form of worship.” But it is not the Government’s place to determine whether a group’s religious history is “distinct,” or whether the group’s “creed and form of worship” are “recognized.” By directing the Government to partake of such inquiries, the “religious employer” exemption runs afoul of the Establishment Clause prohibition on excessive entanglement with religion.
197. Plaintiffs have no adequate remedy at law. 198. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Interference in Matters of Internal Church Governance in Violation of
the Religion Clauses of the First Amendment 199. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 200. The Free Exercise Clause and Establishment Clause and RFRA protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. 201. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s structure, ministers, or doctrine. 202. Under these Clauses, the Government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself. 203. Plaintiffs are religious organizations affiliated with the Roman Catholic Church.
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204. The Catholic Church views contraception, abortion, and sterilization as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices.
205. Plaintiffs have abided, and continue to abide by, the decision of the Catholic Church on these issues.
206. The Government may not interfere with, or otherwise question, the final decision of the Catholic Church that its religious organizations must abide by these views.
207. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate abortion, sterilization, or contraception.
208. The seven Dioceses in Michigan have further made the internal decision that their affiliated religious entities, including Plaintiff Catholic Charities, should offer their employees health-insurance coverage through the MCC Plan, which allows the Dioceses to ensure that these affiliates do not offer coverage for services that are contrary to Catholic teaching.
209. The Mandate interferes with Plaintiffs’ internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic beliefs.
210. The Mandate’s interference with Plaintiffs’ internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
211. Because the Mandate interferes with the internal decision-making of Plaintiffs in a manner that affects Plaintiffs’ faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment and the RFRA.
212. Plaintiffs have no adequate remedy at law.
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213. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Failure to Conduct Notice-and-Comment Rulemaking in Violation of the APA 214. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 215. The Affordable Care Act expressly delegates to an agency within HHS, the Health Resources and Services Administration, the authority to establish guidelines concerning the “preventive care” that a group health plan and health insurance issuer must provide. 216. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments. 217. Defendants promulgated the “preventive care” guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law. 218. Defendants, instead, wholly delegated their responsibilities for issuing preventive care guidelines to a non-governmental entity, the IOM. 219. The IOM did not permit or provide for the broad public comment otherwise allowed under the APA concerning the guidelines that it would recommend. The dissent to the IOM report noted both that the IOM conducted its review in an unacceptably short time frame, and that the review process lacked transparency. 220. Within two weeks of the IOM issuing its guidelines, HHS issued a press release announcing that the IOM’s guidelines were required under the Affordable Care Act.
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221. Defendants have never indicated reasons for failing to enact the “preventive care” guidelines through notice-and-comment rulemaking as required by the APA.
222. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
223. Plaintiffs have no adequate remedy at law. 224. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VIII Illegal Action in Violation of the APA 225. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 226. The APA condemns agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 227. The Mandate, its exemption for “religious employers,” and its so-called “accommodation” for “eligible” religious organizations are illegal and therefore in violation of the APA. 228. The Weldon Amendment states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). 229. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans
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that include coverage for abortion-inducing products, sterilization, contraception, or related education and counseling should be required to provide such plans.
230. The Mandate nevertheless requires employer-based health plans to provide coverage for abortion-inducing products, contraception, sterilization, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the [Weldon Amendment] requires. By issuing the Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
231. The Mandate violates the Weldon Amendment, RFRA, and the First Amendment. 232. The Mandate therefore is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 233. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 234. Plaintiffs have no adequate remedy at law. 235. Defendants’ failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
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Case 1:13-cv-01247-GJQ Doc #1 Filed 11/14/13 Page 51 of 53 Page ID#51 WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the Mandate violates Plaintiffs’ rights under RFRA; 2. Enter a declaratory judgment that the Mandate violates Plaintiffs’ rights under the First Amendment; 3. Enter a declaratory judgment that the Mandate was promulgated in violation of the APA; 4. Enter an injunction prohibiting the Defendants from enforcing the Mandate against Plaintiffs; 5. Enter an order vacating the Mandate; 6. Award Plaintiffs attorney’s and expert fees under 42 U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper.
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 Case 1:13-cv-01247-GJQ Doc #9 Filed 11/20/13 Page 1 of 4 Page ID#245

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

MICHIGAN CATHOLIC CONFERENCE, et al.,
Plaintiffs, v.
KATHLEEN SEBELIUS, et al.,
Defendants.

)

)

) )

Case No.: 1:13-cv-01247

) )

The Honorable Gordon J. Quist

) )

Electronically Filed

)

)

)

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND REQUEST FOR ORAL ARGUMENT

Pursuant to Federal Rule of Civil Procedure 65 and Local Civil Rule 7.2, Plaintiffs

hereby move for preliminary injunctive relief, without bond, enjoining Defendants from

continuing to require Plaintiffs to provide coverage for contraception, abortion-inducing

products, sterilization, and related counseling in their employee health plans.

A preliminary injunction is justified, as discussed in Plaintiffs’ accompanying Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction1, because

(1) Plaintiffs have a strong likelihood of success on the merits of their claims; (2) Plaintiffs are

suffering a continuing, irreparable harm in the absence of preliminary relief; (3) an injunction

will not cause substantial harm to others, including Defendants; and (4) an injunction furthers the

public interest. Accordingly, Plaintiffs respectfully move this Court to issue a preliminary

injunction in the form of the Proposed Order attached to this motion.

1 Plaintiffs’ Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction is to be filed pending the Court’s ruling on Plaintiffs’ Motion to File Excess Pages for Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction.

Case 1:13-cv-01247-GJQ Doc #9 Filed 11/20/13 Page 2 of 4 Page ID#246 Plaintiffs also request oral argument on this motion, which involves important and
complicated issues of constitutional and statutory law.
COI-1498736
2

Case 1:13-cv-01247-GJQ Doc #9 Filed 11/20/13 Page 3 of 4 Page ID#247
Respectfully submitted, this 20th day of November, 2013.
By: /s/ Matthew A. Kairis Matthew A. Kairis (OH No. 55502) JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus, OH 43216 (614) 469-3939
Paula Batt Wilson (0065421) Jennifer Flannery (0078651) JONES DAY North Point 901 Lakeside Avenue Cleveland, OH 44114-1190 (216) 586-3939
*Alison M. Kilmartin (PA No. 306422) JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 (412) 391-3939
Counsel for Plaintiffs * pending pro hac vice
Thomas P. Van Dusen (P30602) Rebecca D’Arcy O’Reilly (P70645) BODMAN PLC 6th Floor at Ford Field 1901 St. Antoine Street Detroit, MI 48226 (313) 259-7777
Counsel for Michigan Catholic Conference
Edward J. Bardelli (P53849) Ian R. Kennedy (P67775) WARNER NORCROSS & JUDD LLP 259 E. Michigan Ave., Suite 208 Kalamazoo, MI 49007 (269) 552-3411
Counsel for Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo
COI-1498736

Case 1:13-cv-01247-GJQ Doc #9 Filed 11/20/13 Page 4 of 4 Page ID#248

CERTIFICATE OF SERVICE

I hereby certify that on November 20, 2013, I electronically filed the foregoing Plaintiffs’

Motion for Preliminary Injunction and Request for Oral Argument with the Clerk of the United

States District Court for the Western District of Michigan using the CM/ECF system and mailed

the foregoing by first class mail via the United States Postal Service to the following:

Kathleen Sebelius, Secretary U.S. Department of Health & Human Services 200 Independence Ave., S.W. Washington, D.C. 20201

U.S. Department of Health & Human Services 200 Independence Ave., S.W. Washington, D.C. 20201

Thomas Perez, Secretary U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210

U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210

Jacob J. Lew, Secretary U.S. Department of Treasury 1500 Pennsylvania Ave., N.W. Washington, D.C. 20220

U.S. Department of Treasury 1500 Pennsylvania Ave., N.W. Washington, D.C. 20220

Office of the Attorney General U.S. Department of Justice 10th & Pennsylvania Ave., N.W. Washington, D.C. 20530

United States Attorney 5th Floor Law Bldg. 330 Ionia Ave., N.W. Grand Rapids, MI 49503

/s/ Matthew A. Kairis Matthew A. Kairis Counsel for Plaintiffs

COI-1498736

Case 1:13-cv-01247-GJQ Doc #9-1 Filed 11/20/13 Page 1 of 2 Page ID#249

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

MICHIGAN CATHOLIC CONFERENCE, et al.,
Plaintiffs, v.
KATHLEEN SEBELIUS, et al.,
Defendants.

) ) ) Case No.: 1:13-cv-01247 ) ) The Honorable Gordon J. Quist ) ) Electronically Filed ) ) ) )

ORDER

Plaintiffs moved for a preliminary injunction to enjoin Defendants from applying and

enforcing 45 C.F.R. § 147.130(a)(1)(iv) and any related fines or penalties to Plaintiffs and their

employee health plans.

After duly considering the parties’ respective briefing, the Court HEREBY FINDS as

follows.

1. Plaintiffs are likely to succeed on the merits of their claims that the imposition of

45 C.F.R. § 147.130(a)(1)(iv) on Plaintiffs violates the Religious Freedom Restoration Act

(“RFRA”), 42 U.S.C. § 2000bb et seq., and the Free Exercise and Free Speech Clauses of the

First Amendment, and the Administrative Procedure Act, 42 U.S.C. § 18118(c).

2. Plaintiffs will suffer irreparable harm in the absence of the preliminary injunctive

relief they request.

3. There will be no substantial harm to others, including Defendants, from granting

the preliminary injunction.

4. Granting preliminary injunctive relief is in the public interest.

Case 1:13-cv-01247-GJQ Doc #9-1 Filed 11/20/13 Page 2 of 2 Page ID#250
Further, the Court HEREBY ORDERS that Defendants are ENJOINED FROM any application or enforcement against
x Plaintiff Michigan Catholic Conference or the Michigan Catholic Conference Second Amended and Restated Group Health Benefit Plan for Employees (“MCC Plan”) or its Covered Units as defined in the MCC Plan, insurer(s) or third party administrator(s); and
x Plaintiff Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo or its employee health plan or its third party administrator
of the requirement under 45 C.F.R. § 147.130(a)(1)(iv), corresponding Guidelines, and corresponding press releases that Plaintiffs provide coverage for FDA-approved contraceptive methods, abortion-inducing drugs, sterilization procedures, and patient education and counseling, including the substantive requirement imposed in 42 U.S.C. § 300gg-13(a)(4).
The Court FURTHER ORDERS as follows: 1. Plaintiffs shall not be required to post bond.
DONE this ____ day of _____________________, 2013.
BY THE COURT _______________________________________ United States District Court Judge

 
 Case 1:13-cv-01247-GJQ Doc #15 Filed 11/27/13 Page 1 of 62 Page ID#592

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

MICHIGAN CATHOLIC CONFERENCE, et al.,
Plaintiffs, v.
KATHLEEN SEBELIUS, et al.,
Defendants.

) ) ) ) Case No.: 1:13-cv-01247 ) ) The Honorable Gordon J. Quist ) ) Electronically Filed ) ) )

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND REQUEST FOR ORAL ARGUMENT

Case 1:13-cv-01247-GJQ Doc #15 Filed 11/27/13 Page 2 of 62 Page ID#593
TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................................................... 1 BACKGROUND ........................................................................................................................... 4
I. STATUTORY AND REGULATORY BACKGROUND..................................... 4 II. PLAINTIFFS’ BACKGROUND........................................................................... 9 ARGUMENT ............................................................................................................................... 12 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS....................... 13
A. The Mandate Violates RFRA................................................................... 14 (1) The Mandate Substantially Burdens Plaintiffs’ Exercise Of Religion........................................................................................ 16 (i) “Exercise Of Religion” .................................................... 16 (ii) “Substantial Burden” ....................................................... 23 (2) The Government Cannot Demonstrate That The Mandate Furthers A Compelling Government Interest .............................. 26 (3) The Government Cannot Demonstrate That The Mandate Is The Least Restrictive Means To Achieve Its Asserted Interests ........................................................................................ 30
B. The Mandate Violates The Free Exercise Clause .................................... 32 C. The Mandate Violates The First Amendment Protection Against
Compelled Speech ................................................................................... 36 D. The Mandate Imposes A Gag Order That Violates The First
Amendment Protection Of Free Speech .................................................. 37 E. The “Religious Employer” Exemption Violates The Establishment
Clause....................................................................................................... 38 (1) Discrimination Among Religious Groups ................................... 39 (2) Excessive Entanglement .............................................................. 40 F. The Mandate Unconstitutionally Interferes With Plaintiffs’ Rights Of Internal Church Governance............................................................... 42 G. The Mandate Is Contrary to Law And Thus Invalid Under The APA.......................................................................................................... 44 II. PLAINTIFFS ARE SUFFERING ONGOING IRREPARABLE HARM ........... 45 III. THE GOVERNMENT WILL SUFFER NO SUBSTANTIAL HARM FROM A PRELIMINARY INJUNCTION .......................................................... 48 IV. GRANTING A PRELIMINARY INJUNCTION WILL SERVE THE PUBLIC INTEREST ............................................................................................ 49 CONCLUSION............................................................................................................................ 50
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TABLE OF AUTHORITIES
Page CASES
Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S.Ct. 2321 (2013) ..............................................................................................................36
Agostini v. Felton, 521 U.S. 203 (1997).................................................................................................................40
Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012) ...................................................................................................46
Am. Pulverizer Co. v. HHS, No. 12-cv-3459, 2012 WL 6951316 (W.D. Mo. Dec. 20, 2012).............................................15
Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013) ..................................15, 26
Beckwith v. Sebelius, No. 8:13-cv-0648-T-17MAP, slip op. (M.D. Fla. June 25, 2013) ...........................................30
Bick Holding, Inc. v. Sebelius, No. 4:13-cv-00462 (E.D. Mo. Apr. 1, 2013) .....................................................................15, 49
Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) .......................................................................................................29, 30
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)......................................................................................................... passim
Church of the Visible Intelligence v. United States, 4 Cl. Ct. 55 (1983) ...................................................................................................................41
Cohen v. California, 403 U.S. 15 (1971)...................................................................................................................38
Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .............................................................................................. 39
Cutter v. Wilkinson, 544 U.S. 709 (2005).................................................................................................................18
Dunn v. Blumstein, 405 U.S. 330 (1972).................................................................................................................30
Elrod v. Burns, 427 U.S. 347 (1976).................................................................................................................45
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TABLE OF AUTHORITIES (Cont’d.)

Page

Employment Div. v. Smith, 494 U.S. 872 (1990)...............................................................................................15, 17, 32, 35

Evergreen Ass’n v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011)......................................................................................37

Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) .............................................................................................................31

Flower Cab Co. v. Petitte, 685 F.2d 192 (7th Cir. 1982) ...................................................................................................46

Found. of Human Understanding v. United States, 88 Fed. Cl. 203 (Fed. Cl. 2009) ...............................................................................................41

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999).....................................................................................................33

Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 30265 (W.D. Pa. Mar. 6, 2013), injunction granted 2013 U.S. Dist. LEXIS 85107 (W.D. Pa. June 18, 2013) ................. passim

Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 56087 (W.D. Pa. Apr. 19, 2013) .......................49

Gilardi v. HHS, No. 13-5069, 2013 WL 5854246 (D.C. Cir. Nov. 1, 2013)………………….…..20, 26, 27, 29

Gonzales v. O Centro Espírita Beneficente União Do Vegetal, 546 U.S. 418 (2006)...............................................................................................15, 20, 21, 23

Grutter v. Bollinger, 539 U.S. 306 (2003)...........................................................................................................31, 32

Hall v. Sebelius, No. 13-00295 (D. Minn. Apr. 2, 2013) ..............................................................................15, 48

Hartenbower v. HHS, No. 1:13-cv-2253 (N.D. Ill. Apr. 18, 2013) .............................................................................15

Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) ...................................................................................................19

Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2013 WL 3216103 (10th Cir. June 27, 2013) (en banc)............................ passim

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TABLE OF AUTHORITIES (Cont’d.)

Page

Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004) .................................................................................................31

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S.Ct. 694 (2012) ................................................................................................................42

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557 (1995).................................................................................................................36

In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir. 1985)…………..…………………………………………………...12

In re Eagle-Picher Industries, Inc., 963 F.2d 855 (6th Cir. 1992) ...................................................................................................12

Int’l Resources v. N.Y. Life Ins. Co., 950 F.2d 294 (6th Cir. 1991) ...................................................................................................12

Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).................................................................................................17, 47

Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) .....................................................................................19, 23, 31

Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008) ...................................................................................................16

Korte v. Sebelius, Nos. 12-3841, 13-1077, 2013 WL 5960692 (7th Cir. Nov. 8, 2013).... .......................15, 25,31

Larson v. Valente, 456 U.S. 228 (1982).................................................................................................................39

Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) ...............................................15

Lindsay v. HHS, No. 13-1210 (N.D. Ill. Mar. 20, 2013).....................................................................................15

Mitchell v. Helms, 530 U.S. 793 (2000).................................................................................................................10

Monaghan v. Sebelius, No. 12-15488, 2013 WL 1014026 (E.D. Mich. Mar. 14, 2013) ..............................................15

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TABLE OF AUTHORITIES (Cont’d.)

Page

Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009) ...................................................................................................17

New York Times Co. v. Sullivan, 376 U.S. 254 (1964).................................................................................................................38

New York v. Cathedral Acad., 434 U.S. 125 (1977).................................................................................................................42

Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012)............................................................................. passim

NLRB v. Catholic Bishop of Chi., 440 U.S. 490 (1979).................................................................................................................40

O Centro Espirita Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004), aff’d 546 U.S. 418 (2006) ......................................................45

O’Brien v. HHS, No. 12Ǧ3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012) .............................15, 26

Patrick v. LeFevre, 745 F.2d 153 (2d Cir, 1984).....................................................................................................17

R.J. Reynolds Tobacco Co., et al., v. FDA, No. 11-5332 (D.C. Cir. Aug. 24, 2012) ...................................................................................36

Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47 (2006)...................................................................................................................36

Sharpe Holdings, Inc. v. HHS, No. 2:12-cv-00092 (E.D. Mo. Mar. 11, 2013) ...................................................................15, 48

Sharpe Holdings, Inc. v. HHS, No. 2:12-cv-92, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) .........................................15, 48

Sherbert v. Verner, 374 U.S. 398 (1963)...........................................................................................................14, 31

Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105 (1991).................................................................................................................38

Sioux Chief Mfg. Co. v. Sebelius, No. 4:13-cv-0036 (W.D. Mo. Feb. 28, 2013) ....................................................................15, 48

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TABLE OF AUTHORITIES (Cont’d.)

Page

Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011), aff’d 722 F.3d 184 (4th Cir. 2013) (en banc) ................37

Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981)......................................................................................................... passim

Tonn & Blank Constr., LLC v. Sebelius, No. 1:12-cv-00325 (N.D. Ind. Apr. 1, 2013) ...........................................................................15

Triune Health Grp., Inc. v. HHS, No. 12-6756 (N.D. Ill. Jan. 3, 2013) ........................................................................................15

Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012) ........................................................................15, 26,28, 45

United States v. Ali, 682 F.3d 705 (8th Cir. 2012) ...................................................................................................17

United States v. Lee, 455 U.S. 252 (1982).................................................................................................................17

United States v. Seeger, 380 U.S. 163 (1965).................................................................................................................17

United States v. United Foods, Inc., 533 U.S. 405 (2001).................................................................................................................36

Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) .........................................................................................39, 40

Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ...................................................................................................31

Washington v. Klem, 497 F.3d 272 (3d Cir. 2007).....................................................................................................31

Wisconsin v. Yoder, 406 U.S. 205 (1972)......................................................................................................... passim

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TABLE OF AUTHORITIES (Cont’d.)

Page

STATUTES

5 U.S.C. § 706(2)(A)......................................................................................................................44

26 U.S.C. § 4980D .....................................................................................................................4, 24

26 U.S.C. § 4980H .........................................................................................................................24

42 U.S.C. § 300gg-13 ......................................................................................................................4

42 U.S.C. § 2000bb.........................................................................................................2,14, 16, 30

42 U.S.C. § 18011............................................................................................................................4

Consol. Approp. Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011)…………………………………………………………….…… 44

Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010)...............4

OTHER AUTHORITIES

First Amendment ................................................................................................................... passim

26 C.F.R. § 54.9815-1251T(g)(1)(v) ................................................................................4, 5, 8 , 21

45 C.F.R. § 147.130 ............................................................................................................... passim

26 C.F.R. § 54.9815–2713A .................................................................................................. passim

45 C.F.R. § 147.131 .......................................................................................................................20

75 Fed. Reg. 41,726 (July 19, 2010)..............................................................................................29

76 Fed. Reg. 46,621 (Aug. 3, 2011).................................................................................................5

77 Fed. Reg. 8,725 (Feb. 15, 2012) .................................................................................................5

77 Fed. Reg. 16,501 (Mar. 21, 2012)...............................................................................................5

78 Fed. Reg. 8,456 (Feb. 6, 2013) ......................................................................................... passim

78 Fed. Reg. 39,870 (July 2, 2013)........................................................................................ passim

Carl H. Esbeck, Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 WASH. & LEE L. REV. 347 (1984) ..............................................40

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TABLE OF AUTHORITIES (Cont’d.)

Page

Helen M. Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 VILL. L. REV. 379 (2013)....................................................................................30

The Religious Freedom Restoration Act: Hearing on S. 2969 Before the S. Comm. On the Judiciary, 102d Cong., 174 (1992)…………………………………………………..............15

139 Cong. Rec. 9,685 (1993) .........................................................................................................15

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Ex. A Ex. B
Ex. C Ex. D Ex. E
Ex. F Ex. G Ex. H Ex. I
Ex. J
Ex. K
Ex. L Ex. M Ex. N

TABLE OF EXHIBITS
HRSA, Women’s Preventive Services Guidelines
WhiteHouse.Gov, The Affordable Care Act Increases Choice and Saving Money for Small Business
Comments of U.S. Conf. of Catholic Bishops (May 15, 2012)
Comments of U.S. Conf. of Catholic Bishops (Mar. 20, 2013)
Public Comments and Expert Opinion submitted by the Roman Catholic Diocese of Pittsburgh (Apr. 8, 2013)
Declaration of Paul A. Long
Declaration of Frances H. Denny MBA, MSW, LMSW, ACSW
Declaration of the Most Rev. Michael Byrnes, S.T.D.
HHS.gov, U.S. Departments of Health and Human Services, Labor, and Treasury Issue Regulation on ‘Grandfathered’ Health Plans [U]nder the Affordable Care Act (June 14, 2010)
HHS.gov, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012)
Helen M. Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 VILL. L. REV. 379 (2013)
Transcript of Kathleen Sebelius Remarks at NARAL Luncheon (Oct. 5, 2011)
Editorial, Act of Tyranny, WASH. TIMES, Mar. 5, 2004
USCCB’s Papal Visit Blog, “Benedict XVI’s Plea: Put the Poor at the Heart of Catholic Life” (Mar. 25, 2008)

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INTRODUCTION Plaintiffs are Roman Catholic institutions and, as such, believe that life begins at conception and that artificial interference with life and conception is immoral. Accordingly, Plaintiffs believe that they may not provide, pay for, and/or facilitate access to abortion, sterilization, or artificial contraception. The Government has promulgated regulations that coerce Plaintiffs to violate this sincerely held religious belief by requiring them, under threat of punitive fines, to provide their employees access to abortion-inducing products, sterilization, contraceptives, and related counseling (the “objectionable services”). See 45 C.F.R. § 147.130(a)(1)(iv) (the “Mandate”). The intitial version of the Mandate was met with strong criticism from the religious community and lawsuits brought by many religious organizations, including Plaintiff Michigan Catholic Conference (“MCC”). MCC’s first lawsuit was dismissed on ripeness grounds when the Government announced that it was revising the exemptions to the Mandate in response to concerns about infringing on First Amendment freedoms. However, the exemption in the final version of the Mandate (“Final Rule”) is even more problematic because it narrowly defines “religious employers” as “houses of worship and religious orders,” excluding Catholic charitable, education, and other organizations—for example, Plaintiff Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo (“Catholic Charities”). The Mandate’s narrow definition of religious employer artificially divides the Catholic Church into two wings: a “worship” wing that provides religious services, and a “charitable” wing that provides what the Government views as secular services. But this artificial distinction ignores the reality that organizations in the Catholic Church, like Catholic Charities, engage in charity and social welfare services as an exercise of religion. By excluding charitable and
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service organizations from the definition for exempt “religious employers,” the Mandate forces the heart of the Catholic Church to act contrary to its sincerely held religious beliefs.
The Final Rule added a so-called “accommodation” for non-exempt employers, but it does nothing to address the objections raised by religious institutions falling outside of the narrow definition of “religious employer.” On its face, the “accommodation” shifts the cost of the objectionable coverage away from employers with religious objections, but, significantly, it still (1) mandates provision of that coverage for employees by virtue of their participation in the objecting employer’s benefit plan, and (2) does nothing to prevent third parties compelled to provide the objectionable services from shifting the cost back to the employer under a different label and from using the employer’s money to pay for the objectionable services. Put simply, the “accommodation” is not accommodating at all. Adjusting an accounting entry does not alleviate the unconstitutional injury the Mandate inflicts on employers carrying out the Church’s mission.
The Final Rule is significantly worse than the initially proposed rule because it also eliminates an important protection from the initial version of the Mandate that allowed “religious employers” (MCC) to protect their affiliated religious organizations (Catholic Charities) from participation in the provision of the objectionable services by including such organizations in the plan established by the “religious employer.” The Final Rule, therefore, actually increases the number of religious organizations subject to the Mandate.
The Mandate violates the Religious Freedom Restoration Act (“RFRA”), the First Amendment, and other federal law. First, under RFRA, the Government may not impose a substantial burden on Plaintiffs’ exercise of religion without showing that it is the least restrictive means to advance a compelling governmental interest. See 42 U.S.C. § 2000bb-1(a), (b). The Government has excluded tens of millions from the Mandate through a series of exemptions;

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thus, it cannot show a compelling interest in forcing the Mandate on the much smaller band of employers that seek an exemption on the basis of religious hardship. Nor is the Mandate narrowly tailored because the Government could easily advance its goals without using Plaintiffs to deliver objectionable services to their employees.
Second, the Mandate violates the First Amendment’s Free Speech and Religion Clauses because it infringes on Plaintiffs’ freedom of speech by requiring them to facilitate “counseling” in favor of abortion-inducing products, contraception, and sterilization. The Mandate violates the Free Exercise Clause by targeting Plaintiffs’ religious practices, offering a multitude of exemptions to other employers for non-religious reasons, but denying any exemption that would relieve Plaintiffs’ religious hardship. The Mandate violates the Establishment Clause by creating a state-favored category of “religious employers” based on intrusive judgments about their religious practices, beliefs, and organizational structure. And, the Mandate violates the First Amendment’s protection of internal church governance by splitting the Catholic Church in two and dictating to the Church which of its institutions are “religious” and which are not.
Finally, the Mandate violates the Administrative Procedure Act (“APA”) because Defendants failed to conduct notice-and-comment rulemaking, and it contravenes the clear terms of the Weldon Amendment. Under the Weldon Amendment, no federal agency may impose penalties on employers for refusing to include abortion coverage in their health-care plan, but the Mandate imposes penalties for failing to provide coverage for abortion-inducing products.
In sum, there is no legal justification for the Government’s gratuitous intrusion on Plaintiffs’ religious freedom. Plaintiffs need injunctive relief now, without which they will be forced to decide between violating their religious beliefs or violating the law—the epitome of irreparable harm. By contrast, a preliminary injunction will impose no substantial harm on the

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Government. It would instead preserve a status quo that has existed in this country for more than two centuries. Accordingly, Plaintiffs respectfully request a preliminary injunction while this Court adjudicates this vital question of religious liberty.
BACKGROUND1 I. STATUTORY AND REGULATORY BACKGROUND The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (the “Act”) requires employer “group health plan[s]” to include insurance coverage for women’s “preventive care and screenings,” 42 U.S.C. § 300gg-13(a)(4), which has been defined by the Department of Health and Human Services (“HHS”) to include “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” HRSA: Women’s Preventive Services Guidelines (Ex. A). FDA-approved contraceptives include the morning-after pill (Plan B) and Ulipristal (HRP 2000 or Ella), which can induce an abortion. Failure to provide these services exposes non-exempt organizations to fines of $100/day per affected beneficiary. 26 U.S.C. § 4980D(b). Dropping health plans subjects non-exempt organizations to substantial annual penalties of $2,000 per employee after the first thirty employees. Id. § 4980H(a), (c)(1). From its inception, the Act exempted health plans covering millions of people. See WhiteHouse.Gov, The Affordable Care Act Increases Choice and Saving Money for Small Business (Ex. B) at 1 (“exempt[ing] . . . 96[%] of all firms . . . or 5.8 million out of 6 million total firms”); 26 U.S.C. §§ 4980D(d); 4980H(a). Plans that have not changed certain benefits or contributions are “grandfathered” and exempt. See 42 U.S.C. § 18011; 26 C.F.R. § 54.9815-

1 For additional background, see paragraphs 1-15 and 54-107 of the Complaint (Doc. 1).

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1251T(g)(1)(iv). By one estimate, the Act exempts “over 190 million health plan participants and beneficiaries.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298 (D. Colo. 2012).
From the start, however, the Government refused to exempt religious entities other than those satisfying the narrow definition of “religious employer” that was intended to “accommodate” only “the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). Despite intense criticism, the Government finalized the narrow definition “without change.” 77 Fed. Reg. 8,725, 8,727-28, 8,730 (Feb. 15, 2012).
Five weeks later, under increased pressure, the Government issued an Advanced Notice of Proposed Rulemaking (“ANPRM”), suggesting accommodations to religious objections, yet reaffirming that the “religious employer” exemption would not change. 77 Fed. Reg. 16,501, 16,501-08 (Mar. 21, 2012). Religious entities explained in detail why proposals in the ANPRM would not relieve the burden on their religious freedom. See, e.g., Comments of U.S. Conf. of Catholic Bishops (May 15, 2012) (Ex. C) at 3 (“[T]he ANPRM create[s] an appearance of moderation and compromise, [but] does not actually offer any change in the Administration’s earlier stated positions on mandated contraceptive coverage.”). Yet, on February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”) adopting the ANPRM’s proposals. The Government received over 400,000 comments on the NPRM, largely reiterating previous objections. See, e.g., Comments of U.S. Conf. of Catholic Bishops (Mar. 20, 2013) (Ex. D) at 3 (noting that religious entities are still required “to fund or otherwise facilitate the morally objectionable coverage”); Public Comments and Expert Opinion submitted by the Roman Catholic Diocese of Pittsburgh (Apr. 8, 2013) (Ex. E) (noting that “the proposed rule continues

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the surprising recent detour into requiring religious objectors to fund or facilitate coverge for abortifacients, contraception, sterilization, and related education and counseling[]”).
Ignoring opposition, the Final Rule adopted substantially all of the NPRM’s proposals without significant change. See 78 Fed. Reg. 39,870, 39,872 (July 2, 2013). Thus, the Mandate will be in effect for plan years beginning on or after January 1, 2014. The Final Rule’s three changes to the Mandate fail to relieve the unlawful burdens imposed on Plaintiffs, and one change significantly increases the number of religious organizations subject to the Mandate.
First, the Final Rule made a cosmetic change to the “religious employer” definition by replacing the original three prongs with “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. at 39,896 (codified at 45 C.F.R. § 147.131(a)). The Government admits that this change does “not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules,” but “restrict[s] the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders.” 78 Fed. Reg. 8,456, 8,461 (Feb. 6, 2013). Thus, the Final Rule continues to focus the exemption on “the unique relationship between a house of worship and its employees in ministerial positions,” 76 Fed. Reg. at 46,623, and religious entities with broader missions are still not exempt.
Second, the Final Rule increases the burden imposed on religious entities by expanding the number that are subject to the Mandate. Under the original “religious employer” definition, if a nonexempt religious employer provided health coverage to its employees through a plan that was offered by a separate but affiliated entity that was exempt, “then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its

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employees.” 77 Fed. Reg. at 16,502. Here, MCC operates a self-insured plan that covers itself and, among others, Catholic Charities. Declaration of Paul A. Long (“Long Decl.”) (Ex. F) ¶¶ 416; Declaration of Frances Denny (“Denny Decl.”) (Ex. G) ¶¶ 13-15. Under the original religious employer definition, if MCC was exempt, then Catholic Charities received the benefit of that exemption. Long Decl. (Ex. F) ¶ 21; Denny Decl. (Ex. G) ¶ 17. But the Final Rule eliminates that protection, providing instead that “each employer [must] independently meet the definition of religious employer . . . in order to avail itself of the exemption.” 78 Fed. Reg. at 39,886; see also 78 Fed. Reg. at 8,467. Thus, Catholic Charities is no longer exempt under the MCC Plan. See Long Decl. (Ex. F) ¶ 20; Denny Decl. (Ex. G) ¶ 17.
As a result, MCC’s options are to (1) sponsor a plan that will provide Catholic Charities, and other non-exempt Catholic organizations, with access to the objectionable services; (2) sponsor a plan that will require the non-exempt organizations to self-certify and facilitate provision of the objectionable services; (3) sponsor a plan that will lead to onerous fines for nonexempt organizations that fail to self-certify and facilitate provision of the objectionable services, see 77 Fed. Reg. at 16,502; or (4) expel these non-exempt organizations from the MCC Plan, thereby forcing expelled entities into an arrangement with another insurance provider that will, in turn, provide or procure the objectionable services. See Long Decl. (Ex. F) ¶ 23. The first option violates MCC’s sincerely held religious beliefs. Id. ¶ 24. The second option constitutes a substantial burden on MCC’s religious beliefs by compelling MCC to submit to the Government’s interference with its structure and internal operations by accepting a construct that divides churches from their ministries. Id. ¶ 25. The second option also makes MCC and the Bishops complicit in providing objectionable coverage. See Declaration of the Most Rev. Michael Byrnes, S.T.D. (“Bishop Byrnes Decl.”) (Ex. H) ¶ 23. The third option is not

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financially feasible. Long Decl. (Ex. F) ¶ 26. The fourth option also constitutes a substantial burden on MCC’s religious beliefs by compelling MCC to submit to the Government’s interference with its structure and internal operations by accepting a construct that divides the Church from its ministries and prevents MCC and the Bishops from ensuring that entities in Michigan do not provide the objectionable services. Id. ¶ 27.
Third, the Final Rule establishes an illusory “accommodation” for non-exempt objecting religious entities that qualify as “eligible organizations.” To qualify as an “eligible organization,” a religious entity must (1) “oppose[] providing coverage for some or all of [the] contraceptive services”; (2) be “organized and operate[] as a non-profit entity”; (3) “hold[] itself out as a religious organization”; and (4) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance company or, if self-insured, to its third party administrator. 26 C.F.R. § 54.9815-2713A(a). An eligible organization’s self-certification requires a third party to provide “payments for contraceptive services” for the objecting organization’s employees. See 78 Fed. Reg. at 39,893 (codified at 26 C.F.R. § 54.98152713A(a)-(c)). Making matters worse, self-insured organizations that self-certify are flatly prohibited from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure contraceptive services. 26 C.F.R. § 54.9815–2713A(b)(iii). For self-insured organizations, like Catholic Charities, the self-certification constitutes the religious organization’s “designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879. This “accommodation” fails to relieve the burden on religious beliefs because a non-exempt organization’s decision to offer a group health plan still results in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling. 26 C.F.R. § 54.9815-2713A(b)-(c).

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Catholic Charities’ provision of a group health plan and signing the self-certification form thus triggers the provision of “free” objectionable services to its employees in a manner contrary to its beliefs. Denny Decl. (Ex. G) ¶ 21. Indeed, Catholic Charities must designate the third party administrator to provide the coverage. Bishop Byrnes Decl. (Ex. H) ¶ 21. Moreover, the Bishops and MCC will be forced to facilitate provision of the objectionable services because non-exempt organizations currently insured through the MCC Plan, like Catholic Charities, will be forced to comply with the Mandate. MCC, through the Bishops, has the power to manage, oversee, and direct the plans offered, and will be forced to operate those plans in a manner that will result in the provision of objectionable services. Plaintiffs would also provide the names of the beneficiaries who would receive the free objectionable services. Id. ¶ 23.
In sum, the Final Rule does not address Plaintiffs’ religious objections to facilitating access to the objectionable services. See id. ¶ 18. This should not surprise the Government, which was repeatedly notified well before it issued the Final Rule that its “accommodation” would not relieve the burden on Plaintiffs’ religious beliefs. Despite representations that it was making a good-faith effort to address those religious objections, the Government issued the Final Rule that it knew would do no such thing. Plaintiffs are still coerced, under threat of crippling fines, into being the vehicle to deliver abortion-inducing products, sterilization services, contraceptives, and related counseling services to their employees, contrary to their sincerely held religious beliefs.
II. PLAINTIFFS’ BACKGROUND Plaintiffs are part of the Catholic Church and, as such, sincerely believe that they have a religious duty to provide charitable services to individuals of all faiths. Denny Decl. (Ex. G) ¶ 30. Just as sincerely, they believe that life begins at the moment of conception, and that certain “preventive services” covered by the Mandate that interfere with life and conception are

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immoral. Id. ¶ 9; Bishop Byrnes Decl. (Ex. H) ¶ 8. Specifically, as relevant here, Plaintiffs believe that abortion and direct sterilization are prohibited and that contraceptives for the purpose of contraception are immoral. Bishop Byrnes Decl. (Ex. H) ¶ 9.
Under the internal structure and doctrine of the Catholic Church, charity and social services are the heart of the Church and no less religiously significant than worship. Bishop Byrnes Decl. (Ex. H) ¶ 27. Additionally, through the MCC Plan, the Dioceses control and oversee their close affiliates, including Catholic Charities. Id. ¶ 28. To ensure that these entities comply with the dictates of the Catholic Church, MCC offers health insurance to the employees of these affiliates that complies with Catholic doctrine. See id. Forcing MCC to expel these affiliates from the MCC Plan would interfere with the the internal structure and doctrine of the Dioceses and with the Dioceses’ ability to control them. Id. ¶ 28.
Plaintiffs’ sincerely held, longstanding beliefs are also violated in several ways if they provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization services, contraceptives, and related counseling services. For example, the Mandate forces Plaintiffs to violate their religious beliefs by requiring them to designate a third party to administer, provide or procure the objectionable services for Plaintiffs’ employees. Id. ¶ 21.
Plaintiffs’ religious beliefs are violated by facilitating the objectionable coverage and services, even if Plaintiffs do not have to contract, arrange, pay, or refer for them. Id. ¶ 13. When it violates Plaintiffs’ religious beliefs to perform certain conduct, Plaintiffs are equally prohibited from designating or assisting someone else to do it for them. Id. ¶ 14. There is no prohibition in paying a salary to Plaintiffs’ employees, even if those employees may use the money to act contrary to Catholic doctrine. Id. ¶ 15. But that is completely different from the situation here. When the Diocese pays an employee’s salary, it does not designate the employee

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to purchase pornography, does not designate the employee to administer a program that supplies pornography, and does not trigger the provision of pornography. Id. ¶ 15.
Here, Plaintiffs are prohibited from providing this coverage, including for abortioninducing drugs which Plaintiffs believe to be a grave moral evil, and are equally prohibited from designating or assisting their third party administrator in providing the coverage. Id. ¶ 21. Giving notice to the third party administrator of Plaintiffs’ beliefs was not a violation in prior years because it did not trigger the provision of the objectionable services and did not designate the third party administrator to provide the objectionable coverage. Id.; Long Decl. (Ex. F) ¶ 18.
Additionally, Plaintiffs believe that they must bear witness, including in their deeds, to the beliefs of the Catholic Church and that it would be scandal to act inconsistently with those beliefs. Id. ¶ 25. For example, Plaintiffs cannot act in a way that thwarts the transmission of life. Id.; Denny Decl. (Ex. G) ¶ 21. The Mandate thus forces Plaintiffs to not only directly facilitate access to objectionable services, but also to participate in a government scheme specifically designed to thwart the transmission of life contrary to Plaintiffs’ religious beliefs. Bishop Byrnes Decl. (Ex. H) ¶ 25; Denny Decl. (Ex. G) ¶ 21.
Accordingly, Plaintiffs believe that they may not provide, pay for, and/or facilitate access to abortion-inducing products, sterilization, contraceptives, and related counseling, including by contracting with a third party that will, as a result, provide or procure the objectionable services for Plaintiffs’ employees. Bishop Byrnes Decl. (Ex. H) ¶¶ 12-14.
It is a cruel irony that the Mandate—promulgated under a statute intended to help the poor and needy—imposes on Plaintiffs the impossible choice of either abandoning their religious principles or else violating the law and facing crippling penalties, and, that it could harm

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Plaintiffs’ ability to directly serve the poor and needy. For example, any money paid for fines could have otherwise supported Plaintiffs’ charitable programs. Denny Decl. (Ex. G) ¶ 38.
ARGUMENT A court should grant a preliminary injunction if, after considering four factors, it determines that the balance of equities favors such relief. See Am. Imaging Servs., Inc. v. EaglePicher Indus., Inc., 963 F.2d 855, 858-59 (6th Cir. 1992). The four factors that courts should consider are: A plaintiff seeking a preliminary injunction must demonstrate (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest is served. See Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001); Int’l Res., Inc. v. N.Y. Life Ins. Co., 950 F.2d 294, 302 (6th Cir. 1991). These factors are not “prerequisites [to be] satisfied” and merely “guide the discretion of the court.” Eagle-Picher, 963 F.2d at 859. See In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985) (“the four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met.”). In other words, “they are not meant to be rigid and unbending requirements,” because “[a] fixed legal standard is not the essence of equity jurisprudence.” Id. (quotation and citation omitted). The rules and accepted practice ordinarily require expedited resolution by the Court when a preliminary injunction is sought. A preliminary injunction, moreover, is especially appropriate where it would preserve the status quo. “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)).

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Here, Plaintiffs meet all four factors for preliminary injunctive relief and the balance of harms clearly weighs in their favor. Moreover, a preliminary injunction would preserve the status quo, as Plaintiffs’ insurance plans do not currently cover the objectionable services and their employees and the employees of other entities covered under their plans do not get the objectionable services for free from their third party administrator. Accordingly, Plaintiffs’ Motion for a Preliminary Injunction should be promptly adjudicated and granted. I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
To satisfy the “likelihood of success” factor, “it is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Six Clinics Holding Corp. II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997).
Plaintiffs are likely to succeed on the merits of all of their claims, including that the Mandate: (1) violates RFRA because it substantially burdens Plaintiffs’ exercise of religion without being the least restrictive means to achieve a compelling government interest (Compl. Count I, ¶¶ 148-58); (2) violates the Free Exercise Clause of the First Amendment because it is not a neutral and generally applicable law (Compl. Count II, ¶¶ 159-71); (3) violates the First Amendment prohibition on compelled speech because it compels Plaintiffs to support and/or facilitate “counseling” that contradicts their religious viewpoint (Compl. Count III, ¶¶ 172-85); (4) violates the First Amendment protection of the freedom of speech by imposing a gag order that prohibits Plaintiffs from attempting to “influence” a third party administrator’s decision to provide or procure contraceptive services (Compl. Count IV, ¶¶ 186-90); (5) violates the Establishment Clause of the First Amendment because it establishes an official category of Government-favored “religious employers,” which excludes some religious groups based on

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intrusive judgments regarding their beliefs, practices, and organizational structure (Compl. Count V, ¶¶ 191-98); (6) violates both Religion Clauses of the First Amendment because it interferes with Plaintiffs’ rights of internal church governance (Compl. Count VI, ¶¶ 199-213); (7) violates the APA by failing to conduct notice and comment rulemaking (Compl. Count VII, ¶¶ 214-24); and (8) violates the APA by disregarding statutory prohibitions on compelled support for abortion (Compl. Count VIII, ¶¶ 225-35).
A. The Mandate Violates RFRA Under RFRA, the Federal Government is prohibited from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,” unless it “demonstrates that application of the burden to the person is (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a), (b); Gonzales v. O Centro Espírita Beneficente União Do Vegetal, 546 U.S. 418, 423 (2006). Thus, once Plaintiffs demonstrate a substantial burden, the Government bears the burden of proving that application of the Mandate to Plaintiffs furthers “a compelling governmental interest” and is “the least restrictive means of furthering that compelling governmental interest.” See 42 U.S.C. § 2000bb-1(b); O Centro, 546 U.S. at 423, 428. Here, the Government cannot make such a showing. RFRA was enacted to prevent the type of regulation codified in the Mandate. Congress passed RFRA “to restore [and codify] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and . . . guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb; O Centro, 546 U.S. at 430-31. Nadine Strossen, then-President of the American Civil Liberties Union, testified in support of RFRA’s enactment to safeguard “such familiar practices as . . . permitting religiously sponsored hospitals to decline to provide abortion or contraception

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services.” The Religious Freedom Restoration Act: Hearing on S. 2969 Before the S. Comm. On the Judiciary, 102d Cong., 174, 192 (1992); see also 139 Cong. Rec. 9,685 (1993) (statement of Rep. S. Hoyer) (noting that, post-Smith, a “Catholic teaching hospital lost its accreditation for refusing to provide abortion services” and that RFRA would “correct th[is] injustice[]”); id. at 4,660 (statement of Rep. Green) (noting that RFRA prevents the Government from “enact[ing] laws that force a person to participate in actions that violate their religious beliefs”).
Here, the Mandate cannot possibly survive scrutiny under RFRA because: (1) it imposes a “substantial burden” on Plaintiffs’ free exercise of religion; (2) the Government has no compelling interest in imposing this burden; and (3) it is not the least restrictive means to achieve the Government’s interest. Thus, courts have issued preliminary injunctions against the Mandate in the majority of cases brought by for-profit companies with religious owners. 2
In the Geneva College case, the Third Circuit Court relied on “Supreme Court decisions support[ing] Geneva’s argument that there is a likelihood of success on the merits . . . to its

2 Courts in at least twenty cases have afforded preliminary relief to for-profit plaintiffs challenging the Mandate. See Geneva College v. Sebelius, No. 2:12-cv-00207, 2013 WL 3071481 (W.D. Pa. June 18, 2013); Hobby Lobby Stores, Inc. v. Sebelius, 723 F. 3d 1114 (10th Cir. 2013) (en banc); Gilardi v. HHS, No. 13-5069, 2013 WL 5854246, at *7 (D.C. Cir. Nov. 1, 2013); Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013); Korte v. Sebelius, Nos. 12-3841, 13-1077, 2013 WL 5960692 (7th Cir. Nov. 8, 2013); O’Brien v. HHS, No. 12Ǧ3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012); Hartenbower v. HHS, No. 1:13-cv-2253 (N.D. Ill. Apr. 18, 2013) (Doc. No. 16); Hall v. Sebelius, No. 13-00295 (D. Minn. Apr. 2, 2013) (Doc. No. 12); Bick Holdings Inc. v. Sebelius, No. 4:13-cv-00462 (E.D. Mo. Apr. 1, 2013) (Doc. No. 21); Tonn & Blank Constr., LLC v. Sebelius, No. 1:12-cv-00325 (N.D. Ind. Apr. 1, 2013) (Doc. No. 43); Lindsay v. HHS, No. 131210 (N.D. Ill. Mar. 20, 2013); Monaghan v. Sebelius, No. 12-15488, 2013 WL 1014026 (E.D. Mich. Mar. 14, 2013); Sioux Chief Mfg. Co. v. Sebelius, No. 4:13-cv-0036 (W.D. Mo. Feb. 28, 2013) (Doc. No. 9); Triune Health Grp., Inc. v. HHS, No. 12-6756 (N.D. Ill. Jan. 3, 2013) (Doc. No. 50); Sharpe Holdings, Inc. v. HHS, No. 2:12-cv-0092, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012); Am. Pulverizer Co. v. HHS, No. 12-cv-3459, 2012 WL 6951316 (W.D. Mo. Dec. 20, 2012); Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012); Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012); Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012).

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assertion that it will suffer a substantial burden under the RFRA” absent an injunction. 2013 WL 3071481, at *8. A preliminary injunction is even more appropriate in this case involving nonprofit entities where, as outlined below, the Mandate imposes a substantial burden on the religious exercise that is at the heart of the mission of these entities and enforcement is imminent.
(1) The Mandate Substantially Burdens Plaintiffs’ Exercise Of Religion.
Under RFRA, courts must first assess whether the challenged law imposes a “substantial[] burden” on the plaintiff’s “exercise of religion.” 42 U.S.C. § 2000bb; O Centro, 546 U.S. at 430-31. This initial inquiry requires courts to (1) identify the particular exercise of religion at issue, and (2) assess whether the law substantially burdens that religious practice. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1140 (10th Cir. 2013) (en banc) (stating that the court must (1) “identify the religious belief in this case,” (2) “determine whether this belief is sincere,” and (3) “turn to the question of whether the government places substantial pressure on the religious believer”); Koger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008) (applying this two-part test under the parallel statute RLUIPA). Here, the Mandate imposes a substantial burden on Plaintiffs’ religious exercise by forcing them to do what their religion forbids: facilitate access to abortion-inducing products, sterilization services, contraceptives, and related counseling services. It also prevents Plaintiffs from bearing witness to their religious beliefs, thereby causing scandal.
(i) “Exercise Of Religion” RFRA defines “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc5(7)(A). Because the exercise of religion has been interpreted to include a diverse array of conduct, ranging from refusing to give children a formal education, see Yoder, 406 U.S. at 210-

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19, to eating only certain foods, see Nelson v. Miller, 570 F.3d 868, 878-89 (7th Cir. 2009), RFRA protects “not only belief and profession but the performance of (or abstention from) physical acts.” Emp’t Div. v. Smith, 494 U.S. 872, 877 (1990). Protected religious exercise includes any act or practice that is “rooted in the religious beliefs of the party asserting the claim or defense.” United States v. Ali, 682 F.3d 705, 710 (8th Cir. 2012) (internal quotation marks and alteration omitted).
Whether an act or practice is rooted in religious belief, and thus entitled to protection, does not “turn upon a judicial perception of the particular belief or practice in question.” Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 714 (1981). Instead, courts must accept plaintiffs’ descriptions of their beliefs and practices, regardless of whether the court, or Government, finds them “acceptable, logical, consistent, or comprehensible.” Id. at 714-15 (refusing to question plaintiff’s moral line); see also United States v. Lee, 455 U.S. 252, 257 (1982); Koger, 523 F.3d at 797 (plaintiff’s “dietary request [was] squarely within the definition of religious exercise”); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (rejecting efforts to dispute plaintiff’s representation that a medical test would violate his religion).
“Courts,” as the Supreme Court has put it, “are not arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716. Thus, “[r]epeatedly and in many different contexts,” the Supreme Court has “warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Smith, 494 U.S. at 887. Instead, the judicial role is limited to “determining ‘whether the beliefs professed by [the plaintiff] are sincerely held and whether they are, in his own scheme of things, religious.’” Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir, 1984) (quoting United States v. Seeger, 380 U.S. 163, 185 (1965)). By necessity, this is a modest inquiry that is restrained by the need to avoid excessive entanglement in religion.

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See Jolly, 76 F.3d at 476. The purpose of the sincerity inquiry is simply to screen out manipulative claims based on sham beliefs that can be readily identified as such, for example, a high-school student who suddenly proclaims a religious objection to Math. Courts need not accept claims that are “so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection.” Thomas, 450 U.S. at 715.
“While it is a delicate task to evaluate religious sincerity without questioning religious verity, . . . free exercise doctrine is based upon the premise that courts are capable of distinguishing between these two questions.” Jolly, 76 F.3d at 476 (emphasis omitted). By screening claims for religious sincerity, and by allowing the Government to impose burdens that are truly necessary to serve a compelling interest, courts can apply RFRA to grant bona fide religious exemptions without “allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” Yoder, 406 U.S. at 216. Based on this approach, the Supreme Court has repeatedly reaffirmed “the feasibility of case-by-case consideration of religious exemptions to generally applicable rules,” which can be “‘applied in an appropriately balanced way’ to specific claims for exemptions as they ar[i]se.” O Centro, 546 U.S. at 436 (quoting Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)).
Here, there can be no doubt that Plaintiffs’ refusal to comply with the Mandate is a protected exercise of religion under RFRA. It is undisputed that Plaintiffs have a sincerely held religious belief that they may not provide, pay for, and/or facilitate access to abortion-inducing products, sterilization services, contraceptives, and related counseling services, including by contracting with a third party that will, as a result, provide or procure the objectionable services for Plaintiffs’ employees. Long Decl. (Ex. F) ¶¶ 19-27; Denny Decl. (Ex. G) ¶ 16. While courts are bound to accept Plaintiffs’ description of their beliefs without resort to any independent

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religious authority, here the sincerity of Plaintiffs’ beliefs is buttressed by repeated confirmations from the U.S. Conference of Catholic Bishops. See Comments of U.S. Conf. of Catholic Bishops (Mar. 20, 2013) (Ex. D). These authoritative statements of Catholic belief make it unmistakably clear that Plaintiffs’ objection to the Mandate is “not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living.” Yoder, 406 U.S. at 216.
Nor do Plaintiffs seek to impose their religious beliefs on anyone else, or “to require the government itself to conduct its affairs in conformance with [their] religion.” Kaemmerling v. Lappin, 553 F.3d 669, 680 (D.C. Cir. 2008). On the contrary, Plaintiffs recognize that notwithstanding their religious objections, they have no legal right to prevent individuals from procuring the objectionable services from the Government or anywhere else. Plaintiffs simply invoke RFRA to enforce the law that the Government may not force them, in their own conduct, to take actions that violate their religious conscience. In particular, the Government may not require Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, sterilization, contraceptives, and related counseling services. Nor can the Government force Plaintiffs to contract with a third party that will, as a result, provide or procure the objectionable services for Plaintiffs’ employees. By imposing these requirements, the Mandate is a straightforward effort that “forces [Plaintiffs] to engage in conduct that their religion forbids.” Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001).
It is no answer to claim that Plaintiffs may be eligible for the Government’s so-called “accommodation.” For purposes of the RFRA analysis, what matters is whether the Government is coercing entities to take actions that violate their sincerely held religious beliefs. Hobby Lobby, 723 F.3d at 1137 (“Our only task is to determine whether the claimant’s belief is sincere, and if

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so, whether the government has applied substantial pressure on the claimant to violate that belief.”); Geneva Coll., 2013 WL 3071481, at *9 (noting that the “[Thomas] Court instructed that ‘[c]ourts should not undertake to dissect religious beliefs’ when analyzing substantial burden questions[]” and that “[h]ere, Geneva facilitates the provision of its student health insurance, and to force it to choose whether or not to facilitate a student health plan would be, like in Thomas, a line which it should not be forced to cross[]”) (quoting Thomas, 450 U.S. at 715); Gilardi v. U.S. Dep’t of Health & Human Servs., No. 13-5069, 2013 WL 5854246, at *7 (D.C. Cir. Nov. 1, 2013). The fact is that the “accommodation” compels Plaintiffs to contract with an insurance issuer or third party administrator that will, as a result of that contract, provide or procure the objectionable services for Plaintiffs’ employees. Indeed, the third party’s obligation exists only so long as Plaintiffs’ employees remain on the MCC Plan.3 See Bishop Byrnes Decl. (Ex. H) ¶¶ 21-22. Moreover, for self-insured organizations, the required self-certification constitutes the religious organization’s specific “designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (emphasis added). Finally, the accommodation forces further facilitation by leading to the requirement that MCC and Catholic Charities provide the names of the employees and dependents whose insurance is through their plans. See Bishop Byrnes Decl. (Ex. H) ¶ 23.
As Plaintiffs have explained to the Government, they believe their involvement in this scheme would constitute impermissible facilitation of access to the objectionable services. This sincere religious belief is entitled to no less protection than that at issue in Hobby Lobby, Geneva
3 See 29 C.F.R. § 2590.715-2713A(d) (for self-insured employers, the third party administrator “will provide or arrange separate payments for contraceptive services . . . for so long as [employees] are enrolled in [their] group health plan”); 45 C.F.R. § 147.131(c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan[]”).

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College, and Gilardi, 2013 WL 5854246, at *7. Indeed, the Supreme Court has recognized that non-profit religious entities are entitled to more protection than for-profit corporations. See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 344-45 (1987) (Brennan, J., concurring).
Because Plaintiffs object to facilitating the objectionable services in the manner required by the Mandate, it is irrelevant whether the Mandate also forces them to directly subsidize these products and services. For example, it makes no difference that insurance issuers are required to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 26 C.F.R. § 54.9815-2713A(c)(2)(ii). It also makes no difference whether payments for the objectionable services will be “cost neutral” to Plaintiffs. 78 Fed. Reg. at 8,463. Indeed, Plaintiffs would be willing to pay increased premiums if that would allow them to avoid serving as the vehicle by which the objectionable services would be delivered to their employees. It is, in short, the impermissible facilitation of access to objectionable services that violates Plaintiffs’ sincerely held religious beliefs. And it is undisputed that the Mandate forces Plaintiffs to engage in impermissible facilitation.
Additionally, Plaintiffs have an obligation to bear witness to the Church’s teachings, particularly as defined by the Dioceses. Bishop Byrnes Decl. (Ex. H) ¶ 25. Being forced to act inconsistent with these teachings prevents Plaintiffs from bearing witness and causes scandal. Id. By forcing MCC and Catholic Charities to provide health insurance plans under the “accommodation,” the Mandate prevents them from bearing witness and causes scandal. Id. MCC and Catholic Charities would be forced to act in a way inconsistent with the very teachings of the Roman Catholic Church. For example, the Mandate purports to function by eliminating

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pregnancies and Plaintiffs simply cannot bear witness if their actions thwart the transmission of life. Id. Under the Mandate, MCC and Catholic Charities cannot practice what they preach.
In any event, it is also clear that, under the Mandate, Plaintiffs will almost certainly be required to subsidize the objectionable products and service, thereby further exacerbating the already impermissible substantial burden. This is so, even if the Government’s dubious costneutrality assumption is true. Take, for example, religious organizations that procure insurance from an insurance company, wherein the insurance company must provide or procure the objectionable services for the religious organization’s employees. According to the Government, the cost to the insurance company of doing so will be offset by, among other things, “fewer childbirths” that result from the use of contraception, sterilization, abortion-inducing products, and related counseling. 78 Fed. Reg. at 8,463. But even if the Mandate succeeds in reducing “childbirths” in high enough numbers to achieve cost-neutrality, the premiums previously going toward childbirths will now be used to provide the objectionable services necessary to obtain that reduction in childbirths. After all, obtaining that reduction is the very basis upon which the Government’s cost-neutrality assumption is premised.
As noted, however, the Government’s cost-neutrality assumption is implausible. It depends on the dubious assumption that the cost of contraception will be offset by “lower costs from improvements in women’s health and fewer childbirths,” 78 Fed. Reg. at 8,463, which in turn depends on the assumption that the Mandate will induce large numbers of women who do not currently use contraception to begin doing so. This, of course, demonstrates why Plaintiffs so vehemently object to the Mandate: It forces them to participate in a scheme specifically designed to lure women to engage in practices contrary to Plaintiffs’ sincerely held religious beliefs. More important for present purposes, however, the Government has adduced no

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evidence that women will change their behavior in sufficient numbers to achieve cost-neutrality. The same is true for self-insured organizations, for whom, the Government asserts, third party administrators will be permitted to recoup their costs through reductions in user fees on federally facilitated health exchanges. 78 Fed. Reg. at 39,882. These fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third party administrators. Such regulatory regimes, however, invariably fail to fully compensate regulated entities for the costs and risks incurred. As a result, few if any third party administrators are likely to participate in this regime, and those that do are likely to increase fees charged to self-insured organizations. Consequently, the costs of providing the objectionable services will be passed back to religious organizations.
For these reasons, Plaintiffs’ refusal to facilitate the objectionable services in the manner required by the Mandate is a protected exercise of religion. Accordingly, the only relevant question for this Court under the “substantial burden” analysis is whether the Mandate puts substantial pressure on Plaintiffs to act contrary to this religious practice.
(ii) “Substantial Burden” Once Plaintiffs’ refusal to facilitate contraception and thwart transmission or life are identified as a protected religious exercises, the “substantial burden” analysis is straightforward. As the Supreme Court has made clear, a federal law “substantially burdens” an exercise of religion if it compels one “to perform acts undeniably at odds with fundamental tenets of [one’s] religious beliefs,” Yoder, 406 U.S. at 218, or “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas, 450 U.S. at 717-18; Kaemmerling, 553 F.3d at 678 (same); Gilardi, 2013 WL 5854246, at *7–8 (same). In Yoder, for example, the Court found a substantial burden imposed by a $5 penalty charged to the Amish plaintiffs for refusing to follow a compulsory secondary-education law. In Thomas, the Court similarly held

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that the denial of unemployment compensation substantially burdened the pacifist convictions of a Jehovah’s Witness who refused to work at a factory manufacturing tank turrets. 450 U.S. at 716-18. Thus, it is clear that even the threat of withholding unemployment benefits, or a $5 penalty, exerts enough pressure on a religious believer to qualify as a “substantial burden.”
Here, the Mandate provides Plaintiffs an impossible choice: violating their religious beliefs or facing crippling fines. If Catholic Charities refuses to facilitate the objectionable services through their health plans, it will be subject to fatal fines of $100 a day per affected beneficiary. See 26 U.S.C. § 4980D(b). And, if Catholic Charities seeks to exit the insurance market altogether, it could be subject to an annual fine of $2,000 per full-time employee after the first thirty employees. See 26 U.S.C. § 4980H(a), (c)(1). These penalties, which would amount to millions of dollars and inflict significant competitive harms, clearly impose the type of pressure that qualifies as a substantial burden under RFRA—far outweighing, for example, the $5 penalty that was a substantial burden in Yoder. There is no doubt that the threat of such penalties places a “substantial burden” on and indeed compels Plaintiffs to facilitate access to abortion-inducing products, contraception, sterilization, and related counseling in violation of their religious beliefs.
The Third Circuit recently addressed a challenge by a non-profit Christian college against a previous version of the Mandate, and found that the college had established a likelihood of success on the merits where the “quintessential substantial burden” was demonstrated by the college being “forced to ‘modify [its] behavior and to violate [its] beliefs’ by either giving up its student health insurance generally or providing the objectionable coverage.” Geneva Coll., 2013 WL 3071481, at *9. Here, Plaintiffs face the same quintessential substantial burden of either

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facilitating access to the objectionable services or giving up their employee health plans, plus they would have to pay substantial fines, thus modifying their behavior and services to the needy.
The Seventh and Tenth Circuits have recently addressed challenges by for-profit companies against the Mandate. The Seventh Circuit in Korte v. Sebelius, Nos. 12-3841, 131077, 2013 WL 5960692 (7th Cir. Nov. 8, 2013) held that the Government may not force a forprofit company to contract with a third party that would provide contraceptive coverage to the company’s employees over the owners’ religious objections. That holding applies with even greater force here, where Plaintiffs are non-profit religious organizations. Korte makes clear that “the substantial-burden test under RFRA focuses primarily on the ‘intensity of the coercion applied by the government to act contrary to religious beliefs,’ [the inquiry] evaluates the coercive effect of the governmental pressure on the adherent’s religious practice and steers well clear of deciding religious questions.” Id. at *23 (emphasis added). Thus, the court was bound to accept the plaintiffs’ sincere religious belief that complying with the Mandate “would make them complicit in a grave moral wrong.” Id.; see also id. at *5 (“As the [plaintiffs] understand their religious obligations, providing the mandated coverage would facilitate a grave moral wrong.” (emphasis added)). In light of that sincere belief, the only question for purposes of the substantial burden analysis was whether the Government had imposed “substantial pressure” to force plaintiffs to comply with the Mandate, id. at *22 (quoting Thomas, 450 U.S. at 718), to which the court found it easy to answer. By threatening such “ruinous fines,” the Mandate “placed enormous pressure on the plaintiffs to violate their religious beliefs and conform to its regulatory mandate,” thus imposing a “direct and substantial” burden on plaintiffs’ religious exercise. Id. at *23. The Tenth Circuit, sitting en banc, likewise recently held that a for-profit religious company was likely to succeed on the merits of a RFRA claim because the Mandate

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imposed a substantial burden on religious exercise by “demand[ing],” on pain of onerous penalties, “that [plaintiffs] enable access to contraceptives that [they] deem morally problematic.” Hobby Lobby, 723 F.3d at 1141.4 The same is true here.
In sum, the Mandate leaves no way for Plaintiffs to continue their operations in a manner consistent with their sincerely held religious beliefs. Instead, it forces them to either abandon their beliefs by facilitating access to objectionable services, or violate the law and face severe penalties. Imposing this impossible dilemma constitutes a substantial burden on Plaintiffs’ religious exercise.
(2) The Government Cannot Demonstrate That The Mandate Furthers A Compelling Government Interest.
Under RFRA, the Government must “demonstrate that the compelling interest test is satisfied through application of the challenged law [to] the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430–31 “[B]roadly formulated” or “sweeping” interests are inadequate. Id. at 431; Yoder, 406 U.S. at 221. Rather, the Government must show with “particularity how [even] admittedly strong interest[s]” “would be adversely affected by granting an exemption.” Yoder, 406 U.S. at 236; see also O Centro, 546 U.S. at 431. The Government, therefore, must show a specific compelling interest in forcing “the particular claimant[s] whose sincere exercise of religion is being substantially burdened” into serving as the instruments by which its purported goals are advanced. Id. at 430-31; Tyndale, 904 F .Supp. 2d at 125-26. The Government cannot begin to meet this standard.

4 See also Gilardi v. HHS, No. 13-5069, 2013 WL 5854246 (D.C. Cir. Nov. 1, 2013) (affirming grant of injunction); Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013) (granting injunction pending appeal); O’Brien v. HHS, No. 12Ǧ3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012) (granting injunction pending appeal).

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At the most basic level, “a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (internal quotation marks and alteration omitted); see also O Centro, 546 U.S. at 433; Newland, 881 F. Supp. 2d at 1297-98. Here, the Government cannot claim an interest of the “highest order” where it exempts millions of employees from the Mandate through grandfathering provisions and small-employer exemptions, and the religious employer exemption. See Gilardi, 2013 WL 5854246, at *10 (describing these interests as “sketchy and highly abstract”).
The Government cannot plausibly maintain that Plaintiffs’ employees must be covered by the Mandate when it already exempts millions of women receiving insurance through grandfathered plans simply to fulfill the President’s promise that “Americans who like their health plan can keep it.” HHS.gov, U.S. Departments of Health and Human Services, Labor, and Treasury Issue Regulation on ‘Grandfathered’ Health Plans [U]nder the Affordable Care Act (June 14, 2010) (Ex. I). Grandfathering is not a “transition,” it is a complete exemption with no sunset provision. Unless it makes certain specified changes, a plan can maintain its grandfathered status in perpetuity, and defendants have repeatedly stated that employers have a “right” to maintain their grandfathered status. See, e.g., 75 Fed. Reg. 34,538, 34,540, 34,558, 34,562, 34,566 (June 17, 2010); Newland, 811 F. Supp. 2d at 1298 n.14. An interest is hardly compelling if it can be trumped by political expediency. Such a broad exemption “completely undermines any compelling interest in applying the preventive care coverage mandate.” Newland, 881 F. Supp. 2d at 1298; see also Hobby Lobby, 723 F.3d at 1143-44; Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 30265, at *70-72 (W.D. Pa. Mar. 6, 2013), injunction granted 2013 WL 3071481, at *10 (W.D. Pa. June 18, 2013) (“[T]he mere fact that

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defendants granted such a broad exemption in the first place severely undermines the legitimacy of defendants’ claim of a compelling interest.”); Tyndale, 904 F. Supp. 2d at 128. Moreover, if the Government’s interests were truly of the “highest order,” the preventive services mandate could have been included among the other mandates that were imposed on grandfathered plans. See 75 Fed. Reg. at 34,542 (grandfathered plans cannot impose lifetime limits and must extend coverage to dependent children until age 26).
The Mandate’s narrow “religious employer” exemption further undermines the Government’s claim that its interests are “compelling.” In O Centro, a religious group sought an exemption from the Controlled Substances Act to use hoasca—a hallucinogen—for religious purposes. When granting the exemption, the Supreme Court refused to credit the Government’s alleged interest in public health and safety when the Act at issue already contained an exemption for the religious use of another hallucinogen—peyote. “Everything the Government says about the DMT in hoasca,” the Court explained, “applies in equal measure to the mescaline in peyote.” O Centro, 546 U.S. at 433. Because Congress permitted peyote use in the face of concerns regarding health and public safety, “it [wa]s difficult to see how” those same concerns could “preclude any consideration of a similar exception for” the religious use of hoasca. Id.
The Government’s claim that its interests are compelling is further undermined because it has no justification for distinguishing between exempt and accommodated entities. The Final Rule provides, without any evidentiary support, that the religious employer exemption is justified because the employees of those institutions are more likely to agree with their employer’s view on the objectionable services and products the Mandate requires. 78 Fed. Reg. at 39,874, 39,887. Setting aside the question of how the Government could possibly claim to know the extent to which particular believers adhere to specific teachings of the Church, the corporate structure of

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Catholic entities is not a reliable proxy for the religious devotion and agreement of their respective employees, and the government offers no evidence that it is. For example, some Catholic schools are exempt because they are legally part of the diocesan corporation, whereas others that are otherwise identical are accommodated because they are separately incorporated. Just like in O Centro, “everything the Government says” about its interests in requiring Plaintiffs to facilitate access to the mandated products and services “applies in equal measure” to entities that meet the Mandate’s definition of “religious employer,” as well as the numerous other entities that are exempt from the Mandate for non-religious reasons. O Centro, 546 U.S. at 433. Morevoer, “there is nothing to suggest the [Mandate] would become unworkable if employers objecting on religious grounds could opt out of one part of a comprehensive coverage requirement.” Gilardi, 2013 WL 5854246, at *14.
Finally, the Government’s interest cannot be compelling where the Mandate would only fill, at best, a “modest gap” in contraceptive coverage. Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2741 (2011). The Government acknowledges that contraceptives are widely available for free and at reduced cost and are also already covered by “over 85 percent of employer-sponsored health insurance plans.”5 75 Fed. Reg. 41,726, 41,732 (July 19, 2010); HHS.gov, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012) (Ex. J). The Government, moreover, has adduced “no empirical data or other evidence . . . that the provision of the FDA-approved emergency contraceptives . . . would result in fewer

5 In other cases, the Government has claimed there would be an increase in use because the Mandate makes the objectionable services available for free from employers who currently provide them at a cost. Even if the Government were correct (and Plaintiffs dispute the Government’s argument for several reasons), that could only justify requiring employers who already cover the services to provide them for free. It would not and cannot justify forcing Plaintiffs to violate their religious beliefs to fill the modest gap of people for whom the objectionable services were not previously covered at all.

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unintended pregnancies, an increased propensity to seek prenatal care, or a lower frequency of risky behavior endangering unborn babies.” Beckwith v. Sebelius, No. 8:13-cv-0648-T-17MAP, slip op. at 32 (M.D. Fla. June 25, 2013).
To the contrary, recent scholarship confirms that a modest increase in coverage for contraception is unlikely to significantly impact contraceptive use, “because the group of women with the highest unintended pregnancy rates (the poor) are not addressed or affected by the Mandate [because they are unemployed], and are already amply supplied with free or low-cost contraception,” and “because women have a true variety of reasons for not using contraception that the law cannot mitigate or satisfy simply by attempting to increase access to contraception by making it ‘free.’” Helen M. Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 VILL. L. REV. 379, 380 (2013) (Ex. K). As such, the Government cannot claim to have “identif[ied] an actual problem in need of solving,” Brown, 131 S. Ct. at 2738 (internal marks and citation omitted), much less that its proposed solution will address the alleged problem in any meaningful way. The Government “does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Id. at 2741 n.9.
(3) The Government Cannot Demonstrate That The Mandate Is The Least Restrictive Means To Achieve Its Asserted Interests.
Under RFRA, the Government must also show that the regulation “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b)(2). Under that test, “if there are other, reasonable ways to achieve those [interests] 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.” Dunn v. Blumstein, 405 U.S. 330, 343 (1972) (internal quotations marks omitted). “A statute or regulation is the least restrictive means if ‘no alternative forms of regulation would [accomplish the compelling interest]

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without infringing [religious exercise] rights.’” Kaemmerling, 553 F.3d at 684 (quoting Sherbert, 374 U.S. at 407). “Nor can the government slide through the test merely because another alternative would not be quite as good.” Hodgkins v. Peterson, 355 F.3d 1048, 1060 (7th Cir. 2004).
The “least restrictive means” test “necessarily implies a comparison with other means.” Washington v. Klem, 497 F.3d 272, 284 (3d Cir. 2007). “Because this burden is placed on the Government, it must be the party to make this comparison.” Id. The Government must demonstrate that “it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.” Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005); see also Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013) (explaining that strict scrutiny requires a “serious, good faith consideration of workable . . . alternatives” that will achieve the government’s stated goal) (quoting Grutter v. Bollinger, 539 U.S. 306, 339 (2003)).
The Seventh Circuit in Korte recently held that the Government “has not come close to carrying its burden of demonstrating that it cannot achieve its policy goals in ways less damaging to religious-exercise rights.” Korte, 2013 WL 5960692, at *25-26. By asserting sweeping interests in “public health” and “gender equality,” the Government has “guarantee[d] that the mandate” will fail strict scrutiny because it is “impossible to show that the mandate is the least restrictive means of furthering” those broad interests. Id. at *25. Moreover, even assuming the Government has a compelling interest in the more specific goal of “broaden[ing] access to free contraception and sterilization”—an assumption that is “both contested and contestable”—the Mandate still fails strict scrutiny because “there are many ways to increase access to free contraception” without forcing Plaintiffs to participate in the effort. Id. at *26.

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Here, the Government has myriad ways to achieve its asserted interests without forcing Plaintiffs to violate their religious beliefs. Plaintiffs in no way recommend these alternatives and oppose many of them as a matter of policy, but the fact that they are available to the Government shows that the Mandate cannot survive RFRA’s narrow-tailoring requirement. For example, the Government could: (i) directly provide contraceptive services to the few individuals who do not receive it under their health plans; (ii) offer grants to entities that already provide contraceptive services at free or subsidized rates and/or work with these entities to expand delivery of the services; (iii) directly offer insurance coverage for contraceptive services; (iv) grant tax credits or deductions to women who purchase contraceptive services; or (v) allow Plaintiffs to comply with the Mandate by providing coverage for methods of family planning consistent with Catholic beliefs (i.e., Natural Family Planning training and materials). Indeed, the Government is already providing “free contraception to women,” including through the Title X Family Planning Program. Newland, 881 F. Supp. 2d at 1299. The Government’s failure to consider these alternatives is fatal, as strict scrutiny requires a “serious, good faith consideration” of workable alternatives. Grutter v. Bollinger, 539 U.S. 306, 339 (2003).
B. The Mandate Violates The Free Exercise Clause The Free Exercise Clause of the First Amendment embodies a “fundamental nonpersecution principle” that prevents the Government from “enact[ing] laws that suppress religious belief or practice.” Lukumi, 508 U.S. at 523. “At a minimum, 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.” Id. at 532. While the Free Exercise Clause does not require heightened scrutiny of laws that are “neutral [and] generally applicable,” Smith, 494 U.S. at 881, it does require strict scrutiny of laws that

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disfavor religion. See Lukumi, 508 U.S. at 532; id. at 546 (“A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.”).
In Lukumi, for example, the Supreme Court invalidated a municipal ordinance that imposed penalties on “[w]hoever . . . unnecessarily . . . kills any animal.” Id. at 537. Although the ordinance was not facially discriminatory, the Court found that its practical effect was to disfavor religious practitioners of Santeria because it allowed exemptions for secular but not for religious reasons. Once the city began allowing exemptions, the Court held that the law was no longer “generally applicable,” and the city could not “refuse to extend [such exemptions] to cases of ‘religious hardship’ without compelling reason.” Id. at 537-38. Likewise, in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365-67 (3d Cir. 1999) (Alito, J.), the Third Circuit invalidated a police department policy that prohibited a Sikh police officer from wearing a beard because it contained an exemption for officers who were unable to shave for medical reasons but not for religious reasons. Relying on Lukumi, the court found that the “decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny.” Id. at 365.
The same reasoning applies here. The Mandate is not “generally applicable” because it is riddled with exemptions, see supra at 4, and yet there is no such exemption for religious employers like Plaintiffs. It makes no difference that the Mandate contains an exemption for a narrow subset of religious groups—namely, those that meet the Government’s limited definition of a “religious employer.” See, e.g., Lukumi, 508 U.S. at 520 (finding a violation even though there was already a religious exemption); O Centro, 546 U.S. at 433 (same). Because it offers so many secular exemptions, the Government must give equal consideration to all claimants who seek similar exemptions on religious grounds. The Free Exercise Clause does not merely require

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equal treatment for some religious entities. Thus, the Mandate fails the test of general applicability, and the Government may not “refuse to extend [exemptions] to cases of ‘religious hardship’ without compelling reason.” Lukumi, 508 U.S. at 537-38.
In addition, the Mandate is not “neutral” because it is specifically targeted at Plaintiffs’ religious practice of refusing to provide or facilitate access to contraception. When the Government promulgated the Mandate, it was acutely aware that any gap in coverage for contraception was due primarily to the religious beliefs and practices of employers such as the Catholic Church. Indeed, the Government itself concedes that 85% of health plans already cover contraception, and it asserts that adding contraception to the remaining 15% is cost-neutral. If so, then the only conceivable reason why the latter plans would not include contraceptive coverage is a religious or moral objection. But instead of pursuing a wide variety of options for increasing access to contraception without forcing religious groups like Plaintiffs to participate in the effort, the Government deliberately chose to pick a high-profile fight by forcing religious groups to provide or facilitate access to contraception in violation of their core beliefs.
The record, moreover, establishes that the Mandate was part of a conscious political strategy to marginalize and delegitimize Plaintiffs’ religious views on contraception by holding them up for ridicule on the national stage. For example, at a NARAL Pro-Choice America fundraiser, Defendant Sebelius stated, “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely affordable contraceptive services? Not so much.” Compl. (Doc. 1) at ¶ 130; Transcript of Kathleen Sebelius Remarks at NARAL Luncheon (Oct. 5, 2011) at 4-5 (Ex. L). Likewise, the original definition of “preventive service” was promulgated by an Institute of Medicine Committee that was stacked with individuals who, like Defendant Sebelius, strongly disagreed with many Catholic teachings, causing the

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Committee’s lone dissenter to lament that the Committee’s recommendation reflected the other members’ “subjective determinations filtered through a lens of advocacy.” (Id. ¶ 68; see also Inst. Of Med., Clinical Preventive Services for Women: Closing the Gaps, at 232 (2011)). This anti-religious bias is further confirmed by the fact that it was directly modeled on a California statute, see 77 Fed. Reg. at 8,726 (explaining that the federal Mandate was modeled on state law); compare 76 Fed. Reg. at 46,626, with Cal. Health and Safety Code § 1376.25(b)(1), whose chief legislative sponsor made clear that its purpose was to strike a blow against Catholic religious authorities: “‘59 percent of all Catholic women of childbearing age practice contraception.’” “‘[88] percent of Catholics believe . . . that someone who practices artificial birth control can still be a good Catholic. I agree with that. I think it’s time to do the right thing.’”6 Thus, not only the “real operation” but also the intended effect, of the Mandate is to target and suppress Plaintiffs’ religious practices. Lukumi, 508 U.S. at 533-35.
Finally, the Mandate is subject to strict scrutiny because it implicates the “hybrid” rights of religious believers. In Employment Division v. Smith, 494 U.S. 872, 881-82 (1990), the Supreme Court noted that the Free Exercise Clause can “reinforce[]” other constitutional protections, such as freedom of speech and association, which are particularly important when religious beliefs and practices are at stake. The present case illustrates why. In order to carry out their religious mission, Plaintiffs must enjoy the freedom to associate in religious schools and charities without being forced to violate their core beliefs. The Mandate denies them this freedom by effectively prohibiting them from forming schools and charities unless they (a) provide or facilitate access to contraception, and (b) sponsor Government speech in the form of contraceptive “counseling.” Thus, not only does the Mandate violate Plaintiffs’ rights of free
6 Editorial, Act of Tyranny, WASH. TIMES, Mar. 5, 2004 (quoting floor statement of Sen. Jackie Speier) (Ex. M).

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speech and association, but these violations effectively deny Plaintiffs their ability to engage in religious charitable and educational works, which are essential components of their religion.
C. The Mandate Violates The First Amendment Protection Against Compelled Speech
It is “a basic First Amendment principle that ‘freedom of speech prohibits the government from telling people what they must say.’” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S.Ct. 2321, 2327 (2013) (quoting Rumsfeld v. Forum for Academic Inst. Rights, Inc., 547 U.S. 47, 61 (2006)). Thus, “[a]ny attempt by the government either to compel individuals to express certain views, or to subsidize speech to which they object, is subject to strict scrutiny.” R.J. Reynolds Tobacco Co., et al., v. FDA, No. 11-5332 (D.C. Cir. Aug. 24, 2012), slip op. at 10. (citing United States v. United Foods, Inc., 533 U.S. 405, 410-11 (2001)). Protection against compelled speech “applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.” Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 573 (1995).
The Mandate violates the First Amendment prohibition on compelled speech in two ways. First, it requires Plaintiffs to provide, pay for, and/or facilitate access to “counseling” related to abortion-inducing products, sterilization services, and contraceptives for their employees. Because Plaintiffs oppose abortion and contraception, they strongly object to providing any support for “counseling” that encourages, promotes, or facilitates such practices. Indeed, opposition to abortion and contraception is an important part of the religious message that Plaintiffs preach, and Catholic Charities routinely counsels men and women against engaging in such practices. Consequently, forcing Plaintiffs to support “counseling” in favor of such practices, or even to give details about the availability of such practices, imposes a serious

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burden on their freedom of speech. In short, Plaintiffs cannot be forced to act as mouthpieces in the Government’s campaign to expand access to abortion and contraception.
Second, to qualify for the so-called “accommodation,” the Mandate requires Catholic Charities and other non-exempt entities covered under the MCC Plan to provide a “certification” stating their objection to the provision of abortion-inducing products, sterilization services, contraceptives, and related counseling services. This “certification” in turn designates and triggers an obligation on the part of Plaintiffs’ third party administrator to provide or procure the objectionable services for the employees of non-exempt entities on the MCC Plan. Plaintiffs object to this certification requirement both because it compels them to engage in speech that triggers provision of the objectionable services, and because it deprives them of the freedom to speak on the issues of abortion and contraception on their own terms, at a time and place of their own choosing, outside of the confines of the Government’s regulatory scheme. See, e.g., Evergreen Ass’n v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011) (striking down law requiring crisis pregnancy centers to issue disclaimers that they did not provide abortion-related services); Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456, 459, 462 n.6 (D. Md. 2011), aff’d 722 F.3d 184 (4th Cir. 2013) (en banc) (enjoining enforcement of law requiring crisis pregnancy centers to post notice “encourag[ing] women who are or may be pregnant to consult with a licensed health care provider”).
D. The Mandate Imposes A Gag Order That Violates The First Amendment Protection Of Free Speech
At the very core of the First Amendment is the right of private groups to speak out on matters of moral, religious, and political concern. Time and again, the Supreme Court has reaffirmed that the constitutional freedom of speech reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New

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York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Indeed, the imposition of “content-based burdens on speech raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace.” Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991). To prevent such censorship, the First Amendment
is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. Cohen v. California, 403 U.S. 15, 24 (1971). The Mandate violates this basic principle by prohibiting religious organizations from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure contraceptive services. 26 C.F.R. § 54.9815–2713A(b)(iii). This sweeping gag order cannot withstand First Amendment scrutiny. Plaintiffs believe that contraception is immoral, and by expressing that conviction they routinely seek to “influence” or persuade their fellow citizens of that view. See Bishop Byrnes Decl. (Ex. H) ¶ 9; Denny Decl. (Ex. G) ¶ 27. The Government has no authority to outlaw such expression. E. The “Religious Employer” Exemption Violates The Establishment
Clause The “religious employer” exemption violates the Establishment Clause of the First Amendment in two ways. First, it creates an artificial, Government-favored category of “religious employers,” which favors some types of religious groups over others. Second, it creates an excessive entanglement between government and religion.

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(1) Discrimination Among Religious Groups The principle of equal treatment among religious groups lies at the core of the Establishment Clause. Just as the Government cannot discriminate among sects or denominations, so too it cannot “discriminate between ‘types of institution’ on the basis of the nature of the religious practice these institutions are moved to engage in.” Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008) (McConnell, J.). Because religious liberty encompasses not only the freedom of religious belief, but also the freedom to adopt different practices and institutional structures, official favoritism for certain “types” of religious institutions is just as insidious as favoritism based on creed. For example, in Larson v. Valente, 456 U.S. 228 (1982), the Supreme Court struck down a Minnesota law imposing special registration requirements on any religious organization that did not “receive[] more than half of [its] total contributions from members or affiliated organizations.” Id. at 231-32. The state defended the law on the ground that it was facially neutral and merely had a disparate impact on some religious groups. The Court, however, rejected that argument, finding that the law discriminated among denominations by privileging “well-established churches that have achieved strong but not total financial support from their members,” while disadvantaging “churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members.” Id. at 247 n.23 (internal quotation marks omitted). The D.C. Circuit has followed similar reasoning, stating that “an exemption solely for ‘pervasively sectarian’ schools would itself raise First Amendment concerns—discriminating between kinds of religious schools.” Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1342 (D.C. Cir. 2002) (emphasis added). Here, the Mandate violates this principle of neutrality by establishing an official category of “religious employer” that favors some religious groups over others. The exemption is defined

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to include only “nonprofit organization[s] 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].” As the Government has explained, those provisions of the tax code include only “churches, synagogues, mosques, and other houses of worship, and religious orders.” 78 Fed. Reg. at 8,461. This definition favors religious groups that fit into the traditional categories of “houses of worship” or “religious orders,” while disadvantaging groups that exercise their religious faith through alternative means—including religious organizations like Catholic Charities that expresses its faith by providing various charitable and social services to the young, elderly, poor, and needy.
(2) Excessive Entanglement “It is well established . . . that courts should refrain from trolling through a person’s or institution’s religious beliefs.” Mitchell v. Helms, 530 U.S. 793, 828 (2000). “It is not only the conclusions that may be reached . . . which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.” NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 502 (1979). “Most often, this principle has been expressed in terms of a prohibition of ‘excessive entanglement’ between religion and government.” Colorado Christian, 534 F.3d at 1261 (citing Agostini v. Felton, 521 U.S. 203 (1997)). “Properly understood, the doctrine protects religious institutions from governmental monitoring or second-guessing of their religious beliefs and practices, whether as a condition to receiving benefits . . . or as a basis for regulation or exclusion from benefits (as here).” Id. (citing Carl H. Esbeck, Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 WASH. & LEE L. REV. 347, 397 (1984)). In determining eligibility for a religious exemption, the Government may not ask intrusive questions designed to determine whether a group is “sufficiently religious,” Univ. of Great Falls v. NLRB, 278 F.3d at 1343, or even whether the group has a “substantial religious

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character,” id. at 1344. Rather, any inquiry into a group’s eligibility for a religious exemption
must be limited to determining whether the group is a “bona fide religious institution[].” Id. at
1343-44 (approving of a religious exemption that would include any non-profit group that “holds
itself out” as religious, but reserving the question of whether groups could be required to show
that they are “affiliated with . . . a recognized religious organization”).
Here, the Government’s criteria for the “religious employer” exemption go far beyond
determining bona fide religious status. By its terms, the exemption applies to groups that are
“described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue]
Code.” This category includes (i) “churches, their integrated auxiliaries, and conventions or
associations of churches,” and (iii) “the exclusively religious activities of any religious order.”
78 Fed. Reg. at 8,458. The IRS, however, has adopted an intrusive 14-factor test to determine
whether a group meets these criteria. See Found. of Human Understanding v. United States, 88
Fed. Cl. 203, 220 (Fed. Cl. 2009). The fourteen (14) criteria ask whether a religious group has
(1) a distinct legal existence; (2) a recognized creed and form of worship; (3) a definite and distinct ecclesiastical government; (4) a formal code of doctrine and discipline; (5) a distinct religious history; (6) a membership not associated with any church or denomination; (7) an organization of ordained ministers; (8) ordained ministers selected after completing prescribed studies; (9) a literature of its own; (10) established places of worship; (11) regular congregations; (12) regular religious services; (13) Sunday schools for the religious instruction of the young; and (14) schools for the preparation of its ministers.
Id. (citing Church of the Visible Intelligence v. United States, 4 Cl. Ct. 55, 64 (1983)). Similar
problems arise in evaluating whether an organization is an “integrated auxiliary,” an inquiry
governed by Treasury Regulations that assesses, among other things whether an organization
“shares common religious doctrines, principles, disciplines, or practices with a church,” or

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“receives more than 50% of its support” from non-church sources. See 26 C.F.R. §§ 1.60332(h)(3)(i), (h)(4)(ii).
Not only do these factors favor some religious groups over others, but they do so on the basis of intrusive judgments regarding religious beliefs, practices, and organizational structure. For example, probing into whether a group has “a recognized creed and form of worship” not only requires the Government to determine which belief systems will be deemed “recognized creed[s],” but also demands inquiry into which practices qualify as “forms of worship.” In answering such questions, the Government cannot escape being “cast in the role of arbiter of [an] essentially religious dispute.” New York v. Cathedral Acad., 434 U.S. 125, 132-33 (1977). Similarly, in determining whether a religious group has had “a distinct religious history,” the exemption not only favors long-established religious groups, but also requires the Government to probe into potentially disputed matters of religious history. Any dispute as to whether a group’s history is sufficiently “distinct” or “religious,” should not be resolved by the Government. Indeed, “church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment.” Id. at 133.
F. The Mandate Unconstitutionally Interferes With Plaintiffs’ Rights Of Internal Church Governance
The Supreme Court has recognized that the Religion Clauses of the First Amendment prohibit the Government from interfering with matters of internal church governance. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S.Ct. 694 (2012), the Court held that the Government may not apply anti-discrimination laws to interfere with religious groups in the hiring and firing of ministers because the First Amendment prohibits “government interference with an internal church decision that affects the faith and mission of the church itself.” Id. at 707. Indeed, because “the autonomy of religious groups . . . has often

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served as a shield against oppressive civil laws,” the Court has “long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.” Id. at 712 (Alito, J., concurring).
Here, the Mandate violates this principle by artificially splitting the Catholic Church in two and preventing the Church from exercising supervisory authority over its constituents in a way that ensures compliance with Church teachings. See Bishop Byrnes Decl. (Ex. H) ¶ 27; Denny Decl. (Ex. G) ¶ 29. In particular, the religious employer definition treats the Catholic Church as having two wings—a worship one and a charitable/educational one—and treats only the former as a religious employer, when, in fact, the Church’s worship and charitable and educational arms are one and the same: “The Church cannot neglect the service of charity anymore than she can neglect the sacraments and the word.” USCCB’s Papal Visit Blog, “Benedict XVI’s Plea: Put the Poor at the Heart of Catholic Life” (Mar. 25, 2008) (Ex. N). Thus, by refusing to recognize the Church’s functions as those of a single, integrated “religious employer,” the Mandate directly interferes with Catholic Church structure.
The Mandate, moreover, compounds this error by interfering with the Church hierarchy’s ability to ensure that subordinate institutions, including various charitable and educational ministries, adhere to Church teaching through participation in a single insurance plan. See Bishop Byrnes Decl. (Ex. H) ¶¶ 27-28. Such an arrangement is currently in place in Michigan, where the Dioceses make the MCC Plan available to the employees of their religious affiliates, including Catholic Charities. By serving as the insurance provider for Catholic Charities, the Dioceses and Bishops can directly ensure that Catholic Charities offers its employees a health plan that is in all ways consistent with Catholic beliefs. See Bishop Byrnes Decl. (Ex. H) ¶¶ 2728. The Mandate disrupts this internal arrangement by forcing MCC to (1) sponsor a plan that

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will provide Catholic Charities, and other non-exempt Catholic organizations, with access to the objectionable services; (2) sponsor a plan that will require the non-exempt organizations to selfcertify and facilitate provision of the objectionable services; (3) sponsor a plan that will lead to onerous fines for non-exempt organizations that fail to self-certify and facilitate provision of the objectionable services, see 77 Fed. Reg. at 16,50; or (4) expel these non-exempt organizations from MCC’s health insurance plans, thereby forcing expelled entities into an arrangement with another insurance provider that will, in turn, provide or procure the objectionable services. See Long Decl. (Ex. F) ¶ 23. Either way, the Mandate directly undermines the Dioceses’ and the Bishops’ abilities to ensure that their religious affiliates remain faithful to Church teaching.
G. The Mandate Is Contrary to Law And Thus Invalid Under The APA The Administrative Procedure Act requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Here, because the Mandate violates the Weldon Amendment, it is “not in accordance with law.” The Weldon Amendment states that “[n]one of the funds made available in this Act [to the Departments of Labor and 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.” Consol. Approp. Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). “Health care entity” is defined to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Id. § 507(d)(2). Here, the Mandate violates the Weldon Amendment by discriminating against Plaintiffs based on their refusal to

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include coverage for abortion-inducing products in their “health insurance plan[s].” II. PLAINTIFFS ARE SUFFERING ONGOING IRREPARABLE HARM
Plaintiffs are entitled to injunctive relief because the Mandate is causing them substantial irreparable harm. “It is well settled that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 129 (D.D.C. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)) appeal dismissed, No. 13-5018, 2013 WL 2395168 (D.C. Cir. May 3, 2013). “By extension, the same is true of rights afforded under the RFRA, which covers the same types of rights as those protected under the Free Exercise Clause of the First Amendment.” Tyndale House Publishers, Inc., 904 F. Supp. 2d at 129 (citing O Centro Espirita Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 995 (10th Cir. 2004), aff’d 546 U.S. 418 (2006)) (“[The plaintiff] would certainly suffer an irreparable harm, assuming of course that it is likely to succeed on the merits of its RFRA claim.”)).
The forced violation of Plaintiffs’ faith is the epitome of irreparable injury. See Newsom v. Norris, 888 F.2d 371, 378 (6th Cir.1989) (“The Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.”) (emphasis added) (citing Elrod, 427 U.S. at 373 ). “It is well established that when First Amendment interests are either threatened, or in fact being impaired at the time relief is sought, the loss of First Amendment freedoms, for even a minimal period of time, unquestionably constitutes irreparable injury.” Ramsey v. City of Pittsburgh, 764 F. Supp. 2d 728, 734 (W.D. Pa. 2011) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976); Swartzwelder v. McNeilly, 297 F.3d 228, 241 (3d Cir. 2002)).7 Accordingly, where Plaintiffs’

7 The fact that Plaintiffs are likely to succeed on the merits of their First Amendment

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First Amendment rights are chilled as a result of a statute, the Court has broad discretion to grant injunctive relief. Reno, 929 F. Supp. at 851. And, Plaintiffs’ allegations of Establishment Clause violations are “sufficient, without more, to satisfy the irreparable harm prong for purposes of the preliminary injunction determination.” Mullin v. Sussex County, No. 11-580, 2012 U.S. Dist. LEXIS 67571, at *38-39 (D. Del. May 15, 2012).
The forced violation of Plaintiffs’ faith is the epitome of irreparable injury. See Am. Civil Liberties Union of Ill. V. Alvarez, 679 F.3d 583, 589-90 (7th Cir. 2012) (quoting Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982)), for the proposition that the loss of First Amendment Freedoms constitutes irreparable harm because “quantification of injury is difficult and damages are therefore not an adequate remedy”). The Mandate forces Plaintiffs to violate central tenets of their religious beliefs by facilitating grave moral evil through the riggering of objectionable services to their employees. Absent an injunction, the Government can begin enforcing the Mandate against Plaintiffs before the final resolution of this case, while there is a serious question as to whether the Mandate violates the Constitution and other applicable law. Thus, every moment that passes without relief inflicts ongoing irreparable harm to Plaintiffs’ religious freedoms. Plaintiffs thus are confronted with the impossible choice of violating their religious beliefs or violating the law. Plaintiffs need to resolve these outstanding issues before their plans go into effect for the administrative year starting on January 1, 2014 and should have more clarity before open enrollment begins in November 2013, so that they know what coverage to offer to their employees as of January 1, 2014.

claims supports a finding of irreparable injury. See Am. Civil Liberties Union v. Reno, 929 F. Supp. 824, 851 (E.D. Pa. 1996) (“In a case in which the injury alleged is a threat to First Amendment interests, the finding of irreparable injury is often tied to the likelihood of success of the merits.”), aff’d Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997).

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Additionally, the harms of non-compliance extend far beyond monetary loss. For example, imposing fines on Catholic Charities may well limit the charitable services it can provide, including by affecting donations. See Denny Decl. (Ex. G) ¶ 35. Indeed, the threat of these fines has already prevented Catholic Charities, along with other Catholic Charities affiliates, from considering any expansion of their charitable services to the poor and needy in the Diocese’s region. See id. ¶ 38.
Because these are not the type of harms that can later be remedied by monetary damages, the injuries are irreparable. See Mobil Oil Corp. v. Henriksen Enters., Inc., 490 F. Supp. 74, 77 (W.D. Mich. 1980) (holding that irreparable harm occurs when monetary damages are inadequate). And every moment that passes without relief inflicts an ongoing, cumulative harm to Plaintiffs’ religious freedoms. Moreover, injunctive relief is particularly appropriate to prevent future enforcement of an unconstitutional statute. See Bowman v. Twp. Of Pennsauken, 709 F. Supp. 1329, 1348 (D.N.J. 1989) (“[I]njunctive relief is a particularly appropriate remedy when the harm is prospective enforcement of an unconstitutional statute.”).
Similarly, Defendants’ violation of Plaintiffs’ rights under RFRA, which is meant to give religious exercise even greater protection than provided under the First Amendment, is also an irreparable injury. See Gov’t of Virgin Islands, Dep’t of Conservation and Cultural Affairs v. Virgin Is. Paving, Inc., 714 F.2d 283, 286 (3d Cir. 1983) (“Nor is the irreparable harm factor a significant hurdle to a preliminary injunction in most statutory violation cases.”), overruled on other grounds by statute, Edwards v. HOVENSA, LLC, 497 F.3d 355 (3d Cir. 2007); see also Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). Where Congress has enacted legislation to prevent the injury that forms the basis of Plaintiffs’ claims, violating that statute constitutes irreparable injury. See Virgin Islands Paving,

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714 F.2d at 286; Jeffreys v. My Friend’s Place, Inc., 719 F. Supp. 639, 647 (M.D. Tenn. 1989). Here, Congress enacted RFRA “to prevent the very injury asserted here,” Jeffreys, 719 F. Supp. at 647, that is, the violation of Plaintiffs’ sincerely held religious beliefs. The violation of RFRA is thus an irreparable injury. III. THE GOVERNMENT WILL SUFFER NO SUBSTANTIAL HARM FROM A
PRELIMINARY INJUNCTION Ordinarily, Defendants’ harms need to outweigh the burden on Plaintiffs for this factor to support denying injunctive relief. See, e.g., Minard Run Oil Co., 2009 WL 4937785, at *23. Here, Defendants would need an even greater showing of harm given the strength of Plaintiffs’ claims on the merits. See Kos Pharm., 369 F.3d at 729 (“We have recognized that [t]he more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor.”) (internal quotation and citation omitted). Here, the Government cannot possibly establish any substantial harm from a preliminary injunction pending final resolution of this case because it has not mandated contraceptive coverage for over two centuries, has previously delayed implementation of the Mandate, and there is no urgent need to enforce the Mandate against Catholic groups before its legality can be adjudicated. In addition, given that the Mandate already contains exemptions that by some estimates are available to “over 190 million health plan participants and beneficiaries,” Newland, 881 F. Supp. 2d at 1298, the Government cannot possibly claim that it will be harmed by this Court granting a temporary exemption for Plaintiffs. Indeed, any claim of harm is fatally undermined by the Government’s acquiescence to preliminary injunctive relief in several other cases challenging the Mandate. See, e.g., Sharpe Holdings, Inc. v. HHS, No. 2:12-cv-0092 (E.D. Mo. Mar. 11, 2013) (Doc. No. 41); Sioux Chief Mfg. Co. v. Sebelius, No. 4:13-cv-0036 (W.D. Mo. Feb. 28, 2013) (Doc. No. 9); Hall v. Sebelius,

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No. 13-0295 (D. Minn. Apr. 2, 2013) (Doc. No. 10); Bick Holding, Inc. v. Sebelius, No. 4:13-cv00462 (E.D. Mo. Apr. 1, 2013) (Doc. No. 18). As one court has already found, the Government “cannot claim irreparable harm in this case while acquiescing to preliminary injunctive relief in several similar cases.” Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 56087, at *41 (W.D. Pa. Apr. 19, 2013).
In short, when balanced against the irreparable injury to Plaintiffs if the Mandate is enforced, any harm the Government might claim from a temporary injunction is de minimis. IV. GRANTING A PRELIMINARY INJUNCTION WILL SERVE THE PUBLIC
INTEREST Preliminary relief also serves the public interest. “The Court of Appeals for the Sixth Circuit has recognized that “’it is always in the public interest to prevent violation of a party’s constitutional rights.’” Deja Vu, 274 F.3d at 400 (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). This same reasoning should also apply to the rights protected by RFRA, which is meant to give religious exercise even greater protection than that provided under the First Amendment. Cf., e.g., Kikumura, 242 F.3d at 963. In particular, there is a “strong public interest in a citizen’s free exercise of religion, a public interest clearly recognized by Congress when it enacted RFRA . . . .” O Centro, 389 F.3d 973, 1010 (10th Cir. 2004), aff’d 546 U.S. 418 (2006). Here, public interest in a preliminary injunction is especially high because enforcement of the Mandate will threaten or diminish the continuation of Plaintiffs’ charitable and educational activities, which serve thousands of needy individuals. If the Government goes ahead with the enforcement of the Mandate, Catholic Charities may be forced to shut down or restructure its operations, leaving a gap in the network of critical social services relied on by so many in their communities. By contrast, no public harm would come from simply preserving the status quo

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pending further litigation. Even if the public interest were served by widespread free access to abortion-inducing products, contraception, and sterilization—a highly dubious assumption— these products and services are widely available, and the Government has adduced no evidence that the Mandate will make them more widely available in the relatively short period of time that will be required to adjudicate this case on the merits.
CONCLUSION Applying the four factor test and balancing the equities involved, this Court should grant Plaintiffs’ request for preliminary injunction. Plaintiffs have a strong likelihood of success on the merits; Plaintiffs are suffering and will continue to suffer irreparable injury without the injunction; there is no substantial harm to others, including Defendants, from the granting of a preliminary injuction; and the public interest will be furthered by granting the injunction. Plaintiffs respectfully request this Court to enter a preliminary injunction, exempting them from application of, enforcement of, and compliance with the Mandate, including exempting them from being forced to provide any self-certification to their third party administrators.

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Respectfully submitted, this 20th day of November, 2013.
By: /s/ Matthew A Kairis Matthew A. Kairis (OH No. 55502) (Trial Attorney) JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus, OH 43216 (614) 469-3939
Paula Batt Wilson (0065421) Jennifer Flannery (0078651) JONES DAY North Point 901 Lakeside Avenue Cleveland, OH 44114-1190 (216) 586-3939
*Alison M. Kilmartin (PA No. 306422) JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 (412) 391-3939
Counsel for Plaintiffs * pending pro hac vice
Thomas P. Van Dusen (P30602) Rebecca D’Arcy O’Reilly (P70645) BODMAN PLC 6th Floor at Ford Field 1901 St. Antoine Street Detroit, MI 48226 (313) 259-7777
Counsel for Michigan Catholic Conference
Edward J. Bardelli (P53849) Ian R. Kennedy (P67775) WARNER NORCROSS & JUDD LLP 259 E. Michigan Ave., Suite 208 Kalamazoo, MI 49007 (269) 552-3411
Counsel for Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo
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CERTIFICATE OF SERVICE

I hereby certify that on November 20, 2013, I electronically filed the foregoing Plaintiffs’

Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction and Request

for Oral Argument with the Clerk of the United States District Court for the Western District of

Michigan using the CM/ECF system and mailed the foregoing by first class mail via the United

States Postal Service to the following:

Kathleen Sebelius, Secretary U.S. Department of Health & Human Services 200 Independence Ave., S.W. Washington, D.C. 20201

U.S. Department of Health & Human Services 200 Independence Ave., S.W. Washington, D.C. 20201

Thomas Perez, Secretary U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210

U.S. Department of Labor 200 Constitution Ave., N.W. Washington, D.C. 20210

Jacob J. Lew, Secretary U.S. Department of Treasury 1500 Pennsylvania Ave., N.W. Washington, D.C. 20220

U.S. Department of Treasury 1500 Pennsylvania Ave., N.W. Washington, D.C. 20220

Office of the Attorney General U.S. Department of Justice 10th & Pennsylvania Ave., N.W. Washington, D.C. 20530

United States Attorney 5th Floor Law Bldg. 330 Ionia Ave., N.W. Grand Rapids, MI 49503

s/ Matthew A. Kairis Matthew A. Kairis Counsel for Plaintiffs

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 Case 1:13-cv-01247-GJQ Doc #22 Filed 12/16/13 Page 1 of 2 Page ID#774

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

____________________________________

)

MICHIGAN CATHOLIC

)

CONFERENCE, et al.

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

Case No. 1:13-cv-01247-GJQ

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JURGMENT

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendants hereby move to dismiss this action. In the alternative, defendants move for summary judgment on all of plaintiffs’ claims pursuant to Rule 56. The grounds for these motions are set forth in the accompanying memorandum, which also responds to plaintiffs’ motion for a preliminary injunction.
Respectfully submitted this 16th day of December, 2013,
STUART F. DELERY Acting Assistant Attorney General
KATHLEEN R. HARTNETT Deputy Assistant Attorney General
PATRICK A. MILES, JR. United States Attorney
JENNIFER RICKETTS Director, Federal Programs Branch
SHEILA M. LIEBER Deputy Director

Case 1:13-cv-01247-GJQ Doc #22 Filed 12/16/13 Page 2 of 2 Page ID#775 /s/ Jacek Pruski JACEK PRUSKI (CA Bar. No. 277211) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C. 20001 Tel: (202) 616-2035; Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorneys for Defendant
2

 
 Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 1 of 63 Page ID#785

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

____________________________________

)

MICHIGAN CATHOLIC

)

CONFERENCE, et al.

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

Case No. 1:13-cv-01247-GJQ

DEFENDANTS’ COMBINED MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION, AND IN SUPPORT OF MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS
PAGE
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................4
STANDARD OF REVIEW .............................................................................................................8
ARGUMENT ...................................................................................................................................9
I. THIS CASE SHOULD BE DISMISSED BECAUSE THE COURT LACKS SUBJECT MATTER JURISDICTION .................................................................9
II. PLAINTIFFS’ CLAIMS LACK MERIT...........................................................................11
A. Plaintiffs’ Religious Freedom Restoration Act Claim Fails ..................................11
1. The regulations do not substantially burden plaintiffs’ exercise of religion.....................................................................................11
a. The regulations impose no more than a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs...................................................13
b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA .........................................................................................19
2. 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
a. The regulations significantly advance compelling governmental interests in public health and gender equality...............22
b. The regulations are the least restrictive means of advancing the government’s compelling interests ................................................27
B. The Regulations Do Not Violate the Free Exercise Clause...................................30
C. The Regulations Do Not Violate the Free Speech Clause .....................................35
D. The Regulations Do Not Violate the Establishment Clause ..................................38
i

Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 3 of 63 Page ID#787 E. The Regulations Do Not Interfere with Church Governance ................................43 F. Plaintiffs’ APA Claim Fails ...................................................................................43 1. The regulations are not contrary to law ...........................................................43 2. The regulations were promulgated in accordance with APA ..........................45
III. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC..............47
CONCLUSION..............................................................................................................................50
ii

Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 4 of 63 Page ID#788

TABLE OF AUTHORITIES

CASES

PAGE(S)

Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) .........................................................................................18

Adams v. Comm'r of Internal Revenue, 170 F.3d 173 (3d Cir. 1999)...............................................................................................30

Agostini v. Felton, 521 U.S. 203 (1997)...........................................................................................................43

Am. Family Ass'n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) .........................................................................................32

Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg'l Transp., No. 11-1538, 2012 WL. 5258999 (6th Cir. Oct. 25, 2012) ...............................................10

Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) .............................................................................................33

Annex Medical, Inc. v. Sebelius, No. 12-2804, 2013 WL 101927 (D. Minn. Jan. 8, 2013)...................................................21

Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................................................................................9

Autocam Corp. v. Sebelius, No. 1:12-cv-1096, 2012 WL. 6845677 (W.D. Mich. Dec. 24, 2012), aff'd, 730 F.3d 618 (6th Cir. 2013) ............................................................................ passim

Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .........................................................................................33

Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994)...........................................................................................................39

Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011) ...........................................................................................45

Bowen v. Kendrick, 487 U.S. 589 (1988)...........................................................................................................43

Bowen v. Roy, 476 U.S. 693 (1986)...........................................................................................................15

iii

Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 5 of 63 Page ID#789
Braunfeld v. Brown, 366 U.S. 599 ......................................................................................................................27
Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013)...............................................................................37
Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ...........................................................................................23
Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006)...................................................................................... passim
Capital Fed. Sav. & Loan Ass'n v. Comm'r of Internal Revenue, 96 T.C. 204 (1991).............................................................................................................42
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004) ............................................................................................... passim
Centro Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011) ...................................................................................37
Children's Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ...........................................................................................40
Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328 (N.D. Ga. 2012) ..............................................................................18
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)................................................................................................... passim
Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752 (7th Cir. 2003) ...........................................................................14, 16, 22, 35
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008) ...................................................................................40, 41
Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013), aff'd, 724 F.3d 377 (3d Cir. 2013) ................. passim
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .............................................................................................49
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) .....................................................................................49
iv

Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 6 of 63 Page ID#790
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987)...........................................................................................................41
Cutter v. Wilkinson, 544 U.S. 709 (2005)...........................................................................................................40
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995)..................................................................................23
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) ...........................................................................................25
Droz v. Comm'r of IRS, 48 F.3d 1120 (9th Cir. 1995) .............................................................................................40
Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL. 1190001 (E.D. Mich. Mar. 22, 2013)............................21, 32
Elrod v. Burns, 427 U.S. 347 (1976)...........................................................................................................48
Emp't Div. v. Smith, 494 U.S. 872 (1990)...........................................................................................................31
Evergreen Ass'n v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011)................................................................................37
Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) .............................................................................................30
Found. of Human Understanding v. Comm'r of IRS, 88 T.C. 1341 (1987)...........................................................................................................41
Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999)...............................................................................................34
Fund for Animals v. Frizzell, 530 F.2d 982 (D.C. Cir. 1975) ...........................................................................................48
GEICO v. Benton, 859 F.2d 1147 (3d Cir. 1988).............................................................................................45
Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013) .............................................................................................12
v

Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 7 of 63 Page ID#791
Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402 (W.D. Penn. 2013)......................................................................32, 43
Gilardi v. HHS, 733 F.3d 1208 (D.C. Cir. 2013) .........................................................................................13
Gillette v. United States, 401 U.S. 437 (1971).....................................................................................................39, 40
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006)...............................................................................................20, 25, 27
Gooden v. Crain, 353 F. App'x 885 (5th Cir. 2009).......................................................................................30
Graham v. Comm'r, 822 F.2d 844 (9th Cir. 1987), overruled in part on other grounds by Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024 (9th Cir. 2007)............................25, 30
Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012), rev'd on other grounds, No. 13-1077 (7th Cir. Nov. 8, 2013).......................................................................... passim
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) .......................................................................................12, 35
Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136 (1987) ..........................................................................................................18
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) .............................................................................13, 18, 22
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012), rev'd on other grounds, 723 F.3d 1114 ....................................................................................................................32
Home Builders Ass'n of Greater Chicago v. U.S. Army Corps of Eng'rs, 335 F.3d 607 (7th Cir. 2003) .............................................................................................42
Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 132 S. Ct. 694 (2012).........................................................................................................44
Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42 (2d Cir. 1990).................................................................................................33
vi

Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 8 of 63 Page ID#792
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ................................................................................... passim
Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177 (6th Cir. 1993) .................................................................................................35
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) ..................................................................................... passim
Korte v. U.S. Dep't of Health & Human Servs., 912 F. Supp. 2d 735 (S.D. Ill. 2012), rev'd on other grounds, No. 12-3841 (7th Cir. Nov. 8, 2013)..................................................................................32
Larson v. Valente, 456 U.S. 228 (1982).....................................................................................................39, 41
Legatus v. Sebelius, 901 F. Supp. 2d 980 (E.D. Mich. 2012).............................................................................27
Lemon v. Kurtzman, 403 U.S. 602 (1971)...........................................................................................................43
Liberty Univ., Inc. v. Lew, 733 F.3d 72 (4th Cir. 2013), cert. denied, No. 13-306 (Dec. 2, 2013) ..............................40
Living Water Church of God v. Charter Twp. of Meridian, 258 F. App'x 729 (6th Cir. 2007)...........................................................................16, 18, 22
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...........................................................................................................10
MK Chambers Co. v. U.S. Dep't of Health & Human Servs., No. 13-11379, 2013 WL. 1340719 (E.D. Mich. Apr. 3, 2013) ...................................32, 37
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) ...........................................................................................42
Mahoney v. Dist. of Columbia, 662 F. Supp. 2d 74 (D.D.C. 2009) .....................................................................................35
McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004).........................................................................................16, 22
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) .............................................................................................10
vii

Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 9 of 63 Page ID#793
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) .....................................................................................23
Mersino Mgmt. Co. v. Sebelius, No. 13-CV-11296, 2013 WL. 3546702 (E.D. Mich. July 11, 2013) ...........................19, 49
Miller v. Reed, 176 F.3d 1202 (9th Cir. 1999) ...........................................................................................35
Murphy v. State of Ark., 852 F.2d 1039 (8th Cir. 1988) ...........................................................................................30
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)...........................................................................................................38
Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936 (D.C. Cir. 2004) ...........................................................................................14
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989)........................................................................................29, 30
O'Brien v. U.S. Dep't of Health & Human Servs., 894 F. Supp. 2d 1149 (E.D. Mo. 2012), appeal pending, No. 12-3357 (8th Cir.) ............................................................................................... passim
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) .............................................................................................10
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)...........................................................................................................39
Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989) .........................................................................................39
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) .............................................................................................33
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009) ...........................................................................................21
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)...........................................................................................................24
Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736 (1976)...........................................................................................................43
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Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 10 of 63 Page ID#794
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR), 547 U.S. 47 (2006)..................................................................................................... passim
S. Ridge Baptist Church v. Indus. Comm'n of Ohio, 911 F.2d 1203 (6th Cir. 1990) ...............................................................................26, 27, 30
Sharpe Holdings, Inc. v. HHS, 2012 WL. 6738489 (E.D. Mo. Dec. 31, 2012) ..................................................................32
Sherbert v. Verner, 374 U.S. 398 (1963).....................................................................................................20, 25
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)...............................................................................................................9
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ...........................................................................................50
Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707 (1981)). “.............................................................................................. passim
Ungar v. N.Y.C. Hous. Auth., 363 F. App'x 53 (2d Cir. 2010)..........................................................................................33
United States v. Amer, 110 F.3d 873 (2d Cir. 1997)...............................................................................................32
United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963)...........................................................................................................31
United States v. Corum, 362 F.3d 489 (8th Cir. 2004) .............................................................................................43
United States v. Israel, 317 F.3d 768 (7th Cir. 2003) .............................................................................................28
United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) .............................................................................................30
United States v. Lee, 455 U.S. 252 (1982).....................................................................................................25, 33
United States v. O'Brien, 391 U.S. 367 (1968)...........................................................................................................37
ix

Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 11 of 63 Page ID#795
United States v. Oliver, 255 F.3d 588 (8th Cir. 2001) .............................................................................................25
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) .............................................................................................28
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ...................................................................................28, 30
United States v. Will, 671 F.2d 963 (6th Cir. 1982) .............................................................................................42
United States v. Winddancer, 435 F. Supp. 2d 687 (M.D. Tenn. 2006)......................................................................25, 26
Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006) .............................................................................................18
Walz v. Tax Comm'n of NY, 397 U.S. 664 (1970)...........................................................................................................41
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007)...............................................................................................16
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)...........................................................................................................49
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007)...............................................................................................18
Whitmore v. Arkansas, 495 U.S. 149 (1990)...........................................................................................................10
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008). “ .......................................................................................................9, 10
Wisconsin v. Yoder, 406 U.S. 205 (1972)...............................................................................................18, 20, 25
Zubik v. Sebelius, 2013 WL. 6118696 (W.D. Pa. Nov. 21, 2013) ............................................................13, 43
STATUTES
5 U.S.C. § 553(b) .....................................................................................................................46, 47 26 U.S.C. § 45R .............................................................................................................................27
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Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 12 of 63 Page ID#796
26 U.S.C. § 4980H(c)(2)................................................................................................................27 29 U.S.C. § 1002(16) .....................................................................................................................11 29 U.S.C. § 1003(b)(2) ..............................................................................................................9, 11 42 U.S.C. § 18011..........................................................................................................................26 42 U.S.C. 2000bb-1 .......................................................................................................................12 42 U.S.C. §§ 300.................................................................................................................... passim Pub. L. No. 103-141, 107 Stat. 1488 (1993)..................................................................................12 Before the Patient Protection and Affordable Care Act (“ACA),
Pub. L. No. 111-148, 124 Stat. 119 (2010)..........................................................................5 Pub. L. No. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011) ...................................44
RULES AND REGULATIONS
26 C.F.R. § 54.9815-2713A...........................................................................................................11 26 C.F.R. § 54.9815-2713A(b)(1)(iii) ...........................................................................................38 29 C.F.R. § 2510.3-16(b) ...............................................................................................................11 29 C.F.R. § 2590.715-2713A(b)(1)(iii) .........................................................................................38 45 C.F.R. § 147.131(a).........................................................................................................8, 27, 42 45 C.F.R. § 147.131(b) ....................................................................................................................8 45 C.F.R. § 147.140 .......................................................................................................................26 45 C.F.R. § 46.202(f) .....................................................................................................................45 75 Fed. Reg. 34,538, 34,546 (June 17, 2010) ................................................................................26 75 Fed. Reg. 34,552 .....................................................................................................................26 75 Fed. Reg. 41,726, 41,733 (July 19, 2010)...........................................................................23, 35 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011)....................................................................................6 77 Fed. Reg. 16,501 (Mar. 21, 2012).........................................................................................7, 46 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012) ...................................................................................7 77 Fed. Reg. 8727 ..........................................................................................................................49 77 Fed. Reg. 8728 .................................................................................................................. passim 78 Fed. Reg. 8456 (Feb. 6, 2013) ..............................................................................................7, 46 78 Fed. Reg. 8456, 8457 ................................................................................................................46 78 Fed. Reg. 39,870 (July 2, 2013)............................................................................................7, 48 78 Fed. Reg. 39,871-72....................................................................................................................7 78 Fed. Reg. 39,871-39,888...........................................................................................................46 78 Fed. Reg. 39,872, 39,887 ....................................................................................................23, 24 Certain Combined Oral Contraceptives for Use as Postcoital Emergency Contraception,
62 Fed. Reg. 8610, 8611 (Feb. 25, 1997) ..........................................................................45
LEGISLATIVE MATERIALS
139 Cong. Rec. S14350-01, S14352..............................................................................................19 148 Cong. Rec. H6566, H6580......................................................................................................45 155 Cong. Rec. S12106-02, S12114........................................................................................24, 50 155 Cong. Rec. S12265-02, S12274..............................................................................................24 H.R. Rep. No. 111-443 ..................................................................................................................29
xi

Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 13 of 63 Page ID#797 FEDERAL RULES OF CIVIL PROCEDURE Rule 12(b)(1)....................................................................................................................................9 Rule 12(b)(6)....................................................................................................................................9 Rule 56(a).........................................................................................................................................9 MISCELLAENOUS HealthCare.gov, Affordable Care Act Rules on Expanding Access to
Preventive Services for Women (August 1, 2011) ...........................................................44 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN:
CLOSING THE GAPS 19-20, 109 (2011)....................................................................... passim Kaiser Family Foundation and Health Research & Educational Trust,
Employer Health Benefits 2012 Annual Survey................................................................26 Office of Population Affairs, Memorandum (Apr. 23, 1997) .......................................................45
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INTRODUCTION Plaintiffs—Michigan Catholic Conference (MCC) and Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo (“Catholic Charities”)—ask this Court to enjoin regulations that are intended to accommodate religious exercise while helping to 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. Subject to an exemption for houses of worship and their integrated auxiliaries, and accommodations for certain other non-profit religious organizations, the regulations that plaintiffs challenge require certain group health plans and health insurance issuers to provide coverage, without cost-sharing (such as a copayment, coinsurance, or a deductible), for, among other things, all Food and Drug Administration (FDA)approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider. The regulations are the product of a decision by defendants to attempt to accommodate concerns expressed by some non-profit religious organizations by relieving those with religious objections to contraceptive coverage of any responsibility to contract, arrange, pay, or refer for contraceptive coverage or services. MCC is entirely exempt from the contraceptive coverage requirement. And Catholic Charities is eligible for a regulatory accommodation that relieves it from having to contract, arrange, pay or refer for contraceptive coverage, and that in no way prevents it from continuing to voice its disapproval of contraception or from encouraging its employees to refrain from using contraception. To avail itself of this significant accommodation, Catholic Charities need do nothing more than provide its third-party administrator(s) (TPA(s)) with a copy of a self-certification that it is eligible for the accommodation. Catholic Charities’ TPA has no obligation to provide contraceptive coverage, either. It is hard to fathom how the mere act of requiring Catholic Charities to complete this self-certification could amount to a

Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 15 of 63 Page ID#799
“substantial” burden, especially where—as here—the certification requires noting of Catholic Charities’ TPA or anyone else with respective to contraceptive coverage.
Notably, both plaintiffs offer employees health coverage through the MCC Second Amended and Restated Group Health Benefit Plan for Employees (“MCC Plan”), a self-insured “‘church plan’ generally exempt from the Employee Retirement Income Security Act (‘ERISA’).” Compl. ¶ 16, ECF No. 1; see id. ¶¶ 11, 30-31, 50. While defendants continue to consider potential options to fully and appropriately extend the consumer protections provided by the regulations to self-insured church plans, they acknowledge that, under current law, they lack authority to require the TPAs of self-insured church plans to make the separate payments for contraceptive services for participants and beneficiaries in such plans under the accommodation.
For this and several other reasons, plaintiffs’ motion for preliminary injunction should be denied and this case should be dismissed or summary judgment should be granted in favor of the government. At the outset, plaintiffs lack standing to assert their claims. As noted above, because the MCC Plan is a self-insured church plan, the government lacks authority to require any TPA of the MCC Plan to make the separate payments for contraceptive services for participants and beneficiaries in the plan under the accommodation. Because both plaintiffs offer coverage to their employees through the MCC Plan, the injury of which plaintiffs complain—that the regulations somehow require them to facilitate access to contraceptive services to which they object on religious grounds or to contract, arrange, or pay for such services—simply does not apply to plaintiffs here and, as a result, plaintiffs lack standing.
Even if plaintiffs had standing, however, their assertion that these accommodations themselves violate their rights under RFRA, the First Amendment, and the Administrative Procedure Act (APA) would fail. With respect to plaintiffs’ RFRA claim, plaintiffs cannot establish a substantial burden on their religious exercise—as they must— because, as noted
2

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above, the government cannot require any TPA of the MCC Plan to provide separate payments for contraceptive services to the participants and beneficiaries of the MCC Plan. Thus, the regulations impose absolutely no burden on plaintiffs’ religious exercise, much less a substantial burden as required under RFRA. Furthermore, even if the government could require any TPA of the MCC Plan to make the separate payments, the regulations would not require plaintiffs to change their behavior in any significant way. Plaintiffs are not required to contract, arrange, pay, or refer for contraceptive coverage. To the contrary, plaintiffs are free to continue to refuse to do so, to voice their disapproval of contraception, and to encourage their employees to refrain from using contraceptive services. Plaintiffs contend that the need to self-certify in order to obtain the accommodation is itself a burden on their religious exercise. But the challenged regulations require Catholic Charities only to self-certify that it has a religious objection to providing contraceptive coverage and otherwise meets the criteria for an eligible organization, and to share that self-certification with its TPAs. In other words, Catholic Charities is required only to convey to its TPAs that it is a non-profit religious organization that objects to providing contraceptive services, which it has done or would have to do voluntarily anyway even absent these regulations in order to ensure that it is not responsible for contracting, arranging, paying, or referring for such coverage. Plaintiffs can hardly claim that it is a violation of RFRA to require them to do almost exactly what they would do in the ordinary course, absent the regulations.
Further, plaintiffs’ challenge rests largely on the theory that even the extremely attenuated connection between them and the independent and wholly voluntary provision by TPAs of payments for contraceptive services to which they object on religious grounds—but for which plaintiffs pay nothing—amounts to a substantial burden on their religious exercise. This cannot be. Regardless of how plaintiffs frame their religious beliefs, courts must independently consider whether a given law imposes a substantial burden on those beliefs. See Autocam Corp.
3

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v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677, at *6 (W.D. Mich. Dec. 24, 2012), aff’d, 730 F.3d 618 (6th Cir. 2013). The regulations impose, at most, only the most de minimis burden on plaintiffs’ religious exercise, too slight and attenuated to be “substantial” under RFRA, and little different from plaintiffs’ payment of salaries to their employees, which those employees can also use to buy contraceptive services if they so choose.
Moreover, even if the challenged regulations were deemed to impose a substantial burden on plaintiffs’ religious exercise, the regulations would not violate RFRA because they are narrowly tailored to serve two compelling interests: improving the health of women and newborn children, and equalizing the provision of preventive care for women and men so that women can participate in the workforce, and society more generally, on an equal playing field with men.
Plaintiffs’ First Amendment claims are equally meritless. Indeed, nearly every court to consider similar First Amendment challenges to the prior version of the regulations—including Judge Jonker in Autocam—rejected the claims, and their analysis applies here. Plaintiffs’ APA claims also fail. The regulations are in accordance with federal law, and defendants’ interpretation of the regulations is not erroneous.
For these reasons, and those explained below, defendants’ motion to dismiss or, in the alternative, for summary judgment should be granted.
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. Due largely to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”), AR at 317-18, 407.1 Section 1001 of the ACA seeks to cure this problem
1 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR), on file with the Court.
4

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by making preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer nongrandfathered health coverage to provide coverage for certain preventive services without costsharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(4).
Because there were no existing HRSA guidelines relating to preventive care and screening for women, the Department of Health and Human Services requested that the Institute of Medicine (IOM) develop recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300. 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 capacity.” Id. at 10-12, AR at 308-10. IOM determined that coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany them) and promote healthy birth spacing. Id. at 102-03, AR at 400-01.
On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exemption relating to certain religious employers authorized by regulations issued that same day (the “2011 amended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84.2 In
2 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and
(Footnote continued on next page)
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February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 amended interim final regulations while also creating a temporary enforcement safe harbor for non-grandfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215. The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,870 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21, 2012), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013), AR at 165-85.3
The 2013 final rules represent a significant accommodation by the government of the religious objections of certain non-profit religious organizations while promoting two important policy goals. The regulations provide women who work for non-profit religious organizations with access to contraceptive coverage without cost sharing, thereby advancing the government’s compelling interests in safeguarding public health and ensuring that women have equal access to health care. The regulations do so in a narrowly tailored way that does not require non-profit religious organizations with religious objections to contract, arrange, pay, or refer for that coverage.
(4) the organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220. 3 The 2013 final rules generally apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, except the amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013. See 78 Fed. Reg. at 39,87172, AR at 3-4.
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The 2013 final rules simplify and clarify the religious employer exemption by eliminating the first three criteria and clarifying the fourth. Under the 2013 final rules, a “religious employer” is “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended,” which refers to churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a).
The 2013 final rules also establish accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations.” 78 Fed. Reg. at 39,875-80, AR at 7-12. An “eligible organization” is an organization that satisfies the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the
Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. Under the 2013 final rules, an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. To be relieved of any such obligations, the 2013 final rules require only that an eligible organization complete a self-certification form stating that it is an eligible organization and provide a copy of that self-certification to its issuer or TPA. Id. at 39,878-79, AR at 10-11.
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In the case of a self-insured group health plan that is not a self-insured church plan, the organization’s TPA, upon receipt of the self-certification, must provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan without costsharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12. Any costs incurred by the TPA will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12. The regulations do not require the TPAs of self-insured church plans—like the MCC Plan—to make separate payments for contraceptive services for participants and beneficiaries in such plans under the accommodation. See 78 Fed. Reg. at 39,879-80, AR at 1112; 29 U.S.C. § 1003(b)(2).
STANDARD OF REVIEW Defendants move to dismiss this case for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. The party invoking federal jurisdiction bears the burden of establishing its existence, and the Court must determine whether it has subject matter jurisdiction before addressing the merits of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 9495, 104 (1998). Under Rule 12(b)(6), “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To the extent that the Court must consider the administrative record in addition to the face of the complaint, defendants move, in the alternative, for summary judgment under Rule 56. A party is entitled to summary judgment where the administrative record demonstrates “that
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there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
This memorandum also responds to plaintiffs’ motion for preliminary injunction. A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20; Autocam Corp. v. Sebelius, No. 1:12-cv-1096, 2012 WL 6845677, at *4 (W.D. Mich. Dec. 24, 2012), aff’d, 730 F.3d 618 (6th Cir. 2013).4
ARGUMENT
I. THIS CASE SHOULD BE DISMISSED BECAUSE THE COURT LACKS SUBJECT MATTER JURISDICTION Plaintiffs’ motion for preliminary injunction, and their entire case, should be dismissed at
the outset for lack of standing. “[T]he irreducible constitutional minimum of standing” requires that a plaintiff (1) have suffered an injury in fact, (2) that is caused by the defendant’s conduct, and (3) that is likely to be redressed by a favorable ruling. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). As to the injury prong, a plaintiff must demonstrate that it has “suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (quotations omitted).
4 Plaintiffs’ suggestion that they need not show a likelihood of success on the merits if the Court determines that the remaining factors strongly favor plaintiffs, see Pls.’ Mem. of Law in Supp. of Pls.’ Mot. for Prelim. Inj. (“Pls.’ Mem.”) at 12-13, ECF No. 15, is in significant tension with the Supreme Court’s requirement that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,” Winter, 555 U.S. at 20 (emphasis added); Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir. 2012); Autocam, 2012 WL 6845677, at *4. Further, where a plaintiff’s alleged harm is a deprivation of RFRA or First Amendment rights, as here, the merits and irreparable harm prongs merge. See Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., No. 11-1538, 2012 WL 5258999, at *2 (6th Cir. Oct. 25, 2012). In this respect, plaintiffs cannot show irreparable harm without also showing a likelihood of success on the merits. See id.; McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012); Autocam, 730 F.3d at 624.
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Allegations of possible future injury do not suffice; rather, “[a] threatened injury must be certainly impending to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quotation omitted).
The harm alleged by plaintiffs is that, to avail themselves of the accommodations, the challenged regulations require them to engage in actions that “facilitate” and/or make them the “trigger” for the provision of payments for contraceptive services by a third party. See Pls.’ Mem. at 9. The MCC Plan, however, is a self-insured “‘church plan’ generally exempt from . . . ERISA.” Compl. ¶ 16. Defendants lack regulatory authority to require the TPAs of such selfinsured church plans to make the separate payments for contraceptive services for participants and beneficiaries in such plans under the accommodation.
In general, under the challenged regulations, when a TPA receives a copy of the selfcertification from an eligible employer that sponsors a self-insured group health plan, that TPA becomes an ERISA Section 3(16), 29 U.S.C. § 1002(16), plan administrator and claims administrator for the purpose of providing the separate payments for contraceptive services. See 29 C.F.R. § 2510.3-16(b). Thus, the contraceptive coverage requirements can be enforced against such TPAs through defendant Department of Labor’s ERISA enforcement authority. See 78 Fed. Reg. at 39,879-39,880, AR at 11-12. But church plans are specifically excluded from the ambit of ERISA. See 29 U.S.C. § 1003(b)(2). Thus, ERISA enforcement authority is not available with respect to the TPAs of self-insured church plans under the accommodation, and the government cannot compel such TPAs under such authority to provide contraceptive coverage to self-insured church plan participants and beneficiaries under the accommodation, including the plaintiffs’ employees and their covered dependents.
MCC is entirely exempt from the regulations, and Catholic Charities remains eligible for the accommodations under the final regulation promulgated by defendant Department of the
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Treasury, 26 C.F.R. § 54.9815-2713A, and therefore need not contract, arrange, pay, or refer for contraceptive coverage.5 And neither the MCC Plan nor any TPA of the MCC Plan is required under the regulations to provide separate payments for contraceptive services or to contract or otherwise arrange with a third party for such payments to be made with respect to the participants and beneficiaries of the MCC Plan. In short, under the challenged regulations, there is absolutely no connection between plaintiffs and contraceptive coverage. Thus, the injury of which plaintiffs complain—that the regulations somehow require them to facilitate access to contraceptive services to which they object on religious grounds—simply does not apply to plaintiffs here. Because plaintiffs lack standing to assert their claims, this case should be dismissed in its entirety. II. PLAINTIFFS’ CLAIMS LACK MERIT
A. Plaintiffs’ Religious Freedom Restoration Act Claim Fails 1. The regulations do not substantially burden plaintiffs’ exercise of religion
Under RFRA, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. § 2000bb-1 et seq.), the federal government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. 42 U.S.C. 2000bb-1. Importantly, “only substantial burdens on the exercise of religion trigger the compelling interest requirement.” Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001). “A substantial burden exists when government action puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)). “An inconsequential or de minimis burden on religious practice does not rise to
5 The same can be said of any other entity that qualifies as an “eligible organization” under the accommodations, whether or not that organization is a plaintiff in this action.
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this level, nor does a burden on activity unimportant to the adherent’s religious scheme.”
Kaemmerling, 553 F.3d at 678; see Garner v. Kennedy, 713 F.3d 237, 241-42 (5th Cir. 2013)
(“In order to show a substantial burden, the plaintiff must show that the challenged action ‘truly
pressures the adherent to significantly modify his religious behavior and significantly violate his
religious beliefs.’”).
For three reasons, plaintiffs cannot show that the challenged regulations substantially
burden their religious exercise. First, as explained above, because the MCC Plan is a self-insured
church plan, the challenged regulations do not require the MCC Plan nor its TPAs to provide
separate payments for contraceptive services, or to contract or otherwise arrange with a third
party for such payments to be made with respect to the participants and beneficiaries of the MCC
Plan. The regulations, therefore, impose absolutely no burden on plaintiffs’ religious exercise, let alone a substantial burden. See supra Section I.6 Second, even assuming the regulations do
require the MCC Plan or its TPA to provide separate payments for contraceptive services— which the regulations do not7—the regulations require virtually nothing of plaintiffs, and
certainly do not require plaintiffs to modify their behavior in any meaningful way. Thus, the
6 Plaintiffs’ heavy reliance on out-of-circuit cases involving for-profit companies (Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), cert. granted, No. 13-354; Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013); and Gilardi v. HHS, 733 F.3d 1208 (D.C. Cir. 2013)), as well as the district court ruling in Zubik v. Sebelius, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013), is misplaced. None of those cases involved eligible organizations that offer health coverage through a self-insured church plan, and thus, the courts had no occasion to address the arguments defendants raise here. Furthermore, those out-of-circuit for-profit company cases—which conflict with the Sixth Circuit’s Autocam decision—are inapposite because for-profit corporations—unlike plaintiffs—do not qualify for the religious employer exemption or the accommodations for eligible organizations. See 78 Fed. Reg. at 39,875, AR at 7. Thus, for example, the regulations require for-profit companies to contract or otherwise arrange and pay for contraceptive coverage for the participants and beneficiaries of their group health plans. Plaintiffs, by contrast, are in a markedly different position. As previously explained, MCC is exempt, and in order to be relieved of the obligation to contract or otherwise arrange and pay for contraceptive coverage, Catholic Charities must only fulfill the self-certification requirement. Similarly, the district court in Zubik was wrong to rely on those for-profit company cases. The Zubik court’s conclusion that the regulations at issue in that case (and in this one) impose a substantial burden on the plaintiffs in that case—which was rendered without citation to any legal authority, id.at *24-27—is unpersuasive. 7 Defendants will make this assumption in the remainder of their RFRA argument because plaintiffs’ claims fail regardless of whether the challenged regulations require anything of their third-party TPAs.
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regulations cannot be deemed to impose any more than a de minimis burden on plaintiffs—let alone a substantial one. Third, even if this Court finds that the regulations impose some burden on plaintiffs’ religious exercise, any such burden would be far too attenuated to be substantial.
a. The regulations impose no more than a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs
To put this case in its simplest terms, plaintiffs challenge regulations that require them to do next to nothing, except what they would have to do even in the absence of the regulations. MCC is entirely exempt from the contraceptive coverage requirement.8 And Catholic Charities, as an eligible organization, is not required to contract, arrange, pay, or refer for contraceptive coverage. To the contrary, Catholic Charities is free to continue to refuse to do so, to voice its disapproval of contraception, and to encourage its employees to refrain from using contraceptive services. Catholic Charities need only fulfill the self-certification requirement and provide the completed self-certification to its TPA(s). Catholic Charities need not pay for contraceptive services to their employees. Instead, third parties—plaintiff’s TPA(s)—provide payments for contraceptive services, at no cost to plaintiff. In short, with respect to contraceptive coverage, the non-exempt plaintiff, Catholic Charities, need not do anything more than it did prior to the promulgation of the challenged regulations—that is, to inform its TPA(s) that it objects to providing contraceptive coverage in order to ensure that it is not responsible for contracting, arranging, paying, or referring for such coverage. Thus, the regulations do not require plaintiffs “to modify [their] religious behavior in any way.” Kaemmerling, 553 F.3d at 679. The Court’s inquiry should end here. A law cannot be a substantial burden on religious exercise when “it involves no action or forbearance on [plaintiffs’] part, nor . . . otherwise interfere[s] with any
8 Plaintiffs repeatedly suggest, without support, that the religious employer exemption adopted in the 2013 final rules is narrower than that contemplated in the ANPRM. See, e.g., Compl. ¶ 15. This contention is not only false, 78 Fed. Reg. at 39,886, AR at 18, but irrelevant: Even if the scope of the exemption in the final rules were different from what was set forth in the ANPRM—which it is not—plaintiffs have not indicated why that would be improper. In fact, it is the very purpose of the rulemaking process to subject a proposal to public comment and potentially alter the proposal accordingly. See, e.g., Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 951 (D.C. Cir. 2004).
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religious act in which [plaintiffs] engage[].” Id.; see also Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752, 761 (7th Cir. 2003) (holding, in the context of RLUIPA, that “a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable”).
Because the regulations place no burden at all on plaintiffs, they plainly place no cognizable burden on their religious exercise. Plaintiffs’ contrary argument rests on an unprecedented and sweeping theory of what it means for religious exercise to be burdened. Not only do plaintiffs want to be free from contracting, arranging, paying, or referring for contraceptive services for their employees—which, under these regulations, they are—but plaintiffs would also prevent anyone else from providing such coverage to their employees, who might not subscribe to plaintiffs’ religious beliefs. That this is the de facto impact of plaintiffs’ stated objections is made clear by their suggestion that RFRA is violated whenever they are a “but-for cause” of the provision of the objectionable products and services. See, e.g., Compl. ¶ 30. This theory would mean, for example, that even the government would not realistically be able to provide contraceptive coverage to plaintiffs’ employees (as plaintiffs elsewhere suggest), because it would be “trigger[ed],” id.; Pls.’ Mem. at 9, by plaintiffs’ refusal to provide such coverage themselves. But RFRA is a shield, not a sword, see O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1158-60 (E.D. Mo. 2012), appeal pending, No. 12-3357 (8th Cir.), and accordingly it does not prevent the government from providing alternative means of achieving important statutory objectives once it has provided a religious accommodation. Cf. Bowen v. Roy, 476 U.S. 693, 699 (1986) (“The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.”).
Plaintiffs’ RFRA challenge is similar to the claim that the D.C. Circuit rejected in Kaemmerling. There, a federal prisoner objected to the FBI’s collection of his DNA profile. 553 F.3d at 678. In concluding that this collection did not substantially burden the prisoner’s religious exercise, the court concluded that “[t]he extraction and storage of DNA information are
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entirely activities of the FBI, in which Kaemmerling plays no role and which occur after the BOP has taken his fluid or tissue sample (to which he does not object).” Id. at 679. In the court’s view, “[a]lthough the government’s activities with his fluid or tissue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be said to hamper his religious exercise because they do not pressure [him] to modify his behavior and to violate his beliefs.” Id. (internal citation and quotation marks omitted). The same is true here, where the provision of contraceptive services is “entirely [an] activit[y] of [a third party], in which [plaintiffs] play[] no role.” Id. As in Kaemmerling, “[a]lthough the [third party]’s activities . . . may offend [plaintiffs’] religious beliefs, they cannot be said to hamper [their] religious exercise.” Id.
Perhaps understanding the tenuous ground on which their RFRA claim rests, given that the regulations do not require them to contract, arrange, pay, or refer for contraceptive services, plaintiffs attempt to circumvent this problem by advancing the novel theory that the regulations require them to somehow “facilitate access” to contraceptive coverage, and that it is this “facilitation” that violates plaintiffs’ religious beliefs. See, e.g., Compl. ¶¶ 8, 152; Pls.’ Mem at 11. But the challenged regulations do not require MCC to do anything, and require Catholic Charities only to self-certify that it objects to providing coverage for contraceptive services and that it otherwise meets the criteria for an eligible organization, and to share that self-certification with its TPA(s). In other words, Catholic Charities is required to inform its TPA(s) that it objects to providing contraceptive coverage, which it has done or would have to do voluntarily anyway even absent these regulations in order to ensure that it is not responsible for contracting, arranging, paying, or referring for contraceptive coverage. The sole difference is that it must inform its TPA(s) that its objection is for religious reasons—a statement it has already made repeatedly in this litigation and elsewhere.
Furthermore, any burden imposed by the purely administrative self-certification requirement—which should take Catholic Charities a matter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA. The Sixth Circuit and other courts have made clear that the substantial burden hurdle is a high one. Living Water Church of God v. Charter
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Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007); Autocam, 2012 WL 6845677, at *6 (“[A] ‘substantial burden’ is a difficult threshold to cross,’ and Plaintiffs are unlikely to cross it.” (quoting Living Water Church of God, 258 F. App’x at 736)); see also Kaemmerling, 553 F.3d at 678 (“An inconsequential or de minimis burden on religious practice does not rise to this level [of a substantial burden].”); Washington v. Klem, 497 F.3d 272, 279-81 (3d Cir. 2007); McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir. 2004); Civil Liberties for Urban Believers, 342 F.3d at 761. Indeed, if this is not a de minimis burden, it is hard to see what would be. In fact, plaintiffs’ alternative proposals only confirm that the alleged “burden” of selfcertification is de minimis. They contend that, as an alternative to the accommodations developed by the Departments, the government should somehow expand or create other public programs so as to provide contraceptive coverage to the women who participate in their group health plans. RFRA plainly does not require defendants to expand or create government programs, particularly where, as here, there is no statutory authority to do so. See infra Section II.A.2.b. But, in any event, plaintiffs’ own proposals would entail the same putative “burden” as the existing accommodations, or an even greater burden: One way or another, plaintiffs would have to certify their eligibility for an accommodation, and the result would be that the women who participate in their plan would get contraceptive coverage through another source such as Medicaid. The government would of course, as it does with Medicaid, have to verify employment and/or dependent beneficiary status with the eligible organization. The current accommodations are thus likely to require less of plaintiffs’ involvement than would a government program to separately provide contraceptive coverage for their employees and dependents.
Contrary to plaintiffs’ suggestion, the mere fact that Catholic Charities claims that the self-certification requirement imposes a substantial burden on its religious exercise by requiring it to “facilitate” access to contraception does not make it so. See Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013) (“[W]e reject the notion . . . that a plaintiff shows a burden to be substantial simply by claiming that it is.”), aff’d, 724 F.3d 377 (3d Cir. 2013). Under RFRA, plaintiffs are entitled to their sincere religious beliefs, but they are not
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entitled to decide what does and does not impose a substantial burden on such beliefs. 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, 917 F. Supp. 2d at 413. Plaintiffs would limit the Court’s inquiry to two prongs: first, whether plaintiffs’ religious objections to the regulations are sincere, and second, whether the regulations apply significant pressure to plaintiffs to comply. But plaintiffs ignore a critical third criterion of the “substantial burden” test, which gives meaning to the term “substantial”: whether the challenged regulations actually require plaintiffs to modify their behavior in a significant—or more than de minimis—way. See Living Water Church of God, 258 Fed. App’x at 734-36; see also, e.g., Vision Church v. Vill. of Long Grove, 468 F.3d 975, 997 (7th Cir. 2006) (noting, in the RLUIPA context, that “the Supreme Court has found a ‘substantial burden’ to exist when the government puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs’” (quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 141 (1987))) (emphasis added); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348-49 (2d Cir. 2007); Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328, 1353-54 (N.D. Ga. 2012). As plaintiffs themselves appear to recognize, a “law ‘substantially burdens’ an exercise of religion if it compels one “to perform acts undeniably at odds with fundamental tenets of [one’s] religious beliefs,” Pls.’ Mem. at 23 (quoting Wisconsin v. Yoder, 406 U.S. 205, 218 (1972)) (emphasis added), “or ‘put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.’” Id. (quoting Thomas, 450 U.S. at 717-18) (emphasis added). This test does not require the Court to delve into the theological merits of a belief, but instead to examine the operation of the regulations and their impact on plaintiffs’ religious practice. See Autocam, 2012 WL 6845677 at *7-8.9
9 In Hobby Lobby, a bare majority of the en banc Tenth Circuit concluded that, in determining whether a burden is substantial, a court’s “only task is to determine whether the claimant's belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.” 723 F.3d at 1137. The government believes that the majority’s ruling in Hobby Lobby was wrong on this and many other points. However, even if this Court were inclined to agree with the Tenth Circuit, the majority proceeded to rely on Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), which makes clear that in order for a law to impose a substantial burden, it
(Footnote continued on next page)
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Under plaintiffs’ alternative interpretation of RFRA, courts would play virtually no role in determining whether an alleged burden is “substantial”—as long as a plaintiff’s religious belief is sincere, that would be the end of the inquiry. Plaintiffs would thus be allowed to evade RFRA’s threshold by simply asserting that the burden on their religious exercise is “substantial,” thereby paradoxically reading the term “substantial” out of RFRA. See id. 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.”). “If every plaintiff were permitted to unilaterally determine that a law burdened their religious beliefs, and courts were required to assume that such burden was substantial, simply because the plaintiff claimed that it was the case, then the standard expressed by Congress under the RFRA would convert to an ‘any burden’ standard.” Conestoga, 917 F. Supp. 2d at 413-14; see also Autocam, 2012 WL 6845677, at *7; Mersino Mgmt. Co. v. Sebelius, No. 13-CV-11296, 2013 WL 3546702, at *16 (E.D. Mich. July 11, 2013).10 The result would be to subject every act of Congress to strict scrutiny every time a plaintiff could articulate a sincerely held religious objection to compliance with that law.
Finally, plaintiffs seem to suggest that the regulations will actually require them to fund or subsidize access to contraceptive coverage because their issuers will find a way to pass on the costs of such coverage to plaintiffs. See, e.g., Pls.’ Mem. at 22. But the regulations specifically prohibit plaintiffs’ TPA(s) from charging any premium or otherwise passing on any costs to plaintiffs with respect to the issuers’ payments for contraceptive services. See 78 Fed. Reg. at
must require some actual change in religious behavior—either forced participation in conduct or forced abstention from conduct. See Hobby Lobby, 723 F.3d at 1138 (citing Abdulhaseeb, 600 F.3d at 1315). The Hobby Lobby substantial burden analysis is also inapposite because for-profit corporations are not eligible for the accommodations. For similar reasons, the Seventh Circuit’s substantial burden analysis in Korte—which followed Hobby Lobby—is unpersuasive. See Korte, 735 F.3d at 687. 10 RFRA’s legislative history makes clear that Congress did not intend such a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, substantial or otherwise. Congress amended the bill to add the word “substantially,” “to make it clear that the compelling interest standards set forth in the act” apply “only to Government actions [that] place a substantial burden on the exercise of” religious liberty. 139 Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy); see also id. (text of Amendment No. 1082).
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39,880, AR at 12. Any suggestion that plaintiffs’ TPA(s) will violate the law is purely speculative, and boils down to the baseless argument that the regulations impose a substantial burden because a third party might violate those same regulations. This contention has no merit.
In sum, the regulations do not impose a substantial burden on plaintiffs’ religious exercise, and thus Count I should be dismissed or summary judgment granted to defendants.
b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA
Although the regulations do not require plaintiffs to contract, arrange, pay, or refer for contraceptive coverage, plaintiffs’ complaint appears to be that the regulations require plaintiffs to indirectly facilitate conduct on the part of their employees that they find objectionable (i.e., the use of certain contraceptives). But this complaint has no limits. An employer provides numerous benefits, including a salary and other fringe benefits, to its employees and by doing so in some sense facilitates whatever use its employees make of those benefits. Plaintiffs not only seek to be free from the requirement to contract, arrange, pay, or refer for contraceptive coverage themselves—which they are under these regulations—but also seek to prevent anyone else from providing such coverage to their employees. But an employer has no right to control the choices of its employees, who may not share its religious beliefs, and who have a legitimate interest in access to the preventive services coverage made available under the challenged regulations.
Indeed, courts—including in this district—have held that claims raised by for-profit companies challenging the contraceptive coverage regulations, which—unlike here—actually require employers to contract, arrange, pay, or refer for the relevant coverage themselves, are too attenuated to amount to a substantial burden under RFRA. See, e.g., Autocam, 2012 WL 6845677, at *6-7. Any burden on plaintiffs, which are eligible for the religious employer exemption or the accommodations, is a fortiori too attenuated to be substantial. For example, the district court in Conestoga reasoned that the ultimate decision of whether to use contraception “rests not with [the employer], but with [the] employees” and that “any burden imposed by the
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regulations is too attenuated to be considered substantial.” 917 F. Supp. 2d at 414-15. The Conestoga court further explained that the indirect nature of any burden imposed by the regulations distinguished them from the statutes challenged in Yoder, Sherbert, Thomas, and Gonzales. See Conestoga, 917 F. Supp. 2d at 415; see also, e.g., Autocam, 2012 WL 6845677, at *6; O’Brien, 894 F. Supp. 2d at 1158-60.11
As these courts concluded, the preventive services coverage regulations result in only an indirect impact on for-profit companies, which must provide contraceptive coverage themselves. Any burden on plaintiffs and similar eligible organizations that qualify for the accommodations is even more attenuated. Not only are plaintiffs separated from the use of contraception by “[a] series of events” that must occur before the use of contraceptive services to which plaintiffs object would “come into play,” Conestoga, 917 F. Supp. 2d at 414-15, but they are also further insulated by the fact that a third party—plaintiffs’ TPA(s)—and not plaintiffs, will actually contract, arrange, pay, and refer for such services, and thus plaintiffs are in no way subsidizing— even indirectly—the use of preventive services that they find objectionable. Under plaintiffs’ theory, their religious exercise is substantially burdened when one of their employees and her health care provider make an independent determination that the use of certain contraceptive services is appropriate, and such services are paid for exclusively by plaintiffs’ issuers, with none of the cost being passed on to plaintiffs, and no administration of the payments by plaintiffs, solely because plaintiffs self-certified that they have religious objections to providing contraceptive coverage and so informed their issuers.
But a burden cannot be “substantial” under RFRA when it is attenuated. See Autocam, 2012 WL 6845677, at *6-7. 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., Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009); see also Conestoga, 917 F. Supp. 2d at 413-14. A
11 See also Korte, 735 F.3d at 705-15 (Rovner, J., dissenting); Eden Foods, 2013 WL 1190001; Annex Medical, Inc. v. Sebelius, No. 12–2804, 2013 WL 101927, *4-5 (D. Minn. Jan. 8, 2013).
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plaintiff cannot establish a substantial burden on his religious exercise by invoking this type of trickle-down theory; to constitute a substantial burden under RFRA, the burden must be imposed on the plaintiff himself. See Conestoga, 917 F. Supp. 2d at 411, 413; Autocam, 2012 WL 6845677, at *7.12 Here, of course, there is no such direct burden. In fact, given that any payment for contraceptive services is made by plaintiffs’ issuers, the regulations have even less impact on plaintiffs’ religious exercise than plaintiffs’ payment of salaries to their employees, which those employees can use to purchase contraceptives. See O’Brien, 894 F. Supp. 2d at 1160; Conestoga, 917 F. Supp. 2d at 414; Korte, 735 F.3d at 715-16 (Rovner, J., dissenting); Autocam, 2012 WL 6845677, at *6.
Plaintiffs remain free to refuse to contract, arrange, pay, or refer for contraceptive coverage; to voice their disapproval of contraception; and to encourage their employees to refrain from using contraceptive services. The regulations therefore affect plaintiffs’ religious practice, if at all, in a most attenuated way. In short, because the preventive services coverage regulations “are several degrees removed from imposing a substantial burden on [plaintiffs],” O’Brien, 894 F. Supp. 2d at 1160, the Court should dismiss plaintiffs’ RFRA claim, or grant summary judgment to defendants, even if it finds—contrary to the government’s argument—that the challenged regulations impose some burden on plaintiffs’ religious exercise.
2. 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
12 Thomas is not to the contrary. In Thomas, the Supreme Court recognized that “a compulsion may certainly be indirect and still constitute a substantial burden, such as the denial of a benefit found in Thomas.” Conestoga, 917 F. Supp. 2d at 415 n.15. But that is not so where the burden itself is indirect, as it is here. See id.. As previously explained, see supra note 9, in Hobby Lobby, 723 F.3d 1114, a bare majority of the en banc Tenth Circuit concluded that the word “substantial” in RFRA refers to the “intensity of coercion” rather than to the directness or indirectness of the burden, if any, on a plaintiff’s religious exercise. Id. at 1137-40. The Tenth Circuit’s conclusion that the substantial burden requirement relates to the intensity of the coercion, however, is inconsistent with Kaemmerling, discussed above, as well as other decisions that have analyzed “substantial burden” in terms of the degree to which the challenged law directly imposes a requirement or prohibition on religious practice. See 553 F.3d at 678-79; Living Water Church of God, 258 Fed. App’x at 734; McEachin, 357 F.3d at 203 n.6; Civil Liberties for Urban Believers, 342 F.3d at 761. And, again, the substantial burden analysis in Hobby Lobby and Korte are inapplicable to this case. See supra notes 7 & 9.
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a. The regulations significantly advance compelling governmental interests 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 interests, and are the least restrictive means to achieve those interests. First, the promotion of public health is unquestionably a compelling 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 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 by “expanding access to and utilization of recommended preventive services for women.” 78 Fed. Reg. at 39,887, AR at 19.
The primary predicted benefit of the preventive services coverage 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), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increase access to and utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significant barrier to access to contraception.” (citation omitted)), AR at 5.
Increased access to FDA-approved contraceptive services is a key part of these predicted health outcomes, as unintended pregnancies have proven in many cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4. 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, AR at 318, 401-02. Contraceptive coverage further helps to avoid “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely
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spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small-for-gestational age births.”) (citing studies), AR at 4. And “[c]ontraceptives also have medical benefits for women who are contraindicated for pregnancy, and there are demonstrated preventive health benefits from contraceptives relating to conditions other than pregnancy (for example, prevention of certain cancers, menstrual disorders, and acne).” 78 Fed. Reg. at 39,872, AR at 4; see also IOM REP. at 103-04 (“[P]regnancy may be contraindicated for women with serious medical conditions such as pulmonary hypertension . . . and cyanotic heart disease, and for women with the Marfan Syndrome.”), AR at 401-02.
Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations: assuring that women have equal access to health care services. 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. As the Supreme Court explained in Roberts v. U.S. Jaycees, 468 U.S. 609 (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 historically plagued certain disadvantaged groups, including women.” Id. at 626. Thus, “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interests.” Id. By including in the ACA 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) (statement of Sen. Mikulski); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 19, AR at 317. These costs result in women often forgoing preventive care and place women in the workforce at a disadvantage compared to their male coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 20, AR at 318. Congress’s attempt to equalize the provision of
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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).13
Although the challenged regulations further these two compelling governmental interests,
while simultaneously accommodating the religious objections of eligible organizations, plaintiffs
maintain 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 27. But this
is not a case where underinclusive enforcement of a law suggests that the government’s
“supposedly vital interest” is not really compelling. Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 546-47 (1993). For the most part, 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. Or they reflect the government’s attempts to balance the compelling
13 In arguing that the government’s interests are not compelling, plaintiffs suggest the government must separately analyze the impact of and need for the regulations as to each and every employer and employee in America. See Pls.’ Mem. at 26. But this level of specificity would be impossible to establish and would render this regulatory scheme—and potentially every regulatory scheme challenged due to religious objections—completely unworkable. See United States v. Lee, 455 U.S. 252, 259-60 (1982). In practice, courts have not required the government to analyze the impact of a regulation on the single entity seeking an exemption, but have conducted the inquiry with respect 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). Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 435 (2006), 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 v. Verner, 374 U.S. 398 (1963), 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.
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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 interests). And, unlike the exemption plaintiffs seek for employers that object to the regulations on religious grounds, the existing exceptions do not undermine the government’s interests in a 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); see also 78 Fed. Reg. at 39,887, AR at 19.
For example, the grandfathering of certain health plans with respect to certain ACA provisions is not 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. See 78 Fed. Reg. at 39,887 n.49, AR at 19. 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. 34,538, 34,546 (June 17, 2010).
This incremental transition does not 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 over time. Defendants have estimated that a majority of group health plans will have lost their grandfather status by the end of 2013. See id. at 34,552; see also Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190, AR at 663-64, 846. Thus, any purported adverse effect on the compelling interests
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underlying the regulations will be quickly mitigated, which is in stark contrast to the permanent exemption plaintiffs seek. Plaintiffs would have this Court believe that an interest cannot truly be “compelling” unless Congress is willing to impose it on everyone all at once despite competing interests, but plaintiffs offer no support for that untenable proposition. See Legatus v. Sebelius, 901 F. Supp. 2d 980, 994 (E.D. Mich. 2012) (“[T]he grandfathering rule seems to be a reasonable plan for instituting an incredibly complex health care law while balancing competing interests.”).14
The only true exemption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a). But there is a rational distinction between this narrow exception and the expansion plaintiffs seek. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers, including organizations eligible for the accommodations, to employ people of the same faith who share the same objection, and who would therefore be less likely to use contraceptive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19. In any event, it would be perverse to hold that the government’s provision of a limited religious exemption eliminates its compelling interest in the regulation, thus effectively extending the same exemption to anyone else who wants it under RFRA. Such a reading of RFRA would discourage the government from accommodating religion, the opposite of what Congress intended in enacting RFRA.
Granting plaintiffs the much broader exemption they request would undermine defendants’ ability to enforce the regulations in a rational manner. See O Centro, 546 U.S. at 435. We are a “cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld v. Brown, 366 U.S. 599, 606 (1961); see also S. Ridge Baptist Church,
14 Plaintiffs also allude to a “small-employer exemption[].” Pls.’ Mem. at 27. But 26 U.S.C. § 4980H(c)(2) does not, as plaintiffs suggest, exempt small employers from the challenged regulations. Small businesses that elect to offer non-grandfathered health coverage to their employees are required to provide coverage for recommended preventive health services without cost sharing. See 42 U.S.C. § 300gg-13. And, small employers have business incentives to offer health coverage to their employees; an otherwise eligible small employer would lose eligibility for certain tax benefits if it did not do so. See 26 U.S.C. § 45R.
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911 F.2d at 1211, and many people object to various medical services. If any organization with a religious objection were able to claim an exemption from the operation of the preventive services coverage regulations—even where the regulations require virtually nothing of the organization— it is difficult to see how defendants could administer the regulations in a manner that would achieve Congress’s goals of improving the health of women and newborn 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 employers like plaintiffs would face negative health and other outcomes because they had obtained employment with an organization that objects to its employees’ use of contraceptive services, even when those services are paid for and administered by a third party. See id. (noting consequences “for the public and the government”); 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,887, AR at 19.
b. The regulations are the least restrictive means of advancing the government’s compelling interests
When determining whether a particular regulatory scheme is the “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 interests. See, e.g., United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987); United States v. Wilgus, 638 F.3d 1274, 128995 (10th Cir. 2011). The government is not required “to do the impossible—refute each and every conceivable alternative regulation scheme.” Wilgus, 638 F.3d at 1289. Instead, the government need only “refute the alternative schemes offered by the challenger.” Id.
Instead of explaining how plaintiffs and similarly situated eligible organizations could be exempted from the regulations without significant damage to the government’s compelling interests, plaintiffs conjure up, without any statutory support, several brand new statutory and regulatory schemes—most of which would require the government to pay for contraceptive
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coverage—that they claim would be less restrictive. See Pls.’ Mem. at 32. Yet plaintiffs fail to recognize that such alternatives would be incompatible with the fundamental statutory scheme set forth in the ACA, which plaintiffs do not challenge in this lawsuit. Congress did not adopt a single (government) payer system financed through taxes and instead opted to build on the existing system of employment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010). Plaintiffs point to no statutory authority for any of their proffered less restrictive alternatives. Nor is there any indication that Congress would have contemplated that agency action could be invalidated under RFRA because the agency in discharging its statutorily delegated authority failed to adopt an alternative scheme absent any statutory authority for doing so. Thus, even if defendants wanted to adopt one of plaintiffs’ non-employer-based alternatives, they would be constrained by the statute from doing so. See 78 Fed. Reg. at 39,888, AR at 20.
Furthermore, plaintiffs themselves indicate that they would “oppose many of” the alternatives that they put forth. Pls.’ Mem. at 32. Indeed, as noted above, it is not clear why the government’s provision of contraceptive coverage to women based upon their employer’s objection to providing it would not be subject to exactly the same RFRA claim that plaintiffs advance here. By their own admission then, plaintiffs’ proposals would do little—if anything—to satisfy their religious objections, and therefore should not be considered viable less restrictive alternatives. See New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940, 95051 (1st Cir. 1989) (Breyer, J.) (considering the limited extent to which an alternative would alleviate a religious burden in rejecting it as a “less restrictive alternative,” even though the plaintiff had expressed a preference for the alternative over the challenged requirements). An eligible organization’s religious objection to contraceptive coverage would still “facilitate” the availability of such coverage—in this case, by the government—and the eligible organization would likely be called upon to verify or certify matters such as the religious objection to contraceptive coverage, and employment or plan beneficiary status. Plaintiffs cannot plausibly contend that the regulations are not the least restrictive means while simultaneously asserting that they would oppose their own suggested alternatives.
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Finally, even if plaintiffs would be satisfied by their proposed alternative schemes, 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), particularly where such alternatives would come at enormous administrative and financial cost to the government. A proposed alternative scheme is not an adequate alternative—and thus not a viable less restrictive means to achieve a compelling interest—if it is not feasible. See, e.g., New Life Baptist, 885 F.2d at 947; 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., 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. Defendants considered plaintiffs’ alternatives and determined that they were not feasible because the agencies lacked statutory authority to implement them; they would impose considerable new costs and other burdens on the government; and they would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20; see also, 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.
Nor would the proposed alternatives be equally effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Kaemmerling, 553 F.3d at 684 (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 build on 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 employer-based system of health coverage through which women will face minimal logistical and administrative obstacles to receiving coverage of their care. Plaintiffs’ alternatives, by
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contrast, have none of these advantages. They would require establishing entirely new government programs and infrastructures or fundamentally altering existing ones, and would almost certainly require women to take burdensome steps to find out about the availability of and sign up for a new benefit, thereby ensuring that fewer women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20. Nor do plaintiffs offer any suggestion as to how these programs could be integrated with the employer-based system or how women would obtain governmentprovided preventive services in practice. Thus, plaintiffs’ proposals—in addition to raising myriad administrative and logistical difficulties and being unauthorized by any statute and not funded by any appropriation—are less likely to achieve the compelling interests furthered by the regulations, and therefore do not represent reasonable less restrictive means. Id.
Because plaintiffs have failed to offer viable less restrictive alternatives, the Court should reject plaintiffs’ argument that the regulations fail strict scrutiny.15
B. The Regulations Do Not Violate the Free Exercise Clause A law that is neutral and generally applicable does not run afoul of the Free Exercise Clause even if it prescribes conduct that an individual’s religion proscribes or has the incidental effect of burdening a particular religious practice. Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990). “Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law is neutral if it does not target religiously motivated conduct either on its face or as applied. Id. at 533. A neutral law has as its purpose something other than the disapproval of a particular religion, or of religion in general. Id. at 545. A law is generally applicable so long as it does not selectively impose burdens only on conduct motivated by religious belief. Id.
15 Plaintiffs cite extra-record evidence in support of many of their arguments. For example, they cite a law review article for the proposition that the challenged regulations “are unlikely to significantly impact contraceptive use.” See Pls.’ Mem. at 30. The introduction of this and other extra-record evidence is inappropriate and should not be considered by the Court. Plaintiffs are challenging agency regulations, and thus this Court’s review is limited to the administrative record. See, e.g., United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963).
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Unlike such selective laws, the preventive services coverage regulations are neutral and generally applicable. Indeed, nearly every court to have considered a free exercise challenge to the prior version of the regulations—including in this district—has rejected it, concluding that the regulations are neutral and generally applicable.16 See Autocam, 2012 WL 6845677, at *5 (“The ACA’s contraceptive coverage requirement is neutral and generally applicable. It does not target a particular religion or religious practice or have as its objective the interference with a particular religion or religious practice.”). “The regulations were passed, not with the object of interfering with religious practices, but instead to improve women’s access to health care and lessen the disparity between men’s and women’s healthcare costs.” O’Brien, 894 F. Supp. 2d at 1161. The regulations reflect expert medical recommendations about the medical necessity of contraceptive services, without regard to any religious motivations for or against such services. See, e.g., Conestoga, 917 F. Supp. 2d at 410 (“It is clear from the history of the regulations and the report published by the Institute of Medicine that the purpose of the [regulations] is not to target religion, but instead to promote public health and gender equality.”).
The regulations, moreover, do not pursue their purpose “only against conduct motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (concluding law that “punishe[d] conduct within its reach without regard to whether the conduct was religiously motivated” was generally applicable). The regulations apply to all non-grandfathered health plans that do not qualify for the religious employer exemption or the
16 See MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., No. 13-11379, 2013 WL 1340719, at *5 (E.D. Mich. Apr. 3, 2013); Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL 1190001, at *4-*5 (E.D. Mich. Mar. 22, 2013); Conestoga, 917 F. Supp. 2d at 409-10; Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943, 952-53 (S.D. Ind. 2012), rev’d on other grounds, No. 13-1077 (7th Cir. Nov. 8, 2013); Autocam, 2012 WL 6845677 at *5; Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735, 744-47 (S.D. Ill. 2012), rev’d on other grounds, No. 12-3841 (7th Cir. Nov. 8, 2013); Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1289-90 (W.D. Okla. 2012), rev’d on other grounds, 723 F.3d 1114; O’Brien, 894 F. Supp. 2d at 1160-62; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 81-87 (Cal. 2004) (same). But see Sharpe Holdings, Inc. v. HHS, 2012 WL 6738489, at *5 (E.D. Mo. Dec. 31, 2012); Geneva Coll. v. Sebelius, 929 F.Supp.2d 402 (W.D. Penn. 2013).
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accommodations for eligible organizations. Thus, “it is just not true . . . that the burdens of the [regulations] fall on religious organizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536).
The existence of express exceptions or accommodations for objectively defined categories of entities, like grandfathered plans, religious employers, and eligible organizations, “does not mean that [the regulations do] not apply generally.” Autocam, 2012 WL 6845677, at *5 (citing Lee, 455 U.S. at 261). “General applicability does not mean absolute universality.” Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008); accord Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004); Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957, 96061 (9th Cir. 1991) (concluding employer verification statute was generally applicable even though it exempted independent contractors, household employees, and employees hired prior to November 1986 because exemptions “exclude[d] entire, objectively-defined categories of employees”); Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42, 44 (2d Cir. 1990) (same); Ungar v. N.Y.C. Hous. Auth., 363 F. App’x 53, 56 (2d Cir. 2010). “Instead, exemptions undermining ‘general applicability’ are those tending to suggest disfavor of religion.” O’Brien, 894 F. Supp. 2d at 1162. The exception for grandfathered plans is available on equal terms to all employers, whether religious or secular. And the religious employer exemption and eligible organization accommodations serve to accommodate religion, not to disfavor it. Id.; see also Conestoga, 917 F. Supp. 2d at 410; Grote, 914 F. Supp. 2d at 953. Thus, these categorical exceptions and accommodations do not trigger strict scrutiny.
“[C]arving out an exemption for defined religious entities [also] does not make a law nonneutral as to others.” Grote, 914 F. Supp. 2d at 953 (quotation omitted). Indeed, the religious employer exemption “presents a strong argument in favor of neutrality” by “demonstrating that the object of the law was not to infringe upon or restrict practices because of their religious motivation.” O’Brien, 894 F. Supp. 2d at 1161 (quotations omitted); see Conestoga, 917 F. Supp.
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2d at 410 (“The fact that exemptions were made for religious employers . . . . shows that the government made efforts to accommodate religious beliefs, which counsels in favor of the regulations’ neutrality.”). The regulations are not unlawful “merely because the [religious employer exemption] does not extend as far as Plaintiffs wish.” Grote, 914 F. Supp. 2d at 953.
Plaintiffs’ reliance on Lukumi, 508 U.S. 520, is of no help, as this case is a far cry from Lukumi, where the legislature specifically targeted the religious exercise of members of a single church (Santeria) by enacting ordinances that used terms such as “sacrifice” and “ritual,” id. at 533-34, and prohibited few, if any, animal killings other than Santeria sacrifices, id. at 535-36. Here, there is no indication that the regulations are anything other than an effort to increase women’s access to and utilization of recommended preventive services. See O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410; Grote, 914 F. Supp. 2d at 952-53. Plaintiffs’ unsupported assertion that the regulations are “part of a conscious political strategy to marginalize and delegitimize Plaintiffs’ religious views by holding them up for ridicule on the national stage,” Pls.’ Mem. at 34, is mere rhetorical bluster. And it cannot be disputed that defendants have made extensive efforts—through the religious employer exemption and the eligible organization accommodations—to accommodate religion in ways that will not undermine the goal of ensuring that women have access to coverage for recommended preventive services without cost sharing.17
Plaintiffs also posit that the regulations must have been designed to target plaintiffs’ religious practice of refusing to facilitate access to contraception because, prior to the promulgation of the regulations, “85 percent of health plans already cover[ed] contraception.” Pls.’ Mem. at 34. As an initial matter, this 85 percent figure represents only large employers, not small employers (only 62 percent of which covered contraception prior to issuance of the
17 Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999), an out-of-circuit case on which plaintiffs also rely (Pls.’ Mem. at 33), addressed a policy that created a secular exemption but refused all religious exemptions. The preventive services coverage regulations, in contrast, contain an exemption and accommodations that specifically seek to accommodate religion. Thus, unlike in Fraternal Order, there is simply no basis here to infer a discriminatory object behind the regulations. See Conestoga, 917 F. Supp. 2d at 409-10.
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regulations) or plans on the individual market. IOM REP. at 109, AR at 407. More importantly, many of the plans that covered contraceptive services imposed cost-sharing requirements that often resulted in women forgoing preventive care. Id. at 19-20, 109. The regulations eliminate that cost-sharing. Finally, even if plaintiffs could show that the regulations have a disproportionate effect on them (and they have not), it would not destroy the regulations’ neutrality. See O’Brien, 894 F. Supp. 2d at 1161 (rejecting identical argument). “[A] neutral and perfectly constitutional law may have a disproportionate impact upon religiously inspired behavior . . . . The Free Exercise Clause is not violated even though a group motivated by religious reasons may be more likely to engage in the proscribed conduct.” Id. (citing cases). Indeed, by plaintiffs’ logic, the government also was “target[ing],” Pls.’ Mem. at 34, those with religious objections to vaccinations, as a similar or even greater percentage of health plans covered vaccinations prior to promulgation of the challenged regulations. See 75 Fed. Reg. 41,726, 41,732 (July 19, 2010), AR at 232.18
Finally, plaintiffs maintain that the challenged regulations are subject to strict scrutiny under a “hybrid rights” theory because they also infringe on plaintiffs’ freedom of speech and association. The Sixth Circuit, however, has specifically rejected the theory. See Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993). Indeed, the Supreme Court, however, has never invoked this so-called “hybrid rights theory” to justify applying strict scrutiny to a free exercise claim. See Lukumi, 508 U.S. at 567 (Souter, J., concurring in part and concurring in the judgment) (noting the hybrid rights exception would either swallow the Smith rule or be entirely unnecessary).19
18 Plaintiffs’ assertion that the regulations were “directly modeled on a California statute,” Pls.’ Mem. at 35, is incorrect. Defendants considered the laws of multiple states. See 77 Fed. Reg. at 8,728, AR at 215. 19 Nevertheless, assuming arguendo that the hybrid rights theory is valid, it applies only where the plaintiff’s nonfree-exercise claims are “independently viable.” Mahoney v. Dist. of Columbia, 662 F. Supp. 2d 74, 95 n.12 (D.D.C. 2009). Here, plaintiffs assert in their brief that the preventive services coverage provision violates both the right to free exercise of religion and their “rights of free speech and association.” Pls.’ Mem. at 35-36. But plaintiffs do not even raise a separate free association claim and, as explained next, their free speech claims are meritless. “[T]he combination of two untenable claims” does not “equal[] a tenable one.” Henderson, 253 F.3d at 19; see also Civil
(Footnote continued on next page)
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For these reasons, plaintiffs’ free exercise claim—Count II of the Complaint—fails.20 C. The Regulations Do Not Violate the Free Speech Clause Plaintiffs’ free speech claims fare no better. The right to freedom of speech “prohibits the government from telling people what they must say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). But the preventive services coverage regulations do not compel speech—by plaintiffs or any other person, employer, or entity—in violation of the First Amendment. Nor do they limit what plaintiffs may say. Plaintiffs remain free under the regulations to express whatever views they may have on the use of contraceptive services (or any other health care services) as well as their views about the regulations. Plaintiffs, moreover, may encourage their employees not to use contraceptive services. Plaintiffs contend that the regulations violate their free speech rights in three ways, none of which has merit. First, plaintiffs are wrong to contend that the regulations require plaintiffs to “support ‘counseling’ in favor of” preventive services to which they object. Pls.’ Mem. at 36. The regulations simply require coverage of “education and counseling for all women with reproductive capacity.” HRSA Guidelines, AR at 283-84. There is no requirement that such education and counseling be “in favor of” any particular contraceptive service, or even in support of contraception in general. The conversations that may take place between a patient and her doctor cannot be known or screened in advance and may cover any number of options. To the extent that plaintiffs intend to argue that the covered education and counseling is objectionable because some of the conversations between a doctor and one of plaintiffs’ employees might be supportive of contraception, accepting this 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, and would extend to all such interactions, not
Liberties for Urban Believers, 342 F.3d at 765 (“‘[A] plaintiff does not allege a hybrid rights claim entitled to strict scrutiny analysis merely by combining a free exercise claim with an utterly meritless claim of the violation of another alleged fundamental right.’” (quoting Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 1999)). Thus, even if the hybrid rights theory were valid, it would not trigger strict scrutiny. 20 Even if the regulations were not neutral or generally applicable, plaintiffs’ free exercise challenge still would fail because the regulations satisfy strict scrutiny. See supra.
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just those that are the subject of the challenged regulations. The First Amendment does not require such a drastic result. See, e.g., Conestoga, 917 F.Supp.2d at 418-19.
Second, plaintiffs note that, in order to avail itself of an accommodation, an organization must self-certify that it meets the definition of “eligible organization.” Pls.’ Mem. at 37. But, contrary to plaintiffs’ assertion, the self-certification does not in any sense “trigger” payments for contraceptive services, Pls.’ Mem. at 37, as the government cannot require any TPA of the MCC Plan, which is a self-insured church plan, to provide payments for contraceptive services. Moreover, completion of the simple self-certification form is “plainly incidental to the . . . regulation of conduct,” FAIR, 547 U.S. at 62, not speech. Indeed, every court to review a Free Speech challenge to the prior contraceptive-coverage regulations has rejected it, in part, because the regulations deal with conduct. See Autocam, 2012 WL 6845677, *8; see also MK Chambers, 2013 WL 1340719 at *6 (“Like the [law at issue in FAIR], the contraceptive requirement regulates conduct, not speech.” (quotations omitted)); Briscoe v. Sebelius, 927 F. Supp. 2d 1109, 1120 (D. Colo. 2013) (“The plaintiffs cite no authority and I am not aware of any authority holding that such conduct qualifies as speech so as to trigger First Amendment protection.”); Conestoga, 917 F. Supp. 2d at 418; Grote, 914 F. Supp. at 955; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento, 85 P.3d at 89 (rejecting similar claim); Catholic Charities of the Diocese of Albany, 859 N.E.2d at 465 (same). The accommodations likewise regulate conduct by relieving an eligible organization of the obligation “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6.21 Plaintiffs’ suggestion that self-certifying their eligibility for an accommodation, which is incidental to the regulation of conduct, violates their speech rights lacks merit. See FAIR, 547 U.S. at 61-63.
21 Indeed, self-certifying eligibility for a religious accommodation is a far cry from the laws at issue in the cases plaintiffs cite, which mandated the posting of specific written messages throughout an organization’s building and advertisements, as well as speaking oral messages to the organization’s clients. See Pls.’ Mem. at 37 (citing Evergreen Ass’n v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011) and Centro Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011)).
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The regulations also do not require plaintiffs to subsidize any conduct that is “inherently expressive.” FAIR, 547 U.S. at 66; see also United States v. O’Brien, 391 U.S. 367, 376 (1968) (recognizing that some forms of “symbolic speech” are protected by the First Amendment). As an initial matter, the regulations explicitly prohibit plaintiffs’ issuers and TPAs from imposing any cost sharing, premium, fee, or other charge on plaintiffs with respect to the separate payments for contraceptive services made by the issuers or TPAs. Plaintiffs, therefore, are not funding or subsidizing anything pertaining to contraceptive coverage. Moreover, even if plaintiffs played some role in an issuer’s or TPA’s provision of payments for contraceptive services (and they do not), making payments for health care services is not the sort of conduct the Supreme Court has recognized as inherently expressive. See Conestoga, 917 F. Supp. 2d at 418; Grote, 2012 WL 6725905, at *10; Autocam, 2012 WL 6845677, at *8; O’Brien, 894 F. Supp. 2d at 1166-67; Catholic Charities of Sacramento, 85 P.3d at 89; Diocese of Albany, 859 N.E.2d at 465; see also FAIR, 547 U.S. at 65-66 (making space for military recruiters on campus is not conduct that indicates colleges’ support for, or sponsorship of, recruiters’ message).
Finally, plaintiffs’ claim that the regulations impose a so-called “gag order” that interferes with their free-speech rights, see Pls.’ Mem. at 37, is wholly without merit. Defendants have been clear that “[n]othing in these final regulations prohibits an eligible organization from expressing its opposition to the use of contraception.” 78 Fed. Reg. at 39,880 n.41, AR at 12. What the regulations prohibit is an employer’s improper attempt to interfere with its employees’ ability to obtain contraceptive coverage from a third party by, for example, threatening the TPA with a termination of its relationship with the employer because of the TPA’s “arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries.” See 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii). Addressing an analogous argument in the context of the National Labor Relations Act, the Supreme Court concluded that an employer’s threatening statements to its employees regarding the effects of unionization fell outside the protection of the First Amendment because they interfered with employee rights. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). The Court explained
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that there was no First Amendment violation because the employer was “free to communicate . . . any of his general views . . . so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’” Id.; see also Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (“[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” (quotation omitted)). The same is true here. Because the regulations do not prevent plaintiffs from expressing their views regarding the use of contraceptive services, but, rather, protect employees’ right to obtain payments for contraceptive services through TPAs, there is no infringement of plaintiffs’ right to free speech.
Accordingly, the regulations do not violate the Free Speech Clause, and Counts III and IV of the Complaint should be dismissed or summary judgment granted to the government.
D. The Regulations Do Not Violate the Establishment Clause “The clearest command of the Establishment Clause is that 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[ring] one religion over another” is subject to strict scrutiny. Id. at 246; see also Olsen v. DEA, 878 F.2d 1458, 1461 (D.C. Cir. 1989). 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. Larson, 456 U.S. 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 created special school district for religious enclave of Satmar Hasidim because it “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
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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) (upholding RLUIPA against Establishment Clause challenge because it did not “confer[] . . . privileged status on any particular religious sect” or “single[] out [any] bona fide faith for disadvantageous treatment”).
Like the statutes at issue in Gillette and Cutter, 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 and accommodations for eligible organizations apply to some employers but not others. “[T]he Establishment Clause does not prohibit the government from [differentiating between organizations based on their structure and purpose] when granting religious accommodations as long as the distinction[s] drawn by the regulations . . . [are] not based on religious affiliation.” Grote, 914 F. Supp. 2d at 954; accord O’Brien, 894 F. Supp. 2d at 1163; see also, e.g., Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1090-93 (8th Cir. 2000); Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995); Diocese of Albany, 859 N.E.2d at 468-69. Here, the distinctions established by the regulations are not so drawn.
The regulations’ definitions of religious employer and eligible organization “do[] not refer to any particular denomination.” Grote, 914 F. Supp. 2d at 954. The exemption and accommodations are available on an equal basis to organizations affiliated with any and all religions. The regulations, therefore, do not discriminate among religions in violation of the Establishment Clause. Indeed, every court to have considered an Establishment Clause challenge to the prior version of the regulations has rejected it. See, e.g., O’Brien, 894 F. Supp. 2d at 1162 (upholding prior version of religious employer exemption because it did “not differentiate between religions, but applie[d] equally to all denominations”); Conestoga, 917 F. Supp. 2d at 416-17 (same); Grote, 914 F. Supp. 2d at 954 (same); see also Liberty Univ., Inc. v. Lew, 733
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F.3d 72, 100-03 (4th Cir. 2013) (upholding another religious exemption contained in the ACA against an Establishment Clause challenge), cert. denied, No. 13-306 (Dec. 2, 2013).22
“As the Supreme Court has frequently articulated, there is space between the religion
clauses, in which there is ‘room for play in the joints;’ government may encourage the free
exercise of religion by granting religious accommodations, even if not required by the Free
Exercise Clause, without running afoul of the Establishment Clause.” O’Brien, 894 F. Supp. 2d
at 1163 (citations omitted). Accommodations of religion are possible because the type of
legislative line-drawing to which the plaintiffs object in this case is constitutionally permissible.
Id.; Conestoga, 917 F. Supp. 2d at 417; see, e.g., Walz v. Tax Comm’n of NY, 397 U.S. 664, 666 (1970); Amos, 483 U.S. at 334 (upholding Title VII’s exemption for religious organizations).23
Plaintiffs also claim that the regulations’ definition of religious employer violates the
Establishment Clause because, more than thirty-five years ago, the Internal Revenue Service
(IRS) developed a non-exhaustive list of fourteen facts and circumstances that may be
considered, in addition to “any other facts and circumstances which may bear upon the
organization’s claim for church status,” in assessing whether an organization is a church. See
22 Plaintiffs stretch Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), well beyond its facts in suggesting that the case stands for the proposition that the Establishment Clause prohibits the government from distinguishing among different types of organizations that adhere to the same religion. Pls.’ Mem. at 39. Weaver was limited to “laws that facially regulate religious issues,” 534 F.3d at 1257, and, particularly, those that do so in a way that denies certain religious institutions public benefits that are afforded to all other institutions, secular or religious. The court in Weaver said nothing about the constitutionality of exemptions from generally applicable laws that are designed to accommodate religion, as opposed to discriminate against religion. A requirement that any religious exemption that the government creates must extend to all organizations—no matter their structure or purpose— would hamper the government’s ability to accommodate religion. See Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334 (1987) (“There is ample room under the Establishment Clause for ‘benevolent’ neutrality which will permit religious exercise to exist without sponsorship and without interference.”); Diocese of Albany, 859 N.E.2d at 464 (“To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions – and thus to restrict, rather than promote, freedom of religion.”). And, the manner in which the law at issue in Weaver was administered required the government to make intrusive inquiries into a school’s religious beliefs and practices by, for example, reading syllabi to determine if a school’s theology courses were likely to convince students of religious truths. See 534 F.3d at 1261-62. The religious employer exemption requires no such inquiry: Qualification for the exemption does not require the government to make any determination, much less an unconstitutionally intrusive one. 23 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; Larson, 456 U.S. at 251-52.
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Found. of Human Understanding v. Comm’r of IRS, 88 T.C. 1341, 1357-58 (1987); Internal Revenue Manual (IRM) 7.26.2.2.4. Although plaintiffs do not appear to have ever before challenged the constitutionality of this non-exhaustive list, they now contend that it acts to require the government to make impermissible “judgments regarding beliefs, practices, and organizational structure.” Pls.’ Mem. at 42. This claim fails for numerous reasons.
As an initial matter, the claim is not ripe and therefore should be dismissed for lack of jurisdiction. The non-exhaustive list that plaintiffs seek to challenge is not set out in any statute, regulation, or other binding source of law. It is instead contained in the IRM, which serves as a source of guidance for the internal administration of the IRS and is not binding on the IRS or courts. United States v. Will, 671 F.2d 963, 967 (6th Cir. 1982); Capital Fed. Sav. & Loan Ass’n v. Comm’r of Internal Revenue, 96 T.C. 204, 216-17 (1991). A party can challenge such guidance “only if and when the directive has been applied specifically to them.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987); see also, e.g., Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Eng’rs, 335 F.3d 607, 619 (7th Cir. 2003) (concluding general statement of policy was not ripe for review). Plaintiffs do not challenge any determination by the IRS that was based on this IRM provision. Because defendants have not applied a similar nonexhaustive list of facts and circumstances to plaintiffs, plaintiffs’ challenge is not ripe.
Indeed, qualification for the religious employer exemption does not require the government to make any determination, whether as a result of the application of the nonexhaustive list or otherwise. If an organization “is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended,” it qualifies for the exemption, without any government action whatsoever. 45 C.F.R. § 147.131(a). Plaintiffs, moreover, have no difficulty determining whether they qualify for the exemption. MCC alleges that it qualifies for the exemption, Compl. ¶¶ 9, 120, and Catholic Charities allege that it does not, id. ¶ 11. Any claim—which plaintiffs do not in fact make—that the government will dispute these allegations and therefore need to undertake any
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sort of intrusive inquiry into whether plaintiffs qualify for the exemption is entirely speculative and thus unripe for this reason as well.
Finally, even assuming plaintiffs could mount a facial challenge to a non-exhaustive list of facts and circumstances that the defendant agencies have never applied to plaintiffs, any such challenge would be meritless. Any interaction between the government and religious organizations that may be necessary to enforce the religious employer exemption is not so “comprehensive,” Lemon v. Kurtzman, 403 U.S. 602, 619 (1971), or “pervasive,” Agostini v. Felton, 521 U.S. 203, 233 (1997) (quotations omitted), as to result in excessive entanglement. The Supreme Court has upheld laws that require government monitoring that is more onerous than any monitoring that may be required to enforce the religious employer exemption. See Bowen v. Kendrick, 487 U.S. 589, 615-617 (1988) (no excessive entanglement where the government reviewed and monitored programs and materials); Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 764–765 (1976) (no excessive entanglement where the state conducted annual audits); see also United States v. Corum, 362 F.3d 489, 496 (8th Cir. 2004). And every court to address the issue upheld the prior version of the religious employer exemption, which contained the same requirement that the organization be one that is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended, against an entanglement challenge. See Conestoga, 917 F. Supp. 2d at 417; O’Brien, 894 F. Supp. 2d at 1164-65; Geneva Coll., 929 F. Supp. 2d at 439-40.24
Thus, plaintiffs’ Establishment Clause claim—Count V of the Complaint—fails.
24 Even if this Court were to conclude that it had jurisdiction to adjudicate a facial challenge to the non-exhaustive list of facts and circumstances set forth in IRM 7.26.2.2.4 and that such nonbinding guidance violates the Establishment Clause, the remedy would be invalidation of the list, not invalidation of the contraceptive coverage requirement or the religious employer exemption. The regulations would survive, with the religious employer exemption being available to any organization that is organized and operates as a nonprofit entity and is a church, integrated auxiliary of a church, convention or association of churches, or the exclusively religious activities of any religious order, as those terms are specifically defined under section 6033 or commonly understood.
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E. The Regulations Do Not Interfere With Church Governance Plaintiffs also assert that, by allegedly requiring plaintiffs to facilitate practices in violation of their religious beliefs, the regulations interfere with plaintiffs’ “internal church governance” in violation of the Religion Clauses. See Pls.’ Mem. at 42. But that is merely a restatement of plaintiffs’ substantial burden theory,25 which fails for reasons explained already. Indeed, the main case cited by plaintiffs on this point, Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 132 S. Ct. 694 (2012), is inapposite. In Hosanna-Tabor, the Supreme Court held that allowing a minister employee to sue her church employer under the Americans with Disabilities Act—thereby interfering with “a church’s ability to select its own ministers”—violates the Free Exercise and Establishment Clauses. Id. at 704, 706. But this case is not about the selection of clergy, nor any other matters of church governance apart from plaintiffs’ religious objection to providing contraceptive coverage (which, again, is subsumed by plaintiffs’ substantial burden argument). Nor is this case about any law that regulates the structure of the church—plaintiffs may choose whatever organizational structure they wish. Thus, Count VI should be dismissed or summary judgment granted to defendants. F. Plaintiffs’ APA Claims Fail
1. The regulations are not contrary to law Plaintiffs contend the regulations violate the APA because they conflict with the Weldon Amendment to the Consolidated Appropriations Act of 2012. They are incorrect. Plaintiffs appear to reason that, because the preventive services coverage regulations require group health plans to cover emergency contraception, such as Plan B, they require plaintiffs to provide coverage for abortions in violation of federal law. 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
25 While the Zubik ruling was incorrect for reasons explained already, supra note 7, that court analyzed arguments about interference with the church under RFRA’s “substantial burden” test. See 2013 WL 6118696 at *27.
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Case 1:13-cv-01247-GJQ Doc #25 Filed 12/17/13 Page 57 of 63 Page ID#841
of, or refer for abortions.” Pub. L. No. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011). The regulations, however, do not require that any health plan cover abortion at all, much less as a preventive service. The government has made clear that the preventive services covered by the regulations do not include abortifacient drugs.26 Although plaintiffs are certainly entitled to believe that emergency contraceptives and certain IUDs are abortifacient drugs or cause abortions, neither the government nor this Court is required to accept that characterization, which is inconsistent with the FDA’s scientific assessment and with federal law. While plaintiffs’ religious beliefs may define abortion more broadly than federal law, statutory interpretation requires that terms be construed as a matter of law and not in accordance with any individual’s personal views or beliefs. E.g., GEICO v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).
In recommending what contraceptive services should be covered by health plans without cost-sharing, the IOM Report identified the contraceptives that have been approved by the FDA as safe and effective. See IOM REP. at 10, AR at 308. And the list of FDA-approved contraceptives includes emergency contraceptives such as Plan B. See id. at 105, AR at 403. The basis for the inclusion of such drugs among safe and effective means of contraception dates back to 1997, when the FDA first explained why Plan B and similar drugs act as contraceptives rather than abortifacients. See Prescription Drug Products; Certain Combined Oral Contraceptives for Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997); 45 C.F.R. § 46.202(f). In light of this conclusion by the FDA, HHS informed Title X grantees, which are required to offer a range of acceptable and effective family planning methods—and, except under limited circumstances, 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 Dec. 11, 2013); see also 42 U.S.C.
26 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited Dec. 11, 2013); see also IOM REP. at 22 (recognizing that abortion services are outside the scope of recommendations), AR at 320.
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§§ 300, 300a-6. The regulations are consistent with over a decade of regulatory policy and practice and thus cannot be deemed contrary to any law dealing with abortion. See Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807, 815 (D.C. Cir. 2011) (giving particular deference to an agency’s longstanding interpretation).27
Thus, because the challenged regulations are not contrary to law, Count VI of the Complaint should be dismissed or summary judgment granted to defendants.
2. The regulations were promulgated in accordance with the APA In Count VII (the only count not raised in their preliminary injunction motion), plaintiffs assert that defendants failed to comply with the APA’s notice and comment procedures in relation to challenged regulations and the HRSA Guidelines. Plaintiffs also appear to allege that defendants improperly delegated their authority when they sought the expertise of the IOM. All of these allegations are baseless. The APA’s rulemaking provisions generally require that agencies provide notice of a proposed rule, invite and consider public comments, and adopt a final rule that includes a statement of basis and purpose. See 5 U.S.C. § 553(b), (c). Defendants complied with these requirements. As to the challenged regulations, defendants issued the ANPRM on March 21, 2012, and solicited comments on it. 77 Fed. Reg. 16,501. Defendants then considered those comments and issued the NPRM on February 6, 2013, requesting comments on the proposals contained in it. 78 Fed. Reg. 8456, 8457. Defendants received over 400,000 comments, and the preamble to the 2013 final rules contains a detailed discussion both of the comments defendants received and of defendants’ responses to those comments. See 78 Fed. Reg. at 39,871-39,888. The mere fact that the regulations as ultimately issued may not satisfy the preferences of each and every commenter is certainly not evidence that those comments were not considered. Given the range of interests
27 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“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. . . . [U]nder the current FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”).
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and views among commenters, it is unlikely—if not impossible—that any regulation will be fully in line with the comments made by every commenter.
As to the HRSA Guidelines, because there were no existing HRSA guidelines relating to preventive care and screening for women, HRSA sought the scientific and medical expertise of the IOM. IOM conducted a science-based review and made recommendations as to what the HRSA guidelines should include.28 This is not at all unusual, as entities like HRSA frequently contract with non-governmental entities, including the IOM, for this type of technical input. Seeking such input is not a delegation of HRSA’s authority, but rather a consultation. After considering the IOM’s recommendations, HRSA independently made the decision to adopt guidelines based on those recommendations, subject to the religious employer exemption. Moreover, nothing in the APA, or any other statute, requires HRSA to have subjected IOM’s recommendations to notice and comment procedures before adopting them in the guidelines. The APA’s notice-and-comment requirements apply only to rulemaking, 5 U.S.C. § 553(b), and a “rule” is defined in the APA, in relevant part, as being “designed to implement, interpret, or prescribe law or policy,” id. § 551(4). The guidelines neither do nor are designed to do any such thing, and as such they do not constitute a “rule” within the meaning of the APA; they are simply the clinical recommendations of a scientific body. The substantive obligations that are imposed on group health plans and health insurance issuers were imposed by Congress, in 42 U.S.C. § 300gg-13(a) and in corresponding provisions of ERISA and the Internal Revenue Code, which expressly and automatically imported the content of various guidelines (including the HRSA Guidelines), including new content after a specified period of time. Indeed, in the same provision, Congress also imported by reference clinical recommendations of the United States Preventive Services Task Force and the Advisory Committee on Immunization Practices of the
28 To the extent plaintiffs question the process that IOM used to develop its recommendations, see Compl. ¶ 219, they have not offered any support for the notion that the APA requires IOM to have provided the public with an opportunity to comment. IOM is an entity that gives expert advice to the federal government, and it issues recommendations that plainly do not have the force of law of their own accord. In any event, IOM did invite the public to speak at three public meetings and/or to submit written comments. See IOM REP. at 22-23, AR at 320-21.
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Centers for Disease Control and Prevention. Id. The clinical recommendations of these entities are not generally required to be subject to notice and comment, and there is no suggestion that Congress intended otherwise here for any of the referenced recommendations.29
For the above reasons, plaintiffs’ APA claims—Counts VI and VII—should be dismissed, or summary judgment should be entered in the government’s favor on those claims. III. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN
INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Even assuming arguendo that same rule applies to a statutory claim under RFRA, plaintiffs have not shown that the challenged regulations violate their First Amendment or RFRA rights, so there has been no “loss of First Amendment freedoms” for any period of time. Id. In this respect, the merits and irreparable injury prongs of the preliminary injunction analysis merge together, and plaintiffs cannot show irreparable injury without also showing a likelihood of success on the merits, which they cannot do. See supra note 4. Furthermore, plaintiffs’ claim to irreparable harm is further undermined by their own delay in filing suit. Although the challenged regulations were published in the Federal Register in early July, 78 Fed. Reg. 39,870, these plaintiffs waited roughly five months—until mid-November—to file suit and even longer—until early December—to seek expedition of their request for the extraordinary remedy of preliminary injunctive relief. Such a substantial and unexplained delay seriously undermines these plaintiffs’ claim of irreparable harm. See, e.g., Autocam, 2012 WL 6845677, at *9 (noting, in a challenge to the prior contraceptive-coverage regulations, that “the immediacy of the dilemma Plaintiffs face is in no small part of their own
29 In contrast, other provisions of the ACA use clear language when referring to the promulgation of substantive rules. See, e.g., 42 U.S.C. § 300gg-1(b)(3) (“The Secretary shall promulgate regulations with respect to enrollment periods under paragraphs (1) and (2).”); id. § 300gg-14(b) (“The Secretary shall promulgate regulations to define the dependents to which coverage shall be made available under subsection (a).”); id. § 300gg-17(d) (“Not later than 2 years after March 23, 2010, the Secretary shall promulgate regulations that provide criteria for determining whether a reimbursement structure is described in subsection (a).”). That Congress explicitly did not use such language here indicates that it did not intend the HRSA Guidelines to be “rules” within the meaning of the APA.
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making,” because plaintiffs filed suit “less than two months before the deadline Plaintiffs say is critical”); Fund for Animals v. Frizzell, 530 F.2d 982, 987 (D.C. Cir. 1975) (denying preliminary injunctive relief and noting that a delay of forty-four days after final regulations were issued was “inexcusable”).
Turning to the final two preliminary injunction factors—the balance of equities and the public interest—“there is inherent harm to an agency in preventing it from enforcing regulations that Congress found it in the public interest to direct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also Connection Distrib. Co. v. Reno, 154 F.3d 281, 296 (6th Cir. 1998) (indicating that granting an injunction against the enforcement of a likely constitutional statute would harm the government). Enjoining the preventive services coverage regulations as to plaintiffs would undermine the government’s ability to achieve Congress’s goals of improving the health of women and newborn children and equalizing the coverage of preventive services for women and men.30
It would also be contrary to the public interest to deny plaintiffs’ employees (and their families) the benefits of the preventive services coverage regulations. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982) (“[C]ourts . . . should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.”). Many of the plaintiffs’ employees may not share plaintiffs’ objections to the challenged regulations. Those employees should not be deprived of the benefits of payments provided by a third party that is not their employer for the full range of FDA-approved contraceptive services, as prescribed by a health care provider, on the basis of their employers’ religious objection. Many women do not
30 Plaintiffs note that defendants consented to preliminary injunctions in a few cases involving for-profit companies, see Pls.’ Mem. at 48-49, but defendants’ consent in those cases was nothing more than an effort to conserve judicial and governmental resources. Those cases were in the Seventh, Eighth, and D.C. Circuits, and they were filed after motions panels in those circuits had preliminary enjoined the regulations pending appeal in similar cases. See Mersino, 2013 WL 3546702 at *16 (“[W]here the government has conceded to injunctive relief, it appears that it has generally done so in jurisdictions where the legal landscape has been set against them, and continuing to litigate the claims in those jurisdictions would be a waste of both judicial and client resources.”). The government continues to oppose preliminary injunctions in other circuits regarding for-profit plaintiffs, and opposes in all circuits injunctive relief sought by non-profit plaintiffs like plaintiffs here.
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use contraceptive services because they are not covered by their health plan or require costly copayments, coinsurance, or deductibles. IOM REP. at 19-20, 109, AR at 317-18, 407; 77 Fed. Reg. at 8727, AR at 214; 78 Fed. Reg. at 39,887, AR at 19. As a result, in many cases, both women and developing fetuses suffer negative health consequences. See IOM REP. at 20, 102-04, AR at 318, 400-02; 77 Fed. Reg. at 8728, AR at 215. And women are put at a competitive disadvantage due to their lost productivity and the disproportionate financial burden they bear in regard to preventive health services. 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009); see also IOM REP. at 20, AR at 318.
Enjoining defendants from enforcing, as to plaintiffs, the preventive services coverage regulations—the purpose of which is to eliminate these burdens, 75 Fed. Reg. at 41,733, AR at 233; see also 77 Fed. Reg. at 8728, AR at 215—would thus inflict a very real harm on the public and, in particular, a readily identifiable group of individuals. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009) (vacating preliminary injunction entered by district court and noting that “[t]here is a general public interest in ensuring that all citizens have timely access to lawfully prescribed medications”). Accordingly, even assuming plaintiffs were likely to succeed on the merits (which they are not for the reasons explained above), any potential harm to plaintiffs resulting from their offense at a third party providing payment for contraceptive services at no cost to, and with no administration by, plaintiffs’ would be outweighed by the significant harm an injunction would cause these employees and their families.
CONCLUSION For the foregoing reasons, defendants respectfully ask that the Court deny plaintiffs’ motion for a preliminary injunction, and grant defendants’ motion to dismiss or, in the alternative, for summary judgment on all of plaintiffs’ claims. Respectfully submitted this 16th day of December, 2013,
STUART F. DELERY Acting Assistant Attorney General KATHLEEN R. HARTNETT
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Deputy Assistant Attorney General PATRICK A. MILES, JR. United States Attorney JENNIFER RICKETTS Director, Federal Programs Branch SHEILA M. LIEBER Deputy Director /s/ Jacek Pruski JACEK PRUSKI (CA Bar. No. 277211) Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Washington, D.C. 20001 Tel: (202) 616-2035; Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorneys for Defendant
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 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION __________________________

MICHIGAN CATHOLIC CONFERENCE, et al.,
Plaintiffs,
v.
KATHLEEN SEBELIUS, et al.,
Defendants. ___________________________________/

Case No. 1:13-CV-1247 HON. GORDON J. QUIST

OPINION Plaintiffs, the Michigan Catholic Conference (MCC) and Catholic Family Services, d/b/a Catholic Charities Diocese of Kalamazoo (Catholic Charities), have sued Defendants, the Department of Health and Human Services and its Secretary, Kathleen Sebelius, the Department of Labor and its Secretary, Jacob J. Lew, and the Department of Treasury. Plaintiffs seek to enjoin Defendants from enforcing provisions of the Patient Protection and Affordable Care Act (the ACA) related to contraceptive coverage. This is one of many cases filed by religious nonprofits challenging the ACA’s contraceptive coverage requirement. As far as this Court is aware, ten courts have ruled on challenges to the final version of the regulations. Six courts have ruled in favor of the plaintiffs. Southern Nazarene University, et al., v. Sebelius, et al., No. 5:13-cv-1015, 2013 WL 6804625 (W.D. Okl. Dec. 23, 2013); Geneva College, et al. v. Sebelius, et al., 2:12-cv-00207 (W.D. Pa. Dec. 23, 2013); Legatus, et al., v. Sebelius, et al., No. 12-1206, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013); Reaching Souls, Int’l, Inc., et al. v. Sebelius, et al., No. CIV-13-1092-D, 2013 WL 6804259 (W.D. Okl. Dec.

20, 2013); Roman Catholic Archdiocese of N.Y., et al. v. Sebelius, et al., No. 12civ2542, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013); Zubik v. Sebelius, No. 13cv1459, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013). Three courts have ruled in favor of the defendants. Catholic Diocese of Nashville, et al. v. Sebelius, et al., No. 3:13-cv-1303 (M.D. Tenn. Dec. 26, 2013); Univ. of Notre Dame v. Sebelius, et al., No. 3:13cv-01276-PPS-CAN (N.D. Ind. Dec. 20, 2013); Priests for Life v. Sebelius, et al., No. 13-1261 (EGS), 2013 WL 6672400 (D.D.C. Dec. 19, 2013). And one court ruled in favor of the plaintiffs in part and the defendants in part. Roman Catholic Archbishop of Washington v. Sebelius, et al., No. 1:13cv-01441-ABJ, 2013 WL 6729515 (D.D.C. Dec. 20, 2013).
Plaintiffs have moved for a preliminary injunction, requesting that the Court issue a decision before January 1, 2014. Defendants oppose the motion for preliminary injunction, and have moved to dismiss Plaintiffs’ complaint. The Court has reviewed the parties’ submissions and has held oral argument. Plaintiffs’ motion for preliminary injunction is now ready for decision.
Background 1. The Plaintiffs
Plaintiff MCC is a nonprofit corporation that sponsors and administers the MCC Second Amended and Restated Group Health Benefit Plan for Employees (the MCC Plan). (Compl. ¶ 16.) The MCC Plan is a self-funded “church plan,” and is administered by separate third party administrators (TPAs). (Id. ¶¶ 16, 41.) The MCC Plan provides health benefits to clergy, as well as to lay employees of Catholic schools, institutions, and other organizations (the covered units). (Id. ¶¶ 31, 41.) Catholic Charities, a nonprofit subsidiary of the Roman Catholic Diocese of Kalamazoo, is a covered unit under the MCC Plan. (Id. ¶¶ 17, 50.)
Plaintiffs believe that the use of contraceptives is immoral and that abortion and sterilization are prohibited. (Byrnes Decl. ¶¶ 8, 9.) In accordance with these beliefs, the MCC Plan has
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historically not offered coverage for contraceptives, sterilization, abortion-inducing drugs, or related counseling services. (Long Decl. ¶ 17.) In the past, the MCC has specifically notified its TPA that it would not cover such services. (Id. ¶ 18.) 2. The ACA Framework
The ACA, Pub. L. No. 111-148, 124 Stat. 119 (2012), was enacted in 2010. The ACA requires that employers with 50 or more full-time employees provide health insurance for their fulltime employees or pay a penalty on their federal tax return. 26 U.S.C. § 4980H. Employers with fewer than 50 full-time employees are not required to provide their employees with health insurance. Id. If these employers offer health coverage to their employees, however, they are generally subject to the other requirements of the ACA. 42 U.S.C. § 300gg–13.
The ACA also requires that group health plans provide coverage for certain preventative services without cost-sharing requirements. These preventative services include “with respect to women, such additional preventative 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).
Plans that are “grandfathered” under the ACA are not required to meet all the requirements for coverage, including that for women’s preventative care services. 42 U.S.C. § 18011. A plan loses its “grandfathered” status if it cuts benefits or increases out-of-pocket spending for consumers. 26 C.F.R. § 54.9815-1251T. The government projects that the majority of plans will lose their “grandfathered” status by the end of 2013. See 75 Fed. Reg. 34552. The MCC plan is not a “grandfathered” plan under the ACA. (Compl. ¶ 43.)
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3. Rulemaking under the ACA On February 15, 2012, the government published final rules pursuant to the ACA specifying
that plans cover, among other things, “[a]ll [FDA] approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity” (the contraceptive mandate). 77 Fed. Reg. 8725. The rule contained an exemption for certain religious employers. Id. at 8727. The goal of the exemption was to “respect[] the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46,621, 46,623. The rule provided a safe harbor for nonprofit organizations that had religious objections to contraceptive coverage but did not qualify for the exemption, and expressed the government’s intention to develop new regulations to accommodate these organizations. 77 Fed. Reg. 8725, 872628.
On July 2, 2013, the government issued a final rule (the 2013 final rule) addressing the requirements for religious nonprofits and clarifying the religious employer exemption. 45 C.F.R. § 147.131(b). The rule establishes an accommodation (the accommodation) for organizations that meet the following criteria:
(1) The organization opposes providing coverage for some or all of the contraceptive services required to be covered under § 147.130 (a)(1)(iv) on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (1) through (3) of this section, and makes such selfcertification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record requirements under section 107 of [ERISA].
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Id. The rule also clarified that the religious employer exemption applies to nonprofit organizations referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code, which refers to churches, their integrated auxiliaries, conventions and associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a).
Under the 2013 final rule, an organization that meets the criteria for the accommodation is not required to “contract, arrange, pay, or refer for contraceptive coverage.” 78 Fed. Reg. 39874. To avoid those obligations, the organization must submit a self-certification form to its health insurer or, if the organization has a self-insured plan, to a TPA. Id. at 39875. In the case of an organization with a self-insured plan, the TPA will provide or arrange for separate payments for contraceptive services for plan participants. Id. at 39880. The TPA will be reimbursed through adjustments to certain federal user fees. Id. The accommodation applies to plan years beginning on or after January 1, 2014. Id. at 39,872.
MCC qualifies for the exemption for religious employers. Catholic Charities does not qualify for the exemption, but does qualify for the accommodation. As such, Catholic Charities will have to self-certify in order to avoid being required to comply with the contraceptive mandate.
Legal Standard A preliminary injunction is an “extraordinary remedy” that is warranted only upon a clear showing that the movant is entitled to relief. Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 22, 129 S. Ct. 365, 376 (2008). A plaintiff seeking a preliminary injunction must demonstrate that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in its favor; and (4) an injunction is in the public interest. Id. at 20, 129 S. Ct. at 374. “[I]n the First Amendment context, the other [preliminary
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injunction] factors are essentially encompassed by the analysis of the movant’s likelihood of success on the merits.” Am. Freedom Def. Initiative v. Suburban Mobility Auth. for Reg’l Transp., 698 F.3d 885, 890 (6th Cir. 2012).
Discussion 1. Standing
Under the ACA regulations, Defendants may enforce the contraceptive mandate against TPAs through ERISA’s enforcement authority. See 78 Fed. Reg. at 39,879-39,880. However, church plans, including the MCC Plan, are specifically excluded from ERISA. See 29 U.S.C § 1003(b)(2). Defendants argue that, because they lack enforcement power over the TPA of the MCC Plan, there is no guarantee that the TPA will provide contraceptive coverage. Accordingly, Defendants argue, Plaintiffs lack standing because the harm alleged — the facilitation of access to contraceptive services — does not exist.
Defendants’ argument is flawed. Regardless of whether the government can force the TPA to take any action, the 2013 final rule requires Catholic Charities to take some action — provide contraceptive coverage or self-certify. Plaintiffs object to taking either of these actions and allege that the act of self-certification, itself, violates their religious beliefs because it requires them to be involved in a “scheme” aimed at providing contraceptives. Whether the end result involves the provision of contraceptive services or not, Plaintiffs have alleged an injury-in-fact. 2. Likelihood of success on the merits
Plaintiffs’ claims arise under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq., the First Amendment to the U.S. Constitution, and the Administrative Procedures Act (APA), 5 U.S.C. § 1001 et seq. The Court will address each of these claims in turn.
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A. RFRA RFRA provides that the government shall not “substantially burden a person’s exercise of religion,” even under a “rule of general applicability,” unless the government demonstrates “that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1.1 A law substantially burdens an exercise of religion if it puts “substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas v. Review Bd. of Indiana Emp’t Sec. Div., 450 U.S. 707, 718, 101 S. Ct. 1425, 1432 (1981). “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unimportant to the adherent’s religious scheme.” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C. Cir. 2008). The burden of demonstrating a substantial burden is high, and determining its existence is fact intensive. Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007). Plaintiffs argue that the contraceptive mandate imposes a substantial burden on their exercise of religion because it forces them to facilitate access to contraceptives and thus prevents them from bearing witness to their religious beliefs, causing “scandal.”2 Plaintiffs argue that the accommodation does nothing to alleviate the burdens imposed upon them for several reasons. Plaintiffs state that the accommodation requires Catholic Charities to contract with a TPA which will
1
The purpose of RFRA was to “restore the compelling interest test” abandoned by the Supreme Court in Emp’t Div. v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990). 42 U.S.C. § 2000bb. Thus, the Supreme Court’s pre-Smith cases discussing the Free Exercise Clause are instructive in evaluating RFRA claims.
2The pleadings in this case do not define “scandal.” Testimony in Zubik, 2013 WL 6118696, was that, in the Roman Catholic faith, scandal “means cooperation with an objectionable practice that goes against the faith or teaching one thing and behaving in another manner.” Id. at *34, fn. 15 (internal quotations omitted). This is consistent with the discussion of scandal during oral argument in this case.
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provide contraceptive services to Catholic Charities’ employees as long as they remain on the health plan.3 Catholic Charities must complete the self-certification form, which constitutes its “designation” of the TPA as the administrator for contraceptive benefits. By these acts, Plaintiffs assert that they will be forced to participate in a “scheme specifically designed to lure women to engage in” the use of contraceptive services. (Pls.’ Br. Supp. Mot. for Prelim. Inj. (Pls.’ Br.) at 22) (emphasis in original).4 In essence, Plaintiffs argue that the accommodation requires Catholic Charities to take actions that trigger its TPA to provide contraceptive coverage, which then provides a means for Plaintiffs’ employees to access contraceptive services. Thus, Plaintiffs argue, these acts constitute facilitation of objectionable services, and this facilitation is prohibited by their religious beliefs.
In response, Defendants point out that Catholic Charities may avoid the requirement to provide contraceptive coverage by self-certifying, i.e., signing a one-page form stating its objection to providing contraceptives, and submitting this form to its TPA. Defendants argue that this is not materially different from actions that Plaintiffs have taken in the past when they informed their TPA that they objected to such services in order to exclude the services from the plan. Because the regulation does not require Plaintiffs to “modify [their] behavior,” Thomas, 450 U.S. at 718, 101 S. Ct. at 1432, Defendants argue that any burden is de minimis. See Kaemmerling, 553 F.3d at 679.
The threshold issue before the Court concerns how to determine whether a burden is substantial. The Tenth and Seventh Circuits, in cases brought by for-profit companies challenging
3At oral argument, Plaintiffs argued that the law would require them to seek out a TPA to provide contraceptive services. It is undisputed that Plaintiffs already have a contractual relationship with a TPA. (Compl. ¶ 41.) Plaintiffs have not provided any evidence to indicate that their present TPA would refuse to provide these services.
4Plaintiffs also argue that the costs of providing contraceptive services will be passed back to religious organizations. The law, however, expressly prohibits this. 78 Fed. Reg. at 39,875-77. Any argument that TPAs will violate the law is speculative.
8

the contraceptive mandate, have focused solely on the extent of government pressure imposed by the law. See Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013). The Tenth Circuit found that, once the court identified the religious belief and found that it was sincere, the only remaining question was whether the government exerted “substantial pressure on the religious believer.” Hobby Lobby, 723 F.3d at 1140. Similarly, the Seventh Circuit found that the inquiry focused on the “coercive effect of the governmental pressure.” Korte, 735 F.3d at 684. Under the approach advocated by Plaintiffs, if a plaintiff shows that it has a sincerely held belief that performing an act would violate its religious beliefs, the only remaining inquiry for the court is whether the government exerts substantial and coercive pressure on the plaintiff to perform the act.
Defendants argue that this misinterprets the substantial burden standard. They assert that a plaintiff is entitled to its sincerely held beliefs but is not entitled to determine what constitutes a substantial burden on the exercise of these beliefs. Although courts may not evaluate the merits of a plaintiff’s beliefs, courts must examine the impact of a regulation on such beliefs. This approach finds support in some district court opinions evaluating the contraceptive mandate as applied to forprofit corporations. Conestoga Wood Specialities Corp. v. Sebelius, 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013), aff’d on other grounds, 724 F.3d 377 (3d Cir. 2013) (“[W]e reject the notion . . .that a plaintiff shows a burden to be substantial simply by claiming it is so.”); Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677, at *8 (W.D. Mich. Dec. 24, 2012) aff’d on other grounds, 730 F.3d 618 (6th Cir. 2013) (explaining that, although the court did not question the plaintiffs’ sincerely held belief, it remained a “separate question whether the sincerely held belief amounts, in fact, to a substantial burden on the exercise of religion”).
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Defendants’ argument is persuasive. RFRA requires heightened scrutiny of only those laws that place a “substantial” burden on an individual’s exercise of religion. Thus, the Court “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.” Autocam, 2012 WL 6845677 at * 6. To make this assessment, the Court must necessarily evaluate how the burden affects an individual’s ability to exercise his religion. “Without venturing into the content and merit of the plaintiffs’ religious beliefs, [the Court] may still consider the nature of the act that the plaintiffs are called upon to perform, the connection between their beliefs and the compelled action, and the extent to which their ability to practice their religion is interfered with by the action.” Korte, 735 F.3d at 710 (Rovner, J., dissenting).
In evaluating whether the burden is substantial, a court must determine whether it puts “substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Thomas, 450 U.S. at 718, 101 S. Ct. at 1432. The ACA and its regulation require Catholic Charities to sponsor a plan, to contract with a TPA for this plan, and to notify the TPA that it opposes contraceptive coverage on religious grounds. Plaintiffs have acknowledged that they already sponsor a plan, that they contract with a TPA to administer this plan, and that they have previously notified the TPA that they oppose contraceptives. Thus, they have no objection to these actions per se.5 Plaintiffs argue, however, that the actions are now different because they will have the effect of authorizing the TPA to provide contraceptive services rather than preventing it from doing so, and that this difference is the key to determining the morality of their actions.
At oral argument, Plaintiffs made an analogy to a hypothetical law that required Roman Catholics to sign a document stating their opposition to the death penalty in order for an executioner
5
Plaintiffs have never asserted that they object to the act of signing a statement attesting to their objection to contraceptives.
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to proceed with the execution. Under this hypothetical law, the executioner would be required to proceed as soon as he received the document. Plaintiffs asserted that a Roman Catholic could not sign this document, even though it accurately stated his belief regarding the death penalty, because the document would effectively authorize the executioner to proceed with the execution. Similarly, Plaintiffs argued that they could not sign the self-certification form stating their beliefs about contraceptives because it would trigger coverage of contraceptive services.
Plaintiffs’ analogy does not hold up. If the ACA provided that, upon the completion of the self-certification form, employees would be forced to use contraceptives, the analogy might be apt. But that is not what the ACA requires.
In sticking with the death penalty theme, a more apt analogy might involve a law that required potential jurors in capital cases to state whether they would be unable to impose the death penalty based on their religious beliefs. If a potential juror said “yes,” he would be excused for cause, and a different potential juror whose religion would not prohibit her from imposing the death penalty would be selected. That jury, after hearing the evidence, might or might not choose to impose the death penalty. Assume that there is a potential juror who is Roman Catholic and whose religion prohibits her from imposing the death penalty or facilitating the imposition of the death penalty. Does asking her to state her opposition to the death penalty — which will eventually result in the selection of a jury that may choose to impose the death penalty — constitute a substantial burden? This Court does not believe so.
Similarly, the accommodation in this case requires Catholic Charities to attest to its religious beliefs and step aside. It is true that, once it steps aside, another person may step in and provide coverage of contraceptive services for Catholic Charities’ employees. These employees may then make a completely independent decision to utilize such services. In any case, the action that
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Plaintiffs’ find objectionable — the use of contraceptives — is several steps removed from any action taken by Plaintiffs. It is difficult to see how a substantial burden exists when the relationship to the objectionable act is so attenuated. See Conestoga, 917 F. Supp. 2d at 414-15 (noting that a “series of events must first occur before the use of an abortifacient would come into play”); Autocam, 2012 WL 6845677 at *6 (finding that any burden imposed on the individual plaintiffs’ free exercise rights was “probably too attenuated to be substantial”).
More importantly, the contraceptive mandate requires Catholic Charities to do what it has always done — sponsor a plan for its employees, contract with a TPA, and notify the TPA that it objects to providing contraceptive coverage. Thus, Plaintiffs are not require to “modify [their] behavior.” Thomas, 450 U.S. at 718, 101 S. Ct. at 1432. Rather, it is the TPA that is required to modify its behavior and take action by providing contraceptive services — without the assistance of Catholic Charities. See 78 Fed. Reg. 39874. (eligible organizations may not be required to contract, arrange, pay, or refer for contraceptive coverage). Although the TPA’s action may be deeply offensive to the religious beliefs of Plaintiffs, RFRA does not allow a plaintiff to restrain the behavior of a third party that conflicts with the plaintiff’s religious beliefs.
Courts have previously rejected RFRA claims in which plaintiffs objected to the activities undertaken by a third party. See Bowen v. Roy, 476 U.S. 693, 106 S. Ct. 2147 (1986); Kaemmerling, 553 F.3d 669. In Kaemmerling, the D.C. Circuit faced the issue of whether a prisoner could object to the government’s collection, extraction, and storage of his DNA information. The court found that, “[a]lthough the government’s activities with his tissue or fluid sample after the [prison] takes it may offend Kaemmerling’s religious beliefs, they cannot be said to hamper his religious exercise because they do not ‘pressure [him] to modify his behavior and to violate his beliefs.’” Id. at 679 (quoting Thomas, 450 U.S. at 718, 1015 S. Ct. at 1432.) Similarly, in Roy, the Supreme Court
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rejected the claim of the plaintiffs, who believed that the use of their child’s social security number would harm her spirit. Roy, 476 U.S. 693, 106 S. Ct. 2147. The Court explained that the plaintiffs could “not demand that the Government join in their chosen religious preference by refraining from using a number to identify their daughter.” Id. at 700, 106 S. Ct. at 2152.
Plaintiffs sincerely believe that the use of contraceptives is immoral, and that they may not facilitate a practice that they find morally objectionable. See Thomas, 450 U.S. at 714, 101 S. Ct. at 1430 (“courts are not arbiters of scriptural interpretation”). The Court must look beyond these beliefs, however, and determine whether the law at issue substantially burdens Plaintiffs’ exercise of their religious beliefs. An objection to the activities of third parties — no matter how sincere or deeply felt — does not constitute a substantial burden. “[A]lthough [a] plaintiff may have a religiously-based objection to what the government or another third party does with something that the law requires the plaintiff to provide . . . [RFRA] does not necessarily permit him to impose a restraint upon another’s decision.” Korte, 735 F.3d at 713-14 (Rovner, J., dissenting).
Moreover, although Plaintiffs assert that the accommodation requires them to participate in a scheme to provide contraceptives, in fact, it just does the opposite. It provides a mechanism for employers with religious objections to contraceptives, like Catholic Charities, to opt out of that scheme. This mechanism simply requires Plaintiffs to state that they choose to opt out based on their religious beliefs. The fact that the scheme will continue to operate without them may offend Plaintiffs’ religious beliefs, but it does not substantially burden the exercise of those beliefs.
Plaintiffs may exercise their religious beliefs regarding contraceptives in a number of ways. They may refuse to provide coverage of contraceptives or pay for such coverage. They may speak out against the use of contraceptives, and encourage their employees not to use contraceptives. They may engage in political action to change the laws regarding access to contraceptives and
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contraceptive coverage. What they may not do, however, is block a third party from providing their employees with contraceptive coverage. Under these circumstances, the Court finds that the law does not place a substantial burden on Plaintiffs’ exercise of their religion. Accordingly, their RFRA claim fails.
B. Free Exercise Clause The Free Exercise Clause prohibits laws that discriminate against religious beliefs or regulate or prohibit conduct because it is undertaken for religious purposes. Church of Lukumi Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S. Ct. 2217, 2226 (1993). The Free Exercise Clause does not require heightened scrutiny of laws that are neutral and generally applicable. Emp’t Div. v. Smith, 494 U.S. 872, 879, 110 S. Ct. 1595, 1600 (1990). “[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral.” Lukumi, 508 U.S. at 533, 113 S. Ct. at 2227. A law is not generally applicable if its burdens are imposed “in a selective manner . . . only on conduct motivated by religious belief.” Id. at 543, 113 S. Ct. at 2232. Plaintiffs argue that the contraceptive mandate is not generally applicable because it includes exemptions. However, “[t]hat categorical exemptions exist does not mean that the law does not apply generally.” Autocam, 2012 WL 6845677 at * 5 (citing United States v. Lee, 455 U.S. 252, 260-61, 102 S. Ct. 1051, 1057 (1982) (finding that social security tax requirements were generally applicable although there were categorical exemptions)). See also Olsen v. Muaksey, 541 F.3d 827, 832 (8th Cir. 2008) (“General applicability does not mean absolute universality.”). Because the “secular” exemptions cited by Plaintiffs apply to all employers, including religious employers, the burdens of the law are not imposed selectively against conduct motivated by religious belief. See Lukumi, 508 U.S. at 533, 113 S. Ct. at 2227. Accordingly, the law is generally applicable.
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Plaintiffs also argue that the law is not neutral because it “is specifically targeted at Plaintiffs’ religious practice of refusing to provide or facilitate access to contraception.” (Pls.’ Br. at 34.) Plaintiffs argue that most secular employers previously provided coverage, and that the law was enacted to fill any gap in coverage by forcing religious groups to provide it. There is no evidence, however, that the law was specifically targeted at the Plaintiffs’ or anyone else’s religious practices. In fact, the inclusion of an exemption for houses of worship and an accommodation for other religious groups indicates just the opposite. Furthermore, the contraceptive mandate requires many employers that have historically provided contraceptive coverage to expand that coverage by eliminating cost-sharing. The contraceptive mandate thus requires a wide range of employers — including many that are not religious— to offer their employees new benefits related to contraceptive coverage. Accordingly, there is no evidence supporting Plaintiffs’ claim that the law is not neutral.
Finally, Plaintiffs argue that the contraceptive mandate is subject to strict scrutiny because it infringes on Plaintiffs’ rights of free speech and association, and thus implicates Plaintiffs’ “hybrid” rights. Because the Sixth Circuit has rejected the hybrid rights theory advanced by Plaintiffs, Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993), this argument must fail.
C. Free Speech Clause Plaintiffs argue that the contraceptive mandate violates their free speech rights in several ways. Plaintiffs first argue that the regulations violate their rights against compelled speech. “It is . . . a basic First Amendment principle that freedom of speech prohibits the government telling people what they must say.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., – U.S. – , 133 S. Ct. 2321, 2327 (2013) (internal quotation marks omitted); see also United States v. United
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Foods, Inc., 533 U.S. 405, 410, 121 S. Ct. 2334, 2338 (2001). Similarly, the government may not compel a person to subsidize speech with which he or she disagrees. See Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557–58, 125 S. Ct. 2055, 2060–61 (2005). Plaintiffs argue that the contraceptive mandate violates the prohibition against compelled speech in two respects. First, they argue that because it requires them to “provide, pay for, and/or facilitate access to ‘counseling,’” (Pls.’ Br. at 36), they are being forced or compelled to support speech with which they disagree. Plaintiffs argue that they are thus “forced to act as mouthpieces in the Government’s campaign to expand access to abortion and contraception.” (Id. at 37.) Second, Plaintiffs assert that the “certification” requirement, which in turn designates and obligates Plaintiffs’ TPA to provide the objectionable services, compels Plaintiffs to engage in speech with which they disagree and deprives them of the freedom to speak on issues of abortion and contraception on their own terms.
Contrary to Plaintiffs’ assertion, the contraceptive mandate does not require or compel them to support or advocate for abortion or the use of contraceptives. As already noted, supra, Plaintiffs are not required to provide or pay for contraceptive services. Moreover, even if Plaintiffs’ acts are deemed as facilitating the provision of contraceptive services, including counseling, there is no compelled speech violation because Plaintiffs are not required to support or advocate a particular viewpoint or result. See Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402, 441 (W.D. Pa. 2013) (“To the extent that the Hepler plaintiffs in the present case are being called upon to fund speech—in the form of education and counseling—the content of that speech is not defined by the mandate’s requirements.”). As one court has observed, “the speech subsidized is an unscripted conversation between a doctor and a patient, not political propaganda in favor of one candidate, an amicus brief espousing one side of an issue, or advertisements in favor of a particular product.” O’Brien v. United States Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1166 (E.D. Mo. 2012).
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Hence, the regulations do not compel Plaintiffs to convey any particular message or speech in violation of the First Amendment.
Plaintiffs’ argument that the certification constitutes compelled speech fails because any speech involved in the execution of a certification is appropriately considered merely incidental to the regulation of conduct. As many courts have recognized in disposing of similar First Amendment challenges, Rumsfeld v. Forum for Academic and Inst. Rights, Inc. (FAIR), 547 U.S. 47, 126 S. Ct. 1297 (2006), is particularly instructive as to whether the certification constitutes speech. In FAIR, the Court considered whether the Solomon Amendment, which conditioned law schools’ funding on their provision of access to military recruiters at a level equal to that provided to the nonmilitary recruiter receiving the most favorable access, violated law schools’ First Amendment rights. The Court held that requiring law schools to accommodate military recruiters on campus did not affect their free speech rights because hosting a recruiter is not speech:
In this case, accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school. Id. at 64, 126 S. Ct. at 1309–10. Moreover, the Court observed that any speech in which the law schools were required to engage was “plainly incidental to the Solomon Amendment’s regulation of conduct.” Id. at 62, 126 S. Ct. at 1308; see also United States v. O’Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 1678 (1968) (“We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”). Similarly, in the instant case, any speech in which Plaintiffs must engage in completing the
17

certification is incidental to regulation of conduct. See e.g., Autocam, 2012 WL 6845677, at *8 (“Including contraceptive coverage in a health care plan is not inherently expressive conduct, particularly when the coverage is included to comply with a neutral, generally applicable law.”); MK Chambers Co. v. Dep’t of Health & Human Servs., No. 13-11379, 2013 WL 1340719, at *6 (E.D. Mich. Apr. 3, 2013) (same). Accordingly, the act of self-certifying eligibility for the accommodation is not inherently expressive conduct entitled to First Amendment protection.
Finally, Plaintiffs argue that 26 C.F.R. § 54.9815-2713A(b)(iii) constitutes an unlawful “gag order” on their freedom to express their beliefs that contraception is immoral. That regulation provides:
The eligible organization must not, directly or indirectly, seek to interfere with a third party administrator’s arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrangements. Plaintiffs argue that this regulation precludes them from expressing their views to fellow citizens that contraception is immoral. (Pls.’ Br. at 38.) The Court disagrees. The regulation does not prohibit Plaintiffs from expressing their views. Rather, it precludes Plaintiffs from interfering with a TPA’s decision or efforts to provide contraceptive services once Plaintiffs have provided a certification. In other words, Plaintiffs may still convey their views about contraception, but they may not do so in a way that threatens or interferes with employees’ attempts to obtain coverage from a third party. See 78 Fed. Reg. at 39,880 n.41 (“Nothing in these final regulations prohibit an eligible organization from expressing its opposition to the use of contraceptives.”). D. Establishment Clause Plaintiffs argue that the religious employer exemption violates the Establishment Clause of the First Amendment. That clause provides that “Congress shall make no law respecting an
18

establishment of religion.” U.S. Const. amend. I. Under this clause, the government may neither officially promote religion nor harbor “an official purpose to disapprove of a particular religion or of religion in general.” Lukumi, 508 U.S. at 532, 113 S. Ct. at 2226. Courts typically use the Lemon test [Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105 (1971)] as a guide to resolve Establishment Clause issues. See Satawa v. Macomb Cnty. Road Comm’n, 689 F.3d 506, 526 (6th Cir. 2012). Under that test, a court asks: (1) whether the government’s predominant purpose was secular; (2) whether the government action has the purpose or effect of endorsing religion; and (3) whether the action fosters an excessive entanglement with religion. Id.
Plaintiffs argue that the mandate favors some religions over others by creating an official category of “religious employer” that includes only “churches, synagogues, mosques, and other houses of worship, and religious orders.” 78 Fed. Reg. at 8,461. Plaintiffs argue that such definition favors religious groups that fit into the traditional categories of “houses of worship” while disadvantaging other religious organizations, like Catholic Charities, that express their faith through the provision of charitable and social services. Plaintiffs’ argument fails because the regulation does not refer to any particular denomination, nor is there any indication that it was designed to favor any particular religion. See Cutter v. Wilkinson, 544 U.S. 709, 723–24, 125 S. Ct. 2113, 2123 (2005) (holding that the Religious Land Use and Institutionalized Persons Act does not run afoul of the Establishment Clause because it does not “differentiate among bona fide faiths” and “confers no privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment”). As several courts have observed, the Establishment Clause does not prohibit governmental line drawing when granting religious accommodations. See O’Brien, 894 F. Supp. 2d at 1164. “[T]he Establishment Clause does not prohibit the government from making such distinctions when granting religious accommodations as long as the distinction drawn by the
19

regulations between exempt and non-exempt entities is not based on religious affiliation.” Grote Indus., LLC v. Sebelius, 914 F. Supp.2d 943, 953 (S.D. Ind. 2012) (citing Walz v. Tax Comm’n of City of N.Y., 397 U.S. 664, 90 S. Ct. 1409 (1970), and Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995)); see also Geneva Coll., 929 F. Supp. 2d at 438 (concluding that the religious employer exemption does not make distinctions that violate the Establishment Clause).
Plaintiffs also argue that the exemption fosters excessive entanglement because the IRS applies an “intrusive” 14-factor test to determine whether an organization is a church. Plaintiffs argue that any application of the 14-factor test will constitute improper scrutiny of whether an organization is sufficiently religious to qualify for the exemption. Plaintiffs’ argument lacks merit because there is no indication that the 14-factor test has ever been applied to them. See United States v. Will, 671 F.2d 963, 967 (6th Cir. 1982) (noting that a guideline contained in an IRS internal manual was “adopted solely for the internal administration of the IRS, rather than for the protection of the taxpayer, [and did] not confer any rights upon the taxpayer”). Moreover, as Defendants note, the requirements for an organization to qualify as a “religious employer” are set forth in the pertinent regulation, 45 C.F.R. § 147.131(a), and require no intrusive inquiry by the government to determine whether an organization qualifies as a “religious employer.”
Citing Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, – U.S. – , 132 S. Ct. 694 (2012), Plaintiffs also argue that the mandate interferes with the internal governance of the Catholic Church by artificially splitting the church into two segments and precluding the church from exercising supervisory authority over its subordinate components to ensure compliance with church teachings. This Court agrees with Justices Alito’s and Kagan’s concurrence that the “ministerial” exception in employment law “should apply to any ‘employee’ who leads a religious organization, . . . or serves as a messenger or teacher of its faith.” Id. at 712 (Alito, J., concurring)
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(emphasis added). The principle of no governmental interference with the religious functions of a church goes beyond the employment context. In the instant case, this Court believes that Catholic Charities would qualify as messengers or teachers of the Roman Catholic faith. For example, while any secular organization might render aid to the sick, poor, or oppressed, a Roman Catholic organization would render such aid as part of its religious duty and message. As pointed out in this concurring opinion, “the mere adjudication of such questions [e.g., whether a particular doctrine “is a central and universally known tenet of Lutheranism”], would pose grave problems for religious autonomy . . . .” Id. at 715. All of that being said, Hosanna-Tabor is inapposite. In Hosana-Tabor, the Court adopted the so-called “minister exception” to employment discrimination suits. The Court reasoned that requiring a church to retain an unwanted minister would do more than intrude on an employment decision. Id. at 706. Rather, it would “interfere[] with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Id. The regulations at issue in the instant case do not interfere with internal church governance. Rather, for the reasons stated in the “substantial burden analysis,” they relieve the Plaintiffs from a law that would otherwise cause them to violate their religious beliefs.
E. APA Plaintiffs argue that the 2013 final rule discriminates against them based on their refusal to provide coverage for “abortion-inducing products.” Plaintiffs argue that the rule therefore violates the Weldon Amendment, which prohibits federal agencies from discriminating against any health care entity on the basis that it does not provide coverage for abortions. Thus, Plaintiffs argue, the rule is contrary to law. Plaintiffs believe that FDA-approved emergency contraceptives are “abortion-inducing products” — as is their right. However, federal law does not define them as such. See 62 Fed. Reg. 8610. Accordingly, the regulations are not contrary to law, and Plaintiffs’ APA claim fails.
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3. Other Preliminary Injunction Factors Because Plaintiffs’ claims are premised on the First Amendment and RFRA, the analysis of
Plaintiffs’ likelihood of success encompasses the other factors for determining whether a preliminary injunction is warranted. See Autocam Corp. v. Sebelius, 730 F.3d 618, 624 (noting that the likelihood of success is often the determinative factor for RFRA and First Amendment claims). Because Plaintiffs have not demonstrated that they are likely to succeed on the merits, the Court need not analyze the other factors.
Conclusion For the foregoing reasons, the Court will deny Plaintiffs’ motion for preliminary injunction. An Order consistent with this Opinion will be entered.

Dated: December 27, 2013

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

22

 
 Case 1:13-cv-01247-GJQ Doc #41 Filed 12/27/13 Page 1 of 1 Page ID#1351

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

MICHIGAN CATHOLIC CONFERENCE, et al.,
Plaintiffs,
v.
KATHLEEN SEBELIUS, et al.,
Defendants. ___________________________________/

Case No. 1:13-CV-1247 HON. GORDON J. QUIST

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION In accordance with the Opinion entered today, IT IS HEREBY ORDERED that Plaintiffs’ Motion For Preliminary Injunction (dkt. # 9) is DENIED.

Dated: December 27, 2013

/s/ Gordon J. Quist GORDON J. QUIST UNITED STATES DISTRICT JUDGE

 
 Case 1:13-cv-01247-GJQ Doc #43 Filed 12/27/13 Page 1 of 4 Page ID#1355

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

MICHIGAN CATHOLIC CONFERENCE, et al.,
Plaintiffs, v.
KATHLEEN SEBELIUS, et al.,
Defendants.

)
)
)
) Case No.: 1:13-cv-01247 )
) The Honorable Gordon J. Quist )
) Electronically Filed )
)
)

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION PENDING APPEAL

Pursuant to Rule 8(a)(1)(C) of the Federal Rules of Appellate Procedure, Plaintiffs

respectfully requests that the Court enter an injunction pending appeal. For all the reasons

advanced in Plaintiffs’ original Motion for Preliminary Injunction (Doc. 9), Memoranda in

Support (Docs. 15 and 26-2), Affidavits (Docs. 11-3, 11-4, 11-5, 27-2, and 27-3), and argument

before the Court on December 19, 2013, Plaintiffs request preliminary injunctive relief pending

appeal, without bond, enjoining Defendants from continuing to require Plaintiffs to provide

coverage for contraceptives, abortion-inducing drugs, sterilization, and related counseling in

their employee health plans.

A preliminary injunction is justified, as discussed in Plaintiffs’ accompanying

Memorandum in Support, because (1) Plaintiffs are reasonably likely to succeed on the merits of

their claims; (2) Plaintiffs are suffering a continuing, irreparable harm in the absence of

preliminary relief that outweighs any harm the Government may suffer if the preliminary

injunction is granted; (3) Plaintiffs have no adequate remedy at law; and (4) an injunction

Case 1:13-cv-01247-GJQ Doc #43 Filed 12/27/13 Page 2 of 4 Page ID#1356
furthers the public interest. Accordingly, Plaintiffs respectfully move this Court to issue a
preliminary injunction in the form of the Proposed Order attached to this motion.
Respectfully submitted, this 27th day of December, 2013.
By: /s/ Matthew A. Kairis Matthew A. Kairis (OH No. 55502) JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus, OH 43216 (614) 469-3939
Paula Batt Wilson (0065421) Jennifer Flannery (0078651) JONES DAY North Point 901 Lakeside Avenue Cleveland, OH 44114-1190 (216) 586-3939
Alison M. Kilmartin (PA No. 306422) JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 (412) 391-3939
Counsel for Plaintiffs
Thomas P. Van Dusen (P30602) Rebecca D’Arcy O’Reilly (P70645) BODMAN PLC 6th Floor at Ford Field 1901 St. Antoine Street Detroit, MI 48226 (313) 259-7777
Counsel for Michigan Catholic Conference

Case 1:13-cv-01247-GJQ Doc #43 Filed 12/27/13 Page 3 of 4 Page ID#1357
Edward J. Bardelli (P53849) Ian R. Kennedy (P67775) WARNER NORCROSS & JUDD LLP 259 E. Michigan Ave., Suite 208 Kalamazoo, MI 49007 (269) 552-3411
Counsel for Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo

Case 1:13-cv-01247-GJQ Doc #43 Filed 12/27/13 Page 4 of 4 Page ID#1358
CERTIFICATE OF SERVICE I hereby certify that on December 27, 2013, I electronically filed the foregoing document with the Clerk of the United States District Court for the Western District of Michigan using the CM/ECF system, which will send notification of such filing to the following counsel of record: Jacek Pruski (CA Bar No. 277211) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. N.W. Washington, DC 20001 Tel: (202) 616-2035 Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorney for Defendants
/s/ Matthew A. Kairis One of the Attorneys for Plaintiffs

 
 Case 1:13-cv-01247-GJQ Doc #44 Filed 12/27/13 Page 1 of 4 Page ID#1361

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

MICHIGAN CATHOLIC CONFERENCE, et al.,
Plaintiffs, v.
KATHLEEN SEBELIUS, et al.,
Defendants.

)
)
)
) Case No.: 1:13-cv-01247 )
) The Honorable Gordon J. Quist )
) Electronically Filed )
)
)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION PENDING APPEAL

A court should grant a preliminary injunction if, after considering four factors, it

determines that the balance of equities favors such relief. See Am. Imaging Servs., Inc. v. Eagle-

Picher Indus., Inc., 963 F.2d 855, 858-59 (6th Cir. 1992). The four factors that courts should

consider are: A plaintiff seeking a preliminary injunction must demonstrate (1) a likelihood of

success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that

granting preliminary relief will not result in even greater harm to the nonmoving party; and (4)

that the public interest is served. See Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville &

Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001); Int’l Res., Inc. v. N.Y. Life Ins. Co., 950 F.2d

294, 302 (6th Cir. 1991). These factors are not “prerequisites [to be] satisfied” and merely

“guide the discretion of the court.” Eagle-Picher, 963 F.2d at 859. See In re DeLorean Motor

Co., 755 F.2d 1223, 1229 (6th Cir. 1985) (“the four considerations applicable to preliminary

injunction decisions are factors to be balanced, not prerequisites that must be met.”). In other

words, “they are not meant to be rigid and unbending requirements,” because “[a] fixed legal

standard is not the essence of equity jurisprudence.” Id. (quotation and citation omitted).

Case 1:13-cv-01247-GJQ Doc #44 Filed 12/27/13 Page 2 of 4 Page ID#1362
Here, a preliminary injunction is warranted because Plaintiffs meet all four factors for such interim relief and the balance of harms clearly weighs in their favor.
Plaintiffs incorporate by reference here their arguments advanced in their Memoranda in Support (Docs. 15 and 26-2) of Plaintiffs’ Motion for Preliminary Injunction (Doc. 9) and at oral argument on December 19, 2013. For all those reasons, Plaintiffs respectfully request that the Court adjudicate their motion for preliminary injunction pending appeal enjoining Defendants from any application or enforcement of the Mandate against them, their health plans, participants in their health plans, or their third party administrators or insurers.

Case 1:13-cv-01247-GJQ Doc #44 Filed 12/27/13 Page 3 of 4 Page ID#1363
Respectfully submitted, this 27th day of December, 2013.
By: /s/ Matthew A. Kairis Matthew A. Kairis (OH No. 55502) JONES DAY 325 John H. McConnell Blvd. Suite 600 P.O. Box 165017 Columbus, OH 43216 (614) 469-3939
Paula Batt Wilson (0065421) Jennifer Flannery (0078651) JONES DAY North Point 901 Lakeside Avenue Cleveland, OH 44114-1190 (216) 586-3939
Alison M. Kilmartin (PA No. 306422) JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 (412) 391-3939
Counsel for Plaintiffs
Thomas P. Van Dusen (P30602) Rebecca D’Arcy O’Reilly (P70645) BODMAN PLC 6th Floor at Ford Field 1901 St. Antoine Street Detroit, MI 48226 (313) 259-7777
Counsel for Michigan Catholic Conference
Edward J. Bardelli (P53849) Ian R. Kennedy (P67775) WARNER NORCROSS & JUDD LLP 259 E. Michigan Ave., Suite 208 Kalamazoo, MI 49007 (269) 552-3411
Counsel for Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo

Case 1:13-cv-01247-GJQ Doc #44 Filed 12/27/13 Page 4 of 4 Page ID#1364
CERTIFICATE OF SERVICE I hereby certify that on December 27, 2013, I electronically filed the foregoing document with the Clerk of the United States District Court for the Western District of Michigan using the CM/ECF system, which will send notification of such filing to the following counsel of record: Jacek Pruski (CA Bar No. 277211) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. N.W. Washington, DC 20001 Tel: (202) 616-2035 Fax: (202) 616-8470 Email: jacek.pruski@usdoj.gov Attorney for Defendants
/s/ Matthew A. Kairis One of the Attorneys for Plaintiffs

 
 Case 1:13-cv-01247-GJQ Doc #45 Filed 12/30/13 Page 1 of 2 Page ID#1365

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

____________________________________

)

MICHIGAN CATHOLIC

)

CONFERENCE, et al.

)

)

Plaintiffs,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.

)

)

Defendants.

)

____________________________________)

Case No. 1:13-cv-01247-GJQ

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR INJUNCTION PENDING APPEAL

As plaintiffs recognize in their m otion for an injunction pending appeal and brief in

support, see ECF Nos. 43, 44, the standard for the relief pl aintiffs now seek is identical to the

standard for the relief this Court denied to plaintiffs in its opinion and order denying plaintiffs’

motion for preliminary injunction, ECF Nos. 40, 41.

In support of the m otion now before this Court for an injunction pending appeal,

plaintiffs have merely “incorporate[d] by reference” the arguments they made in support of their

motion for prelim inary injunction. ECF No. 44. This Court properly found those argum ents

insufficient to justify such relief because, am ong other reasons, plaintiffs are unlikely to succeed

on the m erits. For the reasons set out in de fendants’ brief in opposition to the motion for

preliminary injunction, ECF No. 25 , and at oral argument on that motion, and for all the reasons

set out in this Court’s opinion and order denying that motion, the instant motion for an injunction

pending appeal should likewise be denied. See, e.g., Opinion and Order Denying Plaintiff’s

Motion for Prelim inary Injunction Pending Appeal, Univ. of Notre Dame v. Sebelius , 3:13-cv-

Case 1:13-cv-01247-GJQ Doc #45 Filed 12/30/13 Page 2 of 2 Page ID#1366

1276-PPS-CAN, ECF No. 49 (N.D. Ind. Dec. 23, 2013) (denying motion for prelim inary

injunction pending appeal because plaintiff’s motion “offer[ed] no new argum ents, relying

entirely on its briefing and oral argument in support of its earlier request for a prelim inary

injunction,” which had already been de nied); Memorandum Opinion and Order, Archbishop of

Washington v. Sebelius, 1:13-cv-1441-ABJ, ECF No. 52 (D.D .C. Dec. 23, 2013) (sam e); Order,

Catholic Diocese of Nashville, 3:13-cv-1303, ECF No. 70 (M.D. Tenn. Dec. 27, 2013) (same).

Respectfully submitted this 30th day of December, 2013,

STUART F. DELERY Assistant Attorney General

KATHLEEN Deputy

R. HARTNETT Assistant Attorney General

PATRICK A. MILES, JR. United States Attorney

Directo

JENNIFER RICKETTS r, Federal Programs Branch

SHEILA Deputy

M. LIEBER Director

JACEK
U.S. Civil 20 Washington, Tel: Em

/s/ Jacek Pruski PRUSKI (CA Bar. No. 277211)
Trial Attorney Department of Justice Division, Federal Programs Branch
Massachusetts Avenue N.W. D.C. 20001
(202) 616-2035; Fax: (202) 616-8470 ail: jacek.pruski@usdoj.gov

Attorneys for Defendant

2

 
 Case 1:13-cv-01247-GJQ Doc #49 Filed 01/03/14 Page 1 of 1 Page ID#1401

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

)

MICHIGAN CATHOLIC CONFERENCE, )

et al.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, et al.,

)

)

Defendants.

)

)

)

Case No.: 1:13-cv-01247 The Honorable Gordon J. Quist

ORDER AND NOW, this 3rd day of January, 2014, upon consideration of the parties’ Agreed Motion to Stay District Court Proceedings Pending Appeal, it is hereby ORDERED that all proceedings in this case are stayed until fourteen (14) days after the United States Court of Appeals for the Sixth Circuit rules upon Plaintiffs’ appeal of this Court’s denial of Plaintiffs’ request for preliminary injunction.

__/_s__/__G__o_r_d__o_n__J__.__Q__u_i_s__t_______ United States District Judge

 
 CaseCa1s:1e3:-1c3v-20712347-GDJoQcuDmoecn#t:5000F6i1le1d190215/0838/214 PFailegde:101o/f0131/20P1a4ge IPDa#g1e4:012 (1 of 11)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: January 03, 2014

Ms. Jennifer Brinkman Flannery Jones Day 901 Lakeside Avenue, E. Cleveland, OH 44114
Mr. Adam C. Jed U.S. Department of Justice Appellate Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Mr. Matthew A. Kairis Jones Day 325 John H. McConnell Boulevard Suite 600 Columbus, OH 43215
Ms. Alisa B. Klein U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Mr. Jacek Pruski U.S. Department of Justice 20 Massachusetts Avenue, NW P.O. Box 883 Washington, DC 20044-0000
Mr. Mark B. Stern U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W.

CaseCa1s:1e3:-1c3v-20712347-GDJoQcuDmoecn#t:5000F6i1le1d190215/0838/214 PFailegde:201o/f0131/20P1a4ge IPDa#g1e4:023 (2 of 11)

Room 7531 Washington, DC 20530

Ms. Paula Batt Wilson Jones Day 901 Lakeside Avenue, E. Cleveland, OH 44114

Re:

Case No. Sebelius,

13-2723, et al

Michigan

Catholic

Conference,

et

al

v.

Kathleen

Originating Case No. : 1:13-cv-01247

Dear Sir or Madam,
The Court issued the enclosed Order today in this case. The order is amended to include Judge Stranch’s dissent.

Sincerely yours,

cc: Ms. Tracey Cordes Enclosure

s/Julie Brock Case Manager Direct Dial No. 513-564-7011

CaseCa1s:1e3:-1c3v-20712347-GDJoQcuDmoecn#t:5000F6i1le1d190215/0837/214 PFailegde:301o/f0131/20P1a4ge IPDa#g1e4:014 No. 13-2723
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

(3 of 11)

MICHIGAN CATHOLIC CONFERENCE, in its )

own name and, obo Michigan Catholic Conference )

Second Amended And Restated Group Health )

Benefit Plan for Employees; CATHOLIC FAMILY )

SERVICES, dba Catholic Charities Diocese of )

Kalamazoo,

)

)

Plaintiffs-Appellants,

)

)

v.

)

)

KATHLEEN SEBELIUS, in her official capacity )

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

Human Services; THOMAS E. PEREZ, in his )

official capacity as Secretary of the U.S. )

Department of Labor; JACOB J. LEW, in his )

official capacity as Secretary of the U.S. )

Department of Treasury; U.S. DEPARTMENT OF )

HEALTH AND HUMAN SERVICES; U.S. )

DEPARTMENT OF LABOR; U.S. )

DEPARTMENT OF TREASURY

)

)

Defendants-Appellees.

)

FILED
Jan 03, 2014 DEBORAH S. HUNT, Clerk
AMENDED ORDER

Before: BATCHELDER, Chief Judge; SILER and STRANCH, Circuit Judges.
The plaintiffs appeal the denial of their motion to preliminarily enjoin the defendants from enforcing requirements under the Affordable Care Act that result in the provision of cost-free coverage for contraceptive services to their employees. The plaintiffs move for an injunction pending appeal, alleging that the provision violates their rights under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq. The defendants oppose an injunction, and the plaintiffs reply.

CaseCa1s:1e3:-1c3v-20712347-GDJoQcuDmoecn#t:5000F6i1le1d190215/0837/214 PFailegde:401o/f0131/20P1a4ge IPDa#g1e4:025
No. 13-2723 - 2 -

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Federal Rule of Appellate Procedure 8(a)(2) authorizes us to grant an injunction pending

appeal. “In granting such an injunction, the Court is to engage in the same analysis that it does in

reviewing the grant or denial of a motion for a preliminary injunction.” Overstreet v.

Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 572 (6th Cir. 2002). The relevant factors are:

“(1) whether the movant has shown a strong likelihood of success on the merits; (2) whether the

movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the

injunction would cause substantial harm to others; and (4) whether the public interest would be

served by issuing the injunction.” Id. at 573; see also Baker v. Adams Cnty./Ohio Valley Sch. Bd.,

310 F.3d 927, 928 (6th Cir. 2002).

To demonstrate a likelihood of success on appeal, “[i]t is not enough that the chance of

success on the merits be better than negligible.” Nken v. Holder, 556 U.S. 418, 434 (2009) (internal

quotation marks and citation omitted). Instead, “[m]ore than a mere possibility of relief is required.”

Id. (internal quotation marks and citation omitted). The Supreme Court has never considered similar

RFRA claims. No circuit court has considered these claims on the merits. The district courts that

have considered whether to grant a preliminary injunction on similar claims have issued conflicting

decisions. Compare, e.g., Mich. Catholic Conference v. Sebelius, No. 1:13-CV-1247, 2013 WL

6838707 (W.D. Mich. Dec. 27, 2013); Univ. of Notre Dame v. Sebelius, No. 3:13-cv-01276-PPS,

2013 WL 6804773 (N.D. Ind. Dec. 20, 2013); Priests for Life v. U.S. Dep’t of Health & Human

Servs., No. 13-1261, 2013 WL 6672400, at *5–10 (D.D.C. Dec. 19, 2013), with S. Nazarene Univ.

v. Sebelius, No. CIV-13-1015-F, 2013 WL 6804265, at *8–9 (W.D. Okla. Dec. 23, 2013); Reaching

Souls Int’l, Inc. v. Sebelius, No. CIV-13-1092-D, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013);

Legatus v. Sebelius, No. 12-12061, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013); Roman Catholic

Archdiocese of NY v. Sebelius, No. 12 CIV. 2542 BMC, 2013 WL 6579764 (E.D.N.Y. Dec. 16,

2013); Zubik v. Sebelius, Nos. 13cv1459/0303, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013). The

CaseCa1s:1e3:-1c3v-20712347-GDJoQcuDmoecn#t:5000F6i1le1d190215/0837/214 PFailegde:501o/f0131/20P1a4ge IPDa#g1e4:036
No. 13-2723 - 3 -

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divergence of opinion by the district courts establishes more than a mere possibility of success on

the merits.

Congress passed the RFRA “to restore the compelling interest test for free-exercise cases . . .

and to provide a claim or defense to persons whose religious exercise is substantially burdened by

government.” Autocam Corp. v. Sebelius, 730 F.3d 618, 625 (6th Cir. 2013) (internal quotations

omitted), pet. for cert. filed, 82 U.S.L.W. 3245 (Oct. 15, 2013) (No. 13-482). The denial of an

injunction can “cause irreparable harm if the claim is based upon a violation of the plaintiff’s

constitutional rights.” Overstreet, 305 F.3d at 578; see also Elrod v. Burns, 427 U.S. 347, 373

(1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.”); cf. McNeilly v. Land, 684 F.3d 611, 620–21 (6th Cir. 2012) (“Once

a probability of success on the merits was shown, irreparable harm followed . . . . [b]ecause [the

plaintiff] does not have a likelihood of success on the merits, . . . his argument that he is irreparably

harmed by the deprivation of his First Amendment rights also fails.”). Given the divergence of

opinions and the arguable merit of both the plaintiffs’ and the government’s position, it is not clear

that the accommodation violates the RFRA. But the possibility that the plaintiffs’ constitutional

rights may be violated weighs heavily in our decision, particularly given that there does not appear

to be a substantial harm to others. The entities here presently have insurance plans that do not

provide contraceptive services to their employees. The contraceptive mandate itself does not apply

to three groups, all of which are large in number—employers with less than fifty employees,

religious employers, and employees subject to grandfathered plans. Moreover, the government has

already delayed implementation of the contraceptive mandate to the plaintiffs, and other entities

similarly situated, during the safe harbor. Therefore, at this juncture, we believe that the factors

weigh in support of an injunction pending appeal.

Finally, this appeal focuses on legal issues that have already been briefed below. The district

court’s decision on appeal, as well as the district court’s decision in Catholic Diocese of Nashville

CaseCa1s:1e3:-1c3v-20712347-GDJoQcuDmoecn#t:5000F6i1le1d190215/0837/214 PFailegde:601o/f0131/20P1a4ge IPDa#g1e4:047
No. 13-2723 - 4 -

(6 of 11)

v. Sebelius, No. 3:13-01303, 2013 WL 6834375 (M.D. Tenn. Dec. 26, 2013), conflict with another

district court’s decision in this circuit. See Legatus v. Sebelius, No. 12-12061, 2013 WL 6768607

(E.D. Mich. Dec. 20, 2013). Therefore, it is prudent to expedite consideration of the issues on

appeal.

The motion for an injunction pending appeal is GRANTED. The government is hereby

ENJOINED from enforcing the provision in question against the plaintiffs pending the disposition

of this appeal. The appeal shall be expedited for briefing and submission, and no extensions of time

of the briefing schedule will be granted absent extraordinary circumstances.

Stranch, Circuit Judge, Dissents. The reasons for my dissent will be submitted in a separate

writing at a future time.

Jane B. Stranch, Dissenting.

The litigation before this panel presents issues of law seated at the intersection of the

Mandate of the Affordable Care Act (ACA)—enacted in part to provide comprehensive women’s

preventative health care, including contraceptive coverage—and the Religious Freedom Restoration

Act (RFRA)—enacted to protect our nation’s plural and diverse expressions of religious belief.

Plaintiffs seek an injunction pending appeal, “extraordinary relief” available only upon their clear

showing that they are likely to succeed on the merits, that they will suffer irreparable harm without

relief, that the equities tip in their favor, and that the injunction is in the public interest. Winter v.

Natural Res. Def. Council, 555 U.S. 7, 20-22 (2008). We are to review the district court’s denial of

an injunction pending appeal under the familiar abuse of discretion standard, examining findings of

fact for clear error and legal conclusions de novo. See Autocam, Corp. v. Sebelius, 730 F.3d 618,

624 (6th Cir. 2013) (applying the abuse of discretion standard for denial of a preliminary injunction);

Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 572-73 (6th Cir. 2002) (reviewing

a motion for injunction pending appeal under abuse of discretion standard). Relying on the

-4-

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divergence of district court opinions and noting the “arguable merit” of the position of both parties,

the majority grants an injunction pending appeal. This is not the correct standard. Because

application of the proper standard reveals that plaintiffs have failed to carry their burden to prove a

likelihood of success on the merits and that the district court did not abuse its discretion, I

respectfully dissent.

Proper analysis begins with determining whether the findings of fact made below are clearly

erroneous. The district court made specific findings that impact coverage under the ACA: (1) that

plaintiffs’ religious objection is to taking actions that “trigger” its third party administrator to provide

contraceptive services; (2) that plaintiffs provide to their employees a self-funded healthcare plan

administered by a third-party and excluded from the Mandate’s ERISA enforcement mechanism;

and, (3) that one of the plaintiffs is exempt from the Mandate as a religious employer and the other

is eligible for the “religious accommodation.” The court found that under the accommodation,

plaintiffs are not required to comply with the Mandate as long as they self-certify that they object to

contraceptive coverage for religious reasons. See 45 C.F.R. § 147.131(b). Upon self-certification,

the third party administrator may separately pay for contraceptive services to participants and may

be reimbursed by the federal government. See 78 Fed. Reg. 39,870, 39,987, 39,880 (Health and

Human Servs. July 2, 2013) (final rule). There is nothing in these factual findings that could

constitute clear error; they are taken directly from the plaintiffs’ complaint and from the rules in

question.

The next step looks to RFRA, the requirements of which set the stage for the appropriate

analysis. Recognizing the right of free exercise of any religious faith, 42 U.S.C. § 2000bb, RFRA

protects in equal measure the established, the well-regarded, the obscure, the disfavored and even

the despised expressions of religious belief. Courts therefore must honor a plaintiff’s declaration

of religious belief, Thomas v. Review Bd. of Indiana Emp’t Sec. Div., 450 U.S. 707, 716 (1981) (pre-

-5-

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No. 13-2723 - 6 -

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RFRA application of substantial burden test), and may ask only whether the belief is sincere and

religious in nature, United States v. Seeger, 380 U.S. 163, 184-85 (1965); Korte v. Sebelius, 735 F.3d

654, 683 (7th Cir. 2013). The questions of sincerity and religiosity are “factual inquiries within the

court's authority and competence.” Id. at 683.

To identify proscribed interference, RFRA incorporated the “substantial burden” standard

previously articulated by the Supreme Court: where a governmental entity “conditions receipt of an

important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit

because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent

to modify his behavior and to violate his beliefs, a burden upon religion exists.” Thomas, 450 U.S.

at 717-18. In the context of zoning, we have noted that the “‘substantial burden’ hurdle is high” and

that a substantial burden does not exist where “although the action encumbered the practice of

religion, it did not pressure the individual to violate his or her religious beliefs.” Living Water

Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007). Other circuits

have noted that the focus of the substantial burden test is on the “intensity of the coercion . . . to act

contrary to [religious] beliefs.” Korte, 735 F.3d at 683 (internal quotation marks and italics

omitted).1 We have also recognized that “determining its existence is fact intensive.” Living Water,

258 F. App’x at 734. The findings of the district court thus govern analysis of the application of

RFRA’s substantial burden hurdle to the motion before this panel.

1Plaintiffs rely on Korte (in which the Seventh Circuit held that the contraception mandate is a substantial burden on the religious rights of for-profit companies) to support its position here. 735 F.3d at 683-85. But Korte is inapposite because the court there reasoned that the Mandate is coercive to for-profit companies because they are forced to provide and pay for contraceptive coverage—something not required of the plaintiffs here because religious non-profits may take advantage of the accommodation. Id.
-6-

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No. 13-2723 - 7 -

(9 of 11)

The district court began by accepting the plaintiffs’ objection to the contraceptive Mandate,

and then found it to be sincere and religious. I agree that plaintiffs needed only to have declared their

religious objection—through self-certification—and that under RFRA, we must accept their

declaration of belief. As recognized by the district court, however, that is not the same as

authorizing the plaintiffs—through their declaration—to determine that the Mandate substantially

burdens their belief. It is the province of the courts to make that determination.

The district court resolved this “fact intensive” question by holding that the Mandate does

not substantially burden plaintiffs’ religious belief because it does not in any way coerce their

behavior. The district court found that the actions that plaintiffs have always done are all that is

necessary to receive the accommodation—they sponsor a health plan, they contract with a third party

to administer the plan, and they notify the third party that they oppose contraceptive coverage. Thus,

plaintiffs’ only objection refers to the effect of self-certification. The court further found that the

religious accommodation does not “trigger” contraception coverage, as plaintiffs contend, but instead

allows plaintiffs to “step aside” and remove itself from the process while another party provides

coverage. See 45 C.F.R. § 147.131(b). The third party administrator is then asked to separately pay

for contraceptive services to participants and is allowed to seek reimbursement from the federal

government. See 78 Fed. Reg. at 39,987, 39,880. The third party administrator carries out the

preventative services scheme for plaintiffs’ employees but does so wholly without plaintiffs.

Plaintiffs argue that the Mandate violates their religious rights under RFRA because by filing

the self-certification form, they facilitate the provision of independent coverage. Not only did the

district court find this to be false, but the independent action of third party entities with which

plaintiffs disagree does not impose a substantial burden on plaintiffs’ exercise of their religious

beliefs. See Bowen v. Roy, 476 U.S. 693, 699-700 (1986) (rejecting claim of plaintiffs who believed

that the state’s use of their child’s social security number would harm her spirit because plaintiffs

-7-

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No. 13-2723 - 8 -

(10 of 11)

could not demand that the government join their religious preference); Kaemmerling v. Lapin, 553

F.3d 669, 678-79 (D.C. Cir. 2008) (concluding that although the government’s storage of a

prisoner’s tissue samples may offend the prisoner’s religious beliefs, it cannot be a substantial

burden to his religious exercise because the government did not pressure him to modify his

behavior). Nor can plaintiffs’ inability to prevent their employees from independently obtaining

contraceptives in opposition to plaintiffs’ religious beliefs be a substantial burden on plaintiffs’

religious beliefs. That RFRA is rightly used as a shield does not make proper its use as a sword. If

the full range of religious beliefs in our pluralistic society that are protected by RFRA were

authorized to be used as a sword, there would exist no limiting principle on an employer’s right to

intrude into the private choices and lives of its employees.

The findings of the district court are supported by the language of the regulations and the

factual record. They are not clearly erroneous. Given these findings and our standard of review,

plaintiffs have not shown that they are substantially burdened by the ACA’s Mandate and religious

accommodation. Plaintiffs will not be denied a benefit if they self-certify; they will gain the benefit

of removing their entity entirely from the government mandated provision of preventative services

coverage. The regulation also does not require the plaintiffs to modify their behavior—they already

inform their third party administrator that they object to contraceptive coverage, and they already

provide a list of names of those employees they wish to insure.

Unique to this case is also the district court’s finding that these plaintiffs provide to their

employees a self-funded health plan, which is administered by a separate third party administrator,

and which is not subject to the Mandate’s enforcement mechanism. Without an enforcement

mechanism, the accommodation cannot impose a “substantial burden” on plaintiffs because there

is no government coercion. See Little Sisters of the Poor Home for the Aged v. Sebelius, No. 13-

1540 (10th Cir. Dec. 31, 2013). Nor could a denial of an injunction run afoul of RFRA based on

-8-

CaseC1a:s1e3:-c1v3--021722437-GDJQocuDmocen#t5: 00F6il1e1d10912/50837/124 PFaigleed:1011o/0f 31/1201P4age PIDa#g1e4: 192
No. 13-2723 - 9 -

(11 of 11)

plaintiffs’ speculative argument that they are substantially burdened by the Mandate because it

requires them to maintain a business relationship with a third party that provides contraceptive

coverage. Because the self-funded health plan can refuse to comply with the Mandate without any

legal consequences, plaintiffs cannot show that they are coerced into maintaining a business

relationship that is contrary to their religious beliefs.

For these reasons as well as the ones explained by Judge Quist below and by Judge Campbell

in the similar case of the Catholic Diocese of Nashville v. Sebelius, No. 3:13-01303, 2013 WL

6834375 (M.D. Tenn. Dec. 26, 2013), I do not think that plaintiffs carried their burden to prove a

likelihood of success on the merits. Nor have plaintiffs shown that they will suffer irreparable harm

or that the balance of the equities and public interest weigh in favor of an injunction. Thus, plaintiffs

have failed to meet their burden to establish that the district court abused its discretion in denying

a preliminary injunction or injunction pending appeal.

Therefore, I respectfully dissent from the panel decision granting an injunction pending

appeal. I would instead join my colleagues in the Tenth and Seventh Circuits in denying an

injunction. See Little Sisters, No. 13-1540; University of Notre Dame v. Sebelius, No. 13-3853 (7th

Cir. Dec. 30, 2013).

ENTERED BY ORDER OF THE COURT

Clerk

-9-

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0121p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

MICHIGAN CATHOLIC CONFERENCE and CATHOLIC ┐

FAMILY SERVICES D/B/A CATHOLIC CHARITIES │

DIOCESE OF KALAMAZOO (13-2723); THE CATHOLIC │

DIOCESE OF NASHVILLE, CATHOLIC CHARITIES OF │

TENNESSEE, INC., CAMP MARYMOUNT, INC., MARY, QUEEN OF ANGELS, INC., ST. MARY VILLA, INC.,

││>

DOMINICAN SISTERS OF ST. CECILIA │

CONGREGATION, and AQUINAS COLLEGE (13-6640), │

Nos. 13-2723/6640

Plaintiffs-Appellants, │ │

v.

│ │

│

SYLVIA MATTHEWS BURWELL, Secretary of the │

United States Department of Health and Human │

Services; THOMAS E. PEREZ, Secretary of the United │

States Department of Labor; JACOB J. LEW, Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF THE TREASURY,

│ │ │ │ │ │ │

Defendants-Appellees. │

┘

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids;
No. 1:13-cv-01247—Gordon J. Quist, District Judge.

and

Appeal from the United States District Court for the Middle District of Tennessee at Nashville;
No. 3:13-cv-01303—Todd J. Campbell, District Judge.

Argued: May 8, 2014

Decided and Filed: June 11, 2014

1

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Before: MOORE and ROGERS, Circuit Judges; NIXON, District Judge.*
_________________
COUNSEL
ARGUED: Matthew A. Kairis, JONES DAY, Columbus, Ohio, for Appellants. Adam C. Jed, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Matthew A. Kairis, Melissa Dunlap Palmisciano, Neil Vakharia, JONES DAY, Columbus, Ohio, for Appellants. Adam C. Jed, Mark B. Stern, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Charles E. Davidow, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Washington, D.C., Daniel Mach, Brigitte Amiri, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C., Ayesha N. Khan, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Amici Curiae.
_________________

OPINION _________________

KAREN NELSON MOORE, Circuit Judge. The plaintiffs-appellants in this consolidated appeal are non-profit entities affiliated with the Catholic Church who have religious objections to certain preventive care standards under the Patient Protection and Affordable Care Act. Specifically, the appellants object to the requirement that their employer-based health insurance plans cover all Food and Drug Administration-approved contraception, sterilization methods, and counseling. All of the appellants are eligible for either an exemption from the requirement or an accommodation to the requirement, through which the entities will not pay for the contraceptive products and services and the coverage will be independently administered by an insurance issuer or third-party administrator. Nonetheless, in their complaints filed in the District Courts for the Middle District of Tennessee and Western District of Michigan, the appellants alleged that the contraceptive-coverage requirement violated the Religious Freedom Restoration Act; the Free Speech, Free Exercise, and Establishment Clauses of the First Amendment; and the Administrative Procedure Act. Both district courts denied the appellants’ motions for a

*The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by designation.

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preliminary injunction. We AFFIRM the denials of preliminary injunctions to all appellants on all claims.

A. Factual Background

I. BACKGROUND

The appellants allege that they are Catholic entities that provide “spiritual, educational, social, and financial services to members of their communities, Catholic and non-Catholic alike.” MCC R. 1 (MCC Compl. at ¶ 1) (Page ID #2); CDN R. 1 (CDN Compl. at ¶ 2) (Page ID #2).1

All appellants currently provide health plans to their employees. Michigan Catholic Conference (“MCC”) offers a self-insured group health plan that is “administered by separate third party administrators, 2 Blue Cross Blue Shield of Michigan and Express Scripts.” MCC R. 1 (Compl. at ¶ 41) (Page ID #13). Catholic Charities of Kalamazoo is a “Covered Unit[]” whose employees may participate in the plan that MCC offers its employees. MCC R. 1 (Compl. at ¶¶ 41, 50–51) (Page ID #13, 15). The remaining appellants—the Catholic Diocese of Nashville (“CDN”);3 Catholic Charities of Tennessee, Inc. (“Catholic Charities of Tennessee”); Camp Marymount, Inc. (“Camp Marymount”); Mary, Queen of Angels, Inc. (“MQA”); St. Mary Villa, Inc. (“St. Mary Villa”); Aquinas College; and Dominican Sisters of St. Cecilia Congregation (“St. Cecilia Congregation”)—offer fully-insured group health plans.4 CDN R. 1 (Compl. at ¶¶ 43, 61, 71, 79, 80, 107, 129) (Page ID #13, 17, 19, 20, 25, 30).

1MCC R. refers to documents in Michigan Catholic Confer ence et al. v. Burwell et al. , No. 13-2723, and CDN R. refers to documents in Catholic Diocese of Nashville et al. v. Burwell et al., No. 13-6640.
2“A self-insured plan is one in which benefits are paid from contributions supplied by the employer without the assistance of outside insurance.” 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1 (3d ed. 2013). “An employer is said to have a ‘self-insured’ plan if [the employer] bears the financial risk of paying claims.” Government Br. at 7 n.1. Many companies that offer self-insured plans hire an insurance company or other outside entity, referred to as a third-party administrator, “to administer their plans, performing functions such as developing networks of providers, negotiating payment rates, and processing claims.” Id.
3CDN offers its employees a choice including a preferred provider option (“PPO plan”) and a highdeductible option. CDN R. 1 (Compl. at ¶ 43) (Page ID #13). The PPO plan meets the definition of a “grandfathered plan” under the ACA; thus, at this time, that plan is exempt from the contraceptive-coverage requirement. CDN R. 1 (Compl. at ¶ 46) (Page ID #13).
4“An insured plan, also known as a fully insured plan, is one in which insurance is purchased from a regulated insurance company.” 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1 (3d ed. 2013).

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MCC, CDN, and St. Cecilia Congregation allege that they are eligible for the total exemption from the contraceptive-coverage requirement for “religious employers,” meaning that their health plans need not provide contraceptive coverage. MCC R. 1 (Compl. at ¶ 9) (Page ID #4); CDN R. 1 (Compl. at ¶ 14) (Page ID #7). The remaining appellants allege that they are eligible for the accommodation for certain religiously affiliated non-profits. MCC R. 1 (Compl. at ¶ 11) (Page ID #5); CDN R. 1 (Compl. at ¶ 10) (Page ID #5).

Regulatory Background
The enactment of the Patient Protection and Affordable Care Act (“ACA”) in 2010 established new minimum standards requiring employer-based group health plans and health insurance issuers to cover certain services without cost-sharing through a deductible or other payment by the plan participant or beneficiary. 42 U.S.C. § 300gg-13. The term “group health plan” is broadly defined to include both insured group health plans and self-insured group health plans: “[t]he term ‘group health plan’ means an employee welfare benefit plan . . . to the extent that the plan provides medical care (as defined in paragraph (2)) and including items and services paid for as medical care) to employees or their dependents (as defined under the terms of the plan) directly or through insurance, reimbursement, or otherwise.” 42 U.S.C. § 300gg-91(a)(1). Congressional hearings emphasized the importance of coverage without cost-sharing for women’s specific healthcare needs because “women have different health needs than men, and these needs often generate additional costs.” 155 Cong. Rec. 29049, 29070 (Dec. 2, 2009) (statement of Sen. Feinstein). “Women of childbearing age spent 68 percent more in out-ofpocket health care costs than men.” Id. Additionally, the legislative debates recognized that medical costs disproportionately discourage women from seeking treatment: “[w]omen are more likely than men to neglect care or treatment because of cost.” 155 Cong. Rec. S11985, S11987 (daily ed. Nov. 30. 2009) (statement of Sen. Mikulski). The enacted law thus required coverage 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.” 42 U.S.C. § 300gg-13(a)(4); see also Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under the Patient Protection and Affordable Care Act,

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77 Fed. Reg. 8725-01, 8725 (Feb. 15, 2012) (to be codified at 29 C.F.R. pt. 2590; 45 C.F.R. pt. 147).
For assistance in developing the guidelines for covered “preventive care and screenings,” id., the Health Resources and Services Administration (“HRSA”) asked the Institute of Medicine (“IOM”) to bring together a committee to “conduct a review of effective preventive services to ensure women’s health and well-being.” IOM, Clinical Preventive Services for Women: Closing the Gaps (“Closing the Gaps” ) (2011), 1.5 “The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public.” Id. at iv. The members of the Committee on Preventive Services for Women (“Committee”) included “specialists in disease prevention, women’s health issues, adolescent health issues, and evidencebased guidelines.” Id. at 2. The Committee recommended preventive measures that “met the following criteria:
● The condition to be prevented affects a broad population; ● The condition to be prevented has a large potential impact on health and
well-being; and ● The quality and strength of the evidence is supportive.
Id. at 8. The Committee made eight recommendations6 for preventive services for women, including coverage for “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10; see also 77 Fed. Reg. at 8725. This recommendation was based on the Committee’s concern about the high rate of unintended pregnancy in the United States; forty-nine percent of pregnancies in 2001 “were unintended—defined as unwanted or mistimed at the time of conception,” a rate much higher than comparable developed countries. Closing the Gaps at 102. The rate of unintended pregnancy “is more likely among women who are aged 18 to 24 years and unmarried, who have a low income, who are not high school graduates, and who are members of a racial or ethnic minority group.” Id. The Committee

5The report may be read online for free at: http://www.iom.edu/Reports/2011/Clinical-PreventiveServices-for-Women-Closing-the-Gaps.aspx.
6One of the sixteen members of the Committee, Anthony Lo Sasso, dissented from the report.

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concluded that contraceptive coverage would greatly decrease the risk of unwanted pregnancies, adverse pregnancy outcomes, and other negative health consequences, and significantly reduce women’s medical costs. Id. at 102–07. The regulations promulgated by the agencies implementing the ACA required group health plans and insurance issuers offering group or individual health insurance coverage to provide coverage without cost-sharing for preventive care and screenings provided for in guidelines supported by the HRSA. See 26 C.F.R. § 54.9815-2713A (Tax); 29 C.F.R. § 2590.715-2713A (Labor); 45 C.F.R. § 147.131 (Health and Human Services).7
The regulations provide for a religious-employer exemption from the contraceptivecoverage requirement and an accommodation for certain non-profits that do not qualify for the exemption but that object to contraceptive coverage on religious grounds. The government first developed the religious-employer exemption, under which HRSA is authorized to “establish an exemption . . . with respect to a group health plan established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer) with respect to any requirement to cover contraceptive services under such guidelines.” 45 C.F.R. § 147.131(a). A “religious employer” is defined as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a); see 26 U.S.C. §§ 6033(a)(3)(A)(i), (iii) (referring to “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.”).
Based on objections that the religious-employer exemption as borrowed from the Tax Code was drawn too narrowly, the government developed a special accommodation for certain non-profits. The accommodation was intended to “meet two goals—providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non-exempted, non-profit organizations’ religious objections to covering contraceptive services.” 77 Fed. Reg.

7The Department of Treasury, Department of Labor, and Department of Health and Human Services promulgated identical regulations regarding the framework. See 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2590.7152713A; 45 C.F.R. § 147.131. For the sake of simplicity, we cite only the Department of Labor regulations.

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at 8727. The final regulations permitted “eligible organization[s]” to obtain the accommodation
if the organization “satisfies all of the following requirements:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the
Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request[.]
45 C.F.R. § 147.131(b).
The process by which an organization obtains the exemption and the accommodation will
be discussed as relevant to the appellants’ claims.

B. Procedural History
MCC and Catholic Charities of Kalamazoo (together, “MCC plaintiffs”) filed suit in the District Court for the Western District of Michigan on November 14, 2013. CDN, Catholic Charities of Tennessee, Camp Marymount, MQA, St. Mary Villa, St. Cecilia Congregation, and Aquinas College (together, “CDN plaintiffs”) filed suit in the District Court for the Middle District of Tennessee on November 22, 2013. Both sets of plaintiffs alleged that the contraceptive-coverage requirement violated the Religious Freedom Restoration Act; the Free Exercise, Free Speech, and Establishment Clauses of the First Amendment, and the Administrative Procedure Act. In November 2013, the plaintiffs moved for preliminary injunctions in their respective district courts. The District Court for the Western District of Michigan denied a preliminary injunction on all claims because the plaintiffs had not shown a likelihood of success on the merits of their claims. Michigan Catholic Conf erence v. Sebelius No. 1:13-CV-1247, 2013 WL 6838707, at *13 (W.D. Mich. Dec. 27, 2013). The District Court for the Middle District of Tennessee held that the plaintiffs waived their claims under the Administrative Procedure Act, and denied a preliminary injunction on all other claims because the plaintiffs had not shown a likelihood of success on the merits of their claims. Catholic

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Diocese of Nashville v. Sebelius , No. 3:13-01303, 2013 WL 6834375, at *4–10 (M.D. Tenn. Dec. 26, 2013).
The appellants now appeal the denials of their motions for a preliminary injunction.

A. Standard of Review

II. ANALYSIS

As we recently stated in a unanimous en banc decision, there are:

four factors [the district court] must balance when considering a motion for preliminary injunction: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction. When a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits often will be the determinative factor. Whether the movant is likely to succeed on the merits is a question of law we review de novo. We review for abuse of discretion, however, the district court’s ultimate determination as to whether the four preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief. This standard is deferential, but the court may reverse the district court if it improperly applied the governing law, used an erroneous legal standard, or relied upon clearly erroneous findings of fact.

City of Pontiac Retired Emps. Ass’n v. Schimme l, No. 12-2087, 2014 WL 1758913, at *2 (6th Cir. May 5, 2014) (en banc) (internal quotation marks and citations omitted). “The party seeking a preliminary injunction bears a burden of justifying such relief, including showing irreparable harm and likelihood of success.” McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012).

B. Religious Freedom Restoration Act
The appellants argue that the contraceptive-coverage requirement violates the Religious Freedom Restoration Act (“RFRA”) because it imposes a substantial burden on their exercise of religion by forcing them to provide, pay for, and/or facilitate access to insurance coverage for contraception, and the contraceptive-coverage requirement is not the least restrictive means to further a compelling government interest. Both district courts concluded that the contraceptivecoverage requirement does not impose a substantial burden on the exercise of religion because the plaintiffs were eligible for either the exemption or the accommodation from the requirement.

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To analyze properly the appellants’ claim under RFRA, we begin with the genesis of the

law. In Sherbert v. Verner , 374 U.S. 398 (1963), the Court held that if a state law survived

constitutional challenge, it would be “because any incidental burden on the free exercise of

appellant’s religion may be justified by a ‘compelling state interest in the regulation of a subject

within the State’s constitutional power to regulate . . . .” Id. at 403 (quoting NAACP v. Button , 371 U.S. 415, 438 (1963)). The Supreme Court rejected the compelling-interest test in

Employment Division, Depar tment of Human Resources of Oregon v. Smith (1990), stating that:

, 494 U.S. 872

The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is compelling—permitting him, by virtue of his beliefs, to become a law unto himself—contradicts both constitutional tradition and common sense.

Id. at 884–85 (quotation marks and internal citations omitted). In “direct response” to Employment Division v. Smith, Congress enacted RFRA. City of Boerne v. Flores, 521 U.S. 507, 512 (1997). RFRA’s stated purposes are:

(1) 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. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and (2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

42 U.S.C. § 2000bb(b). Under RFRA, the government may not “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government demonstrates that application of the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 8 42 U.S.C. §§ 2000bb-1(a), (b).

8As a preliminary matter, we note two questions that have not been raised by the parties in this case and that, because we conclude that the contraceptive-coverage requirement does not violate RFRA, we need not address. First, whether the appellants, all of whom are non-profit corporations, are “persons” capable of the “exercise of religion” within the meaning of RFRA. Second, whether RFRA applies to a later-enacted statute. RFRA contains

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We follow a two-step process for analyzing RFRA claims:
First, the plaintiff must make out a prima facie case by establishing Article III standing and showing that the law in question would (1) substantially burden (2) a sincere (3) religious exercise. If the plaintiff makes out a prima facie case, it falls to the government to 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. The government carries the burdens of both production and persuasion when it seeks to justify a substantial burden on a sincere religious practice.
Autocam Corp. v. Sebelius , 730 F.3d 618, 625 (6th Cir. 2013) (internal quotation marks and citations omitted). “Where the state conditions receipt of an important benefit upon conduct
proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by
religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to
violate his beliefs, a burden upon religion exists.” Thomas v. Review Bd. of Indiana Emp’t Sec. Div., 450 U.S. 707, 717–18 (1981). But a government action does not constitute a substantial burden on the exercise of religion even if “the challenged Government action would interfere
significantly with private persons’ ability to pursue spiritual fulfillment according to their own
religious beliefs” if the governmental action does not coerce the individuals to violate their
religious beliefs or deny them the “rights, benefits, and privileges enjoyed by other citizens.”
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988).

an express-reference requirement providing that “[f]ederal statutory law adopted after November 16, 1993 is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.” 42 U.S.C. § 2000bb-3(b). Essentially, RFRA purports to bind all later Congresses unless they specifically reject the application of RFRA by the means specified by the earlier Congress that enacted RFRA. The Supreme Court has questioned the binding effect of express-reference requirements. Marcello v. Bonds, 349 U.S. 302, 310 (1955) (refusing “to require the Congress to employ magical passwords in order to effectuate an exemption from” a previously enacted statute). In Dorsey v. United States, the Court treated a savings statute with an express-reference requirement as:
in effect a less demanding interpretive requirement. That is because statutes enacted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modified. And Congress remains free to express any such intention either expressly or by implication as it chooses.
--U.S.--, 132 S. Ct. 2321, 2331 (2012) (emphasis added) (citations omitted). See al so Lock hart v. Uni ted States, 546 U.S. 142, 149–50 (2005) (Scalia, J., concurring) (identifying RFRA as a statute with an express-reference requirement and remarking that “it does no favor to the Members of Congress, and to those who assist in drafting their legislation, to keep secret the fact that such express-reference provisions are ineffective.”). Thus, Congress may reject the application of RFRA to a later-enacted statute without explicitly stating that RFRA does not apply.

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The exercise of religion that appellants argue is burdened by the contraceptive-coverage requirement is their “refus[al] to take certain actions in furtherance of a regulatory scheme to provide their employees with coverage for abortion-inducing products, contraceptives, sterilization, and related education and counseling.” Appellant Br. at 26–27. The government does not dispute that the appellants’ desire not to participate in the provision of contraception is a sincere religious belief.
The government does argue, however, that the contraceptive-coverage requirement does not impose a substantial burden on the appellants’ exercise of religion. Because the appellants all concede that they are eligible for either the exemption or the accommodation, they need not actually participate in the contraceptive-coverage requirement. Government Br. at 18–19. The appellants respond that the exemption and accommodation do not alleviate the burden of the contraceptive-coverage requirement because the process to obtain the exemption or accommodation forces the appellants “to play an integral role in the delivery of objectionable products and services to their employees.” Appellant Br. at 27–29.
First, we must address the appellants’ argument that the court should defer to their conclusion that the exemption and accommodation arrangement forces them to provide, pay for, and/or facilitate access to contraceptive coverage. See Appellant Br. at 18–20 (describing the district court’s conclusion that the contraceptive-coverage requirement imposes a burden on third parties, not the appellants, as a “foray into the theology behind Catholic precepts on contraception [that] was manifestly improper”) (internal quotation marks omitted); Appellant Br. at 36 (“Whether the accommodation relieves Appellants of moral culpability for their actions (i.e., allows them to opt out) or makes them complicit in a grave moral wrong is a question of religious conscience for [Appellants] to decide.”) (internal quotation marks omitted). Put another way, the appellants appear to ask the court to defer not only to their belief that requesting the exemption or the accommodation makes them complicit in sin, but also to defer to their understanding of how the regulatory measure actually works.
But as was recently explained, “there is nothing about RFRA or First Amendment jurisprudence that requires the Court to accept plaintiffs’ characterization of the regulatory scheme on its face.” Roman Catholic Archbishop of Washington v. Sebelius, --F. Supp. 2d--, No.

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13-1441, 2013 WL 6729515, at *14 (D.D.C. Dec. 20, 2013), injunction granted pending appeal, No. 13-5371 (D.C. Cir. Dec. 31, 2013)). Although we are in no position to determine the moral or theological consequences of appellants requesting the exemption or accommodation, we must determine the legal consequences. Whether a government obligation substantially burdens the exercise of religion is a question of law, not a “question[] of fact, proven by the credibility of the claimant.” Mahoney v. Doe , 642 F.3d 1112, 1121 (D.C. Cir. 2011)). We “accept[ ] as true the factual allegations that [appellants’] beliefs are sincere and of a religious nature—but not the legal conclusion, cast as a factual allegation, that [their] religious exercise is substantially burdened.” Kaemmerling v. Lappin , 553 F.3d 669, 679 (D.C Cir. 2008). Thus, although we acknowledge that the appellants believe that the regulatory framework makes them complicit in the provision of contraception, we will independently determine what the regulatory provisions require and whether they impose a substantial burden on appellants’ exercise of religion.

1. Appellants Eligible for the Exemption
MCC, CDN, and St. Cecilia Congregation allege that they are eligible for the religiousemployer exemption from the contraceptive-coverage requirement. MCC R. 1 (Compl. at ¶ 9) (Page ID #4); CDN R. 1 (Compl. at ¶ 14) (Page ID #7). The government agrees that these three appellants are “exempt from the contraceptive coverage requirement under 45 C.F.R. § 147.131(a).” Government Br. at 9–10, 18; see also Government Br. at 13. The appellants do not object to any specific act that they must engage in to obtain the exemption. Indeed, the government states that these “[p]laintiffs are . . . already exempt from the requirement to provide contraceptive coverage.” Government Br. at 13. Because both parties agree that MCC, CDN, and St. Cecilia Congregation are eligible for the exemption and because the appellants do not identify any particular action that they must take to obtain the exemption that burdens their exercise of religion, appellants have not demonstrated a strong likelihood of success on the merits of this claim.

2. Appellants Eligible for the Accommodation
The contraceptive-coverage framework does not impose a burden on the exercise of religion by those remaining appellants who are eligible for the accommodation. If an entity has an insured group health insurance plan, all that the entity must do to obtain the accommodation is

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“furnish[] a copy of the self-certification . . . to each issuer that would otherwise provide such coverage in connection with the group health plan.”9 29 C.F.R. § 2590.715-2713A(c)(1). If an entity has a self-insured plan, such as Catholic Charities of Kalamazoo, all that the entity must do to obtain the accommodation is “[c]ontract with one or more third party administrators”10 and “provide[] each third party administrator that will process claims for any contraceptive services11 . . . with a copy of the self-certification.” 29 C.F.R. § 2590.715-2713A(b)(1)(i), (ii). That is the entirety of the conduct that the objecting organization must engage in to obtain the accommodation.
The appellants are not required to “provide” contraceptive coverage. They are not required physically to distribute contraception to their employees upon request, and the eligible organization’s health plan does not host the coverage. Upon receipt of the self-certification form, the insurance issuer “must—(A) Expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan.” 29 C.F.R. § 2590.715-2713A(c)(2)(i)(A). In the self-insured context, the self-certification form declares to the third-party administrator that “[t]he eligible organization will not act as the plan administrator or claims administrator with respect to claims for contraceptive services.” 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A). Instead, the third-party administrator “shall be responsible for . . . compliance with” the preventive care and screenings provided for in the HRSA guidelines. 29 C.F.R. § 2510.3-16(b), (b)(1) (referencing obligations in 42 U.S.C. § 300gg-13 and 29 C.F.R. § 2590.715-2713A(b)(1)(ii)). Thus, although the insurance issuer or third-party administrator will provide contraceptive coverage, the appellants will not.

9Nothing in the record indicates that any of the insurance issuers with which the appellants contract has refused to provide contraceptive coverage upon receipt of a self-certification form.
10Catholic Charities of Kalamazoo, the only appellant alleging that it is eligible for the accommodation and has a self-insured plan, already contracts with a third-party administrator. This appellant participates in the MCC Plan, “which consists of self-funded medical and prescription benefits administered by separate third party administrators, Blue Cross Blue Shield of Michigan and Express Scripts, respectively.” MCC R. 1 (Compl. at ¶¶ 41, 50) (Page ID #13, 15).
11Nothing in the record indicates that Catholic Charities of Kalamazoo’s third-party administrator has refused to provide contraceptive coverage upon receipt of a self-certification form.

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The appellants are not required to “pay for” contraceptive coverage. When an insurance issuer receives the self-certification form, it “must . . . Provide separate payments for any contraceptive services.” 29 C.F.R. § 2590.715-2713A(c)(2)(i)(B). The eligible organization’s money will not fund the contraceptive coverage: “[t]he issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 29 C.F.R. § 2590.715-2713A(c)(2)(ii). When a third-party administrator receives the self-certification form, it must “provide or arrange payments for contraceptive services” either by providing the payments itself or arranging for an issuer or another entity to provide the payments. 29 C.F.R. § 2590.715-2713A(b)(2)(i), (ii). In either situation, whoever is providing the payments may not “impose[] a premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.” 29 C.F.R. § 2590.715-2713A(b)(2)(i), (ii); (c)(2)(ii). The accommodated entity does not even need to be the one to tell the employees about the contraceptive coverage. The regulations require the insurance issuer or third-party administrator to provide written notice to plan participants and beneficiaries “specify[ing] that the eligible organization does not administer or fund contraceptive benefits, but that the third party administrator or issuer, as applicable, provides separate payments for contraceptive services.” 29 C.F.R. § 2590.715-2713A(d). Thus, although the insurance issuer or third-party administrator will pay for contraceptive coverage, the appellants will not.
Moreover, the appellants are not required to “facilitate access to” contraceptive coverage. The crux of the appellants’ “facilitation” argument is that providing the self-certification form to the insurance issuer or third-party administrator “triggers” the provision of the contraceptive coverage to their employees. Appellant Br. at 9, 27–31. This argument rests on two assumptions that are, perhaps, two sides of the same coin: first, that the insurance issuer and third-party administrator could not provide the coverage until they receive a self-certification form and second, that the insurance issuer and third-party administrator then provide the coverage because they received the self-certification form.
Submitting the self-certification form to the insurance issuer or third-party administrator does not “trigger” contraceptive coverage; it is federal law that requires the insurance issuer or

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the third-party administrator to provide this coverage. The ACA requires “[a] group health plan12 and a health insurance issuer offering group or individual health insurance coverage” to “provide coverage 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.” 42 U.S.C. §§ 300gg-13(a), (a)(4). Thus, under the ACA, the appellants’ health plans and insurance issuers must provide contraceptive coverage without cost-sharing, whether or not the appellants decide to self-certify. “Federal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of selfinsured health plans, to cover contraceptive services.” Univ. of Notre Dame , 743 F.3d at 554. “Because Congress has imposed an independent obligation on insurers to provide contraceptive coverage to Appellants’ employees, those employees will receive contraceptive coverage from their insurers even if Appellants self-certify—but not because Appellants self-certify.” Roman Catholic Archbishop of Washington v. Sebelius , No. 13-5371; Priests for Life v. U.S. Dep’t of Health and Human Servs. , No. 13-5368 (D.C. Cir. Dec. 31, 2013) (Tatel, J., dissenting from injunction pending appeal). The obligation to cover contraception will not be triggered by the act of self-certification—it already was triggered by the enactment of the ACA.
The appellants allege that providing, paying for, and/or facilitating access to contraceptive coverage burdens their exercise of religion. As discussed supra, the exemption and accommodation framework does not require them to do any of these things. The framework does not permit them to prevent their insurance issuer or third-party administrator from providing contraceptive coverage to their employees pursuant to independent obligations under federal law. However, the inability to “restrain the behavior of a third party that conflicts with the [appellants’] religious beliefs,” Michigan Catholic Conference , 2013 WL 6838707, at *7, does not impose a burden on the appellants’ exercise of religion. “[W]hile a religious institution has broad immunity from being required to engage in acts that violate the tenets of its faith, it has

12Group health plan is broadly defined and includes both insured group health plans and self-insured group health plans: “[t]he term ‘group health plan’ means an employee welfare benefit plan . . . to the extent that the plan provides medical care (as defined in paragraph (2)) and including items and services paid for as medical care) to employees or their dependents (as defined under the terms of the plan) directly or through insurance, reimbursement, or otherwise.” 42 U.S.C. § 300gg-91(a)(1).

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no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution.” Univ. of Notre Dame, 743 F.3d at 552.
The government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’ exercise of religion. In Bowen v. Roy, a pre-Smith Free Exercise case, the Supreme Court rejected a Free Exercise claim against the government’s use of a Native American child’s Social Security number. The father of the child “believe[d] the use of the number may harm his daughter’s spirit.” 476 U.S. 693, 699 (1986). The Court concluded that the Free Exercise Clause did not allow an individual to force the Government to conform its conduct to the individual’s religious beliefs. “Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family.” Id. The family “may not demand that the Government join in their chosen religious practices . . . . As a result, Roy may no more prevail on his religious objection to the Government’s use of a Social Security number for his daughter than he could on a sincere religious objection to the size or color of the Government’s filing cabinets.” Id. at 700. Just as the government’s use of the child’s Social Security number “does not itself in any degree impair [the family’s] ‘freedom to believe, express, and exercise[e]’ [their] religion,” id., the Government’s instruction to insurance issuers and third-party administrators to provide contraceptive coverage does not force the appellants to provide, pay for, and/or facilitate access to the coverage.
Similarly, in Kaemmerling v. Lappin the D.C. Circuit rejected a RFRA claim because the challenged government action did not require anything of the challenger. A prisoner expressed religious objections to the government collecting and analyzing his DNA profile pursuant to the DNA Act. 553 F.3d 669, 678–79 (D.C. Cir. 2008). The court held that the prisoner “cannot identify any ‘exercise’ which is the subject of the burden to which he objects” because the governmental process of extracting DNA “involves no action or forbearance on [the prisoner’s] part, nor does it otherwise interfere with any religious act in which he engages.” Id. at 679. Here, the only thing that the exemption and accommodation framework requires of the appellants is conduct in which they already engage. They will continue to sponsor health plans, contract with insurance issuers or third-party administrators, and declare their opposition to providing

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contraceptive coverage to their insurance issuer and third-party administrator. Michigan Catholic Conference, 2013 WL 6838707, at *7. The only difference in conduct is on the part of the insurance issuer or third-party administrator; appellants “are not required to ‘modify [their] behavior.’ Rather, it is the TPA [or insurance issuer] that is required to modify its behavior and take action by providing contraceptive services—without the assistance of” the appellant. Id. Employees and beneficiaries will receive contraceptive coverage, but that coverage will be “despite plaintiffs’ religious objections, not because of them.” Government Br. at 26. Again, the insurance issuers and third-party administrators are not parties to this suit and have not expressed any opposition to complying with the contraceptive-coverage requirement. The fact that the regulations require the insurance issuers and third-party administrators to modify their behavior does not demonstrate a substantial burden on the appellants.
In addition to the objection to the self-certification form, the appellants raise various procedural objections to the accommodation framework, none of which is meritorious. The appellants object to having to offer enrollment paperwork to allow employees to enroll in the plan overseen by the third party and to sending health-plan enrollment paperwork to the third party. Appellant Br. at 29. The regulations do not require either of these acts; the regulations specifically provide that the third-party administrator or insurance issuer (not the accommodated eligible organization) notifies plan participants and beneficiaries of the availability of payments for contraceptive services. See 29 C.F.R. §§ 2590.715-2713A(d). The appellants object to having to “[i]dentify for a third party which of their employees will participate in the plan.” Appellant Br. at 29. Again, this is not required by the regulations. Moreover, because these appellants already contract with insurance issuers and third-party administrators, the insurance issuers and third-party administrators presumably already have lists of plan participants and beneficiaries. Finally, the appellants object to having to “[r]efrain from canceling their insurance arrangement with a third party authorized to provide the objectionable products and services.” Appellant Br. at 29. Once again, the regulations do not prohibit the appellants from canceling an insurance arrangement, and the appellants have not expressed any actual intent to do so. Because these objections do not go to actual requirements of the contraceptive-coverage framework, they clearly do not demonstrate a substantial burden on appellants’ exercise of religion.

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The appellants argue that the exemption and accommodation mechanism pressures them to modify their behavior and violate their religious beliefs because previously they informed their insurance issuer or third-party administrator of their opposition to contraception and those entities did not cover contraception, but now they will inform their insurance issuer or third-party administrator of their opposition and those entities will cover contraception. But that is an objection to the later independent action of a third party, not to an obligation imposed on the appellants by the government. It is not the act of self-certification that causes the insurance issuer and the third-party administrator to cover contraception, it is the law of the United States that does that. Self-certification allows the eligible organization to tell the insurance issuer and third-party administrator “‘we’re excused from the new federal obligation relating to contraception,’ and in turn, the government tells those insurance companies, ‘but you’re not.’” Univ. of Notre Dame , 743 F.3d at 557. Perhaps the appellants would like to retain the authority to prevent their insurance issuer or third-party administrator from providing contraceptive coverage to appellants’ employees, but “RFRA is not a mechanism to advance a generalized objection to a governmental policy choice, even if it is one sincerely based upon religion.” Roman Catholic Archbishop of Washington, 2013 WL 6729515, at *2.
Because these appellants may obtain the accommodation from the contraceptivecoverage requirement without providing, paying for, and/or facilitating access to contraception, the contraceptive-coverage requirement does not impose a substantial burden on these appellants’ exercise of religion. Therefore, these appellants have not demonstrated a strong likelihood of success on the merits of their RFRA claim.

C. First Amendment 1. Free Speech Clause
“It is . . . a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., --U.S.--, 133 S. Ct. 2321, 2327 (2013) (internal quotation marks omitted). “The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.” Knox v. Serv. Emps. Int’l Union, Local 1000 , --U.S.--, 132 S. Ct. 2277, 2288 (2012). The appellants argue that the contraceptive-coverage requirement

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violates the Free Speech Clause of the First Amendment by forcing them to provide, pay for, and/or facilitate access to contraception counseling; forcing them to speak against their beliefs by filling out the self-certification form; and imposing a “gag order” by prohibiting them from interfering with or seeking to influence a third-party administrator’s decision to cover contraception. We conclude that the contraceptive coverage requirement does not violate the Free Speech Clause of the First Amendment, and will address each of the subclaims in turn.

a. Contraceptive counseling
First, the appellants argue that the contraceptive-coverage requirement unconstitutionally compels speech by forcing them to provide, pay for, and/or facilitate access to counseling about contraception, and that this obligation violates their religious opposition “to providing any support for ‘counseling’ that encourages, promotes, or facilitates such practices.” Appellant Br. at 57–58. The guidelines recommended coverage without cost-sharing for “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Closing the Gaps at 10; see also 77 Fed. Reg. at 8725. Presumably, this counseling would include discussion of the range of contraceptive options, how the various products work, and what may be a good fit for the counseled individual’s health profile and lifestyle.
The regulations certainly do not require the accommodated entity to “provide” this counseling. The accommodated entity need not discuss or acknowledge the existence of the counseling coverage; the regulations require the insurance issuer or third-party administrator to inform plan participants and beneficiaries that separate payments are available for counseling and other contraceptive services. See 29 C.F.R. §§ 2590.715-2713A(d). The regulations make no attempt to stop the appellants’ practice of “counsel[ing] men and women against” using contraception. Appellant Br. at 57, 58. See Rumsfeld v. Fo rum for Aca demic and Institu tional Rights, Inc. (“FAIR”) , 547 U.S. 47, 65 (2006) (upholding a statute against a free-exercise challenge; the statute required law schools to give military recruiters equal access to other recruiters as a condition on receipt of certain federal funds, but “[n]othing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.”). Thus, in no

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way do the regulations compel the appellants’ speech by forcing them to provide contraceptive counseling.
The regulations also do not compel the appellants’ speech by forcing them to pay for contraceptive counseling. As discussed supra, the regulations specifically prohibit an insurance issuer or third-party administrator from passing on the cost of complying with the contraceptivecoverage requirement, which includes the cost of contraceptive counseling. See 29 C.F.R. § 2590.715-2713A(b)(2), (c)(2).
Finally, the requirements do not force the appellants to facilitate access to contraceptive counseling. It is not clear what speech, exactly, the appellants believe is compelled by the facilitation of such coverage; in any event, as discussed supra, it is federal law, not the appellants’ actions, that requires their insurance issuer or third-party administrator to provide insurance coverage for contraceptive counseling. The contraceptive coverage is provided through a government regulation of the insurance issuer and third-party administrator, not through the appellants’ health insurance plan. See 29 C.F.R. § 2590.715-2713A(c)(2)(i)(A) (upon receipt of the self-certification form, the insurance issuer “must—(A) Expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan”); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(A) (the self-certification form declares to the third-party administrator that “[t]he eligible organization will not act as the plan administrator or claims administrator with respect to claims for contraceptive services”). Thus, the framework does not require appellants to “host or accommodate another speaker’s message” through their insurance plan. FAIR, 547 U.S. at 63; cf. Hurley v. Iris h-Am. Gay, Lesbian & Bisexual Group of Boston, Inc. , 515 U.S. 557, 566 (1995) (requiring a parade organizer to allow a group whose message it opposes to participate in the parade is unconstitutional forced accommodation of speech); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U.S. 1, 20–21 (1986) (plurality opinion) (forcing a utility company to include a third-party organization’s newsletter with the utility bill is unconstitutional forced accommodation of speech).

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The contraceptive counseling provision does not violate the Free Speech Clause of the First Amendment. Thus, appellants have not demonstrated a strong likelihood of success on the merits of this claim.

b. Self-certification Form
Second, the appellants argue that the requirement that they complete the self-certification form in order to obtain the accommodation “compels Appellants to engage in speech that triggers provision of the objectionable products and services, and [ ] deprives Appellants of the freedom to speak on the issue of abortion and contraception on their own terms, at a time and place of their own choosing, outside of the confines of the Government’s regulatory scheme.” Appellant Br. at 58. As discussed supra, the self-certification form does not trigger the provision of contraceptive coverage, but instead it triggers the entities’ disassociation from what they deem to be the objectionable coverage. Thus, this framework is nothing like the unconstitutional state campaign finance law in Arizona Free Enterprise Club’s Freedom Club PAC v. Be nnett, where the state provided matching funds for publicly financed candidates when a privately financed candidate or independent expenditure group spent over a certain amount on the election, thus making the privately financed candidate’s political expenditures a trigger of funding to his or her adversary. --U.S.--, 131 S. Ct. 2806, 2818 (2011). The self-certification form does not have a similar triggering function. Additionally, the self-certification form does not deprive appellants of the freedom to speak out about abortion and contraception on their own terms. The form requires the appellants to assert their opposition to contraception in order to opt out of a generally applicable government program. Successful compelled-speech cases are those when “an individual is obliged personally to express a message he disagrees with, imposed by the government.” Johanns v. Livestock Mktg. Ass’n , 544 U.S. 550, 557 (2005). Even assuming that the government is compelling this speech, it is not speech that the appellants disagree with and so cannot be the basis of a First Amendment claim. Thus, the self-certification requirement does not compel speech in violation of the First Amendment, and so the appellants have not demonstrated a strong likelihood of success on the merits of this claim.

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c. “Gag Order”
Finally, the appellants argue that the accommodation framework imposes an unconstitutional “gag order” by prohibiting eligible organizations with self-insured group plans from interfering with, or seeking to influence, a third-party administrator’s decision to provide contraceptive coverage. Specifically, the regulation provides:
The eligible organization must not, directly or indirectly, seek to interfere with a third party administrator’s arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrangements.
29 C.F.R. § 2590.715-2713A(b)(iii). A footnote in the commentary to the regulations states that “[n]othing in these final regulations prohibits an eligible organization from expressing its opposition to the use of contraceptives.” Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39870, 39880 n.41 (July 2, 2013) (to be codified at 29 C.F.R. § 2510, 2590; 45 C.F.R. § 147, 156). The regulations thus draw a line between impermissible efforts to interfere with or influence a third-party administrator’s provision of contraceptive coverage and permissible expressions of opposition to contraceptives.
The appellants have presented their objections to this regulation at a very high level of generality and fail to identify what protected speech this regulation chills.13 It is not clear what the appellants want to do or say that they believe this regulation prohibits. Do the appellants feel chilled from having a calm discussion with their third-party administrator about Catholic doctrine, discouraging third-party administrators from entering into or maintaining contractual relationships with religiously affiliated organizations, encouraging the insurance issuer to violate federal law and refuse to provide contraceptive coverage, or something else altogether? We do

13Only the MCC plaintiffs raised this claim in their complaint, where they allege that contraceptivecoverage requirement “impos[es] a gag order that prohibits Plaintiffs from speaking out in any way that might ‘influence,’ ‘directly or indirectly,’ the decision of a third party administrator to provide or procure contraceptive products and services to Plaintiffs’ employees.” MCC R. 1 (Compl. at ¶ 188) (Page ID #44–45). In their motion for a preliminary injunction in the district court, they repeated this general argument and asserted that “[p]laintiffs believe that contraception is immoral, and by expressing that conviction they routinely seek to ‘influence’ or persuade their fellow citizens of that view.” MCC R. 15 (Prelim. Inj. Memo at 38) (Page ID #639). In their brief to this court, the appellants make a brief, general argument that they “believe that contraception is contrary to their faith, and speak and act accordingly. The Government has no authority to outlaw such expression.” Appellant Br. at 55.

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not know. Not all speech is protected by the First Amendment; for example, “an employer is free to communicate to his employees any of his general views about unionism” but may not make “a ‘threat of reprisal or force or promise of benefit.” N.L.R.B. v. Gissel Packing Co. , 395 U.S. 575, 618 (1969). Given the failure to “[tell] us what [they] want[] to say but fear[] to say” and the fact that “the government hasn’t clearly embraced an interpretation of the regulation that would give rise to the [First Amendment] concerns,” Univ. of Notre Dame, 743 F.3d at 561, the appellants have not demonstrated a strong likelihood of success on the merits of this claim.

2. Free Exercise Clause
The Free Exercise Clause is not violated by neutral laws of general applicability, “even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (“Church of the L.B.A.”) , 508 U.S. 520, 531 (1993). A law that is not neutral and of general applicability still does not violate the Free Exercise Clause if the law is “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” Id. at 531–32. The appellants argue that the contraceptive-coverage requirement is not a neutral law of general applicability because they say it was targeted at Catholic entities and has many exemptions. Appellant Br. at 53–54. On the contrary, the contraceptive-coverage requirement is a neutral law of general applicability and does not violate the Free Exercise Clause.
A law is not neutral “if the object of a law is to infringe upon or restrict practices because of their religious motivation.” Church of the L.B.A. , 508 U.S. at 533. “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.” Id. However, “[f]acial neutrality is not determinative . . . ‘The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.’” Id. at 534 (quoting Walz v. Tax Comm’n of New York City , 397 U.S. 664, 696 (1970) (Harlan, J., concurring)). The contraceptive-coverage requirement is a neutral law. Neither the text nor the history of the statute and regulations promulgated pursuant to the statute demonstrate that the requirement was targeted at a particular religious practice. There is no evidence that Congress and the executive branch agencies “had as their object the suppression of religion.” Id. at 542. The record does not “disclose[] animosity” towards the Catholic

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practice of refusing to support access to contraception, the framework does not “by [its] own terms target this religious exercise,” the program was not “gerrymandered with care to proscribe” the Catholic exercise of religion with respect to contraception but not secular opposition to contraception; and the arrangement does not “suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense.” Id. at 542. The appellants argue that the Government was aware of the refusal of Catholic employers to provide contraceptive coverage and enacted the requirement to force Catholic employers to violate their religious beliefs. Appellant Br. at 54. This argument is unpersuasive; the fact that the Government has required a religiously affiliated entity to do something that it does not want to on the basis of religion does not, ipso facto, mean that the law was targeted at religious practice. Accordingly, the framework is neutral.
A law is not of general applicability if it “in a selective manner impose[s] burdens only on conduct motivated by religious belief,” Church of the L.B.A., 508 U.S. at 543. The appellants argue that the requirement is not generally applicable because grandfathered plans, small businesses, and religious employers that obtain an exemption need not comply with the contraceptive-coverage requirement. This argument misunderstands the meaning of general applicability under our Free Exercise jurisprudence. “General applicability does not mean absolute universality.” See Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008). A law need not apply to every person or business in America to be generally applicable. A law is generally applicable if it does not make distinctions based on religion. To determine this, we consider whether the “legislature decide[d] that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.” Church of the L.B.A. , 508 U.S. at 542–43. The requirement at issue here does not pursue the governmental interest in contraceptive coverage only against entities with a religiously motivated objection to providing such coverage; that interest is pursued uniformly against all businesses that are not grandfathered and have more than fifty employees. This includes entities that have no objection to the requirement, entities that object for non-religious reasons such as general opposition to government dictating healthcare requirements, and entities that object to the requirement for religious reasons. See, e.g., Stormans, Inc. v. Selecky , 586 F.3d 1109, 1134 (9th Cir. 2009) (holding a rule was generally applicable because “pharmacists who do not have a religious

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objection to Plan B must comply with the rules to the same extent—no more and no less—than pharmacies and pharmacists who may have a religious objection to Plan B”). In fact, the availability of the exemption and the accommodation means that the law imposes a lesser burden on those who object for religious reasons because they do not have to pay for the coverage. Accordingly, the program is generally applicable.
Because the law requiring contraceptive coverage is neutral and generally applicable, it does not violate the Free Exercise Clause even if it incidentally burdens the exercise of religion. Thus, the appellants have not demonstrated a strong likelihood of success on the merits of this claim.

3. Establishment Clause
“Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I. However, “[the Supreme] Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fl a., 480 U.S. 136, 144– 45 (1987). The appellants argue that allowing some entities with a religious mission to obtain the exemption and others to obtain only the accommodation violates the Establishment Clause because the distinction “favors some types of religious organizations and denominations over others” and creates an excessive entanglement between government and religion. Appellant Br. at 59. Because the law’s distinction does not favor a certain denomination and does not cause excessive entanglement between government and religion, the framework does not violate the Establishment Clause.
“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente , 456 U.S. 228, 244 (1982). “[N]o State can ‘pass laws which aid one religion’ or that ‘prefer one religion over another.’” Id. at 246 (quoting Everson v. Bd. of Educ. , 330 U.S. 1, 15 (1947)). For a claim such as this based on the allegedly disparate treatment of religions, “the constitutional value at issue is ‘neutrality.’” Gillette v. United Sta tes, 401 U.S. 437, 450 (1971). The line that the exemption and accommodation framework draws between eligibility for the exemption and for the accommodation is based on organizational form and purpose, not religious denomination. Such

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a distinction does not violate the Establishment Clause. “[R]eligious employers, defined as in the cited regulation, have long enjoyed advantages (notably tax advantages) over other entities, 26 U.S.C. §§ 6033(a)(3)(A)(i), (iii), without these advantages being thought to violate the establishment clause.” Univ. of Notre Dame, 743 F.3d at 560 (citing Walz, 397 U.S. at 672–73). The appellants’ reliance on the Tenth Circuit’s decision in Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), is misplaced. There, the Tenth Circuit held that a state law permitting scholarship funding for students attending religious schools only if the school was not “pervasively” sectarian violated the Establishment Clause. Id. at 1258–60. The law did not make distinctions based on organizational form, as here; the Colorado law violated the Establishment Clause because it discriminated based on the nature of religious belief and practice at the university. Accordingly, that case provides no support for the appellants’ argument. The fact that all of the appellants are affiliated with the Catholic Church and some are eligible for the exemption while others are eligible for the accommodation demonstrates that the framework does not discriminate based on denomination. Because the exemption and accommodation arrangement distinguishes between entities based on organizational form, not denomination, it does not express an unconstitutional state preference on the basis of religion.
Further, the provisions do not excessively entangle government and religion. The regulations define a “religious employer” as “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.131(a). The referenced sections of the Internal Revenue Code provide exceptions from certain tax-return filing requirements for “churches, their integrated auxiliaries, and conventions or associations of churches” and “the exclusively religious activities of any religious order.” 26 U.S.C. § 6033(a)(3)(A)(i), (iii). The IRS considers numerous factors to determine if an entity is eligible for the exceptions in § 6033(a)(3)(A)(i), (iii). See Am. Guidance Found., Inc. v. United States , 490 F. Supp. 304, 306 (D.D.C. 1980). The appellants argue that “these factors favor some religious groups over others . . . on the basis of intrusive judgments regarding beliefs, practices, and organizational structures.” Appellant Br. at 63–64. However, the government argues that the “qualification for the religious employer exemption does not require the government to make any determination,

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whether as a result of the application of the non-exhaustive, non-binding list or otherwise.” Government Br. at 54–55. Plaintiffs have not shown how this is not correct.
Because the exemption and accommodation provisions do not prefer a denomination or excessively entangle government in religious practice, they do not violate the Establishment Clause. Thus, the appellants have not demonstrated a strong likelihood of success on the merits of this claim.

D. Administrative Procedure Act
Finally, the MCC appellants14 argue that the contraceptive-coverage requirement violates the Administrative Procedure Act (APA) because the requirement violates the Weldon Amendment and thus is “not in accordance with law,” and because the IOM guidelines recommending that contraception be included as preventive care were not subject to notice-andcomment rulemaking requirements. We conclude that the appellants have not demonstrated a strong likelihood of success on the merits of the Weldon Amendment claim, and we decline to reach the notice-and-comment claim.

1. Weldon Amendment
The MCC appellants argue that the contraceptive-coverage requirement violates the Weldon Amendment and therefore is “not in accordance with law,” as required by the APA. The APA provides that a “reviewing court shall . . . (2) hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Weldon Amendment is a rider to an appropriations bill that denies funding to federal agencies or programs “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.”15 Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div.

14Although the CDN plaintiffs included an APA claim in their complaint, that claim was not raised in the motion for a preliminary injunction, and so the district court correctly treated the claim as waived for purposes of the preliminary injunction. Catholic Diocese of Nashville, 2013 WL 6834375, at *10 n.13.
15It is not clear that any of the MCC appellants who properly raised this claim is an “institutional or individual health care entity” within the meaning of the Weldon Amendment. The Weldon Amendment defines

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F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). The district court held that the contraceptivecoverage requirement does not violate the Weldon Amendment because the FDA-approved emergency contraceptives are not defined as abortion-inducing products under federal law. The appellants argue that this analysis is in error because the court should defer to the plan provider’s definition of “abortion” and the appellants believe that the “morning-after pill (Plan B) and Ulipristal (HRP 2000 or [e]lla)” are “abortion-inducing products.” Appellant Br. at 65.

The appellants are correct that the Weldon Amendment does not define abortion. The appellants argue that the absence of a statutory definition means that the court should defer to their independent interpretation of “abortion.” That is not how statutory interpretation works. Rather, the federal courts will utilize traditional methods of statutory interpretation to determine whether “abortion” in the Weldon Amendment includes FDA-approved emergency contraceptives.

The government notes that the FDA-approved labels for

Plan B and ella describe these products as emergency contraceptives and do

not mention abortion. See FDA-approved label for Plan

B,

available

at

http://www.accessdata.fda.gov/drugsatfda_docs/label/2009/021045s015lbl.pdf; FDA-approved

label for ella http://www.accessdata.fda.gov/drugsatfda_docs/label/2012/022474s002lbl.pdf.

The appellants do not identify any statutory or regulatory definition of abortion that includes

“[h]ealth care entity” as “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(2). The appellants allege that the Michigan Catholic Conference Second Amended and Restated Group Health Benefit Plan for Employees (“MCC Benefit Plan”) is a health plan. MCC R. 1 (MCC Compl. at ¶ 16) (Page ID #7). However, it is not clear that the MCC Benefit Plan is an actual plaintiff in this case. The complaint is captioned “MICHIGAN CATHOLIC CONFERENCE in its own name and on behalf of the MICHIGAN CATHOLIC CONFERENCE SECOND AMENDED AND RESTATED GROUP HEALTH BENEFIT PLAN FOR EMPLOYEES . . . .” MCC R. 1 (MCC Compl. at 1) (Page ID #1). Although the complaint describes MCC and Catholic Charities as “plaintiff[s],” it does not describe the MCC Benefit Plan as a plaintiff. See id. at ¶¶ 16, 17 (Page ID #7). However, because we affirm the denial of the preliminary injunction on this claim, we need not decide this issue at this time.
We also question the appellants’ assumption that MCC is discriminated against for refusing to provide contraceptive coverage. MCC concedes that it is eligible for the religious-employer exemption. MCC R. 1 (Compl. at ¶ 9) (Page ID #4). Consequently, its health insurance plan need not cover contraception or emergency contraception. Thus, it is not clear how MCC is discriminated against for refusing to provide contraceptive coverage. See Rom an C atholic Arch bishop of Was hington, 2013 WL 6729515, at *46 (holding that the contraceptive-coverage requirement is consistent with the Weldon Amendment for entities that are eligible for the exemption or the accommodation).

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emergency contraceptives. Because the burden is on the appellants to demonstrate a strong likelihood of success on the merits, and the appellants have neither asserted nor argued nor presented evidence that the federal government classifies these drugs as abortifacients, they have not shown a strong likelihood of success on the merits of their claim.

2. Notice and Comment
The appellants argue that the government violated the APA because it did not subject the IOM recommendation that preventive services include contraceptive coverage to notice and comment rulemaking pursuant to 5 U.S.C. § 553(b). Appellant Br. 66–68. This claim was not properly raised in or decided by the district court, so we decline to address it for the first time on appeal.
As discussed supra, the CDN plaintiffs did not raise any APA claims in their motion for a preliminary injunction. The MCC plaintiffs’ only reference to a notice-and-comment claim is a single sentence in the introduction section of their memorandum in support of the motion for a preliminary injunction: “Finally, the Mandate violates the Administrative Procedure Act (‘APA’) because Defendants failed to conduct notice-and-comment rulemaking, and it contravenes the clear terms of the Weldon Amendment.” MCC R. 15 (Prelim. Inj. Memo. at 3) (Page ID #604). In the argument section of the memorandum the MCC plaintiffs discussed the Weldon Amendment issue, but did not return to the notice-and-comment issue. See id. at 44–45 (Page ID #645–46). The district court did not address the notice-and-comment argument in its decision. See Michigan Catholic Conference, 2013 WL 6838707, at *13.
We generally do not consider issues raised for the first time on appeal. In re Cannon , 277 F.3d 838, 848 (6th Cir. 2002). “Factors guiding the determination of whether to consider an issue for the first time on appeal include:
1) whether the issue newly raised on appeal is a question of law, or whether it requires or necessitates a determination of facts; 2) whether the proper resolution of the new issue is clear and beyond doubt; 3) whether failure to take up the issue for the first time on appeal will result in a miscarriage of justice or a denial of substantial justice; and 4) the parties’ right under our judicial system to have the issues in their suit considered by both a district judge and an appellate court.

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Id. (internal quotation marks omitted). Accordingly, we decline to exercise our discretion to address this claim.

E. Other Factors for Injunctive Relief
We conclude that the appellants have not demonstrated a strong likelihood of success on the merits of any of their properly raised claims. The other three factors that we consider in evaluating a request for a preliminary injunction are: (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction. City of Pontiac Retir ed Emps. Ass’n , 2014 WL 1758913, at *2. When the alleged injury is to a First Amendment freedom, as here, the strong likelihood of success on the merits factor merges with the irreparable injury factor. “To the extent that [appellant] can establish a likelihood of success on the merits of its First Amendment claim, it also has established the possibility of irreparable harm as a result of the deprivation of the claimed free speech rights.” Connection Distrib. Co. v. Reno , 154 F.3d 281, 288 (6th Cir. 1998). Conversely, if appellant “does not have a likelihood of success on the merits . . . his argument that he is irreparably harmed by the deprivation of his First Amendment right also fails.” McNeilly, 684 F.3d at 615. Because the appellants do not demonstrate a strong likelihood of success on the merits of their claims, they also do not demonstrate that they will suffer irreparable injury without the injunction.
The district courts did not abuse their discretion by denying preliminary injunctions.

III. CONCLUSION
For the foregoing reasons, we AFFIRM the district courts’ denial of preliminary injunctions. We lift the stay temporarily issued by this court pending resolution of this appeal.

 
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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: August 21, 2015
Ms. Brigitte Amiri ACLU 125 Broad Street, 18th Floor New York, NY 10004
Mr. Charles E. Davidow Paul, Weiss, Rifkind, Wharton & Garrison 2001 K Street, N.W. Washington, DC 20006
Mr. Adam C. Jed Ms. Alisa B. Klein Mr. Mark B. Stern U.S. Department of Justice Appellate Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530
Mr. Matthew A. Kairis Ms. Melissa Dunlap Palmisciano Jones Day 325 John H. McConnell Boulevard, Suite 600 Columbus, OH 43215
Ms. Ayesha N. Khan Americans United for Separation of Church and State 190l L. Street, N.W., Suite 400 Washington, DC 20036
Mr. Daniel Mach American Civil Liberties Union Program on Freedom of Religion & Belief 915 15th Street, N.W. Washington, DC 20005

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Mr. Bernard Eric Restuccia Office of the Attorney General of Michigan P.O. Box 30217 Lansing, MI 48909-7717
Mr. Neil Vakharia Jones Day 901 Lakeside Avenue, E. Cleveland, OH 44114
Re: Case Nos. 13-2723/6640, Mich. Catholic Conference, et al v. Burwell, et al Originating Case No. : 1:13-cv-01247
Dear Counsel,
The court today announced its decision in the above-styled cases.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Ms. Tracey Cordes Mr. Keith Throckmorton
Enclosures
Mandate to issue.

Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0202p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

MICHIGAN CATHOLIC CONFERENCE and CATHOLIC ŉ

FAMILY SERVICES D/B/A CATHOLIC CHARITIES Ň

DIOCESE OF KALAMAZOO (13-2723); THE CATHOLIC Ň

DIOCESE OF NASHVILLE, CATHOLIC CHARITIES OF Ň

TENNESSEE, INC., CAMP MARYMOUNT, INC., MARY, QUEEN OF ANGELS, INC., ST. MARY VILLA, INC.,

Ň
>
Ň

DOMINICAN SISTERS OF ST. CECILIA Ň

CONGREGATION, and AQUINAS COLLEGE (13-6640), Ň

Nos. 13-2723/6640

Plaintiffs-Appellants, Ň

Ň

v.

Ň

SYLVIA MATTHEWS BURWELL, Secretary of the Ň

United States Department of Health and Human Ň

Services, THOMAS E. PEREZ, Secretary of the United Ň

States Department of Labor, JACOB J. LEW, Ň

Secretary of the United States Department of Ň

Treasury, UNITED STATES DEPARTMENT OF HEALTH Ň

AND HUMAN SERVICES, UNITED STATES Ň

DEPARTMENT OF LABOR, and UNITED STATES DEPARTMENT OF THE TREASURY,

Ň Ň Ň

Defendants-Appellees. Ň

ŋ

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids.
No. 1:13-cv-01247—Gordon J. Quist, District Judge.

Appeal from the United States District Court for the Middle District of Tennessee at Nashville.
No: 3:13-cv-01303—Todd J. Campbell, Chief District Judge.

Decided and Filed: August 21, 2015

Before: MOORE and ROGERS, Circuit Judges; NIXON, District Judge.*

*The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by designation.
1

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_________________
COUNSEL
ON BRIEF: Matthew A. Kairis, JONES DAY, Columbus, Ohio, for Appellants. Adam C. Jed, Mark B. Stern, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
_________________

OPINION _________________

KAREN NELSON MOORE, Circuit Judge. The Patient Protection and Affordable Care Act (“ACA”) requires health insurance plans to provide coverage for contraception—a requirement commonly known as the contraceptive mandate. Religious employers, employers with fewer than fifty employees, and grandfathered plans are exempt from this mandate. Nonprofit entities and closely held corporations who object to the mandate on religious grounds may seek an accommodation. That accommodation effectively insulates these entities from the contraception-provision process: they no longer have to pay for contraceptive coverage, and all individuals under their plans are notified of the entity’s religious objections. The insurance issuers and third party administrators for these entities, however, must continue to provide coverage for contraceptives to individuals insured under these plans.
Plaintiffs in this case include both religious employers eligible for the exemption and non-profit entities eligible for the accommodation. In the first instance, Plaintiffs challenged both the exemption and the accommodation. They sought a preliminary injunction, arguing that these provisions were being enforced in violation of their rights under the Religious Freedom Restoration Act (“RFRA”), the First Amendment, and the Administrative Procedure Act (“APA”). We rejected this challenge, holding that the district courts did not abuse their discretion in denying Plaintiffs preliminary injunctive relief. Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372 (6th Cir. 2014). Plaintiffs then filed a petition for a writ of certiorari; that petition made clear that Plaintiffs were not challenging our decision with respect to the exemption. Nor did the petition make reference to any of the First Amendment or APA arguments that Plaintiffs had previously raised. Rather, the petition focused

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entirely on whether the accommodation violated Plaintiffs’ rights under RFRA. The Supreme Court granted this petition, vacated our judgment, and remanded the case back to us “for further consideration in light of Burwell v. Hobby Lobby Stores, Inc.” Mich. Catholic Conference v. Burwell, 135 S. Ct. 1914 (2015).

In Hobby Lobby, 134 S. Ct. 2751 (2014), the Supreme Court determined that closely held, for-profit companies with sincerely held religious beliefs could not be compelled to provide contraceptive coverage to their employees. In reaching this decision, the Court discussed the accommodation favorably, noting for instance that the accommodation served the government’s interests in providing access to contraception while at the same time not impinging on the religious beliefs of objecting non-profits. The Court did not suggest that the accommodation violated RFRA.

After carefully reviewing the Hobby Lobby opinion, we adhere to our original disposition. This opinion now addresses the impact of Hobby Lobby and the relevant circuit court decisions that have been published since Hobby Lobby. We join our sister circuits in holding (1) that the accommodation provision does not violate RFRA and (2) that nothing in Hobby Lobby changes this conclusion. Accordingly, we AFFIRM the district courts’ judgments denying Plaintiffs preliminary injunctive relief on all of their claims. We also RE-ISSUE and RE-AFFIRM our prior opinion in order to address all remaining issues, including Plaintiffs’ First Amendment and APA challenges to both the exemption and the accommodation.

A. Factual Background1

I. BACKGROUND

There are nine Plaintiffs in this case, listed below: • Michigan Catholic Conference (“MCC”) • Catholic Charities Diocese of Kalamazoo (“Catholic Charities of Kalamazoo”) • Catholic Diocese of Nashville (“CDN”)

1We have already set forth background of this appeal in detail, see Mich. Catholic Conference, 755 F.3d at 378–82, and take only a moment to summarize the most salient facts.

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• Catholic Charities of Tennessee, Inc. (“Catholic Charities of Tennessee”) • Camp Marymount, Inc. (“Camp Marymount”) • Mary, Queen of Angels, Inc. (“MQA”) • St. Mary Villa, Inc. (“St. Mary Villa”)
• Aquinas College • Dominican Sisters of St. Cecilia Congregation (“St. Cecilia Congregation”)
Some of these Plaintiffs are eligible for the exemption, others for the accommodation. These provisions work slightly differently from one another. See Little Sisters of the Poor Home for the Aged v. Burwell, __ F.3d ___, 2015 WL 4232096, at *5–*8 (10th Cir. July 14, 2015).
1. The Exemption Under the exemption, religious employers (as defined by federal law2) do not need to provide contraceptive coverage to individuals covered under their insurance plans. These employers did not need to provide or pay for (or have their insurance issuer provide or pay for) contraceptive coverage prior to the enactment of the ACA, and they do not need to do so now. There is no need for them to object to the contraceptive mandate because, for these entities, nothing has changed. Three Plaintiffs in this case (MCC, CDN, and St. Cecilia Congregation) are eligible for the exemption. See Mich. Catholic Conference, 755 F.3d at 385.

2The regulatory framework behind the exemption is somewhat complex. First, 45 C.F.R. § 147.131(a) provides that “the Health Resources and Services Administration may establish an exemption from such guidelines with respect to a group health plan established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer) with respect to any requirement to cover contraceptive services under such guidelines.”
That regulation, in turn, implicates 76 Fed. Reg. 46,621 (Aug. 3, 2011), “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act.” This provision proposed to define “religious employer” as follows: “a religious employer is one that: (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code.” Id. at 46,623.
After reviewing hundreds of thousands of comments to this proposed definition, the federal government adopted this definition into law in February 2012. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8727 (Feb. 15, 2012).

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2. The Accommodation
The accommodation applies to objecting non-profit entities and—in the wake of Hobby Lobby—to closely held, for-profit corporations as well. None of the remaining Plaintiffs are closely held corporations; they fall within the accommodation because they are non-profits that object to the contraceptive mandate. Of these six Plaintiffs, five offer a “fully-insured group health plan[]”: Catholic Charities of Tennessee, Camp Marymount, MQA, St. Mary Villa, and Aquinas College. Id. at 379. Only one—Catholic Charities of Kalamazoo—offers a self-insured plan. Id. at 386 n.10. Fully-insured group health plans operate somewhat differently from selfinsured health plans—with different implications for the contraceptive mandate. See, e.g., Little Sisters of the Poor, 2015 WL 4232096, at *8–*10; E. Tex. Baptist Univ. v. Burwell, __ F.3d ____, 2015 WL 3852811, at *2 (5th Cir. June 22, 2015).
a. Fully-Insured Plans vs. Self-Insured Plans
Under a fully-insured group plan (also known as a fully-insured plan or an insured plan), “insurance [for the non-profit entity] is purchased from a regulated insurance company.” Mich. Catholic Conference, 755 F.3d at 379 n.4 (quoting 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1 (3d ed. 2013)). Typically, “the employer pays a per-employee premium to an insurance company, and the insurance company assumes the risk of providing health coverage for insured events.” Health Plan Differences: Fully-Insured vs. Self-Insured, EMP. BENEFIT RESEARCH INST., Fast Facts from EBRI (Feb. 11, 2009), http://www.ebri.org/pdf/FFE114.11Feb09.Final.pdf (“Fast Facts from EBRI”).
Under a self-insured health plan, “benefits are paid from contributions supplied by the employer without the assistance of outside insurance.” Mich. Catholic Conference, 755 F.3d at 378 n.2 (quoting 1A Steven Plitt, et al., Couch on Insurance § 10.1 n.1). Thus, employers “bear[] the financial risk of paying claims.” Id. (quoting Government Br. at 7 n.1); see also Fast Facts from EBRI (“In a self-insured plan, instead of purchasing health insurance from an insurance company and paying the insurer a per-employee premium, the employer acts as its own insurer.”). “Self-insured plans often contract with an insurance company or other third party to administer the plan, but the employer bears the risk associated with offering health benefits.” Fast Facts from EBRI.

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b. Complying with the Contraceptive Mandate
For entities that offer a fully-insured plan, the contraceptive mandate works by requiring the insurance company to provide contraceptive coverage without cost-sharing to insured individuals. See 42 U.S.C. §§ 300gg-13. The process is straightforward for non-objecting entities: the insurance company provides contraceptive coverage to individuals under the plan, and the non-objecting entity pays for that coverage through the premium that it is charged.
If an eligible non-profit entity objects to such coverage, it must make its objections known, either through a self-certification procedure or by notifying the Secretary of Health and Human Services. See 45 C.F.R. § 147.131(c)(1). We describe these procedures in greater detail below. After the eligible non-profit entity objects, “the [insurance] issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 C.F.R. § 147.131(c)(2)(ii). Instead, “[t]he [insurance] issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” Id. In addition, the insurance company must send notice to plan participants, separately from regular plan materials, explaining that the employer does not administer or fund contraceptives but that the insurance company provides separate payments for these services. 45 C.F.R. § 147.131(d).
Under a fully-insured plan, the obligations of the insurance company remain the same, regardless of whether the non-profit entity that it works with objects to contraceptive coverage. If a non-profit entity does not object, the insurance company must, as a matter of federal law, provide contraceptive coverage to insured individuals without cost-sharing. If a non-profit entity does object, the insurance company must, as a matter of federal law, provide contraceptive coverage to insured individuals without cost-sharing. The sole point of difference between an entity that decides to exercise the accommodation and an entity that does not is who must pay for the coverage: the insurance company (if the entity objects) or the entity (if the entity does not object).

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The contraceptive mandate works differently vis-à-vis self-insured plans. Under these plans, employers bear the risk associated with offering health benefits to their employees. “In [its] simplest form, the employer uses the money that it would have paid the insurance company and instead directly pays health care claims to providers.” Fast Facts from EBRI. Functionally, however, most companies work with a third-party administrator (“TPA”), which “perform[s] functions such as developing networks of providers, negotiating payment rates, and processing claims.” Mich. Catholic Conference, 755 F.3d at 378 n.2 (quoting Government Br. at 7 n.1). Here, Catholic Charities of Kalamazoo works with TPAs Blue Cross Blue Shield of Michigan and Express Scripts.

For non-objecting self-insured entities, compliance with the mandate is fairly straightforward. An insured individual seeks coverage, the TPA processes the claim, and the entity pays for that claim. Objecting self-insured entities, on the other hand, must make their concerns known, through the same procedures provided for fully-insured plans. After the objecting entity does so, responsibility shifts to the TPA: the TPA must now provide contraceptive coverage to insured individuals. The federal government will reimburse TPAs for their expenses for providing such coverage. See 45 C.F.R. § 156.50(d). As with fully-insured plans, the TPAs must give notice to plan participants explaining that the employer does not administer or fund contraceptives but that the services are nonetheless provided for and covered by the TPA. 29 C.F.R. § 2590.715-2713A(d). The table below makes clear where each Plaintiff in this case stands.

Fully-Insured

Eligible for Accommodation Catholic Charities of Tennessee

Eligible for Exemption MCC

Camp Marymount

CDN

MQA

St. Cecilia Congregation

St. Mary Villa

Aquinas College

Self-Insured

Catholic Charities of Kalamazoo

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c. Exercising the Accommodation
Objecting entities may exercise the accommodation in one of two ways. The first procedure requires the entity to fill out a two-page form, EBSA Form 700. This form requires organizations to list three pieces of information: the “[n]ame of the objecting organization,” the “[n]ame and title of the individual who is authorized to make, and makes, this certification on behalf of the organization,” and the “[m]ailing and email addresses and phone number for the individual listed above.” EBSA Form 700, U.S. DEP’T OF LABOR, available at http://www.dol.gov/ebsa/healthreform/regulations/coverageofpreventiveservices.html. EBSA Form 700 also requires that the organization self-certify that it is eligible for and seeks to exercise the accommodation. See Mich. Catholic Conference, 755 F.3d at 381 (describing criteria for eligibility).3 “The organization or its plan using this form must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.” EBSA Form 700. This completes the selfcertification process.
Objecting entities may also opt for a second approach: providing notice directly to the Secretary of Health and Human Services. This alternative emerged in the aftermath of the Supreme Court’s order on application for an injunction in Wheaton College v. Burwell, 134 S. Ct. 2806, 2807 (2014), where the Court held in an interim order that objecting entities “need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators” in order to obtain the accommodation. As the Court noted, the contraceptive mandate would not be enforced against an objecting entity so long as that entity “informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” Id. Federal regulations have since specified that, if an entity opts to take this approach in lieu of self-certification, the notice must include:

3Since we published our initial opinion, the only change to these eligibility requirements has been to expand them to include “closely held for-profit entit[ies],” in light of Hobby Lobby. See 29 C.F.R. § 2590.7152713A(a)(2)(ii); 29 C.F.R. § 2590.715-2713A(a)(4).

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a. “the name of the eligible organization and the basis on which it qualifies for an accommodation,”
b. “its objection based on sincerely held religious beliefs to coverage of some or all contraceptive services,”
c. “the [insurance] plan name and type,” and d. “the name and contact information for any of the plan’s third party
administrators and health insurance issuers.”
29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B) (self-insured plans); 29 C.F.R. § 2590.7152713A(c)(1)(ii) (fully-insured plans). As evidenced below, these approaches are remarkably similar to one another.

Self-Certification

Notice

Must be . . .

An eligible organization with a sincerely An eligible organization with a sincerely

held religious objection to providing held religious objection to providing

contraceptive coverage

contraceptive coverage

Must provide . . .

Name of organization

Name of organization

Name and title of individual authorized to Name and type of insurance plan make certification

Contact information of individual Contact information of TPA or health

authorized to make certification

insurance issuer

Must be delivered to TPA or health insurance issuer . . .

Secretary of HHS

That is not a coincidence. Consider the actors at play: the non-profit, the insurance issuer (or, for self-insured plans, the TPA), and the government. When a non-profit chooses to exercise the accommodation via self-certification, it essentially says to its insurer, “I don’t support providing contraception coverage and I’m not going to pay for it. You and the government need to figure out what to do from here.” On the other hand, when a non-profit chooses to exercise the accommodation via notice, it essentially says to the government, “I don’t support providing contraception coverage and I’m not going to pay for it. You and my insurer need to figure out what to do from here.” These procedures are functionally equivalent.

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B. Procedural History
This case is a consolidated appeal of two cases, one arising out of the U.S. District Court for the Western District of Michigan and the other from the U.S. District Court for the Middle District of Tennessee. Both district courts denied Plaintiffs’ request for preliminary injunctive relief. Mich. Catholic Conference, 755 F.3d at 381–82. We affirmed. Id. at 398. Plaintiffs then filed a petition for a writ of certiorari. Pet. for Writ of Cert., Mich. Catholic Conference v. Burwell (No. 14-701), 2014 WL 7166539. The Supreme Court granted this petition, vacated our judgment, and remanded the case back to us for further consideration in light of Hobby Lobby. We requested and received supplemental briefing from the parties.
II. ANALYSIS
A. Standard of Review
“We review the district court’s denial of preliminary . . . injunctive relief for abuse of discretion.” Jolivette v. Husted, 694 F.3d 760, 765 (6th Cir. 2012). “In considering whether preliminary injunctive relief should be granted, a court considers four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Id. (internal quotation marks omitted). “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Id. (internal quotation marks omitted).
B. Likelihood of Success on the Merits
We begin our analysis by reviewing Hobby Lobby, as the Supreme Court instructed us to do. We then examine what effect (if any) Hobby Lobby had on our initial opinion, and explain why we adhere to our original disposition. Finally, we survey case law from our sister circuits to show that our conclusions are well supported by the reasoning of our judicial colleagues.

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1. Hobby Lobby
The central issue in Hobby Lobby was whether the federal government may, under RFRA, “demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.” Hobby Lobby, 134 S. Ct. at 2759. The Court answered this question in the negative. This conclusion was the product of a multi-step analysis. First, the Court determined that HHS’s contraceptive mandate “impose[d] a substantial burden” on the corporations’ exercise of their religious beliefs. 134 S. Ct. at 2775–79. Next, it assumed without deciding that the mandate served a compelling government interest. Id. at 2780. Notwithstanding this assumption, however, it held that the regulations were nonetheless not “the least restrictive means of furthering th[is] compelling governmental interest.” Id.
Hobby Lobby tells us, in sum, that the government cannot compel closely held companies with sincere religious objections to provide contraception coverage to their employees. But that issue is fundamentally different from the issue at the heart of this case—whether an entity’s decision not to provide such coverage by exercising an accommodation is, by itself, a violation of that entity’s religious beliefs.4 We upheld this accommodation against a RFRA challenge in our initial opinion. Nothing in Hobby Lobby changes this analysis.
In fact, the Court made abundantly clear in its opinion that it was not going to rule on the legality of the accommodation. Id. at 2782 (“We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.”). There are, however, at least some indications from the Court that this arrangement would pass muster. First, the Court discussed the accommodation favorably when compared alongside the more onerous practices that were being contested by petitioners in Hobby Lobby. See id. (“At a minimum . . . [the accommodation] does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.”). Second, the Court, in responding to the charge that it was adopting an
4Plaintiffs raised a number of other claims in their initial briefs before us, alleging, for instance, that the exemption and accommodation also ran afoul of the APA and the First Amendment. Plaintiffs, however, did not renew these challenges in their petition for a writ of certiorari, focusing entirely on the legality of the accommodation vis-à-vis RFRA. This opinion addresses this central issue. We re-issue and re-affirm our prior opinion on all other issues.

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all-too-expansive reading of RFRA, described its holding in Hobby Lobby as being “very specific.” Id. at 2760.
To be fair, neither of these passages provides us with a definitive signal one way or another. But that should not come as a surprise. As we and other courts have made clear, Hobby Lobby attempted to address a question different from the question that we must now take up. See, e.g., Little Sisters of the Poor, 2015 WL 4232096, at *4 (“In other words, unlike in Hobby Lobby, the Plaintiffs do not challenge the general obligation under the ACA to provide contraceptive coverage. They instead challenge the process they must follow to get out of complying with that obligation.”). Under Hobby Lobby, closely held companies with sincere religious objections cannot be compelled to comply with the contraceptive mandate; indeed, like certain non-profit organizations, they are now eligible for an accommodation. But the availability of an accommodation that allows an organization to refrain from paying for contraception does not negate the underlying federal requirement that some entity must provide contraceptive coverage.
2. Plaintiffs’ RFRA Challenge to the Accommodation
a. Question of Law
We made this point clear in our original opinion, stating at the outset that we were presented with a question of “how the regulatory measure actually works”—i.e., what the law actually requires of the various actors (the non-profit entity, the insurer or the TPA, and the federal government). Mich. Catholic Conference, 755 F.3d at 385. That, we held, was a question of law, separate and apart from “the moral or theological consequences of appellants requesting the exemption or accommodation.” Id. Whether a law imposes a substantial burden on a party is something that a court must decide, not something that a party may simply allege.
Every other circuit court to have addressed this issue has come to the same conclusion. In Geneva College v. Secretary of the U.S. Department of Health and Human Services, 778 F.3d 422, 435 (3d Cir. 2015), for example, the Third Circuit rejected Plaintiffs’ argument “that the accommodation requires them to be ‘complicit’ in sin.” The court noted that, regardless of “the reasonableness of the appellees’ religious beliefs,” the court’s legal analysis would instead focus

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on “how the regulatory measure actually works”—echoing our language. Id. at 436. See also Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 247 (D.C. Cir. 2014) (“Accepting the sincerity of Plaintiffs’ beliefs, however, does not relieve this Court of its responsibility to evaluate the substantiality of any burden on Plaintiffs’ religious exercise, and to distinguish Plaintiffs’ duties from obligations imposed, not on them, but on insurers and TPAs. Whether a law substantially burdens religious exercise under RFRA is a question of law for courts to decide, not a question of fact.”); E. Tex. Baptist Univ., 2015 WL 3852811, at *5 (“[W]e are bound to follow [the Supreme Court’s decisions in] Roy and Northwest Indian Cemetery by deciding, as a question of law, whether the challenged law pressures the objector to modify his religious exercise.”); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 614 (7th Cir. 2015) (“The delivery of a copy of the form to [the insurance issuer] reminds it of an obligation that the law, not the university, imposes on it—the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it.”).
On this point, we are particularly mindful of the Tenth Circuit’s analysis in Little Sisters of the Poor. In that case, the court noted that “whether a law substantially burdens religious exercise in one or more of these ways is a matter for courts—not plaintiffs—to decide.” 2015 WL 4232096, at *18. The court acknowledged that “substantiality does not permit us to scrutinize the theological merit of a plaintiff’s religious beliefs—instead, we analyze the intensity of the coercion applied by the government to act contrary to those beliefs.” Id. at *19 (internal quotation marks omitted). “Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.” Id. (quoting Hobby Lobby v. Sebelius, 723 F.3d 1114, 1137 (10th Cir. 2013)) (emphasis added). “In determining whether a law or policy applies substantial pressure on a claimant to violate his or her beliefs, we consider how the law or policy being challenged actually operates and affects religious exercise.” Id. The Tenth Circuit cited legislative history in support of this point, noting that “Congress added the word ‘substantially’ before passage to clarify that only some burdens would violate the act.” Id. at *18. The court also pointed out that, “[i]f plaintiffs could assert and establish that a burden is ‘substantial’ without any possibility of judicial scrutiny, the word ‘substantial’ would become wholly devoid of independent meaning.” Id.

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We are in accord with this reasoning. If the substantiality of a burden were to turn on the “moral or theological consequences” of Plaintiffs’ religious beliefs, then the substantial-burden analysis would not be much of an analysis at all. Indeed, every party alleging a RFRA violation could state that their religious beliefs were being burdened and that the burden was substantial. This was not Congress’s intent when it drafted RFRA, nor have we found any case law to support this interpretation.
b. The Exemption
After determining in our initial opinion that we were confronted with a question of law, we then noted that all Plaintiffs were either “eligible for the religious-employer exemption” or “for the accommodation.” Mich. Catholic Conference, 755 F.3d at 385.
We held that those entities eligible for the religious-employer exemption—MCC, CDN, and St. Cecilia Congregation—had “not demonstrated a strong likelihood of success on the merits” because they had failed to “identify any particular action that they must take to obtain the exemption.” Id. Their mere status as religious employers meant that they did not need to comply with “the requirement to provide contraceptive coverage.” Id. (internal quotation marks omitted). Plaintiffs did not challenge this determination in their petition for a writ of certiorari. See Pet. for Writ of Cert., 2014 WL 7166539, at *3 (“This case is also not about a challenge to an exemption.”). We see no need to revisit our analysis. For entities entitled to the exemption, the ACA does not change a thing. Religious employers did not need to provide, pay for, or facilitate access to contraceptives prior to the ACA, and they do not need to do so now.
c. The Accommodation
We also, in our initial opinion, rejected Plaintiffs’ argument “that the . . . accommodation arrangement forces them to provide, pay for, and/or facilitate access to contraceptive coverage.” Mich. Catholic Conference, 755 F.3d at 384. We adhere to this disposition today, and elaborate upon our reasoning by examining fully-insured and self-insured plans separately.

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(1) Fully-Insured Plans
Five of the remaining six Plaintiffs—Catholic Charities of Tennessee, Camp Marymount, MQA, St. Mary Villa, and Aquinas College—offer fully-insured plans. Under these plans, the insurance company bears the risk of providing coverage and paying for individual claims. In exchange, the non-profit entity pays a premium for each employee. “[P]remiums vary . . . based on employer size, employee population characteristics, and health care use.” Fast Facts from EBRI. Smaller employers are more likely to be fully-insured because such plans insulate them from having to bear the cost of coverage should their employees have to file a number of significant claims. Insurance companies can offer these types of plans so long as they work with multiple entities, thereby evening out the risk associated with any particular entity. Here, for instance, Plaintiffs MQA and St. Mary Villa “collaborate with one another and pool their resources in order to provide a health benefits plan to their employees.” R. 1 (Compl. at ¶ 79) (Page ID #20) (M.D. Tenn.). This health plan “is a fully-insured plan, offered and administered by Blue Cross Blue Shield of Tennessee.” Id. at ¶ 80 (Page ID #20).
Under federal law, insurance companies that provide fully-insured plans must provide contraceptive coverage—this is an obligation independent and irrespective of the wishes of the non-profit entity that it works with. Mich. Catholic Conference, 755 F.3d at 387–88. This legal requirement applies whether or not the non-profit entity objects. The only difference between objecting and non-objecting entities is the cost of the premium that the entity must pay. If the entity does not object, the premium will include the cost of contraceptive coverage. If the entity does object, the premium will not include the cost of coverage. Importantly, for the insured, the effect is the same: under either scenario, the insured will receive coverage.
The process for making one’s objections known is straightforward, and not substantially burdensome. Consider, for instance, what a plaintiff would need to do in order to self-certify. The plaintiff would complete EBSA Form 700 and deliver this form to its insurer. That form requires the entity to state its name, the name of the individual who has made the authorization on behalf of the entity, and that individual’s contact information. This is not a substantial

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burden. It is, in fact, difficult to think of a more de minimis request: tell us who you are, and tell us how we can contact you.5
Our reasoning tracks the Tenth Circuit in this respect. In Little Sisters of the Poor, that court noted that “[b]y delivering the Form or notifying HHS, an organization with an insured plan does not enable coverage—to the contrary, it simply notifies its health insurance issuer that the organization will not be providing coverage.” 2015 WL 4232096, at *22. “The health insurance issuer then has an independent and exclusive obligation to provide that coverage without cost sharing.” Id. “Because the ACA obligates health insurance issuers to provide contraceptive coverage, they must meet this obligation independently and irrespective of the notification. The self-certification does not impose any responsibility; it merely makes it the issuer’s sole responsibility rather than one shared with the group health plan itself.” Id.
Plaintiffs’ arguments to the contrary are without merit. First, Plaintiffs contend that “[m]ost obviously, if Plaintiffs stopped offering health plans, their insurers . . . would have no obligation whatsoever to provide Plaintiffs’ beneficiaries with the objectionable coverage.” Pls.’ Supp. Br. at 11. This argument is not persuasive. It is true that if Plaintiffs decided not to offer health coverage at all, then they would not have to offer coverage for contraceptives. But they would also be breaking the law.6 RFRA does not give parties license to break the law. See Little Sisters of the Poor, 2015 WL 4232096, at *26.
Plaintiffs’ remaining contentions are equally unavailing. They argue that, “in the context of an insured plan, a religious organization’s insurance issuer has no enforceable obligation to provide the mandated coverage unless the organization submits the self-certification or notification form. Without the form, the regulations purport to require the religious organization itself to pay for the objectionable coverage, an arrangement precluded by Hobby Lobby.” Pls.’ Supp. Br. at 12–13 (citation omitted). This is a clever (but incorrect) sleight of hand.

5Other circuits have compared the accommodation provision to the conscientious-objector process. See Priests for Life, 772 F.3d at 246. This analogy is apt.
6“The ACA requires that employers with 50 or more full-time employees provide health insurance for their full-time employees or pay a penalty on their federal tax return.” Mich. Catholic Conference v. Sebelius, 989 F. Supp. 2d 577, 582 (W.D. Mich. 2013).

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As other courts have made clear, “[w]ith insured plans, the health insurance issuer bears legal responsibility to provide contraceptive coverage whether or not the religious non-profit has opted out.” Little Sisters of the Poor, 2015 WL 4232096, at *24 (emphasis added). In other words, Plaintiffs are fundamentally wrong in their understanding of how the law actually works. Contrary to Plaintiffs’ characterization, the religious organization’s insurance issuer does have an enforceable obligation to provide coverage regardless of whether the organization submits a selfcertification or notification form. To be sure, if an organization decides not to self-certify or decides not to notify HHS, then the organization will have to pay for contraceptive coverage. But that is the entire purpose of having an opt-out process: so that objecting entities can identify themselves and so that other actors can proceed accordingly.
(2) Self-Insured Plans
We turn finally to the one Plaintiff in this case offering a self-insured plan: Catholic Charities of Kalamazoo. In our original opinion, we explained why its assertion that it was being compelled to provide, pay for, and/or facilitate contraceptive coverage was unavailing.
First, we held that Catholic Charities of Kalamazoo was “not required to ‘provide’ contraceptive coverage.” Mich. Catholic Conference, 755 F.3d at 386. After an organization makes its objections clear, “the eligible organization’s health plan does not host the coverage.” Id. “Instead, the [organization’s] third-party administrator ‘shall be responsible for . . . compliance with’ the preventive care and screenings provided for in the HRSA guidelines.” Id. (quoting 29 C.F.R. §§ 2510.3-16(b), (b)(1)). “Thus, although the . . . third-party administrator will provide contraceptive coverage, [Catholic Charities of Kalamazoo] will not.” Id. Nor, we noted, was Catholic Charities of Kalamazoo “required to ‘pay for’ contraceptive coverage.” Id. The TPA must instead pick up the tab. Regulations allow these companies to seek up to 110% reimbursement from the federal government. See Univ. of Notre Dame, 786 F.3d at 609. The accommodation, in other words, essentially shifts the cost of contraceptive coverage from the objecting entity to the federal government. Finally, we stated that Catholic Charities of Kalamazoo was “not required to ‘facilitate access to’ contraceptive coverage.” Mich. Catholic Conference, 755 F.3d at 387. “The obligation to cover contraception will not,” we noted, “be triggered by the act of self-certification—it already was triggered by the enactment of the ACA.”

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Id.; see also id. at 389 (“Self-certification allows the eligible organization to tell the insurance issuer and third-party administrator ‘we’re excused from the new federal obligation relating to contraception,’ and in turn, the government tells those insurance companies, ‘but you’re not.’” (quoting Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 557 (7th Cir. 2014))).
This analysis remains valid. As other courts have acknowledged, the contraceptive mandate works differently with respect to a self-insured plan. See E. Tex. Baptist Univ., 2015 WL 3852811, at *2; Little Sisters of the Poor, 2015 WL 4232096, at *24 (“With selfinsured plans, the TPA shoulders legal responsibility for coverage only after the religious nonprofit has opted out.”). Unlike the insurance issuer in a fully-insured plan, a TPA does not necessarily have an independent obligation to provide contraceptive coverage because, as a TPA, it does not necessarily have an independent obligation to provide any coverage. For nonobjecting entities, all a TPA is supposed to do is assist the entity by, for example, developing provider networks or negotiating discounted rates for services. The TPA is supposed to serve strictly as an administrator; the risk and cost of providing coverage are borne by the entity. With respect to the contraceptive mandate, the TPA steps in only when the entity—here, Catholic Charities of Kalamazoo—makes its objections known.7 According to Plaintiffs, this conditional language means that an action that a Plaintiff takes “triggers the TPA’s obligation to ‘provide or arrange payments for contraceptive services.’” Pls.’ Supp. Br. at 12 (quoting 26 C.F.R. § 54.9815-2713AT(b)(2)).
This assertion is incorrect. As the Tenth Circuit explained in Little Sisters of the Poor, “[b]y opting out, the self-insured plaintiffs shift their duty to provide coverage to a TPA, but they do not change their plan participants and beneficiaries’ entitlement to contraceptive coverage under federal law.” 2015 WL 4232096, at *25. To be sure, “opting out is necessarily a but-for cause of someone else—the TPA—providing contraceptive coverage.” Id. But “that is the point of an accommodation—shifting a responsibility from an objector to a non-objector. That is how a legislative policy choice—here, to afford women contraceptive coverage—can be reconciled with religious objections to that policy.” Id. To put it another way, RFRA allows certain parties

7We noted in our original opinion that “[n]othing in the record indicates that Catholic Charities of Kalamazoo’s third-party administrator has refused to provide contraceptive coverage upon receipt of a selfcertification form.” 755 F.3d at 386 n.11. Plaintiffs have not challenged this determination.

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to request that the government create an exception to the rule for that particular party. It does not, however, allow accommodated parties to challenge the rule itself. See Mich. Catholic Conference, 755 F.3d at 388 (“‘Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family.’” (quoting Bowen v. Roy, 476 U.S. 693, 699 (1986))). Indeed, Plaintiffs have all but conceded this point. See Pet. for Writ of Cert., 2014 WL 7166539, at *3 (“Although Petitioners . . . oppose the Government’s goal of providing such coverage, they do not challenge the legality of that goal.”).
Despite our attempts to describe how the accommodation actually works, it is perhaps inevitable that some Plaintiffs will still believe that they are morally complicit in sin, by being a part of a system that provides access to contraceptives. See, e.g., id. (“Petitioners ask only that they not be forced to violate their religious beliefs by participating in the regulatory scheme by which the Government seeks to accomplish its ends.”). However, it is not our role to determine a party’s moral complicity; we do not question here Plaintiffs’ “desire not to participate in the provision of contraception.” Mich. Catholic Conference, 755 F.3d at 384. Our role is a more limited one: to determine whether, as a legal matter, the regulation represents a substantial burden to Plaintiffs’ rights under RFRA. That requires us to determine how the law works and what it asks of various actors. On this point, as we held before, “[t]he government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’ exercise of religion.” Id. at 388.
3. Supporting Case Law
Our sister circuits have also arrived at this conclusion. Similar legal challenges have been brought in a number of other federal courts. As of this writing, six other circuits have addressed whether the accommodation passes muster under RFRA. All six have upheld the accommodation, and all six have held that Hobby Lobby does not suggest anything to the contrary.
In Geneva College, the Third Circuit was confronted with a set of three plaintiffs—two that offered self-insured health plans and one that offered a fully-insured health plan. In the course of upholding the accommodation against all three plaintiffs, the court discussed and

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dismissed the plaintiffs’ reliance on Hobby Lobby. 778 F.3d at 436–37; see also id. at 441 (“[C]ase law clearly draws a distinction between what the law may impose on a person over religious objections, and what it permits or requires a third party to do. Although that person may have a religious objection to what the government, or another third party, does with something that the law requires to be provided (whether it be a Social Security number, DNA, or a form that states that the person religiously objects to providing contraceptive coverage), RFRA does not necessarily permit that person to impose a restraint on another’s action based on the claim that the action is religiously abhorrent.”).
The D.C. Circuit likewise rejected plaintiffs’ RFRA challenge to the accommodation in Priests for Life. The court subsequently denied the plaintiffs’ petition for rehearing en banc. The court’s decision to deny rehearing was accompanied by a six-page concurral from Judge Pillard, which she wrote “only to underscore why our court’s [prior] approach accords with the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc.” Priests for Life, No. 13-5368, slip op. at 1 (D.C. Cir. May 20, 2015) (Pillard, J., concurral). Judge Pillard noted that the provisions at issue in Priests for Life were legally “distinct” from those that were challenged in Hobby Lobby. Id. In Hobby Lobby, the petitioners were “accorded . . . a victory in a contest over what religious meaning to ascribe to [their] payment for contraceptive coverage.” Id. at *5. “That holding,” however, “does not require us to credit Priests for Life’s legally inaccurate assertions about the operation of the regulation they challenge.” Id. “[T]he whole point of the challenged regulation is to scrupulously shield objecting religious nonprofits from any role in making contraception available to women”—in other words, to prevent organizations from having to provide, pay for, or facilitate access to contraceptives. Id. at *6; see also Catholic Health Care Sys. v. Burwell, ____ F.3d ____, ____, 2015 WL 4665049, at *10 (2d Cir. Aug. 7, 2015) (relying on Priests for Life, 722 F.3d at 253, and stating that “[v]iewed objectively, completing a form stating that one has a religious objection is not a substantial burden.”).
Next, the Fifth Circuit rejected an accommodation challenge in East Texas Baptist University. The court acknowledged that “the plaintiffs have identified several acts that offend their religious beliefs.” 2015 WL 3852811, at *5. But “the acts they [the plaintiffs] are required to perform do not include providing or facilitating access to contraceptives.” Id. “Instead, the

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Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al.

Page 21

acts that violate their faith are those of third parties.” Id. RFRA, however, “confers no right to challenge the independent conduct of third parties.” Id. The court went on to address and reject the plaintiffs’ remaining arguments in short order, noting that federal law, not the accommodation, triggers contraceptive coverage, id.; that the regulations do not require plaintiffs to pay for contraceptive coverage (in fact, they do the exact opposite), id. at *6; and that the accommodation does “not make it easier for [insurers] to pay for contraceptives, and do[es] not imply endorsement of contraceptives,” id. at *7.
Finally, decisions from the Seventh Circuit and the Tenth Circuit are particularly informative, given the procedural similarity between our case and the Seventh Circuit’s Notre Dame case and the thoroughness of the Tenth Circuit’s decision.
As in our case, the Seventh Circuit initially rejected appellants’ challenge to the accommodation, in a decision published before Hobby Lobby. See Univ. of Notre Dame, 743 F.3d at 559. Notre Dame subsequently filed a petition for a writ of certiorari. The Supreme Court granted Notre Dame’s petition, vacated the Seventh Circuit’s judgment, and remanded the case “for further consideration in light of Burwell v. Hobby Lobby Stores, Inc.” 135 S. Ct. 1528 (2015). On remand, the Seventh Circuit once again denied Notre Dame’s request for injunctive relief. 786 F.3d at 619. The court rejected Notre Dame’s allegation that it served as a “conduit between the suppliers of [contraceptive] coverage and the university’s students and employees.” Id. at 612. As the Seventh Circuit explained, “the only ‘conduit’ is between the [insurance] companies and Notre Dame students and staff; the university has stepped aside.” Id.; see also id. at 614 (“[I]n invoking the [accommodation] the university . . . throws the entire administrative and financial burden of providing contraception on the health insurer and third-party administrator, which are secular organizations that unlike the university have no aversion to providing contraceptive coverage. The result is to lift a burden from the university’s shoulders.”). The court also considered various alternative measures proposed by Notre Dame. It rejected all of them. It noted that one alternative was “not contraception at all,” that another alternative “elide[d] all consideration of the costs and complications of the administrative machinery for providing tax incentives to consumers,” and that the remaining alternatives

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Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al.

Page 22

“involve[d] cumbersome administrative machinery and . . . impose[d] a burden on Notre Dame’s female students and employees who want to obtain contraceptives.” Id. at 617.
The Seventh Circuit’s recent decision in Wheaton College v. Burwell, __ F.3d ____, 2015 WL 3988356 (7th Cir. July 1, 2015), is likewise informative. This decision came in the aftermath of the Supreme Court’s order, discussed above, where the Court held that Wheaton College need not complete EBSA Form 700, but could instead inform the Secretary of HHS of its objections to the contraceptive mandate. Despite this order, “[t]he college argue[d] that it remain[ed] involuntarily complicit in the provision of emergency contraception because its notification to the Department that it objects to the provision of contraception on religious grounds serves as the ‘trigger’ of the Department’s ordering the insurers to cover emergency contraception.” Id. at *4. The Seventh Circuit rejected this characterization, carefully explaining why the college’s position was incorrect. “To exercise this right of refusal the college has only to notify its health insurers, or if it prefers the Department of Health and Human Services, of its unwillingness to provide coverage. The insurers are then obligated by the Affordable Care Act to provide the coverage directly . . . . The college and its health plans are thus bypassed.” Id. at *3. “So when Wheaton College tells us that it is being ‘forced’ to allow ‘use’ of its health plans to cover emergency contraceptives, it is wrong. It’s being ‘forced’ only to notify its insurers (including third-party administrators), whether directly or by notifying the government (which will forward the notification to the insurers), that it will not use its health plans to cover emergency contraception.” Id.
Finally, and most recently, the Tenth Circuit denied an accommodation challenge in Little Sisters of the Poor. We have referred to its reasoning throughout our opinion, and now take note of only a few of the court’s pertinent observations. First, the court highlighted the unusual nature of the plaintiffs’ claims. As it noted, “[m]ost religious liberty claimants allege that a generally applicable law or policy without a religious exception burdens religious exercise, and they ask courts to strike down the law or policy or excuse them from compliance.” 2015 WL 4232096, at *14 (emphasis added). Yet, in this case, “the Departments have developed a religious accommodation rather than leaving it for the courts to fashion judicial relief.” Id. Thus, “[p]laintiffs not only challenge a law that requires them to provide contraceptive coverage

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Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al.

Page 23

against their religious beliefs, they challenge the exception that the law affords to them.” Id. None of the legal precedents cited by the plaintiffs “involve a situation where the government offer[ed] religious objectors an accommodation.” Id. The court then took note of its prior decision in United States v. Friday, 525 F.3d 938 (10th Cir. 2008), where it had stated that, “[l]aw accommodates religion; it cannot wholly exempt religion from the reach of the law.” Id. at *15 (quoting Friday, 525 F.3d at 960). This discussion underscores the atypical nature of Plaintiffs’ claim in this case. No court has invalidated an accommodation that is as simple to comply with as the one at issue in this case. We see no reason to do so now.
The Tenth Circuit’s discussion of the opt-out process also strongly supports our analysis. The court stated that the “[p]laintiffs are not substantially burdened solely by the de minimis administrative tasks this involves.” Id. at *30. “All opt-out schemes require some affirmative act to free objectors from the obligations they would otherwise face.” Id. “Having to file paperwork or otherwise register a religious objection, even if one disagrees with the ultimate aim of the law at issue, does not alone substantially burden religious exercise.” Id. The point of the accommodation is to insulate objecting entities from providing, paying for, or facilitating access to contraception. The process for obtaining the accommodation is not burdensome, as it requires no more effort than would be required for any routine administrative task.
These cases highlight the multitude of reasons why Plaintiffs’ arguments in this case fail: because there is an underlying federal obligation to provide contraceptive coverage, because the opt-out is hardly a burden at all (much less a substantial burden), because the whole point of a federal religious accommodation is to accommodate the beliefs of the religious organization with the valid legislative policy goals set forth by Congress. The consistent reasoning of our sister circuits supports this conclusion.
C. Remaining Factors for Injunctive Relief
The remaining factors that we must consider in evaluating a request for preliminary injunctive relief are: “(2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” Jolivette, 694 F.3d at 765 (internal quotation marks omitted). “[A] finding that there is simply no

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Nos. 13-2723/6640 Mich. Catholic Conf., et al. v. Burwell, et al.

Page 24

likelihood of success on the merits is usually fatal.” Id. (internal quotation marks omitted). There is nothing in the three remaining factors that outweighs the clear unlikelihood of success in this case. The district courts did not abuse their discretion by denying Plaintiffs preliminary injunctive relief.
III. CONCLUSION
The accommodation at issue here does not violate RFRA. We RE-ISSUE and REAFFIRM our prior opinion, Michigan Catholic Conference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014), with respect to all other issues raised by Plaintiffs. Accordingly, we AFFIRM the district courts’ judgments denying preliminary injunctive relief to Plaintiffs on all of their claims.

Case 1:13-cCva-0s1e2: 4173-G27J2Q3 ECDFocNuom. e6n0t:fi8le2d-308/2F1il/e1d5: 0P8a/2g1e/I2D0.15496 PPagaeg:e127 of 27 (27 of 27)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Nos. 13-2723/6640

MICHIGAN CATHOLIC CONFERENCE and CATHOLIC FAMILY SERVICES d/b/a Catholic Chartities Diocese of Kalamazoo (13-2723); THE CATHOLIC DIOCESE OF NASHVILLE, CATHOLIC CHARITIES OF TENNESSEE, INC., CAMP MARYMOUNT, INC., MARY, QUEEN OF ANGELS, INC., ST. MARY VILLA, INC., DOMINICAN SISTERS OF ST. CECILIA CONGREGATION, and AQUINAS COLLEGE (13-6640),
Plaintiffs - Appellants,

FILED
Aug 21, 2015
DEBORAH S. HUNT, Clerk

v.

SYLVIA MATTHEWS BURWELL, Secretary of the United States Department of Health and Human Services; THOMAS E. PEREZ, Secretary of the United States Department of Labor; JACOB J. LEW, Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; and UNITED STATES DEPARTMENT OF TREASURY,
Defendants - Appellees.

Before: MOORE and ROGERS, Circuit Judges; NIXON, District Judge.

JUDGMENT

On Appeals from the United States District Courts for the Western District of Michigan at Grand Rapids
and the Middle District of Tennessee at Nashville.

THIS CAUSE was heard on the records from the district courts and was submitted on the supplemental briefs of counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that this court’s prior opinion, Michigan Catholic Conference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014), is REISSUED and REAFFIRMED, with respect to all issues raised by Plaintiffs. Accordingly, IT IS FURTHER ORDERED that the judgments of the district courts denying preliminary injunctive relief to Plaintiffs on all of their claims are AFFIRMED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case 1:13-cv-01247-GJQ ECF No. 65 filed 06/24/16 PageID.1503 Page 1 of 4
Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001
Scott S. Harris Clerk of the Court (202) 479-3011

June 24, 2016
Clerk United States Court of Appeals
for the Sixth Circuit 540 Potter Stewart U. S. Courthouse 100 E. Fifth St. Cincinnati, OH 45202-3988

FILED
Jun 24, 2016
DEBORAH S. HUNT, Clerk

Re: Michigan Catholic Conference, et al. v. Sylvia Burwell, Secretary of Health and Human Services, et al., No. 15-1131 (Your docket Nos. 13-2723 & 13-6640)

Dear Clerk:

Attached please find a certified copy of the judgment of this Court in the above-entitled case. You may obtain a copy of the opinion cited in the judgment by visiting our website, http://www.supremecourt.gov.

Sincerely, SCOTT S. HARRIS, Clerk By

Hervé Bocage Judgments/Mandates Clerk

Enc. cc: Mr. Matthew A. Kairis, Esq.

Case 1:13-cv-01247-GJQ ECF No. 65 filed 06/24/16 PageID.1504 Page 2 of 4
Supreme Court of the United States Office of the Clerk
Washington, DC 20543-0001
Scott S. Harris Clerk of the Court (202) 479-3011
June 24, 2016
Mr. Matthew A. Kairis, Esq. Jones Day 325 John A. McConnell Blvd., Suite 600 P.O. Box 165017 Columbus, Ohio 43216
Re: Michigan Catholic Conference, et al. v. Sylvia Burwell, Secretary of Health and Human Services, et al., No. 15-1131
Dear Mr. Kairis:
Today, a certified copy of the judgment of this Court in the above-entitled case was emailed to the Clerk of the United States Court of Appeals for the Sixth Circuit. You may obtain a copy of the opinion cited in the judgment by visiting our website, http://www.supremecourt.gov.
Sincerely,
SCOTT S. HARRIS, Clerk
By
Herve’ Bocage Judgments/Mandates Clerk
cc: Clerk, USCA Sixth Circuit (Your docket Nos. 13-2723, 13-6640)

Case 1:13-cv-01247-GJQ ECF No. 65 filed 06/24/16 PageID.1505 Page 3 of 4
Supreme Court of the United States

No.

15-1131

MICHIGAN CATHOLIC CONFERENCE, ET AL.,
Petitioners v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.

ON PETITION FOR WRIT OF CERTIORARI to the United States Court of Appeals for the Sixth Circuit.
THIS CAUSE having been submitted on the petition for writ of certiorari and the response thereto.
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the petition for writ of certiorari is granted. The judgment of the above court in this cause is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit in light of Zubik v. Burwell, 578 U. S. ___ (2016). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans “obtain, without cost, the full range of FDA approved contraceptives.” Wheaton College v. Burwell, 573 U. S. ___, ___ (2014) (slip op., at 1). Through this litigation, petitioners have made the Government aware of their view that they meet “the requirements for exemption from the contraceptive coverage requirement on religious grounds.” Id., at ___ (slip op., at 2). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, “precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage” going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.

Case 1:13-cv-01247-GJQ ECF No. 65 filed 06/24/16 PageID.1506 Page 4 of 4 May 23, 2016

 
 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is made th is 13th day of October 2017, by and between the entities and individuals listed in Exhibit A ("Plaintiffs") and the United States of America, acting by and through Eric D. Hargan, in hi s offic ial capacity as Acting Secretary of Health and Human Services; R. A lexander Acosta, in hi s offic ial capacity as Secretary ofLabor; Steven T. M nuchin, in his official capacity as Secretary of the Treasury; the United States Department of Health and Human Services; the United States Department ofLabor; and the United States Department of the Treasury (the "Government" or the " D epartme nts") (collectively, the " Parties").
R EC ITALS WHEREAS, there is now pending a series of lawsuits listed in Exh ibit B (collectively, the " Litigation'") in which Pla intiffs a llege that the Government has, among other things, vio lated the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-I et seq., by promulgating and enforcing regulations pursuant to 42 U.S.C. § 300gg-13 that required Plaintiffs to take actions that facilitated the prov is ion, through or in connection with their health plans, of Food and Drug Administration-approved contraceptive methods and abortifacients, as wel I as sterilization procedures and re lated patient education and counseling to which Plaintiffs object on relig ious grounds ("the Objectionable Coverage"). The regulations were found at 26 C.F.R. § 54.98 l 5-27 I 3A (Sept. 14, 20 15), 26 C.F. R. § 54.98 15-27 13(a)(l)(iv) (July 19, 2010), 29 C.F.R. § 2590.7 152713A (Sept. 14, 2015), 29 C.F. R. § 2590.715- 2713(a)(l)(iv) (July 19, 20 10), 45 C.F.R.
I of 10

§ 147.13 1 (Sept. 14, 20 15), and 45 C.F.R. § 147.l30(a)(l)(iv) (July 19, 20 10) (the ·' Regulations' ').
\\'HEREAS, the Departments of Hea lth and Huma n Services, Labor, and T reasury have issued new regulations afford ing Plaintiffs an exemption. 82 Fed. Reg. 47.792 (Oct. 13, 20 17), available at https://www.gpo.gov/ fd sys/pkg/F R-20 17-I 013/pd f/2 017-21851 .pdf.
WHEREAS, those new regulations state that " requiring certain objecting entities or indiv idua ls to choose between the Mandate, the accommodatio n, o r penalties fo r noncompliance imposes a substantia l burden on relig ious exercise under RFRA," that " the application of the Mandate to certa in o bjecting employers [i]s [not] necessary to serve a compelli ng governmental interest,"' and that "alternati ve approaches can further the interest the Departments prev ious ly identified behind the Mandate." 82 Fed. Reg. 47,792, 4 7,800. 47,806 (O ct. 13, 20 17), available at https://www.gpo.gov/fdsys/pkg/FR-20 17- 1013/pdf/20 17-2 185 1.pdf.
WH EREAS, recent Executi ve Orders establish that it is the po licy of the Government •·to vigorous ly enfo rce Federal law's robust protecti ons for re ligious freed om." and to '·exercise al l authority and discretion available ... to waive, defer, grant exem ptio ns from, o r delay the implementation o f any provision o r req uire ment of the [Affordab le Ca re] Act that wou ld impose ... a cost, fee, tax, pena lty, o r regulatory burden on ... health insurers, ... [o r] purchasers of hea lth insurance ." Executi ve Order 13798, Promoting Free Speech and Religio us Liberty 82 Fed. Reg.2 1,675 (May4, 20 17); Executi ve
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Order 13765, Minimizing the Economic Burden on the Patient Protectio n and Affordable Care Act Pending Repeal 82 Fed. Reg. 8,351 (Jan. 20, 2017).
WHEREAS, after yea rs of liti gatio n, the Supreme Court considered the claims m these cases and, instead of reso lving the legal issues, remanded the cases to allow the parties to "resolve any o utstanding issues between them." Zubik v. Burwell, 136 S. Ct. 1557, 1560(2016).
WHEREAS, the Supreme Court's remand orders provided that "the Government may not impose taxes o r penalties on [Plaintiffs] for fa il ure to provide the ... notice" required by the Regu lations. Id. at 1561.
WHEREAS, the new regulations, the Supreme Court's remand order, and the President's Executive Orders have placed this litigation in an extraordi nary posture.
WHEREAS, it is the desire of the Parties to resolve finally and permanently a ll disputes, asserted or unasserted, arising out o f, or related to the matters set forth , a lleged , embraced by, o r otherwi se referred to in the Litigation.
NOW THEREFORE, in consideration of the Rec itals and mutual promises contained herein, including the discontinuation of the pending Litigation, and fo r other good and valuable consideration hereby deemed rece ived , the Parties agree as follows :
TERMS OFAGREEMENT
I. The Paities agree that, under the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the Affordable Care Act's "contraceptive mandate." if applied as set out in 26 C.F.R. § 54.98 l 5-27 l 3(a)(l )(iv) (July 19, 2010), 29 C.F.R. §2590.715- 2713(a)(l)(iv) (July 19, 20 10), and 45 C.F.R. § 147.130(a)( l)( iv) (Ju ly
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19, 2010), would .. impose(] a substantial burden on [Plaintiffs'] exercise of religion," id. at 2779, and "violate[] RFRA," id. at 2785. The Government therefore agrees that the "contraception mandate" as described in Hobby lobby cannot be legal ly enforced. under RFRA, against Plaintiffs or their health plans.
2. The Government agrees, with respect to all Plaintiffs, to abide by the terms of the permanent injunction in Zubik v. Sebelius, 13-cv- 1459, l3-cv-303. 20 13 WL 6922024 (W.D. Pa. Dec. 20, 20 13), as it relates to the Objectionable Coverage. The Government accordingly will treat Plaintiffs and their health plans, including their insurance issuers and/or third party administrators in connection with those health plans, as exempt from the Regulations or any materially similar regulation or agency policy. A materially similar regulation or agency policy includes any requirement that Plaintiffs, their insurance issuers, or their third-pa11y administrators provide any of the Objectionable Coverage through or in connection with Plaintiffs' health plans, wh ich means:
a. Plainti ffs (and their insurers and third-party administrators acting in connection with Plaintiffs' health plans) may provide health coverage without the Objectionable Coverage, and no procedure for providing any of the Objectionable Coverage may require any action by Plaintiffs;
b. If the Objectionable Coverage is provided, it may not be provided as part of any health plan sponsored by Plaintiffs, but instead must be provided through a separate and distinct health plan or other arrangement that is separate and distinct from Plaintiffs' health plan;
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c. Plaintiffs or the ir health plans may not be requ ired to pay fo r the provision of the Objectionable Coverage, either directly or indirectly (though Plai ntiffs are not excused from paying generally appl icable taxes);

d. An insurance or health plan card issued in conjunction with Plaintiffs ' hea lth plans may not be used by any person to obtain any of the products or services included within the Objecti onab le Coverage, or payment or reimbursement therefor:

e. No person may receive the Objectionable Coverage as an automatic consequence of enro llment in any health plan sponsored by Plaintiffs;

f.

If the Government seeks to prov ide the Objectionable Coverage to individuals

partic ipating in Plaintiffs' health plans, such provis ion may only be through

separate enrollments by those individuals in a separate and distinct hea lth pl an

or other separate and disti nct arrangement to obtain the Objectionable Coverage;

a nd

g. Any communications regarding the Objectionable Coverage, other than disc losures in plan documents required by federal law that the Obj ectionable Coverage is not covered by the plan or notice provided for in foo tnote I of this agreement, must be separate from communications relating to Plaintiffs' health plans.

3. The Government further agrees to withd raw any letters sent to Plaintiffs· issuers and/or third-party admini strators. pursuant to 29 C.F.R. §2590.715-27 13A and 45

5 of I0

C.F. R. § 147.1 3 1, as they re late to the provision of any of the Objectionable Coverage with in 14 days of the effective date of this agreement. 1
4. The Government furth er agrees, in light of interim relief ordered by several courts. including the Supreme Court in Zubik, that neither Plaintiffs that are party to this Agreement nor their health plans, insurers, or third-party administrators acting in connection with Plainti ffs' health plans shall be subject to any penalties or other adverse consequences, since August 20 11 , as a result of their non-compIiance with any law or regulati on requiring the provision of the Objectionable Coverage that the government is prohibited from enforcing by the terms of this agreement.
5. Notwithstanding this Agreement, the Plaintiffs retain their full legal rights to challenge any new law, regulation, or other requirement that the government may enact or impose relating to the provision of Objectionable Coverage and to challenge or defend against such action on any grounds they choose (including the Constitution, federal law, and/or this Agreement). Nothing herein shall be construed as an admission or indication that any law, regulation, or other requirement wou ld be lawful or unobj ectionable to Plaintiffs.
6. The Parties agree to resolve all proceedings identified above and to fil e such papers as are necessary to terminate the Litigation. In all cases where appeals are current ly pending, the parties will file dismissals of appea l under Federal Rule of Appellate Procedure
1 The effective date of the withdrawal may be contingent on proper notice being given to participants. If contraception coverage is currently being offered by an issuer or third-party adm inistrator. the cessation of coverage wou ld be effective no sooner than the first day of the first plan year that begins thirty days after the date of this Settlement Agreement (to allow for the provision of notice to plan participants in cases where contraceptive bene fits will no longer be provided). Alternatively, sixty-days advance notice may be given pursuant to 42 U.S.C. § 300ggl 5(d)(4) if app licab le.
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42(b). After the appea ls are dism issed, the parties agree that they wil ljointly file stipulations of dismissal or motions fo r dismissa l under Federa l Rule of Civ il Procedure 41 (a), except in cases where there is a final judgment in the district court. This agreement shall not be effective until the Parties fil e dismissals of all appeals currently pending.
7. The Government agrees to pay Plaintiffs $3 million in costs and fees . 8. The Parties agree that this Agreement constitutes a good-fa ith settlement of the Litigation for good and va luable consideration and acknowledge that it is entered into freely and voluntarily. 9. The Parties further agree that thi s Agreement has been full y read and understood by them, and that each of them has received independent legal advice from their respective attorney(s) as to the effect and import of its prov isions. The Parties furth er agree that this Agreement is being entered into for the express purpose and intention of mak ing and entering inco a full and final compromise, adjustment, and settlement of all c laims which were or could have been asserted in the Litigation, whether or not referred to therein. I0. This Agreement constitutes the sole and entire agreement between Plaintiffs and the Government. and supersedes all prior agreements, negotiations, and discuss ions between the Parties with respect to the subject matter covered hereby. It is express ly understood and agreed that this Agreement may not be altered, amended, waived, mod ified, or otherwise changed except by writing, du ly executed by authorized representatives of Pla intiffs and the Gove rnment, respectively. The Parties furth er acknowledge and agree that they wi ll make no claim at any time or place that this Agreement has been orally supp lemented, mod ified, or altered.
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11. AII signatories represent that they have authority to enter into this Agreement on behalf of the ir respective clients.
12. This Agreement may be executed in counterparts. IN WITNESS WHEREOF, thi s Agreement is executed as of the date and year first indicated above.
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of!O

ON BEHALF OF THE GOVERNM ENT: Deputy Assistant Attorney General Civil Division, U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, District of Columbia 20530 Counsel.for Defendants
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EXHIBIT A

EXHIBIT A
The term "Plaintiffs," as used in the attached settlement agreement includes the fo llowing organ izations and individuals; their subsidi ari es, a ffili ates, and s uccessors; and re lated entities that offer coverage through the health plan of any signatory:
• The Roman Catholic Archdiocese of New York • The Roman Catholic Diocese of Rockville Centre, New York • Catholic Health Care System • Catholic Health Services of Long Island • Cardinal Spe llm an High School • Monsignor Farrell High School • Most Reverend David A. Zubik • Roman Catho lic Diocese of Pittsburgh • Catholic Charities of the Diocese of Pittsburgh, Inc. • Most Reverend Lawrence T. Persico • Roman Catholic Diocese of Erie • St. Martin Center, Inc. • Prince of Peace Center, Inc. • Erie Catho li c Preparatory School • Most Reverend Lawrence Brandt • Most Reverend Edward Matesic • Diocese of Greensburg • Catholic Charities of the Diocese of Greensburg • St. John the Evangelist Regional Catho lic School • Catho lic Diocese of Beaumont • Catholi c Charities of Southeast Texas • Catho li c Chari ties, Diocese of Fort Worth, Inc. • Uni versity of Dallas • Catholic Diocese of Biloxi, Inc.

• The Most Reverend Roger P. Morin, Bishop and President of The Cathol ic Diocese of Biloxi, Inc. and hi s successors in office, as Trustee fo r and on behalf of the Resurrection Catholic School and the Sacred Heart Catho lic School.
• De L'Eppe Deaf Center, Inc. • Catholic Social and Community Services, Inc. of Biloxi • Catholic Diocese of Jackson • The Most Reve rend Joseph N. Latino, Bishop and Chief Executive Officer of the
Catholic Diocese of Jackson, and his successors in office, in accordance with the discipline and government of the Roman Catho lic Church;
• Vicksburg Catho lic Schoo l, Inc. • St. Joseph Catholic School • Catholic Charities, Inc. of Jackson • St. Dominic-Jackson Memorial Hospi tal
• Catholic Diocese of Nashville
• Catholic Charities of Tennessee, Inc.
• Camp Marymount, Inc. • St. Mary Villa, Inc. • Mary, Queen of Angels, Inc.
• St. Cecilia Congregation • Aquinas College
• Michigan Catholic Conference
• Catholic Famil y Services d/b/a Catholic Chari ties Diocese of Kalamazoo • Franciscan Universi ty of Steubenville
• University of Notre Dame • Diocese of Fort Wayne-South Bend, Inc. • Catholic Charities of the Diocese of Fort Wa yne-South Bend, Inc. • St. Anne Home of the Diocese off0 11 Wayne-South Bend, Inc. • Franciscan All iance, Inc. • Specialty Physicians of Illinois, LLC • University of Sa int Francis of Fort Wayne, Ind iana, Inc.

• Our Sunday Visitor, Inc. • Archdiocese of St. Louis • Catholic Charities of St. Louis • Diocese of Cheyenne • Catho li c Charities of Wyoming • St. Joseph's Children's Home • St. Anthony Tri-Parish School (a.k.a, St. Anthony's Tri-Parish Catholic School) • Wyoming Catholic College • The Archdi ocese of Atlanta, an association of churches and schools • Archbishop Wilton 0. Gregory • Catholic Education of North Georgia, Inc. • CathoIic Charities of the Archdiocese of Atlanta, Inc. • The Roman Catho lic Diocese of Savannah; • The Most Rev. Gregory J. Hartmayer, OFM Conv., as Bishop and his successors in
office. • Donald W. Wuerl , Roman Catholic Archbishop of Washi ngton, and his s uccessors in
office, in accordance with the discipline and government of the Roman Catholic Church, a corporation sole (the Archdiocese of Washington) • Consortium of Catholic Academies of the Archdiocese of Washington, Inc. • Archbishop Can·o ll Hi gh School, Inc. • Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc. • Mary of Nazareth Elementary School, Inc. • Catholic Charities of the Archdiocese of Washington , Inc. • Victory Housing, Inc. • The Catholic Information Center, Inc. • The Catholic University of America • Thomas Aqu inas College

EXHIBITB

E XHIBIT B

District Court Roman Catholic Archdiocese ofN. Y. v. Sebelius , No. I2-cv-2542 (E.D.N.Y.). Zubik v. Sebelius,No. 13-cv-1459 (W.D. Pa.).
Persico v. Sebelius, No. l 3-cv-0303 (W.D. Pa.)
Brandl v. Burwell. , No. I4-cv-681 (W.D. Pa.).

Court of Appeals Catholic Health Care Sys. v. Burwell, No. 14-427, (2d Cir.)
Zubik v. Sec'y US Dep't of Health & Human Servs. , Nos. 14-1376, 14-1377 (3d Cir.) Brandl v. Burwell, Nos. 14-4087 & 14-3663 (3d Cir.)

Catholic Diocese ofBiloxi Inc. , et al. v. Burwell, No. l 4-cv-00146 (S.D. Miss.). Universily ofDallas v. Burwell, No. l 2-cv-00314 (N. D. Texas) Catholic Diocese ofBeaumont v. Sebelius, No. I :13-cv-709 (E.D. Texas) Michigan Catholic Co1?ference v. Sebelius, No. l 3-cv-1247 (W.D. Mich.) Catholic Diocese ofNashville v. Sebelius, No. 3:13-01303 (M.D . Tenn.)
Franciscan University a_(Steubenville v. Sebelius, No. 12-CV-440 (S.D. Ohio) University ofNotre Dame v. Sebelius No. 13-cv- 1276 (N.D. Ind.)
Diocese ofFt. Wayne-South Bend v. Burwell, No. 12-cv- 159, (N.D. Ind. 2013). Archdiocese ofSt. Louis v. Burwell, No. I3-cv-2300 (E.D. Mo.).

No ne
Catholic Diocese ofBeaumont v. Burwell, Nos. 14-40212, 14-1024 1, 14-1066 I. (5th Cir.),
Michigan Catholic Conference v. Burwell, Nos. 13-2723, 13-6640 (6th Cir.).
None
University ofNotre Dame v. Sebelius, No. 13-3853 (7th Cir.). Diocese ofFt. Wayne-South Bend v. Bunvell, No. 14-1431 (7th Cir.) Archdiocese ofSt. Louis, et al v. Burwell, No. 14-3016 (8th Cir.)

Diocese ofCheyenne v. Sebelius, No. I4-cv-00021 (0. Wyo.) Roman Catholic Archdiocese ofAtlanta v. Sebelius , No. 12-cv-03489 (N.0. Ga.). Roman Catholic Archbishop o.fWashington v. Sebelius, No. l 3-cv-144 l (0 .0.C.).

Diocese ofCheyenne v. Burwell, No. 14-8040 (10th Cir.). Roman Catholic Archdiocese ofAtlanta v. Burwell, Nos. 14-12890, 14-13239 (11th Cir.). Roman Catholic Archbishop ofWashington v. Burwell, Nos. 13-5371 , 14-5021 (0.C. Cir.)

2

 
 United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:13-cv-01247-GJQ

Michigan Catholic Conference v. Sebelius, et al

Date Filed: 11/14/2013

Assigned to: Judge Gordon J. Quist

Date Terminated: 11/02/2017

Case in other court: (U.S.Supreme Court, 14-00701/15- Jury Demand: Plaintiff

01131) Sixth Circuit, 13-02723 Nature of Suit: 440 Civil Rights:

Cause: 42:1983 Other Civil Rights

Other

Jurisdiction: U.S. Government

Defendant

plaintiff
Michigan Catholic Conference in its own name and on behalf of Michigan Catholic Conference Second Amended and Restated Group Health Benefit Plan for Employees

represented by Alison Kilmartin Jones Day (PA) 500 Grant St., Ste. 4500 Pittsburgh, PA 15219 (412) 391-3939 Email: amkilmartin@jonesday.com TERMINATED: 09/25/2015 ATTORNEY TO BE NOTICED

Jennifer Brinkman Flannery Jones Day (Cleveland) North Point 901 Lakeside Ave. Cleveland, OH 44114-1190 (216) 586-7576 Email: jbflannery@jonesday.com TERMINATED: 12/23/2014 ATTORNEY TO BE NOTICED

Paula Batt Wilson Jones Day (Cleveland) North Point 901 Lakeside Ave. Cleveland, OH 44114-1190 (216) 586-3939 Email: pbwilson@jonesday.com ATTORNEY TO BE NOTICED

Rebecca D'Arcy O'Reilly Bodman LLP (Detroit) 6th Fl. at Ford Field

plaintiff
Catholic Family Services doing business as Catholic Charities Diocese of Kalamazoo

1901 St. Antoine St. Detroit, MI 48226 Email: roreilly@bodmanlaw.com ATTORNEY TO BE NOTICED
Thomas Van Dusen Bodman LLP (Troy) 201 W Big Beaver Rd., Ste. 500 Troy, MI 48084 (248) 743-6000 Email: tvandusen@bodmanlaw.com ATTORNEY TO BE NOTICED
Matthew Anthony Kairis Jones Day (Columbus) 325 John H. McConnell Blvd., Ste. 600 P.O. Box 165017 Columbus, OH 43216-5017 (614) 469-3939 Email: makairis@JonesDay.com ATTORNEY TO BE NOTICED
represented by Alison Kilmartin (See above for address) TERMINATED: 09/25/2015 ATTORNEY TO BE NOTICED
Conor Brendan Dugan Warner Norcross & Judd LLP (Grand Rapids) 111 Lyon St., NW, Ste. 900 Grand Rapids, MI 49503-2487 (616) 752-2000 Email: conor.dugan@wnj.com ATTORNEY TO BE NOTICED
Ian Robert Kennedy Warner Norcross & Judd (KZ) 401 E Michigan Ave., Ste. 200 Kalamazoo, MI 49007 (269) 276-8111 Email: ikennedy@kalsec.com ATTORNEY TO BE NOTICED

Jennifer Brinkman Flannery (See above for address) TERMINATED: 12/23/2014 ATTORNEY TO BE NOTICED
Paula Batt Wilson (See above for address) ATTORNEY TO BE NOTICED
Matthew Anthony Kairis (See above for address) ATTORNEY TO BE NOTICED

V.
defendant
Kathleen Sebelius in her official capacity as Secretary of the U.S. Department of Health and Human Services

represented by Jacek Pruski U.S. Department of Justice, Civil Division (DC) Federal Programs Branch 20 Massahusetts Ave., NW Washington, DC 20001 (202) 616-2035 Email: jacek.pruski@usdoj.gov TERMINATED: 06/30/2016 ATTORNEY TO BE NOTICED
Julie Saltman U.S. Department of Justice, Civil Division (DC) Federal Programs Branch 20 Massahusetts Ave., NW Washington, DC 20530 (202) 532-4252 Email: julie.saltman@usdoj.gov ATTORNEY TO BE NOTICED
Michelle Bennett U.S. Department of Justice, Civil Division (DC) Federal Programs Branch 20 Massahusetts Ave., NW Washington, DC 20530 (202) 305-8902 Email:

defendant Thomas Perez in his official capacity as Secretary of the U.S. Department of Labor
defendant Jacob J. Lew in his official capacity as Secretary of the U.S. Department of Treasury
defendant U.S. Department of Health & Human Services

Michelle.Bennett@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) TERMINATED: 06/30/2016 ATTORNEY TO BE NOTICED
Julie Saltman (See above for address) ATTORNEY TO BE NOTICED
Michelle Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) TERMINATED: 06/30/2016 ATTORNEY TO BE NOTICED
Julie Saltman (See above for address) ATTORNEY TO BE NOTICED
Michelle Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) TERMINATED: 06/30/2016 ATTORNEY TO BE NOTICED
Julie Saltman (See above for address) ATTORNEY TO BE NOTICED
Michelle Bennett (See above for address) ATTORNEY TO BE NOTICED

defendant U.S. Department of Labor
defendant U.S. Department of Treasury

represented by Jacek Pruski (See above for address) TERMINATED: 06/30/2016 ATTORNEY TO BE NOTICED
Julie Saltman (See above for address) ATTORNEY TO BE NOTICED
Michelle Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Jacek Pruski (See above for address) TERMINATED: 06/30/2016 ATTORNEY TO BE NOTICED
Julie Saltman (See above for address) ATTORNEY TO BE NOTICED
Michelle Bennett (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/14/2013
11/14/2013 11/14/2013

# Docket Text
1 COMPLAINT with jury demand against All Defendants filed by Michigan Catholic Conference, Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Kairis, Matthew) (Entered: 11/14/2013)
2 Continued EXHIBIT re 1 Complaint by plaintiffs Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo, Michigan Catholic Conference (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H)(Kairis, Matthew) (Entered: 11/14/2013)
3 PROPOSED SUMMONS to be issued re 1 (Kairis, Matthew) (Entered: 11/14/2013)

11/14/2013 11/14/2013 11/14/2013 11/14/2013 11/15/2013 11/15/2013 11/20/2013 11/20/2013
11/27/2013

4 MOTION for leave to file excess pages by plaintiffs Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo, Michigan Catholic Conference; (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Kairis, Matthew) (Entered: 11/14/2013)
5 CORPORATE DISCLOSURE STATEMENT by Michigan Catholic Conference (Kairis, Matthew) (Entered: 11/14/2013)
6 CORPORATE DISCLOSURE STATEMENT by Catholic Family Services d/b/a Catholic Charities Diocese of Kalamazoo (Kairis, Matthew) (Entered: 11/14/2013)
RECEIPT: Filing fee in the amount of $400.00 paid by Matthew A. Kairis, receipt number 0646-2735591; (ns) (Entered: 11/15/2013)
7 NOTICE that this case has been assigned to Judge Gordon J. Quist (pjw) (Entered: 11/15/2013)
8 SUMMONS ISSUED as to defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury, U.S. Attorney and U.S. Attorney General (pjw) (Entered: 11/15/2013)
9 MOTION for preliminary injunction and request for oral argument by plaintiffs Catholic Family Services, Michigan Catholic Conference; (Attachments: # 1 Proposed Order)(Kairis, Matthew) (Entered: 11/20/2013)
10 AMENDED MOTION for leave to file excess pages for Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction by plaintiffs Catholic Family Services, Michigan Catholic Conference; (Attachments: # 1 Proposed Order, # 2 Exhibit 1, # 3 Exhibit A attached to Ex. 1, # 4 Exhibit B attached to Ex. 1, # 5 Exhibit C attached to Ex. 1)(Kairis, Matthew) (Entered: 11/20/2013)
11 Continued (Part 1 of 3) EXHIBIT re 15 Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction Attached as Ex. 1 to Plaintiffs' Amended Motion for Leave to File Excess Pages for Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction by plaintiffs Catholic Family Services, Michigan Catholic Conference (Attachments: # 1 Exhibit D attached to Ex. 1, # 2 Exhibit E attached to Ex. 1, # 3 Exhibit F attached to Ex. 1, # 4 Exhibit G attached to Ex. 1, # 5 Exhibit H attached to Ex. 1)(Kairis, Matthew) Modified file date and document link on 12/2/2013 (pjw) (Entered: 11/20/2013)

11/27/2013
11/27/2013
11/27/2013 11/27/2013 12/03/2013 12/04/2013 12/04/2013

12 Continued (Part 2 of 3) EXHIBIT re 15 Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction Attached as Ex. 1 to Plaintiffs' Amended Motion for Leave to File Excess Pages for Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction by plaintiffs Catholic Family Services, Michigan Catholic Conference (Attachments: # 1 Exhibit I attached to Ex. 1, # 2 Exhibit J attached to Ex. 1, # 3 Exhibit K attached to Ex. 1, # 4 Exhibit L attached to Ex. 1, # 5 Exhibit M attached to Ex. 1)(Kairis, Matthew) Modified file date and document link on 12/2/2013 (pjw) (Entered: 11/20/2013)
13 Continued (Part 3 of 3) EXHIBIT re 15 Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction Attached as Ex. 1 to Plaintiffs' Amended Motion for Leave to File Excess Pages for Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction by plaintiffs Catholic Family Services, Michigan Catholic Conference (Attachments: # 1 Exhibit N attached to Ex. 1)(Kairis, Matthew) Modified file date and document link on 12/2/2013 (pjw) (Entered: 11/20/2013)
14 ORDER granting 10 motion for leave to file; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 11/27/2013)
15 MEMORANDUM in support of Motion for Preliminary Injunction 9 and request for oral argument filed by Catholic Family Services, Michigan Catholic Conference (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(pjw) (Entered: 12/02/2013)
16 MOTION to expedite Argument on Motion for Preliminary Injunction During the Week of December 16 by plaintiffs Catholic Family Services, Michigan Catholic Conference; (Attachments: # 1 Proposed Order)(Kairis, Matthew) (Entered: 12/03/2013)
17 NOTICE re 16 Response to Plaintiffs' Motion to Expedite Argument by defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury (Pruski, Jacek) (Entered: 12/04/2013)
RESPONSE TO MOTION to expedite Argument on Motion for Preliminary Injunction During the Week of December 16 16 (as taken from 17 ) filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury (pjw) (Entered: 12/05/2013)

12/05/2013 12/05/2013 12/05/2013 12/06/2013 12/11/2013 12/12/2013 12/16/2013
12/16/2013 12/16/2013

18 NOTICE to attorney Jacek Pruski regarding recent filing 17 (pjw) (Entered: 12/05/2013)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Paula Batt Wilson on behalf of plaintiffs Catholic Family Services, Michigan Catholic Conference (Wilson, Paula) (Entered: 12/05/2013)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Alison Kilmartin on behalf of plaintiffs Catholic Family Services, Michigan Catholic Conference (Kilmartin, Alison) (Entered: 12/05/2013)
19 SCHEDULING ORDER re 9 : Defendants to file by 12/16/2013; oral argument set by telephone on 12/19/2013 at 2:00 PM; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 12/06/2013)
20 NOTICE re 9 Notice of Supplemental Authority relevant to Plaintiffs' Motion for Preliminary Injunction by plaintiffs Catholic Family Services, Michigan Catholic Conference (Attachments: # 1 Exhibit A)(Kairis, Matthew) (Entered: 12/11/2013)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Jennifer Brinkman Flannery on behalf of plaintiffs Catholic Family Services, Michigan Catholic Conference (Flannery, Jennifer) (Entered: 12/12/2013)
21 CONSENT MOTION for leave to file excess pages by defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury; (Attachments: # 1 Proposed combine Memorandum in opposition to motion for preliminary injunction and in support of motion to dismiss, or in the alternative, for summary judgment )(Pruski, Jacek) Modified text on 12/17/2013 (pjw) (Entered: 12/16/2013)
22 MOTION to dismiss, or in the alternative, for summary judgment by defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury; (Pruski, Jacek) (Entered: 12/16/2013)
23 NOTICE of Filing of Certified Administrative Record by defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit Index to Admin.

12/17/2013 12/17/2013 12/17/2013 12/17/2013
12/17/2013 12/17/2013 12/19/2013

Record, # 2 Exhibit Certification of Record)(Pruski, Jacek) (Entered: 12/16/2013)
24 ORDER granting 21 motion for leave to file excess pages; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 12/17/2013)
25 RESPONSE in opposition to MOTION for preliminary injunction and request for oral argument 9 filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury (pjw) (Entered: 12/17/2013)
MEMORANDUM in support of Motion to Dismiss, or in the alternative, for Summary Judgment 22 (as taken from Doc 25 ) filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury(pjw) (Entered: 12/17/2013)
26 CONSENT MOTION for leave to file excess pages for Plaintiffs' Reply in Support of Motion for Preliminary Injunction by plaintiffs Catholic Family Services, Michigan Catholic Conference; (Attachments: # 1 Proposed Order, # 2 Exhibit 1 - Plaintiffs' Reply in Support of Motion for Preliminary Injunction, # 3 Exhibit A to Plaintiffs' Reply, # 4 Exhibit B to Plaintiffs' Reply, # 5 Exhibit C to Plaintiffs' Reply)(Kairis, Matthew) (Entered: 12/17/2013)
27 CONTINUED EXHIBITS re 26 [26-2] Plaintiffs' Reply in Support of Motion for Preliminary Injunction by plaintiffs Catholic Family Services, Michigan Catholic Conference (Attachments: # 1 Exhibit D to Plaintiffs' Reply, # 2 Exhibit E to Plaintiffs' Reply, # 3 Exhibit F to Plaintiffs' Reply)(Kairis, Matthew) Modified text on 12/18/2013 (dfw). (Entered: 12/17/2013)
28 ADMINISTRATIVE RECORD (three CD's submitted and placed on shelf 23 ) by defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury (mkc) (Entered: 12/18/2013)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Ian Robert Kennedy on behalf of plaintiff Catholic Family Services and appearance of Edward J. Bardelli (Kennedy, Ian) (Entered: 12/19/2013)

12/19/2013 12/19/2013 12/19/2013 12/20/2013 12/21/2013
12/23/2013 12/23/2013 12/23/2013 12/24/2013 12/26/2013

(NON-DOCUMENT) ATTORNEY APPEARANCE of Rebecca D'Arcy O'Reilly on behalf of plaintiff Michigan Catholic Conference (O'Reilly, Rebecca) (Entered: 12/19/2013)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Thomas Van Dusen on behalf of plaintiff Michigan Catholic Conference (Van Dusen, Thomas) (Entered: 12/19/2013)
29 MINUTES of motion hearing re 9 MOTION for preliminary injunction and request for oral argument filed by Catholic Family Services, Michigan Catholic Conference held by telephone before Judge Gordon J. Quist (Proceedings Digitally Recorded) (Judge Gordon J. Quist, jmt) (Entered: 12/20/2013)
30 NOTICE re 9 of Supplemental Authority by plaintiffs Catholic Family Services, Michigan Catholic Conference (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kairis, Matthew) (Entered: 12/20/2013)
31 NOTICE re 9 of Supplemental Authority by defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Attachment Roman Catholic Archbishop of Washington v. Sebelius - Mem. and Op., # 2 Attachment University of Notre Dame v. Sebelius - Order Denying Prelim. Inj.)(Pruski, Jacek) (Entered: 12/21/2013)
32 NOTICE re 31 Response to Defendants' Notice of Supplemental Authority by plaintiffs Catholic Family Services, Michigan Catholic Conference (Kairis, Matthew) (Entered: 12/23/2013)
33 NOTICE re 9 of Supplemental Authority by plaintiffs Catholic Family Services, Michigan Catholic Conference (Attachments: # 1 Exhibit A)(Kairis, Matthew) (Entered: 12/23/2013)
34 NOTICE re 9 of Supplemental Authority by plaintiffs Catholic Family Services, Michigan Catholic Conference (Attachments: # 1 Exhibit A)(Kairis, Matthew) (Entered: 12/23/2013)
35 NOTICE re 33 , 34 , 30 Response to Plaintiffs' Notices of Supplemental Authority by defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury (Pruski, Jacek) (Entered: 12/24/2013)
36 NOTICE re 9 of Supplemental Authority by defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health

12/26/2013 12/27/2013 12/27/2013
12/27/2013 12/27/2013 12/27/2013 12/27/2013 12/27/2013 12/27/2013 12/30/2013

& Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Catholic Diocese of Nashville v. Sebelius)(Pruski, Jacek) (Entered: 12/26/2013)
37 NOTICE re 36 Plaintiffs' Response to Defendants' Notice of Supplemental Authority by plaintiffs Catholic Family Services, Michigan Catholic Conference (Kairis, Matthew) (Entered: 12/26/2013)
38 NOTICE re 9 of Supplemental Authority by plaintiffs Catholic Family Services, Michigan Catholic Conference (Attachments: # 1 Exhibit A)(Kairis, Matthew) Modified text on 12/30/2013 (jlg). (Entered: 12/27/2013)
39 NOTICE of Supplemental Authority by plaintiffs Catholic Family Services, Michigan Catholic Conference (Attachments: # 1 Exhibit A Grace Schools, et al. v. Sebelius, et al., 3:12-cv-459 JD (N.D. Ind. Dec. 27, 2013))(Kairis, Matthew) Modified text on 12/30/2013 (jlg). (Entered: 12/27/2013)
40 OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 12/27/2013)
41 ORDER denying 9 motion for preliminary injunction; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 12/27/2013)
42 NOTICE OF INTERLOCUTORY APPEAL re 41 , 40 by plaintiffs Catholic Family Services, Michigan Catholic Conference (Kairis, Matthew) (Entered: 12/27/2013)
43 MOTION for preliminary injunction pending appeal by plaintiffs Catholic Family Services, Michigan Catholic Conference; (Attachments: # 1 Proposed Order)(Kairis, Matthew) (Entered: 12/27/2013)
44 MEMORANDUM in support of Motion for Preliminary Injunction 43 Pending Appeal filed by Catholic Family Services, Michigan Catholic Conference(Kairis, Matthew) (Entered: 12/27/2013)
RECEIPT: USCA appeal fee re 42 by plaintiffs Catholic Family Services, Michigan Catholic Conference in the amount of $505, receipt number 0646-2769166 (ns) (Entered: 12/30/2013)
45 RESPONSE in opposition to MOTION for preliminary injunction pending appeal 43 filed by Jacob J. Lew, Thomas Perez,

12/31/2013 12/31/2013 01/02/2014
01/02/2014 01/03/2014 01/03/2014

Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury (Pruski, Jacek) (Entered: 12/30/2013)
46 JOINT MOTION to stay District Court Proceedings Pending Appeal by plaintiffs Catholic Family Services, Michigan Catholic Conference; (Attachments: # 1 Proposed Order)(Kairis, Matthew) (Entered: 12/31/2013)
CASE NUMBER 13-2723 assigned by the Sixth Circuit to appeal 42 (mkc) (Entered: 01/21/2014)
47 TRANSCRIPT of Oral Argument re: Plaintiffs' Motion for Preliminary Injunction held December 19, 2013 before U.S. District Judge Gordon J. Quist; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 4/2/2014 ; redaction request due 1/23/2014 (Court Reporter: Gaugier, Kevin (616) 456-6133) (Entered: 01/02/2014)
48 ORDER dismissing as moot 43 motion for preliminary injunction; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 01/02/2014)
49 ORDER granting 46 motion to stay; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 01/03/2014)
50 ORDER of USCA re appeal 42 granting motion for an injunction pending appeal. The government is hereby enjoined from enforcing the provision in question against the plaintiffs pending dispostion of this appeal. The appeal shall be expedited for briefing and submission, and no extensions of time of the briefing schedule will be granted absent extraordinary circumstances. Alice M. Batchelder, Chief Circuit Judge; Eugene E. Siler, Jr., Circuit Judge and Jane Branstetter Stranch, Circuit Judge. [The order is AMENDED to include Judge Stranch's dissent.] (jlg) (Entered: 01/03/2014)

01/06/2014 01/06/2014
01/09/2014 04/24/2014 06/12/2014 12/18/2014 01/06/2015 04/27/2015

51 AFFIDAVIT of service by plaintiffs Catholic Family Services, Michigan Catholic Conference re 1 (Attachments: # 1 Exhibit A)(Kilmartin, Alison) (Entered: 01/06/2014)
SUMMONS returned executed on Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury, US Attorney and US Attorney General; service upon defendant, Jacob J. Lew complete on 11/14/2013, answer due 1/13/2014; Thomas Perez complete on 11/14/2013, answer due 1/13/2014; Kathleen Sebelius complete on 11/14/2013, answer due 1/13/2014; U.S. Department of Health & Human Services complete on 11/14/2013, answer due 1/13/2014; U.S. Department of Labor complete on 11/14/2013, answer due 1/13/2014; U.S. Department of Treasury complete on 11/14/2013, answer due 1/13/2014 (pjw) (as taken from Doc 51 ); Modified text on 1/9/2014 (pjw) (Entered: 01/09/2014)
52 NOTICE to attorney Alison Kilmartin regarding recent filing 51 (pjw) (Entered: 01/09/2014)
53 ORDER of USCA re appeal 42 granting motions to file amicus briefs in support of appellants (pjw) (Entered: 04/25/2014)
54 SLIP OPINION and JUDGMENT of USCA re appeal 42 ; affirming the district courts' denial of preliminary injunctions; lifting the stay temporarily issued by this court pending resolution of this appeal; mandate to issue (pjw) Modified text on 6/12/2014 (pjw). (Entered: 06/12/2014)
55 LETTER from Supreme Court of the United States that a petition for writ of certiorari was filed by plaintiff Michigan Catholic Conference on 12/12/2014 and assigned case number 14-701 re Notice of Interlocutory Appeal 42 (pjw) (Entered: 12/19/2014)
56 ORDER dismissing 22 motion to dismiss or in the alternative for summary judgment; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 01/06/2015)
57 LETTER from Supreme Court of the United States that the petition for writ of certiorari is granted re Notice of Interlocutory Appeal 42 ; the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit for further consideration; mandate or judgment to issue (pjw); Modified text on 4/28/2015 and 6/2/2015 (pjw); modified text on 5/11/2015 (cmi) (Entered: 04/28/2015)

05/29/2015 06/09/2015 06/29/2015
08/21/2015
09/16/2015 09/25/2015 03/14/2016 05/26/2016 06/24/2016

58 SUPREME COURT JUDGMENT re appeal 42 ; the judgment is vacated, and the case is remanded to the United States Court of Appeals for the Sixth Circuit for further consideration (pjw) (Entered: 06/02/2015)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Julie Saltman on behalf of defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury (Saltman, Julie) (Entered: 06/09/2015)
59 LETTER FROM CCA regarding appeal 42 indicating that supplemental briefs are to be filed addressing what impact the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., and any relevant circuit court decisions published after Hobby Lobby, might have on this case by 5:00 pm on July 13 (pjw) (Entered: 06/29/2015)
60 SLIP OPINION of USCA re appeal 42 and JUDGMENT filed: This court's prior opinion, Michigan Catholic Conference & Catholic Family Services v. Burwell, 755 F.3d 372 (6th Cir. 2014), is reissued and reaffirmed, with respect to all issues raised by Plaintiffs; the judgments of the district courts denying preliminary injunctive relief to Plaintiffs on all of their claims are affirmed; mandate to issue (jlg) (Entered: 08/21/2015)
61 MOTION to withdraw as attorney by plaintiffs Catholic Family Services, Michigan Catholic Conference; (Kilmartin, Alison) (Entered: 09/16/2015)
62 ORDER granting 61 motion to withdraw as attorney; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt) (Entered: 09/25/2015)
63 LETTER from Supreme Court of the United States that a petition for writ of certiorari was filed by defendants on March 9,2016 and assigned case number 15-1131 re Notice of Interlocutory Appeal 42 (pjw) (Entered: 03/15/2016)
64 SLIP OPINION of the U.S. Supreme Court re appeal 42 ; this judgment is vacated and the case is remanded to the Sixth Circuit Court of Appeals; judgment or mandate of the Court will not issue for at least twenty-five days pursuant to Rule 45 (pjw) (Entered: 05/27/2016)
65 SUPREME COURT JUDGMENT re appeal 42 The judgment of the above court in this cause is vacated, and the case is remanded to

07/26/2016 01/13/2017 10/19/2017
10/23/2017 11/02/2017

the United States Court of Appeals for the Sixth Circuit in light of Zubik v. Burwell, 578 U. S. ___ (2016). (pjw) (Entered: 06/28/2016)
66 LETTER FROM CCA regarding appeal 42 ; ruling letter sent to require appellees and appellants to file status report; Status report due 09/28/2016 (pjw) Modified text on 7/28/2016 (pjw). (Entered: 07/28/2016)
67 ORDER of USCA (certified copy) re appeal 42 granting motion to withdraw as counsel ; no mandate to issue (clw) (Entered: 01/13/2017)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Michelle Bennett on behalf of defendants Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health & Human Services, U.S. Department of Labor, U.S. Department of Treasury (Bennett, Michelle) (Entered: 10/19/2017)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Conor Brendan Dugan on behalf of plaintiff Catholic Family Services (Dugan, Conor) (Entered: 10/23/2017)
68 JOINT STIPULATION of dismissal per Rule 41(a)(1)(A)(ii) by plaintiffs Catholic Family Services, Michigan Catholic Conference (Kairis, Matthew) Modified text on 11/3/2017 (pjw). (Entered: 11/02/2017)

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