Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 1 of 48 PageID 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROMAN CATHOLIC DIOCESE OF FORT WORTH,
Plaintiff, v.
KATHLEEN SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services; HILDA SOLIS, in her official capacity as Secretary of the U.S. Department of Labor, TIMOTHY GEITHNER, in his official capacity as Secretary of the U.S. Department of Treasury; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; U.S. DEPARTMENT OF LABOR; and U.S. DEPARTMENT OF TREASURY,
Defendants.

)

)

)

)

)

)

)

) )

Civil Action No. ____________

)

)

) )

DEMAND FOR JURY TRIAL

)

)

)

)

)

)

)

)

PLAINTIFF’S ORIGINAL COMPLAINT 1. This lawsuit is about one of America’s most cherished freedoms: the freedom to

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

right to abortion-inducing drugs, sterilization, and contraception. Those services are freely

available in the United States, and nothing prevents the U.S. Government itself from making

them more widely available. Here, however, the U.S. Government seeks to require Roman

Catholic Diocese of Fort Worth (“Plaintiff,” “Diocese of Fort Worth,” or the “Diocese”)—a

Roman Catholic entity—to violate its sincerely held religious beliefs by providing, paying for,

and/or facilitating access to those services. American history and tradition, embodied in the First

Amendment to the United States Constitution and the Religious Freedom Restoration Act

(“RFRA”), safeguard religious entities from such overbearing and oppressive governmental

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 2 of 48 PageID 2
action. Plaintiff therefore seeks relief in this Court to protect this most fundamental of American rights.
2. Since the founding of this country, religious organizations such as Plaintiff have been free to fulfill their religious beliefs through service to the underprivileged and underserved. As a result, the Diocese currently serves thousands of people whom the Government does not or cannot serve. Without Plaintiff’s assistance, many of these people would be without shelter, food, prenatal health, medical care, and vital educational services. Plaintiff is compelled by its religious beliefs to serve these people. Plaintiff is also compelled by its religious beliefs to avoid the provision of abortion-inducing drugs and the facilitation of sterilization services and contraception. But the U.S. Government has now promulgated regulations that attempt to force Plaintiff to violate its religious beliefs by either scaling back its social service or violating its beliefs on the sanctity of life. This government interference with Plaintiff’s religious beliefs violates the U.S. Constitution and federal law.
3. The U.S. Constitution and federal statutes protect religious organizations from governmental interference with their religious views—particularly minority religious views. The founders recognized, through their own experiences, that the mixture of government and religion is destructive to both institutions and divisive to the social fabric upon which the nation depends. The Constitution and federal law thus stand as a bulwark against oppressive government actions even if supported by a majority of citizens. This “wall of separation between church and state” is critical to the preservation of religious freedom. As the Supreme Court has recognized, “The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of civil authority.”
2

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 3 of 48 PageID 3
4. The Government is now attacking Plaintiff’s religious liberties. Federal law described below (the “U.S. Government Mandate”) requires religious organizations such as the Diocese to violate their centuries’ old teachings on the sanctity of human life by providing coverage for abortion-inducing drugs, sterilization services, contraception, and related counseling services. The Government has not shown any compelling need to force religious organizations to provide coverage for these services, and in fact, has chosen to make exemptions to the law both for religious and non-religious reasons. If the Government can force religious institutions to violate their beliefs in such a manner, there is no apparent limit to the Government’s power to interfere with the free practice of one’s religious beliefs.
5. Such trampling of religious freedom violates Plaintiff’s clearly established federal constitutional and statutory rights. The First Amendment also prohibits the Government from becoming excessively entangled in religious affairs and from interfering with a religious institution’s internal decisions concerning the organization’s religious structure, ministers, or doctrine. The U.S. Government Mandate tramples all of these rights.
BACKGROUND 6. Plaintiff Roman Catholic Diocese of Fort Worth is a Roman Catholic religious entity that provides a wide range of spiritual, educational, and social services to the greater Fort Worth community and surrounding counties, serving Catholics and non-Catholics alike. For example, the Diocese not only provides care and spiritual guidance for over 700,000 Catholics; but it also educates nearly 6,000 Catholic and non-Catholic students through the Diocese of Fort Worth Catholic School System and meets many human needs through the numerous charitable programs undertaken by its parishes. 7. The Diocese’s work is in every respect guided by and consistent with Roman Catholic belief, including the requirement that it serve those in need, regardless of their religion
3

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 4 of 48 PageID 4
or financial condition. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Benedict more recently put it, “love for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to her [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Pope Benedict XVI, Deus Caritas Est ¶ 22 (2006). And in Fort Worth, Bishop Vann has remarked, “Hospitality, welcoming others into the community of love and service which is the Church, has always been central to our understanding of ourselves.” Most Reverend Bishop Kevin W. Vann, J.C.D., D.D., No One is a Stranger in Christ (Jan. 18, 2007), available at http://www.fwdioc.org/bishop/Documents/pastoral_letters/1-18-07_pastoral_letter_english.pdf. Thus, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
8. Catholic beliefs also reflect the firm conviction that artificial interference with the creation of life is contrary to core Catholic values and beliefs.
9. Defendants (the “U.S. Government”) have promulgated various rules that force Plaintiff to violate its sincerely held religious beliefs. Under the U.S. Government Mandate, many Catholic and other religious organizations are required to provide health plans to employees that include and/or facilitate coverage for abortion-inducing drugs, sterilization, and contraception, in violation of their sincerely held religious beliefs. Ignoring broader religious exemptions from other federal laws, the Government has crafted a narrow exemption to this Mandate for certain “religious employers” who can convince the Government that they satisfy four criteria:
• “The inculcation of religious values is the purpose of the organization”;
4

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 5 of 48 PageID 5
• “The organization primarily employs persons who share the religious tenets of the organization”;
• “The organization primarily serves persons who share the religious tenets of the organization”; and
• “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.”
Thus, in order to safeguard their religious freedoms, religious employers must plead with government bureaucrats for a determination that the employers are sufficiently “religious.”
10. The Diocese does not know whether the Government will conclude that it satisfies the definition of a “religious employer” under the impermissibly vague terms of the exemption. This narrow definition of “religious employer” could be read to exclude it even though it is a “religious” organization under any reasonable definition of the term. And to learn whether it qualifies, Plaintiff must submit to an intrusive governmental investigation into whether, in the Government’s view, the Diocese’s “purpose” is the “inculcation of religious values”; whether it “primarily” employs “persons who share [its] religious tenets,” even though it hires many Catholics and non-Catholics; and whether it “primarily” serves such people, even though its schools, parishes, and social services are generally open to all, without regard to a person’s religious beliefs.
11. Consequently, even to attempt to qualify for the exemption directly, Plaintiff may be required to stop providing educational opportunities to non-Catholics, to stop serving nonCatholics, to fire non-Catholic employees, and to cease hiring non-Catholic persons—actions that would betray its religious commitment to serving all in need without regard to religious belief. Plaintiff’s only other options are to violate its own beliefs and teachings regarding marriage and the family or to disobey the U.S. Government Mandate.
5

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 6 of 48 PageID 6
12. The U.S. Government Mandate, including the exemption for certain “religious employers,” is irreconcilable with the First Amendment, the Religious Freedom Restoration Act, and other laws. The Government has not shown any compelling need to force Plaintiff to provide, pay for, and/or facilitate access to abortion-inducing drugs, sterilization, and contraception, or for requiring Plaintiff to submit to an intrusive governmental examination of its religious missions and related services. The Government also has not shown that the U.S. Government Mandate is narrowly tailored to advancing any interest in increasing access to these drugs and services, since they are already widely available and nothing prevents the Government from making them even more widely available through a duly-enacted law. The Government, therefore, cannot justify its decision to force Plaintiff to provide, pay for, and/or facilitate access to these drugs and services in violation of its sincerely held religious beliefs.
13. Accordingly, Plaintiff seeks a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiff, an injunction barring its enforcement, and an order vacating the Mandate. I. PRELIMINARY MATTERS
14. Plaintiff Roman Catholic Diocese of Fort Worth is a nonprofit religious organization organized and existing according to the Code of Canon Law of the Roman Catholic Church and recognized by the State of Texas. The Diocese includes Roman Catholic parishes, schools, and organizations in and around Fort Worth, Texas, under the care of Most Reverend Bishop Kevin W. Vann, J.C.D., D.D. The principal office of the Diocese is located in Fort Worth, Texas. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
15. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services. She is sued in her official capacity.
6

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 7 of 48 PageID 7
16. Defendant Hilda Solis is the Secretary of the U.S. Department of Labor. She is sued in her official capacity.
17. Defendant Timothy Geithner is the Secretary of the U.S. Department of Treasury. He is sued in his official capacity.
18. Defendant U.S. Department of Health and Human Services (“HHS”) is an executive agency of the United States within the meaning of the RFRA and the Administrative Procedure Act (“APA”).
19. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of the RFRA and the APA.
20. Defendant U.S. Department of Treasury is an executive agency of the United States within the meaning of the RFRA and the APA.
21. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1.
22. An actual, justiciable controversy currently exists between Plaintiff and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Plaintiff is uncertain as to its rights and duties in planning, negotiating, and/or implementing its group health insurance plan, its hiring and retention programs, and its social, educational, and charitable programs and ministries, as described below.
23. Plaintiff has no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
24. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
25. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1).
7

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 8 of 48 PageID 8
II. FACTUAL BACKGROUND 26. The Diocese of Fort Worth encompasses 87 parishes and two missions and serves
a region that comprises 28 counties (spanning 23,950 square miles) in North Texas, with a population of approximately 3,260,246, including 710,000 Roman Catholics. The counties within the Diocese are Bosque, Clay, Comanche, Cooke, Denton, Eastland, Erath, Foard, Hardeman, Hill, Hood, Jack, Johnson, Knox, Montague, Palo Pinto, Parker, Shackelford, Somervell, Stephens, Tarrant, Throckmorton, Wichita, Wilbarger, Wise, and Young Counties. The region was originally served by The Roman Catholic Diocese of Dallas, beginning in 1890, and subsequently by The Roman Catholic Diocese of Dallas-Fort Worth, beginning in 1953. On August 9, 1969, Pope Paul VI established the Diocese of Fort Worth to serve these 28 counties. The parishes and missions of the Diocese and its 20 schools are part of the Diocese.
27. The Diocese has been led since July 13, 2005 by Most Reverend Bishop Kevin W. Vann, J.C.D., D.D. Before he was named Bishop of the Diocese of Fort Worth, he served in the Diocese of Springfield, Illinois as pastor of Blessed Sacrament Parish, Vicar for Priests, and the Diocesan contact for Hispanic Ministry. He is the Texas Bishops’ Liaison to the Texas Mission Council and Texas Catholic hospitals. He is active in the United States through the U.S. Conference of Catholic Bishops (“USCCB”) and provides leadership for various initiatives at the national level, including as a member of the USCCB Subcommittee on Health Care, a member on the USCCB Committee on Canonical Affairs, and a member of the USCCB Committee on Migration. In November 2011 Bishop Vann was appointed by the Congregation for the Doctrine of the Faith as Ecclesiastical Delegate for the Pastoral Provision. In addition, Bishop Vann is a member of the Governing Council of the Personal Ordinariate of the Chair of St. Peter.
28. Bishop Vann is assisted in his ministry by eight Deans and a staff of numerous clergypersons, religious brothers and sisters, and lay people. The Diocese employs over 2,000
8

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 9 of 48 PageID 9
people, over 1,000 of whom are currently eligible for health plan benefits offered through the Diocese. The Diocese employs Catholic and non-Catholic persons, and it does not generally track how many of its employees are Catholic, members of other religious faiths, or areligious.
29. The Diocese carries out a tripartite spiritual, educational, and social service mission, reflecting the several dimensions of its ministry. The spiritual ministry of the Diocese is conducted largely through its parishes. Through the ministry of its priests, the Diocese ensures the regular availability of the sacraments to all Catholics living in or visiting Fort Worth and the surrounding 28 counties. It also provides numerous other opportunities for prayer, worship, and faith formation. In addition to overseeing the sacramental life of its parishes, the Diocese coordinates Catholic campus ministries for thousands of students at six colleges and universities within its borders, as well as hospital and other ministries throughout the region. Further, Bishop Vann and Diocesan priests work closely with the Military Archdiocese and the Personal Ordinariate of the Chair of St. Peter to ensure that the needs of their members who reside within the boundaries of the Diocese of Fort Worth are met.
30. The Diocese conducts much of its educational mission through its schools. The first Catholic school opened in Fort Worth in 1879, before public education was officially organized in the City. With a focus on faith formation, rigorous academics, and service to others, the Diocese’s schools are committed to assisting parents in preparing their children to meet the challenges of the modern world. Students of Diocesan schools are provided opportunities to develop basic academic and physical skills, to pursue knowledge, and to critically study and analyze the world in which they live. The schools of the Diocese follow curriculum standards based upon national Catholic education standards, core curriculum standards, and the social teachings of the Catholic Church. Each of the 20 Catholic schools
9

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 10 of 48 PageID 10
within the Diocese is fully accredited through the Texas Catholic Conference Accreditation Commission. All high schools hold additional accreditation through the Southern Association of Colleges and Schools.
31. There are 20 Diocesan schools, which educate approximately 6,500 high school and elementary students. The Diocese and its parishes operate 19 of these schools—2 secondary schools, 2 combined secondary/elementary schools, and 15 elementary schools—which employ approximately 700 teachers and other school staff. The remaining elementary school is operated separately from the Diocese but is considered a Diocesan school, and its employees are eligible for health plan benefits provided through the Diocese.
32. The schools of the Diocese offer a unique educational experience unlike any other in the area. In the words of Bishop Vann, “With the Faith well lived as the Catholic school’s primary goal, every facet of our Catholic school curriculum and program leads our students to know the loving presence of our God and directs them toward a commitment to a lifetime of service to others.” Letter from Most Reverend Kevin W. Vann, J.C.D., D.D., available at http://www.fwdioc.org/catholicschools/Documents/bishop_catholic_school_letter.pdf (last visited May 16, 2012). To that end, Diocesan schools have established three priorities that make them stand out from other educational institutions. Students are taught faith—not just the basics of Christianity, but how to have a relationship with God that will remain with them after they leave their Catholic school. Service, the giving of one’s time and effort to help others, is taught as both a requirement of faith and good citizenship. Finally, high academic standards help each student reach his or her potential. Nationally, over 99% of students in Catholic high schools graduate.
10

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 11 of 48 PageID 11
33. The success of this approach is demonstrated by Cassata High School, a nontraditional Diocesan school that offers a second chance for students who have not succeeded in a traditional educational setting. The school has agreements with local independent school districts and other traditional high schools to educate students who are struggling within their education system. The school emphasizes service and family spirit, and it provides individualized educational programs to meet the level and needs of its students. Under this approach, a high degree of success is achieved. Although students normally come to Cassata with lower than normal performance, nearly 100 percent of students graduate and sustain that positive success after graduation.
34. Cassata’s mission is to provide effective, quality education that enables students of all faiths, cultures and socio-economic backgrounds to raise their educational level and complete their secondary education. Indeed, over half of Cassata’s students are not Catholic, and approximately 90% of Cassata students received tuition assistance from the Diocese.
35. The Catholic educational system has demonstrated a particular dedication to teaching the underserved. For example, Our Mother of Mercy Catholic School was founded in 1929 when Bishop Patrick J. Lynch sought to establish a parish to serve the African-American community of southeast Fort Worth. Today, the school continues to serve a diverse student body, all or nearly all of whom are from minority backgrounds and 85% of whom are not Catholic.
36. Schools like Our Mother of Mercy are no less an expression and outgrowth of genuine Catholic belief because they primarily serve non-Catholics. Indeed, quite the opposite: the Diocese sees these schools as a vital part of its mission to offer to every student, in every place, a safe, morally sound, and academically rigorous education. As Diocesan superintendent
11

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 12 of 48 PageID 12
Donald Miller says, “We don’t do this because they are Catholic, but because we are.” Kathy Cribari Hamer, Catholic school change you peoples’ lives, bring them to Jesus, while educating for a better life, COMMUNIO, Sept. 10, 2009, at 7, available at http://www.fwdioc.org/bishop/Documents/pastoral_letters/9-10-09_communio_english.pdf.
37. Indeed, Diocesan schools welcome students in all financial conditions, from all backgrounds, and of any or no faith. Forty percent of students in Diocesan schools are from minority backgrounds, and many Diocesan students are not Catholic. To make a Catholic education available to as many children as possible, the Diocese and its parishes and schools expend substantial funds in tuition assistance programs. During the 2011-2012 school year, the Diocese and its parishes and schools awarded approximately $2 million in tuition assistance. Tuition assistance from the Diocese is awarded to Catholic and non-Catholic students on the basis of need and without regard to religious belief. Olga Ferris, Ed.D., former principal of St. George Catholic School in Fort Worth, has remarked, “If our parents demonstrate a real desire for Catholic education for their children, then lack of finances will not stand in the way.” Id. And Charlene Hymel, former principal of St. Rita Catholic School and presently the Assistant Superintendent of Schools recently observed, “We are breaking the cycle of poverty. We had one mother who volunteered at St. Rita’s and while she was helping in class, she listened and learned to read. Now she and her daughter read together.” Id.
38. Much of the social service and charitable work of the Diocese is performed through its 89 parishes and missions, which, like the 20 schools discussed above, are organized as part of the Diocese. The parishes within the Diocese maintain their own charitable efforts, serving the needs of their communities with programs including ESL classes, food pantries for the poor, adopt-a-family programs at Christmas, meals served to the homeless, outreach and
12

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 13 of 48 PageID 13
support for women in crisis pregnancies, health-care assistance programs, pastoral care to the sick, prisoner and immigrant ministry, and visits to nursing homes and hospitals. The Diocese does not keep a tally of the religious beliefs of persons served through these outreach programs, nor does it request to know the religious affiliation of those served.
39. In summary, the Diocese of Fort Worth, a nonprofit religious organization organized and existing according to the Code of Canon Law of the Roman Catholic Church and recognized by the State of Texas, employs approximately 2,000 persons, over 1,000 of whom are eligible for health plan benefits offered through the Diocese. The Diocese employs Catholic and non-Catholic persons, but it does not generally track how many of its employees are (or are not) Catholic. The Diocese includes 20 Diocesan schools that serve approximately 6,500 students, of whom 40% are from minority backgrounds and many of whom are not Catholic. These schools employ approximately 700 teachers and other staff. And through its parishes, the Diocese serves an indeterminate number of persons who are homeless, hungry, elderly, or otherwise in need of material, educational, or other assistance, without regard to religious belief. The Diocese does not generally know how many of those whose needs are met through the social service programs of its parishes are Catholic. In order to determine those statistics, the Diocese would be required to ask the religious affiliation of all individuals that it serves. That inquiry, however, would substantially burden the Diocese’s exercise of religion.
40. It is therefore unclear whether the Government will conclude that the Diocese qualifies as a “religious employer” under the narrow exemption from compliance with the U.S. Government Mandate.
41. Moreover, determining whether an organization—such as the Diocese—qualifies for the exemption will require the Government to engage in an intrusive inquiry, based on an
13

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 14 of 48 PageID 14
understanding of religion inconsistent with the Catholic faith, into whether, in the view of the Government, (1) the Diocese’s “purpose” is the “inculcation of religious values,” (2) the Diocese “primarily” employs “persons who share [its] religious tenets,” even though it employs many Catholics and non-Catholics, and (3) the Diocese “primarily” serves such people, even though its schools and social services are open to all.
42. Regardless of outcome, the Diocese strongly objects to such an intrusive and misguided governmental investigation into its religious mission.
43. Finally, the Diocese provides health insurance coverage to employees through the Christian Brothers Employee Benefit Trust. Christian Brothers Employee Benefit Trust is a selffunded church plan which serves employers of the Catholic Church by providing medical benefits to health plan participants. Health plan materials specifically state that “the Trust works within the framework of the tenets of the Catholic Church.” To that end, the Trust health plan does not cover abortion or sterilization drugs or services, nor does it cover contraceptives except when prescribed to treat a medical illness and approved by the Trust.
44. Moreover, the Christian Brothers Employee Benefit Trust health plan offered by the Diocese does not meet the definition of a “grandfathered” plan under the Patient Protection and Affordable Care Act. Since March 2010, changes to the health plan have resulted in increases to plan deductible amounts that exceed “medical inflation” as defined in 26 C.F.R. § 549815-1251T. Additionally, health plan materials provided to participants or beneficiaries have not included a statement that the plan is believed to be a grandfathered plan, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(ii).
45. The plan year for the Diocese begins on July 1.
14

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 15 of 48 PageID 15
III. STATUTORY AND REGULATORY BACKGROUND A. Statutory Background 46. In March 2010, Congress enacted the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the “Affordable Care Act” or the “Act”). The Affordable Care Act established many new requirements for “group health plan[s],” broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care ... to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1).
47. As relevant here, the Act requires an employer’s group health plan to cover certain women’s “preventive care.” Specifically, it indicates that a “group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for— (4) with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg-13(a)(4)). Because the Act prohibits “cost sharing requirements,” the health plan must pay for the full costs of these “preventive care” services without any deductible or co-payment.
48. “[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.” 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. 41,726, 41,731 (July 19, 2010); 42 U.S.C. § 18011. These so-called “grandfathered health plans do not have to meet the requirements” of the U.S. Government
15

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 16 of 48 PageID 16
Mandate. 75 Fed. Reg. at 41,731. The Government estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732.
49. Violations of the Affordable Care Act can subject an employer and an insurer to substantial monetary penalties.
50. Under the Internal Revenue Code, employers who fail to provide all coverage required by the U.S. Government Mandate will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
51. Additionally, under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to an assessment of $100 a day per individual. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventive Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Affordable Care Act).
52. Under the Public Health Service Act, the Secretary of HHS may impose a monetary penalty of $100 a day per individual where an insurer fails to provide the coverage required by the U.S. Government Mandate. See 42 U.S.C. § 300gg-22(b)(2)(C)(i); see also Cong. Research Serv., RL 7-5700 (asserting that this penalty applies to insurers who violate the “preventive care” provision of the Affordable Care Act).
53. ERISA may provide for additional penalties. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700
16

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 17 of 48 PageID 17
(asserting that these fines can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act).
54. Several of the Act’s provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the “preventive care” required by § 300gg-13(a)(4) should exclude all abortion-related services. The Act itself states that “nothing in this title (or any amendment made by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i). And the Act leaves it to “the issuer of a qualified health plan,” not the Government, “[to] determine whether or not the plan provides coverage of [abortion].” Id. § 18023(b)(1)(A)(ii). Likewise, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, states: “None of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011).
55. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009). To
17

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 18 of 48 PageID 18
avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as “budget reconciliation” that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed adequately to prohibit federal funding of abortion. In an attempt to address these concerns, President Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Executive Order 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010). The Act was, therefore, passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
B. Regulatory Background – Defining “Preventive Care” and the Narrow Exemption
56. In less than two years, Defendants promulgated the U.S. Government Mandate, subverting the Act’s clear purpose to protect the rights of conscience. The U.S. Government Mandate, moreover, was implemented contrary to the normal procedural rules governing the promulgation and implementation of rules of this magnitude.
57. In particular, on July 19, 2010, Defendants issued initial interim final rules concerning § 300gg-13(a)(4)’s requirement that group health plans provide coverage for women’s “preventive care.” Interim Final Rules, 75 Fed. Reg. 41,726. Defendants dispensed with notice-and-comment rulemaking for these rules. Even though federal law had never required coverage of abortion-inducing drugs, sterilization, or contraceptives, Defendants claimed both that the APA did not apply to the relevant provisions of the Affordable Care Act
18

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 19 of 48 PageID 19
and that “it would be impracticable and contrary to the public interest to delay putting the provisions in these interim final regulations in place until a full public notice and comment process was completed.” Id. at 41,730.
58. The interim final rules referred to the Affordable Care Act’s statutory language. They indicated that “a group health plan ... must provide coverage for all of the following items and services, and may not impose any cost-sharing requirements (such as a copayment, coinsurance, or deductible) with respect to those items or services: ... (iv) With respect to women, to the extent not described in paragraph (a)(1)(i) of this section, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” Interim Final Rules, 75 Fed. Reg. at 41,759 (codified at 45 C.F.R. § 147.130(a)(iv)).
59. The interim final rules, however, failed to identify the women’s “preventive care” that Defendants planned to require employer group health plans to cover. 42 U.S.C. § 300gg13(a)(4). Instead, Defendants noted that “[t]he Department of HHS [was] developing these guidelines and expects to issue them no later than August 1, 2011.” Interim Final Rules, 75 Fed. Reg. at 41,731.
60. Defendants permitted concerned entities to provide written comments about the interim final rules. See id. at 41,726. But, as Defendants have conceded, they did not comply with the notice-and-comment requirements of the APA. Id. at 41,730.
61. In response, several groups engaged in a lobbying effort to persuade Defendants to include various abortion-inducing drugs and contraceptives in the “preventive care” requirements for group health plans. See, e.g., Press Release, Planned Parenthood, Planned Parenthood Supports Initial White House Regulations on Preventive Care (July 14, 2010),
19

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 20 of 48 PageID 20
available at http://www.plannedparenthood.org/about-us/newsroom/press-releases/plannedparenthood-supports-initial-white-house-regulations-preventive-care-highlights-need-new33140.htm. Other commenters noted that “preventive care” could not reasonably be interpreted to include such practices. These groups indicated that pregnancy was not a disease that needed to be “prevented,” and that a contrary view would intrude on the sincerely held beliefs of many religiously affiliated organizations. See, e.g., Comments of U.S. Conference of Catholic Bishops, at 1-2 (Sept. 17, 2010), available at http://old.usccb.org/ogc/preventive.pdf.
62. On August 1, 2011, HHS announced the “preventive care” services that group health plans would be required to cover. See Press Release, HHS, Affordable Care Act Ensures Women Receive Preventive Services at No Additional Cost (Aug. 1, 2011), available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html. Again acting without notice-andcomment rulemaking, HHS announced these guidelines through a press release rather than enactments in the Code of Federal Regulations or statements in the Federal Register.
63. The press release made clear that the guidelines were developed by a nongovernmental “independent” organization, the Institute of Medicine (“IOM”). See id. In developing the guidelines, IOM invited certain groups to make presentations on preventive care. On information and belief, no groups that oppose government-mandated coverage of contraception, abortion, and related education and counseling were among the invited presenters. Comm. on Preventive Servs. for Women, Inst. of Med., Clinical Preventive Services for Women app. B at 217-21 (2011), http://www.nap.edu/openbook.php?record_id=13181&page=R1.
64. The IOM’s own report, in turn, included a dissent that suggested that the IOM’s recommendations were made on an unduly short time frame dictated by political considerations and without the appropriate transparency for all concerned persons.
20

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 21 of 48 PageID 21
65. In direct contradiction of the central compromise necessary for the Affordable Care Act’s passage and President Obama’s promise to protect religious liberty, HHS’s guidelines required insurers and group health plans to cover “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See Health Res. Servs. Admin., Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/ (last visited April 25, 2012). FDA-approved contraceptives that qualify under these guidelines include drugs that induce abortions. For example, the FDA has approved “emergency contraceptives” such as the morning-after pill (otherwise known as Plan B), which can prevent a fertilized embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions of living embryos.
66. A few days later, on August 3, 2011, Defendants issued amendments to the interim final rules that they had enacted in July 2010. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621 (Aug. 3, 2011). Defendants issued the amendments again without notice-and-comment rulemaking on the same grounds that they had provided for bypassing the APA with the original rules. See id. at 46,624.
67. When announcing the amended regulations, Defendants ignored the view that “preventive care” should exclude abortion-inducing drugs, sterilization, or contraceptives that do not prevent disease. Instead, they noted only that “commenters [had] 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.” Id. at 46,623.
21

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 22 of 48 PageID 22
68. Defendants then sought “to provide for a religious accommodation that respect[ed]” only “the unique relationship between a house of worship and its employees in ministerial positions.” Id.
69. Specifically, the regulatory exemption ignored definitions of religious employers already existing in federal law and, instead, covered only those employers whose purpose is to inculcate religious values, and who employ and serve primarily individuals of the same religion. It provides in full:
(A) In developing the binding health plan coverage guidelines specified in this paragraph (a)(1)(iv), the Health Resources and Services Administration shall be informed by evidence and may establish exemptions from such guidelines with respect to group health plans established or maintained by religious employers and health insurance coverage provided in connection with group health plans established or maintained by religious employers with respect to any requirement to cover contraceptive services under such guidelines.
(B) For purposes of this subsection, a “religious employer” is an organization that meets 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.
Id. at 46,626 (codified at 45 C.F.R. § 147.130(a)(iv)(A)-(B)). 70. The exemption excludes the health plans of all other religiously affiliated
employers that view their missions as providing charitable, educational, and employment opportunities to all those who request it, regardless of their religious faith.
22

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 23 of 48 PageID 23
71. Moreover, determining whether an organization is sufficiently “religious” to qualify for the exemption, requires an unconstitutionally invasive inquiry into an organization’s religious beliefs and practices. For example, the Government must determine the “religious tenets” of an organization and the individuals it employs and serves; it must determine whether the organization “primarily” employs and “primarily” serves individuals who “share” the organization’s “religious tenets”; and it must determine whether “the purpose” of the organization is the “inculcation of religious values.”
72. When issuing this interim final rule, Defendants did not explain why they constructed such a narrow religious exemption. Nor did Defendants explain why they refused to incorporate other “longstanding Federal laws to protect conscience” that President Obama’s executive order previously had promised to respect. See Executive Order 13535 (Mar. 24, 2010), 75 Fed. Reg. 15,599. ERISA, for example, has long excluded “church plans” from its requirements, more broadly defined to cover organizations that share religious bonds with a church. See 29 U.S.C. §§ 1002(33)(C)(iv), 1003. Likewise, the Affordable Care Act’s requirement that all individuals maintain minimum essential coverage excludes those individuals who have a religious objection to receiving benefits from public or private insurance. 26 U.S.C. §§ 1402(g)(1), 5000A(d)(2). Nor did Defendants consider whether they had a compelling interest to require religiously affiliated employers to include services in their health plans that were contrary to their religious beliefs, or whether Defendants could achieve their views of sound policy in a more religiously accommodating manner.
73. Suggesting that they were open to good-faith discussion, Defendants once again permitted parties to provide comments to the amended rules. Numerous organizations expressed the same concerns that they had before, noting that the mandated services should not be viewed
23

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 24 of 48 PageID 24
as “preventive care.” They also explained that the religious exemption was “narrower than any conscience clause ever enacted in federal law, and narrower than the vast majority of religious exemptions from state contraceptive mandates.” Comments of U.S. Conference of Catholic Bishops, at 1-2 (Aug. 31, 2011), available at http://www.usccb.org/about/generalcounsel/rulemaking/upload/comments-to-hhs-on-preventive-services-2011-08.pdf.
74. Three months later, “[a]fter evaluating [the new] comments” to the interim final rules, Defendants gave their response. They did not request further discussion or make attempts at compromise. Nor did they explain the basis for their decision. Instead, Defendant Sebelius issued a short, Friday-afternoon press release, announcing, with little analysis or reasoning, that HHS had decided to keep the exemption unchanged, but creating a temporary enforcement safe harbor whereby “[n]onprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law.” See Press Release, HHS, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012), available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html. The release effectively gave objecting religious institutions one year to figure out how to violate their consciences. Taken together, these various rules and press releases amount to a mandate that requires many religiously affiliated organizations to provide coverage for services to their employees that are directly contrary to their religious beliefs.
75. On February 10, 2012, after a continuing public outcry against the U.S. Government Mandate and its exceedingly narrow conscience protections, the White House held a press conference and issued another press release about the U.S. Government Mandate. The White House announced that it had come up with a policy to “accommodate” religious
24

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 25 of 48 PageID 25
objections to the U.S. Government Mandate, according to which the insurance companies of religious organizations that object to providing coverage for abortion-inducing drugs, sterilization, or contraceptives “will be required to directly offer . . . contraceptive care [to plan participants] free of charge.” White House, Fact Sheet: Women’s Preventive Services and Religious Institutions (Feb. 10, 2012), available at http://www.whitehouse.gov/the-pressoffice/2012/02/10/fact-sheet-women-s-preventive-services-and-religious-institutions.
76. Despite objections that this “accommodation” did nothing of substance to protect the right of conscience, when asked if there would be further room for compromise, White House Chief of Staff Jacob Lew responded: “No, this is our plan.” David Eldridge & Cheryl Wetzstein, White House Says Contraception Compromise Will Stand, The Washington Times, Feb. 12, 2012, http://www.washingtontimes.com/news/2012/feb/12/white-house-birth-controlcompromise-will-stand/print/.
77. Defendants subsequently explained in the Federal Register that they “plan[ned] to initiate a rulemaking to require issuers to offer insurance without contraception coverage to [an objecting religious] 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.” 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, 8728 (Feb. 15, 2012). The Federal Register further asserted that the rulemaking would “achieve the same goals for self-insured group health plans.” Id.
78. Defendants then “finalize[d], without change,” the interim final rules containing the religious employer exemption, 77 Fed. Reg. at 8729, and issued guidelines regarding the previously announced “temporary enforcement safe harbor” for “non-exempted, non-profit
25

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 26 of 48 PageID 26
religious organizations with religious objections to such coverage.” Id. at 8725; see Ctr. for Consumer Info. & Ins. Oversight, Guidance on the Temporary Enforcement Safe Harbor (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210Preventive-Services-Bulletin.pdf.
79. On March 16, 2012, Defendants issued an Advance Notice of Proposed Rulemaking (“ANPRM”) seeking comment on various ways to structure the proposed accommodation. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). The proposed scenarios require an “independent entity” to provide coverage for the objectionable services at no cost to the participants. But private entities do not provide insurance coverage “for free.” Moreover, even if these proposals were adopted, they would still require religious organizations to provide, pay for, and/or facilitate access to the objectionable services. Finally, it is also unclear whether the Government has statutory authority to implement each of the possibilities referenced in the ANPRM.
80. The ANPRM does not alter existing law. It merely states an intention to do so at some point in the future. But a promise to change the law, whether issued by the White House or in the form of an ANPRM does not, in fact, change the law. The U.S. Government Mandate is therefore the current, operative law. Plaintiff has until the start of the next plan year following August 1, 2013, to come into compliance with this law. IV. THE U.S. GOVERNMENT MANDATE IMPOSES AN IMMEDIATE AND
SUBSTANTIAL BURDEN ON PLAINTIFF’S RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiff’s Religious
Beliefs 81. Responding to the U.S. Government Mandate, Bishop Vann stated that it “is an unprecedented and untenable abrogation of religious freedom in the United States” that “forces Catholic institutions—hospitals, schools, social service agencies—to either violate the
26

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 27 of 48 PageID 27
fundamental tenets of their faith or stop offering health insurance coverage to their employees, students, and clients.” Texas Catholic Conference, TCC speaks out against HHS rule, calls for action, NORTH TEXAS CATHOLIC, Jan. 21, 2012, available at http://www.fwdioc.org/ntc/Pates/TCCHHS.aspx. Indeed, since the founding of this country, one of the basic freedoms central to our society and legal system is that individuals and institutions are entitled to freedom of conscience and religious practice. As noted by Thomas Jefferson, “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.” Thomas Jefferson, Letter to the Society of the Methodist Episcopal Church at New London, Conn. (Feb. 4, 1809). Bishop Vann echoes, “The gift of liberty, especially the gift to live our faith fully and freely is one of the unique and priceless gifts of living in the United States. Our Founding Fathers, in the Bill of Rights of the Constitution, listed as the first of all inalienable rights owed to the human person the right to freedom of religion.” Most Reverend Kevin W. Vann, J.C.D., D.D., The HHS Mandate is a direct threat to our religious freedom in the United States, NORTH TEXAS CATHOLIC, Feb. 17, 2012, available at http://www.fwdioc.org/ntc/Pages/hhsbishop.aspx.
82. The U.S. Government Mandate seeks to require Plaintiff to provide, pay for, and/or facilitate access to services that are contrary to its religious beliefs. It thus substantially burdens Plaintiff’s firmly held religious beliefs.
83. The U.S. Government Mandate also seeks to compel Plaintiff to fund “patient education and counseling for all women with reproductive capacity.” It therefore compels Plaintiff to pay for, provide, and/or facilitate speech that is contrary to its firmly held religious beliefs.
27

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 28 of 48 PageID 28
84. Although the U.S. Government Mandate contains a narrow religious exemption, in order to qualify, religious organizations must submit to an invasive governmental inquiry regarding their purpose and religious beliefs. Requiring Plaintiff to submit to this governmentconducted religious test likewise substantially burdens its firmly held religious beliefs.
85. It is unclear how the Government defines or will interpret “the purpose” of an organization.
86. It is unclear how the Government defines or will interpret vague terms, such as “primarily,” “share,” and “religious tenets.”
87. It is unclear how the Government will ascertain the “religious tenets” of an organization, those it employs, and those it serves.
88. It is unclear how much overlap the Government will require for religious tenets to be “share[d].”
89. Any attempt by Plaintiff to qualify for the narrow religious employer exemption by restricting its charitable and educational mission to coreligionists would have devastating effects on the communities Plaintiff serves.
90. Indeed, the Government does not even allow Plaintiff to avoid the Government Mandate by exiting the health care market. Eliminating its employee group health plan or refusing to provide plans that cover abortion-inducing drugs, sterilization, or contraceptives would expose Plaintiff to substantial fines. It is no “choice” to leave those employees scrambling for health insurance while subjecting Plaintiff to significant fines for breaking the law. Yet that is what the U.S. Government Mandate requires for Plaintiff to adhere to its religious beliefs.
28

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 29 of 48 PageID 29
91. Nor would the opaque, promised “accommodation”—even if it were law, which it is not—relieve Plaintiff from the unconscionable position in which the U.S. Government Mandate currently puts it, for numerous reasons.
92. First, the promised “accommodation” would not alter the fact that Plaintiff would be required to facilitate practices that run directly contrary to its beliefs. Catholic teaching does not simply require Catholic institutions to avoid directly paying for practices that are viewed as intrinsically immoral. It also requires them to avoid actions that facilitate those practices.
93. Second, any requirement that insurance companies or other independent entities provide preventive services “free of charge” is illusory. For-profit entities do not provide services for free. Instead, increased costs are passed through to consumers in the form of higher premiums or fees. Under the proposed accommodation, doctors will still have to be paid to prescribe the objectionable services and drug companies and pharmacists will still have to be paid for providing them. Hypothetical future savings cannot be used to pay those fees; rather, the money will necessarily be derived from increased premiums or fees.
94. Third, the “accommodation” does not affect the narrow exemption applicable to “religious employers.” To qualify for that narrow exemption, religious organizations must submit to an invasive governmental inquiry. Requiring Plaintiff to submit to this governmentconducted test to determine if Plaintiff is sufficiently religious is inappropriate and substantially burdens its firmly held religious beliefs.
95. Finally, as noted herein, the U.S. Government Mandate is burdening Plaintiff’s religious beliefs right now. Plaintiff cannot possibly wait until August 1, 2013, to determine how to respond to the U.S. Government Mandate.
29

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 30 of 48 PageID 30
96. In short, while the President claimed to have “f[ou]nd a solution that works for everyone” and that ensures that “[r]eligious liberty will be protected,” in reality, his promised “accommodation” does neither.
97. Accordingly, unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiff’s religious beliefs.
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability
98. The U.S. Government Mandate is not a neutral law of general applicability. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with certain religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
99. For example, the U.S. Government Mandate exempts all “grandfathered” plans from its requirements.
100. The Government has also crafted a religious exemption to the U.S. Government Mandate that favors certain religions over others. As noted, it applies only to plans sponsored by religious organizations that have, as their “purpose,” the “inculcation of religious values”; that “primarily” serve individuals that share their “religious tenets”; and that “primarily” employ such individuals. 45 C.F.R. § 147.130(a)(iv)(B).
101. This narrow exemption may protect some religious organizations. But it does not protect the many Catholic and other religious organizations that educate students of varying religious beliefs, provide vital social services to the individuals of varying religious beliefs, and
30

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 31 of 48 PageID 31
employ individuals of varying religious beliefs. The U.S. Government Mandate thus discriminates against such religious organizations because of their religious commitment to educate, serve, and employ people of varying faiths.
102. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long been a staunch supporter of abortion rights and a vocal critic of Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius declared that “we are in a war,” presumably with those entities, like Plaintiff, whose beliefs differ from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser.
103. Consequently, on information and belief, Plaintiff alleges that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
104. The U.S. Government Mandate is not narrowly tailored to promoting a compelling governmental interest.
105. The U.S. Government has no compelling interest in forcing Plaintiff to violate its sincerely held religious beliefs by requiring it to provide, pay for, or facilitate access to abortioninducing drugs, sterilizations, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover,
31

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 32 of 48 PageID 32
these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plaintiff does inhibits any individual from exercising that right.
106. Even assuming the interest was compelling, the Government has numerous alternatives to furthering that interest other than forcing Plaintiff to violate its religious beliefs. For example, the Government could provide or pay for the objectionable services through expansion of its existing network of family planning clinics funded by HHS under Title X or through other programs established by a duly enacted law. Or, at a minimum, it could create a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiff to violate its conscience is the least restrictive means of furthering its interest.
107. The U.S. Government Mandate, moreover, would simultaneously undermine both religious freedom—a fundamental right enshrined in the U.S. Constitution—and access to the wide variety of social and educational services that Plaintiff provides. For example, the Diocese educates and provides tuition assistance to many inner-city children who often have few other alternatives to schools deemed by the Texas Education Agency to be academically unacceptable. Cassata High School, a Diocesan school, provides individualized education programs to students who could not succeed in a traditional education environment. And the Diocese provides support and assistance to women in crisis pregnancies. As President Obama acknowledged in his February 10th announcement, religious organizations like Plaintiff do “more good for a community than a government program ever could.” The U.S. Government Mandate, however, puts these good works in jeopardy.
32

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 33 of 48 PageID 33
108. That is unconscionable. Accordingly, Plaintiff seeks a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiff, an injunction barring its enforcement, and an order vacating the Mandate.
D. The U.S. Government Mandate’s Religious Employer Exemption Excessively Entangles the Government In Religion And Interferes With Religious Institutions’ Religious Doctrine
109. The U.S. Government Mandate’s religious employer exemption further excessively entangles the Government in defining the purpose and religious tenets of each organization and its employees and beneficiaries.
110. In order to determine whether Plaintiff—or any other religious organization— qualifies for the exemption, the Government would have to identify the organization’s “religious tenets” and determine whether “the purpose” of the organization is to “inculcate” those tenets.
111. The Government would then have to conduct an inquiry into the practices and beliefs of the individuals that the organization ultimately employs, educates, and serves.
112. The Government would then have to compare and contrast those religious practices and beliefs to determine whether and how many of them are “share[d].”
113. Regardless of outcome, this inquiry is unconstitutional, and Plaintiff strongly objects to such an intrusive governmental investigation into an organization’s religious mission.
114. The religious employer exemption is based on an improper Government determination that “inculcation” is the only legitimate religious purpose.
115. The Government should not base an exemption on an assessment of the “purity” or legitimacy of an institution’s religious purpose.
116. By limiting that legitimate purpose to inculcation, at the expense of other sincerely held religious purposes, the U.S. Government Mandate interferes with religious autonomy. Religious institutions have the right to determine their own religious purpose,
33

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 34 of 48 PageID 34
including religious purposes broader than “inculcation,” without Government interference and without losing their religious liberties.
117. Defining religion based on employing and serving primarily people who share the organization’s religious tenets directly contradicts Plaintiff’s sincerely held religious beliefs regarding its religious mission to serve all people, regardless of whether or not they share the same faith.
E. The U.S. Government Mandate Is Causing Present Hardship to Plaintiff That Should Be Remedied by a Court
118. The U.S. Government Mandate is already causing serious, ongoing hardship to Plaintiff that merits judicial relief now.
119. Health plans do not take shape overnight. Many analyses, negotiations, and decisions must occur each year before Plaintiff can offer a health benefits package to its employees. For example, an employer using an outside insurance trust—like Plaintiff—must work with actuaries to evaluate its funding reserves, and then negotiate with the insurer to determine the cost of the products and services it wants to offer its employees. An employer that is self-insured, after consulting with its actuaries, must similarly negotiate with its third-party administrator.
120. Under normal circumstances, Plaintiff must begin the process of determining its health care package for a plan year at least one year before the plan year begins. The multiple levels of uncertainty surrounding the U.S. Government Mandate make this already lengthy process even more complex.
121. For example, if Plaintiff decides that the only tolerable option is to attempt to qualify as a “religious employer” under the U.S. Government Mandate, it will need to undertake
34

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 35 of 48 PageID 35
a major overhaul of its organizational structure, hiring practices, and the scope of its programming. This process could take years.
122. In addition, if Plaintiff does not comply with the U.S. Government Mandate, it may be subject to annual government fines and penalties. Plaintiff requires time to budget for any such additional expenses.
123. The U.S. Government Mandate and its uncertain legality, moreover, undermine Plaintiff’s ability to hire and retain employees.
124. Plaintiff therefore needs judicial relief now in order to prevent the serious, ongoing harm that the U.S. Government Mandate is already imposing on it.
CAUSES OF ACTION COUNT I
Substantial Burden on Religious Exercise in Violation of RFRA
125. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 126. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 127. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise. 128. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 129. The U.S. Government Mandate requires Plaintiff to provide, pay for, and/or facilitate practices and speech that are contrary to its religious beliefs.
35

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 36 of 48 PageID 36
130. In order to qualify for the “religious employer” exemption to the U.S. Government Mandate, Plaintiff must submit to an intrusive government inquiry into its religious beliefs.
131. The U.S. Government Mandate substantially burdens Plaintiff’s exercise of religion.
132. The Government has no compelling governmental interest to require Plaintiff to comply with the U.S. Government Mandate.
133. Requiring Plaintiff to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
134. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiff, Defendants have violated RFRA.
135. Plaintiff has no adequate remedy at law. 136. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 137. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 138. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 139. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 140. The U.S. Government Mandate requires Plaintiff to provide, pay for, and/or facilitate practices and speech that are contrary to its religious beliefs.
36

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 37 of 48 PageID 37
141. In order to qualify for the “religious employer” exemption to the U.S. Government Mandate, Plaintiff must submit to an intrusive government inquiry into its religious beliefs.
142. The U.S. Government Mandate substantially burdens Plaintiff’s exercise of religion.
143. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing drugs, sterilization, contraception and related education and counseling.
144. The U.S. Government Mandate is not a neutral law of general applicability, because it discriminates against certain religious viewpoints and targets certain religious organizations for disfavored treatment. Defendants enacted the U.S. Government Mandate despite being aware of the substantial burden it would place on Plaintiff’s exercise of religion.
145. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech and to freedom from excessive government entanglement with religion.
146. The Government has no compelling governmental interest to require Plaintiff to comply with the U.S. Government Mandate.
147. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
148. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiff’s religious exercise in violation of the Free Exercise Clause of the First Amendment.
37

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 38 of 48 PageID 38
149. Plaintiff has no adequate remedy at law. 150. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT III Excessive Entanglement in Violation of the Free Exercise and Establishment Clauses of the First Amendment 151. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 152. The Free Exercise Clause and the Establishment Clause of the First Amendment prohibit intrusive government inquiries into the religious beliefs of individuals and institutions, and other forms of excessive entanglement between religion and Government. 153. This prohibition on excessive entanglement protects organizations as well as individuals. 154. In order to qualify for the exemption to the U.S. Government Mandate for “religious employers,” entities must submit to an invasive government investigation into an organization’s religious beliefs, including whether the organization’s “purpose” is the “inculcation of religious values” and whether the organization “primarily employs” and “primarily serves” individuals who share the organization’s religious tenets. 155. The U.S. Government Mandate thus requires the Government to engage in intrusive inquiries and judgments regarding questions of religious belief or practice. 156. The U.S. Government Mandate results in an excessive entanglement between religion and Government. 157. The U.S. Government Mandate is therefore unconstitutional and invalid. 158. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 159. Plaintiff has no adequate remedy at law.
38

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 39 of 48 PageID 39
160. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT IV Religious Discrimination in Violation of the Free Exercise and Establishment Clauses of the First Amendment 161. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 162. The Free Exercise Clause and the Establishment Clause of the First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference. 163. This mandate of equal treatment protects organizations as well as individuals. 164. The U.S. Government Mandate’s narrow exemption for certain “religious employers” but not others discriminates on the basis of religious views or religious status. 165. The U.S. Government Mandate’s definition of religious employer likewise discriminates among different types of religious entities based on the nature of those entities’ religious beliefs or practices. 166. The U.S. Government Mandate’s definition of religious employer furthers no compelling governmental interest. 167. The U.S. Government Mandate’s definition of religious employer is not narrowly tailored to further a compelling governmental interest. 168. The enactment and impending enforcement of the U.S. Government Mandate violate the Free Exercise Clause and the Establishment Clause of the First Amendment. 169. Plaintiff has no adequate remedy at law. 170. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
39

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 40 of 48 PageID 40
COUNT V Interference in Matters of Internal Church Governance in Violation of the Free Exercise and Establishment Clauses of the First Amendment 171. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 172. The Free Exercise Clause and Establishment Clause protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. 173. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine. 174. Under these Clauses, the Government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself. 175. Plaintiff is a religious organization affiliated with the Roman Catholic Church. 176. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. 177. Plaintiff has abided and must continue to abide by the decision of the Catholic Church on these issues. 178. The Government may not interfere with, or otherwise question, the decision of the Catholic Church that its religious organizations may not support, promote, or materially cooperate in abortion, sterilization, and contraception services. 179. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views.
40

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 41 of 48 PageID 41
180. Plaintiff has therefore made the internal decision that the health plan it offers to its employees may not cover, subsidize, or facilitate abortion or sterilization, nor does it cover contraceptive drugs unless specifically prescribed to treat an actual medical illness and approved as such by the Christian Brothers Employment Trust.
181. The U.S. Government Mandate interferes with Plaintiff’s internal decisions concerning its structure and mission by requiring it to facilitate practices that directly conflict with Catholic beliefs.
182. The U.S. Government Mandate’s interference with Plaintiff’s internal decisions affects its faith and mission by requiring it to facilitate practices that directly conflict with its religious beliefs.
183. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiff in a manner that affects Plaintiff’s faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment.
184. Plaintiff has no adequate remedy at law. 185. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT VI Compelled Speech in Violation of the Free Speech Clause of the First Amendment 186. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 187. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 188. The First Amendment protects organizations as well as individuals against compelled speech. 189. Expenditures are a form of speech protected by the First Amendment.
41

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 42 of 48 PageID 42
190. The First Amendment protects against the use of a speaker’s money to support a viewpoint that conflicts with the speaker’s religious beliefs.
191. The U.S. Government Mandate would compel Plaintiff to provide health care plans to its employees that include or facilitate coverage of practices that violate its religious beliefs.
192. The U.S. Government Mandate would compel Plaintiff to subsidize, promote, and facilitate education and counseling services regarding these practices.
193. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiff to publicly subsidize or facilitate the activity and speech of private entities that are contrary to its religious beliefs.
194. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny.
195. The U.S. Government Mandate furthers no compelling governmental interest. 196. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 197. Plaintiff has no adequate remedy at law. 198. The U.S. Government Mandate and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT VII Failure to Conduct Notice-and-Comment Rulemaking and Improper
Delegation in Violation of the APA 199. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 200. The Affordable Care Act expressly delegates to an agency within Defendant HHS, the Health Resources and Services Administration, the authority to establish guidelines
42

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 43 of 48 PageID 43
concerning the “preventive care” that a group health plan and health insurance issuer must provide.
201. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments.
202. Defendants promulgated the “preventive care” guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law.
203. Defendants, instead, delegated their responsibilities for issuing preventive care guidelines to a non-governmental entity, the IOM.
204. The IOM did not permit or provide for the broad public comment otherwise required under the APA concerning the guidelines that it would recommend. The dissent to the IOM report noted both that the IOM conducted its review in an unacceptably short time frame, and that the review process lacked transparency.
205. Within two weeks of the IOM issuing its guidelines, Defendant HHS issued a press release announcing that the IOM’s guidelines were required under the Affordable Care Act.
206. Defendants have never explained why they failed to enact these “preventive care” guidelines through notice-and-comment rulemaking as required by the APA.
207. Defendants also failed to engage in notice-and-comment rulemaking when issuing the interim final rules and the final rule incorporating the guidelines.
208. Defendants’ stated reasons for promulgating these rules without engaging in formal notice-and-comment rulemaking do not constitute “good cause.” Providing public notice
43

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 44 of 48 PageID 44
and an opportunity for comment was not impracticable, unnecessary, or contrary to the public interest for the reasons claimed by Defendants.
209. By enacting the “preventive care” guidelines and interim and final rules through delegation to a non-governmental entity and without engaging in notice-and-comment rulemaking, Defendants failed to observe a procedure required by law and thus violated 5 U.S.C. § 706(2)(D).
210. Plaintiff has no adequate remedy at law. 211. The enactment of the U.S. Government Mandate without observance of a procedure required by law and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
COUNT VIII Arbitrary and Capricious Action in Violation of the APA 212. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 213. The APA condemns agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 214. The APA requires that an agency examine the relevant data and articulate an explanation for its action that includes a rational connection between the facts found and the policy choice made. 215. Agency action is arbitrary and capricious under the APA if the agency has failed to consider an important aspect of the problem before it. 216. A court reviewing agency action may not supply a reasoned basis that the agency itself has failed to offer. 217. Defendants failed to consider the suggestion of many commenters that abortioninducing drugs, sterilization, and contraception could not be viewed as “preventive care.”
44

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 45 of 48 PageID 45
218. Defendants failed adequately to engage with voluminous comments suggesting that the scope of the religious exemption to the U.S. Government Mandate should be broadened.
219. Defendants did not articulate a reasoned basis for their action by drawing a connection between facts found and the policy decisions they made.
220. Defendants failed to provide any standards or processes for how the Administration will decide which religious institutions will be included in the religious exemption.
221. Defendants failed to consider the use of broader religious exemptions in many other federal laws and regulations.
222. Defendants’ promulgation of the U.S. Government Mandate violates the APA. 223. Plaintiff has no adequate remedy at law. 224. The U.S. Government Mandate imposes an immediate and ongoing harm on the Plaintiff that warrants declaratory relief.
COUNT IX Acting Illegally in Violation of the APA 225. Plaintiff repeats and re-alleges each of the foregoing allegations in this Complaint. 226. The APA requires that all Government agency action, findings, and conclusions be “in accordance with law.” 227. The U.S. Government Mandate and its exemption are illegal and therefore in violation of the APA. 228. The Weldon Amendment states: “None of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care
45

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 46 of 48 PageID 46
entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d), 125 Stat. 786, 1111 (2011).
229. The Affordable Care Act states that “nothing in this title (or any amendment by this title) shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 42 U.S.C. § 18023(b)(1)(A)(i). It adds that “the issuer of a qualified health plan shall determine whether or not the plan provides coverage of [abortion.]” Id. § 18023(b)(1)(A)(ii).
230. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans that include coverage for abortion-inducing drugs, sterilization, contraception, or related education and counseling should be required to provide such plans.
231. The U.S. Government Mandate requires employer-based health plans to provide coverage for abortion-inducing drugs, sterilization, contraception, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority and ignored the direction of Congress.
232. The U.S. Government Mandate violates RFRA. 233. The U.S. Government Mandate violates the First Amendment. 234. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 235. Plaintiff has no adequate remedy at law.
46

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 47 of 48 PageID 47
236. The enactment of the U.S. Government Mandate that is not in accordance with law and its impending enforcement impose an immediate and ongoing harm on Plaintiff that warrants declaratory relief.
JURY DEMAND 237. Plaintiff respectfully demands a jury trial in this matter.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays that this Court: 1. Enter a declaratory judgment that th e U.S. Governm ent Mandate violates
Plaintiff’s rights under RFRA; 2. Enter a declaratory judgment that th e U.S. Governm ent Mandate violates
Plaintiff’s rights under the First Amendment; 3. Enter a declaratory judgm ent that the U.S. Governm ent Mandate was
promulgated in violation of the APA; 4. Enter an injunction prohibiting the De fendants from enforcing the U.S.
Government Mandate against Plaintiff; 5. Enter an order vacating the U.S. Government Mandate; 6. Award Plaintiff attorneys’ fees and expert fees under 42 U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper.
47

Case 4:12-cv-00314-Y Document 1 Filed 05/21/12 Page 48 of 48 PageID 48

Respectfully submitted, this the 21st day of May, 2012.

By:
DLI-6396326

/s/ Terence M. Murphy Terence M. Murphy Texas State Bar No. 14707000 tmurphy@jonesday.com Tamara Marinkovic Texas State Bar No. 00791175 tmarinkovic@jonesday.com Basheer Y. Ghorayeb Texas State Bar No. 24027392 bghorayeb@jonesday.com Thomas K. Schroeter Texas State Bar No. 24056279 tkschroeter@jonesday.com Katherine J. Lyons Texas State Bar No. 24070191 kjlyons@jonesday.com JONES DAY 2727 North Harwood Street Dallas, Texas 75201 (214) 220-3939 (214) 969-5100 facsimile
James S. Teater Texas State Bar No. 19757425 jsteater@jonesday.com JONES DAY 717 Texas Street Suite 3300 Houston, Texas 77002-2712 (832) 239-3939 (832) 239-3600 facsimile
John W. Crumley Texas State Bar No. 05184500 crumley1@airmail.net JOHN W. CRUMLEY, P.C. 501 University Centre 1 1300 South University Drive Fort Worth, Texas 76107-5737 (817) 334-0291 (817) 334-0775 facsimile
Counsel for Plaintiff

48

 
 Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 1 of 12 PageID 669

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROMAN CATHOLIC DIOCESE OF FORT WORTH
VS.
KATHLEEN SEBELIUS, et al.

§ § § § CIVIL ACTION NO. 4:12-CV-314-Y § §

ORDER DENYING MOTION TO DISMISS

Before the Court is Defendants’ Motion to Dismiss (doc. 12).

Defendants are United States Secretaries Kathleen Sebelius, Hilda

Solis, and Timothy Geithner, and the respective departments they

head--the United States Department of Health and Human Services

(“DHHS”), the United States Department of Labor (“DoL”), and the

United States Department of Treasury (“DoT”) (collectively, “the

Departments”).1 After review of Defendants’ motion, the Court

concludes that plaintiff Roman Catholic Diocese (“the Diocese”) has

standing to bring its claims in this case and that those claims are

ripe for judicial review. Therefore, the Court will deny Defen-

dants’ motion.

I. Background In July 2010, the Departments issued interim regulations under
the federal Patient Protection and Affordable Care Act (“the ACA”) requiring group health plans and health-insurance issuers to cover

1

In addition to the parties’ briefing, the Court considered the amicus

brief (doc. 21) filed by the American Center for Law and Justice, joined by

seventy-nine (79) members of the United States House of Representatives in the

One Hundred Twelfth Congress.

Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 2 of 12 PageID 670
“preventive care and screening” for women, without imposing costsharing requirements (e.g., co-payments or deductibles).2 75 Fed. Reg. 41,726, 41,728 (July 19, 2010). In August 2011, the Health Resources and Services Administration (“HRSA”), an agency within the DHHS, promulgated guidelines clarifying that preventive services for women included “all Food and Drug Administration (FDA) approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” 77 Fed. Reg. 8725,8725 (Feb. 15, 2012). That same month, the Departments amended the interim regulations such that HRSA was granted “additional discretion to exempt certain religious employers from the Guidelines where contraceptive services [were] concerned.” 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011).3
In February 2012, the Departments adopted the amended interim regulations and issued them as a final rule (“the Mandate”). The Departments left undisturbed the criteria for determining whether

2

This requirement does not apply to “grandfathered” plans. See 42

U.S.C.A. § 18011(a)(2) (West 2012). But the Diocese’s plan is not grandfathered.

3

To qualify for the religious-employer exemption, an organizationmust

meet four criteria:

(1) The inculcation of religiou s 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) an d 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) (West 2013).

2

Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 3 of 12 PageID 671
an organization qualifies for the religious-employer exemption. But in light of several comments the Departments had received complaining that the protection offered by the exemption was too narrow, the Departments announced that they were implementing a one-year “temporary enforcement safe harbor” for “certain nonexempted, non-profit organizations with religious objections to covering contraceptive services.” 77 Fed. Reg. at 8728.
The Departments also announced that, “[d]uring the temporary enforcement safe harbor, [they] plan[ned] to develop and propose changes to these final regulations that would . . . provid[e] contraceptive coverage without cost-sharing to individuals who want it and [at the same time] accommodat[e] non-exempted, non-profit organizations’ religious objections to covering contraceptive services.” Id. In March 2012, the Departments issued an Advance Notice of Proposed Rulemaking (“ANPRM”), “present[ing] questions and ideas” concerning ways to carry out those objectives. 77 Fed. Reg. at 16,503.
These proposed accommodations notwithstanding, the Diocese contends that the Mandate, in its current form, violates the Religious Freedom Restoration Act (“RFRA”); the Administrative Procedures Act (“APA”); and the free-exercise, establishment, and free-speech clauses of the First Amendment to the United States Constitution. Defendants, on the other hand, argue that the Diocese lacks standing to challenge the mandate at this time and
3

Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 4 of 12 PageID 672
that, alternatively, the Diocese’s claims are not ripe for review. According to Defendants, because the safe harbor protects the Diocese from having to comply with the Mandate until at least July 1, 2014, and considering that the Departments have announced their intention to further amend the Mandate to accommodate religious objections, the Diocese does not face any imminent injury sufficient to support standing. Similarly, Defendants contend that because further changes are likely to result to the Mandate, the constitutionality of its current provisions is not ripe for review.
The Diocese insists, however, that it has standing to challenge the Mandate. First, the Diocese argues that it faces imminent injury because the Mandate is a final rule (i.e., a law) with a definite effective date. Second, the Diocese alleges that, in any event, it faces certain present costs and other harms as a result of the looming effective date of the Mandate. For example, the Diocese alleges that it must take the Mandate into account now as it conducts the “analyses, negotiations, and decisions [that] must occur each year before [it] can offer a health benefits package to its employees.” (Pl.’s Compl. 34, ¶ 119 (doc. 1).) According to the Diocese, “[t]he multiple levels of uncertainty surrounding the . . . Mandate make this already lengthy process even more complex.” ( Id. at 34, ¶ 120.) Moreover, the Diocese alleges that, should it decide its “only tolerable option is to attempt to qualify as a ‘religious employer’ under the . . .
4

Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 5 of 12 PageID 673
Mandate, it will need to undertake a major overhaul of its organizational structure, hiring practices, and the scope of its programming.” (Id. at 34-35, ¶ 121.) And for essentially the same reasons, the Diocese contends that this case is ripe for review.4
II. Analysis “Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Fed. R. Civ. P. 12(b)(1)). “The party asserting jurisdiction carries the burden of proof.” In re Eckstein Marine Serv., L.L.C. , 672 F.3d 310, 314 (5th Cir. 2012) (citation omitted). “In assessing jurisdiction, the district court is to accept as true the allegations and facts set forth in the complaint.” Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 714 (5th Cir. 2012) (citation omitted). In addition, “the district court is empowered to consider matters of fact which may be in dispute.” Id. (citation

4

Alternatively, the Diocese contends that Defendants’ standing and

ripeness arguments do not address six of the Diocese’s nine claims. First, the

Diocese complains that the ANPRM merely proposes accommod ations to non-exempt

entities and, thus, contains no suggestion of further modification to the

criteria for determining whether an organi zation qualifies as a “religious

employer.” In view of this, the Diocese argues, Defendants’ standing and

ripeness arguments do not apply to the Diocese’s three claims challenging the

religious-employer criteria. Second, the Diocese asserts that its three claims

under the APA are based on Defendants’ past conduct in connection with the rule-

making process and, thus, are beyond the scope of Defenda nts’ standing and

ripeness arguments.

5

Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 6 of 12 PageID 674

omitted) (internal quotation marks).5
A. Standing
“Article III of the United States Constitution grants
jurisdiction to the federal courts only over claims that constitute
‘cases’ or ‘controversies.’” K.P. v. LeBlanc , 627 F.3d 115, 122
(5th Cir. 2010) (citing U.S. Const. art. III, § 2, cl. 1). “The
requirement that a claimant have standing is an essential and
unchanging part of the case-or-controversy requirement of Article
III.” Nat’l Federation of the Blind of Tex., Inc. v. Abbott, 647
F.3d 202, 208 (5th Cir. 2011) (citation omitted) (internal
quotation marks omitted).
“The irreducible constitutional minimum of standing contains
three elements.” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms, & Explosives , 700 F.3d 185, 190 (5th
Cir. 2012) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992)) (internal quotation marks omitted).
The first is an injury in fact which is a concrete and particularized invasion of a legally protected interest. The second is that there must be a causal connection between the injury and the conduct complained of; the injury has to be fairly traceable to the challenged action of the defendant. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

5

A court “has the power to dismiss for lack of subject matter

jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the

complaint supplemented by undisputed facts evidenced in the record; or (3) the

complaint supplemented by undisputed facts plus the court' s resolution of

disputed facts.” Choice Inc., 691 F.3d at 714 (citing Williamson v. Tucker, 645

F.2d 404, 413 (5th Cir.1981)). Defendants here merely raise a facial challenge

to the Diocese’s jurisdictional allegations; thus, the Court will look to the

Diocese’s complaint in determining whether jurisdiction exists in this case.

6

Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 7 of 12 PageID 675
Id. at 190-91 (quoting Lujan, 504 U.S. at 560-61) (internal quotation marks omitted).
The Diocese alleges that the “Mandate’s requirements for coverage of abortion-inducing drug[s], contraception, sterilization, and related speech violates the Diocese’s religious beliefs and compels it to support speech with which it disagrees.” (Pl.’s Resp. 11.) The Diocese further alleges that the looming effective date of the Mandate imposes present costs and other harms upon the Diocese as it prepares for the Mandate’s enforcement. Because these alleged harms would be likely to be “redressed by a favorable decision” in this case, the Court is satisfied that the Diocese has standing to assert its claims. Lujan, 504 U.S. at 561.
Defendants’ arguments concerning the potential for further amendments to the Mandate are irrelevant here because “[s]tanding is determined as of the time that suit is filed.” Energy Mgmt. Corp. v. City of Shreveport, 397 F.3d 297, 302 n.3 (5th Cir. 2005) (citation omitted); see also Wheaton College v. Sebelius , Nos. 12–5273 & 12–5291, 2012 WL 6652505, at *1 (D.C. Cir. Dec. 18, 2012) (slip opinion) (holding that a plaintiff organization had standing to challenge the Mandate, notwithstanding the ANPRM or related announcements, because “standing is assessed at the time of filing”); Ingebretsen ex rel. Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d 274, 278 (5th Cir. 1996) (“There is no need for [the plaintiff] to wait for actual implementation of the statute and
7

Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 8 of 12 PageID 676
actual violations of his rights under the First Amendment where the statute ‘makes inappropriate government involvement in religious affairs inevitable.’” (citing Karen B. v. Treen, 653 F.2d 897, 902 (5th Cir. 1981))).
B. Ripeness “Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807 (2003) (citations omitted) (internal quotation marks omitted). The doctrine is also intend “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.” Id. at 807-08. “[D]rawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction,” the doctrine of ripeness is particularly apposite “when a party is se eking preenforcement review of a law or regulation.” Roark & Hardee LP v. City of Austin , 522 F.3d 533, 544 (5th Cir. 2008) (citations omitted) (internal quotation marks omitted). As a practical matter, “[t]o determine if a case is ripe for adjudication, a court must evaluate (1) the fitness of the issues for judicial decision, and (2) the hardship to the parties of withholding court consideration.” Texas v. United States, 497 F.3d
8

Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 9 of 12 PageID 677
491, 498 (5th Cir. 2007) (citations omitted). More specifically, “[a] challenge to administrative regulations is fit for review if (1) the questions presented are ‘purely legal ones,’ (2) the challenged regulations constitute ‘final agency action,’ and (3) further factual development would not ‘significantly advance the court’s ability to deal with the legal issues presented.’” Id. (quoting Nat’l Park, 538 U.S. at 812). One other “consideration is whether resolution of the issues will foster effective administration of the statute.” Id. at 499 (citations omitted) (internal quotation marks omitted).
In light of these considerations, the Court concludes that the Diocese’s challenges to the Mandate are ripe for judicial review. The Diocese’s claims present purely legal issues, and further factual development is not necessary to resolve them. The Mandate, moreover, is a final rule with a definite effective date, and neither the ANPRM nor Defendants’ related announcements change this. And because the Mandate is “on the books,” there is nothing improper about subjecting it to the limitations of the United States Constitution and other applicable laws. A ruling on the lawfulness of a final rule, in other words, is not tantamount to judicial entanglement “in abstract disagreements over administrative policies.” Nat’l Park, 538 U.S. at 807.
Indeed, a prompt ruling on the merits of the Diocese’s claims should add clarity to the constitutional issues presented by the
9

Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 10 of 12 PageID 678
Mandate and, in that sense, “foster effective administration of the statute.” Texas, 497 F.3d at 498. Conversely, a decision to withhold consideration of the Mandate would likely result in hardship to the Diocese, given that the Diocese must now decide whether to (a) implement substantial changes to its group health plans to achieve compliance with the Mandate or (b) budget for the imposition of significant fines for non-compliance. See Abbott Labs. v. Gardner , 387 U.S. 136, 153 (1967), abrogated on other grounds by Califano v. Sanders , 430 U.S. 99 (1977) (“[W]here a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the Administrative Procedure Act . . . must be permitted.”).
Defendants’ assertion that the Diocese’s concerns stem merely from its “own personal choice to prepare for contingencies that may never occur” is disingenuous. (Defs.’ Mot. 14.) The Departments themselves once “determined that it [was] impracticable and contrary to the public interest to delay putting the provisions in the[] interim final regulations in place” because the organizations “subject to the[] provisions [would] have to be able to take the[] changes into account in establishing their premiums, and in making other changes to the designs of plan or policy benefits.” 75 Fed. Reg. 41,730 (July 19, 2010). The Diocese simply does not have the luxury of inaction; the Mandate “has been formalized and its
10

Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 11 of 12 PageID 679
effects [are being] felt in a concrete way.” Nat’l Park, 538 U.S.
at 807-08.
As the United States District Court for the Eastern District
of New York recently observed:
The Coverage Mandate is a final rule, and the ANPRM has not made the Coverage Mandate any less binding on plaintiffs. Therefore, this is not a case where an enforcement action is only remotely possible or plaintiffs’ concerns are imaginary or speculative. . . . .
Moreover, the First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action. There is no, “Trust us, changes are coming” clause in the Constitution. To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction.
Roman Catholic Archdiocese of N.Y. v. Sebelius , No. 12 Civ.
2542(BMC), 2012 WL 6042864, at *16, *19 (E.D.N.Y. Dec. 4, 2012)
(citations omitted) (internal quotation marks omitted). 6 But see
Colorado Christian Univ. v. Sebelius , No. 1:11-CV-03350-CMA-BNB,
2013 WL 93188 (D. Colo. Jan. 8, 2013); Catholic Diocese of Peoria
v. Sebelius, No. 1:12-CV-01276-JES-BGC, 2013 WL 74240 (C.D. Ill.

6

The only federal appellate court to weigh in on the matter thus far,

the United States Court of Appeals for the District of Columbia Circuit (“D.C.

Circuit”), determined that the case before it was not ripe for review.

See

Wheaton College, 2012 WL 6652505, at *1-*2. But in that case, “the government

went further” than merely citing to the ANPRM and related announcements in the

Federal Register. Id. at *1. The government, for example, “represented to the

court that it would never enforce [the Mandate] in its current form against the

appellants or those similarly situated as regards contraceptive services ” and

“further represented that it would publish a Notice of Proposed Rulemaking for

the new rule in the first quarter of 2013 and wouldissue a new Final Rule before

August 2013.” Id. Therefore, the Wheaton College case is distinguishable from

the instant one. In any event, the D.C. Circuit did not dismiss the claims as

unripe but merely determined to hold them in abeyance.

11

Case 4:12-cv-00314-Y Document 43 Filed 01/31/13 Page 12 of 12 PageID 680

Jan. 4, 2013); Univ. of Notre Dame

v. Sebelius, No.

3:12-CV-0523-RLM-CAN, 2012 WL 6756332 (N.D. Ind. Dec. 31, 2012);

Catholic Diocese of Biloxi v. Sebelius, No. 1:12-CV-00158, 2012 WL

6831407 (S.D. Miss. Dec. 20, 2012);

Zubik v. Sebelius , No.

12–CV–676, 2012 WL 5932977, at *1 (W.D. Pa. Nov. 27, 2012);

Catholic Diocese of Nashville v. Sebelius, No. 12-CV-0934, 2012 WL

5879796 (M.D. Tenn. Nov. 21, 2012); Legatus v. Sebelius , No.

12–12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012); Nebraska v.

Dep’t of Health & Human Servs., No. 4:12-CV-3035, 2012 WL 2913402

(D. Neb. July 17, 2012).

III. Conclusion Based on the foregoing, the Court concludes that the Diocese
has standing to bring its challenges to the Mandate and that those challenges are ripe for review. Accordingly, Defendants’ motion to dismiss is DENIED.
SIGNED January 31, 2013.

____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE

TRM/dc

12

 
 Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 1 of 28 PageID 697

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROMAN CATHOLIC DIOCESE OF FORT WORTH,
Plaintiff, v.
KATHLEEN SEBELIUS, et al., Defendants.

) ) ) ) ) Case No. 4:12-cv-00314-Y (TRM) ) ) DEFENDANTS’ MOTION FOR ) RECONSIDERATION OR, IN THE ) ALTERNATIVE, FOR CERTIFICATION ) UNDER 28 U.S.C. § 1292(B) PERMITTING ) IMMEDIATE APPEAL AND BRIEF IN ) SUPPORT ) )

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 2 of 28 PageID 698
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION ...........................................................................................................................1 ARGUMENT ...................................................................................................................................3 I. THE COURT SHOULD RECONSIDER ITS ORDER DENYING
DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION ...................3 A. The Court’s Order Is Based On The Manifestly Erroneous Conclusion
That The Current Regulations Might Be Enforced By Defendants Against Plaintiff .......................................................................................................5 B. The Notice of Proposed Rulemaking Issued By Defendants After This Court’s Order Further Demonstrates That The Court Lacks Jurisdiction ...............................................................................................................9 C. The Supreme Court’s Decision in Clapper v. Amnesty International USA – Handed Down Two Days Ago – Is Controlling ....................................................13 II. IF THE COURT DENIES DEFENDANTS’ MOTION FOR RECONSIDERATION, IT SHOULD CERTIFY ITS ORDER FOR INTERLOCUTORY APPEAL ..........................................................................................16
i

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 3 of 28 PageID 699
TABLE OF AUTHORITIES
FEDERAL CASES
Abbott Labs v. Gardner, 387 U.S. 136 (1967)...........................................................................................................12, 13
Am. Petroleum Inst. v. Envtl Prot. Agency, 683 F.3d 382 (D.C. Cir. 2012) ...........................................................................................12, 13
Anderson v. Green, 513 U.S. 557 (1995)...................................................................................................................9
Archdiocese of St. Louis v. Sebelius, No. 4:12-cv-924-JAR, 2013 WL 328926 (E.D. Mo. Jan. 29, 2013)..........................................1
Aspen Specialty Insurance Co. v. Muniz Eng’g Inc., Civil Action No. H-05-0277, 2006 WL 1663732 (S.D. Tex. June 15, 2006)..........................17
Belmont Abbey Coll. v. Sebelius, 878 F. Supp. 2d 25 (D.D.C. 2012) .......................................................................................1, 13
Bowden v. Wilemon, No. 4:11-CV-711-A, 2012 WL 426638 (N.D. Tex. Feb 9, 2012) .........................................8, 9
Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393 (5th Cir. 2010) ...................................................................................................17
Catholic Diocese of Biloxi v. Sebelius, No. 1:12-cv-158-HSO-RHW, 2012 WL 6831407 (S.D. Miss. Dec. 20, 2012) ...................1, 13
Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012)..............................................1
Catholic Diocese of Peoria v. Sebelius, No. 12-cv-01276, 2013 WL 74240 (C.D. Ill. Jan. 4, 2013) .................................................1, 14
Clapper v. Amnesty Int’l USA, No 11-1025, 2013 WL 673253 (Feb. 26, 2013) .............................................................. passim
Colo. Christian University v. Sebelius ("CCU"), No. 11-cv-03350-CMA-BNB, 2013 WL 93188 (D. Colo. Jan. 7, 2013) ........................1, 8, 13
Conlon v. Sebelius, No. 12-cv-3932, 2013 WL 500835 (N.D. Ill. Feb. 8, 2013) ......................................................1
ii

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 4 of 28 PageID 700
Dev. Specialists, Inc. v. Akin Gump Strauss Hauer & Feld LLP, No. 11-cv-5994(CM), 2012 WL 2952929 (S.D.N.Y. July 18, 2012) ......................................18
In re Dynex Capital, Inc. Sec. Litigation, No. 05-cv-1897(HB), 2006 WL 1517580 (S.D.N.Y. June 2, 2006) ........................................19
Gautier v. Plains Pipeline, LP, Civil Action No. 12-1064, 2012 WL 4483003 (E.D. La. Sept. 28, 2012) ...............................18
Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367 (5th Cir. 1998) .....................................................................................................3
Johnson v. Buentello, No. 3:09-CV-1023-B, 2010 WL 727752 (N.D. Tex. Mar. 2, 2010)................................4, 9, 13
Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21 (2d Cir. 1990).......................................................................................................16
Lake Pilots Ass’n, Inc. v. U.S. Coast Guard, 257 F. Supp. 2d 148 (D.D.C. 2003) .........................................................................................13
Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) .................................................1
Louisiana Generating, LLC v. Illinois Union Insurance Co., Civil Action No. 10-516-JJB-SCR, 2012 WL 1752685 (M.D. La. May 16, 2012).................17
Meche v. Richard, Civil Action No. 05-0385, 2007 WL 3129583 (W.D. La. Oct. 22, 2007) ...............................16
In re Mounce, No. 03-55022-1mc, 2008 WL 2714423 (Bankr. W.D. Tex. July 10, 2008) ............................16
Mpiliris v. Hellenic Lines, Ltd., 323 F. Supp. 865 (S.D. Tex. 1969) ..........................................................................................18
Nat’l Park Hospitality Association v. Dep’t of the Interior, 538 U.S. 803 (2003).................................................................................................................10
Nebraska v. U.S. Dep’t of Health & Human Services, 877 F. Supp. 2d 777 (D. Neb. 2012) ..........................................................................................1
Persico v. Sebelius, No. 1:12-cv-00123-SJM, 2013 WL. 228200 (W.D. Pa. Jan. 22, 2013).....................................1
iii

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 5 of 28 PageID 701
Rogers v. City of San Antonio, No. Civ. A. SA-99-CA-1110, 2003 WL 1571550 (W.D. Tex. Mar. 24, 2003) .......................................................................19
Roman Catholic Archbishop of Wash. v. Sebelius, No. 12-cv-0815 (ABJ), 2013 WL 285599 (D.D.C. Jan. 25, 2013)............................................1
Roman Catholic Diocese of Dallas v. Sebelius, No. 3:12-cv-1589-B, 2013 WL 687080 (N.D. Tex. Feb. 26, 2013) ..........................1, 9, 11, 13
Ross v. Marshall, 426 F.3d 745 (5th Cir. 2005) .....................................................................................................4
Ryan v. Flowserve Corp., 444 F. Supp. 2d 718 (N.D. Tex. 2006) ........................................................................16, 17, 18
Schiller v. Physicians Res. Grp., 342 F.3d 563 (5th Cir. 2003) .....................................................................................................4
Schwendimann v. Arkwright Advanced Coating, Inc., Civil No. 11-820ADM/JSM, 2012 WL 5389674 (D. Minn. Nov. 2, 2012) ............................16
Shepherd v. Int’l Paper Co., 372 F.3d 326 (5th Cir. 2004) .....................................................................................................3
Tesco Corp. v. Weatherford Intern., Inc., 722 F. Supp. 2d 755 (S.D. Tex. 2010) .....................................................................................16
Tex. Indep.Producers and Royalty Owners Ass’n v. EPA, 413 F.3d 479 (5th Cir. 2005) ...................................................................................................13
Texas v. United States, 523 U.S. 296 (1998).................................................................................................................10
Thakkar v. Balasuriya, Civil Action No. H-09-0841, 2009 WL 2996727 (S.D. Tex. Sept. 9, 2009) .............................4
Thompson v. Shaw Grp., Inc., Civil Action No. 04-1685, 2006 WL 2038025 (E.D. La. July 19, 2006) ................................19
Ex parte Tokio Marine & Fire Insurance Co., 322 F.2d 113 (5th Cir. 1963) ...................................................................................................18
Univ. of Notre Dame v. Sebelius, No. 3:12-cv-00523-RLM, 2012 WL. 6756332 (N.D. Ind. Dec. 31, 2012)......................1, 8, 13
iv

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 6 of 28 PageID 702
U.S. ex rel. State of Wisconsin v. Dean, 729 F.2d 1100 (7th Cir. 1984) .................................................................................................16
WesternGeco LLC v. Ion Geophysical Corp., No. 4:09-C 2011 WL 3608382 (S.D. Tex. Aug. 16, 2011) .......................................................4
Wheaton Coll. v. Sebelius, Civil Action No. 12-1169 (ESH), 2012 WL 3637162 (D.D.C. Aug. 24, 2012) .............. passim
Wheaton Coll. v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012) ...........................................................................................1, 7, 8
Zubik v. Sebelius, No. 2:12-cv-00676, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012).......................................1, 8 FEDERAL STATUTES
26 U.S.C. § 6033(a)(3)(A)(i) .........................................................................................................10 28 U.S.C. § 1292(b) ............................................................................................................... passim 50 U.S.C. § 1881a ..........................................................................................................................13
FEDERAL REGULATIONS 77 Fed. Reg. 8725 (Feb. 15, 2012) ..................................................................................................9 78 Fed. Reg. 8456 (Feb. 6, 2013) ........................................................................................9, 10, 11
v

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 7 of 28 PageID 703
INTRODUCTION
The government respectfully asks this Court to reconsider its January 31, 2013 Order
denying the government’s motion to dismiss. In the alternative, if the Court denies the
government’s motion for reconsideration, the government asks this Court to certify the Order for
immediate appeal to the Fifth Circuit under 28 U.S.C. § 1292(b).
Of the eighteen courts to have considered the jurisdictional issues presented in this case,
this Court is only the second to allow such claims to proceed.1 The courts that have found
jurisdiction lacking have relied on the government’s repeated and consistent representations that
it will not enforce the challenged regulations in their current form against employers like the one
in this case. In denying defendants’ motion to dismiss, however, this Court mistakenly believed
that the government’s representations do not apply to the specific plaintiff here. That was
manifest error. The government has stated in filings in this case – and elsewhere – that it will
1 In the most recent of these decisions, another court in this District dismissed an identical challenge to the preventive services coverage regulations brought by the Roman Catholic Diocese of Dallas for lack of jurisdiction. See Roman Catholic Diocese of Dallas v. Sebelius, No. 3:12-cv-1589-B, 2013 WL 687080 (N.D. Tex. Feb. 26, 2013) (concluding the plaintiff’s claims are not ripe); see also Conlon v. Sebelius, No. 12-cv-3932, 2013 WL 500835 (N.D. Ill. Feb. 8, 2013); Archdiocese of St. Louis v. Sebelius, No. 4:12-cv-924-JAR, 2013 WL 328926 (E.D. Mo. Jan. 29, 2013); Roman Catholic Archbishop of Wash. v. Sebelius, No. 12-cv-0815 (ABJ), 2013 WL 285599 (D.D.C. Jan. 25, 2013); Persico v. Sebelius, No. 1:12-cv-00123-SJM, 2013 WL 228200 (W.D. Pa. Jan. 22, 2013); Colo. Christian Univ. v. Sebelius (“CCU”), No. 11cv-03350-CMA-BNB, 2013 WL 93188 (D. Colo. Jan. 7, 2013); Catholic Diocese of Peoria v. Sebelius, No. 12-cv-01276, 2013 WL 74240 (C.D. Ill. Jan. 4, 2013); Univ. of Notre Dame v. Sebelius, No. 3:12-cv-00523-RLM, 2012 WL 6756332 (N.D. Ind. Dec. 31, 2012); Catholic Diocese of Biloxi v. Sebelius, No. 1:12-cv-158-HSO-RHW, 2012 WL 6831407 (S.D. Miss. Dec. 20, 2012); Zubik v. Sebelius, No. 2:12-cv-00676, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012), appeal noticed (3d Cir. Jan. 23, 2013); Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796 (M.D. Tenn. Nov. 21, 2012); Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012), appeal docketed, No. 13-1093 (6th Cir. Jan. 24, 2013); Nebraska v. U.S. Dep’t of Health & Human Servs., 877 F. Supp. 2d 777 (D. Neb. 2012), appeal docketed, No. 12-3238 (8th Cir. Sept. 25, 2012); Wheaton Coll. v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012) (affirming in part and holding in abeyance appeals in Wheaton Coll. v. Sebelius, Civil Action No. 12-1169 (ESH), 2012 WL 3637162 (D.D.C. Aug. 24, 2012), and Belmont Abbey Coll. v. Sebelius, 878 F. Supp. 2d 25 (D.D.C. 2012)).
1

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 8 of 28 PageID 704
never enforce the current regulations against this specific plaintiff, the Roman Catholic Diocese of Fort Worth.
Instead, by August of this year, there will be new and different rules in place for plaintiff, and other nonprofit religious employers with religious objections to the contraceptive coverage requirement. One day after this Court denied defendants’ motion to dismiss, the government issued a Notice of Proposed Rulemaking (“NPRM”) that, if adopted without change, would almost certainly ensure that plaintiff is exempt from the contraceptive coverage requirement. And, even in the highly unlikely event that plaintiff is not exempt under the amended regulations, the accommodations proposed in the NPRM for nonprofit religious organizations will resolve any dispute or at least present different legal questions from those that plaintiff has raised regarding the current regulations.
In a decision handed down just two days ago, the Supreme Court reaffirmed the rationale underpinning the government’s position that this Court lacks jurisdiction over plaintiff’s challenge to the current regulations. See Clapper v. Amnesty Int’l USA, 568 U.S. __, 2013 WL 673253 (Feb. 26, 2013). In Clapper, the Supreme Court confirmed that standing cannot be based on a speculative future injury that is not “certainly impending.” Id. at *7-11. Plaintiff’s claim of injury from enforcement of regulations the government has committed never to enforce against plaintiff is not “certainly impending.” As the Court also reiterated in Clapper, plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” Id. at *11. Thus, in Clapper, the Court rejected as a basis for standing present “costs” the plaintiffs alleged to have incurred “as a reasonable reaction to a risk of [future] harm.” Id. Similarly here, any costs allegedly incurred by plaintiff in preparation for the enforcement of a regulation the government has committed not
2

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 9 of 28 PageID 705
to enforce against plaintiff do not confer standing. Clapper is controlling and requires dismissal of this case.
If the Court does not grant reconsideration, defendants ask the Court to certify its Order for immediate appeal to the Fifth Circuit pursuant to 28 U.S.C. § 1292(b). The prerequisites for certification are easily satisfied here. The Court’s Order involves a “controlling question of law,” 28 U.S.C. § 1292(b), as reversal of the Order would result in dismissal of this action for lack of jurisdiction. The fact that sixteen other courts, including a court of appeals, have found jurisdiction lacking in virtually identical circumstances definitively establishes a “substantial ground for difference of opinion.” Id. And, certification “may materially advance the ultimate termination of this litigation,” id., because a ruling in defendants’ favor would bring plaintiff’s challenge to the current regulations – the only version of the regulations at issue in this case – to a close.
For these reasons and those articulated below, the Court should reconsider its Order or, at the very least, certify an interlocutory appeal to the Fifth Circuit.
ARGUMENT I. THE COURT SHOULD RECONSIDER ITS ORDER DENYING DEFENDANTS’
MOTION TO DISMISS FOR LACK OF JURISDICTION The government respectfully moves under Federal Rule of Civil Procedure 59(e) for reconsideration of this Court’s order denying defendants’ motion to dismiss. “While the Federal Rules of Civil Procedure do not provide for a motion for reconsideration, such a motion may be considered either a Rule 59(e) motion to alter or amend judgment or a Rule 60(b) motion for relief from judgment or order.” Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n.1 (5th Cir. 2004); see also Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n.10 (5th Cir. 1998). “Rule 54(b) allows a court to revise an interlocutory order any time prior to the entry of
3

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 10 of 28 PageID 706
judgment adjudicating all the claims and all the parties’ rights and liabilities. A denial of a motion to dismiss is an interlocutory order. Motions for reconsideration from interlocutory orders are governed by the standards for Rule 59(e) motions.” WesternGeco LLC v. Ion Geophysical Corp., No. 4:09-CV-1827, 2011 WL 3608382, at *4 (S.D. Tex. Aug. 16, 2011). See also Thakkar v. Balasuriya, Civil Action No. H-09-0841, 2009 WL 2996727, at *1 (S.D. Tex. Sept. 9, 2009). Relief under Rule 59(e) is appropriate when “(1) new evidence has become available; (2) it is necessary to correct manifest errors of law or fact upon which the judgment is based; (3) it is necessary to prevent manifest injustice; or (4) the[re] exist[s] [] an intervening change in the controlling law.” Johnson v. Buentello, No. 3:09-CV-1023-B, 2010 WL 727752, at *1 (N.D. Tex. Mar. 2, 2010); see also Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005); Schiller v. Physicians Res. Grp., 342 F.3d 563, 567 (5th Cir. 2003).
Reconsideration is warranted here because the Court’s Order was based on the plainly erroneous conclusion that the challenged regulations might be enforced by defendants against plaintiff in their current form. The government, however, has repeatedly made clear that it will never enforce the current regulations against plaintiff in this case. Instead, the government is amending the challenged regulations and it is beyond doubt that by August 2013 there will be new rules applicable to plaintiff. Indeed, the government has taken additional concrete steps since the Court issued its Order to amend the challenged regulations. On February 1, 2013, the government issued an NPRM that proposes specific, material revisions to the current regulations and reiterates the government’s unwavering commitment to finalize the new rules by August 2013. Proposed amendments to the religious employer exemption, if adopted without change, would almost certainly ensure that plaintiff here is exempt from the contraceptive coverage requirement. And, even in the highly unlikely event that plaintiff is not exempt under the
4

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 11 of 28 PageID 707
amended regulations, it is clear that plaintiff would still be eligible for the NPRM’s proposed accommodations for nonprofit religious organizations with religious objections to contraceptive coverage. In short, any argument that there will be no change at all with respect to the specific plaintiff in this case lacks credibility. Finally, the Supreme Court’s recent decision in Clapper makes crystal clear – if it was not already clear – that neither plaintiff’s allegations of speculative future injury nor plaintiff’s allegations of present injury based on the need to prepare for a speculative future event (and the government’s enforcement of the current regulations against plaintiff does not even rise to the level of speculative) is sufficient to provide this Court with jurisdiction. In light of these factors – taken either independently or together – the Court should reconsider its Order.
A. The Court’s Order Is Based On The Manifestly Erroneous Conclusion That The Current Regulations Might Be Enforced By Defendants Against Plaintiff
This Court’s determination that it has jurisdiction over plaintiff’s challenge to the current regulations rests on the proposition that those regulations might be enforced by defendants against plaintiff. Specifically, in concluding that plaintiff has alleged an injury in fact for purposes of standing, the Court relied on plaintiff’s allegation that “the looming effective date of the [challenged regulations] imposes present costs and other harms upon [plaintiff] as it prepares for the [challenged regulations’] enforcement.” Order at 7, Jan. 31, 2013, ECF No. 43 (emphasis added). The Court also noted that, once the challenged regulations are enforced, they will require plaintiff to provide health coverage that it has asserted violates its religious beliefs. Id. The Court concluded that these asserted harms, which both stem from a presumption of enforcement or intended future enforcement of the challenged regulations, would be redressed by a favorable decision. Id. With respect to ripeness, the Court stated that “this is not a case where an enforcement action is only remotely possible,” id. at 11 (citation omitted), and distinguished
5

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 12 of 28 PageID 708
this case from Wheaton College, in which the D.C. Circuit determined that a nearly identical challenge was not ripe, by noting that the government had not represented to this Court that it would never enforce the challenged regulations in their current form against the specific plaintiff here, as it had done with the plaintiffs in Wheaton College, id. at 11 n.6. The Court concluded that plaintiff would face hardship absent a ruling on the lawfulness of the current regulations because plaintiff must make plans for coming into compliance with the regulations or budget for the imposition of penalties for non-compliance. Id. at 10.
All of these conclusions, which are essential to the Court’s finding of jurisdiction, should be reconsidered because they rest on the Court’s plainly erroneous assumption that the challenged regulations might be enforced by defendants against plaintiff in their current form. The government, however, has repeatedly stated that that is not the case. As defendants did with respect to the plaintiffs in Wheaton College, defendants have represented in this case that they will never enforce the regulations in their current form against this specific plaintiff, the Roman Catholic Diocese of Fort Worth. See Notice of Supplemental Authority at 3, Dec. 20, 2012, ECF No. 36 (“Defendants have stated on numerous occasions – in the context of this litigation and elsewhere – that defendants will never enforce the regulations in their current form against entities like plaintiffs.”); id. at 6 (“[B]ecause defendants will never enforce the regulations in their current form against plaintiffs in this case . . . – and it is not yet certain what form the amended regulations will take – there is nothing for such plaintiffs to plan for and no costs for them to reasonably incur at this stage.”); id. (“[T]he regulations in their current form will never be enforced by defendants against plaintiffs like those in Archdiocese of New York and this case[.]”); id. at 7 (“[A]s it relates to plaintiffs like those in Archdiocese of New York and this case . . . [the] final rules are not now and will never be enforced in their present form by
6

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 13 of 28 PageID 709
defendants[.]”); see also Defs.’ Mem. in Supp. of Mot. to Dismiss at 2, 9, 10, 12, 13, Aug. 6,
2012, ECF No. 12; Defs.’ Reply in Supp. of Mot. to Dismiss at 1, 3-11, Sept. 24, 2012, ECF No. 19.2
Furthermore, as if the representations made in this case were not sufficient, the
commitment made by the government at oral argument in Wheaton College clearly extends, by
its express terms, to the plaintiff in this case as well. This Court itself quoted the portion of the
Wheaton College decision indicating that the government’s commitment applies not only to Wheaton College, but to all “similarly situated” entities, such as plaintiff here.3 Order at 11 n.6.
Moreover, even prior to the oral argument in Wheaton College, the government stated on
numerous occasions – in the context of litigation and in the Federal Register – that the
regulations in their current form will never be enforced against entities like plaintiff, and
defendants specifically pointed to those representations in support of their motion to dismiss in
this case. See Notice of Supplemental Authority at 3 n.3 (quoting numerous statements).
Finally, if there were any need to remove any possible doubt, the government has restated these
2 This Court referenced the government’s statement regarding non-enforcement in response to a question at oral argument in Wheaton College. Order at 11 n.6. Had this Court held oral argument in this case, defendants would have made the same statements here, as they have repeatedly in their filings in this case. 3 Like the government’s non-enforcement commitment, the representation that defendants would publish an NPRM in the first quarter of 2013 (which they did) and that they would finalize the new rules before August 2013 is not a commitment specific to the plaintiffs in Wheaton College. The NPRM is not an adjudication involving only the plaintiffs in Wheaton College; it is a proposed rule of general applicability that, when finalized, will apply to all similarly situated entities. See Wheaton Coll., 703 F.3d at 552 (“There will, the government said, be a different rule for entities like the appellants, . . . and we take that as a binding commitment.” (emphasis added)). Thus, there is absolutely no basis to conclude that the government’s commitments at the Wheaton College oral argument, which the government has in any event repeated here, see supra pp. 6-7; Resp. to Pl.’s Notice of Supp. Auth. at 1-2, Jan. 15, 2013, ECF No. 41, somehow apply only in Wheaton College.
7

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 14 of 28 PageID 710
guarantees in the attached Declaration of Theresa Miller. See Decl. of Theresa Miller ¶ 5 (Feb. 26, 2013).
In the face of these repeated, consistent, and case-specific representations that the government will never enforce the regulations in their current form against plaintiff in this case, it was manifest error for this Court to ground its finding of jurisdiction over plaintiff’s challenge to the current regulations on the possibility of enforcement of those regulations by defendants against plaintiff or plaintiff’s purported need to plan for such enforcement. See e.g., Wheaton Coll., 703 F.3d at 552 (taking “the government at its word” and considering its assurances to be “binding commitment[s]”); CCU, 2013 WL 93188, at *5 (recognizing the “good-faith presumption” to which defendants’ representations are entitled); Notre Dame, 2012 WL 6756332, at *3 (“The government is entitled to a presumption of good faith in such promises.”); Zubik, 2012 WL 5932977, at *9; Bowden v. Wilemon, No. 4:11-CV-711-A, 2012 WL 426638, at *5 (N.D. Tex. Feb 9, 2012) (“The good faith of government officials is presumed, and the burden of proof of establishing lack of good faith is upon the complaining party.”). Indeed, as this Court’s “but see” citation, see Order at 11-12, implicitly recognizes, nearly every other court to have considered defendants’ jurisdictional arguments has found defendants’ assurances – along with the concrete steps defendants have taken to amend the challenged regulations, including the Advance Notice of Proposed Rulemaking (“ANPRM”) and NPRM – to be sufficient to conclude that the regulations in their current form will never be enforced by defendants against entities like plaintiff. Because the government will never enforce the current regulations against plaintiff – and it is not yet certain what form the amended regulations will take – there is nothing for plaintiff to plan for and no costs for it to reasonably incur at this stage. Money and time spent planning for implementation of the current regulations – which will never be enforced by
8

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 15 of 28 PageID 711
defendants against plaintiff – is money and time wasted, and planning for as yet unknown future
regulations is a self-inflicted injury. Accordingly, plaintiff lacks standing, its challenge to the current regulations is not ripe, and this Court should reconsider its Order to the contrary.4
B. The Notice of Proposed Rulemaking Issued By Defendants After This Court’s Order Further Demonstrates That The Court Lacks Jurisdiction
The day after this Court denied defendants’ motion to dismiss, defendants issued an
NPRM that would materially amend the contraceptive coverage requirement as it applies to
plaintiff, as well as other nonprofit religious employers with religious objections to providing
contraceptive coverage. See 78 Fed. Reg. 8456, 8459 (Feb. 6, 2013). Issuance of the NPRM – a
new development that occurred after this Court’s decision – also warrants reconsideration of the
Court’s Order. See Johnson, 2010 WL 727752, at *1; see also Roman Catholic Diocese of
Dallas, 2013 WL 687080, at *15 (“The promulgation of the NPRM . . . urges the undeniable
conclusion that the case is not ripe”). Although defendants’ prior assurances and concrete steps
toward amending the regulations to accommodate employers like plaintiff – the ANPRM, the
enforcement safe harbor, and the government’s repeated statements committing to the timely
establishment of the new accommodations – are sufficient by themselves to establish that
4 This Court’s conclusion that defendants’ intent to amend the regulations is irrelevant for purposes of standing, Order at 7, is also plainly erroneous. Although standing is determined at the time suit is filed, id., defendants had announced their intent to amend the regulations to address religious concerns more than three months before plaintiff filed this action, in the preamble to the very rules plaintiff challenges. See 77 Fed. Reg. 8725, 8727 (Feb. 15, 2012). The government also had already established the enforcement safe harbor, and it was clear at the time plaintiff filed suit that it was protected by the safe harbor. See Compl. ¶ 80. Therefore, unlike in Wheaton College, where the plaintiffs filed suit before the government established the safe harbor or clarified that it applied to the plaintiffs in that case, plaintiff here lacked any cognizable injury at the time it filed suit.
Nonetheless, even if the Court is unwilling to reconsider this aspect of its Order, the Court’s reasoning does not extend to the question of ripeness. See Anderson v. Green, 513 U.S. 557, 558 (1995) (“[R]ipeness is peculiarly a question of timing, and it is the situation now rather than the situation at the time of the [decision under review] that must govern.” (quotations omitted)).
9

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 16 of 28 PageID 712
plaintiff lacks standing and its claims are not ripe for review, see supra p. 1 n.1 (citing cases), the NPRM further buttresses defendants’ commitment to amend the challenged regulations and underscores the impropriety (as well as the absurdity) of proceeding with a legal challenge to the current regulations.
The NPRM would amend the religious employer exemption in a way that would almost certainly ensure that employers like plaintiff are exempt. Under the NPRM’s proposal, “an employer that is organized and operates as a nonprofit entity and referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code” would qualify for an exemption as a religious employer. 78 Fed. Reg. at 8461; see 26 U.S.C. § 6033(a)(3)(A)(i), (iii) (referring to churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order). Based on plaintiff’s own allegations, see Compl. ¶ 14, May 21, 2012, ECF No. 1, it would almost certainly be assured of qualifing for the exemption and thus would almost certainly be under no obligation to provide contraceptive coverage.5 The NPRM therefore further demonstrates why deciding the legality of the current regulations would “entangl[e the Court] in abstract disagreements over administrative policies,” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807 (2003), and result in the Court deciding issues that will very likely never arise, Texas v. United States, 523 U.S. 296, 300 (1998).
Even if it were not clear that plaintiff would almost certainly be assured of qualifying for an exemption as a religious employer if the NRPM’s definition of religious employer is adopted in the soon-to-be promulgated final rules, it is clear that plaintiff would still be eligible for the NPRM’s proposed accommodations for nonprofit religious organizations with religious
5 And plaintiff, of course, is not subject to enforcement by defendants now as defendants are not enforcing the current regulations against plaintiff or other entities like it. See supra.
10

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 17 of 28 PageID 713
objections to contraceptive coverage. 78 Fed. Reg. at 8459. The proposed accommodations would provide employees of eligible organizations with contraceptive coverage without cost sharing “while insulating their employers . . . from contracting, arranging, paying, or referring for such coverage.” 78 Fed. Reg. at 8462. Even if for some reason plaintiff is not satisfied with the accommodations (and no one can know whether it will be until the amended regulations are finalized by August of this year), the accommodations will present different legal questions than the current regulations. See, e.g., Roman Cathoic Diocese of Dallas, 2013 WL 687080, at *15 (“The proposed amendments, if adopted, spill into every aspect of the present case and constitute reversal of course on [the agency’s] part that, if adopted, would necessitate substantively different legal analysis and would likely moot the analysis we could undertake if deciding the case now.” (quotation omitted)).
In short, it will serve absolutely no purpose whatsoever for this Court to render a decision on the legality of the current regulations because the regulations will be different come August 2013 and, in the meantime, the current regulations will never be enforced by defendants against plaintiff. Indeed, plaintiff’s proposed discovery plan for this case demonstrates that plaintiff really has no desire to pursue its challenge to the current regulations, which is not surprising in light of the fact that those regulations are not now and never will be enforced by defendants against plaintiff. Plaintiff has proposed a discovery period that extends until October 15, 2013,6
6 The parties conducted a Rule 26(f) Conference on February 19, 2013, during which plaintiff proposed that fact discovery extend until June 1, 2013 and expert discovery extend until October 15, 2013. Plaintiff also indicated that it anticipates seeking discovery regarding, inter alia, third party interaction with the U.S. Department of Health and Human Services or roles played in the creation of the challenged regulations; defendants’ processes and procedures regarding the religious employer exemption; and internal memos, and scientific and statistical materials considered by defendants. The parties intend to file their Joint Rule 26(f) Report by the March 15, 2013 deadline set by the Court.
11

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 18 of 28 PageID 714
but by then the current regulations will have changed as to plaintiff and plaintiff’s current challenge will be moot (even assuming it were justiciable to begin with, which it is not).7
Engaging is such a futile exercise – particularly where the only possible outcome could be an
advisory opinion about the legality of regulations that are currently being amended and will
never be enforced by defendants against plaintiff – is precisely what the ripeness doctrine is
intended to avoid. See, e.g., Am. Petroleum Inst. v. Envtl. Prot. Agency, 683 F.3d 382, 388 (D.C.
Cir. 2012) (“It would hardly be sound stewardship of judicial resources to decide this case now .
. . given that an already published proposed rule, if enacted, would dispense with the need for
such an opinion in a matter of months.”).
Issuance of the NPRM also further highlights the Court’s error in relying on a technical
conception of finality. The Supreme Court has instructed lower courts to apply the finality
requirement in a “flexible” and “pragmatic” manner. See Abbott Labs. v. Gardner, 387 U.S. 136,
149-50 (1967). In concluding that the current regulations are fit for judicial review, however,
this Court relied exclusively on the fact that the challenged regulations are “final rule[s]” that are
“on the books.” Order at 9. This mechanical application of the finality requirement improperly
elevates form over substance and ignores the reality of the regulatory and enforcement landscape
7 The plaintiffs in Archdiocese of New York, who are represented by the same law firm that represents plaintiff here, have charted a similar course. The plaintiffs in that case rejected the court’s suggestion to proceed directly to summary judgment briefing and limit the scope of discovery. Instead, the plaintiffs’ counsel stated that it only “makes sense to further discuss the timing of summary judgment motions after the new regulation is promulgated and we have had a chance to analyze it with our clients.” But any subsequent summary judgment motion would, necessarily and by the plaintiffs’ own recognition, be based on the forthcoming regulations, not the ones at issue in that case or here. And any discovery regarding the current regulations cannot possibly be relevant to the validity of the forthcoming regulations. Like the plaintiffs’ rejection of summary judgment briefing on the current regulations in Archdiocese in New York, plaintiff’s proposed discovery plan in this case demonstrates that plaintiff’s assertion that it faces current injury or harm because of its need to prepare for the implementation of the current regulations is simply fatuous.
12

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 19 of 28 PageID 715
as it relates to plaintiff. See, e.g., Abbott Labs., 387 U.S. at 151 (inquiring whether final rule was nonetheless “tentative” and whether “compliance was expected” in assessing ripeness); Roman Cathoic Diocese of Dallas, 2013 WL 687080, at *15-16; CCU, 2013 WL 93188, at *7; Notre Dame, 2012 WL 6756332, at *3; Catholic Diocese of Biloxi, 2012 WL 6831407, at *7; Belmont Abbey Coll., 878 F. Supp. 2d at 38-39. Even if the ANPRM, the enforcement safe harbor, and defendants’ repeated commitments not to enforce the current regulations against plaintiff and to amend the regulations to address religious concerns like those raised by plaintiff were not sufficient to demonstrate that the government’s position is tentative (and they are sufficient, see, e.g., CCU, 2013 WL 93188, at *7), the NPRM – which proposes specific amendments that would almost certainly ensure the exemption of, or at the very least accommodate, plaintiff – is. See, e.g., Am. Petroleum Inst., 683 F.3d 382; Tex. Indep. Producers and Royalty Owners Ass’n v. EPA, 413 F.3d 479, 483-84 (5th Cir. 2005); Lake Pilots Ass’n, Inc. v. U.S. Coast Guard, 257 F. Supp. 2d 148, 160-62 (D.D.C. 2003). Accordingly, this Court should reconsider its Order.
C. The Supreme Court’s Decision In Clapper v. Amnesty International USA – Handed Down Two Days Ago – Is Controlling
On February 26, 2013, the Supreme Court issued a ruling in Clapper v. Amnesty Int’l USA, 568 U.S. __, 2013 WL 673253 (Feb. 26, 2013), that underscores the errors in this Court’s Order and controls the disposition of the jurisdictional analysis in this case. This recent development in the controlling law also warrants reconsideration. See Johnson, 2010 WL 727752, at *1 (N.D. Tex. 2010).
The plaintiffs in Clapper – “attorneys and human rights, labor, legal, and media organizations” – challenged Section 702 of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1881a, on the grounds that they frequently communicate with individuals who are likely targets of surveillance. 2013 WL 673253, at *3, 6. The plaintiffs – like plaintiff here – advanced
13

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 20 of 28 PageID 716
two theories of standing: first, that future harm was likely because of the “reasonable likelihood”
that their communications would be the subject of surveillance; and second, that they had
suffered present injury to attempt to avoid that likely future harm. Id. at *3, 6. With respect to
the latter, plaintiffs alleged that they had “take[n] costly and burdensome measures to protect the
confidentiality of their communications,” such as travelling abroad to have in-person
conversations and ceasing to engage in certain telephone and e-mail conversations. Id. at *7, 16.
The Supreme Court rejected both theories. First, the Court emphasized that, for a
possible future injury to convey standing, the injury must be “certainly impending.” Id. at *7. In
so holding, the Court rejected the “objectively reasonable likelihood” of injury standard that the
Second Circuit had applied. Id. at *8. The Court concluded that because the future event that
the plaintiffs feared was speculative, the threatened injury was not certainly impending. Id. at
*8-11.
Second, the Court rejected the plaintiffs’ argument that they had standing as a result of
present injury or harm incurred in preparation for the speculative future event. Id. at *11. The
Court’s reasoned:
The Second Circuit’s analysis imprope rly allowed responde nts to establish standing by asserting that they suffer present costs and burdens that are based on a fear of surveillance, so long as that fear is not “fanciful, paranoid, or otherwise unreasonable.” [ Amnesty Int’l U SA v. Clapper , 638 F.3d at 134]. This improperly waters down the funda mental requirements of Article III. Respondents’ contention that they have standing because they incu rred certain costs as a reasonable reaction to a risk of harm is unavailing – because the harm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing m erely by inflicting harm on them selves based on their fears of hypothetical future harm that is not certainly impending. . . . Any ongoing injuries that respondents are suffering are not fairly traceable to § 1881a.
If the law were otherwise, an en terprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. As Judge Raggi accu rately noted, under the Second Circuit panel’s reasoning, respondents could, “for the price of a plane ticket, . . .
14

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 21 of 28 PageID 717
transform their standing burden from one requiring a showing of actual or imminent . . . interception to one requiring a showing that their subjective fear of such interception is not fanciful, irra tional, or clearly unreasonable.” [ Amnesty Int’l,] 667 F.3d at 180 (internal quotati on marks om itted). Thus, allowing respondents to bring this action based on costs they incurred in response to a speculative threat would be tantamount to accepting a repackag ed version of respondents’ first failed theory of standing. Id. (internal citations omitted). While the p articular facts of Clapper are, of course, different from the facts here, the Court’s analysis is dire ctly on point. Like the plaintiffs in Clapper, plaintiff here bases its argument for standing on a speculative future injury that is not certainly im pending. In fact, the threatened future event in Clapper – the surveillance of the plaintiffs’ communications – was far more likely to occur th an the purp ortedly threatened future event in this case – defendants’ enforcement of the current regulatio ns against plaintiff – which, the gov ernment has repeatedly stated, will never occu r. And, like the plaintiffs in Clapper, plaintiff here a lleges that it is suffering present harm to prep are for this speculative future event – a llegations on which th is Court’s standing and ripeness analyses largely rested. See Order at 7 (finding standing based on costs incurred by plain tiff as it prepares for the curren t regulations’ enforcem ent); id. at 10 (concluding plaintiff’s purported need to budget and plan fo r future enforcement of challenged regulations constitutes hardship for purposes of ripeness). But the Supreme Court has now made it abundantly clear th at such allegations are no t sufficient to provide th is Court with Article III jurisdiction where the underlying threatened even t for which plaintiff is planning is, as is indisputably the case here, not certainly im pending. In light of the S upreme Court’s controlling decision in Clapper – which was handed down after this Court’s decision – this Court should reconsider its Order.
15

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 22 of 28 PageID 718
II. IF THE COURT DENIES DEFENDANTS’ MOTION FOR RECONSIDERATION, IT SHOULD CERTIFY ITS ORDER FOR INTERLOCUTORY APPEAL In the event that the Court denies defendants’ motion for reconsideration, defendants ask
the Court to certify the Order denying defendants’ motion to dismiss for immediate appeal to the Fifth Circuit pursuant to 28 U.S.C. § 1292(b). Section 1292(b) allo ws a district court to certif y an order for interlocutory appeal when the order (1) involves a c ontrolling question of law (2) as to which there is substantial ground f or difference of opinion and (3) an immediate appeal fro m the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). Although the decision whether to certify an order fo r interlocutory appeal is within the district court’s discretion, Ryan v. Flowserve Corp. , 444 F. Supp. 2d 718, 722 (N.D. Tex. 2006), all of the 1292(b) factors are easily satisfied in this case.
First, there is no doubt that the question of la w at issue here is “c ontrolling,” as “reversal of the district court’s opinion would result in dism issal of the action. ” Id. at 723 (quotation omitted); see also Tesco Corp. v. W eatherford Intern., Inc., 722 F. Supp. 2d 755, 766 (S.D. Tex. 2010) (“[I]t is clear that a ques tion of law is controlling’ if reversal of the [order] would terminate the action.” (quotati on omitted)). Indeed, numerous cou rts have reco gnized that subject matter jurisdiction is an ap propriate issue for certification of an interlocutory appeal. See, e.g., Klinghoffer v. S.N.C. Achille Lauro , 921 F.2d 21, 24 (2d Cir. 1990); U.S. ex rel. State of Wisconsin v. Dean , 729 F.2d 1100, 1103 (7th Cir. 1984); Schwendimann v. Arkwright Advanced Coating, Inc., Civil No. 11-820ADM/JSM, 2012 WL 5389674, at *3 (D. Minn. Nov. 2, 2012); In re Mounce, No. 03-55022-1mc, 2008 WL 2714423, at *5 (Bankr. W .D. Tex. July 10, 2008) (“[C]ertainly subject m atter jurisdiction counts as a controlling question of law.”); Meche v. Richard, Civil Action No. 05-0385, 2007 WL 3129583, at *1 (W.D. La. Oct. 22, 2007). Nor would resolution of the jurisdictional questi ons require a heav ily fact-based analysis. See
16

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 23 of 28 PageID 719

Ryan, 444 F. Supp. 2d a t 722. To t he contrary, defendants’ jurisdictional challenge presents a

question of law: whether a court has jurisdicti on over a plaintiff’s chal lenge to regulations

despite the governm ent’s commitment to never enfo rce those regulations in their current for m

against the plaintiff and the existence of an ongoing rulem aking designed to am end those

regulations to address th e plaintiff’s concerns. The appeals court will no t need “to go hunting

through the record” to dis cern the relevant facts, id. (quotation om itted), because this Court’s

decision relied on the facts alleged in plaintiff’s complaint, Order at 6 n.5. Moreover, plaintiff’s

allegations of injury an d hardship are largely irrelevant to the reso lution of the operative legal

questions, as defendants’ argum ents are based not on a rejection of such factual allegations, but

instead on the leg al truism that any injury or hardship cannot stem from the current regulations

because those regulations will never be enforced by defendants against plaintiff.

Second, it is abundantly clear that there is substantial ground for difference of opinion on

the jurisdictional questions at issue in this cas e. As previously noted, this Court’s Order is in

conflict with the rulings of sixteen other courts, including a court of appeals – that alone is easily

sufficient to satisfy this prerequisite for certification.

See, e.g., Castellanos–Contreras v.

Decatur Hotels, LLC, 622 F.3d 393, 399 (5th Cir. 2010) (accep ting jurisdiction of interlocutory

appeal that presented “a que stion about which reasonable jurists can . . . debate”); Louisiana

Generating, LLC v. Illinois Union Ins. Co. , Civil Action No. 10-516-JJB-SCR, 2012 WL

1752685, at *2 (M.D. La. May 16, 2012) (finding subs tantial ground for difference of opinion

where “other district courts . . . have reached different conclusi ons when confronted with . . .

question[]”); Aspen Specialty Ins. C o. v. Muniz Eng’g Inc. , Civil Action No. H-05-0277, 2006

WL 1663732, at *3 (S.D. Tex. June 15, 2006) (explaini ng that requirem ent is satisfied when

there are “conflicting rulings on [the ] issue” or a “contrary ruling by [a] federal district court in

17

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 24 of 28 PageID 720
another state”). This is so even if this Court believes that it is unlikely that the Fifth Circuit will reverse its Order. See Dev. Specialists, Inc. v. Akin Gump Strauss Hauer & Feld LLP , No. 11cv-5994(CM), 2012 WL 2952929, at *8 (S.D.N.Y. July 18, 2012) (“[I]f a district court had to believe that her decision was likely to be reve rsed before certifying a question under 28 U.S.C. § 1292(b), there would be no such certif ications. Probability of revers al is not the standard. The standard is whether there is ‘substantial ground for disagreement.’”).
Finally, certification may materially advance th e ultimate termination of the litig ation. Quite simply, a reversal of this Court’s Orde r “would not only ‘m aterially advance’ the ultimate disposition of ‘the litig ation,’ it would terminate it altogether.” Ex parte Tokio Marine & Fire Ins. Co., 322 F.2d 113, 115 (5th Cir. 1963); see also Gautier v. Plains Pipeline, LP, Civil Action No. 12-1064, 2012 WL 4483003, at *3 (E.D. La. Se pt. 28, 2012) (concludi ng interlocutory appeal could materially advance litigation “by potentially avoiding litigation of [plaintiff’s] case in district court only to discove r later on tha t there was no subjec t matter jurisdiction over [its] claims”). Moreover, allowing such an appeal w ould “avoid protracted and expensive litigation,” Mpiliris v. Hellenic Lines, Ltd. , 323 F. Supp. 865, 884 (S.D. Te x. 1969), includ ing litigation concerning discovery that plain tiff has ind icated it in tends to seek, “thereby saving tim e and expense for the cou rt and the litigants,” Ryan, 444 F. Supp. 2d at 723. See also Ex parte Tokio Marine, 322 F.2d at 115 (“[T]o require the parties to go through a trial before a court lacking jurisdiction would be both expensive and sensel ess for no matter what facts were developed on the trial, the Constitu tion would forbid the adjudication there.”). Although this Court has determined that “[plaintiff’s] claims present purely legal issues, and further factual developm ent is not necessary to resolve them,” Order at 9, plaintiff has indicated that it nonetheless intends to seek very broad discovery and has proposed a discovery period th at extends until October 15,
18

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 25 of 28 PageID 721
2013. See supra n.6. The government’s experience in the Archdiocese of New Yor k case – the only other case in which a court has found jurisd iction and a case in whic h the plaintiffs are represented by the same law firm that represents plaintiff here – has m ade clear, such discovery, if the Court perm its it, will be extraordinarily burdensome, take many months to c omplete, and require detailed review of potentially millions of pages of documents and significant expenditure of agency and counsel ’s time and resources.8 It is also likely that any discovery will engender motions practice as to the scope of perm issible discovery, pr ivilege issues, and the like, necessitating further expe nditure of the Court’s and the parties’ tim e and res ources. It is defendants’ position that any discovery serves no useful purpose, particularly given the moribund nature of the current regulations as app lied to plaintiff, but plaintiff has nonetheless stated that it intends to move forwa rd with di scovery requests. A ruling in defendants’ favor would obviate the need for any discovery and end this case. See Thompson v. Shaw Group, Inc., Civil Action No. 04-1685, 2006 WL 2038025, at *1 (E.D. La. July 19, 2006) (concluding requirement was m et where interlocutory appeal may “render years of discovery, enorm ous expenses incurred by the parties, and a trial on the merits unnecessary” and “conserve judicial resources”); In re Dynex Capital, Inc. Sec. Litig., No. 05-cv-1897(HB), 2006 WL 1517580, at *3 (S.D.N.Y. June 2, 2006) (certifying for interlocutory appeal where “substantial resources may be expended in vain both by the pa rties and this Court if my initial conclusion proves incorrect”); Rogers v. C ity of San A ntonio, No. Civ. A. SA-99-CA-1110, 2003 W L 1571550, at *3 (W .D. Tex. Mar. 24, 2003). Of course, once the amended regulations are issued, plaintiff will be free to challenge them if it believes that its concerns have not been adequately addressed – but that case, and any attendant discovery, would, of course, be different.
8 The government has also filed a motion for reconsideration or, in the alternative, for certification under 28 U.S.C. § 1292(b) in Archdiocese of New York.
19

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 26 of 28 PageID 722

In sum, the Court’s Or der is an id eal candidate for certification pursuant to 28 U.S.C.

§ 1292(b). Respectfully submitted this 28th day of February, 2013.

STUART Princip

F. DELERY al Deputy Assistant Attorney General

IAN

HEATH GERSHENGORN

Deputy Assistant Attorney General

SARAH R. SALDAÑA United States Attorney

JENNIFER RICKETTS Director, Federal Programs Branch

SHEILA Deputy

M. LIEBER Director, Federal Programs Branch

BRADLEY
United Civil

/s/ Bradley P. Humphrey P. HUMPHREYS (VA Bar No. 83212)
Trial Attorney States Department of Justice
Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7219 Washington, D.C. 20530 Tel: (202) 514-3367 Fax: (202) 616-8470 Email: bradley.p.humphreys@usdoj.gov

Attorneys for Defendants

20

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 27 of 28 PageID 723
CERTIFICATE OF SERVICE I certify that on February 28, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS

Case 4:12-cv-00314-Y Document 47 Filed 02/28/13 Page 28 of 28 PageID 724
CERTIFICATE OF CONFERENCE In accordance with Local Rule 7.1(a) and (b), I certify that, on February 28, 2013, I conferred with Basheer Ghorayeb, counsel for plaintiff, regarding Defendants’ Motion for Reconsideration or, in the Alternative, for Certification Under 28 U.S.C. § 1292(b) Permitting Immediate Appeal. Mr. Ghorayeb indicated that plaintiff opposes this motion.
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS

 
 Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 1 of 18 PageID 832

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROMAN CATHOLIC DIOCESE OF FORT WORTH,
Plaintiff, v.
KATHLEEN SEBELIUS, et al.,
Defendants.

)

)

)

) ) )

Civil Action No. 4:12-cv-00314-Y (TRM)

)

)

)

)

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION FOR RECONSIDERATION OR IMMEDIATE APPEAL UNDER 28 U.S.C. § 1292(b)

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 2 of 18 PageID 833 TABLE OF CONTENTS PAGE
TABLE OF CONTENTS................................................................................................................ i TABLE OF AUTHORITIES ......................................................................................................... ii SUMMARY ................................................................................................................................... 1 ARGUMENT ................................................................................................................................. 1 A. Defendants have failed to establish a proper basis for reconsideration ............................. 1
1. The Court properly refused the Defendants’ invitation to “trust us”..................... 2 2. The issuance of the NPRM is not a proper basis for reconsideration .................... 6 3. The government’s statements in Wheaton are not controlling .............................. 7 B. Defendant’s reliance on Clapper is misplaced................................................................... 8 C. This Court’s order is not subject to an interlocutory appeal under § 1292(b) ................. 11 CONCLUSION............................................................................................................................ 14 CERTIFICATE OF SERVICE .................................................................................................... 15
i

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 3 of 18 PageID 834

TABLE OF AUTHORITIES

CASES

PAGE

Catholic Archdiocese of N.Y. v. Sebelius, 12-civ-2542, 2012 WL 6042864 (E.D. N.Y. Dec. 4, 2012).......................................................5

Clapper v. Amnesty International USA, 568 U.S. __, 2013 WL 673253 (Feb. 26, 2013).........................................................8, 9, 10, 11

Clinton v. City of New York, 524 U.S. 417 (1998).................................................................................................................11

Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm’n, 149 F.3d 679 (7th Cir. 1998) .....................................................................................................5

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978).................................................................................................................11

McFarlin v. Conseco Serv., LLC, 381 F.3d 1251 (11th Cir. 2004) ................................................................................................12

Roman Catholic Diocese of Dallas v. Sebelius, 3:12-cv-1589-B, 2013 WL 687080 (N.D. Tex. Feb 26, 2013) ..................................................3

Ryan v. Flowserve Corp., 444 F. Supp. 2d 718 (N.D. Tex. 2006) ..............................................................................11, 13

Wheaton College v. Sebelius, 703 F.3d 551 (D.C. Cir. 2012) .....................................................................................3, 7, 8, 12

Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981) .....................................................................................................2

STATUTES 28 U.S.C. § 1292(b) .................................................................................................................11, 13

OTHER AUTHORITIES

Rule 59(e).........................................................................................................................................1

ii

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 4 of 18 PageID 835
SUMMARY This Court correctly denied Defendants’ motion to dismiss and Defendants have failed to provide a proper basis for reconsidering that decision. Defendants now regurgitate the same arguments that this Court has already considered, and rejected. Defendants also try to change the Court’s mind by convincing it that the government is now committed to never enforcing the Mandate against the Diocese. This argument, which the Defendants never made in their motion to dismiss, is insufficient for two reasons: (1) it is wrong—the government has avoided entering into such a binding stipulation with the Diocese, and (2) it is irrelevant—a commitment made after the filing of this lawsuit cannot affect standing, because standing is determined as of the time the suit is filed. (Order Denying Motion to Dismiss (Doc. 43) at 7.) This alleged commitment is not a proper basis for reconsidering the Court’s decision. Defendants are also not entitled to their requested alternative relief—an interlocutory appeal. Defendants have not pointed out a “controlling question of law” that would be the subject of the appeal; instead, Defendants seek to appeal this Court’s application of well-settled law to the facts, which would violate section 1292(b)’s requirement for an immediate appeal.
ARGUMENT A. Defendants have failed to establish a proper basis for reconsideration This Court should deny Defendants’ motion for reconsideration. As Defendants concede, Relief under Rule 59(e) is appropriate only if (1) new evidence is available, (2) there exists a manifest error of law or fact, (3) it is necessary to prevent manifest injury, or (4) the controlling law has changed. (Doc. 47 at 4.) Apparently seeking to fit under the “manifest error of law or fact” prong of Rule 59(e), Defendants accuse the Court of reaching “the plainly erroneous

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 5 of 18 PageID 836
conclusion that the regulations might be enforced by defendants against plaintiff in their current form.” (Doc. 47 at 4.) But as shown below, it is the government, not this Court, that is in error.
1. The Court properly refused the Defendants’ invitation to “trust us” Defendants complain that this Court failed to credit the government for allegedly having “repeatedly made clear that it will never enforce the current regulations against plaintiff in this case.” [Doc. 47 at p. 4 (emphasis in original)]. At the outset, it is worth noting that the government alleges it made these representations in pleadings after this lawsuit is filed. As this Court recognized in its order, standing is determined as of the time the suit is filed, making the government’s post-filing representations irrelevant. (Order Denying Motion to Dismiss (Doc. 43) at 7.) In order to affect standing, the government would have had to have made the representations before the lawsuit was filed. Moreover, the government has made no such representations—prior to this Court’s order, the government dodged every opportunity to stipulate that the regulations would not be enforced against the Diocese. First, Defendants refused to enter a stipulation along these lines when approached by the Diocese. In January, before this Court issued its order, the Diocese asked the government to stipulate to not enforcing the regulations against the Diocese and other plaintiffs. See January 16, 2013 Letter of Paul M. Pohl to Bradley P. Humphreys (Attached as Exhibit 1). The government refused to do so. Second, Defendants refused to make such a commitment in their motion to dismiss. Because Defendants filed a 12(b)(1) motion, they could have introduced evidence to raise a standing challenge. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (stating that district court ruling on a 12(b)(1) motion may consider and resolve disputed facts). Defendants could have, for example, attached evidence, if any existed, to prove that the Diocese would never be
2

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 6 of 18 PageID 837
subject to an enforcement action under the regulations. Because no such evidence existed, Defendants opted for a weaker, facial challenge to the pleadings, and additionally tried to distract this Court from focusing on the currently enacted regulations, pointing the Court instead to the safe harbor and the promise of future regulations. This tactic has, admittedly, worked with several courts, but this Court and the district court in New York properly focused on the present regulations.
In fact, this Court’s ruling on standing was also in accord with the ruling of its sister court in the Northern District and with the D.C. Court of Appeals. Judge Boyle in the Northern District of Texas, Dallas Division, agreed with this Court that a Roman Catholic diocese had standing notwithstanding the new rulemaking, because standing is measured as of the time the lawsuit is filed. Roman Catholic Diocese of Dallas v. Sebelius, No. 3:12-cv-1589-B, 2013 WL 687080 (N.D. Tex. Feb 26, 2013) (finding the Diocese of Dallas has standing, but that the claims are unripe). The D.C. Circuit Court of Appeals rejected the government’s standing challenge in Wheaton on the same grounds. Wheaton College v. Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012). Thus, although the Defendants labor to paint this Court’s order as an aberration, this Court’s reasoning on standing is, to the contrary, consistent with that of two other district courts (the Dallas Division in this district and the New York district court), as well as the only Court of Appeals to consider the issue.
Further straining their credibility, the Defendants now claim that their motion to dismiss contained binding representations to this Court, and Defendants cite the following pages in support: pages 2, 9, 10, 12, and 13 of the motion to dismiss. (Doc. 47 at 7.) The government cites to these pages to support the following statement in their motion for reconsideration: “[D]efendants have represented in this case that they will never enforce the regulations in their
3

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 7 of 18 PageID 838
current form against this specific plaintiff, the Roman Catholic Diocese of Fort Worth.”
(Doc. 47 at 6 (emphasis omitted).) But those pages from the motion to dismiss contain no such
representation.
In those pages of the motion to dismiss, Defendants merely noted that they had issued the
ANPRM, that they intended to amend the regulations before the end of the safe harbor, and that
there was “no reason to suspect” that Plaintiff would have to provide objectionable services:
• Page 2: Defendants argue that the safe harbor “provides that defendants will not bring any enforcement action against such organizations that meet certain criteria (and associated group health plans and issuers) during the safe harbor period.” Defendants make no promises about what occurs after the safe harbor period.
• Page 9-10: Defendants note that by the time the safe harbor expires, they expect to have made significant changes: “By that time, defendants expect that significant changes to the preventive services coverage regulations will have altered the landscape with respect to certain religious organizations by providing them with further accommodations.” Defendants further note that these changes “will establish alternative means of providing contraceptive coverage without cost-sharing while also accommodating non-exempt, nongrandfathered religious organizations’ religious objections to covering contraceptive services.” Finally, Defendants note that they intend “to finalize the amendments to the regulations such that they are effective before the end of the temporary enforcement safe harbor.”
• Page 12-13: Defendants argue that the ANPRM is “promising imminent regulatory amendments.” Therefore, Defendants conclude, “In light of the forthcoming amendments, and the opportunity the rulemaking process provides for plaintiff to help shape those amendments, there is no reason to suspect that plaintiff will be required to sponsor a health plan that covers contraceptive services in contravention of its religious beliefs once the enforcement safe harbor expires.”
(See Motion to Dismiss (Doc. 12) at 2, 9-10, 12-13.) Notably lacking from these pages is a
governmental representation that the regulations would never be enforced against the Diocese.
To the contrary, Defendants carefully, and in a very lawyerly manner, avoided making any such
4

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 8 of 18 PageID 839
promises in their motion to dismiss—leaving the option open to enforce the regulations against Plaintiff.
The government’s coy refusal to forswear enforcement further supports the Diocese’s standing. In a pre-enforcement challenge, a plaintiff has a credible threat of enforcement when the government “fails to affirmatively indicate that it will not enforce the statute.” Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm’n, 149 F.3d 679, 687 (7th Cir. 1998) (citing Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988)). For example, in ACLU v. Alvarez, the Seventh Circuit rejected a standing challenge because the state had not “foresworn the possibility” of enforcing a statute against the plaintiff. 679 F.3d 583, 593 (7th Cir. 2012). Similarly here, when the government moved to dismiss the case, it failed to affirmatively indicate to this Court that the current regulations will not be enforced against Plaintiff. The government instead pointed to statements in other cases and raised speculation about future changes, which are irrelevant to standing.
But in concluding that the Diocese had standing and ripe claims, this Court was entitled to rely on the government’s statements in its motion to dismiss, on the existence of final regulations, and on the Plaintiff’s allegations. Another federal judge also carefully considered similar facts and concluded that a similarly situated diocese had standing and a ripe dispute. Catholic Archdiocese of N.Y. v. Sebelius, 12-civ-2542, 2012 WL 6042864 (E.D.N.Y. Dec. 4, 2012). Like the district judge in New York, this Court carefully analyzed the parties’ briefs and supplemental authority, concluding that the Diocese had standing and that its claims were ripe. The Court’s conclusion was correct and the government has failed to identify any manifest error of law or fact in this Court’s order.
5

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 9 of 18 PageID 840
2. The issuance of the NPRM is not a proper basis for reconsideration The Notice of Proposed Rulemaking (NPRM) was an anticipated development and its issuance does not require reconsideration of the Court’s order. While it is true that the Defendants finally issued the NPRM just after this Court’s ruling, this event was anticipated by the Court. Prior to this Court’s ruling, the parties had briefed the Court on the fact that the Defendants had issued the Advanced Notice of Proposed Rulemaking (ANPRM), which anticipated the NPRM. This Court expressly considered and dismissed the Defendants’ arguments that the accommodations previewed by the ANPRM affected the plaintiff’s standing and the case’s ripeness. The Court found that Defendants’ standing arguments were irrelevant because “‘[s]tanding is determined as of the time that suit is filed.’” (Doc. 43 at 7 (quoting Energy Mgmt. Corp. v. City of Shreveport, 397 F.3d 297, 302 n.3 (5th Cir. 2005)).) Similarly, the Court rejected Defendants’ ripeness arguments because the Diocese’s claims challenged “a final rule with a definitive effective date” and that a prompt ruling on Diocese’s claim would “add clarity to the constitutional issues presented by the Mandate.” (Doc. 43 at 9-10.) The issuance of the NPRM, therefore, is not a reason for reconsidering the Court’s order. Nor is the plaintiff’s proposed discovery plan related to the NPRM, despite the government’s insinuations. (Doc. 47 at 11.) The Diocese believes discovery will uncover evidence that the government intentionally targeted Catholic entities in promulgating the existing regulations, further supporting the Diocese’s claims and anticipated summary judgment. The Diocese picked an October 15, 2013 discovery cut-off because it anticipated the government would be resistant to discovery, and the Diocese built in time to account for the government’s expected objections and motion practice. If the government cooperates and the Diocese is able to complete its discovery early, the Diocese can file a summary judgment earlier. But in the
6

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 10 of 18 PageID 841
Rule 26(f) conference, the government refused to propose its own dates for discovery, taking the position that no discovery should be conducted in this case, confirming the Diocese’s concern that the government will resist all discovery attempts.1
3. The government’s statements in Wheaton are not controlling The government’s hollow promise that the Wheaton statement “extends, by its express terms, to the plaintiff in this case as well” further exemplifies the undisciplined approach of the government to interpreting other cases. The government’s statement in Wheaton does not expressly extend to the Diocese. The statement that the government cites is: “[The government] represented to the Court that it would never enforce [the Mandate] in its current form against appellants or those similarly situated as regards contraceptive services. There will, the government said, be a different rule for entities like the appellants, and we take that as a binding commitment.” Wheaton College v. Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012) (citations omitted). The appellants in Wheaton were Wheaton College, a protestant college, and Belmont Abbey College, a Roman Catholic college. Thus, the government has left itself wiggle room in the statement “entities like the appellants.” Neither this Court, nor the Diocese, has any assurance that there will be “a different rule” for the Diocese, which is a litigant that is differently situated than colleges and universities. Moreover, neither this Court, nor the Diocese, could enforce the government’s promises in the Wheaton case—only the D.C. Circuit Court could do that.
1 The government incorrectly claims that the plaintiffs in the Archdiocese of New York are uninterested in challenging the currently operative regulations. After inquiring, our understanding is that the New York plaintiffs are planning to move for summary judgment at the appropriate time, in accordance with their court’s suggestion, and are in the meantime conducting discovery on the operative regulations in accordance with a court-ordered schedule. Similarly here, the Diocese should be allowed to conduct discovery to support its anticipated motion for summary judgment.
7

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 11 of 18 PageID 842
In the instant case, the Defendants fall short of making a binding commitment, opting instead to file a declaration that concludes at page 4 that the “defendants will never enforce” the Mandate, while phrasing this conclusion as a logical inference that must be drawn from the existence of the safe harbor and the new rulemaking, and not as a firm commitment to this Court. (Doc. 47-1 at 4.) Defendants could, but refuse to, file a binding stipulation in this case. Defendants’ refusal to file a stipulation speaks louder than their words.
Finally, even the Wheaton court did not find the government’s statements sufficient to justify dismissal; the court instead held the appeal in abeyance, pending regular status reports by the government. This Court therefore correctly refused to rely on the Wheaton statements in ruling on Defendants’ motion here.
B. Defendant’s reliance on Clapper is misplaced The Supreme Court’s decision in Clapper v. Amnesty International USA, 568 U.S. __, 2013 WL 673253 (Feb. 26, 2013), does not support Defendants’ motion. In Clapper, the Supreme Court rejected the Second Circuit’s application of a relaxed standard for determining standing. Under that standard, the plaintiffs in Clapper had to show only an “objectively reasonable likelihood” of future harm, instead of a “certainly impending” injury. This relaxed standard had allowed the plaintiffs, who were attorneys and human rights, labor, legal, and media organizations, to claim standing to challenge provisions of the Foreign Intelligence Surveillance Act (FISA). Their argument was that FISA might “at some point in the future” allow the Government to intercept the plaintiffs’ communications with foreign individuals, thus causing the plaintiffs injury. In addition, the plaintiffs argued that the risk of surveillance was forcing them to take costly and burdensome measures that was presently injuring them and was fairly traceable to FISA. The Supreme Court’s reasoning in rejecting these theories highlights why the Diocese here has standing, as this Court properly held.
8

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 12 of 18 PageID 843
The Supreme Court rejected the “objectively reasonable likelihood” standard because it
is at odds with the standing requirement that the “threatened injury must be certainly impending.”
Id. at *8 (quotation and citation omitted). The Clapper plaintiffs asserted a “speculative chain of
contingencies” that might lead to their being unwittingly surveilled pursuant to FISA. See id. at
*8-11. The Court pointed to a five-step, “highly attenuated chain of possibilities” that would all
have to be realized for the plaintiffs to sustain any injury. Those inferences included:
(i) plaintiffs’ “highly speculative” view that the Government would target their communications, despite the fact that the law may not target U.S. persons and the plaintiffs had no knowledge of the Government’s targeting practices with respect to foreign individuals; (ii) assuming the plaintiffs could show that their foreign contacts would be surveilled, they could only speculate as to whether FISA would be the mechanism the Government employed; (iii) assuming the Government sought to use FISA for surveillance, the plaintiffs could only speculate that a FISA court would grant the Government surveillance authority over the contacts; (iv) assuming the Government received such authorization, it was “unclear” whether it would actually acquire the targeted communications; and (v) even if the Government did acquire the contacts’ communications, the plaintiffs could “only speculate” whether their communications would be incidentally acquired.
See id. at *8-10. In these circumstances, the Court held, the plaintiffs could not establish that
their potential injury from FISA-authorized surveillance was “certainly impending” or “fairly
traceable” to the challenged law. Id. at *11.
The Supreme Court’s holding does not undermine this Court’s order. In denying the
Defendants’ motion to dismiss, this Court relied on the proper standard. This Court quoted the
Fifth Circuit’s standard for standing, which requires that the injury be “‘an injury in fact which is
a concrete and particularized invasion of a legally protected interest’” and further requires the
injury to be “‘fairly traceable to the challenged action of the defendant.’” (Doc. 43 at 6.) This
Court did not rely on the Second Circuit’s “objectively reasonable likelihood,” of which the
Supreme Court disapproved in Clapper.
9

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 13 of 18 PageID 844
Further distinguishing this case from Clapper, this Court relied on the Diocese’s allegations of present harm, not “a highly-attenuated chain of possibilities.” (Doc. 43 at 6-7 (“The Diocese further alleges that the looming effective date of the Mandate imposes present costs and other harms upon the Diocese as it prepares for the Mandate’s enforcement.”).) Far from the speculative chain of inferences that would have to be realized for the Clapper plaintiffs to be impacted by FISA, the Diocese here is faced with present injuries and certainly impending future injuries because the Mandate is a final rule, to which the Diocese is subject, notwithstanding the NPRM. Unlike FISA, which was not directed at the plaintiffs, but at unknown foreign individuals, with whom the Clapper plaintiffs might or might never contact, there is no question that the Mandate is intended to apply to U.S. employers like the Diocese and that if the Diocese is not exempted from the Mandate, it will be injured.
Thus, unlike the plaintiffs in Clapper, who asserted standing “based on costs they incurred in response to a speculative threat,” 2013 WL 673253, at *11, the present burdens incurred by the Diocese here are not “simply the result of their desire to prepare for contingencies,” but instead are a necessary and appropriate response to the impending effectiveness of the Mandate. As the Eastern District of New York explained in denying a similar motion by Defendants, “the practical realities of administering health care coverage for large numbers of employees—which defendants’ recognize—require plaintiffs to incur these costs in advance of the impending effectiveness of the Coverage Mandate.” Id. at 33-34. It requires no speculation to review the Affordable Care Act and the Mandate and conclude, as this Court has, that the Diocese is subject to the Act and the Mandate and will be injured to the extent the Mandate violates the Diocese’s sincerely held beliefs.
10

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 14 of 18 PageID 845
This case is more akin to Clinton v. City of New York, 524 U.S. 417, 430-31 (1998), because the Diocese already offers a group health plan that is subject to the Mandate, and the only contingency is whether the government will issue an exemption and deem the Diocese exempt. In City of New York, the Supreme Court rejected the government’s argument that HHS’s failure to grant or deny a request renders an injury too speculative to support standing. Id. Similarly, the government’s failure here to affirmatively grant or deny the Diocese an exemption does not deprive the Diocese of standing.
In sum, this Court’s ruling has not been undermined in any manner by the Supreme Court’s decision in Clapper. There is no basis for seeking reconsideration of the Order or permission for an interlocutory appeal in light of this new decision.
C. This Court’s order is not subject to an interlocutory appeal under § 1292(b) The Court’s order is not the appropriate subject of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The decision to permit an interlocutory appeal is “firmly within the district court’s discretion.” Ryan v. Flowserve Corp., 444 F. Supp. 2d 718, 722 (N.D. Tex. 2006). A district court may certify an order for interlocutory appeal only if the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). This procedure is reserved for “exceptional circumstances,” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). This case does not present one of those exceptional circumstances that would justify an immediate appeal. Defendants’ request fails at the outset because they have not identified a “controlling question of law.” In its order denying the motion to dismiss, this Court relied on wellestablished principles of standing and ripeness and applied them to the facts of this case. The Defendants do not challenge the Court’s understanding of this well-settled law. Instead,
11

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 15 of 18 PageID 846
Defendants assail this Court for allegedly not giving enough weight to Defendants’ representations concerning their intent, claiming that this Court “mistakenly believed that the government’s representations do not apply to the specific plaintiff here.” (Doc. 47 at 1.)
Further demonstrating that the Defendants’ challenge is a factual challenge, not a legal one, Defendants spend most of their motion complaining that the Court drew the incorrect inferences from the facts relating to the ANPRM, the NPRM, and the government’s statements made in various pleadings and in the Wheaton case. But these are all fact issues. The Court of Appeals could not reweigh this Court’s understanding of the facts in an interlocutory appeal.
Defendants try to dress up the factual dispute as a legal question, claiming that their motion presents the following question of law for appeal: “[W]hether a court has jurisdiction over a plaintiff’s challenge to regulations despite the government’s commitment to never enforce those regulations in their current form against the plaintiff and the existence of an ongoing rulemaking designed to amend those regulations to address the plaintiff’s concerns.” (Doc. 47 at 17.) Defendant are thus challenging whether this Court has correctly understood the facts about the government’s alleged “commitment” on enforcement and the impact of the NPRM. In other words, Defendants are challenging the Court’s application of well-settled law of standing and ripeness to the disputed fact of whether the Diocese will be subject to the Mandate, given the government’s statements and the pending NPRM. But the application of settled law to disputed facts does not qualify as a “question of law” for the purpose of an interlocutory appeal. McFarlin v. Conseco Serv., LLC, 381 F.3d 1251, 1258 (11th Cir. 2004).
Further proving that Defendants are disguising a factual dispute as a question of law, Defendants felt the need to file a declaration in support of their motion. (Doc. 47-1.) The declaration of Teresa Miller seeks to dispute the allegations of the Diocese about its injuries and
12

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 16 of 18 PageID 847
its being subject to the Mandate, all in an effort to buttress Defendants’ motion. After surveying the various facts about the ANPRM, the Diocese, and the NPRM, the declaration concludes “defendants will never enforce the contraceptive coverage requirement in its current form against plaintiff . . . .” (Doc. 47-1 at 4.) Of course, this factual conclusion is also a key phrase in Defendants’ alleged “question of law” that Defendants recite in their brief at page 17: “[D]efendants’ jurisdictional challenge presents a question of law: whether a court has jurisdiction over a plaintiff’s challenge to regulations despite the government’s commitment to never enforce those regulations in their current form against the plaintiff . . . “ (Doc. 47 at 17 (emphasis added).) If this were truly a question of law, Defendants would have supported it with legal precedent. Instead, Defendants filed a four-page declaration filled with factual averments.
As the declaration proves, Defendants are not seeking to review a controlling issue of law. Rather, they are seeking to correct what they believe is a factual error in this Court’s order. This is, however, an inappropriate use of the interlocutory-appeal statute, which is not supposed to serve as “a vehicle to question the correctness of a district court’s ruling or to obtain a second, more favorable opinion.” Ryan, 444 F. Supp. 23 at 722 (citing McFarlin v. Conseco Serv., LLC, 381 F.3d 1251, 1256 (11th Cir. 2004)). Because Defendants do not seek to challenge a controlling question of law, but rather seek to correct a perceived error in the Court’s application of well-settled law to disputed facts, this Court should deny Defendants’ application for a certification pursuant to § 1292(b).
13

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 17 of 18 PageID 848
CONCLUSION
Defendants have not met their burden. They have not provided an appropriate basis for
reconsidering this Court’s order. They have not identified a controlling question of law that is
appropriate for interlocutory review. The Diocese therefore respectfully asks this Court to deny
Defendants’ motion.
Respectfully submitted, this the 21st day of March, 2013.
By: /s/ Basheer Y. Ghorayeb Terence M. Murphy Texas State Bar No. 14707000 tmurphy@jonesday.com Tamara Marinkovic Texas State Bar No. 00791175 tmarinkovic@jonesday.com Basheer Y. Ghorayeb Texas State Bar No. 24027392 bghorayeb@jonesday.com Thomas K. Schroeter Texas State Bar No. 24056279 tkschroeter@jonesday.com Katherine J. Lyons Texas State Bar No. 24070191 kjlyons@jonesday.com JONES DAY 2727 North Harwood Street Dallas, Texas 75201 (214) 220-3939 (214) 969-5100 facsimile
James S. Teater Texas State Bar No. 19757425 jsteater@jonesday.com JONES DAY 717 Texas Street Suite 3300 Houston, Texas 77002-2712 (832) 239-3939 (832) 239-3600 facsimile
14

Case 4:12-cv-00314-Y Document 52 Filed 03/21/13 Page 18 of 18 PageID 849
John W. Crumley Texas State Bar No. 05184500 crumley1@airmail.net JOHN W. CRUMLEY, P.C. 501 University Centre 1 1300 South University Drive Fort Worth, Texas 76107-5737 (817) 334-0291 (817) 334-0775 facsimile Counsel for Plaintiff CERTIFICATE OF SERVICE I certify that on March 21, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which sent notice of such filing to all parties. /s/ Basheer Y. Ghorayeb Basheer Y. Ghorayeb
DLI-6434320
15

 
 Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 1 of 12 PageID 859

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROMAN CATHOLIC DIOCESE OF FORT WORTH,
Plaintiff, v.
KATHLEEN SEBELIUS, et al. Defendants.

) ) ) ) Case No. 4:12-cv-00314-Y (TRM) ) ) DEFENDANTS’ REPLY IN SUPPORT OF ) THEIR MOTION FOR ) RECONSIDERATION OR, IN THE ) ALTERNATIVE, FOR CERTIFICATION ) UNDER 28 U.S.C. § 1292(b) PERMITTING ) IMMEDIATE APPEAL )

Since defendants filed their opening brief, five more courts have dismissed lawsuits that are identical in all relevant respects to this one for lack of jurisdiction.1 This Court should

reconsider its January 31, 2013 Order to bring it in line with the decisions of the overwhelming

majority of courts (21 of 23) that have considered the legal questions presented by defendants’

jurisdictional motion.

Defendants have firmly committed never to enforce the current version of the

contraceptive coverage requirement – the only regulations that are at issue in this case – against

plaintiff Roman Catholic Diocese of Fort Worth. Neither plaintiff’s obstinacy in refusing to take

the government at its word, nor plaintiff’s empty accusations of nefariousness, negates the

presumption of good faith to which the government is entitled as a matter of law. Because this

Court did not apply that presumption to the government’s non-enforcement commitment, and

instead denied defendants’ motion to dismiss based on its perception – both negated by the

existing facts and irrelevant as a matter of law – that there remained a possibility that defendants

1 See Ave Maria Univ. v. Sebelius, No. 2:12-cv-88-Ftm-99SPC, ECF No. 72 (M.D. Fla. Mar. 29, 2013); Eternal Word Television Network, Inc. v. Sebelius, 2013 WL 1278956 (N.D. Ala. Mar. 25, 2013); Franciscan v. Sebelius, 2013 WL 1189854 (S.D. Ohio Mar. 22, 2013); Geneva Coll. v. Sebelius, 2013 WL 838238 (W.D. Pa. Mar. 6, 2013); Wenski v. Sebelius, Case No. 12-23820-CIV, ECF No. 46 (S.D. Fla. Mar. 4, 2013).
1

Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 2 of 12 PageID 860
would enforce the current regulations against plaintiff, the Court committed manifest error and reconsideration is warranted.2
Plaintiff makes much of the fact that standing is assessed as of the time of filing, and, in plaintiff’s view, the government’s non-enforcement commitment was not made until after this lawsuit was filed. This assertion, even if true (and it is not), ignores defendants’ alternative jurisdictional argument – ripeness. Indeed, plaintiff’s response entirely ignores ripeness. Ripeness looks at “the situation now” rather than the situation at the time of filing. Anderson v. Green, 513 U.S. 557, 558 (1995). Even if it were unclear before (and it was not), now, it is abundantly clear that defendants will never enforce the current version of the regulations against plaintiff. Plaintiff, therefore, cannot show any current or future injury or harm from the current regulations as required to establish a ripe claim.
Moving forward with plaintiff’s challenge to the current regulations will serve absolutely no purpose other than to waste the parties’ and the Court’s time and resources. Come August of this year, there will be new and different rules in place with respect to plaintiff. Indeed, in its response, plaintiff does not dispute that, if finalized as proposed in the Notice of Proposed Rulemaking (“NPRM”), the new rules will almost certainly ensure that plaintiff is entirely exempt from the contraceptive coverage requirement. The NPRM, which was issued after this Court’s Order, provides yet another basis for reconsideration. Plaintiff, of course, is free to challenge the new regulations once they are finalized if plaintiff believes its concerns have not been adequately addressed. But nothing the Court does now could alleviate any of plaintiff’s uncertainty about the new rules, making any opinion on the merits of plaintiff’s challenge to the current regulations purely advisory and thus outside of the Court’s jurisdiction.
2 To fail to recognize the certainty of non-enforcement, the Court would have to presume the representations of defendants’ counsel were unauthorized and that their declarant lied. There is obviously no basis for doing so.
2

Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 3 of 12 PageID 861
If the Court does not grant reconsideration, defendants ask the Court to certify its Order for immediate appeal to the Fifth Circuit pursuant to 28 U.S.C. § 1292(b). Plaintiff does not dispute that two of the three requirements for certification are satisfied. And plaintiff is wrong in arguing that the Court’s Order is based on the application of well-established law to disputed facts. Defendants’ disagreement with the Court’s ruling is a purely legal one: As a matter of law, a court lacks jurisdiction over a challenge to regulations that are in the process of being changed and that the government has committed never to enforce against plaintiff in their current form. Plaintiff’s suggestion that the existence of jurisdiction here is “well-established” is belied by the rulings of twenty-one courts that have decided this controlling question of law the other way. I. THE STANDARD FOR RECONSIDERATION IS SATISFIED
Plaintiff devotes the majority of its response to disingenuously parsing and twisting the government’s words to try to render unclear what the government has repeatedly made crystal clear, i.e., that it will never enforce the regulations in their current form against plaintiff (or similarly situated entities). The government made this representation in briefing on its motion to dismiss, repeated it at oral argument before the D.C. Circuit, and reiterated it again and again in notices of supplemental authority filed with this Court in this case. See, e.g., Defs.’ Mot. for Reconsideration or, in the Alternative, for Certification Under 28 U.S.C. § 1292(b) (“Defs.’ Mot.”), at 6-7, ECF No. 47. As if these repeated statements were not enough, the government also filed a declaration with the Court in support of its motion for reconsideration making it abundantly clear that “defendants will never enforce the contraceptive coverage requirement in its current form against plaintiff.” Decl. of Teresa Miller ¶ 5, Feb. 26, 2013, ECF No. 47-1.
3

Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 4 of 12 PageID 862
Instead of taking the government “at its word,” as the law requires and as the overwhelming majority of courts have done,3 plaintiff attempts to dissect and distort those words for any hint that might suggest (and there is none) that the government did not mean what it said. Plaintiff, through accusation, innuendo, and, at several points, blatant misrepresentation, seeks to turn the government’s non-enforcement commitment into a “lawyerly” and “coy” ploy to “leave[e] the option open to enforce the regulations against Plaintiff.” Pl.’s Resp. to Defs.’ Mot. for Reconsideration or Immediate Appeal (“Pl.’s Resp.”), at 4-5, ECF No. 52. Plaintiff’s arguments are absurd. When the government says “it will never enforce the current regulations against plaintiff” it means “never,” not maybe or possibly or at some point.
Plaintiff misrepresents the record when it says that “the government made no such representations [that it will never enforce the current regulations against plaintiff in this case].” Id. at 2. As defendants recounted in their opening brief, the government has repeatedly made this exact representation here. Defs.’ Mot. at 6-7. Moreover, despite plaintiff’s mental and linguistic gymnastics, the representation made by the government at oral argument in Wheaton extends to plaintiff here. The non-profit, religious colleges in Wheaton and the Roman Catholic Diocese of Fort Worth here are “similarly situated as regards contraceptive services.” Wheaton, 703 F.3d at 552; see Archbishop of Wash., 2013 WL 285599, at *3 (concluding government’s non-enforcement commitment from Wheaton extended to the plaintiff Archdiocese and dismissing case).4 And, even if it were not clear from the government’s statements in Wheaton
3 Wheaton Coll. v. Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012); see also, e.g., Franciscan, 2013 WL 1189854, at *5; Geneva Coll., 2013 WL 838238, at *14; Roman Catholic Archbishop of Wash. v. Sebelius, 2013 WL 285599, at *3 (D.D.C. Jan. 25, 2013); Colo. Christian Univ. v. Sebelius (“CCU”), 2013 WL 93188, at *5 (D. Colo. Jan. 7, 2013); Univ. of Notre Dame v. Sebelius, 2012 WL 6756332, at *3-4 (N.D. Ind. Dec. 31, 2012); Zubik v. Sebelius, 2012 WL 5932977, at *9 (W.D. Pa. Nov. 27, 2012). 4 Nine cases in which a diocese or archdiocese was a plaintiff have been dismissed based, at least in part, on the government’s non-enforcement commitment. See Defs.’ Mot. at 1 n.1; supra n.1. It is absurd to suggest that the government committed to non-enforcement as to objecting non-profit religious colleges while leaving open the door to enforcement as to the Roman Catholic Diocese of Fort Worth (or any other diocese).
4

Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 5 of 12 PageID 863
that its non-enforcement commitment extends to similarly situated entities like the Diocese, the government has made that crystal clear in its filings in this very case. See infra p. 3.
Plaintiff also distorts the truth when it contends that the government has refused to stipulate that it will never enforce the current regulations against plaintiff. The proposed stipulation to which plaintiff refers is not, in any sense of the words, a stipulation never to enforce the current regulations against plaintiff. It is instead a proposed stipulation regarding a statement made by Vice President Biden during the vice presidential debate (which is entirely irrelevant to any of plaintiff’s claims in this case) and purports to bind defendants’ ability to enforce the forthcoming amended regulations, which do not yet exist. Pl.’s Resp., Ex. 1, Attach. at ¶¶ 1-3, 5, 7, ECF No. 52-1. In an attempt to appease plaintiff’s concerns – irrational though they are – defendants submitted a declaration in support of their motion for reconsideration in which the declarant attests under penalty of perjury that defendants will never enforce the current regulations against plaintiff. Miller Decl. ¶ 5. Incredibly, plaintiff claims this, too, is not a sufficiently “firm commitment.” Pl.’s Resp. at 8. Plaintiff, however, cannot establish jurisdiction through willful blindness or obstinacy.
Not that it is necessary or will satisfy plaintiff (which appears content to turn a deaf ear in its attempt to manufacture jurisdiction), but, to put the matter to rest, the government hereby states, in a brief signed by Department of Justice counsel (as all defendants’ briefs and notices of supplemental authority have been), as follows:
The government will never enforce the regulations in their current form against plaintiff Roman Catholic Diocese of Fort Worth. There will be new and different rules applicable to plaintiff. Those new rules will be finalized by August 2013. This Court must accord the government the good faith presumption to which it is entitled and take the government at its word. In light of the government’s repeated representations that it will
5

Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 6 of 12 PageID 864
never enforce the current regulations against plaintiff, the Court’s conclusion that the current regulations might nevertheless be enforced against plaintiff by defendants is manifest error.
Plaintiff also maintains that, even if the Court credits the government’s non-enforcement commitment, the Court properly found standing because standing is assessed at the time of filing and the government did not commit to never enforcing the current regulations against plaintiff until after plaintiff filed suit. Pl.’s Resp. at 1, 2. Defendants explained in their opening brief that this assertion is wrong because, at the time plaintiff filed suit, it was clear that plaintiff was protected by the enforcement safe harbor and the government had begun the process of amending the regulations to address plaintiff’s concerns – a process the government committed to completing before the expiration of the safe harbor. Defs.’ Mot. at 9 n.4.
Setting standing aside, conspicuously absent from plaintiff’s response is any real attempt to defend this Court’s ripeness analysis. Plaintiff does not refute the principle, cited in defendants’ opening brief, that “ripeness is peculiarly a question of timing, and it is the situation now rather than the situation at the time of the [decision under review or the filing of plaintiff’s complaint] that must govern.” Id. (quoting Anderson, 513 U.S. at 558); see also Roman Catholic Diocese of Dallas v. Sebelius, 2013 WL 687080, at *13 (N.D. Tex. Feb. 26, 2013) (dismissing case for lack of ripeness based on consideration of events that occurred after the filing of the complaint). Therefore, even if this Court believes that the government’s commitment never to enforce the current regulations against plaintiff was not sufficiently clear until after plaintiff filed suit – indeed, even if the Court believes it is only clear now (points defendants dispute) – the Court must take that commitment into account in assessing ripeness. And, as twenty courts, including another court in this District, have found,5 plaintiff’s challenge to the current
5 The court in Legatus v. Sebelius, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012), found it unnecessary to address ripeness after concluding that the non-profit plaintiff lacked standing.
6

Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 7 of 12 PageID 865
regulations cannot possibly be ripe in light of the government’s non-enforcement commitment and the ongoing process to amend the regulations to address plaintiff’s concerns.6
The recently issued NPRM also provides a proper basis for reconsideration. Plaintiff argues that the NPRM, which was issued the day after this Court’s Order, is nothing new because it “was anticipated by the Court” when it ruled on defendants’ motion to dismiss. Pl.’s Resp. at 6. Ironically, in this instance (but not with respect to the government’s non-enforcement commitment), plaintiff has chosen to credit the government’s representations that it would issue an NPRM followed by new and different final rules. It is not clear, however, that this Court anticipated the NPRM. The only place where the Court mentions the NPRM in its Order suggests that the Court believed (erroneously, as defendants have explained, see Defs.’ Mot. at 7 n.3) that the forthcoming new rules would apply only to the plaintiffs in Wheaton and would not affect plaintiff here. See Order at 11 n.6, Jan. 31, 2013, ECF No. 43.
Nonetheless, even if the Court anticipated the NPRM, the Court did not anticipate – and indeed could not have anticipated – the specific content of the NPRM, particularly the proposed amendments to the religious employer exemption, which were not suggested in the ANPRM. Compare 77 Fed. Reg. 16,501 (Mar. 21, 2012) with 78 Fed. Reg. 8456, 8461 (Feb. 6, 2013). In their opening brief, defendants explained that, if the amendments to the religious employer exemption proposed in the NPRM are adopted without change, then “[b]ased on plaintiff’s own allegations, it would almost certainly be assured of qualifying for the exemption and thus would almost certainly be under no obligation to provide contraceptive coverage.” Defs.’ Mot. at 10.
6 Plaintiff also contends that Wheaton does not support defendants’ position because the D.C. Circuit held the appeal in abeyance instead of dismissing it. See Pl.’s Resp. at 8. But every district court to consider the “unique historical practice” utilized in Wheaton has rejected it and determined that dismissal is the proper course when a case is not ripe. Diocese of Dallas, 2013 WL 687080, at *17; see Archbishop of Wash., 2013 WL 285599, at *4; CCU, 2013 WL 93188, at *8 (noting that D.C. Circuit “offered no compelling reason” for holding cases in abeyance and “adher[ing] to the customary practice of dismissing an unripe case in its entirety”); Catholic Diocese of Biloxi v. Sebelius, 2013 WL 690990 (S.D. Miss. Feb. 15, 2013).
7

Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 8 of 12 PageID 866
Plaintiff makes absolutely no attempt to refute this assertion in its response. Thus, it should be taken as conceded that plaintiff believes it would be exempt from the contraception coverage requirement if the proposed rules are finalized without change. See, e.g., Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1030 (5th Cir. 1982) (“Failure to brief and argue an issue is grounds for finding that the issue has been abandoned.”).
This new development, which the Court could not have foreseen at the time it issued its Order, demonstrates that no purpose whatsoever would be served by reaching the merits of the current regulations. Those regulations will be different come August 2013, and plaintiff does not dispute that, if the proposed amendments to the religious employer exemption are finalized, it will be entirely exempt under the new regulations. In the meantime and for all time, the current regulations will not be enforced by defendants against plaintiff.7
Plaintiff’s attempt to distinguish Clapper v. Amnesty International USA, 133 S. Ct. 1138 (Feb. 26, 2013), is also unavailing, as it is based entirely on the backward presumption that the government might enforce the current regulations against plaintiff thus necessitating present planning by plaintiff. Contrary to plaintiff’s suggestion (Pl.’s Resp. 9), there is no application anywhere in this Court’s Order of the “certainly impending” standard confirmed in Clapper, and any attempt to say that this case meets that standard would be clear legal error. The Court’s Order, moreover, contradicts Clapper’s central holding: Where a threatened future injury is contingent on events that might not occur, the “certainly impending” standard is not satisfied. See id. at 1147-50. This certainly impending standard is also a requirement of ripeness. Coal.
7 Plaintiff completely misunderstands defendants’ argument regarding discovery. See Pl.’s Resp. at 6-7. Defendants are not suggesting that plaintiff’s discovery requests will relate to the NPRM; indeed, they could not, as this case is a challenge to the current regulations, not any future amendments to those regulations. Defendants’ point, instead, is that plaintiff’s proposed discovery schedule, which extends until October 2013, well after defendants have promised to finalize the new rules, demonstrates that plaintiff has no desire to pursue a challenge to the current regulations – a challenge that will be moot when the new rules are promulgated. Plaintiff’s lack of urgency in having its claims adjudicated belies any contention that it is being harmed by the current regulations.
8

Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 9 of 12 PageID 867
for Responsible Regulation, Inc. v. E.P.A., 684 F.3d 102, 130 (D.C. Cir. 2012). Here, there is no conceivable basis on which enforcement of the current regulations against plaintiff by defendants can be characterized as “certainly impending” given that defendants have consistently promised to never enforce those regulations against plaintiff.
Clapper also made clear that a plaintiff cannot manufacture jurisdiction by alleging present injury as a result of costs incurred preparing for a future event that is certain not to occur. Yet that is exactly what plaintiff attempts to do here. Plaintiff argues that it needs to plan for future enforcement of the current regulations, but, as the government has made abundantly clear, it will never enforce the current regulations against plaintiff. “A plaintiff cannot injure itself while fleeing a phantom specter spawned by the plaintiff’s own unsubstantiated fears and then claim the defendant caused the injury.” Franciscan, 2013 WL 1189854, at *6. Accordingly, the Court should reconsider its Order and dismiss this case for lack of ripeness and/or standing. II. THE PREREQUISITES FOR INTERLOCUTORY APPEAL ARE EASILY
SATISFIED Plaintiff does not dispute that the Court’s January 31, 2013 Order involves a controlling question as to which there is substantial ground for difference of opinion or that an immediate appeal may materially advance the ultimate termination of the litigation. Instead, in opposing certification under 28 U.S.C. § 1292(b), plaintiff relies solely on its contention that the Court’s Order is based not on a question of law, but rather on the application of well-settled law to disputed facts. Pl.’s Resp. at 11. The Court’s Order itself, however, belies this contention. The Court explained that it was adjudicating a “facial challenge” based on the allegations in “the Diocese’s complaint” and did not need to “resol[ve] [any] disputed facts.” Order at 6 n.5. Moreover, although plaintiff tries mightily to manufacture a factual dispute where there is none, defendants’ disagreement with the Court’s ruling is a purely legal one. Defendants
9

Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 10 of 12 PageID 868
contend that the Court committed legal error when it failed to accord the government the presumption of good faith to which it is entitled by accepting the government’s representations that it will never enforce the current regulations against plaintiff. Defendants also contend that the Court committed legal error by viewing the current regulations as final merely because they are “on the books” instead of applying the flexible and pragmatic notion of finality that legal precedent requires and thereby recognizing that the regulations are in fact in the process of being amended to address plaintiff’s concerns. These and other legal errors in the Court’s Order led it to mistakenly conclude, as a matter of law, that it has subject matter jurisdiction over a challenge to regulations that are in the process of being changed and that the government has committed never to enforce against plaintiff in their current form. That the legal conclusions in this case – like most legal conclusions – are set against a factual backdrop does not alter the fact that they are legal questions, not resolutions of disputed facts. It is the resolution of these questions of law that led twenty-one other courts to conclude that they lack jurisdiction over nearly identical cases. And it is these questions of law that defendants seek to appeal to the Fifth Circuit.8
Furthermore, even if the government’s non-enforcement commitment could be seen as a factual issue that is in dispute (and it cannot for the reasons explained above), appellate review of this Court’s Order would not require the sort of heavily fact-based analysis that is improper for certification. See Ryan v. Flowserve Corp., 444 F. Supp. 2d 718, 722 (N.D. Tex. 2006). The Fifth Circuit would not need “to go hunting through the record” to discern the relevant facts. It need look no further than the complaint, the rulemaking documents, and the government’s statements. Accordingly, the Court should certify its Order for appeal under 28 U.S.C. § 1292(b).
8 Contrary to plaintiff’s assertion (Pl.’s Resp. at 13), defendants supported their motion to dismiss, and the instant motion, with copious legal precedent. Defs.’ Mot. at 1 n.1, 8-10, 12-13; see generally Defs.’ Mot. to Dismiss & Br. in Supp., Aug. 6, 2012, ECF No. 12; Defs.’ Reply in Supp. of Their Mot. to Dismiss, Sept. 24, 2012, ECF No. 19.
10

Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 11 of 12 PageID 869

Respectfully submitted this 4th day of April, 2013.

STUART Acting

F. DELERY Assistant Attorney General

IAN

HEATH GERSHENGORN

Deputy Assistant Attorney General

SARAH R. SALDAÑA United States Attorney

JENNIFER RICKETTS Director, Federal Programs Branch

SHEILA Deputy

M. LIEBER Director, Federal Programs Branch

BRADLEY
United Civil

/s/ Bradley P. Humphrey P. HUMPHREYS (VA Bar No. 83212)
Trial Attorney States Department of Justice
Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7219 Washington, D.C. 20530 Tel: (202) 514-3367 Fax: (202) 616-8470 Email: bradley.p.humphreys@usdoj.gov

Attorneys for Defendants

11

Case 4:12-cv-00314-Y Document 53 Filed 04/04/13 Page 12 of 12 PageID 870
CERTIFICATE OF SERVICE I certify that on April 4, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS

 
 Case 4:12-cv-00314-Y Document 57 Filed 06/07/13 Page 1 of 3 PageID 905

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROMAN CATHOLIC DIOCESE OF FORT WORTH
VS.
KATHLEEN SEBELIUS, et al.

§ § § § CIVIL ACTION NO. 4:12-CV-314-Y § §

ORDER DENYING MOTION TO RECONSIDER OR, ALTERNATIVELY, TO CERTIFY FOR IMMEDIATE APPEAL

Before the Court is Defendants’ Motion for Reconsideration or,

Alternatively, for Certification Under 28 U.S.C. § 1292(b)

Permitting Immediate Appeal (doc. 47). Defendants bring their

motion for reconsideration under Federal Rule of Civil Procedure

59(e), which allows a party to “call[] into question the correct-

ness of a judgment.” In re Transtexas Gas Corp., 303 F.3d 571, 581

(5th Cir. 2002). “Rule 59(e) serves the narrow purpose of allowing

a party to correct manifest errors of law or fact or to present

newly discovered evidence.” Templet v. HydroChem Inc. , 367 F.3d

473, 479 (5th Cir. 2004) (quoting Waltman v. Int’l Paper Co., 875

F.2d 468, 473 (5th Cir. 1989)). Therefore, “such a motion is not

the proper vehicle for rehashing evidence, legal theories, or

arguments that could have been offered or raised before the entry

of judgment.” Id. (citing Simon v. United States , 891 F.2d 1154,

1159 (5th Cir. 1990)).

With these principles in view, the Court concludes that

Defendants have not given the Court an adequate reason to recon-

sider its January 31, 2013 Order Denying Motion to Dismiss (doc.

Case 4:12-cv-00314-Y Document 57 Filed 06/07/13 Page 2 of 3 PageID 906
43). First, Defendants have not shown that the Court’s January 31 order is the product of manifest errors of law. To the contrary, Plaintiff’s motion acknowledges that the Fifth Circuit has not conclusively resolved the specific standing and ripeness issues presented in this case and that there does not exist complete uniformity among the lower district courts on those issues. Second, Plaintiff has not shown the presence of any manifest errors of fact in the January 31 order. Indeed, the Court made no factual findings in the January 31 order because Defendants raised only a facial challenge to Plaintiff’s complaint. Finally, Defendants have not proffered any newly discovered evidence mitigating in favor of reconsideration. Although a notice of proposed rulemaking (“NPRM”) has been issued since the January 31 order, the Court is not persuaded that the NPRM requires altering or amending the January 31 order, especially given that an advanced notice of proposed rulemaking had been issued at the time of the order. Despite Defendants’ vigorous disagreement with the Court’s position, the Court is not persuaded that its January 31 order should be altered or amended.
Turning to Defendants’ alternative request, the Court concludes that it should not exercise its discretion under 28 U.S.C. § 1292(b) to certify the January 31 order for immediate interlocutory appeal. Under § 1292(b), a district court has the discretion to certify an otherwise unappealable interlocutory order
2

Case 4:12-cv-00314-Y Document 57 Filed 06/07/13 Page 3 of 3 PageID 907

for immediate appeal if the “order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C.A. § 1292 (West 2013). But Defendants do not challenge the January 31 order’s purely legal conclusions concerning the doctrines of standing and ripeness or the legal tests to be employed in carrying out those doctrines. Rather, Defendants quarrel with the Court’s application of those doctrines and legal tests to the subject regulations and the facts alleged in Plaintiff’s complaint.
This does not strike the Court as a proper basis for certifying an order under § 1292. Certification for immediate appeal should not happen as a matter of course, but only in exceptional cases. See Clark-Dietz & Associates-Engineers, Inc. v. Basic Construction Company, 702 F.2d 67, (5th Cir. 1983) (“Section 1292(b) appeals are exceptional.”). And in the Court’s view, the instant case is not exceptional. The Court therefore declines to exercise its discretion to certify the January 31 order for immediate appeal.
Accordingly, Defendants’ motion to reconsider or, alternatively, to certify for immediate appeal under § 1292(b) is DENIED.
SIGNED June 7, 2013. ____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE

TRM/dc

3

 
 Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 1 of 60 PageID 990

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

)

ROMAN CATHOLIC DIOCESE OF

)

FORT WORTH; UNIVERSITY OF

)

DALLAS; OUR LADY OF VICTORY

)

CATHOLIC SCHOOL; CATHOLIC

)

CHARITIES, DIOCESE OF FORT

)

WORTH, INC.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

) Civil Action No. 4:12-CV-314-Y

Department of Health and Human

)

Services; THOMAS PEREZ, in his official ) DEMAND FOR JURY TRIAL

capacity as Secretary of the U.S.

)

Department of Labor, JACOB J. LEW, in )

his official capacity as Secretary of the

)

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

)

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; U.S.

)

DEPARTMENT OF LABOR; and U.S. )

DEPARTMENT OF TREASURY,

)

Defendants.

FIRST AMENDED COMPLAINT 1. This lawsuit is about one of America’s most cherished freedoms: the freedom to practice one’s religion without government interference. It is not about whether people have a right to abortion-inducing products, sterilization, and contraception. Those products and services are widely available in the United States, and nothing prevents the Government itself from making them more widely available. Here, however, the Government seeks to require Plaintiffs—all of which are Catholic entities—to violate their sincerely held religious beliefs by providing, paying for, and/or facilitating access to those products and services. American history
1

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 2 of 60 PageID 991
and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act (“RFRA”), safeguard religious entities from such overbearing and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights.
2. Plaintiffs provide a wide range of spiritual, educational, and social services to members of their communities, Catholic and non-Catholic alike. Plaintiff Roman Catholic Diocese of Fort Worth (the “Diocese”), not only provides pastoral care and spiritual guidance for thousands of Catholics, but also serves individuals throughout the Dallas-Fort Worth area through its schools and multiple charitable programs. Likewise, Plaintiff Our Lady of Victory Catholic School (“OLV”) is devoted to providing high-quality educational services to a diverse student body. Plaintiff Catholic Charities, Diocese of Fort Worth, Inc. (“Catholic Charities”) offers a host of social services to thousands in need throughout the greater Dallas-Fort Worth area. For its part, Plaintiff University of Dallas (the “University”) offers approximately 2,500 undergraduate and graduate students a rigorous education, while at the same time serving the larger community through, inter alia, its intellectual offerings and charitable outreach.
3. Plaintiffs’ work is in every respect guided by and consistent with Roman Catholic belief, including the requirement that they serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Benedict XVI has more recently put it, “[L]ove for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” As Plaintiff Catholic Charities notes, “We like to say that we serve people because of our faith, not
2

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 3 of 60 PageID 992
theirs. Our faith calls us to serve others, regardless of their personal faith traditions.” Thus, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
4. Catholic Church teachings also uphold the firm conviction that sexual union should be reserved to married couples who are open to the creation of life; thus, artificial interference with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine.
5. Defendants have promulgated various rules (collectively, “the U.S. Government Mandate”) that force Plaintiffs to violate their sincerely held religious beliefs. These rules, first proposed on July 19, 2010, require Plaintiffs and other Catholic and religious organizations to provide, pay for, and/or facilitate access to abortion-inducing products, sterilization, and contraception, in violation of their sincerely held religious beliefs. In response to the intense public criticism that the Government’s original proposal provoked, including by some of the current Administration’s most ardent supporters, the Government proposed changes to the rules that, it asserted, were intended to eliminate the substantial burden that the Mandate imposed on religious beliefs. In fact, however, these changes made that burden worse by significantly increasing the number of religious organizations subject to the U.S. Government Mandate, and by driving a wedge between religious organizations, such as Plaintiff Diocese, and equally religious charitable and educational arms of the Church, such as Plaintiff OLV.
6. In its final form, the U.S. Government Mandate contains three basic components: 7. First, it requires employer group health plans to cover, without cost-sharing requirements, all “FDA-approved contraceptive methods and contraceptive counseling”—a term
3

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 4 of 60 PageID 993
that includes abortion-inducing products, contraception, sterilization, and related counseling and education.
8. Second, the Mandate creates a narrow exemption for certain “religious employers,” defined to include only organizations that are “organized and operate[] as a nonprofit entity and [are] referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” The referenced Code section does not, nor is it intended to, address religious liberty. Instead, it is a paperwork-reduction provision that addresses whether and when tax-exempt nonprofit entities must file an annual informational tax return, known as a Form 990. As the Government has repeatedly affirmed, this exemption is intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.” 78 Fed. Reg. 8,456, 8,461 (Feb. 6, 2013); see also 78 Fed. Reg. 39,870, 39,874 (July 2, 2013). Consequently, the only organizations that qualify for the exemption are “churches, synagogues, mosques, and other houses of worship, and religious orders.” 78 Fed. Reg. at 8,461. This is the narrowest “conscience exemption” ever adopted in federal law. It grants the Government broad discretion to sit in judgment of which groups qualify as “religious employers,” thus favoring certain religious organizations over others and entangling the Government in matters of religious faith and practice.
9. Third, the U.S. Government Mandate creates a second class of religious entities that, in the Government’s view, are not sufficiently “religious” to qualify for the “religious employer” exemption. These religious entities, deemed “eligible organizations,” are subject to a so-called “accommodation” that is intended to eliminate the burden that the Mandate imposes on their religious beliefs. The “accommodation,” however, is illusory: it continues to require
4

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 5 of 60 PageID 994
“eligible organizations” to participate in a new employer-based scheme to provide, pay for, and/or facilitate access to the objectionable products and services for their employees.
10. In particular, Catholic Charities, OLV, and the University of Dallas do not qualify under the Government’s narrow definition of “religious employers,” even though they are religious organizations under any reasonable definition of the term. Instead, they are “eligible organizations” subject to the so-called “accommodation.” But notwithstanding the “accommodation,” these Plaintiffs are required to enter into a contract with an insurance company (or, for self-insured organizations, a third-party administrator), which, as a direct result, is required to provide or procure abortion-inducing products, contraception, sterilization, and related counseling for Plaintiffs’ employees. Consequently, the religious organizations’ actions are the trigger and but-for cause of the provision of the objectionable products and services. Plaintiffs cannot avoid facilitating the provision of the objectionable products and services—for example, by contracting with an insurance company that will not provide or procure the objectionable products and services or even dropping their health-insurance plans altogether— without subjecting themselves to crippling fines and/or lawsuits by individuals and governmental entities.
11. Plaintiffs, moreover, must facilitate the provision of the objectionable services in other ways that further exacerbate their religiously impermissible cooperation in the provision of the objectionable products and services. For example, in order to be eligible for the so-called “accommodation,” Plaintiffs must provide a “certification” to their insurance provider setting forth their religious objections to the Mandate. The provision of this “certification,” in turn, automatically triggers an obligation on the part of the insurance provider to provide or procure the objectionable products and services for Plaintiffs’ employees. A religious organization’s
5

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 6 of 60 PageID 995
self-certification, therefore, is a trigger and but-for cause of the provision of the objectionable products and services.
12. Indeed, notwithstanding the “accommodation,” the U.S. Government Mandate “requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage.” Comments of U.S. Conference of Catholic Bishop, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013NPRM-Comments-3-20-final.pdf. The Government asserts that the provision of the objectionable products and services will be “cost-neutral.” This assertion, however, ignores the regulatory and administrative costs that will inevitably force insurance companies and third-party administrators to increase the prices they charge religious employers subject to the “accommodation.” The Government’s assertion of “cost neutrality” is also based on the implausible (and morally objectionable) assumption that “lower costs” from “fewer childbirths” will offset the cost of the contraceptive services. 78 Fed. Reg. at 8463. More importantly, even if the Government’s assumption were correct, it simply means that premiums previously going toward childbirths will be redirected to contraceptive and related services in order to achieve the (objectionable) goal of “fewer childbirths.”
13. In short, the “accommodation” requires non-exempt religious organizations, including Plaintiffs, to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related counseling, contrary to their sincerely-held religious beliefs.
14. The Diocese appears to qualify as a “religious employer,” and, as such, is eligible for the “religious employer” exemption from the Mandate. However, the Diocese operates an insurance plan that encompasses not only individuals directly employed by the Diocese itself,
6

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 7 of 60 PageID 996
but, in addition, individuals employed by Catholic organizations including, but not limited to, Plaintiff OLV. Because OLV does not itself appear to qualify as an exempt “religious employer,” the Government’s newly minted interpretation of the Mandate requires that the Diocese must either (1) sponsor a plan that will provide, pay for, and/or facilitate the provision of the objectionable products and services to the employees of OLV and other organizations, or (2) no longer extend its plan to these organizations, subjecting them to massive fines if they do not contract with another insurance provider that will offer the objectionable coverage.
15. This reflects a change from the Government’s original interpretation of the Mandate. That interpretation allowed OLV to remain on the Diocese’s plan, which, in turn, would have shielded it from the Mandate if the Diocese were exempt. See 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012). The Final Rule, in contrast, removes this protection and thereby increases the number of religious organizations subject to the Mandate. And in so doing, the Mandate seeks to divide the Catholic Church, artificially separating its “houses of worship” from its faith in action, directly contrary to Pope Benedict’s admonition that “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.”
16. The U.S. Government Mandate is irreconcilable with the First Amendment, RFRA, the Administrative Procedure Act, and other laws. The Government has not demonstrated any compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortioninducing products, sterilization, and contraception. Nor has the Government demonstrated that the U.S. Government Mandate is the least restrictive means of advancing any interest it has in increasing access to these products and services, which are already widely available and which the Government could make more widely available without conscripting Plaintiffs as vehicles for the dissemination of products and services to which they so strongly object. The Government,
7

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 8 of 60 PageID 997
therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these products and services in violation of their sincerely held religious beliefs.
17. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. I. PRELIMINARY MATTERS
18. Plaintiff Roman Catholic Diocese of Fort Worth is a nonprofit religious organization organized and existing according to the Code of Canon Law of the Roman Catholic Church and recognized by the State of Texas. The Diocese includes Roman Catholic parishes, schools, and organizations in and around Fort Worth, Texas. The principal office of the Diocese is located in Fort Worth, Texas. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
19. Plaintiff OLV is a nonprofit corporation incorporated in the State of Texas. Its principal place of business is in Fort Worth, Texas. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
20. Plaintiff Catholic Charities is a nonprofit corporation incorporated in the State of Texas. Its principal place of business is in Fort Worth, Texas. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
21. Plaintiff University of Dallas is a Texas nonprofit corporation with a principal place of business in Irving, Texas. It is organized exclusively for charitable, religious, educational, and scientific purposes within the meaning of Section 501(c)(3) of the Internal
8

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 9 of 60 PageID 998
Revenue Code. It is also an educational organization under Section 170(b)(1)(A)(1) of the Internal Revenue Code.
22. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services (“HHS”). She is sued in her official capacity.
23. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
24. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury. He is sued in his official capacity.
25. Defendant U.S. Department of Health and Human Services is an executive agency of the United States within the meaning of RFRA and the Administrative Procedure Act (“APA”).
26. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
27. Defendant U.S. Department of the Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
28. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1.
29. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Plaintiffs will be required to provide, pay for, and/or facilitate access to objectionable products and services in contravention of their sincerely held religious beliefs, as described below.
30. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
9

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 10 of 60 PageID 999
31. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
32. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1). A. The Diocese
33. The Diocese of Fort Worth encompasses 87 parishes and two missions and serves a region that comprises 28 counties (spanning 23,950 square miles) in North Texas, with a population of approximately 3,260,246, including 710,000 Roman Catholics. The counties within the Diocese are Archer, Baylor, Bosque, Clay, Comanche, Cooke, Denton, Eastland, Erath, Foard, Hardeman, Hill, Hood, Jack, Johnson, Knox, Montague, Palo Pinto, Parker, Shackelford, Somervell, Stephens, Tarrant, Throckmorton, Wichita, Wilbarger, Wise, and Young Counties. The region was originally served by The Roman Catholic Diocese of Dallas, beginning in 1890, and subsequently by The Roman Catholic Diocese of Dallas-Fort Worth, beginning in 1953. On August 9, 1969, Pope Paul VI established the Diocese of Fort Worth to serve these 28 counties. The parishes and missions of the Diocese and its 20 schools are part of the Diocese.
34. The Diocese is currently without a bishop and is being led in the interim by Monsignor Stephen J. Berg.
35. Monsignor Berg is assisted in his ministry by eight Deans and a staff of numerous clergypersons, religious brothers and sisters, and lay people. The Diocese employs over 2,000 people, over 1,000 of whom are currently eligible for health plan benefits offered through the Diocese. The Diocese employs Catholic and non-Catholic persons, and it does not generally track how many of its employees are Catholic, members of other religious faiths, or nonreligious.
36. The Diocese carries out a tripartite spiritual, educational, and social service mission, reflecting the several dimensions of its ministry. The spiritual ministry of the Diocese
10

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 11 of 60 PageID 1000
is conducted largely through its parishes. Through the ministry of its priests, the Diocese ensures the regular availability of the sacraments to all Catholics living in or visiting Fort Worth and the surrounding 28 counties. It also provides numerous other opportunities for prayer, worship, and faith formation. In addition to overseeing the sacramental life of its parishes, the Diocese coordinates Catholic campus ministries for thousands of students at six colleges and universities within its borders, as well as hospital and other ministries throughout the region. Further, the Diocese works closely with the Military Archdiocese and the Personal Ordinariate of the Chair of St. Peter to ensure that the needs of their members who reside within the boundaries of the Diocese of Fort Worth are met.
37. The Diocese conducts much of its educational mission through its schools. The first Catholic school opened in Fort Worth in 1879, before public education was officially organized in the City. With a focus on faith formation, rigorous academics, and service to others, the Diocese’s schools are committed to assisting parents in preparing their children to meet the challenges of the modern world. Students of diocesan schools are provided opportunities to develop basic academic and physical skills, to pursue knowledge, and to critically study and analyze the world in which they live. The schools of the Diocese follow curriculum standards based upon national Catholic education standards, core curriculum standards, and the social teachings of the Catholic Church. Each of the 20 Catholic schools within the Diocese is fully accredited through the Texas Catholic Conference Accreditation Commission. All high schools hold additional accreditation through the Southern Association of Colleges and Schools.
38. There are twenty diocesan schools, which educate approximately 6,500 high school and elementary students. The Diocese and its parishes operate nineteen of these
11

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 12 of 60 PageID 1001
schools—two secondary schools, two combined secondary/elementary schools, and fifteen elementary schools—which employ approximately 900 teachers and other school staff. The remaining elementary school is operated separately from the Diocese, although its employees are eligible for health plan benefits provided through the Diocese.
39. The schools of the Diocese offer a unique educational experience unlike any other in the area. In the words of former Bishop Kevin Vann, “With the Faith well lived as the Catholic school’s primary goal, every facet of our Catholic school curriculum and program leads our students to know the loving presence of our God and directs them toward a commitment to a lifetime of service to others.” To that end, diocesan schools have established three priorities that make them stand out from other educational institutions. Students are taught faith—not just the basics of Christianity, but how to have a relationship with God that will remain with them after they leave their Catholic school. Service, the giving of one’s time and effort to help others, is taught as both a requirement of faith and good citizenship. Finally, high academic standards help each student reach his or her potential. Nationally, over 99% of students in Catholic high schools graduate.
40. The success of this approach is demonstrated by Cassata High School, a nontraditional diocesan school that offers a second chance for students who have not succeeded in a traditional educational setting. The school has agreements with local independent school districts and other traditional high schools to educate students who are struggling within their education system. The school emphasizes service and family spirit, and it provides individualized educational programs to meet the level and needs of its students. Under this approach, a high degree of success is achieved. Although students normally come to Cassata
12

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 13 of 60 PageID 1002
with lower than normal performance, nearly 100 percent of students graduate and sustain that positive success after graduation.
41. Cassata’s mission is to provide effective, quality education that enables students of all faiths, cultures and socio-economic backgrounds to raise their educational level and complete their secondary education. Indeed, over half of Cassata’s students are not Catholic, and approximately 90% of Cassata students received tuition assistance from the Diocese.
42. The Catholic educational system has demonstrated a particular dedication to teaching the underserved. For example, Our Mother of Mercy Catholic School was founded in 1929 when Bishop Patrick J. Lynch sought to establish a parish to serve the African-American community of southeast Fort Worth. Today, the school continues to serve a diverse student body, all or nearly all of whom are from minority backgrounds and 85% of whom are not Catholic.
43. Schools like Our Mother of Mercy are no less an expression and outgrowth of genuine Catholic belief because they primarily serve non-Catholics. Indeed, quite the opposite: the Diocese sees these schools as a vital part of its mission to offer to every student, in every place, a safe, morally sound, and academically rigorous education. As diocesan superintendent Donald Miller says, “We don’t do this because they are Catholic, but because we are.” Kathy Cribari Hamer, Catholic school change young peoples’ lives, bring them to Jesus, while educating for a better life, COMMUNIO, Sept. 10, 2009, at 7, available at http://www.fwdioc.org/files/9-10-09-communio-english.pdf.
44. Indeed, diocesan schools welcome students in all financial conditions, from all backgrounds, and of any or no faith. Forty percent of students in diocesan schools are from minority backgrounds, and many diocesan students are not Catholic. To make a Catholic
13

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 14 of 60 PageID 1003
education available to as many children as possible, the Diocese and its parishes and schools expend substantial funds in tuition assistance programs. During the 2011-2012 school year, the Diocese and its parishes and schools awarded approximately $2 million in tuition assistance. Tuition assistance from the Diocese is awarded to Catholic and non-Catholic students on the basis of need and without regard to religious belief. Olga Ferris, Ed.D., former principal of St. George Catholic School in Fort Worth, has remarked, “If our parents demonstrate a real desire for Catholic education for their children, then lack of finances will not stand in the way.” Id. And Charlene Hymel, former principal of St. Rita Catholic School and presently the Assistant Superintendent of Schools recently observed, “We are breaking the cycle of poverty. We had one mother who volunteered at St. Rita’s and while she was helping in class, she listened and learned to read. Now she and her daughter read together.” Id.
45. Much of the social service and charitable work of the Diocese is performed through its 89 parishes and missions, which, like the 20 schools discussed above, are organized as part of the Diocese. The parishes within the Diocese maintain their own charitable efforts, serving the needs of their communities with programs including ESL classes, food pantries for the poor, adopt-a-family programs at Christmas, meals served to the homeless, outreach and support for women in crisis pregnancies, health-care assistance programs, pastoral care to the sick, prisoner and immigrant ministry, and visits to nursing homes and hospitals.
46. In summary, the Diocese of Fort Worth, a nonprofit religious organization organized and existing according to the Code of Canon Law of the Roman Catholic Church and recognized by the State of Texas, employs approximately 2,000 persons, over 1,000 of whom are eligible for health plan benefits offered through the Diocese. The Diocese includes 20 diocesan schools that serve approximately 6,500 students. These schools employ approximately 700
14

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 15 of 60 PageID 1004
teachers and other staff. And through its parishes, the Diocese serves an indeterminate number of persons who are homeless, hungry, elderly, or otherwise in need of material, educational, or other assistance, without regard to religious belief.
47. The Diocese qualifies as a “religious employer” under the narrow exemption from compliance with the U.S. Government Mandate.
48. The Diocese provides health insurance coverage to employees through the Christian Brothers Employee Benefit Trust, a self-funded church plan which serves employers of the Catholic Church by providing medical benefits to health plan participants. Health plan materials specifically state that “the Trust works within the framework of the tenets of the Catholic Church.” To that end, the Trust health plan does not cover abortion or sterilization drugs or services, nor does it cover contraceptives except when prescribed to treat a medical illness and approved by the Trust.
49. Moreover, the Christian Brothers Employee Benefit Trust health plan offered by the Diocese does not meet the definition of a “grandfathered” plan under the Patient Protection and Affordable Care Act. Since March 2010, changes to the health plan have resulted in increases to plan deductible amounts that exceed “medical inflation” as defined in 26 C.F.R. § 549815-1251T. Additionally, health plan materials provided to participants or beneficiaries have not included a statement that the plan is believed to be a grandfathered plan, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(ii).
50. Plaintiff OLV offers coverage through the Diocese’s insurance plan. 51. The plan year for the Diocese (and the organizations participating in its plan) begins on July 1.
15

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 16 of 60 PageID 1005
B. Our Lady of Victory Catholic School 52. OLV has served students in Fort Worth since its founding in 1910 by the Sisters
of Saint Mary of Namur. Originally a school for girls, OLV eventually transitioned into a coeducational institution for all students from preschool through eighth grade. OLV was also Fort Worth’s first fully integrated school.
53. OLV’s self-described mission is “to educate the whole child in a Roman Catholic, Christ-centered environment; to enable the child to grow spiritually, intellectually, responsibly; and to facilitate the learning and sharing of God-given gifts in service to others.”
54. To that end, OLV offers its diverse student body a rigorous education in a supportive learning environment. OLV “makes demands of the student, assumes he/she is motivated, and requires that he/she be actively involved in the learning process. High standards are expected from OLV students because the world for which they are preparing demands so much.”
55. Consistent with its Catholic identity, OLV teaches its students to integrate faith and life, aiming to “foster[] a belief in the moral and social justice teachings of Jesus Christ.” It stresses the importance of building a just society and provides numerous opportunities for students to participate in charitable work.
56. OLV welcomes students in all financial conditions, from all backgrounds, and of any or no faith. It has a co-ed student body of 85 students, and provides between $150,000 and $175,000 in student financial aid each year.
57. OLV has 23 employees, nine of whom are part of OLV’s insurance plan. Like the Diocese, OLV employs individuals of all faiths.
58. OLV does not qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, OLV does not qualify as a “religious employer” under
16

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 17 of 60 PageID 1006
the exemption to the U.S. Government Mandate. OLV is not an integrated auxiliary of the Diocese.
59. OLV employees are offered health insurance through the Diocese’s health plan. C. Catholic Charities
60. Catholic Charities, one of the largest nongovernmental social service providers in the region, annually provides services to over 110,000 people. It “is a faith-driven, servicedriven, and forward-driven organization committed to living out the commission of Jesus Christ throughout the diocese of Fort Worth by welcoming the stranger, caring for children, and strengthening families.”
61. To that end, it carries out the mandates of the Gospel and the social teaching of the Church through works of Christian charity, service, and social justice by providing competent and caring social services, special assistance to those in great need, and programs of community outreach and advocacy using the skills and talents of professional staff and volunteers. Catholic Charities pursues these goals through its own programs and through partnerships with parishes, community groups, and governmental agencies.
62. Over forty programs run by Catholic Charities provide a panoply of services to the community. These programs are “designed to combat poverty by promoting self sufficiency through a range of solutions including helping the homeless, sheltering at-risk children, teaching financial literacy courses, resettling refugees, and much more.” They are available to people in need without regard to their religion.
63. For example, International Foster Care (IFC) provides foster care for unaccompanied refugee and asylee minors, who do not have adult caregivers, by partnering with foster families to provide a safe, nurturing, and culturally sensitive environment. Currently, the program is working with 36 children between the ages of 10 and 21 from Africa, Southeast Asia,
17

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 18 of 60 PageID 1007
Central America, and South America. IFC partners with their foster families to equip and empower these young people to reach their full potential.
64. As another example, Catholic Charities’ Vocation Program provides individuals with the resources and opportunities needed to obtain living-wage employment, including educational opportunities in targeted industries and job placement services. Launching into its second year, this program already has 27 individuals enrolled—13 participating in the Certificate Program and 14 pursuing their Associate’s Degrees.
65. Catholic Charities has approximately 272 full-time and 60 part-time employees. Like the Diocese, Catholic Charities employs individuals of all faiths.
66. Catholic Charities is a member-director corporation. 67. Catholic Charities does not qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Catholic Charities does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate. 68. Catholic Charities employees are offered health insurance through CIGNA. The plan does not cover abortion, contraceptives, or sterilization. 69. Due to plan changes in 2010 and 2011, the group health insurance plan offered by Catholic Charities to its employees does not meet the definition of a “grandfathered” plan within the meaning of the Affordable Care Act. Additionally, health plan materials provided to participants or beneficiaries have not included a statement that the plan is believed to be a grandfathered plan, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(ii). 70. Catholic Charities’ plan year begins August 1. D. The University of Dallas 71. Plaintiff University of Dallas is an academic community of higher learning, organized as a private, independent Catholic, co-educational, liberal arts university in Irving,
18

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 19 of 60 PageID 1008
Texas. Incorporated in 1955 and founded in 1956 by the Western Province of the Sisters of Saint Mary to be a co-educational institution welcoming students of all faiths and backgrounds, the University seeks to provide a Catholic environment that prepares students spiritually and intellectually for their future vocations and careers.
72. As described in its mission statement, “The University as a whole is shaped by the long tradition of Catholic learning and acknowledges its commitment to the Catholic Church and its teaching. The University is dedicated to the recovery of the Christian intellectual tradition, and to the renewal of Catholic theology in fidelity to the Church and in constructive dialogue with the modern world. It seeks to maintain the dialogue of faith and reason in its curriculum and programs without violating the proper autonomy of each of the arts and sciences.”
73. Faith is at the heart of the University’s educational mission. The apostolic constitution Ex Corde Ecclesiae, which governs and defines the role of Catholic colleges and universities, provides that “the objective of a Catholic University is to assure . . . Fidelity to the Christian message as it comes to use through the Church.”
74. In accordance with the Ex Corde Ecclesiae, the University believes and teaches that “besides the teaching, research and services common to all Universities,” it must “bring[] to its task the inspiration and light of the Christian message.” “Catholic teaching and discipline are to influence all university activities,” and “[a]ny official action or commitment of the University [must] be in accord with its Catholic identity.”
75. “In a word, being both a University and Catholic, it must be both a community of scholars representing various branches of human knowledge, and an academic institution in which Catholicism is vitally present and operative.”
19

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 20 of 60 PageID 1009
76. Composed of four schools, including Constantin College, Braniff Graduate School, the School of Ministry, and the College of Business, the University embraces the riches of the Catholic intellectual tradition. The foundation of the undergraduate curriculum at the University is a set of approximately twenty core courses that are taken by all students. The courses are designed to expose all students to the great deeds, ideas, and works of Western Civilization—including in particular those expressive of its Christian character—in the belief that these are the surest guides in the search for truth and virtue.
77. The University offers 29 undergraduate majors and 26 graduate-level programs and pursues the highest academic achievement in every discipline, integrating faith and reason in pursuit of truth. Graduate programs include Masters of Arts in Psychology, Philosophy, Theology, and Humanities, as well as a Master of Religious Education, a Master of Catholic School Leadership, a Master of Catholic School Teaching, a Master of Pastoral Ministry, a Master of Theological Studies, a Master of Business Administration, and a Master of Science. In addition, the University offers doctoral programs in Literature, Politics, and Philosophy.
78. Though committed to remaining a distinctly Catholic institution, the University opens its doors to students, academics, and prospective employees of all faiths and creeds.
79. Over 1,300 students are currently enrolled in the University’s undergraduate programs, and another 1,300 are enrolled in its graduate programs. The school maintains a fulltime faculty of approximately 125 members and over 100 adjunct faculty members. In total, the University employs approximately 500 full- and part-time individuals, 356 of whom were benefits-eligible as of August 2013.
80. The University’s mission to educate and serve others extends beyond the borders of its campus. For example, the University has developed numerous faith-based charitable
20

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 21 of 60 PageID 1010
programs in which its students and faculty participate. These programs serve individuals regardless of faith, race, or financial condition and range from volunteer opportunities in Dallas (where students can participate in a variety of activities, such as repairing homes for low-income citizens or volunteering in hospitals) to service trips abroad (where students have assisted the underprivileged in communities from Georgia and Missouri to Peru and Ecuador). The University also hosts a number of educational events, lectures, and programs on its campus that are open to the public.
81. Faith is at the heart of all of the University’s efforts, and the University’s commitment to Catholic teachings permeates campus life. Many undergraduates are housed on campus in residence halls that are predominantly single-sex, and rooms for male students and female students in co-educational residence halls are separated by floor or wing. The University maintains visiting hours that forbid male students from being in female dormitories overnight and vice versa.
82. The University does not make contraception available to its students, faculty, or staff at its on-campus health care facility.
83. The University’s Catholic educational mission is furthered by its leadership. The President of the University has always been a Catholic, and the University’s President from 1996–2003 was a cleric, Monsignor Milam J. Joseph. The University’s Board of Trustees is entrusted with supervising the management of the University and determining University policy. A majority of the Trustees on the University’s Board are Catholic, and two clerics currently serve as trustees: Most Reverend Kevin F. Farrell, Bishop of Dallas; and Monsignor Greg Kelly.
84. Approximately 94% of full-time undergraduate students receive some form of financial aid, with the University distributing over $15 million in institutional grants and
21

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 22 of 60 PageID 1011
scholarships as well as nearly $2.5 million in federal and state grant funds to undergraduate students in the 2011–2012 school year.
85. A significant percentage of the University’s annual funds are raised from Catholics, including alumni, who donated, and continue to donate, to further its mission.
86. The University does not qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, it does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate.
87. The University is a member of a healthcare consortium called Collegiate Association REsource of the Southwest (“CARES”). The University is part of a partially selfinsured benefits plan with a voluntary employees’ beneficiary association trust offered to employees through the CARES consortium. The University pays a premium to the CARES consortium. That premium is placed in a pool designated for the University that is used to pay the claims of its employees and their eligible dependents, reserve requirements, administrative expenses, and stop loss insurance. Under this plan, the University pays for its employees’ claims, including all claims for covered preventive services, subject to an individual stop-loss limit.
88. For medical benefits, the CARES plan is administered by a third-party administrator, Blue Cross/Blue Shield of Texas. Prescription-drug benefits, however, are administered by Express Scripts, a separate third-party administrator.
89. The group health insurance plan offered by the University to its employees does not cover abortion-inducing products or sterilization. Consistent with Church teachings, the University’s plan covers products commonly used as contraceptives only when prescribed with the intent of treating a medical condition, not with the intent to prevent pregnancy.
22

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 23 of 60 PageID 1012
90. The group health insurance plan offered by the University provides rich coverage with a very low cost to employees. Co-pays and employee premiums are very low, especially given the University’s size. The generosity of the plans springs from the University’s mission.
91. The University’s employee health plan year begins on January 1. 92. The group health insurance plan offered by the University to its employees does not meet the definition of a “grandfathered” plan within the meaning of the Affordable Care Act. The plan was changed after March 23, 2010. In January 2011, the University changed plan administrators from CIGNA to Blue Cross / Blue Shield of Texas. In addition, the University has not included a statement describing its grandfathered status in plan materials, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(i). 93. The University also makes several health plans available to its students and their eligible dependants. For domestic students enrolled at the University’s Irving campus, the University offers a health plan provided by AETNA. International students enrolled at the University’s Irving campus are offered a health plan provided by Starr Indemnity & Liability Co. Domestic students studying at the University’s overseas campus in Rome can receive insurance through STA Travel/ISIC Basic Travel Insurance Plan. 94. Like the University’s employee plan, the plans offered to its students do not cover abortion-inducing products or sterilization. The health plans the University offers to its students covers products commonly used as contraceptives only when prescribed with the intent of treating a medical condition, not with the intent to prevent pregnancy or induce abortion. 95. The plan years for the University’s student health plans begin on August 1. 96. The health plans offered by the University to its students do not meet the Affordable Care Act’s definition of “grandfathered” plans. The University has not included and
23

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 24 of 60 PageID 1013
does not include a statement in plan materials provided to participants or beneficiaries informing them that it believes its plans are grandfathered health plans within the meaning of section 1251 of the Affordable Care Act. See, e.g., 26 C.F.R. § 54.9815-1251T(a)(2)(i). II. STATUTORY AND REGULATORY BACKGROUND
A. Statutory Background 97. In March 2010, Congress enacted the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 (2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the “Affordable Care Act” or the “Act”). The Affordable Care Act established many new requirements for “group health plan[s],” broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1).
98. As relevant here, the Act requires an employer’s group health plan to cover certain women’s “preventive care.” Specifically, it indicates that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” 42 U.S.C. § 300gg-13(a)(4). Because the Act prohibits “cost sharing requirements,” the health plan must pay for the full costs of these “preventive care” services without any deductible or co-payment.
99. “[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.” Interim Final Rules for Group Health Plans and Health Insurance Issuers
24

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 25 of 60 PageID 1014
Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 (July 19, 2010) (“Interim Final Rules”); 42 U.S.C. § 18011. These so-called “grandfathered health plans do not have to meet the requirements” of the U.S. Government Mandate. 75 Fed. Reg. at 41,731. HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732.
100. Federal law provides several mechanisms to enforce the requirements of the Act, including the U.S. Government Mandate. For example:
a. Under the Internal Revenue Code, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” will be exposed to significant annual fines of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1).
b. Under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to a penalty of $100 a day per affected beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Affordable Care Act).
c. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700.
d. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as
25

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 26 of 60 PageID 1015
incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act). 101. Several of the Act’s provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the “preventive care” required by § 300gg-13(a)(4) should exclude all abortion-related services. 102. For example, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, prohibits certain agencies from discriminating against an institution based on that institution’s refusal to provide abortion-related services. Specifically, it states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). The term “health care entity” is defined to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Id. § 507(d)(2) (emphasis added). 103. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion
26

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 27 of 60 PageID 1016
services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. S. Amend. No. 2786 to H.R. 3590, 111th Cong. (Dec. 23, 2009). To avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as “budget reconciliation” that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed to adequately prohibit federal funding of abortion. In an attempt to address these concerns, President Barack Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
104. The Act, therefore, was passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
B. Regulatory Background – Defining “Preventive Care” and the Narrow Exemption 105. In a span of less than two years, Defendants promulgated the U.S. Government
Mandate, subverting the Act’s clear purpose to protect the rights of conscience. The Mandate immediately prompted intense criticism and controversy, in response to which the Government has undertaken various revisions. None of these revisions, however, alleviates the burden that the Mandate imposes on Plaintiffs’ religious beliefs. To the contrary, these revisions have resulted in a final rule that is significantly worse than the original one.
27

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 28 of 60 PageID 1017
(1) The Original Mandate 106. On July 19, 2010, Defendants issued interim final rules addressing the statutory requirement that group health plans provide coverage for women’s “preventive care.” 75 Fed. Reg. 41,726 (citing 42 U.S.C. § 300gg-13(a)(4)). Initially, the rules did not define “preventive care,” instead noting that “[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1, 2011.” Id. at 41,731. 107. To develop the definition of “preventive care,” HHS outsourced its deliberations to the Institute of Medicine (“IOM”), a non-governmental “independent” organization. The IOM in turn created a “Committee on Preventive Services for Women,” composed of 16 members who were selected in secret without any public input. At least eight of the Committee members had founded, chaired, or worked with “pro-choice” advocacy groups (including five different Planned Parenthood entities) that have well-known political and ideological views, including strong animus toward Catholic teachings on abortion and contraception. 108. Unsurprisingly, the IOM Committee invited presentations from several “prochoice” groups, such as Planned Parenthood and the Guttmacher Institute (named for a former president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization. Instead, opponents were relegated to lining up for brief open-microphone sessions at the close of each meeting. 109. At the close of this process, on July 19, 2011, the IOM issued a final report recommending that “preventive care” for women be defined to include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity.” Inst. Of Med., Clinical Preventive Services for Women: Closing the Gaps,” at 218-219 (2011).
28

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 29 of 60 PageID 1018
110. The extreme bias of the IOM process spurred one member of the Committee, Dr. Anthony Lo Sasso, to dissent from the final recommendation, writing: “[T]he committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.” Id. at 232.
111. At a press briefing the next day, the chair of the IOM Committee fielded a question from a representative of the U.S. Conference of Catholic Bishops regarding the “coercive dynamic” of the Mandate, asking whether the Committee considered the “conscience rights” of those who would be forced to pay for coverage that they found objectionable on moral and religious grounds. In response, the chair illustrated her cavalier attitude toward the religiousliberty issue, stating bluntly: “[W]e did not take into account individual personal feelings.” See Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women, Press Briefing (July 20, 2011), available at http://www.iom .edu/Reports/2011/Clinical-Preventive-Services-forWomen-Closing-the-Gaps.aspx. The chair later expressed concern to Congress about considering religious objections to the Mandate because to do so would risk a “slippery slope” that could occur by “opening up that door” to religious liberty. See Executive Overreach: The HHS Mandate Versus Religious Liberty: Hearing Before the H. Comm. On the Judiciary, 112th Cong. (2012) (testimony of Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women).
112. Less than two weeks after the IOM report, without pausing for notice and comment, HHS issued a press release on August 1, 2011, announcing that it would adopt the IOM’s definition of “preventive care,” including all “FDA-approved contraception methods and contraceptive counseling.” See U.S. Dept. of Health and Human Services, “Affordable Care Act
29

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 30 of 60 PageID 1019
Ensures Women Receive Preventive Services at No Additional Cost,” available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html. HHS ignored the religious, moral and ethical dimensions of the decision and the ideological bias of the IOM Committee and stated that it had “relied on independent physicians, nurses, scientists, and other experts” to reach a definition that was “based on scientific evidence.” Under the final “scientific” definition, the category of mandatory “preventive care” extends to “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See “Women’s Preventive Services: Required Health Plan Coverage Guidelines,” http://www.hrsa.gov/womensguidelines.
113. The Government’s definition of mandatory “preventive care” also includes abortion-inducing products. For example, the FDA has approved “emergency contraceptives” such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.
114. Shortly after announcing its definition of “preventive care,” the Government proposed a narrow exemption from the Mandate for a small category of “religious employers” that met all of the following four criteria: “(1) The inculcation of religious values is the purpose of the organization”; “(2) The organization primarily employs persons who share the religious tenets of the organization”; “(3) The organization serves primarily persons who share the religious tenets of the organization”; and “(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. 46,621, 46,626 (Aug. 3, 2011) (codified at 45 C.F.R. § 147.130(a)(iv)(B)).
30

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 31 of 60 PageID 1020
115. As the Government itself admitted, this narrow exemption was intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.” Id. at 46,623. It provided no protection for religious universities, elementary and secondary schools, hospitals, and charitable organizations.
116. The sweeping nature of the Mandate was subject to widespread and withering criticism. Religious leaders from across the country protested that they should not be punished or considered less religious simply because they chose to live out their faith by serving needy members of the community who might not share their beliefs. For example, the University of Dallas urged the Government to “expand the existing religious employer exemption to include religious institutions . . . beyond just churches and religious orders.” Comments of the University of Dallas at 2.
117. Despite such pleas, the Government at first refused to reconsider its position. Instead, the Government “finalize[d], without change,” the narrow exemption as originally proposed. 77 Fed. Reg. at 8,729 (Feb. 15, 2012). At the same time, the Government announced that it would offer a “a one-year safe harbor from enforcement” for religious organizations that remained subject to the Mandate. Id. at 8,728. As noted by then-Bishop Farrell, the promised safe harbor effectively gave objecting religious institutions “one year to violate their consciences.” Most Reverend Kevin J. Farrell, D.D., The War Against Religious Freedom Escalates (Jan. 23, 2012), available at http://bishopkevinfarrell.org/blog/2012/01/the-war-against-religious-freedomescalates/ (last visited August 15, 2013).
118. A month later, under continuing public pressure, the Government issued an Advance Notice of Proposed Rulemaking (“ANPRM”) that, it claimed, set out a solution to the religious-liberty controversy created by the Mandate. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The
31

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 32 of 60 PageID 1021
ANPRM did not revoke the Mandate, and in fact reaffirmed the Government’s view at the time that the “religious employer” exemption would not be changed. Id. at 16,501-08. Instead, the ANPRM offered hypothetical “possible approaches” that would, in the Government’s view, somehow solve the religious-liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507. As the U.S. Conference of Catholic Bishops soon recognized, however, any semblance of relief offered by the ANPRM was illusory. Although it was designed to “create an appearance of moderation and compromise, it [did] not actually offer any change in the Administration’s earlier stated positions on mandated contraceptive coverage.” See Comments of U.S. Conference of Catholic Bishops, at 3 (May 15, 2012), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/comments-on-advance-notice-ofproposed-rulemaking-on-preventive-services-12-05-15.pdf.
(2) The Government’s Final Offer and the Empty “Accommodation” 119. On February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”), setting forth in further detail its proposal to “accommodate” the rights of Plaintiffs and other religious organizations. The NPRM, like the Government’s previous proposals, was once again met with strenuous opposition, including over 400,000 comments. For example, the U.S. Conference of Catholic Bishops stated that “the ‘accommodation’ still requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage. Such organizations and their employees remain deprived of their right to live and work under a health plan consonant with their explicit religious beliefs and commitments.” Comments of U.S. Conference of Catholic Bishop, at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-Comments-3-20final.pdf.
32

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 33 of 60 PageID 1022
120. Despite this opposition, on June 28, 2013, the Government issued a final rule that adopted substantially all of the NPRM’s proposal without significant change. See 78 Fed. Reg. 39870 (July 2, 2013) (“Final Rule”).
121. The Final Rule makes three changes to the Mandate. As described below, even the revised Mandate places unlawful burdens on Plaintiffs and other religious organizations. Indeed, one change significantly increases that burden by significantly increasing the number of religious organizations subject to the Mandate.
122. First, the Final Rule makes what the Government concedes to be a nonsubstantive, cosmetic change to the definition of “religious employer.” In particular, it eliminates the first three prongs of that definition, such that, under the new definition, an exempt “religious employer” is simply “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. at 39,874 (codified at 45 C.F.R. § 147.131(a)). As the Government has admitted, this new definition does “not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” 78 Fed. Reg. at 8,461. Instead, it continues to “restrict[]the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders.” Id. In this respect, the Final Rule mirrors the intended scope of the original “religious employer” exemption, which focused on “the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. at 46,623. Religious organizations that have a broader mission are still not, in the Government’s view, “religious employers.”
123. The “religious employer” exemption, moreover, creates an official, Governmentfavored category of religious groups that are exempt from the Mandate, while denying this
33

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 34 of 60 PageID 1023
favorable treatment to all other religious groups. The exemption applies only to those groups that are referred “to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.” This category includes only (i) “churches, their integrated auxiliaries, and conventions or associations of churches,” and (iii) “the exclusively religious activities of any religious order.” The IRS has adopted an intrusive 14-factor test to determine whether a group meets these qualifications. See Foundation of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009). Among these 14 factors is whether the group has “ a recognized creed and form of worship,” “a definite and distinct ecclesiastical government,” “a formal code of doctrine and discipline,” “a distinct religious history,” “an organization of ordained ministers” “a literature of its own,” “established places of worship,” “regular congregations, “regular religious services,” “Sunday schools for the religious instruction of the young,” and “schools for the preparation of its ministers.” Id. Not only do these factors favor some religious groups at the expense of others, but they also require the Government to make intrusive judgments regarding religious beliefs, practices, and organizational features to determine which groups fall into the favored category.
124. Second, the Final Rule establishes an illusory “accommodation” for certain nonexempt objecting religious entities that qualify as “eligible organizations.” To qualify as an “eligible organization,” a religious entity must (1) “oppose[] providing coverage for some or all of [the] contraceptive services,” (2) be “organized and operate[] as a non-profit entity”; (3) “hold[] itself out as a religious organization,” and (4) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance company or, if the religious organization is self-insured, to its third-party administrator. 26 C.F.R. § 54.98162713A(a). The provision of this self-certification then automatically requires the insurance issuer or third-party administrator to provide or arrange “payments for contraceptive services” for the
34

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 35 of 60 PageID 1024
organization’s employees, without imposing any “cost-sharing requirements (such as a copayment, coinsurance, or a deductible).” Id. § 54.9816-2713A(b)(2), (c)(2). The objectionable coverage, moreover, is directly tied to the organization’s health plan, lasting only as long as the employee remains on that plan. See 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(c)(2)(i)(B). In addition, self-insured organizations are prohibited from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure contraceptive services. 26 C.F.R. § 54.9815–2713.
125. This so-called “accommodation” fails to relieve the burden on religious organizations. Under the original version of the Mandate, a non-exempt religious organization’s decision to offer a group health plan resulted in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling. Under the Final Rule, a non-exempt religious organization’s decision to offer a group health plan still results in the provision of coverage—now in the form of “payments”—for abortion-inducing products, contraception, sterilization, and related counseling. Id. § 54.9816-2713A(b)-(c). In both scenarios, Plaintiffs’ decision to provide a group health plan triggers the provision of “free” contraceptive coverage to their employees in a manner contrary to their beliefs. The provision of the objectionable products and services are directly tied to Plaintiffs’ insurance policies, as the objectionable “payments” are available only so long as an employee is on the organization’s health plan. See 29 C.F.R. § 2590.715-2713A(d) (for self-insured employers, the third-party administrator “will provide or arrange separate payments for contraceptive services . . . for so long as [employees] are enrolled in [their] group health plan”); 45 C.F.R. § 147.131(c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan”). For self-
35

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 36 of 60 PageID 1025
insured organizations, moreover, the self-certification constitutes the religious organization’s “designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (emphasis added). Thus, employer health plans offered by non-exempt religious organizations are the vehicle by which “free” abortion-inducing products, contraception, sterilization, and related counseling are delivered to the organizations’ employees.
126. Needless to say, this shell game does not address Plaintiffs’ fundamental religious objection to improperly facilitating access to the objectionable products and services. The Mandate coerces Plaintiffs, through threats of crippling fines and other pressure, into facilitating access to contraception, abortion-inducing products, sterilization, and related counseling for their employees, contrary to their sincerely held religious beliefs.
127. The so-called “accommodation,” moreover, requires Plaintiffs to cooperate in the provision of objectionable coverage in other ways as well. For example, in order to be eligible for the so-called “accommodation,” Plaintiffs must provide a “certification” to their insurance provider setting forth their religious objections to the Mandate. The provision of this “certification,” in turn, automatically triggers an obligation on the part of the insurance provider to provide Plaintiffs’ employees with the objectionable coverage. A religious organization’s selfcertification, therefore, is a trigger and but-for cause of the objectionable coverage.
128. The Mandate also requires Plaintiffs to subsidize the objectionable products and services.
129. For organizations that procure insurance through a separate insurance provider, the Government asserts that the cost of the objectionable products and services will be “cost neutral” and, therefore, that Plaintiffs will not actually be paying for it, notwithstanding the fact
36

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 37 of 60 PageID 1026
that Plaintiffs’ premiums are the only source of funding that their insurance providers will receive for the objectionable products and services.
130. The Government’s “cost-neutral” assertion, however, is implausible. It rests on the assumption that cost “savings” from “fewer childbirths” will be at least as large as the direct costs of paying for contraceptive products and services and the costs of administering individual policies. 78 Fed. Reg. at 8,463. Some employees, however, will choose not to use contraception notwithstanding the Mandate. Others would use contraception regardless of whether it is being paid for by an insurance company. And yet others will shift from less expensive to more expensive products once coverage is mandate and cost-sharing is prohibited. Consequently, there can be no assurance that cost “savings” from “fewer childbirths” will offset the cost of providing contraceptive services.
131. More importantly, even if the Government’s “cost-neutral” assertion were true, it is irrelevant. The so-called “accommodation” is nothing more than a shell game. Premiums previously paid by the objecting employers to cover, for example, “childbirths,” will now be redirected to pay for contraceptive products and services. Thus, the objecting employer is still required to pay for the objectionable products and services.
132. For self-insured organizations, the Government’s “cost-neutral” assumption is likewise implausible. The Government asserts that third-party administrators required to provide or procure the objectionable products and services will be compensated by reductions in user fees that they otherwise would pay for participating in federally-facilitated health exchanges. See 78 Fed. Reg. at 39,882. Such fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third-party administrators. Such regulatory regimes, however, do not fully compensate the
37

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 38 of 60 PageID 1027
regulatory entities for the costs and risks incurred. As a result, few if any third-party administrators are likely to participate in this regime, and those that do are likely to increase fees charged to the self-insured organizations.
133. Either way, as with insured plans, self-insured organizations likewise will be required to subsidize contraceptive products and services notwithstanding the so-called “accommodation.”
134. For all of these reasons, the U.S. Government Mandate continues to require Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related education and counseling, in violation of their sincerely-held religious beliefs.
135. Third, the Final Rule actually increases the number of religious organizations that are subject to the Mandate. Under the Government’s initial interpretation of the “religious employer” exemption, if a nonexempt religious organization “provided health coverage for its employees through” a plan offered by a separate, “affiliated” organization that was “exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.” 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012).
136. For example, the Diocese operates an insurance plan that covers not only the Diocese itself, but other Catholic organizations—including Plaintiff OLV. Under the Government’s initial interpretation of the religious employer exemption, if the Diocese was an exempt “religious employer,” then OLV received the benefit of that exemption, regardless of whether it independently qualified as a “religious employer,” since it could continue to participate in the Diocese’s exempt plan. OLV, therefore, could benefit from the Diocese’s exemption even
38

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 39 of 60 PageID 1028
if by itself it could not meet the Government’s unprecedentedly narrow definition of “religious employer.”
137. The Final Rule eliminates this safeguard. Instead, it provides that “each employer” must “independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respect to its employees and their covered dependents.” 78 Fed. Reg. at 39,886. See also 78 Fed. Reg. at 8,467. Since OLV does not meet the Government’s narrow definition of a “religious employer,” it is now subject to the U.S. Government Mandate.
138. Moreover, since OLV is part of the Diocese’s insurance plan, the Diocese is now required by the Mandate to do one of two things: since OLV participates in the diocesan insurance plan, the Diocese would be forced to sponsor a plan that will provide OLV’s employees with access to “free” contraception, abortion-inducing products, sterilization, and related counseling. Alternatively, the Diocese must expel OLV from its insurance plan and thereby subject OLV to massive fines unless it enters into an arrangement with another insurance provider that will, in turn, provide or procure the objectionable products and services.
139. In this respect, the Mandate seeks to divide the Catholic Church. The Church’s faith in action, carried out through its charitable and educational arms, is every bit as central to the Church’s religious mission as is the administration of the Sacraments. In the words of Pope Benedict, “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Yet the Mandate seeks to separate these consubstantial aspects of the Catholic faith, treating one as “religious” and the other as not. The Mandate therefore deeply intrudes into internal Church governance.
39

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 40 of 60 PageID 1029
140. In sum, the revised Mandate imposes a burden on the Plaintiffs’ religious beliefs; it in fact makes that burden significantly worse by increasing the number of religious organizations that are subject to the Mandate. The U.S. Government Mandate, therefore, requires Plaintiffs to act contrary to their sincerely held religious beliefs. III. THE U.S. GOVERNMENT MANDATE IMPOSES A SUBSTANTIAL BURDEN
ON PLAINTIFFS’ RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiffs’ Religious Beliefs
141. Since the founding of this country, our law and society have recognized that individuals and institutions are entitled to freedom of conscience and religious practice. Absent a compelling reason, no government authority may compel any group or individual to act contrary to their religious beliefs. As noted by Thomas Jefferson, “[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.”
142. The U.S. Government Mandate violates Plaintiffs’ rights of conscience by forcing them to participate in an employer-based scheme to provide access to products and services to which they strenuously object on moral and religious grounds.
143. It is a core tenet of Plaintiffs’ religion that abortion, contraception, and sterilization are serious moral wrongs.
144. Plaintiffs’ Catholic beliefs therefore prohibit them from providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization.
145. As a corollary, Plaintiffs’ Catholic beliefs prohibit them contracting with an insurance company or third-party administrator that will, as a result, provide or procure the objectionable products and services to Plaintiffs’ employees.
146. Plaintiffs’ beliefs are deeply and sincerely held.
40

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 41 of 60 PageID 1030
147. The U.S. Government Mandate, therefore, requires Plaintiffs to do precisely what their sincerely held religious beliefs prohibit—provide, pay for, and/or facilitate access to objectionable products and services or else incur crippling sanctions.
148. The U.S. Government Mandate therefore imposes a substantial burden on plaintiffs’ religious beliefs.
149. The Mandate’s exemption for “religious employers” does not alleviate the burden. 150. The “religious employers” exemption does not apply to Plaintiffs OLV, Catholic Charities, or the University of Dallas. 151. Although the Diocese is a “religious employer,” the Mandate still forces it either to (1) sponsor a plan that will provide OLV and other affiliated Catholic organizations with access to the objectionable products and services, or (2) no longer extend its plan to these organizations, subjecting them to massive fines if they do not contract with another insurance provider that will provide the objectionable coverage. 152. The first option forces the Diocese to act contrary to its sincerely-held religious beliefs. The second option compels the Diocese to submit to the government’s interference with its structure and internal operations by accepting a construct that divides churches from their ministries. 153. The so-called “accommodation” does not alleviate the burden on Plaintiffs’ sincerely held religious beliefs. 154. Notwithstanding the so-called “accommodation,” Plaintiffs are still required to provide, pay for, and/or facilitate access to the objectionable products and services.
41

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 42 of 60 PageID 1031
155. Plaintiffs’ Catholic beliefs do not simply prohibit them from using or directly paying for the objectionable coverage. Their beliefs also prohibit them from facilitating access to the objectionable products and services in the manner required by the Mandate.
156. Finally, the Plaintiffs cannot avoid the U.S. Government Mandate without incurring significant adverse consequences. If they eliminate their employee health plans, they are subject to annual fines of $2,000 per full-time employee and would suffer a disandvantage in employee recruitment and retention. If they keep their health plans but refuse to provide or facilitate the objectionable coverage, they are subject to daily fines of $100 a day per affected beneficiary. These adverse consequences therefore coerce Plaintiffs into violating their religious beliefs.
157. In short, while the President claims to have “found a solution that works for everyone” and that ensures that “religious liberty will be protected,” his promised “accommodation” does neither. Unless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on Plaintiffs’ religious beliefs.
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability 158. The U.S. Government Mandate is not a neutral law of general applicability. It
offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing products, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with Plaintiffs’ religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
159. For example, the Mandate exempts all “grandfathered” plans from its requirements, thus excluding tens of millions of people from the mandated coverage. As the
42

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 43 of 60 PageID 1032
government has admitted, while the numbers are expected to diminish over time, “98 million individuals will be enrolled in grandfathered group health plans in 2013.” 75 Fed. Reg. 41726,41732 (July 19, 2010). Elsewhere, the government has put the number at 87 million. See “Keeping the Health Plan You Have” (June 14, 2010), http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html. And according to one district court last year, “191 million Americans belong[ed] to plans which may be grandfathered under the ACA.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1291 (D. Colo. 2012).
160. Similarly, small employers (i.e., those with fewer than 50 employees) are exempt from certain enforcement mechanisms to compel compliance with the Mandate. See 26 U.S.C. § 4980H(a) (exempting small employers from the assessable payment for failure to provide health coverage).
161. In addition, the Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the Internal Revenue Code. The Government cannot justify its protection of the religious-conscience rights of the narrow category of exempt “religious employers,” but not of Plaintiffs and other religious organizations that remain subject to the Mandate.
162. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. Defendant Sebelius has long supported abortion rights and criticized Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic
43

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 44 of 60 PageID 1033
teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.” In addition, the Mandate was modeled on a California law that was motivated by discriminatory intent against religious groups that oppose contraception.
163. Consequently, Plaintiffs allege that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
164. The U.S. Government Mandate is not narrowly tailored to serve a compelling governmental interest.
165. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely held religious beliefs by requiring them to participate in a scheme for the provision of abortion-inducing products, sterilization, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plaintiffs do inhibits any individual from exercising that right.
166. Even assuming the interest was compelling, the Government has numerous alternative means of furthering that interest without forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable services
44

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 45 of 60 PageID 1034
itself through other programs established by a duly enacted law. Or, at a minimum, it could have created a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. The Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
167. The U.S. Government Mandate, moreover, would simultaneously undermine both religious freedom—a fundamental right enshrined in the U.S. Constitution—and access to the wide variety of social and educational services that Plaintiffs provide. As President Obama acknowledged in his announcement of February 10, 2012, religious organizations like Plaintiffs do “more good for a community than a government program ever could.” The U.S. Government Mandate, however, puts these good works in jeopardy.
168. That is unconscionable. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. IV. THE U.S. GOVERNMENT MANDATE THREATENS PLAINTIFFS WITH
IMMINENT INJURY THAT SHOULD BE REMEDIED BY A COURT 169. The U.S. Government Mandate is causing serious, ongoing hardship to Plaintiffs that merits relief now. 170. On June 28, 2013, Defendants finalized the U.S. Government mandate, including the narrow “religious employer” exemption and the so-called “accommodation” proposed in the NPRM. By the terms of the Final Rule, Plaintiffs must comply with the Mandate for their plan years beginning on or after January 1, 2014. 171. For the University of Dallas, the next plan year for its employee health insurance plan begins on January 1, 2014. Its next student plan years will begin on August 1, 2014.
45

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 46 of 60 PageID 1035
172. The Diocese and OLV’s next plan years begin on July 1, 2014. Catholic Charities’ next plan year begins August 1, 2014.
173. Defendants have given no indication that they will not enforce the essential provisions of the Mandate that impose a substantial burden on Plaintiffs’ rights. Consequently, absent the relief sought herein, Plaintiffs will be required to provide, pay for, and/or facilitate access to contraception, abortion-inducing products, sterilization, and related education and counseling, in violation of their sincerely held religious beliefs.
174. The U.S. Government Mandate is also harming Plaintiffs in other ways. 175. Health plans do not take shape overnight. A number of analyses, negotiations, and decisions must occur each year before Plaintiffs can offer a health benefits package to their employees. For example, an employer using an outside insurance issuer must work with actuaries to evaluate its funding reserves, and then negotiate with the insurer to determine the cost of the products and services it wants to offer its employees. An employer that is self-insured, after consulting with its actuaries, must similarly negotiate with its third-party administrator (“TPA”). 176. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year at least several months before the plan year begins. The multiple levels of uncertainty surrounding the U.S. Government Mandate make this already lengthy process even more complex. 177. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they may be subject to government fines and penalties. Plaintiffs require time to budget for any such additional expenses. 178. The U.S. Government Mandate and its uncertain legality, moreover, undermine Plaintiffs’ ability to hire and retain employees, thus placing them at a competitive disadvantage
46

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 47 of 60 PageID 1036
in the labor market relative to organizations that do not have a religious objection to the Mandate.
179. Plaintiffs therefore need judicial relief now in order to prevent the serious, ongoing harm that the U.S. Government Mandate is already imposing on them. V. CAUSES OF ACTION
COUNT I Substantial Burden on Religious Exercise
in Violation of RFRA 180. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 181. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 182. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise. 183. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 184. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs. 185. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion. 186. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
47

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 48 of 60 PageID 1037
187. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
188. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
189. The U.S. Government Mandate also requires student health plans, including those currently offered by the University, to facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling in a manner that is directly contrary to its religious beliefs..
190. To require the University’s student health plans to facilitate access to services that violate the University’s religious beliefs substantially burdens its exercise of religion.
191. The Government has no compelling government interest to require the University’s student health plans to facilitate access to services that violate the University’s religious beliefs.
192. Requiring the University’s student health plans to facilitate access to services that violate the University’s religious beliefs is not the least restrictive means of furthering a compelling government interest.
193. Plaintiffs have no adequate remedy at law. 194. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 195. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 196. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion.
48

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 49 of 60 PageID 1038
197. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise.
198. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs.
199. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion.
200. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling.
201. The U.S. Government Mandate is not a neutral law of general applicability because it was passed with discriminatory intent.
202. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech, free association, and freedom from excessive government entanglement with religion.
203. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
204. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
49

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 50 of 60 PageID 1039
205. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiffs’ religious exercise in violation of the Free Exercise Clause of the First Amendment.
206. The Government also requires student health plans, including those currently offered by the University, to facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling in a manner that is directly contrary to its religious beliefs.
207. To require the University’s student health plans to facilitate access to products and services that violate its religious beliefs substantially burdens the University’s exercise of religion.
208. The Government has no compelling government interest to require the University’s student health plans to facilitate access to products and services that violate its religious beliefs.
209. Requiring the University’s student health plans to facilitate access to products and services that violate its religious beliefs is not the least restrictive means of furthering a compelling government interest.
210. Plaintiffs have no adequate remedy at law. 211. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III Compelled Speech in Violation of the Free Speech Clause of the First Amendment 212. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 213. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable.
50

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 51 of 60 PageID 1040
214. The First Amendment protects organizations as well as individuals against compelled speech.
215. Expenditures are a form of speech protected by the First Amendment. 216. The First Amendment speakers from being forced to support a viewpoint that conflicts with their religious beliefs. 217. The U.S. Government Mandate would compel Plaintiffs to provide health care plans to their employees that include or facilitate access to products and services that violate their religious beliefs. 218. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these objectionable products and services. 219. The U.S. Government Mandate would compel Plaintiffs to issue a certification of its beliefs that, in turn, would result in the provision of access to objectionable products and services to Plaintiffs’ employees. 220. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs, and compelling Plaintiffs to engage in speech that will result in the provision of access to objectionable products and services to Plaintiffs’ employees. 221. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny. 222. The U.S. Government Mandate furthers no compelling governmental interest. 223. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
51

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 52 of 60 PageID 1041
224. For the same reasons, Defendants’ requirement that student health plans, like those currently offered by the University, facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling, also violates the Free Speech Clause of the First Amendment.
225. Plaintiffs have no adequate remedy at law. 226. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV Prohibition of Speech in Violation of the First Amendment 227. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 228. The First Amendment protects the freedom of speech, including the right of religious groups to speak out to persuade others to refrain from engaging in conduct that may be considered immoral. 229. The Mandate violates the First Amendment freedom of speech by imposing a gag order that prohibits Plaintiffs from speaking out in any way that might “influence,” “directly or indirectly,” the decision of a third-party administrator to provide or procure contraceptive products and services to Plaintiffs’ employees. 230. Plaintiffs have no adequate remedy at law. 231. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V Official “Church” Favoritism and Excessive Entanglement with Religion
in Violation of the Establishment Clause of the First Amendment 232. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint.
52

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 53 of 60 PageID 1042
233. The Establishment Clause of the First Amendment prohibits the Government from adopting an official definition of a “religious employer” that favors some religious groups while excluding others.
234. The Establishment Clause also prohibits the Government from becoming excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices, and organizational features to determine whether they meet the Government’s favored definition.
235. The “religious employer” exemption violates the Establishment Clause in two ways.
236. First, it favors some religious groups over others by creating an official definition of “religious employers.” Religious groups that meet the Government’s official definition receive favorable treatment in the form of an exemption from the Mandate, while other religious groups do not.
237. Second, even if it were permissible for the Government to favor some religious groups over others, the “religious employer” exemption would still violate the Establishment Clause because it requires the Government to determine whether groups qualify as “religious employers” based on intrusive judgments about their beliefs, practices, and organizational features. The exemption turns on an intrusive 14-factor test to determine whether a group meets the requirements of section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. These 14 factors probe into matters such as whether a religious group has “a distinct religious history” or “a recognized creed and form of worship.” But it is not the Government’s place to determine whether a group’s religious history is “distinct,” or whether the group’s “creed and form of worship” are “recognized.” By directing the Government to partake
53

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 54 of 60 PageID 1043
of such inquiries, the “religious employer” exemption runs afoul of the Establishment Clause prohibition on excessive entanglement with religion.
238. Plaintiffs have no adequate remedy at law. 239. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Interference in Matters of Internal Church Governance in Violation of
the Religion Clauses of the First Amendment 240. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 241. The Free Exercise Clause and Establishment Clause and the Religious Freedom Restoration Act protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. 242. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine. 243. Under these Clauses, the Government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself. 244. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 245. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. 246. Plaintiffs have abided and must continue to abide by the decision of the Catholic Church on these issues.
54

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 55 of 60 PageID 1044
247. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views.
248. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate access to abortion, sterilization, or contraception.
249. The Diocese has further made the internal decision that other religious entities, including OLV, may offer their employees health-insurance coverage through the Diocese’s plan, which allows the Diocese to ensure that these organizations do not offer access to services that are contrary to Catholic teaching.
250. The U.S. Government Mandate interferes with Plaintiffs’ internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic beliefs.
251. The U.S. Government Mandate’s interference with Plaintiffs’ internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
252. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiffs in a manner that affects Plaintiffs’ faith and mission, it violates the Establishment Clause and the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act.
253. For the same reasons, Defendants’ requirement that student health plans, like those currently offered by the University, include access to abortion-inducing products, sterilization, contraception, and related education and counseling, also violates the Establishment
55

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 56 of 60 PageID 1045
Clause and the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act.
254. Plaintiffs have no adequate remedy at law. 255. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Illegal Action in Violation of the APA 256. Plaintiffs repeat and reallege each of the foregoing allegations in this Complaint. 257. The APA requires that all Government agency action, findings, and conclusions be “in accordance with law.” 258. The U.S. Government Mandate, its exemption for “religious employers,” and its so-called “accommodation” for “eligible” religious organizations are illegal and therefore in violation of the APA. 259. The Weldon Amendment states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). 260. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans
56

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 57 of 60 PageID 1046
that include access to abortion-inducing products, sterilization, contraception, or related education and counseling should be required to provide such plans.
261. The U.S. Government Mandate requires employer-based health plans to provide access to abortion-inducing products, contraception, sterilization, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
262. The U.S. Government Mandate violates RFRA. 263. The U.S. Government Mandate violates the First Amendment. 264. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 265. For the same reasons, Defendants’ requirement that student health plans, like those offered by the University, must provide access to abortion-inducing products, sterilization, contraception, and related education and counseling, also violates RFRA, the First Amendment, the Weldon Amendment, and the APA. The requirement therefore is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 266. In addition, the Affordable Care Act states that, “nothing in this title (or an amendment made by this title) shall be construed to prohibit an institution of higher education . . . from offering a student health insurance plan . . . .” 42 U.S.C. § 18118(c). This provision has been interpreted as prohibiting any law that has the effect of prohibiting an institution of higher education from offering a student health plan. 76 Fed. Reg. 7,767, 7,769 (Feb. 11, 2011). The requirement that student health plans offered through a health insurance issuer facilitate access to abortion-inducing products, sterilization, contraception, and related education and
57

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 58 of 60 PageID 1047
counseling, however, has the effect of prohibiting the University from offering student health insurance plans. Defendants’ requirement that student health plans offered through a health insurance issuer include abortion-inducing products, sterilization, contraception, and related education and counseling, therefore, also violates 42 U.S.C. § 18118(c) and thus is not in accordance with law under 5 U.S.C. § 706(2)(A).
267. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
268. Plaintiffs have no adequate remedy at law. 269. Defendants’ failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was
promulgated in violation of the APA; 4. Enter an injunction prohibiting the Defendants from enforcing the U.S.
Government Mandate against Plaintiffs; 5. Enter an order vacating the U.S. Government Mandate; 6. Enter a declaratory judgment that Defendants’ requirement that student health
plans facilitate access to abortion-inducing products, sterilization,
58

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 59 of 60 PageID 1048
contraception, and related education and counseling violates Plaintiffs’ rights
under RFRA and the First Amendment; enter an injunction prohibiting the
Defendants from enforcing that requirement against Plaintiffs; and enter an
order vacating the requirement;
7. Award Plaintiffs attorneys’ and expert fees under 42 U.S.C. § 1988; and
8. Award all other relief as the Court may deem just and proper.
Respectfully submitted, this the 22nd day of August, 2013.
By: /s/ Terence M. Murphy Terence M. Murphy Texas State Bar No. 14707000 tmurphy@jonesday.com Tamara Marinkovic Texas State Bar No. 00791175 tmarinkovic@jonesday.com Basheer Y. Ghorayeb Texas State Bar No. 24027392 bghorayeb@jonesday.com JONES DAY 2727 North Harwood Street Dallas, Texas 75201 (214) 220-3939 (214) 969-5100 facsimile
John W. Crumley Texas State Bar No. 05184500 crumley1@airmail.net JOHN W. CRUMLEY, P.C. 501 University Centre 1 1300 South University Drive Fort Worth, Texas 76107-5737 (817) 334-0291 (817) 334-0775 facsimile
Counsel for Plaintiffs
59

Case 4:12-cv-00314-Y Document 64 Filed 08/22/13 Page 60 of 60 PageID 1049

CERTIFICATE OF SERVICE I certify that on August 22, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which sent notice of such filing to all parties.

DLI-6453338

/s/ Basheer Y. Ghorayeb Basheer Y. Ghorayeb

60

 
 Case 4:12-cv-00314-Y Document 70 Filed 10/09/13 Page 1 of 3 PageID 1076

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

)

ROMAN CATHOLIC DIOCESE OF

)

FORT WORTH; UNIVERSITY OF

)

DALLAS; OUR LADY OF VICTORY

)

CATHOLIC SCHOOL; CATHOLIC

)

CHARITIES, DIOCESE OF FORT

)

WORTH, INC.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official capacity as Secretary of the U.S.

) )

Civil Action No. 4:12-CV-314-Y

Department of Health and Human

)

Services; THOMAS PEREZ, in his official )

DEMAND FOR JURY TRIAL

capacity as Secretary of the U.S.

)

Department of Labor, JACOB J. LEW, in )

his official capacity as Secretary of the

)

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

)

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; U.S.

)

DEPARTMENT OF LABOR; and U.S.

)

DEPARTMENT OF TREASURY,

)

Defendants.

PLAINTIFF UNIVERSITY OF DALLAS’S MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiff University of Dallas respectfully moves this Court for entry of an Order prohibiting Defendants, during the pendency of this litigation, from enforcing the U.S. Government Mandate against the University.
The University needs preliminary injunctive relief because it will be subject to the Mandate beginning on January 1, 2014, when its new plan year begins for its employee group health plan. Accordingly, the University needs a decision on its request for injunctive relief

-1-

Case 4:12-cv-00314-Y Document 70 Filed 10/09/13 Page 2 of 3 PageID 1077
before January 1, 2014. As set forth more fully in Plaintiffs’ Brief in Support of Plaintiff University of Dallas’s Motion for Preliminary Injunction and Plaintiffs’ Motion for Summary Judgment: (1) the University is substantially likely to succeed on the merits of its claims; (2) the University faces a substantial threat of irreparable injury if the injunction is not issued, (3) the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) granting the injunction will not disserve the public interest.
Consequently, the University respectfully asks that this Court grant the requested relief and enter an Order prohibiting Defendants, during the pendency of this litigation, from enforcing the U.S. Government Mandate against the University.
Respectfully submitted, this the 9th day of October, 2013. By: /s/ Basheer Y. Ghorayeb Terence M. Murphy Texas State Bar No. 14707000 tmurphy@jonesday.com Tamara Marinkovic Texas State Bar No. 00791175 tmarinkovic@jonesday.com Basheer Y. Ghorayeb Texas State Bar No. 24027392 bghorayeb@jonesday.com JONES DAY 2727 North Harwood Street Dallas, Texas 75201 (214) 220-3939 (214) 969-5100 facsimile
-2-

Case 4:12-cv-00314-Y Document 70 Filed 10/09/13 Page 3 of 3 PageID 1078
John W. Crumley Texas State Bar No. 05184500 crumley1@airmail.net JOHN W. CRUMLEY, P.C. 501 University Centre 1 1300 South University Drive Fort Worth, Texas 76107-5737 (817) 334-0291 (817) 334-0775 facsimile Counsel for Plaintiffs CERTIFICATE OF SERVICE I certify that on October 9, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which sent notice of such filing to all parties. /s/ Basheer Y. Ghorayeb Basheer Y. Ghorayeb
DLI-6459124v1
-3-

 
 Case 4:12-cv-00314-Y Document 71 Filed 10/09/13 Page 1 of 4 PageID 1079

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

)

ROMAN CATHOLIC DIOCESE OF

)

FORT WORTH; UNIVERSITY OF

)

DALLAS; OUR LADY OF VICTORY

)

CATHOLIC SCHOOL; CATHOLIC

)

CHARITIES, DIOCESE OF FORT

)

WORTH, INC.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

) Civil Action No. 4:12-CV-314-Y

Department of Health and Human

)

Services; THOMAS PEREZ, in his official ) DEMAND FOR JURY TRIAL

capacity as Secretary of the U.S.

)

Department of Labor, JACOB J. LEW, in )

his official capacity as Secretary of the

)

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

)

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; U.S.

)

DEPARTMENT OF LABOR; and U.S.

)

DEPARTMENT OF TREASURY,

)

Defendants.

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiffs Roman Catholic Diocese of Fort Worth, University of Dallas, Our Lady of Victory Catholic School, and Catholic Charities, Diocese of Fort Worth, Inc. move this Court to grant summary judgment in their favor on all their claims.
Summary Pursuant to LR 56.3, Plaintiffs provide the following summary of the elements of their claims:

Case 4:12-cv-00314-Y Document 71 Filed 10/09/13 Page 2 of 4 PageID 1080
 RFRA Claim: The Religious Freedom Restoration Claim (“RFRA”) prohibits the government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the government can "demonstrate[] that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(a),(b). The Mandate violates the RFRA by substantially burdening Plaintiffs’ exercise of religion without being the least restrictive means to achieve a compelling government interest.
 Free Exercise Clause: The Free Exercise Clause prohibits the government from passing a law that substantially burdens the exercise of religion. A law that is neutral and of general applicability need not be justified by a compelling governmental interest. But if a law may restricts practices because of their religious motivation, the law must be justified by a compelling interest and must be narrowly tailored to advance that interest. The Mandate violates the Free Exercise Clause of the First Amendment because it substantially burdens Plaintiffs’ exercise of religion, is not a neutral and generally applicable law, and is neither justified by nor narrowly tailored to further a compelling government interest.
 Establishment Clause: Under Lemon, a statute violates the Establishment Clause if (1) it does not have a secular purpose, (2) its principal or primary effect advances or inhibits religion, or (3) it creates excessive government entanglement with religion. See Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The Mandate’s “religious employer” exemption violates the Establishment Clause of the First Amendment in two ways. First, it creates an artificial, Government-favored category of “religious employers,” which favors some types of religious groups over others. Second, the Mandate creates an excessive entanglement between government and religion.
 Compelled Speech: The Free Speech Clause of the First Amendment prohibits laws that compel a speaker to affirm any religious or ideological proposition that the speaker finds unacceptable, unless the law is narrowly tailored to further a compelling government interest. The Mandate compels Plaintiffs to support and/or facilitate “counseling” that contradicts their religious viewpoint, and the Mandate is not narrowly tailored to further a compelling government interest.
 Freedom of Speech: Content-based restrictions on speech are subject to strict scrutiny, requiring the government to prove that its actions are narrowly tailored to further a compelling interest. The Mandate violates the First Amendment protection of freedom of speech by imposing a gag order that prohibits Plaintiffs from attempting to “influence” a third party administrator’s decision to provide or procure contraceptive services, a gag order that is not narrowly tailored to meet any compelling interest.
 Internal Church Governance: The Religion Clauses of the First Amendment prohibit “government interference with an internal church decision that affects the faith and mission of the church itself.” Hosanna-Tabor Evangelical Lutheran Church &
-2-

Case 4:12-cv-00314-Y Document 71 Filed 10/09/13 Page 3 of 4 PageID 1081
School v. EEOC, 132 S.Ct. 694, 707 (2012). The Mandate violates both Religion Clauses of the First Amendment because it interferes with Plaintiffs’ rights of internal church governance.  APA: The Administrative Procedure Act requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Mandate violates the APA because the Defendants did not act “in accordance with law” and disregarded statutory prohibitions on compelled support for abortion. This motion is made under Federal Rule of Civil Procedure 56 and is supported by the record in this case, the accompanying Brief in Support of Plaintiffs’ Motion for Summary Judgment, which sets forth each of the matters required by Local Rule 56.3 not satisfied in this motion, and the accompanying Appendix and declarations.
Prayer for Relief Plaintiffs respectfully request that the Court grant this Motion for Summary Judgment and award costs in their favor. Plaintiffs also pray for any additional relief to which this Court deems they are entitled.
-3-

Case 4:12-cv-00314-Y Document 71 Filed 10/09/13 Page 4 of 4 PageID 1082

Respectfully submitted, this 9th day of October, 2013.
By: /s/ Basheer Y. Ghorayeb Terence M. Murphy Texas State Bar No. 14707000 tmurphy@jonesday.com Tamara Marinkovic Texas State Bar No. 00791175 tmarinkovic@jonesday.com Basheer Y. Ghorayeb Texas State Bar No. 24027392 bghorayeb@jonesday.com JONES DAY 2727 North Harwood Street Dallas, Texas 75201 (214) 220-3939 (214) 969-5100 facsimile
John W. Crumley Texas State Bar No. 05184500 crumley1@airmail.net JOHN W. CRUMLEY, P.C. 501 University Centre 1 1300 South University Drive Fort Worth, Texas 76107-5737 (817) 334-0291 (817) 334-0775 facsimile
Counsel for Plaintiffs
CERTIFICATE OF SERVICE
I certify that on October 9, 2013, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system, which sent notice of such filing to all parties.

DLI-6459416v1

/s/ Basheer Y. Ghorayeb Basheer Y. Ghorayeb

-4-

 
 Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 1 of 58 PageID 1083

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

)

ROMAN CATHOLIC DIOCESE OF

)

FORT WORTH; UNIVERSITY OF

)

DALLAS; OUR LADY OF VICTORY

)

CATHOLIC SCHOOL; CATHOLIC

)

CHARITIES, DIOCESE OF FORT

)

WORTH, INC.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

) Civil Action No. 4:12-CV-314-Y

Department of Health and Human

)

Services; THOMAS PEREZ, in his official ) DEMAND FOR JURY TRIAL

capacity as Secretary of the U.S.

)

Department of Labor, JACOB J. LEW, in )

his official capacity as Secretary of the

)

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

)

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; U.S.

)

DEPARTMENT OF LABOR; and U.S.

)

DEPARTMENT OF TREASURY,

)

Defendants.

PLAINTIFFS’ BRIEF IN SUPPORT OF PLAINTIFF UNIVERSITY OF DALLAS’S MOTION FOR PRELIMINARY INJUNCTION AND PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 2 of 58 PageID 1084
TABLE OF CONTENTS Page
INTRODUCTION ......................................................................................................................... 1 BACKGROUND ........................................................................................................................... 4 I. STATUTORY AND REGULATORY BACKGROUND................................................. 4 II. BACKGROUND ............................................................................................................. 11 ARGUMENT ............................................................................................................................... 14 I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT AND
PLAINTIFF UNIVERSITY OF DALLAS IS LIKELY TO SUCCEED ON THE MERITS ........................................................................................................................... 15
A. The Mandate Violates RFRA................................................................... 16 B. The Mandate Violates the Free Exercise Clause ..................................... 33 C. The Mandate Violates the First Amendment Protection Against
Compelled Speech ................................................................................... 36 D. The Mandate Imposes a Gag Order that Violates The First
Amendment Protection of Free Speech ................................................... 38 E. The “Religious Employer” Exemption Violates the Establishment
Clause....................................................................................................... 39 F. The Mandate Unconstitutionally Interferes with Plaintiffs’ Rights
of Internal Church Governance................................................................ 42 G. The Mandate Is Contrary to Law and Thus Invalid Under the APA ....... 44 II. PLAINTIFF UNIVERSITY OF DALLAS IS SUFFERING ONGOING IRREPARABLE HARM ................................................................................................. 45 III. THE GOVERNMENT WILL SUFFER NO SUBSTANTIAL HARM FROM A PRELIMINARY INJUNCTION ..................................................................................... 46 IV. GRANTING A PRELIMINARY INJUNCTION WILL SERVE THE PUBLIC INTEREST....................................................................................................................... 47 CONCLUSION............................................................................................................................ 48
-i-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 3 of 58 PageID 1085

TABLE OF AUTHORITIES

CASES

Page

Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S.Ct. 2321 (2013) ..............................................................................................................36

Agostini v. Felton, 521 U.S. 203 (1997).................................................................................................................40

Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012) ...................................................................................................46

Am. Pulverizer Co. v. HHS, No. 12-cv-3459, 2012 WL 6951316 (W.D. Mo. Dec. 20, 2012).............................................16

Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013) ........................................16

Bick Holding, Inc. v. Sebelius, No. 4:13-cv-00462 (E.D. Mo. Apr. 1, 2013) .....................................................................16, 47

Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) .............................................................................................................31

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).................................................................................................................29

Church of the Visible Intelligence v. United States, 4 Cl. Ct. 55 (1983) ...................................................................................................................42

Cohen v. California, 403 U.S. 15 (1971)...................................................................................................................38

Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .........................................................................................39, 40

Cutter v. Wilkinson, 544 U.S. 709 (2005).................................................................................................................20

Dunn v. Blumstein, 405 U.S. 330 (1972).................................................................................................................32

Elrod v. Burns, 427 U.S. 347 (1976)...........................................................................................................45, 47

-ii-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 4 of 58 PageID 1086

TABLE OF AUTHORITIES (Cont’d.)

Page

Emp’t Div. v. Smith, 494 U.S. 872 (1990)...............................................................................................18, 19, 34, 36

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

Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) .............................................................................................................33

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

Found. of Human Understanding v. United States, 88 Fed. Cl. 203 (Fed. Cl. 2009) .........................................................................................41, 42

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999) (Alito, J.) ..............................................................................34, 35

Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 56087 (W.D. Pa. Apr. 19, 2013) .................16, 47

Gilardi v. HHS, No. 13-5069 (D.C. Cir. Mar. 29, 2013) ...................................................................................16

Gonzales v. O Centro Espírita Beneficente União Do Vegetal, 546 U.S. 418 (2006)......................................................................................................... passim

Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) ...................................................................................................16

Grutter v. Bollinger, 539 U.S. 306 (2003).................................................................................................................33

Hall v. Sebelius, No. 13-00295 (D. Minn. Apr. 2, 2013) ..............................................................................16, 47

Hartenbower v. HHS, No. 1:13-cv-2253 (N.D. Ill. Apr. 18, 2013) .............................................................................16

Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680 (1989).................................................................................................................27

Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2013 WL 3216103 (10th Cir. June 27, 2013) (en banc) ..............................16, 17

Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004) .................................................................................................32

-iii-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 5 of 58 PageID 1087

TABLE OF AUTHORITIES (Cont’d.)

Page

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S.Ct. 694 (2012) ..........................................................................................................42, 43

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557 (1995).................................................................................................................37

Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).................................................................................................18, 19

Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) .....................................................................................20, 22, 32

Kikumura v. Hurley, 242 F.3d 950 ............................................................................................................................47

Koger v. Bryan, 523 F.3d 789 (7th Cir. 2008) .............................................................................................17, 18

Korte v. Sebelius, No. 12-3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012)......................................................16

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

Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) ...............................................16

Lindsay v. HHS, No. 13-1210 (N.D. Ill. Mar. 20, 2013).....................................................................................16

Mitchell v. Helms, 530 U.S. 793 (2000).................................................................................................................40

Monaghan v. Sebelius, No. 12-15488, 2013 WL 1014026 (E.D. Mich. Mar. 14, 2013) ..............................................16

Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009) ...................................................................................................18

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

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

Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012) ....................................................6, 16

-iv-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 6 of 58 PageID 1088

TABLE OF AUTHORITIES (Cont’d.)

Page

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

O Centro Espirita Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004), aff’d 546 U.S. 418 (2006) ................................................45, 47

O’Brien v. HHS, No. 12‐3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012) ...................................16

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

Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380 (7th Cir. 1984) ...................................................................................................46

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

Sharpe Holdings, Inc. v. HHS, No. 2:12-CV-92, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) .......................................16, 47

Sherbert v. Verner, 374 U.S. 398 (1963).....................................................................................................17, 26, 32

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

Sioux Chief Mfg. Co. v. Sebelius, No. 13-0036 (W.D. Mo. Feb. 28, 2013) ............................................................................16, 47

Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011), aff’d 722 F.3d 184 (4th Cir. 2013) (en banc) ................38

Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981)...............................................................................................18, 19, 22, 23

Tonn & Blank Constr., LLC v. Sebelius, No. 1:12-cv-00325 (N.D. Ind. Apr. 1, 2013) ...........................................................................16

Triune Health Grp., Inc. v. HHS, No. 12-6756 (N.D. Ill. Jan. 3, 2013) ........................................................................................16

Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012) .............................................................................16, 29, 45

United States v. Ali, 682 F.3d 705 (8th Cir. 2012) ...................................................................................................18

-v-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 7 of 58 PageID 1089

TABLE OF AUTHORITIES (Cont’d.)

Page

United States v. Lee, 455 U.S. 252 (1982).................................................................................................................18

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

Univ. of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) .........................................................................................40, 41

Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ...................................................................................................33

Washington v. Klem, 497 F.3d 272 (3d Cir. 2007).....................................................................................................32

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

STATUTES

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

18 U.S.C. § 2..................................................................................................................................28

26 U.S.C. § 4980D(b) ................................................................................................................5, 23

26 U.S.C. §§ 4980D(b), 4980H(a), (c)(1)......................................................................................14

42 U.S.C. § 300gg-13(a)(4) .............................................................................................................5

42 U.S.C. § 2000bb........................................................................................................................17

42 U.S.C. § 2000bb-1(a) ................................................................................................................26

42 U.S.C. § 2000bb-1(a), (b) .....................................................................................................3, 16

42 U.S.C. § 2000bb-1(b)................................................................................................................16

42 U.S.C. § 2000bb-1(b)(2) ...........................................................................................................32

42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A)...................................................................................25

42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A)...................................................................................18

42 U.S.C. § 18011............................................................................................................................5

42 U.S.C. § 18118(c) .....................................................................................................................45

-vi-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 8 of 58 PageID 1090

TABLE OF AUTHORITIES (Cont’d.)

Page

Consol. Approp. Act of 2012, Pub. L. No. 112-74, 125 Stat. 786, 1111 (2011) ...........................44

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

OTHER AUTHORITIES

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

45 C.F.R. § 147.130(a)(1)(iv) ........................................................................................................14

26 CFR § 54.9815–2713A(b)(iii) ..................................................................................................38

75 Fed. Reg. 41,732 .......................................................................................................................31

76 Fed. Reg. 7,767, 7,769 (Feb. 11, 2011) ....................................................................................45

77 Fed. Reg. 16,501, 16,507 (Mar. 21, 2012)..................................................................................7

77 Fed. Reg. 8725, 8727-28, 8730 (Feb. 15, 2012) .........................................................................6

78 Fed. Reg. 8,458 .........................................................................................................................41

78 Fed. Reg. 8,461 .........................................................................................................................40

102d Cong., 174, 192 (1992) .........................................................................................................17

139 Cong. Rec. 9,685 (1993) .........................................................................................................17

Carl H. Esbeck, Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 WASH. & LEE L. REV. 347, 397 (1984) ......................................41

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

Health Plans Under the Affordable Care Act (June 14, 2010), available at http://www.hhs.gov/news/press/2010pres/06/20100614e.html. ..............................................29

S. 2969............................................................................................................................................17

-vii-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 9 of 58 PageID 1091
Plaintiffs submit this brief in support of Plaintiff University of Dallas’s motion for preliminary injunction and Plaintiffs’ motion for summary judgment on Counts I-VII of their Amended Complaint, alleging a violation of the Religious Freedom Restoration Act, the Religion and Free Speech Clauses of the First Amendment, and the Administrative Procedure Act.
INTRODUCTION Plaintiffs are part of the Roman Catholic Church. As such, they believe that life begins at the moment of conception, that sexual union should be reserved to committed marital relationships in which the husband and wife are open to the transmission of life, and, therefore, that artificial interference with life and conception are immoral. Accordingly, Plaintiffs believe that they may not provide, pay for, and/or facilitate access to abortion, sterilization, or artificial contraception. The Government, however, has promulgated regulations that coerce Plaintiffs into violating this sincerely-held religious belief by requiring them, through their employer health-care plans, to facilitate access to abortion-inducing products, artificial contraception, medical sterilization procedures, and related counseling (the “Mandate”). The Mandate contains a narrow exemption for entities that meet the Government’s definition of a “religious employer.” But despite repeated pleas from the religious community, the exemption remains strictly limited to “houses of worship and religious orders.” It thus excludes numerous Catholic organizations that fulfill the Church’s religious mission through service to the poor, sick, and others in need. More specifically, the Mandate divides religious institutions like the Catholic Church into two wings: a “religious” wing, which is limited to “houses of worship and religious orders,” and a “charitable” wing, which, in the Government’s view, provides secular services. According to the Government, only “houses of worship and religious orders” are a “religious employer.” But this artificial division ignores the reality that many religious groups, including the Catholic Church, engage in charity as an exercise of religion. As Pope Emeritus Benedict XVI stated,

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 10 of 58 PageID 1092
“[L]ove for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Church] as the ministry of the sacraments and preaching of the Gospel. The Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Yet by excluding Catholic charitable organizations from the category of exempt “religious employers,” the Mandate forces a substantial part of the Catholic Church to act contrary to its sincerely-held religious beliefs.
The Government claims that its recent revisions to the Mandate, which include an “accommodation,” address the concerns of religious organizations. They most emphatically do not. Indeed, the Government knew these revisions would not resolve Plaintiffs’ concerns, because even before the revisions were finalized, Catholic institution repeatedly informed the Government that the proposals were inadequate.1 This iteration of the Mandate narrowly defines “religious employers” so as to exclude Catholic charitable and educational organizations.
The Final Rule’s so-called “accommodation” for “non-religious employers,” moreover, is illusory because it addresses fundamental religious objections through accounting gimmicks and legal fictions. As a result, Plaintiffs remain the vehicle by which the objectionable products and services are delivered to their employees.
Indeed, the Final Rule is significantly worse than the proposed rule because it eliminates an important prior protection that allowed “religious employers” like the Diocese to shield their affiliated religious organizations from operation of the Mandate by including such organizations in the insurance plan of the “religious employer.” The Government’s revisions, therefore, increase the number of religious organizations subject to the Mandate.
1 See e.g., Comments of U.S. Conference of Catholic Bishops at 3 (Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-Comments-3-20-final.pdf.; Comments of Archdiocese of Washington at 2 (Apr. 4, 2013), available at http://www.becketfund.org/wpcontent/uploads/2013/04/Comments-4-4-13-Archdiocese-of-Washington.pdf.
-2-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 11 of 58 PageID 1093
This oppressive Mandate is irreconcilable with the Religious Freedom Restoration Act (“RFRA”), the First Amendment, and other federal law. First, under RFRA, the Government may not impose a substantial burden on Plaintiffs’ exercise of religion unless it is the least restrictive means to advance a compelling governmental interest. See 42 U.S.C. § 2000bb-1(a), (b). Here, however, the Government cannot possibly show that it has a compelling interest in forcing Plaintiffs to violate their sincerely-held religious beliefs, since the Government excludes tens of millions of individuals around the country from the operation of the Mandate through a series of exemptions. There is no compelling interest in forcing the Mandate on the remaining small band of employers that seek a similar exemption on the basis of religious hardship. In any event, the Mandate is not even arguably narrowly tailored to the Government’s asserted interests because the Government could easily advance its goals without commandeering Plaintiffs as the vehicle for delivering the objectionable products and services to their employees and students.
Second, the Mandate violates the First Amendment’s Free Speech and Religion Clauses. It infringes on Plaintiffs’ freedom of speech by requiring them to facilitate “counseling” for abortion, contraception, and sterilization—all of which Plaintiffs strongly oppose. It violates the Free Exercise Clause by deliberately targeting Plaintiffs’ religious practices, offering a multitude of exemptions for non-religious reasons, but denying any exemption that would relieve Plaintiffs’ religious hardship. It violates the Establishment Clause by creating a state-favored category of “religious employers,” preferring some religious groups to others based on intrusive judgments about their practices, beliefs, and organizational structures. And it violates the First Amendment’s protection of church autonomy, driving a wedge between the charitable and educational arms of the Church through its definition of “religious employer.”
-3-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 12 of 58 PageID 1094

Finally, the Mandate violates the APA, because it contravenes the clear terms of at least

two federal statutes. Under the Weldon Amendment, federal agencies may not impose penalties

on employers for refusing to include abortion coverage in their health-care plan. And yet the

Mandate does exactly that by penalizing Plaintiffs for failing to provide coverage for abortion-

inducing products. Similarly, the Affordable Care Act states that none of its provisions may be

implemented in a way that prohibits a college or university from offering a student health plan.

The Mandate does so by making objectionable coverage a mandatory component of all insurance

plans, thereby effectively prohibiting Catholic schools from offering insurance to their students.

In sum, there is no legal justification for the Government’s gratuitous intrusion on

Plaintiffs’ religious freedom. Based on the undisputed facts and the legal authorities cited

below, Plaintiffs are entitled to summary judgment on all their claims.

Moreover, Plaintiff University of Dallas urgently needs injunctive relief now, because its

plan year begins January 1, 2014, when it will first be subject to the Mandate (the remaining

Plaintiffs need clarity soon as well, but their first plan years subject to the Mandate will begin in

the summer, providing the Court more time to consider their summary judgment if needed).

Without the injunction, the University of Dallas will be forced to decide between violating its

religious beliefs and violating the law—the epitome of irreparable harm. By contrast, a

preliminary injunction will impose no substantial harm on the Government, which has refrained

from mandating contraceptive coverage for more than two centuries. Accordingly, Plaintiff

University of Dallas respectfully requests a preliminary injunction to preserve the status quo

while this Court adjudicates this vital question of religious liberty.

BACKGROUND

I.

STATUTORY AND REGULATORY BACKGROUND

The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119

-4-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 13 of 58 PageID 1095
(2010) (the “Affordable Care Act”) requires employer “group health plans” to include insurance coverage for women’s “preventive care and screenings.” 42 U.S.C. § 300gg-13(a)(4). Congress did not define “preventive care,” instead delegating that duty to a division of the Department of Health and Human Services (“HHS”). See id. § 300gg-13(a)(4). HHS, in turn, delegated the task to the Institute of Medicine (“IOM”), which recommended that “preventive care” for women be defined to include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity.” IOM, Clinical Preventive Services for Women: Closing the Gaps 164– 65 (2011). HHS subsequently adopted that definition. See HHS, Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines. Included in the category of mandatory FDA-approved contraceptives are products such as the morning-after pill (Plan B) and Ulipristal (HRP 2000 or ella), which can induce an abortion.
Consequently, under the definition of “preventive care,” the Mandate requires health plans to cover abortion-inducing products, contraception, sterilization, and related counseling. Failure to provide such coverage exposes employers to fines of $100 a day per affected beneficiary. 26 U.S.C. § 4980D(b). Dropping coverage altogether subjects certain employers to annual penalties of $2,000 per employee and/or other negative consequences. Id. § 4980H.
From its inception, the Mandate has exempted numerous health plans covering millions of people. For example, certain plans in existence at the time of the Act’s adoption are “grandfathered” and exempt from the Mandate. 42 U.S.C. § 18011; 26 C.F.R. § 54.98151251T(g)(1)(v). Moreover, the Act “specifically exempts all firms that have fewer than 50 employees—96 percent of all firms in the United States or 5.8 million out of 6 million total firms—from any employer responsibility requirements [one of the mechanisms to enforce the
-5-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 14 of 58 PageID 1096
Mandate]. These 5.8 million firms employ nearly 34 million workers.”2 See 26 U.S.C. § 4980H(a) (exempting small employers from penalties for failure to provide health coverage). By one estimate, the Government has exempted “over 190 million health plan participants and beneficiaries.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298 (D. Colo. 2012).
The Government, however, has steadfastly refused to allow a similar exemption for religious organizations, save for a small number of organizations that qualify under the Mandate’s unprecedentedly narrow definition of “religious employer.” Originally, the “religious employer” exemption was available only to organizations that met all of the following four criteria: “(1) The inculcation of religious values is the purpose of the organization”; “(2) The organization primarily employs persons who share the religious tenets of the organization”; “(3) The organization serves primarily persons who share the religious tenets of the organization”; and “(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. 46,621, 46,626 (Aug. 3, 2011). As the Government explained, this was intended “to provide for a religious accommodation that respects” only “the unique relationship between a house of worship and its employees in ministerial positions.” See id. at 46,623.
The narrowness of the exemption set off a firestorm of intense criticism from religious groups that were suddenly faced with the choice of violating their religious beliefs or else disobeying the Mandate and incurring serious penalties. But despite the public outcry, the Government refused to reconsider its position and finalized the narrow religious exemption “without change.” 77 Fed. Reg. 8,725, 8,727–28, 8,730 (Feb. 15, 2012). At the same time, the Government announced that it would offer “a one-year safe harbor from enforcement” for non-
2 WhiteHouse.gov, The Affordable Care Act Increases Choice and Saving Money for Small Business at 1, http://www.whitehouse.gov/files/documents/health_reform_for_small_ businesses.pdf (last visited Aug. 29, 2013).
-6-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 15 of 58 PageID 1097
exempt religious organizations until August 1, 2013. Id. at 8728. As noted by Cardinal Timothy Dolan, the “safe harbor” effectively gave religious groups “a year to figure out how to violate [their] consciences.”
Five weeks later, however, under continuing public pressure, the Government issued an Advance Notice of Proposed Rulemaking (“ANPRM”). The ANPRM did not revoke the Mandate, but rather set forth “possible approaches” the Government believed would be adequate to “accommodate” the persistent flow of religious objections. 77 Fed. Reg. 16,501, 16,507 (Mar. 21, 2012). After careful examination, Catholic and other religious groups explained that the “possible approaches” in the ANPRM would not relieve the burden on their religious freedom.3
Nevertheless, the Government issued a Notice of Proposed Rulemaking (“NPRM”), adopting the ANPRM’s proposals. 78 Fed. Reg. 8456 (Feb. 6, 2013). The NPRM once again encountered strenuous opposition, including over 400,000 comments largely reiterating the previous objections.4 Despite this opposition, the Government issued a final rule that adopts substantially all of the NPRM’s proposals without significant change and applies to plan years beginning on and after January 1, 2014. See 78 Fed. Reg. 39,870 (July 2, 2013) (“Final Rule”).
The Final Rule made three changes to the Mandate, none of which relieve the unlawful burdens imposed on Plaintiffs and other religious organizations. Indeed, one of them appears to significantly increase the number of religious organizations subject to the Mandate.
First, the Final Rule made what the Government concedes to be a non-substantive, cosmetic change to the “religious employer” exemption. In particular, it eliminated the first
3 See, e.g., Comments of U.S. Conference of Catholic Bishops at 3 (May 15, 2012) (“[The ANPRM] create[s] an appearance of moderation and compromise, [but fails to] offer any change in the Administration’s earlier stated positions on mandated contraceptive coverage”), available at www.usccb.org/about/general-counsel/ rulemaking/upload/comments-on-advance-notice-of-proposed-rulemaking-on-preventive-services-12-05-15.pdf.
4 See, e.g., Comments of U.S. Conference of Catholic Bishops, supra note 1, at 3 (pointing out that “the ‘accommodation’ still requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage”).
-7-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 16 of 58 PageID 1098
three prongs of the prior test to define a “religious employer” as simply “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. at 39,896 (codified at 45 C.F.R. § 147.131(a)). As the Government admitted, this new definition does “not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” 78 Fed. Reg. at 8,461. Instead, it continues to “restrict[] the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders.” Id. Religious organizations that have a broader mission are still not, in the Government’s view, “religious employers.”
Second, the Final Rule appears to increase the burden imposed on religious organizations by significantly expanding the number of religious organizations subject to the Mandate. The Government’s initial interpretation of the “religious employer” exemption allowed non-exempt organizations to benefit from the exemption of affiliated religious entities. The Government had stated that if a nonexempt religious organization “provided health coverage for its employees through” a plan offered by a separate, “affiliated” organization that was “exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.” 77 Fed. Reg. at 16,502. For example, the Diocese offers a health plan that covers not only itself, but also Plaintiff OLV. Under the Government’s initial interpretation of the religious employer exemption, if the Diocese was an exempt “religious employer” (as it clearly is under the Final Rule), then OLV would have received the benefit of that exemption.
The Final Rule, however, eliminates this safeguard, providing instead that “each employer [must] independently meet the definition of religious employer . . . to avail itself of the
-8-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 17 of 58 PageID 1099
exemption.” 78 Fed. Reg. at 39,886. Moreover, since OLV is part of the Diocese’s insurance plan, the Diocese is now required to either (1) sponsor a plan that will provide the employees of OLV with access to “free” contraception, abortion-inducing products, sterilization, and related counseling, or (2) no longer extend its plan to OLV, subjecting OLV to fines and other negative consequences if does not contract with another insurance provider that will provide the objectionable coverage. The first option forces the Diocese to act contrary to its sincerely-held religious beliefs. The second option compels the Diocese to submit to the government’s interference with its structure and internal operations by accepting a construct that divides churches from their ministries.
Third, the Final Rule establishes an illusory “accommodation” for certain nonexempt objecting religious entities deemed “eligible organizations.” To qualify as an “eligible organization,” a religious entity must (1) “oppose[] providing coverage for some or all of [the] contraceptive services,” (2) be “organized and operate[] as a nonprofit entity”; (3) “hold[] itself out as a religious organization,” and (4) self-certify that it meets the first three criteria. 26 C.F.R. § 54.9815-2713A(a). If an organization meets these criteria, it must provide the required “selfcertification” to its insurance issuer or (if the organization self-insures) to its third-party administrator. That very self-certification, however, has the effect of requiring the insurance issuer or third-party administrator to provide or arrange “payments for contraceptive services” for the objecting organization’s employees. See 78 Fed. Reg. at 39,892–93 (codified at 26 C.F.R. § 54.9815-2713A(a)-(c)). The health insurance issuer or third-party administrator must notify the eligible organization’s employees of the availability of these “payments” “contemporaneous with . . . but separate from” materials the eligible organization distributes in connection with its
-9-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 18 of 58 PageID 1100
health plan. 78 Fed. Reg. at 39,876. They must also provide the mandated payments “in a manner consistent” with provision of covered health benefits. Id. at 39,876–77.
Notably, third-party administrators are under no obligation “to enter into or remain in a contract with the eligible organization,” 78 Fed. Reg. at 39,880, so the burden falls on the objecting organization to find and identify a third-party administrator who is willing to provide the very coverage they find objectionable. Eligible organizations are flatly prohibited from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure contraceptive services. 26 C.F.R. § 54.9815–2713A.
This so-called “accommodation” fails to resolve Plaintiffs’ religious objections. Under the original version of the Mandate, a non-exempt religious organization’s decision to offer a group health plan resulted in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling. Under the Final Rule, a non-exempt religious organization’s decision to offer a group health plan still results in the provision of coverage—now in the form of “payments”—for abortion-inducing products, contraception, sterilization, and related counseling should they self-certify. 26 C.F.R. § 54.9816-2713A(b)-(c). In both scenarios, Plaintiffs’ actions trigger the provision of “free” contraceptive coverage to their employees in a manner contrary to their beliefs. The provision of the objectionable products and services are directly tied to Plaintiffs’ insurance policies, as the objectionable “payments” are available only “so long as [employees] are enrolled in [the organization’s] health plan.” See 29 C.F.R. § 2590.715-2713; 45 C.F.R. § 147.131(c)(2)(i)(B). For self-insured organizations, moreover, the self-certification constitutes the religious organization’s “designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (emphasis added).
-10-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 19 of 58 PageID 1101

Needless to say, this shell game does not address Plaintiffs’ fundamental religious

objection to improperly facilitating access to the objectionable products and services. This

should come as no surprise to the Government. As noted above, well before it finalized the

revised Mandate, the Government was repeatedly informed that its so-called “accommodation”

would not relieve the burden on Plaintiffs’ religious beliefs. See supra note 1. Nonetheless,

despite its representations to this and other courts that it was making a good-faith effort to

address the religious objections of Plaintiffs and likeminded organizations, see, e.g., Wheaton

Coll. v. Sebelius, 703 F.3d 551, 552 (D.C. Cir. 2012), the Government proceeded to finalize a

proposal that it knew would do no such thing. As before, the Government’s unlawful Mandate

coerces Plaintiffs, through threats of crippling fines and other pressure, into serving as the

conduit for delivering contraception, abortion-inducing products, sterilization, and related

counseling to their employees, contrary to their sincerely held religious beliefs.

II.

BACKGROUND

Plaintiffs are part of the Catholic Church and, as such, sincerely believe they have a

religious duty to provide educational, spiritual, and charitable services to individuals of all faiths.

Plaintiffs exercise this religious belief by offering a host of charitable and educational services to

individuals, including the most poor and vulnerable in society. (Am. Compl. ¶¶ 2- 3, 33–96.)

Just as sincerely, Plaintiffs believe that life begins at the moment of conception, and that

certain “preventive” services that interfere with the transmission of life are immoral.5 (Id. ¶¶ 4,

244-46.) Accordingly, Plaintiffs believe they may not provide, pay for, and/or facilitate access to

5 See Keefe Decl. ¶¶ 15 at Appx. 6; Berg Decl. ¶¶ 14 at Appx. 13; Merdian Decl. ¶¶ 12 at Appx. 20; Goosens Decl. ¶¶ 13 at Appx. 26.
-11-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 20 of 58 PageID 1102
contraception, sterilization, abortion, or related counseling in the manner required by the Mandate.6
Plaintiffs have exercised this religious belief by excluding coverage for such services from their health plans in a manner consistent with Catholic teaching.7 The Diocese offers its employees’ health plan through Christian Brothers Employee Benefit Trust, a self-funded church plan that serves Catholic employers and specifically states its intent to work “within the framework of the tenets of the Catholic Church.”8 To that end, the Diocese’s plan does not cover abortion or sterilization, nor does it cover contraceptives except when prescribed to treat a medical illness and approved by the Christian Brothers Employee Benefit Trust.9 OLV employees are offered health insurance through the Diocese’s health plan as well.10 The University offers a partially self-insured benefits plan through a healthcare consortium called CARES, which places the University’s premiums in a pool designated for reimbursement of University employees’ claims.11 Under this plan, the University pays for its employees’ claims, including all claims for covered preventative services, subject to an individual stop-loss limit.12 The plan year for the University’s employee health plan begins on January 1.13 The University also provides several health plans to its students, offering a health plan for domestic students through Aetna, a health plan for international students through Starr Indemnity & Liability Co.,
6 Keefe Decl. ¶¶ 15, 26-29 at Appx. 6, 8-9; Berg Decl. ¶¶ 14, 26-28 at Appx. 13,16-17; Merdian Decl. ¶¶ 12, 17-20 at Appx. 20-22; Goosens Decl. ¶¶ 13, 15-17 at Appx. 26-27.
7 Keefe Decl. ¶ 9 at Appx. 5; Berg Decl. ¶ 16 at Appx. 14; Goosens Decl. ¶ 10 at Appx. 26. 8 Berg Decl. ¶ 16 at Appx. 14. 9 Id. 10 Merdian Decl. ¶ 11 at Appx. 20. 11 Keefe Decl. ¶ 13 at Appx. 5. 12 Id. 13 Id. ¶ at Appx. 6.
-12-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 21 of 58 PageID 1103
and a health plan for domestic students studying abroad in the University’s Rome campus through STA Travel/ISIC Basic Travel Insurance Plan.14 All of these University plans for employees and students exclude coverage for abortion-inducing products or sterilization, and cover products commonly used as contraceptives only when prescribed to treat a medical condition, not to prevent pregnancy or induce abortion.15 Catholic Charities also offers a plan that excludes abortion, contraceptives, and sterilization, offering a health insurance plan through CIGNA.16
Although the Diocese is the only “religious employer” under the Mandate, the remaining Plaintiffs consider themselves “religious employers” in the plain sense meaning of that phrase because they too comprise the Roman Catholic Church. The University and OLV conduct vital educational ministries on behalf of the Church, while Catholic Charities is the social justice arm of the Church.17 Defendants’ distinction between the Diocese and the remaining Plaintiffs is thus artificial and at odds with the Church’s internal organization. For example, OLV is closely associated with the Diocese, belonging to the Diocese’s Schools Department and following diocesan curriculum guidelines and incorporating Diocesan policies and procedures.18 Indeed, the State of Texas recognizes OLV’s accreditation as a private Catholic school through the Texas Catholic Conference’s Education Department, which is part of a state-approved private school accrediting body acting under agreement with the Texas Commissioner of Education.19 Yet Defendants seek to separate OLV from the Diocese, finding OLV insufficiently religious (under
14 Id. ¶ 21 at Appx. 7. 15 Id. ¶ 16, 22 at Appx. 6,7 16 Goosens Decl. ¶ 10 at Appx. 26. 17 Keefe Decl. ¶¶ 5, 8, 35-37 at Appx. 4,10; Merdian Decl. ¶¶ 6,7 24-25 at Appx. 19, 22; Goosens Decl. ¶¶ 4-5, 22-24 at Appx. 25, 28-29. 18 Merdian Decl. ¶ 7 at Appx. 19. 19 Id.
-13-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 22 of 58 PageID 1104
the government’s flawed definition of that term) to merit the same exemption afforded to the Diocese.
All Plaintiffs are harmed by the Mandate, which severely burdens Plaintiffs’ exercise of religion.20 Plaintiffs believe that abortion, sterilization, and contraception are immoral and that they are prohibited from paying for, providing, or facilitating those products and services.21 Yet the Mandate requires employer health plans, and thus Plaintiffs as employers and providers of health insurance, to cover such services or facilitate coverage for such services. See 45 C.F.R. § 147.130(a)(1)(iv). And if Plaintiffs, because of their religious beliefs, refuse to adhere to the Mandate, they are subjected to substantial fines. See 26 U.S.C. §§ 4980D(b), 4980H(a), (c)(1).
ARGUMENT Summary judgment is proper where the pleadings and evidence show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When the summary judgment movant demonstrates the absence of a genuine dispute over any material fact, the burden shifts to the non-movant to show there is a genuine factual issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 n.3 (1986). To obtain a preliminary injunction, a plaintiff must establish: “(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.” Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011) (quotation marks omitted).
20 Keefe Decl. ¶¶ 17-37 at Appx. 6-10; Berg Decl. ¶¶ 20-31 at Appx. 15-17; Merdian Decl. ¶¶ 13-25 at Appx. 20-22; Goosens Decl. ¶¶ 15-24 at Appx. 27-29.
21 Keefe Decl. ¶¶ 26-27 at Appx. 8; Berg Decl. ¶¶ 14-15 at Appx. 13-14; Merdian Decl. ¶¶ 12 at Appx. 20; Goosens Decl. ¶¶ 13, 17 at Appx. 26-27.
-14-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 23 of 58 PageID 1105
Here, a preliminary injunction is warranted because Plaintiff University of Dallas meets all four factors for interim relief. I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT AND PLAINTIFF
UNIVERSITY OF DALLAS IS LIKELY TO SUCCEED ON THE MERITS The undisputed facts establish that Plaintiffs are entitled to a summary judgment in their favor on all their claims. The undisputed facts show that the Mandate: (1) violates RFRA by substantially burdens Plaintiffs’ exercise of religion without being the least restrictive means to achieve a compelling government interest (Am. Compl. Count I, ¶¶ 180-194); (2) violates the Free Exercise Clause of the First Amendment because it is not a neutral and generally applicable law (Am. Compl. Count II, ¶¶ 195-211); (3) violates the First Amendment prohibition on compelled speech because it compels Plaintiffs to support and/or facilitate “counseling” that contradicts their religious viewpoint (Am. Compl. Count III, ¶¶ 212-26); (4) violates the First Amendment protection of the freedom of speech by imposing a gag order that prohibits Plaintiffs from attempting to “influence” a third party administrator’s decision to provide or procure contraceptive services; (Am. Compl. Count IV, ¶¶ 227-231); (5) violates the Establishment Clause of the First Amendment because it establishes an official category of Governmentfavored “religious employers,” which excludes some religious groups based on intrusive judgments regarding their beliefs, practices, and organizational structure (Am. Compl. Count V, ¶¶ 232-39); (6) violates both Religion Clauses of the First Amendment because it interferes with Plaintiffs’ rights of internal church governance (Am. Compl. Count VI, ¶¶ 240-255); and (7) violates the APA by disregarding statutory prohibitions on compelled support for abortion (Am. Compl. Count VII, ¶¶ 256-269). These are also the same reasons that Plaintiff University of Dallas, as part of its required showing for its preliminary injunction, is substantially likely to succeed on the merits. In fact,
-15-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 24 of 58 PageID 1106
courts have issued preliminary injunctions against the Mandate in the majority of cases brought
by for-profit companies with religious owners.22 If anything, a preliminary injunction is even
more appropriate in this case involving non-profit entities.
A. The Mandate Violates RFRA
Under RFRA, the Federal Government is prohibited from “substantially burden[ing] a
person’s exercise of religion even if the burden results from a rule of general applicability,”
unless it “demonstrates that application of the burden to the person is (1) in furtherance of a
compelling governmental interest; and (2) the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb-1(a), (b); Gonzales v. O Centro Espírita
Beneficente União Do Vegetal, 546 U.S. 418, 423 (2006). Thus, once Plaintiffs demonstrate a
substantial burden, the Government bears the burden of proving that application of the Mandate
to Plaintiffs furthers “a compelling governmental interest” and is “the least restrictive means of
furthering that compelling governmental interest.” See 42 U.S.C. § 2000bb-1(b); O Centro, 546
U.S. at 423, 428. Here, the Government cannot make such a showing.
RFRA’s legislative history confirms that it was enacted to prevent the type of regulation
codified in the Mandate. Congress passed RFRA “to restore [and codify] the compelling interest
22 Courts in at least twenty cases have afforded preliminary relief to for-profit plaintiffs challenging the Mandate. See Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2013 WL 3216103 (10th Cir. June 27, 2013) (en banc); Gilardi v. HHS, No. 13-5069 (D.C. Cir. Mar. 29, 2013) (Dkt. No. 24); Annex Med., Inc. v. Sebelius, No. 131118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013); Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013); Korte v. Sebelius, No. 12-3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012); O’Brien v. HHS, No. 12‐3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012); Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 56087 (W.D. Pa. Apr. 19, 2013); Hartenbower v. HHS, No. 1:13-cv-2253 (N.D. Ill. Apr. 18, 2013) (Dkt. # 16); Hall v. Sebelius, No. 13-00295 (D. Minn. Apr. 2, 2013) (Dkt. # 12); Bick Holdings Inc. v. HHS, No. 4:13-cv-00462 (E.D. Mo. Apr. 1, 2013) (Dkt. # 21); Tonn & Blank Constr., LLC v. Sebelius, No. 1:12-cv-00325 (N.D. Ind. Apr. 1, 2013) (Dkt. # 43); Lindsay v. HHS, No. 13-1210 (N.D. Ill. Mar. 20, 2013); Monaghan v. Sebelius, No. 12-15488, 2013 WL 1014026 (E.D. Mich. Mar. 14, 2013); Sioux Chief Mfg. Co. v. Sebelius, No. 13-0036 (W.D. Mo. Feb. 28, 2013) (Dkt. #9); Triune Health Grp., Inc. v. HHS, No. 12-6756 (N.D. Ill. Jan. 3, 2013) (Dkt. 50); Sharpe Holdings, Inc. v. HHS, No. 2:12-CV-92, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012); Am. Pulverizer Co. v. HHS, No. 12-cv-3459, 2012 WL 6951316 (W.D. Mo. Dec. 20, 2012); Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012); Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012); Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012).
-16-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 25 of 58 PageID 1107
test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and . . . guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb; O Centro, 546 U.S. at 430-31. Nadine Strossen, then-President of the American Civil Liberties Union, testified in support of RFRA’s enactment to safeguard “such familiar practices as . . . permitting religiously sponsored hospitals to decline to provide abortion or contraception services.” The Religious Freedom Restoration Act: Hearing on S. 2969 Before the S. Comm. On the Judiciary, 102d Cong., 174, 192 (1992); see also 139 Cong. Rec. 9,685 (1993) (statement of Rep. S. Hoyer) (noting that, post-Smith, a “Catholic teaching hospital lost its accreditation for refusing to provide abortion services” and that RFRA would “correct th[is] injustice[]”); id. at 4,660 (statement of Rep. Green) (noting that RFRA prevents the Government from “enact[ing] laws that force a person to participate in actions that violate their religious beliefs”).
Here, the Mandate cannot possibly survive scrutiny under RFRA because: (1) it imposes a “substantial burden” on Plaintiffs’ free exercise of religion; (2) the Government has no compelling interest in imposing this burden; and (3) it is not the least restrictive means to achieve the Government’s interest.
1. The Mandate Substantially Burdens Plaintiffs’ Exercise of Religion.
Under RFRA, courts must first assess whether the challenged law imposes a “substantial[] burden” on the plaintiff’s “exercise of religion.” Id. This initial inquiry requires courts to (1) identify the particular exercise of religion at issue, and (2) assess whether the law substantially burdens that religious practice. See, e.g., Koger v. Bryan, 523 F.3d 789, 796 (7th Cir. 2008) (applying this two-part test under RLUIPA, RFRA’s sister statute); see also Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294, 2013 WL 3216103, at *20 (10th Cir. June 27, 2013) (en banc)
-17-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 26 of 58 PageID 1108
(stating that the court must (1) “identify the religious belief in this case,” (2) “determine whether this belief is sincere,” and (3) “turn to the question of whether the government places substantial pressure on the religious believer”). Here, the Mandate imposes a substantial burden on Plaintiffs’ religious exercise by forcing them to do what their religion forbids: facilitate access to abortion-inducing products, contraception, sterilization, and related counseling.
(i) “Exercise of Religion” RFRA defines “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc5(7)(A). Because the exercise of religion has been interpreted to include a diverse array of conduct, ranging from refusing to give children a formal education, see Yoder, 406 U.S. at 21019, to eating only certain foods, see Nelson v. Miller, 570 F.3d 868, 878-89 (7th Cir. 2009), RFRA protects “not only belief and profession but the performance of (or abstention from) physical acts.” Emp’t Div. v. Smith, 494 U.S. 872, 877 (1990). The protected category of religious exercise includes any act or practice that is “rooted in the religious beliefs of the party asserting the claim or defense.” United States v. Ali, 682 F.3d 705, 710 (8th Cir. 2012) (internal quotation marks and alteration omitted). Whether an act or practice is rooted in religious belief, and thus entitled to protection, does not “turn upon a judicial perception of the particular belief or practice in question.” Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 714 (1981). Instead, courts must accept plaintiffs’ description of their beliefs and practices, regardless of whether the court, or Government, finds them “acceptable, logical, consistent, or comprehensible.” Id. at 714-15 (refusing to question plaintiff’s moral line); see also United States v. Lee, 455 U.S. 252, 257 (1982); Koger, 523 F.3d at 797 (plaintiff’s “dietary request [was] squarely within the definition of religious exercise”); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (rejecting efforts to
-18-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 27 of 58 PageID 1109
dispute plaintiff’s representation that a medical test would violate his religion). “Courts are not arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716. Thus,
“[r]epeatedly and in many different contexts,” the Supreme Court has “warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Smith, 494 U.S. at 887. It is not “within the judicial function and judicial competence” to determine whether a belief or practice is in accord with a particular faith. Thomas, 450 U.S. at 716. Instead, in keeping with the deference owed to private claims of religious belief, the judicial role is limited to “determining ‘whether the beliefs professed by [the plaintiff] are sincerely held and whether they are, in his own scheme of things, religious.’” Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984) (quoting United States v. Seeger, 380 U.S. 163, 185 (1965)). By necessity, this is a modest inquiry that is restrained by the need to avoid excessive entanglement in religion. See Jolly, 76 F.3d at 476. The purpose of the sincerity inquiry is simply to screen out manipulative claims based on sham beliefs that can be readily identified as such, for example, a high-school student who suddenly proclaims a religious objection to Math. Courts need not accept claims that are “so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection.” Thomas, 450 U.S. at 715.
“While it is a delicate task to evaluate religious sincerity without questioning religious verity, . . . free exercise doctrine is based upon the premise that courts are capable of distinguishing between these two questions.” Jolly, 76 F.3d at 476. By screening claims for religious sincerity, and by allowing the Government to impose burdens that are truly necessary to serve a compelling interest, courts can apply RFRA to grant bona fide religious exemptions without “allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” Yoder, 406 U.S. at 216. Based on this approach, the
-19-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 28 of 58 PageID 1110
Supreme Court has repeatedly reaffirmed “the feasibility of case-by-case consideration of religious exemptions to generally applicable rules,” which can be “‘applied in an appropriately balanced way’ to specific claims for exemptions as they ar[i]se.” O Centro, 546 U.S. at 436 (quoting Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)).
Here, there can be no doubt that Plaintiffs’ refusal to comply with the Mandate is a protected exercise of religion under RFRA. It is undisputed that Plaintiffs have a sincerely-held religious belief that they may not provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, or related counseling, including by contracting with an insurance company or third party administrator that will, as a result, provide or procure the objectionable products and services for Plaintiffs’ employees.23 While courts are bound to accept Plaintiffs’ description of their beliefs without resort to any independent religious authority, here the sincerity of Plaintiffs’ beliefs is buttressed by repeated confirmations from the U.S. Conference of Catholic Bishops.24 These authoritative statements of Catholic belief make it unmistakably clear that Plaintiffs’ objection to the Mandate is “not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living.” Yoder, 406 U.S. at 216.
Nor do Plaintiffs seek to impose their religious beliefs on anyone else, or “to require the government itself to conduct its affairs in conformance with [their] religion.” Kaemmerling v. Lappin, 553 F.3d 669, 680 (D.C. Cir. 2008). On the contrary, Plaintiffs recognize that notwithstanding their religious objections, they have no legal right to prevent individuals from procuring the objectionable products and services from the Government or anywhere else.
23 See Keefe Decl. ¶¶ 15, 26-29 at Appx. 6, 8-9; Berg Decl. ¶¶ 14-15, 26-28 at Appx. 13-14,16-17; Merdian Decl. ¶¶ 12, 17-20 at Appx. 20-22; Goosens Decl. ¶¶ 13, 15-17 at Appx. 26-27.
24 See, e.g., Comments of U.S. Conference of Catholic Bishops, supra note 1, at 3.
-20-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 29 of 58 PageID 1111
Plaintiffs simply invoke RFRA to enforce the law that the Government may not force them, in their own conduct, to take actions that violate their religious conscience. And despite the Final Rule’s oft-repeated declaration that Plaintiffs will not be required to “contract, arrange, pay, or refer for [contraceptive] coverage,” see, e.g., 78 Fed. Reg. at 39,872, there can be no doubt the Mandate requires Plaintiffs to act to facilitate provision of these services.25
Among other things, Plaintiffs must locate and identify a third party willing to provide the very services they deem objectionable, and they must then enter into a contract with that party that will result in the provision or procurement of those services “for free.”26 Should they choose to certify their objection to the mandated coverage, that action inexorably leads to provision of the very coverage to which they object, and in the case of self-insured entities, legally “designat[es]” the third party administrator as the agent responsible for providing contraceptive benefits on Plaintiffs’ behalf. 78 Fed. Reg. at 39,879. In other words, the Government has effectively made “no” mean “yes,” transforming the very act of objecting to the mandated coverage into the authorization to provide such coverage.
This, of course, is to say nothing of the fact that Plaintiffs’ employees would receive access to the mandated payments only by virtue of their participation in the health plan Plaintiffs choose to offer, 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(c)(2)(i)(B) (indicating that payments are available only “so long as” Plaintiffs’ employees remain on Plaintiffs’ insurance plan”), and that Plaintiffs’ insurance issuer or third party administrator would only know who was entitled to receive contraceptive “payments” because Plaintiffs gave them a list of their benefits-eligible employees, cf. 78 Fed. Reg. at 39,876 (indicating that notice of the availability
25 See Keefe Decl. ¶¶ 26 at Appx. 8; Berg Decl. ¶¶ 19-28 at Appx. 14-17; Merdian Decl. ¶¶ 17 at Appx. 21; Goosens Decl. ¶¶ 15 at Appx. 27.
26 Id.
-21-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 30 of 58 PageID 1112
of “payments” must be made “contemporaneous with . . . but separate from” any application or
other materials Plaintiffs distribute in connection with their health plans).27 Accordingly, to
claim after all this that Plaintiffs are not forced to “contract” or “arrange” for contraceptive
coverage is the proverbial “argument only a lawyer could love.”
In any case, what matters for purposes of RFRA is that Plaintiffs sincerely believe that
such actions violate their religious beliefs. By forcing Plaintiffs to take such actions, the
Mandate is a straightforward effort to “force [Plaintiffs] to engage in conduct that their religion
forbids.” Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001). 28
(ii) “Substantial Burden”
Once Plaintiffs’ refusal to facilitate contraception is identified as a protected religious
exercise, the “substantial burden” analysis is straightforward. As the Supreme Court has made
clear, a federal law “substantially burdens” an exercise of religion if it compels one “to perform
acts undeniably at odds with fundamental tenets of [one’s] religious beliefs,” Yoder, 406 U.S. at
218, or “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.”
Thomas, 450 U.S. at 717-18; Kaemmerling, 553 F.3d at 678 (same). In Yoder, for example, the
27 Id. 28 Because Plaintiffs object to taking actions required by the Mandate that facilitate access the objectionable products and services, it is irrelevant whether the Mandate also forces them to directly subsidize these products and services. See, e.g., 26 C.F.R. § 54.9816-2713A(c)(2)(ii);78 Fed. Reg. at 8463. But in any event, Plaintiffs will almost certainly be required to subsidize the objectionable products and services, thereby exacerbating the violation of their religious beliefs. The Government asserts that the “accommodation” will be “cost neutral” because the cost to the insurance company of providing “free” products and services will be offset by, among other things, “fewer childbirths” that result from the use of contraception, sterilization, abortion-inducing products, and related counseling, 78 Fed. Reg. at 8463. But even if true, the fact remains that the premiums previously going toward childbirths will now be used to provide the objectionable products and services necessary to obtain that reduction in childbirths. See Affidavit of Prof. Scott E. Harrington at 5–6, Ex. 1 to Comments of the Diocese of Pittsburgh (Apr. 8, 2013 (“The premiums paid by eligible religious organizations to issuers . . . remain the source of funding for separately provided individual coverage to employees.”), available at http://www.becketfund.org/wpcontent/uploads/2013/04/Diocese-of-Pittsburgh-4-8-13.pdf. In any event, the Government’s cost-neutrality assumption is implausible, since it depends on the dubious assumption that the cost of contraception will be offset by “lower costs from improvements in women’s health and fewer childbirths,” 78 Fed. Reg. at 8463, which in turn depends on the assumption that the Mandate will induce large numbers of women who do not currently use contraception to begin doing so. The Government, however, has adduced no evidence in support of those implausible assumptions. See id. at 4 (demonstrating why the assumptions are likely incorrect).
-22-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 31 of 58 PageID 1113
Court found a substantial burden imposed by a $5 penalty charged to the Amish plaintiffs for refusing to follow a compulsory secondary-education law. In Thomas, the Court similarly held that the denial of unemployment compensation substantially burdened the pacifist convictions of a Jehovah’s Witness who refused to work at a factory manufacturing tank turrets. 450 U.S. at 716-18. Thus, it is clear that even the threat of withholding unemployment benefits, or a $5 penalty, exerts enough pressure on a religious believer to qualify as a “substantial burden.”
Here, the Mandate imposes enough pressure on Plaintiffs to constitute a “substantial burden.” If Plaintiffs refuse to facilitate the objectionable products and services through their health plans, they will be subject to fatal fines of $100 a day per affected beneficiary. See 26 U.S.C. § 4980D(b). And if Plaintiffs seek to exit the insurance market altogether, they could be subject to annual fines of $2,000 per full-time employee after the first thirty employees, see id. § 4980H(a), (c)(1), and/or significant competitive disadvantages in the ability to retain and recruit employees, cf. Geneva Coll. v. Sebelius, No. 2:12-CV-00207, 2013 WL 3071481, at *9–10 (W.D. Pa. June 18, 2013) (forcing plaintiff to drop a student health plan is a substantial burden). For the University of Dallas’s student health plans, the University must facilitate access to the mandated products and services or forego providing student health insurance altogether, inhibiting its ability to recruit and retain students. See 45 C.F.R. § 147.131(f). These penalties, which would amount to millions of dollars and inflict significant competitive harms, clearly impose the type of pressure that qualifies as a substantial burden under RFRA—far outweighing, for example, the $5 penalty that was a substantial burden in Yoder. There is no doubt that the threat of such penalties places substantial pressure on Plaintiffs to facilitate access to abortioninducing products, contraception, sterilization, and related counseling, which their religion
-23-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 32 of 58 PageID 1114
forbids.29 In the face of such coercion, numerous courts, including the D.C. Circuit, have awarded
preliminary relief to for-profit companies challenging the Mandate. See, e.g., Gilardi v. U.S. Dep’t of Health & Human Servs., No. 13-5069 (D.C. Cir. Mar. 29, 2013) (Dkt. No. 24) (granting an injunction pending appeal). The Seventh Circuit, for example, granted injunctions pending appeal in two cases challenging the Mandate because those plaintiffs had demonstrated a likelihood of success on their RFRA claim. In Korte v. Sebelius, the court ruled that plaintiffs “would have to violate their religious beliefs to operate their company in compliance with [the Mandate].” 2012 WL 6757353, at *3. In light of the penalties for non-compliance, the court held that plaintiffs “established a reasonable likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise.” Id. at *4. In a companion case, the court found the Mandate posed an even greater threat to the Catholic employers’ religious liberties because there the plaintiffs operated a self-insured health plan. See Grote, 708 F.3d at 854.30 The Tenth Circuit, sitting en banc, likewise recently held that a forprofit religious organization was likely to succeed on the merits of a RFRA claim. The court emphasized the Mandate imposed a substantial burden on religious exercise by “demand[ing],” on pain of onerous penalties, “that [plaintiffs] enable access to contraceptives that [they] deem morally problematic.” Hobby Lobby, 723 F.3d at 1141. The same is true here.
It is no answer to claim that some of the Plaintiffs, unlike the Hobby Lobby litigants and other for-profit corporations, may be eligible for the Government’s so-called “accommodation.”
29 Keefe Decl. ¶¶ 31-34 at Appx. 9-10; Berg ¶¶ 25-31 at Appx. 16-17; Merdian Decl. ¶¶ 20-22 at Appx. 22; Goosens Decl. ¶¶ 18-20 at Appx. 28.
30 See also Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 WL 1276025 (8th Cir. Feb. 1, 2013) (injunction pending appeal); O’Brien v. U.S. Dep’t of Health & Human Servs., No. 12‐3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012) (same).
-24-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 33 of 58 PageID 1115
For purposes of the RFRA analysis, what matters is whether the Government is coercing entities to take actions that violate their sincere religious beliefs. Id. at 1137 (“Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.”). As described above, there can be no question that, notwithstanding the “accommodation,” Plaintiffs are coerced into taking actions that violate their sincerely held religious beliefs. See supra Part I.A.1(i). These sincere religious beliefs are entitled to no less protection from Government coercion than the similar religious beliefs at issue in Hobby Lobby, Gilardi, Korte, and Grote.
Defendants might argue, as they have argued in other cases involving Catholic nonexempt entities, that the accommodation requires “virtually nothing” of Catholic non-exempt entities, and thus Plaintiffs’ involvement in providing contraceptives under the Mandate is “de minimis” and too attenuated to merit relief. Defendants argue that it is no great imposition on Plaintiffs to require them to fill out forms certifying their objections and requiring Plaintiffs to select and cooperate with insurers and third-party administrators who will in turn provide the objectionable insurance coverage. In Defendants’ view, coercing the Plaintiffs to take these actions is not a substantial burden because the compelled actions can be quickly and easily performed, and are administrative in nature. But this argument rests on a flawed understanding of substantial burden.
RFRA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A) (emphasis added). RFRA contains no requirement that the actions required of plaintiffs be “significant” or “substantial.” The word “substantial” appears in RFRA, but not in connection with the type of actions required of plaintiffs, but rather the type of pressure—i.e., the burden—imposed by the
-25-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 34 of 58 PageID 1116
government. The statute states that the “Government shall not substantially burden a person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a). The word “substantial[]” modifies “burden”; it requires the court to assess how strongly the government is pressuring an individual to violate his sincerely held religious beliefs, not the nature of plaintiffs’ religious exercise. See Hobby Lobby, 723 F.3d at 1137 (deeming “an understanding of ‘substantial burden’ that presumes ‘substantial’ requires an inquiry into the theological merit of the belief in question rather than the intensity of the coercion applied by the government to act contrary to those beliefs” to be “fundamentally flawed”).
Thus, when called upon to decide whether government action imposes a substantial burden on religious exercise, the Supreme Court has consistently evaluated the magnitude of the coercive mechanism employed by the government, rather than the “significance” of plaintiffs’ actions. For example, in Sherbert v. Verner, 374 U.S. 398 (1963), the Court did not consider whether any inconvenience to the plaintiff—a Seventh-Day Adventist whose religion forbade work on Saturday—stemming from showing up for work on Saturday would be “de minimis.” Instead, the Court accepted her representation that she could not work on Saturday and assessed whether the resulting denial of unemployment benefits effectively coerced her to abandon that religious exercise. See Sherbert, 374 U.S. at 404. In doing so, the Court ultimately concluded that the “pressure upon her to forgo [her] practice” was tantamount to “a fine imposed against [her] for her Saturday worship.” Id.
Likewise, in Thomas, the Court did not ask whether the plaintiff’s transfer from a factory making sheet steel to a factory producing turrets for military tanks required him to change his behavior. Rather, the Court held that the State’s refusal to award Thomas unemployment
-26-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 35 of 58 PageID 1117
benefits when his pacifist convictions prevented him from accepting the transfer “put[] substantial pressure” on him “to violate his beliefs.” Thomas, 450 U.S. at 718.
Despite this guidance from the Supreme Court and RFRA itself, defendants misinterpret the statute to require a “substantial” exercise of religion rather than a “substantial” burden on plaintiffs’ exercise of religion. It is, however, “not within the judicial ken to question the centrality of particular . . . practices to a faith.” Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 699 (1989). Indeed, to assign such a role to the judiciary would be to ignore the Supreme Court’s repeated warning that “courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Emp’t Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872,887 (1990). Whether an action constitutes a protected exercise of religion does “not . . . turn upon a judicial perception of the particular belief or practice in question.” Thomas, 450 U.S. at 714. Rather, it is left to plaintiffs to “dr[a]w a line” regarding the actions their religion deems permissible, and once that line is drawn, “it is not for [courts] to say [it] is unreasonable.” Id. at 715.
The impropriety of courts determining whether actions are “significant” or “meaningful” enough to constitute an exercise of religion is self-evident. On the government’s theory, a court could conclude that a Quaker could be compelled to swear to, rather than affirm, the veracity of his testimony on the theory that a change in verbiage is a “de mimimis” act. An Orthodox Jew could be forced to flip a light switch on the Sabbath because such action requires virtually nothing of him. And a Native American father could be forced to take the “purely administrative” step of submitting his daughter’s social security number to the government in order for her to receive benefits. Indeed, defendants could simply require Plaintiffs to sign a single piece of paper renouncing their views on contraception upon pain of punishment—as, in
-27-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 36 of 58 PageID 1118
effect, they seek to do—as doing so would require little effort by plaintiffs. No “principle of law or logic” equips a court to decide the “significance” or “meaning[]” of these acts, Smith, 494 U.S. at 887; what may be “no big deal” to a court may be a very big deal to a believer.
At bottom, the government mischaracterizes plaintiffs’ religious objection. Plaintiffs object not only to using contraceptives, but also to taking actions which facilitate their use in a morally significant way. This concept of responsibility for, and complicity in, an act committed by another is not unique to the Catholic faith. Indeed, it is the basis for the federal statute criminalizing acts that “aid” or “abet” the commission of a crime. 18 U.S.C. § 2 (2013). As Judge Gorsuch explained in Hobby Lobby,
All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. 723 F.3d at 1152 (Gorsuch, J., concurring). Plaintiffs “are among those who seek guidance from their faith on these questions,” id., and their faith has led them to the conclusion that the actions required of them by the Mandate cross the “line” between permissible and impermissible facilitation of wrongful conduct, Thomas, 450 U.S. at 715. That line is indisputably theirs to draw, and it is not for the Court or the government to question. Id. By placing substantial pressure on plaintiffs to cross this line, the government has substantially burdened plaintiffs’ exercise of religion.
2. The Government Cannot Demonstrate that the Mandate Furthers a Compelling Government Interest.
Under RFRA, the Government must “demonstrate that the compelling interest test is satisfied through application of the challenged law [to] the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430–31 “[B]roadly
-28-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 37 of 58 PageID 1119
formulated” or “sweeping” interests are inadequate. Id. at 431; Yoder, 406 U.S. at 221. Rather, the Government must show with “particularity how [even] admittedly strong interest[s]” “would be adversely affected by granting an exemption.” Yoder, 406 U.S. at 236; see also O Centro, 546 U.S. at 431. The Government, therefore, must show a specific compelling interest in forcing “the particular claimant[s] whose sincere exercise of religion is being substantially burdened” into serving as the instruments by which its purported goals are advanced. Id. at 430-31; Tyndale, 904 F .Supp. 2d at 125-26. The Government cannot begin to meet this standard.
At the most basic level, “a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993); see also O Centro, 546 U.S. at 433; Newland, 881 F. Supp. 2d at 1297–98. Here, the Government cannot claim an interest of the “highest order” where it exempts “tens of millions of people” from the Mandate through various exemptions. Hobby Lobby, 723 F.3d at 1143. For example, the Government cannot plausibly maintain that Plaintiffs’ employees must be covered by the Mandate when it exempts millions of women receiving insurance through grandfathered plans simply to fulfill the President’s promise that “if you like your plan, you can keep it.”31 An interest is hardly compelling if it can be trumped by political expediency. Such broad exemptions “completely undermine[] any compelling interest in applying the preventive care coverage mandate.” Newland, 881 F. Supp. 2d at 1298; Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 WL 838238, at *25 (W.D. Pa. Mar. 6, 2013); Tyndale, 904 F. Supp. 2d at 123.
The Mandate’s narrow “religious employer” exemption further undermines the
31 Press Release, U.S. Dep’t of Health & Human Servs., U.S. Departments of Health and Human Services, Labor, and Treasury Issue Regulation on “Grandfathered” Health Plans Under the Affordable Care Act (June 14, 2010), available at http://www.hhs.gov/news/press/2010pres/ 06/20100614e.html.
-29-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 38 of 58 PageID 1120
Government’s claim that its interests are “compelling.” In O Centro, a religious group sought an exemption from the Controlled Substances Act to use hoasca—a hallucinogen—for religious purposes. When granting the exemption, the Supreme Court refused to credit the Government’s alleged interest in public health and safety when the Act at issue already contained an exemption for the religious use of another hallucinogen—peyote. “Everything the Government says about the DMT in hoasca,” the Court explained, “applies in equal measure to the mescaline in peyote.” O Centro, 546 U.S. at 433. Because Congress permitted peyote use in the face of concerns regarding health and public safety, “it [wa]s difficult to see how” those same concerns could “preclude any consideration of a similar exception for” the religious use of hoasca. Id. Likewise, “everything the Government says” about its interests in requiring Plaintiffs to facilitate access to the mandated products and services “applies in equal measure” to entities that meet the Mandate’s definition of “religious employer,” as well as the numerous other entities that are exempt from the Mandate for non-religious reasons.
Likewise, the Government’s recent announcement of a one-year delay in the enforcement of 26 U.S.C. § 4980H32—which imposes annual fines of $2,000 per employee on certain large employers for failure to provide group health insurance—confirms that the interests at stake are not compelling. The Congressional Budget Office (“CBO”) estimates that because of this delay, “roughly 1 million fewer people are expected to be enrolled in employment-based coverage in 2014.” The CBO further reports that “roughly half [of those individuals] will be uninsured,” while “the others will obtain coverage through the exchanges” or other government programs.33
32 Mark J. Mazur, Continuing to Implement the ACA in a Careful, Thoughtful Manner, Treasury Notes (July 2, 2013), http://go.usa.gov/jKeH.
33 Letter from Douglas W. Elmendorf, Director, Congressional Budget Office, to Representative Paul Ryan, Chairman, Committee on the Budget at 4 (July 30, 2013), available at http://www.washingtonpost.com/blogs/ wonkblog/files/2013/07/EmployerPenalties-RyanLtr.pdf
-30-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 39 of 58 PageID 1121
The fact that the Government was willing to delay enforcement of these penalties, even though it knew such action would result in hundreds of thousands of additional women losing access to the mandated coverage in 2014, demonstrates yet again that it is not pursuing interests “of the highest order.”34
The Government’s interest also cannot be compelling where the Government has failed to “identify an actual problem in need of solving,” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011) (internal quotation marks and citation omitted). By the Government’s own admission, at best, the Mandate would “[f]ill[]” only a “modest gap” in contraceptive coverage. Id. at 2741. Indeed, the Government acknowledges that contraceptives are widely available at free and reduced cost and are also covered by “over 85 percent of employer-sponsored health insurance plans.” 75 Fed. Reg. 41,726, 41,732 (July 19, 2010); Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012), available at http://www.hhs. gov/news/ press/2012pres/01/20120120a.html. Any interest in closing that “modest gap” cannot be compelling, as the Government “does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Brown, 131 S. Ct. at 2741 n.9.
Finally, even if there were “an actual problem,” the Government cannot show that applying the Mandate to Plaintiffs is “actually necessary to the solution.” Id. at 2738. The Government claims that increased access to contraception will increase contraceptive use, but the Government cannot rely on its “predictive judgment” and “ambiguous proof will not suffice.” Id. at 2738–39. In fact, recent scholarship indicates that a modest increase in coverage for contraception is unlikely to have any significant impact on effective contraceptive use, “because the group of women with the highest unintended pregnancy rates (the poor) are not addressed or
34 This delay also means that hundreds of thousands of additional women will receive health coverage through the exchanges, rather than from their employers, showing that the Mandate can be achieved through means other than coercing the employer. See infra Part I.A.3.
-31-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 40 of 58 PageID 1122
affected by the Mandate [because they are unemployed], and are already amply supplied with free or low-cost contraception,” and “because women have a true variety of reasons for not using contraception that the law cannot mitigate or satisfy simply by attempting to increase access to contraception by making it ‘free.’” Helen M. Alvare, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 VILL. L. REV. 379, 380 (2013). In such circumstances, the Government cannot claim to have identified a compelling interest, much less that its proposed solution will further that compelling interest in any meaningful way.
3. The Government Cannot Demonstrate that the Mandate Is the Least Restrictive Means to Achieve Its Asserted Interests.
Under RFRA, the Government must also show that the regulation “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b)(2). Under that test, “[i]f there are other, reasonable ways to achieve those [interests] with a lesser burden on constitutionally protected activity, [the Government] may not choose the way of greater interference. If it acts at all, it must choose less drastic means.” Dunn v. Blumstein, 405 U.S. 330, 343 (1972) (internal quotations marks omitted). “A statute or regulation is the least restrictive means if ‘no alternative forms of regulation would [accomplish the compelling interest] without infringing [religious exercise] rights.’” Kaemmerling, 553 F.3d at 684 (quoting Sherbert, 374 U.S. at 407). “Nor can the government slide through the test merely because another alternative would not be quite as good.” Hodgkins v. Peterson, 355 F.3d 1048, 1060 (7th Cir. 2004).
The “least restrictive means” test “necessarily implies a comparison with other means.” Washington v. Klem, 497 F.3d 272, 284 (3d Cir. 2007). “Because this burden is placed on the Government, it must be the party to make this comparison.” Id. The Government must demonstrate that “it has actually considered and rejected the efficacy of less restrictive measures
-32-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 41 of 58 PageID 1123
before adopting the challenged practice.” Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005); see also Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013) (explaining that strict scrutiny requires a “serious, good faith consideration of workable . . . alternatives” that will achieve the government’s stated goal) (quoting Grutter v. Bollinger, 539 U.S. 306, 339 (2003)).
Here, the Government has myriad ways to achieve its asserted interests without forcing Plaintiffs to violate their religious beliefs. Plaintiffs in no way recommend these alternatives and oppose many of them as a matter of policy, but the fact that they are available to the Government shows that the Mandate cannot survive RFRA’s narrow-tailoring requirement. For example, the Government could: (i) directly provide contraceptive services to the few individuals who do not receive it under their health plans; (ii) offer grants to entities that already provide contraceptive services at free or subsidized rates and/or work with these entities to expand delivery of the services; (iii) directly offer insurance coverage for contraceptive services; (iv) grant tax credits or deductions to women who purchase contraceptive services; or (v) allow Plaintiffs to comply with the Mandate by providing coverage for methods of family planning consistent with Catholic beliefs (i.e., Natural Family Planning training and materials). Indeed, the Government is already providing “free contraception to women,” including through the Title X Family Planning Program. Newland, 881 F. Supp. 2d at 1299. The Government’s failure to consider these alternatives is fatal, as strict scrutiny requires a “serious, good faith consideration” of workable alternatives. Grutter v. Bollinger, 539 U.S. 306, 339 (2003).
B. The Mandate Violates the Free Exercise Clause The Free Exercise Clause of the First Amendment embodies a “fundamental nonpersecution principle” that prevents the Government from “enact[ing] laws that suppress religious belief or practice.” Lukumi, 508 U.S. at 523. “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs
-33-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 42 of 58 PageID 1124
or regulates or prohibits conduct because it is undertaken for religious reasons.” Id. at 532. While the Free Exercise Clause does not require heightened scrutiny of laws that are “neutral [and] generally applicable,” Smith, 494 U.S. at 881, it does require strict scrutiny of laws that disfavor religion. See Lukumi, 508 U.S. at 532. Thus, “[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Id. at 546.
In Lukumi, for example, the Supreme Court invalidated a municipal ordinance that imposed penalties on “[w]hoever . . . unnecessarily . . . kills any animal.” Id. at 537. Although the ordinance was not facially discriminatory, the Court found that its practical effect was to disfavor religious practioners of Santeria because it allowed exemptions for secular but not for religious reasons. Once the city began allowing exemptions, the Court held that the law was no longer “generally applicable,” and the city could not “refuse to extend [such exemptions] to cases of ‘religious hardship’ without compelling reason.” Id. at 537-38. Likewise, in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365-67 (3d Cir. 1999) (Alito, J.), the Third Circuit invalidated a police department policy that prohibited a Sikh police officer from wearing a beard because it contained an exemption for officers who were unable to shave for medical reasons but not for religious reasons. Relying on Lukumi, the court found that the “decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny.” Id. at 365.
The same reasoning applies here. The Mandate is not “generally applicable” because it is riddled with exemptions, and yet there is no such exemption for religious employers like Plaintiffs. It makes no difference that the Mandate contains an exemption for a narrow subset of religious groups—namely, those that meet the Government’s limited definition of a “religious
-34-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 43 of 58 PageID 1125
employer.” Because it offers so many secular exemptions, the Government must give equal consideration to all claimants who seek similar exemptions on religious grounds. The Free Exercise Clause does not merely require equal treatment for some religious entities. Thus, the Mandate fails the test of general applicability, and the Government may not “refuse to extend [exemptions] to cases of ‘religious hardship’ without compelling reason.” Id. at 537-38.
In addition, the Mandate is not “neutral” because it targets Plaintiffs’ religious practice of refusing to provide or facilitate access to contraception. When the Government promulgated the Mandate, it was acutely aware that any gap in coverage for contraception was due primarily to the religious beliefs and practices of employers such as the Catholic Church. Indeed, the Government itself concedes that 85% of health plans already cover contraception, and it asserts that adding contraception to the remaining 15% is cost-neutral. If so, then the only conceivable reason why the latter plans would not include contraceptive coverage is a religious or moral objection. But instead of pursuing a wide variety of options for increasing access to contraception without forcing religious groups like Plaintiffs to participate in the effort, the Government deliberately chose to pick a high-profile fight by forcing religious groups to provide or facilitate access to contraception in violation of their core beliefs.
The record, moreover, establishes that the Mandate was part of a conscious political strategy to marginalize and delegitimize Plaintiffs’ religious views on contraception by holding them up for ridicule on the national stage. For example, at a NARAL Pro-Choice America fundraiser, Defendant Sebelius stated, “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely affordable contraceptive services? Not so much.” (Am. Compl. ¶ 162). Thus, the Government went out of its way to impose an unnecessary burden on Plaintiffs’ religious practices. Not only the “real operation,” but also the
-35-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 44 of 58 PageID 1126
intended effect, of the Mandate has always been to target and suppress Plaintiffs’ religious practices. Lukumi, 508 U.S. at 533-35.
Finally, the Mandate is subject to strict scrutiny because it implicates the “hybrid” rights of religious believers. In Employment Division v. Smith, 494 U.S. 872, 881-82 (1990), the Supreme Court noted that the Free Exercise Clause can “reinforce[]” other constitutional protections, such as freedom of speech and association, which are particularly important when religious beliefs and practices are at stake. The present case illustrates why. In order to carry out their religious mission, Plaintiffs must enjoy the freedom to associate in religious schools and charities without being forced to violate their core beliefs. The Mandate denies them this freedom by effectively prohibiting them from forming schools and charities unless they (a) provide or facilitate access to contraception, and (b) sponsor Government speech in the form of contraceptive “counseling.” Thus, not only does the Mandate violate Plaintiffs’ rights of free speech and association, but the effect of these violations is to deny Plaintiffs their ability to engage in religious schooling, health care, and charity, which are essential components of their religion.
C. The Mandate Violates the First Amendment Protection Against Compelled Speech
It is “a basic First Amendment principle that ‘freedom of speech prohibits the government from telling people what they must say.’” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S.Ct. 2321 (2013) (quoting Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47, 61 (2006)). Thus, “[a]ny attempt by the government either to compel individuals to express certain views, or to subsidize speech to which they object, is subject to strict scrutiny.” R.J. Reynolds Tobacco Co., et al., v. FDA, 696 F.3d 1205, 1211 (D.C. Cir. 2012) (citing United States v. United Foods, Inc., 533 U.S. 405, 410-11 (2001)). Protection
-36-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 45 of 58 PageID 1127
against compelled speech “applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 573 (1995).
The Mandate violates the First Amendment prohibition on compelled speech in two ways. First, it requires Plaintiffs to provide, pay for, and/or facilitate access to “counseling” related to abortion-inducing products, contraception, and sterilization for their employees. Because Plaintiffs oppose abortion and contraception, they strongly object to providing any support for “counseling” that encourages, promotes, or facilitates such practices. Indeed, opposition to abortion and contraception is an important part of the religious message that Plaintiffs preach, and they routinely counsel men and women against engaging in such practices. Consequently, forcing Plaintiffs to support “counseling” in favor of such practices, or even to give details about the availability of such practices, imposes a serious burden on their freedom of speech.
Second, to qualify for the so-called “accommodation,” the Mandate requires Plaintiffs to provide a “certification” stating their objection to the provision of abortion-inducing products, contraception, sterilization, and related counseling. This “certification” in turn triggers an obligation on the part of Plaintiffs’ third party administrator (or their insurance provider, if they do not self-insure) to provide or procure the objectionable products and services for Plaintiffs’ employees. Plaintiffs object to this certification requirement both because it compels them to engage in speech that triggers provision of the objectionable products and services, and because it deprives them of the freedom to speak on the issue of abortion and contraception on their own terms, at a time and place of their own choosing, outside of the confines of the Government’s regulatory scheme. See, e.g., Evergreen Ass’n v. City of New York, 801 F. Supp. 2d 197
-37-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 46 of 58 PageID 1128
(S.D.N.Y. 2011) (striking down law requiring crisis pregnancy centers to issue disclaimers that they did not provide abortion-related services); Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456, 459, 472 n.6 (D. Md. 2011), aff’d 722 F.3d 184 (4th Cir. 2013) (en banc) (enjoining enforcement of law requiring crisis pregnancy centers to post notice “encourag[ing] women who are or may be pregnant to consult with a licensed health care provider”).
D. The Mandate Imposes a Gag Order that Violates The First Amendment Protection of Free Speech
At the very core of the First Amendment is the right of private groups to speak out on matters of moral, religious, and political concern. Time and again, the Supreme Court has reaffirmed that the constitutional freedom of speech reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964). Indeed, the imposition of “content-based burdens on speech raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace.” Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991). To prevent such censorship, the First Amendment “is designed and intended” to prevent the government from restraining public discussions. Cohen v. California, 403 U.S. 15, 24 (1971).
The Mandate violates this basic principle by prohibiting religious organizations from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure contraceptive services. 26 CFR § 54.9815–2713A(b)(iii). This sweeping gag order cannot withstand First Amendment scrutiny. Plaintiffs believe that contraception is immoral, and by expressing that conviction they routinely seek to “influence” or persuade their fellow citizens of that view. The Government has no authority to outlaw such expression.
-38-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 47 of 58 PageID 1129
E. The “Religious Employer” Exemption Violates the Establishment Clause
The “religious employer” exemption violates the Establishment Clause of the First Amendment in two ways. First, it creates an artificial, Government-favored category of “religious employers,” which favors some types of religious groups over others. Second, it creates an excessive entanglement between government and religion.
1. Discrimination Among Religious Groups The principle of equal treatment among religious groups lies at the core of the Establishment Clause. Just as the Government cannot discriminate among sects or denominations, so too it cannot “discriminate between ‘types of institution’ on the basis of the nature of the religious practice these institutions are moved to engage in.” Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008). Because religious liberty encompasses not only the freedom of religious belief, but also the freedom to adopt different practices and institutional structures, official favoritism for certain “types” of religious institutions is just as insidious as favoritism based on creed. For example, in Larson v. Valente, 456 U.S. 228 (1982), the Supreme Court struck down a Minnesota law imposing special registration requirements on any religious organization that did not “receive[] more than half of [its] total contributions from members or affiliated organizations.” Id. at 231-32. The state defended the law on the ground that it was facially neutral and merely had a disparate impact on some religious groups. The Court, however, rejected that argument, finding that the law discriminated among denominations by privileging “well-established churches that have achieved strong but not total financial support from their members,” while disadvantaging “churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial
-39-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 48 of 58 PageID 1130
support from members.” Id. at 247 n.23 (internal quotation marks omitted). The D.C. Circuit has followed similar reasoning, stating that “an exemption solely for ‘pervasively sectarian’ schools would itself raise First Amendment concerns—discriminating between kinds of religious schools.” Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1342 (D.C. Cir. 2002) (emphasis added).
Here, the Mandate violates this principle of neutrality by establishing an official category of “religious employer” that favors some religious groups over others. The exemption is defined to include only “nonprofit organization[s] as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code [of 1986, as amended].” As the Government has explained, those provisions of the tax code include only “churches, synagogues, mosques, and other houses of worship, and religious orders.” 78 Fed. Reg. 8,461. This definition favors religious groups that fit into the traditional categories of “houses of worship” or “religious orders,” while disadvantaging groups that exercise their religious faith through alternative means—including religious organizations, like Plaintiffs University of Dallas, Catholic Charities, and Our Lady of Victory, which express their faith by providing education and other various services to the community.
2. Excessive Entanglement “It is well established . . . that courts should refrain from trolling through a person’s or institution’s religious beliefs.” Mitchell v. Helms, 530 U.S. 793, 828 (2000). “It is not only the conclusions that may be reached . . . which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.” NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 502 (1979). “Most often, this principle has been expressed in terms of a prohibition of ‘excessive entanglement’ between religion and government.” Colorado Christian, 534 F.3d at 1261 (citing Agostini v. Felton, 521 U.S. 203 (1997)). “Properly understood, the doctrine protects religious institutions from governmental
-40-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 49 of 58 PageID 1131
monitoring or second-guessing of their religious beliefs and practices, whether as a condition to receiving benefits . . . or as a basis for regulation or exclusion from benefits (as here).” Id. (citing Carl H. Esbeck, Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 WASH. & LEE L. REV. 347, 397 (1984)).
In determining eligibility for a religious exemption, the Government may not ask intrusive questions designed to determine whether a group is “sufficiently religious,” Univ. of Great Falls v. NLRB, 278 F.3d at 1343, or even whether the group has a “substantial religious character.” Id. at 1344. Rather, any inquiry into a group’s eligibility for a religious exemption must be limited to determining whether the group is a “bona fide religious institution[].” Id. at 1343-44 (approving of a religious exemption that would include any non-profit group that “holds itself out” as religious, but reserving the question of whether groups could be required to show that they are “affiliated with . . . a recognized religious organization”).
Here, the Government’s criteria for the “religious employer” exemption go far beyond determining bona fide religious status. By its terms, the exemption applies to groups that are “described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” This category includes (i) “churches, their integrated auxiliaries, and conventions or associations of churches,” and (iii) “the exclusively religious activities of any religious order.” 78 Fed. Reg. at 8,458. The IRS, however, has adopted an intrusive 14-factor test to determine whether a group meets these criteria. See Found. of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009). The fourteen (14) criteria ask whether a religious group has
(1) a distinct legal existence; (2) a recognized creed and form of worship; (3) a definite and distinct ecclesiastical government; (4) a formal code of doctrine and discipline; (5) a distinct religious history; (6) a membership not associated with any church or denomination; (7) an organization of ordained ministers; (8) ordained ministers selected after completing prescribed studies; (9)
-41-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 50 of 58 PageID 1132
a literature of its own; (10) established places of worship; (11) regular congregations; (12) regular religious services; (13) Sunday schools for the religious instruction of the young; and (14) schools for the preparation of its ministers. Id. (citing Church of the Visible Intelligence v. United States, 4 Cl. Ct. 55, 64 (1983)). Not only do these factors favor some religious groups over others, but they discriminate on the basis of intrusive judgments regarding religious beliefs, practices, and organizational structure. For example, probing into whether a group has “a recognized creed and form of worship” not only requires the Government to determine which belief systems will be deemed “recognized creed[s],” but also demands inquiry into which practices qualify as “forms of worship.” In answering such questions, the Government cannot escape being “cast in the role of arbiter of [an] essentially religious dispute.” New York v. Cathedral Acad., 434 U.S. 125, 132-33 (1977). Similarly, in determining whether a religious group has had “a distinct religious history,” the exemption not only favors long-established religious groups, but also requires the Government to probe into potentially disputed matters of religious history. Any dispute as to whether a group’s history is sufficiently “distinct” or “religious,” should not be resolved by the Government. Indeed, “church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment.” Id. at 133. F. The Mandate Unconstitutionally Interferes with Plaintiffs’ Rights of Internal Church Governance The Supreme Court has recognized that the Religion Clauses of the First Amendment prohibit the Government from interfering with matters of internal church governance. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S.Ct. 694 (2012), the Court held that the Government may not apply anti-discrimination laws to interfere with religious groups in the hiring and firing of ministers because the First Amendment prohibits
-42-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 51 of 58 PageID 1133
“government interference with an internal church decision that affects the faith and mission of the church itself.” Id. at 707. Indeed, because “the autonomy of religious groups . . . has often served as a shield against oppressive civil laws,” the Court has “long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.” Id. at 712 (Alito, J., concurring).
Here, the Mandate violates this principle by artificially splitting the Catholic Church in two and preventing the Church from exercising supervisory authority over its constituents in a way that ensures compliance with Church teachings.35 In particular, the religious employer definition treats the Catholic Church as having two wings—a religious one and a charitable one—and treats only the former as a religious employer, when, in fact, the Church’s religious and charitable arms are one and the same.36 Thus, by refusing to recognize the Church’s charitable functions as those of a single, integrated “religious employer,” the Mandate directly interferes with Catholic Church structure.
The Mandate, moreover, compounds this error by interfering with the Church hierarchy’s ability to ensure that subordinate institutions, including various charitable and educational ministries, adhere to Church teaching through participation in a single insurance plan. Such an arrangement is currently in place in Fort Worth, where the Diocese makes its health plan available to the employees of Our Lady of Victory.37 By serving as the insurance provider for Our Lady of Victory, the Diocese can directly ensure that Our Lady of Victory offers its employees a health plan that is in all ways consistent with Catholic beliefs.38 The Mandate
35 Keefe Decl. ¶ 35-37 at Appx. 10; Berg Decl. ¶ 22-24 at Appx. 15; Merdian Decl. ¶ 24-25 at Appx. 22; Goosens Decl. ¶¶ 21-24 at Appx. 28-29.
36 Id. 37 Berg Decl. ¶¶ 19, 24-25 at Appx. 14-16; Merdian Decl. ¶¶ 11, 25 at Appx. 20, 22. 38 Berg Decl. ¶¶ 24 at Appx. 15.
-43-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 52 of 58 PageID 1134

disrupts this internal arrangement by forcing the Diocese to either sponsor a plan that will provide the employees of Our Lady of Victory with access to “free” abortion-inducing products, contraception, sterilization, and related counseling; or expel Our Lady of Victory from the Diocese’s plan, thereby forcing Our Lady of Victory to enter into a different contract for the objectionable coverage.39 Either way, the Mandate directly undermines the Diocese’s ability to ensure that its religious affiliates remain faithful to Church teaching.
G. The Mandate Is Contrary to Law and Thus Invalid Under the APA The Administrative Procedure Act requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The Mandate is “not in accordance with law” in at least two respects. First, the Weldon Amendment states that “[n]one of the funds made available in this Act [to the Departments of Labor and of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consol. Approp. Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). “Health care entity” is defined to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Id. § 507(d)(2). Although the government would like to narrowly read the Weldon Amendment as applying only to hospitals and physicians, the definition of “health care entity” clearly includes “a health insurance plan or

39 Berg Decl. ¶¶ 25 at Appx. 16.

-44-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 53 of 58 PageID 1135
any other kind of . . . plan.” Here, the Mandate violates the Weldon Amendment by discriminating against Plaintiffs based on their refusal to include coverage for abortion-inducing products in their “health insurance plan[s].”
Second, the Act states that “[n]othing in this title (or an amendment made by this title) shall be construed to prohibit an institution of higher education . . . from offering a student health insurance plan . . . .” 42 U.S.C. § 18118(c). This prohibits any law that has the effect of preventing an institution of higher education from offering a student health plan. See Student Health Insurance Coverage, 76 Fed. Reg. 7,767, 7,769 (Feb. 11, 2011). The requirement that student health plans include or facilitate coverage for abortion-inducing products, sterilization, contraception, and related counseling has the effect of prohibiting the University of Dallas from offering a student health-insurance plan in the future because any such plan would have to include coverage to which the University objects based on its sincerely-held religious beliefs.40 II. PLAINTIFF UNIVERSITY OF DALLAS IS SUFFERING ONGOING
IRREPARABLE HARM Plaintiff University of Dallas is entitled to injunctive relief because the Mandate will be enforced against it starting January 1, 2014 and will cause it substantial irreparable harm. “It is well settled that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106, 129 (D.D.C. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)) appeal dismissed, No. 13-5018, 2013 WL 2395168 (D.C. Cir. May 3, 2013). “By extension, the same is true of rights afforded under the RFRA, which covers the same types of rights as those protected under the Free Exercise Clause of the First Amendment.” Id. (citing O Centro Espirita Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 995 (10th Cir. 2004), aff’d 546 U.S.
40 Keefe Decl. ¶¶ 15, 21-24, 26-29, 32, 34 at Appx. 6-10.
-45-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 54 of 58 PageID 1136
418 (2006)) (“[The plaintiff] would certainly suffer an irreparable harm, assuming of course that it is likely to succeed on the merits of its RFRA claim.”)).
The forced violation of Plaintiffs’ faith is the epitome of irreparable injury. See Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 589-90 (7th Cir. 2012) (quoting Flower Cab Co. v. Petitte, 685 F.2d 192, 195 (7th Cir. 1982)), for the proposition that the loss of First Amendment Freedoms constitutes irreparable harm because “quantification of injury is difficult and damages are therefore not an adequate remedy”). The Mandate forces all the Plaintiffs to violate central tenets of their religious beliefs.41 Absent an injunction, the Government can begin enforcing the Mandate against the University of Dallas before the final resolution of this case, while there is a serious question as to whether the Mandate violates the Constitution and other applicable law. Thus, every moment that passes without relief inflicts ongoing irreparable harm to the University of Dallas’s religious freedoms, confronting it with the impossible choice of violating its religious beliefs or violating the law. Because this is not the type of harm that can later be remedied by monetary damages, the injury is irreparable. See Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984) (“[irreparable] harm . . . cannot be prevented or fully rectified by the final judgment after trial”). III. THE GOVERNMENT WILL SUFFER NO SUBSTANTIAL HARM FROM A
PRELIMINARY INJUNCTION The Government cannot possibly establish any substantial harm from a preliminary injunction in the University of Dallas’s favor pending final resolution of this case because the Government has not mandated contraceptive coverage for over two centuries, and there is no urgent need to enforce the Mandate against Catholic groups before its legality can be
41 Keefe Decl. ¶¶ 26-27 at Appx. 8; Berg Decl. ¶¶ 14-15 at Appx. 13-14; Merdian Decl. ¶¶ 12 at Appx. 20; Goosens Decl. ¶¶ 13, 17 at Appx. 26-28.
-46-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 55 of 58 PageID 1137
adjudicated. In addition, given that the Mandate already contains exemptions that by some estimates are available to “over 190 million health plan participants and beneficiaries,” Newland, 881 F. Supp. 2d at 1298, the Government cannot possibly claim that it will be harmed by this Court granting a temporary exemption for Plaintiffs.
Indeed, any claim of harm is fatally undermined by the Government’s acquiescence to preliminary injunctive relief in several other cases challenging the Mandate. See, e.g., Sharpe Holdings, Inc. v. HHS, No. 2:12-cv-00092 (E.D. Mo. Mar. 11, 2013) (Dkt. 41); Sioux Chief Mfg. Co. v. Sebelius, No. 4:13-cv-0036 (W.D. Mo. Feb. 28, 2013) (Dkt. 9); Hall v. Sebelius, No. 130295 (D. Minn. Apr. 2, 2013) (Dkt. 10); Bick Holding, Inc. v. Sebelius, No. 4:13-cv-00462 (E.D. Mo. Apr. 1, 2013) (Dkt. 18). The Government “cannot claim irreparable harm in this case while acquiescing to preliminary injunctive relief in several similar cases.” Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 56087, at *41 (W.D. Pa. Apr. 19, 2013).
In short, when balanced against the irreparable injury to Plaintiffs if the Mandate is enforced, any harm the Government might claim from a temporary injunction is de minimus. IV. GRANTING A PRELIMINARY INJUNCTION WILL SERVE THE PUBLIC
INTEREST Preliminary relief also serves the public interest. For one thing, “injunctions protecting First Amendment freedoms are always in the public interest.” Christian Legal Soc’y, 453 F.3d at 859 (citing Elrod, 427 U.S. at 373). This same reasoning should also apply to the rights protected by RFRA, which is meant to give religious exercise even greater protection than that provided under the First Amendment. Cf., e.g., Kikumura v. Hurley, 242 F.3d 950. 963 (10th Cir. 2001). In particular, there is a “strong public interest in a citizen’s free exercise of religion, a public interest clearly recognized by Congress when it enacted RFRA . . . .” O Centro, 389 F.3d 973, 1010 (10th Cir. 2004), aff’d 546 U.S. 418 (2006).
-47-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 56 of 58 PageID 1138
By contrast, no public harm would come from simply preserving the status quo pending further litigation. Even if the public interest were served by widespread free access to abortioninducing products, contraception, and sterilization—a highly dubious assumption—these products and services are widely available, and the Government has adduced no evidence that the Mandate will make them more widely available in the relatively short period of time that will be required to adjudicate this case on the merits.
CONCLUSION For the above reasons, Plaintiff University of Dallas respectfully requests that the Court adjudicate this motion on an expedited basis and the University’s request for a preliminary injunction exempting it from application of, and enforcement of, compliance with the Mandate. All Plaintiffs also ask the Court to enter summary judgment in their favor on Counts IVII of their Amended Complaint, and enter a declaratory judgment that the Mandate violates Plaintiffs’ rights under RFRA and the First Amendment, enter a declaratory judgment that the Mandate was promulgated in violation of the APA; enter an injunction prohibiting the Defendants from enforcing the Mandate against Plaintiffs; and enter an order vacating the Mandate.
-48-

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 57 of 58 PageID 1139
Respectfully submitted, this 9th day of October, 2013.
By: /s/ Basheer Y. Ghorayeb Terence M. Murphy Texas State Bar No. 14707000 tmurphy@jonesday.com Tamara Marinkovic Texas State Bar No. 00791175 tmarinkovic@jonesday.com Basheer Y. Ghorayeb Texas State Bar No. 24027392 bghorayeb@jonesday.com JONES DAY 2727 North Harwood Street Dallas, Texas 75201 (214) 220-3939 (214) 969-5100 facsimile
John W. Crumley Texas State Bar No. 05184500 crumley1@airmail.net JOHN W. CRUMLEY, P.C. 501 University Centre 1 1300 South University Drive Fort Worth, Texas 76107-5737 (817) 334-0291 (817) 334-0775 facsimile
Counsel for Plaintiffs

Case 4:12-cv-00314-Y Document 72 Filed 10/09/13 Page 58 of 58 PageID 1140

CERTIFICATE OF SERVICE I certify that on October 9, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which sent notice of such filing to all parties.

DLI-6457857

/s/ Basheer Y. Ghorayeb Basheer Y. Ghorayeb

 
 Case 4:12-cv-00314-Y Document 75 Filed 11/05/13 Page 1 of 3 PageID 1172

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

ROMAN CATHOLIC DIOCESE OF FORT

)

WORTH, et al.,

)

)

Plaintiff,

)

)

v.

)

)

KATHLEEN SEBELIUS, et al.,

)

)

Defendants.

)

)

_________________________________________ )

Case No. 4:12-cv-314-Y

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Pursuant to Federal Rules of Civil Pro cedure 12(b)(1) and 12(b)(6), defendants hereby

move to dismiss this action. In the alternative, defendants move for summary judgment on all of

plaintiffs’ claims pursuant to Rule 56. The gr ounds for these m otions are set f orth in the

accompanying memorandum.

Respectfully submitted this 5th day of November, 2013,

STUART
United JENNIFER
SHEILA Deputy
BRADLEY Trial United Civil

F. DELERY Assistant Attorney General
SARAH R. SALDANA States Attorney
RICKETTS Director
M. LIEBER Director
/s/ Bradley P. Humphreys P. HUMPHREYS (VA Bar No. 83212)
Attorney States Department of Justice
Division, Federal Programs Branch 20 Massachusetts Avenue N.W., Room 7219 Washington, DC 20530

Case 4:12-cv-00314-Y Document 75 Filed 11/05/13 Page 2 of 3 PageID 1173 Telephone: (202) 514-3367 Facsimile: (202) 616-8470 Email: Bradley.P.Humphreys@usdoj.gov Attorneys for Defendants
2

Case 4:12-cv-00314-Y Document 75 Filed 11/05/13 Page 3 of 3 PageID 1174
CERTIFICATE OF SERVICE I hereby certify that on November 5, 2013, I caused a true and correct copy of the foregoing to be served on plaintiffs’ counsel by means of the Court’s ECF system.
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS

 
 Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 1 of 63 PageID 1175

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

ROMAN CATHOLIC DIOCESE OF FORT WORTH, et al.,

) ) )

Plaintiffs,

) )

v.

) ) Case No. 4:12-cv-314-Y

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States

)

Department of Health and Human Services, et al.,

) ) )

)

)

Defendants.

)

)

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

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 2 of 63 PageID 1176
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION ...........................................................................................................................1 BACKGROUND .............................................................................................................................5 STANDARD OF REVIEW .............................................................................................................9 ARGUMENT .................................................................................................................................10 I. SOME OF THE PLAINTIFFS LACK STANDING .........................................................10 II. PLAINTIFFS’ CLAIMS LACK MERIT...........................................................................12
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit ...............12 1. The regulations do not substantially burden plaintiffs’ exercise of religion...................................................................................................12 a. The regulations impose no more than a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs ....................13 b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA ...................................20 2. Even if there was a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests .......................................23 a. The regulations significantly advance compelling governmental interests in public health and gender equality.........23 b. The regulations are the least restrictive means of advancing the government’s compelling interests .........................29
B. The Regulations Do Not Violate the Free Exercise Clause ...................................32 C. The Regulations Do Not Violate the Free Speech Clause .....................................36 D. The Regulations Do Not Violate the Establishment Clause ..................................39
i

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 3 of 63 PageID 1177 E. The Regulations Do Not Interfere With Church Governance ...............................44 F. Plaintiffs’ APA Claim Fails ...................................................................................44
III. THE UNIVERSITY OF DALLAS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC ...........................................................................................................47
CONCLUSION ..............................................................................................................................49
ii

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 4 of 63 PageID 1178
TABLE OF AUTHORITIES
Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) .........................................................................................19
Adams v. Comm'r of Internal Revenue, 170 F.3d 173 (3d Cir. 1999)...............................................................................................31
Agostini v. Felton, 521 U.S. 203 (1997)...........................................................................................................43
Am. Family Ass'n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) .........................................................................................33
Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) .............................................................................................34
Annex Medical, Inc. v. Sebelius, No. 12-cv-2804, 2013 WL. 101927 (D. Minn. Jan. 8, 2013) ............................................21
Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................................................................................9
Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL. 6845677 (W.D. Mich. Dec. 24, 2012) ...................... passim
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .........................................................................................34
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994)...........................................................................................................39
Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011) ...........................................................................................46
Bowen v. Kendrick, 487 U.S. 589 (1988)...........................................................................................................43
Bowen v. Roy, 476 U.S. 693 (1986)...........................................................................................................15
Braunfeld v. Brown, 366 U.S. 599 (1961).....................................................................................................12, 28
iii

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 5 of 63 PageID 1179
Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013)...............................................................................37
Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ...........................................................................................23
Capital Fed. Sav. & Loan Ass'n v. Comm'r of Internal Revenue, 96 T.C. 204 (1991).............................................................................................................42
Centro Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011) ...................................................................................38
Children's Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ...........................................................................................40
Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328 (N.D. Ga. 2012) ..............................................................................18
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).........................................................................................26, 32, 33, 35
Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752 (7th Cir. 2003) ...........................................................................14, 17, 22, 36
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) .......................................................................................................12
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .........................................................................................41
Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008)...............................................................................................12
Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013) ......................................................................... passim
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .............................................................................................47
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) .....................................................................................47
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987)...........................................................................................................41
iv

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 6 of 63 PageID 1180
Cutter v. Wilkinson, 544 U.S. 709 (2005)...........................................................................................................40
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995) ..................................................................................23
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) ...........................................................................................25
Droz v. Comm'r of IRS, 48 F.3d 1120 (9th Cir. 1995) .............................................................................................40
Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL. 1190001 (E.D. Mich. Mar. 22, 2013) ............................21, 33
Elrod v. Burns, 427 U.S. 347 (1976)...........................................................................................................47
Emp't Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872 (1990)...........................................................................................................32
Evergreen Ass'n v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011)................................................................................38
Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) .............................................................................................31
Found. of Human Understanding v. Comm'r of IRS, 88 T.C. 1341 (1987)...........................................................................................................42
GEICO v. Benton, 859 F.2d 1147 (3d Cir. 1988).............................................................................................45
Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402 (W.D. Penn. 2013)............................................................................33
Gillette v. United States, 401 U.S. 437 (1971)...........................................................................................................40
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006).....................................................................................................26, 28
Gooden v. Crain, 353 F. App'x 885 (5th Cir. 2009).......................................................................................31
v

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 7 of 63 PageID 1181
Graham v. Comm'r, 822 F.2d 844 (9th Cir. 1987) .......................................................................................26, 31
Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012) ........................................................................ passim
Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) .............................................................................................21
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) .......................................................................................12, 36
Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) .........................................................................................................13
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) ..............................................................19, 22, 33
Home Builders Ass'n of Greater Chicago v. U.S. Army Corps of Eng'rs, 335 F.3d 607 (7th Cir. 2003) .............................................................................................42
Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 132 S. Ct. 694 (2012) .........................................................................................................44
Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42 (2d Cir. 1990).................................................................................................34
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ................................................................................... passim
Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177 (6th Cir. 1993) .................................................................................................35
Knight v. Conn. Dep't of Pub. Health, 275 F.3d 156 (2d Cir. 2001)...............................................................................................35
Korte v. U.S. Dep't of Health & Human Servs., 912 F. Supp. 2d 735 (S.D. Ill. 2012)......................................................................13, 22, 33
Larson v. Valente, 456 U.S. 228 (1982)...............................................................................................39, 40, 41
Legatus v. Sebelius, 901 F. Supp. 2d 980 (E.D. Mich. 2012).............................................................................27
vi

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 8 of 63 PageID 1182
Lemon v. Kurtzman, 403 U.S. 602 (1971)...........................................................................................................43
Liberty Univ., Inc. v. Lew, 2013 WL 3470532 (4th Cir. July 11, 2013).......................................................................41
Living Water Church of God v. Charter Twp. of Meridian, 258 F. App'x 729 (6th Cir. 2007)...........................................................................17, 18, 22
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...........................................................................................................10
MK Chambers Co. v. U.S. Dep't of Health & Human Servs., No. 13-cv-11379, 2013 WL. 1340719 (E.D. Mich. Apr. 3, 2013) ..............................33, 37
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) ...........................................................................................42
Mahoney v. Dist. of Columbia, 662 F. Supp. 2d 74 (D.D.C. 2009) .....................................................................................35
McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004).........................................................................................17, 22
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) .............................................................................................47
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) .....................................................................................23
Mersino Mgmt Co. v. Sebelius, No. 2:13-cv-11296, 2013 WL. 3546702 (E.D. Mich. July 11, 2013)..........................13, 19
Murphy v. State of Ark., 852 F.2d 1039 (8th Cir. 1988) ...........................................................................................31
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)...........................................................................................................39
Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936 (D.C. Cir. 2004) ...........................................................................................14
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989) ........................................................................................30, 31
vii

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 9 of 63 PageID 1183
O'Brien v. U.S. Dep't of Health & Human Servs., 894 F. Supp. 2d 1149 (E.D. Mo. 2012)...................................................................... passim
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)...........................................................................................................39
Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989) .........................................................................................39
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) .............................................................................................34
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009) ...........................................................................................22
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)...........................................................................................................25
Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736 (1976)...........................................................................................................43
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR), 547 U.S. 47 (2006).............................................................................................................36
S. Ridge Baptist Church v. Indus. Comm'n of Ohio, 911 F.2d 1203 (6th Cir. 1990) ...............................................................................27, 28, 31
Sharpe Holdings, Inc. v. U.S. Dep't of Health & Human Servs., No. 2:12-CV-92-DDN, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) .............................33
Sherbert v. Verner, 374 U.S. 398 (1963).....................................................................................................21, 26
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998)...............................................................................................................9
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ...........................................................................................48
Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707 (1981).........................................................................................12, 18, 21, 22
United States v. Amer, 110 F.3d 873 (2d Cir. 1997)...............................................................................................33
viii

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 10 of 63 PageID 1184
United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963)...........................................................................................................32
United States v. Corum, 362 F.3d 489 (8th Cir. 2004) .............................................................................................43
United States v. Israel, 317 F.3d 768 (7th Cir. 2003) .............................................................................................29
United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) .............................................................................................31
United States v. Lee, 455 U.S. 252 (1982).....................................................................................................25, 26
United States v. O'Brien, 391 U.S. 367 (1968)...........................................................................................................38
United States v. Oliver, 255 F.3d 588 (8th Cir. 2001) .............................................................................................25
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) .............................................................................................29
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ...................................................................................29, 31
United States v. Will, 671 F.2d 963 (6th Cir. 1982) .............................................................................................42
United States v. Winddancer, 435 F. Supp. 2d 687 (M.D. Tenn. 2006)............................................................................26
Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006) .............................................................................................18
Walz v. Tax Comm'n of NY, 397 U.S. 664 (1970)...........................................................................................................41
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007)...............................................................................................17
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)...........................................................................................................47
ix

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 11 of 63 PageID 1185
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007)...............................................................................................18
Whitmore v. Arkansas, 495 U.S. 149 (1990)...........................................................................................................10
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)...............................................................................................................10
Wisconsin v. Yoder, 406 U.S. 205 ..........................................................................................................18, 21, 26 STATE CASES
Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006)...................................................................................... passim
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004)………………………………………………………………………passim
FEDERAL STATUTES 29 U.S.C. § 1002........................................................................................................................3, 11 29 U.S.C. § 1003............................................................................................................................11 42 U.S.C. § 18011..........................................................................................................................27 42 U.S.C. § 18118....................................................................................................................44, 46 42 U.S.C. § 2000bb-1 ....................................................................................................................12 42 U.S.C. §§ 300, 300a-6...............................................................................................................45 42 U.S.C. § 300gg-13 ......................................................................................................................5 Pub. L. No. 103-141, 107 Stat. 1488 (1993)..................................................................................12 Pub. L. No. 111-148, 124 Stat. 119 (2010)......................................................................................5
FEDERAL REGULATIONS 26 C.F.R. § 54.9815-2713A...........................................................................................................11 26 C.F.R. § 54.9815-2713A...........................................................................................................38
x

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 12 of 63 PageID 1186
29 C.F.R. § 2510.3-16....................................................................................................................11 29 C.F.R. § 2590.715-2713A.........................................................................................................38 45 C.F.R. § 147.131 .........................................................................................................7, 8, 28, 42 45 C.F.R. § 147.131 .........................................................................................................................8 45 C.F.R. § 147.140 .......................................................................................................................27 45 C.F.R. § 46.202 .........................................................................................................................45 62 Fed. Reg. 8610 (Feb. 25, 1997) ................................................................................................45 75 Fed. Reg. 34,538 (June 17, 2010) .............................................................................................27 75 Fed. Reg. 41,726 (July 19, 2010)..................................................................................23, 24, 48 76 Fed. Reg. 46,621 (Aug. 3, 2011).................................................................................................6 76 Fed. Reg. 7767 (Feb. 11, 2011) ................................................................................................46 77 Fed. Reg. 8725 (Feb. 15, 2012) ........................................................................................ passim 77 Fed. Reg. 16,501 (Mar. 21, 2012).........................................................................................7, 14 78 Fed. Reg. 8456 (Feb. 6, 2013) ..............................................................................................7, 14 78 Fed. Reg. 39,870 (July 2, 2013)........................................................................................ passim
LEGISLATIVE MATERIAL 139 Cong. Rec. S14350-01 S14352 (daily ed. Oct. 26, 1993)...................................................... 19 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) .......................................................... 46 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) ................................................ 25, 48 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) .......................................................25 H.R. Rep. No. 111-443 pt. II (2010) ..............................................................................................30
xi

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 13 of 63 PageID 1187 MISCELLANEOUS
Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives (June 2013)..................................................................................................6
HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines ........... passim HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive
Services for Women (August 1, 2011) .............................................................................45 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING
THE GAPS 19-20, 109 (2011) ...................................................................................... passim Kaiser Family Foundation and Health Research & Educational Trust, Employer
Health Benefits 2012 Annual Survey ................................................................................27 Office of Population Affairs, Memorandum (Apr. 23, 1997)........................................................45
xii

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 14 of 63 PageID 1188
INTRODUCTION Plaintiffs—the Roman Catholic Diocese of Fort Worth (the “Diocese”), the University of Dallas, Our Lady of Victory Catho lic School (“Our Lady of Victory” ), and Catholic Charities of Fort Worth, Inc. (“Catholic Charities”)—ask this Court to enjoin regulations that are intended to accommodate religious exercise while help ing to ensure that wom en have acces s to health coverage, without cost-sharing, for preventive serv ices that medical experts deem necessary for women’s health and well-being. Subject to an exemption for houses of worship and their integrated auxiliaries, and accommodations for certain other non-profit religious organizations, as discussed below, the regulati ons that p laintiffs challenge re quire certain gro up health plans and health insurance issuers to provide coverage , without cost-sharing (such as a copaym ent, coinsurance, or a deductible), for, among other things, all Food and Drug Administration (FDA)approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider. When the contraceptive-coverage requirem ent was first established, in August 2011, certain non-profit religious organizations—incl uding some of the plain tiffs here—objected on religious grounds to having to provide contracep tive coverage in the group health plans they offer to their employees. Although, in the government’s view, these organizations were mistaken to claim that an acco mmodation was required under the First Am endment or the Religiou s Freedom Restoration Act (RFRA), th e defendant Departments decided to accommodate the concerns expressed by these orga nizations. First, they e stablished an ex emption for the group health plans of houses of worship and their inte grated auxiliaries (and any associated group health insurance coverage). One of the plaintiffs—the Diocese—qua lifies for this exem ption. In addition, defendants established accommodations for the group health plans of eligible non-profit religious organizations, like the rem aining plaintiffs (and any associated group health insurance coverage), that relieve them of responsibility to contract, arrange, pay, or refer for contraceptive coverage or services, but that also ensure that the women it employs and who participate in these plans are not denied access to c ontraceptive coverage without cost-sharing. To be eligible for an
1

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 15 of 63 PageID 1189
accommodation, the organization merely needs to certify that it meets the eligibility criteria, i.e., that it is a non-profit organization that holds itself out as religious and has a religious objection to providing coverage for som e or all contraceptive s. Once the organization certifies that it m eets these criteria, it need no t contract, arrange, pay, or refer for c ontraceptive coverage or services . For those organizations with a third-party insured group health plan—like Catholic Charities— the third-party insurer takes on th e responsibility to prov ide contraceptive coverage to the organization’s employees and covered dependents. If the group health plan of the or ganization is self-insured—like the other plaintif fs here—its third-party administrator (TPA) will ar range contraceptive coverage for the organization’s employees and covered dependents. In neither case does the objecting employer bear the cost (if any) of providing contraceptive coverage; nor does it administer such coverage; nor does it contract or otherwise arrange for such coverage; nor does it refer for such coverage.
Remarkably, plaintiffs now declare that th ese accommodations them selves violate their rights under RFRA and the First Am endment. They contend that th e mere act of certifying that they are eligible for an accommodation is a s ubstantial burden on their relig ious exercise because, once they make the certification, th eir employees will be able to obtain contraceptiv e coverage through other parties. Th is extraordinary contention s uggests that plaintiffs not only seek to avoid paying for, adm inistering, or otherwise providing c ontraceptive coverage themselves, but also seek to prevent the wom en who work for their organizations from obtaining such coverage, even if through other parties.
At bottom, plaintiffs’ position seems to be that any as serted burden, no m atter how de minimis, amounts to a substantial burden under RFRA . That is not the law. Congress am ended the initial v ersion of RFRA to add the word “ substantially,” and thus made clear that “any burden” would not suffice. Although these regulat ions require virtually nothing of the m, plaintiffs claim that the regulati ons run afoul of their sincerely held religious beliefs prohibiting them from providing or facilitati ng health coverage for certain c ontraceptive services, and that the challenged regulations violate RFRA, th e First Amendm ent, and the Adm inistrative
2

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 16 of 63 PageID 1190
Procedure Act (APA). T he University of Dallas moves for a prelim inary injunction on all of its claims, which should be denied because it has not shown that it is likely to succeed on the merits. And because all of p laintiffs’ claims fail, th is case sho uld be dis missed in its en tirety; alternatively, the Court should enter summary judgment in favor of the government.
As a threshold matter, however, two of the f our plaintiffs—the Diocese and Our Lady of Victory—lack standing to assert their claim s. These plaintiffs (hereinafter referred to as the “church plan plaintiffs”) have a lleged that the health plans that they pr ovide to their employees qualify as “church plans” as defined under Sec tion 3(33) of the Employment Retirement Income Security Act (ERISA), 29 U.S.C. § 1002(33). See Am. Compl. ¶¶ 48, 59. While defendants continue to consider potential options to fully and appropriately extend the consumer protections provided by the regulations to se lf-insured church plans, defe ndants acknowledge that, at this time, they lack author ity to require the TPAs of self-insured church plans to make the separate payments for contraceptive services for par ticipants in su ch plans under the accommodation, described below. This acknowledgm ent does not in any way change the fact that the church plans remain entirely exempt from the contraceptive coverage regulations (as to the Diocese), o r eligible for the accommodations (as to Our Lady of Victory) and therefore are no t required to contract, arrange, pay, or refer fo r contraceptive coverage. It m eans only that their T PAs are not required to make the separate payments for c ontraceptive services for their employees under the accommodation. Thus, the inju ry of which plaintiffs com plain—that the regulations somehow require them to facilitate acce ss to contracep tive services to which they objec t on relig ious grounds—simply does not apply to the church plan plaintiffs and, as a result, the church plan plaintiffs lack standing to assert their claims.
Moreover, none of the plaintiffs can establ ish a substantial burden on their religious exercise—as they m ust—because the regulatio ns do not require plaintiffs to change their behavior in any significa nt way. Plaintiffs are not required to contract, arrange, pay, or refer for contraceptive coverage. To the contrary, plaintiffs are free to continue to refuse to do so, to voice their disapproval of contracep tion, and to encourage their em ployees to refrain from using
3

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 17 of 63 PageID 1191
contraceptive services. Plaintiffs contend th at the need to self -certify in orde r to obtain the accommodation is itself a burden on their relig ious exercise. But the challenged regulations require plaintiffs only to self -certify that they have a religious objection to providing contraceptive coverage and otherw ise meet the criteria for an e ligible organization, and to share that self-certification with their insurers or TPAs. In o ther words, plaintiffs are required only to inform their insurers and TPAs that they ob ject to providing contraceptive coverage, which they have done or would have to do vo luntarily anyway even absent these regulations in order to ensure that that they are not responsible for cont racting, arranging, paying, or referring for such coverage. Plaintiffs can hardly cl aim that it is a viola tion of RFRA to require them to do almost exactly what they would do in the ordinary course, absent the regulations.
Further, plaintiffs’ challenge rests largely on the theo ry that ev en the extrem ely attenuated connection b etween them and the independent provision by insurers and TPAs of payments for contraceptive services to which they object on religious grounds—but for which plaintiffs pay nothing—amounts to a substantial burden on their religious exercise. This cannot be. Regardless of how plaintiffs frame their religious beliefs, courts must independently consider whether a given law imposes a subs tantial burden on those beliefs. See Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677, at *6 ( W.D. Mich. Dec. 24, 2012), aff’d, __ F.3d __, 2013 WL 5182544 (6th Cir. Sept. 17, 2013). The regulations impose, at most, only the most de minimis burden on plaintiffs’ religious exercise , too slight and attenuated to be “substantial” under RFRA, and little different from plaintiffs’ payment of salaries to their employees, which those employees can also use to buy contraceptive services if they so choose.
Moreover, even if the challenged regulations were deemed to impose a substantial burden on plaintiffs’ religious exercise, the regulatio ns would not violate RFRA because they are narrowly tailored to serve two compelling govern mental interests: improving the health of women and newborn children, and equalizing th e provision of preventiv e care for wom en and men so that wom en can partic ipate in the work force, and society m ore generally, on an equal playing field with men.
4

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 18 of 63 PageID 1192
Plaintiffs’ First Am endment claims are equa lly meritless. Indeed, nearly every cou rt to consider similar First Amendment challenges to the prior version of the regulations rejected the claims, and their an alysis applies here. Plain tiffs also can not succeed on their A PA claims because the regulations are in accordance with fe deral law. Finally, University of Dallas canno t satisfy the remaining requirements for obtaining a preliminary injunction.
For these reasons, and those explained belo w, University of Dallas’s motion for a preliminary injunction should be denied, and defendants’ motion to dismiss or, in the alternative, for summary judgment should be granted.
BACKGROUND Before the Patient Protection and Affordab le Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of dis ease, lead productive lives, and reduce health care costs. Due largely to co st, Americans used pr eventive services at abou t half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1920, 109 (2011) (“IOM R EP.”), AR at 317-18, 407. 1 Section 1001 of the ACA—which includes the preventive services coverage provision relevant here—seeks to cure this problem by m aking preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without costsharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4). Because there were n o existing HRSA gui delines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) requested that the Institute of Medicine (IOM) de velop recommendations to implement the requirement to provide
1 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR).
5

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 19 of 63 PageID 1193
coverage, without cost-sharing, of pr eventive services for wom en. IOM REP. at 2, AR at 300. 2 After conducting an extensive science-based re view, IOM recommended that HRSA guidelines include, among other things, well-wom an visits; breastfeeding support; dom estic violence screening; and, as relevant here, “the full range of [FDA ]-approved contraceptive m ethods, sterilization procedures, and patient educat ion and counseling for wom en with reproductive capacity.” Id. at 10-12, AR at 308-10. FDA-approve d contraceptive m ethods include diaphragms, oral contraceptive p ills, emergency contraceptives, and intrauterine devices (“IUDs”). See id. at 105, AR at 403. IOM determ ined that coverage, w ithout cost-sharing, for these services is necess ary to increase access to such serv ices, and thereby reduce unintended pregnancies (and the n egative health outcom es that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.3
On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exemption relating to certain r eligious employers authorized by regulations issued that same day (the “2011 a mended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guid elines (“HRSA Guidelines”), AR at 283 -84.4 Group health plans established or maintained by these religious employers (and associated group
2 IOM, which was established by the National Academy of Sciences in 19 70, is fun ded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv, AR at 289. 3 At least twenty-eight states have laws requiring health insurance policies that cover prescription drugs to also provide coverage for FD A-approved contraceptives. See Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives (June 2013), AR at 1023-26. 4 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and (4) the organization is a non profit organization as described in section 60 33(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
6

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 20 of 63 PageID 1194
health insurance coverage) are ex empt from any requirement to cover contraceptive services consistent with HRSA’s guidelines. See id.; 45 C.F.R. § 147.131(a).
In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 a mended interim final regulations wh ile also creating a temporary enforcement safe harbor for non-gr andfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215. The regulations challenged here (the “2013 fina l rules”) repres ent the culm ination of that process. See 78 Fed. Reg. 39,870 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21, 2012) (Advance Notice of Proposed Rulem aking (ANPRM)), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.
The 2013 final rules represent a significant accommodation by the governm ent of the religious objections of c ertain non-profit religious organizations while promoting two important policy goals. First, the regu lations provide wom en who wo rk for non-profit religious organizations with access to contraceptive coverage without cost sharing, thereby advancing the compelling government interests in safeguarding public health and ensuring that w omen have equal access to health care. Second, the regulations advance these interests in a narrowly tailored fashion that does not require non-profit religious organizations with re ligious objections to providing contraceptive coverage to contract, pay, arrange, or refer for that coverage.
The 2013 final rules simplify and clarify the religious employer exemption by eliminating the first three crite ria and clarifying th e fourth criterion. See supra note 5. Under the 2013 final rules, a “religious em ployer” is “an organiza tion that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended,” which refers to churches, their integrated auxiliaries, and conventions or
7

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 21 of 63 PageID 1195

associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R.

§ 147.131(a). The changes m ade to the definitio n of religious employer in the 2013 final rules

are intended to ensure “that an otherwise exempt plan is not disqualified because the employer’s

purposes extend beyond the inculcation of relig ious values or becau se the em ployer hires o r

serves people of different religious faiths.” 78 Fed. Reg. at 39,874, AR at 6.

The 2013 final rules also estab lish accommodations with respect to the contraceptive

coverage requirement for group health plans

established or maintained by “eligible

organizations” (and group health insurance coverage provided in connection with such plans). Id.

at 39,875-80, AR at 7-12; 45 C.F.R. § 147.131(b). An “eligible organization” is an organization

that satisfies the following criteria:

(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered und er § 147.130(a)(1)(iv) on account of religious objections.

(2) The organization is organized and operates as a nonprofit entity.

(3) The organization holds itself out as a religious organization.

(4) The organization self-certifies, in a f orm and manner specified by the S ecretary, that it satisf ies the criteria in paragra phs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first p lan year to which the accommodation in paragraph (c) of this section applies.

45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7.

Under the 2013 final rules, an eligible orga nization is not required “to contract, arrange,

pay, or refer for contraceptive coverage” to w hich it has religious objections. 78 Fed. Reg. at

39,874, AR at 6. To be relieved of any such obligations, the 2013 fina l rules require only that an

eligible organization complete a self-certification form stating that it is an elig ible organization

and provide a copy of that self-cer tification to its issuer or TPA. Id. at 39,878-79, AR at 10-11.

Its participants and benef iciaries, however, w ill still ben efit from separate payments for

contraceptive services without cost sharing or other charge. Id. at 39,874, AR at 6. In the case of

an organization with an insured group hea

lth plan—such as Catholic Charities—the

8

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 22 of 63 PageID 1196
organization’s health in surance issuer, upon recei pt of the self-certification, m ust provide separate payments to plan participants and bene ficiaries for contraceptive services without cost sharing, premium, fee, or other ch arge to plan participants or be neficiaries, or to the eligible organization or its plan. See id. at 39,875-77, AR at 7-9. And in th e case of an organization with a self-insured group health plan—such as other plaintiffs here—the or ganization’s TPA, upon receipt of the self-certification, will provide or arrange separa te payments for contraceptive services for participants and bene ficiaries in the plan; again, w ithout cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,87 9-80, AR at 11-12. Any costs in curred by the TPA will be reim bursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
The 2013 final rules generally apply to group h ealth plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except that the amendments to the relig ious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
STANDARD OF REVIEW Defendants move to dism iss the Amended Complaint in its entir ety for failure to state a claim upon which relief m ay be granted pursuant to Federal Rule of Civ il Procedure 12(b)(6). Under this Rule, “the tenet th at 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 caus e of action, supported by m ere conclusory statem ents, do not suffice.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Defendants also move to dism iss the claims of the c hurch plan plaintiffs—the Diocese and Our Lady of Victory—under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Th e party invoking federal jurisd iction bears the burden of establishing its exis tence, and the Court m ust determine whether it has jurisd iction before addressing the merits of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 104 (1998). To the exte nt that th e Court m ust consider the administrative record in addition to the
9

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 23 of 63 PageID 1197
face of the Am ended Complaint, defendants move, in the alternative, for summ ary judgment pursuant to Federal Rule of Civil Procedure 56. A party is entitled to summary judgm ent where the administrative record demonstrates “that there is no g enuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
This memorandum also responds to plainti ffs’ motion for a prelim inary injunction on their RFRA claim . A prelim inary injunction is an “extraordinary rem edy that m ay only be awarded upon a clear showing that the pl aintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A plaintiff “m ust establish that he is likely to succeed on the merits, that he is likely to suffer irreparabl e harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20.
ARGUMENT I. TWO OF THE PLAINTIFFS LACK STANDING
At the outset, the claim s of the church plan plaintiffs should be dism issed because they lack standing. “[T]he irreducible constitutional minimum of standing” requires that a plaintiff (1) have suffered an injury in fact, (2) that is caused by the defendant’s conduct, and (3) that is likely to be redressed by a favorable ruling. Lujan v. Defenders o f Wildlife, 504 U.S. 555, 560 (1992). As to the injury prong, a plaintiff must dem onstrate that it has “suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560 (quotations o mitted). Allegations of possible future injury do not suffice; rather, “[a] threatened injury must be certainly impending to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quotation omitted).
The harm alleged by plaintiffs in this case is that, in orde r to avail th emselves of the accommodations, the challenged regulations require them to engage in actions—in particular, the execution of the self -certification—that make plaintiffs “the trigger and but-for cause of the provision of the objectionable products and services.” Am. Com pl. ¶ 10, ECF No. 64. As explained below, this alleged injury does not amount to a substantial burden under RFRA. Two
10

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 24 of 63 PageID 1198
of the plaintiffs in this case— the church plan plaintiffs—howev er, have not alleged sufficient facts even to m eet the injury -in-fact requirement for Article III s tanding. The c hurch plan plaintiffs have alleged that the h ealth plans that they provide to their em ployees qualify as “church plans” under ERISA. See Am. Compl. ¶¶ 48, 59. While defend ants continue to consider potential options to fully and appropriately ex tend the consum er protections provided by the regulations to self-insured church plans, they acknowledge that, at this time, they lack regulatory authority to require th e TPAs of self-insured church plans to m ake the separate paym ents for contraceptive services for participants and beneficiaries in such plans under the accommodation.
In general, under the challe nged regulations, when a TPA receives a copy of the selfcertification from an eligible em ployer that sponsors a self-insured group health plan, that TPA becomes an ERISA Se ction 3(16), 29 U.S.C. § 1002(16), plan adm inistrator and claim s administrator for the pu rpose of providing th e separate payments for con traceptive services. See 29 C.F.R. § 2510.3-16(b). Thus, the contraceptive coverage requirements can be enforced against such TPAs through defendant Department of Labor’s ERISA enforcement authority. See 78 Fed. Reg. 39,870, 39,879-39,880 (July 2, 2013), AR at 11-12. Howe ver, church plans are specifically excluded from the a mbit of ERISA. See 29 U.S.C. § 1003(b)(2). Thus, ERISA enforcem ent authority is not available with respect to the TPAs of s elf-insured church plans under the accommodation, and the government cannot compel such TPAs under such authority to provide contraceptive coverage to self-insured chur ch plan participants beneficiaries under the accommodation, including the em ployees of the c hurch plan plain tiffs and th eir covered dependents in this case.
The Diocese remains entirely exempt from the challeng ed regulations, and Our Lady of Victory, which shares the Dioces e church plan, remains eligible for the accomm odations under the final regulations promulgated by defenda nt Department of Treasury, 26 C.F.R. § 54.98152713A and therefore n eed not con tract, arrange, pay, or refer for contraceptive services. 5 But
5 The same can be said of any other eligible organization that participates in the church plan of the Diocese, whether or not that organization is a plaintiff in this action.
11

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 25 of 63 PageID 1199
their TPA need not provide separate paym ents for contraceptive services, and thus, under the challenged regulations, there is absolutely no co nnection between the church plan employer and contraceptive coverage.6 Thus, the injury of which plaint iffs complain—that the regulations somehow require th em to facilitate access to c ontraceptive services to which they object on religious grounds—simply does not apply to the church plan plaintiffs and, as a result, the church plan plaintiffs lack standing to assert their claims.7
II. PLAINTIFFS’ CLAIMS LACK MERIT A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit 1. The regulations do not substantia lly burden plaintiffs’ exercise of religion Under RFRA, Pub. L. No. 103-141, 107 St at. 1488 (1993) (codified at 42 U.S.C.
§ 2000bb-1 et seq.), the federal government “shall not substantially burden a person’s exercise of religion” unless that burde n is the least restrictive means to further a compelling governm ental interest. 42 U.S.C. 2000 bb-1. Importantly, “only substantial burdens on the exercise of religion trigger the compelling interest requirement.” Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (emphasis added). “A substantial burden ex ists when government action puts ‘substantial pressure on an adherent to m odify his behavior and to violate his beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C . Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)). “A n inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unimporta nt to the adh erent’s religious scheme.” Kaemmerling, 553 F.3d at 678; see also Braunfeld v. Brown, 366 U.S. 599, 606 (1961); Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 262 (3d Cir. 2008) (Scirica, C.J., concurring).
6 Nor ca n plaintiffs complain that their TPAs might voluntarily elect to provide cont raceptive coverage notwithstanding the fact that defendants do not have the authority to require them to do so, as this allegation would be far too speculative for the purposes of Article III standing. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 113 8, 1147 (2013). 7 Even if the Court were to determine that the church plan plaintiffs do have standing to assert their claims, those claims would fail—along with the claims of the remaining plaintiffs, University of Dallas and Catholic Charities— for the reasons stated in Section II below.
12

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 26 of 63 PageID 1200
For two reasons, plaintiffs cannot show that the challenged regulations substantially
burden their religious exercise. 8 First, becau se the regulations require virtually n othing of
plaintiffs, and certainly do not require plaintiffs to modify their behavior in any meaningful way,
the regulations cannot be deemed to impose any more than a de minimis burden on plaintiffs—let
alone a substantial one. Second, even if this Court were to find that the regulations impose som e
burden on plaintiffs’ religious exercise, any su ch burden would be far too attenuated to be
substantial.
a. The regulations impose no more t han a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs
To put this case in its s implest terms, plaintiffs challenge regulations that require them to
do next to nothing, except what they would have to do even in the absence of the regulations.
The Diocese is entirely exem pt from the contraceptive coverage requirem ent.9 And the
8 Plaintiffs repeatedly refer to cases involving for-profit companies that object to the contraceptive coverage regulations. See, e.g., Pls.’ Mem. at 16 n.22, 23-25. But those cases are inapposite because for-profit corporations— unlike plaintiffs—do not qualify for the religious employer exemption or the accommodations for elig ible organizations. Furthermore, plaintiffs’ statement that courts “in at least twenty cases have afforded preliminary relief to for-profit plaintiffs challenging the Mandate,” id. at 16 n.22, is misleading. Plaintiffs’ list includes cases where, in an effort to conserve judicial and governmental resources, the government did not oppose the entry of preliminary injunctive relief. See id. (citing, for example, Tonn & Blank Constr., LLC v. Sebelius, No. 1:12-cv-325 (N.D. Ind. Apr. 1, 2013)). Those cases were in the Seventh, Eighth and D.C. Circuits, and they were filed after motions panels in those circuits had preliminary enjoined the regulations pending appeal in similar cases. See Mersino Mgmt Co. v. Sebelius, No. 2:13-cv-11296, 2013 WL 3546702, at *16 (E.D. Mich. July 11, 2013) (“[W]here the government has conceded to injunctive relief, it appears that it has generally done so in jurisdictions where the legal landscape has been set against them, and continuing to litigate the claims in those jurisdictions would be a waste of both judicial and client resources.”). In fact, in cases where the government has opposed preliminary injunctions, a majority of courts have ruled in the government’s favor. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) (Sotomayor, J., i n chambers) (denying application for injunction pending appellate review); Conestoga Wood Specialties Corp. v. Sebelius, 724 F.3d 377 (3d Cir. 2013 ); Autocam, 2013 WL 5182544; Grote Indus., LLC v . Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012), appeal pending No. 13-1077 (7th Cir.); Korte v. U. S. Dep’t of Health & Human Servs., 912 F Supp. 2d 735 (S.D. Ill. 2012), appeal pending, No. 12-3841 (7th Cir.).
9 Plaintiffs state that the scope of the religious employer exemption adopted in the 2013 final rules is narrower than that contemplated in the ANPRM. See, e.g., Pls.’ Mem. at 8. This contention is both false and irrelevant. Plaintiffs contend that, in the ANPRM, the government suggested that non-exempt organizations that participate in the health plan of an exempt organization would benefit from the exemption. But defendants never advanced that interpretation of the exemption. Plaintiffs’ misleading quotation from the ANPRM, see id., does not indicate otherwise when read in full. In the ANPRM, defendants said:
In addition, we no te that this ex emption is available to relig ious employers in a variety of arrangements. For example, a C atholic elementary school may be a di stinct common-law employer from the Catholic diocese with which it is affiliated. If the school’s employees receive
13

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 27 of 63 PageID 1201
remaining plaintiffs (the “non-di ocese plaintiffs”), as eligible organizations, are not required to
contract, arrange, pay, or refer for contraceptive coverage. To the contrary, these plaintiffs are
free to continue to refuse to do so, to voice thei r disapproval of contraception, and to encourage
their employees to refrain from using contracep tive services. The non -diocese plaintiffs need
only fulfill the self-certification requirement and provide the completed self-certification to their
issuers and TPAs. Plaintiffs need not pay for cont raceptive services to their em ployees. Instead,
third parties—plaintiffs’ issuers and TPAs—provide paym ents for contraceptive services, at no
cost to plaintiffs. In short, with respect to contraceptive coverage, plaintiffs need not do anything
more than they did prior to the promulgation of the challenged regulati ons—that is, to inform
their issuer or TPA that they obj ect to providing contraceptive cove rage in order to ensure that
they are not responsible for cont racting, arranging, paying, or refe rring for such coverage. Thus,
the regulations do not require pl aintiffs “to modify [their] religious behavior in any way.”
Kaemmerling, 553 F.3d at 679. T he Court’s inquiry sh ould end here. A law cannot be a
substantial burden on religious exercise when “it invo lves no action or forbearance on
[plaintiffs’] part, no r . . . otherwis e interfere[s] with any r eligious act in which [ plaintiffs]
engage[].” Id.; see also Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752, 761 (7th
Cir. 2003) (holding, in the context of RLUIPA, that “a substantial burden on religious exercise is
health coverage through a plan established or maintained by the school, and the school meets the definition of a religious employer in the final regulations, then the religious employer exemption applies. If, instead, the same school provides health coverage for its employees through the same plan under which the diocese provides coverage for its employees, and the diocese is exempt from the requirement to cover contraceptive services, then neither the diocese nor the school is required to offer contraceptive coverage to its employees.
77 Fed. Reg. at 16,502 (emphasis added), AR at 187. This passage in no way suggests that a non-exempt employer (i.e., one that does not meet the definition of “religious employer” in the final rules) would become exempt simply by providing coverage through the same plan as an exem pt employer. Far from it, both hypotheticals presented in the ANPRM deal with a school—the “same” school—that itself m eets the definition of an e xempt religious employer. Defendants’ decision to exempt entities on an employer-by-employer basis is thu s consistent with defendants’ prior statements in the ANPRM. More over, the age ncies expressly “propose[d] to make the accommodation or the religious employer exemption available on an employer-by-employer basis” in the NPRM. 78 Fed. Reg. at 8467, AR at 176. Finally, even if the scope of the exemption in the final rules were different from what was originally proposed in the ANPRM—which it is not—plaintiffs have not indicated why that would be improper. In fact, that is the very purpose of the rulemaking process. See, e.g., Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 951 (D.C. Cir. 2004).
14

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 28 of 63 PageID 1202
one that necessarily bears direct, prim ary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable”).10
Because the regulations place no burden at all on plaintiffs, they plainly place no cognizable burden on their religio us exercise. Plaintiffs’ contrary argum ent rests on an unprecedented and sweeping theory of what it mean s for religious exercise to be burdened. Not only do plaintiffs wa nt to be free from contracting, arranging, paying, or referring for contraceptive services for their employees—w hich, under these regulations, they are—but plaintiffs would also prevent anyone else from providing such coverage to their em ployees, who might not subscribe to plaintiffs’ religious beliefs. That this is the de facto impact of plaintiffs’ stated objections is m ade clear by their ass ertion that RFRA is violated whenever they are th e “but-for cause of the provision of the objectionable products and services.” Am. Compl. ¶ 10, see also id. ¶¶ 11, 127. This theory would m ean, for example, that even the governm ent would not realistically be able to provide contraceptive coverage to plai ntiffs’ employees (as plaintiffs elsewhere suggest), because it would be “trigger [ed],” Pls.’ Mem . in Supp. of Pl . Univ. of Dallas’s Mot. for Prelim Inj. and Pls.’ Mot. fo r Summary J. (“Pls.’ Me m.”) at 10, ECF No. 72; Am. Compl. ¶¶, 10, 11, by plaintiffs’ refusal to pr ovide such coverage themselves. But RFRA is a shield, not a sword, see O’Brien v. U.S. Dep’t of Health & Human Servs. , 894 F. Supp. 2d 1149, 1158-60 (E.D. Mo. 2012), appeal pending, No. 12-3357 (8th Cir.), and accordingly it does not prevent the governm ent from providing alternative m eans of achieving im portant statutory objectives once it has provided a religious accommodation. Cf. Bowen v. Roy, 476 U.S. 693, 699 (1986) (“The Free Exercise Clause sim ply cannot be understood to require the Governm ent to conduct its own internal affairs in ways that com port with the re ligious beliefs of particular citizens.”).
10 In addition to the arguments raised below, the church plan plaintiffs cannot possibly show that the challenged regulations burden their religious exercise under RFRA for the same reason that they have not even alleged an injury sufficient for purposes of Article III standing. In short, because the church plan plaintiffs are either exempt or eligible for the accommodation, and the government cannot require the church plan plaintiffs’ TPAs to provide contraceptive coverage, the regulations impose absolutely no burden on their religious exercise, let alone a substantial burden.
15

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 29 of 63 PageID 1203
Plaintiffs’ RFRA challenge is s imilar to th e claim that the D.C. Circuit rejected in Kaemmerling. There, a federal prisoner objected to the FBI’s coll ection of his DNA profile. 553 F.3d at 678. In concluding that this collecti on did not substantially burden the prisoner’s religious exercise, the court concluded that “[t]he extraction and storage of DNA information are entirely activities of the FBI, in which Kae mmerling plays no role an d which occur af ter the BOP has taken his fluid or tissue sample (to which he does not object).” Id. at 679. In the court’s view, “[a]lthough the government’s activities with his fluid or ti ssue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be sa id to ham per his religious exercise because they do not pressure [him] to modify his behavior and to violate his beliefs.” Id. (internal citation and q uotation marks omitted). The same is true he re, where th e provision of contraceptive services is “entirely [an] activit[y] of [a third party], in which [plaintiffs] play[] no role.” Id. As in Kaemmerling, “[a]lthough the [third party]’s activities . . . m ay offend [plaintiffs’] religious beliefs, they cannot be said to hamper [their] religious exercise.” Id.
Perhaps understanding the tenuous ground on whic h their RFRA claim rests, given that the regulations do not require them to contract, arrange, pay, or refer for contraceptive services, plaintiffs attempt to circumvent this problem by advancing the novel theory that the regulations require them to som ehow “facilitate acce ss” to contrac eptive coverage, and that it is th is “facilitation” that violates plaintiffs’ religious beliefs. See, e.g., Pls.’ Mem. at 11, 18, 20. But the challenged regulations do not require the Dioc ese to do anything, and require the non-diocese plaintiffs only to self-certify that they object to providing coverage for contraceptive services and that they otherwise m eet the criteria for an eligible organization, a nd to share that selfcertification with their issuers and TPAs. In ot her words, plaintiffs are required to inform their issuers and TPAs that they object to providing c ontraceptive coverage, which they have done or would have to do voluntarily anyway even absent th ese regulations in order to ensure that they are not responsible for contrac ting, arranging, paying, or referri ng for contraceptive coverage. The sole d ifference is that th ey must inf orm their TPAs that th eir objection is for relig ious reasons—a statement they have already made repeatedly in this litigation and elsewhere.
16

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 30 of 63 PageID 1204
Further, any burden imposed by the purely administrative self-certification requirement— which should take plaintiffs a matter of m inutes—is, at m ost, de minimis, and thus cannot be “substantial” under RFRA. The substa ntial burden hurdle is a high one. Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 734 (6th Cir. 2007); see also Kaemmerling, 553 F.3d at 678 (“An inconsequential or de minimis burden on religious practice does not rise to this level [of a substantial burden].”); Washington v. Klem, 497 F.3d 272, 279-81 (3d Cir. 2007); McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir. 2004); Civil Liberties for Urban Believers, 342 F.3d at 761. Indeed, if this is not a de minimis burden, it is hard to see what would be. In fact, plaintiffs’ alternative proposals only confirm that the alleged “burden” of selfcertification is de minimis. They contend that, as an alternative to the accommodations developed by the Departm ents, the federal governm ent should somehow expand or create other public programs so as to provide contraceptive coverage to the w omen who participa te in plain tiffs’ group health plans. RF RA plainly does not require defendants to expand or create governm ent programs, particularly where, as here, there is no st atutory authority to do so. See infra Section II.A.2.b. But, in any event, plaintiffs’ own proposal s would entail the sam e putative “burden” as the existing accommodations, or an even greater bur den: One way or another, plaintiffs would have to certify their eligibility for an accomm odation, and the result would be that the wom en who participate in their plan would get contrace ptive coverage through another source such as Medicaid. The governm ent would of course, as it does with Medica id, have to verif y employment and/or dependent be neficiary status with the elig ible organization. T he current accommodations are thus likely to require less of plaintiffs’ involvement than would government program to separately provide contraceptive coverage for their employees and dependents.11
11 At one point in their brief, see Pls.’ Mem. at 10, plaintiffs state that, for self-insured eligible organizations, the self-certification form acts as a “ designation of t he third party administrator(s) as pl an administrator and cl aims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879, AR at 11. It is not clear what legal significance plaintiffs attach to this statement, but what is c lear is that self-insured entities are su bject to the same selfcertification requirement as third-party-insured entities; they will use the same self-certification form, on which they will state only that they are non-profit religious organizations with a reli gious objection to providing contraceptive coverage—nothing more. As discussed above, this self-certification requirement is, at most, a de minimis administrative burden that requires no more of eligible entities—whether self-insured or third-party-insured—than what they would have to do anyway absent the challenged regulations.
17

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 31 of 63 PageID 1205
Contrary to plaintiffs’ sugges tion, the m ere fact that plai ntiffs claim that the selfcertification requirement imposes a substantial bur den on their religious exercise by requiring them to “facilitate” access to contraception does not make it so. See Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013) (“[W ]e reject the notion . . . that a plaintiff shows a burden to be substan tial simply by claiming that it is.”), aff’d, 724 F.3d 377 (3d Cir. 2013). Under RFRA, plaintiffs are entitled to their sincere relig ious beliefs, but they are not entitled to decide what does and does not im pose a substantial burden on such beliefs. Although “[c]ourts are not arbiters of scriptural interpretation,” Thomas, 450 U.S. at 716, “RFRA still requires the court to determine whether the burden a law imposes on a plaintiff’s stated religious belief is ‘su bstantial.’” Conestoga, 917 F. Supp. 2d at 413. Plaint iffs would lim it the Court’s inquiry to two prongs: first, whet her plaintiffs’ religious objection to the regulations are sincere, and second, whether the regulations apply signif icant pressure to plaintiffs to comply. But plaintiffs ignore a critical third criterion of the “substantial burde n” test, which gives meaning to the term “substantial”: whether th e challenged regulations actually require plaintiffs to m odify their behavior in a significant—or more than de minimis—way. See Living Water Church of God, 258 F. App’x at 734-36; see also, e.g., Vision Church v. Vill. of Long Grove, 468 F.3d 975, 997 (7th Cir. 2006) (noting, in the RLUIPA context, that “t he Supreme Court has found a ‘substantial burden’ to exist when the governm ent puts ‘substantial pressu re on an adherent to modify his behavior and to violate his beliefs’” (quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 141 (1987))) (emphasis added); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348-49 (2d Cir. 2007); Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328, 1353-54 (N.D. Ga. 2012). As plaintiffs them selves appear to recognize, a “law ‘subs tantially burdens’ an exercise of religion if it compels one ‘to perform acts undeniably at odds with fundam ental tenets of [one’s] religious beliefs,’” Pls.’ Mem. at 22 (quoting Wisconsin v. Yoder , 406 U.S. 205, 218 (1972)) (em phasis added), “or ‘put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.’” Id. (quoting Thomas, 450 U.S. at 717-18) (em phasis added). This test does not re quire the Court to
18

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 32 of 63 PageID 1206
delve into the theo logical merits of a belief , but ins tead requires the Court to e xamine the operation of the regulations and their impact on plaintiffs’ religious practice.12
Under plaintiffs’ alternative interpretation of RFRA, courts would play virtually no role
in determining whether an alleged burden is “s ubstantial”—as long as a plaintiff’s religious
belief is sincere, that w ould be the end of the inquiry. See Pls.’ Mem. at 22-28. Plaintiffs would
thus be allowed to evade RFRA’s threshold by si mply asserting that the burden on their religious
exercise is “substantial,” thereby paradoxically reading the term “substantial” out of RFRA. See
Autocam, 2012 WL 6845677, at *6 (“The Court does no t doubt the sincerity of Plaintiff
Kennedy’s decision to draw the line he does, but the Court still has a d uty to assess whether the
claimed burden—no matter how sincerely felt—r eally amounts to a substantial burden on a
person’s exercise of religion.”); see also Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943, 949
(S.D. Ind. 2012), appeal pending, No. 13-1077 (7th Cir. ). “If every p laintiff were permitted to
unilaterally determine that a law burdened the ir religious beliefs, and c ourts were required to
assume that such burden was substantial, sim ply because the plain tiff claimed that it was the
case, then the standard expressed by Congress under the RFRA would convert to an ‘any burden’
standard.” Conestoga, 917 F. Supp. 2d at 413-14; see also Autocam, 2012 WL 6845677, at *7;
Grote, 914 F. Supp. 2d at 952; Mersino Mgmt Co. v. Sebelius , No. 2:13-cv-11296, 2013 W L 3546702, at *16 (E.D. Mich. July 11, 2013). 13 The result would be to subject every act of
12 In Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), a bare majority of the en banc Tenth Circuit concluded that, in determining whether a burden is su bstantial, a court’s “on ly task is to determine whether the claimant's belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.” Id. at 1137. The government believes that the majority’s ruling in Hobby Lobby was wrong on this and many other points. However, even if this Court were inclined to agree with the Tenth Circuit, the majority proceeded to rely on Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), which makes clear that in order for a law to impose a substantial burden, it must require some actual change in religious behavior—either forced participation in conduct or forced a bstention from conduct. See Hobby Lobby, 723 F.3d at 1 138 (citing Abdulhaseeb, 600 F.3d at 1315). The Hobby Lobby substantial burden analysis is also inapposite because for-profit corporations are not eligible for the accommodations. 13 RFRA’s legislative history makes clear that Congress did not intend such a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, substantial or otherwise. Congress amended the bill to add the word “substantially,” “to make it clear that the compelling interest standards set forth in the act” apply “only to Government actions [that] place a substantial burden on the exercise of” religious liberty. 139 Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy); see also id. (text of Amendment No. 1082).
19

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 33 of 63 PageID 1207
Congress to strict scrutiny every tim e any plainti ff could articulate a si ncerely held religious objection to compliance with that law.
Finally, plaintiffs seem to suggest that the re gulations will actually require them to fund or subsidize access to contraceptive coverage because their issuers and TPAs will find a way to pass on the costs of such coverage to plaintiffs. See Pls.’ Mem. at 22 n.28. But the regulations specifically prohibit plaintiffs’ issuers and T PAs from charging any prem ium or otherwise passing on any costs to plaintiffs with resp ect to the issuers’ and TPAs’ paym ents for contraceptive services. See 78 Fed. Reg. at 39,880, AR at 12. Any suggestion that plaintiffs’ issuers and TPAs will viola te the law is pure ly speculative, and boils down to the basele ss argument that the regulations im pose a substa ntial burden under RFRA because a third party might violate those same regulations. This contention has no merit.14
For the reasons stated above, the regulati ons do not im pose a substantial burden on plaintiffs’ religious exercise, and thus plaintiffs’ m otion for a prelim inary injunction on their RFRA claim (Count I of the Am ended Complaint) should be denied, and this claim should be dismissed or summary judgment granted to defendants.
b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA
Although the regulations do not require plainti ffs to contract, arrange, pay, or refer for contraceptive coverage, plaintiffs’ complaint appears to be that the regulations require plaintiffs to indirectly facilitate conduct on the part of their employees that they find objectionable (i.e., the use of certain contraceptives). But this complaint has no limits. An employer provides numerous
14 Plaintiffs’ c ontention that third-party-insured employers “will almost certainly be required to subsidize” contraception, Pls.’ Mem. at 22 n.28, also misses the mark. As explained above, the regulations specifically prohibit plaintiffs’ issuers from charging any premium or ot herwise passing on any costs to plaintiffs with respect to the issuers’ payments for contraceptive services. The government noted in the regulations that nothing prevents a health insurance issuer from charging premiums “as if no payments for contraceptive services had been provided to plan participants and beneficiaries.” 78 Fed. Reg. at 39,877, AR at 9. In other words, an issuer is permitted—but not required—to charge the employer for precisely the group policy that it wishes to purchase —one that excludes contraceptive coverage. See id. This proposition is unremarkable. What is remarkable is plaintiffs’ suggestion that, although they object to providing a policy that includes contraceptive coverage, they should be c harged a lower premium as if their policy includes such coverage.
20

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 34 of 63 PageID 1208
benefits, including a salary and ot her fringe benefits, to its em ployees and by doing so in som e sense facilitates whatever use its employees make of those benefits. Plaintiffs not only seek to be free from the requirement to contract, arrange , pay, or refer for contraceptive coverage themselves—which they are under these regulations —but also seek to prevent anyone else from providing such coverage to their employees. But an employer has no right to control the choices of its employees, who may not share its religious beliefs, and who have a legitim ate interest in access to the preventive services coverage made available under the challenged regulations.
Indeed, courts have held that claim s raised b y for-profit com panies challenging the contraceptive coverage regulati ons, which require them to pr ovide the relevant coverage themselves, are too attenuated to amount to a substantial burden unde r RFRA. Any burden on plaintiffs, which are eligible for the religious employer exemption or the accommodations, is a fortiori too attenuated to be subs tantial. For ex ample, the distr ict court in Conestoga reasoned that the ultimate decision of whether to use contraception “rests not with [the employer], but with [the] employees” and that “any burden im posed by the regulations is too attenuated to be considered substantial.” 917 F. Supp. 2d at 414-15. The Conestoga court further explained that the indirect nature of any burden imposed by the regulations distinguished them from the statutes challenged in Yoder, Sherbert, Thomas, and Gonzales. See Conestoga, 917 F. Supp. 2d at 415; see also, e.g., Autocam, 2012 WL 6845677, at *6; O’Brien, 894 F. Supp. 2d at 1158-60.15
As these courts concluded, the preventive services coverage regulations result in only an indirect impact on for-profit companies, which must provide contraceptive coverage themselves. Any burden on plaintiffs and sim ilar eligible organizations that qualify for the acco mmodations is even m ore attenuated. Not only are plaintiffs separated from the use of contraception by “a series of ev ents” that must occu r before the use of contraceptiv e services to whic h plaintiffs object would “come into play,” Conestoga, 917 F. Supp. 2d at 414-15, but they are also further
15 See also Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) (Rovner, J., dissenting); Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL 1190001, at *4 (E.D. Mich. Mar. 22 , 2013); Annex Medical, Inc. v. Sebelius, No. 12-cv2804, 2013 WL 101927, at *4-5 (D. Minn. Jan . 8, 2013), appeal pending, No. 13- 1118 (8th Cir.); Grote, 914 F. Supp. 2d at 949-52.
21

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 35 of 63 PageID 1209
insulated by the f act that a third party—plaintiffs’ issuers and TPAs—and not plaintiffs, will actually contract, arrange, pay, and refer for such services, and thus plaintiffs are in no way subsidizing—even indirectly—the use of preventive services that they find objectionable. Under plaintiffs’ theory, their religious exercise is substantially burdened when one of their em ployees and her health care provider m ake an indepe ndent determination that the use of certain contraceptive services is appropriate, and such se rvices are paid for exclusiv ely by plaintiffs’ issuers and TPAs, with none of the cost being passed on to plai ntiffs, and no adm inistration of the payments by plain tiffs, solely because p laintiffs self-certified th at they h ave religious objections to providing contraceptive coverage and so informed their issuers and TPAs.
But a burden cannot be “substantial” under RF RA when it is attenuated. Cases that find a substantial burden uniform ly involve a direct burden on the plai ntiff rather than a burden imposed on another entity. See, e.g., Potter v. Dist. of Colum bia, 558 F.3d 542, 546 (D.C. Cir. 2009); see also Grote, 914 F. Supp. 2d at 951-52; Conestoga, 917 F. Supp. 2d at 413-14. A plaintiff cannot establish a substa ntial burden on his relig ious exercise by invoking this type of trickle-down theory; to constitute a substantial burden under RFRA, the burden must be imposed on the p laintiff himself. See Conestoga, 917 F. Supp. 2d at 411, 413; Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735, 748 (S.D. Ill. 2012), appeal pending, No. 12-3841 (7th Cir.); Autocam, 2012 WL 6845677, at *7; Grote, 914 F. Supp. 2d at 950-51. 16 Here, of course, there is no such direct burden. In fact, given that any payment for contraceptive services is made by plaintiffs’ TPAs, the regulations ha ve even less im pact on plaintiffs’ religious
16 Thomas is not to the contrary. In Thomas, the Suprem e Court recognized that “a compulsion may certainly be indirect and still constitute a substantial burden, such as the denial of a benefit found in Thomas.” Conestoga, 917 F. Supp. 2d at 41 5 n.15. But that is no t so where the burden itself is ind irect, as it is h ere. See id. As previously explained, see supra note 13, in Hobby Lobby, 723 F.3d 1114, a bare majority of th e en b anc Tenth Circuit concluded that the word “substantial” in RFRA refers to the “intensity of coercion” rather than to the directness or indirectness of the burden, if any, on a plaintiff’s religious exercise. Id. at 1137-40. The Tenth Circuit’s conclusion that the substantial burden requirement relates to the intensity of the coercion, however, is in consistent with Kaemmerling, discussed above, as well as other decisions that have analyzed “substantial burden” in terms of the degree to which the challenged law directly imposes a requirement or prohibition on religious practice. See 553 F.3d at 678-79; Living Water Church of God, 258 F. App’x at 734; McEachin, 357 F.3d at 203 n.6; Civil Liberties for Urban Believers, 342 F.3d at 761. And, again, the Hobby Lobby substantial burden analysis is inapplicable to this case. See supra note 12.
22

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 36 of 63 PageID 1210
exercise than plaintiffs’ payment of salaries to their employees, which those em ployees can use to purchase contraceptives. See O’Brien, 894 F. Supp. 2d at 1160; Conestoga, 917 F. Supp. 2d at 414; Grote, 708 F.3d at 861 (Rovner, J., dissenting); Autocam, 2012 WL 6845677, at *6.
Plaintiffs remain free t o refuse t o contract, arrange, pay, or refer for contraceptive coverage; to voice their disapproval of contra ception; and to encourage their employees t o refrain from using con traceptive services. The regulations therefor e affect plain tiffs’ religious practice, if at all, in a highly attenu ated way. In short, because the preventive serv ices coverage regulations “are several degrees removed from im posing a substa ntial burden on [plaintiffs],” O’Brien, 894 F. Supp. 2d at 1160, the Court should dism iss plaintiffs’ RFRA claim, or grant summary judgment to defendants, even if it finds—contrary to the government’s argument—that the challenged regulations impose some burden on plaintiffs’ religious exercise.
2. Even if there w ere a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests a. The regulations significantly advance compelling govern mental interests in public health and gender equality
Even if plaintiffs were able to de monstrate a substantial burden on their religious exercise, they would not prevail because th e challenged regulations are justified by two compelling interests, and are the le ast restrictive means to achieve th ose interests. First, the promotion of public health is unquestionably a com pelling interest. Mead v. Holder , 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also, e.g., Buchwald v. Univ. of N.M. Sch. of Med. , 159 F.3d 487, 498 (10th Cir. 1998); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995). And the challenged regulations further this com pelling interest by “expanding access to and utilization of recommended preventive services for women.” 78 Fed. Reg. at 39,887, AR at 19.
The primary predicted benefit of the preventi ve services coverage regulations is that “individuals will experience im proved health as a result of reduced tran smission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19.
23

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 37 of 63 PageID 1211
“By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increas e access to and utilization of these services, which are no t used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significan t barrier to access to con traception.” (citation omitted)), AR at 5.17
Increased access to FDA-approved contraceptive services is a key part o f these predicted health outcomes, as unintended pregnancies have proven in m any cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39, 872, AR at 4. As IOM concluded in identifying services recomm ended to “prevent conditions harm ful to wom en’s health and well-being,” unintende d pregnancy m ay delay “entry in to prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “dep ression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02. Contraceptive coverage further helps to avoid “the increased risk of adverse pregnancy outcom es for pr egnancies that are too clo sely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small-for-gestational age births.”) (citing stu dies), AR at 4. And “[ c]ontraceptives also have medical benefits for women who are contraindicated for pregnancy, and there are dem onstrated preventive health benefits from contraceptives relating to conditions other than pregnancy (for example, prevention of certain cancers, m enstrual disorders, and acne).” 78 Fed. Reg. at 39,872, AR at 4; see also IOM Rep. at 103-04 (“[P]regnancy m ay be cont raindicated for women with serious m edical conditions such as pulmonary hypert ension . . . and cyanotic hear t disease, and for wom en with the Marfan Syndrome.”), AR at 401-02.
Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations: assuring that women have equal access to hea lth care services. 78 Fed. Reg.
17 Plaintiffs miss the point when they attempt to minimize the magnitude of th ese interests by arguing that contraception is readily available from other sources. See Pls.’ Mem. at 31. Although a majority of employers cover FDA-approved contraceptives, see IOM Rep. at 109, AR at 407, many women forgo preventive services because of cost-sharing imposed by their health plans, see id. at 1 9-20, 109, AR at 3 17-18, 407. The challenged regulations eliminate that cost-sharing. 78 Fed. Reg. at 39,873, AR at 5.
24

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 38 of 63 PageID 1212
at 39,872, 39,887, AR a t 4, 19. As the Suprem e Court explained in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), there is a fundam ental “importance, both to the individual and to society, of removing the barriers to econom ic advancement and political and social integration that have historically plagued certain disa dvantaged groups, including wom en.” Id. at 626. Thus, “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interests.” Id. By including in the ACA pre ventive health services for women, Congress made clear that the goals and benefits of effective prev entive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into account in the ACA. As explained by members of Congress, “wom en have different health needs than m en, and these need s often generate additi onal costs. W omen of childbearing age spend 68 percent m ore in out-of-pocket health care costs than m en.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) (s tatement of Sen. Mikulski); 78 Fed. Reg. at 39,887, AR at 19; IOM R EP. at 19, AR at 317. These costs resu lt in wom en often forgoing preventive care and place wom en in the workforce at a disadvantag e compared to their m ale coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 20, AR at 318. Congress’s atte mpt to equalize the provision of preventive health care services, with the resulting benefit of women being able to contribu te to the same degree as m en as healthy and productive members of society, furthers a com pelling governmental interest. Cf. Catholic Charities of Sacramento, Inc. v. Superior Court , 85 P.3d 67, 92-93 (Cal. 2004).18
18 In arguing that the government’s interests are not compelling, plaintiffs suggest the government must separately analyze the impact of and ne ed for the regulations as to each and every employer and employee in America. See Pls.’ Mem. at 28-29. But this level of specificity would be impossible to establish and would render this regulatory scheme—and potentially every regulatory scheme that is challenged due to religious objections—completely unworkable. See United States v. Lee , 455 U.S. 252, 259-60 (1982). In practice, courts have not required the government to analyze the impact of a regulation on the single entity seeking an exemption, but have conducted the inquiry with respect to all similarly situated individuals or organizations. See, e.g., id. at 260 (considering the impact on the tax system if all religious adherents—not just the plaintiff—could opt out); United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (per curiam) (“Oliver has argued a one-man exemption should be made, however, there is nothing so peculiar or special with Oliver’s situation which warrants an exce ption. There a re no safeguards to prevent similarly situated individuals from assertin g the same privilege and leading to uncontrolled eagle harvesting.”); Dole v. S henandoah Baptist Church, 899 F.2d 1389, 1398 (4th Cir. 1990) (“There is n o principled way of exempting the school without exempting all other sectarian schools and thereby the thousands of lay teachers
25

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 39 of 63 PageID 1213
Although the challenged regulations further these two compelling governmental interests, while simultaneously accommodating the religious objections of eligible organizations, plaintiffs maintain that the inte rests underlying the regulations cannot be considered com pelling when millions of people are n ot protected by the regula tions at the m oment. Pls.’ Mem. at 29-31. But this is not a case where underinc lusive enforcement of a law suggests that the governm ent’s “supposedly vital interest” is not really com pelling. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47 (1993). For the m ost part, the “exemptions” referred to by plaintiffs are not exemptions from the preventive services coverage regul ations at all, but are instead provisions of the ACA that exclude individuals and entities from other requirem ents imposed by the ACA. Or they reflect th e government’s attempts to balance the compelling interests underlying the challenge d regulations against other si gnificant interests supporting the complex administrative scheme created by the ACA. See United States v. Lee, 455 U.S. 252, 259 (1982) (“The Court has long recogni zed that balance m ust be struck between the values of the comprehensive social security system, which re sts on a co mplex of actuarial facto rs, and the consequences of allowing religiously based exemptions.”); Winddancer, 435 F. Supp. 2d at 69598 (recognizing that the regulations governing access to eagle parts “strik e a delicate balance” between competing interests). And, unlike the ex emption plaintiffs seek for employers that object to the regulati ons on religious grounds, the existing exceptions do not underm ine the government’s interests in a significant way. See Lukumi, 508 U.S. at 547; S. Ridge Baptist
and staff members on their payrolls.”); see also, e.g. , Graham v. Comm’r, 822 F.2d 8 44, 853 (9th Cir. 1987), overruled in part on other grounds by Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1033 (9th Cir. 2007) (en banc); United States v. Winddancer, 435 F. Supp. 2d 687, 697 (M.D. Tenn. 2006). Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 435 (2006), is not to the contrary. To be sure, the Court rejected “slipperyslope” arguments for refusing to accommodate a particular claimant. See 546 U.S. at 435-36. But it construed the scope of the requested exemption as e ncompassing all members of the plaintiff religious sect. See id. at 433. Similarly, the exemption in Yoder, 406 U.S. 205, encompassed all Amish children; and the exemption in Sherbert v. Verner, 374 U.S. 398 (1963), encompassed all individuals who had a religious objection to working on Saturdays. See O Centro, 546 U.S. at 431. The Court’s warning in O Centro against “slippery-slope” arguments was a rejection of arguments by analogy—that is, speculation that providing an exemption to one group will lead to exemptions for other non-similarly situated groups. It was not an invitation to ignore the reality that an exemption for a particular claimant might necessarily lead to an exemption for an entire category of similarly situated entities.
26

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 40 of 63 PageID 1214
Church v. Indus. Comm’n of Ohio , 911 F.2d 1203, 1208-09 (6th Cir. 1990); see also 78 Fed. Reg. at 39,887, AR at 19.
For example, the grand fathering of certain health plans with respec t to certa in ACA provisions is not limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140. In fact, the effect of grandfathering is not really a perm anent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preven tive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at 19. The grandfathering provision reflects Congress’s at tempts to balance competing interests—specifically, the inte rest in spread ing the benefits of the ACA, including those provided by the preventive servi ces coverage provision, and the inte rest in maintaining existing coverage and easing the transition into the ne w regulatory regime established by the ACA—i n the context of a complex statutory scheme. See 75 Fed. Reg. 34,538, 34,546 (June 17, 2010).
This incremental transition does not call into question the compelling interests furthered by the preventive services coverage regulations. Even under the grandfathering provision, it is projected that more group health plans will tran sition to the requirements under the regulation s over time. Defendants have estim ated that a majority of group heal th plans will have lost their grandfather status by the end 2013. See id. at 34,552; see also Kaiser Fa mily Foundation and Health Research & Educational Trust, Em ployer Health Benefits 2012 A nnual Survey at 7-8, 190, AR at 663-64, 846. Thus, any purported adve rse effect on the com pelling interests underlying the regulations will be quickly mitigated, which is in s tark contrast to the permanent exemption plaintiffs seek. Plaintiffs would have this Court believe that an interest cannot truly be “compelling” unless Congress is willing to im pose it on everyone all at once despite com peting interests, but plaintiffs offer no support for that untenable proposition. See Legatus v. Sebelius, 901 F. Supp. 2d 980, 994 (E.D. Mich. 2012) (“[T ]he grandfathering rule seem s to be a reasonable plan for instituting an incredibly complex health care law while balancing competing interests.”).
27

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 41 of 63 PageID 1215
Similarly, contrary to plaintiffs’ asser tions, the governm ent’s one-year delay in enforcement of the employer resp onsibility provision of the ACA does not underm ine the government’s compelling interests. Here agai n, plaintiffs ignore the i mportant difference between the permanent exemption that th ey seek and a p ragmatic step to ushe r in a com plex statute over tim e. Moreover, even though large employers will not be subject to assessab le payments until 2015 for declining to offer health insurance to their employees, there has been no such delay with respect to the preventive services coverage regulations themselves, meaning that employees whose employers offer health care coverage will reap the benefits of those regulations in their upcoming plan year.
The only true exem ption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a). But there is a rational distinction between this narrow exception and the expansion plaintiffs seek. Houses of worship and their in tegrated auxiliaries that object to contraceptive coverage on religious grounds are m ore likely than other em ployers, including organizations eligible for the accommodations, to employ people of the sa me faith who share the sam e objection, and who would therefore be less likely to use contracep tive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19. In any event, it would be perverse to hold that the governm ent’s provision of a li mited religious exemption eliminates its compelling interest in the regulation, thus eff ectively extending the sam e exemption to anyone else who wants it under RFRA. Such a reading of RFRA would discourage the government from accommodating religion, the opposite of what Congress intended in enacting RFRA.
Granting plaintiffs the m uch broader exemption they request w ould undermine defendants’ ability to en force the regulations in a rational manner. See Gonzales v. O Centro Espirita Beneficente Uniao Do Ve getal, 546 U.S. 418, 435 (2006). We are a “cosm opolitan nation made up of people of almost every conceivable religious preference,” Braunfeld, 366 U.S. at 606; see also S. Ridge Baptist Church , 911 F.2d at 1211, and m any people object to various medical services. If any organization with a religious objection were able to claim an exemption
28

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 42 of 63 PageID 1216
from the operation of th e preventive services coverage regulations—even where the regulations require virtually nothing of the organizatio n—it is dif ficult to se e how defendants could administer the regulations in a m anner that would achieve Congress’s goals of improving the health of wom en and newborn children and equa lizing the coverage o f preventive services for women. See United States v. Israel, 317 F.3d 768, 772 (7th Cir. 2003) (recognizing that granting plaintiff’s RFRA claim “would lead to significant adm inistrative problems for the [governm ent] and open the door to a . . . proliferation of cl aims”). Indeed, wom en who receive their health coverage through employers like plaintiffs would face negativ e health and other outcom es because they had obtained employment with an organization that objects to its employees’ use of contraceptive services, even when th ose services are paid for and adm inistered by a third party. See id. (noting consequences “for the public an d the government”); 77 Fed. Reg. at 8728, AR a t 215; 78 Fed. Reg. at 39,887, AR at 19.
b. The regulations are the least re strictive means of advancing the government’s compelling interests
When determining whether a particular regulato ry scheme is the “least res trictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme—or whether the schem e can otherwise be modified—without undermining the government’s compelling interests. See, e.g., United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987); United States v. Wilgus, 638 F.3d 1274, 128995 (10th Cir. 2011). The governm ent is not requi red “to do the im possible—refute each and every conceivable alternative regulation scheme.” Id. at 1289. Instead, the government need only “refute the alternative schemes offered by the challenger.” Id.
Instead of explaining how plaintiffs and sim ilarly situated eligible organizations could be exempted from the regulations without significant dam age to the governm ent’s compelling interests, plaintiffs conjure up, without any statutory support, several brand ne w statutory and regulatory schemes—most of which would requi re the governm ent to pay for contraceptive coverage—that they claim would be less restrictive. See Pls.’ Mem. at 33. Yet plaintiffs fail to
29

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 43 of 63 PageID 1217
recognize that such alternatives would be incom patible with the fundame ntal statutory schem e set forth in the ACA, which plaintif fs do not challenge in this lawsuit. Congress did not adopt a single (government) payer system financed th rough taxes and instead opted to build on the existing system of e mployment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010). Plaintiffs point to no statutory authority for any of their proffered less restrictive alternatives. Nor is there any indication that Congress would ha ve contemplated that agency action could be inv alidated under RFRA because th e agency in discharging its statutorily delegated authority failed to adopt an alternative scheme absent any statutory authority for doing so. Thus, even if defendants wanted to adopt on e of plaintiffs’ non-employer-based alternatives, they would be constrained by the statute from doing so. See 78 Fed. Reg. at 39,888, AR at 20.
Furthermore, plaintiffs them selves indicate that they would “oppose m any of” the alternatives that they put forth. Pls.’ Mem . at 33. Indeed, as noted above, it is not clear why the government’s provision of contraceptive cove rage to wom en based upon their em ployer’s objection to providing it would not be subject to exac tly the sam e RFRA claim that plaintiffs advance here. By their own admission then, plaintiffs’ proposals would do little—if anything—to satisfy their religious objections , and therefore should not be cons idered viable less restrictive alternatives. See New Life Baptist Church Acad. v. Town of E. Longmeadow , 885 F.2d 940, 95051 (1st Cir. 1989) (Breyer, J.) (considering the limited extent to which an alternative would alleviate a religious burden in rejecting it as a “less restrictive alte rnative,” even though the plaintiff had expressed a preference for the a lternative over the challen ged requirements). An eligible organization’s religious objection to contraceptive coverage would still “f acilitate” the availability of such coverage—in this case, by the governm ent—and the eligible organization would likely be called upon to verify or certify matters such as the religious objection to contraceptive coverage, and em ployment or plan beneficiary status. Plai ntiffs cannot plausibly contend that the regulations ar e not the le ast restrictive means while s imultaneously asserting that they would oppose their own suggested alternatives.
30

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 44 of 63 PageID 1218
Finally, even if plaintiffs w ould be satisfied by their proposed alternative schemes, just because plaintiffs can devise an en tirely new legislative an d administrative scheme does not make that schem e a feasible less restrictive means, see Wilgus, 638 F .3d at 1289; Adams v. Comm’r of Internal Revenue , 170 F.3d 173, 180 n.8 (3d Cir. 1999) , particularly where such alternatives would com e at enorm ous administrative and financial cost to the governm ent. A proposed alternative scheme is not an adequate a lternative—and thus not a viable less restrictive means to achieve a compelling interest—if it is not feasible. See, e.g., New Life Baptist, 885 F.2d at 947; Graham, 822 F.2d at 852. In determ ining whether a proposed alternative schem e is feasible, courts often consider the additional adm inistrative and fiscal costs of the schem e. See, e.g., S. Ridge Baptist Church, 911 F.2d at 1206; Fegans v. Norris, 537 F.3d 897, 905-06 (8th Cir. 2008); United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011); New Life Baptist, 885 F.2d at 947. Defendants considered pl aintiffs’ alternatives and determined that they were not feasible because the agencies lacked statu tory authority to im plement them; they would i mpose considerable new costs and other burdens on the government; and they would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Lafley, 656 F.3d at 942; Gooden v. Crain, 353 F. App’x 885, 888 (5th Cir. 2009); Adams, 170 F.3d at 180 n.8.
Nor would the proposed alternatives be equa lly effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g. , Kaemmerling, 553 F.3d at 684 (finding that m eans was least restrictive where no a lternative means would achieve compelling interests); Murphy v. State of Ark. , 852 F.2d 1039, 1042-43 (8th Cir. 1988) (sam e). As discussed above, Congress determ ined that th e best way to achieve the goals of the ACA, including expanding preventive services coverage , was to build on the existing em ployer-based system. The anticipated benefits of the preventiv e services coverage regulations are attributable not only to the fact that recommended contraceptive services will be available to women with no cost-sharing, but also to the fact that these services will be available through the existing employer-based system of health co verage through which wom en will face m inimal logistical and administrative obstacles to receiving cov erage of their care. Plaintiffs’ alternatives, b y
31

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 45 of 63 PageID 1219
contrast, have none of these advantages. They would require estab lishing entirely new government programs and infrastructures or f undamentally altering existing ones, and would almost certainly require women to take burdensome steps to find out about the availability of and sign up for a new benefit, thereby ensuring that fewer women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20. Nor do plaintiffs of fer any suggestion as to how thes e programs could be integrated with the employer-based system or how wom en would obtain governm entprovided preventive services in p ractice. Thus, plaintiffs’ proposals—in addition to rais ing myriad administrative and logistical dif ficulties and being unauthor ized by any statu te and not funded by any appropriation—are less likely to achieve the compelling interests furthered by the regulations, and therefore do not represent reasonable less restrictive means. Id.
Because plaintiffs have failed to put forth vi able less restrictive alternatives that would achieve the government’s compelling interests, the Court should reject plain tiffs’ argument that the regulations fail strict scrutiny.19
B. The Regulations Do Not Violate the Free Exercise Clause The Supreme Court has made clear that a la w that is neutral and generally applicable does not run afoul of the Free Exercise Clause even if it prescribes cond uct that an individual’s religion proscribes or has the incidental effect of burdening a particular religious practice. Emp’t Div., Dep’t of Human Res. of Or. v. Smith , 494 U.S. 872, 879 (1990); see also Lukumi, 508 U.S. at 531-32. “Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law is neutral if it does not target religiously motivated conduct either on its face or as ap plied. Id. at 533. A neutral law has as its purpose som ething other than the disapproval of a particular religion, or of religion in general. Id. at 545. A law is generally app licable so long as it does not selectively impose burdens only on conduct motivated by religious belief. Id.
19 Plaintiffs cite extra-record evidence in support of many of their arguments. For example, they cite a law review article in support of th e proposition that the challenged regulations “are unlikely to significantly impact contraceptive use.” See Pls.’ Mem. at 32. The i ntroduction of this and other extra-record evidence is inappropriate and should not be consi dered by the Court. Plaintiffs are challenging agency regulations, and thus this Court’s review is limited to the administrative record. See, e.g., United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963).
32

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 46 of 63 PageID 1220
Unlike such selective laws, the preventive se rvices coverage regulations are neutral and generally applicable. Indeed, nearly every court to have consid ered a free exercise challeng e to the prior version of the regulations has rejected it, concluding that the regulations are neutral and generally applicable.20 “The regulations were passed, not with the object of interfering with religious practices, but instead to improve women’s access to health care and lessen the disparity between men’s and wom en’s healthcare costs.” O’Brien, 894 F. S upp. 2d at 1161. The regulations reflect expert medical recommendations about the medical necessity of contraceptive services, without regard to any religi ous motivations about such services. See, e.g., Conestoga Wood Specialties Corp. v. Sebelius , 917 F. Supp. 2d 394, 410 (E.D. Pa . 2013) (“It is clear from the history of the regulations and the report p ublished by the [IOM] th at the purpose of the [regulations] is not to target religion, but instead to promote public health and gender equality.”); Grote Industries, LLC v. Sebelius, 914 F. Supp. 2d 943, 952-53 (S.D. Ind. 2012) (“[T]he purpose of the regulations is a secular one, to wit, to promote public health and gender equality.”).
The regulations, moreover, do not pursue their purpose “only agai nst conduct motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (concluding law that “punishe[d] conduc t within its reach wit hout regard to whether the conduct was religiously m otivated” was generall y applicable). The regulations apply to all non-grandfathered health plans that do not qualif y for the religious employer exem ption or the accommodations for eligible organizations. Thus, “it is just not true . . . that the burdens of the [regulations] fall on religious orga nizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536); see O’Brien, 894 F.
20 See MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., No. 13-cv-11379, 2013 WL 1340719, at *5 (E.D. Mich. Apr. 3, 2013); Eden Foods, 2013 WL 1190001, at *5; Conestoga, 917 F. Supp. 2d at 409-10; Grote, 914 F. Supp. 2d at 952-53; Autocam, 2012 WL 6845677, at *5; Korte, 912 F. Supp. 2d at 744-47; Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Su pp. 2d 1278,1289-90 (W.D. Okla. 2012), rev’d on other grounds, 723 F.3d 1114 (10th Cir. 2013); O’Brien, 894 F. Supp. 2d at 1160-62; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, 85 P.3d at 8187 (same). But see Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-CV-92-DDN, 2012 WL 6738489, at *5 (E.D. Mo. Dec. 31, 2012); Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402, 437 (W.D. Penn. 2013).
33

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 47 of 63 PageID 1221
Supp. 2d at 1162; Autocam Corp. v. Sebelius , 2012 WL 6845677, at *5 (W .D. Mich. Dec. 24, 2012); Grote, 914 F. Supp. 2d at 953.
The existence of express exceptions or accommodations for objectively defined categories of entities, like grandf athered plans, religious employers, and eligible organizations, “does not mean that [the regula tions do] not apply generally.” Autocam, 2012 WL 6845677, at *5. “General applicability does not mean absolute universality. ” Olsen v. Mukasey , 541 F.3d 827, 832 (8th Cir. 2008); accord Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004); Am. Friends Serv. Comm. Corp. v. Thornburgh , 951 F.2d 957, 960-61 (9th Cir. 1991) (concluding employer verification statute was generally appli cable even though it exem pted independent contractors, household em ployees, and employees hired prior to November 1986 because exemptions “exclude[d] entire, o bjectively-defined categories of em ployees”); Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42, 44 (2d Cir. 1990) (same). “Instead, exemptions undermining ‘general applicability’ are those tending to suggest disfavor of religion.” O’Brien, 894 F. Supp. 2d at 1162. The exception for grandfathered plans is available on equal term s to all em ployers, whether religi ous or secular. And the religious employer exemption and elig ible organization accommodations serv e to accom modate religion, not to disfavor it. Id.; see also Conestoga, 917 F. Supp. 2d at 410; Grote, 914 F. Supp. 2d at 953. Thus, these categorical exceptions and accommodations do not trigger strict scrutiny.
“[C]arving out an exemption for defined reli gious entities [also] doe s not m ake a law nonneutral as to others.” Grote, 914 F. Supp. 2d at 953 (quo tation omitted). Indeed, the religious employer exemption “presents a strong argum ent in favor of neutrality” by “dem onstrating that the object of the law was not to infringe upon or restrict practices becau se of their religious motivation.” O’Brien, 894 F. Supp. 2d at 1161 (quotations omitted); see Conestoga, 917 F. Supp. 2d at 410 (“The fact that exem ptions were m ade for religious em ployers . . . . shows that the government made efforts to accommodate religious beliefs, which co unsels in favor of the regulations’ neutrality.”). The regulations ar e not unlawful “m erely because the [religious employer exemption] does not extend as far as Plaintiffs wish.” Grote, 914 F. Supp. 2d at 953.
34

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 48 of 63 PageID 1222
Plaintiffs’ reliance on Lukumi, 508 U.S. 520, is of no help, as this case is a far cry from Lukumi, where the legislature specifically targeted the religious exercise of members of a single church (Santeria) by enacting ordinances that used terms such as “sacrifice” and “ritual,” id. at 533-34, and prohibited f ew, if any, anim al killings other than Santeria sacrifices, id. at 535-36. Here, there is no indica tion that th e regulations are anything other th an an effort to increase women’s access to and utilization of recommended preven tive services. See O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410; Grote, 914 F. Supp. 2d at 952-53. Plaintiffs’ unsupported assertions that the regulations are “part of a conscious political strategy to marginalize and delegitimize Plaintiffs’ religious views by holding them up for ridicule on the national stage” and that “the Governm ent went out of its way to im pose an unnecessary burden on Plaintiffs’ religious practice,” Pls.’ Mem . at 35, are mere rhetorical bluster. And it cannot be disputed that defendants have made extensive efforts—through the religious employer exemption and the elig ible organization accommodations—to accommodate religion in way s that will n ot undermine the goal of ensuring that wom en have access to coverage for recomm ended preventive services without cost sharing.
Finally, plaintiffs maintain that th e challenged regulations are subject to strict scrutiny under a “hy brid rights” theory b ecause they also infringe on plaintiffs’ freedom of speech and association. The Suprem e Court, however, ha s never invoked this so -called “hybrid rights theory” to justify applying strict scrutiny to a free exercise claim . See Lukumi, 508 U.S. at 567 (Souter, J., concurring in part and concurring in the judgm ent) (noting the hybrid rights exception would either s wallow the Smith rule or be entirely unnecessa ry). And several circuits have specifically rejected the theory. See Knight v. Conn. D ep’t of Pub. Health , 275 F.3d 156, 167 (2d Cir. 2001); Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993). Nevertheless, assuming arguendo that the hybrid rights th eory is valid, it a pplies only where the plaintiff’s non-free-exercise claims are “independently viable.” Mahoney v. Dist. of Columbia , 662 F. Supp. 2d 74, 95 n.12 (D.D.C. 2009). Here, plaint iffs assert that th e preventive services coverage provision violates both the right to free exercise of religion and their rights to free
35

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 49 of 63 PageID 1223
speech and free association. Yet, p laintiffs do not even raise a separate free association claim and, as explained b elow, their free speech claims are meritless. “‘[A] plaintiff does n ot allege a hybrid rights claim entitled to strict scrutiny analysis merely by combining a free exercise claim with an utterly m eritless claim of t he violation of anothe r alleged fundam ental right.’” Civil Liberties for Urban Believers, 342 F.3d at 765 (quoting Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 19 99)); see also Henderson , 253 F.3d at 19 (“[ T]he combination of two untenable claims” does not “equal[] a tenable one.”). Thus, ev en if the hybrid rights theory were valid, it would not trigger strict scrutiny in this case.
For these reasons, plaintiffs’ free exercise claim—Count II of the Amended Complaint— fails.21
C. The Regulations Do Not Violate the Free Speech Clause Plaintiffs’ free speech claims fare no better. The right to freedom of speech “prohibits the government from telling people what they m ust say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). But the preven tive services coverage regulations do not compel speech—by plaintiffs or any other person, employer, or entity—in violation of the First Amendment. Nor do they lim it what plain tiffs may say. Plaintiffs rem ain free under the regulations to express whatever views they may have on the use of contraceptive services (or any other health care services) as well as their views about the regulat ions. Plaintiffs, moreover, may encourage their employees not to use contraceptive services. Plaintiffs contend that the regu lations violate their free spee ch rights in three ways, none of which has m erit. First, plaintiffs are wrong when they contend that the regulations require plaintiffs “to support ‘counseling’ in favor of” preventive services to which they object. Pls.’ Mem. at 36. The regulations sim ply require coverage of “education and counseling for wom en with reproductive capacity.” HRSA Guidelines, AR at 283-84. There is no requirement that such education and counseling be “in favor of” any particular contraceptive service, or even in support
21 Even if the regulations were not neutral or generally applicable, plaintiffs’ free exercise challenge still would fail because the regulations satisfy strict scrutiny. See supra.
36

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 50 of 63 PageID 1224
of contraception in general. The con versations that m ay take place between a patient and her doctor cannot be known or screened in advance and may cover any number of options. To the extent that plaintiffs intend to argue that the covered education and coun seling is objectionable because some of the conversations between a doctor and one of plain tiffs’ employees might be supportive of contracepti on, accepting this theory would m ean that the First Am endment is violated by the m ere possibility of an e mployer’s disagreement with a potential subject of discussion between an employee an d her doctor, and would extend to all such interactions, not just those that are th e subject of the challeng ed regulations. The First Am endment does no t require such a drastic result. See, e.g., Conestoga, 917 F. Supp. 2d at 418-19.
Second, as plain tiffs point out th at, in order to avail itself of an accommodation, an organization must self-certify that it meets the definition of “eligible organization.” Pls. Mem. at 37-38. But com pletion of the sim ple self-certification form is “plainly incidental to the . . . regulation of conduct,” FAIR, 547 U.S. at 62, not speech. Indeed, every court to review a Free Speech challenge to the prior cont raceptive-coverage regulations has rejected it, in part, because the regulations deal with conduct. See MK Chambers, 2013 WL 1340719, at *6 (“Like the [law at issue in FAIR], the contraceptive requ irement regulates conduct, not speech.” (quotations omitted)); Briscoe v. Sebelius , 927 F. Supp. 2d 1109 (D. Colo. 2013) (“The plaintiffs cite no authority and I am not aware of any authority holding that such conduct qualifies as speech so as to trigger F irst Amendment protection.”); Conestoga, 917 F. Supp. 2d at 418; Grote, 914 F. Supp. at 955; Autocam, 2012 WL 6845677, *8; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento , 85 P.3d at 89 (rejecting sim ilar claim); Catholic Charities of the Diocese of Albany , 859 N.E.2d at 465 (sam e). The accomm odations likewise regu late conduct by relieving an eligible organization of th e obligation “to contract, arrange, pay, or refer for contraceptive coverage” to which it has re ligious objections. 78 Fed. Reg. at 39,874, AR at 6.22 Plaintiffs’ suggestion that self-certifying th eir eligibility for an acco mmodation, which is
22 Indeed, self-certifying eligibility for a religious accommodation is a far cry from the laws at issue in the cases plaintiffs cite, which mandated the posting of specific written messages throughout an organization’s building and advertisements, as well as speaking oral messages to the organization’s clients. See Pls.’ Mem. at 37-38 (citing
37

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 51 of 63 PageID 1225
incidental to the regulation of conduct, violates their sp eech rights lacks m erit. See FAIR, 547 U.S. at 61-63.
The regulations also do not requ ire plaintiffs to subsidize an y conduct that is “inherently expressive.” FAIR, 547 U.S. at 66; see also United Sta tes v. O’Brien, 391 U.S. 367, 376 (1968) (recognizing that some forms of “symbolic speec h” are protected by the First Amendment). As an initial matter, the regulations explicitly prohibit plaintiffs’ issuers and TPAs f rom imposing any cost sharing, prem ium, fee, or other charge on plaintiffs with respect to the separate payments for contraceptive services m ade by the issuers or TPAs. Plain tiffs, therefore, are no t funding or subsidizing a nything pertaining to contracep tive coverage. Moreover, even if plaintiffs played som e role in an issuer’s or TPA’s provision of paym ents for contraceptive services (and they do not), m aking payments for health care services is not the sort of conduct the Supreme Court has recognized as inherently expressive. See Conestoga, 917 F. Supp. 2d at 418; Grote, 2012 W L 6725905, at *10; Autocam, 2012 WL 6845677, at *8; O’Brien, 894 F. Supp. 2d at 1166-67; Catholic Charities of Sacramento , 85 P.3d at 89; Diocese of Albany, 859 N.E.2d at 465; see also FAIR, 547 U.S. at 65-66 (making space for military recruiters on campus is not conduct that indicates colleges’ support for, or sponsorship of, recruiters’ message).
Finally, plaintiffs’ claim that the regula tions impose a so-called “gag order” that interferes with their free-speech rights, see Pls.’ Mem. at 38, is wholly without merit. Defendants have been clear that “[n]othing in these final regulations prohibits an eligible organization from expressing its oppos ition to the us e of contra ception.” 78 Fed. Reg. at 39,880 n.41, AR at 12. What the regulations prohibit is an em ployer’s improper attempt to interfere with its employees’ ability to obtain contraceptive coverage from a third party by, for exampl e, threatening the TPA with a termination of its relationship with the employer because of the TPA’s “arrangem ents to provide or arrange separate payments for contraceptive services for participants or beneficiaries.” See 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii). Addressing an
Evergreen Ass’n v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011), and Centro Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011)).
38

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 52 of 63 PageID 1226
analogous argument in the context of the Nati onal Labor Relations Act, the Suprem e Court concluded that an em ployer’s threatening statements to its employees regarding the effects of unionization fell outside the protec tion of the First Am endment because they interfered with employee rights. NLRB v. Gissel Packing Co. , 395 U.S. 575, 618 (1969). The Court explained that there was no First Am endment violation because the employer was “free to communicate . . . any of his general views . . . so long as the co mmunications do not contain a ‘threat of reprisal or force or promise of benefit.’” Id.; see also Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (“[I]t has never been deem ed an abridgm ent of freedom of speech or press to m ake a course of conduct illegal merely because the conduct was in part initiated, ev idenced, or carried out by means of language, either spoken, written, or printed.” (quotation omitted)). The same is true here. Because the regulations do not prevent plaintiffs from expressing their views regarding the use of contraceptive services, but, rather, protect employees’ right to obtain paym ents for contraceptive services through TPAs, there is no infringement of plaintiffs’ right to free speech.
Accordingly, the regulations do not violat e the Free Speech Clause, and Counts III and IV of the Am ended Complaint should be dism issed or summ ary judgment granted to the government.
D. The Regulations Do Not Violate the Establishment Clause “The clearest command of the Esta blishment Clause is th at one re ligious denomination cannot be officially preferred over another.” Larson v. Valente , 456 U.S. 228, 244 (1982) (emphasis added). A law that discrim inates among religions by “aid[ing] one r eligion” or “prefer[ring] one religion over anothe r” is subject to strict scrutiny. Id. at 246; see also Olsen v. DEA, 878 F.2d 1458, 1461 (D.C. Cir. 1989). T hus, for example, the Suprem e Court has struck down on Establishm ent Clause grounds a state stat ute that was “drafted with the explicit intention” of requiring “parti cular religious denominations” to com ply with reg istration and reporting requirements while excluding other religious denom inations. Larson, 456 U.S. at 254; see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet , 512 U.S. 687, 703-07 (1994) (striking down statute that created special school district for religious enclave of Satmar Hasidim
39

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 53 of 63 PageID 1227
because it “single[d] out a particular religious sect for special treatm ent”). The Court, on the other hand, has upheld a statu te that provided an exem ption from military service for persons who had a conscientious objection to all wars, but not those who objected to only a particular war. Gillette v. United States , 401 U.S. 437 (1971). The Court expl ained that the statute did not discriminate among religions because “no particular sectarian affiliation” was required to qualify for conscientious objector status. Id. at 450-51. “[C]onscientious objector status was available on an equal basis to both the Quaker and the Rom an Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson , 544 U.S. 709, 724 (2005) (upholding RLUIPA against Establishment Clause challenge becaus e it did no t “confer[] . . . privileged status on any particular religiou s sect” or “single[] out [any] bona fide faith for disadvantageous treatment”).
Like the statutes at is sue in Gillette and Cutter, the preventive s ervices coverage regulations do not grant any de nominational preference or ot herwise discriminate among religions. It is of no mom ent that the religious employer exemption and accommodations for eligible organizations apply to some employers but not others. “[T]he Establishment Clause does not prohibit the government from [differentiating between organizations based on their structure and purpose] when granting religious accommodations as long as the distinction[s] drawn by the regulations . . . [are] not ba sed on religious affiliation.” Grote, 914 F. Supp. 2d at 954; accord O’Brien, 894 F. Supp. 2d at 1163; see also, e.g., Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1090-93 (8th Cir. 2000); Droz v. Comm’r of IRS , 48 F.3d 1120, 1124 (9th Cir. 1995); Diocese of Albany, 859 N.E.2d at 468-69. Here, the distinctions established by the regulations are not so drawn.
The regulations’ definitions of religious em ployer and eligible organization “do[] not refer to any particular denom ination.” Grote, 914 F. Supp. 2d at 954. The exemption and accommodations are av ailable on a n equal bas is to o rganizations affiliated with a ny and a ll religions. The regulations, therefore, do not di scriminate among religions in violation of the Establishment Clause. Indeed, every court to have considered an Establishment Clause challenge to the prior version of the regulations has rejected it. See, e.g., O’Brien, 894 F. Supp. 2d at 1162
40

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 54 of 63 PageID 1228
(upholding prior versio n of religio us employer exemption because it did “not differentiate
between religions, but applie[d] equally to all denom inations”); Conestoga, 917 F. Supp. 2d at
416-17 (same); Grote, 914 F. Supp. 2d at 954 (sam e); see also Liberty Univ., Inc. v. Lew , 2013
WL 3470532, at *18 (4th Cir. July 11, 2013) (uphol ding another religious exemption contained in the ACA against an Establishment Clause challenge).23
“As the Suprem e Court has frequently articu lated, there is space betw een the religion
clauses, in which there is ‘room for play in the joints;’ governm ent may encourage the free
exercise of religion by granti ng religious acco mmodations, even if not required by the Free
Exercise Clause, without running afoul of the Establishm ent Clause.” O’Brien, 894 F. Supp. 2d
at 1163 (citations om itted). Accommodations of religion are poss ible because the type of
legislative line-drawing to which th e plaintiffs object in this case is cons titutionally permissible.
Id.; Conestoga, 917 F. Supp. 2d at 417; see, e.g., Walz v. Tax Comm’n of NY , 397 U.S. 664, 666 (1970); Amos, 483 U.S. at 334 (upholding Title VII’s exemption for religious organizations).24
Plaintiffs also claim that th e regulations’ definition of re ligious employer violates the
Establishment Clause b ecause, more than th irty-five years ago, the In ternal Revenue Service
23 Plaintiffs stretch Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), well beyond its facts in suggesting that the case stands for the proposition that the Establishment Clause prohibits the government from distinguishing among different types of organizations that adhere to the same religion. Pls.’ Mem. at 39. The court’s decision in Weaver was limited to “laws that facia lly regulate religious issues,” id. at 1257, and, particularly, those that do so in a way that denies certain religious institutions public benefits that are afforded to all other institutions, whether secular or religious. The court in Weaver said nothing about the constitutionality of exem ptions from generally applicable laws that are designed to accommodate religion, as opposed to discriminate against religion. A requirement that any religious exemption that the government creates must extend to all organizations—no matter their structure or purpose—would severely hamper the government’s ability to accommodate religion. See Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334 (1987) (“There is ample room under the Establishment Clause for ‘benevolent’ neutrality which will permit religious exercise to exist without sponsorship and without interference.”); Diocese of Albany, 859 N.E.2d at 464 (“To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions – and thus to restrict, rather than promote, freedom of religion.”). And the manner in which the law at issue in Weaver was ad ministered required the government to make intrusive inquiries into a scho ol’s religious beliefs and practices b y, for example, reading syllabi to determine if a school’s theology courses were likely to convince students of religious truths. See 534 F.3d at 126 1-62. The religious employer exemption requires no such inquiry. Qualification for the exemption does not require the government to make any determination, much less an unconstitutionally intrusive one.
24 Even if th e regulations discriminate among religions (and they do not), they are valid under the Establishment Clause, because they satisfy strict scrutiny. See supra; Larson, 456 U.S. at 251-52.
41

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 55 of 63 PageID 1229
(IRS) developed a non-exhaustive list of four teen facts and circum stances that m ay be considered, in addition to “any other fact s and circumstances which m ay bear upon the organization’s claim for church status,” in assessing whether an org anization is a church. See Found. of Human Understanding v. Comm’r of IRS , 88 T.C. 1341, 1357-58 (1987); Internal Revenue Manual (IRM) 7.26.2.2.4. Although plaintiffs do not appear to have ever before challenged the constitutionality of this non-exhaustive list, they now contend that it acts to require the government to make impermissible “judgments regarding religious beliefs, practices, and organizational structure.” Pls.’ Mem. at 42. This claim fails for numerous reasons.
As an initial matter, the claim is not ripe an d therefore should be dismissed for lack of jurisdiction. The non-exhaustive list that plaintiffs seek to challenge is no t set out in any statute, regulation, or other binding source of law. It is instead contained in the IRM, which serves as a source of guidance for the internal adm inistration of the IRS and is not binding on the IRS or courts. United States v. Will, 671 F.2d 963, 967 (6th Cir. 1982); Capital Fed. Sav. & Loan Ass’n v. Comm’r of Interna l Revenue, 96 T.C. 204, 216-17 (1991). A party can challenge such guidance “only if and when the directive has been applied specifically to them .” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987); see also, e.g., Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Eng’rs , 335 F.3d 607, 619 (7th Cir. 2003) (concluding general statement of policy was not ripe for review). Plaintiffs do not challenge any determination by the IRS that was based on this IRM provision. Becau se defendants have not applied a sim ilar nonexhaustive list of facts and circumstances to plaintiffs, plaintiffs’ challenge is not ripe.
Indeed, qualification for the religious employer exemption do es not require the government to m ake any determ ination, whether as a result of the application of the nonexhaustive list or otherwise. If an organization “is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Inte rnal Revenue Code of 1986, as amended,” it qualifies for the exem ption, without any governm ent action whatsoever. 45 C.F.R. § 147.131(a). Plaintiffs, moreover, have no difficulty determining whether they qualify for the exemption. The non-diocese plaintiffs alle ge that they do not qualify for the exem ption,
42

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 56 of 63 PageID 1230
Am. Compl. ¶ 10, while the Diocese allege s that it does qualify for the exemption, id. ¶ 14. Any claim—which plaintiffs do not in fa ct make—that the government will dispute th ese allegations and therefore need to undertake any sort of intr usive inquiry into whether plaintiffs qualify for the exemption is entirely speculative and thus unripe for this reason as well.
Finally, even assuming plaintiffs could m ount a facial challenge to a non-exhaustive list of facts and circumstances that the defendant agencies have never applied to plaintiffs, any such challenge would be m eritless. Any intera ction between the g overnment and religio us organizations that m ay be necess ary to enforc e the religious em ployer exemption is not so “comprehensive,” Lemon v. Kurtzman , 403 U.S. 602, 619 (1971), or “pervasive,” Agostini v. Felton, 521 U.S. 203, 233 (1997) (quotations o mitted), as to result in excessive entanglem ent. The Supreme Court has upheld law s that require government monitoring that is m ore onerous than any monitoring that m ay be required to enforce the religious em ployer exemption. See Bowen v. Kendrick , 487 U.S. 589, 615-617 (1988) (no ex cessive entanglement where the government reviewed and m onitored programs and materials); Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 764–765 (1976) (no excessive en tanglement where the state conducted annual audits); see also United States v. Corum, 362 F.3d 489, 496 (8th Cir. 2004). And every court to address the issue upheld the prior version of the relig ious employer exemption, which contained the sam e requirement that the o rganization be one that is r eferred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue C ode of 1986, as am ended, against an entanglement challenge. See Conestoga, 917 F. Supp. 2d at 417; O’Brien, 894 F. Supp. 2d at 1164-65; Geneva Coll. v. Sebelius , 919 F. Supp. 2d at 30-40, at *28. 25 For all of these reasons, plaintiffs’ Establishment Clause claim—Count V of the Amended Complaint—fails.
25 Even if this Court were to conclude that it had jurisdiction to adjudicate a facial c hallenge to the non-exhaustive list of facts and circ umstances set fort h in IRM 7.26.2.2 .4 and that such nonbinding guidance violates the Establishment Clause, the remedy would be invalidation of the list, not invalidation of the contraceptive coverage requirement or the religious employer exemption. The regulations would survive, with the religious employer exemption being available to any organization that is organized and operates as a n onprofit entity and is a church, integrated auxiliary of a church, convention or association of churches, or the exclusively religious activities of any religious order, as those terms are specifically defined under section 6033 or commonly understood.
43

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 57 of 63 PageID 1231
E. The Regulations Do Not Interfere With Church Governance Plaintiffs also assert th at, by allegedly requiring plaintiffs to facilitate practices in violation of their religious beli efs, the regulations in terfere with p laintiffs’ “internal church governance” in violation of the Religion Clauses. See Pls.’ Mem. at 42-43; see also Am. Compl. ¶¶ 240-55 (Count VI). But that is m erely a restatement of plaintiffs’ subs tantial burden theory, which fails for reasons explained already. Indeed, the lone case ci ted by plaintiffs on this point, Hosanna-Tabor Evangelical Lutheran Church & School v. E .E.O.C., 132 S. Ct. 694 (2012), is inapposite. In Hosanna-Tabor, the Supreme Court held that allowing a minister employee to sue his or her church em ployer under the Americans with Disabilities Act—thereby interfering with “a church’s ability to select its own ministers”—violates the Free Exercise and Establishm ent Clauses. Id. at 704, 706. But this case is not about the se lection of clergy, nor any other m atters of church governance apart from plaintiffs’ religious objecti on to providing contraceptive coverage (which, again, is subsumed by plaintiffs’ substantial burden argument). Nor is this case about any law that regulates the structure of the church—plaintiffs m ay choose whatever organizational structure they wish. Thus, Plai ntiffs have shown no likelihood of success on Count VI of their complaint, and that claim should be dismissed or summary judgment granted to defendants. F. Plaintiffs’ APA Claim Fails Plaintiffs contend the regul ations violate the APA becau se they co nflict with two provisions of federal law: the W eldon Amendment to the Consolidated Appropriations Act of 2012, and a provision of the ACA pertaining to student health insurance plans, 42 U.S.C. § 18118(c). First, plaintiffs appear to reason that, because the preventiv e services cov erage regulations require group health plans to cover emergency contraception, such as P lan B, they require plaintiffs to provide cove rage for abortions in violation of federal law. But plain tiffs’ premise that the contraceptive coverage regulati ons require abortion coverage is fundam entally incorrect. The regulations do not require that any health plan cover abortion at all, much less as a
44

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 58 of 63 PageID 1232

preventive service. The governm ent has made clear that the preventive services covered by the regulations do not include abortifacient drugs. 26 Although plaintiffs are certainly entitled to

believe that em ergency contraceptives and certain IUDs are abortif acient drugs or cause

abortions, neither the government nor this Court is required to accept that characterization, which

is inconsistent with th e FDA’s scientif ic assessment and with f ederal law. W hile plaintiffs’

religious beliefs m ay define abortion m ore broadly than federal law, statutory interpretation

requires that terms be construed as a m atter of law and not in acco rdance with an y particular

individual’s personal views or beliefs. E.g., GEICO v. Benton , 859 F .2d 1147, 1149 (3d Cir.

1988).

In recommending what contraceptive services should be covered by health plans w ithout

cost-sharing, the IOM Report iden tified the contraceptives that have been approved by the FDA

as safe and effective. See IOM R EP. at 10, AR at 308. And the list of FDA-approved

contraceptives includes emergency contraceptives such as Plan B. See id. at 105, AR at 403. The

basis for the inclusion of such drugs among safe and effective means of contraception dates back

to 1997, when the FDA first explained why Plan B a nd similar drugs act as contraceptives rather

than abortifacients. See Prescription Drug Products; Certain Co mbined Oral Contra for Use as

Postcoital Emergency Contraception, 62 Fe d. Reg. 8610, 8611 (Feb. 25, 1997); 45 C.F.R.

§ 46.202(f). In light of this conclus ion by the F DA, HHS informed Title X grantees, which are

required to offer a range of acceptable and e ffective family planning methods—and, except

under limited circumstances, may not offer abortion—that they “should consider the availability

of emergency contraception the same as any othe r method which has been established as safe

and effective.” Office of Populati

on Affairs, Mem orandum (Apr. 23, 1997),

http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Sept. 11, 2013); see also 42 U.S.C.

§§ 300, 300a-6. Thus, the regulations are consistent with over a decade of regulatory policy and

26 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited Sept. 11, 2013); see also IOM REP. at 22 ( recognizing that abortion services are outsi de the scope of recommendations), AR at 320.
45

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 59 of 63 PageID 1233

practice and thus cannot be deem ed contrary to any law de aling with abortion. See Bhd. of R.R.

Signalmen v. Surface Transp. Bd. , 638 F.3d 807, 815 (D.C. Cir. deference to an agency’s longstanding interpretation).27

2011) (giving particular

Second, plaintiffs contend that the contraceptiv e coverage requirement is in conflict with

another provision of the ACA that states that “[ n]othing in this title (o r an amendment made by

this title) shall be construed to p rohibit an in stitution of higher education . . . from offering a

student health insurance plan, to th e extent that such requirement is otherwise permitted under

applicable Federal, State or local law.” 42 U.S.C. § 18118(c). But that provision is not implicated

here. In issuing regulations c onsistent with 42 U.S.C. § 18118(c), HHS explained that the

purpose of this provision is to “render certain requirements of the [Public Health Services] Act

and the Affordable Care Act as ina pplicable to student health insuranc e coverage, given their

unique characteristics.” 76 Fed. Reg. 7767, 7768 (F eb. 11, 2011). As such, HHS identified those

provisions of the ACA that, were they applied to student hea lth insurance coverage, “would

effectively prohibit institutions of higher educat ion from being able to offer these plans.” Id. at

7769. The provisions identified by the ag ency were those that w ould be fundamentally

incompatible with the very concept of a student heal th plan—for example, provisions of the

ACA that, if made applicable to s tudent health plans, would have allo wed former students to

remain indefinitely in the plan after leaving the university, or allowed non-students to enroll in

the plan. The contraceptive coverage requirement is not such a prov ision. As a gen eral matter,

there is no reason that a student health plan co uld not cover contracep tive services. W hile the

University of Dallas might choose not to offe r a student health plan in light of its religious

objections to the contraceptive coverage requ irement, the challenged regulations do not prohibit

them from offering such a plan.

27 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of cont raceptive services has neve r been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as th e morning-after pill. . . . [U]nd er the current FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”).
46

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 60 of 63 PageID 1234
Thus, because the challenged regulations are not contrary to law, Count VII of the Amended Complaint should be dismissed or summary judgment granted to defendants.
III. THE UNIVERSITY OF DALLAS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOUL D INJURE THE GOVERNME NT AND THE PUBLIC “The loss of First Am endment freedoms, for even m inimal periods of tim e,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Even assuming arguendo that sam e rule applies to a st atutory claim under RFRA, plaintiffs have not shown that the challenged regula tions violate their First Amendm ent or RFRA rights, so there has been no “loss of First Am endment freedoms” for any period of time, id. In this respect, the merits and irreparable injury prongs of the prel iminary injunction analysis merge together, and plaintiffs cannot show irreparable injury w ithout also sho wing a likelihood of success on th e merits, which they cannot do. See McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012).
As to the final two preliminary injunction factors—the balance of equities and the public interest—“there is inherent harm to an agency in preventing it f rom enforcing regulations that Congress found it in the public interest to dire ct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also C onnection Distrib. Co. v. Reno , 154 F.3d 281, 296 (6th Cir. 1998). Enjoin ing the preventive services c overage regulations as to the University would undermine the government’s ability to achieve Congress’ s goals of improving the health of women and newborn children and e qualizing the coverage of preventive services for women and men.28
It would also be contrary to the public in terest to deny the Univer sity of Dallas’s employees (and their f amilies) the benefits of the preventive services coverage regulations. See
28 Plaintiffs note that defendants consented to preliminary injunctions in a few cases involving for-profit companies, see Pls.’ Mem. at 47; but defendants’ consent in those cases was nothing more than an effort to conserve judicial and governmental resources. As pre viously explained, see supra note 6, those cases were in the Se venth, Eighth a nd D.C. Circuits, and they were filed after motions panels had preliminary enjoined the regulations pending appeal in similar cases. The g overnment continues to oppose preliminary injunctions in other circuits, and opposes in all circuits preliminary injunctions sought by non-profit entities as to the regulations challenged in this case.
47

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 61 of 63 PageID 1235

Weinberger v. Romero-Barcelo , 456 U.S. 305, 312-13 (1982) (“[C]ourts . . . should pay

particular regard for the public consequences in e mploying the extraordinary rem edy of

injunction.”). Many of the University of Dallas’ s employees may not share plaintiffs’ religious

beliefs. Those employees should not be deprived of the benefits of payments provided by a third

party that is not their employer for the full ra nge of FDA- approved contraceptive services, as

prescribed by a health care provider, on the basi s of their employers’ religious objection to those

services. Many women do not use contraceptive se rvices because they are not covered by their

health plan or require costly copaym ents, coinsurance, or deductibles. IOM R EP. at 19-20, 109,

AR at 317-18, 407; 77 Fed. Reg. at 8727, AR at 214; 78 F ed. Reg. at 39,887, AR at 19. As a

result, in many cases, both wom en and developing fetuses suffer negative health consequences.

See IOM REP. at 20, 102-04, AR at 318, 400-02; 77 Fed. Reg. at 8728, A R at 215. And wom en

are put at a com petitive disadvantage due to th eir lost productivity and the disp roportionate

financial burden they bear in regard to preventive health services. 155 Cong. Rec. S12106-02,

S12114 (daily ed. Dec. 2, 2009); see also IOM REP. at 20, AR at 318.

Enjoining defendants from enforcing, as to the University of Dallas, the preventive

services coverage regulations—the purpose of wh ich is to eliminate these burdens, 75 Fed. Reg.

at 41,733, AR at 233; see also 77 Fed. Reg. at 8728, AR at 215—woul d thus inflict a very real

harm on the public and, in particular, a readily identifiable group of individuals. See Stormans,

Inc. v. Selecky , 586 F.3d 1109, 1139 (9th Cir. 2009). The University of Dallas em

ploys

approximately 350 people who are eligible for be nefits, Am. Compl. ¶¶ 79, and the scope of its

health plan additionally include those em ployees’ covered dependent s. Accordingly, even

assuming the University of Dallas were likely to succeed on the m erits (which it is not for the

reasons explained above), any pot ential harm to the University of Dallas resulting from its

offense at a third party providing paym ent for contraceptive services at no cost to, and with no

administration by, the University of Dallas would be outweighe d by the significant harm an

injunction would cause these employees and their families.

48

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 62 of 63 PageID 1236

CONCLUSION For the foregoing reasons, defenda nts respectfully ask that the Court deny plaintiffs’ motion for a prelim inary injunction, and grant defendants’ motion to dism iss or, in the alternative, for summary judgment on all of plaintiffs’ claims. Respectfully submitted this 5th day of November, 2013,

STUART F. DELERY Assistant Attorney General

United

SARAH R. SALDANA States Attorney

JENNIFER

RICKETTS Director

SHEILA Deputy

M. LIEBER Director

BRADLEY Trial United Civil

/s/ Bradley P. Humphreys P. HUMPHREYS (VA Bar No. 83212)
Attorney States Department of Justice
Division, Federal Programs Branch 20 Massachusetts Avenue N.W., Room 7219 Washington, D.C. 20530 Tel: (202) 514-3367 Fax: (202) 616-8470 Email: Bradley.P.Humphreys@usdoj.gov

Attorneys for Defendants

49

Case 4:12-cv-00314-Y Document 76 Filed 11/05/13 Page 63 of 63 PageID 1237
CERTIFICATE OF SERVICE I hereby certify that on Nove mber 5, 2013, I el ectronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS

 
 Case 4:12-cv-00314-Y Document 99 Filed 12/31/13 Page 1 of 5 PageID 2155

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROMAN CATHOLIC DIOCESE OF FORT WORTH, et al.
VS.
KATHLEEN SEBELIUS, et al.

§ § § § CIVIL ACTION NO. 4:12-CV-314-Y § §

ORDER GRANTING PRELIMINARY INJUNCTION

Before the Court is the motion for a preliminary injunction of

plaintiff University of Dallas (doc. 70).1 After review, the Court

GRANTS the motion.

I. BACKGROUND

The University of Dallas (“the University”) is a private, co-

educational, liberal-arts school affiliated with the Catholic

Church and located in Irving, Texas. The University provides

health insurance to its benefits-eligible employees through a

healthcare consortium called Collegiate Association Resource of the

Southwest (“CARES”). Consistent with Catholic doctrine, the CARES

plan offered by the University does not cover contraceptives,

abortion-inducing products, or sterilization.

Because the CARES plan year begins January 1, 2014, the

University must be prepared to comply with the Patient Protection

and Affordable Care Act (“the ACA”). Under the ACA, employer group

1 The remaining plaintiffs in this cause have also sought injunctive relief, but the University is the only plaintiff that will be immedi ately affected by the challenged provision of the Affordable Care Act. Accordingly, the Court ad dresses only the University’s motion for injunctive relief and reserves its ruling on the remaining plaintiffs’ motions for a later date.

Case 4:12-cv-00314-Y Document 99 Filed 12/31/13 Page 2 of 5 PageID 2156
health plans, such as the one offered by the University, must include insurance coverage for women’s “preventative care and screenings.” 42 U.S.C. § 300gg-13(a)(4). Congress did not define “preventative care”; instead, it delegated the duty for defining the term to the Department of Health and Human Services (“HHS”). HHS, in turn, tasked the Institute of Medicine (“IOM”) with developing guidelines for preventative services for women. IOM recommended that women’s preventative care include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” HHS adopted the IOM’s recommendations.
Under the adopted definition of preventative care, the ACA requires health plans to cover contraception, sterilization, and related counseling services (“the contraceptive mandate” or “the mandate”). Provision of these types of care are contrary to the teachings of the Catholic Church.
Although the ACA exempts certain “religious employers” from the contraceptive mandate, the exemption applies mainly to churches and would not provide the University with any relief. The government has also created an “accommodation” for “eligible organizations” that object to the mandate on religious grounds but do not qualify for an exemption. Under this accommodation, a religious organization submits a form to its insurer, or if it is
2

Case 4:12-cv-00314-Y Document 99 Filed 12/31/13 Page 3 of 5 PageID 2157
self-insured, to its third-party administrator (“TPA”), certifying that it is an eligible organization and that it objects to the contraceptive mandate on religious grounds. The insurer or TPA is then required to provide contraceptive coverage without charging the eligible organization any additional fees or premiums. Coverage of Certain Preventative Services Under the Affordable Care Act, 78 Fed. Reg. 39,870-01, 39,879-80. Accordingly, an objecting religious organization that self-certifies is relieved of its obligation “to contract, arrange, pay, or refer for contraceptive coverage.” 78 Fed. Reg. at 39,874.
While the University would qualify for the accommodation, it contends that the self-certification process effectively requires it to facilitate the provision of products and services that are contrary to its sincerely held religious beliefs. Based on this contention, the University asserts claims for violations of the Religious Freedom Restoration Act (“RFRA”), the First Amendment, and the Administrative Procedure Act (“APA”). Because the University will be required to comply with the contraceptive mandate effective January 1, 2014, it seeks a preliminary injunction from this Court, exempting it from compliance with the contraceptive mandate.
II. LEGAL STANDARD Before this Court may grant the University a preliminary injunction, the University must demonstrate:
3

Case 4:12-cv-00314-Y Document 99 Filed 12/31/13 Page 4 of 5 PageID 2158
(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest. Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). The Fifth Circuit has counseled that “a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion’ on all four requirements.” Bluefield Water Ass’n, Inc. v. City of Starkville, 577 F.3d 250, 253 (5th Cir. 2009) (quotingLake Charles Diesel, Inc. v. Gen. Motors Corp. , 328 F.3d 192, 196 (5th Cir. 2003)). III. ANALYSIS Several federal courts have considered the issue of whether the contraceptive mandate offends the RFRA, even where the entity claiming a violation of its religious beliefs is eligible for the ACA’s accommodation. Based on this Court’s review of those decisions, there is no clear consensus. The Fifth Circuit has yet to address the issue. The Court is persuaded by a recent decision handed down in the Southern District of Texas, which involved plaintiffs similarly situated to the University of Dallas. E. Texas Baptist Univ. v. Sebelius, No. H-12-3009, 2013 WL 6838893 (S.D. Tex. Dec. 27, 2013). In that case, the Court granted injunctive relief based, in part,
4

Case 4:12-cv-00314-Y Document 99 Filed 12/31/13 Page 5 of 5 PageID 2159
on its determination that “the accommodation’s imposition on the plaintiffs of a required act--self-certification--that they find religiously offensive, coerced or pressured by exposure to punitive fines, meets the substantial burden test.” Id. at *21.
This Court adopts the thoughtful analysis set out by Judge Rosenthal in her detailed and well-reasoned opinion. Accordingly, the University’s motion for injunctive relief is GRANTED. The government is hereby ENJOINED from enforcing, as to the University of Dallas, the requirements set out in 42 U.S.C. § 300gg-13(a)(4), as well as any related fines and penalties, until further order of this Court.
SIGNED December 31, 2013. ____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE
5

 
 Case 4:12-cv-00314-Y Document 102 Filed 04/01/14 Page 1 of 1 PageID 2417

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROMAN CATHOLIC DIOCESE OF FORT WORTH, et al.
VS.
KATHLEEN SEBELIUS, et al.

§ § § § CIVIL ACTION NO. 4:12-CV-314-Y § §

ORDER ADMINISTRATIVELY TERMINATING PENDING MOTIONS

Pending before the Court are Plaintiffs’ motion for summary

judgment (doc. 71) and Defendants’ motion to dismiss or, in the

alternative, for summary judgment (doc. 75). One of the

Plaintiffs, the University of Dallas, also sought a preliminary

injunction, which this Court granted (doc. 99). Defendants have

sought an interlocutory appeal of that order from the Fifth Circuit

(doc. 101).

Because the Fifth Circuit has yet to resolve (or even grant)

the interlocutory appeal, and in an effort to efficiently manage

this Court’s docket, the Court concludes that the best course of

action is to ADMINISTRATIVELY TERMINATE the pending motions in this

case (docs. 71 & 75). Following the resolution of the

interlocutory appeal by the Fifth Circuit, the above motions will

be automatically reinstated on this Court’s docket and ruled upon

in due course.

SIGNED April 1, 2014.

____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE

 
 Case 4:12-cv-00314-Y Document 106 Filed 06/05/14 Page 1 of 2 PageID 2433

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROMAN CATHOLIC DIOCESE OF FORT WORTH, et al.
VS.
KATHLEEN SEBELIUS, et al.

§ § § § CIVIL ACTION NO. 4:12-CV-314-Y § §

ORDER GRANTING PRELIMINARY INJUNCTION

Before the Court is the motion for a preliminary injunction of

Plaintiffs Roman Catholic Diocese of Fort Worth; Our Lady of Victory

Catholic School; and Catholic Charities, Diocese of Fort Worth, Inc.

(doc. 103). After review of the motion, response, and reply, the

Court GRANTS the motion.

I. BACKGROUND

This case involves a challenge by several entities affiliated

with the Catholic Church to the contraceptive mandate in the

Affordable Care Act (“the ACA”). This Court previously granted

injunctive relief to Plaintiff University of Dallas (“the

University”). The University moved for injunctive relief separately

from the other plaintiffs given that its plan year began January 1,

2014, and it would be required to comply with the contraceptive

mandate first. The remaining Plaintiffs, whose plan years begin this

summer, now seek injunctive relief.

The government has filed an interlocutory appeal of this Court’s

order granting injunctive relief as to the University. The Fifth

Circuit has consolidated the appeal from this case with two other,

Case 4:12-cv-00314-Y Document 106 Filed 06/05/14 Page 2 of 2 PageID 2434
similar appeals from the Eastern and Southern Districts of Texas.1 As of the date of this order, however, briefing has not been completed and the Fifth Circuit is not expected to rule in time for Plaintiffs to avoid injury. Furthermore, the Court is not persuaded that the remaining Plaintiffs are any less entitled to injunctive relief than the University.
Accordingly, the motion for injunctive relief of Plaintiffs Roman Catholic Diocese of Fort Worth; Our Lady of Victory Catholic School; and Catholic Charities, Diocese of Fort Worth, Inc., is GRANTED. The government is hereby ENJOINED from enforcing, as to the remaining plaintiffs, the requirements set out in 42 U.S.C. § 300gg-13(a)(4), as well as any related fines and penalties, until further order of this Court.
SIGNED June 5, 2014. ____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE
1 Catholic Diocese of Beaumont v. Kathleen Sebelius, No. 1:13CV-00709; E. Tex. Baptist Univ. v. Sebelius, No. 4:12-CV-03009
2

 
 Case 4:12-cv-00314-Y Document 110 Filed 09/30/14 Page 1 of 1 PageID 2446

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

ROMAN CATHOLIC DIOCESE OF FORT WORTH, et al.
VS.
KATHLEEN SEBELIUS, et al.

§ § § § CIVIL ACTION NO. 4:12-CV-314-Y § §

RULE 54(b) FINAL JUDGMENT

Pursuant to the Stipulation of Dismissal of Plaintiffs Roman

Catholic Diocese of Fort Worth and Our Lady of Victory Catholic

School (doc. 109) and Federal Rule of Civil Procedure

41(a)(1)(A)(ii), these Plaintiffs’ claims against Defendants are

hereby DISMISSED WITHOUT PREJUDICE. Having determined that there

is no just reason for delay, the Court ENTERS this final judgment

under Federal Rule of Civil Procedure 54(b). Attorney’s fees and

costs of court under 28 U.S.C. § 1920 shall be borne by the party

incurring them. Claims of the two remaining Plaintiffs, University

of Dallas and Catholic Charities, Diocese of Fort Worth, Inc., are

not affected by this judgment.

SIGNED September 30, 2014.

____________________________ TERRY R. MEANS UNITED STATES DISTRICT JUDGE

 
 Case 4:12-cv-00314-Y Document 119 Filed 10/07/15 Pager 1 of 4 Pa-ge-I,D,2,4.6_ 8 Case: 14-20112 Document: 00513221757 Page: 4 D te Filed: [10/0~f2016T cou1~1
hOP f HLRN DIS; i~!CT OF TEXAS

0 R\G, r: · l \ 1

\i I

t!
,, '

r:
I\

i j

1- 1r • I I 1-

F"ILED

No. 14-10661

CBLyE_R_K,_ U.S_ . DI_ ST_RICT COUR

Dcput~
CATHOLIC CHARITIES, DIOCESE OF FORT WORTH, INCORPORATED,

Plaintiff-Appellee,

versus

SYLVIA MATHEWS BURWELL, in her official capacity as Secretary of the U.S. Department of Health and Human Services;

THOMAS PEREZ, in his official capacity as Secretary of the U.S. Department of Labor;

JACOB J. LEW, in his official capacity as Secretary, U.S. Department of Treasury;

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES;

UNITED STATES DEPARTMENT OF LABOR;

UNITED STATES DEPARTMENT OF TREASURY,

Defendants-Appellants.

Appeal from the United States District Court
Y for the Northern District of Texas No. 4:12-CV-314 ..-

ORDER: The unopposed motion of the appellees to stay issuance of the mandate
pending the filing of a petition for writ of certiorari is GRANTED.
Is/ Jerry E. Smith JERRY E. SMITH United States Circuit Judge
4

Case 4:12-cv-00314-Y Document 119 Filed 10/07/15 Page 2 of 4 PageID 2469 Case: 14-20112 Document: 00513221757 Page: 1 Date Filed: 10/07/2015
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 14-20112
EAST TEXAS BAPTIST UNIVERSITY; HOUSTON BAPTIST UNIVERSITY, Plaintiffs-Appellees,
WESTMINSTER THEOLOGICAL SEMINARY, Intervenor Plaintiff-Appellee,
versus SYLVIA MATHEWS BURWELL, in her official capacity as
Secretary of the United States Department of Health and Human Services; THOMAS PEREZ, in his official capacity as
Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as
Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF TREASURY,
Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Texas No. 4:12-CV-3009
***************
1

Case 4:12-cv-00314-Y Document 119 Filed 10/07/15 Page 3 of 4 PageID 2470 Case: 14-20112 Document: 00513221757 Page: 2 Date Filed: 10/07/2015
No. 14-10241
UNIVERSITY OF DALLAS, Plaintiff-Appellee,
versus SYLVIA MATHEWS BURWELL, in her official capacity as
Secretary of the United States Department of Health and Human Services; THOMAS PEREZ, in his official capacity as
Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as
Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF TREASURY,
Defendants-Appellants.
Appeal from the United States District Court for the Northern District of Texas No. 4:12-CV-314
***************
2

Case 4:12-cv-00314-Y Document 119 Filed 10/07/15 Page 4 of 4 PageID 2471 Case: 14-20112 Document: 00513221757 Page: 3 Date Filed: 10/07/2015
No. 14-40212
CATHOLIC DIOCESE OF BEAUMONT; CATHOLIC CHARITIES OF SOUTHEAST TEXAS, INCORPORATED,
Plaintiffs-Appellees, versus SYLVIA MATHEWS BURWELL, in her official capacity as
Secretary of the United States Department of Health and Human Services; THOMAS PEREZ, in his official capacity as
Secretary of the United States Department of Labor; JACOB J. LEW, in his official capacity as
Secretary of the United States Department of Treasury; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF LABOR; UNITED STATES DEPARTMENT OF TREASURY,
Defendants-Appellants.
Appeal from the United States District Court for the Eastern District of Texas No. 1:13-CV-709
***************
3

 
 136 S.Ct. 2008 (2016)
UNIVERSITY OF DALLAS, et al., petitioners, v.
Sylvia BURWELL, Secretary of Health and Human Services, et al.
No. 15-834.
Supreme Court of United States.
May 16, 2016.
On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit. Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Fifth Circuit in light of Zubik v. Burwell, 578 U.S. ___ (2016). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners' health plans `obtain, without cost, the full range of FDA approved contraceptives.' Wheaton College v. Burwell, 573 U.S. ___, ___ (2014) (slip op., at 1). Through this litigation, petitioners have made the Government aware of their view that they meet `the requirements for exemption from the contraceptive coverage requirement on religious grounds.' Id., at ___ (slip op., at 2). Nothing in the Zubik opinion, or in the opinions or orders of the courts below, `precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage' going forward. Ibid. Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.
Justice SOTOMAYOR, with whom Justice GINSBURG joins, concurs in the decision to grant, vacate, and remand in this case for the reasons expressed in Zubik v. Burwell, 578 U.S. ___ (2016) (Sotomayor, J., concurring).

 
 793 F.3d 449 (2015)
EAST TEXAS BAPTIST UNIVERSITY; Houston Baptist University, Plaintiffs-Appellees,
Westminster Theological Seminary, Intervenor Plaintiff-Appellee, v.
Sylvia Mathews BURWELL, in her official capacity as Secretary of the United States Department of Health and Human Services; Thomas Perez,
in his official capacity as Secretary of the United States Department of Labor; Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury; United States Department of Health and
Human Services; United States Department of Labor; United States Department of Treasury, Defendants-Appellants. University of Dallas, Plaintiff-Appellee, v.
Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services; Thomas Perez,
in his official capacity as Secretary of the United States Department of Labor; Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury; United States Department of Health And
Human Services; United States Department of Labor; United States Department of Treasury, Defendants-Appellants.
Catholic Diocese of Beaumont; Catholic Charities of Southeast Texas, Incorporated, Plaintiffs-Appellees, v.
Sylvia Mathews Burwell, in her official capacity as Secretary of the United States Department of Health and Human Services; Thomas Perez,
in his official capacity as Secretary of the United States Department of Labor; Jacob J. Lew, in his official capacity as Secretary of the United States Department of Treasury; United States Department of Health and
Human Services; United States Department of Labor; United States Department of Treasury, Defendants-Appellants.
Catholic Charities, Diocese Of Fort Worth, Incorporated, PlaintiffAppellee, v.
Sylvia Mathews Burwell, in her official capacity as Secretary of the U.S. Department of Health and Human Services; Thomas Perez, in his
official 450*450 capacity as Secretary of the U.S. Department of Labor;

Jacob J. Lew, in his official capacity as Secretary, U.S. Department of Treasury; United States Department of Health and Human Services;
United States Department of Labor; United States Department of Treasury, Defendants-Appellants.
Nos. 14-20112, 14-10661, 14-10241, 14-40212.
United States Court of Appeals, Fifth Circuit.
June 22, 2015.
452*452 Eric C. Rassbach (argued), Diana Marie Verm, Washington, DC, Scott A. keller, Solicitor, Austin, TX, Basheer Youssef Ghorayeb, Thomas F. Allen, Jr. (argued), John Walter Crumley, Esq., Natalia Oehninger Delaune, Tamara Marinkovic, Terence M. Murphy, Randal G. Cashiola, Dallas, TX, Fort Worth, TX, for Plaintiff-Appellee.
Kenneth Reed Wynne, Esq. (argued), Wynne & Wynne, L.L.P., Houston, TX, for Intervenor Plaintiff-Appellee.
Adam Craig Jed (argued), Megan Barbero, Esq., Alisa Beth Klein, Esq., Jacek Pruski, Bradley Philip Humphreys, Patrick George Nemeroff, Washington, DC, Joshua Marc Salzman, U.S. Department of Justice, Washington, DC, Daniel David Hu, Asst. U.S. Atty., Houston, TX, for Defendant-Appellant.
Ayesha N. Khan, Esq., Mailee Rebecca Smith, Esq., Washington, DC, Deborah Jane Dewart, Attorney, Swansboro, NC, for Amicus Curiae.
Before REAVLEY, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In these consolidated appeals, religious organizations challenge, under the Religious Freedom Restoration Act ("RFRA"),[1] a requirement that they either offer their employees health insurance that covers certain contraceptive services or submit a form or notification declaring their religious opposition to that coverage. The district courts held that the requirement violates RFRA or, in one case, that the plaintiffs had demonstrated a substantial likelihood of establishing that it does, so they enjoined the government from enforcing it. Because the plaintiffs have not shown and are not likely to show that the requirement substantially burdens their religious exercise under established law, we reverse.
I.
A.

Under the Affordable Care Act ("ACA"),[2] employers with fifty or more full-time employees generally must offer their employees a group health plan[3] that 453*453provides "minimum essential coverage." See 26 U.S.C. §§ 4980H(a), (c)(2), 5000A(f)(2). Plans typically must cover all FDA-approved contraceptive methods and sterilization procedures for women[4] without copayments or deductibles.[5]Two types of plans are automatically exempt from the so-called contraceptive mandate: grandfathered plans, meaning those that have not made certain specified changes since March 2010, see 42 U.S.C. § 18011(a), and plans offered by religious employers, defined by reference to the Tax Code to include mostly churches themselves, as distinguished from associated educational or charitable institutions.[6] An employer that does not comply with these requirements faces draconian penalties: $2,000 per full-time employee per year for not offering a plan at all[7] and $100 per affected individual per day for offering a plan that provides insufficient coverage, 26 U.S.C. § 4980D(a), (b)(1).
An "accommodation" is available to religious entities that do not qualify as religious employers but seek exemption from the mandate. To avail itself of that option, (1) an organization must oppose, on religious grounds, providing coverage for some or all contraceptives; (2) it must be organized as a nonprofit; (3) it must hold itself out as religious; and (4) it must certify that it satisfies the foregoing criteria.[8] It can certify in two ways.
The first way is to complete EBSA[9] Form 700 and send it to its insurer or third-party administrator.[10] The person signing the form must certify that the organization meets the requirements and that the form is believed to be correct.[11]The form requires the name of the organization, the name and title of the person signing it, and contact information. DEP'T OF LABOR, supra note 11, at 1. The second way in which an organization can certify is to submit a notice to the Department of Health and Human Services ("HHS").[12] The notice need not take a particular form but must include the name of the organization; a statement that it opposes, on religious grounds, providing coverage for some or all contraceptives; the name and type of the plan; and the name and contact information of the plan's insurer or third-party administrator, if applicable.[13]
The effect of applying for the accommodation depends on the type of plan and 454*454method of certification. If an employer with an insured plan uses Form 700, the insurer must exclude the objectionable coverage from the plan and provide "separate payments" for contraceptives for plan participants.[14] The insurer may not impose any direct or indirect costs for contraceptives on the employer or participants.[15] In addition, it must send a notice to participants, separately from plan materials, explaining that the employer does not administer or fund contraceptives but that, instead, the insurer provides separate payments.[16] If an employer with an insured plan submits a notice to HHS, then HHS notifies the insurer of its obligations, which are the same as if the employer had used Form 700.[17]
The process for self-insured plans is somewhat different. If an employer with a self-insured plan uses Form 700, the third-party administrator, if there is one, must either provide separate payments (as an insurer would) or arrange for an insurer or other entity to do so. See 29 C.F.R. § 2590.715-2713A(b)(2). Third-party administrators and insurers that pay for contraceptives in this circumstance are eligible for government reimbursement of 115% of their expenses.[18] The prohibition on imposing costs and the notice requirement are the

same as for insured plans.[19] Moreover, the form "shall be an instrument under which the plan is operated, shall be treated as a designation of the third party administrator as the plan administrator under section 3(16) of ERISA for [contraceptives], and shall supersede any earlier designation." Id. § 2510.3-16(b).
If an employer with a self-insured plan submits a notice to HHS, then HHS notifies the Department of Labor, which in turn notifies the third-party administrator of its obligations. See id. § 2590.715-2713A(b)(1)(ii)(B). The result is the same as if the employer had used Form 700, id. § 2590.715-2713A(b)(1)(ii)(B), (2), except that it is the notice from the Department of Labor, instead of Form 700, that is treated as an instrument under which the plan is operated and as designation of the plan administrator, id. § 2510.3-16(b).
B.
The plaintiffs are religious organizations that oppose the use of some or all contraceptives. The sincerity of their beliefs is undisputed. The Dioceses of Fort Worth and Beaumont are automatically exempt from the mandate as religious employers, and the other plaintiffs are eligible for the accommodation.
The plaintiffs in East Texas Baptist University are East Texas Baptist University and Houston Baptist University, which have self-insured plans[20] for their employees, and Westminster Theological Seminary, which offers an insured plan to its employees. Houston Baptist University's 455*455 plan is a church plan, which is exempt from ERISA. The plaintiffs oppose abortion and believe that emergency contraceptives and intrauterine devices, which are included in the contraceptive mandate, can cause abortions. They are unwilling to provide or facilitate access to those products. They sued in the Southern District of Texas, and the court entered partial final judgment[21] and a permanent injunction against the government.
The plaintiffs in University of Dallas[22] are several Catholic organizations. The University of Dallas has a self-insured plan for its employees and an insured plan for its students. The Diocese of Fort Worth provides coverage to its employees through a church plan, and Our Lady of Victory Catholic School offers coverage to its employees through the diocese's plan.[23] Catholic Charities, Diocese of Fort Worth, has an insured plan for its employees. The plaintiffs oppose the use of any contraceptives to prevent pregnancy or induce abortion,[24] and providing or facilitating access to them for those purposes would violate their faith. They sued in the Northern District of Texas, and the court entered preliminary injunctions against the government.
The plaintiffs in Diocese of Beaumont are the Diocese of Beaumont, which provides coverage to its employees through a church plan, and Catholic Charities of Southeast Texas, which offers coverage to its employees through the diocese's plan.[25] Like the plaintiffs in University of Dallas, they oppose the use of any contraceptives to prevent pregnancy or induce abortion, and they object to providing or facilitating access to them for those purposes. They sued in the Eastern District of Texas, and the court entered final judgment and a permanent injunction against the government.

II.
We review a summary judgment de novo. LaBarge Pipe & Steel Co. v. First Bank,550 F.3d 442, 449 (5th Cir. 2008). We review the grant of a preliminary or permanent injunction for abuse of discretion and the underlying legal conclusions de novo.[26]
III.
Under RFRA, the "[g]overnment shall not substantially burden a person's exercise of religion even if the burden 456*456 results from a rule of general applicability" unless "it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(a) to (b). We begin and end our analysis with the substantial-burden prong.[27] The plaintiffs must show that the challenged regulations substantially burden their religious exercise,[28] but they have not done so or, in University of Dallas, have not established a substantial likelihood of doing so. Because their claims fail on the merits, we need not consider the other requirements for an injunction.[29]
A.
A preliminary question—at the heart of this case—is the extent to which the courts defer to a religious objector's view on whether there is a substantial burden. The inquiry has three components: (1) What is the adherent's religious exercise? (2) Does the challenged law pressure him to modify that exercise? (3) Is the penalty for noncompliance substantial? It is well established that the court accepts the objector's answer to the first question upon finding that his beliefs are sincerely held and religious.[30] It is also undeniable that the court evaluates the third question as one of law.[31] Although we have not directly addressed who decides the second question,[32] all of our sister circuits that have considered contraceptivemandate cases have come to the same conclusion: The court makes that decision.[33] We agree.
Two free-exercise cases are especially instructive.[34] In Bowen v. Roy, 476 U.S. 457*457 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), parents challenged the government's use of a Social Security number for their daughter because they believed that the use of the number would "rob her spirit." Id. at 695-97, 106 S.Ct. 2147. The Court ruled for the government, reasoning that the parents were challenging the government's acts, not a burden on them, id. at 699-701, 106 S.Ct. 2147, and that "[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens," id. at 699, 106 S.Ct. 2147. The Court decided for itself whether the policy in question pressured the parents to modify their religious exercise, noting that, although
Roy's religious views may not accept this distinction between individual and governmental conduct[,] [i]t is clear ... that the Free Exercise Clause, and the Constitution generally,

recognize such a distinction; for the adjudication of a constitutional claim, the Constitution, rather than an individual's religion, must supply the frame of reference.
Id. at 701 n. 6, 106 S.Ct. 2147 (citation omitted).
The Court used the same approach in Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). The plaintiffs complained of the government's plan to construct a road and permit logging on federal land, which they had used for religious purposes. Id. at 441-42, 108 S.Ct. 1319. Relying on Roy, the Court rejected their claim. Id. at 447-49, 108 S.Ct. 1319. It accepted the plaintiffs' statement of their religious beliefs, id. at 449-51, 108 S.Ct. 1319, but concluded that the project involved only the government's management of its own property, which did not implicate 458*458 the plaintiffs' constitutional rights, id. at 453, 108 S.Ct. 1319. The Court stressed that, "[w]hatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." Id. at 451, 108 S.Ct. 1319.
In addition, one RFRA case from the District of Columbia Circuit illustrates that the court decides the second question. In Kaemmerling v. Lappin, 553 F.3d 669 (D.C.Cir.2008), an inmate objected to a requirement that he participate in the collection of a tissue sample, which the FBI would use to create a DNA profile, because he opposed on religious grounds the extraction and storage of DNA information. Id. at 673-74. The court ruled for the government. Id. at 686. It "[a]ccept[ed] as true the factual allegations that Kaemmerling's beliefs are sincere and of a religious nature—but not the legal conclusion, cast as a factual allegation, that his religious exercise is substantially burdened." Id. at 679. Applying that rule, it held that his religious exercise was not substantially burdened, because "[t]he extraction and storage of DNA information are entirely activities of the FBI, in which Kaemmerling plays no role and which occur after the BOP has taken his fluid or tissue sample (to which he does not object)." Id.
The Court did not address the issue in Hobby Lobby. There, closely held for-profit corporations challenged the contraceptive mandate based on their owners' religious opposition to some contraceptives. Id. at 2764-66. The corporations were neither automatically exempt from the mandate as religious employers nor eligible for the accommodation; they had to offer insurance that covered contraceptives or face large penalties. Id. at 2775-76. The Court held that the mandate violated RFRA as applied to the corporations. Id. at 2785. The substantial-burden analysis addressed only the first and third questions. The Court rejected the government's theory "that the connection between what the objecting parties must do (provide health-insurance coverage for [contraceptives]) and the end that they find to be morally wrong (destruction of an embryo) is simply too attenuated," id. at 2777, explaining that drawing the line between acceptable and unacceptable levels of involvement was the owners' prerogative, id. at 2778-79. In doing so, the Court reaffirmed that courts defer to the objector's description of his religious exercise upon finding that his beliefs are sincerely held and religious. And the Court analyzed the substantiality of the penalties for noncompliance itself, rather than automatically accepting the corporations' position. Id. at 2775-77.

But the Court said nothing about the second question. It had no reason to, because there was no doubt that imposing large penalties for not offering insurance that covered contraceptives pressured the corporations to facilitate the use of contraceptives.
In the absence of further guidance from the Supreme Court, we are bound to follow Roy and Northwest Indian Cemetery by deciding, as a question of law, whether the challenged law pressures the objector to modify his religious exercise. The other circuits' decisions confirm the continued vitality of that approach.[35]
B. 459*459
Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties. Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise.[36]
First, the plaintiffs claim that their completion of Form 700 or submission of a notice to HHS will authorize or trigger payments for contraceptives. Not so. The ACA already requires contraceptive coverage: "A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for ... with respect to women, such additional preventive care ... as provided for in comprehensive guidelines" promulgated by HHS, 42 U.S.C. § 300gg-13(a)(4), which includes contraceptives.[37] That provision expressly requires insurers to offer coverage. And although it does not specifically mention third-party administrators, they administer "group health plan[s]," which must include coverage. Nothing suggests the insurers' or third-party administrators' obligations would be waived if the plaintiffs refused to apply for the accommodation. Accordingly, the plaintiffs' completion of Form 700 or submission of a notice to HHS does not authorize or trigger payments for contraceptives, because the plaintiffs cannot authorize or trigger what others are already required by law to do.[38]
The plaintiffs offer two variations of that theory, but those are equally unconvincing. The plaintiffs assert that their listing the names and contact information of their insurers and third-party administrators 460*460 will make it easier for the government to inform those entities of their obligations. It will, but that does not mean the plaintiffs' religious exercise is burdened. Without the accommodation, the plaintiffs would have to offer a plan that covered contraceptives,[39] so the effect of the government's communications with the insurers and third-party administrators is to shift the burden to those entities. Providing the names and contact information facilitates only the plaintiffs' exemption, not contraceptive coverage.
Separately, the self-insured plaintiffs contend that their completion of Form 700 or submission of a notice to HHS will make their third-party administrators eligible for the government's reimbursement. Again, it will,[40] but that does not mean the plaintiffs' religious exercise is burdened.
For the insured plans, the insurers will not lose money by paying for contraceptives, because the savings on pregnancy care at least are expected to equal the costs of

contraceptives.[41] There is a potential problem for the self-insured plans, though: The thirdparty administrators do not bear the risk of claims, so they will not realize any savings on pregnancy care. The regulations prohibit passing on the costs of contraceptives, 29 C.F.R. § 2590.715-2713A(b)(2), but in an efficient market, the third-party administrators would be unable to avoid doing so without additional revenue. The reimbursement is the government's attempt to solve the problem by giving the third-party administrators additional money to cover the costs of contraceptives. Assuming the amount is sufficient, the reimbursement is what will allow the self-insured plaintiffs to avoid paying for contraceptives.
Second, the plaintiffs urge that the accommodation uses their plans as vehicles for payments for contraceptives. But that is just what the regulations prohibit. Once the plaintiffs apply for the accommodation, the insurers may not include contraceptive coverage in the plans.[42] The insurers and third-party administrators may not impose any direct or indirect costs for contraceptives on the plaintiffs[43]; they may not send materials about contraceptives together with plan materials[44]; in fact, they must send plan participants a notice explaining that the plaintiffs do not administer or fund contraceptives.[45] The payments for contraceptives are completely independent of the plans.[46]
Third, the plaintiffs theorize that the requirement that they offer their employees a group health plan pressures them to 461*461 authorize or facilitate the use of contraceptives. They must contract with the insurers and third-party administrators to offer a plan, and those entities pay for contraceptives. In the plaintiffs' view, the insurers and third-party administrators would not do so absent the contracts, so the contracts facilitate the use of contraceptives.
The plaintiffs misunderstand the role of the contracts. Under the accommodation, the contracts are solely for services to which the plaintiffs do not object; the contracts do not provide for the insurers and third-party administrators to cover contraceptives, do not make it easier for those entities to pay for contraceptives, and do not imply endorsement of contraceptives. See supra notes 42-46 and accompanying text. Instead, the plaintiffs are excluding contraceptive coverage from their plans and expressing their disapproval of it, but the government is requiring the insurers and third-party administrators to offer it—separately from the plans—despite the plaintiffs' opposition. The plaintiffs' religious beliefs forbid them from providing or facilitating access to contraceptives, but the requirement that they enter into the contracts does not force them to do so. The acts that violate their faith are the acts of the government, insurers, and third-party administrators, but RFRA does not entitle them to block third parties from engaging in conduct with which they disagree.[47]
A hypothetical illustrates the breadth of the plaintiffs' position. Suppose a person needs a passport for an upcoming trip. She fills out the application, but as she is about to mail it, she learns that the State Department will assign her a number when it approves her request. She opposes, on religious grounds, the use of a number to identify her, see generally Roy, 476 U.S. at 695-97, 106 S.Ct. 2147, as well as any act that would facilitate the use of a number, so she sues under RFRA.
That case is indistinguishable from the one at bar. The objector does not oppose completing the application but only the State Department's assigning her a number in response even

though she need not help the department do so. The idea that she could force the department to justify, under strict scrutiny, its application requirement or use of a number is unreasonable. Yet the plaintiffs here are making the same type of claim. Accepting such claims could subject a wide range of federal programs to strict scrutiny. Perhaps an applicant for Social Security disability benefits disapproves of working on Sundays and is unwilling to assist others in doing so. He could challenge a requirement that he use a form to apply because the Social Security Administration might process it on a Sunday.[48] Or maybe a pacifist refuses to complete a form to indicate his beliefs because that information would enable the Selective Service to locate eligible draftees more quickly.[49] The possibilities 462*462 are endless, but we doubt Congress, in enacting RFRA, intended for them to be.
The Court did not resolve the issue in Hobby Lobby but, instead, rejected the government's notion that there was no substantial burden, because the intervening acts of third parties, such as employees' decisions to use contraceptives, made the connection between the plaintiffs' providing contraceptive coverage and the destruction of an embryo too attenuated. 134 S.Ct. at 2777-79. The distinction between that case and the instant one is that the regulations compelled the Hobby Lobby plaintiffs to participate in providing contraceptives, albeit in an indirect way. What the regulations require of the plaintiffs here has nothing to do with providing contraceptives.
The difference is not just that there are more links in the causal chain here than in Hobby Lobby—a difference that would not change the outcome, given that we accept an adherent's judgment as to how much separation is enough.[50] It is also that the type of compelled act is quite different—the act at issue in this case is not one that authorizes or facilitates the use of contraceptives.
The Hobby Lobby Court did not consider this type of situation and actually suggested in dictum that the accommodation does not burden religious exercise: The majority noted that "HHS has effectively exempted certain religious nonprofit organizations" through the accommodation, id. at 2763, and the concurrence observed that "the accommodation equally furthers the Government's interest but does not impinge on the plaintiffs' religious beliefs," id. at 2786 (Kennedy, J., concurring).[51] Thus, Hobby Lobby is of no help to the plaintiffs' position, and the requirement to offer a group health plan does not burden their religious exercise.
Fourth, the self-insured plaintiffs postulate that they will be required to pay for contraceptives despite the regulations to the contrary. They say the government lacks the authority under ERISA to prohibit third-party administrators from passing on the costs, insurers are unlikely to work with the third-party administrators because of the small amounts involved (an insurer must seek reimbursement on behalf of a third-party administrator[52]), and the 115% reimbursement will not cover the costs.
This issue is not ripe, and we express no view on its merits. "A court should dismiss a case for lack of `ripeness' when the case is abstract or hypothetical."[53]"The key considerations are `the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.'"[54] "A case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is

required."[55] "However, `even where an issue presents purely legal questions, the plaintiff must show some hardship 463*463 in order to establish ripeness.'"[56]
The plaintiffs' prediction that third-party administrators will attempt to charge them for contraceptives may not come to pass, so the matter is not fit for judicial decision. The administrative costs associated with payments for contraceptives may turn out to be low. If so, the insurers and third-party administrators will be eager to take advantage of the 115% reimbursement,[57] and the third-party administrators will profit from the arrangement and have no occasion to pass on the costs. The plaintiffs say that is unlikely because only a small number of their employees will use contraceptives. But their reasoning overlooks the economies of scale that the insurers and third-party administrators could establish by paying for contraceptives for the employees of many religious organizations.
On this record, there is no basis for assessing which outcome is most likely. And withholding court consideration would not harm the plaintiffs. There is no allegation that any third-party administrator has asked the plaintiffs to pay for contraceptives. If that happened, the plaintiffs could challenge the regulations then and would have had to pay nothing in the meantime. As a result, we decline to reach the issue.
Fifth, the two dioceses, which are automatically exempt from the mandate as religious employers, submit that the regulations will require them either to sponsor a plan that complies with the contraceptive mandate or to remove from their plans affiliated entities that are not religious employers but are eligible for the accommodation. That is a misreading of the regulations, which allow those types of organizations to share a plan provided that the entity that does not qualify as a religious employer applies for the accommodation.[58] Because the accommodation does not burden the plaintiffs' religious exercise, neither does a requirement that the dioceses do nothing and the affiliated entities apply for the accommodation.[59]
In short, the acts the plaintiffs are required to perform do not involve providing or facilitating access to contraceptives, and the plaintiffs have no right under RFRA to challenge the independent conduct of third parties. Because the plaintiffs have not shown that the regulations substantially burden their religious exercise or, in University of Dallas, have not demonstrated a substantial likelihood of doing so, we need not reach the strict-scrutiny prong or the other requirements for an injunction.
REVERSED.
[1] 42 U.S.C. §§ 2000bb to 2000bb-4, invalidated in part by City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
[2] Pub.L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S. Code).
[3] The term "group health plan" includes both insured plans, in which an insurer writes a policy and bears the risk of claims, and self-insured plans, in which the employer bears the risk but may contract with a third-party administrator to perform administrative tasks such as processing claims.
[4] We refer to the contraceptive methods and sterilization procedures collectively as "contraceptives" unless otherwise indicated.

[5] See 42 U.S.C. § 300gg-13(a)(4); Group Health Plans and Health Insurance Insurers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed.Reg. 8725, 8725-26 (Feb. 15, 2012).
[6] See 45 C.F.R. § 147.131(a) (citing 26 U.S.C. § 6033(a)(3)(A)(i), (iii)).
[7] 26 U.S.C. § 4980H(a), (c)(1). The penalty applies if at least one employee enrolls in a subsidized plan through an exchange. See id. § 4980H(a)(2).
[8] 26 C.F.R. § 54.XXXX-XXXXA(a); 29 C.F.R. § 2590.715-2713A(a); 45 C.F.R. § 147.131(b).
[9] "EBSA" stands for "Employee Benefits Security Administration," which is part of the Department of Labor.
[10] 29 C.F.R. § 2590.715-2713A(b)(1)(ii), (c)(1); 45 C.F.R. § 147.131(c)(1).
[11] DEP'T OF LABOR, EBSA FORM 7001 (2014), http://www.dol.gov/ebsa/preventiveservices eligibleorganizationcertificationform.doc.
[12] 29 C.F.R. § 2590.715-2713A(b)(1)(ii), (c)(1); 45 C.F.R. § 147.131(c)(1).
[13] See 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B), (c)(1)(ii); 45 C.F.R. § 147.131(c)(1)(ii).
[14] 29 C.F.R. § 2590.715-2713A(c)(2)(i); 45 C.F.R. § 147.131(c)(2)(i).
[15] 26 C.F.R. § 54.XXXX-XXXXA(c)(2)(ii); 29 C.F.R. § 2590.715-2713A(c)(2)(ii); 45 C.F.R. § 147.131(c)(2)(ii).
[16] 26 C.F.R. § 54.XXXX-XXXXA(d); 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(d).
[17] See 29 C.F.R. § 2590.715-2713A(c)(1)(ii), (2)(i); 45 C.F.R. § 147.131(c)(1)(ii), (2)(i).
[18] 29 C.F.R. § 2590.715-2713A(b)(3); 45 C.F.R. § 156.50(d); Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2015, 79 Fed. Reg. 13744, 13809 (Mar. 11, 2014).
[19] See 26 C.F.R. § 54.XXXX-XXXXA(d); 29 C.F.R. § 2590.715-2713A(b)(2), (d).
[20] All self-insured plans at issue in these appeals have third-party administrators.
[21] The court stayed other claims not at issue on appeal.
[22] The University of Dallas and Diocese of Fort Worth appeals arise from the same district-court case. We refer to those appeals collectively as "University of Dallas."
[23] The diocese is automatically exempt from the mandate as a religious employer, but Our Lady of Victory is not. The diocese is a plaintiff because it alleges that the regulations will require it either to sponsor a plan that complies with the mandate or to remove Our Lady of Victory from its plan.
[24] The Catholic plaintiffs do not oppose the use of contraceptives to treat medical conditions so long as the purpose is not to prevent pregnancy or induce abortion.
[25] As with the Diocese of Fort Worth and Our Lady of Victory, the diocese is automatically exempt from the mandate as a religious employer, but Catholic Charities is not. The diocese is a plaintiff because it alleges that the regulations will require it either to sponsor a plan that complies with the mandate or to remove Catholic Charities from its plan.

[26] See Villas at Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 528 (5th Cir. 2013) (en banc) (permanent injunction), cert. denied, ___ U.S. ___, 134 S.Ct. 1491, 188 L.Ed.2d 375 (2014); Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195 (5th Cir.2003) (preliminary injunction).
[27] Westminster claims that the government waived its argument on this issue by failing to present it to the district court. We disagree. The government explained at length why it believes that the regulations do not substantially burden the plaintiffs' religious exercise.
[28] See City of Boerne, 521 U.S. at 533-34, 117 S.Ct. 2157 (noting that the burden is on the religious objector); Diaz v. Collins, 114 F.3d 69, 71-72 (5th Cir.1997) (same).
[29] "To be entitled to a preliminary injunction, the applicant must show (1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) granting the preliminary injunction will not disserve the public interest." Lake Charles Diesel, 328 F.3d at 195-96. "[A] plaintiff seeking a permanent injunction must... demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006).
[30] See, e.g., Burwell v. Hobby Lobby Stores, Inc., ___ U.S. ___, 134 S.Ct. 2751, 2777-79, 189 L.Ed.2d 675 (2014); Thomas v. Review Bd., 450 U.S. 707, 713-16, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981).
[31] See, e.g., Hobby Lobby, 134 S.Ct. at 2775-77; Sherbert v. Verner, 374 U.S. 398, 403-06, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).
[32] East Texas Baptist University cites two Fifth Circuit cases applying the Texas version of RFRA, but those decisions merely confirmed that the court defers to the adherent's answer to the first question upon finding that his beliefs are sincerely held and religious. See A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 263-66 (5th Cir. 2010); Merced v. Kasson, 577 F.3d 578, 590-91 (5th Cir.2009).
[33] See Univ. of Notre Dame v. Burwell, 786 F.3d 606, 612 (7th Cir.2015) ("Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs."); Geneva Coll. v. Sec'y U.S. Dep't of Health & Human Servs., 778 F.3d 422, 435 (3d Cir.) ("Without testing the appellees' religious beliefs, we must nonetheless objectively assess whether the appellees' compliance with the self-certification procedure does, in fact, trigger, facilitate, or make them complicit in the provision of contraceptive coverage."), mandate recalled and stayed sub nom. Zubik v. Burwell, ___ U.S. ___, 135 S.Ct. 1544, 191 L.Ed.2d 719 (2015); Priests for Life v. U.S. Dep't of Health & Human Servs., 772 F.3d 229, 247 (D.C.Cir.2014)("Accepting the sincerity of Plaintiffs' beliefs, however, does not relieve this Court of its responsibility to evaluate the substantiality of any burden on Plaintiffs' religious exercise, and to distinguish Plaintiffs' duties from obligations imposed, not on them, but on insurers and [third-party administrators]. Whether a law substantially burdens religious exercise under RFRA is a question of law for courts to decide, not a question of fact."). The Sixth Circuit used the same approach in a pre-Hobby Lobby case, but the Supreme Court has since vacated and remanded that decision for reconsideration in light of Hobby Lobby. See Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 385 (6th Cir.2014) ("[A]lthough we acknowledge that the appellants believe that the regulatory framework makes them complicit in the provision of contraception, we will independently determine what the regulatory provisions require and whether they impose a substantial burden on appellants' exercise of religion."), cert. granted and judgment vacated sub nom. Mich. Catholic Conference v. Burwell, ___ U.S. ___, 135 S.Ct. 1914, 191 L.Ed.2d 760 (2015).
[34] Congress passed RFRA in response to Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), and one of the statute's purposes is "to restore the compelling interest test as set forth in [Sherbert, 374 U.S. 398, 83 S.Ct. 1790,] and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)[,] and to guarantee its application in all cases where free exercise of religion is substantially burdened." 42 U.S.C. § 2000bb(b)(1). Accordingly, pre-Smith caselaw is relevant in interpreting RFRA. See, e.g., McAllen Grace Brethren Church v. Salazar, 764 F.3d 465passim (5th Cir.2014); Tagore v. United States, 735 F.3d 324, 330 (5th Cir.2013).

[35] See Notre Dame, 786 F.3d at 612; Geneva, 778 F.3d at 435; Priests for Life, 772 F.3d at 247; Kaemmerling, 553 F.3d at 679.
[36] See Notre Dame, 786 F.3d at 612 ("As far as we can determine from the very limited record, the only `conduit' [for payments for contraceptives] is between the [insurer and the third-party administrator] and Notre Dame students and staff; the university has stepped aside."); Geneva, 778 F.3d at 438 ("By participating in the accommodation, the eligible organization has no role whatsoever in the provision of the objected-to contraceptive services."); Priests for Life, 772 F.3d at 256 ("It is as a result of the ACA, and not because of any actions Plaintiffs must take, that Plaintiffs' employees are entitled to contraceptive coverage provided by third parties and that their insurers or TPA must provide it; RFRA does not entitle Plaintiffs to control their employees' relationships with other entities willing to provide health insurance coverage to which the employees are legally entitled. A religious adherent's distaste for what the law requires of a third party is not, in itself, a substantial burden; that is true even if the third party's conduct towards others offends the religious adherent's sincere religious sensibilities."). The Sixth Circuit reached the same result in its now-vacated decision. See Mich. Catholic, 755 F.3d at 390("The appellants allege that providing, paying for, and/or facilitating access to contraceptive coverage burdens their exercise of religion.... [T]he exemption and accommodation framework does not require them to do any of these things. The framework does not permit them to prevent their insurance issuer or third-party administrator from providing contraceptive coverage to their employees pursuant to independent obligations under federal law. However, the inability to `restrain the behavior of a third party that conflicts with the [appellants'] religious beliefs,' does not impose a burden on the appellants' exercise of religion." (alteration in original) (citation omitted) (quoting Mich. Catholic Conference v. Sebelius, 989 F.Supp.2d 577, 587 (W.D.Mich.2013))).
[37] Group Health Plans and Health Insurance Insurers, 77 Fed.Reg. at 8725-26.
[38] See Notre Dame, 786 F.3d at 612-15 (concluding that federal law, not the completion of Form 700 or submission of a notice to HHS, triggers payments for contraceptives); Geneva, 778 F.3d at 435-42(same); Priests for Life, 772 F.3d at 252-56 (same).
[39] See 26 U.S.C. §§ 4980H(a), (c)(2), 5000A(f)(2); 42 U.S.C. § 300gg-13(a)(4); Group Health Plans and Health Insurance Insurers, 77 Fed.Reg. at 8725-26.
[40] See 29 C.F.R. § 2590.715-2713A(b)(3); 45 C.F.R. § 156.50(d).
[41] Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed.Reg. 39870, 39877 (July 2, 2013).
[42] 29 C.F.R. § 2590.715-2713A(c)(2)(i)(A); 45 C.F.R. § 147.131(c)(2)(i)(A).
[43] 26 C.F.R. § 54.XXXX-XXXXA(c)(2)(ii); 29 C.F.R. § 2590.715-2713A(b)(2), (c)(2)(ii); 45 C.F.R. § 147.131(c)(2)(ii).
[44] 26 C.F.R. § 54.XXXX-XXXXA(d); 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(d).
[45] 26 C.F.R. § 54.XXXX-XXXXA(d); 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(d).
[46] See Notre Dame, 786 F.3d at 611-13 (explaining that the accommodation does not use the plans as vehicles for payments for contraceptives); Geneva, 778 F.3d at 438, 441 (same); Priests for Life, 772 F.3d at 253-54 (same).
[47] See Nw. Indian Cemetery, 485 U.S. at 453, 108 S.Ct. 1319 (holding that an adherent was not entitled to challenge a third party's actions that offended his beliefs); Roy, 476 U.S. at 701, 106 S.Ct. 2147 (same); Notre Dame, 786 F.3d at 611-13 (concluding that the requirement to offer a plan does not impose a substantial burden, because the contracts with the insurers and third-party administrators do not facilitate the use of contraceptives); Geneva, 778 F.3d at 438 n. 13 (same); Priests for Life, 772 F.3d at 253 (same); Kaemmerling, 553 F.3d at 679 (holding that an adherent was not entitled to challenge a third party's actions that offended his beliefs).
[48] See generally Geneva, 778 F.3d at 439 n. 14 (considering an analogous hypothetical).
[49] See generally Notre Dame, 786 F.3d at 622-23 (discussing a similar hypothetical).

[50] See, e.g., Hobby Lobby, 134 S.Ct. at 2779; Thomas, 450 U.S. at 715, 101 S.Ct. 1425.
[51] The Court cautioned that it did "not decide... whether [the accommodation] complies with RFRA for purposes of all religious claims." Hobby Lobby, 134 S.Ct. at 2782.
[52] 29 C.F.R. § 2590.715-2713A(b)(3); 45 C.F.R. § 156.50(d).
[53] Choice Inc. of Tex. v. Greenstein, 691 F.3d 710, 715 (5th Cir.2012) (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 833 F.2d 583, 586 (5th Cir.1987)).
[54] Id. (quoting New Orleans, 833 F.2d at 586).
[55] Id. (quoting New Orleans, 833 F.2d at 587).
[56] Id. (quoting Cent. & S.W. Servs., Inc. v. U.S. EPA, 220 F.3d 683, 690 (5th Cir.2000)).
[57] See Notre Dame, 786 F.3d at 612-13 (speculating as to why insurers and third-party administrators might want to participate in the scheme).
[58] See Coverage of Certain Preventive Services, 78 Fed.Reg. at 39886.
[59] See Geneva, 778 F.3d at 443-44 (explaining that the different treatment of dioceses and affiliated organizations does not impose a substantial burden).

 
 Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 1 of 17
U.S. District Court Northern District of Texas (Fort Worth) CIVIL DOCKET FOR CASE #: 4:12−cv−00314−Y

APPEAL,JURY

Catholic Charities, Diocese of Fort Worth, Inc., et al v. Sylvia Burwell, et al Assigned to: Judge Terry R Means Case in other court: USCA5, 14−10241
U S Court of Appeals Fifth Circuit, 14−10661 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 05/21/2012 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Civil Rights Jurisdiction: U.S. Government Defendant

Roman Catholic Diocese of Fort Worth TERMINATED: 09/30/2014

represented by Terence Michael Murphy Jones Day PO Box 660623 2727 N Harwood St Dallas, TX 75266−0623 214/220−3939 Fax: 214/969−5100 FAX Email: tmurphy@JonesDay.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Basheer Y Ghorayeb Jones Day 2727 N. Harwood St. Dallas, TX 75201 214−969−5069 Fax: 214−969−5100 Email: bghorayeb@jonesday.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

James S Teater Jones Day 717 Texas Ste 3300 Ste 3300 Houston, TX 77002 832−239−3777 Fax: 832−239−3600 Email: jsteater@jonesday.com TERMINATED: 10/05/2015 Bar Status: Admitted/In Good Standing

John W Crumley Law Office of John W. Crumley University Centre I 1300 South University Drive Suite 316 Fort Worth, TX 76107−5735 817/334−0291 Fax: 817/334−0775 FAX Email: crumley1@airmail.net TERMINATED: 10/05/2015 Bar Status: Admitted/In Good Standing

Katherine Jean Lyons Jones Day 2727 N Harwood St Dallas, TX 75201

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 2 of 17

214/969−4576 Fax: 214/969−5100 Email: kjlyons@jonesday.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Tamara Marinkovic Jones Day 2727 N Harwood St Dallas, TX 75201 214/220−3939 Fax: 214/969−5100 FAX Email: tmarinkovic@jonesday.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Thomas K Schroeter KLGates LLP 1717 Main Street Suite 2800 Dallas, TX 75201 214/939−5500 Fax: 214/939−5849 Email: thomas.schroeter@klgates.com TERMINATED: 09/20/2013 ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff
Catholic Charities, Diocese of Fort Worth, Inc.

represented by Terence Michael Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John W Crumley (See above for address) TERMINATED: 10/05/2015 Bar Status: Admitted/In Good Standing

Tamara Marinkovic (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Basheer Y Ghorayeb (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff University of Dallas

represented by Terence Michael Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John W Crumley (See above for address) TERMINATED: 10/05/2015 Bar Status: Admitted/In Good Standing

Tamara Marinkovic (See above for address)

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 3 of 17

ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Basheer Y Ghorayeb (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Plaintiff
Our Lady of Victory Catholic School TERMINATED: 09/30/2014

represented by Terence Michael Murphy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

John W Crumley (See above for address) TERMINATED: 10/05/2015 Bar Status: Admitted/In Good Standing

Tamara Marinkovic (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Basheer Y Ghorayeb (See above for address) ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

V. Defendant Kathleen Sebelius in her official capacity as Secretary of the U.S. Department of Health and Human Services TERMINATED: 09/16/2014
Defendant Hilda Solis in her official capacity as Secretary of the U.S. Department of Labor TERMINATED: 02/28/2013
Defendant Timothy Geithner in his official capacity as Secretary of the U.S. Department of Treasury TERMINATED: 02/28/2013

represented by Bradley Philip Humphreys United States Department of Justice Civil Divsiion Federal Programs Branch 20 Massachusetts Ave NW Room 7219 Washington, DC 20530 202/514−3367 Fax: 202/616−8470 Email: bradley.p.humphreys@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Bradley Philip Humphreys (See above for address) TERMINATED: 02/28/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Bradley Philip Humphreys (See above for address) TERMINATED: 02/28/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 4 of 17

Defendant United States Department of Health &Human Services
Defendant United States Department of Labor
Defendant U.S. Department of Treasury
Defendant Jacob J Lew in his Official Capacity as Secretary, U. S. Department of Treasury
Defendant Seth D Harris in his Official Capacity as Acting

represented by Adam Anderson Grogg−DOJ U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave. NW Washington, DC 20001 202−514−2395 Fax: 202−616−8470 Email: adam.a.grogg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Adam Anderson Grogg−DOJ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Adam Anderson Grogg−DOJ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Adam Anderson Grogg−DOJ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted
represented by Bradley Philip Humphreys (See above for address)

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 5 of 17

Secretary, U. S. Department of Labor TERMINATED: 08/22/2013

LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
Thomas Perez in his official capacity as Secretary of the U.S. Department of Labor

represented by Adam Anderson Grogg−DOJ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Defendant
Sylvia Burwell in her official capacity as Secretary of the U.S. Department of Health and Human Services

represented by Adam Anderson Grogg−DOJ (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Bradley Philip Humphreys (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Amicus
American Center for Law &Justice, et al.

represented by Edward Lawrence White , III American Center for Law &Justice 3001 Plymouth Road Suite 203 Ann Arbor, MI 48105 734−680−8007 Fax: 734−680−8006 Email: elwhite3@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Amicus American Civil Liberties Union

represented by Jennifer Lee American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212/549−2601 Fax: 212/549−2650 Email: jlee@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Brigitte Amiri American Civil Liberties Union Foundation 125 Broad Street

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 6 of 17
18th Floor New York, NY 10004 212/519−7897 Fax: 212/549−2650 Email: bamiri@aclu.org ATTORNEY TO BE NOTICED Bar Status: Not Admitted
Daniel Mach American Civil Liberties Union Foundation 915 15th Street 6th Floor Washington, DC 20005 202/675−2330 Email: dmach@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Date Filed 05/21/2012
05/21/2012 05/21/2012 05/21/2012 05/21/2012 05/23/2012
05/23/2012 05/25/2012 05/29/2012

# Docket Text
1 COMPLAINT WITH JURY DEMAND against All Defendants filed by Roman Catholic Diocese of Fort Worth. Clerk to issue summons(es). In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. (Filing fee $350; Receipt number 0539−4590670) Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership (Attachments: # 1 Cover Sheet) (Murphy, Terence) (Entered: 05/21/2012)
2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Roman Catholic Diocese of Fort Worth. (Murphy, Terence) (Entered: 05/21/2012)
3 New Case Notes: A filing fee has been paid. File to Judge Means. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge. Clerk to provide copy to plaintiff if not received electronically. (klm) (Entered: 05/21/2012)
4 Summons issued as to Department of Treasury, Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Attorney, and U.S. Attorney General. (klm) (Entered: 05/21/2012)
***Clerk's Notice of delivery: (see NEF for details) Docket No:3. Mon May 21 12:14:33 CDT 2012 (crt) (Entered: 05/21/2012)
5 ORDER REGARDING REQUIREMENT OF LOCAL CIVIL RULES: James S. Teater and John W. Crumley, although admitted to the NDTX, have not registered as an electronic−case filers ("ECF") pursuant to Local Civil Rule 5.1(f). Counsel must comply with Local Civil Rule 5.1(f) no later than 4:00 p.m. on June 6, 2012, or file a motion to withdraw from the case. (Ordered by Judge Terry R Means on 5/23/2012) (klm) (Entered: 05/23/2012)
***Clerk's Notice of delivery: (see NEF for details) Docket No:5. Wed May 23 16:06:49 CDT 2012 (crt) (Entered: 05/23/2012)
6 NOTICE of Compliance With Local Civil re: 5 Order, filed by Roman Catholic Diocese of Fort Worth (Crumley, John) (Entered: 05/25/2012)
7 NOTICE of Compliance by James S. Teater with Court's Order re: 5 Order, filed by Roman Catholic Diocese of Fort Worth (Teater, James) (Entered: 05/29/2012)

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 7 of 17

07/11/2012 07/11/2012 07/13/2012 07/16/2012
08/06/2012 08/06/2012 08/20/2012 08/20/2012
08/27/2012 09/19/2012 09/24/2012 09/24/2012 09/26/2012

8 NOTICE of Attorney Appearance by Bradley Philip Humphreys on behalf of Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Humphreys, Bradley) (Entered: 07/11/2012)
9 MOTION to Extend Time to Respond filed by Timothy Geithner, Roman Catholic Diocese of Fort Worth, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 07/11/2012)
10 AFFIDAVIT of Service for Summons and Complaint served on Timothy Geithner, Kathleen Sebelius, Hilda Solis, US Department of Health and Human Services, US Department of Labor, US Department of Treasury on 5/21/2012. (Attachments: # 1 Exhibit(s) A − Certified Mail Return Receipts) (Murphy, Terence) (Entered: 07/13/2012)
11 ORDER GRANTING EXTENSION...granting 9 Motion to Extend Time. Defendants shall have until August 6, 2012, to file a motion to dismiss. Plaintiffs shall have until August 27 to file a response. Defendants shall have until September 24 or twenty−eight (28) days from the date on which Plaintiffs file their response, whichever is earlier. (Ordered by Judge Terry R Means on 7/16/2012) (klm) (Entered: 07/16/2012)
12 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Humphreys, Bradley) (Entered: 08/06/2012)
13 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Humphreys, Bradley) (Entered: 08/06/2012)
14 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by American Center for Law &Justice, et al.. (White, Edward) (Entered: 08/20/2012)
15 MOTION for Leave to File to Participate as Amici Curiae and to File Amici Curiae Brief in Support of Plaintiff on Behalf of the American Center for Law &Justice and 79 Members of Congress filed by American Center for Law &Justice, et al. with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order, # 2 Amici Curiae Brief of the ACLJ and 79 Members of Congress in Support of Plaintiff) (White, Edward) (Entered: 08/20/2012)
16 RESPONSE filed by Roman Catholic Diocese of Fort Worth re: 12 MOTION to Dismiss for Lack of Jurisdiction (Murphy, Terence) (Entered: 08/27/2012)
17 MOTION for Leave to File Excess Pages filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 09/19/2012)
18 ORDER GRANTING 17 MOTION TO ENLARGE PAGE LIMITS: Defendants are GRANTED leave to file a reply in excess of the page limitations set out in the local rules no later than September 28, 2012. (Ordered by Judge Terry R Means on 9/24/2012) (mdf) (Main Document 18 replaced on 9/24/2012) (mdf). (Entered: 09/24/2012)
19 REPLY filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re: 12 MOTION to Dismiss for Lack of Jurisdiction (Humphreys, Bradley) (Entered: 09/24/2012)
20 ORDER GRANTING 15 MOTION FOR LEAVE TO PARTICIPATE AS AMICI CURIAE...the ACLJ is GRANTED leave to file its amicus brief no later than October 5, 2012. (Ordered by Judge Terry R Means on 9/26/2012) (klm) (Entered: 09/26/2012)

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 8 of 17

09/26/2012 11/13/2012
11/16/2012 11/16/2012
11/30/2012
12/04/2012 12/04/2012
12/05/2012 12/07/2012 12/10/2012 12/10/2012 12/14/2012 12/14/2012 12/14/2012

21 Brief/Memorandum in Support filed by American Center for Law &Justice, et al. re 16 Response/Objection Amici Curiae Brief of the ACLJ and 79 Members of Congress in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss (White, Edward) (Entered: 09/26/2012)
22 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) 1 − Notice of Supplemental Authority, # 2 Exhibit(s) 2 − Legatus v. Sebelius, # 3 Proposed Order) (Humphreys, Bradley) (Entered: 11/13/2012)
23 ORDER granting 22 Unopposed Motion for Leave to File: Defendants are GRANTED leave to file their notice of supplemental authority no later than November 26, 2012. (Ordered by Judge Terry R Means on 11/16/2012) (mdf) (Entered: 11/16/2012)
24 NOTICE of Supplemental Authority re: 12 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit(s) Legatus v. Sebelius) (Humphreys, Bradley) (Entered: 11/16/2012)
25 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Notice of Supplemental Authority, # 2 Exhibit(s) Catholic Diocese of Nashville v. Sebelius, # 3 Exhibit(s) Zubik v. Sebelius, # 4 Proposed Order) (Humphreys, Bradley) (Entered: 11/30/2012)
26 ORDER granting 25 Motion for Leave to File: Defendants are GRANTED leave to file their notice of supplemental authority no later than December 7, 2012. (Ordered by Judge Terry R Means on 12/4/2012) (mdf) (Entered: 12/04/2012)
27 NOTICE of Supplemental Authority re: 12 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit(s) Catholic Diocese of Nashville v. Sebelius, # 2 Exhibit(s) Zubik v. Sebelius) (Humphreys, Bradley) (Entered: 12/04/2012)
28 Unopposed MOTION for Leave to File Response to Notice of Supplemental Authority filed by Roman Catholic Diocese of Fort Worth (Attachments: # 1 Exhibit(s) Response to Defendants' Notice of Supplemental Authority, # 2 Proposed Order) (Schroeter, Thomas) (Entered: 12/05/2012)
29 Unopposed MOTION for Leave to File To File Notice of Supplemental Authority filed by Roman Catholic Diocese of Fort Worth (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s), # 3 Proposed Order) (Ghorayeb, Basheer) (Entered: 12/07/2012)
30 ORDER GRANTING 28 MOTION FOR LEAVE TO FILE RESPONSE: Plaintiff is GRANTED leave to file its response no later than December 14, 2012. (Ordered by Judge Terry R Means on 12/10/2012) (mdf) (Entered: 12/10/2012)
31 RESPONSE filed by Roman Catholic Diocese of Fort Worth re: 24 Notice (Other), (Schroeter, Thomas) (Entered: 12/10/2012)
32 ORDER granting 29 Motion for Leave to File Notice of Supplemental Authority. (Ordered by Judge Terry R Means on 12/14/2012) (ewd) (Entered: 12/14/2012)
33 NOTICE of Supplemental Authority filed by Roman Catholic Diocese of Fort Worth (Attachments: # 1 Exhibit(s)) (Ghorayeb, Basheer) (Entered: 12/14/2012)
34 MOTION for Leave to File Response to Plaintiff's Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 9 of 17

12/20/2012 12/20/2012 01/02/2013 01/14/2013
01/15/2013 01/15/2013 01/15/2013 01/17/2013
01/31/2013 01/31/2013 02/12/2013

Exhibit(s) Response to Plaintiff's Notice of Supplemental Authority, # 2 Proposed Order) (Humphreys, Bradley) (Entered: 12/14/2012)
35 ORDER GRANTING LEAVE re 34 Motion for Leave to File Response: Defendants are GRANTED leave to file their response to Plaintiff's notice of supplemental authority no later than December 27, 2012. (Ordered by Judge Terry R Means on 12/20/2012) (mdf) (Entered: 12/20/2012)
36 RESPONSE filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re: 33 Notice (Other) (Humphreys, Bradley) (Entered: 12/20/2012)
37 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Roman Catholic Diocese of Fort Worth (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Proposed Order) (Ghorayeb, Basheer) (Entered: 01/02/2013)
38 ***TERMINATED PURSUANT TO ORDER 39 ***Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Exhibit(s) Notice of supplemental Authority, # 2 Proposed Order Proposed Order, # 3 Exhibit(s) Catholic Diocese of Biloxi v. Sebelius, # 4 Exhibit(s) University of Notre Dame v. Sebelius, # 5 Exhibit(s) Catholic Diocese of Peoria v. Sebelius, # 6 Exhibit(s) Colorado Christian University v. Sebelius) (Humphreys, Bradley) Modified on 1/22/2013 (mdf). (Entered: 01/14/2013)
39 ORDER granting 37 Motion for Leave to File: Plaintiff is GRANTED leave to file its notice of supplemental authority no later than January 18, 2013, and Defendants are GRANTED leave to file a response to Plaintiff's notice no later than January 25, 2013. (See order for specifics.) (Ordered by Judge Terry R Means on 1/15/2013) (mdf) (Entered: 01/15/2013)
40 NOTICE of Supplemental Authority filed by Roman Catholic Diocese of Fort Worth (Attachments: # 1 Exhibit(s)) (Ghorayeb, Basheer) (Entered: 01/15/2013)
41 RESPONSE filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re: 40 Notice (Other) (Humphreys, Bradley) (Entered: 01/15/2013)
42 NOTICE of Supplemental Authority re: 12 MOTION to Dismiss for Lack of Jurisdiction filed by Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit(s) Catholic Diocese of Biloxi v. Sebelius, # 2 Exhibit(s) University of Notre Dame v. Sebelius, # 3 Exhibit(s) Catholic Diocese of Peoria v. Sebelius, # 4 Exhibit(s) Colorado Christian University v. Sebelius) (Humphreys, Bradley) (Entered: 01/17/2013)
43 ORDER denying 12 Motion to Dismiss for Lack of Jurisdiction: Based on the foregoing, the Court concludes that the Diocese has standing to bring its challenges to the Mandate and that those challenges are ripe for review. Accordingly, Defendants' motion to dismiss is DENIED. (See order for specifics.) (Ordered by Judge Terry R Means on 1/31/2013) (mdf) (Entered: 01/31/2013)
44 ORDER TO SUBMIT JOINT STATUS REPORT AND PROPOSED DISCOVERY PLAN: The parties are ordered to electronically file with the clerk of the court the signed joint status report and proposed discovery plan (one instrument) within 28 days of the date of the filing of this order. (See order for specifics.) (Ordered by Judge Terry R Means on 1/31/2013) (mdf) (Entered: 01/31/2013)
45 MOTION to Stay Answer Deadline and Deadline to Submit Joint Status Report and Proposed Discovery Plan, Unopposed Motion for Extension of Time to File Answer in the alternative (), Unopposed MOTION for Extension of Time to File Joint Status Report and Proposed Discovery Planin the alternative filed by

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 10 of 17

02/19/2013
02/28/2013
02/28/2013
03/06/2013 03/08/2013 03/15/2013 03/21/2013 04/04/2013 04/16/2013

Timothy Geithner, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 02/12/2013)
46 ORDER denying 45 Motion to Stay ; granting 45 Motion for Extension of Time to File Answer Timothy Geithner answer due 2/28/2013; Kathleen Sebelius answer due 2/28/2013; Hilda Solis answer due 2/28/2013; U.S. Department of Health and Human Services answer due 2/28/2013; U.S. Department of Labor answer due 2/28/2013; U.S. Department of Treasury answer due 2/28/2013.; granting 45 Motion for Extension of Time to File Joint Status Report. Joint Status Report due by 3/15/2013. (See order for specifics.) (Ordered by Judge Terry R Means on 2/19/2013) (mdf) (Entered: 02/19/2013)
47 MOTION for Reconsideration re 43 Order on Motion to Dismiss/Lack of Jurisdiction, or in the Alternative for Certification under 28 U.S.C. section 1292(B) Permitting Immediate Appeal filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Declaration(s) Teresa Miller, # 2 Proposed Order) (Humphreys, Bradley) (Entered: 02/28/2013)
48 ANSWER to 1 Complaint,,, filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms and Instructions found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. (Humphreys, Bradley) (Entered: 02/28/2013)
49 SECOND ORDER TO SUBMIT JOINT STATUS REPORT AND PROPOSED DISCOVERY PLAN: As of this date the parties have failed to file their joint status report. Accordingly, the parties shall comply with the requirements of the January 31 order no later than March 20, 2013. (Ordered by Judge Terry R Means on 3/6/2013) (mdf) (Entered: 03/06/2013)
50 NOTICE of Joint Notice of Compliance with Court's Orders filed by Roman Catholic Diocese of Fort Worth (Ghorayeb, Basheer) (Entered: 03/08/2013)
51 Joint STATUS REPORT and Proposed Discovery Plan filed by Seth D Harris, Jacob J Lew, Roman Catholic Diocese of Fort Worth, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Ghorayeb, Basheer) (Entered: 03/15/2013)
52 RESPONSE filed by Roman Catholic Diocese of Fort Worth re: 47 MOTION for Reconsideration re 43 Order on Motion to Dismiss/Lack of Jurisdiction, or in the Alternative for Certification under 28 U.S.C. section 1292(B) Permitting Immediate Appeal (Attachments: # 1 Exhibit(s)) (Ghorayeb, Basheer) (Entered: 03/21/2013)
53 REPLY filed by Seth D Harris, Jacob J Lew, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re: 47 MOTION for Reconsideration re 43 Order on Motion to Dismiss/Lack of Jurisdiction, or in the Alternative for Certification under 28 U.S.C. section 1292(B) Permitting Immediate Appeal (Humphreys, Bradley) (Entered: 04/04/2013)
54 NOTICE of Supplemental Authority re: 47 MOTION for Reconsideration re 43 Order on Motion to Dismiss/Lack of Jurisdiction, or in the Alternative for Certification under 28 U.S.C. section 1292(B) Permitting Immediate Appeal filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit(s) Criswell College v. Sebelius, # 2 Exhibit(s) Priests for Life v. Sebelius) (Humphreys, Bradley) (Entered: 04/16/2013)

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 11 of 17

05/15/2013
06/04/2013
06/07/2013 06/11/2013 07/01/2013 07/01/2013 07/07/2013 08/16/2013 08/21/2013 08/22/2013 09/18/2013 09/20/2013

55 INITIAL SCHEDULING ORDER: The parties must file any motions to implead third parties or to join additional parties pursuant to Fed. R. Civ. P. 14 or 19, respectively, no later than June 1, 2013. Each party plaintiff must file any motions for leave to amend his pleadings no later than August 16, 2013. Each party defendant must file any motions for leave to amend his pleadings no later than September 16, 2013. The parties shall cease fact all discovery activity under the Federal Rules of Civil Procedure on June 4, 2013; and cease all expert discovery under the Federal Rules of Civil Procedure on October 15 2013. The parties must file all pretrial and dispositive motions except motions in limine no later than November 15, 2013. (See order for specifics.) (Ordered by Judge Terry R Means on 5/15/2013) (mdf) (Entered: 05/15/2013)
56 Joint MOTION to Extend Time of time to conduct settlement conference and to be relieved of in−person requirement filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Roman Catholic Diocese of Fort Worth, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 06/04/2013)
57 ORDER DENYING 47 MOTION TO RECONSIDER OR, ALTERNATIVELY, TO CERTIFY FOR IMMEDIATE APPEAL: Accordingly, Defendants' motion to reconsider or, alternatively, to certify for immediate appeal under § 1292(b) is DENIED. (See order for specifics.) (Ordered by Judge Terry R Means on 6/7/2013) (mdf) (Entered: 06/07/2013)
58 ORDER GRANTING 56 MOTION FOR LEAVE AND AN EXTENSION: Accordingly, the parties are GRANTED leave to attend their upcoming settlement conference by phone. In addition, the parties' deadline for conducting a settlement conference is EXTENDED to July 3, 2013. (Ordered by Judge Terry R Means on 6/11/2013) (mdf) (Entered: 06/11/2013)
59 SETTLEMENT CONFERENCE REPORT filed by Roman Catholic Diocese of Fort Worth. (Ghorayeb, Basheer) (Entered: 07/01/2013)
60 SETTLEMENT CONFERENCE REPORT filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Humphreys, Bradley) (Entered: 07/01/2013)
61 NOTICE of Change of Address for Attorney Edward Lawrence White, III on behalf of American Center for Law &Justice, et al.. (Filer confirms contact info in ECF is current.) (White, Edward) (Entered: 07/07/2013)
62 Unopposed MOTION for Leave to File Amended Complaint and Join Additional Plaintiffs filed by Roman Catholic Diocese of Fort Worth (Attachments: # 1 Exhibit(s) 1, # 2 Proposed Order) (Ghorayeb, Basheer) (Entered: 08/16/2013)
63 ORDER granting 62 Motion for Leave to File Amended Complaint and Join Additional Plaintiffs: Accordingly, Plaintiff is GRANTED leave to file its proposed amended complaint no later than August 30, 2013. (Ordered by Judge Terry R Means on 8/21/2013) (mdf) (Entered: 08/21/2013)
64 AMENDED COMPLAINT against Timothy Geithner, Jacob J Lew, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury filed by Roman Catholic Diocese of Fort Worth, Catholic Charities, Diocese of Fort Worth, Inc., University of Dallas, Our Lady of Victory Catholic School. (Ghorayeb, Basheer) (Entered: 08/22/2013)
65 Unopposed MOTION to Withdraw as Attorney filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas (Attachments: # 1 Proposed Order) (Ghorayeb, Basheer) (Entered: 09/18/2013)
66 ORDER GRANTING LEAVE TO WITHDRAW re 65 Motion to Withdraw as Attorney: By the motion, Plaintiff asks the Court to grant Thomas K. Schroeter leave to withdraw as attorney of record in this cause. After review, the Court GRANTS the motion. Accordingly, the aforementioned attorney is GRANTED leave to withdraw as attorney of record. (Ordered by Judge Terry R Means on

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 12 of 17

09/25/2013 10/04/2013 10/04/2013 10/09/2013 10/09/2013 10/09/2013 10/09/2013 10/16/2013
11/05/2013 11/05/2013

9/20/2013) (mdf) (Entered: 09/20/2013)
67 Joint MOTION for Leave to File Motions According to Plaintiffs' Alternative Briefing Schedules filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Thomas Perez, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 09/25/2013)
68 MOTION to Stay Proceedings in Light of Lapse of Appropriations filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Thomas Perez, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 10/04/2013)
69 RESPONSE filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas re: 68 MOTION to Stay Proceedings in Light of Lapse of Appropriations (Attachments: # 1 Exhibit(s) 1) (Ghorayeb, Basheer) (Entered: 10/04/2013)
70 MOTION for Injunction filed by University of Dallas (Ghorayeb, Basheer) (Entered: 10/09/2013)
71 MOTION for Summary Judgment filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas (Ghorayeb, Basheer) (Entered: 10/09/2013)
72 Brief/Memorandum in Support filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas re 71 MOTION for Summary Judgment , 70 MOTION for Injunction (Ghorayeb, Basheer) (Entered: 10/09/2013)
73 Appendix in Support filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas re 72 Brief/Memorandum in Support of Motion, (Ghorayeb, Basheer) (Entered: 10/09/2013)
74 ORDER GRANTING PARTIES' 67 JOINT MOTION FORENTRY OF BRIEFING SCHEDULE &DENYING 68 MOTION FOR STAY: This case involves a challenge to the Affordable Care Act's contraception mandate. That provision goes into effect on January 1, 2014. Given the time−sensitive nature of this case, the Court concludes that a stay would be inappropriate and should be DENIED. However, in an effort to accommodate the DOJ attorneys involved in this case, who are currently prohibited from working even on a voluntary basis except in very limited circumstances, the Court enters the following briefing schedule: November 5, 2013: Defendants file their motion to dismiss or, in the alternative, for summary judgment, along with a brief in support of their motion that responds to Plaintiffs' motions. Defendants' brief shall be limited to 50 pages. November 26, 2013: Plaintiffs file their combined response to Defendants' motion and reply in support of Plaintiffs' motions. The combined response and reply shall be limited to 35 pages. December 10, 2013: Defendants file a reply in support of their motion. Defendants' reply shall be limited to 35 pages. (Ordered by Judge Terry R Means on 10/16/2013) (mdf) (Entered: 10/17/2013)
75 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Humphreys, Bradley) (Entered: 11/05/2013)
76 Brief/Memorandum in Support filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Thomas Perez, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 75 MOTION to Dismiss or, in the Alternative, for Summary Judgment and in Opposition to Plaintiffs' Motions for Preliminary Injunction and Summary Judgment (Humphreys, Bradley) (Entered: 11/05/2013)

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 13 of 17

11/08/2013 11/08/2013 11/08/2013 11/08/2013 11/08/2013 11/13/2013
11/13/2013 11/14/2013 11/26/2013 11/26/2013 12/10/2013
12/11/2013 12/11/2013

77 NOTICE of Attorney Appearance by Jennifer Lee for Jennifer Lee, Brigitte Amiri, Daniel Mach, Rebecca Robertson, Karin Cagle on behalf of American Civil Liberties Union.. Party American Civil Liberties Union; American Civil Liberties Union of Texas added. (Lee, Jennifer) (Entered: 11/08/2013)
78 MOTION for Leave to File Amicus Curiae Brief filed by American Civil Liberties Union (Attachments: # 1 Exhibit(s) Proposed Amicus Brief, # 2 Proposed Order) (Lee, Jennifer) (Entered: 11/08/2013)
79 Application for Admission Pro Hac Vice with Certificate of Good Standing (Filing fee $25; Receipt number 0539−5677114) filed by American Civil Liberties Union (Lee, Jennifer) (Entered: 11/08/2013)
80 Application for Admission Pro Hac Vice with Certificate of Good Standing for Attorney Brigitte Amiri (Filing fee $25; Receipt number 0539−5677158) filed by American Civil Liberties Union (Lee, Jennifer) (Entered: 11/08/2013)
81 Application for Admission Pro Hac Vice with Certificate of Good Standing for Attorney Daniel Mach (Filing fee $25; Receipt number 0539−5677177) filed by American Civil Liberties Union (Lee, Jennifer) (Entered: 11/08/2013)
82 ORDER GRANTING 78 MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE: Before the Court is the motion for leave to file a brief as amici curiae of the American Civil Liberties Union and the American Civil Liberties Union of Texas (doc. 78). After review, and noting that the motion is unopposed, the Court GRANTS the motion. Accordingly, amici are directed to file their brief no later than November 18, 2013. (Ordered by Judge Terry R Means on 11/13/2013) (mdf) (Entered: 11/13/2013)
83 ORDER granting 79 Application for Admission Pro Hac Vice of Jennifer Lee; granting 80 Application for Admission Pro Hac Vice of Brigitte Amiri; granting 81 Application for Admission Pro Hac Vice of Daniel Mach. If not already done, Applicants must register as an ECF User within 14 days (LR 5.1(f)). (Ordered by Judge Terry R Means on 11/13/2013) (mdf) (Entered: 11/13/2013)
84 Amicus Curiae Brief in Support filed by American Civil Liberties Union re 75 MOTION to Dismiss or, in the Alternative, for Summary Judgment. (Lee, Jennifer) Modified on 12/2/2013 (mdf). (Entered: 11/14/2013)
85 Supplemental Appendix to 72 Brief in Support of 71 MOTION for Summary Judgment and 70 MOTION for Injunction by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas. (Ghorayeb, Basheer) Modified on 12/2/2013 (mdf). (Entered: 11/26/2013)
86 REPLY filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas re: 75 MOTION to Dismiss or, in the Alternative, for Summary Judgment (Ghorayeb, Basheer) (Entered: 11/26/2013)
87 MOTION for Extension of Time to File Response/Reply to 75 MOTION to Dismiss or, in the Alternative, for Summary Judgment filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Thomas Perez, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury with Brief/Memorandum in Support. (Attachments: # 1 Proposed Order) (Humphreys, Bradley) (Entered: 12/10/2013)
88 ORDER granting 87 Motion to Extend Time to File Reply: Accordingly, the government must file its reply no later than December 17, 2013. (Ordered by Judge Terry R Means on 12/11/2013) (mdf) (Entered: 12/11/2013)
89 REPLY filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Thomas Perez, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re: 75 MOTION to Dismiss or, in the Alternative, for Summary Judgment (Humphreys, Bradley) (Entered: 12/11/2013)

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 14 of 17

12/16/2013 12/19/2013 12/19/2013 12/22/2013
12/23/2013 12/23/2013 12/23/2013 12/30/2013
12/31/2013 12/31/2013 12/31/2013

90 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas (Attachments: # 1 Exhibit(s) Notice of Supplemental Authority, # 2 Exhibit(s) Supplemental Authority, # 3 Exhibit(s) Supplemental Authority) (Ghorayeb, Basheer) (Entered: 12/16/2013)
91 ORDER GRANTING LEAVE TO FILE SUPPLEMENTAL AUTHORITY re 90 Motion for Leave to File: Accordingly, Plaintiffs must file their notice of supplemental authority no later than December 20, 2013. (Ordered by Judge Terry R Means on 12/19/2013) (mdf) (Entered: 12/19/2013)
92 NOTICE of Supplemental Authority filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas (Attachments: # 1 Exhibit(s) EDNY Memorandum, # 2 Exhibit(s) EDNY Final Judgment) (Ghorayeb, Basheer) (Entered: 12/19/2013)
93 NOTICE of Supplemental Authority re: 71 MOTION for Summary Judgment , 75 MOTION to Dismiss or, in the Alternative, for Summary Judgment, 70 MOTION for Injunction filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Thomas Perez, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit(s) Notice of Supplemental Authority, # 2 Exhibit(s) Archbishop of Washington v. Sebelius, # 3 Exhibit(s) University of Notre Dame v. Sebelius, # 4 Exhibit(s) Priests for Life v. Sebelius) (Humphreys, Bradley) (Entered: 12/22/2013)
94 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Proposed Order) (Ghorayeb, Basheer) (Entered: 12/23/2013)
95 ORDER GRANTING 94 [MOTION FOR] LEAVE TO FILE SUPPLEMENTAL AUTHORITY: Accordingly, Plaintiffs must file their notice of supplemental authority no later than December 23, 2013. (Ordered by Judge Terry R Means on 12/23/2013) (mdf) (Entered: 12/23/2013)
96 NOTICE of Supplemental Authority re: 94 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s)) (Ghorayeb, Basheer) (Entered: 12/23/2013)
97 Unopposed MOTION for Leave to File Notice of Supplemental Authority filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas (Attachments: # 1 Exhibit(s) Notice of Supplemental Authority, # 2 Exhibit(s) East Texas Baptist University, # 3 Exhibit(s) Diocese of Fort Wayne−South Bend, # 4 Exhibit(s) Grace Schools, # 5 Exhibit(s) Geneva College, # 6 Exhibit(s) Southern Nazarene, # 7 Exhibit(s) Diocese of Nashville, # 8 Exhibit(s) Michigan Catholic Conference, # 9 Exhibit(s) Little Sisters of the Poor, # 10 Proposed Order Proposed Order) (Ghorayeb, Basheer) (Entered: 12/30/2013)
98 ORDER granting 97 Motion for Leave to File Supplemental Authority. Plaintiffs must file their notice of supplemental authority no later than 12/31/13. (See order for specifics) (Ordered by Judge Terry R Means on 12/31/2013) (ewd) (Entered: 12/31/2013)
99 ORDER GRANTING 70 PRELIMINARY INJUNCTION: The University's motion for injunctive relief is GRANTED. (See order for specifics) (Ordered by Judge Terry R Means on 12/31/2013) (ewd) (Entered: 12/31/2013)
100 NOTICE of Supplemental Authority filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas (Attachments: # 1 Exhibit(s) East Texas Baptist University v. Sebelius, # 2 Exhibit(s) Diocese of Fort Wayne−South Bend v. Sebelius, # 3 Exhibit(s) Grace Schools v. Sebelius, # 4 Exhibit(s) Geneva College

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 15 of 17

02/24/2014
03/05/2014 03/19/2014 03/25/2014 04/01/2014 04/18/2014 05/02/2014 05/09/2014 06/05/2014
06/09/2014
07/14/2014

v. Sebelius, # 5 Exhibit(s) Southern Nazarene Univ. v. Sebelius, # 6 Exhibit(s) Catholic Diocese of Nashville v. Sebelius, # 7 Exhibit(s) Michigan Catholic Conference v. Sebelius, # 8 Exhibit(s) Little Sisters of the Poor Home for the Aged v. Sebelius) (Ghorayeb, Basheer) (Entered: 12/31/2013)
101 NOTICE OF INTERLOCUTORY APPEAL to the Fifth Circuit as to 99 Order by Timothy Geithner, Seth D Harris, Jacob J Lew, Thomas Perez, Roman Catholic Diocese of Fort Worth, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. (Humphreys, Bradley) (Entered: 02/24/2014)
USCA Case Number 14−10241 in USCA5 for 101 Notice of Appeal,, filed by Hilda Solis, U.S. Department of Labor, Thomas Perez, Roman Catholic Diocese of Fort Worth, Seth D Harris, U.S. Department of Health and Human Services, Timothy Geithner, Kathleen Sebelius, U.S. Department of Treasury, Jacob J Lew. (tle) (Entered: 03/05/2014)
Record on Appeal for USCA5 14−10241 (related to 101 appeal): Record consisting of: 1 ECF electronic record, certified to USCA. To request a copy of the record (on disk or on paper), contact the appeals deputy in advance to arrange delivery. (tle) (Entered: 03/19/2014)
Record on Appeal for USCA5 14−10241 (related to 101 appeal): Appeal Record transmitted to Adam C Jed − Appellate Staff, U.S. Department of Justice Civil Division, 950 Pennsylvania Ave, NW, Room 7240, Washington, DC 20530 on disk only by mail. Shipped Fed−Ex Tracking Number 798328716258. (tle) (Entered: 03/25/2014)
102 ORDER ADMINISTRATIVELY TERMINATING PENDING MOTIONS re: 71 Motion for Summary Judgment and 75 Motion to Dismiss. (Ordered by Judge Terry R Means on 4/1/2014) (mdf) (Entered: 04/01/2014)
103 MOTION for Injunction filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth with Brief/Memorandum in Support. (Ghorayeb, Basheer) (Entered: 04/18/2014)
104 RESPONSE filed by Timothy Geithner, Seth D Harris, Jacob J Lew, Thomas Perez, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re: 103 MOTION for Injunction (Humphreys, Bradley) (Entered: 05/02/2014)
105 REPLY filed by Catholic Charities, Diocese of Fort Worth, Inc., Our Lady of Victory Catholic School, Roman Catholic Diocese of Fort Worth, University of Dallas re: 103 MOTION for Injunction (Ghorayeb, Basheer) (Entered: 05/09/2014)
106 ORDER granting 103 Motion for Preliminary Injunction: Accordingly, the motion for injunctive relief of Plaintiffs Roman Catholic Diocese of Fort Worth; Our Lady of Victory Catholic School; and Catholic Charities, Diocese of Fort Worth, Inc., is GRANTED. The government is hereby ENJOINED from enforcing, as to the remaining plaintiffs, the requirements set out in 42 U.S.C. § 300gg−13(a)(4), as well as any related fines and penalties, until further order of this Court. (Ordered by Judge Terry R Means on 6/5/2014) (mdf) (Entered: 06/05/2014)
107 NOTICE OF INTERLOCUTORY APPEAL to the Fifth Circuit as to 106 Order on Motion for Injunction,, by Timothy Geithner, Seth D Harris, Jacob J Lew, Thomas Perez, Kathleen Sebelius, Hilda Solis, U.S. Department of Health and Human Services, U.S. Department of Treasury, United States Department of Labor. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. (Humphreys, Bradley) (Entered: 06/09/2014)
Record on Appeal for USCA5 14−10661 (related to 107 appeal): Record consisting of: 1 ECF electronic record, certified to USCA. To request a copy of the record (on disk or on paper), contact the appeals deputy in advance to arrange delivery. (tle) (Entered: 07/14/2014)

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 16 of 17

07/17/2014 07/23/2014 09/04/2014 09/24/2014 09/30/2014
09/30/2014 10/24/2014 10/24/2014 03/25/2015 03/25/2015

Record on Appeal for USCA5 14−10661 (related to 107 appeal): Appeal Record transmitted to Julie Stone @ Jones Day on disk only by mail. (tle) (Entered: 07/17/2014)
Record on Appeal for USCA5 14−10661 (related to 107 appeal): Appeal record transmitted to Adam Jed @ DOJ−Civil Appellate Division on disk only by mail. (tle) (Entered: 07/23/2014)
108 ORDER of USCA #14−10241 consolidated with No.14−10661, No.14−20112, No.14−40212 (MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW) as to 101 ; 107 Notice of Appeal. The court has granted an extension of time to and including September 16, 2014 for filing appellants' briefs in these cases. (tle) (Entered: 09/04/2014)
109 STIPULATION OF DISMISSAL of Plaintiffs Roman Catholic Diocese of Fort Worth and Our Lady of Victory Catholic School Without Prejudice by Sylvia M Burwell, Jacob J Lew, Our Lady of Victory Catholic School, Thomas Perez, Roman Catholic Diocese of Fort Worth, U.S. Department of Health and Human Services, U.S. Department of Treasury, United States Department of Labor. (Attachments: # 1 Proposed Order) (Ghorayeb, Basheer) (Entered: 09/24/2014)
110 RULE 54(b) FINAL JUDGMENT: Pursuant to the Stipulation of Dismissal of Plaintiffs Roman Catholic Diocese of Fort Worth and Our Lady of Victory Catholic School (doc. 109) and Federal Rule of Civil Procedure 41(a)(1)(A)(ii), these Plaintiffs' claims against Defendants are hereby DISMISSED WITHOUT PREJUDICE. Having determined that there is no just reason for delay, the Court ENTERS this final judgment under Federal Rule of Civil Procedure 54(b). Attorneys fees and costs of court under 28 U.S.C. § 1920 shall be borne by the party incurring them. Claims of the two remaining Plaintiffs, University of Dallas and Catholic Charities, Diocese of Fort Worth, Inc., are not affected by this judgment. (Ordered by Judge Terry R Means on 9/30/2014) (mdf) (Entered: 09/30/2014)
111 ORDER CHANGING CASE STYLE: Given the dismissal of the lead plaintiff in this cause, and the substitution of Sylvia M. Burwell as the lead defendant under Federal Rule of Civil Procedure 25(d), the clerk of this Court shall change the style of this cause to "Catholic Charities, Diocese of Fort Worth, Inc., et al. v. Sylvia Burwell, et al." All future filings in this cause shall bear the new style and the cause number 4:12−CV−314−Y. (Ordered by Judge Terry R Means on 9/30/2014) (mdf) (Entered: 09/30/2014)
112 Received letter from U.S. Court of Appeals Fifth Circuit re: No.14−10661. Enclosed is a copy of the judgment issued as the mandate as to Appellees Our Lady of Victory Catholic School and Roman Catholic Diocese of Fort Worth in case 14−10661. The appeal remains open as to Appellee Catholic Charities, Diocese of Fort Worth, Incorporated in 14−10661. Enclosed also is an updated caption. Please use this caption for all future filings. (tle) (Entered: 10/24/2014)
113 JUDGMENT/MANDATE of USCA #14−10661 as to 101 , 107 Notice of Appeal. The appeal is dismissed as of October 21, 2014,pursuant to appellee's unopposed motion to dismiss the appeal as to Appellees Roman Catholic Diocese of Fort Worth and Our Lady of Victory Catholic School only. ENTERED AT THE DIRECTION OF THE COURT. Issued as Mandate: 10/21/14. (tle) (Entered: 10/24/2014)
114 NOTICE of Attorney Appearance by Adam Anderson Grogg−DOJ on behalf of Sylvia M Burwell, Jacob J Lew, Thomas Perez, U.S. Department of Health and Human Services, U.S. Department of Treasury, United States Department of Labor. (Filer confirms contact info in ECF is current.) (Grogg−DOJ, Adam) (Entered: 03/25/2015)
115 Amended NOTICE of Attorney Appearance by Adam Anderson Grogg−DOJ on behalf of Sylvia M Burwell, Jacob J Lew, Thomas Perez, U.S. Department of Health and Human Services, U.S. Department of Treasury, United States Department of Labor. (Filer confirms contact info in ECF is current.) (Grogg−DOJ, Adam) (Entered: 03/25/2015)

Case: 4:12-cv-314 As of: 02/12/2016 03:13 PM CST 17 of 17

09/23/2015 09/28/2015 10/05/2015 10/07/2015

116 Unopposed MOTION to Withdraw as Attorney filed by Catholic Charities, Diocese of Fort Worth, Inc., University of Dallas (Attachments: # 1 Proposed Order) (Ghorayeb, Basheer) (Entered: 09/23/2015)
117 Unopposed MOTION to Withdraw John W. Crumley as Counsel for Plaintiffs filed by Catholic Charities, Diocese of Fort Worth, Inc., University of Dallas (Attachments: # 1 Proposed Order) (trs) (Entered: 09/28/2015)
118 ORDER granting 116 Motion to Withdraw as Attorney; granting 117 Motion to Withdraw. Attorney John W Crumley and James S Teater terminated. (Ordered by Judge Terry R Means on 10/5/2015) (trs) (Entered: 10/05/2015)
119 ORDER of USCA No. 14−10661 as to 107 Notice of Appeal, filed by U.S. Department of Treasury, Kathleen Sebelius, Hilda Solis, Timothy Geithner, Thomas Perez, Seth D Harris, United States Department of Labor, Jacob J Lew, U.S. Department of Health and Human Services, 101 Notice of Appeal,, filed by Hilda Solis, Thomas Perez, Roman Catholic Diocese of Fort Worth, Seth D Harris, United States Department of Labor, U.S. Department of Health and Human Services, Timothy Geithner, Kathleen Sebelius, U.S. Department of Treasury, Jacob J Lew. The unopposed motion of the appellees to stay issuance of the mandate pending the filing of a petition for writ of certiorari is GRANTED. (tle) (Entered: 10/07/2015)