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IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

STATE OF NEBRASKA, by and through JON BRUNING, ATTORNEY GENERAL OF THE STATE OF NEBRASKA;
STATE OF SOUTH CAROLINA, by and through ALAN WILSON, ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA;
BILL SCHUETTE, ATTORNEY GENERAL OF THE STATE OF MICHIGAN, ON BEHALF OF THE PEOPLE OF MICHIGAN;
STATE OF TEXAS, by and through GREG ABBOTT, ATTORNEY GENERAL OF THE STATE OF TEXAS;
STATE OF FLORIDA, by and through PAM BONDI, ATTORNEY GENERAL OF THE STATE OF FLORIDA;
STATE OF OHIO, by and through MICHAEL DeWINE, ATTORNEY GENERAL OF THE STATE OF OHIO;
STATE OF OKLAHOMA, by and through SCOTT PRUITT, ATTORNEY GENERAL OF THE STATE OF OKLAHOMA;
SISTER MARY CATHERINE, CK, an individual;
STACY MOLAI, an individual;

COMPLAINT Case No:__________

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CATHOLIC SOCIAL SERVICES, a Nebraska non-profit corporation;
PIUS X CATHOLIC HIGH SCHOOL, a Nebraska non-profit corporation
and
THE CATHOLIC MUTUAL RELIEF SOCIETY OF AMERICA, a Nebraska nonprofit corporation;
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, in her official capacity as the Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF THE TREASURY; TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF LABOR; and HILDA L. SOLIS, in her official capacity as Secretary of the United States Department of Labor,
Defendants. ___________________________________________
COMPLAINT
Plaintiffs, STATE OF NEBRASKA, by and through JON BRUNING,
ATTORNEY GENERAL OF THE STATE OF NEBRASKA, STATE OF SOUTH
CAROLINA, by and through ALAN WILSON, ATTORNEY GENERAL OF THE
STATE OF SOUTH CAROLINA, BILL SCHUETTE, ATTORNEY GENERAL OF
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THE STATE OF MICHIGAN, ON BEHALF OF THE PEOPLE OF MICHIGAN,, STATE OF TEXAS, by and through GREG ABBOTT, ATTORNEY GENERAL OF THE STATE OF TEXAS, STATE OF FLORIDA, by and through PAM BONDI, ATTORNEY GENERALOF THE STATE OF FLORIDA, STATE OF OHIO, by and through MICHAEL DeWINE, ATTORNEY GENERAL OF THE STATE OF OHIO, STATE OF OKLAHOMA, by and through SCOTT PRUITT, ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, SISTER MARY CATHERINE, CK, STACY MOLAI, CATHOLIC SOCIAL SERVICES, PIUS X CATHOLIC HIGH SCHOOL, and THE CATHOLIC MUTUAL RELIEF SOCIETY OF AMERICA, file this action against Defendants, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (“HHS”); KATHLEEN SEBELIUS, in her official capacity as the Secretary of HHS; UNITED STATES DEPARTMENT OF THE TREASURY (“Treasury”); TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the Treasury; UNITED STATES DEPARTMENT OF LABOR (“DOL”); and HILDA L. SOLIS, in her official capacity as the Secretary of DOL (collectively, the “Federal Government”), and state:
BACKGROUND 1. In this action, Plaintiffs challenge the constitutionality of a regulation promulgated by the Federal Government which would coerce religious organizations, institutions, care providers, outreach groups, and social service agencies, among others, to directly subsidize contraception, abortifacients, sterilization, and related services in contravention with their religious beliefs.
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2. The First Amendment to the United States Constitution protects the free exercise of religion and the freedom of speech by forbidding the Federal Government from directing individuals and organizations to subsidize, promote, or affirm products, services, and activity in direct contravention with the tenets of their religious faith.
3. The First Amendment has, for centuries, served as a rampart against government interference with religious liberty.
4. The Federal Government’s regulation, which Plaintiffs challenge herein, would break through that rampart and leave countless additional religious freedoms vulnerable to government intrusion and negation through coercion.
5. The Federal Government’s regulation is an unprecedented invasion of the Plaintiffs’ First Amendment rights to free speech, free exercise of religion, and free association.
6. Accordingly, Plaintiffs ask this Court to find the Federal Government’s regulation unconstitutional as a direct violation of the First Amendment to the United States Constitution.
JURISDICTION AND VENUE 7. The Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1361 because this action arises under the Constitution and laws of the United States. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. § 2201 and §2202 and 42 U.S.C. § 2000bb. 8. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(1)(c) because no real property is involved, Plaintiffs State of Nebraska, Sister Mary Catherine,
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CK, Stacy Molai, Catholic Social Services, Pius X High School, and The Catholic Mutual Relief Society of America are located in Nebraska and the defendants are agencies of the United States or officers thereof acting in their official capacity.
PARTIES 9. The State of Nebraska is a sovereign state and protector of the individual freedom, public health, and welfare of its citizens and residents. Jon Bruning, Attorney General of Nebraska, has been directly elected by the people of Nebraska to serve as their chief legal officer and exercises broad statutory and common law authority to protect the rights of the State of Nebraska and its people. The State, by and through the Attorney General, has standing to assert the unconstitutionality of the Rule. He is authorized to appear for the State and prosecute and defend any cause or matter, civil or criminal, in which the State may be a party or interested. Neb. Rev. Stat. § 84-203. 10. The State of South Carolina, by and through Alan Wilson, Attorney General of South Carolina, is a sovereign state in the United States of America. 11. Bill Schuette, Attorney General of Michigan, is bringing this action on behalf of the People of Michigan under Mich. Comp. Law § 14.28, which provides that the Michigan Attorney General may “appear for the people of [Michigan] in any other court or tribunal, in any cause or matter, civil or criminal, in which the people of [Michigan] may be a party or interested.” Under Michigan’s constitution, the people are sovereign. Mich. Const. art. I, § 1 (“All political power is inherent in the people. Government is instituted for their equal benefit, security, and protection.”).
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12. The State of Texas, by and through Greg Abbott, Attorney General of Texas, is a sovereign state in the United States of America.
13. The State of Florida, by and through Pam Bondi, Attorney General of Florida, is a sovereign state in the United States of America.
14. The State of Ohio, by and through Michael DeWine, Attorney General of Ohio, is a sovereign state in the United States of America.
15. The State of Oklahoma, by and through Scott Pruitt, Attorney General of Oklahoma, is a sovereign state in the United States of America.
16. Plaintiff Sister Mary Catherine, CK is an individual Catholic nun affiliated with the School Sisters of Christ the King, a Catholic order located in Lincoln, Nebraska.
17. Sister Mary Catherine is covered by a health insurance plan with Blue Cross Blue Shield of Nebraska through the Catholic Diocese of Lincoln, Nebraska.
18. Health Insurance coverage of services for purposes of contraception, abortifacients, or sterilization is in contravention with Sister Mary Catherine’s religious beliefs.
19. Sister Mary Catherine’s health insurance plan has been specifically contracted for to exclude coverage for purposes of contraception, abortifacients, sterilization, and related services.
20. Sister Mary Catherine will drop her private health insurance coverage if retaining such coverage would result in the subsidization of contraception, abortifacients, sterilization, and related services.
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21. Sister Mary Catherine’s current health insurance plan is not grandfathered from ACA requirements; accordingly, her plan is subject to the Rule’s contraceptive coverage requirements immediately upon the Rule taking effect.
22. Plaintiff Stacy Molai is a Catholic individual residing in Omaha, Nebraska.
23. Molai is a Catholic missionary employed by the Fellowship of Catholic University Students (“FOCUS”), a Catholic organization engaged in ministry and outreach on college campuses throughout the United States and around the world.
24. Molai is covered by a health insurance plan with Cigna through FOCUS. 25. Coverage of services for purposes of contraception, abortifacients, or sterilization is in contravention with Molai’s religious beliefs. 26. Molai’s health insurance plan has been specifically contracted for to exclude coverage for purposes of contraception, abortifacients, sterilization, and related services. 27. Molai suffers from an incurable chronic illness which requires substantial ongoing care. 28. Molai’s condition requires her to incur medical care and supply costs of $300 to $400 per month. 29. Molai’s condition occasionally necessitates hospitalization and surgery. Each such occurrence incurs costs of $3,000 to $5,000 per event. 30. Health insurance coverage is critical to Molai in order to avoid financial ruin and possibly life threatening consequences. However, she would drop such coverage
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if it would result in her subsidization of contraception, abortifacients, sterilization, and related services.
31. Molai’s current health insurance plan is grandfathered from ACA requirements.
32. Upon which time Molai or her employer, FOCUS, substantially changes any aspect of Molai’s health insurance plan, Molai’s plan will immediately become subject to ACA requirements and the contraceptive coverage Rule promulgated pursuant thereto.
33. Since the ACA’s grandfathering exemption does not apply to health insurance plans which substantially change after March 23, 2010, Molai is trapped in her current plan if she wishes to remain grandfathered from ACA requirements.
34. Plaintiff Catholic Social Services, a Nebraska non-profit corporation, is a faith-based charity services provider and is a Catholic religious organization employer located in Lincoln, Nebraska, Hastings, Nebraska, and other cities.
35. Catholic Social Services is an affiliated entity of the Catholic Diocese of Lincoln, Nebraska providing social charity to persons in southern Nebraska including housing, food, clothing, financial, refugee, emergency, and other services.
36. Catholic Social Services employs individuals who seek a structured, systematic formation program centered on the Catholic faith and has more than 50 persons on staff.
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37. Catholic Social Services’ purpose is to serve persons of all religious and ethnic backgrounds and is not limited in its provision of services to person who share its religious tenets.
38. Though Catholic Social Services exists and conducts its ministry pursuant to a religiously-rooted sense of purpose, mission, and duty, its primary operational purpose is not the inculcation of religious values.
39. Catholic Social Services is covered by a health insurance plan with Blue Cross Blue Shield of Nebraska through the Catholic Diocese of Lincoln, Nebraska.
40. Health insurance coverage of services for purposes of contraception, abortifacients, or sterilization is in contravention with Catholic teaching and doctrine adhered to and followed by Catholic Social Services.
41. Catholic Social Services’ health insurance plan has been specifically contracted for to exclude coverage for purposes of contraception, abortifacients, sterilization, and related services.
42. Catholic Social Services will drop its private health insurance coverage if retaining such coverage would result in its subsidization of services for purposes of contraception, abortifacients, sterilization, or related services.
43. Catholic Social Services’ current health insurance plan is not grandfathered from ACA requirements; accordingly, its plan is subject to the Rule’s contraceptive coverage requirements immediately upon the Rule taking effect.
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44. Plaintiff Pius X Catholic High School (“Pius X”) is a Nebraska non-profit corporation and is the sole Catholic high school for the City of Lincoln and the Diocese of Lincoln, Nebraska with an enrollment of more than 1,000 students in grades 9-12.
45. Pius X employs more than 70 faculty and staff. 46. Pius X is dedicated to a Christ-centered education that integrates Catholic values in all areas of life and providing academic preparation of the highest quality in a disciplined environment. 47. Pius X is covered by a health insurance plan with Blue Cross Blue Shield of Nebraska through the Catholic Diocese of Lincoln, Nebraska. 48. Health insurance coverage for purposes of contraception, abortifacients, sterilization, or other services is in contravention with Catholic teaching and doctrine adhered to and followed by Pius X. 49. Pius X’s health insurance plan has been specifically contracted for to exclude coverage for purposes of contraception, abortifacients, sterilization, and related services. 50. Pius X’s current health insurance plan is not grandfathered from ACA requirements; accordingly, its plan is subject to the Rule’s contraceptive coverage requirements immediately upon the Rule taking effect. 51. Plaintiff The Catholic Mutual Relief Society of America (“Catholic Mutual”) is a non-profit religious 501 (c)(3) organization with its principle place of business located in Omaha, Nebraska.
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52. Catholic Mutual provides health coverage to its employees through a group health plan.
53. Catholic Mutual is an equal opportunity employer who seeks highlyqualified and driven employees and does not primarily employ persons who share Catholic Mutual’s religious tenets.
54. Catholic Mutual does not inquire as to the religious affiliation or beliefs of prospective employees.
55. Although Catholic Mutual exists and conducts its operations pursuant to a religious-rooted sense of purpose, mission, and duty, Catholic Mutual’s primary operational purpose is not the inculcation of religious values.
56. Catholic Mutual does not include coverage of services for purposes of contraception, abortifacients, or sterilization in its employees’ health insurance plans.
57. Coverage of services for purposes of contraception, abortifacients, or sterilization is in contravention with Catholic teaching and doctrine adhered to and followed by Catholic Mutual.
58. Catholic Mutual’s employees are not offered supplemental insurance plans to cover contraception, abortifacients, sterilization, and related services in connection with their primary employer-subsidized health care plans.
59. Catholic Mutual’s health insurance plan for its own employees is currently grandfathered from ACA’s requirements.
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60. Since the ACA’s grandfathering exemption does not apply to health insurance plans which substantially change after March 23, 2010, Catholic Mutual is trapped in its current plan if it wishes to remain grandfathered from ACA requirements.
61. Catholic Mutual comprehensively evaluates its employee health plan on an annual basis.
62. If Catholic Mutual substantially changes certain aspects of its employee health insurance plan, Catholic Mutual will immediately become subject to ACA requirements and the contraceptive coverage Rule promulgated pursuant thereto.
63. Defendant HHS is an agency of the United States, and is responsible for administration and enforcement of the Rule.
64. Defendant Kathleen Sebelius is Secretary of HHS, and is named as a party in her official capacity.
65. Defendant Treasury is an agency of the United States, and is responsible for administration and enforcement of the Rule.
66. Defendant Timothy F. Geithner is Secretary of the Treasury, and is named as a party in his official capacity.
67. Defendant DOL is an agency of the United States, and is responsible for administration and enforcement of the Rule.
68. Defendant Hilda L. Solis is Secretary of DOL, and is named as a party in her official capacity.
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NATURE OF THE ACTION 69. On February 15, 2012, final rules under a heading titled “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services under the Patient Protection and Affordable Care Act” (collectively, the “Rule”) were promulgated by the Federal Government, ostensibly pursuant to its statutory authority under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended by the Health Care and Education Act of 2010, Pub. L. No. 111-152 (ACA). 77 Fed. Reg. 31, 8725. 70. The Rule was definitively and formally promulgated by publication in the Federal Register as a “Final Rule;” there is no hint that the Rule is informal, tentative, that it is only the ruling of a subordinate official, or that full compliance with the Rule is not expected. 77 Fed. Reg. 31, 8725. 71. Five days prior to formal publication of the Rule in the Federal Register, HHS unilaterally issued non-regulatory Guidance ostensibly claiming the Federal Government will abide by a “temporary enforcement safe harbor” for the Rule until the first plan year that begins on or after August 1, 2013. Centers for Medicare & Medicaid Services, U.S. Dept. of Health & Human 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, Feb. 10, 2012 (the “Guidance”) (available at
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http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-ServicesBulletin.pdf).
72. Notwithstanding the Federal Government’s unilateral imposition of a “one-year safe harbor from enforcement” of the Rule, Plaintiffs are at risk of imminent and irreparable injury from the operation of the Rule upon its effective date of April 16, 2012.
73. No discernible statutory or regulatory obstacle exists barring the Federal Government from unilaterally withdrawing its promise of a “one-year safe harbor from enforcement” of the Rule, upon which time Plaintiffs would suffer immediate irreparable harm; accordingly, this Court enjoys the authority to adjudicate Plaintiffs’ claims now.
74. Notwithstanding Plaintiffs’ ability or inability to qualify for the Federal Government’s unilateral promise of a “one-year safe harbor from enforcement” of the Rule, Plaintiffs will absolutely be required to comply upon the expiration of the safe harbor on August 1, 2013.
75. The Rule represents an unprecedented encroachment on the liberty of individuals, like Plaintiffs Sister Mary Catherine, CK, and Molai, residing in Plaintiffs’ States, by mandating that all non-exempt religious organization employers subsidize coverage for contraceptives, sterilization, and related patient education and counseling. The subsidization of such services is contrary to Plaintiffs Sister Mary Catherine, CK’s and Molai’s religious beliefs.
76. As a result of the Rule’s compulsory violation of Plaintiff Sister Mary Catherine, CK’s religious beliefs, Plaintiff Sister Mary Catherine, CK, who has health
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insurance, will opt out for moral and religious reasons. Provided no other options than Medicaid or the state-based health insurance exchange, which also will provide coverage conflicting with her beliefs, Plaintiff Sister Mary Catherine, CK will be forced to pay civil penalties and forego health insurance altogether.
77. The Rule represents an unprecedented encroachment on the liberty of religious organization employers, including Plaintiffs Catholic Social Services, Pius X Catholic High School, and Catholic Mutual, operating in Plaintiffs’ States, by mandating that Plaintiffs Catholic Social Services, Pius X High School, and Catholic Mutual subsidize coverage for contraceptives, sterilization, and related patient education and counseling.
78. The Rule’s religious employer exemption is insufficiently narrow as it fails to cover a significant number of religious organizations who do not “primarily serve… persons who share [their] religious tenets”, do not “primarily employ persons who share their religious tenets”, or do not have “the inculcation of religious values” as their primary operational purpose.
79. Were Plaintiffs Catholic Social Services, Pius X Catholic High School, and Catholic Mutual to attempt to gain the religious employer exemption, it would be necessary for Catholic Social Services, Pius X Catholic High School, and Catholic Mutual to begin inquiring into the religious affiliation and beliefs of prospective employees – a practice in which Catholic Social Services and Catholic Mutual currently do not currently engage.
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80. Plaintiff Pius X Catholic High School has previously, in the context of certain generally applicable employer mandates promulgated by the Federal Government, enjoyed the certainty of broad religious employer exemptions which protected Pius X Catholic High School from being directed to take or subsidize action in contravention with Catholic teaching and doctrine adhered to and followed by Pius X Catholic High School.
81. Due to the insufficiently narrow nature of the religious employer exemption to the Rule challenged herein, Plaintiffs, including Pius X Catholic High School, face great uncertainty in determining whether they will enjoy the same religious employer exemptions from government mandates as they have in the past.
82. In the event Plaintiffs Catholic Social Services, Pius X Catholic High School, and Catholic Mutual’s health insurance plans are no longer grandfathered plans, the Federal Government has provided two ways in which Plaintiffs can circumvent the Rule’s requirements: declining to provide health insurance altogether and face a stiff peremployee penalty or satisfying all of the criteria to qualify for a “religious employer” exemption.
83. Plaintiffs are not eligible for the Federal Government’s insufficiently narrow religious employer exemption to the Rule, based on the Federal Government’s stated intent to exclude hospitals, schools, and universities and because Plaintiffs do not clearly satisfy all of the exemption’s rigid conjunctive requirements.
84. As a result of the Rule’s compulsory violation of religious organization employers’ religious beliefs, religious organization employers in Plaintiff States, such as
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Plaintiffs Catholic Social Services and Catholic Mutual, may simply cease the provision of health insurance coverage to their employees, rather than subsidize conduct and services in violation of their beliefs.
85. If religious organization employers were to cease provision of health insurance in order to avoid the requirements of the Rule, an immediate and substantial spike in the number of enrollments in Plaintiff States’ Medicaid programs would result, as many impacted employees would invariably shift to Medicaid to remain in compliance with the ACA’s individual coverage mandate.
86. Plaintiff States’ Medicaid programs are already facing the acute strain of dramatically increased enrollments due to the ACA’s individual coverage mandate. Forcing another round of enrollments will compound this problem and further threaten Plaintiff States’ budgetary stability.
87. In addition, religious organization employers operating in Plaintiffs States will cease providing charitable services to persons who do not share their religious tenets, in an effort to qualify under the Religious Employer Exemption. Those people no longer served by such charitable services will place further pressure on Plaintiff States’ Medicaid programs as they inevitably increase reliance on public resources for support.
88. To the extent Plaintiffs are currently grandfathered from ACA requirements and the contraceptive coverage Rule promulgated pursuant thereto, those Plaintiffs are effectively trapped in their current plans if they wish to remain grandfathered; any substantial modification of their health insurance plans will bring them under the ACA’s requirements and the Rule’s contraceptive coverage coercion.
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89. Given that the Federal Government itself has conceded that employers and individuals will inevitably find it necessary to make substantial modifications to health insurance plans, particularly in light of spiraling costs and a fluctuating regulatory environment, it is readily apparent that currently-grandfathered Plaintiffs will lose their exemption from ACA requirements in the foreseeable future; it is unrealistic to presume they can remain grandfathered in perpetuity.
90. Plaintiffs have no adequate remedy at law. CAUSES OF ACTION COUNT ONE
VIOLATION OF THE FIRST AMENDMENT FREE SPEECH CLAUSE
(First Amendment to the United States Constitution) 91. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein. 92. The compelled subsidization of beliefs, with which Plaintiffs do not agree, violates the freedom of speech provided by the First Amendment to the United States Constitution. 93. The Rule further violates the First Amendment because it compels Plaintiffs to subsidize conduct in violation of their moral and religious beliefs. 94. The Rule also violates the First Amendment by prohibiting Plaintiffs from expressing a message in accordance with their beliefs.
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COUNT TWO VIOLATION OF THE FIRST AMENDMENT
FREE EXERCISE CLAUSE (First Amendment to the United States Constitution)
95. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein.
96. The Rule violates the Free Exercise Clause of the First Amendment by negating the right of Plaintiffs to act in accordance with their beliefs.
97. Defendants have created categorical exemptions and individualized exemptions to the Rule.
98. The Rule furthers no compelling governmental interest. 99. The Rule is not the least restrictive means of furthering Defendants’ stated interests. 100. The Rule imposes a substantial burden on Plaintiffs’ religious exercise. 101. The Rule coerces Plaintiffs to change or violate their religious beliefs. 102. The Rule chills Plaintiffs’ religious exercise. 103. The Rule exposes Plaintiffs to substantial fines for its religious exercise. 104. The Rule violates the Free Exercise Clause of the First Amendment by negating the right of Plaintiffs to freely practice their religious beliefs without government interference.
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COUNT THREE VIOLATION OF THE FIRST AMENDMENT
FREEDOM OF ASSOCIATION CLAUSE (First Amendment to the United States Constitution) 105. Plaintiffs reallege, adopt and incorporate by reference all preceding paragraphs as though fully set forth herein. 106. The Rule violates the Freedom of Association Clause of the First Amendment by negating the rights of Plaintiffs to organize voluntary religious associations by forcing Plaintiffs to associate with an ideology that violates their religious beliefs. 107. The Rule violates the Freedom of Association Clause of the First Amendment by negating the rights of Plaintiffs to organize voluntary religious associations that serve persons of other beliefs.
COUNT FOUR VIOLATION OF THE RELIGIOUS FREEDOM RESTORATION ACT
(42 U.S.C. § 2000bb) 108. Plaintiffs reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein. 109. The Rule works a substantial burden on the Plaintiffs’ ability to freely practice their religion, in violation of the Religious Freedom Restoration Act (“RFRA”). 42 U.S.C. § 2000bb. 110. The Rule chills Plaintiffs’ religious exercise. 111. The Rule exposes Plaintiffs to substantial fines for its religious exercise.
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112. The Rule’s “religious employer” exemption violates RFRA because the exemption would require the government to troll through an organization’s religious beliefs to determine whether the organization is religious enough to be exempt from the Rule’s dictates.
113. The Rule furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest.
114. The Rule is not the least restrictive means of furthering Defendants’ stated interests.
115. The Rule’s compulsory funding of contraceptives is a substantial burden upon the Plaintiffs because it impermissibly interferes in matters of church faith and doctrine.
116. The Rule puts substantial pressure on religious adherents to modify religious beliefs and behavior in order to comply with the Rule’s mandates.
117. The Rule is a substantial burden on the rights of Plaintiffs to freely exercise religion because it forces them to subsidize contraceptives in violation of their religious beliefs.
WHEREFORE, Plaintiffs respectfully request that the Court: A. Declare the Rule to be in violation of the First Amendment to the Constitution of the United States; B. Declare the Rule to be unlawful pursuant to the Religious Freedom Restoration Act;
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C. Declare Defendants to have violated the Plaintiffs’ constitutional rights, as aforesaid;
D. Enjoin Defendants and any other agency or employee acting on behalf of the United States from enforcing the Rule against the Plaintiffs, their citizens and residents, and any of their agencies or officials or employees, and to take such actions as are necessary and proper to remedy their violations deriving from any such actual or attempted enforcement; and
E. Award Plaintiffs their reasonable attorney’s fees and costs, and grant such other relief as the Court may deem just and proper.
COUNT FIVE DECLARATORY JUDGMENT
(28 U.S.C. § 2201) 118. Plaintiffs, including State Plaintiffs whose Medicaid and regulatory responsibilities will be severely affected by the Rule, reallege, adopt, and incorporate by reference all preceding paragraphs as though fully set forth herein. 119. There is an actual controversy of sufficient immediacy and concreteness relating to the legal rights and duties of the Plaintiffs and their legal relations with the Defendants to warrant relief under 28 U.S.C. § 2201. 120. The harm to the Plaintiffs as a direct result of the Rule is sufficiently real and imminent to warrant the issuance of a conclusive declaratory judgment clarifying the legal relations of the parties. WHEREFORE, Plaintiffs respectfully request that the Court:
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A. Declare the Rule to be in violation of the First Amendment to the Constitution of the United States;
B. Declare the Rule to be unlawful pursuant to the Religious Freedom Restoration Act;
C. Declare Defendants to have violated the Plaintiffs’ constitutional rights, as aforesaid;
D. Enjoin Defendants and any other agency or employee acting on behalf of the United States from enforcing the Rule against the Plaintiffs, their citizens and residents, and any of their agencies or officials or employees, and to take such actions as are necessary and proper to remedy their violations deriving from any such actual or attempted enforcement; and
E. Award Plaintiffs their reasonable attorney’s fees and costs, and grant such other relief as the Court may deem just and proper.
Respectfully submitted, STATE OF NEBRASKA, JON BRUNING ATTORNEY GENERAL OF NEBRASKA ALAN WILSON, ATTORNEY GENERAL OF SOUTH CAROLINA BILL SCHUETTE ATTORNEY GENERAL OF MICHIGAN GREG ABBOTT ATTORNEY GENERAL OF TEXAS PAMELA JO BONDI ATTORNEY GENERAL OF FLORIDA
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MICHAEL DeWINE ATTORNEY GENERAL OF OHIO SCOTT PRUITT, ATTORNEY GENERAL OF OKLAHOMA
SISTER MARY CATHERINE, CK,
STACY MOLAI,
CATHOLIC SOCIAL SERVICES,
PIUS X CATHOLIC HIGH SCHOOL, and
THE CATHOLIC MUTUAL RELIEF SOCIETY OF AMERICA,
Plaintiffs. BY: JON BRUNING, #20351
Attorney General
BY: s/ Katherine J. Spohn _______ David D. Cookson, #18681 Chief Deputy Attorney General Katherine J. Spohn, #22979 Special Counsel to the Attorney General 2115 State Capitol Lincoln, NE 68509-8920 Phone (402) 471-2682 david.cookson@nebraska.gov katie.spohn@nebraska.gov
BY: s/ Rocky C. Weber Rocky C. Weber, #18190 Crosby Guenzel LLP 134 S. 13th Street, Suite 400 Lincoln, Nebraska 68508 Phone (402) 434-7300 rcw@crosbylawfirm.com
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4:12-cv-03035-CRZ Doc # 1 Filed: 02/23/12 Page 25 of 27 - Page ID # 25 By: Donald G. Blankenau Don Blankenau, #18528 Blankenau Wilmoth, LLP 206 South 13th Street, Suite 1425 Lincoln, NE 68508 Phone (402) 475-7080 don@aqualawyers.com Attorneys for Plaintiffs.
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I. (a) PLAINTIFFS: (in addition to Plaintiffs already listed on Civil Cover Sheet)

State of South Carolina, by and through Alan Wilson, Attorney General of South Carolina; State of Michigan, by and through William Schuette, Attorney General of Michigan; State of Texas, by and through Greg Abbott, Attorney General of Texas; State of Oklahoma, by and through E. Scott Pruitt, Attorney General of Oklahoma; State of Florida, by and through Pamela Jo Bondi, Attorney General of Florida; and State of Ohio, by and through Mike DeWine, Attorney General of Ohio;

(c) ATTORNEYS: (Firm Name, Address and Telephone Number)

Jon C. Bruning Attorney General of Nebraska 2115 State Capitol P.O. Box 98920 Lincoln, NE 68509 Telephone: (402) 471-2683

E. Scott Pruitt Attorney General of Oklahoma 313 NE 21st Street Oklahoma City, OK 73105 Telephone: (405) 521-3921

Alan Wilson Attorney General of South Carolina P.O. Box 11549 Columbia, SC 29211 Telephone: (803) 734-3656

Rocky C. Weber Crosby Guenzel LLP 134 S. 13th Street, Suite 400 Lincoln, Nebraska 68508 Telephone: (402) 434-7300

William Schuette Attorney General of Michigan P.O. Box 30212 Lansing, MI 48909-0212 Telephone: (517) 373-1113

Pamela Jo Bondi Attorney General of Florida The Capitol, PL-01 Tallahassee, FL 32399-1050 Telephone: (850) 414-3300

Greg Abbott Attorney General of Texas P.O. Box 12548 Austin, TX 78701 Telephone: (512) 936-2902

Don Blankenau Blankenau Wilmoth, LLP 206 South 13th Street, Suite 1425 Lincoln, NE 68508 Phone (402) 475-7080

Mike DeWine Attorney General of Ohio 150 East Gay Street, 20th Floor Columbus, OH 43215-3428 Telephone: (614) 728-5458

 
 4:12-cv-03035-WKU-CRZ Doc # 31 Filed: 04/30/12 Page 1 of 45 - Page ID # 92

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

__________________________________________

)

STATE OF NEBRASKA, by and through

)

JON BRUNING, ATTORNEY GENERAL OF )

THE STATE OF NEBRASKA, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES, et al.,

)

)

Defendants.

)

__________________________________________)

Civil Action No. 4:12-cv-03035-CRZ

DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO DISMISS

4:12-cv-03035-WKU-CRZ Doc # 31 Filed: 04/30/12 Page 2 of 45 - Page ID # 93

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION ...........................................................................................................................1

BACKGROUND .............................................................................................................................4

STANDARD OF REVIEW ...........................................................................................................10

ARGUMENT .................................................................................................................................11

I. THE COURT SHOULD DISMISS THE CASE FOR LACK OF JURISDICTION BECAUSE PLAINTIFFS LACK STANDING.....................................11

A. The Organization Plaintiffs Lack Standing................................................12

B. The Individual Plaintiffs Lack Standing ....................................................17

C. The State Plaintiffs Lack Standing ............................................................20

1. The States Cannot Bring a Parens Patriae Action ............21

2. The States Cannot Sue On Their Own Behalf ...................22

a.

The States Have Not Alleged an Imminent, Actual, and

Concrete Injury to Their Own Interests .........................................22

Zone

b. The States’ Alleged Injury Does Not Fall Within the of Interests to be Protected by the First Amendment
or RFRA.........................................................................................26

D. Plaintiffs’ Claims Are Not Ripe.................................................................27

II. THE COURT SHOULD DISMISS THE STATE PLAINTIFFS’ CLAIMS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED ..................................................................................................................33

CONCLUSION ..............................................................................................................................35

i

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TABLE OF AUTHORITIES
CASES
Abbott Labs. v. Gardner, 387 U.S. 136 (1967).............................................................................................. 28, 29, 31, 32
Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592 (1982)................................................................................................................ 21
Allen v. Wright, 468 U.S. 737 (1984)................................................................................................................ 20
Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496 (D.C. Cir. 1994) .................................................................................................. 15
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ................................................................................................ 11, 13, 18
Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970)................................................................................................................ 26
Boyle v. Anderson, 68 F.3d 1093 (8th Cir. 1995) .................................................................................................. 16
Califano v. Sanders, 430 U.S. 99, 105 (1977).................................................................................................................28
Cantwell v. State of Connecticut, 310 U.S. 296 (1940)................................................................................................................ 35
Carson v. Pierce, 719 F.2d 931 (8th Cir. 1983) ............................................................................................ 11, 12
Lyons v. United States, 99 Fed. Cl. 552 (2011) ............................................................................................................ 33
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)................................................................................................................ 34
City of Boerne v. Flores, 521 U.S. 507 (1997).................................................................................................................34
Clarke v. Securities Indus. Ass'n, 479 U.S. 388 (1987)................................................................................................................ 26
ii

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County of Mille Lacs v. Benjamin, 361 F.3d 460 (8th Cir. 2004) ...................................................................................... 14, 18, 25
DKT Mem'l Fund v. Agency for Int'l Dev., 887 F.2d 275 (D.C. Cir. 1989) ................................................................................................ 27
EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 102 F.3d 869 (7th Cir. 1996) .................................................................................................. 34
Employment Division v. Smith, 494 U.S. 872 (1990)................................................................................................................ 34
Engel v. Vitale, 370 U.S. 421 (1962)................................................................................................................ 35
Florida v. Mellon, 273 U.S. 12 (1927)............................................................................................................ 21, 24
Forbes v. Arkansas Educ. Television Comm'n, 93 F.3d 497 (8th Cir. 1996) .....................................................................................................33
Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) ................................................................................................ 34
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979).................................................................................................................. 26
Iowa ex rel. Miller v. Block, 771 F.2d 347 (8th Cir. 1985) .............................................................................. 3, 4, 20, 21, 22
Johnson v. Missouri, 142 F.3d 1087 (8th Cir. 1998) ................................................................................................ 20
Lake Pilots Ass'n v. U.S. Coast Guard, 257 F. Supp. 2d 148 (D.D.C. 2003) .................................................................................. 30, 31
Lindsey v. Tacoma-Pierce Cnty. Health Dep't, 195 F.3d 1065 (9th Cir. 1999) ................................................................................................ 34
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)......................................................................................................... passim
Massachusetts v. EPA, 549 U.S. 497 (2007).......................................................................................................... 21, 22
iii

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Massachusetts v. Mellon, 262 U.S. 447 (1923)............................................................................................................ 3, 21
McConnell v. FEC, 540 U.S. 93 (2003).................................................................................................................. 15
Minnesota Pub. Utils. Comm'n. v. FCC, 483 F.3d 570 (8th Cir. 2007) .................................................................................................. 31
Missouri ex rel. Mo. Highway &Transp. Comm'n v. Cuffley, 112 F.3d 1332 (8th Cir. 1997) .......................................................................................... 32, 33
Motor Vehicle Mfrs. Ass'n v. N.Y. State Dep't of Envtl. Conservation, 79 F.3d 1298 (2d Cir. 1996).................................................................................................... 31
Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803 (2003).......................................................................................................... 27, 28
New York v. United States, 505 U.S. 144 (1992)................................................................................................................ 22
Nolles v. State Comm. for Reorganization of Sch. Dists., 524 F.3d 892 (8th Cir. 2008) .................................................................................................. 24
Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998)................................................................................................................ 30
Oregon v. Mitchell, 400 U.S. 112 (1970).......................................................................................................... 22, 23
Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) .......................................................................................... 27, 33
Pennsylvania v. Kleppe, 533 F.2d 668 (D.C. Cir. 1976) ................................................................................................ 22
Pennsylvania v. New Jersey, 426 U.S. 660 (1976)................................................................................................................ 26
People ex. rel. Hartigan v. Cheney, 726 F. Supp. 219 (C.D. Ill. 1989) ..................................................................................... 22, 24
Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237 (1952)................................................................................................................ 28
iv

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Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) .......................................................................................... 27, 34
South Carolina v. Katzenbach, 383 U.S. 301 (1966)................................................................................................................ 21
South Dakota v. U.S. Dep't of Interior, 665 F.3d 986 (8th Cir. 2012) .................................................................................................. 27
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998).................................................................................................................. 11
Tennessee Gas Pipeline Co. v. FERC, 736 F.2d 747 (D.C. Cir. 1984) ................................................................................................ 32
Texas Indep. Producers & Royalty Owners Ass'n v. EPA, 413 F.3d 479 (5th Cir. 2005) ...................................................................................... 30, 31, 32
Texas v. United States, 523 U.S. 296 (1998)................................................................................................................ 30
The Toca Producers v. FERC, 411 F.3d 262 (D.C. Cir. 2005) ................................................................................................ 31
United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829 (8th Cir. 2009) ................................................................................ 14, 18, 20, 24
Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982)................................................................................................................ 26
Virginia. ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011) .................................................................................................. 22
Vorbeck v. Schnicker, 660 F.2d 1260 (8th Cir. 1981) .......................................................................................... 30, 31
Walker v. Barrett, 650 F.3d 1198 (8th Cir. 2011) .......................................................................................... 13, 18
Warner Cable Commc'ns, Inc. v. City of Niceville, 911 F.2d 634 (11th Cir. 1990) ................................................................................................ 33
Whitmore v. Arkansas, 495 U.S. 149 (1990)............................................................................................. 12, 15, 18, 24
v

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Wilkinson v. United States, 440 F.3d 970 (8th Cir. 2006) .................................................................................................. 11
Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877 (10th Cir. 1992) .................................................................................... 22, 23, 26
Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d 43 (D.C. Cir. 1999) .................................................................................................. 30
STATUTES & REGULATIONS 26 C.F.R. § 54.9815-1251T .......................................................................................................1, 13 26 C.F.R. § 54.9815-1251T(a).......................................................................................................13 26 C.F.R. § 54.9815-1251T(g)(1) ..................................................................................................13 26 C.F.R. § 54.9815-2713T(b)(1) ......................................................................................... 7, 8, 18 29 C.F.R. § 2590.715-1251........................................................................................................1, 13 29 C.F.R. § 2590.715-1251(a) .......................................................................................................13 29 C.F.R. § 2590.715-1251(g)(1) ..................................................................................................13 29 C.F.R. § 2590.715-2713(b)(1) ..........................................................................................7, 8, 18 45 C.F.R. § 147.130(a)(1)(iv) ........................................................................................................18 45 C.F.R. § 147.130(b)(1)......................................................................................................7, 8, 18 45 C.F.R. § 147.140 ...................................................................................................................1, 13 45 C.F.R. § 147.140(a)...................................................................................................................13 45 C.F.R. § 147.140(g)(1)..............................................................................................................13 45 C.F.R. § 147.140(a)(1)(iv)(A).....................................................................................................8 45 C.F.R. § 147.140(a)(1)(iv)(B).....................................................................................................8 26 U.S.C. § 501(a) ...........................................................................................................................8 26 U.S.C. § 4980H ...........................................................................................................................5
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26 U.S.C. § 6033(a) .........................................................................................................................8 42 U.S.C. § 300gg-13 ......................................................................................................................5 42 U.S.C. § 300gg-91(a)(1) .............................................................................................................5 42 U.S.C. § 1396a(a)(10)(A)(i)......................................................................................................25 42 U.S.C. § 1396e(c)(2) ................................................................................................................ 25 42 U.S.C. §18011(a)(2)................................................................................................................. 13 42 U.S.C. § 2000bb....................................................................................................................... 34 42 U.S.C. § 2000bb-1 ................................................................................................................... 34 42 U.S.C. §2000bb-2(1)................................................................................................................ 34 75 Fed. Reg. 41726 (July 19, 2010) ................................................................................................6 76 Fed. Reg. 46621 (Aug. 3, 2011)............................................................................................. 7, 8 77 Fed. Reg. 16501 (Mar. 21, 2012)....................................................................... 9, 10, 16, 19, 31 77 Fed. Reg. 8725 (Feb. 15, 2012) .....................................................................8, 9, 10, 16, 29, 32 155 Cong. Rec. S12019, S12025 (daily ed. Dec. 1, 2009) ..........................................................5, 6 155 Cong. Rec. S12261, S12271 (daily ed. Dec. 3, 2009) ............................................................. 5 Pub. L. No. 111-152, 124 Stat. 1029 (2010)................................................................................... 1 Pub. L. No. 111-148, 124 Stat. 119 (2010)......................................................................................1
MISCELLANEOUS
INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (2011) ................................................................................................4, 6, 7
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INTRODUCTION The Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010),1 and implementing regulations, require all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain recommended preventive services without cost-sharing (such as a copayment, coinsurance, or a deductible).2 As relevant here, except as to group health plans of certain religious employers (and group health insurance coverage sold in connection with those plans), the preventive services that must be covered include all Food and Drug Administration (“FDA”)approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider. Plaintiffs – seven States, three non-profit organizations, and two individuals – brought suit on February 23, 2012, seeking to have the Court declare the preventive services coverage regulations invalid and enjoin their implementation. Plaintiffs claim the regulations violate their rights to free speech, free exercise of religion, and freedom of association protected by the First Amendment to the United States Constitution as well as the Religious Freedom Restoration Act (“RFRA”). Over the past few months, defendants have issued guidance on a temporary enforcement safe harbor and initiated a rulemaking to further amend the preventive services coverage regulations to address religious concerns such as those raised by plaintiffs in this case. The enforcement safe harbor provides that defendants will not bring any enforcement action against non-profit organizations with religious objections to providing contraceptive coverage (and
1 Amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2010).
2 A grandfathered plan is one that was in existence on March 23, 2010 and that has not undergone any of a defined set of changes. 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.7151251; 45 C.F.R. § 147.140.
1

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associated plans and issuers) if they meet certain criteria. The safe harbor protects such organizations until the first health plan year that begins on or after August 1, 2013. Moreover, defendants published an advance notice of proposed rulemaking (“ANPRM”) in the Federal Register that confirms defendants’ intent, before the expiration of the safe harbor period, to propose and finalize amendments to the preventive services coverage regulations to further accommodate non-exempt, non-grandfathered religious organizations’ religious objections to covering contraceptive services. The ANPRM suggests ideas and solicits public comment on potential accommodations, including, but not limited to, requiring health insurance issuers to offer health insurance coverage without contraceptive coverage to religious organizations that object to such coverage and simultaneously to offer contraceptive coverage directly to such organizations’ plan participants, at no charge.
In light of these actions, this Court lacks jurisdiction to adjudicate plaintiffs’ claims. As an initial matter, the organization plaintiffs have not alleged any imminent injury from the operation of the regulations. The organization plaintiffs sponsor group health plans for their employees, but they have not made factual allegations that establish that those plans – which according to the complaint do not cover contraceptive services – are ineligible for grandfather status. Thus, the organization plaintiffs have not shown that they are under any current obligation to offer coverage for contraceptive services. Moreover, even assuming the organization plaintiffs’ group health plans are not grandfathered, the organization plaintiffs appear to qualify for the temporary enforcement safe harbor, and, indeed, they do not allege otherwise. Pursuant to the safe harbor, defendants will not take any enforcement action against the organization plaintiffs until at least August 1, 2013, by which time defendants will have
2

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finalized amendments to the challenged regulations to accommodate the religious objections of organizations like the organization plaintiffs.
The individual plaintiffs – who are employed by religious organizations and obtain their health coverage through those organizations – lack standing for similar reasons. The individual plaintiffs currently have health coverage that does not cover contraception, and the allegations in the complaint do not establish that they will be unable to maintain that coverage for the foreseeable future either because their plans are not grandfathered or because their employers will not qualify for the temporary enforcement safe harbor. Further, when the safe harbor expires, the individual plaintiffs may well be able to continue receiving – through their religious organization employers – health coverage that does not cover contraceptive services in light of the rulemaking that defendants have initiated. The individual plaintiffs’ speculation to the contrary – which relies on possible future events and potential future decisions made by parties that are not before this Court (e.g., the individual plaintiff’s employers) – cannot establish standing.
The State plaintiffs also lack standing – both now and after the challenged regulations are finalized. It is well-established that a state cannot bring a parens patriae action on behalf of its citizens against federal defendants. See, e.g., Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923). It is, after all, “the United States, and not the state, which represents [its citizens] as parens patriae.” Id. at 486. In addition, the State plaintiffs have not established standing to bring this action on their own behalf. The alleged threat to the States’ budgetary stability as a result of increased enrollment in the States’ Medicaid programs is too speculative, remote, and indirect to support standing. It rests on hypotheticals about what independent actors may do in the future. The Eighth Circuit has rejected similar allegations of injury to a state, see Iowa ex
3

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rel. Miller v. Block, 771 F.2d 347, 353-54 (8th Cir. 1985), and this Court should do the same here. Nor are the States the intended beneficiaries of the provisions on which their claims are based, as required by prudential principles of standing and Federal Rule of Civil Procedure 12(b)(6). The First Amendment and RFRA protect persons, not states. Indeed, states are not allowed to establish, much less exercise, religious beliefs.
Lastly, the Court lacks jurisdiction because plaintiffs’ claims are not ripe. Plaintiffs’ challenge to the preventive services coverage regulations is not fit for judicial review because defendants have initiated a rulemaking to amend the challenged regulations to further accommodate religious objections to providing contraceptive coverage. In the meantime, the temporary enforcement safe harbor will be in effect and plaintiffs will not suffer any hardship from the regulations they seek to challenge.
BACKGROUND Prior to the enactment of the ACA, many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of disease, lead productive lives, and reduce health care costs. Due in large part to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”). Section 1001 of the ACA – which includes the preventive services coverage provision that is relevant here – seeks to cure this problem by making recommended preventive care affordable and accessible for many more Americans. The preventive services coverage provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide
4

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coverage for certain preventive services without cost-sharing.3 42 U.S.C. § 300gg-13. The preventive services that must be covered are: (1) evidence-based items or services that have in effect a rating of “A” or “B” from the United States Preventive Services Task Force (“USPSTF”); (2) immunizations recommended by the Advisory Committee on Immunization Practices; (3) for infants, children, and adolescents, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration (“HRSA”)4; and (4) for women, such additional preventive care and screenings not described by the USPSTF as provided in comprehensive guidelines supported by HRSA. Id.
The requirement to provide coverage for recommended preventive services for women, without cost-sharing, was added as an amendment to the ACA during the legislative process. The Women’s Health Amendment was intended to fill significant gaps relating to women’s health that existed in the other preventive care guidelines identified in section 1001 of the ACA. See 155 Cong. Rec. S12019, S12025 (daily ed. Dec. 1, 2009) (statement of Sen. Boxer) (“The underlying bill introduced by Senator Reid already requires that preventive services recommended by [USPSTF] be covered at little to no cost . . . . But [those recommendations] do not include certain recommendations that many women’s health advocates and medical professionals believe are critically important . . . .”); 155 Cong. Rec. S12261, S12271 (daily ed. Dec. 3, 2009) (statement of Sen. Franken) (“The current bill relies solely on [USPSTF] to
3 A group health plan includes a plan established or maintained by an employer that provides medical care to employees. 42 U.S.C. § 300gg-91(a)(1). Group health plans may be insured (i.e., medical care underwritten through an insurance contract) or self-insured (i.e., medical care funded directly by the employer). The ACA does not require employers to provide health coverage for their employees, but, beginning in 2014, certain large employers may face assessable payments if they fail to do so under certain circumstances. 26 U.S.C. § 4980H.
4 HRSA is an agency within the Department of Health and Human Services. 5

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determine which services will be covered at no cost. The problem is, several crucial women’s health services are omitted. [The Women’s Health Amendment] closes this gap.”).
Research shows that cost-sharing requirements can pose barriers to preventive care and result in reduced use of preventive services, particularly for women. IOM REP. at 109; 155 Cong. Rec. at S12026-27 (daily ed. Dec. 1, 2009) (statement of Sen. Mikulski) (“We want to either eliminate or shrink those deductibles and eliminate that high barrier, that overwhelming hurdle that prevents women from having access to [preventive care].”). Indeed, a 2010 survey showed that less than half of women are up to date with recommended preventive care screenings and services. IOM REP. at 19. By requiring coverage for recommended preventive services and eliminating cost-sharing requirements, Congress sought to increase access to and utilization of recommended preventive services. 75 Fed. Reg. 41726, 41728 (July 19, 2010). Increased use of preventive services will benefit the health of individual Americans and society at large: individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease; healthier workers will be more productive with fewer sick days; and increased utilization will result in savings due to lower health care costs. 75 Fed. Reg. at 41728, 41733; IOM REP. at 20.
Defendants issued interim final regulations implementing the preventive services coverage provision on July 19, 2010. 75 Fed. Reg. 41726. The interim final regulations provide, among other things, that a group health plan or health insurance issuer offering nongrandfathered health coverage must provide coverage for newly recommended preventive services, without cost-sharing, for plan years (or, in the individual market, policy years) that begin on or after the date that is one year after the date on which the new recommendation is
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issued. 26 C.F.R. § 54.9815-2713T(b)(1); 29 C.F.R. § 2590.715-2713(b)(1); 45 C.F.R. § 147.130(b)(1).
Because there were no existing HRSA guidelines relating to preventive care and screening for women, the Department of Health and Human Services (“HHS”) tasked the Institute of Medicine (“IOM”)5 with “reviewing what preventive services are necessary for women’s health and well-being” and developing recommendations for comprehensive guidelines. IOM REP. at 2. IOM conducted an extensive science-based review and, on July 19, 2011, published a report of its analysis and recommendations. Id. at 20-26. The report recommended that HRSA guidelines include, among other things, well-woman visits, breastfeeding support, domestic violence screening, and, as relevant here, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Id. at 10-12. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices. FDA, Birth Control Guide, available at http://www.fda.gov/ForConsumers/ByAudience/ForWomen/ucm118465.htm (last visited Apr. 5, 2012).
On August 1, 2011, HRSA adopted IOM’s recommendations in full, subject to an exemption relating to certain religious employers authorized by an amendment to the interim final regulations. See HRSA Guidelines, available at http://www.hrsa.gov/womensguidelines/ (last visited Apr. 5, 2012). The amendment to the interim final regulations, issued on the same day, authorized HRSA to exempt group health plans sponsored by certain religious employers
5 IOM was established in 1970 by the National Academy of Sciences and is funded by Congress. IOM REP. at iv. It secures the services of eminent members of appropriate professions to examine policy matters pertaining to the health of the public and provides expert advice to the federal government. Id.
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(and associated group health insurance coverage) from any requirement to cover contraceptive services under HRSA’s guidelines. 76 Fed. Reg. 46621 (Aug. 3, 2011); 45 C.F.R. § 147.130(a)(1)(iv)(A). To qualify for the exemption, an employer must meet all of the following criteria:
(1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the
organization. (3) The organization serves primarily persons who share the religious tenets of the
organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and
section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 45 C.F.R. § 147.130(a)(1)(iv)(B). The sections of the Internal Revenue Code referenced in the fourth criterion refer to “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order,” that are exempt from taxation under 26 U.S.C. § 501(a). 26 U.S.C. § 6033(a)(1), (a)(3)(A)(i), (a)(3)(A)(iii). Thus, as relevant here, the amended interim final regulations required non-grandfathered plans that do not qualify for the religious employer exemption to provide coverage for recommended contraceptive services, without cost-sharing, for plan years (or, in the individual market, policy years) beginning on or after August 1, 2012.
Defendants requested comments on the amended interim final regulations and specifically on the definition of religious employer contained in those regulations. 76 Fed. Reg. at 46623. After carefully considering the more than 200,000 comments they received, defendants decided to adopt in final regulations the definition of religious employer contained in the amended interim final regulations while also creating a temporary enforcement safe harbor for plans sponsored by certain non-profit organizations with religious objections to contraceptive
8

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coverage that do not qualify for the religious employer exemption. 77 Fed. Reg. 8725, 8727 (Feb. 15, 2012).
Pursuant to the temporary enforcement safe harbor, defendants will not take any enforcement action against an employer, group health plan, or group health insurance issuer with respect to a non-exempt, non-grandfathered group health plan that fails to cover some or all recommended contraceptive services and that is sponsored by an organization that meets all of the following criteria:
(1) The organization is organized and operates as a non-profit entity. (2) From February 10, 2012 onward, contraceptive coverage has not been provided at any
point by the group health plan sponsored by the organization, consistent with any applicable state law, because of the religious beliefs of the organization. (3) The group health plan sponsored by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) provides to plan participants a prescribed notice indicating that the plan will not provide contraceptive coverage for the first plan year beginning on or after August 1, 2012. (4) The organization self-certifies that it satisfies the three criteria above, and documents its self-certification in accordance with prescribed procedures.6 The enforcement safe harbor will be in effect until the first plan year that begins on or after August 1, 2013. Guidance at 3. By that time, defendants expect that significant changes to the preventive services coverage regulations will have altered the landscape with respect to religious accommodations under the regulations by providing further relief to certain religious organizations. Those intended changes, which were first announced when defendants finalized the religious employer exemption, will establish alternative means of providing contraceptive
6 HHS, Guidance on the Temporary Enforcement Safe Harbor (“Guidance”), at 3 (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210Preventive-Services-Bulletin.pdf (last visited Apr. 5, 2012); 75 Fed. Reg. 16501, 16504 (Mar. 21, 2012).
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coverage without cost-sharing while also accommodating non-exempt, non-grandfathered religious organizations’ religious objections to covering contraceptive services. 77 Fed. Reg. at 8728. Defendants began the process of amending the regulations on March 21, 2012, when they published an ANPRM in the Federal Register. 77 Fed. Reg. 16501 (Mar. 21, 2012). The ANPRM “presents questions and ideas” on potential means of achieving the goals of providing women access to contraceptive services without cost-sharing and accommodating religious organizations’ liberty interests. Id. at 16503. The purpose of the ANPRM is to provide “an early opportunity for any interested stakeholder to provide advice and input into the policy development relating to the accommodation to be made” in the forthcoming amendments to the regulations. Id. Among other options, the ANPRM suggests requiring health insurance issuers to offer health insurance coverage without contraceptive coverage to religious organizations that object to such coverage on religious grounds and simultaneously to offer contraceptive coverage directly to the organization’s plan participants, at no charge. Id. at 16505. The ANPRM also suggests ideas and solicits comments on potential ways to accommodate religious organizations that sponsor self-insured group health plans for their employees. Id. at 16506-07.
After receiving comments on the ANPRM, defendants will publish a notice of proposed rulemaking, which will be subject to further public comment before defendants issue further amendments to the preventive services coverage regulations. Id. at 16501. Defendants intend to finalize the amendments to the regulations such that they are effective by the end of the temporary enforcement safe harbor. Id. at 16503.
STANDARD OF REVIEW Defendants move to dismiss this case in its entirety for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The party invoking federal
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jurisdiction bears the burden of establishing its existence. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998); Wilkinson v. United States, 440 F.3d 970, 977 (8th Cir. 2006). Where, as here, defendants challenge jurisdiction on the face of the complaint, the complaint must plead sufficient facts to establish that jurisdiction exists. This Court must determine whether it has subject matter jurisdiction before addressing the merits of the complaint. See Steel Co., 523 U.S. at 94-95.
Defendants also move to dismiss the State plaintiffs’ claims under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Under this Rule, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
ARGUMENT I. THE COURT SHOULD DISMISS THIS CASE FOR LACK OF JURISDICTION
BECAUSE PLAINTIFFS LACK STANDING “[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III [of the Constitution],” and it is fundamental to the court’s jurisdiction to hear a case. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The “irreducible constitutional minimum of standing” requires a plaintiff to demonstrate (1) it has suffered an injury in fact; (2) the existence of a causal connection between the alleged injury and conduct that is fairly traceable to the defendant; and (3) it is likely the requested relief will redress the alleged injury. Id. at 560–61. An injury in fact is “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (quotations omitted). The harm must be “direct and palpable.” Carson v. Pierce, 719 F.2d 931,
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934 (8th Cir. 1983). Allegations of possible future injury do not suffice; rather, “[a] threatened injury must be certainly impending to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quotation omitted). A plaintiff that “alleges only an injury at some indefinite future time” has not shown an injury in fact, particularly where “the acts necessary to make the injury happen are at least partly within the plaintiff’s own control.” Lujan, 504 U.S. at 564 n.2. In these situations, “the injury [must] proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all.” Id.
A. The Organization Plaintiffs Lack Standing There are three organization plaintiffs. Catholic Social Services describes itself as a nonprofit corporation affiliated with the Catholic Diocese of Lincoln, Nebraska, that provides “faithbased charity services” to persons in southern Nebraska. Compl. ¶¶ 34-35. It states that it has “more than 50 persons on staff.” Id. ¶ 36. Pius X Catholic High School describes itself as a nonprofit corporation with more than 70 faculty and staff and the “sole Catholic high school” for the City of Lincoln, Nebraska. Id. ¶¶ 44-45. The Catholic Mutual Relief Society of America states that it is “a non-profit religious 501(c)(3) organization with its principle place of business located in Omaha, Nebraska.” Id. ¶ 51. The organization plaintiffs allege that they currently make available to their employees group health plans that do not cover contraception. Id. ¶¶ 39, 41, 47, 49, 52, 56. They further allege that “[h]ealth insurance coverage of services for purposes of contraception, abortifacients, or sterilization is in contravention with Catholic teaching and doctrine adhered to and followed by [the organization plaintiffs].” Id. ¶ 40; accord id. ¶¶ 48, 57. Catholic Social Services and The Catholic Mutual Relief Society of America assert that they do not qualify for the religious employer exemption because the inculcation of religious values is
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not their primary purpose and they employ or serve persons who do not share their religious tenets. Id. ¶¶ 37-38, 53, 55.
These allegations do not establish standing because they fail to demonstrate a concrete and imminent injury resulting from the operation of the preventive services coverage regulations. First, the organization plaintiffs have not made sufficient factual allegations to show that the group health plans they offer to their employees are not eligible for grandfather status. The preventive services coverage regulations do not apply to grandfathered plans. 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140. A grandfathered plan is a health plan in which at least one individual was enrolled on March 23, 2010 and that has continuously covered at least one individual since that date. 42 U.S.C. § 18011(a)(2); 26 C.F.R. § 54.9815-1251T(a), (g)(1); 29 C.F.R. § 2590.715-1251(a), (g)(1); 45 C.F.R. § 147.140(a), (g)(1). A grandfathered plan may lose its grandfather status if, compared to its existence on March 23, 2010, it eliminates all or substantially all benefits to diagnose or treat a particular condition, increases a percentage cost-sharing requirement, significantly increases a fixed-amount cost-sharing requirement, significantly reduces the employer’s contribution, or imposes or tightens an annual limit on the dollar value of any benefits. 26 C.F.R. § 54.98151251T(a), (g)(1); 29 C.F.R. § 2590.715-1251(a), (g)(1); 45 C.F.R. § 147.140(a), (g)(1).
The Catholic Mutual Relief Society of America concedes that its group health plan is grandfathered. Compl. ¶ 59. Catholic Social Services and Pius X Catholic High School assert that their group health plans are not grandfathered, id. ¶¶ 43, 50, but they do not allege any facts to support this legal conclusion. See Iqbal, 129 S. Ct. at 1949 (observing that “naked assertion[s] devoid of further factual enhancement” are insufficient to survive a motion to dismiss (quotations omitted)); Walker v. Barrett, 650 F.3d 1198, 1209 (8th Cir. 2011) (“[L]egal
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conclusions, without any supporting factual allegations, are insufficient to survive a motion to dismiss.”); United States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 834 (8th Cir. 2009) (“[A] plaintiff must clearly allege facts showing an injury in fact[.]”). Catholic Social Services and Pius X Catholic High School do not allege that their group health plans were not in place on March 23, 2010, or that their plans have not continuously covered at least one individual since that date, or that they have altered their plans in a way that would cause them to lose grandfather status. Nor do they allege that they will alter their health plans in such a way in the imminent future. Plaintiffs do contend that the loss of grandfather status “in the foreseeable future” is “inevitabl[e].” Compl. ¶ 89. But none of the organization plaintiffs alleges specific plans to alter their health plan in a substantial way. “[A]ssumed future intent,” County of Mille Lacs v. Benjamin, 361 F.3d 460, 464 (8th Cir. 2004), and “‘some day’ intentions – without any description of concrete plans,” Lujan, 504 U.S. at 564 – do not establish an injury in fact. See also id. at 564 n.2 (allegations of injury “at some indefinite future time” do not establish an injury in fact, particularly where “the acts necessary to make the injury happen are at least partly within the plaintiff’s own control”). Accordingly, the allegations in the complaint simply do not show that the organization plaintiffs will be required by the preventive services coverage regulations to provide coverage for contraceptive services – as opposed to continuing to offer a grandfathered plan that does not, and presumably would not, cover contraceptive services.7
Second, even if the organization plaintiffs had sufficiently alleged that their group health plans are not grandfathered, they still would not have alleged an injury in fact. Under the enforcement safe harbor, defendants will not take any enforcement action against an organization
7 Unlike the other two organization plaintiffs, Pius X Catholic High School does not allege that it is ineligible for the religious employer exemption. For this additional reason, Pius X Catholic High School has not alleged an injury resulting from the challenged regulations.
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that qualifies for the safe harbor until the first plan year that begins on or after August 1, 2013. Guidance at 3. The organization plaintiffs make no effort to show that they will not be protected by the enforcement safe harbor. Indeed, the organization plaintiffs’ own description of themselves – as non-profit organizations that do not provide contraception coverage in their group health plans (Compl. ¶¶ 34, 41, 44, 49, 51, 56) – strongly suggests that they do qualify for the enforcement safe harbor. See Guidance at 3. Thus, the earliest the organization plaintiffs could be subject to any enforcement action by defendants for failing to provide contraceptive coverage is August 1, 2013. With such a long time before the inception of any possible injury and the challenged regulations undergoing amendment before then, the organization plaintiffs cannot satisfy the imminence requirement for standing; the asserted injury is simply “too remote temporally.” See McConnell v. FEC, 540 U.S. 93, 226 (2003) (concluding Senator lacked standing based on claimed desire to air advertisements five years in the future), overruled in part on other grounds, Citizens United v. FEC, 130 S. Ct. 876 (2010); Whitmore, 495 U.S. at 159-60.
This defect in the organization plaintiffs’ suit does not implicate a mere technical issue of counting intermediate days. Nor does it rest on the truism that a final regulation is always subject to change by the agency that promulgated it; the ANPRM goes much further than that by promising imminent regulatory amendments. Thus, the defect in plaintiff’s case goes to the fundamental limitations on the role of federal courts. The “underlying purpose of the imminence requirement is to ensure that the court in which suit is brought does not render an advisory opinion in ‘a case in which no injury would have occurred at all.’” Animal Legal Def. Fund, Inc. v. Espy, 23 F.3d 496, 500 (D.C. Cir. 1994) (quoting Lujan, 504 U.S. at 564 n.2). The ANPRM published in the Federal Register confirms, and seeks comment on, defendants’ intention to propose further amendments to the preventive services coverage regulations that will
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accommodate the concerns of religious organizations that object to providing contraceptive coverage for religious reasons, like the organization plaintiffs. 77 Fed. Reg. at 16501. The ANPRM provides plaintiffs, and any other interested party, with the opportunity to, among other things, comment on ideas suggested by defendants for accommodating religious organizations, offer new ideas to “enable religious organizations to avoid . . . objectionable cooperation when it comes to the funding of contraceptive coverage,” and identify considerations defendants should take into account when amending the regulations. Id. at 16503, 16507. Defendants, moreover, have indicated that they intend to finalize the amendments to the regulations before the rolling expiration of the temporary enforcement safe harbor starting on August 1, 2013. Id. at 16503; see also 77 Fed. Reg. at 8728. In light of the forthcoming amendments, and the opportunity the rulemaking process provides for plaintiffs to help shape those amendments, there is no reason to suspect that the organization plaintiffs will be required to sponsor a health plan that covers contraceptive services in contravention of their religious beliefs once the enforcement safe harbor expires. At the very least, given the anticipated changes to the preventive services coverage regulations, the organization plaintiffs’ claim of injury after the temporary enforcement safe harbor expires, if any, would differ substantially from their current claim of injury. And, given the existing enforcement safe harbor, there is no basis for this Court to consider the merits of plaintiffs’ complaint at this juncture.8
8 Plaintiffs maintain that nothing prevents defendants from “unilaterally withdrawing” the temporary enforcement safe harbor at any time and thus there is no guarantee that the organization plaintiffs will be protected from enforcement action by defendants until August 1, 2013. Compl. ¶ 73. Speculation that the defendants will take back the promised safe harbor – which was issued as formal guidance by the Secretary of Health and Human Services, see Guidance, and has been repeatedly referenced in the Federal Register, see, e.g., 77 Fed. Reg. 8725, 8728 (Feb. 15, 2012); 77 Fed. Reg. at 16502-03 – is not only dubious, it is also insufficient to establish an injury. Indeed, the Eighth Circuit rejected an argument similar to the one plaintiffs make here in Boyle v. Anderson, 68 F.3d 1093, 1100 (8th Cir. 1995). In that case, the
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Accordingly, the Court should dismiss the organization plaintiffs’ claims for lack of standing.
B. The Individual Plaintiffs Lack Standing The two individual plaintiffs – who are employed by religious organizations and obtain their health coverage through those organizations – lack standing for reasons similar to those set forth above with respect to the organization plaintiffs. Sister Mary Catherine describes herself as a “Catholic nun affiliated with the School Sisters of Christ the King.” Compl. ¶ 16. She states that she is currently covered by a nongrandfathered health plan, which does not cover contraception, through the Catholic Diocese of Lincoln, Nebraska. Id. ¶¶ 17, 19, 21. Stacy Molai describes herself as a “missionary employed by the Fellowship of Catholic University Students (“FOCUS”), a Catholic organization engaged in ministry and outreach on college campuses.” Id. ¶ 23. She states that she is currently covered by a grandfathered health plan, which does not cover contraception, through her employer, FOCUS. Id. ¶¶ 24, 26, 31. Both Sister Mary Catherine and Stacy Molai allege that health insurance coverage for contraception is in contravention of their religious beliefs, id. ¶¶ 18, 25, and that they will drop such coverage if retaining it would result in the “subsidization” of contraception, id. ¶¶ 20, 30. Neither of the individual plaintiffs, however, allege that they pay any portion of the premium for their health coverage or that they will be required to do so in the future. Stacy Molai further alleges that she suffers from an incurable chronic illness that requires substantial ongoing medical care. Id. ¶¶ 27-29.
plaintiff sought to challenge state law reporting requirements that did not apply to it based on the supposition that the state “might at some point in the future change its position and require compliance with the data requirements.” Id. The court, however, refused to issue “an advisory opinion to deal with the possibility that at some point in the future the State” might “reverse [its] position.” Id. “[C]onjectur[e] about “possible future injury,” the court explained, “does not meet the requirements for an injury in fact.” Id.
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The individual plaintiffs’ claims are premised on a possible future world in which the individual plaintiffs will not be able to obtain health coverage without contraception coverage. But the individual plaintiffs currently have health coverage that does not cover contraception, and the allegations in the complaint do not show that they will be unable to maintain such coverage for the foreseeable future or that they will somehow be required to “subsidize” contraception coverage. Further, any potential injury to the individual plaintiffs would be attributable to the currently unknown actions of the individual plaintiff’s employers. And those employers are not before the Court. Thus, the individual plaintiffs have not alleged an imminent and concrete injury that is fairly traceable to the preventive services coverage regulations.
First, the individual plaintiffs have not sufficiently alleged that their current health plans, which do not cover contraception, are not grandfathered and thus excluded from the requirement to cover contraceptive services. Indeed, Stacey Molai admits that her health plan is grandfathered. Compl. ¶ 31. She speculates that her employer could change the health plan in the future in a way that would cause it to lose grandfather status, id. ¶ 32, but such generalized conjecture about possible future events – particularly events that hinge on the independent actions of parties not before this Court – cannot establish standing. See Lujan, 504 U.S. at 561, 564; Whitmore, 495 U.S. at 158; County of Mille Lacs, 361 F.3d at 464. Sister Mary Catherine alleges that her health insurance plan is not grandfathered, Compl. ¶ 21, but she does not provide any of the necessary factual allegations to support this legal conclusion.9 See Iqbal, 129 S. Ct. at 1949; Walker, 650 F.3d at 1209; Metro. St. Louis Sewer Dist., 569 F.3d at 834. The individual plaintiffs, therefore, simply have not shown that the health plans under which they are currently
9 In addition, neither Sister Mary Catherine nor Stacy Molai has alleged that her employer is ineligible for the religious employer exemption. See 45 C.F.R. § 147.130(a)(1)(iv).
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covered will be required to cover contraception as a result of the preventive services coverage regulations.
Second, even if the individual plaintiffs’ health plans were not grandfathered, the individual plaintiffs still would not have made sufficient allegations to establish standing. The individual plaintiffs make no effort to show that their employers will not be protected by the temporary enforcement safe harbor, such that their employers can continue to offer a health plan that does not cover contraception without fear of an enforcement action by defendants until at least August 1, 2013. Indeed, the individual plaintiffs’ description of their employers, see Compl. ¶¶ 16, 17, 19, 23, 26, strongly suggests that the employers do qualify for the enforcement safe harbor. See Guidance at 3. There is, therefore, no reason to suspect that the individual plaintiffs will be unable to maintain – through their religious organization employers – health coverage that does not cover contraceptive services until at least August 1, 2013.10
Moreover, by that time, defendants will have finalized amendments to the preventive services coverage regulations that will accommodate additional religious organizations’ religious objections to providing contraception coverage. Those amendments are likely to affect the individual plaintiffs as well, by providing them with a mechanism – through their religious organization employers – to obtain health coverage that does not cover contraception. See 77 Fed. Reg. at 16505 (suggesting, among other options, that amendments might require health insurance issuers to offer health insurance coverage without contraceptive coverage to religious organizations that object to such coverage on religious grounds). And any suggestion that the individual plaintiffs will be unable to obtain such coverage through their employer after the
10 Any decision by the individual plaintiffs’ employers to forego the benefit of the temporary enforcement safe harbor is not only speculative at this point but also would not establish an injury fairly traceable to the challenged regulations. See Lujan, 504 U.S. at 561.
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enforcement safe harbor expires is entirely speculative at this point. At the very least, given the anticipated amendments, the individual plaintiffs’ claim of injury after the temporary enforcement safe harbor expires, if any, would differ substantially from their current claim of injury. See Metro. St. Louis Sewer Dist., 569 F.3d at 835-837; Johnson v. Missouri, 142 F.3d 1087, 1089-90 (8th Cir. 1998) (rejecting standing where “a number of things [had to] occur before [plaintiffs would] suffer an actual or even an imminent injury” and, at the time the suit was brought, “the timing and type of injury to the [plaintiffs could not] be determined”). Because the individual plaintiffs’ allegations of injury rest on possible future events and decisions independent actors not before the Court may make in the future, the individual plaintiffs’ claims should be dismissed for lack of standing.
C. The State Plaintiffs Lack Standing11 The States appear to pursue two theories of standing. First, they seek to bring a parens patriae action on behalf of their citizens to protect their citizens’ rights under the First Amendment and RFRA. See Compl. ¶¶ 9-15, 77. Second, the States purport to sue on their own behalf, alleging their budgetary stability will be adversely affected if more citizens enroll in Medicaid as a result of religious organizations dropping health coverage for their employees or religious charities ceasing to serve persons who do not share their religious beliefs. Id. ¶¶ 85-87. Neither theory satisfies the States’ burden to demonstrate standing.
11 The Court should address the State plaintiffs’ standing even if it determines that one or more of the organization or individual plaintiffs have standing. See Iowa ex rel. Miller v. Block, 771 F.2d 347, 354-55 (8th Cir. 1985) (dismissing State for lack of standing even though defendant did not challenge standing of individual plaintiff); see also Allen v. Wright, 468 U.S. 737, 752 (1984) (Article III standing limitations are designed “to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted” (emphasis added)).
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1. The States Cannot Bring a Parens Patriae Action The doctrine of parens patriae permits a state to sue to vindicate the interests of its citizens in some instances. Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 601 (1982). The Supreme Court, however, made clear more than 80 years ago that a state cannot bring a parens patriae action against federal defendants. See Massachusetts v. Mellon, 262 U.S. at 485-86. In dismissing an action brought by Massachusetts to exempt its citizens from a federal statute designed to “protect the health of mothers and infants,” the Court explained that the citizens of a state “are also citizens of the United States,” and therefore “[i]t cannot be conceded that a state, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof.” Id. at 478, 485. The Court stressed that “it is no part of [a state’s] duty or power to enforce [its citizens’] rights in respect of their relations with the federal government;” “it is the United States, and not the state, which represents [its citizens] as parens patriae.” Id. at 485-86. The Supreme Court has consistently applied this principle since Mellon to dismiss actions brought by a state as parens patriae against federal defendants. See Florida v. Mellon, 273 U.S. 12,18 (1927) (relying on Mellon to dismiss Florida’s challenge to a federal inheritance tax based on alleged injury to its citizens); South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966) (concluding South Carolina lacked standing as parens patriae to invoke the Due Process Clause or the Bill of Attainder Clause against the federal government); see also Snapp, 458 U.S. at 610 n.16 (“A State does not have standing as parens patriae to bring an action against the Federal Government.”); Massachusetts v. EPA, 549 U.S. 497, 520 n.17 (2007) (observing that Mellon “prohibits” allowing a state “‘to protect her citizens from the operation of federal statutes’”). And lower courts – including the Eighth Circuit – have done the same. See Iowa ex rel. Miller,
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771 F.2d at 354-55 (concluding Iowa lacked standing as parens patriae to sue federal defendants; “[to] allow the State to proceed as parens patriae” against federal defendants “would intrude on the sovereignty of the federal government and ignore important considerations of our federalist system”); see also Virginia. ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 271 (4th Cir. 2011); Wyoming ex rel. Sullivan v. Lujan, 969 F.2d 877, 883 (10th Cir. 1992); Pennsylvania v. Kleppe, 533 F.2d 668, 676-77 (D.C. Cir. 1976); People ex. rel. Hartigan v. Cheney, 726 F. Supp. 219, 222-23 (C.D. Ill. 1989).
Because a state cannot bring a parens patriae suit against federal defendants, the State plaintiffs cannot pursue this action under a parens patriae theory.
2. The States Cannot Sue On Their Own Behalf a. The States Have Not Alleged an Imminent, Actual, and Concrete Injury to Their Own Interests
In some circumstances, a state may have standing to challenge federal action that threatens its own distinct interests. As with any other party, however, the harm to the state’s interests must be “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. at 560-61. A state suffers a cognizable injury when, for example, its physical territory such as its “coastal land” is harmed. See Massachusetts v. EPA, 549 U.S. at 522-23. A state likewise may challenge a measure commanding the state itself to act, see New York v. United States, 505 U.S. 144 (1992) (standing to challenge federal law requiring State to take title to nuclear waste or enact federallyapproved regulations), or that prohibits it from acting, see Oregon v. Mitchell, 400 U.S. 112 (1970) (standing to challenge federal law barring literacy-test or durational-residency requirements in elections and requiring State to enfranchise 18-year-olds).
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The State plaintiffs’ allegations of harm to their own interests in this case are a far cry from the actual or imminent injuries alleged in the cases cited above. The States allege that, if religious organizations were to stop providing health coverage to their employees, those employees would enroll in the States’ Medicaid programs. Compl. ¶ 85. They also assert that religious organizations would stop providing charitable services to persons who do not share the organizations’ religious beliefs in an effort to qualify for the religious employer exemption and, as a result, the individuals previously served by these organizations would turn to the States’ Medicaid programs. Id. ¶ 87. The States claim this predicted increase in the number of individuals enrolled in their Medicaid programs would threaten the States’ “budgetary stability.” Id. ¶¶ 86-87.
These allegations amount to no more than “conjecture based on speculation that is bottomed on surmise,” and, thus, they do not establish standing. Wyoming ex rel. Sullivan, 969 F.2d at 882. Indeed, the Eighth Circuit rejected similar allegations of injury to a state in Iowa ex rel. Miller. 771 F.2d 347. In that case, Iowa sued to compel the Secretary of Agriculture to implement various federal agricultural disaster relief programs following a drought in the State. Id. at 348. Like the State plaintiffs here, Iowa alleged that the Secretary’s failure to implement the programs would adversely affect the State’s financial resources by imposing “increased responsibility for the welfare and support of [] affected citizens” on the State while also causing a decrease in the State’s tax revenues. Id. at 353. Iowa relied on speculative inferences – not unlike the leaps of logic the State plaintiffs make here – to contrive this speculative harm. Iowa asserted that, without the federal disaster relief programs, agriculture production in the State would decline and agriculturally-based industries would move out of State. Id. These occurrences, Iowa concluded, would “forc[e] unemployment up and state tax revenues down.”
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Id. The Eighth Circuit rejected these allegations of injury, concluding they were far too speculative, remote, and indirect to support standing. Id. at 354. See also Florida, 273 U.S. at 17-18 (rejecting standing notwithstanding Florida’s allegation that challenged federal law would induce citizens to remove property from the State thereby diminishing the State’s tax revenues); People ex. rel. Hartigan, 726 F. Supp. at 223 (concluding Illinois lacked standing despite claim that challenged federal law would require “increased spending by the state on such programs as unemployment compensation benefits and public assistance”). This Court should reach the same result here.
As an initial matter, in light of the forthcoming amendments to the regulations that are intended to further accommodate religious objections to providing contraception coverage, it would be speculative to suggest that religious organizations will stop providing health coverage to their employees because of the preventive services coverage regulations. Indeed, the State plaintiffs do not even go so far as to make such a claim. Their allegation instead is framed as a “what if.” Compl. ¶ 85 (“If religious organization employers were to cease provision of health insurance . . . .” (emphasis added)). Such speculation about possible future events cannot constitute an injury in fact. Whitmore, 495 U.S. at 158; Metro. St. Louis Sewer Dist., 569 F.3d at 835-837 (concluding association did not have standing to intervene in lawsuit because alleged injury – an increase in sewer rates – depended on a number of contingencies and thus constituted mere speculation); Nolles v. State Comm. for Reorganization of Sch. Dists., 524 F.3d 892, 901 (8th Cir. 2008) (no standing where “claimed injury” was “the potential for increased property taxes without a hearing”).
The State plaintiffs’ allegation regarding the potential future decisions of religious charities to cease serving certain individuals is similarly theoretical. Conjecture about decisions
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independent actors may make in the future is insufficient to support standing. See County of
Mille Lacs, 361 F.3d at 464 (observing that “speculative harms based upon the assumed future intent” do not establish an injury in fact).12
Furthermore, even if the States’ hypotheticals were to come to pass someday, it is simply
wrong to suggest – as the States appear to do – that the employees and beneficiaries of these
religious organizations would “invariably” enroll in Medicaid. Compl. ¶ 85. The eligibility
requirements for individuals that a state’s Medicaid program must cover – if the state elects to
participate in Medicaid – are based on an individual’s income and physical condition, not
whether the individual has health insurance coverage. See 42 U.S.C. § 1396a(a)(10)(A)(i).
Thus, an individual who is not otherwise eligible for Medicaid does not become eligible merely because she is no longer receiving health insurance through her employer.13 Because the States’
allegations of injury to their “budgetary stability,” Compl. ¶86, appears to be based on the false
premise that individuals not otherwise eligible for Medicaid will become eligible for, and in fact
enroll in, Medicaid if religious organizations stop providing health coverage or charitable
services (which is itself a highly speculative proposition), the States have not alleged a
12 The State plaintiffs’ alleged injury also is not fairly traceable to the preventive services coverage regulations. It is based on the States’ predictions about the future decisions of employers, charitable organizations, and individuals – decisions that will no doubt be based on factors other than the existence of the preventive services coverage regulations. See Lujan, 504 U.S. at 562 (observing that standing is “substantially more difficult to establish” where the alleged injury “depends on the unfettered choices made by independent actors not before the court[] and whose exercise of broad and legitimate discretion the court[] cannot presume either to control or to predict” (quotation omitted)).
13 Conversely, an individual who is eligible for Medicaid remains eligible even if she is provided health coverage through her employer. See 42 U.S.C. § 1396e(c)(2) (“The fact that an individual is enrolled in a group health plan under this section shall not change the individual's eligibility for benefits under the State plan, except insofar as section 1396a(a)(25) of this title provides that payment for such benefits shall first be made by such plan.”).
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cognizable injury.14 In sum, the States’ allegations of possible second-order ricochet effects on their budgetary stability fail to establish standing.
b. The States’ Alleged Injury Does Not Fall Within the Zone of Interests to be Protected by the First Amendment or RFRA
In addition to the constitutional requirements for standing set forth in Lujan, courts also adhere to a set of prudential principles that bear on the question of standing. Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474 (1982). These prudential principles were developed by the judiciary to “avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim.” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100 (1979). One such principle requires that the plaintiff’s complaint fall within “the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). “[W]here the plaintiff is not itself the subject of the contested regulatory action, the [zone-of-interest] test denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes of the statute [or constitutional provision] that it cannot reasonably be assumed that Congress [or the Framers] intended to permit the suit.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399-400 (1987).
14 Even if the States did not have this apparent false premise problem, they still would lack standing. State participation in the Medicaid program is voluntary, but, once states choose to participate, they must offer benefits to certain individuals as a condition of participation. It is difficult to see how a State can claim injury on the ground that its citizens will choose to accept benefits the State has chosen to offer them under state law. See Pennsylvania v. New Jersey, 426 U.S. 660, 664 (1976) (concluding States that enacted tax credits for individuals’ taxes paid to other States did not have standing to sue other States for damages, because the “injuries to the plaintiffs’ fiscs were self-inflicted, resulting from decisions by their respective state legislatures”).
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The necessary link between the State plaintiffs and the provisions on which their claims rely – the First Amendment and RFRA – is absent here. The First Amendment and RFRA are intended to protect individuals, not states. See Rasul v. Myers, 563 F.3d 527, 532-33 (D.C. Cir. 2009); Parker v. District of Columbia, 478 F.3d 370, 383 (D.C. Cir. 2007). The provisions, moreover, are designed to ensure religious liberty, not state solvency. The States’ asserted interest in their budgetary stability simply does not fall within these zones of interest. See South Dakota v. U.S. Dep’t of Interior, 665 F.3d 986, 990-91 (8th Cir. 2012) (concluding that South Dakota lacked prudential standing to challenge, under the Due Process Clause, a decision by the Secretary of the Interior to accept parcels of land within the State into trust for the benefit of an Indian tribe because the Due Process Clause protects individuals, not states); DKT Mem’l Fund v. Agency for Int’l Dev., 887 F.2d 275, 283-85 (D.C. Cir. 1989) (finding under a zone-ofinterests analysis that foreign non-governmental organizations did not have standing to challenge federal government policy as a violation of the First Amendment because the First Amendment affords no protection to aliens beyond the borders of the United States). Accordingly, the State plaintiffs’ claims should be dismissed for the additional reason that the States lack prudential standing.
D. Plaintiffs’ Claims Are Not Ripe Even if the Court determines that one or more plaintiffs has standing, the Court nevertheless should dismiss this action because plaintiffs’ claims are not ripe. “The ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 808 (2003) (quotation omitted). It “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over
27

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administrative policies.” Id. at 807. It also “protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Id. at 807-08.
A case ripe for judicial review cannot be “nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.” Public Serv. Comm’n v. Wycoff Co., 344 U.S. 237, 244 (1952). In assessing ripeness, courts evaluate both “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967), overruled on other grounds in Califano v. Sanders, 430 U.S. 99, 105 (1977).
The Supreme Court discussed these two prongs of the ripeness analysis in Abbott Laboratories, the seminal case on pre-enforcement review of agency action. 387 U.S. 136. Abbott Laboratories involved a pre-enforcement challenge to Federal Food, Drug and Cosmetic Act regulations that required drug manufacturers to include a drug’s established name every time the drug’s proprietary name appeared on a label. Id. at 137-38. The regulations required the plaintiff drug manufacturers to change all their labels, advertisements, and promotional materials at considerable burden and expense. Id. at 152. Noncompliance would have triggered significant civil and criminal penalties. Id. at 153 & n.19.
The Court determined the regulations were fit for judicial review because they were “quite clearly definitive,” id. at 151; the regulations “were made effective immediately upon publication,” id. at 152, and “[t]here [was] no hint that th[e] regulation[s] [were] informal . . . or tentative.” Id. at 151. Moreover, the Court noted that “the issue tendered [was] a purely legal one” and there was no indication that “further administrative proceedings [were] contemplated.”
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Id. at 149. The Court therefore was not concerned that judicial intervention would inappropriately interfere with further administrative action.
With respect to the hardship prong, the Court determined that delayed review would cause sufficient hardship to the plaintiffs. The impact of the regulations, the Court noted, was “sufficiently direct and immediate” because their promulgation put the drug manufacturers in a “dilemma” – “[e]ither they must comply with the every time requirement and incur the costs of changing over their promotional material and labeling” or they must “risk serious criminal and civil penalties for the unlawful distribution of misbranded drugs.” Id. at 152-53 (quotation omitted). In other words, the challenged regulations “require[d] an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance.” Id. at 153.
None of the indicia of ripeness discussed in Abbott Laboratories is present in this case. Defendants have initiated a rulemaking to amend the challenged regulations to accommodate the concerns expressed by plaintiffs and others that are similarly situated. Defendants, moreover, have made clear that the forthcoming amendments will be finalized well before the earliest date on which the challenged regulations could be enforced by defendants against certain non-profit organizations with religious objections to covering contraception – like the organization plaintiffs and the employers of the individual plaintiffs. 77 Fed. Reg. at 8728-29. Therefore, unlike in Abbott Laboratories – where the challenged regulations were definitive and no further administrative proceedings were contemplated – the regulations challenged here will be amended.
Furthermore, the forthcoming amendments are intended to address the very issue that plaintiffs raise in this case by establishing alternative means of providing contraceptive coverage
29

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without cost-sharing while accommodating religious organizations’ religious objections to covering contraceptive services. And plaintiffs will have several opportunities to participate in the rulemaking process and to provide comments and/or ideas regarding the proposed accommodations. There is, therefore, a significant chance that the amendments will alleviate altogether the need for judicial review, or at least narrow and refine the scope of any actual controversy to more manageable proportions. See Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” (quotations omitted)). Once the forthcoming amendments are finalized, if plaintiffs’ concerns are not laid to rest, plaintiffs “will have ample opportunity [] to bring [their] legal challenge at a time when harm is more imminent and more certain.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 734 (1998); see also Texas Indep. Producers & Royalty Owners Ass’n v. EPA, 413 F.3d 479, 483-84 (5th Cir. 2005) (dismissing challenge to rule as unripe where agency deferred effective date of rule and announced its intent to consider issues raised by plaintiff in new rulemaking during the deferral period); Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 50 (D.C. Cir. 1999) (“Prudence . . . restrains courts from hastily intervening into matters that may best be reviewed at another time or another setting, especially when the uncertain nature of an issue might affect a court’s ability to decide intelligently.” (quotation omitted)); Lake Pilots Ass’n v. U.S. Coast Guard, 257 F. Supp. 2d 148, 160-162 (D.D.C. 2003) (holding challenge to rule was not ripe where agency undertook a new rulemaking to address issue raised by plaintiff in the lawsuit).
Additionally, although plaintiffs’ complaint raises largely legal claims, those claims are leveled at regulations that, as related to the plaintiffs (and similarly-situated organizations and individuals), have not “taken on fixed and final shape.” Vorbeck v. Schnicker, 660 F.2d 1260,
30

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1266 (8th Cir. 1981). Once defendants complete the rulemaking outlined in the ANPRM, plaintiffs’ challenge to the current regulations likely will be moot. See The Toca Producers v. FERC, 411 F.3d 262, 266 (D.C. Cir. 2005) (rejecting purely legal claim as unripe due to the possibility that it may not need to be resolved by the courts). And judicial review now of any future amendments to the regulations that result from the pending rulemaking would be too speculative to yield meaningful review. The ANPRM offers ideas and solicits input on potential means of achieving the goals of providing women access to contraceptive services without costsharing and accommodating religious organizations’ religious liberty interests. 77 Fed. Reg. at 16503. It does not preordain what amendments to the preventive services coverage regulations defendants will ultimately promulgate; nor does it foreclose the possibility that defendants will adopt alternative proposals not set out in the ANPRM. Thus, review of any of the suggested proposals contained in the ANPRM would only entangle the Court “in abstract disagreements over administrative policies.” Abbott Labs., 387 U.S. at 148; see also Minnesota Pub. Utils. Comm’n. v. FCC, 483 F.3d 570, 582-83 (8th Cir. 2007) (concluding agency order that suggested agency would preempt certain state regulations in the future “if faced with the precise issue” was not ripe because “the order [did] not purport to actually do so and until that day comes it is only a mere prediction”); Texas Indep. Producers, 413 F.3d at 484; Motor Vehicle Mfrs. Ass’n v. New York State Dep’t of Envtl. Conservation, 79 F.3d 1298, 1306 (2d Cir. 1996) (concluding claims were not ripe where “plaintiffs’ arguments depend upon the effects of regulatory choices to be made by [state] in the future”); Lake Pilots Ass’n, 257 F. Supp. 2d at 162. Because judicial review at this time would inappropriately interfere with defendants’ pending rulemaking and may result in the Court deciding issues that may never arise, this case is not fit for judicial review.
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Withholding or delaying judicial review also would not result in any hardship for plaintiffs. Unlike the plaintiffs in Abbott Laboratories, plaintiffs here are not being compelled to make immediate and significant changes in their day-to-day operations under threat of serious civil and criminal penalties. As explained above, if the group health plans made available by the organization plaintiffs or by the employers of the individual plaintiffs are grandfathered – and there are no factual allegations in the complaint to indicate that they are not – then the plans are not required to cover contraceptive services. Moreover, even if the group health plans are not grandfathered, the organization plaintiffs and the employers of the individual plaintiffs can qualify for the temporary enforcement safe harbor, meaning defendants will not take any enforcement action against them for failure to cover contraceptive services until August 1, 2013, at the earliest. See Guidance at 3. And, by that time, defendants will have finalized amendments to the preventive services coverage regulations to further accommodate religious objections to providing contraceptive coverage. See 77 Fed. Reg. at 8728-29. Therefore, this is simply not a case where plaintiffs are forced to choose between foregoing lawful activity and risking substantial legal sanctions. See Abbott Labs., 387 U.S. at 153; see also Texas Indep. Producers, 413 F.3d at 483 (finding no hardship where effective date of rule was one year away and agency had announced its intention to initiate a new rulemaking to address plaintiff’s concerns). Indeed, “[w]ere [this Court] to entertain [the] anticipatory challenge[] pressed by [plaintiffs]” – 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” – the Court “would venture away from the domain of judicial review into a realm more accurately described as judicial preview,” a realm into which courts should not tread. Tennessee Gas Pipeline Co. v. FERC, 736 F.2d 747, 751 (D.C. Cir. 1984) (internal citation omitted); see also Missouri ex rel. Mo.
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Highway &Transp. Comm’n v. Cuffley, 112 F.3d 1332, 1337 (8th Cir. 1997) (“[Courts] may not render an opinion advising what the law would be upon a hypothetical state of facts.” (quotation omitted)).
Because plaintiffs’ challenge to the preventive services coverage regulations is not fit for judicial decision and plaintiffs would not suffer substantial hardship if judicial review were withheld or delayed, this case should be dismissed in its entirety as unripe. II. THE COURT SHOULD DISMISS THE STATE PLAINTIFFS’ CLAIMS FOR
FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Even if the Court were to determine that it has jurisdiction over the claims asserted by the State plaintiffs on their own behalf, the Court nonetheless should dismiss those claims under Federal Rule of Civil Procedure 12(b)(6). The States claim that the preventive services coverage regulations violate the States’ rights to free speech, free exercise of religion, and freedom of association under the First Amendment as well as the Religious Freedom Restoration Act. But neither the First Amendment nor RFRA provides any protection to states. Therefore, the State plaintiffs have failed to state a claim upon which relief may be granted. The First Amendment “exists to protect individuals, not government.” Forbes v. Arkansas Educ. Television Comm’n, 93 F.3d 497, 505 (8th Cir. 1996), rev’d on other grounds, 523 U.S. 666 (1998), and subsequently vacated, 145 F.3d 1017 (8th Cir. 1998); see also Parker, 478 F.3d at 383 (“Every other provision of the Bill of Rights, excepting the Tenth, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity.”); Warner Cable Commc’ns, Inc. v. City of Niceville, 911 F.2d 634, 638 (11th Cir. 1990) (observing that the Free Speech Clause does not protect the government). Cf. Lyons v. United States, 99 Fed. Cl. 552, 560 (2011) (“[F]undamental rights protected by the federal Bill of Rights . . . apply only to individual persons, not to the federal government.”);
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EEOC v. Mitsubishi Motor Mfg. of Am., Inc., 102 F.3d 869, 871 (7th Cir. 1996) (“The Executive
Branch of the federal government does not have rights under the [F]irst [A]mendment.”). The
same is true of RFRA. RFRA prohibits the “government [from] substantially burden[ing] a
person’s exercise of religion” unless the government demonstrates that it is the least restrictive
means of furthering a compelling governmental interest. 42 U.S.C. § 2000bb-1 (emphasis
added). Congress enacted RFRA with the express aim of restoring what, in Congress’s view, the
Free Exercise Clause of the Constitution guaranteed prior to the Supreme Court’s decision in
Employment Division v. Smith, 494 U.S. 872 (1990). 42 U.S.C. § 2000bb. Accordingly, the
“persons” to whom RFRA applies should be interpreted to be consistent with the reach of the
First Amendment. See Rasul, 563 F.3d at 532-33. Because the First Amendment does not protect states, neither does RFRA.15
Indeed, it would be absurd to suggest that states have rights under the Free Exercise
Clause and RFRA. Those provisions prohibit the government from imposing a substantial
burden on a person’s exercise of religion (whether via a non-neutral, non-generally-applicable
law or otherwise) absent a compelling governmental interest and narrow tailoring. 42 U.S.C. §
2000bb-1; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).
States, however, are prohibited from advancing, endorsing, or exercising any religion by another
15 The term “person” as used in RFRA does not include states for the additional reason that Congress included states within the definition of “government” under RFRA. RFRA prohibits certain actions by “government” – a term that, prior to the Supreme Court’s decision in City of Boerne v. Flores, included states. 521 U.S. 507, 516 (1997) (citing prior version of 42 U.S.C. § 2000bb-2(1) that defined “government” to include any “State”). It would be inconsistent with principles of statutory construction to interpret “person” as used in RFRA to include states when Congress used a different term in the same provision, i.e., “government,” to refer to states. See Furnes v. Reeves, 362 F.3d 702, 713 (11th Cir. 2004) (“It is a fundamental rule of statutory interpretation that, within an act, the same words have the same meanings and different words have different meanings.”); Lindsey v. Tacoma-Pierce Cnty. Health Dep’t, 195 F.3d 1065, 1074 (9th Cir. 1999) (recognizing “basic principle of statutory construction that different words in the same statute must be given different meanings”).
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4:12-cv-03035-WKU-CRZ Doc # 31 Filed: 04/30/12 Page 43 of 45 - Page ID # 134 constitutional provision – the Establishment Clause. See Engel v. Vitale, 370 U.S. 421, 431 (1962) (“When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”); Cantwell v. State of Connecticut, 310 U.S. 296, 303 (1940). Thus, the State plaintiffs cannot show that their exercise of religion has been substantially burdened – as required by the First Amendment and RFRA – without purporting to endorse a religion – which would violate the Establishment Clause. For these reasons, if the Court determines it has jurisdiction over the claims that the State plaintiffs assert on their own behalf, the Court should dismiss those claims under Rule 12(b)(6).
CONCLUSION For all the foregoing reasons, this Court should grant defendants’ motion to dismiss.
35

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Respectfully submitted this 30th day of April, 2012,

STUART Acting

F. DELERY Assistant Attorney General

IAN

HEATH GERSHENGORN

Deputy Assistant Attorney General

DEBORAH United

K.R. GILG, States Attorney

JENNIFER

RICKETTS Director

SHEILA Deputy

M. LIEBER Director

Trial United Civil

s/ Michelle R. Bennett

_

MICHELLE R. BENNETT (CO Bar No. 37050)

ERIC R. WOMACK

JAMES D. NELSON

Attorneys

States Department of Justice

Division, Federal Programs Branch

20 Massachusetts Avenue N.W. Room 7310

Washington, D.C. 20530

Tel: (202) 305-8902

Fax: (202) 616-8470

Email: michelle.bennett@usdoj.gov

Attorneys

for Defendants.

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CERTIFICATE OF SERVICE I certify that on this 30th day of April 2012, I caused a copy of the foregoing Defendants’ Memorandum of Law in Support of their Motion to Dismiss to be filed electronically and that the document is available for viewing and downloading from the ECF system.

s/ Michelle R. Bennett

_

Michelle R. Bennett

37

 
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IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

STATE OF NEBRASKA, by and through JON BRUNING, ATTORNEY GENERAL OF THE STATE OF NEBRASKA;

STATE OF SOUTH CAROLINA, by and through ALAN WILSON, ATTORNEY GENERAL OF THE STATE OF SOUTH CAROLINA;

Case No. 4:12-cv-03035-CRZ

BILL SCHUETTE, ATTORNEY GENERAL OF THE STATE OF MICHIGAN, ON BEHALF OF THE PEOPLE OF MICHIGAN;

STATE OF TEXAS, by and through GREG ABBOTT, ATTORNEY GENERAL OF THE STATE OF TEXAS;

STATE OF FLORIDA, by and through PAM BONDI, ATTORNEY GENERAL OF THE STATE OF FLORIDA;

STATE OF OHIO, by and through MICHAEL DeWINE, ATTORNEY GENERAL OF THE STATE OF OHIO;

STATE OF OKLAHOMA, by and through SCOTT PRUITT, ATTORNEY GENERAL OF THE STATE OF OKLAHOMA;

SISTER MARY CATHERINE, CK, an individual;

STACY MOLAI, an individual;

CATHOLIC SOCIAL SERVICES, a Nebraska nonprofit corporation;

PIUS X CATHOLIC HIGH SCHOOL, a Nebraska non-profit corporation

4:12-cv-03035-WKU-CRZ Doc # 33 Filed: 05/24/12 Page 2 of 37 - Page ID # 139
and
THE CATHOLIC MUTUAL RELIEF SOCIETY OF AMERICA, a Nebraska non-profit corporation;
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; KATHLEEN SEBELIUS, in her official capacity as the Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF THE TREASURY; TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF LABOR; and HILDA L. SOLIS, in her official capacity as Secretary of the United States Department of Labor,
Defendants.
___________________________________________/
PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................2 STANDARD OF REVIEW, AND DEFENDANTS’ ASSERTION OF UNSPECIFIED PLANNED CORRECTIVE ACTION.............................................................................................4 ARGUMENT ...................................................................................................................................5
I. THE ORGANIZATION AND INDIVIDUAL PLAINTIFFS HAVE STANDING TO PURSUE THEIR CLAIMS ...............................................................................5 A. The Organization and I ndividual Plaintiffs have Stated a Concr ete and Imminent Injury in Fact Resulting from the Operation of the Final Rule. ..6 1. Defendants’ “Temporary Enforcement Safe Harbor” and “Prom ise of Future R ulemaking” Do Not Deprive P laintiffs of Standing to Bring Their Claims. .........................................................................8
II. THE STATE PLAINTIFFS HAVE STANDING ..................................................14 A. Plaintiff States Face an Actual, Imminent, and Concrete Injury Because the Final Rule Will Result in a Subs tantial Enrollment Increase in Plaintiff States’ Medicaid Programs............................14 B. Plaintiff States W ill Suffer an Actual Inju ry by Im position of the Final Rule and Are Not Bringing this Suit as a Parens Patriae Action. ............................................................................................17
III. THE RULE IS FINAL AGENCY ACTION AND RIPE FOR REVIEW.............18 IV. PLAINTIFFS HAVE MADE SUFFI CIENT FACTUAL ALLEGATIONS T O
SHOW THEY W ILL BE INJURED BY THE OPERATION OF THE FINAL RULE. ....................................................................................................................23 CONCLUSION ..............................................................................................................................27 CERTIFICATE OF SERVICE ......................................................................................................29
i

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TABLE OF AUTHORITIES
CASES
520 S. Mich. Ave. Assocs. v. Devine, 433 F.3d 961 (7th Cir. 2006)……………………………………………………………...9
Abbott Labs. v. Gardner, 387 U.S. 136 (1967)…………………………………………………………………18, 19
ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177 (11th Cir. 2009)………………………………………………………….18
Ashcroft v. Iqbal, 556 U.S. 662 (2009)…………………………………………………………….4, 5, 24, 25
Avery v. Heckler, 584 F.Supp. 312 (D. Mass. 1984)………………………………………………………..26
Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2009)………………………………………………………………4, 24, 25
Blanchette v. Ct. Gen. Ins. Corps., 419 U.S. 102 (1974)……………………………………………………………………...20
Boyle v. Anderson, 68 F.3d 1093 (8th Cir. 1995)………………………………………………………...11, 12
Califano v. Sanders, 430 U.S. 99 (1997)……………………………………………………………………….18
Coleman v. Watt, 40 F.3d 255 (8th Cir. 1994)……………………………………………………………...24
Columbia Broadcasting System v. United States, 316 U.S. 407 (1942)………………………………………………………………….19, 21
Davis v. Scherer, 468 U.S. 183 (1984)……………………………………………………………………...24
Dep’t of Commerce v. U.S. House of Reps., 525 U.S. 316 (1999)……………………………………………………………………….9
Dixon v. Heckler, 589 F.Supp. 1512 (D.C.N.Y. 1984)……………………………………………………...26
ii

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Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153 (11th Cir. 2008)……………………………………………………….9, 19
Florida v. United States HHS, 648 F.3d 1235 (11th Cir. 2011)……………………………………………………...17, 26
Florida v. United States HHS, 780 F.Supp.2d 1256 (N.D. Fla. 2011)………………...…………………………………15
Greyson Currence v. City of Cincinnati, 28 Fed. Appx. 438 (6th Cir. 2002)……………………………………………………….23
Hamilton v. Palm, 621 F.3d 816 (8th Cir. 2010)…………………………….………………………17, 24, 25
Hemi Group, LLC v. City of New York, 130 S. Ct. 983 (2010)……………………………………………….……………………..4
Jackson v. Okaloosa Cnty., 21 F.3d 1531 (11th Cir. 1994)……………………………………………….…………..18
Johnson v. Missouri, 142 F.3d 1087 (8th Cir. 1998)…………………………………………………………...12
Kansas Judicial Review v. Stout, 519 F.3d 1107 (10th Cir. 2008)………………………………………………………….23
Lake Pilots Ass'n v. United States Coast Guard, 257 F. Supp. 2d 148 (D.D.C. 2003)………………………………………………….21, 22
Leatherman v. Tarrant Co. Narcotics Intell. & Coord. Unit, 507 U.S. 163 (1993)……………………………………………………………………….4
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)……………………………………………………………………….6
Massachusetts v. EPA, 549 U.S. 497 (2007)……………………………………………………………………….8
Massachusetts v. Mellon, 262 U.S. 447 (1923)……………………………………………………………………...17
Minnesota Pub. Utils. Comm’n v. FCC, 483 F.3d 570 (8th Cir. 2007)…………………………………………………………….21
iii

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Missouri ex rel. Missouri Highway & Transp. Comm'n v. Cuffley, 112 F.3d 1332 (8th Cir. 1997)…………………………………………………………...22
Mountain States Legal Found. v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996)…………………………………………………………...18
Neitzke v. Williams, 490 U.S. 319 (1989)……………………………………………………………………….4
New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495 (10th Cir. 1995)…………………………………………………………….5
Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998)……………………………………………………………………...23
Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)……………………………………………………………………….8
Pub. Serv. Comm’n of Utah v. Wycoff Co., Inc., 344 U.S. 237 (1952)……………………………………………………………………...22
Public Water Supply Dist. No. 10 v. City of Peculiar, 345 F.3d 570 (8th Cir. 2003)…………………………………………………………….19
Retail Indus. Leaders Ass'n v. Fielder, 475 F.3d 180 (4th Cir. 2007)…………………………………………………………….20
Scheuer v. Rhodes, 416 U.S. 232 (1974)……………………………………………………………………...24
South Dakota Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583 (8th Cir. 2003)……………………………………………………………...6
Summers v. Earth Island Inst., 555 U.S. 488 (2009)……………………………………………………………………...16
Texas Independent Producers v. U.S. Environmental Protection Agency, 413 F.3d 479 (5th Cir. 2005)…………………………………………………………….22
Texas v. United States, 523 U.S. 296 (1998)……………………………………………………………………...22
Toca Producers v. FERC, 411 F.3d 262 (D.C. Cir. 2005)…………………………………………………………...22
iv

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U.S. Telecom Ass'n v. FCC, 359 F.3d 554 (D.C. Cir. 2004)…………………………………………………………...21
United States v. Metro St. Louis Sewer Dist., 569 F.3d 829 (8th Cir. 2009)…………………………………………………………….12
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)……………………………………………………………………...18
Vill. of Bensenville v. FAA, 376 F.3d 1114 (D.C. Cir. 2004)…………………………………………………………...9
Vorbeck v. Schnicker, 660 F.2d 1260 (8th Cir. 1981)…………………………………………………………...21
Watt v. Energy Action Educ. Found., 454 U.S. 151 (1981)……………………………………………………………………...17
Wyoming Outdoor Council v. United States Forest Serv., 165 F.3d 43 (D.C. Cir. 1999)………………………………………………………….…22
STATUTES & REGULATIONS 42 U.S.C. § 2000bb……………………………………………………………………………..…1 26 C.F.R. § 54.9815-1251T(a)……………………………………………………….……………7 26 C.F.R. § 54.9815-1251T(g)(1)……….…………………………………...……………………7 29 C.F.R. § 2590.715-1251(a)……….……………………………………………...…………….7 29 C.F.R. § 2590.715-1251(g)(1)……………………………………………...………………….7 45 C.F.R. § 147.140(a)……………………………………………………………………...……..7 45 C.F.R. § 147.140 (g)(1)………………………………………………………..……………….7 42 U.S.C. § 1396d(b)………………………………………………….…………………………15 42 U.S.C. § 18031……………………………………………………..…………………………26 76 Fed. Reg. 46621 (Aug. 3, 2011)………………….…………………………………………….4 77 Fed. Reg. 8725 (Feb. 15, 2012)………………………………………………….…….3, 19, 21
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77 Fed. Reg. 16501 (Mar. 21, 2012)…………………………………………………………..9, 10 MISCELLANEOUS
Cong. Budget Office, The Long-Term Budget Outlook (June 2010)…………………………….16 Nat’l Ass’n of State Budget Officers, 2008 State Expenditure Report (“NASBO Report”), Table
5 (State Spending by Function as a Percent of Total State Expenditures, Fiscal 2008) (Fall 2009)………………………………………………………………………………..15 U.S. Department of Health and Human Services (“HHS”), Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans. (accessed Feb. 20, 2012) http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html...............................................................................................................8 U.S. Department of Health and Human Services, A statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (last modified Jan. 20, 2012) http://www.hhs.gov/news/press/2012pres/01/20120120a.html.........................................14 U.S. Gov’t Accountability Office, State and Local Governments: Fiscal Pressures Could Have Implications for Future Delivery of Intergovernmental Programs (GAO-10-899) (July 2010)……………………………………………………………………………….…….16
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INTRODUCTION This case involves a First Am endment and statutory challenge to a “Final Rule” promulgated by the federal government that will coerce religious organizations, care providers, socials service agencies, and others to subsidiz e contraception, abortifacients, sterilization, and related services in contravention of their religious beliefs. Plaintiffs’ Complaint (“Compl.”), at ¶¶ 1, 70 (doc. 1). By its explicit term s, the Final Rule does not accommoda te the religious beliefs of religious organizations that do not restri ct their services primarily to people who share their religious tenets, or that do no t restrict employment primarily to people who share their religious tenets, or that do not have “the inculcation of reli gious values” as th eir primary operational purpose. Id. at 78. The Final Rule is unconstituti onal and also violates the Religious Freedom Restoration Act. See U.S. Constitution, Amend. 1; 42 U.S.C. § 2000bb. It also will have the effect of causing individua ls and institutions to drop thei r health care coverage, and of causing religious organization em ployers to restrict services to people who share their religious faith. See, e.g., Compl. at ¶¶ 20, 30, 41, 76. In response to P laintiffs’ Complaint, Defendants have brought a Motion to Dism iss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, accompanied by a Memorandum of Law in Support of Defendants’ Motion to Dism iss (“Def. Mem.”), at 32 (doc. 31). Defendants make no effort in these filings to defend the constitutionality of their Final Rule. Rather, starting on page 1 of their Mem orandum, and continuing for some 30 pages, they center their defense on an ethereal and undefined promise of some future action to reform their conduct to “address religious co ncerns such as those rais ed by plaintiffs in this case.” Def. Mem . at 1. Among other things, Defendants argue that their “Final Rule” is not all that final; that the federal government will correct its positio n at som e future point; that having failed appropriately to
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accommodate the religious beliefs of the non-State Plaintiffs in their Final Rule, their prom ise to do so by means of some unspecified future action should be viewed nonetheless as dispositive of and fatal to Plaintiffs’ case; and th at these Plaintiffs should not at th is stage be perm itted to advance the important religious liberty issues impli cated here. In the course of th at argument, Defendants stand ripeness analysis on its h ead by arguing that undefined and conjectural contingencies posited as a defense can render a claim nonjusticiable, while also seeking to alter pleading standards by disputing (without cited founda tion) factual allegations of the Com plaint. Defendants’ analysis also ignores the particular First Am endment context of this case. For the following reasons, Plaintiffs respectfully request this Court deny Defendants’ Motion to Dismiss.
BACKGROUND In this action, Plaintiffs challenge the constitutionality of a regulation promulgated by the U.S. Departments of Health and H uman Services, Labor, and the Treasu ry (collectively, the “Federal Government”) that would coerce relig ious organizations, instit utions, care providers, outreach groups, and social service agencies, am ong others, to directly subsidize contraception, abortifacients, sterilization, and related services in contraventi on with their relig ious beliefs. Such coercion – which would direct individuals and organizations to subsidize, prom ote, or affirm products, services, and activ ity in direct contravention with the tenets of their religious faith – is forbidden by the First Amendment to the United States Constitution, which protects the free exercise of religion and the freedom of speech. Important and venerable constitutional principles protecting religious liberty are at stake in this case. Should the Fede ral Government’s Final Rule be upheld, countle ss additional religious freedoms would be vulne rable to government intrusion and negation through coercion.
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It is in that context tha t Plaintiffs object to Defendants’ Motion to Dismiss and ask this Court to overrule it.
The Final Rules on Group Health Plans and Health Insurance Is suers Relating to Coverage of Preventive Services U nder the Patie nt Protection and Affordable Care Act (the “Final Rule”), 77 Fed. Reg. 8725 (Feb. 15, 2012) (to be codified at 26 C.F. R. Pt. 54; 29 C.F.R. Pt. 2590; 45 C.F.R. Pt. 147 and the a mendments thereto), promulgated pursuant to the Patient Protection and Affordable Care Act (“ACA”), are federal m andates that require all em ployers that provide health in surance to their em ployees to include coverage for contracep tives, sterilization, and related pa tient education and counseling. 1 However, the provision of contraceptives, sterilization, and related patient education and couns eling is in direct conflict with the religious beliefs of certain religious organization em ployers and individuals. See Compl. at ¶¶ 18, 25, 40, 48, 57. The Final Rule for ces organization Plaintiffs Catholic Social Services, Pius X Catholic High School, and Cathol ic Mutual and individual Plaintiffs Sister Mary Catherine and Stacy Molai to choose between religious observance and the violation of a regulatory mandate.
Under the Final Rule, there are two ways in which religious organization employers may circumvent the requ irement to cover contracep tives: by declin ing to p rovide health insurance altogether (and incurring substantial civ il penalties as a result) or b y satisfying all of the following criteria to qualify for the “religious employer” exemption:
(1) The inculcation of religious values is the purpose of the organization. (2) The organization prim arily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization.
1 “Final Rule” refers only to the requirement to cover contraceptives, abortifacients, sterilization, and related patient education and counseling; not th e entire list o f preventive services for women. Add itionally, the relief requested from HHS applies to all three departments that issued the interim final rule.
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(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011) (“Religious Employer Exemption”). STANDARD OF REVIEW, AND DEFENDANTS’ ASSERTION OF UNSPECIFIED
PLANNED CORRECTIVE ACTION In assessing Defendants’ Motion to Dism iss, the Court m ust “accept as true the factual allegations” of the Complaint. Hemi Group, LLC v. City of New York , 130 S. Ct. 983, 986-87 (2010), citing Leatherman v. Tarrant Co. Na rcotics Intell. & Coord. U nit, 507 U.S. 163, 164 (1993). A com plaint that states “a plausible claim for relief su rvives a m otion to dism iss.” Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). A com plaint need not set forth detailed factual allegations, but must make a ‘“showing,’ rather than a blanket assertion, of entitlement to relief;” it must provide “some factual allegation” to provide “fair notice” of the claim and the “grounds” on which it rests. Bell Atlantic Corp. v. Twombly , 550 U. S. 544, 555, n. 3 (2009). And o f course, “Rule 12(b)(6) does not co untenance … dism issals based on a judge’s disbelief of a complaint’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). In this case, it should be noted from the st art that Defendants purport not only to be on notice of and to understand Plaintiffs’ claims, they also assert that they will take future action “to address religious concerns such as those raised by plaintiffs in this case,” and they promise to undertake “amendments to the challenged regulations to accommodate the religious objections of organizations like the organization plaintiffs.” Def. Me m. at 1, 2-3. The gravam en of this defense is that Defendants appreciate and understa nd Plaintiffs’ claims so well that they can be relied upon to rem edy the problem even absent fu rther Court proceedings. Because Defendants have not sp ecified or c ommitted to any particu lar such am endment, however, ther e exists no standard against which to judge this for mless defense representation. The rule now on the books
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is the Final Rule, and it is tha t Rule that th e allegations in the Complaint address. Defendants’ Motion to Dism iss the Com plaint should be asse ssed under a standard recognizing that: “A claim has facial plau sibility when the plaintiff pleads factual c ontent that a llows the cour t to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. It will be for the Court to judge whether that plausibility exists in this context where Defendants aver by way of defense that they “inte nd[ ] to address the very issue that plaintiffs raise in this case” through “forthcoming” remedial activity. See Def. Mem. at 29.
ARGUMENT I. THE ORGANIZATION AND INDIVIDUAL PLAINTIFFS HAVE STANDING
TO PURSUE THEIR CLAIMS. Defendants have argued Plaintiffs lack st anding because they do not face immi nent injury. However, the organizational and individual Plaintiffs face an imminent decision to either compromise their re ligious beliefs or violate th e law. Acco rdingly, Plaintiffs have standing to pursue their claim . Moreover, and because Defe ndants merge ripenes s arguments into their attack on standing, see, e.g., Def. Mem. at 16 (“In light of the forthcom ing [unspecified] amendments, … there is no reason to suspect th at the o rganization plaintiffs will be required [after those unspecified changes] to sponsor a hea lth plan that covers contraceptive services in contravention of their religious beliefs”), 19 (“ by that tim e, defendants will have finalized amendments … that will accommodate … religious objections. … Those amendments are likely to affect the individual plaintiffs as well, by providing them with a m echanism ….”), Plaintiffs are constrained to note here that Defendants agai n fail to account for the special nature of the First Amendment rights advanced in this ca se. See, e.g., New Mexica ns for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“First Amendment rights of free expression and association are particularly apt to be found ripe for i mmediate protection, because of the fear of
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irretrievable loss. In a wide va riety of settings, courts have found First Am endment claims ripe, often commenting directly on the special need to protect against any inhibiting chill;” ripeness dismissal reversed).
A. The Organization and Individual Plaintiffs have Stated a Concrete and Imminent Injury in Fact Resulting from the Operation of the Final Rule.
Plaintiffs Catholic Social Services, Pius X Catholic High Sc hool, Catholic Mutual, Sister Mary Catherine and Stacy Molai are at imminent risk of injury. Plaintif f Catholic Socia l Services’, Pius X Catholic High School’s, Catho lic Mutual’s, Sister Mary Catherine’s and Stacy Molai’s plans have b een specifically contracted to exclude coverage for purposes of contraception, abortifacients, sterilization, and related services. Compl. at ¶¶ 19, 26, 41, 49, 56. Plaintiffs will be coerced into purchasing or subsidizing coverage in direct contravention of their beliefs or dropping coverage outrigh t if the Fina l Rule is up held. This coercion con stitutes an injury-in-fact.
To establish standing, a “plainti ff must have suffered an injury in fact, m eaning that the injury is (a ) concrete and par ticularized and (b) actual or imm inent, not conjectural or hypothetical. Second, the injury must be traceable to the defendant’s challenged action. Third, it must be ‘likely’ rather than ‘speculative’ that a favorable decision will redress the injury.” South Dakota Farm Bureau, Inc. v. Hazeltine , 340 F.3d 583, 591 (8th Cir. 2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130 ( 1992)). Plaintiffs meet all three requirements. As a res ult of the Final Rule, each and every Plaintiff has suffered or will imminently suffer injury-in-fact.
As a component of establishing standing to bring such a claim, Plaintiffs must show they have been or are at im minent risk of being act ually injured by the operat ion of the Final Rule.
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Toward that end, at least several of the individu al and organization Plain tiffs have alleged the fact that th ey do not m eet the criteria to be grandfathered (i.e., exem pt) from the Final Rule ’s Requirements and, thus, are at especially imminent risk of injury by the Final Rule’s operation.
The health plans of Plaintiffs Catholic Soci al Services, Pius X Catholic High School and Sister Mary Catherine do not qualify to be gr andfathered from the ACA requirements. Compl. at ¶¶ 21, 43, 50. And even a grandfathered plan loses its grandfather status if it significantly cuts or reduces benefits, rais es co-insurance charges, significantly raises co-payment charges, significantly raises ded uctibles, significantly lowers employer contributions, or im poses or tightens an annual lim it on the dollar value of any benefits. 26 C.F.R. § 54.9815-1251T(a), (g)(1); 29 C.F.R. § 2590.715-1251(a), (g)(1); 45 C.F.R. § 147.140(a), (g)(1).
Plaintiffs’ non-grandfathered health plans ar e immediately and direc tly affected by the operation of the Final Rule. These plans must comply with the Final Rule on April 16, 2012. That date is fixed definitively in th e law. Even if Plaintiffs Catholic Social Serv ices, Pius X Catholic High School and Catholic Mutual qualify for the tem porary enforcement safe harbor, they must comply with the Final R ule upon the expira tion of the temporary enforcem ent safe harbor on August 1, 2013.
To the extent Plaintiff Catholic Mutual is providing a health insurance plan and Pla intiff Molai is pu rchasing health insurance that are grandfathered by the A CA, they are requ ired to retain such plans precis ely as th ey were at their inception to avoid lo sing grandfather status. Compl. at ¶¶ 31, 59. Upon which tim e such pl ans are substantially modified, they becom e a “new plan” subject to th e full gamut of ACA requi rements, including the Final Rule itself. By the Federal Government’s own admission, this is bound to occur.
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HHS acknowledges there is “considerable uncertainty” surrounding employer plans and their grandfather status beginning in 2011. U.S. Department of Health and Hum an Services (“HHS”), Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans. (accessed Feb. 20, 2012) < http://www.healthcare.gov/news/factsheets/2010/06/keeping-thehealth-plan-you-have-grandfathered.html>. In fact, based on HHS “ mid-range” assumptions of the number of plans that would rem ain grandfathered if they m ade changes consistent w ith changes made in 2008 and 2009, only 55% of large em ployer and 34% of sm all employer plans would remain grandfathered by 2013. Id. To this extent, for plans that currently qualify for grandfather status, HHS recognizes that loss of that status is imminent.
1. Defendants’ “Temporary Enforcement Safe Harbor” and “Promise of Futur e Rulemaking” Do Not Deprive Plaintiffs of Standing to Bring Their Claims.
Defendants contend that Plaintiffs lack st anding due to the Defendants having im posed a “temporary enforcement safe harbor” during wh ich limited time the Federal Gover nment has unilaterally promised to “not take any enforcem ent action.” De f. Mem. at 14-15, 19. By the expiration of the safe harbor on the fixed date of August 1, 2013, De fendants, pursuant to an Advance Notice of Proposed Rulem aking, promise they will have prom ulgated unspecified “regulatory amendments” that will “accomm odate additional religious organiz ations’ religious objections” to subsidizing products and servi ces violative of orga nization and individual Plaintiffs’ religious beliefs. Def. Mem . at 15-16, 19-20. Neither of these factors deprives Plaintiffs of standing to bring their claims.
Courts repeatedly have found standing to pursue a pre-enforcem ent constitutional challenge where the alleged harm will occur in the f uture. See, e.g., Massachusetts v. EPA , 549 U.S. 497, 521-23, 127 S.Ct. 1438 (2007) (standi ng based on rise in sea levels by the end of this century); Pierce v. Soc’y of Sister s, 268 U.S. 510, 536, 45 S.Ct. 571 (1925) (standing to
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challenge education act at leas t two years and five m onths before effective date); Dep’t of Commerce v. U.S. House of Reps. , 525 U.S. 316, 332, 119 S.Ct. 765 (1999) (standing in February 1998 to challenge sa mpling method for 2000 Census); Vill. of Bensenville v. FAA , 376 F.3d 1114, 1119 (D.C. Cir. 2004) (standing to contest fees not collectible for 13 years). Standing “depends on the probability of harm, not its temporal proximity.” See 520 S. Mich. Ave. Assocs. v. Devine, 433 F.3d 961, 962 (7th Cir. 2006).
“[I]mmediacy requires only that the antic ipated injury occu r with some fixed period of time in the future, not that it ha ppen in the colloquial sense of s oon or precisely within a certain number of days, weeks, or months.” Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1161 (11th Cir. 2008). Given that standing “depends on the probability of harm, not its temporal proximity,” Devine, 433 F.3d at 962, Plaintiffs’ standing is not undermined by the imposition o f the temporary enforcement safe harbor.
This analysis and the imminence of the injury faced by Plaintiffs is not m itigated by either Defendants’ tem porary enforcement safe harbor or the March 21, 2012 release of the information gathering A dvance Notice of Propo sed Rulemaking Regarding Certain Preventive Services Under the Affordable Care Ac t (“ANPRM”). 77 Fed. Reg. 16503 (Mar. 21, 2012). Defendants contend that Plaintiffs’ injuries , though stemm ing from wh at they them selves promulgated as a Final Rule, are speculative and conjectural, depriving Plaintiffs of standing to pursue their claims. In support of this position, Defendants cite th eir “promises” of some future regulatory relief, despite there being no rulem aking process currently underway. It is upon these promises Defendants w ould have Plaintiffs rely to their in evitable detriment. This sort of ‘we really didn’t m ean it, an d please tru st us’ defen se, however, has no basis in law or applicable precedent. Defendants would have this Court turn away Plaintiffs’ claims, forcing Plaintiffs to
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watch the clock run out on Defenda nts’ self-imposed “temporary enforcement safe harbor” (th e expiration of which will imm ediately subject non-grandfathered individual and organizational Plaintiffs to a mandate in violation of their religious beliefs at a fixed and certain date), all on the basis of hypothetical speculati on about the possible outcom e of a potential future NPRMinitiated rulemaking process – a process th at holds out n o assurance of mitigating the har m Defendants’ current and Final Rule poses.
It is im possible for Plain tiffs to discern whether th e “anticipated changes to the preventive services coverage regulations,” Def. Mem. at 16, will ever mater ialize, let alone what they may be. The only regulatory language currently operational and carrying the force of law is that of the Final Rule, which Defendants them selves promulgated. Any reference Defendants make to future changes to the Final Rule, in cluding changes that coul d hypothetically lead to “plaintiffs’ claim of injury . . . differ[ing] subs tantially from their current claim of injury,” id., is a reference to something that exists only in the realm of speculative possibility.
Indeed, Defendants themselves discuss these possible future amendments in speculative terms. They can do no more than d escribe the changes as having been “promis[ed],” Id. at 15, “anticipated,” Id. at 16, and “forthcom ing.” Id. Unlike the Final Rule, of course, such prom ised accommodations do not yet exist . The proposed language of such accom modations has not yet even been released. It was certainly not included in Defendants’ much-hyped ANPRM which, as Defendants themselves concede, is m erely an “opportunity to, among other things, comment on ideas suggested by defendants for accomm odating religious organizations, offer n ew ideas to ‘enable religious organizations to avoid . . . objectionable cooperation when it com es to the funding of contraceptive coverage,’ and identify considerations defendants should take into account when amending the regulations.” Id.; see also 77 Fed. Reg. at 16503, 16507.
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The case of Boyle v. Anderson, 68 F.3d 1093 (8th Cir. 1995), advanced by Defendants to support their contention that this Court should refrain from considering the merits of Plaintiffs’ Complaint, Def. Mem. at 16 n. 8, cuts directly against Defendants and exposes the critical flaws of their defense by speculation approach. The Boyle decision is categorically unhelpful to Defendants’ Motion to Dism iss. The Boyle plaintiffs were found to lack standing to challenge certain data collection regulations promulgated by the Minnesota Department of Health because, though they were of a class of en tities “encouraged” to comply w ith the data collection, they were expressly excluded from the requirem ent. Boyle, 68 F.3d at 1100. The plaintiffs had contended “that the State of Minnesota might at some point in th e future change its position and require compliance with the data requirements” but the court rejected this hypothetical posture as insufficient for establishing standing. Id (emphasis added). To quote Defendants them selves: “The court … refused to issue ‘an advisory opinion to deal with the possibility that at some point in the future the State’ m ight ‘reverse [its] position’.” Def. Mem . at 17, n.8, quoting Boyle, 68 F.3d at 1100. There, it was the Boyle plaintiffs whose cas e was predicated on th e uncertain potential of future chan ge, whereas here, it is the Defendants who seek to hide behind vague promises of future remedies for the current unconstitutional Final Rule. The conjecture in which they seek to engage does not warrant dismissal.
Here, Plaintiffs have su fficiently pleaded that at least several of the individual and organization Plaintiffs are subject to the operation of the Final Rule. Com pl. at ¶¶ 21, 43, 50. This, unlike the statu s of the Boyle plaintiffs, is hardly conject ure about a “possible” future injury. Moreover, Plaintiffs are not alleging that Defendants “might at some point in the future change [their] position and requir e compliance.” Rather, Plaintif fs have been guaranteed a requirement to comply with the Fin al Rule by virtue of the fact that the temporary enforcement
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safe harbor expires on a fixed date: August 1, 2013. W hereas the Boyle plaintiffs claimed they would only be harmed if the state changed its mind regarding a regulatory requirement, here, the Federal Government has already specified its Final Rule an d Plaintiffs are at imm inent risk of injury as a result.
Similarly unhelpful to Defendants are the Eighth Circuit’s decisions in United States v. Metro St. L ouis Sewer Dist. , 569 F .3d 829 (8th Cir. 2009) and Johnson v. Missouri , 142 F.3d 1087 (8th Cir. 1998), which Defendants offer to buttress their contenti on that the injuries Plaintiffs complain of are som ehow speculative or conjectural. In those cases, standing was not established because litigants cou ld not sufficiently allege a current or imm inent concrete and particularized injury unless a certain series of events occurred first. In each case, the occurrence of such events was found to be too speculative to justify standing.
Here, no such serie s of events m ust take pla ce for Plaintiffs’ complained of injury to occur. All that m ust occur is the ex piration of the temporary enforcement safe harbor, which is guaranteed to occur on August 1, 2 013. Again, the occurrence of this event is not conjectural or speculative. No operational regulatory language currently exists upon which Plaintiffs could rely for the notion that such injuries will not occur. The only speculation at issue is the specula tion advanced by Defendants that they s omehow will remedy the wrongs through amendments that they cannot or will not now recite and that they assert are to be based on “ideas ” not yet offered and on “considerations” not yet taken into account. Def. Mem. at 16.
Defendants make a number of speculative a nd hypothetical representations to cloud the actual and imminent injury posed by Defendants’ already promulgated Final Rule. Def. Me m. at 15-16, 19-20. Defendants claim that by the expiration of the temporary enforcement safe harbor, they “will have finalized am endments to th e [Final Rule] that will accommodate additional
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religious organizations’ religious objections to providing contraception coverage.” Def. Mem. at 19. They go on to note that the “amendments are likely to affect the individual plaintiffs as well” and that the ANPRM s uggests, among other opti ons, “that a mendments might require health insurance issuers to offer health insurance coverage without cont raceptive coverage to religious organizations that object to such coverage on religious grounds.” Id.
It is difficult to conceive of language m ore speculative than this. Of course, it is these vague assurances, about a future rulem aking that may or may not occur, upon which Defendants claim Plaintiffs must rely for fut ure relief, while sim ultaneously claiming that, som ehow, Defendants’ Final Rule is apparently not actually final. Not surprisingly, Defendants offer no legal basis for their conclusion that their “Final Rule” is not to be analyzed as a final rule. And Defendants’ implicit proposition that Plaintiff re ligious organizations and their employees can defer all thought, work, and planning now on their 2013 insurance needs, despite the existence of an unamended Final Rule that Plaintiffs promulgated and have not rescinded, is as remarkable as their legal a nalysis. One certa inly could im agine a revamped rule alo ng the lines at which Defendants hint that wo uld maintain all the co nstitutional infirmities of the cur rent Final Rule and that in no way would am eliorate the cons titutional problems that Def endants impose. To undertake a constitutional analysis of such a hypothetical am endment, however, is w orse than a mug’s game – it is an impossibility, for no one ca n analyze language that has not been specified. What has been specified, and published by Defendants , is their indefensible Final Rule. Having put forth their F inal Rule, Defe ndants cannot now be heard to argue that it can evade review . Plaintiffs have established they will suffer a concrete injury to core First Amendment and RFRAprotected rights at a s pecified time in th e near future. Defendants’ argum ents regarding
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speculative remedies are simply without merit and accordingly their Motion to Dism iss should

be denied.

II. THE STATE PLAINTIFFS HAVE STANDING

A. Plaintiff States Face an Actual, Imminen t, and Co ncrete Injury Because th e Final Rule Will Result in a Substantial Enrollment Increase in Plaintiff States’ Medicaid Programs.

Plaintiff States have standing to bring suit because the Final Rule will force the reduction

of private health in surance enrollment among or ganizations and individua ls like Plaintif fs

Catholic Social Services, Pius X C atholic High School, Catholic Mutual, Sister Mary Catherine

and Stacy Molai, thereby substantially increasing the burden imposed on Plaintiff States’ budgets

via enrollment in Plaintiff States’ Medicaid Programs. Though the Federal Government’s stated

purpose for the Final R ule is to ex pand access to coverage, see generally, U.S. Department of

Health and Hum an Services, A statement by U.S. Department of Health and Human Services

Secretary Kathleen Sebelius

(last modified Jan. 20, 2012)

<http://www.hhs.gov/news/press/2012pres/01/20120120a.html>, its practical effect is to induce individuals

and organizations to drop coverage, either for them selves or for their employees, respectively.

Without an exemption for Plaintiffs Catholic So cial Services and Pius X Catholic High School,

whose religious beliefs forbid th e subsidization of contraceptives through their employer-based

health plans, such organizations will sim ply drop coverage for their empl oyees rather than pay

for services which are antithetical to their moral beliefs. Compl. at ¶ 42.

The effect of religious organi zation employers, like Catholic Social Services and Pius X

Catholic High School, dropping coverage for th eir employees will be an i mmediate and

substantial spike in the number of enrollments in Plaintiff States’ Medicaid programs, as many of

the employees will in variably shift to Medic aid to rem ain in com pliance with the ACA’s

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individual coverage mandate. Compl. at ¶ 85. In creased Medicaid enrollment as a result of the ACA’s overall mandate already threatens the States’ budgetary stability. Compl. at ¶ 86. Forcing another round of enrollm ent resulting from religious organization employers dropping coverage will magnify this concern substantially. Id.
Through a com bination of m andatory and voluntary expansions to eligibility and coverage, as well as demographic and econom ic changes over the past ha lf-century, Medicaid has expanded exponentially and is now the single largest federal grant-in -aid program to the states. Medicaid presently accounts for more than 40% of a ll federal funds dispersed to states and approximately 7% of all federal spending. See Florida v. United States HHS , 780 F.Supp.2d 1256 (N.D. Fla. 2011). In 2009 alone, states received more than $250 billion in federal Medicaid spending, with the av erage State receiv ing at least $1 billion, an d many states receiv ing significantly more. The ACA envisions expand ing Medicaid spending s ubstantially. Federal funding continues to cover no less than 50% and as much as 83% of each state’s Medicaid costs, 42 U.S.C. § 1396d(b), and com bined state and fede ral Medicaid spending is the equivalent of 20% of an average State’s total annual spending. Nat’l Ass’n of State Budget Officers, 2008 State Expenditure Report (“NASBO Report”), Table 5 ( State Spending by Function as a Percent of Total State Expenditures, Fiscal 2008 ) (Fall 2009). Moreover, all of those num bers reflect federal and state spending before the significant increases envisioned by the ACA. Accordingly, increases in Medicaid e nrollment resulting from the Final Rule would drive spending higher even than that resulting from the ACA’s other requirements.
Medicaid spending has become such a cost to the states that, concurrent with its mandating a significant increase in state Medicaid spending, th e Federal Governm ent has recognized that th e fiscal stabil ity of states ov er the next decade will larg ely depend on th eir
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ability to reduce the seemingly ever-increasing costs of the program . See Cong. Budget Office, The Long-Term Budget Outlook (June 2010) 27 (“state governments—which pay a large share of Medicaid’s costs and have considerable influenc e on those costs—will need to reduce spending growth in o rder to b alance their bu dgets”); U.S. Gov’t Accountability Office, State and Local Governments: Fiscal Pressures Could Have Implications for Future Delivery of Intergovernmental Programs (GAO-10-899) 6 (July 2010) (recommending that States immediately and persistently cu t Medicaid costs “for each a nd every year going forward [to achieve] equivalent to a 12.3 percent reduc tion in state and local government current expenditures”).
Accordingly, the fiscal im pact of increa sed Medicaid enrollments on state budgets brought about by any reason is beyond doubt. Plaintiff States have already dem onstrated an interest in opposing the ACA as a whole due, in part, to the law’ s massive effect on the States’ Medicaid program. An interest in opposing th e Final Rule, prom ulgated pursuant to the ACA itself, rests in part on re lated grounds. The States have alleged a “concrete and particularized” injury that is “fairly traceable” to the Final Rule and redressed by the relief requested. Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142 (2009).
Finally, Plaintiffs’ injuries can be redressed by a decision holdi ng the Final Rule unconstitutional and unlawful, thereby preven ting unnecessary interference with Plaintiff Catholic Social Services’, Pi us X Catholic High School’s, Cat holic Mutual’s, S ister Mary Catherine’s and Stacy Molai’s re ligious liberty and substantial increases to Pla intiff States’ budgets via enrollment in Plaintiff States’ Medicaid Programs.
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B. Plaintiff States Will Suffer an Actual Injury by Imposition of the Final Rule an d Are Not Bringing this Suit as a Parens Patriae Action.
Defendants assert that State Plaintiffs lack standing to challenge the Final Rule because they are impermissibly suing the federal government in a parens patriae action in violation of the rule articulated in Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597 (1923). Def. Me m. at 21. In Mellon, the Sup reme Court held th at states cannot sue the federal gov ernment in a representative capacity to protec t their citizens from the oper ation of an allegedly unconstitutional federal law. 262 U.S. at 485–86.
Despite Defendants’ claims to the contrary, St ate Plaintiffs are not in violation of the Mellon rule. Rather, the States hav e standing to challenge the Final Rule because th e increased enrollment in state Med icaid programs spurred by the Final Rule will f urther threaten Plaintiff States’ already strained budgetary stability. Compl. at ¶¶ 84-87. This allegation of fiscal injury to State Plaintiffs, described in greater detail in Section A, infra, of this Part should be accepted as true by this Court and utilized to draw the reasonable inference that Defendants are liable for the misconduct alleged to cause State Plaintiffs’ imminent injury. Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir. 2010). Accordin gly, State Plaintiffs are not bringing this action under the doctrine of parens patriae.
Alternatively, if the Court first finds that any of the individual or organization Plaintiffs has standing, it need not determ ine whether Pl aintiff States likewise have standing. As the Eleventh Circuit recognized in a challenge to the same statute from which the Final Rule sprung, in the event a particular Plaintiff may not have standing, the law is abundantly clear that “so long as at least one plaintiff has standing to raise each claim—as is the case here—[the c ourt] need not address whether the rem aining plaintiffs have standing.” Florida v. United States HHS , 648 F.3d 1235, 1243 (11th Cir. 2011); See, also, Watt v. Energy Action Educ. Found ., 454 U.S. 151,
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160, 102 S. Ct. 205 (1981) ("Because we find California has standi ng, we do not consider the standing of the other plaintiffs."); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264, 97 S. Ct. 555 (1977) ("Because of the presence of this plai ntiff, we need not consider whether the other individual and corporate plaintiffs have st anding to maintain suit."); ACLU of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd ., 557 F.3d 1177, 1195 (11th Cir. 2009) ("Because Balzli has standing to raise those claim s, we need not decide whether either of the organizational plaintiffs also has standing to do so."); Jackson v. Okaloosa Cnty., 21 F.3d 1531, 1536 (11th Cir. 1994) ("In order for this court to have jurisdicti on over the claims before us, at least one na med plaintiff must have standing for each of the claim s."); Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232, 320 U.S. App. D.C. 87 (D.C. Cir. 1996) ("For each claim , if constitutional and prudential st anding can be shown for at leas t one plaintiff, we need not consider the standing of the other plaintiffs to raise that claim.").
As Plaintiff States have articulated a concrete injury that will be redressed by the Court’s review of the unconstitutionality of the Final Rule, Plaintiffs States have standing to bring the ir claims and Defendants’ Motion to Dismiss should be denied.
III. THE RULE IS FINAL AGENCY ACTION AND RIPE FOR REVIEW Defendants’ Motion to Dismiss should further be denied because the Final Rule is final
agency action and ripe f or judicial resolution. Ri peness turns on two factors: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507 (1967), overruled on other grounds in Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980 (1997).
In Abbott, the Court determ ined a pre-enforcement challenge to Federal Food, Drug and Cosmetic Act regulations was ripe because the regulations were “quite clearly definitive,” Abbott
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Labs., 387 U.S. at 151; the regulations “were m ade effective upon publication,” id. at 152; and “[t]here [was] no hint that th [e] regulation [was] informal. Id. at 151. Like the regulations in Abbott, the Rule is a “Final Rule.” 77 Fed. Reg. 8725. There is no indication that the Final Rul e is informal. In determ ining finality, “[s]uch re gulations have the for ce of law before their sanctions are invoked as well as after.” Abbott, 387 U.S. at 150 (quoting Columbia Broadcasting System v. United States , 316 U.S. 407, 418-19, 62 S.Ct. 1194 (1942)). “When, as here, [regulations] are promulgated . . . and the expected conform ity to them causes injury cognizable by a court of equity, they are appropri ately the subject of attack . . .” Id. Plaintiffs’ injury in this case is imminent and actual a nd enforceable as the Final Rule against the non-g randfathered Plaintiffs on August 1, 2013. If “t he enforcement of a statute is certain, a pre-enforcem ent challenge will not be r ejected on r ipeness grounds.” Browning, 522 F.3d at 1164 (em phasis added).
Plaintiffs’ claims are also ripe for re view because delaying judicial review will result in hardship for Plaintiffs. “The plaintif fs need not wait un til the threatened injury occurs, but th e injury must be certainly im pending.” Public Water Supply Dist. No. 10 v. City of Peculiar, 345 F.3d 570, 573 (8th Cir. 2003) (remanding the case with instructions to dismiss as not impending because the city’s invo lvement in a hypothetica l dissolution could only occur after a citizen petition drive that had no indication of occurring). Plaintiffs’ injury is certainly imminent, and they must take immediate account of the Final Rule and its coercive impact on religious liberties.
The Final Rule requires Plaintiffs Catholic Social Services, Pius X Catholic High School, Catholic Mutual, Sister Mary Catherine and S tacy Molai to m ake immediate and significant changes to their health care coverage arrangem ents in contravention of their religious and moral beliefs, or forego health insurance altogether and face a steep civil penalty in doing so. Injury to
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Plaintiffs Catholic Social Services, Pius X Catholic High School, Catholic Mutual, Sister Mary Catherine and Stacy Molai is inev itable and, “[w]here the inevita bility of the operation of a statute against certain individu als is patent, it is ir relevant to the e xistence of a justiciab le controversy that ther e will be a tim e delay bef ore the d isputed provisions come into ef fect.” Blanchette v. Ct. Gen. Ins. Corps., 419 U.S. 102, 143, 95 S.Ct. 335 (1974).
The Defendants suggest that the Plaintiffs m ay not have to be forced to com ply with the Final Rule until Augus t 1, 2013. Def. Me m. at 32. They contend that the P laintiffs are grandfathered, and “even if [Plaintiffs ] are not grandfathered, [Plaintif fs] can qualify for the temporary enforcement safe harbor . . .” Id. This argument presupposes that the Plaintiffs object to the Final Rule solely on th e grounds of possible enforcem ent before August 1, 2013. The fact that the Fin al Rule will not be enforced agai nst religious organization employers that qualify under the guidelines until August 1, 2013 does not m ean that the Final Rule will not be felt now or in the imm ediate or near fu ture. Plaintiffs must s tart making plans now to com ply with the Final Rule and any ina bility to of fer health insurance coverage will have severe im pact on Plaintiff religious organizat ion employers’ ability to re tain and recruit em ployees. See, e.g., Retail Indus. Leaders Ass'n v. Fielder, 475 F.3d 180, 188 (4th Cir. 2007) (finding ripeness where plaintiff had to alter “accounting procedures and healthcare spending now” in planning to comply with new act) (emphasis in original).
While Defendants repeatedly deride Plaintiffs’ claims as speculative, they assert that Plaintiffs should rely on the prom ise of future rulem aking they concede is “too speculative for review.” Def. Mem. at 31. After all, the Federa l Government admits that the ANPRM is m eant only to “offer id eas and solicit inpu t.” Def. Mem. at 2, 31. The ANPRM ostensibly prom ises future rulemaking but this mere promise does not affect the finality of the current Final Rule and
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its current applicability to Plaintiffs. 77 Fed. Reg. 8725, 8728; See Columbia Broadcasting System, 316 U.S. at 420 (“The regulations’ applicabil ity to all who are within their term s does not depend upon future adm inistrative action.”). Similar to the agency order in Minnesota Pub. Utils. Comm’n v. FCC , 483 F.3d 570, 582-83 (8th Cir. 2007), the speculative pr omises in the ANPRM to possibly take some future action do “not purport to actually do so and u ntil that day comes it is only a m ere prediction.” See also U.S. Telecom Ass'n v. FCC , 359 F.3d 554, 594 (D.C. Cir. 2004) (holding a general prediction set forth in order does not constitute final agency action).
Further, Defendants’ contention that the “promises and ideas” solicited by the ANPRM “will likely moot” Plaintiffs’ challenge to the Final Rule, is not supported in the authorities cited by Defendants. Def. Mem . at 31. In Vorbeck v. Schnicker , 660 F.2d 1260 (8th Cir. 1981), plaintiffs’ claims were dism issed on ripeness grounds w here the plaintiffs were unable to “articulate any protected activities from which they had been deterred under the regulations” or specify “the kinds of activity that they desire to engage in.” Id. at 1264-65. In contrast with the Vorbeck plaintiffs, Plaintiffs Cathol ic Social Services, Pius X Catholic High School, Catholic Mutual, Sister Mary Catherine and Stacy Molai ha ve specifically articulated such activities. Compl. at ¶¶ 92-94, 96-104, 106- 107, 109-117. Despite Def endants’ contention to the contrary, the mere promise to take future action has no impact on the finality of the current Final Rule.
In addition, Defendants advance Lake Pilots Ass'n v. United States Coast Guard, 257 F. Supp. 2d 148 (D.D.C. 2003) to support their position that a challenged rule is “not ripe where the agency undertook a new rulem aking to address [the ] issue raised.” Def. Mem . at 30. However, Defendants fail to point out that the court in Lake Pilots Ass’n dismissed the claim because the Coast Guard had “admitted its error” and is sued a “tem porary final rule” that withdrew th e
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challenged rule for the tim e period at issue. Id. at 154, 161. Here, sadly, perhaps inexplicably,

but tellingly, Defendants have taken no such action. See, e.g., Texas v. United Sta tes, 523 U.S.

296, 300, 118 S.Ct. 1257 (1998) (denying review wh ere plaintiff has “ not pointed to any

particular” application of the law that wa s “currently foreseen or ev en likely.”); Pub. Serv.

Comm’n of Utah v. Wycoff Co., Inc., 344 U.S. 237, 244, 73 S.Ct. 236 (1952) (dism issing claims

where plaintiff did not seek a judgment or specific order but merely a declaration that its conduct

constituted interstate commerce); Wyoming Outdoor Council v. United States Forest Serv., 165

F.3d 43, 46 (D.C. Cir. 1999) (dism issing claim on ripeness grounds where action was brought

before leases subject to the regulation had even been issued); Missouri ex rel. Missouri Highway

& Transp. Comm'n v. Cuffley, 112 F.3d 1332 (8th Cir. 1997) (dism issing the claim as premature

where certain “what-ifs” had to o ccur before plaintiff would suffer any inj ury); Toca Producers

v. FERC, 411 F.3d 262, 266 (D.C. Cir. 2005) (dis missing claims where “in the peculiar

circumstances of this case” the agen cy action was “not sufficiently final” because both parties

agreed the dispute was the subject of an ongoing agency proceeding) (emphasis added).

Defendants would have the Court believe that this is a case like

Texas Independent

Producers v. U.S. Environmental Protection Agency , 413 F.3d 479, 484 (5th Cir. 2005), which

involved future actions regarding matters as to which the plaintiffs there were “unable to plan far

in advance,” and where the partial regulatio ns provided “no sense of what oil and gas

construction activities would fall under EPA’ s permitting requirements.” Here, however,

Defendants frankly acknowledge th e sweep of the Final R ules as “against certain non-profit

organizations with religious objections to covering contraception – like the o rganization

plaintiffs and the em ployers of the individual pl aintiffs,” Def. Mem. at 29, and any im plication

by these Defendants that em ployer-based insurance does not require prior planning (with or

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without mandates) seems passing strange for them. By the same token, Defendants invoke Ohio Forestry Ass’n v. S ierra Club, 523 U.S. 726, 733, 734 (1998) – a cas e in which the Sierra Club was not able to identify how the generalized “p lan” it ch allenged inflicted any “ significant practical harm” on its interes ts, or point “to any other way in which the Plan could now force it to modify its behavior in order to avoid future adverse consequences ….” In that context, the Court noted that: “the provision s of the Plan that the Sierra Club challenges do not create adverse effects of a strictly lega l kind, that is, effects of a sort that traditionally would have qualified as harm.” Id. at 733. Here, by contrast, the injuri es alleged qualify as harm under any standard (to the point w here Defendants concede th at “plaintiffs’ complaint raises largely lega l claims,” Def.Mem. at 30, and express the intent to adopt undefined remedial measures). And the harms alleged by the individua l and institutional Plaintiffs here are of a sort to which ripene ss analysis is especially sensitive. See, e.g., Kansas Judicial R eview v. Stout, 519 F.3d 1107, 1116 (10th Cir. 2008) (“ripeness analysis is ‘relaxed somewhat’ in the context of a First Am endment facial challenge”); Greyson Currence v. City of Cincinnati , 28 Fed. A ppx. 438, 441 (6th C ir. 2002) (“Ripeness analysis is relaxed for First Amendment cases involving a facial challenge to a regulation because courts see a need to prevent the chilling of expressive activity”).
In sum, Plaintiffs seek review of a Final Rule. Any delay will result in imminent hardship for Plaintiffs. Accordingly, the Final Rule is ripe for judicial resolution.
IV. PLAINTIFFS HAVE MADE S UFFICIENT FACTUAL ALLEGATIONS TO SHOW THEY WILL BE INJURED BY TH E OPERATION OF THE FINAL RULE.
Plaintiffs have alleged sufficient facts to show they will be injured by the operation of the Final Rule. The allega tions set forth in Plaintiffs’ Complaint are neither “naked assertions” nor “devoid of further factual enhanc ement.” Def. Mem . at 13. Consis tent with the principles of
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notice pleading, Plaintiffs’ factual allegations ar e more than sufficient to overcom e Defendants’ Motion to Dismiss.
In considering a m otion to dismiss under Rule 12(b)(6), the court as sumes that all facts alleged in the complaint are true, construes the complaint liberally in the light most favorable to the plaintiff, and grants dism issal only if “it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle the plaintiff to relief.” Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 191, 104 S. Ct. 3012 (1984).
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a “short and plain statement of the claim showing that the plead er is entitled to relief.” Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir. 2010). The U.S. Supreme Court’s Twombly and Iqbal decisions clarified the “short and plain statement of the claim” that a plaintiff must set forth in a complaint, but it did not abrogate the notice pleading standard of Rule 8(a)(2). Id.; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007) (regarding pleadi ng standards for antit rust parallel conduct violations) ; Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) (arising from pleadings in Bivens action). Rule 8(a)(2) is satisfied “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that th e defendant is liable for the m isconduct alleged.” Id., quoting Iqbal, 556 U.S. at 663; Twombly, 550 U.S. at 556. However, “to survive a m otion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Id. Determining whether a claim is plausible is a “contex tspecific task that requires the reviewing court to draw on its judicial ex perience and common sense.” Hamilton, 621 F.3d at 818, quoting Iqbal, 556 U.S. at 679.
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In the context of th e instant cas e and pursuan t to even the m inimum application of common sense, Plaintiffs have satisfied this he ightened pleading standard. The legal conclusion that individual and organization Pl aintiffs advance is that the operation of the Final Rule will force them to subsidize activity in contravention with their religious beliefs. Compl. at ¶¶ 18-21, 25-26, 31-33, 39-43, 48-50, 56-60. Th e facts of the promulgation and existence of the Final Rule, the purpose and principles of the individua l and organization P laintiffs, and the nature of their beliefs all are explicitly a lleged. Again, Defendants themselves purport to understand the conflict between the Final Rule and those beliefs full well, and say they will plan a t some future point “to accommodate the c oncerns expressed by Plainti ffs” and by other “non-profit organizations with religious objections to covering contraception – like the o rganization plaintiffs and the em ployers of the individual plai ntiffs.” Def. Me m. at 29. Thus not only are the requisite facts alleged, they are to that extent conceded by the Defendants.
The principles of notice pleading require no further detail be set forth in the Complaint on this point. The alleg ation that sev eral of the individual and organi zation Plaintiffs are not grandfathered and, thus, subject to the Final Rule’s requirem ents upon its taken effect, m ust be accepted as true by the Court. Hamilton, supra, 621 F.3d at 817, quoting Iqbal, 556 U.S. at 663; Twombly, 550 U.S. at 556. Plaintiffs’ allegations are more than sufficient to perm it the Court to draw the reasonable inference that Defenda nts are liable for the m isconduct alleged. Id. Plaintiffs’ Complaint sets forth a claim for relief which is plausible on its face, consistent with the Twombly-Iqbal pleading standard. Accordingly, Defendant s’ contentions that P laintiffs have failed to allege sufficient factual material to support Plaintiffs’ legal conclusions is without merit.
Likewise, Plaintiff States have alleged sufficient facts to entitle them to relief. As a result of the Final Rule’s compulsory violation of Plainti ff individuals’ religious beliefs, Plaintiff
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individuals will drop th eir private health insurance coverag e. Compl. at ¶¶ 20, 30, 76. The only health insurance coverage options for Plaintiff individuals will be to enroll in Med icaid or enroll in state-based health insurance exchanges. Comp l. at ¶ 76. “[T]he deci sion by the uninsured to forego insurance results in a cost-sh ifting scenario.” Florida ex rel. Atty. Gen. v. U.S. Dept. of Health and Human Services, 648 F.3d 1235, 1244 (11th Cir. 2011).
When religious organization em ployers cease pr ovision of health insurance in P laintiff States in order to avoid the requirements of the Final Rule, an immediate and substantial spike in the number of enrollments in Plaintiff States’ Medicaid programs will result, as many affected employees will invariably shift to Medicaid to remain in compliance with the ACA’s individual coverage mandate. Compl. at ¶ 85. In addition, religious organi zation employers operating in Plaintiffs States will cease provid ing charitable services to persons who do not share their religious tenets, in an ef fort to qualify unde r the Religious E mployer Exemption. Those people no longer s erved by su ch charitable services w ill place further p ressure on Plaintiff States’ Medicaid programs as they inev itably increase reliance on public resources for support. Com pl. at ¶ 87. Courts have recognized states’ economic interests as adequate to support a claim . See Dixon v. Heckler , 589 F .Supp. 1512 (D.C.N.Y. 1984); Avery v. Heckler , 584 F.Supp. 312 (D. Mass. 1984) (holding that Massachusetts could intervene to challenge regulations where the state possesses a proprietary interest in minimizing the number of beneficiaries on its welfare rolls).
Section 1311 of the ACA requires that “each St ate shall, not later than January 1, 2 014, establish an American Health Ben efit Exchange (“Exchange”) that faci litates the purchase of qualified health plans . . .” 42 U.S.C. 18031. Cons equently, many Plaintiff States are currently contemplating and researching state-based heal th care ex changes based on current projections. Any addition to these projections will harm Plaintiff States’ economic interest.
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At the sam e time, Plaintiff States’ Medica id programs are facing the acute strain of dramatically increased enrollments due to the ACA’s individual coverage m andate. Compl. at ¶ 86. The ACA envisions expanding Medicaid spendi ng substantially. Increases in Medicaid enrollment resulting from the Final Rule would drive spending higher even than that resulting from the ACA’s other requirem ents. Quite simply, any increase in the num ber of citizens who are no longer insured by their employer, as a result of the Fi nal Rule, will harm Plaintiff States’ economic interest. Accordingly, State Plaintiffs have stated a claim upon which relief m ay be granted by this Court.
CONCLUSION For the foregoing reasons, this Court should reject Defendants’ Motion to Dismiss. Defendants’ promises of unspecified future remedial action to address the wrongs done by their rulemaking cannot shield them from answering the constitutional and statutory challenges to the Final Rule that they themselves promulgated and that – to this day – remains the unaltered, if indefensible, Final Rule at issue.
Dated: May 24, 2012
Respectfully submitted, STATE OF NEBRASKA, JON BRUNING ATTORNEY GENERAL OF NEBRASKA ALAN WILSON, ATTORNEY GENERAL OF SOUTH CAROLINA BILL SCHUETTE ATTORNEY GENERAL OF MICHIGAN GREG ABBOTT ATTORNEY GENERAL OF TEXAS
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PAMELA JO BONDI ATTORNEY GENERAL OF FLORIDA

MICHAEL DeWINE ATTORNEY GENERAL OF OHIO

SCOTT PRUITT, ATTORNEY GENERAL OF OKLAHOMA

SISTER MARY CATHERINE, CK,

STACY MOLAI,

CATHOLIC SOCIAL SERVICES,

PIUS X CATHOLIC HIGH SCHOOL, and

THE CATHOLIC MUTUAL RELIEF SOCIETY OF AMERICA,

Plaintiffs.

BY:

JON BRUNING, #20351

Attorney General

BY: s/ Katherine J. Spohn _______ David D. Cookson, #18681 Chief Deputy Attorney General Katherine J. Spohn, #22979 Special Counsel to the Attorney General 2115 State Capitol Lincoln, NE 68509-8920 Phone (402) 471-2682 david.cookson@nebraska.gov katie.spohn@nebraska.gov
BY: s/ Rocky C. Weber Rocky C. Weber, #18190 Crosby Guenzel LLP 134 S. 13th Street, Suite 400 Lincoln, Nebraska 68508 Phone (402) 434-7300 rcw@crosbylawfirm.com

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Attorney

BY: Donald G. Blankenau Don Blankenau, #18528 Blankenau Wilmoth, LLP 206 South 13th Street, Suite 1425 Lincoln, NE 68508 Phone (402) 475-7080 don@aqualawyers.com
s for Plaintiffs.

CERTIFICATE OF SERVICE
I hereby certify that on May 24th, 2012, I electronically filed the foregoing document with the Clerk of the U.S. District Court for the District of Nebraska using the CM/ECF system, causing notice of such filing to be served on Plaintiffs’ counsel of record.
By: s/ Katherine J. Spohn _______ Katherine J. Spohn, #22979 Special Counsel to the Attorney General

29

 
 4:12-cv-03035-WKU-CRZ Doc # 38 Filed: 07/17/12 Page 1 of 45 - Page ID # 204

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

STATE OF NEBRASKA, by and through, )

Jon C. Bruning, Atttorney General of the )

State of Nebraska, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES,

)

KATHLEEN SEBELIUS, in her official )

capacity as the Secretary of the United

)

States Department of Health and Human )

Services, et al.,

)

)

Defendants.

)

4:12CV3035
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION
TO DISMISS

On February 23, 2012, the plaintiffs State of Nebraska, by and through Jon Bruning, Attorney General of the State of Nebraska (Nebraska); State of South Carolina, by and through Alan Wilson, Attorney General of the State of South Carolina (South Carolina); Bill Schuette, Attorney General of the State of Michigan, on behalf of the People of Michigan (Schuette); State of Texas, by and through Greg Abbott, Attorney General of the State of Texas (Texas); State of Florida, by and through Pam Bondi, Attorney General of the State of Florida (Florida); State of Ohio, by and through Michael DeWine, Attorney General of the State of Ohio (Ohio); State of Oklahoma, by and through Scott Pruitt, Attorney General of the State of Oklahoma (Oklahoma); Sister Mary Catherine, CK (Sister Mary Catherine); Stacy Molai (Molai); Catholic Social Services; Pius X Catholic High School (Pius X); and the Catholic Mutual Relief Society of America (Catholic Mutual) filed a fivecount complaint against the defendants United States Department of Health and Human Services

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(HHS); Kathleen Sebelius (Sebelius), in her official capacity as the Secretary of HHS; United Sates Department of the Treasury (Treasury); Timothy F. Geithner (Geithner), in his official capacity as the Secretary of the Treasury; United States Department of Labor (DOL); and Hilda L. Solis (Solis), in her official capacity as Secretary of the DOL. (See Compl., ECF No. 1.) Now before me is the defendants’ motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (See Defs.’ Mot. to Dismiss, ECF No. 30). For the following reasons, the defendants’ motion will be granted.
I. BACKGROUND A. The Parties
The plaintiffs Nebraska, South Carolina, Texas, Florida, Ohio, and Oklahoma are sovereign states in the United States of America. (See Compl. ¶¶ 9-10, 12-15, ECF No. 1.) The plaintiff Schuette appears in this action for the people of Michigan. (See id. ¶ 11.) Collectively, these seven plaintiffs will be referred to as “the State plaintiffs.”
The plaintiff Sister Mary Catherine is a Catholic nun affiliated with the School Sisters of Christ the King, which is a Catholic Order located in Lincoln, Nebraska. (Compl. ¶ 16, ECF No. 1.) The plaintiff Molai is a Catholic individual residing in Omaha, Nebraska, and a missionary employed by the Fellowship of Catholic University Students (FOCUS), which is “a Catholic organization engaged in ministry and outreach on college campuses throughout the United States and around the world.” (Id. ¶¶ 22-23.) Collectively, these two plaintiffs will be referred to as “the individual plaintiffs.”
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The plaintiff Catholic Social Services is “a Nebraska non-profit corporation,” “a faith-based charity services provider,” and “a Catholic religious organization employer.” (Compl. ¶ 34, ECF No. 1.) It “is an affiliated entity of the Catholic Diocese of Lincoln, Nebraska[,] providing social charity to persons in southern Nebraska.” (Id. ¶ 35.) The plaintiff Pius X “is a Nebraska non-profit corporation and is the sole Catholic high school for the City of Lincoln and the Diocese of Lincoln, Nebraska.” (Id. ¶ 44.) The plaintiff Catholic Mutual “is a non-profit religious 501(c)(3) organization with its princip[al] place of business located in Omaha, Nebraska.” (Id. ¶ 51.) Collectively, these three plaintiffs will be referred to as “the organizational plaintiffs.”
The defendants HHS, Treasury, and DOL (collectively, “the Departments”) are agencies of the United States, and as noted previously, the defendants Sebelius, Geithner, and Solis are sued in their official capacities as the secretaries of those agencies. (Compl. ¶¶ 63-68, ECF No. 1.)
B. The Relevant Statutes and Regulations The plaintiffs allege that certain “final rules” that were adopted by the defendants in order to implement the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111152, 124 Stat. 1029 (2010) (collectively, the Affordable Care Act or ACA), will “coerce” religious individuals, “organizations, institutions, care providers, outreach groups, and social service agencies, among others, to directly subsidize contraception, abortifacients, sterilization, and related services in contravention [of] their religious beliefs.” (Compl. ¶ 1, ECF No. 1; see also id. ¶ 69.) They add that “Plaintiff States’ budgetary stability” will be threatened if “religious organization employers
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were to cease [to provide] health insurance in order to avoid the requirements of the Rule.” (Id. ¶¶ 85-86.) A review of the relevant statutes, regulations, and rules is in order.
Section 1001 of the ACA added section 2713 to the Public Health Service Act (PHS Act). See 42 U.S.C. § 300gg-13. In pertinent part, PHS Act section 2713, which is titled “coverage of preventive health services,” states,
(a) In general A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for--
(1) evidence-based items or services that have in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force; [and] . . . . (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph. 42 U.S.C. § 300gg-13(a)(1), (4). On July 19, 2010, the Departments issued interim final regulations implementing section 2713. See Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41726 (July 19, 2010). The interim final regulations state that when new recommendations or guidelines for preventive health services are issued, coverage for those services “must be provided for plan years (in the individual market, policy years) beginning . . . one year after the date the recommendation or guideline is issued.” 75 Fed. Reg. 41726, 41729. They also state, “The requirements to cover recommended preventive services without any cost-sharing requirements do
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not apply to grandfathered health plans.” Id. (citing 26 C.F.R. § 54.9815-1251T; 29 C.F.R.
2590.715-1251; 45 C.F.R. § 147.140). Grandfathered health plans are defined as plans “in which
an individual was enrolled on March 23, 2010,” and which are able to comply with certain
regulations. See 26 C.F.R. § 54.9815-1251T; 29 C.F.R. 2590.715-1251; 45 C.F.R. § 147.140.
On August 1, 2011, the Health Resources and Services Administration (HRSA) adopted
recommendations for preventive services for women that include certain services related to
contraception. (See Defs.’ Br. at 7, ECF No. 31 (citing HRSA Guidelines, available at
http://www.hrsa.gov/womensguidelines/).) The Departments then published amendments to the
interim final regulations that took effect on that same date (i.e., August 1, 2011). See Group Health
Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient
Protection and Affordable Care Act, 76 Fed. Reg. 46621 (Aug. 3, 2011). The amendments to the
interim final regulations note,
[The interim final regulations state that], to the extent not described in the U.S. Preventive Services Task Force recommendations, HRSA was charged with developing comprehensive guidelines for preventive care and screenings with respect to women . . . . The interim final regulations also require that changes in the required items and services be implemented no later than plan years (in the individual market, policy years) beginning on or after the date that is one year from when the new recommendation or guideline is issued.
In response to the request for comments on the interim final regulations, the Departments received considerable feedback regarding which preventive services for women should be considered for coverage under PHS Act section 2713(a)(4). Most commenters, including some religious organizations, recommended that HRSA Guidelines include contraceptive services for all women and that this requirement be binding on all group health plans and health insurance issuers with no religious exemption. However, several commenters asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom. One commenter noted that some religious employers do not currently cover such benefits under their group health plan due to their religious beliefs.
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. . . These HRSA Guidelines exist solely to bind non-grandfathered group health plans and health insurance issuers with respect to the extent of their coverage of certain preventive services for women. In the Departments’ view, it is appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate. Specifically, the Departments seek to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions. . . .
In light of the above, the Departments are amending the interim final rules to provide HRSA additional discretion to exempt certain religious employers from the Guidelines where contraceptive services are concerned. The amendment to the interim final rules provides HRSA with the discretion to establish this exemption. Consistent with most States that have such exemptions, as described below, the amended regulations specify that, for purposes of this policy, a religious employer is one that: (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code. Section 6033(a)(3)(A)(i) and (iii) refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order. . . .
76 Fed. Reg. 46621, 46623. See also 45 C.F.R. § 147.130(a)(1)(iv). (See also Compl. ¶ 78, ECF
No. 1 (describing the scope of the religious employer exemption).) In short, the amended interim
final regulations require non-grandfathered plans that do not fall within the exemption for “religious
employers”1 to provide coverage for the contraceptive services recommended by HRSA “for plan
years (in the individual market, policy years) beginning on or after the date that is one year from
1 I note in passing that although the amended interim final regulations state merely that they grant HRSA discretion to exempt “religious employers” from the guidelines regarding contraceptive services, later rules indicate that HRSA did, in fact, exercise this discretion in the guidelines published on August 1, 2011. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012) (“In the HRSA Guidelines, HRSA exercised its discretion under the amended interim final regulations such that group health plans established and maintained by these religious employers (and any group health insurance coverage provided in connection with such plans) are not required to cover contraceptive services.”).
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when the new [contraceptive services] recommendation or guideline [was] issued,” i.e., August 1,
2012.
On February 15, 2012, the Departments published rules that “finalize[d], without change,”
the amended interim final regulations discussed above. Group Health Plans and Health Insurance
Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable
Care Act, 77 Fed. Reg. 8725 (Feb. 15, 2012). In their complaint, the plaintiffs refer to these rules as “the Rule” (e.g., Compl. ¶ 69, ECF No. 1); I shall do so as well.2 The Rule states,
Section 2713 of the PHS Act, as added by the Affordable Care Act[,] . . . requires that non-grandfathered group health plans and health insurance issuers offering group or individual health insurance coverage provide benefits for certain preventive health services without the imposition of cost sharing. These preventive health services include, with respect to women, preventive care and screening provided for in the comprehensive guidelines supported by [HRSA] that were issued on August 1, 2011 (HRSA Guidelines). As relevant here, the HRSA Guidelines require coverage, without cost sharing, for “[a]ll Food and Drug Administration . . . approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a provider. Except as discussed below, non-grandfathered group health plans and health insurance issuers are required to provide coverage consistent with the HRSA Guidelines, without cost sharing, in plan years (or, in the individual market, policy years) beginning on or after August 1, 2012. . . .
77 Fed. Reg. 8725, 8725-8726 (footnotes omitted). After reviewing the definition of “religious
employer” quoted above, see, e.g., 76 Fed. Reg. 46621, 46623, and noting that the HRSA exercised
its discretion to exempt “religious employers” from the contraceptive services coverage requirement,
(see note 1, supra), the Rule summarizes comments that the Departments received about the
amended interim final regulations, see 77 Fed. Reg. 8725, 8726-8727. The Rule continues,
2 In their brief in response to the defendants’ motion to dismiss, the plaintiffs refer to the Rule as “the Final Rule.” (Pls.’ Response Br. at 1, ECF No. 33.)
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In response to these comments, the Departments carefully considered whether to eliminate the religious employer exception or to adopt an alternative definition of religious employer, including whether the exemption should be extended to a broader set of religiously-affiliated sponsors of group health plans and group health insurance coverage. For the reasons discussed below, the Departments are adopting the definition in the amended interim final regulations for purposes of these final regulations while also creating a temporary enforcement safe harbor, discussed below. During the temporary enforcement safe harbor, the Departments plan to develop and propose changes to these final regulations that would meet two goals–providing contraceptive coverage without cost-sharing to individuals who want it and accommodating non-exempted, non-profit organizations’ religious objections to covering contraceptive services . . . . 77 Fed. Reg. 8725, 8727. When the Rule was posted, HSS issued a bulletin that established the aforementioned “temporary enforcement safe harbor.” See Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16501, 16502 (Mar. 21, 2012) (citing HHS, 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 (Feb. 10, 2012) (hereafter “the Bulletin”) available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210Preventive-Services-Bulletin.pdf). (See also Compl. ¶ 71, ECF No. 1.) “The bulletin confirmed that all three Departments will not take any enforcement action against an employer, group health plan, or health insurance issuer that complies with the conditions of the temporary enforcement safe harbor described in the bulletin.” 77 Fed. Reg. 16501, 16503. Generally, the temporary enforcement safe harbor applies to “group health plans sponsored by non-profit organizations that, on and after February 10, 2012, do not provide some or all of the contraceptive coverage otherwise required,
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consistent with any applicable State law, because of the religious beliefs of the organization (and any
group health insurance coverage provided in connection with such plans).” 77 Fed. Reg. 16501,
16502-16503.3 Also, the temporary enforcement safe harbor “is in effect until the first plan year that
begins on or after August 1, 2013.” 77 Fed. Reg.16501, 16503.
The Rule also states,
Before the end of the temporary enforcement safe harbor, the Departments will 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. Specifically, the Departments plan to initiate a rulemaking to require issuers to offer insurance without contraception coverage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer's plan participants (and their beneficiaries) who desire it, with no cost-sharing. . . . The Departments intend to
3 More specifically, the bulletin extends the safe harbor to “employers,” “group health plans,” and “group health insurance issuers” that “fail[] to cover recommended contraceptive services without cost sharing in non-exempted, non-grandfathered group health plans established or maintained by an organization” and that meet all of the following criteria:
1. The organization is organized and operates as a non-profit entity.
2. From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization.
3. As detailed below, the group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) must provide to participants the attached notice, as described below, which states that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, 2012.
4. The organization self-certifies that it satisfies criteria 1-3 above, and documents its self-certification in accordance with the procedures detailed herein.
Bulletin at 3 (footnote omitted).
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develop policies to achieve the same goals for self-insured group health plans sponsored by non-exempted, non-profit religious organizations with religious objections to contraceptive coverage. 77 Fed. Reg. 8725, 8728. On March 21, 2012, the Departments published an “advance notice of proposed rulemaking” (ANPRM). 77 Fed. Reg. 16501. The ANPRM announces the intention of the Departments to propose amendments that “would establish alternative ways to fulfill the requirements of section 2713 of the Public Health Service Act and companion provisions . . . when health coverage is sponsored or arranged by a religious organization that objects to the coverage of contraceptive services for religious reasons and that is not exempt under the final regulations published February 15, 2012 [(i.e., the Rule)].” 77 Fed. Reg. 16501. The ANPRM notes that one of the Departments’ goals is “to protect . . . religious organizations from having to contract, arrange, or pay for contraceptive coverage,” while also maintaining contraceptive coverage without cost sharing for individuals who receive coverage through those organizations. 77 Fed. Reg. 16501, 16503. It then suggests “multiple options” for achieving these goals, and it states that “[t]he Departments seek input on these options . . . as well as new ideas to inform the next stage of the rulemaking process.” Id. See also 77 Fed. Reg. 16501, 16504-16508. In short, the ANPRM is “the first step toward promulgating . . . amended final regulations” prior to the end of the temporary enforcement safe harbor that will “accommodat[e] non-exempt, non-profit religious organizations’ religious objections to covering contraceptive services and assur[e] that participants and beneficiaries covered under such organizations’ plans receive contraceptive coverage without cost sharing.” 77 Fed. Reg. 16501, 16503. It provides “an early opportunity for any interested stakeholder to provide advice and input into the policy development relating to the accommodation to be made” to organizations with
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religious objections to contraceptive coverage. Id. Also, the ANPRM states, “Following the receipt of public comment, a notice of proposed rulemaking (NPRM) will be published, which will permit additional public comment, followed by amended final regulations.” Id.
C. The Plaintiffs’ Allegations As noted above, the plaintiffs allege generally that the Rule “would coerce religious organizations, institutions, care providers, outreach groups, and social services agencies, among others, to directly subsidize contraception, abortifacients, sterilization, and related services in contravention [of] their religious beliefs.” (Compl. ¶ 1, ECF No. 1.) They add that “[t]he Rule was definitively and formally promulgated by publication in the Federal Register as a ‘Final Rule,’” and “there is no hint that the Rule is informal, tentative, . . . [or] only the ruling of a subordinate official, or that full compliance with the Rule is not expected.” (Id. ¶ 70 (citation omitted).) Furthermore, they allege that they are each at risk for irreparable injury, “[n]otwithstanding [their] ability or inability to qualify for” the temporary enforcement safe harbor, because “[n]o discernable statutory or regulatory obstacle exists barring the Federal Government from unilaterally withdrawing its promise of” the safe harbor, and because the “[p]laintiffs will absolutely be required to comply upon the expiration of the safe harbor on August 1, 2013.” (Id. ¶\¶ 73-74 (emphasis omitted).) The specific injuries allegedly faced by each of the plaintiffs merit further discussion. First, the plaintiffs allege that Sister Mary Catherine is covered by a health insurance plan “through the Catholic Diocese of Lincoln, Nebraska,” that “has been specifically contracted for to exclude coverage for purposes of contraception, abortifacients, sterilization, and related services”; that her health insurance plan “is not grandfathered from ACA requirements”; that “[h]ealth [i]nsurance coverage of . . . contraception, abortifacients, or sterilization [contravenes her] religious beliefs”; and
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that she “will drop her private health insurance coverage if retaining such coverage would result in the subsidization of contraception, abortifacients, sterilization, and related services.” (Compl. ¶¶ 1721, ECF No. 1. See also id. ¶¶ 75-76 (alleging, inter alia, that Sister Mary Catherine “will be forced to pay civil penalties and forego health insurance altogether”).)
Similarly, the plaintiffs allege that Molai is “covered by a health insurance plan” that “has been specifically contracted for to exclude coverage for purposes of contraception, abortifacients, sterilization, and related services”–all of which contravene Molai’s religious beliefs–and that Molai will “drop [health] coverage if it would result in her subsidization” of those services. (Id. ¶¶ 24-26, 30, 75.) In addition, the plaintiffs allege that “Molai suffers from an incurable chronic illness which requires substantial ongoing care” and “occasionally necessitates hospitalization and surgery,” and therefore “[h]ealth insurance coverage is critical to Molai in order to avoid financial ruin and possibly life threatening consequences.” (Id. ¶¶ 27-30.) Unlike Sister Mary Catherine’s plan, “Molai’s current health insurance plan is grandfathered from ACA requirements.” (Id. ¶ 31 (emphasis omitted).) The plaintiffs allege, however, that “[u]pon [such] time Molai or her employer . . . substantially changes any aspect of Molai’s health insurance plan, Molai’s plan will immediately become subject to ACA requirements and the contraceptive coverage Rule promulgated pursuant thereto.” (Id. ¶ 32. See also id. ¶ 33 (“Since the ACA’s grandfathering exemption does not apply to health insurance plans which substantially change after March 23, 2010, Molai is trapped in her current plan if she wishes to remain grandfathered from ACA requirements.”); id. ¶¶ 88-89.)
The plaintiffs allege that Catholic Social Services “has more than 50 persons on staff,” and its “purpose is to serve persons of all religious and ethnic backgrounds.” (Compl. ¶¶ 36-37, ECF No. 1.) “Though Catholic Social Services exists and conducts its ministry pursuant to a religiously-
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rooted sense of purpose, mission, and duty, its primary operational purpose is not the inculcation of religious values.” (Id. ¶ 38.) “Catholic Social Services is covered by a health insurance plan” that “has been specifically contracted for to exclude coverage for purposes of contraception, abortifacients, sterilization, and related services,” all of which contravene “Catholic teaching and doctrine adhered to . . . by Catholic Social Services.” (Id. ¶¶ 39-41.) The plaintiffs allege that “Catholic Social Services’ current health insurance plan is not grandfathered from ACA requirements,” and that Catholic Social Services will drop its plan if retaining it “would result in the subsidization of” the aforementioned services. (Id. ¶¶ 42-43 (emphasis omitted).)
Pius X, which “employs more than 70 faculty and staff,” “is dedicated to [providing] a Christ-centered education that integrates Catholic values in all areas of life and [to] providing academic preparation of the highest quality in a disciplined environment.” (Compl. ¶¶ 45-46, ECF No. 1.) The plaintiffs allege that Pius X, like Catholic Social Services, “is covered by” a nongrandfathered health insurance plan that excludes coverage for contraception, abortifacients, sterilization, and related services, all of which contravene “Catholic teaching and doctrine adhered to . . . by Pius X.” (Id. ¶¶ 47-50.)
“Catholic Mutual provides health coverage to its employees through a group health plan” that “is currently grandfathered from ACA’s requirements.” (Compl. ¶¶ 52, 59, ECF No. 1.) The plaintiffs allege, however, that “Catholic Mutual comprehensively evaluates its employee health plan on an annual basis,” and “[i]f Catholic Mutual substantially changes certain aspects of its employee health insurance plan, [it] will immediately become subject to ACA requirements and the contraceptive coverage Rule.” (Id. ¶¶ 61-62. See also id. ¶ 60 (alleging that “Catholic Mutual is trapped in its current plan if it wishes to remain grandfathered from ACA requirements”).) Catholic
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Mutual “does not primarily employ persons who share [its] religious tenets,” and it “does not inquire as to the religious affiliation or beliefs of prospective employees.” (Id. ¶¶ 53-54.) Furthermore, “[a]lthough Catholic Mutual exists and conducts its operations pursuant to a religious-rooted sense of purpose, mission, and duty,” the plaintiffs allege that “Catholic Mutual’s primary operational purpose is not the inculcation of religious values.” (Id. ¶ 55.) “Coverage of services for purposes of contraception, abortifacients, or sterilization” contravenes “Catholic teaching and doctrine adhered to . . . by Catholic Mutual”; thus, it “does not include coverage of [those] services . . . in its employees’ health insurance plans,” and its “employees are not offered supplemental insurance plans to cover [those services] . . . in connection with their primary employer-subsidized health care plans.” (Id. ¶¶ 56-58.)
The plaintiffs allege that the Rule encroaches “on the liberty of the religious organization employers . . . by mandating that [they] subsidize coverage for contraceptives, sterilization, and related patient education and counseling.” (Compl. ¶ 77, ECF No. 1.) They add that in the event that the organizational plaintiffs’ health insurance plans “are no longer grandfathered plans,” there are “two ways in which [they] can circumvent the Rule’s requirements: declining to provide health insurance altogether and fac[ing] a stiff per-employee penalty[,] or satisfying all of the criteria to qualify for a ‘religious employer’ exemption.” (Id. ¶ 82.) The plaintiffs allege that the organizational plaintiffs “are not eligible for the . . . narrow religious employer exemption to the Rule, based on the Federal Government’s stated intent to exclude hospitals, schools, and universities and because [the p]laintiffs do not clearly satisfy all of the exemptions rigid conjunctive requirements.” (Id. ¶ 83.) They also claim that the Rule’s religious employer exemption will not cover the organizational plaintiffs unless “Catholic Social Services, Pius X Catholic High School,
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and Catholic Mutual . . . begin inquiring into the religious affiliation and beliefs of prospective employees–a practice in which Catholic Social Services and Catholic Mutual currently do not engage.” (Id. ¶ 79.) In addition, the plaintiffs allege that Pius X has “enjoyed the certainty of broad religious employer exemptions” in other contexts, but “[d]ue to the insufficiently narrow nature of the religious employer exemption to the Rule,” Pius X “face[s] great uncertainty in determining whether [it] will enjoy the same religious employer exemptions from government mandates as they have in the past.” (Id. ¶¶ 80-81.)
According to the complaint, the State plaintiffs will be injured by the Rule in the following ways. First, the plaintiffs allege that because the Rule offends the religious beliefs of “religious organization employers,” those employers “may simply cease [to provide] health insurance coverage to their employees . . . rather than subsidize conduct and services in violation of their beliefs.” (Compl. ¶ 84, ECF No. 1.) Then, “[i]f religious employers were to cease [to provide] health insurance in order to avoid the requirements of the Rule, an immediate and substantial spike in the number of enrollments in Plaintiff States’ Medicaid programs would result, as many impacted employees would invariably shift to Medicaid to remain in compliance with the ACA’s individual coverage mandate.” (Id. ¶ 85.) The plaintiffs add that the State plaintiffs’ “Medicaid programs are already facing the acute strain of dramatically increased enrollments due to the ACA’s individual coverage mandate,” and “[f]orcing another round of enrollments will compound this problem and further threaten Plaintiff States’ budgetary stability.” (Id. ¶ 86.) “In addition, religious organization employers operating in Plaintiff[] States will cease providing charitable services to persons who do not share their religious tenets, in an effort to qualify under the Religious Employer Exemption. Those people no longer served by such charitable services will place further pressure on Plaintiff
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States’ Medicaid programs as they inevitably increase reliance on public resources for support.” (Id. ¶ 87.)
In Count I of their complaint, the plaintiffs allege that the Rule violates the Free Speech Clause of the First Amendment to the United States Constitution because it compels them to “subsidize” beliefs and conduct that violate their moral and religious beliefs, and because it prohibits them “from expressing a message in accordance with their beliefs.” (Compl. ¶¶ 91-94, ECF No. 1.) In Count II, the plaintiffs allege that the Rule violates the First Amendment’s Free Exercise Clause “by negating the right of Plaintiffs to act in accordance with their beliefs.” (Id. ¶ 96.) They add that the Rule “imposes a substantial burden on Plaintiffs’ religious exercise,” “coerces Plaintiffs to change or violate their religious beliefs,” “chills Plaintiffs’ religious exercise,” “exposes Plaintiffs to substantial fines for [their] religious exercise,” and negates “the right of Plaintiffs to freely practice their religious beliefs without government interference.” (Id. ¶¶ 100-104. See also id. ¶¶ 95, 97-99 (alleging that “[t]he Rule furthers no compelling governmental interest” and “is not the least restrictive means of furthering Defendants’ stated interests”).) In Count III, the plaintiffs allege that the Rule violates the First Amendment’s Freedom of Association Clause because it “negat[es] the rights of Plaintiffs to organize voluntary religious associations by forcing Plaintiffs to associate with an ideology that violates their religious beliefs” and “negat[es] the rights of Plaintiffs to organize voluntary religious associations that serve persons of other beliefs.” (Id. ¶¶ 105-107.) In Count IV, the plaintiffs allege that “[t]he Rule works a substantial burden on the Plaintiffs’ ability to freely practice their religion” in violation of the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq. (Compl. ¶ 109, ECF No. 1. See also id. ¶¶ 108, 110-117 (alleging that the Rule “chills Plaintiffs’ religious exercise,” “exposes Plaintiffs to
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substantial fines for its [sic] religious exercise,” “furthers no compelling governmental interest and is not narrowly tailored to any compelling governmental interest,” “is not the least restrictive means of furthering Defendants’ stated interests,” “puts substantial pressure on religious adherents to modify religious beliefs and behavior in order to comply with the Rule’s mandates,” and “is a substantial burden on the rights of Plaintiffs to freely exercise religion because it forces them to subsidize contraceptives in violation of their religious beliefs”; that the Rule’s exception for religious employers “violates RFRA because [it] would require the government to troll through an organization’s religious beliefs to determine whether the organization is religious enough to be exempt from the Rule’s dictates,” and that “[t]he Rule’s compulsory funding of contraceptives is a substantial burden upon the Plaintiffs because it impermissibly interferes in matters of church faith and doctrine”).) In Count V, the plaintiffs allege that they are entitled to relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, because “[t]here is an actual controversy of sufficient immediacy and concreteness relating to the legal rights and duties of the Plaintiffs and their legal relations with the Defendants,” and “[t]he harm to the Plaintiffs as a direct result of the Rule is sufficiently real and imminent to warrant the issuance of a conclusive declaratory judgment clarifying the legal relations of the parties.” (Compl. ¶¶ 118-120, ECF No. 1.)
Based on all of the foregoing allegations, the plaintiffs seek a declaration that the Rule violates the First Amendment, RFRA, and “the Plaintiffs’ constitutional rights”; an order that 1) enjoins the defendants “and any other agency or employee acting on behalf of the United States from enforcing the Rule against the Plaintiffs, their citizens and residents, and any of their agencies or officials or employees” and 2) requires the defendants “to take such actions as are necessary and
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proper to remedy their violations”; and an award of reasonable attorney’s fees and costs. (See Compl. at 21-22, 23, ECF No. 1.)
II. STANDARD OF REVIEW A. Rule 12(b)(6)
“Federal Rule of Civil Procedure 8 requires that a complaint present ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). It is important to note, however, that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting
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Twombly, 550 U.S. at 557) (internal quotation marks omitted). In other words, “where the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not ‘shown’–‘that the pleader is entitled to relief.’” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)) (brackets omitted).
B. Rule 12(b)(1) and Standing A plaintiff's standing to sue “is the threshold question in every federal case” because it determines “the power of the court to entertain the suit.” McClain v. American Economy Ins. Co., 424 F.3d 728, 731 (8th Cir. 2005) (quoting Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000)). The concept of standing is rooted in Article III, § 2, of the United States Constitution, “which limits the subject matter jurisdiction of federal courts to actual cases and controversies.” Id. Thus, if standing is lacking, then this court has no subject matter jurisdiction. E.g., Gray v. City of Valley Park, Mo., 567 F.3d 976, 980 (8th Cir. 2009) (quoting Young America Corp. v. Affiliated Computer Services (ACS), Inc., 424 F.3d 840, 843 (8th Cir. 2005)). See also Faibisch v. University of Minnesota, 304 F.3d 797, 801 (8th Cir. 2002) (“[A] standing argument implicates Rule 12(b)(1).”).4 A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may challenge either the factual truthfulness or the facial sufficiency of the plaintiff's jurisdictional allegations. See, e.g., Stalley v. Catholic Health Initiatives, 509 F.3d 517, 520-21 (8th Cir. 2007) (citing Osborn v.
4 As will be discussed below, some elements of the doctrine of standing “are prudential, involving self imposed limits on judicial power” that “may be ‘modified or abrogated by Congress.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir. 2009) (quoting Bennett v. Spear, 520 U.S. 154, 162 (1997)). “The heart of standing, however, is the principle that in order to invoke the power of a federal court, a plaintiff must present a ‘case’ or controversy’ within the meaning of Article III of the Constitution.” Id.
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United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)). In a facial attack, the standard of review is the same standard that applies to motions brought pursuant to Federal Rule of Civil Procedure 12(b)(6), and which I have outlined above: I must “accept as true all factual allegations in the complaint, giving no effect to conclusory allegations of law,” and I must determine whether the plaintiff has asserted “facts that affirmatively and plausibly suggest that the pleader has the right he claims (here, the right to jurisdiction), rather than facts that are merely consistent with such a right.” Stalley, 509 F.3d at 521 (citing, inter alia, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)). In contrast, “[w]hen a district court engages in a factual review, it inquires into and resolves factual disputes.” Faibisch, 304 F.3d at 801. See also Titus v. Sullivan, 4 F.3d 590, 593 & n.1 (8th Cir. 1993). In this case, the defendants have made a facial attack upon the plaintiffs’ jurisdictional allegations, (see Defs.’ Br. at 11, ECF No. 31), and their motion to dismiss will be analyzed accordingly.
III. ANALYSIS The defendants argue that the complaint must be dismissed because the plaintiffs lack standing and their claims are not ripe. (See Defs.’s Br. at 11-33, ECF No. 31.) The defendants add that the State plaintiffs’ claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). (See id. at 33-35.) I shall analyze each of the defendants’ arguments in turn.
A. Whether the Organizational Plaintiffs Lack Standing The defendants argue first that the claims of the organizational plaintiffs (i.e., Catholic Social Services, Pius X, and Catholic Mutual) must be dismissed because those plaintiffs have not
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established that they have standing to sue. (Defs. Br. at 12-17, ECF No. 31.) I agree with the defendants.
“[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” McClain v. American Economy Ins. Co., 424 F.3d 728, 731 (8th Cir. 2005) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000)). “The purpose of the imminence requirement is ‘to ensure that the alleged injury is not too speculative . . . [and] that the injury is certainly impending.” United States v. Metropolitan St. Louis Sewer Dist., 569 F.3d 829, 834 (8th Cir. 2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992)). “The part[ies] invoking federal jurisdiction”–here, the plaintiffs–“bear[] the burden of establishing these elements.” Young America Corp., 424 F.3d at 843 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
The defendants claim that the organizational plaintiffs “fail[ed] to demonstrate a concrete and imminent injury resulting from the operation of the preventive service coverage regulations.” (Id. at 13.) In support of this argument, the defendants submit that the organizational plaintiffs “have not made sufficient factual allegations to show that the group health plans they offer to their employees are not eligible for grandfather status.” (Id.)5
5 As noted previously, the preventive health service coverage regulations–including the Rule–do not apply to grandfathered plans. See, e.g., 77 Fed. Reg. 8725; 75 Fed. Reg. 41726; 26 C.F.R. § 54.9815-1251T; 29 C.F.R. 2590.715-1251; 45 C.F.R. § 147.140. Thus, if a plan is grandfathered within the meaning of the regulations, it will not be required to provide coverage for contraceptive services.
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Pius X and Catholic Social Services allege that their group health plans are not grandfathered. (See Compl. ¶¶ 43, 50, ECF No. 1; Pls.’ Response Br. at 6-7, ECF No. 33.) Although the plaintiffs argue that this allegation “must be accepted as true,” (Pls.’ Response Br. at 25, ECF No. 33), a “naked assertion” that a plan does not satisfy the legal definition of “grandfathered health plans” is not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). As explained above, legal conclusions are not entitled to the benefit of “the tenet that a court must accept as true all of the allegations contained in a complaint.” Id. (quoting Twombly, 550 U.S. at 570). To meet their burden, the plaintiffs must plead facts showing that the Pius X and Catholic Social Services plans are not grandfathered. E.g., Metropolitan St. Louis Sewer Dist., 569 F.3d at 834 (“To demonstrate standing, a plaintiff must clearly allege facts showing an injury in fact . . . .”). By way of example, if a plaintiff were to allege that its plan has not “continuously covered someone since March 23, 2010,” that factual allegation would be entitled to deference, and it would render plausible the legal conclusion that the plan was not grandfathered. See 26 C.F.R. § 54.9815-1251T(a)(1)(i); 29 C.F.R. 2590.715-1251(a)(1)(i); 45 C.F.R. § 147.140(a)(1)(i). See also 26 C.F.R. § 54.9815-1251T(g)(1) (“Maintenance of grandfather status”); 29 C.F.R. 2590.715-1251(g)(1) (same); 45 C.F.R. § 147.140(g)(1) (same).6 Here, however, the plaintiffs have failed to plead specific facts showing that the Pius X and Catholic Social Services
6 As an alternate example, I note that the complaint alleges that Catholic Social Services does not limit “its provision of services to person[s] who share its religious tenets,” and “its primary operational purpose is not the inculcation of religious values.” (Compl. ¶¶ 37-38, ECF No. 1.) These are factual allegations which must be taken as true, and they show that it is plausible that Catholic Mutual cannot satisfy the legal definition of “religious employer” for purposes of the Rule’s exemption. See 45 C.F.R. § 147.130(a)(1)(iv)(B)(1), (3) (stating that an organization is a “religious employer” if “[t]he inculcation of religious values is the purpose of the organization” and if it “serves primarily persons who share the religious tenets of the organization”).
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plans are not grandfathered. As a result, they have not shown that they are subject to the Rule’s contraceptive, sterilization, and related preventive service coverage requirements, and I must dismiss their claims for lack of standing.
Catholic Mutual admits that its group health plan is grandfathered. (Defs.’ Br. at 13, ECF No. 31 (citing Compl. ¶ 59, ECF No. 1).) The plaintiffs allege, however, that “Catholic Mutual is trapped in its current plan if it wishes to remain grandfathered from ACA requirements.” (Compl. ¶ 60, ECF No. 1. See also id. ¶ 88.) They add, “Given that the Federal Government itself has conceded that employers and individuals will inevitably find it necessary to make substantial modifications to health insurance plans, particularly in light of spiraling costs and a fluctuating regulatory environment, it is readily apparent that currently-grandfathered Plaintiffs will lose their exemption from ACA requirements in the foreseeable future; it is unrealistic to presume they can remain grandfathered in perpetuity.” (Id. ¶ 89.) Notably, the plaintiffs do not allege that Catholic Mutual intends to make–or is even contemplating–specific changes to its plan that would end its grandfathered status. Instead, the plaintiffs merely speculate and/or assume that Catholic Mutual will lose grandfathered status sometime in the future. This is insufficient to establish Catholic Mutual’s standing to sue. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992) (“Although ‘imminence’ is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes . . . . It has been stretched beyond the breaking point when, as here, the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff’s own control.”).
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In a similar vein, the plaintiffs argue that substantial modifications to Catholic Mutual’s grandfathered plan are “bound to occur” because projections indicate that “only 55% of large employer and 34% of small employer plans would remain grandfathered by 2013.” (Pl.’s Response Br. at 7-8, ECF No. 33.) These projections do not avail the plaintiffs; indeed, I do not see that they are relevant. It is the plaintiffs’ burden to allege facts showing that they lack (or will soon lose) grandfather status, and thereby establish that it is plausible that they will be subject to the requirements of the Rule. They have failed to do so, and references to data showing that many plans might lose grandfathered status by 2013 do not cure this failure.
The plaintiffs also argue that “the organizational . . . Plaintiffs face an imminent decision to either compromise their religious beliefs or violate the law,” and therefore they “have standing to pursue their claim.” (Pls.’ Response Br. at 5, ECF No. 33.) More specifically, they state that the organizational plaintiffs’ “plans have been specifically contracted to exclude coverage for . . . contraception, abortifacients, sterilization, and related services,” and they “will be coerced into purchasing or subsidizing coverage in direct contravention of their beliefs or dropping coverage outright if the Final Rule is upheld.” (Id. at 6.) This coercion, they argue, “constitutes an injury-infact.” (Id.) Because the Rule does not apply to grandfathered plans, however, the organizational plaintiffs face no “coercion” (or any other imminent injury traceable to the Rule) unless their current plans are not grandfathered. The complaint does not allege facts showing that the organizational plaintiffs’ plans are not grandfathered, and therefore those plaintiffs have not established their standing to sue.
I note in passing that the defendants have submitted an alternate argument in support of their position that the organizational plaintiffs lack standing. (See Defs.’ Br. at 14-16, ECF No. 31.)
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Specifically, the defendants argue that “even if the organization[al] plaintiffs had sufficiently alleged that their group health plans are not grandfathered, they still would not have alleged an injury in fact” because the temporary enforcement safe harbor will protect them until August 1, 2013, and the Rule is “undergoing amendment” during the meantime. (See Defs.’ Br. at 14, ECF No. 31; see also id. at 15-16.) It seems to me that this argument implicates the doctrine of ripeness more so than standing, and therefore I shall revisit it briefly in a later section of this memorandum.
B. Whether the Individual Plaintiffs Lack Standing The defendants argue that the individual plaintiffs (i.e., Sister Mary Catherine and Molai) lack standing for the same reason that the organizational plaintiffs lack standing–i.e., they have failed to allege facts showing that “their current health plans, which do not offer contraception, are not grandfathered and thus excluded from the requirement to cover contraceptive services.” (Defs.’ Br. at 18, ECF No. 31.) Again, I agree with the defendants. Sister Mary Catherine alleges that she “is covered by a health insurance plan with Blue Cross Blue Shield of Nebraska through the Catholic Diocese of Lincoln, Nebraska,” and that this plan “is not grandfathered from ACA requirements.” (Compl. ¶¶ 17, 21, ECF No. 1 (emphasis omitted).) As explained in Part III.A, the plaintiffs’ allegation that Sister Mary Catherine’s plan is not grandfathered cannot be accepted as true because it is a legal conclusion, and “[a] pleading that offers ‘labels and conclusions’ . . . will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plaintiffs have not pleaded specific facts showing that Sister Mary Catherine’s plan is not grandfathered, and therefore they have not shown that it is plausible that Sister Mary Catherine will be subject to the requirements
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of the Rule. Thus, she has not shown that she faces imminent injury, and her standing is not established.
Like Catholic Mutual, Molai admits that her health plan is grandfathered. (Compl. ¶ 31, ECF No. 1.) Also like Catholic Mutual, Molai alleges that she “is trapped in her current plan if she wishes to remain grandfathered from ACA requirements”; that her “plan will immediately become subject to ACA requirements and the contraceptive coverage Rule” when “her employer, FOCUS, substantially changes any aspect of” the plan; and “it is unrealistic to presume” that her plan “can remain grandfathered in perpetuity.” (Id. ¶¶ 32-33, 89.) As explained in Part III.A above, however, speculation that Molai’s plan may change “at some indefinite future time” is insufficient to establish her standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992).
Furthermore, neither Sister Mary Catherine nor Molai have alleged facts indicating that their employers do not qualify for the Rule’s religious employers exception. As noted previously, the Rule does not apply to a “religious employer,” which is defined as an organization that meets the following criteria: (1) The inculcation of religious values is the purpose of the organization; (2) The organization primarily employs persons who share the religious tenets of the organization; (3) The organization serves primarily persons who share the religious tenets of the organization; and (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. See 45 C.F.R. § 147.130(a)(1)(iv)(B); Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012); Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). The
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plaintiffs allege that the “Rule’s religious employer exemption is insufficiently narrow [sic]” because “it fails to cover a significant number of organizations.” (Compl. ¶ 78, ECF No. 1.) They also allege that Catholic Social Services and Catholic Mutual do not qualify for the exemption because they do not “inquir[e] into the religious affiliation and beliefs of prospective employees,” and they allege that Pius X (and other plaintiffs) “are not eligible for the . . . religious employer exemption . . . based on the Federal Government’s stated intent to exclude hospitals, schools, and universities.” (Id. ¶¶ 79, 83.)7 The plaintiffs allege no facts, however, showing that Sister Mary Catherine’s employer (i.e., either School Sisters of Christ the King or the Catholic Diocese of Lincoln, Nebraska) or Molai’s employer (i.e., FOCUS) do not qualify for the religious employer’s exemption. Thus, for this additional reason, the plaintiffs have failed to establish that Sister Mary Catherine and Molai have standing to sue.
In short, the individual plaintiffs have not shown that their current health plans will be required to cover contraception-related services under the Rule, and therefore their claims must be dismissed for lack of standing.8
7 I note in passing that the plaintiffs have referred me to no authority indicating that “hospitals, schools, and universities” are categorically excluded–or intended to be excluded–from the religious employer exception even if they satisfy all of the criteria listed in the regulation.
8 The defendants repeat their alternative argument that the individual plaintiffs lack standing because the temporary enforcement safe harbor will protect them until August 1, 2013, and the Rule will be amended before the safe harbor expires. (See Defs.’ Br. at 19-20, ECF No. 31.) I shall briefly address this argument below when reviewing the issue of ripeness.
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C. Whether the State Plaintiffs Lack Standing 1. Article III Standing
The State plaintiffs allege that they have standing to sue in their own right9 because, “[a]s a result of the Rule’s compulsory violation of religious organization employers’ religious beliefs, religious organization employers in Plaintiff States, such as Plaintiffs Catholic Social Services and Catholic Mutual, may simply cease the provision of health insurance coverage to their employees, rather than subsidize conduct and services in violation of their beliefs.” (Compl. ¶ 84, ECF No. 1.) They continue, “If religious organization employers were to cease provision of health insurance in order to avoid the requirements of the Rule, an immediate and substantial spike in the number of enrollments in Plaintiff States’ Medicaid programs would result, as many impacted employees would invariably shift to Medicaid to remain in compliance with the ACA’s individual coverage mandate.” (Id. ¶ 85.) Also, the plaintiffs allege that “religious organization employers operating in Plaintiff States will cease providing charitable services to persons who do not share their religious tenets, in an effort to qualify under the Religious Employer Exemption. Those people no longer served by such charitable services will place further pressure on Plaintiff States’ Medicaid programs as they inevitably increase reliance on public resources for support.” (Id. ¶ 87.)
The defendants argue that the State plaintiffs’ allegations are insufficient to establish their standing to sue. (Defs.’ Br. at 22-26, ECF No. 31.) The defendants are correct.
As noted previously, in order to satisfy the standing requirements of Article III of the United States Constitution, a plaintiff must show that “it has suffered an ‘injury in fact’ that is (a) concrete
9 The State plaintiffs state that they are “are not bringing this suit as a parens patriae action.” (Pl.’s Response Br. at 17, ECF No. 33; see also id. at 17-18; Defs.’ Br. at 21-22, ECF No. 31.)
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and particularized and (b) actual or imminent, not conjectural or hypothetical.” McClain v. American Economy Ins. Co., 424 F.3d 728, 731 (8th Cir. 2005) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000)) (emphasis added). A plaintiff must also show that “the injury is fairly traceable to the challenged action of the defendant,” and that “it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. Moreover, “[w]hen the plaintiff is not himself the object of the government action or inaction he challenges,” as is the case here insofar as the State plaintiffs are concerned, “standing is not precluded, but it is ordinarily ‘substantially more difficult to establish.’” Summers v. Earth Island Institute, 555 U.S. 488, 493-94 (2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)). The Supreme Court has explained,
[When a plaintiff’s alleged injury arises from the government’s allegedly unlawful regulation of someone else], causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction–and perhaps on the response of others as well. The existence of one or more of the essential elements of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such a manner as to produce causation and permit redressability of injury. Lujan, 504 U.S. at 562 (citations omitted).10
10 It merits emphasis that at this stage of the proceeding, the plaintiffs are not required to “adduce facts” showing that third parties will react in such a way that the causation and redressability elements of standing are met; rather, they need only allege facts that are sufficient to state plausibly that third parties will act in such a way that the elements of standing are met. See, e.g., Lujan, 504 U.S. at 561 (explaining that the degree of support required for each element of standing differs at each successive stage of the case).
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The complaint does not allege that the State plaintiffs will suffer “‘direct injur[ies]’ resulting from the [defendants’] challenged conduct.” McClain, 424 F.3d at 731. Instead, the State plaintiffs’ theory of standing is based on layers of conjecture. First, the plaintiffs speculate that there are religious employers who are subject to the Rule’s requirements and who will cease to provide health coverage to their employees in order to avoid subsidizing contraceptive services that conflict with their religious beliefs. Then, the plaintiffs speculate that if those employers do elect to cease providing coverage, the employees of those organizations will seek (and obtain) Medicaid coverage from the States,11 which will cause the States to suffer budgetary strain. Alternately, the plaintiffs speculate that religious organization employers who do continue to provide health coverage to their employees will attempt to qualify for the Rule’s religious employer exemption by ceasing to provide charitable services to persons who do not share the organizations’ religious views, and this in turn will cause those unserved persons to rely on State resources. Both alternatives allege hypothetical injuries to the States based on conjecture about the reactions of third parties, and the complaint simply does not allege facts showing that it is plausible–and not merely possible–that those reactions “have been or will be made” in the manner that the plaintiffs suggest. Lujan, 504 U.S. at 562.
In short, because the State plaintiffs’ alleged injuries depend upon “the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” the plaintiffs have the “substantially more difficult” burden of alleging facts showing plausibly that the independent actors will behave in such a way that the elements of standing can be met. Lujan, 504 U.S. at 562 (citation
11 The defendants correctly note that the plaintiffs’ theory ignores–and likely conflicts with–the eligibility requirements for Medicaid. (See Defs.’ Br. at 25 & n.13, ECF No. 31 (citing 42 U.S.C. §§ 1396a(a)(10)(A)(i); 1396e(c)(2).)
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omitted). The complaint does not allege such facts; rather, it merely offers guesses about how independent actors will respond to the Rule and speculation that these responses could cause people to qualify for, and obtain, state benefits that they would not otherwise seek, which will then strain the States’s budgets.12 This is not sufficient to establish standing. Cf. County of Mille Lacs v. Benjamin, 361 F.3d 460, 464 (8th Cir. 2004) (holding that “speculative harms based on the assumed future intent” of others do not establish injury in fact).
In opposition to the defendants’ motion, the State plaintiffs repeat their claims that the Rule will threaten their budgetary stability when religious organization employers drop coverage for their employees (and thereby shift costs to the States). (See Pl.’s Response Br. at 14, ECF No. 33.) In support of their position, they refer me to data indicating that Medicaid spending “has expanded exponentially” and will continue to expand under the ACA generally. (Pls.’ Response Br. at 14-16, ECF No. 33. See also id. at 25-26.) They add that “Plaintiff States have already demonstrated an interest in opposing the ACA as a whole due, in part, to the law’s massive effect on the States’ Medicaid program,” and that their “interest in opposing the Final Rule . . . rests in part on related grounds.” (Id. at 16. See also id. at 15 (discussing Medicaid spending attributable to “the ACA’s other requirements” in combination with the speculated increases stemming from the Rule); id. at 26-27 (discussing the anticipated costs of ACA section 1311 and “the ACA’s individual coverage mandate”).) It is irrelevant, however, whether the State plaintiffs might have some interest in opposing the ACA apart from the Rule, or that the ACA–taken as a whole–is expected to strain the
12 It should be noted that the complaint does not show that it is plausible that any of the organizations or individuals who are participating in this case as plaintiffs will respond to the Rule in such a way that the State plaintiffs’ budgets will be strained; indeed, the complaint does not properly allege that any of the individual or organizational plaintiffs will be subject to the Rule at all. (See supra Parts III.A-B.)
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State plaintiffs’ budgets. To demonstrate standing to challenge the Rule, the State plaintiffs must establish an injury in fact that is traceable to the Rule. See Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996) (“If the right to complain of one administrative deficiency automatically conferred the right to complain of all administrative deficiencies, any citizen aggrieved in one respect could bring the whole structure of state administration before the courts for review. That is of course not the law. As we have said, “[n]or does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.” (quoting Blum v. Yaretsky, 457 U.S. 991, 999 (1982)). The State plaintiffs cannot rely on unrelated claims concerning different aspects of the ACA to establish standing in this action.
The State plaintiffs also argue that “[c]ourts have recognized states’ economic interests [are] adequate to support a claim.” (Pls.’ Response Br. at 26, ECF No. 33.) In support of their argument, the State plaintiffs cite Dixon v. Heckler, 589 F. Supp. 1512 (S.D.N.Y. 1984), and Avery v. Heckler, 584 F. Supp. 312 (D. Mass. 1984). I find, however, that these cases are each distinguishable from the instant one.
In Dixon, the State of New York was permitted to intervene in an action challenging “the legality of the standards by which claims for [federal] disability benefits are evaluated.” 589 F. Supp. at 1513. The State was allowed to intervene “as of right” pursuant to Federal Rule of Civil Procedure 24(a)(2) for two separate reasons. First, intervention was in order because there was a “threat of a possible federal take-over of the State’s program if it refuse[d] to follow regulations it believe[d] to be illegal.” Id. at 1515. Second–and for present purposes, more importantly–the State could intervene because it had an “economic interest in the proper administration of the federal
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disability programs.” Id. at 1516. The State argued that “disabled individuals who are denied benefits because of the Secretary’s unlawful regulations are compelled to turn to state and local public assistance programs upon which they would otherwise not have to depend,” which in turn increases the costs of the state and local programs. Id. In response, the Secretary of the Department of Health and Human Services argued that this was “not a legally cognizable interest because the federal disability programs are intended only to benefit disabled individuals, not to ease the state’s public assistance costs.” Id. The court rejected the Secretary’s argument, noting that “the legislative history of the [federal] programs shows that one of Congress’ express purposes in establishing the programs was in fact ‘to relieve state and local governments of the soaring costs of the existing programs.’” Id. (quoting City of New York v. Heckler, 578 F. Supp. 1109, 1121 (E.D.N.Y. 1984)). Thus, “the State’s economic interest in the proper administration of federal disability benefits [was] adequate to support intervention.” Id.
Although Dixon concerns intervention under Rule 24(a)(2), I shall assume, for the purposes of argument, that “the same reasons that support[ed] the State’s right to intervene” in Dixon would also establish the State’s “standing to challenge the Secretary’s policies.” Dixon, 589 F. Supp. at 1516 n.7.13 Nevertheless, I am not persuaded that the court’s holding in Dixon should be applied here. Indeed, it seems to me that the connection between the Secretary’s actions and the alleged economic injury to the State in Dixon is much more direct than the connection between the Rule and the alleged threats to the State plaintiffs’ budgetary stability. The court found in Dixon that the federal programs at issue were intended to provide economic relief to state and local governments,
13 But see Avery v. Heckler, 584 F. Supp. 3121, 316 n.3 (D. Mass. 1984) (“An intervenor need not have the standing necessary to initiate the lawsuit.”)
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and therefore the State of New York’s interest in the proper administration of the federal disability benefits program supported its intervention (and presumably its standing). In contrast, here the State plaintiffs are not challenging a rule, regulation, program, or statute that is intended to provide states with economic relief, or is otherwise concerned with states’ well-being. Rather, they are challenging a rule that may require non-grandfathered, non-exempted health plans to provide coverage for certain contraceptive services for women, despite some employers’ and employees’ religious objections to such services. Unlike the federal disability programs in Dixon, the Rule has no direct economic connection with the State plaintiffs. As explained above, a series of assumptions about third parties’ possible responses to the Rule must be made before any connection can be drawn between the Rule and the State plaintiffs’ budgetary stability, and this connection is too attenuated and speculative to establish standing.
Like Dixon, Avery also involved a State’s attempt to intervene in a suit challenging the Secretary of Health and Human Services’ decisions to terminate individuals’ disability benefits. See 584 F. Supp. at 315. In Avery, the court granted the Commonwealth of Massachusetts’ motion to intervene because the Commonwealth had an interest “in minimizing the number of terminated social security beneficiaries on its welfare rolls.” 584 F. Supp. at 316. In so doing, the court noted that the case involved challenges to “Title XVI (SSI),” which “replaced state-administered welfare programs providing the same coverage” and was “inten[ded] to provide fiscal relief for state and local governments.” Id. The court also rejected the Secretary’s argument that the Commonwealth “has not demonstrated that its injury is fairly traceable to the Secretary’s allegedly illegal terminations,” stating,
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The chain of causation alleged by the Commonwealth . . . is not interrupted by “the independent action of some third party not before the court.” All the links of the chain are before court: the Secretary promulgates regulations, which the Commonwealth implements, and which require the termination of benefits to some claimants, some of whom turn to the Commonwealth for financial support. Id. (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 42 (1976)) (citation omitted). The court also distinguished Avery from Pennsylvania v. Kleppe, 533 F.2d 668 (D.C. Cir. 1976), wherein a state was denied standing to sue in part because “nothing in the legislative history of the relevant statute indicated any concern for the well-being of states.” 548 F. Supp. at 316. The reasons I have cited for distinguishing Dixon from the instant case are equally applicable to Avery. I agree with the defendants that Iowa ex rel. Miller v. Block, 771 F.2d 347 (8th Cir. 1985), is more instructive. In Block, the State of Iowa sought to compel the Secretary of the Department of Agriculture “to implement three federal agricultural disaster relief programs.” Id. at 348. “In attempting to establish that it sustained an injury in fact,” Iowa alleged “that, but for the Secretary’s implementation of these disaster relief programs, agriculture production will suffer, which will dislocate agriculturally-based industries, forcing unemployment up and state tax revenues down. As a result, the State will face increased responsibility for the welfare and support of its affected citizens while its available tax revenues are declining.” Id. at 353. The Eighth Circuit found that Iowa’s “alleged injury is insufficiently proximate to the actions at issue and the remedy to be offered by this action an insufficient guarantee of solvency to warrant state standing in this case.” Id. at 354. It seems to me that the connection between the Rule and the threat of budgetary strain for the State plaintiffs is at least as attenuated, if not more so, than the connection between Iowa’s alleged injury and the defendant’s actions in Block.
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Finally, the plaintiffs argue that if I “first find[] that any of the individual or organization[al] Plaintiffs has standing, [I] need not determine whether Plaintiff States likewise have standing.” (Pls.’ Response Br. at 17, ECF No. 33.) Because all of the other plaintiffs lack standing, this argument is moot.
In summary, I find that the plaintiffs’ allegations are insufficient to establish that the State plaintiffs have standing to sue in their own right. There are no allegations of direct injuries resulting from the Rule; instead, the State plaintiffs only speculate that third parties will respond to the Rule in such a way that the States’ budgets will ultimately be strained. As a result, the State plaintiffs must be dismissed for lack of standing. 2. Prudential Standing Principles
Even if the State plaintiffs were able to establish Article III standing, I would dismiss their claims on the ground that they do not fall within the zone of interests protected by the First Amendment or RFRA.
Apart from the constitutional requirements of standing, “the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474 (1982). For example, the Supreme Court “has required that the plaintiff’s complaint fall within ‘the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’” Id. at 475 (quoting Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 1970)). The Court has explained,
Although standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal, it often turns on the nature and source of the claim asserted. The actual or threatened injury required by Art. III may exist
36

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solely by virtue of “statutes creating legal rights, the invasion of which creates standing . . . .” Moreover, the source of the plaintiff’s claim to relief assumes critical importance with respect to the prudential rules of standing that, apart from Art. III’s minimum requirements, serve to limit the role of the courts in resolving public disputes. Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief. Warth v. Seldin, 422 U.S. 490, 500 (1975) (citations and footnote omitted). The State plaintiffs claim to have standing to bring claims, in their own right, under the First Amendment’s Free Speech Clause, the First Amendment’s Free Exercise Clause, the First Amendment’s Freedom of Association Clause, and RFRA. The defendants argue persuasively that these clauses and RFRA protect individual rights, not states’s rights, (see Defs.’ Br. at 26-27, 33-35, ECF No. 31), and the plaintiffs have offered no resistance to the defendants’ argument, (see generally Pls.’ Response Br., ECF No. 33.) I take it that the point is conceded, and therefore the State plaintiffs’ claims are subject to dismissal on the alternate ground that they do not fall within the zone of interests protected by the relevant portions of the First Amendment and by RFRA.14
D. Whether the Plaintiffs’ Claims Are Ripe None of the plaintiffs have established that Article III’s standing requirements have been met. Therefore, there is no case or controversy before me, and the remaining issues raised by the defendants in support of their motion to dismiss are moot. Nevertheless, it merits mention that even if the plaintiffs were able to establish standing to sue, their claims are not ripe.
14 The defendants argue that the State plaintiffs’ claims must be dismissed pursuant to Rule 12(b)(6) for the same reasons. (See Defs.’ Br. at 33-35, ECF No. 31 (arguing that the State plaintiffs have failed to state a claim upon which relief may be granted because RFRA and the relevant clauses of the First Amendment do not protect states).) Although the State plaintiffs’ lack of standing renders the defendants’ argument moot, I agree with the defendants that the State plaintiffs have failed to state a claim upon which relief may be granted.
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Ripeness, or the question “whether the harm asserted has matured sufficiently to warrant judicial intervention,” “bears close affinity” to the issue of standing. Warth, v. Seldin, 422 U.S. 490, 499 n.10 (1975). See also National Park Hospitality Association v. Dept. of Interior, 538 U.S. 803, 808 (2003) (“The ripeness doctrine is ‘drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction . . . .” (citation omitted)). Ripeness “is a justiciability doctrine designed ‘to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’” National Park Hospitality Association, 538 U.S. at 807-08 (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). To assess ripeness, courts must “evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Id. at 808 (citing Abbot Laboratories, 387 U.S. at 149). See also Missouri Roundtable for Life v. Carnahan, 676 F.3d 665, 674 (8th Cir. 2012) (“In assessing ripeness, we focus on whether the case involves ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” (quoting 281 Care Committee v. Arneson, 638 F.3d 621, 631 (8th Cir. 2011))).
“The fitness requirement is primarily meant to protect ‘the agency’s interest in crystalizing 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.’” American Petroleum Institute v. EPA, No. 09-1038, 2012 WL 2053572, at *4 (D.C. Cir. June 8, 2012) (quoting Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 49 (D.C. Cir. 1999)). “Among other things, then, the
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fitness issue ‘depends on whether it is purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency’s action is sufficiently final.” Id. (quoting Atlantic States Legal Foundation 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 the 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. (citing Public Citizen Health Research Group v. Commissioner, Food & Drug Administration, 740 F.2d 21, 31 (D.C. Cir. 1984)).
The foregoing “institutional interests in the deferral of review” can be outweighed, however, if the deferral causes “immediate and significant” hardship. American Petroleum Institute, 2012 WL 2503572, at *6 (quoting Devia v. Nuclear Regulatory Commission, 492 F.3d 421, 427 (D.C. Cir. 2007)). However, “[c]onsiderations of hardship that might result from delaying review ‘will rarely overcome the finality and fitness problems inherent in attempts to review tentative positions.’” Id. (quoting Public Citizen Health Research Group, 740 F.2d at 31).
The plaintiffs and defendants each argue that Abbot Laboratories v. Gardner, 387 U.S. 136 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1997), supports their position on the ripeness issue. In Abbott Laboratories, the Supreme Court determined that a preenforcement challenge to Federal Food, Drug, and Cosmetic Act regulations was fit for judicial determination because the challenged regulation was “quite clearly definitive”; there was “no hint that [the] regulation [was] informal, or only the ruling of a subordinate official, or tentative”; and
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the regulation “was made effective upon publication.” 387 U.S. at 151. As to the second prong of the ripeness inquiry, the Court found that judicial consideration was warranted because, in addition to the foregoing factors, “compliance [with the regulations] was expected,” id. at 152, which “put[] petitioners in a dilemma”:
If petitioners wish to comply they must change all their labels, advertisements, and promotional materials; they must destroy stocks of printed matter; and they must invest heavily in new printing type and new supplies. The alternative to compliance–continued use of material which they believe in good faith meets the statutory requirements, but which clearly does not meet the regulation of the Commissioner–may be even more costly. That course would risk serious criminal and civil penalties for the unlawful distribution of “misbranded” drugs. Id. at 152-53. As the plaintiffs correctly note, the fact that the complaint presents concrete legal questions for review weighs in favor of justiciability. See Abbott Laboratories, 387 U.S. at 149. In addition, I agree with the plaintiffs that the Rule should be considered “definitive” by virtue of its formal promulgation. This fact carries limited significance, however, given the tentative nature of the Departments’ position on religious accommodations to the ACA’s contraceptive coverage requirements. In other words, although the Rule does settle the definition of “religious employer” for the purposes of the contraceptive coverage exemption, it also states that the contraceptive coverage requirements will not be enforced until the Departments consider whether to adopt additional, broader religious accommodations. It seems to me that under these circumstances I should decline to review the defendants’ tentative position on the scope of religious exemptions to the contraceptive coverage requirements. Adjudicating the plaintiffs’ claims now would deny the Departments a full opportunity to modify their positions and undermine the interests of judicial economy.
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This case is clearly distinguishable from Abbott Laboratories in important respects. In Abbott Laboratories (and in other cases upon which the plaintiffs rely), there was a clear expectation of conformity with the challenged regulation. See 387 U.S. at 151-52. (See also Pls.’ Br. at 19, ECF No. 33 (“When, as here, [regulations are promulgated . . . and the expected conformity to them causes injury cognizable by a court of equity, they are appropriately the subject of attack.” (quoting Abbot Laboratories, 387 U.S. at 150 (emphasis added))); (“If ‘the enforcement of a statute is certain, a pre-enforcement challenge will not be rejected on ripeness grounds.” (quoting Florida State Conference of the NAACP v. Browning, 522 F.3d 1153, 1164 (11th Cir. 2008) (emphasis added))).) In the instant case, in contrast, a temporary enforcement safe harbor prevents the Rule from being enforced against the plaintiffs until August 1, 2013. Although the plaintiffs allege that the Rule will “absolutely” be enforced against them on that date, (see, e.g., Compl. ¶ 74, ECF No. 1; Pls.’ Br. at 19, ECF No. 33), the Rule itself states that it will be amended during the safe harbor period to accommodate religious objections to the contraceptive coverage requirements. Indeed, the amendment process has already begun. In other words, although the definition of “religious employer” has been settled definitively, the contraceptive coverage requirements are not being enforced against non-grandfathered religious organizations that fail to satisfy that definition, and new means of accommodating the organizations are being contemplated. Thus, the Rule’s impact upon the plaintiffs is not “sufficiently direct and immediate” to warrant judicial intervention. Abbott Laboratories, 387 U.S. at 152.
The plaintiffs argue that delaying judicial review would harm them because they must either “make immediate and significant changes to their health care coverage arrangements in contravention of their religious and moral beliefs” or “forgo health insurance altogether and face a
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steep civil penalty in doing so.” (Pls.’ Br. at 19, ECF No. 33.) In fact, however, this forced choice
is neither imminent nor inevitable in light of the temporary enforcement safe harbor and the
ANPRM.
Relatedly, the plaintiffs argue that the effects of the Rule are reaching them “now or in the
immediate or near future” because they “must start making plans now to comply with the Final Rule
and any inability to offer health insurance coverage will have a severe impact on [the organizational
plaintiffs’] ability to retain and recruit employees.” (Pls.’ Response Br. at 20, ECF No. 33.) The
complaint includes no allegations stating that the plaintiffs must begin planning now to comply with
the Rule or that the Rule will affect the organizational plaintiffs’ employee retention and recruitment
efforts. Moreover, the plaintiffs’ desire to plan for future contingencies that may never arise does not constitute the sort of hardship that can establish the ripeness of their claims,15 particularly given
the strength of the “institutional interests in the deferral of review” described above. American
Petroleum Institute, 2012 WL 2053572, at *6. The complaint simply does not establish that the Rule
15 The plaintiffs’ “hardship” argument is analogous to one rejected by the Seventh Circuit in Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 162 (7th Cir. 1976). There, petitioners argued that the EPA’s designations of certain areas for pollution studies caused them “uncertainty in their business operations” for a number of reasons. For instance, some petitioners argued that they would have to maintain capital “to cover the possible expenditure of funds for pollution control equipment” if the EPA issued more restrictive pollution requirements for the studied areas. The Seventh Circuit distinguished these claims of uncertainty from the harms discussed in Abbott Laboratories, noting that the petitioners “need not expend any funds at this time since there is no administrative directive to which they must comply,” the petitioners did not “face any sanctions for noncompliance,” and the alleged hardship did not have “the ‘direct effect on the day-to-day business’ of the petitioners which the Supreme Court found present in Abbott Laboratories.” Bethlehem Steel Corp., 536 F.3d at 163. Here, as in Bethlehem Steel Corp., the plaintiffs are not asked to comply with any contraception coverage requirements while rulemaking process continues, the plaintiffs face no sanctions for noncompliance with the contraception coverage requirements, and their alleged planning hardship is neither alleged in the complaint nor as palpable as the dilemma described in Abbott Laboratories.
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has created the same sort of “direct and immediate” dilemma that confronted the petitioners in Abbott Laboratories.
The plaintiffs also argue that “the mere promise to take future action” to accommodate religious objections to the contraceptive coverage requirements“ in “future rulemaking” cannot defeat standing. (Pls.’ Response Br. at 21, ECF No. 33. See also id. at 20-22.) I agree with the plaintiffs that the defendants cannot “stave off judicial review of a challenged rule simply by initiating a new proposed rulemaking that would amend the rule in a significant way.” American Petroleum Institute, 2012 WL 2503572, at *5. “If that were true, a savvy agency could perpetually dodge review.” Id. (citation omitted). Here, however, the fact that the Rule itself describes the temporary enforcement safe harbor and the new proposed rulemaking dispels the notion that the defendants are engaged in review-evading gamesmanship. The “definite end date” to the amendment process (i.e., August 1, 2013), “further alleviates any concern that [the defendants are] using a new rulemaking to evade review.” American Petroleum Institute, 2012 WL 2503572, at *5.
Finally, the plaintiffs argue that “the harms alleged by the individual and [organizational] Plaintiffs here are of a sort to which ripeness analysis is especially sensitive.” (Pls.’ Response Br. at 23, ECF No. 33.) More specifically, they argue that the ripeness analysis is “relaxed” in First Amendment cases. (Id. (citing Kansas Judicial Review v. Stout, 519 F.3d 1107, 1116 (10th Cir. 2008); Currence v. Cincinnati, 28 F. App’x 438, 441 (6th Cir. 2002)).) It is true that “the chilling effect the challenged law may have on First Amendment liberties” merits consideration when a court assesses the ripeness of a claim. Stout, 519 F.3d at 1116. As explained previously, however, the plaintiffs in this case do not face a direct and immediate dilemma that involves the sacrifice of their First Amendment rights, and the defendants’ position on the scope of the exemptions to the
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contraceptive coverage requirements is tentative–and under these circumstances, the plaintiffs cannot establish ripeness even under a relaxed standard.16
In summary, although the Rule that lies at the heart of the plaintiffs’ complaint establishes a definitive, final definition of “religious employer,” the ACA’s contraceptive coverage requirements are not being enforced against non-exempted religious organizations, and the Rule is currently undergoing a process of amendment to accommodate these organizations. The plaintiffs face no direct and immediate harm, and one can only speculate whether the plaintiffs will ever feel any effects from the Rule when the temporary enforcement safe harbor terminates. This case clearly involves “contingent future events that may not occur as anticipated, or indeed may not occur at all,” Missouri Roundtable for Life v. Carnahan, 676 F.3d 665, 674 (8th Cir. 2012) (quoting 281 Care Committee v. Arneson, 638 F.3d 621, 631 (8th Cir. 2011)), and therefore it is not ripe for review.
None of the plaintiffs have established that they have standing to challenge the Rule, and even if I were to assume that they did have standing, their claims are not ripe.
16 In Stout, the plaintiffs had a legitimate fear of sanctions for their political actions because the Kansas Commission on Judicial Qualifications did not “affirmative[ly] disavow . . . an intention to prosecute” candidates for state judicial office for taking certain actions prohibited under the Kansas Code of Judicial Conduct. See 519 F.3d at 1118. In Currence the court determined that it was likely that the plaintiff would be injured by the city’s nudity ban, that the issue of whether the nudity ban violated the First Amendment was ready for judicial determination, and that the plaintiff faced a “direct and immediate dilemma in how to conduct his dance routine within the boundaries of the law.” 28 F. App’x at 441-42. Here, in contrast, the defendants have declared that religious employers will not be required to provide contraceptive coverage during the temporary enforcement safe harbor; new religious accommodations are being considered; and the plaintiffs are not facing a direct and immediate dilemma about whether to sacrifice their First Amendment rights in order to conform with the contraceptive coverage requirements.
44

4:12-cv-03035-WKU-CRZ Doc # 38 Filed: 07/17/12 Page 45 of 45 - Page ID # 248 IT IS THEREFORE ORDERED that the defendants’ motion to dismiss, ECF No. 30, is
granted, and the plaintiffs’ complaint is dismissed without prejudice. Dated July 17, 2012. BY THE COURT ____________________________________________ Warren K. Urbom United States Senior District Judge
45

 
 4:12-cv-03035-WKU-CRZ Doc # 46 Filed: 08/21/13 Page 1 of 2 - Page ID # 275
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
___________________
No: 12-3238 ___________________
State of Nebraska, by and through, Jon C. Bruning, Attorney General of the State of Nebraska; State of South Carolina, by and through, Alan Wilson, Attorney General of the State of South Carolina; State of Texas, by and through, Greg Abbott, Attorney General of the State of Texas; State of Ohio, by and through, Mike DeWine, Attorney General for the State of Ohio; State of
Florida, by and through, Pam Bondi, Attorney General for the State of Florida; State of Oklahoma, by and through, Scott Pruitt, Attorney General for the State of Oklahoma; Bill Schuette, Attorney General of the State of Michigan, on behalf of the People of Michigan; Sister Mary Catherine, CK, an individual; Stacy Thomlison, an individual; Catholic Social Services, a
Nebraska non-profit corporation; Pius X Catholic High School, a Nebraska non-profit corporation; Catholic Mutual Relief Society of America, A Nebraska non-profit corporation
Plaintiffs - Appellants
v.
United States Department of Health and Human Services; Kathleen Sebelius, in her official capacity as the Secretary of the United States Department of Health and Human Services; United States Department of Treasury; Timothy F. Geithner, in his official capacity as the Secretary of
the United States Department of the Treasury; United States Department of Labor; Hilda L. Solis, in her official capacity as Secretary of the United States Department of Labor
Defendants - Appellees
------------------------------
Association of American Physicians & Surgeons; Eagle Forum Education and Legal Defense Fund; American Association of Pro-Life Obstetricians & Gynecologists; Christian Medical Association; Catholic Medical Association; The National Catholic Bioethics Center; Physicians
for Life; National Association of Pro Life Nurses
Amici on Behalf of Appellant(s) ______________________________________________________________________________
Appeal from U.S. District Court for the District of Nebraska - Lincoln (4:12-cv-03035-WKU)
______________________________________________________________________________
Appellate Case: 12-3238 Page: 1 Date Filed: 08/21/2013 Entry ID: 4067289

4:12-cv-03035-WKU-CRZ Doc # 46 Filed: 08/21/13 Page 2 of 2 - Page ID # 276 JUDGMENT
Appellants’ motion to dismiss the appeal is granted. The appeal is hereby dismissed in accordance with the Federal Rules of Appellate Procedure 42(b).
The Court's mandate shall issue forthwith. August 21, 2013
Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. ____________________________________
/s/ Michael E. Gans
Appellate Case: 12-3238 Page: 2 Date Filed: 08/21/2013 Entry ID: 4067289

 
 Case: 4:12-cv-03035-WKU-CRZ As of: 11/26/2013 09:21 AM CST 1 of 7
CLOSED,STAT−CONSENT,TRIAL−LINCOLN
U.S. District Court District of Nebraska (4 Lincoln) CIVIL DOCKET FOR CASE #: 4:12−cv−03035−WKU−CRZ

State of Nebraska et al v. United States Department of Health and Human Services et al Assigned to: Senior Judge Warren K. Urbom Referred to: Magistrate Judge Cheryl R. Zwart Case in other court: USCA−8th Circuit, 12−03238 Cause: 28:2201 Declaratory Judgement
Plaintiff

Date Filed: 02/23/2012 Date Terminated: 07/17/2012 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

State of Nebraska by and through, Jon C. Bruning, Atttorney General of the State of Nebraska

represented by David D. Cookson ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−2682 Fax: (402) 471−3297 Email: david.cookson@nebraska.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jon C. Bruning ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−2683 Fax: (402) 471−3297 Email: kim.schwaninger@nebraska.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine J. Spohn ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Lincoln, NE 68509 (402) 471−2834 Fax: (402) 471−2957 Email: katie.spohn@nebraska.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
State of South Carolina by and through, Alan Wilson, Attorney General of the State of South Carolina

represented by Katherine J. Spohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
State of Texas by and through, Greg Abbott, Attorney General of the State of Texas

represented by Katherine J. Spohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 4:12-cv-03035-WKU-CRZ As of: 11/26/2013 09:21 AM CST 2 of 7

State of Ohio by and through, Mike DeWine, Attorney General for the State of Ohio

represented by Katherine J. Spohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
State of Florida by and through, Pam Bondi, Attorney General for the State of Florida

represented by Katherine J. Spohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
State of Oklahoma by and through, Scott Pruitt, Attorney General for the State of Oklahoma

represented by Katherine J. Spohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Bill Schuette Attorney General of the State of Michigan, on behalf of the People of Michigan

represented by Katherine J. Spohn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Sister Mary Catherine, CK an individual

represented by Rocky C. Weber CROSBY, GUENZEL LAW FIRM 134 South 13th Street Suite 400 Lincoln, NE 68508 (402) 434−7300 Fax: (402) 434−7303 Email: rcw@crosbylawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Stacy Thomlison an individual

represented by Donald G. Blankenau BLANKENAU, WILMOTH LAW FIRM 206 South 13th Street Suite 1425 Lincoln, NE 68508−2002 (402) 475−7080 Fax: (402) 475−7085 Email: don@aqualawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Catholic Social Services a Nebraska non−profit corporation

represented by Rocky C. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Pius X Catholic High School a Nebraska non−profit corporation

represented by Rocky C. Weber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Case: 4:12-cv-03035-WKU-CRZ As of: 11/26/2013 09:21 AM CST 3 of 7

Catholic Mutual Relief Society of America a Nebraska non−profit corporation

represented by Donald G. Blankenau (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant United States Department of Health and Human Services
Defendant Kathleen Sebelius in her official capacity as the Secretary of the United States Department of Health and Human Services Defendant United States Department of Treasury
Defendant Timothy F. Geithner in his official capacity as the Secretary of the United States Department of the Treasury Defendant United States Department of Labor
Defendant Hilda L. Solis in her official capacity as Secretary of the United States Department of Labor

represented by Michelle R. Bennett U.S. DEPARTMENT OF JUSTICE − FEDERAL PROGRAMS BRANCH 20 Massachusetts Avenue, N.W. Room 7340 Washington, DC 20001 (202) 305−8902 Fax: (202) 616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/23/2012

# Docket Text
1 COMPLAINT against Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury ( Filing fee $ 350, receipt number 0867−2220787), by Attorney Katherine J. Spohn on behalf of State of Ohio, State of Nebraska, State of Texas, State of Oklahoma, State of Florida, Bill Schuette, State of South Carolina(Spohn, Katherine) (Entered: 02/23/2012)

Case: 4:12-cv-03035-WKU-CRZ As of: 11/26/2013 09:21 AM CST 4 of 7

02/23/2012 02/23/2012 02/23/2012
02/23/2012
02/23/2012
02/24/2012 02/24/2012 02/24/2012 02/28/2012 02/28/2012 02/28/2012 02/28/2012 02/28/2012

2 TEXT NOTICE OF JUDGES ASSIGNED: Magistrate Judge Cheryl R. Zwart assigned. (TEL) (Entered: 02/23/2012)
3 ATTORNEY LETTER by Clerk that Attorney Donald G. Blankenau has not paid the biennial assessment. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (TEL) (Entered: 02/23/2012)
4 TEXT NOTICE REGARDING CORPORATE DISCLOSURE STATEMENT by Deputy Clerk as to Plaintiff Catholic Mutual Relief Society of America. Pursuant to Fed. R. Civ. P. 7.1, non−governmental corporate parties are required to file Corporate Disclosure Statements (Statements). The parties shall use the form Corporate Disclosure Statement, available on the Web site of the court at http://www.ned.uscourts.gov/forms/. If you have not filed your Statement, you must do so within 15 days of the date of this notice. If you have already filed your Statement in this case, you are reminded to file a Supplemental Statement within a reasonable time of any change in the information that the statement requires. (TEL) (Entered: 02/23/2012)
5 TEXT NOTICE REGARDING CORPORATE DISCLOSURE STATEMENT by Deputy Clerk as to Plaintiff Catholic Social Services. Pursuant to Fed. R. Civ. P. 7.1, non−governmental corporate parties are required to file Corporate Disclosure Statements (Statements). The parties shall use the form Corporate Disclosure Statement, available on the Web site of the court at http://www.ned.uscourts.gov/forms/. If you have not filed your Statement, you must do so within 15 days of the date of this notice. If you have already filed your Statement in this case, you are reminded to file a Supplemental Statement within a reasonable time of any change in the information that the statement requires. (TEL) (Entered: 02/23/2012)
6 TEXT NOTICE REGARDING CORPORATE DISCLOSURE STATEMENT by Deputy Clerk as to Plaintiff Pius X Catholic High School. Pursuant to Fed. R. Civ. P. 7.1, non−governmental corporate parties are required to file Corporate Disclosure Statements (Statements). The parties shall use the form Corporate Disclosure Statement, available on the Web site of the court at http://www.ned.uscourts.gov/forms/. If you have not filed your Statement, you must do so within 15 days of the date of this notice. If you have already filed your Statement in this case, you are reminded to file a Supplemental Statement within a reasonable time of any change in the information that the statement requires. (TEL) (Entered: 02/23/2012)
7 CORPORATE DISCLOSURE STATEMENT pursuant to Fed. R. Civ. P. 7.1 by Attorney Donald G. Blankenau on behalf of Plaintiff Catholic Mutual Relief Society of America.(Blankenau, Donald) (Entered: 02/24/2012)
8 CORPORATE DISCLOSURE STATEMENT pursuant to Fed. R. Civ. P. 7.1 by Attorney Rocky C. Weber on behalf of Plaintiff Pius X Catholic High School.(Weber, Rocky) (Entered: 02/24/2012)
9 CORPORATE DISCLOSURE STATEMENT pursuant to Fed. R. Civ. P. 7.1 by Attorney Rocky C. Weber on behalf of Plaintiff Catholic Social Services.(Weber, Rocky) (Entered: 02/24/2012)
10 Summons Requested as to The Honorable Deborah R. Gilg regarding Complaint, 1 . (Spohn, Katherine) (Entered: 02/28/2012)
11 Summons Requested as to The Honorable Eric Holder, Esq. regarding Complaint, 1 . (Spohn, Katherine) (Entered: 02/28/2012)
12 Summons Requested as to The Honorable Kathleen Sebelius, Secretary regarding Complaint, 1 . (Spohn, Katherine) (Entered: 02/28/2012)
13 Summons Requested as to The Honorable Hilda L. Solis, Secretary regarding Complaint, 1 . (Spohn, Katherine) (Entered: 02/28/2012)
14 Summons Requested as to The Honorable Timothy Geithner, Secretary regarding Complaint, 1 . (Spohn, Katherine) (Entered: 02/28/2012)

Case: 4:12-cv-03035-WKU-CRZ As of: 11/26/2013 09:21 AM CST 5 of 7

02/28/2012 02/28/2012 02/28/2012 02/28/2012
04/16/2012 04/16/2012 04/16/2012 04/16/2012 04/16/2012 04/16/2012 04/16/2012 04/16/2012 04/16/2012 04/17/2012
04/30/2012
04/30/2012
04/30/2012
05/03/2012

15 Summons Requested as to U.S. Department of Health and Human Services regarding Complaint, 1 . (Spohn, Katherine) (Entered: 02/28/2012)
16 Summons Requested as to U.S. Department of Treasury regarding Complaint, 1 . (Spohn, Katherine) (Entered: 02/28/2012)
17 Summons Requested as to U.S. Department of Labor regarding Complaint, 1 . (Spohn, Katherine) (Entered: 02/28/2012)
18 Summons Issued as to defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury, Deborah R. Gilg, and Eric Holder. YOU MUST PRINT YOUR ISSUED SUMMONS, WHICH ARE ATTACHED TO THIS DOCUMENT. PAPER COPIES WILL NOT BE MAILED. (TEL) (Entered: 02/28/2012)
19 NOTICE Summons Returned Executed by Attorney Katherine J. Spohn on behalf of Plaintiff State of Nebraska (Spohn, Katherine) (Entered: 04/16/2012)
20 SUMMONS Returned Executed upon defendant United States Department of Health and Human Services on 2/28/2012. (Spohn, Katherine) (Entered: 04/16/2012)
21 SUMMONS Returned Executed upon defendant United States Department of Treasury on 2/28/2012. (Spohn, Katherine) (Entered: 04/16/2012)
22 SUMMONS Returned Executed upon defendant Timothy F. Geithner on 2/28/2012. (Spohn, Katherine) (Entered: 04/16/2012)
23 SUMMONS Returned Executed upon defendant United States Department of Labor on 2/28/2012. (Spohn, Katherine) (Entered: 04/16/2012)
24 SUMMONS Returned Executed upon defendant Hilda L. Solis on 2/28/2012. (Spohn, Katherine) (Entered: 04/16/2012)
25 SUMMONS Returned Executed upon The Honorable Eric Holder, Esq. defendant United States Department of Health and Human Services. (Spohn, Katherine) (Entered: 04/16/2012)
26 SUMMONS Returned Executed upon The Honorable Deborah R. Gilg, United States Attorney for the District of Nebraska defendant United States Department of Health and Human Services. (Spohn, Katherine) (Entered: 04/16/2012)
27 SUMMONS Returned Executed upon defendant Kathleen Sebelius on 2/28/2012. (Spohn, Katherine) (Entered: 04/16/2012)
28 TEXT NOTICE OF INCORRECT EVENT used when filing the Summons Returned Executed filings 20 21 22 23 24 25 26 and 27 by Deputy Clerk. In the future, use the event Summons Returned Executed as to USA.(GJG) (Entered: 04/17/2012)
29 NOTICE of Appearance by Attorney Michelle R. Bennett on behalf of Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury (Bennett, Michelle) (Entered: 04/30/2012)
30 MOTION to Dismiss by Attorney Michelle R. Bennett on behalf of Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury.(Bennett, Michelle) (Entered: 04/30/2012)
31 BRIEF in support of MOTION to Dismiss 30 by Attorney Michelle R. Bennett on behalf of Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury.(Bennett, Michelle) (Entered: 04/30/2012)
32 MEMORANDUM AND ORDER regarding defendants MOTION to Dismiss 30 . The above−captioned action was randomly assigned to the undersigned magistrate judge for final disposition. To avoid any delay in ruling on the pending motion, if

Case: 4:12-cv-03035-WKU-CRZ As of: 11/26/2013 09:21 AM CST 6 of 7

05/24/2012
05/25/2012 05/30/2012 06/04/2012 06/13/2012 07/17/2012 07/17/2012 09/14/2012
09/14/2012 09/20/2012
09/21/2012

the parties consent to final disposition of the case by the undersigned magistrate judge, on or before May 24, 2012, they shall e−mail a consent form to the Clerk. In the absence of timely submitting the attached form in accordance with paragraph (1) of this order, the case will be reassigned to a district judge. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB) (Entered: 05/03/2012)
33 BRIEF in opposition to MOTION to Dismiss 30 by Attorney Katherine J. Spohn on behalf of Plaintiffs Sister Mary Catherine, CK, Catholic Mutual Relief Society of America, Catholic Social Services, Stacy Molai, Pius X Catholic High School, Bill Schuette, State of Florida, State of Nebraska, State of Ohio, State of Oklahoma, State of South Carolina, State of Texas.(Spohn, Katherine) (Entered: 05/24/2012)
34 REASSIGNMENT ORDER − This case is reassigned to Senior Judge Warren K. Urbom for disposition and assigned to Magistrate Judge Magistrate Judge Cheryl R. Zwart for judicial supervision and processing of all pretrial matters. Ordered by Chief Judge Laurie Smith Camp. (AOA) (Entered: 05/25/2012)
35 Unopposed MOTION to Extend Time to File Reply Brief by Attorney Michelle R. Bennett on behalf of Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury.(Bennett, Michelle) (Entered: 05/30/2012)
36 ORDER granting 35 Defendants' Motion for an Extension of Time to File Reply Brief. The defendants shall have on or before June 13, 2012, to file and serve their reply brief. Ordered by Senior Judge Warren K. Urbom. (EJL) (Entered: 06/04/2012)
37 REPLY BRIEF in support of MOTION to Dismiss 30 by Attorney Michelle R. Bennett on behalf of Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, United States Department of Health and Human Services, United States Department of Labor, United States Department of Treasury.(Bennett, Michelle) (Entered: 06/13/2012)
38 MEMORANDUM AND ORDER granting the Defendants' 30 Motion to Dismiss. The Plaintiff's complaint is dismissed without prejudice. Ordered by Senior Judge Warren K. Urbom. (MKR) (Entered: 07/17/2012)
39 JUDGMENT in accordance with the Memorandum and Order on Motion to Dismiss 38 . Judgment is entered in favor of the defendants and against the plaintiffs, and the plaintiffs complaint is dismissed without prejudice. Ordered by Senior Judge Warren K. Urbom. (MKR) (Entered: 07/17/2012)
40 NOTICE OF APPEAL regarding Judgment, Terminated Case,, 39 , Order on Motion to Dismiss 38 by Attorney Katherine J. Spohn on behalf of Plaintiffs Sister Mary Catherine, CK, Catholic Mutual Relief Society of America, Catholic Social Services, Stacy Molai, Pius X Catholic High School, Bill Schuette, State of Florida, State of Nebraska, State of Ohio, State of Oklahoma, State of South Carolina, State of Texas. Filing fee $ 455, receipt number 0867−2345384. (Spohn, Katherine) (Entered: 09/14/2012)
41 REQUEST FOR TRANSCRIPT before Senior Judge Warren K. Urbom No (Spohn, Katherine) (Entered: 09/14/2012)
42 MOTION CHANGE INDIVIDUAL PLAINTIFFS SURNAME by Attorney Katherine J. Spohn on behalf of Plaintiffs Sister Mary Catherine, CK, Catholic Mutual Relief Society of America, Catholic Social Services, Stacy Molai, Pius X Catholic High School, Bill Schuette, State of Florida, State of Nebraska, State of Ohio, State of Oklahoma, State of South Carolina, State of Texas.(Spohn, Katherine) (Entered: 09/20/2012)
43 MEMORANDUM AND ORDER granting 42 Motion to Change Individual Plaintiff's Surname. The clerk shall modify the docket to reflect that the name of individual Plaintiff Stacy Molai has been changed to Thomlison. Ordered by Magistrate Judge Cheryl R. Zwart. (MKR) (Entered: 09/24/2012)

Case: 4:12-cv-03035-WKU-CRZ As of: 11/26/2013 09:21 AM CST 7 of 7

09/24/2012
09/25/2012 08/21/2013 08/21/2013

44 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by Clerk to USCA regarding Notice of Appeal to USCA, 40 , Judgment 39 , Memorandum and Order on Motion to Dismiss 38 . Notice of Appeal filed on 9/14/2012 by Plaintiffs Sister Mary Catherine, CK, Catholic Mutual Relief Society of America, Catholic Social Services, Pius X Catholic High School, Bill Schuette, State of Florida, State of Nebraska, State of Ohio, State of Oklahoma, State of South Carolina, State of Texas, Stacy Thomlison. (MKR) (Entered: 09/24/2012)
45 SCHEDULING LETTER from USCA − 8th Circuit [12−3238] as to Notice of Appeal to USCA, 40 . (Attachments: # 1 letter)(MKR) (Entered: 09/25/2012)
46 COPY of Judgment from USCA − 8th Circuit [12−3238] Appellants' motion to dismiss the appeal is granted. The appeal is hereby dismissed in accordance with the Federal Rules of Appellate Procedure 49b0. The court's mandate shall issue forthwith. (MKR) (Entered: 08/21/2013)
47 MANDATE/JUDGMENT from USCA − 8th Circuit [12−3238] In accordance with the judgment of 08/21/2013, and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above− styled matter regarding Notice of Appeal to USCA, 40 . (MKR) (Entered: 08/21/2013)