Case 1:12-cv-01169 Document 1 Filed 07/18/12 Page 1 of 32

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHEATON COLLEGE

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501 College Avenue

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Wheaton, IL 60187-5593,

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Plaintiff,

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v.

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KATHLEEN SEBELIUS, Secretary

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of the United States Department of

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Health and Human Services, UNITED )

STATES DEPARTMENT

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OF HEALTH AND HUMAN

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SERVICES, HILDA SOLIS, Secretary of )

the United States Department of Labor, )

UNITED STATES DEPARTMENT OF )

LABOR, TIMOTHY GEITHNER,

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Secretary of the United States Department )

of the Treasury, and UNITED STATES )

DEPARTMENT OF THE TREASURY, )

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Defendants.

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____________________________________)

Civ. Action No. ___________ COMPLAINT Jury demanded

Eric N. Kniffin (DC Bar No. 999473) S. Kyle Duncan (LA Bar No. 25038) (pro hac vice application to be filed) Mark Rienzi (DC Bar No. 494336) Lori Halstead Windham (DC Bar No. 501838) The Becket Fund for Religious Liberty 3000 K St. NW Suite 220 Washington, DC 20007 (202) 955-0095 (202) 955-0090 ekniffin@becketfund.org
Counsel for Plaintiff

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Comes now Plaintiff Wheaton College, by and through its attorneys, and states as follows:
NATURE OF THE ACTION 1. This is a challenge to regulations issued under the 2010 “Affordable Care Act” that force thousands of religious organizations to violate their deepest religious beliefs. 2. Plaintiff Wheaton College (“Wheaton” or “the College”) is a Christian liberal arts college located in Wheaton, Illinois. Wheaton’s religious beliefs forbid it from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion. Wheaton is among the many American religious organizations that hold these beliefs. 3. With full knowledge of these beliefs, the government issued an administrative rule (“the Mandate”) that runs roughshod over Wheaton’s religious beliefs, and the beliefs of millions of other Americans, by forcing it to provide health insurance coverage for abortifacient drugs and related education and counseling. 4. The government’s Mandate unconstitutionally coerces Wheaton to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces Wheaton to facilitate government-dictated speech that is incompatible with its own speech and religious teachings. Having to pay a penalty to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional. 5. The government’s refusal to accommodate conscience is also highly selective. The government obviously does not believe every single insurance plan in the country needs to cover these services. Rather, the government has provided thousands of exemptions from the Affordable Care Act for other groups, including large corporations, often for reasons of
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commercial convenience. And the government allows a variety of other reasons—from the age of the plan to the size of the employer—to qualify a plan for an exemption. But the government refuses to give the same level of accommodation to groups exercising their fundamental First Amendment freedoms.
6. Defendants’ actions therefore violate Wheaton’s right to freedom of religion, as secured by the First Amendment of the United States Constitution and the Religious Freedom Restoration Act (“RFRA”).
7. Defendants’ actions also violate Wheaton’s right to the freedom of speech, as secured by the First Amendment of the United States Constitution.
8. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
9. Had Wheaton’s religious beliefs been obscure or unknown, the government’s actions might have been an accident. But because the government acted with full knowledge of those beliefs, and because it allows plans not to cover these services for a wide range of reasons other than religion, the Mandate can be interpreted as nothing other than a deliberate attack by the government on the religious beliefs of Wheaton and millions of other Americans. Wheaton seeks declaratory and injunctive relief to protect against this attack.
JURISDICTION AND VENUE 10. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to
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render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1.
11. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). A substantial part of the events or omissions giving rise to the claim occurred in this district, and Defendants are all located in this district.
IDENTIFICATION OF PARTIES 12. Plaintiff Wheaton College is a liberal arts college in Wheaton, Illinois. Founded in 1860 by abolitionist Jonathan Blanchard, the College’s mission is “to help build the church and improve society worldwide by promoting the development of whole and effective Christians through excellence in programs of Christian higher education.” 13. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 14. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Sebelius is sued in her official capacity only. 15. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration and enforcement of the Mandate. 16. Defendant Hilda Solis is the Secretary of the United States Department of Labor. In this capacity, she has responsibility for the operation and management of the Department of Labor. Solis is sued in her official capacity only. 17. Defendant Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
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18. Defendant Timothy Geithner is the Secretary of the Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department. Geithner is sued in his official capacity only.
19. Defendant Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the Mandate.
FACTUAL ALLEGATIONS I. Wheaton’s Religious Beliefs and Practices Related to Insurance for Abortion.
20. Wheaton College is a liberal arts college located in Wheaton, Illinois. It was founded in 1860 by abolitionist Jonathan Blanchard.
21. Today, Wheaton College “is an institution of higher learning, a rigorous academic community that takes seriously the life of the mind.” See http://www.wheaton.edu/AboutWheaton/Community-Covenant. Wheaton offers 59 undergraduate degree programs and 22 graduate degree programs, including five doctoral programs.
22. Faith is central to the education mission of Wheaton College. The College aspires “to live, work, serve, and worship together as an educational community centered around the Lord Jesus Christ.” Wheaton College, Community Covenant, http://www.wheaton.edu/aboutwheaton/community-covenant.
23. Wheaton College’s purpose is expressed in its mission statement: “Wheaton College exists to help build the church and improve society worldwide by promoting the development of whole and effective Christians through excellence in programs of Christian higher education.”
24. Wheaton College’s motto is “For Christ and His Kingdom.”
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25. In order to further its mission, Wheaton has a longstanding conviction that appropriate “institutional standards” help to “foster the kind of campus atmosphere most conductive to becoming the Christian community of living, learning, and serving that Wheaton College aspires to be.”
26. Each year, all Wheaton College students and full-time employees commit themselves to this community by signing Wheaton College’s Community Covenant.
27. In addition to signing the Community Covenant, Wheaton requires its Board of Trustees, faculty, and staff to annually reaffirm the College’s doctrinal statement, which provides a summary of biblical doctrine that is consonant with Evangelical Christianity. See http://www.wheaton.edu/About-Wheaton/Statement-of-Faith-and-Educational-Purpose.
28. Wheaton College’s Community Covenant recognizes that Scripture condemns the taking of innocent life. (Wheaton College, Community Covenant, http://www.wheaton.edu/aboutwheaton/community-covenant.)
29. Wheaton College holds religious beliefs that include traditional Christian teachings on the sanctity of life. Wheaton believes and teaches that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Wheaton College therefore believes and teaches that abortion ends a human life and is a sin.
30. Wheaton College is registered as a tax-exempt organization under 26 U.S.C. § 501(c)(3). 31. Wheaton College is not a church, an integrated auxiliary of a church, or a convention or association of churches as defined by 26 U.S.C. § 6033(a)(3)(A)(i). 32. Wheaton College is not a religious order as defined by 26 U.S.C. § 6033(a)(3)(A)(iii).
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33. Wheaton College is not a church or a convention or association of churches as defined by 26 U.S.C. § 414(e).
34. Wheaton College has about 2,400 undergraduate and 600 graduate students. 35. Wheaton has about 709 full-time and 161 part-time employees as of June 30, 2012. 36. As part of its religious convictions, Wheaton College promotes the well-being and health of its employees. This includes provision of generous health services and health insurance for its employees. 37. Wheaton College’s religious beliefs prohibit it from deliberately providing insurance coverage for drugs, procedures, or services inconsistent with its faith, in particular abortioninducing drugs, abortion procedures, and related services. 38. It is similarly a violation of Wheaton College’s religious beliefs to deliberately provide health insurance that would facilitate access to abortion-causing drugs, abortion procedures, and related services, even if those items were paid for by an insurer or a plan administrator and not by Wheaton College. 39. Wheaton College has no conscientious objection to providing coverage for non-abortioncausing contraceptive drugs and devices. 40. Wheaton College has expended significant resources working with its insurers and plan administrators to ensure that its health insurance policies reflect the College’s religious beliefs. 41. On September 27, 2011, Wheaton College submitted public comments on the Interim Final Rule on Preventative Services published on August 3, 2011 (76 Fed. Reg. 46621).1
1 Letter from President Philip G. Ryken, President, Wheaton College, to IRS Commissioner Douglas H. Shulman (Sept. 27, 2011), available at http://www.regulations.gov/#!documentDetail;D=IRS-2010-0017-0975.
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Wheaton’s comments expressed its concern that the interim final rule failed to recognize it as a religious employer and that the rule violates the College’s rights of conscience.
42. On June 19, 2012, Wheaton College submitted public comments on the Advance Notice of Proposed Rulemaking on Preventative Services published on March 21, 2012 (77 Fed. Reg. 16501). Wheaton’s comments reiterated its concerns about the interim final rule, particularly the Defendants’ refusal to provide it and similar religious employers with the same exemption afforded to churches.
43. The plan year for Wheaton College’s employee insurance plans begins on January 1 of each year.
44. Wheaton College made certain changes to its employee insurance plans effective April 1, 2012, that render Wheaton healthcare plans ineligible for grandfathered status. See 45 C.F.R. § 147.140(a)(1)(i), 26 C.F.R. § 54.9815-1251T(a)(1)(i); 29 C.F.R. § 2590.715-1251(a)(1)(i). In particular, Wheaton removed coverage for prescription drugs from two of its employee insurance plans and created new drug benefit plans for employees. None of these plans are grandfathered. II. The Affordable Care Act
45. In March 2010, Congress passed, and President Obama signed into law, the Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the “Affordable Care Act.”
46. The Affordable Care Act regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
47. The Act does not apply equally to all plans.
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48. The Act does not apply equally to all insurers. 49. The Act does not apply equally to all individuals. 50. The Act applies differently to employers with fewer than 50 employees, not counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A). 51. According to the United States census, more than 20 million individual workers are employed by firms with fewer than 20 employees. http://www.census.gov/econ/smallbus.html. Employers with less than 50 employees would therefore employ an even higher number of workers. 52. Certain provisions of the Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria). 53. The Act’s preventive care requirements do not apply to employers who provide so-called “grandfathered” health care plans. 54. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely. 55. HHS has predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of small employers with between 50 and 100 employees may do likewise. http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html.
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56. The Act is not generally applicable because it provides for numerous exemptions from its rules.
57. The Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not.
58. The Act creates a system of individualized exemptions. 59. The Department of Health and Human Services has the authority under the Act to grant compliance waivers to employers and other health insurance plan issuers (“HHS waivers”). 60. HHS waivers release employers and other plan issuers from complying with the provisions of the Act. 61. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers. 62. Upon information and belief, thousands of HHS waivers have been granted. 63. The Act is not neutral because some secular and religious groups have received statutory exceptions while other religious groups have not. 64. The Act is not neutral because some secular and religious groups have received HHS waivers while other religious groups have not. 65. The Act is not generally applicable because Defendants have granted numerous waivers from complying with its requirements. 66. The Act is not generally applicable because it does not apply equally to all individuals and plan issuers. 67. Defendants’ waiver practices create a system of individualized exemptions. III.The Preventive Care Mandate
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68. One of the provisions of the Affordable Care Act mandated that health plans “provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” and directed the Secretary of Health and Human Services to determine what would constitute “preventative care” under the mandate. 42 U.S.C § 300gg–13(a)(4).
69. On July 19, 2010, HHS, along with the Department of Treasury and the Department of Labor, published an interim final rule under the Affordable Care Act. 75 Fed. Reg. 41726 (2010).2 The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
70. The Mandate also requires group health care plans and issuers to provide education and counseling for all women beneficiaries with reproductive capacity.
71. The Mandate went into effect immediately as an “interim final rule.” 72. HHS accepted public comments to the 2010 interim final rule until September 17, 2010. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of health care, including contraception, sterilization, and abortion. 73. HHS directed a private health policy organization, the Institute of Medicine (“IOM”), to suggest a list of recommended guidelines describing which drugs, procedures, and services
2 For ease of reading, references to “HHS” in this Complaint are to all three Departments.
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should be covered by all health plans as preventive care for women. See http://www.hrsa.gov/womensguidelines.
74. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), Prof. John Santelli, a Senior Fellow at the Guttmacher Institute, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America and Prof. Sara Rosenbaum, a proponent of government-funded abortion.
75. No religious groups or other groups that oppose government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
76. One year after the first interim final rule was published, on July 19, 2011, the IOM published its recommendations. It recommended that the preventive services include “All Food and Drug Administration approved contraceptive methods [and] sterilization procedures.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
77. FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices and injections; levonorgestrel, also known as the “morning-after pill” or “Plan B”; and ulipristal, also known as “Ella” or the “week-after pill”; and other drugs, devices, and procedures.
78. Thirteen days later, on August 1, 2011, HRSA issued guidelines adopting the IOM recommendations. http://www.hrsa.gov/womensguidelines. On the same day HHS, the Department of Labor, and the Department of Treasury promulgated an amended interim final
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rule which reiterated the Mandate and added a narrow exemption for “religious employer[s].” 76 Fed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130.
79. HHS did not take into account the concerns of religious organizations in the comments submitted before the Mandate was issued.
80. Instead the Mandate was essentially unresponsive to the concerns stated in the comments submitted by religious organizations.
81. When it issued the Mandate, HHS requested comments from the public by September 30, 2011, and indicated that comments would be available online.
82. Upon information and belief, over 100,000 comments were submitted against the Mandate and its narrow “religious employer” exemption.
83. On October 5, 2011, six days after the comment period ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.” She did not state whom she and NARAL Pro-Choice America were warring against.
84. The Mandate fails to take into account the statutory and constitutional conscience rights of religious organizations like Wheaton, even though those rights were repeatedly raised in the public comments.
85. The Mandate requires that Wheaton provide coverage or access to coverage for abortion and related education and counseling against its conscience in a manner that is contrary to law.
86. The Mandate constitutes government-imposed pressure and coercion on Wheaton to change or violate its religious beliefs.
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87. The Mandate exposes Wheaton to substantial fines for refusal to change or violate its religious beliefs.
88. The Mandate imposes a burden on Wheaton’s employee recruitment efforts by creating uncertainty as to whether Wheaton will be able to offer health insurance beyond 2012.
89. The Mandate places Wheaton at a competitive disadvantage in its efforts to recruit and retain employees.
90. The Mandate forces Wheaton to provide coverage or access to coverage for abortioncausing drugs, including Plan B and Ella, in violation of Wheaton’s religious beliefs.
91. Wheaton has a sincere religious objection to providing coverage for Plan B and Ella since it believes those drugs could prevent a human embryo—which it understands to include a fertilized egg before it implants in the uterus—from implanting in the wall of the uterus, causing the death of the embryo.
92. Wheaton considers the prevention by artificial means of the implantation of a human embryo to be an abortion.
93. Wheaton believes that Plan B and Ella can cause the death of the embryo. 94. Plan B can prevent the implantation of a human embryo in the wall of the uterus. 95. The drug Ella can prevent the implantation of a human embryo in the wall of the uterus. 96. Plan B and Ella can cause the death of the embryo. 97. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus constitutes an “abortion” as that term is used in federal law. 98. The use of artificial means to cause the death of a human embryo constitutes an “abortion” as that term is used in federal law.
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99. The Mandate forces Wheaton to provide insurance coverage or access to insurance coverage for abortion-causing drugs, including Plan B and Ella, regardless of the ability of insured persons to obtain these drugs from other sources.
100. The Mandate forces Wheaton to provide insurance coverage or access to insurance coverage for education and counseling concerning abortion that directly conflicts with Wheaton’s religious beliefs and teachings.
101. Providing this counseling and education is incompatible and irreconcilable with Wheaton’s express messages and speech.
102. The Mandate forces Wheaton to choose among violating its religious beliefs, incurring substantial fines, or terminating its employee health insurance coverage.
103. Group health plans and issuers will be subject to the Mandate starting with the first insurance plan year that begins on or after August 1, 2012.
104. Wheaton has already had to devote significant institutional resources, including both staff time and funds, to determining how to respond to the Mandate. Wheaton anticipates continuing to make such expenditures of time and money up until the time that the Mandate goes into effect. IV. The Narrow and Discretionary Religious Exemption
105. The Mandate indicates that that the Health Resources and Services Administration (“HRSA”) “may” grant religious exemptions to certain religious employers. 45 C.F.R. § 147.130(a)(iv)(A).
106. The Mandate allows HRSA to grant exemptions for “religious employers” who “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the
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organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(iv)(B).
107. The Mandate imposes no constraint on HRSA’s discretion to grant exemptions to some, all, or none of the organizations meeting the Mandate’s definition of “religious employers.”
108. HHS stated that it based the exemption on comments on the 2010 interim final rule. 76 Fed. Reg. 46621.
109. Most religious organizations, including Wheaton, have more than one purpose. 110. For most religious organizations, including Wheaton, the inculcation of religious values is only one purpose among others. 111. On January 20, 2012, Defendant Sebelius announced that there would be no change to the “religious employer” exemption. Instead, she added that “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law,” on the condition that those employers certify they qualify for the extension. At the same time, however, Sebelius announced that HHS “intend[s] to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.” See Statement by U.S. Dep’t of Health and Human Services Secretary
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Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited July 16, 2012).
112. On February 10, 2012, President Obama held a press conference at which he announced an intention to initiate, at some unspecified future date, a separate rulemaking process that would work toward creating a different insurer-based mandate. This promised mandate would, the President stated, attempt to take into account the kinds of religious objections voiced against the original Mandate contained in the interim final rule.
113. On that same day—February 10, 2012—the Defendants issued a “guidance bulletin” describing a “Temporary Enforcement Safe Harbor” (“Safe Harbor”) from the Mandate. The Safe Harbor applies to “non-exempted, non-grandfathered group health plans established and maintained by non-profit organizations with religious objections to contraceptive coverage (and any health insurance coverage offered in connection with such plans).” Under the Safe Harbor, the Defendants state that qualifying organizations will not be subject to enforcement of the Mandate “until the first plan year that begins on or after August 1, 2013,” provided they meet certain criteria outlined in the guidance bulletin.3
114. Those Safe Harbor criteria require an organization to self-certify that (1) it operates as a non-profit; (2) it has not, from February 10, 2012 onward, offered “contraceptive coverage . . .
3 See “Guidance on Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code,” U.S. DEP’T OF HEALTH & HUMAN SERVS. (Feb. 10, 2012), at 3, available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last visited July 16, 2012).
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by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization”; and (3) it has provided (for the first plan year beginning on or after August 1, 2012) a notice to plan participants stating that “[t]he organization that sponsors your groups health plan has certified that it qualifies for a temporary enforcement safe harbor with respect to the Federal requirement to cover contraceptive services without cost sharing,” and that “[d]uring this one-year period, coverage under your group health plan will not include coverage of contraceptive services.”
115. On February 15, 2012, the Defendants adopted as final, “without change,” the Mandate and its narrow “religious employers” exemption. 77 Fed. Reg. 8725, 8727.
116. On March 16, 2012, the Defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”). The ANPRM announced the Defendants’ intention to create an “accommodation” for non-exempt religious organizations under which the Defendants would require a health insurance issuer (or third party administrator) to provide coverage for these drugs and services— without cost sharing and without charge—to employees covered under the organization’s health plan. The ANPRM solicited public comments on structuring the proposed accommodation, and announced the Defendants’ intention to finalize an accommodation by the end of the Safe Harbor period. See https://s3.amazonaws.com/public-inspection.federalregister.gov/2012-06689.pdf (published on March 21, 2012).
117. The ANPRM did not announce any intention to alter the Mandate or its narrow “religious employer” exemption, which was made “final, without change” on February 15, 2012.
118. In sum, the Mandate takes effect against Wheaton’s employee insurance plans on January 1, 2013.
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119. To qualify for the one-year non-enforcement period, Wheaton would be required to satisfy the Safe Harbor notice requirements outlined in the guidance bulletin by January 1, 2013.
120. Wheaton’s employee insurance plans, however, are ineligible for the Safe Harbor, because they currently provide coverage for certain contraceptives and inadvertently provided coverage for a short period after February 10, 2012 for other now-excluded contraceptives, making it impossible for Wheaton to make the required Safe Harbor certification.
CLAIMS COUNT I Violation of the Religious Freedom Restoration Act Substantial Burden 121. Wheaton incorporates by reference all preceding paragraphs. 122. Wheaton’s sincerely held religious beliefs prohibit it from providing coverage or access to coverage for abortion or related education and counseling. Wheaton’s compliance with these beliefs is a religious exercise. 123. The Mandate creates government-imposed coercive pressure on Wheaton to change or violate its religious beliefs. 124. The Mandate chills Wheaton’s religious exercise. 125. The Mandate exposes Wheaton to substantial fines for its religious exercise. 126. The Mandate exposes Wheaton to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 127. The Mandate imposes a substantial burden on Wheaton’s religious exercise. 128. The Mandate furthers no compelling governmental interest. 129. The Mandate is not narrowly tailored to any compelling governmental interest.
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130. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 131. The Mandate and Defendants’ threatened enforcement of the Mandate violate Wheaton’s rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. 132. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Substantial Burden 133. Wheaton incorporates by reference all preceding paragraphs. 134. Wheaton’s sincerely held religious beliefs prohibit it from providing coverage or access to coverage for abortion or related education and counseling. Wheaton’s compliance with these beliefs is a religious exercise. 135. Neither the Affordable Care Act nor the Mandate is neutral. 136. Neither the Affordable Care Act nor the Mandate is generally applicable. 137. Defendants have created categorical exemptions and individualized exemptions to the Mandate. 138. The Mandate furthers no compelling governmental interest. 139. The Mandate is not the least restrictive means of furthering Defendants’ stated interests. 140. The Mandate creates government-imposed coercive pressure on Wheaton to change or violate its religious beliefs. 141. The Mandate chills Wheaton’s religious exercise.
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142. The Mandate exposes Wheaton to substantial fines for its religious exercise. 143. The Mandate exposes Wheaton to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 144. The Mandate imposes a substantial burden on Wheaton’s religious exercise. 145. The Mandate is not narrowly tailored to any compelling governmental interest. 146. The Mandate and Defendants’ threatened enforcement of the Mandate violate Wheaton’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 147. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 148. Wheaton incorporates by reference all preceding paragraphs. 149. Wheaton’s sincerely held religious beliefs prohibit it from providing coverage or access to coverage for abortion or related education and counseling. Wheaton’s compliance with these beliefs is a religious exercise. 150. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Wheaton to comply with both its religious beliefs and the Mandate. 151. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of Wheaton and others.
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152. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate the Wheaton’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
153. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise Clause Discrimination Among Religions 154. Wheaton incorporates by reference all preceding paragraphs. 155. By design, Defendants imposed the Mandate on some religious organizations but not on others, resulting in discrimination among religions. 156. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.” 157. The Mandate and Defendants’ threatened enforcement of the Mandate thus violate Wheaton’s rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution. 158. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
COUNT V Violation of the First Amendment to the United States Constitution
Establishment Clause Selective Burden/Denominational Preference (Larson v. Valente) 159. Wheaton incorporates by reference all preceding paragraphs.
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160. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on Wheaton.
161. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of “religious employers.”
162. The Mandate and Defendants’ threatened enforcement of the Mandate therefore violate Wheaton’s rights secured to it by the Establishment Clause of the First Amendment of the United States Constitution.
163. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
COUNT VI Violation of the First Amendment to the United States Constitution
Free Exercise and Establishment Clauses Excessive Entanglement
164. Wheaton incorporates by reference all preceding paragraphs. 165. The Free Exercise Clause and the Establishment Clause of the First Amendment prohibit intrusive government inquiries into the religious beliefs of individuals and institutions, and other forms of excessive entanglement between religion and government. 166. This prohibition on excessive entanglement protects organizations as well as individuals. 167. In order to qualify for the “religious employers” exemption to the Mandate, entities must submit to an invasive government investigation into an organization’s religious beliefs, including whether the organization’s “purpose” is the “inculcation of religious values” and
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whether the organization “primarily employs” and “primarily serves” individuals who share the organization’s religious tenets.
168. It is unclear how the government will determine whether an organization meets the Mandate’s definition of a sufficiently “religious” organization, leading to the government’s unbridled discretion to determine whether to exempt an organization.
169. The Mandate thus requires the government to engage in invasive inquiries and judgments regarding questions of religious belief or practice.
170. The Mandate results in an excessive entanglement between religion and government. 171. The Mandate is therefore unconstitutional and invalid. 172. The enactment and impending enforcement of the Mandate violates the Free Exercise Clause and the Establishment Clause of the First Amendment. 173. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
COUNT VII Violation of the First Amendment to the United States Constitution
Free Exercise and Establishment Clauses Excessive Interference in Matters of Internal Governance 174. Wheaton incorporates by reference all preceding paragraphs. 175. The Free Exercise Clause and Establishment Clause 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. 176. Under these Clauses, the government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine.
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177. 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.
178. Wheaton is a religious organization. 179. It is a violation of Wheaton’s religious beliefs to deliberately provide insurance coverage for drugs, devices, services, or procedures inconsistent with its faith, in particular abortion-inducing drugs, abortion procedures, and related services. Likewise, it is a violation of Wheaton’s religious beliefs to provide health insurance for such drugs, procedures, or services even if those items were paid for by an insurer or a plan administrator and not by Wheaton. 180. The government may not interfere with Wheaton’s religious beliefs on abortioninducing drugs, abortion procedures, and related services. 181. The Mandate interferes with Wheaton’s internal decisions by requiring it either to facilitate practices that directly conflict with its religious beliefs or face substantial penalties. 182. The Mandate and its religious employer exemption interfere with the organizational structure of Wheaton by requiring Wheaton to include or facilitate coverage for practices that directly conflict with its religious beliefs but purporting to exempt churches. 183. Because the Mandate interferes with the internal decisionmaking and organizational structure of Wheaton in a manner that affects its faith and mission, the Mandate violates the Establishment Clause and the Free Exercise Clause of the First Amendment.
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COUNT VIII Violation of the First Amendment to the United States Constitution
Freedom of Speech Compelled Speech 184. Wheaton incorporates by reference all preceding paragraphs. 185. Wheaton teaches that abortion violates its religious beliefs. 186. The Mandate would compel Wheaton to cooperate in activities through its provision of health insurance that Wheaton teaches are violations of Wheaton’s religious beliefs. 187. The Mandate would compel Wheaton to provide education and counseling related to abortion. 188. Defendants’ actions thus violate Wheaton’s right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 189. The Mandate’s compelled speech requirement is not narrowly tailored to a compelling governmental interest. 190. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
COUNT IX Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 191. Wheaton incorporates by reference all preceding paragraphs. 192. Wheaton teaches that abortion violates its religious beliefs. 193. The Mandate would compel Wheaton to cooperate in activities through its provision of health insurance that Wheaton teach are violations of Wheaton’s religious beliefs.
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194. The Mandate would compel Wheaton to provide, through its provision of health insurance, education and counseling related to abortion.
195. Defendants’ actions thus violate Wheaton’s right of expressive association as secured to it by the First Amendment of the United States Constitution.
196. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
COUNT X Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
197. Wheaton incorporates by reference all preceding paragraphs. 198. By stating that HRSA “may” grant an exemption to certain religious groups, the Mandate vests HRSA with unbridled discretion over which organizations can have its First Amendment interests accommodated. 199. The Mandate vests HRSA with unbridled discretion to determine whether a religious organization such as Wheaton “primarily” serves and employs members of the same faith as the organization. 200. Defendants’ actions therefore violate Wheaton’s right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution. 201. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
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COUNT XI Violation of the Administrative Procedure Act
Lack of Good Cause 202. Wheaton incorporates by reference all preceding paragraphs. 203. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute “good cause.” 204. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful “consideration of the relevant matter presented.” Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 205. Therefore, Defendants have taken agency action not in observance with procedures required by law, and Wheaton are entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 206. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 207. Wheaton incorporates by reference all preceding paragraphs. 208. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Wheaton and similar organizations. 209. Defendants’ explanation for its decision not to exempt Wheaton and similar religious organizations from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
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210. Thus, Defendants’ issuance of the interim final rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of its implications and they do not take into consideration the evidence against them.
211. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
COUNT XIII Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 212. Wheaton incorporates by reference all preceding paragraphs. 213. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008). 214. The Weldon Amendment provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” 215. The Mandate requires issuers, including Wheaton, to provide coverage or access to coverage of all FDA-approved “contraceptives.” 216. Some FDA-approved “contraceptives” cause abortions.
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217. As set forth above, the Mandate violates RFRA and the First Amendment. 218. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA. 219. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
COUNT XIV Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Affordable Care Act
220. Wheaton incorporates by reference all preceding paragraphs. 221. The Mandate is contrary to the provisions of the Affordable Care Act. 222. Section 1303(b)(1)(A) of the Affordable Care Act states that “nothing in this title”— i.e., title I of the Act, which includes the provision dealing with “preventive services”—“shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 223. Section 1303 further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services. 224. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does. 225. The Mandate requires issuers, including Wheaton, to provide coverage or access to coverage for all Federal Drug Administration-approved contraceptives. 226. Some FDA-approved contraceptives cause abortions.
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227. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the APA.
228. Absent injunctive and declaratory relief against the Mandate, Wheaton has been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Wheaton requests that the Court:
a. Declare that the Mandate and Defendants’ enforcement of the Mandate against Wheaton violate the First Amendment of the United States Constitution;
b. Declare that the Mandate and Defendants’ enforcement of the Mandate against Wheaton violate the Religious Freedom Restoration Act;
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
d. Issue an order prohibiting Defendants from enforcing the Mandate against Wheaton and other organizations that object on religious grounds to providing insurance coverage for contraceptives (including abortifacient contraceptives), sterilization procedures, and related education and counseling;
e. Award Wheaton the costs of this action and reasonable attorney’s fees; and f. Award such other and further relief as it deems equitable and just. Respectfully submitted this 18th day of July, 2012.
JURY DEMAND Wheaton requests a trial by jury on all issues so triable.
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s/ Eric N. Kniffin Eric N. Kniffin (DC Bar No. 999473) S. Kyle Duncan (LA Bar No. 25038) (pro hac vice application to be filed) Mark Rienzi (DC Bar No. 494336) Lori Halstead Windham (DC Bar No. 501838) The Becket Fund for Religious Liberty 3000 K St. NW Suite 220 Washington, DC 20007 (202) 955-0095 (202) 955-0090 ekniffin@becketfund.org Counsel for Plaintiff
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 Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHEATON COLLEGE,

)

)

Plaintiff,

)

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of )

The United States Department of Health )

and Human Services, UNITED STATES )

DEPARTMENT OF HEALTH AND )

HUMAN SERVICES, HILDA SOLIS, )

Secretary of the United States

)

Department of Labor, UNITED

)

STATES DEPARTMENT OF LABOR, )

TIMOTHY GEITHNER, Secretary of )

the United States Department of the

)

Treasury, and UNITED STATES

)

DEPARTMENT OF THE

)

TREASURY,

)

Defendants.

)

)

Case No. 1:12-cv-01169

MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 2 of 50
TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION .......................................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................................... 2
I. MANDATE TIMELINE ..................................................................................................... 2 A. Promulgation of the mandate and the “religious employer” exemption ........................ 2 B. The safe harbor............................................................................................................... 3 C. The Advance Noticed of Proposed Rulemaking............................................................ 5
II. WHEATON COLLEGE ...................................................................................................... 6 III. PROCEDURAL HISTORY .............................................................................................. 11 ARGUMENT ................................................................................................................................ 11 I. WHEATON IS LIKELY TO SUCCEED ON THE MERITS. ......................................... 11
A. The mandate violates the Religious Freedom Restoration Act. ................................... 11 1. Wheaton’s abstention from providing abortion-inducing drugs in employee coverage qualifies as “religious exercise” under RFRA. .................... 12 2. The mandate substantially burdens Wheaton’s religious exercise. ..................... 13 3. The mandate cannot satisfy strict scrutiny........................................................... 18 a. Defendants cannot identify a compelling interest. ........................................ 18 b. Alternatively, the mandate does not further Defendants’ stated interests. ......................................................................................................... 24 c. Alternatively, Defendants cannot show the mandate is the least restrictive means of furthering their interests. ............................................... 24
B. The mandate violates the Free Exercise Clause. .......................................................... 29 1. The mandate is not neutral................................................................................... 29 2. The mandate is not generally applicable. ............................................................ 31
C. The mandate violates the Free Speech Clause. ............................................................ 34
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1. The First Amendment forbids the government from forcing private speakers to speak government-dictated messages with which they disagree. ............................................................................................................... 35
2. The mandate violates the Free Speech Clause because it forces Wheaton to engage in government-dictated speech with which it disagrees...................... 36
II. WHEATON WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF PRELIMINARY RELIEF. ................................................................................................ 37
III. THE BALANCE OF EQUITIES TIPS IN WHEATON’S FAVOR................................. 39 IV. AN INJUNCTION IS IN THE PUBLIC INTEREST. ...................................................... 40 CONCLUSION............................................................................................................................. 40 CERTIFICATE OF SERVICE ..................................................................................................... 42
EXHIBITS Newland v. Sebelius, No. 12-1123 (D. Colo. July 27, 2012)..........................................................A Declaration of President Philip G. Ryken.......................................................................................B Declaration of Provost Stanton L. Jones.........................................................................................C Declaration of Assistant Director of Human Resources Heidi Daniels ..........................................D Declaration of Linda Cotten............................................................................................................ E Declaration of Tony Dawson .......................................................................................................... F
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TABLE OF AUTHORITIES Cases Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977)........................................................................ 36 Am. Family Assn, Inc. v. F.C.C., 365 F.3d 1156 (D.C. Cir. 2004) ............................................... 31 Archdiocese of St. Louis v. Sebelius, No. 12-92 (E.D. Mo. May 21, 2012) ................................... 4 Ashcroft v. ACLU, 542 U.S. 656 (2004) ................................................................................. 12, 18 Ave Maria Univ. v. Sebelius, Case No. 12-88 (M.D. Fla. Feb. 21, 2012) ...................................... 4 Belmont Abbey College v. Sebelius, No. 11-1989 (D.D.C. Nov. 10, 2011) ............................... 4, 9 Benning v. Georgia, __ F. Supp. 2d __, 2012 WL 113724 (M.D. Ga. Jan. 13, 2012) ................. 28 Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004) ..................................................... 31, 34 Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729 (2011) ......................................................... 22, 23 Cal. Democratic Party v. Jones, 530 U.S. 567 (2000) ................................................................. 18 Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021 (9th
Cir. 2009) .......................................................................................................................... 32 Catholic Diocese of Dallas v. Sebelius, No. 12-158 (N.D. Tex. May 21, 2012)............................ 4 Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006)....................... 39 Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)......................... passim City of Boerne v. Flores, 521 U.S. 507 (1997) ....................................................................... 12, 18 CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 (D.C. Cir. 1995) ...................... 37 Colo. Christian Univ. v. Sebelius, No. 11-3350 (D. Colo. Dec. 22, 2011)..................................... 4 Conlon et al. v. Sebelius, No. 12-393 (N.D. Ill. May 21, 2012) ..................................................... 4 Consol. Edison Co. of N.Y. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530 (1980) ........................ 19 Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288 (D.C. Cir. 2009)...................................... 11 Diocese of Fort Wayne-South Bend Inc. v. Sebelius, No. 12-15 (N.D. Ind. May 21, 2012) .......... 4 Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................ 38 Employment Division v. Smith, 494 U.S. 872 (1990) ............................................................ passim
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Eternal Word Television Network, Inc. v. Sebelius, No. 12-501 (N.D. Ala. Feb. 9, 2012)............ 4 Franciscan Univ. of Steubenville v. Sebelius, No. 12-44 (S.D. Ohio May 21, 2012) .................... 4 Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir.
1999) ................................................................................................................................. 31 Geneva Coll. v. Sebelius, No. 12-207 (W.D. Pa. Feb. 21, 2012).................................................... 4 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ........... passim Grutter v. Bollinger, 539 U.S. 306 (2003).................................................................................... 27 Hayes v. N. State Law Enforcement Officers Assn, 10 F.3d 207 (4th Cir. 1993) ......................... 27 Henderson v. Kennedy, 265 F.3d 1072 (D.C. Cir. 2001) ............................................................. 12 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694
(2012) ................................................................................................................................ 15 Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557 (1995).................. 35 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) .............................................................................. 38 Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ....................................................... passim Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) .................................................................... 38 La. Coll. v. Sebelius, Case No. 12-463 (W.D. La. Feb. 18, 2012).................................................. 4 Legatus v. Sebelius, No. 12-120 (E.D. Mich. May 6, 2012)........................................................... 4 Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002) ................................................................... 12 Mahoney v. District of Columbia, 662 F. Supp.2d 74 (D.D.C. 2009) ........................ 11, 12, 13, 31 Mitchell Cnty. v. Zimmerman, 810 N.W.2d 1 (Iowa 2012) .......................................................... 32 Mylan Pharm., Inc. v. Sebelius, __ F. Supp.2d. __, 2012 WL 1388256 (D.D.C. Apr. 23,
2012) ........................................................................................................................... 11, 39 NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979) ........................................................ 30 Nat’l Treasuries Employees Union v. United States, 927 F.2d 1253 (D.C. Cir. 1991) ................ 38 Nebraska v. HHS, No. 12-476 (D. Neb. Feb. 23, 2012) ................................................................. 4 Newland v. Sebelius, No. 12-1123 (D. Colo. July 27, 2012)................................................. passim
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O Centro Espirita Beneficiente Uniao do V egetal v. Ashcroft, 389 F .3d 973 (10th Cir. 2004) ................................................................................................................................. 40
O’Brien v. HHS, No. 12-476 (E.D. Mo. Mar. 15 2012) ................................................................. 4 Priests for Life v. Sebelius, No. 12-753 (E.D.N.Y. Feb. 15, 2012) ................................................ 4 Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996)........................................................... 29, 32 Reverend David A. Zubik, Bishop of the Roman Catholic Diocese of Pittsburgh et al. v.
Sebelius, W.D. Pa. May 21, 2012) ...................................................................................... 4 Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S. 781 (1988) .............................................. 35 Roman Catholic Archbishop of Washington v. Sebelius, No. 12-81 (D.D.C. May 21,
2012) ................................................................................................................................... 4 Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12-254 (E.D.N.Y. May 21, 2012) ............. 4 Roman Catholic Diocese of Fort Worth v. Sebelius, No. 12-31 (N.D. Tex. May 21, 2012).......... 4 Sampson v. Murray, 415 U.S. 61 (1974) ...................................................................................... 37 Sherbert v. Verner, 374 U.S. 398 (1963) .................................................................... 11, 13, 15, 24 Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011)...................................................................... 39 The Catholic Diocese of Biloxi, Inc. et al. v. Sebelius, No. 12-15 (S.D. Miss. May 21,
2012) ................................................................................................................................... 4 Thomas v. Collins, 323 U.S. 516 (1945)....................................................................................... 18 Thomas v. Review Bd., 450 U.S. 707 (1981) .................................................................... 13, 15, 16 Trautman v. Sebelius, No. 12-12 (W.D. Pa. May 21, 2012)........................................................... 4 Turner Broad. Sys. Inc. v. FCC, 512 U.S. 624 (1994) ............................................... 19, 24, 36, 37 United States v. Playboy Ent’mt Group, Inc., 529 U.S. 803 (2000)....................................... 18, 27 United States v. United Foods, 533 U.S. 405 (2001) ............................................................. 36, 37 Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2001)................................................... 30 University of Notre Dame v. Sebelius, No. 12-25 (N. D. Ind. May 21, 2012) ............................... 4 W. Presbyterian Church v. Bd. of Zoning Adjustment of D.C.,
849 F. Supp. 77 (D.D.C. 1994) ......................................................................................... 38
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W.V. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ..................................................... 35, 37 Ward v. Polite, 667 F.3d 727 (6th Cir. 2012) ............................................................................... 33 West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).................................. 37 Wisc. Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) .............................................................. 38 Wisconsin v. Yoder, 406 U.S. 205 (1972)................................................................... 11, 13, 15, 16 Wooley v. Maynard, 430 U.S. 705 (1977) .................................................................................... 35 Statutes 26 U.S.C. § 1402..................................................................................................................... 30, 32 26 U.S.C. § 4980D .................................................................................................................... 9, 14 26 U.S.C. § 4980H ........................................................................................................ 9, 14, 20, 32 26 U.S.C. § 5000A ...................................................................................................... 16, 19, 30, 32 29 U.S.C. § 1132....................................................................................................................... 9, 14 42 U.S.C § 300gg–13............................................................................................................ 2, 3, 13 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 ......................... 2 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb ..................................................... passim Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc ............................... 12 Other Authorities Adam Sonfield and Rachel Benson Gold, Medicaid Family Planning Expansions:
Lessons Learned and Implications for the Future ............................................................ 26 Center for Consumer Information and Insurance Oversight and Centers for Medicare &
Medicaid Services, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers............. 5, 20 Department of Health and Human Services, Office of the Assistant Secretary of Health, Office of Population Affairs, Announcement of Anticipated Availability of Funds for Family Planning Services Grants ............................................................................... 25 Facts on Publicly Funded Contraceptive Services in the United States....................................... 26 FDA Birth Control Guide ............................................................................................................... 3
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Health Resources and Services Administration, Women’s Preventive Services: Required Health Plan Coverage Guidelines ................................................................................ 2, 36
January 20, 2012 Statement of HHS Secretary Kathleen Sebelius............................... 4, 22, 25, 32 Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered”
Health Plans ...................................................................................................................... 20 Rachel Benson Gold et al., Next Steps for America’s Family Planning Program:
Leveraging the Potential of Medicaid and T itle I in an E volving Health Care System ............................................................................................................................... 26 Susan A. Cohen, The Numbers Tell the Story: The Reach and Impact of Title X ....................... 27 U.S. Const., amend. I ............................................................................................................. passim Regulations 26 C.F.R. § 54.9815-2713T ............................................................................................................ 3 29 C.F.R. § 2590.715-2713............................................................................................................. 3 45 C.F.R. § 147.130 ............................................................................................................ 3, 30, 33 75 Fed. Reg. 34538 ....................................................................................................................... 32 75 Fed. Reg. 41726 ......................................................................................................................... 2 76 Fed. Reg. 46621 ......................................................................................................................... 3 76 Fed. Reg. 7767 ......................................................................................................................... 32 77 Fed Reg. 16501 .................................................................................................................. 17, 23 77 Fed. Reg. 8725 .................................................................................................................. passim Advance Notice of Proposed Rulemaking .................................................................................. 5, 6
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INTRODUCTION Today—August 1, 2012—the HHS mandate goes into effect, and a clock begins ticking for Wheaton College, the leading Evangelical Christian college in the United States. Over the next five months, Wheaton will negotiate new employee health insurance, begin open enrollment on November 1, and roll out new policies on January 1, 2013. During that time, Wheaton will have to decide whether to obey the HHS mandate—which would force it to cover abortion-inducing drugs for free—or whether to obey its foundational religious beliefs. Practically speaking, Wheaton’s final decision must be made by the end of September, about two months from now. The price of remaining faithful will be steep. Wheaton would have to terminate most or all of its employee health insurance, exposing itself to ruinous fines, penalties, and lawsuits. Wheaton’s employees would lose coverage they and their families depend on. And yet the value of Wheaton’s faith and integrity are incalculable. Wheaton faces an impossible choice. This Court can put that choice off for now. Wheaton asks for a preliminary injunction so that the important issues presented by the HHS mandate can be decided without forcing Wheaton to choose between its faith and its survival. Defendants have willingly granted similar short-term relief to thousands of other religious objectors, through a one-year “safe harbor.” D efendants have also exempted plans covering hundreds of millions of people from the mandate because they are “grandfathered.” There is no valid reason to deny Wheaton the same preliminary relief. Just last week, a federal district court in Colorado preliminarily enjoined the mandate as to another religious objector who fell outside the “safe harbor” and “grandfather” exceptions. See Newland v. Sebelius, No. 12-1123, slip op. a t 17-18 (D. Colo. July 27, 2012) (order granting preliminary injunction) (Exh. A). Wheaton is in the same position, and deserves the same
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remedy. Preliminary relief is warranted because the mandate violates the Religious Freedom Restoration Act and the First Amendment, and because Wheaton otherwise faces the imminent prospect of irreparable harm to its religious freedom, its integrity, and its employees’ well-being.
FACTUAL BACKGROUND I. MANDATE TIMELINE
A. Promulgation of the mandate and the “religious employer” exemption Signed into law by President Obama on March 23, 2010, t he Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), institutes a number of reforms to our nation’s health care and health insurance systems. Among other things, the ACA mandates that group health plans cover women’s “preventive care and screenings” without costsharing. The ACA does not specify what “preventive care and screenings” include, but rather leaves that task to the Health Resources and Services Administration (HRSA), a division of Defendant Department of Health and Human Services (HHS).1 42 U.S.C § 300gg–13(a)(4); 75 Fed. Reg. 41726, 41728 (July 19, 2010). On August 1, 2011, HRSA issued guidelines stating that preventive services would include “[a]ll Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.”2 FDA-approved contraceptive methods include “emergency contraceptives,” such as Plan B (commonly known

1

Unless context indicates otherwise, all references to “HHS” or “Defendants” also include

Defendants Department of Labor and Department of Treasury.

2

Health Resources and Services Administration, Women’s Preventive Services: Required Health

Plan Coverage Guidelines (Aug. 1, 2011) , available at http://www.hrsa.gov/womensguidelines/ (last

visited Aug. 1, 2012).

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as the “morning-after pill”) and Ella (commonly known as the “week-after pill”).3 On the same
day, HHS amended the regulations “to provide HRSA additional discretion to exempt certain
religious employers from the Guidelines where contraceptive services are concerned.” 76 Fed.
Reg. 46621, 46623 (published Aug. 3, 2011) . To qualify for this “religious employer”
exemption, an organization must meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) The organization primarily employs persons who share the religious tenets
of the organization; (3) The organization serves primarily persons who share the religious tenets
of the organization; (4) The organization is a nonprofit organization as described in section
6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 45 C.F.R. § 147.130(a)(1)(iv)(B)(1)-(4) (HHS); see also 26 C.F.R. § 54.9815-2713T (Treasury);
29 C.F.R. § 2590.715-2713 (Labor). Defendants finalized this exemption, “without change,” in
February 2012. 77 Fed. Reg. 8725, 8729 (Feb. 15, 2012).
The mandate takes effect beginning with an organization’s first plan year after August 1,
2012. See 42 U.S.C. § 300gg-13(b); 76 Fed. Reg. 46621, 46623.
B. The safe harbor Controversy ensued over the mandate and the religious employer exemption.4 In response,
Secretary Sebelius announced in January 2012 that certain non-exempt religious objectors would

3

See FDA Birth Control Guide (Oct. 19, 2011), http://www.fda.gov/forconsumers/byaudience/

forwomen/ucm118465.htm (last visited July 31, 2012) (describing various FDA-approved contraceptives,

including the “emergency contraceptives” Plan B and Ella).

4

Hundreds of thousands of public comments were filed in response to the mandate and the

religious employer exemption. See 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011); 77 Fed. Reg. 8725, 8726

(Feb. 15, 2012). Additionally, religious organizations that did not qualify for the exemption began to file

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be granted an “additional year” before the mandate was enforced against them, in order to “allow these organizations more time and flexibility to adapt to this new rule.” See January 20, 2012 Statement of HHS Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited July 31, 2012 ). Accordingly, on February 10, 2012, H HS issued a bulletin describing a “Temporary Enforcement Safe Harbor” from the mandate.5 The bulletin advises that Defendants will not enforce the mandate for one additional year against certain non-profit organizations who are religiously opposed to covering the mandated services but who did not qualify for the religious employer exemption. Under the safe harbor, the mandate would not apply until an

federal lawsuits challenging the mandate in November 2011. To date some twenty-four lawsuits on behalf of over fifty religious organizations, businesses, and individuals have been filed. See Belmont Abbey College v. Sebelius, No. 11-1989 (D.D.C. Nov. 10, 2011 ; dismissed without prejudice July 18, 2012); Colo. Christian Univ. v. Sebelius, No. 11-3350 (D. Colo. Dec. 22, 2011); Eternal Word Television Network, Inc. v. Sebelius, No. 12-501 (N.D. Ala. Feb. 9, 2012); Priests for Life v. Sebelius, No. 12-753 (E.D.N.Y. Feb. 15, 2012); La. Coll. v. Sebelius, Case No. 12-463 (W.D. La. Feb. 18, 2012); Ave Maria Univ. v. Sebelius, Case No. 12-88 (M.D. Fla. Feb. 21, 2012); Geneva Coll. v. Sebelius, No. 12-207 (W.D. Pa. Feb. 21, 2012); O’Brien v. HHS, No. 12-476 (E.D. Mo. Mar. 15 2012); Nebraska v. HHS, No. 12-476 (D. Neb. Feb. 23, 2012; dismissed July 17, 2012); Newland v. Sebelius No. 12-1123 (D. Colo. April 30, 2012); Legatus v. Sebelius, No. 12-120 (E.D. Mich. May 6, 2012) ; Roman Catholic Archbishop of Washington v. Sebelius, No. 12-81 (D.D.C. May 21, 2012) ; Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12-254 ( E.D.N.Y. May 21, 2012); Trautman v. Sebelius, No. 12-12 (W.D. Pa. May 21, 2012); Reverend David A. Zubik, Bishop of the Roman Catholic Diocese of Pittsburgh et al. v. Sebelius, W.D. Pa. May 21, 2012); Roman Catholic Diocese of Fort Worth v. Sebelius, No. 12-31 (N.D. Tex. May 21, 2012); Catholic Diocese of Dallas v. Sebelius, No. 12-158 (N.D. Tex. May 21, 2 012); Franciscan Univ. of Steubenville v. Sebelius, No. 12-44 (S.D. Ohio May 21, 2012); The Catholic Diocese of Biloxi, Inc. et al. v. Sebelius, No. 12-15 (S.D. Miss. May 21, 2012); University of Notre Dame v. Sebelius, No. 12-25 (N. D. Ind. May 21, 2012); Diocese of Fort Wayne-South Bend Inc. v. Sebelius, No. 12-15 (N.D. Ind. May 21, 2012); Conlon et al. v. Sebelius, No. 12-393 (N.D. Ill. May 21, 2012); Archdiocese of St. Louis v. Sebelius, No. 12-92 (E.D. Mo. May 21, 2012).

5

See Center for Consumer Information and Insurance Oversight and Centers for Medicare &

Medicaid Services, Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group

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

Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act,

Section 715(a)(1) of the Employee Retirement Income Security Act, And Section 9815(a)(1) of the

Internal Revenue Code 3, 6, available at http://cciio.cms.gov/resources/ files/Files2/02102012/20120210-

Preventive-Services-Bulletin.pdf (last visited July 31, 2012) (“HHS Bulletin”).

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organization’s first insurance plan year that begins after August 1, 2013 (as opposed to August 1, 2012 under the original rule). HHS Bulletin at 3. The safe harbor, however, is available only to non-profit organizations “whose plans have not covered contraceptive services for religious reasons at any point from. . . [February 10, 2012] onward,” and is willing to sign a certification to that effect. Id.
The safe harbor did not alter the religious employer exemption, however. O n that same afternoon, Defendants issued regulations adopting that exemption “as a f inal rule without change.” 77 Fed. Reg. 8725, 8729 (published Feb. 15, 2012) (emphasis added).
C. The Advance Noticed of Proposed Rulemaking On March 16, 2012, Defendants announced an “Advance Notice of Proposed Rulemaking” (ANPRM). See Press Release, U.S. Dep’t of Health and Human Servs., Administration releases Advance Notice of Proposed Rulemaking on preventive services policy (Mar. 16, 2012), available at http://www.hhs.gov/news/press/2012pres/03/20120316g.html. The ANPRM does not alter the mandate or the religious employer exemption, but rather proposes the creation of an additional mandate that would require insurers to assume the financial and administrative burdens of providing the mandated services made available through the insurance plans of nonexempt religious organizations. ANPRM at 1, 10 (stating that proposed insurer mandate will seek “alternative ways” to address religious liberty concerns of “non-exempt, non-profit religious organizations with religious objections”). The ANPRM indicates Defendants’ intention to accomplish this goal by August 1, 2013 ( the end of the safe harbor period). At the same time, the ANPRM only solicits “questions and ideas to help shape these discussions.” Id. at 11-12. Finally, the ANPRM emphasizes that the mandate will remain in full force and effect. Id. at 7-8.
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II. WHEATON COLLEGE Wheaton College is a Christian liberal arts college located in Wheaton, Illinois. Decl. of
Pres. Philip G. Ryken (“Ryken Decl.”) (Exh. B) ¶ 4. While not tied to any one church or denomination, Wheaton is affiliated with the Evangelical Christian tradition, although it attracts students from a wide variety of Christian traditions, including Catholics, Orthodox Christians, and members of at least fifty-five Protestant denominations. Ryken Decl. ¶ 4, 8. It was founded at the dawn of the Civil War by an abolitionist, Jonathan Blanchard, and has always valued the contributions of women, granting its first degree to a female graduate in 1862. Ryken Decl. ¶ 4.
Wheaton’s motto is “For Christ and His Kingdom.” Ryken Decl. ¶ 6. Wheaton’s mission is “to help build the church and improve society worldwide by promoting the development of whole and effective Christians through excellence in programs of Christian higher education.” Ryken Decl. ¶ 5. Today, Wheaton College is “a rigorous academic community that takes seriously the life of the mind.” Ryken Decl. ¶ 7. “Faith is central to the educational mission of Wheaton College. The College aspires to live, work, serve, and worship together as an educational community centered around the Lord Jesus Christ.” Ryken Decl. ¶ 9.
Wheaton holds and follows traditional Christian beliefs about the sanctity of life. Ryken Decl. ¶ 13. “Wheaton believes and teaches that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Wheaton College therefore believes and teaches that abortion ends a human life and is a sin.” Ryken Decl. ¶ 13. These beliefs are echoed in Wheaton’s conviction that “Scripture calls Christians to uphold the God-given worth of human beings, as the unique image-bearers of God,
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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 15 of 50
from conception to death.” Ryken Decl. ¶ 11. Wheaton also affirms that “Scripture condemns the taking of innocent life.” Ryken Decl. ¶ 12.
Consequently, “it is a violation of Wheaton’s teachings for it to deliberately provide insurance coverage for, fund, sponsor, underwrite, or otherwise facilitate access to abortioninducing drugs, abortion procedures, and related services.” Ryken Decl. ¶ 14. Specifically, Wheaton has a sincere religious objection to covering the emergency contraceptive drugs popularly known as Plan B and Ella. Ryken Decl. ¶ 15, 17. Wheaton believes that those drugs “could prevent a human embryo—which it understands to include a fertilized egg before it implants in the uterus—from implanting in the wall of the uterus, causing the death of the embryo.” Ryken Decl. ¶ 15. Wheaton also has a sincere religious objection to paying for counseling supporting these drugs, since such counseling is also contrary to its religious teachings. Ryken Decl. ¶ 40.
It is also part of Wheaton College’s religious convictions to provide for the well-being and care of the employees who further its mission and make up a n integral part of its community. Ryken Decl. ¶ 20, 34. Wheaton therefore provides generous health insurance and health services for its employees. Ryken Decl. ¶ 20. Most of Wheaton’s 709 f ull-time employees rely upon Wheaton’s health insurance, as do their families. Ryken Decl. ¶ 21. It is important to Wheaton that its insurance plans are consistent with its religious beliefs. Ryken Decl. ¶ 20, 38. Therefore it does not provide coverage for abortions or emergency contraceptives. Ryken Decl. ¶ 19.
In late 2011, W heaton undertook a comprehensive review of its health insurance plans to ensure they were consistent with Wheaton’s beliefs. Ryken Decl. ¶ 23. During that review, an employee discovered that emergency contraception had been included in its plans through an
7

Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 16 of 50
oversight unknown to the College’s leadership. Ryken Decl. ¶ 24. After that point, Wheaton worked diligently with its insurer and plan administrator to exclude emergency contraception from its plans. Ryken Decl. ¶¶ 25-28. In order to make that change, Wheaton had to create a new, self-funded prescription drug plan to supplement its HMOs. Ryken Decl. ¶¶ 26-28. That change, along with others, meant that its HMO plans are not eligible for grandfather status, and thus subject to all the requirements of the ACA. Ryken Decl. ¶ 31-32. Wheaton’s HMO plans are by far the most popular choices for its employees. Ryken Decl. ¶ 33. Due to the changes, Wheaton’s less popular, and more expensive, PPO plan may not be eligible for grandfather status in 2013. Ryken Decl. ¶ 32. Because Wheaton offers insurance plans that are not grandfathered, Wheaton must soon begin to comply with all aspects of the ACA, including the mandate.
Moreover, Wheaton is not eligible for the safe harbor. Ryken Decl. ¶ 45. It cannot make the required safe harbor certification because it currently provides coverage for prescription contraceptives, most forms of which are not prohibited by its religious teachings. Ryken Decl. ¶¶ 30, 45, 51. Additionally, due to the time involved in creating and implementing the insurance changes described above, Wheaton briefly and inadvertently provided coverage for emergency contraception after February 10, 2012. Ryken Decl. ¶¶ 29, 51. Nor does Wheaton qualify under the “religious employer” exemption from the mandate, since it is not a church or religious order, and since it provides a comprehensive liberal arts education, rather than existing solely to inculcate religious values. Ryken Decl. ¶ 42.
Because Wheaton is not eligible for the safe harbor, it will be subject to enforcement under the mandate—enforcement which includes fines, other regulatory penalties, and potential
8

Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 17 of 50

lawsuits—with the beginning of its new plan year: January 1, 2013.6 Ryken Decl. ¶ 46. On that date, “Wheaton will face an unconscionable choice: either violate the law, or violate its faith.” Ryken Decl. ¶ 54. If Wheaton violates the law by ceasing to offer employee health insurance, or by offering insurance without emergency contraceptives, it will face the prospect of fines of $2,000 per employee per year, or roughly $1.35 million per year, every year. Ryken Decl. ¶ 55; see 26 U.S.C. § 4980H . In addition, Wheaton could also incur penalties of $100 pe r day per employee, as well as regulatory action and lawsuits, for offering insurance that fails to comply with the ACA. Ryken Decl. ¶ 55, 57; see 26 U.S.C. § 4980D; 29 U.S.C. § 1132.
These fines would be devastating for the small liberal arts college. Ryken Decl. ¶ 56. Even if Wheaton were to attempt to circumvent the mandate by shifting all employees to its PPO plan (assuming that plan could qualify for grandfather status in 2013, which is unclear), the College would still have to pay nearly $200,000 per year in increased costs, Ryken Decl. ¶ 59, and a large majority of Wheaton’s employees would be forced off the plan that they chose and prefer. Ryken Decl. ¶ 58; see also Daniels Decl. ¶ 12 (detailing higher costs under PPO).
The fines and penalties are not Wheaton’s only concern. If Wheaton is forced to make this unconscionable choice, it will also place its employees’ health care in jeopardy. Ryken Decl. ¶¶ 51, 66-69. This is of grave concern to many of Wheaton’s employees, and their families, who

6

The fact that Wheaton does not qualify for the one-year safe harbor sharply distinguishes its

situation from that of Belmont Abbey College. Judge Boasberg found that Belmont Abbey qualified for

the safe harbor, and would therefore not be subject to the mandate until January 1, 2014. T hus, unlike

Wheaton, Belmont Abbey could theoretically profit from Defendants’ proposed “accommodation.” For

that reason, Judge Boasberg dismissed Belmont Abbey’s lawsuit without prejudice as premature on

standing and ripeness grounds. See Belmont Abbey College v. Sebelius, No.11-1989, slip op. at 14-22

(D.D.C. July 18, 2012) (order dismissing lawsuit without prejudice). Belmont Abbey has sought

reconsideration of that dismissal. Regardless of its merits, however, Judge Boasberg’s order underscores

why Wheaton unquestionably has standing and ripeness to challenge the mandate now.

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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 18 of 50
depend on t he College’s insurance plan. Ryken Decl. ¶¶ 67-69. Several employees have expressed fear that, if Wheaton is forced to terminate their insurance coverage, they will not be able to afford health care for themselves or their families. Ryken Decl. ¶¶ 67-69; Decl. of Provost Stanton L. Jones (“Jones Decl.”) (Exh. C) ¶ 4; Decl. of Asst. Dir. of Human Resources Heidi Daniels (“Daniels Decl.”) (Exh. D) ¶¶ 6-9, 11; Decl. of Linda Cotten (“Cotten Decl.”) (Exh. E) ¶ 3; Decl. of Tony Dawson (“Dawson Decl.”) (“Dawson Decl.”) (Exh. F) ¶ 6. Some of them may have to seek expensive medical treatments before January 1 to be assured coverage. Ryken Decl. ¶ 67, 70; Jones Decl. ¶¶ 8-11 (may elect to have surgery for prostate cancer in 2012 against doctors’ advice). Others face the specter of battling chronic conditions without access to affordable care. R yken Decl. ¶ 67; Jones Decl. ¶¶ 5-12 (Parkinson’s disease and prostate cancer); Daniels Decl. ¶ 8-11 (severe burns); Cotten Decl. ¶ 4 (pre-existing condition); Dawson Decl. ¶¶ 6-11 (ruptured vertebrae).
Wheaton must begin planning now for its upcoming insurance plan year. Ryken Decl. ¶ 62. The process to negotiate and confirm an insurance plan begins 3-4 months before the start of the new plan year. Ryken Decl. ¶ 63. Changes must be implemented in time for the November 1-15 open enrollment period. Ryken Decl. ¶ 65. Therefore any major changes—such as the termination of one or all plans—must be known to Wheaton by September 30, 2012 at the latest. Ryken Decl. ¶¶ 64-65.
“Wheaton needs immediate relief from the mandate in order to arrange for and continue providing employee health insurance.” Ryken Decl. ¶ 66. If relief is delayed, Wheaton’s employee insurance coverage might lapse. Ryken Decl. ¶ 66. If relief is denied, Wheaton will be forced to choose between its religious beliefs and the prospect of crippling fines, regulatory
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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 19 of 50
penalties, and lawsuits, as well as potentially catastrophic disruptions to the health and wellbeing of its employees and their families. Ryken Decl. ¶ 66. III. PROCEDURAL HISTORY
Recognizing it had no other options, Wheaton College filed its complaint on July 18, 2012, challenging the mandate on a variety of constitutional and statutory grounds. Dkt. [1]. It now files this motion seeking preliminary injunctive relief.
ARGUMENT In considering whether to grant a preliminary injunction, the Court balances “(1) the movant’s showing of a substantial likelihood of success on the merits, (2) irreparable harm to the movant, (3) substantial harm to the non-movant, and (4) public interest.” Mylan Pharm., Inc. v. Sebelius, __ F. Supp.2d. __, 2012 WL 1388256 at *6 (D.D.C. Apr. 23, 2012) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 ( D.C. Cir. 2009)). As explained below, Wheaton meets these requirements and is therefore entitled to a preliminary injunction. I. WHEATON IS LIKELY TO SUCCEED ON THE MERITS. A. The mandate violates the Religious Freedom Restoration Act. Following the Supreme Court’s decision in Employment Division v. Smith, 494 U .S. 872 (1990), Congress passed RFRA in order “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).” 42 U.S.C. § 2000bb (b)(1); see generally Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U .S. 418, 424, 431 (2006) (describing origin and intent of RFRA, 42 U.S.C. § 2000bb et seq.); Mahoney v. District of Columbia, 662 F. Supp.2d 74, 96 (D.D.C. 2009) (same). Under RFRA, the federal government may not “substantially burden” a person’s exercise of
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religion unless the government “‘demonstrates that application of the burden to the person’

represents the least restrictive means of advancing a compelling interest.” O Centro, 546 U.S. at

423 (quoting 42 U.S.C. § 2000bb-1(b)); see also Kaemmerling v. Lappin, 553 F.3d 669, 677-79 (D.C. Cir. 2008) (discussing RFRA).7 Once a plaintiff demonstrates a substantial burden on his

religious exercise, RFRA then “requires the Government to demonstrate that the compelling

interest test is satisfied through application of the challenged law ‘to the person’—the particular

claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430-31 (quoting 42 U.S.C. § 2000bb-1(b)).8

1. Wheaton’s abstention from providing abortion-inducing drugs in employee coverage qualifies as “religious exercise” under RFRA.

RFRA broadly defines “religious exercise” 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), as

amended by 42 U.S.C. § 2000cc-5(7)(A). A plaintiff’s “claimed beliefs ‘must be sincere and the

practice[] at issue must be of a religious nature.’” Kaemmerling, 553 F .3d at 678 (quoting

Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002); see also Mahoney, 662 F. Supp.2d at

96 (same).

Both the Supreme Court and the D.C. Circuit have recognized that the “exercise of religion”

encompasses a belief that one must avoid participation in certain acts. See, e.g., Smith, 494 U.S.

at 877 (explaining under the Free Exercise Clause that that “the ‘exercise of religion’ often

7

“[T]he portion [of RFRA] applicable to the federal government…survived the Supreme Court’s

decision striking down the statute as applied to the States.” Henderson v. Kennedy, 265 F.3d 1072, 1073

(D.C. Cir. 2001) (discussing City of Boerne v. Flores, 521 U.S. 507 (1997)). R FRA applies “to all

Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted

before or after November 16, 1993.” 42 U.S.C. § 2000bb-3(a) (2000).

8

The respective burdens RFRA places on the parties are the same at the preliminary injunction

stage as at trial. See O Centro, 546 U.S. at 429-30 (citing Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)).

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involves not only belief and profession but the performance of (or abstention from) physical acts”); Kaemmerling, 553 F.3d at 678 (reasoning that “religious exercise” under RFRA embraces “action or forbearance”) (emphases added). Thus, a person exercises religion by avoiding work on certain days (see Sherbert v. Verner, 374 U.S. 398 ( 1963)), or by refraining from sending children over a certain age to school (see Wisconsin v. Yoder, 406 U .S. 205 ( 1972)). See 42 U.S.C. § 2000bb (b)(1) (incorporating Sherbert and Yoder in RFRA). Similarly, a person’s religious convictions may compel her to refrain from facilitating prohibited conduct by others. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 714-16 (1981) (recognizing religious exercise in refusing to “produc[e] or directly aid[] in the manufacture of items used in warfare”).
As explained above, Wheaton’s religious beliefs preclude it f rom providing drugs, or otherwise participating in the provision of drugs, that could cause an abortion. Doing so through the medium of employee insurance policies would violate Wheaton’s faith. Wheaton cannot credibly maintain its religious identity and integrity—which are foundational to Wheaton’s mission—while acquiescing in practices directly contrary to its faith. See generally Ryken Decl. ¶¶ 9-18. Accordingly, Wheaton’s abstention from doing what the mandate requires easily qualifies as “religious exercise” within the meaning of RFRA.
2. The mandate substantially burdens Wheaton’s religious exercise. The government “substantially burdens” religious exercise when it puts “‘substantial pressure on an adherent to modify his behavior and to violate his beliefs.’” Kaemmerling, 553 F.3d at 678 (quoting Thomas, 450 U.S. at 718); Mahoney, 662 F. Supp.2d at 96 (same). The mandate directly orders Wheaton to provide employees with insurance coverage that Wheaton believes implicates the College and its faith community in facilitating abortion. 42
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U.S.C. § 300gg -13 (requiring coverage of women’s “preventive care,” including abortifacient drugs); 26 U .S.C. § 4980H (requiring employers with at least 50 full-time employees to offer employees “minimum essential coverage”). Ryken Decl. ¶¶ 11-18, 38-52. If Wheaton wishes to adhere to its beliefs and avoid offering this coverage, the mandate and its accompanying penalties present the following choices. W heaton could cease to offer employee insurance altogether, and face an annual assessment of about $1.35 m illion. 26 U.S.C. § 4980H (a), (c) (imposing and calculating “employer assessment”). Ryken Decl. ¶¶ 53-56. Or Wheaton could (in theory) continue to offer insurance lacking the mandated coverage, and face a penalty of $100 per day per employee, as well as the prospect of lawsuits by plan participants, plan beneficiaries and the Secretary of Labor. 26 U .S.C. § 4980D(a), (b) (imposing penalties for failure to meet group health plan requirements); 29 U.S.C. § 1132(a) (providing for civil enforcement actions by a plan participant, beneficiary, and the Secretary of Labor). Ryken Decl. ¶¶ 57. E ven if Wheaton were able to continue offering one of its plans next year—which is unclear—that would involve a dramatic restructuring of its insurance offerings that would cause significant expense to Wheaton and hardship to its employees and their families. Ryken Decl. ¶¶ 58-60.
For Wheaton to keep its faith and its faith community intact, the mandate thus exacts the steep price of severe financial and regulatory penalties, along with severe constraints on Wheaton’s ability to continue to offer employee health insurance. Moreover, Wheaton will have to recruit and retain employees while unable to offer them coverage, crippling its ability to compete with other employers who can offer coverage. The mandate also interferes with Wheaton’s internal governance by forcing it to include abortion-inducing drugs, and related education and counseling as a term of its relationship with each and every employee. Ryken
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Decl. ¶¶ 48-51. This prevents Wheaton from structuring its relationship with its own employees along the lines of Wheaton’s religious beliefs, something which is foundationally important to Wheaton. Ryken Decl. ¶¶ 4-19. Cf. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694, 706 (2012) (forbidding government from “interfer[ing] with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs”).
To call these burdens “substantial” is an understatement. The Supreme Court has struck down religious burdens far less dramatic. For instance, Sherbert found the potential loss of unemployment benefits for refusing Sabbath work placed “unmistakable” pressure on the plaintiff to abandon that observance. Sherbert, 374 U.S. at 404 (reasoning that the law “force[d] [plaintiff] to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on t he other hand,” and that “the pressure on her to forego that practice is unmistakable”); see also Thomas, 450 U.S. at 717-18 (finding burden on religious exercise “[w]here the state conditions receipt of an important benefit upon conduct proscribed by a religious faith. . . thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs”). Sherbert and Thomas, moreover, condemned even “indirect” pressure. See Thomas, 450 U .S. at 718 (explaining “[w]hile the compulsion may be indirect, the infringement upon f ree exercise is nonetheless substantial”). With “direct” pressure, the Supreme Court has been even more exacting. For instance, Yoder struck down a five dollar fine on Amish parents for not sending their children to high school. See, e.g., Yoder, 406 U.S. at 208 (observing that the parents were “fined the sum of $5 each”). The Court reasoned that “[t]he [law’s] impact” on religious practice
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was “not only severe, but inescapable, for the. . . law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Id. at 218.
The pressure exerted on Wheaton in this case dwarfs the pressures condemned in Sherbert, Thomas, and Yoder. T he mandate “affirmatively compels” Wheaton, under threat of severe consequences—fines, regulatory penalties, potential lawsuits, a prohibition on pr oviding employee health benefits, internal personnel disruptions, competitive disadvantage—“to perform acts undeniably at odds with the fundamental tenets of their religious beliefs.” Yoder, 406 U.S. at 218. Wheaton could avoid this steep price, of course, by abandoning its religious convictions about participating in activities it believes destructive of nascent human life. But it is black letter law that “[a] substantial burden exists when government action puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs[.]’” Kaemmerling, 553 F .3d at 678 (quoting Thomas, 450 U.S. at 718). The mandate does so here and therefore substantially burdens Wheaton’s religious exercise.
Defendants themselves have shown they understand this kind of burden. For instance, the government’s broader health care reform contained exemptions for certain claims of religious conscience—such as for members of a “recognized religious sect … conscientiously opposed to acceptance of” particular end-of-life benefits, see 26 U.S.C. § 5000A (d)(2)(A); 26 U.S.C. § 1402(g)(1), and for members of “health care sharing ministries” who “share a common set of ethical or religious beliefs and share medical expenses among members in accordance with those beliefs,” see 26 U.S.C. § 5000A(d)(2)(B)(ii)(II). In light of exemptions like these, Defendants
16

Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 25 of 50

cannot claim that mandated insurance coverage cannot burden the conscience of those who must implement the mandated coverage.
Similarly, both the HHS Secretary and the President have publicly recognized that the mandate itself burdens religious believers. They have even acted to relieve those burdens on at least some religious objectors (thought not Wheaton). In her January 20 announcement previewing the one-year safe harbor, the Secretary stated that the extension “strikes the appropriate balance between respecting religious freedom and increasing access to important preventative services.”9 Likewise, in his February 10 press conference regarding the ANPRM, President Obama acknowledged that religious liberty is “at stake here” because some institutions “have a religious objection to directly providing insurance that covers contraceptive services.”10 The President explained that this religious liberty interest is why “we originally exempted all churches from this requirement.” Finally, the basic premise of the Defendants’ proposed rulemaking in the ANPRM is to explore alternate insurance arrangements that would avoid burdening religious organizations’ consciences. See 77 Fed. Reg. 16501, 16503 ( March 21, 2012) (stating that ANPRM is intended “to develop alternative ways of providing contraceptive coverage without cost sharing in order to accommodate non-exempt, non-profit religious organizations with religious objections to such coverage”). These are candid acknowledgements that forcing religious objectors to cover objectionable services burdens their faith. The same is true for Wheaton.

9

The Secretary’s statement regarding the one-year extension can be found at:

http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited July 31, 2012).

10

A transcript of the President’s remarks is available at http://www.whitehouse.gov/the-press-

office/2012/02/10/remarks-president-preventive-care (last visited July 31, 2012).

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3. The mandate cannot satisfy strict scrutiny. Because the mandate substantially burdens Wheaton’s religious exercise, Defendants must

“‘demonstrate[] that application of the burden to [Wheaton]’ represents the least restrictive

means of advancing a compelling interest.” O Centro, 546 U .S. at 423 (quoting 42 U .S.C. § 2000bb-1(b)); see also, e.g., Kaemmerling, 553 F.3d at 677 (discussing strict scrutiny imposed by RFRA).11 If a l ess restrictive alternative would serve Defendants’ purpose, “the legislature

must use that alternative.” United States v. Playboy Ent’mt Group, Inc., 529 U.S. 803, 813 (2000) (emphasis added). T he Supreme Court has explained that this test is “the most

demanding test known to constitutional law.” City of Boerne, 521 U.S. at 534. Defendants

cannot meet it here. a. Defendants cannot identify a compelling interest.
The compelling interest test demands the law at issue serve interests “of the highest order.”

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 ( 1993). Determining

whether an asserted interest clears that high hurdle “is not to be made in the abstract” but rather “in the circumstances of this case” by looking at the particular “aspect” of the interest as

“addressed by the law at issue.” Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000); see

also Lukumi, 508 U.S. at 546 (rejecting assertion that protecting public health was compelling interest “in the context of these ordinances”). “Only the gravest abuses, endangering paramount

interests, give occasion for permissible limitation” of First Amendment rights. Thomas v.

Collins, 323 U.S. 516, 530 (1945). Further, Defendants “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a

11

The respective burdens RFRA places on the parties are the same at the preliminary injunction

stage as at trial. See O Centro, 546 U.S. at 429-30 (citing Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)).

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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 27 of 50
direct and material way.” Turner Broad. Sys. Inc. v. FCC (“Turner I”), 512 U .S. 624, 664 (1994); Consol. Edison Co. of N.Y. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 530, 543 ( 1980) (“Mere speculation of harm does not constitute a compelling state interest.”).
Defendants’ asserted interest is to promote the availability and use of contraceptive drugs and sterilization methods, a measure Defendants believe will promote women’s health and equality. See, e.g., 77 Fed. Reg. 8725, 8727-28 (Feb. 15, 2012) (describing goals of women’s preventive services mandate). But whatever the strength of that interest in the abstract, Defendants cannot demonstrate—in the concrete context of the mandate—that their interest in achieving these goals is “compelling.” An interest cannot be “compelling” where the government “fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort.” Lukumi, 508 U.S. at 546–47. T o the contrary, “a law cannot be regarded as protecting an interest ‘of the highest order’ when it leaves appreciable damage to that supposedly vital interest unprohibited.” Id. The present case provides a textbook example of precisely such a failure on Defendants’ part.
Defendants’ own policies in the ACA and in the mandate itself undermine the notion that their asserted interest in increasing access to contraceptive coverage is “compelling.” I n numerous instances, Defendants have chosen not to require coverage of the very same drugs and services in the policies of literally millions of organizations. In particular:
• Members of certain objecting religious groups need not carry insurance at all and therefore need not cover contraception. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate does not apply to “recognized religious sect or division” that objects to public or private insurance funds); id. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of certain “health care sharing ministries”).
• Millions of “grandfathered” plans need not cover contraceptives, a concession admittedly designed to “make[] good on President Obama’s promise that Americans
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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 28 of 50

who like their health plan can keep it.” See HHS Press Release, June 14, 2010, available at http://www.hhs.gov/news/press/2010pres/06/20100614e.html (last visited July 31, 2012).
• Small employers (i.e., those with fewer than 50 employees) need not offer insurance at all (and hence no contraceptive coverage) to their more than 20 million employees. 26 U.S.C. § 4980H(c)(2); see http://www.census.gov/econ/smallbus.html (last visited July 31, 2012).
• Churches, church auxiliaries, and religious orders enjoy a blanket exemption from the mandate. 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012).
• Certain religiously affiliated non-profits were recently given an additional year before the mandate would be enforced against them. See HHS Bulletin.
Defendants have chosen to allow these gaping holes in their contraceptive net for reasons ranging from commercial convenience to political expediency.12 Several of the exemptions,
moreover, were expressly granted to relieve burdens on religious belief (i.e., the “religious
employer” exemption from the mandate, and the broader religious exemptions from the ACA
insurance requirements). That wide-ranging scheme of exemptions, as Judge Kane correctly
found only last week, “completely undermines any compelling interest in applying the
preventive care coverage mandate to Plaintiffs.” Newland, slip op. at 15.
The Supreme Court’s decision in O Centro is directly on point. In that RFRA case, the
government asserted a compelling interest in uniformly applying federal narcotics laws to justify
refusing to exempt a s mall church’s religious use of a dangerous narcotic (hoasca, which the
church used in a tea). But the Court unanimously rejected the argument: the narcotics laws
themselves authorized exemptions and the government had already granted one for a different

12

Defendants estimate that 133 million American will maintain their coverage under grandfathered

plans. Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans,

June 14, 2010 (available at http://www.healthcare.gov/news/factsheets/2010/06/ keeping-the-health-plan-

you-have-grandfathered.html) (last visited July 31, 2012).

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hallucinogen (peyote) used by a larger religious group (Native Americans). O Centro, 546 U.S. at 432-35. Given that analogous exemption for Native American peyote use, the Court held that “the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the [church’s] sacramental use of hoasca.” Id. at 439.
O Centro controls the outcome here. Defendants’ interest in increasing contraceptive access through the mandate cannot qualify as “compelling” where they have allowed millions of insurance policies to avoid the mandate and thus avoid covering the same contraceptive drugs. Indeed, O Centro found that one exemption to the narcotics laws for a different drug undermined the government’s supposedly “compelling” interest in uniformity. Here, Defendants have crafted numerous exemptions, applicable a w hole range of secular and religious organizations, for the same drugs and services. Moreover, just as in O Centro, several of those exemptions (i.e., the “religious employer” exemption from the mandate, and the broader religious exemptions from the ACA insurance requirements) were granted to relieve precisely the same kind of religious burden that Wheaton claims. In light of O Centro, Defendants cannot claim a “compelling” interest in refusing to exempt a religious objector like Wheaton from the mandate, when they have exempted so many other organizations. P ut another way, given that Congress and HHS have already recognized numerous exemptions—both religious and secular—from the mandate, “RFRA makes clear that it is the obligation of the courts to consider whether exceptions are required” for a claimant like Wheaton, whose faith is burdened by the mandate in ways every bit as severe as the millions of organizations who have already been exempted. O Centro, 546 U.S. at 434.
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Second, another reason why the asserted interest cannot be compelling is that the problem Defendants target is so tiny. Defendants simply cannot demonstrate a crisis of contraceptive access; indeed, their own conduct undercuts the notion that there is any such crisis and thus a “compelling” need to remedy it. In public statements, Defendants themselves have confirmed that the mandated drugs and services are already widely available. For example, in her January 20, 2012 press release Defendant Sebelius explained that:
• “[C]ontraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support”;
• Contraceptives are already “the most commonly taken drug in America by young and middle-aged women”;
• “[L]aws in a majority of states…already require contraception coverage in health plans.” January 20, 2012 S tatement of HHS Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited July 31, 2012).
In light of these admissions, Defendants cannot credibly claim an interest “of the highest order” in marginally increasing access to contraceptive services—much less in doing so by conscripting Wheaton’s participation against its own conscience. The government simply has not identified “an ‘actual problem’ in need of solving.” Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729, 2738 (2011). Moreover, because the government “bears the risk of uncertainty” under strict scrutiny, “ambiguous proof will not suffice.” Id. at 2739 (emphasis added). Indeed, the proof here quite unambiguously refutes Defendants’ position. Defendants’ themselves say that contraceptives are widely available and widely used. Thus they cannot meet their burden of showing that Wheaton’s refusal to facilitate employee access to contraceptive services creates any problem whatsoever, much less a “grave” abuse that rises to the level of a compelling
22

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interest. As the Supreme Court recently confirmed, “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Id. at 2741 n.9.
Finally, the strength of Defendants’ interest in applying the mandate to Wheaton is greatly diluted given that Defendants have already granted temporary “safe harbor” relief to thousands of other religious objectors and, further, have promised during that one-year period to “effectively exempt” those organizations from the mandate. See 77 Fed. Reg. 16501, 16503 (March 21, 2012) (stating that the promised “accommodation … w ould effectively exempt the religious organization from the requirement to cover contraceptive services”). Admittedly, Wheaton does not qualify for the safe harbor, because it has no conscientious objection to most contraceptives and because of the timing of recent changes to conform its policies to Wheaton’s beliefs. Thus Wheaton’s upcoming plan could not benefit from any “accommodation” sketched in the ANPRM, even assuming an accommodation is ever finalized and would actually relieve the burden on Wheaton’s beliefs. But see Ryken Decl. ¶ 18 (explaining that Wheaton’s beliefs would still be violated by providing access to abortion-causing drugs “even if those items were paid for by an insurer or a plan administrator and not by Wheaton College”). But the basic point remains: Defendants can scarcely claim a compelling interest in applying the mandate to Wheaton for the upcoming plan year, where Wheaton’s religious conscience is burdened by the mandate in ways identical to organizations that fall under the safe harbor and whom Defendants have said they will “effectively exempt” from the mandate through the promised accommodation.
In sum, as Judge Kane concluded in the Newland case just last week: “The government has exempted over 190 m illion health plan participants and beneficiaries from the preventive care
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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 32 of 50
coverage mandate; this massive exemption completely undermines any compelling interest in applying the … mandate to Plaintiffs.” Newland, slip op. at 14-15.
b. Alternatively, the mandate does not further Defendants’ stated interests. Under strict scrutiny, Defendants must also prove that the mandate “will in fact alleviate [the identified] harms in a direct and material way.” Turner I, 512 U.S. at 664. Defendants cannot carry that burden here for a simple reason: the mandate will not result in religious organizations like Wheaton providing the required coverage but, instead, will simply force them to stop offering insurance entirely—not just for contraception, but for anything else. See Ryken Decl. ¶ 46. Th us Defendants will actually harm its stated interest in increasing women’s access to preventive services, because women working at Wheaton and other religious institutions will lose employer-sponsored healthcare coverage altogether.
c. Alternatively, Defendants cannot show the mandate is the least restrictive means of furthering their interests.
Even assuming Defendants have shown a compelling interest, the mandate still fails strict scrutiny because it is not remotely the least restrictive means of achieving Defendants’ goal of enhancing contraception coverage. See, e.g., Kaemmerling v. Lappin, 553 F.3d 669, 684 ( D.C. Cir. 2008) (explaining that “[a] statute or regulation is the least restrictive means if ‘no alternative forms of regulation would [accomplish the compelling interest] without infringing [religious exercise] rights’”) (quoting Sherbert, 374 U.S. at 407).
First, Defendants have a host of obvious alternatives for furthering its interest in expanding contraceptive access. Any of these alternatives would avoid any need to conscript religious objectors into providing these drugs and services against their consciences. To name only a few, Defendants could:
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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 33 of 50

• Directly provide the drugs and services at issue. • Directly provide insurance coverage for the drugs and services. • Give individuals subsidies, reimbursements, tax credits or tax deductions to allay
the costs of the drugs and services. • Empower actors who do not have religious objections—for instance, physicians,
pharmaceutical companies, or the interest groups who champion free access—to deliver the drugs and services themselves. • Empower the same actors to sponsor speech and education about the drugs and services. • Use its own considerable resources to inform the public that these drugs and services are available in a wide array of publicly-funded venues.
This last alternative is particularly salient since, in her announcement of the mandate, Secretary
Sebelius stated that the relevant services are already “available at sites such as community health
centers, public clinics, and hospitals with income-based support.” January 20, 2012 Sebelius
Statement, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited
July 31, 2012).
This array of less-restrictive alternatives is real, not hypothetical. On its own website,
Defendant HHS announces that it plans to spend over $300 m illion in 2012 to provide contraceptives directly through Title X funding.13 Moreover, the federal government, on its own
and in partnership with state governments, has already constructed an extensive funding network
specifically designed to increase contraceptive access, education, and use. A recent Guttmacher
Institute fact sheet summarizes:

13

See Department of Health and Human Services, Office of the Assistant Secretary of Health,

Office of Population Affairs, Announcement of Anticipated Availability of Funds for Family Planning

Services Grants, available at https://www.grantsolutions.gov/gs/preaward/previewPublicAnnouncement.

do?id=12978 (last visited July 31, 2012) (announcing that “[t]he President’s Budget for Fiscal Year (FY)

2012 requests approximately $327 million for the Title X Family Planning Program”).

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• Public expenditures for family planning services totaled $2.37 bi llion in FY 2010.
• Medicaid accounted for 75% of total expenditures, state appropriations for 12% and Title X for 10%. Other sources, such as the maternal and child health block grant, the social services block grant and Temporary Assistance for Needy Families, together accounted for 3% of total funding.
• The joint federal-state Medicaid program spent $1.8 bi llion for family planning services in FY 2010. T he program reimburses providers for contraceptive and related services delivered to enrolled individuals. The federal government pays 90% of the cost of these services, and the states pay the remaining 10%.
• Title X of the Public Health Service Act, the only federal program devoted specifically to supporting family planning services, contributed $228 m illion in FY 2010. It subsidizes services for women and men who do not meet the narrow eligibility requirements for Medicaid, maintains the national network of family planning centers and sets the standards for the provision of family planning services.
• Even among Title X–supported centers, Medicaid was the largest national source of financial support in 2010. Medicaid contributed 37% of all revenue reported by these centers, and Title X provided 22%. (The remaining 41% came from state and local governments, other federal programs, private insurance and fees paid by clients.
• States spent $294 m illion of their own funds for family planning services in FY 2010 (in addition to the funding they contributed to Medicaid and blockgrant programs through matching requirements).
• When inflation is taken into account, public funding for family planning client services increased 31% from FY 1980 to FY 2010.14

14

Facts on P ublicly Funded Contraceptive Services in the United States (Guttmacher Inst. May

2012) (citations omitted), available at http://www.guttmacher.org/pubs/fb_contraceptive_serv.html (last

visited July 31, 201 2); see also, e.g., Rachel Benson Gold et al., Next Steps for America’s Family

Planning Program: Leveraging the Potential of Medicaid and Title I in an Evolving Health Care System

(Guttmacher Inst., Feb. 2009) (available at http://www.guttmacher.org/pubs/Next Steps.pdf) (last visited

July 31, 2012) (detailing provision of billions in Title XIX / Medicaid and Title X funds for providing

family planning services); Adam Sonfield and Rachel Benson Gold, Medicaid Family Planning

Expansions: Lessons Learned and Implications for the Future (Guttmacher Inst. Dec. 2011) (available at

http://www.guttmacher.org/pubs/Medicaid-Expansions.pdf) (last visited July 31, 2012) (detailing

expansion of Medicaid and Title X programs in providing family planning services); Susan A. Cohen,

The Numbers Tell the Story: The Reach and Impact of Title X (Guttmacher Inst. Spring 2011) (available

at http://www.guttmacher.org/pubs/gpr/14/2/gpr140220.html) (last visited July 31, 2012) (reporting on

role of Title X in supporting family planning services for young and low-income women).

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Nothing prevents Defendants from using such pre-existing sources to further its interest in increasing women’s access to, and use of, contraceptives. As Judge Kane aptly concluded in his Newland ruling last week:
… Defendants have failed to adduce facts establishing that government provision of contraceptives services will necessarily entail logistical and administrative obstacles defeating the ultimate purpose of providing no-cost preventive health care cover to women. Once again, the current existence of analogous programs heavily weighs against such an argument. Newland, slip op. at 17. Crucially, any combination of these more direct approaches would further Defendants’ goals without coercing Wheaton to violate its faith. And these alternatives would be far more effective with regard to employees of religious institutions since, as discussed above, the mandate will force objectors like Wheaton to provide no insurance at all rather than violate their faith. Strict scrutiny means that Defendants must employ these obvious less restrictive alternatives, instead of burdening the rights of religious objectors. See, e.g., United States v. Playboy Ent’mt Group, Inc., 529 U.S. 803, 813 (2000) (explaining that, if a less restrictive alternative would serve the government’s purpose, “the legislature must use that alternative”) (emphasis added). Second, there is no evidence Defendants even considered using these kinds of alternatives, which automatically violates the least restrictive means requirement. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 339 (2003) (narrow tailoring requires “serious, good faith consideration of workable…alternatives that will achieve” the stated goal); Hayes v. N. State Law Enforcement Officers Assn, 10 F .3d 207, 217 ( 4th Cir. 1993) (concluding that without evidence that other alternatives were “considered,” the court “simply cannot hold that the City's promotion policy was narrowly tailored”); Benning v. Georgia, __ F. Supp. 2d __, 2012 WL 113724, at *10 (M.D.
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Ga. Jan. 13, 2012) (standard not met where defendants “failed to seriously consider any possible alternatives”). If Defendants cannot show they even investigated less restrictive alternatives— especially in light of the fact that they were made aware through numerous public comments of religious employers’ objections to the mandate—their rule cannot survive strict scrutiny.
Third, Defendants’ failure to satisfy narrow tailoring becomes even clearer when the least restrictive means test is applied, as RFRA demands, “to the person”—or, in other words, to “the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430-31 (citing 42 U.S.C. § 2000bb). In other words, Defendants must justify their choice of means—not merely with regard to the general run of employers—but instead with specific regard to a religious employer like Wheaton whose faith is violated by the mandate. Defendants cannot possibly meet this “more focused inquiry required by RFRA.” O Centro, 546 U.S. at 432. It is hard to imagine a means of furthering Defendants’ interests more restrictive of religious liberty than those adopted here—i.e., an employer insurance mandate backed by fines and other regulatory penalties. Any one of the alternatives described above would be far less restrictive of religious liberty. But, instead of exploring any of them, Defendants simply chose to draft religious objectors like Wheaton into providing emergency contraceptive coverage through their own employee policies. Strict scrutiny demands far more from the government.
*** In sum, Wheaton is likely to prevail on its claim that the mandate violates the Religious Freedom Restoration Act.
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B. The mandate violates the Free Exercise Clause. In addition to violating RFRA, the mandate also violates the Free Exercise Clause because it is not “neutral and generally applicable.” Lukumi, 508 U .S. 20 a t 545 (citing Employment Division v. Smith, 494 U.S. 4572, 880 (1990)); see also, e.g., Kaemmerling, 553 F .3d at 677 (discussing Smith). The mandate is therefore subject to strict scrutiny which, for the reasons discussed above, it cannot meet. See Lukumi, 508 U .S. at 546 (explaining that such laws “undergo the most rigorous of scrutiny”).15
1. The mandate is not neutral. The mandate is not neutral on its face because it explicitly discriminates among religious organizations on a religious basis. It thus fails the most basic requirement of facial neutrality. See, e.g., Lukumi, 508 U .S. at 533 (explaining that “the minimum requirement of neutrality is that a l aw not discriminate on its face”). Indeed, the mandate is more patent violation of neutrality than the ordinances unanimously struck down in Lukumi. That case involved ostensibly neutral animal cruelty laws structured to target religiously-motivated practices only. By contrast, on its face the religious employer exemption to the mandate divides religious objectors into favored and disfavored classes, forgetting Lukumi’s warning that “[a] law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.” Lukumi, 508 U.S. at 533 (emphasis added).

15

Neutrality and general applicability overlap and “failure to satisfy one requirement is a l ikely

indication that the other has not been satisfied.” Lukumi, 508 U.S. at 531; see also id. (noting that

“[n]eutrality and general applicability are interrelated”); id. at 557 (Scalia, J., concurring) (observing that

the concepts “substantially overlap”). S till, each merits separate analysis, and “strict scrutiny will be

triggered” if the law at issue “fails to meet either requirement.” Rader v. Johnston, 924 F. Supp. 1540,

1551 (D. Neb. 1996) (emphasis supplied) (citing Lukumi, 508 U.S. at 531-33, 544-46).

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The religious employer exemption protects the consciences only of certain religious bodies, which it d efines with reference to their internal religious characteristics. Namely, it e xempts only those organizations whose “purpose” is to inculcate religious values; who “primarily” employ and serve co-religionists; and who qualify as churches or religious orders under the tax code. See 45 C.F.R. § 147.130(a)(iv)(B)(1)-(4). These criteria openly do what Lukumi says a neutral law cannot do: refer to religious qualities without any discernible secular reason. Lukumi, 508 U .S. at 533. There is no conceivable secular purpose, for instance, in limiting conscience protection to religious groups that “primarily serve” co-religionists while denying it to those who serve persons regardless of their faith. Nor is there any secular rationale for preferring groups that “inculcate religious values” to those who engage in outreach such as feeding the hungry, caring for the sick, or (as Wheaton does) providing a liberal arts education. Whatever policy considerations informed these criteria, they practice religious “discriminat[ion] on [their] face” and therefore trigger strict scrutiny. Lukumi, 508 U.S. at 533; cf. Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1337 (D.C. Cir. 2001) (rejecting “substantial religious character” test for NLRB jurisdiction as contrary to both the Free Exercise and Establishment Clauses because it would effectively exempt only “religious institutions with hard-nosed proselytizing, … that limit their enrollment to members of their religion”) (relying on NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)).16

16

It bears noting that the Affordable Care Act itself also violates this requirement of facial

neutrality by exempting members of certain religious groups, but not others, from its coverage

requirements. See 26 U.S.C. § 5000A (d)(2)(A); 26 U.S.C. § 1402( g)(1) (for members of religions

opposed to insurance); 26 U.S.C. § 5000A (d)(2)(B)(ii)(II) (for members of any religious “health care

sharing ministry”). Like the religious employer exemption from the mandate, these broader exemptions

expressly privilege the consciences of certain religious groups while leaving the consciences of others

(like Wheaton) unprotected. This is another reason why the mandate’s burden is not neutral or generally

applicable.

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2. The mandate is not generally applicable. The mandate is also subject to strict scrutiny under the Free Exercise Clause because it is not generally applicable. A law is not generally applicable if it regulates religiously-motivated conduct, yet leaves unregulated similar secular conduct. See, e.g., Lukumi, 508 U .S. at 544-45 (finding animal cruelty and health ordinances not generally applicable because they failed “to prohibit nonreligious conduct that endanger[ed] these interests in a s imilar or greater degree”—such as animal hunting, euthanasia, and medical testing). Such inconsistency suggests that “society is prepared to impose [the law] upon [ religious adherents] but not upon itself,” which is the “precise evil … the requirement of general applicability is designed to prevent.” Id. at 545; see also Mahoney v. District of Columbia, 662 F. Supp.2d 74, 95 ( D.D.C. 2009) (explaining that “[t]he principle of general applicability prevents the government from pursuing legitimate interests in a manner that has the practical effect of imposing burdens primarily upon conduct motivated by religious belief”) (citing Lukumi, 508 U.S. at 543; Am. Family Assn, Inc. v. F.C.C., 365 F.3d 1156, 1171 (D.C. Cir. 2004)). Because they fail to impose “across-the-board” treatment of regulated conduct, Smith, 494 U.S. at 884, such laws are subject to strict scrutiny.17

17

The lower courts have consistently followed this rule. For example, in Fraternal Order of Police

Newark Lodge No. 12 v. City of Newark, the Third Circuit held that a police department’s no-beard policy

was not generally applicable because it allowed a medical exemption but refused religious exemptions.

“[T]he medical exemption raises concern because it indicates that the [police department] has made a

value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to

overcome its general interest in uniformity but that religious motivations are not.” 170 F.3d 359, 366 (3d

Cir. 1999) (Alito, J.). See also Blackhawk v. Pennsylvania, 381 F.3d 202, 210 –11, 214 (3d Cir. 2004)

(Alito, J.) (rule against religious bear-keeping violated Free Exercise Clause due to categorical

exemptions for zoos and circuses); Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth,

556 F.3d 1021, 1035 (9th Cir. 2009) (Noonan, J., concurring) (campaign finance requirements were not

generally applicable where they included categorical exemptions for newspapers and media, but not for

churches); Rader v. Johnston, 924 F.Supp. 1540, 1551-53 (D. Neb. 1996) (rule requiring freshmen to live

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Under those standards, the mandate is not generally applicable. While the purpose of the
mandate is to “ensur[e] that women with health insurance coverage will have access to [a] full
range of . . . preventive services, including all FDA-approved forms of contraception,” Jan. 20,
2012 HHS Press Release, numerous plans and organizations are categorically exempted by the
Affordable Care Act from providing the mandated preventive services, for instance:
• Nearly two hundred million “grandfathered” health plans, 75 Fed. Reg. 34538, 34540, 34550 (June 17, 2010)18;
• Businesses employing fewer than 50 pe rsons (whose employees account for over 20 million Americans), 26 U.S.C. § 4980H(c)(2)(A) 19;
• Self-funded student plans (which cover more than 200,000 s tudents in the United States), 76 Fed. Reg. 7767, 7769;
• Religious groups who conscientiously object to insurance, as well as “health care sharing ministries,” 26 U.S.C. § 5000A(d)(2)(A); 26 U.S.C. § 1402(g)(1); 26 U.S.C. § 5000A(d)(2)(B)(ii)(II);
• Other categories of individuals, including “individuals not lawfully present” in the United States, individuals who are “incarcerated,” “individuals who cannot afford coverage,” “taxpayers with income below [a certain] filing threshold,” “members of Indian tribes,” and any individual “who for any month is determined by the Secretary of Health and Human Services . . . to have suffered a h ardship” impairing his ability to obtain coverage. 26 U.S.C. §§ 5000A(d)(3)-(4), (e)(1)-(5).
These categorical exemptions reveal that Defendants deliberately chose not to pursue their goal
of increased contraceptive access with respect to a broad array of plans and individuals, while at
the same time pursuing it against non-exempt religious objectors like Wheaton. See, e.g.,

on campus was not generally applicable where it included categorical exemptions for students with certain secular objections, but not religious objections); Mitchell Cnty. v. Zimmerman, 810 N.W.2d 1, 16 (Iowa 2012) (categorical exemptions for secular conduct allowed Mennonite farmers to use steel-wheeled tractors on county roads).

18

HHS has predicted that a majority of large employers, employing more than 50 m illion

Americans, will continue to use grandfathered plans through at least 2014, and that a third of small

employers with between 50 a nd 100 employees may do l ikewise. See

http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-have-

grandfathered.html (last visited July 31, 2012).

19

See http://www.census.gov/econ/smallbus.html (last visited July 31, 2012).

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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 41 of 50

Newland, slip op. a t 13-14 (finding Defendants’ uniformity argument “undermined by the existence of numerous exemptions to the preventive care coverage mandate”). This is the classic case of a law that fails the basic requirement of general applicability.
Furthermore, both the ACA and the mandate grant individualized exemptions on a case-bycase basis—another hallmark of a law that is not generally applicable.
For instance, Defendants have issued thousands of discretionary waivers from the ACA to employers.20 These employers—and the millions of persons they employ—are not subject to the ACA’s minimum coverage provisions and, by definition, are also not subject to the mandate. These widespread individualized exemptions deprive the mandate of general applicability. Cf. Ward v. Polite, 667 F.3d 727, 740 (6th Cir. 2012) (“At some point, an exception-ridden policy takes on the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and generally applicable policy and just the kind of state action that must run the gauntlet of strict scrutiny.”).
Moreover, with respect to the mandate specifically, the law provides that HRSA “may establish exemptions” for “group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services.” 45 C.F.R. § 147.130 (emphasis added). This built-in discretion means that the granting of any religious exemption from the mandate is subject to the discretion of government officials. Although HRSA has stated that it will allow all entities who meet the four “religious employer” criteria to enjoy the current

20

See generally http://cciio.cms.gov/resources/files/approved_applications_for_waiver.html (last

visited July 31, 2012 ); http://www.healthcare.gov/news/factsheets/2011/06/annuallimit06172011a.html

(last visited July 31, 2012).

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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 42 of 50
exemption, 77 F ed. Reg. 8725, 8726 ( Feb. 15, 2012) (citing HRSA Guidelines at http:// www.hrsa.gov/womensguidelines), it nonetheless retains discretion to revise or revoke this policy approach at any time.
In both cases, Defendants have granted themselves broad discretion to create exemptions based on an “individualized … assessment of the reasons for the relevant conduct,” a feature that deprives the mandate of general applicability and subjects it to strict scrutiny. Lukumi, 508 U.S. at 537 ( quoting Employment Div. v. Smith, 494 U.S. 872, 884 (1990)); accord: Blackhawk v. Pennsylvania, 381 F.3d 202, 207-12 (3d Cir. 2004) (Alito, J.).
* * * In sum, this array of exemptions results in hundreds of millions of Americans escaping the mandate, many for purely secular reasons and others for a subset of religious reasons. The mandate therefore cannot qualify as a neutral and generally applicable law for purposes of the Free Exercise Clause. Defendants must clear the high bar of strict scrutiny to justify their decision not to exempt other religious objectors, like Wheaton, from the mandate. As discussed elsewhere at length, they cannot do so. Consequently, Wheaton is likely to prevail on its claim under the Free Exercise Clause. C. The mandate violates the Free Speech Clause. In addition to unconstitutionally forcing Wheaton to act in violation of its rights under the Religion Clauses and RFRA, the Mandate also forces Wheaton to speak in violation of its rights under the Free Speech Clause of the First Amendment.
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1. The First Amendment forbids the government from forcing private speakers to speak government-dictated messages with which they disagree.
The Supreme Court has explained that the “right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Wooley v. Maynard, 430 U .S. 705, 7 14 (1977) (citing W.V. State Bd. of Educ. v. Barnette, 319 U .S. 624, 637 ( 1943)). Accordingly, the Court has emphasized that the First Amendment protects not only the right of a speaker to choose what to say, but also the right of the speaker “to decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston, 515 U .S. 557, 5 73 (1995) (internal quotation marks and citations omitted). The First Amendment in this way “presume[s] that speakers, not the government, know best both what they want to say and how to say it.” Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S. 781, 791 (1988). Therefore, “the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government.” Id. at 791.
The Court has made clear that strict scrutiny applies to any government efforts to force speakers to speak a g overnment-dictated message. While “[t]here is certainly some difference between compelled speech and compelled silence, … in the context of protected speech, the difference is without constitutional significance ….” Id. at 796. Thus, “[l]aws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny” as those “that suppress, disadvantage, or impose differential burdens upon speech because of its content.” Turner Broad. Sys. Inc. v. FCC (“Turner I”), 512 U.S. 624, 642 (1994).
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The Court has also explained that these principles are triggered not merely when the

government forces a person to say particular words, but also when the government forces a

speaker to fund speech with which the speaker disagrees. See, e.g, Abood v. Detroit Bd. of Ed.,

431 U.S. 209, 234-35 (1977) (finding that forced contributions for union political speech violate

the First Amendment “notion that an individual should be free to believe as he will, and that in a

free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by

the State”); United States v. United Foods, 533 U.S. 405, 411 (2001) (finding that forced

contributions for advertising related to unbranded mushrooms violates First Amendment).

2. The mandate violates the Free Speech Clause because it forces Wheaton to engage in government-dictated speech with which it disagrees.
The mandate violates these principles because it forces Wheaton to pay for and sponsor

speech about contraception, sterilization, and drugs that cause abortions. In particular, the

mandate requires Wheaton to pay for “patient education and counseling for all women with reproductive capacity” about these products. 21

As set forth above, Wheaton has religious objections to participating in education and

counseling about abortifacient drugs. Wheaton believes and teaches that use of these products is

impermissible. Paying for and providing counseling and education about using these products

thus directly contradicts Wheaton’s own message against using them.

It is of course possible and permissible for the government to believe that it is good for

people to receive this education and counseling. But the government has no authority to force

Wheaton to provide the counseling or pay for it. Wheaton’s opposition to abortion-inducing

21

Health Resources and Services Administration, Women’s Preventive Services: Required Health

Plan Coverage Guidelines (Aug. 1, 2011) , available at http://www.hrsa.gov/womensguidelines/ (last

visited July 31, 2012).

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drugs may be a minority view, but “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W.V. State Board of Education, 319 U.S. at 642.22
For these reasons, forcing Wheaton to provide counseling and education about these products and services triggers strict scrutiny. Turner I, 512 U.S. at 642. For the reasons set forth above, the Mandate fails strict scrutiny. II. WHEATON WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF
PRELIMINARY RELIEF. Granting preliminary injunctive relief is necessary to prevent Wheaton from suffering harm that is irreparable and imminent. See, e.g., CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 ( D.C. Cir. 1995) (noting that ‘[t]he basis of injunctive relief in the federal courts has always been irreparable harm’”) (quoting Sampson v. Murray, 415 U.S. 61, 88 (1974)); Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985) (explaining that “[t]he injury complained of [must be] of such imminence that there is a ‘clear and present’ need for equitable relief to prevent irreparable harm”).

22

Nor can the government attempt to write off Wheaton’s disagreement with the forced speech as

minor. As the Supreme Court has explained, the First Amendment protection against compelled speech

applies even to disputes that “could be seen as minor.” See United States v. United Foods, 533 U.S. 405,

411 (2001) (“Here the disagreement could be seen as minor: Respondent wants to convey the message

that its brand of mushrooms is superior to those grown by other producers. It objects to being charged for

a message which seems to be favored by a majority of producers. The message is that mushrooms are

worth consuming whether or not they are branded. First Amendment values are at serious risk if the

government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for

speech on the side that it favors; and there is no apparent principle which distinguishes out of hand minor

debates about whether a branded mushroom is better than just any mushroom. As a consequence, the

compelled funding for the advertising must pass First Amendment scrutiny.”). Wheaton’s deeply held

religious beliefs and speech about human life and abortion are at least as worthy of First Amendment

protection as speech about unbranded mushrooms.

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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 46 of 50
Application of the mandate to Wheaton will violate its rights under the First Amendment and RFRA. It is settled that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 ( 1976); accord: Nat’l Treasuries Employees Union v. United States, 927 F .2d 1253, 1254 ( D.C. Cir. 1991) (Thomas, J.). Deprivation of rights secured by RFRA—which affords even greater protection to religious freedom than the Free Exercise Clause—also constitutes irreparable harm. See, e.g., Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (noting that “courts have held that a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (explaining under RFRA that “although the plaintiff's free exercise claim is statutory rather than constitutional, the denial of the plaintiff's right to the free exercise of his religious beliefs is a h arm that cannot be adequately compensated monetarily”); W. Presbyterian Church v. Bd. of Zoning Adjustment of Dist. of Columbia, 849 F. Supp. 77, 79 ( D.D.C. 1994) (granting a preliminary injunction against a zoning ordinance prohibiting a church’s feeding of the homeless based on likely violations of the First Amendment and RFRA). Judge Kane reached the same conclusion last week in the Newland case. See Newland, slip op. a t 8 (noting “it is well-established that the potential violation of Plaintiffs’ constitutional and RFRA rights threatens irreparable harm”) (citation omitted).
Finally, these irreparable harms will fall on Wheaton at a definite time in the immediate future. Cf. Wisconsin Gas Co., 758 F .2d at 674 (explaining that an injury merely “feared” to occur at an “indefinite time” will not suffice for preliminary relief). Wheaton does not qualify for the one-year safe harbor. Wheaton therefore faces the certain prospect of violating the mandate in less than five months’ time—by January 1, 2013—along with the accompanying
38

Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 47 of 50
employer fines and regulatory penalties. And, as explained above, the disruptions occasioned by this impending deadline will actually begin much sooner, as Wheaton begins to negotiate its 2013 policies in preparation for the beginning of open enrollment on November 1, 2012. See, e.g., Newland, slip op. at 8-9 (reasoning that “[i]n light of the extensive planning involved in preparing and providing its employee insurance plan, and the uncertainty that this matter will be resolved before the coverage effective date, Plaintiffs have adequately established that they will suffer imminent irreparable harm absent injunctive relief”). III. THE BALANCE OF EQUITIES TIPS IN WHEATON’S FAVOR.
“In considering whether the balance of equities favors granting a preliminary injunction, courts consider whether an injunction would ‘substantially injure other interested parties.’” Mylan Pharm., __ F. Supp.2d __, 2012 WL 1388256, at *15 (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). Here, the balance of equities overwhelmingly favors Wheaton.
Granting preliminary injunctive relief will merely prevent Defendants from enforcing the mandate against one religious institution. This will simply preserve the status quo between the parties, counseling in favor of granting preliminary relief. Cf. Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) (reasoning that balance of equities tilted against plaintiff where preliminary injunction would “upend the status quo”). Defendants have already exempted a n umber of churches and church-related entities from the mandate, and have additionally delayed enforcement of the mandate against a broader array of religious organizations until August 2013. Preventing Defendants from enforcing the mandate against one other similarly-situated entity would therefore not “substantially injure” Defendants’ interests.
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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 48 of 50
Balanced against this de minimis injury to Defendants is the real and immediate threat to Wheaton’s religious liberty and to the integrity of its faith community. Moreover, Wheaton faces the imminent prospect of either completely dropping or significantly restructuring its employee health insurance—a massive undertaking which will profoundly impact Wheaton’s employees and their families.
In sum, any minimal harm to Defendants in temporarily not enforcing the mandate “pales in comparison to the possible infringement upon Plaintiffs’ constitutional and statutory rights.” Newland, slip op. at 9. IV. AN INJUNCTION IS IN THE PUBLIC INTEREST.
Finally, a preliminary injunction will serve the public interest by protecting Wheaton’s First Amendment and RFRA rights. The public can have no interest in enforcement of a regulation against a religious college that coerces it to violate its own faith. See, e.g., Newland, slip op. at 9-10 (finding “‘there is a strong public interest in the free exercise of religion even where that interest may conflict with [another statutory scheme]’”) (quoting O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc), aff’d and remanded, O Centro, 546 U.S. 418). Furthermore, any interest of Defendants in uniform application of the mandate “is … undermined by the creation of exemptions for certain religious organizations and employers with grandfathered health insurance plans and a temporary enforcement safe harbor for non-profit organizations.” Newland, slip op. at 9.
CONCLUSION Wheaton asks the Court to enter a preliminary injunction against the HHS mandate in accordance with its accompanying motion and proposed order.
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Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 49 of 50
Respectfully submitted, s/Mark L. Rienzi________________ Eric N. Kniffin (DC Bar No. 999473) S. Kyle Duncan (LA Bar No. 25038)
(pro hac vice application to be filed) Mark L. Rienzi (DC Bar No. 494336) Lori Halstead Windham (DC Bar No. 501838) The Becket Fund for Religious Liberty 3000 K St. NW, Suite 220 Washington, DC 20007 (202) 955-0095 (202) 955-0090 (fax) mrienzi@becketfund.org Counsel for Plaintiff
41

Case 1:12-cv-01169-ESH Document 4-1 Filed 08/01/12 Page 50 of 50 CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was electronically filed with the Court’s ECF system on August 1, 2012, and was thereby electronically served on counsel for Defendants.
s/ Mark L. Rienzi______________ Mark L. Rienzi Counsel for Plaintiff
42

 
 Case 1:12-cv-01169-ESH Document 21 Filed 08/24/12 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHEATON COLLEGE, Plaintiff,
v. KATHLEEN SEBELIUS, et al.,
Defendants.

Civil Action No. 12-1169 (ESH)

ORDER Upon consideration of defendants’ motion to dismiss (August 10, 2012 [Dkt. No. 17]), plaintiff’s opposition (August 16, 2012 [Dkt. No. 18]), defendants’ reply (August 20, 2012 [Dkt. No. 19]), and oral argument held on August 23, 2012, and for the reasons stated in the accompanying Memorandum Opinion (August 24, 2012 [Dkt. No. 20]), it is hereby ORDERED that defendants’ motion to dismiss is GRANTED; and it is further ORDERED that this action is hereby DISMISSED without prejudice; and it is further ORDERED that plaintiff’s Motion for Preliminary Injunction (August 1, 2012 [Dkt. No. 4]) is hereby DENIED as moot. SO ORDERED.
/s/ ELLEN SEGAL HUVELLE United States District Judge Date: August 24, 2012

1

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHEATON COLLEGE, Plaintiff,
v. KATHLEEN SEBELIUS, et al.,
Defendants.

Civil Action No. 12-1169 (ESH)

MEMORANUM OPINION Wheaton College, a Christian liberal arts college located in Wheaton, Illinois, has sued, claiming that regulations defendants issued pursuant to the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (March 23, 2010), violates the First Amendment, the Administrative Procedure Act, and the Religious Freedom Restoration Act. (Complaint, July 18, 2012 [Dkt. No. 1] (“Compl.”) ¶¶ 1–2, 6–8.) The regulations require covered employers to offer group health insurance plans that provide women with certain forms of preventive care, including all FDA-approved forms of contraception, without cost sharing. Wheaton argues that it cannot offer health plans that cover emergency contraceptives, namely Plan B (levonorgestrel, or the “morning-after pill”) and Ella (ulipristal, or the “week-after pill”), consistent with its religious beliefs. Wheaton moved for a preliminary injunction on August 1, 2012. (Motion for Preliminary Injunction, August 1, 2012 [Dkt. No. 4] (“Pl. Mot.”).) On August 10, defendants moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), arguing that Wheaton lacks standing and that its claims are not ripe. (Defendants’ Motion to Dismiss, August 10, 2012 [Dkt. No. 17]

1

(“Def. Mot.”).) Wheaton opposed defendants’ motion (August 16, 2012 [Dkt. No. 18] (“Pl. Opp’n”)), defendants filed a reply in further support thereof (August 20, 2012 [Dkt. No. 19] (“Def. Reply”)), and the Court heard oral argument. (8/23 Tr.) Based on this record, the Court concludes that, in light of concrete steps defendants are taking to address Wheaton’s concerns, including their commitment not to enforce the challenged regulations against Wheaton while accommodations are being negotiated, Wheaton has not alleged a concrete and imminent injury and that its claims are not fit for judicial review. For the reasons stated, the Court will grant defendants’ motion to dismiss.
BACKGROUND This action is one of twenty-six lawsuits challenging the Affordable Care Act’s preventive services regulations with regard to their requirements involving contraception.1 In recent decisions granting the federal defendants’ motion to dismiss on standing and ripeness grounds in two of these cases, Judges Urbom and Boasberg described the relevant statutory and regulatory background in detail. See Nebraska ex rel. Bruning v. U.S. Dep’t of Health & Human Servs., --- F. Supp. 2d ----, 2012 WL 2913402, at *2–5 (D. Neb. 2012) (Urbom, J.); Belmont Abbey College v. Sebelius, --- F. Supp. 2d ----, 2012 WL 2914417, at *1–3 (D.D.C. 2012) (Boasberg, J.). In summary, the Affordable Care Act (“ACA”) “requires group health plans to provide women with ‘preventive care and screenings’ at no charge to the patient.” Id. at *1 (quoting 42 U.S.C. § 300gg-13(a)(4)). While certain health plans are grandfathered,2 the rest must, “with respect to women,” cover “such additional preventive care and screenings . . . as 1 See The Becket Fund for Religious Liberty – HHS Mandate Information Central, http://www.becketfund.org/hhsinformationcentral/ (last visited August 24, 2012). 2 Wheaton alleges that its plans are not grandfathered (Compl. ¶ 44) and defendants do not dispute this assertion.
2

provided for in comprehensive guidelines supported by the Health Resources and Services Administration” (“HRSA”) without imposing any cost sharing requirements. Id. § 300gg13(a)(4).
The guidelines subsequently adopted by HRSA require insurance plans to cover, inter alia, all “contraceptive methods,” including Plan B and Ella, “sterilization procedures, and patient education and counseling for all women with reproductive capacity” that are approved by the FDA. Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ (last visited August 24, 2012); see Belmont Abbey College, 2012 WL 2914417, at *1–2 (citing FDA Birth Control Guide, http://www.fda.gov/forconsumers/byaudience/forwomen/ucm118465.htm (last visited August 24, 2012)). Defendants promulgated an interim final rule, effective August 1, 2011, “requiring ‘group health plan[s] and . . . health insurance issuer[s] offering group or individual insurance coverage [to] provide benefits for and prohibit the imposition of cost sharing with respect to’ the preventive services for women included in HRSA’s guidelines.” Id. at *2 (alterations in the original) (quoting Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 76 Fed. Reg. 46,621, 46,622–23 (August 3, 2011) (interim final rules with request for comments); citing 45 C.F.R. § 147.130).
Responding to comments received about a prior interim rule, defendants acknowledged “the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required,” and granted HRSA the authority “to exempt certain religious employers from [its] Guidelines where contraceptive services are concerned.” 76 Fed. Reg. at 46,623. The interim final rule provided a definition for “religious employers” that included houses of worship
3

but did not include institutions like Wheaton College.3 (See Compl. ¶¶ 105–110; Def. Mot. at 7– 8.)
Defendants requested comments on the interim final rule and specifically on its definition of “religious employer.” 76 Fed. Reg. at 46,623. In response to the more than 200,000 comments defendants received, defendants published final regulations adopting the definition of “religious employer” in the interim final rule and simultaneously establishing a temporary enforcement safe harbor for non-profit employers that did not meet that definition’s criteria but that professed religious objections to providing coverage for contraceptives. Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the ACA, 77 Fed. Reg. 8,725, 8,725–8,729 (February 15, 2012) (final rules). Defendants stated that “[b]efore the end of the temporary enforcement safe harbor,” they would “work with stakeholders to develop alternative ways of providing contraceptive coverage without cost sharing with respect to non-exempted, non-profit religious organizations with religious objections to such coverage.” Id. at 8,728.
Defendants have announced that, during the temporary enforcement safe harbor, the government will not take any enforcement action against any employer, group health plan, or group health insurance issuer with respect to a non-grandfathered plan that fails to cover some or all recommended contraceptive services and that is sponsored by an organization that meets the following criteria:
1. The organization is organized and operates as a non-profit entity.
3 The interim final rule defined “a religious employer [as] 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” the Internal Revenue Code.” 76 Fed. Reg. at 46,623.
4

2. From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable [s]tate law, because of the religious beliefs of the organization.
3. . . . [T]he group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or thirdparty administrator) must provide [notice] to participants . . . stat[ing] that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012.
4. The organization self-certifies that it satisfies criteria 1–3 above . . . .
HHS, Guidance on the Temporary Enforcement Safe Harbor, February 10, 2012 (“Feb. 2012
Guidance”) at 3 (footnote omitted), available at
http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf.
In a revised guidance, defendants “clarif[ied] . . .
(1) that the safe harbor is also available to non-profit organizations with religious objections to some but not all contraceptive coverage . . .; (2) that group health plans that took some action to try to exclude or limit contraceptive coverage that was not successful as of February 10, 2012, are not for that reason precluded from eligibility for the safe harbor . . .; and (3) that the safe harbor may be invoked without prejudice by non-profit organizations that are uncertain whether they qualify for the religious employer exemption . . . .
HHS, Guidance on the Temporary Enforcement Safe Harbor, August 15, 2012 (“Aug. 2012
Guidance”) at 1 n.1, available at http://cciio.cms.gov/resources/files/prev-services-guidance-
08152012.pdf; see id. at 3–4 (stating revised criteria for the temporary enforcement safe harbor
in accordance with the above).4
4 Defendants issued the August 2012 Guidance in response to this lawsuit. In its complaint, Wheaton alleged that it was not eligible for the temporary enforcement safe harbor as described in the February 2012 Guidance because “Wheaton’s employee insurance plans . . . currently provide coverage for certain contraceptives and inadvertently provided coverage for a short period after February 10, 2012 for other now-excluded contraceptives,” such as Plan B and Ella. (Compl. ¶ 120; see also Pl. Mot. at 7–9.) In their motion to dismiss, defendants announced an interpretation of the safe harbor criteria encompasses Wheaton, and this interpretation has now
5

The “safe harbor provides an additional year for these group health plans and group health insurance issuers (i.e., until the first plan year beginning on or after August 1, 2013)” to comply with HRSA guidelines regarding contraceptive coverage. Id. at 3. It also provides time for defendants, as they announced in a March 2012 Advanced Notice of Proposed Rulemaking (“ANPRM”), “to expeditiously develop and propose changes to the final regulations” regarding preventive services “that would meet two goals—accommodating non-exempt, non-profit religious organizations’ religious objections to covering contraceptive services and assuring that participants and beneficiaries covered under such organizations’ plans receive contraceptive coverage without cost sharing.” Certain Preventive Services Under the ACA, 77 Fed. Reg. 16,501, 16,503 (March 21, 2012). In the ANPRM, defendants thus “formally declar[ed] their intention to amend the final regulations” with regard to contraceptive coverage “and solicit[ed] input from interested parties and the public.” Belmont Abbey College, 2012 WL 2914417, at *3. Defendants represent that, having received comments on the ANPRM, they “will publish a notice of proposed rulemaking, which will be subject to further public comment, before [they] issue further amendments to the preventive services coverage regulations”; defendants will “finalize the amendments . . . such that they are effective before the end of the temporary enforcement safe harbor.” (Def. Mot. at 10 (citing 77 Fed. Reg. at 16,501, 16,503, 16,508).)
Wheaton College brought suit, claiming that the regulations as currently fashioned violate the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. (Counts I, XIII), the First Amendment (Counts II–X, XIII), and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (Counts XI–XIV).
been formalized in the August 2012 Guidance. (Def. Mot. at 9.) 6

ANALYSIS Defendants have moved to dismiss on standing and ripeness grounds. Because defendants’ claims go to the Court’s jurisdiction, the Court must consider them before addressing Wheaton’s motion for a preliminary injunction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). Wheaton bears the burden of establishing that this Court has jurisdiction over its claims. Id. at 104. I. STANDING [T]o establish constitutional standing, plaintiffs must satisfy three elements: (1) they must have suffered an injury in fact that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical”; (2) the injury must be “fairly traceable to the challenged action of the defendant”; and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” NB ex rel. Peacock v. Dist. of Columbia, 682 F.3d 77, 81 (D.C. Cir. 2012) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). At issue here is whether Wheaton College has alleged an injury in fact. In Whitmore v. Arkansas, 495 U.S. 149 (1990), “the Supreme Court summarized its case law and flatly stated: ‘[W]e have said many times before and reiterate today: Allegations of possible future injury do not satisfy the requirements of Art[icle] III. A threatened injury must be certainly impending to constitute injury in fact.’” Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1294 (D.C. Cir. 2007) (alterations in the original) (quoting Whitmore, 495 U.S. at 158 (collecting cases)). Wheaton concedes that it does not face an impending government enforcement action. It is undisputed, given the August 2012 Guidance, that Wheaton qualifies for the temporary enforcement safe harbor. (Def. Mot. at 12 (citing the declaration of HHS official Michael Hash
7

¶ 5); Pl. Opp’n at 10.) Furthermore, Wheaton has indicated that it will self-certify its eligibility
and take advantage of the safe harbor pursuant to the August 2012 Guidance’s requirements.5
Accordingly, the government “will not take any enforcement action against [Wheaton College]
until the first plan year that begins on or after August 1, 2013.” (Def. Mot. at 12 (citing Aug.
2012 Guidance at 3).) Wheaton College may therefore continue to offer its current health plans,
which do not cover Plan B and Ella, for the upcoming plan year without fear of government
interference.6
5 The upcoming plan year for Wheaton’s employee insurance plans will begin on January 1, 2013. (Compl. ¶ 43.) In opposing defendants’ motion to dismiss, Wheaton stated that “as of that date, Wheaton’s health insurance will be in violation of federal law. . . . Wheaton will now be relieved from government enforcement of the [preventive services regulations] for an extra year, [but] it will still violate federal law” as of January 1. (Pl. Opp’n at 11.) With good reason, the Court and defendants (see Def. Reply at 2) read this as a statement by Wheaton that it would continue its current plans, which do not cover Plan B and Ella, for the upcoming year. However, Wheaton’s lawyer backpedaled at oral argument and asserted that his client has yet to make a final decision about whether it would continue its current coverage or begin offering health plans that include emergency contraceptives. (8/23 Tr. at 33.)
6 At oral argument, counsel for Wheaton claimed that the August 2012 Guidance, which makes Wheaton eligible for the temporary enforcement safe harbor, is irrelevant to the standing analysis because “the standing inquiry [is] focused on whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was filed,” Davis v. FEC, 554 U.S. 724, 734 (2008) (emphasis added), and when Wheaton filed its complaint it alleged that, under the criteria announced in the February 2012 Guidance that were operative at the time, it was not eligible. (Compl. ¶ 120; see 8/23 Tr. at 3–4.) However, the requirement that a plaintiff establish standing “continue[s] throughout the course of the litigation,” Johnson v. Holway, No. 03-cv-2513 (ESH), 2005 WL 3307296, at *25 (D.D.C. Dec. 6, 2005), because “‘[i]f the plaintiff loses standing . . . during the pendency of the proceedings . . ., the matter becomes moot, and the court loses jurisdiction.’” McNair v. Synapse Grp. Inc., 672 F.3d 213, 227 n.17 (3d Cir. 2012) (some alterations in the original) (quoting Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 69 (2d Cir. 2001)). Indeed, the standing “requirement subsists through all stages of federal judicial proceedings,” and “it is not enough that a dispute was very much alive when suit was filed” because “[t]he parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (citations and some internal quotation marks omitted) (quoting Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)). In sum, “Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation.” Nat’l Org. for Women v. Scheidler, 510 U.S. 249, 255 (1994).
8

Wheaton protests that it still alleges a “‘certainly impending’” injury, Lujan, 504 U.S. at 564 n.2 (some internal quotation marks omitted) (quoting Whitmore, 495 U.S. at 158), because it may be subject to ERISA lawsuits attempting enforcement of the preventive services regulations. (Pl. Opp’n at 11.) However, even crediting Wheaton’s assertion that it is “completely exposed” to such actions (id. (citing 29 U.S.C. §§ 1132(a), 1185d(a)(1))), it is well-established that the theoretical possibility of harm from future litigation does not, without more, confer standing. “‘Allegations of injury based on predictions regarding future legal proceedings are . . . too speculative to invoke the jurisdiction of an Article III Court.’” City of Orrville v. FERC, 147 F.3d 979, 987 (D.C. Cir. 1998) (alteration in the original) (quoting Platte River Whooping Crane Critical Habitat Maint. Trust v. FERC, 962 F.2d 27, 35 (D.C. Cir. 1992) (citing Whitmore, 495 U.S. at 157)); see also Salvation Army v. Dep’t of Cmty. Affairs of New Jersey, 919 F.2d 183, 193 (3d Cir. 1990) (concluding that “the theoretical possibility of a suit against [plaintiff] by a program beneficiary” was not sufficient to establish jurisdiction); Belmont Abbey College, 2012 WL 2914417, at *15 (rejecting an argument identical to that raised by Wheaton College (citing Salvation Army, 919 F.2d at 193)).
Furthermore, Wheaton has not demonstrated that there is anything “actual or imminent,” Whitmore, 495 U.S. at 155, about the specter of a “participant [in] or beneficiary of” one of Wheaton’s health plans suing under ERISA, 29 U.S.C. § 1132(a), to challenge the fact that the
Furthermore, although the burden lies with the party asserting mootness, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000), the fact that a case becomes moot when plaintiff loses standing, McNair, 672 F.3d at 227 n.17, does not mean that it is somehow defendant’s burden to show that plaintiff no longer faces imminent injury. To the contrary, “[t]he party asserting federal jurisdiction bears the burden of establishing [that it has standing] at every stage of the litigation, as it does for ‘any other essential element of the case.’” Krottner v. Starbucks Corp., 628 F.3d 1139, 1141 (9th Cir. 2010) (quoting Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002)).
9

plan does not cover Plan B or Ella. To the contrary, the allegations in Wheaton’s complaint
support the conclusion that this is a “‘conjectural’ or ‘hypothetical’” possibility. Whitmore, 495
U.S. at 155 (quoting Lyons, 461 U.S. at 101–02). (See Compl. ¶¶ 20–29, 37–38.) “Each year, all
Wheaton College students and full-time employees commit themselves to” the “Christian
community of living, learning, and serving that Wheaton College aspires to be . . . by signing
Wheaton College’s Community Covenant.” (Id. ¶¶ 25–26.) That Covenant “recognizes that
Scripture condemns the taking of innocent life.” (Id. ¶ 28.) Wheaton alleges that it “believes
and teaches that abortion ends a human life and is a sin” (id. ¶ 29); that its “religious beliefs
prohibit it from deliberately providing insurance coverage for drugs, procedures, or services
inconsistent with its faith, in particular abortion-inducing drugs” (id. ¶ 37); and that these
include, in Wheaton’s view, Plan B and Ella. (Id. ¶ 90.) Therefore, the possibility that Wheaton
College health plan participants, all of whom have signed the Community Covenant, or
beneficiaries, who are likely family members of Wheaton employees, would sue Wheaton to secure free access to Plan B and Ella is remote at best.7 It is therefore reasonable to conclude
that such private suits are not “certainly impending.” Whitmore, 495 U.S. at 158.
7 Wheaton provides health insurance for its 709 full-time employees. (Compl. ¶ 35; Pl. Opp’n at 1.) At oral argument, counsel for Wheaton affirmed the complaint’s allegation that all of Wheaton’s full-time employees, and therefore all of its health plans’ participants, have signed the Community Covenant. (8/23 Tr. at 7.) The Court recognizes that Wheaton also provides health insurance for its employees’ family members (Pl. Mot. at 7), who may not necessarily share the views described in Wheaton’s complaint. Nonetheless, counsel for Wheaton admitted that he did not know if anyone had ever asked Wheaton to cover Plan B or Ella, and that he had no concrete evidence to support his claim that a private ERISA suit is a realistic threat. (8/23 Tr. at 9–10; id. at 32 (“[W]hether the actual lawsuit happens next year is at some level speculative . . . . We don’t have a crystal ball and we don’t know . . . .”).) See Salvation Army, 919 F.2d at 193 (“Nothing in the current record indicates that [plaintiff] has been threatened with suit . . . or provides any other reason to believe that [plaintiff’s] professed fear of a . . . suit is a realistic one.”).
10

In arguing to the contrary, Wheaton relies heavily, if not exclusively, on Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995). Wheaton’s reliance is misplaced. In Chamber of Commerce, the Circuit’s conclusion that plaintiffs had standing to challenge a Federal Election Commission regulation on political speech was premised on its belief that a government enforcement action, even if not imminent, was nonetheless likely. While the Chamber of Commerce plaintiffs were “not faced with any present danger of an enforcement proceeding” because the Commission could not act while it was tenuously “split three-three,” the Circuit held that plaintiffs had standing because “[n]othing” would “prevent[] the Commission from enforcing its rule at any time with, perhaps, another change of mind of one of the Commissioners.” 69 F.3d at 603; see id. at 603–04 (“A party has standing to challenge, preenforcement, even the constitutionality of a statute if First Amendment rights are arguably chilled, so long as there is a credible threat of [government] prosecution.” (citing, inter alia, Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392–93 (1988) (finding plaintiffs had standing to bring a pre-enforcement First Amendment challenge because “[t]he [s]tate has not suggested that the newly enacted law will not be enforced” and “plaintiffs have alleged an actual and wellfounded fear that the law will be enforced against them”))).
Here, however, the government’s commitment not to act against employers that qualify for the temporary enforcement safe harbor was the product of sustained agency and public deliberation, see 77 Fed. Reg. at 8,726–27, and it represents a final decision, see 77 Fed. Reg. at 16,502–03, that has been reiterated twice. See Feb. 2012 Guidance; Aug. 2012 Guidance. Wheaton has not even argued that the Court should question the government’s promise not to enforce the preventive services regulations against it while defendants work with Wheaton and others to revise them. This alone serves to distinguish Chamber of Commerce, where there was
11

no formal commitment not to prosecute and an enforcement action was likely enough that even counsel for the government “agreed at oral argument—as he really had to—that he would not advise [plaintiffs] to ignore the rule” that they were challenging. 69 F.3d at 603.
Moreover, the Chamber of Commerce plaintiffs alleged that in the prior election cycle they responded to the issuance of the FEC regulation by ceasing the political activity that the regulation affected. Id. at 602, 603. They thus substantiated their allegations regarding the chilling effect of the challenged regulation on their constitutionally protected speech by putting forward a credible “‘claim of specific present objective harm.’” Bigelow v. Virginia, 421 U.S. 809, 816–17 (1975) (quoting Laird v. Tatum, 408 U.S. 1, 14 (1972)).
Therefore, the fact that the Circuit in Chamber of Commerce also cited plaintiffs’ First Amendment claims and the potential that plaintiffs would be “subject to [private] litigation challenging the legality of their actions,” 69 F.3d at 603–04, provides scant support for Wheaton’s arguments. Wheaton is unquestionably exempt from government enforcement actions during the safe harbor and it has indicated, in opposing defendants’ motion to dismiss, that it will not compromise its beliefs in response to the preventive services regulations during that period. (Pl. Opp’n at 10–11.) As noted above (see supra n.5), Wheaton’s counsel retreated from this unequivocal statement of its future plans at oral argument, and described the “coercive” effect of the government’s preventive services regulations on Wheaton’s decision as the source of Wheaton’s present injury. (8/23 Tr. at 12; see id. at 8–13, 18, 32–33, 39.) However, “allegations of chilling injury are not sufficient basis for standing to challenge a government action, at least when the chill is ‘subjective’ and not substantiated by evidence that the government action has a present and concrete effect.” Salvation Army, 919 F.2d at 193
12

(emphasis added) (quoting Laird, 408 U.S. at 13) (collecting cases)). Indeed, the Supreme Court
has emphasized that while its precedent
recognize[s] that governmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment Rights, . . . these decisions have in no way eroded the ‘established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger of sustaining, a direct injury as the result of that action . . . .’
Laird, 408 U.S. at 13 (quoting Ex parte Levitt, 302 U.S. 633, 634 (1937)). Wheaton has “not
[met] this test; [its] claim, simply stated, is that [it] disagree[s] with the judgments made by the
Executive Branch with respect to” what preventive services health insurance plans must cover,
“and that the very existence” of these regulations (notwithstanding the fact that they are presently
in flux and that the government will not enforce them against Wheaton while they are being
amended to address Wheaton’s concerns) “produces a constitutionally impermissible chilling
effect upon the exercise of [its] First Amendment Rights.” Id. But “[a]llegations of a subjective
‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of
specific future harm; ‘the federal courts established pursuant to Article III of the Constitution do
not render advisory opinions.’” Id. at 13–14 (quoting United Pub. Workers of Am. (C.I.O.) v.
Mitchell, 330 U.S. 75, 89 (1947)).
Wheaton has not demonstrated that it has standing.
II. RIPENESS In addition, Wheaton’s claims are not ripe.8 “In assessing the prudential ripeness of a
case,” courts consider two factors: “the ‘fitness of the issues for judicial decision’ and the extent 8 Judges Urbom and Boasberg concluded the same as to the almost identical claims raised by the plaintiffs before them. See Nebraska ex rel. Bruning, 2012 WL 2913402, at *20–24; Belmont Abbey College, 2012 WL 2914417, at *10–15.
13

to which withholding a decision will cause ‘hardship to the parties.’” Am. Petroleum Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977)).
Wheaton argues that its claims are fit for judicial decision because the preventive services regulations are binding legal rules that constrain Wheaton’s choices with regard to the health insurance purchasing decisions. (Pl. Opp’n at 21–22, 26–27.) Having rejected a similar standing argument, the Court will reject Wheaton’s ripeness argument as well. The two doctrines are closely related. See Allen v. Wright, 468 U.S. 737, 750 (1984); Belmont Abbey College, 2012 WL 2914417, at *10. Yet, they are motivated by somewhat different concerns. The standing doctrine reflects the constitutional imperative that “federal courts sit ‘solely[] to decide on the rights of individuals,’” Hein v. Freedom from Religion Foundation, Inc., 551 U.S. 587, 598 (2007) (quoting Marbury v. Madison, 1 Cranch 137, 170 (1803)), “and must ‘refrai[n] from passing upon the constitutionality of an act . . . unless obliged to do so in the proper performance of [the] judicial function, when the question is raised by a party whose interests entitle him to raise it.’” Id. (alterations in the original) (quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 474 (1982)). By ensuring that plaintiffs have standing, courts enforce Article III’s limitations on their own powers.
Ripeness, on the other hand, is also concerned with the separation of powers, particularly where agency review is concerned. In addition to preserving the proper role of courts under Article III, the ripeness doctrine “‘prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also . . . protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’” Nat’l Park
14

Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807–08 (2003) (quoting Abbott Labs.,
387 U.S. at 148–49). The fitness requirement of the ripeness inquiry thus “protect[s] ‘the
agency’s interest in crystallizing its policy before that policy is subjected to judicial review and
the court’s interests in avoiding unnecessary adjudication and in deciding issues in a concrete
setting.’” Am. Petroleum Inst., 683 F.3d at 387 (quoting Wyo. Outdoor Council v. U.S. Forest
Serv., 165 F.3d 43, 49 (D.C. Cir. 1999)). As such, the “fitness of an issue” depends in large part
on “‘whether the agency’s action is sufficiently final.’” Id. (quoting Atl. States Legal Found. v.
EPA, 325 F.3d 281, 284 (D.C. Cir. 2003)).
Courts decline to review “tentative” agency positions because doing so “severely compromises the interests” the ripeness doctrine protects: “The agency is denied full opportunity to apply its expertise and to correct errors or modify positions in the course of a proceeding, the integrity of the administrative process is threatened by piecemeal review of the substantive underpinnings of a rule, and judicial economy is disserved because judicial review might prove unnecessary if persons seeking such review are able to convince the agency to alter a tentative position.”
Id. (emphasis added) (quoting Pub. Citizen Health Research Grp. v. FDA, 740 F.2d 21, 31 (D.C.
Cir. 1984)).
Because they are in the process of being amended, see 77 Fed. Reg. at 16,501 (ANPRM),
the preventive services regulations are by definition a tentative agency position “‘in which the
agency expressly reserves the possibility that its opinion might change.’” Birdman v. Office of
the Governor, 677 F.3d 167, 173 (3d Cir. 2012) (internal quotation marks and alterations omitted) (quoting Natural Res. Defense Council v. FAA, 292 F.3d 875, 883 (D.C. Cir. 2002)).9
9 Wheaton protests that its “challenge to the [preventive services regulations] raises questions of law largely independent of context-specific facts” (Pl. Opp’n at 22), and that “if the issue raises a purely legal question . . . [courts] assume its threshold suitability for judicial determination.” Eagle-Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985). However, even were the Court to agree that Wheaton’s claims are purely legal, that does not end the inquiry. After deciding
15

The ANPRM is “‘clearly not some non-substantive, thinly veiled attempt [by defendants] to
evade review.’” Belmont Abbey College, 2012 WL 2914417, at *13 (quoting Am. Petroleum
Inst., 683 F.3d at 388); accord Nebraska ex rel. Bruning, 2012 WL 2913402, at *23 (the fact that
the preventive services regulation itself “describes the temporary enforcement safe harbor,” and
that the agencies have undertaken “a new proposed rulemaking[,] dispels the notion that the
defendants are engaged in review-evading gamesmanship”).10 And the fact that defendants may
have settled on a definition of the “religious employers” that will be exempted from certain of
the preventive services requirements11 is irrelevant given that the requirements themselves are
anything but final. See id. at *22.
that an “issue raises a purely legal question,” courts must still “consider whether the agency or the court will benefit from deferring review until the agency’s policies have crystallized and the ‘question arises in some more concrete and final form.’” Eagle-Picher Indus., 759 F.2d at 915 (quoting Abbott Labs., 387 U.S. at 149); see Belmont Abbey College, 2012 WL 2914417, at *14 (“courts should refrain from ‘intervening into matters that may best be reviewed at another time or in another setting,’ even if the issue presented is ‘purely legal’” (quoting Full Value Advisors v. SEC, 633 F.3d 1101, 1106 (D.C. Cir. 2011)).
10 Defendants have taken significant steps toward revising the preventive services regulations:
They have published their plan to amend the rule to address the exact concerns [p]laintiff raises in this action and have stated clearly and repeatedly in the Federal Register that they intend to finalize the changes before the enforcement safe harbor ends. . . . Not only that, but [d]efendants have already initiated the amendment process by issuing an ANPRM. . . . The government, moreover, has done nothing to suggest that it might abandon its efforts to modify the rule— indeed, it has steadily pursued that course—and it is entitled to a presumption that it acts in good faith. See . . . Comcast Corp. v. F.C.C., 526 F.3d 763, 769 n.2 (D.C. Cir. 2008) (“We must presume an agency acts in good faith . . . .”).
Belmont Abbey College, 2012 WL 2914417, at *9 (some internal quotation marks and citations omitted).
11 In addition, counsel for the defendants stated at oral argument that the ANPRM “certainly doesn’t foreclose changing the religious employer exemption.” (8/23 Tr. at 27.)
16

Moreover, the regulations Wheaton challenges are being amended precisely in order to accommodate Wheaton’s concerns. See AT&T Corp. v. FCC, 369 F.3d 554, 563 (D.C. Cir. 2004) (per curiam) (dismissing challenge as unripe because of “ongoing rulemaking proceedings . . . address[ing] the issues raised by [petitioner]”). Wheaton only tilts at windmills when it protests that it will not be satisfied with whatever amendments defendants ultimately make. Indeed, Wheaton’s argument that various hypothetical accommodations are insufficient (see Pl. Opp’n at 16–17, 19, 23–26) only serves to underscore why this Court ought not address the merits of Wheaton’s claims until the preventive services regulations “have taken on fixed and final shape so that [the Court] can see what legal issues it is deciding.” Pub. Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 244 (1952).
Nor has Wheaton demonstrated a hardship from any delay that would override its claims’ lack of fitness for judicial review. See Am. Petroleum Inst., 683 F.3d at 389 (“Considerations of hardship that might result from delaying review ‘will rarely overcome the finality and fitness problems inherent in attempts to review tentative positions.’” (quoting Pub. Citizen Health Research Grp., 740 F.2d at 31)). “Costs stemming from [Wheaton’s] desire to prepare for contingencies are not sufficient . . . to constitute a hardship for purposes of the ripeness inquiry—particularly when [defendants’] promises and actions suggest the situation [Wheaton] fears may not occur.” Belmont Abbey College, 2012 WL 2914417, at *14 (collecting cases). And “[t]he planning insecurity [Wheaton] advances” with regard to what the preventive services regulations may (or may not) require of it does not suffice to show hardship. Tenn. Gas Pipeline Co. v. FERC, 736 F.2d 747, 751 (D.C. Cir. 1984).
CONCLUSION “In sum, the application of” the preventive services regulations to Wheaton “remains
17

hypothetical.” Id. Wheaton’s arguments do not set its case apart from the mine run of situations in which an enterprise confronts . . . projected application of regulatory or fiscal legislation. Were [courts] to entertain anticipatory challenges pressed by parties facing no imminent threat of adverse agency action, no hard choice between compliance certain to be disadvantageous and a high probability of strong sanctions, . . . [they] would venture away from the domain of judicial review into a realm more accurately described as judicial preview. No roving preview function has been assigned to courts in the federal system.
Id. (citations omitted). Defendants’ motion to dismiss on jurisdictional grounds will be granted. A separate
Order accompanies this Memorandum Opinion. /s/
ELLEN SEGAL HUVELLE United States District Judge Date: August 24, 2012
18

 
 Case 1:12-cv-01169-ESH Document 23 Filed 08/29/12 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHEATON COLLEGE,

)

)

Plaintiff,

)

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of The United )

States Department of Health and Human Services; )

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; HILDA SOLIS,

)

Secretary of the United States Department of Labor; )

UNITED STATES DEPARTMENT OF LABOR; )

TIMOTHY GEITHNER, Secretary of the United )

States Department of the Treasury; and UNITED )

STATES DEPARTMENT OF THE TREASURY, )

)

Defendants.

)

)

Case No. 1:12-cv-01169-ESH

NOTICE OF APPEAL Notice is hereby given this 29th day of August, 2012, that Plaintiff Wheaton College hereby appeals to the United States Court of Appeals for the District of Columbia Circuit from the judgment of this Court entered on A ugust 24, 2012 (Dkt. 21), in favor of the above-captioned Defendants against Plaintiff Wheaton College. The Court’s order granted Defendants’ motion to dismiss, dismissed this action without prejudice, and denied as moot Plaintiff’s motion for preliminary injunction.

August 29, 2012

Respectfully submitted,
s/Mark L. Rienzi________________ Eric N. Kniffin (DC Bar No. 999473) S. Kyle Duncan (LA Bar No. 25038)
(admitted pro hac vice) Mark L. Rienzi (DC Bar No. 494336) Lori Halstead Windham (DC Bar No. 501838)
1

Case 1:12-cv-01169-ESH Document 23 Filed 08/29/12 Page 2 of 3 The Becket Fund for Religious Liberty 3000 K St. NW, Suite 220 Washington, DC 20007 (202) 955-0095 (202) 955-0090 (fax) mrienzi@becketfund.org Counsel for Plaintiff
2

Case 1:12-cv-01169-ESH Document 23 Filed 08/29/12 Page 3 of 3 CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was electronically filed with the Court’s ECF system on August 29, 2012, and was thereby electronically served on counsel for Defendants.
s/ Mark L. Rienzi______________ Mark L. Rienzi Counsel for Plaintiff
3

 
 Case 1:12-cv-01169-ESH Document 27 Filed 12/18/12 Page 1 of 3

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 12-5273
Wheaton College, Appellant
v. Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, et al.,
Appellees

September Term, 2012
1:11-cv-01989-JEB 1:12-cv-01169-ESH
Filed On: December 18, 2012

-----------------------------Consolidated with 12-5291

BEFORE: Garland and Griffith, Circuit Judges, and Randolph, Senior Circuit Judge
O R D E R
In their July 2010 Interim Final Rule, the government appellees issued regulations under the Affordable Care Act, 42 U.S.C. § 300gg-13(a)(4), requiring group health plans and health insurance issuers, unless grandfathered or otherwise exempt, to cover “preventive care and screening[s]” for women in accordance with guidelines to be promulgated by appellee Department of Health and Human Services at a later date. 75 Fed. Reg. 41,726, 41,728 (July 19, 2010). On August 1, 2011, the Department issued those guidelines, which require plans to cover all “FDA approved contraceptive[s].” See 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012). An amended Interim Final Rule authorized an exemption for certain organizations with religious objections to contraception, but the exemption does not extend to the appellant religious colleges in these cases. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). The appellants have filed complaints challenging the requirement that they provide contraceptive services in two separate complaints consolidated on appeal, which the district courts dismissed on grounds of standing and ripeness. Dismissal for lack of standing was erroneous because standing is assessed at the time of filing, Chamber of Commerce v. EPA, 642

Case 1:12-cv-01169-ESH Document 27 Filed 12/18/12 Page 2 of 3

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 12-5273

September Term, 2012

F.3d 192, 200 (D.C. Cir. 2011), and the colleges clearly had standing when these suits were filed. The ripeness question is more difficult.
In the Federal Register notice announcing their February 2012 Final Rule, the appellees left the religious employer exemption unchanged but created a safe harbor from enforcement of the contraceptive coverage requirement for entities like the appellants, which remains in effect until the first plan year that begins on or after August 1, 2013. 77 Fed. Reg. at 8728. (The plan years of both appellants begin January 2014.) The notice also announced the appellees’ intention to “develop and propose changes to these final regulations that would meet two goals” -- providing contraceptive coverage without cost-sharing to covered individuals and accommodating the religious objections of non-profit organizations like appellants. Id. at 8727. Thereafter, on March 21, 2012, the appellees issued an Advance Notice of Proposed Rulemaking (ANPRM), which states: “The Departments intend to propose that, when offering insured coverage to a religious organization that self-certifies as qualifying for the accommodation, a health insurer may not include contraceptive coverage in that organization's insured coverage. This means that contraceptive coverage would not be included in the plan document, contract, or premium charged to the religious organization.” 77 Fed. Reg. 16,501, 16,505 (Mar. 21, 2012). (The ANPRM went on to state: “Instead, the issuer would be required to provide participants and beneficiaries covered under the plan separate coverage for contraceptive services . . . without cost sharing . . . .” Id.)
At oral argument, the government went further. First, it represented to the court that it would never enforce 45 C.F.R. § 147.130(a)(1)(iv) in its current form against the appellants or those similarly situated as regards contraceptive services. Oral Arg. Recording at 36:25 - 36:33. There will, the government said, be a different rule for entities like the appellants, Oral Arg. Recording at 37:25 - 38:46, and we take that as a binding commitment. The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013. Oral Arg. Recording at 35:39 - 36:02.
We take the government at its word and will hold it to it. See EPA v. Brown, 431 U.S. 99 (1977). Based expressly upon the understanding that the government will not deviate from its considered representations to this court, we conclude that the cases are not fit for review at this time because “[i]f we do not decide [the merits of appellants’ challenge to the current rule] now, we may never need to.” Am. Petroleum Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012) (quoting Nat'l Treasury Emps. Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996)); see Devia v. Nuclear Regulatory Comm’n, 492 F.3d 421, 424 (D.C. Cir. 2007) (same). The colleges argue that the government's promise not to enforce the mandate still leaves them exposed to liability

Page 2

Case 1:12-cv-01169-ESH Document 27 Filed 12/18/12 Page 3 of 3

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________

No. 12-5273

September Term, 2012

from ERISA claims brought by employees and other beneficiaries. Although the parties disagree over the likelihood of that happening, we see nothing about the bringing of those claims that alters our conclusion that the petitioners’ lawsuits should be held in abeyance pending the new rule that the government has promised will be issued soon. Upon consideration of the foregoing, it is
ORDERED, that in reliance upon the Departments’ binding representations, this court will hold these cases in abeyance, subject to regular status reports to be filed by the government with this court every 60 days from the date of this order. See Am. Petroleum Inst. v. EPA, 683 F.3d at 390.

Per Curiam

FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Scott H. Atchue Deputy Clerk

Page 3

 
 Case 1:12-cv-01169-ESH Document 28 Filed 08/13/13 Page 1 of 1

~nitta ~tatts <!lour± of J\pptals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 12-5273
Wheaton College, Appellant
v. Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, et al.,
Appellees Consolidated with 12-5291

September Term, 2012
1 :11-cv-01989-JEB 1 :12-cv-01169-ESH
Filed On: August 13, 2013

BEFORE: Garland, Chief Judge; Griffith, Circuit Judge; Randolph, Senior Circuit Judge
ORDER
Upon consideration of the joint motion to issue mandate, and in light of the issuance of the final rules, as represented in the parties' motion, it is
ORDERED that these consolidated cases be remanded to the United States District Court for the District of Columbia with instructions to vacate their judgments and to dismiss the complaints as moot.
The Clerk is directed to issue forthwith to the district court a certified copy of this order in lieu of formal mandate.
Per Curiam
FOR THE COURT: Mark J. Langer, Clerk
BY: /s/ Michael C. McGrail Deputy Clerk

 
 Case 1:12-cv-01169-ESH Document 29 Filed 08/19/13 Page 1 of 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHEATON COLLEGE, Plaintiff,
v. KATHLEEN SEBELIUS, et al.,
Defendants.

Civil Action No. 12-1169 (ESH)

ORDER On August 13, 2013, the Court of Appeals issued an order remanding the abovecaptioned matter to this Court “with instructions to vacate [the] judgment[] and dismiss the complaint[] as moot” and directing the Clerk to issue a certified copy of its order in lieu of a formal mandate. Order, Wheaton College v. Sebelius, No. 12-5273 (D.C. Cir. Aug. 13, 2013). The certified copy of the Court of Appeals order has now been docketed. (See Order, Aug. 13, 2013 [ECF No. 28].) Accordingly, it is hereby ORDERED that the judgment set forth in the Order filed on August 24, 2012 [ECF No. 21] is VACATED; and it is further ORDERED that the complaint is DISMISSED AS MOOT.

Date: August 19, 2013

/s/ ELLEN SEGAL HUVELLE United States District Judge

 
 Case: 1:12-cv-1169 As of: 02/08/2016 06:59 PM EST 1 of 4
APPEAL,CLOSED,JURY,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:12−cv−01169−ESH

WHEATON COLLEGE v. SEBELIUS et al Assigned to: Judge Ellen S. Huvelle Case in other court: 12−05273 Cause: 42:2000 Religion
Plaintiff
WHEATON COLLEGE

Date Filed: 07/18/2012 Date Terminated: 08/24/2012 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Eric Nieuwenhuis Kniffin THE BECKET FUND 3000 K Street, NW Suite 220 Washington, DC 20007 (202) 349−7210 Email: ekniffin@becketfund.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lori H. Windham THE BECKET FUND 3000 K. Street, NW Suite# 220 Washington, DC 20007 (202) 349−7202 Email: lwindham@becketfund.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark L. Rienzi THE BECKET FUND FOR RELIGIOUS LIBERTY 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 (202) 507−0834 Email: mrienzi@becketfund.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Kyle Duncan THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K St. NW Suite 220 Washington, DC 20007 (202) 349−7209 Email: kduncan@becketfund.org PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
KATHLEEN SEBELIUS Secretary of the United States Department of Health and Human Services

represented by Michelle Renee Bennett U.S. DEPARTMENT OF JUSTICE Civil Division 20 Massachusetts Avenue, NW Room 7200

Case: 1:12-cv-1169 As of: 02/08/2016 06:59 PM EST 2 of 4

Washington, DC 20530 (202) 305−8902 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES

represented by Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
HILDA SOLIS Secretary of the United States Department of Labor

represented by Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF LABOR

represented by Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
TIMOTHY F. GEITHNER Secretary of the United States Department of the Treasury

represented by Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
UNITED STATES DEPARTMENT OF THE TREASURY

represented by Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/18/2012
07/18/2012 07/18/2012
07/23/2012 08/01/2012

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 0090−3006350) filed by WHEATON COLLEGE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Kathleen Sebelius, # 3 Summons US Department of Health and Human Services, # 4 Summons Hilda Solis, # 5 Summons US Department of Labor, # 6 Summons Timothy Geithner, # 7 Summons US Department of the Treasury)(Kniffin, Eric) (Entered: 07/18/2012)
Case Assigned to Judge Ellen S. Huvelle. (sth, ) (Entered: 07/18/2012)
2 Electronic Summons (6) Issued as to TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons)(sth, ) (Entered: 07/18/2012)
3 NOTICE of Appearance by Mark L. Rienzi on behalf of WHEATON COLLEGE (Rienzi, Mark) (Entered: 07/23/2012)
4 MOTION for Preliminary Injunction by WHEATON COLLEGE (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F)(Rienzi, Mark) (Entered: 08/01/2012)

Case: 1:12-cv-1169 As of: 02/08/2016 06:59 PM EST 3 of 4

08/02/2012 08/03/2012
08/03/2012
08/03/2012 08/07/2012 08/07/2012 08/07/2012 08/07/2012 08/07/2012 08/07/2012 08/07/2012 08/07/2012 08/09/2012 08/10/2012 08/10/2012
08/16/2012

5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− S. Kyle Duncan, :Firm− The Becket Fund, :Address− 3000 K St. NW, Ste. 220, Washington, DC 20007. Phone No. − 202−349−7209. Fax No. − 202−955−0090 by WHEATON COLLEGE (Attachments: # 1 Declaration)(Kniffin, Eric) (Entered: 08/02/2012)
MINUTE ORDER: it is hereby ORDERED that 5 Motion for Leave to Appear Pro Hac Vice is GRANTED; and it is further ORDERED that S. Kyle Duncan is admitted pro hac vice for the purpose of appearing in open court in the above−captioned case subject to his applying for admission to the Bar of this Court upon the granting of his pending application for admission to the District of Columbia Bar. Signed by Judge Ellen S. Huvelle on August 3, 2012. (AG) (Entered: 08/03/2012)
6 SCHEDULING ORDER: Defendants' motion is due by 8/10/2012 at 12 p.m., plaintiff's opposition is due by 8/16/2012, and defendants' reply is due by 8/20/2012. Motion hearing set for 8/23/2012 at 2:30 p.m. in Courtroom 23A before Judge Ellen S. Huvelle. Signed by Judge Ellen S. Huvelle on August 3, 2012. (lcesh1) (Entered: 08/03/2012)
Minute Entry for proceedings held before Judge Ellen S. Huvelle: Telephone Conference held in Chambers on 8/3/2012. (gdf) (Entered: 08/03/2012)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. KATHLEEN SEBELIUS served on 7/24/2012 (Kniffin, Eric) (Entered: 08/07/2012)
8 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES served on 7/24/2012 (Kniffin, Eric) (Entered: 08/07/2012)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. HILDA SOLIS served on 7/24/2012 (Kniffin, Eric) (Entered: 08/07/2012)
10 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF LABOR served on 7/24/2012 (Kniffin, Eric) (Entered: 08/07/2012)
11 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. TIMOTHY GEITHNER served on 7/25/2012 (Kniffin, Eric) (Entered: 08/07/2012)
12 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF THE TREASURY served on 7/25/2012 (Kniffin, Eric) (Entered: 08/07/2012)
13 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 7/24/2012. Answer due for ALL FEDERAL DEFENDANTS by 9/22/2012. (Kniffin, Eric) (Entered: 08/07/2012)
14 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 07/24/2012. (Kniffin, Eric) (Entered: 08/07/2012)
15 NOTICE of Appearance by Lori H. Windham on behalf of WHEATON COLLEGE (Windham, Lori) (Entered: 08/09/2012)
16 NOTICE of Appearance by Michelle Renee Bennett on behalf of All Defendants (Bennett, Michelle) (Entered: 08/10/2012)
17 MOTION to Dismiss for Lack of Jurisdiction by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY (Attachments: # 1 Memorandum in Support, # 2 Declaration of Michael Hash, # 3 Exhibit 1 to Hash Declaration, # 4 Text of Proposed Order)(Bennett, Michelle) (Entered: 08/10/2012)
18 Memorandum in opposition to re 17 MOTION to Dismiss for Lack of Jurisdiction filed by WHEATON COLLEGE. (Attachments: # 1 Exhibit A)(Rienzi, Mark) (Entered: 08/16/2012)

Case: 1:12-cv-1169 As of: 02/08/2016 06:59 PM EST 4 of 4

08/20/2012
08/23/2012 08/24/2012 08/24/2012 08/29/2012 08/29/2012 08/29/2012
08/30/2012 08/30/2012 09/07/2012 09/12/2012 12/18/2012
08/13/2013
08/19/2013

19 REPLY to opposition to motion re 17 MOTION to Dismiss for Lack of Jurisdiction filed by TIMOTHY GEITHNER, KATHLEEN SEBELIUS, HILDA SOLIS, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, UNITED STATES DEPARTMENT OF LABOR, UNITED STATES DEPARTMENT OF THE TREASURY. (Attachments: # 1 Exhibit A)(Bennett, Michelle) (Entered: 08/20/2012)
Minute Entry for Proceedings held before Judge Ellen S. Huvelle: Motion Hearing held on 8/23/2012 re: 17 MOTION to Dismiss for Lack of Jurisdiction. Motion was Heard and Taken Under Advisement. (Court Reporter: Scott Wallace) (jth) (Entered: 08/23/2012)
20 MEMORANDUM OPINION re 17 defendants' motion to dismiss. Signed by Judge Ellen S. Huvelle on August 24, 2012. (lcesh1) (Entered: 08/24/2012)
21 VACATED PER ORDER FILED 8/19/2013.....ORDER granting 17 defendants' motion to dismiss, and denying as moot 4 plaintiff's motion for a preliminary injunction. Signed by Judge Ellen S. Huvelle on August 24, 2012. (lcesh1) (Entered: 08/24/2012)
22 ENTERED IN ERROR.....NOTICE of Appeal by WHEATON COLLEGE re 21 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss/Lack of Jurisdiction, 20 Memorandum & Opinion (Rienzi, Mark) Modified on 8/29/2012 (jf, ). (Entered: 08/29/2012)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 22 NOTICE of Appeal was entered in error and counsel was instructed to refile said pleading under the correct category (Appeal Documents Event). (jf, ) (Entered: 08/29/2012)
23 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 21 Order on Motion for Preliminary Injunction, Order on Motion to Dismiss/Lack of Jurisdiction, 20 Memorandum & Opinion by WHEATON COLLEGE. Filing fee $ 455, receipt number 0090−3052669. Fee Status: Fee Paid. Parties have been notified. (Rienzi, Mark) (Entered: 08/29/2012)
24 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 23 Notice of Appeal to DC Circuit Court,. (jf, ) (Entered: 08/30/2012)
25 **CORRECTED**Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 23 Notice of Appeal to DC Circuit Court,. (jf, ) (Entered: 08/30/2012)
USCA Case Number 12−5273 for 23 Notice of Appeal to DC Circuit Court, filed by WHEATON COLLEGE. (jf, ) (Entered: 09/07/2012)
26 ORDER of USCA as to 23 Notice of Appeal to DC Circuit Court, filed by WHEATON COLLEGE; ORDERED that the motion be granted. USCA Case Number 12−5273. (md, ) (Entered: 09/14/2012)
27 ORDER of USCA as to (37 in 1:11−cv−01989−JEB) Notice of Appeal to DC Circuit Court, filed by BELMONT ABBEY COLLEGE, (23 in 1:12−cv−01169−ESH) Notice of Appeal to DC Circuit Court, filed by WHEATON COLLEGE ; USCA Case Number 12−5273. ORDERED, that in reliance upon the Departments binding representations, this court will hold these cases in abeyance, subject to regular status reports to be filed by the government with this court every 60 days from the date of this order. (kb) (Entered: 12/20/2012)
28 ORDER of USCA (certified copy) as to 23 Notice of Appeal to DC Circuit Court, filed by WHEATON COLLEGE; ORDERED that these consolidated cases be remanded to the United States District Court for the District of Columbia with instructions to vacate their judgements and to dismiss the complaints as moot. USCA Case Number 12−5273. (md, ) (Entered: 08/16/2013)
29 ORDER vacating 21 judgment of August 24, 2012, and dismissing case as moot per 28 USCA Order of August 13, 2013. Signed by Judge Ellen S. Huvelle on August 19, 2013. (AG) (Entered: 08/19/2013)