2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 1 of 68 Pg ID 1

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

THE AVE MARIA FOUNDATION; )

AVE MARIA COMMUNICATIONS )

(a/k/a  “Ave  Maria  Radio”);;  DOMINO’S ) 

FARMS PETTING FARM;

)

RHODORA J. DONAHUE

)

ACADEMY, INC.; and THOMAS )

MORE LAW CENTER,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of )

the United States Department of Health )

and Human Services; UNITED

)

STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES; )

THOMAS E. PEREZ, Secretary of the )

United States Department of Labor; )

UNITED STATES DEPARTMENT OF )

LABOR; JACK LEW, Secretary of the )

United States Department of the

)

Treasury; and UNITED STATES

)

DEPARTMENT OF THE

)

TREASURY,

)

)

Defendants.

)

)

COMPLAINT

COMPLAINT

Plaintiffs The   Ave   Maria   Foundation,   Ave   Maria   Communications   (“Ave  

Maria Radio”),   Domino’s   Farms   Petting   Farm, Rhodora J. Donahue Academy,

Inc., and Thomas More Law Center (collectively   “Plaintiffs”), by and through

undersigned counsel, bring this Complaint against the above-named Defendants,
1

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 2 of 68 Pg ID 2
their employees, agents, and successors in office, and in support thereof state the following upon information and belief:
NATURE OF THE ACTION 1. This is a case about religious freedom. Thomas Jefferson, a Founding Father of our country, principal author of the Declaration of Independence, and our third president, when describing the construct of our Constitution proclaimed,  “No   provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against  the  enterprises  of  the  civil  authority.” Letter from Thomas Jefferson, United States Office of the President, to the Soc’y of the Methodist Episcopal Church at New London, Conn. (Feb. 4, 1809) cited in People v. Dejonge, 442 Mich. 266, 278 (1993) (emphasis added). 2. This is a challenge to regulations ostensibly issued under the  “Patient   Protection  and  Affordable  Care  Act”  (Pub.  L.  111-148, March 23, 2010, 124 Stat. 119)   and   the   “Health   Care   and   Education   Reconciliation Act”   (Pub.   L.   111-152, March 30, 2010, 124 Stat. 1029) (collectively known and hereinafter referred to as the   “Affordable   Care   Act”) that force individuals to violate their deepest held religious beliefs. 3. The Affordable Care Act, through a Mandate from the United States Department of Health and Human Services, attacks and desecrates a foremost tenet of the Catholic Church, as stated by Pope Paul VI in His 1968 encyclical Humanae
2

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 3 of 68 Pg ID 3
Vitae, that “any   action   which   either   before,   at   the   moment   of,   or   after   sexual   intercourse, is specifically intended to prevent procreation, whether as an end or as a  means”—including contraception, abortion, and abortifacients—is a grave sin.
4. One of the provisions of the Affordable Care Act mandates that health plans  “provide  coverage  for  and  shall  not  impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services  Administration”  and  directs  the  Secretary  of  the United States Department of Health and Human Services to determine what   would   constitute   “preventive care”  under  the  mandate.  42  U.S.C  §  300gg–13(a)(4).
5. Without notice of rulemaking or opportunity for public comment, the United States Department of Health and Human Services, the Secretary of Health and Human Services, the United States Department of Labor, the Secretary of Labor, the United States Department of Treasury, and the Secretary of the Treasury (collectively   “Defendants”)   adopted   and promulgated   an   interim   final   rule   (“the   Mandate”),   which   requires   that   all   “group   health   plan[s]   and   .   .   .   health   insurance   issuer[s]  offering  group  or  individual  health  insurance  coverage”  provide  all  FDAapproved contraceptive methods and procedures. 76 Fed. Reg. 46621 (published Nov. 3, 2011); 45 C.F.R. § 147.130.
3

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 4 of 68 Pg ID 4
6. The Mandate requires all group health plans (i.e. employee health insurance plans) and insurance issuers (e.g. Blue Cross/Blue Shield of Michigan) to provide contraception, abortion, and abortifacients in all of its insurance plans, group and individual.
7. Health Resources and Services Administration also issued guidelines adopting   the   Institute   of   Medicine   (“IOM”),   a   private   entity   hired   by   Defendants, recommendations. (http://www.hrsa.gov/womensguidelines).
8. Under the IOM guidelines, the Mandate requires all group health plans and insurance insurers to provide not only contraception, but also abortion, because   certain   drugs   and   devices   such   as   the   “morning-after   pill,”   “Plan   B,”   and   “ella”   come   within   the   Mandate’s   and   Health Resources and Services Administration’s   definition   of   “Food   and   Drug   Administration-approved contraceptive  methods”  despite  their  known  abortifacient  mechanisms  of  action.  
9. The Mandate forces employers and individuals to violate their religious beliefs because it requires employers and individuals to pay for insurance from insurance issuers which facilitate, fund and directly provide for drugs, devices, and services which violate their deeply held religious beliefs.
10. Since under the Mandate all employer group plans and insurance issuers must provide what the United States Department of Health and Human Services has  deemed  “preventive  care,”  employers and individuals are stripped of
4

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 5 of 68 Pg ID 5
any choice between insurance issuers or insurance plans to avoid violating their religious beliefs.
11. Defendants, in an unprecedented despoiling of religious rights, force religious employers and individuals, who believe that funding and providing for contraception, abortion, and abortifacients is wrong, to facilitate and participate in acts that violate their beliefs and their conscience—and are forced out of the health insurance market in its entirety in order to comply with their religious beliefs.
12. Plaintiffs seek a Preliminary Injunction, Permanent Injunction, and Declaratory   Judgment   against   Defendants’   implementation and enforcement of provisions of the regulations promulgated under the Affordable Care Act, specifically the Mandate. The Mandate violates Plaintiffs’   rights   to   the   free   exercise of religion, freedom under the Establishment Clause, and freedom of speech under the First Amendment to the United States Constitution, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
13. The Affordable Care Act’s contraception, abortion, and abortifacient mandate violates the rights of Plaintiffs The Ave Maria Foundation, Ave Maria Radio, Domino’s   Farms   Petting   Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center, as a non-profit, Catholic organizations, which are devoutly Catholic-run, non-profit companies.
5

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 6 of 68 Pg ID 6
14. Defendants refused to exempt religious, non-profit organizations, such as Plaintiffs The Ave Maria Foundation, Ave Maria Radio, Domino’s   Farms   Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center from   the   Mandate’s   requirements.      Instead,   Defendants   created an inadequate “accommodation”   for   religious,   non-profit organizations that still requires such organizations to facilitate coverage for contraceptives, abortion, and abortifacients contrary to their sincerely held religious beliefs.
15. Plaintiffs bring this action to vindicate not only their own rights, but also to protect the rights of all Americans who care about our Constitutional guarantees of free exercise of religion and their freedom of speech, as well as the protection of innocent human life.
JURISDICTION AND VENUE 16. This action in which the United States is a defendant arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1346. 17. Plaintiffs’   claims   for   declaratory   and   preliminary   and   permanent   injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by 28 U.S.C. § 2000bb-1, and by the general legal and equitable powers of this Court.
6

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 7 of 68 Pg ID 7
18. Venue is proper under 28 U.S.C. § 1391(e) because this is the judicial district in which Plaintiffs are located.
PLAINTIFFS 20. Thomas Monaghan, a Catholic philanthropist, created The Ave Maria Foundation, to promote and spread Catholic education, Catholic media, community projects, and other Catholic charities. 21. The Ave Maria Foundation is a Michigan nonprofit corporation. 22. The Ave Maria Foundation is located at One Ave Maria Drive, P.O. Box 373, Ann Arbor, Michigan 48106. 23. The Ave Maria Foundation was founded in fidelity to the Magisterial Teaching of the Catholic Church and these teachings are and have been observed by the Ave Maria Foundation throughout its existence in accordance with the stated intention and desire of the directors and trustees of the Ave Maria Foundation that the organization retain in perpetuity its identity as such an organization. 24. The Ave Maria Foundation is organized exclusively for religious, nonprofit, educational, and scientific purposes that qualify as exempt under Section 501(c)(3) of the Internal Revenue Code of 1986, primarily receiving and administering funds to support the advancement of the Roman Catholic faith and the Apostolic Mission of the Church, including evangelization and education of the
7

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 8 of 68 Pg ID 8
Faith, through support of educational institutions which operate consistently with Ex Corde Ecclesia, and through the use of media, including without limitation, radio, television, motion pictures and global telecommunications networks.
25. In furtherance of its mission, The Ave Maria Foundation supports educational institutions that teach the principals of the Catholic tradition and the moral and social teachings of the Roman Catholic Church, and such other subjects of investigation relating thereto, and it supports the education of the general public in the teachings, precepts, tenets, purposes, personalities, clergy and saints of the Church through operation or support of radio and television stations, syndicated radio and television programming and through the commissioning and distribution of books, artwork, movies and similar works of authorship, either directly or through support of organizations, institutions or corporations that engage in such activities.
26. The Ave Maria Foundation exists to serve the common good, as elaborated in the moral and social teachings of the Roman Catholic Church, and to foster the Kingdom of God on earth through teaching the inherent dignity of every human being, a dignity based on our creation in the image and likeness of God and raised to a new level by our redemption in Jesus Christ.
27. As stated in the Ave Maria Foundation handbook, which covers each Plaintiff  organization,  “We  acknowledge  the  Sacred  Heart  of  Jesus  as  the  true  head
8

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 9 of 68 Pg ID 9
of the organization and we dedicate our work and all that we are to Him. We ask for his blessing, protection and faithfulness to keep His promises. We believe each employee  contributes  directly  to  his  or  her  Employer’s  success,  and  we  hope  [each   employee]  will  take  pride  in  being  a  member  of  the  team.”
28. Employees of each Plaintiff organization are provided paid holiday vacation on Holy Days of Obligation of the Roman Catholic Church so that they are free to attend Mass.
29. All employees of any employer covered by the handbook and located in   Michigan   have   access   to   the   Domino’s   Farms   Chapel.   The   Chapel   holds   daily   Mass twenty-three times a week Monday through Saturday, and has periods of scheduled prayer along with offering a quiet refuge for prayer and contemplation.
30. The Ave Maria Foundation, ensured that our insurance policy contained exclusions to reflect my deeply held religious beliefs, which are directly in line with the beliefs of The Ave Maria Foundation—and are the beliefs upon which the Foundation was created.
31. Therefore, The Ave Maria Foundation cannot pursuant to its sincerely held religious beliefs to facilitate access to, participate in, pay for, train others to engage in, or otherwise support contraception, abortion, sterilization, and abortifacients.
9

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 10 of 68 Pg ID 10
32. Plaintiff Rhodora J. Donahue Academy, Inc. is supported through The Ave Maria Foundation.
33. Plaintiff Rhodora J. Donahue Academy, Inc., is a Florida non-profit corporation that operates as a primary educational institution offering K-12 education grounded in the traditions of the Roman Catholic Church.
34. Plaintiff Rhodora J. Donahue Academy located at 4955 Seton Way, Ave Maria, Florida 34142.
35. Plaintiff Rhodora J. Donahue Academy is committed to the teachings of the Catholic Church and celebrates Mass daily on-site in their chapel. Mass is held for students, staff, faculty, and their family members.
36. Plaintiff Ave Maria Communications (a/k/a Ave Maria Radio) is a Michigan nonprofit corporation that furthers the education of individuals in the Catholic religion by producing Catholic radio programming and by employing radio, internet, and other media to offer news, analysis, teaching, devotions, and music that demonstrates the good news that Jesus is Lord over all areas of life and that the teachings of Christ, through His Church, offers a rational view of the world, a deep sense of spirituality, a firm family life, enhanced human relationships, and the creation of a culture of life and love.
37. Plaintiff Ave Maria Communications is located at One Ave Maria Drive, P.O. Box 504, Ann Arbor, Michigan 48106.
10

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 11 of 68 Pg ID 11
38. Plaintiff Thomas More Law Center is a Michigan nonprofit corporation.
39. Plaintiff Thomas More Law Center is a public interest law firm dedicated to education and litigation on issues of human life, religious freedom, and traditional family values. It exists to educate and defend citizens of the United States with respect to their constitutional rights and liberties and, in furtherance of those goals, to conduct scholarly research, publish writings, litigate cases, and produce educational speeches and materials related to issues of religious freedom, traditional family values, and the sanctity of life.
40. Plaintiff Thomas More Law Center is located at 24 Frank Lloyd Wright Drive, P.O. Box 393, Ann Arbor, Michigan, 48170.
41. Plaintiff Domino’s   Farms   Petting   Farm   is   a   Michigan   nonprofit   corporation that was founded pursuant to Catholic teaching to foster an understanding and appreciation of an agricultural lifestyle and to operate an animal petting farm and other related events for educational purposes.
42. Plaintiff   Domino’s   Farms   Petting   Farm   is   located at 24 Frank Lloyd Wright Drive, P.O. Box 534, Ann Arbor, Michigan 48106.
43. Prior to the issuance of the Mandate, Plaintiffs engineered an insurance policy with Blue Cross/Blue Shield of Michigan and through The Ave Maria Foundation that specifically excluded contraception, abortion, and
11

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 12 of 68 Pg ID 12
abortifacients, and exempts Plaintiffs from facilitating access to, providing, paying for, contributing to, or supporting contraception and contraception, abortion, and abortifacients for others.
44. Plaintiffs obtained these exclusions due to their deeply held religious beliefs and to comply with the organizations’ mission and purpose.
45. Plaintiffs’   employees receive insurance under this engineered insurance policy with Blue Cross/Blue Shield of Michigan which specifically excluded contraception, abortion, and abortifacients, and exempts Plaintiff from facilitating, providing, paying, contributing, or supporting contraception and contraception, abortion, and abortifacients for others.
46. Plaintiffs ensured that their insurance policy contained these exclusions to reflect their deeply held religious beliefs.
47. Based on the teachings of the Catholic Church, and their deeply held religious beliefs, Plaintiffs do not believe that contraception, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well-being of persons. Indeed, Plaintiffs believe these procedures involve gravely immoral practices, specifically the intentional destruction of innocent human life.
12

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 13 of 68 Pg ID 13
DEFENDANTS 48. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing the Mandate. 49. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Defendant Sebelius is sued in her official capacity only. 50. Defendant HHS is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit. 51. Defendant Thomas Perez is the Secretary of the United States Department of Labor. In this capacity, he holds responsibility for the operation and management of the United States Department of Labor. Defendant Perez is sued in his official capacity only. 52. Defendant United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit. 53. Defendant Jack Lew is the Secretary of the United States Department of the Treasury. In this capacity, he holds responsibility for the operation and
13

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 14 of 68 Pg ID 14
management of the United States Department of Treasury. Defendant Lew is sued in his official capacity only.
54. Defendant United States Department of Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the regulation which is the subject of this lawsuit.
FACTUAL ALLEGATIONS Plaintiffs’ Religious Beliefs
55. Plaintiffs hold and actively profess religious beliefs in accordance with the traditional Christian teachings on the sanctity of life. Plaintiffs believe that each human being bears the image and likeness of God, and therefore that all human life is sacred and precious, from the moment of conception. Plaintiffs therefore believe that abortion ends a human life and is a grave sin. Therefore, Plaintiffs sincerely believe that facilitating access to or providing contraception, abortion inducing drugs (abortifacients), or abortion through their employee group insurance plan is a grave sin.
56. Plaintiffs’ religious beliefs also include traditional Christian teaching on the nature and purpose of human sexuality. In particular, Plaintiffs believe, in accordance   with   Pope   Paul   VI’s   1968   encyclical   Humanae Vitae, that human sexuality   has   two   primary   purposes:   to   “most   closely   unit[e]   husband   and   wife”  
14

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 15 of 68 Pg ID 15
and  “for  the  generation  of  new  lives.”    Accordingly, Plaintiffs believe and actively profess,  with  the  Catholic  Church,  that  “[t]o  use  this  divine  gift  destroying,  even  if   only partially, its meaning and its purpose is to contradict the nature both of man and of woman and of their most intimate relationship, and therefore it is to contradict also the   plan   of   God   and   His   Will.”      Therefore, Plaintiffs believe and teach   that   “any   action   which   either   before,   at   the   moment   of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a  means”—including contraception—is a grave sin.
57. Furthermore, Plaintiffs subscribe to authoritative Catholic teaching about the proper nature and aims of health care and medical treatment. For instance, Plaintiffs believe,  in  accordance  with  Pope  John  Paul  II’s  1995  encyclical   Evangelium Vitae,   that   “‘[c]ausing   death’   can   never   be   considered   a   form   of   medical   treatment,”   but   rather   “runs   completely   counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.”  
58. Plaintiffs hold a sincere religious objection to facilitating access to contraception, abortifacients, or abortion. This objection includes all drugs, devices, and services that constitute contraception, abortifacients, or abortion, including  “emergency  contraceptives”  Plan  B  and  ella.
15

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 16 of 68 Pg ID 16
59. Because  of  Plaintiffs’  religious  convictions  concerning  the  sanctity  of   life, Plaintiffs cannot participate in any scheme to facilitate or provide access to contraceptive or abortifacient drugs, services or devices.
60. Recently, leaders within the Catholic Church have publicly spoken out about how the Mandate is a direct violation of Catholic Faith.
61. Cardinal Timothy Dolan, Archbishop of New York and President of the  United  States  Conference  of  Catholic  Bishops  wrote,  “Since  January  20  [2012],   when the final, restrictive HHS Rule was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. We recall the words of our Holy Father Benedict XVI to our brother bishops   on   their   recent   ad   limina   visit:   ‘Of   particular   concern   are   certain   attempts   being made to limit that most cherished of American freedoms, the freedom of religion.’    We  have  made  it  clear  in  no  uncertain  terms  to  the  government  that  we   are not at peace with its invasive attempt to curtail the religious freedom we cherish  as  Catholics  and  Americans.”    (http://www.usccb.org, last visited Nov. 29, 2013).
62. Archbishop Charles J. Chaput, the Archbishop of Philadelphia, has expressed   that   the   Affordable   Care   Act   and   the   Mandate   seek   “to   coerce   Catholic   employers, private and corporate, to violate their religious convictions . . . [t]he HHS mandate, including its latest variant, is belligerent, unnecessary, and deeply
16

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 17 of 68 Pg ID 17
offensive to the content of Catholic belief . . . The HHS mandate needs to be rescinded. In reality, no similarly aggressive attack on religious freedom in our country has occurred in recent memory . . . [t]he HHS mandate is bad law; and not merely bad, but dangerous and insulting. It needs to be withdrawn—now.” (http://the-american-catholic.com/2012/02/14/archbishop-chaput-hhs-mandatedangerous-and-insulting/, last visited Nov. 29, 2013).
63. Leaders in the Catholic Church have also stated that the “accommodation”   made   for   non-profit religious organizations, such as Plaintiffs The   Ave   Maria   Foundation,   Ave   Maria   Radio,   Domino’s   Farms   Petting   Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center, is a failed accommodation as it does alleviate the direct violation of the Catholic Faith imposed by Mandate.
64. Cardinal Timothy Dolan has stated in critique of the so-called accommodation, “there   is   only   one   policy,   and   it   is   the   one   sponsored   by   the   Catholic employer. The objectionable items will still be paid by virtue of the fact that   an   employee   belongs   to   the   Catholic   employer’s   plan.”   (http://www.usccb.org/news/2013/13-137.cfm, last visited Nov. 29, 2013); see also (http://www.usccb.org/issues-and-action/religious-liberty/conscienceprotection/upload/Feb2013-_Version_Mandate_Factsheet.pdf, last visited Nov. 29, 2013).
17

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 18 of 68 Pg ID 18
65. Plaintiffs’   insurance plans do not cover contraception, abortifacients, or medical abortions. Plaintiffs The Ave Maria Foundation, Ave Maria Radio,   Domino’s   Farms   Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center
66. Plaintiffs The Ave Maria Foundation, Ave Maria Radio,   Domino’s   Farms Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center, are Catholic organizations which adhere to the teachings of the Catholic Church.
67. Plaintiffs The Ave Maria Foundation, Ave Maria Radio,   Domino’s   Farms Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center are non-profit organizations recognized by the Internal Revenue Service as 501(c)(3) organizations.
68. Plaintiffs The Ave Maria Foundation, Ave Maria Radio,   Domino’s   Farms Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center share the Ave Maria Employee Health Plan, the same plan shared with Legatus—an The Ave Maria Foundation non-profit company. The Ave Maria Employee Health Plan is a group insurance plan purchased through insurance issuer Blue Cross/Blue Shield of Michigan. This plan provides this insurance to all Plaintiffs’ and Legatus’ full-time employees.
18

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 19 of 68 Pg ID 19
69. Plaintiffs The Ave Maria Foundation, Ave Maria Radio,   Domino’s   Farms Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center have striven over the years to provide its employees with employee health coverage superior to coverage generally available in the Michigan market in order to be a competitive employer.
70. Plaintiffs The Ave Maria Foundation, Ave Maria Radio, Domino’s Farms Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center specifically designed a health insurance plan with Blue Cross/Blue Shield of Michigan to exclude contraception, abortion, and abortifacients in line with their religious beliefs and in line with their missions as Catholic-run organizations.
71. Moreover, as part of its religious commitment to the authoritative teachings of the Catholic Church, Plaintiffs educate about the teachings of the Catholic Church and steadfastly avoids practices that subvert the teaching of the Catholic Church such as providing or funding drugs, devices, services or procedures inconsistent with its faith.
72. Plaintiffs have taken great pains through the years to ensure that its employees’  insurance  plans do not cover contraception or abortion.
73. Plaintiffs cannot facilitate, provide, fund, or participate in health care insurance which covers artificial contraception, abortion, or abortifacients, or
19

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 20 of 68 Pg ID 20
related education and counseling, without violating its deeply held religious beliefs.
74. Plaintiffs cannot provide information or guidance to its employees or its members regarding artificial contraception, abortion, abortifacients or related education and counseling, without violating their deeply held religious beliefs.
75. Pursuant to Plaintiffs’ mission and beliefs, Plaintiffs will continue to adhere to, disseminate, and report reliable Catholic teachings on morality and practices in its business dealings and in its advice to employees and members, as they have declared since their inception.
76. With full knowledge of these aforementioned beliefs, Defendants issued the Mandate that  runs  roughshod  over  Plaintiffs’  religious  beliefs,  and  the   beliefs of millions of other Americans.
77. The Mandate not only forces Plaintiffs to facilitate access to contraception, abortion, and related education and counseling as health care, but also   subverts   the   expression   of   Plaintiffs’   religious   beliefs,   and   the   beliefs   of   millions of other Americans, by forcing Plaintiffs to fund, promote, and assist others to acquire services which Plaintiffs believe involve gravely immoral practices, including the destruction of innocent human life.
78. The Mandate unconstitutionally coerces Plaintiffs to violate their deeply-held religious beliefs under threat of directly violating their consciences, in
20

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 21 of 68 Pg ID 21
addition to any imposed fines and penalties. The Mandate also forces Plaintiffs to fund government-dictated speech that is directly at odds with their own speech and religious beliefs. Having to pay a fine to the taxing authorities or being entirely forced out of the insurance market in order to ensure the privilege of practicing one’s   religion   or   controlling   one’s   own   speech   substantially   burdens   Plaintiffs’   religious liberty and freedom of speech under the First Amendment.
79. The Mandate strips the Plaintiffs of any choice to select an insurance plan that does not lead to access to contraception, abortion, and abortifacients, as the Mandate requires that all group insurance plans and insurance issuers provide this coverage or at minimum facilitate access to this coverage.
80. Plaintiffs’ plans are not “grandfathered”   and   will   be   subject   to   the   provisions of the Mandate. Plaintiffs’   health   care   plans   are   not   a   grandfathered   plan under the Affordable Care Act for multiple reasons, including, but not limited to,  the  following:  (1)  the  health  care  plans  do  not  include  the  required  “disclosure   of   grandfather   status”   statement;;   (2)   Plaintiffs   do   not   take   the   position   that   its   health care plans are grandfathered plans and thus do not maintain the records necessary to verify, explain, or clarify their status as grandfathered plans; and (3) the health care plans have an increase in a percentage cost-sharing requirement measured from March 23, 2010. See 42 U.S.C. § 18011(a) (2); 26 C.F.R. §
21

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 22 of 68 Pg ID 22
54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. §147.140. Plaintiffs have never been informed or received notice that their plans were grandfathered.
81. Due to the Mandate, Plaintiffs The Ave Maria Foundation, Ave Maria Radio,   Domino’s   Farms   Petting   Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center will no longer be allowed to exclude contraception, abortion, and abortifacients from their insurance plans—and will be forced to facilitate access to and provide for these services which violate its religious beliefs.
82. Plaintiffs wish to conduct their business in a manner that does not violate the principles of their religious faith.
83. Complying with the Mandate requires a direct violation of the Plaintiffs’ religious beliefs because it requires Plaintiffs to facilitate access to or assist others in obtaining not only contraception, but also abortion, because certain drugs   and   devices   such   as   the   “morning-after   pill,”   “Plan   B,”   and   “ella”   come   within   the   Mandate’s   and   Health   Resources   and   Services   Administration’s   definition of   “Food   and   Drug   Administration-approved   contraceptive   methods”   despite their known abortifacient mechanisms of action.
84. Defendants’   refusal   to   accommodate   the   conscience of the Plaintiffs, and of other Americans who share the Plaintiffs’   religious   views, is highly selective. Numerous exemptions exist in the Affordable Care Act which appear arbitrary and were granted to employers who purchase group insurance. This
22

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 23 of 68 Pg ID 23
evidences that Defendants do not mandate that all insurance plans need to cover “preventive services”  (e.g.  the  thousands of waivers from the Affordable Care Act issued by Defendants for group insurance based upon the commercial convenience of large corporations, the age of the insurance plan, or the size of the employer). See, e.g., 45 C.F.R. § 147.126(d)(3).
85. Despite granting waivers upon a seemingly arbitrary basis, no exemption exists for an employer or individual whose religious conscience instructs him that certain mandated services are unethical, immoral, and volatile to one’s  religious  beliefs.      Defendants’  plan  fails to give the same level of weight or accommodation to   the   exercise   of   one’s   fundamental   First   Amendment   freedoms   that it assigns to the yearly earnings of a corporation.
86. The  Defendants’  actions  violate  Plaintiffs’  right  to  freedom  of  religion,   as secured by the First Amendment to the United States Constitution and civil rights statutes, including the Religious Freedom Restoration Act (RFRA).
87. The  Defendants’  actions  also  violate  Plaintiffs’  right  to  the  freedom  of   speech, as secured by the First Amendment to the United States Constitution.
88. Furthermore, the Mandate is also illegal because it was imposed by Defendants without prior notice or sufficient time for public comment, and otherwise violates the Administrative Procedure Act, 5 U.S.C. § 553.
23

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 24 of 68 Pg ID 24
89. Had   Plaintiffs’   religious   beliefs or the beliefs of the million other Americans   who   share   Plaintiffs’   religious   beliefs   been   obscure   or   unknown,   the   Defendants’   actions   might   have   been   an   accident.      But   because   the   Defendants   acted with full knowledge of those beliefs, and because they arbitrarily exempt some plans for a wide range of reasons other than religious conviction, the Mandate can be interpreted as nothing other than a deliberate attack by the Defendants on the Catholic Church, the religious beliefs held by Plaintiffs and the similar religious beliefs held by millions of other Americans. The Defendants have, in sum, intentionally used government power to force individuals to facilitate access to, believe in, support, and endorse the mandated services manifestly contrary to their own religious convictions, and then to act on that coerced belief, support, or endorsement. Plaintiffs seek declaratory and injunctive relief to protect against this attack. The Affordable Care Act
90. In March 2010, Congress passed, and President Obama signed into law, the “Patient  Protection  and  Affordable  Care  Act”  (Pub.  L.  111-148, March 23, 2010,  124  Stat.  119)  and  the  “Health  Care  and  Education  Reconciliation  Act”  (Pub.   L. 111-152, March 30, 2010, 124 Stat. 1029) (referred to in this complaint as the “Affordable  Care  Act”).
24

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 25 of 68 Pg ID 25
91. The Affordable Care Act regulates the national health insurance market  by  directly  regulating  “group  health  plans”  and  “health  insurance  issuers.”  
92. The Affordable Care Act does not apply equally to all insurers. 93. The Affordable Care Act does not apply equally to all individuals. 94. Plaintiffs must provide federal government-approved health insurance under the Affordable Care Act or pay substantial per-employee fines. 95. The Affordable Care Act applies different fines and penalties to employers with fewer than 50 employees. An employer with fewer than 50 employees may drop insurance all together without incurring a fine. 26 U.S.C. § 4980H(c)(2)(A). However, if an employer with fewer than 50 employees supplies insurance, then it must comport with the Affordable Care Act and the Mandate or be subject to a $100 per day, per employee fine each year. 26 U.S.C. § 4980D(a). 96. Employers with more than 50 employees are subject to two fines for noncompliance with the Affordable Care Act and the Mandate. 26 U.S.C. § 4980H ($2,000 per employee annually); 26 U.S.C. § 4980D(a) ($100 per day, per employee annually). 97. Certain provisions of the Affordable Care Act do not apply equally to members of certain religious groups. See, e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii)  (individual  mandate  does  not  apply  to  members  of  “recognized  religious  sect  or   division”  that  conscientiously  objects  to  acceptance  of  public  or  private insurance
25

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 26 of 68 Pg ID 26
funds); 26 U.S.C. § 5000A(d)(2)(B)(ii) (individual mandate does not apply to members  of  “health  care  sharing  ministry”  that  meets  certain  criteria).  
98. Plaintiffs do not qualify for an individual exemption under 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) as Plaintiffs do not object to acceptance of public or private insurance funds in their totality and currently enjoy health insurance benefits that exclude contraceptives, abortion, and abortifacients.
99. The Affordable Care Act’s  preventive  care  requirements do not apply to employers who provide so-called  “grandfathered”  health  care  plans.  
100. Employers who follow HHS guidelines may continue to use grandfathered plans indefinitely.
101. Plaintiffs’   current insurance plans do not qualify   as   “grandfathered”   health care plans,  and  are  considered  “non-grandfathered.”
102. Furthermore, Plaintiffs do not qualify for the “religious   employer”   exemption. This exemption only covers nonprofit entities referred to in § 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code, which refers to churches, their integrated auxiliaries, associations of churches, and the exclusively religious activities of religious orders. 78 Fed. Reg. at 39,874.
103. Plaintiffs are thus subjected to the Mandate now and are confronted with choosing between complying with its requirements in violation of their religious beliefs or violating federal law.
26

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 27 of 68 Pg ID 27
104. Plaintiffs must choose between complying with the requirements of the Affordable Care Act in violation of their religious beliefs or either paying ruinous fines that would have a crippling impact on their ability to survive economically.
105. Plaintiffs are confronted with complying with the requirements of the Affordable Care Act in violation of their religious beliefs or removing themselves from the health insurance market in its entirety—endangering the health and economic stability of their families and forcing Plaintiffs to be non-competitive as employers in a market where other, non-Catholic employers will be able to provide insurance to their employees under the Affordable Care Act without violating their religious beliefs.
106. The Affordable Care Act is not generally applicable because it provides for numerous exemptions from its rules.
107. The Affordable Care Act is not neutral because some groups, both secular and religious, enjoy exemptions from the law, while certain religious groups do not. Some groups, both secular and religious, have received waivers from complying with the provisions of the Affordable Care Act, while others— such as the Plaintiffs—have not.
108. The Affordable Care Act creates a system of individualized exemptions.
27

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 28 of 68 Pg ID 28
109. The United States Department of Health and Human Services has the authority under the Affordable Care Act to   grant   compliance   waivers   (“HHS   waivers”)  to  employers  and other health insurance plan issuers.
110. HHS waivers release employers and other plan issuers from complying with the provisions of the Affordable Care Act.
111. HHS decides whether to grant waivers based on individualized waiver requests from particular employers and other health insurance plan issuers.
112. Upon information and belief, more than a thousand HHS waivers have been granted. The “Preventive Care” Mandate
113. A provision of the Affordable Care Act mandates that health plans “provide  coverage  for  and  shall  not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services  Administration”  and  directs  the  Secretary of United States Department of Health  and  Human  Services  to  determine  what  would  constitute  “preventive  care”   under the mandate. 42 U.S.C § 300gg–13(a)(4).
114. Defendants promulgated a mandate that group health plans include coverage for all Food and Drug Administration-approved contraceptive methods and procedures, patient education, and counseling for all women with reproductive
28

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 29 of 68 Pg ID 29
capacity   in   plan   years   beginning   on   or   after   August   1,   2012   (hereafter,   “the   Mandate”).      See 45 CFR § 147.130 (a)(1)(iv), as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources and Services Administration (HRSA) Guidelines, (http://www.hrsa.gov/womensguidelines).
115. The Mandate was enacted pursuant to statutory authority under the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended by the Health Care and Education Act of 2010, Pub. L. No. 111-152 (ACA). 77 Fed. Reg.  31,  8725  (“Affordable Care Act”).    
116. In its ruling, HHS included all FDA-approved contraceptives under the banner of preventive services, including contraception, abortion, and abortifacients  such  as  the  “morning-after  pill,”  “Plan  B,”  and  “ella,”  a  close  cousin   of the abortion pill RU-486. (http://www.hrsa.gov/womensguidelines).
117. The   Mandate’s   reach   seeks   to   control   the   decisions   of   employers,   individuals and also the decisions of all insurance   issuers   (i.e.   “Blue   Cross/Blue   Shield  of  Michigan,”  etc.).    42 USC § 300gg-13 (a)(1),(4). (“A  group  health  plan   and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for evidence-based items or services that have in effect a rating   of   “A”   or   “B”   in   the   current   recommendations   of   the   United   States   Preventive Services Task Force; . . . with respect to women, such additional
29

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 30 of 68 Pg ID 30
preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration  for  purposes  of  this  paragraph.”).    
118. All group insurance plans and insurance issuers are mandated to include contraception,  abortion,  and  abortifacients  such  as  the  “morning-after  pill,”   “Plan   B,”   and   “ella”   in   all of its group and individual plans, not specifically exempted, beginning as of August 1, 2012.
119. Individuals and employers, regardless of the number of employees they employ, will eventually be forced to select an insurance plan which includes what  HHS  deemed  “preventive  care.”    
120. All individuals and employers will be stripped of their choice not to pay   for   the   “preventive   care,”   regardless   of   whether   paying   for   such   “services”   violates  one’s  conscience  or  deeply held religious beliefs.
121. Health insurance issuers include insurance companies such as Blue Cross/Blue Shield of Michigan, which is the insurance issuer used by Plaintiffs.
122. The Mandate reaches even further than the Affordable Care Act to eliminate all employers and individuals from selecting a health insurance plan in which the insurance issuers do not automatically provide contraception, abortion, and abortifacients.
30

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 31 of 68 Pg ID 31
123. Prior to promulgating the Mandate, Defendants accepted public comments to the 2010 interim final regulations from July 19, 2010 to September 17, 2010. Upon information and belief, a large number of groups filed comments, warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of services, including contraception, abortion, and abortifacients.
124. On July 19, 2010, Defendants published an interim final rule (the Mandate) under the Affordable Care Act. 75 Fed. Reg. 41726 (2010). The interim final rule required providers of group health insurance to cover preventive care for women as provided in guidelines to be published by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 (2010).
125. The July 19, 2010 interim final rule was enacted without prior notice of rulemaking or opportunity for public comment, because Defendants determined for  themselves  that  “it  would  be  impracticable and contrary to the public interest to delay putting the provisions . . . in place until a full public notice and comment process  was  completed.”  75  Fed.  Reg.  at  41730.
126. Although Defendants suggested in the Interim Final Rule that they would solicit public comments  after  implementation,  they  stressed  that  “provisions   of the Affordable Care Act protect   significant   rights”   and   therefore it was
31

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 32 of 68 Pg ID 32
expedient   that   “participants,   beneficiaries, insureds, plan sponsors, and issuers have  certainty  about  their  rights  and  responsibilities.”  Id.
127. Defendants   stated   they   would   later   “provide   the   public   with   an   opportunity for comment, but without delaying the effective date of the regulations,”  demonstrating  their  intent to impose the regulations regardless of the legal flaws or general opposition that might be manifest in public comments. Id.
128. In   addition   to   reiterating   the   Affordable   Care   Act’s   preventive services coverage requirements, the Interim Final Rule provided further guidance concerning  the  Act’s  restriction on cost sharing.
129. The  Interim  Final  Rule  makes  clear  that  “cost  sharing”  refers  to  “outof-pocket” expenses for plan participants and beneficiaries. 75 Fed. Reg. at 41730.
130. The Interim Final Rule acknowledges that, without cost sharing, expenses  “previously paid out-of-pocket”  would  “now  be  covered  by  group  health   plans  and  issuers”  and  that  those expenses  would,  in  turn,  result  in  “higher  average premiums for all enrollees.”    Id.; see also id. at 41737  (“Such  a  transfer  of  costs   could   be   expected   to   lead   to   an   increase   in   premiums.”).   In   other   words,   the   prohibition on cost-sharing  was  simply  a  way  “to  distribute  the  cost of preventive services   more   equitably   across   the   broad   insured   population.”   75   Fed.   Reg.   at 41730.
32

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 33 of 68 Pg ID 33
131. After the Interim Final Rule was issued, numerous commenters warned against the potential conscience implications of requiring religious individuals and organizations to include certain kinds of services—specifically contraception, sterilization, and abortion services—in their health care plans.
132. Defendants directed a private health policy organization, the Institute of Medicine (IOM), to make recommendations regarding which drugs, procedures, and services all health plans should cover as preventive care for women.
133. In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli,   the   National   Women’s   Law   Center,   National   Women’s   Health   Network,   Planned Parenthood Federation of America, and Sara Rosenbaum.
134. No religious groups or other groups that opposed governmentmandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
135. On July 19, 2011, the IOM published its preventive care guidelines for women, including   a   recommendation   that   preventive   services   include   “[a]ll   Food and Drug Administration approved contraceptive methods [and] sterilization
33

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 34 of 68 Pg ID 34
procedures.”   Institute   of Medicine, Clinical Preventive Services for Women: Closing the Gaps, at 102-10 and Recommendation 5.5 (July 19, 2011).
136. FDA-approved contraceptive methods include contraception, abortifacients, birth-control pills, contraceptive devices such as IUDs, Plan B (also known  as  the  “morning-after  pill”), ulipristal (also  known  as  “ella”  or  the  “weekafter  pill”), and other drugs, devices, and procedures.
137. Some of these drugs and devices—including   the   “emergency   contraceptives”   Plan   B   and ella and certain IUDs—are known abortifacients, in that they can cause the death of an embryo by preventing it from implanting in the wall of the uterus.
138. Indeed,   the   FDA’s   own   Birth   Control   Guide   states   that   both   Plan   B   and ella can work by “preventing  attachment  (implantation)  to  the  womb  (uterus).”   FDA,   Office   of   Women’s   Health, Birth Control Guide at 16-17, available at (http://www.fda.gov/ForConsumers/ByAudience/ForWomen/ucm118465.htm, last visited Nov. 29, 2013).
139. On August 1, 2011, thirteen days after IOM issued its recommendations, HRSA issued guidelines adopting them in full. (http://www.hrsa.gov/womensguidelines, last visited Nov. 29, 2013).
34

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 35 of 68 Pg ID 35
The  “Religious  Employers”  Exemption 140. That same day, Defendants promulgated an additional Interim Final
Rule. 76 Fed. Reg. 46621 (Nov. 3, 2011). 141. This  Second  Interim  Final  Rule  granted  HRSA  “discretion  to  exempt  
certain religious employers from the Guidelines where contraceptive services are concerned.”  76  Fed.  Reg.  46621,  46623.
142. The   term   “religious   employer”   was   restrictively   defined   as   one   that   (1)  has  as  its  purpose  the  “inculcation  of  religious  values”;;  (2)  “primarily  employs persons  who  share   the  religious  tenets  of  the  organization”;;  (3)   “serves  primarily   persons  who  share  the  religious  tenets  of  the  organization”;;  and  (4)  “is  a  nonprofit   organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of  the  Internal  Revenue  Code  of  1986,  as  amended.”  76  Fed.  Reg.  at  46626.
143. The  fourth  of  these  requirements  refers  to  “churches,  their  integrated   auxiliaries,   and   conventions   or   associations   of   churches”   and   the   “exclusively   religious activities of any religious  order.”    26  U.S.C.A.  §  6033.
144. Thus,   the   “religious   employers”   exemption   was   severely   limited   to   formal churches, their integrated auxiliaries, and religious orders whose purpose is to inculcate faith and that hire and serve primarily people of their own faith tradition.
35

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 36 of 68 Pg ID 36
145. HRSA exercised its discretion to grant an exemption for religious employers   via   a   footnote   on   its   website   listing   the   Women’s   Preventive   Services   Guidelines.    The  footnote  states  that  “guidelines  concerning  contraceptive  methods   and counseling described above do not apply to women who are participants or beneficiaries   in   group   health   plans   sponsored   by   religious   employers.”   (http://www.hrsa.gov/womensguidelines, last visited Nov. 29, 2013).
146. Although religious organizations share the same religious beliefs and concerns as objecting churches, their integrated auxiliaries, and objecting religious orders, Defendants deliberately ignored the regulation’s   impact   on   their   religious   liberty, stating that the exemption sought only   “to   provide   for   a religious accommodation that respects the unique relationship between a house of worship and  its  employees  in  ministerial  positions.”  76  Fed.  Reg.  46621, 46623.
147. Thus, the vast majority of religious organizations with conscientious objections to providing contraceptive or abortifacient services were excluded from the  “religious  employers” exemption.
148. Like the original Interim Final Rule, the Second Interim Final Rule was made effective immediately, without prior notice or opportunity for public comment.
149. Defendants   acknowledged   that   “while   a   general   notice   of   proposed   rulemaking and an opportunity for public comment is generally required before
36

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 37 of 68 Pg ID 37
promulgation   of   regulations,”   they had   “good cause”   to   conclude   that   public   comment   was   “impracticable,   unnecessary,   or contrary to   the   public   interest”   in   this instance. 76 Fed. Reg. at 46624.
150. Upon information and belief, after the Second Interim Final Rule was put into effect, over 100,000 comments were submitted opposing the narrow scope of  the  “religious  employers” exemption and protesting  the  contraception  mandate’s   gross infringement on the rights of religious individuals and organizations.
151. Defendants did not take into account the concerns of religious organizations in the comments submitted before the Second Interim Rule was issued.
152. Instead the Second Interim Rule was unresponsive to the concerns, including claims of statutory and constitutional conscience rights, stated in the comments submitted by religious organizations. The Safe Harbor
153. The public outcry for a broader religious employers' exemption continued for many months, and on January 20, 2013, Defendants issued a press release   acknowledging   “the   important concerns some have raised about religious liberty” and stating that religious objectors would be “provided an additional year . .  .  to  comply  with  the  new  law.” (http://www.hhs.gov/news/press/2012pres/01/ 20120120a.html, last visited Nov. 29, 2013).
37

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 38 of 68 Pg ID 38
154. On February 10, 2012, Defendants formally   announced   a   “safe   harbor”  for  non-exempt nonprofit religious organizations that objected to covering free contraceptive and abortifacient services.
155. Under the safe harbor, Defendants agreed it would not take any enforcement action against an eligible organization during the safe harbor, which would remain in effect until the first plan year beginning after August 1, 2013.
156. Defendants also indicated it would develop and propose changes to the regulations to accommodate the objections of non-exempt, nonprofit religious organizations following August 1, 2013.
157. Despite the safe harbor and Defendants’ accompanying promises, on February 15, 2012, Defendants published a final rule without broadening the narrow religious employers exemption. 77 Fed. Reg. 8725-01 (Feb. 15, 2012). Advance Notice of Proposed Rulemaking
158. On March 21, 2012, Defendants issued an Advance Notice of Proposed Rulemaking (ANPRM),  presenting  “questions  and  ideas”  to  “help  shape”   a  discussion  of  how  to  “maintain the provision of contraceptive coverage without cost  sharing,”  while  accommodating  the religious beliefs of non-exempt religious organizations. 77 Fed. Reg. 16501, 16503 (2012).
38

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 39 of 68 Pg ID 39
159. The ANPRM conceded that forcing religious organizations to “contract,   arrange, or pay for”   the   objectionable   contraceptive   and   abortifacient   servicers  would  infringe  their  “religious liberty  interests.”  Id. (emphasis added).
160. In   vague   terms,   the   ANPRM   proposed   that   the   “health   insurance   issuers”   for   objecting religious   employers   could   be   required   to   “assume   the   responsibility for the provision of contraceptive coverage without cost sharing.” Id.
161. For   the   first   time,   and   contrary   to   the   earlier   definition   of   “cost   sharing,”   Defendants suggested in the ANPRM that insurers and third party administrators could be prohibited from passing along their costs to the objecting religious organizations via increased premiums. See id.
162. “[A]pproximately  200,000  comments”  were  submitted  in  response  to   the ANPRM, 78 Fed. Reg. 8456, 8459, largely reiterating previous comments that the   ANPRM’s  proposals   would not resolve conscientious objections, because the objecting religious organizations, by providing a health care plan in the first instance, would still be coerced to arrange for and facilitate access to abortifacient services.
39

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 40 of 68 Pg ID 40
Notice of Proposed Rulemaking 163. On February 1, 2013, Defendants issued a Notice of Proposed
Rulemaking (NPRM) purportedly addressing the comments submitted in response to the ANPRM. 78 Fed. Reg. 8456 (Feb. 6, 2013).
164. The NPRM proposed two changes to the then-existing regulations. 78 Fed. Reg. 8456, 8458-59.
165. First, it proposed revising the religious employers’ exemption by eliminating the requirements that religious employers have the purpose of inculcating religious values and primarily employ and serve only persons of their same faith. 78 Fed. Reg. at 8461. Under this proposal a “religious   employer”   would  be  one  “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.”  78  Fed.  Reg.  at   8461.
166. Defendants emphasized,   however,   that   this   proposal   “would 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.  8456,  8461.
167. In other words, religious organizations that are not formal churches or religious orders would continue to be excluded from the exemption.
168. Second,   the   NPRM   reiterated   HHS’s   intention   to   “accommodate”   non-exempt, nonprofit religious   organizations   by   making   them   “designate”   their  
40

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 41 of 68 Pg ID 41
insurers and third party administrators to provide plan participants and beneficiaries with free access to contraceptive and abortifacient drugs and services.
169. The   proposed   “accommodation”   did   not   resolve   the   concerns   of   religious organizations, such as Plaintiffs The Ave Maria Foundation, Ave Maria Radio,   Domino’s   Farms   Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center, because it continues to force them to deliberately provide health insurance that will directly trigger access to abortion-inducing drugs and related education and counseling.
170. In issuing the NPRM, HHS requested comments from the public by April 8, 2013. 78 Fed. Reg. 8457.
171. “[O]ver   400,000   comments”   were   submitted   in   response   to   the   NPRM, 78 Fed. Reg. 39870, 39871, with religious organizations again overwhelmingly decrying the proposed accommodation as a gross violation of their religious liberty because it would conscript their health care plans as the main component in  the  government’s  scheme  for  expanding  access  to contraceptive and abortifacient services.
172. On April 8, 2013, the same day the notice-and-comment period ended, Defendant Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University. In her remarks, Secretary Sebelius stated:
41

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 42 of 68 Pg ID 42
We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st. . . . [A]s of August   1st,   2013,   every   employee   who   doesn’t   work   directly   for   a   church or a diocese will be included in the benefit package. See The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health and Human Services, Apr. 8, 2013, available at (http://theforum.sph.harvard.edu/events/conversation-kethleen-sebelius, last visited Nov. 29, 2013) (Episode 9 at 2:25) (emphases added). 173. From the timing of these remarks, it seems that Defendants gave no consideration to the comments   submitted   in   response   to   the   NPRM’s   proposed   “accommodation.” The Final Mandate 174. On June 28, 2013, Defendants issued a final rule (the   “Final   Mandate”),   which   ignores the objections repeatedly raised by religious organizations and continues to co-opt objecting religious employers into the government’s  scheme  of  expanding  free  access  to  contraceptive  and abortifacient services. 78 Fed. Reg. 39870. 175. Under   the   Final   Mandate,   the   discretionary   “religious   employers”   exemption, which is still implemented via footnote on the HRSA website, (http://www.hrsa.gov/womensguidelines, last visited Dec. 20, 2013), remains
42

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 43 of 68 Pg ID 43
limited to formal churches and religious   orders   “organized and   operate[d]”   as   nonprofit   entities   and   “referred   to   in   section   6033(a)(3)(A)(i)   or   (iii)   of   the [Internal  Revenue]  Code.”  78  Fed.  Reg.  at  39874.
176. All other religious organizations, including Plaintiffs The Ave Maria Foundation, Ave Maria Radio,  Domino’s  Farms  Petting  Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center, are excluded from the exemption.
177. The   Final   Mandate   creates   a   separate   “accommodation”   for   certain   non-exempt religious organizations. 78 Fed. Reg. at 39874.
178. An  organization  is  eligible  for  the  accommodation  if  it  (1)  “[o]pposes   providing coverage  for  some  or  all  of  the  contraceptive  services  required”;;  (2)  “is   organized and operates as   a   nonprofit   entity”;;   (3)   “holds   itself   out   as   a   religious   organization”;;  and  (4)  “self-certifies that it  satisfies  the  first  three  criteria.”  78  Fed.   Reg. at 39874.
179. The self-certification  must  be  executed  “prior  to  the  beginning  of  the   first plan year to which  an  accommodation  is  to  apply.”  78  Fed.  Reg.  at  39875.
180. The Final Rule extends the current safe harbor through the end of 2013. 78 Fed. Reg. at 39889.
181. Thus, an eligible organization would need to execute the selfcertification prior to its first plan year that begins on or after January 1, 2014, and
43

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 44 of 68 Pg ID 44
deliver it to the   organization’s   insurer or, if the organization has a self-insured plan,  to  the  plan’s  third  party  administrator.  78  Fed.  Reg. at 39875.
182. By the terms of the accommodation, Plaintiffs The Ave Maria Foundation, Ave Maria Radio,  Domino’s  Farms  Petting  Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center will be required to execute the selfcertification and deliver it to its insurance issuer before January 1, 2014.
183. By delivering its self-certification to its insurer administrator, Plaintiffs The Ave Maria Foundation, Ave Maria Radio,  Domino’s  Farms  Petting   Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center would directly   trigger   the   insurer’s   obligation to make separate payments for contraceptive services for Plaintiffs’   plan participants and beneficiaries. 78 Fed. Reg. at 39875-76.
184. Plaintiffs The Ave Maria Foundation, Ave Maria Radio,   Domino’s   Farms Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center would have to identify its employees to their insurer, Blue Cross/Blue Shield of Michigan for  the  distinct  purpose  of  enabling  the  government’s  scheme   to facilitate free access to contraceptive and abortifacient services.
185. The   insurer’s   obligation   to   make   direct   payments   for contraceptive and abortion services   would   continue   only   “for   so   long   as   the   participant   or beneficiary  remains  enrolled  in  the  plan.”  78  Fed.  Reg.  at  39876.
44

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 45 of 68 Pg ID 45
186. Thus Plaintiffs The Ave Maria Foundation, Ave Maria Radio, Domino’s  Farms  Petting  Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center would have to coordinate with its insurer and regarding when it was adding or removing employees and beneficiaries from its healthcare plan and, as a result, from the contraceptive and abortifacient services payment scheme.
187. Insurers would be required to notify plan participants and beneficiaries   of   the   contraceptive   payment   benefit   “contemporaneous   with   (to   the   extent possible) but separate from any application materials distributed in connection  with  enrollment” in a group health plan. 78 Fed. Reg. at 39876.
188. This would also require Plaintiffs The Ave Maria Foundation, Ave Maria Radio, Domino’s Farms Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center to coordinate the notices with its insurer.
189. The insurer would be required to provide the contraceptive benefits “in  a  manner  consistent”  with  the  provision  of  other  covered  services.  78 Fed. Reg. at 39876-77.
190. Thus, any payment or coverage disputes presumably would be resolved under the terms of Plaintiffs’ existing plan documents.
191. Thus, even under the accommodation, Plaintiffs The Ave Maria Foundation, Ave Maria Radio,  Domino’s  Farms  Petting  Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center, and every other non-exempt
45

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 46 of 68 Pg ID 46
objecting religious organization, would continue to play a central role in facilitating free access to contraceptive and abortifacient services.
192. Under  the  accommodation,  issuers  “may  not  impose  any  cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible  organization.”  78 Fed. Reg. at 39896 (emphasis added).
193. For all other preventive services, including non-contraceptive preventive services for women, only cost-sharing (i.e., out-of-pocket expense) is prohibited. There is no restriction on passing along costs via premiums or other charges.
194. Defendants  state  that  they  “continue  to  believe,  and  have  evidence  to   support,”  that providing payments for contraceptive and abortifacient services will be   “cost   neutral   for   issuers,” because   “[s]everal   studies   have   estimated   that   the   costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s  health.” 78 Fed. Reg. at 39877.
195. On information and belief, the studies Defendants rely upon to support this claim are severely flawed.
196. Nevertheless, even if the payments were—over time—to become cost neutral, it is undisputed that there will be up-front costs for making the payments.
46

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 47 of 68 Pg ID 47
See, e.g., 78 Fed. Reg. at 39877-78 (addressing ways insurers can cover up-front costs).
197. Moreover,   if   cost   savings   arise   that   make   insuring   an   employer’s   employees cheaper, the savings would have to be passed on to employers through reduced premiums, not retained by insurance issuers.
198. Defendants suggest that, to maintain cost neutrality, issuers may simply ignore this fact and “set   the   premium   for   an   eligible   organization’s   large   group policy as if no payments for contraceptive services had been provided to plan  participants.”  78 Fed. Reg. at 39877.
199. This encourages issuers to artificially inflate the eligible organization’s  premiums.
200. Even assuming the legality of   the   “accommodation,”   the eligible organization would still bear the cost of the required payments for contraceptive and abortifacient services in violation of its conscience, as if the accommodation had never been made.
201. Defendants  have  suggested  that  “[a]nother  option”  would  be  to  “treat   the cost of payments for contraceptive services . . . as an administrative cost that is spread across the issuer’s   entire   risk   pool,   excluding   plans   established   or   maintained by eligible organizations.”  78 Fed. Reg. at 39878.
47

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 48 of 68 Pg ID 48
202. There is no legal authority for forcing third parties to pay for services provided to eligible organizations under the accommodation.
203. Furthermore, under the Affordable Care Act, Defendants lack authority in the first place to coerce insurers to directly purchase contraceptive and abortifacient services for an eligible organization’s   plan   participants   and   beneficiaries.
204. Thus, the accommodation fails to protect objecting religious organizations for lack of statutory authority.
205. For all these reasons, the accommodation does nothing to relieve nonexempt religious organizations with insured plans from being co-opted as the central component in   the   government’s scheme to expand access to free contraceptive and abortifacient services.
206. Plaintiffs’   religious beliefs preclude it from soliciting, contracting with, or designating a third party to provide religiously objectionable drug, devices, or services.
207. There is no way to ensure that the cost of administering the contraceptive and abortifacient services would not be passed on to Plaintiffs through the insurer’s fees.
208. Moreover, taking the user fees intended for funding the federal exchanges and using them to provide contraceptive and abortifacient services to
48

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 49 of 68 Pg ID 49
employees not participating in the federal exchanges would violate the statute authorizing the user fees. See 78 Fed. Reg. at 15412; 31 U.S.C. § 9701.
209. The “accommodation” is nothing more than a shell game that attempts to   disguise   the   religious   organization’s   role   as   the   central component in the government’s   scheme   for   expanding   access   to   contraceptive   and   abortifacient   services.
210. Despite   the   accommodation’s   convoluted   machinations,   a   religious   organization’s decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to free contraceptive and abortifacient services.
211. Plaintiffs cannot   participate   in   or   facilitate   the  government’s   scheme   in this manner without violating its religious convictions.
212. It is inevitable with the current state of the law that Plaintiffs will have to comply with the Mandate, despite the fact that Plaintiffs will violate the teachings of their religious beliefs and the teachings of their Catholic faith by directly facilitating access to, providing, funding, and/or allowing the dissemination of information and guidance about where to obtain contraception, abortion, or abortifacient services.
213. Plaintiffs plan years begin on January 1, 2014.
49

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 50 of 68 Pg ID 50
214. Without a preliminary or permanent injunction from the Court or a Declaratory Judgment halting the mandate, Plaintiffs must choose between violating federal law and incurring penalties, dropping group health insurance altogether for their employees, or violating their sincerely held religious beliefs. Mandate is Not Narrowly Tailored to Meet a Compelling Governmental Interest
215. The government lacks any compelling interest in coercing Plaintiffs to facilitate access to or provide contraceptive or abortifacient services.
216. The required contraceptives and abortifacient drugs, devices, and related services are already widely available at non-prohibitive costs at health centers and pharmacies nationally, even without a prescription.
217. There are multiple ways in which the government could provide access without forcing employers with religious objections to act in violation of their religious beliefs.
218. For example, it could pay for the objectionable services through its existing network of family planning services funded under Title X, through direct government payments, through the government’s   exchanges   website, or through tax deductions, refunds, or credits.
219. The government could also simply exempt all religious organizations and employers who object in accordance with their religious beliefs, just as it has
50

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 51 of 68 Pg ID 51
already exempted nonprofit religious employers referred to in Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
220. Defendants claim that   its   “religious   employers”   exemption   does   not   undermine its compelling interest in making contraceptive and abortifacient services available for free to women   because   “houses   of   worship   and   their   integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people who are of the same faith and/or adhere to the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their  plan.” 78 Fed. Reg. at 39887.
221. In one form or another, the government also provides exemptions for grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. 41,726, 41,731 (2010), and certain religious denominations, 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) (individual mandate  does  not  apply  to  members  of  “recognized religious  sect  or  division”  that   conscientiously objects to acceptance of public or private insurance funds); 26 U.S.C. § 5000A(d)(2)(b)(ii) (individual mandate does not apply to members of “health  care  sharing  ministry”  that  meets  certain  criteria).
222. These broad exemptions further demonstrate that the government has no compelling interest in refusing to include employer with religious objections, such as Plaintiffs, within its religious employers exemption.
51

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 52 of 68 Pg ID 52
223. Employers who follow Defendants’   guidelines may continue to use grandfathered plans indefinitely.
224. Indeed, Defendants have predicted that a majority of large employers, employing more than 50 million Americans, will continue to use grandfathered plans through at least 2014, and that a third of medium-sized employers with between 50 and 100 employees may do likewise. 75 Fed. Reg. 34538 (June 17, 2010); (http://www.healthcare.gov/news/ factsheets/2010/06/keeping-the-health planyou-have-grandfathered.html, last visited Nov. 29, 2013) (noting that amendment   to   regulations   “will   result  in  a   small   increase   in  the  number   of   plans   retaining their grandfathered status relative to the estimates made in the grandfathering regulation”).
225. The   government’s   recent   decision   to   postpone   the   employer   mandate—i.e., the annual fine of $2000 per employee for not offering any insurance—also demonstrates that there is no compelling interest in coercing universal compliance with the Final Mandate concerning contraceptive and abortifacient services, since employers can now drop their insurance entirely without any penalty, at least for one additional year.
226. These broad exemptions also demonstrate that the Final Mandate is not a generally applicable law entitled to judicial deference, but rather is constitutionally flawed.
52

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 53 of 68 Pg ID 53
227. The  government’s  willingness  to  exempt  various  secular  organizations   and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for religious organizations or employers with religious objections also shows that the Final Mandate is not neutral, but rather discriminates against employers with religious objections because of their religious commitment to promoting the sanctity of life.
228. Indeed, the Final Mandate was promulgated by government officials, and supported by non-governmental organizations, who strongly oppose religious teachings and beliefs regarding marriage and family.
229. Defendant Sebelius, for example, has long been a staunch supporter of abortion rights and a vocal critic of religious teachings and beliefs regarding abortion and contraception.
230. On October 5, 2011, six days after the comment period for the original interim final rule ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She   told   the   assembled   crowd   that   “we   are   in   a   war.”
231. She further criticized individuals and entities whose beliefs differed from those held by her and the others at the fundraiser, stating: “Wouldn’t   you think that people who want to reduce the number of abortions would champion the
53

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 54 of 68 Pg ID 54
cause of widely available, widely affordable contraceptive services? Not so much.”
232. On July 16, 2013, Secretary Sebelius further compared opponents of the Affordable Care Act generally  to  “people  who  opposed  civil  rights legislation in  the  1960s,”  stating that upholding the Act requires the same action as was shown “in   the   fight   against   lynching and the fight   for   desegregation.” (http://www.hhs.gov/secretary/about/speeches/sp20130716.html, last visited Nov. 7, 2013).
233. Consequently, on information and belief, Plaintiffs alleges that the purpose of the Final Mandate, including the restrictively narrow scope of the religious employers’ exemption, is to discriminate against employers who hold religious beliefs that oppose contraception and abortion.
CLAIMS COUNT I Violation of the First Amendment to the United States Constitution Free Exercise Clause 234. Plaintiffs incorporate by reference all preceding paragraphs. 235. Plaintiffs’   sincerely held religious beliefs prohibit it from providing coverage for contraception, abortion, or related education and counseling. Plaintiffs’  compliance with these beliefs is a religious exercise. 236. Neither the Affordable Care Act nor the Mandate is neutral.
54

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 55 of 68 Pg ID 55
237. Neither the Affordable Care Act nor the Mandate is generally applicable.
238. Defendants have created categorical exemptions and individualized exemptions to the Mandate.
239. The Mandate furthers no compelling governmental interest. 240. The Mandate is not the least restrictive means of furthering Defendants’  stated  interests.   241. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs. 242. The Mandate chills Plaintiffs’  religious exercise. 243. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that it will no longer be permitted to offer health insurance. 244. The Mandate exposes Plaintiffs to substantial fines for their religious exercise. 245. The Mandate exposes Plaintiffs to monetary and health risks as they will no longer be able to accept health insurance, nor be able to purchase or provide health care insurance without violating their religious beliefs. 246. The Mandate imposes a substantial burden on Plaintiffs’   religious exercise.
55

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 56 of 68 Pg ID 56
247. The Mandate is not narrowly tailored to any compelling governmental interest.
248. The  Mandate  and  Defendants’  threatened  enforcement  of  the  Mandate   violate Plaintiffs’  rights  secured to them by the Free Exercise Clause of the First Amendment to the United States Constitution.
249. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause 250. Plaintiffs incorporate by reference all preceding paragraphs. 251. Plaintiffs’   sincerely held religious beliefs prohibit them from facilitating access to, purchasing, or providing coverage for contraception, abortion, or related education and counseling. Plaintiffs’ compliance with these beliefs is a religious exercise. 252. Despite being informed in detail of these beliefs beforehand, Defendants designed the Mandate and the religious exemption to the Mandate in a way that made it impossible for Plaintiffs to comply with their religious beliefs. 253. Defendants promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of Plaintiffs and others.
56

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 57 of 68 Pg ID 57
254. The  Mandate  and  Defendants’  threatened  enforcement  of  the  Mandate   thus violate Plaintiffs’   rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution.
255. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause 256. Plaintiffs incorporate by reference all preceding paragraphs. 257. By design, Defendants imposed the Mandate on some religious organizations or religious individuals but not on others, resulting in discrimination among religions. 258. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition  of  “religious  employers.”   259. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no religious individuals. 260. The  Mandate  and  Defendants’  threatened  enforcement  of  the  Mandate   thus violate Plaintiffs’  rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
57

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 58 of 68 Pg ID 58
261. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Establishment Clause 262. Plaintiffs incorporate by reference all preceding paragraphs. 263. By design, defendants imposed the Mandate on some religious organizations but not on others, resulting in a selective burden on Plaintiffs. 264. Defendants also imposed the Mandate on some religious individuals and religious organizations but not on others, resulting in a selective burden on Plaintiffs. 265. The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition  of  “religious  employers.”   266. The Mandate also vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no individuals. 267. The  Mandate  and  Defendants’  threatened  enforcement  of  the  Mandate   therefore violates Plaintiffs’  rights secured to it by the Establishment Clause of the First Amendment to the United States Constitution. 268. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
58

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 59 of 68 Pg ID 59
COUNT V Violation of the First Amendment to the United States Constitution
Freedom of Speech 269. Plaintiffs incorporate by reference all preceding paragraphs. 270. Plaintiffs profess, educate, lecture, give presentations, and engage in outreach in their community that contraception, abortion, and abortifacients violate their religious beliefs. 271. The Mandate would compel Plaintiffs to provide or subsidize activities that Plaintiffs profess, educate, lecture, give presentations, and engage in outreach in their community  are  violations  of  the  Plaintiffs’  religious  beliefs.   272. The Mandate would compel Plaintiffs to fund and to provide education and counseling related to contraception, abortion, and abortifacients. 273. Defendants’   actions   thus   violate   Plaintiffs’   right to be free from compelled speech as secured to it by the First Amendment of the United States Constitution. 274. The  Mandate’s  compelled  speech  requirement  is  not  narrowly  tailored   to a compelling governmental interest. 275. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
59

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 60 of 68 Pg ID 60
COUNT VI Violation of the First Amendment to the United States Constitution
Expressive Association 276. Plaintiffs incorporate by reference all preceding paragraphs. 277. Plaintiffs profess, educate, lecture, give presentations, and engage in outreach in their community that contraception, abortion, and abortifacients violate their religious beliefs. 278. The Mandate would compel Plaintiffs to subsidize activities that Plaintiffs profess, educate, lecture, give presentations, and engage in outreach in their community are violations of Plaintiffs’  religious beliefs. 279. The Mandate would compel Plaintiffs to facilitate access to, to fund, and to provide education and counseling related to contraception, abortion, and abortifacients. 280. Defendants’ actions thus violate Plaintiffs’   right of expressive association as secured to it by the First Amendment of the United States Constitution. 281. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VII Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech 282. Plaintiffs incorporate by reference all preceding paragraphs.
60

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 61 of 68 Pg ID 61
283. By  stating  that  HRSA  “may”  grant  an  exemption  to  certain  religious   groups, the Mandate vests HRSA with unbridled discretion over which organizations or individuals can have its First Amendment interests accommodated.
284. The Mandate vests HRSA with unbridled discretion to determine whether a religious individual or organization such as Plaintiffs fall under a religious exemption.
285. Defendants’   actions   therefore   violate   Plaintiffs’   right   not   to   be   subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to it by the First Amendment of the United States Constitution.
286. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT VIII Violation of the Religious Freedom Restoration Act 287. Plaintiffs incorporate by reference all preceding paragraphs. 288. Plaintiffs’  sincerely  held  religious  beliefs  prohibit  it  from facilitating access to, providing, or purchasing coverage for contraception, abortion, abortifacients,   or   related   education   and   counseling.      Plaintiffs’   compliance   with   these beliefs is a religious exercise.
61

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 62 of 68 Pg ID 62
289. The Mandate creates government-imposed coercive pressure on Plaintiffs to change or violate their religious beliefs.
290. The  Mandate  chills  Plaintiffs’  religious  exercise.   291. The Mandate exposes Plaintiffs to substantial fines for their religious exercise. 292. The Mandate exposes Plaintiffs to substantial competitive disadvantages, in that it will no longer be permitted to offer or purchase health insurance. 293. The   Mandate   imposes   a   substantial   burden   on   Plaintiffs’   religious   exercise. 294. The Mandate furthers no compelling governmental interest. 295. The Mandate is not narrowly tailored to any compelling governmental interest. 296. The Mandate is not the least restrictive means of furthering Defendants’  stated  interests.   297. The  Mandate  and  Defendants’  threatened enforcement of the Mandate violate  Plaintiffs’  rights  secured  to  it  by  the  Religious  Freedom  Restoration  Act,  42   U.S.C. § 2000bb et seq. 298. Absent injunctive and declaratory relief against the Defendants, Plaintiffs have been and will continue to be harmed.
62

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 63 of 68 Pg ID 63
COUNT IX Violation of the Administrative Procedure Act 299. Plaintiffs incorporate by reference all preceding paragraphs. 300. Defendants’   stated   reasons   that   public   comments   were   unnecessary,   impractical, and opposed to the public interest are false and insufficient, and do not constitute  “good  cause.” 301. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by   completing   a   meaningful   “consideration   of   the relevant matter   presented.”     Defendants did not consider or respond to the voluminous comments they received in opposition to the interim final rule. 302. Therefore, Defendants have taken agency action not in observance with procedures required by law, and Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D). 303. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT X Violation of the Administrative Procedure Act 304. Plaintiffs incorporate by reference all preceding paragraphs.
63

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 64 of 68 Pg ID 64
305. In promulgating the Mandate, Defendants failed to consider the constitutional and statutory implications of the mandate on Plaintiffs and similar organizations, companies, and individuals.
306. Defendants’  explanation  for  its  decision not to exempt Plaintiffs and similar religious organizations and religious individuals from the Mandate runs counter to the evidence submitted by religious organizations during the comment period.
307. Thus,  Defendants’  issuance  of  the  interim  final  rule was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rules fail to consider the full extent of their implications and they do not take into consideration the evidence against them.
308. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XI Violation of the Administrative Procedure Act 309. Plaintiffs incorporate by reference all preceding paragraphs. 310. The Mandate is contrary to the provisions of the Weldon Amendment of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (September 30, 2008).
64

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 65 of 68 Pg ID 65
311. The   Weldon   Amendment   provides   that   “[n]one   of   the   funds   made   available in this Act [making appropriations for Defendants United States Department of Labor and United States Department of Health and Human Services] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay  for,  provide  coverage  of,  or  refer  for  abortions.”  
312. The Mandate requires issuers, employers, and individuals, including Plaintiffs and Plaintiff Legatus’  members to provide and purchase coverage of all Federal Drug Administration-approved contraceptives.
313. Some FDA-approved contraceptives cause abortions. 314. As set forth above, the Mandate violates RFRA and the First Amendment. 315. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 316. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
COUNT XII Violation of the Administrative Procedure Act 317. Plaintiffs incorporate by reference all preceding paragraphs. 318. The Mandate is contrary to the provisions of the Affordable Care Act.
65

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 66 of 68 Pg ID 66
319. Section 1303(b)(1)(A) of the Affordable Care Act states  that  “nothing   in   this   title”—i.e., title I of the Act, which includes the provision dealing with “preventive   services”—“shall   be   construed   to   require   a   qualified   health   plan   to   provide coverage of [abortion] services . . . as part of its essential health benefits for  any  plan  year.”  
320. Section  1303  further  states  that  it  is  “the  issuer”  of  a  plan  that  “shall   determine  whether  or  not  the  plan  provides  coverage”  of  abortion  services.  
321. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; only the issuer does.
322. However, the Mandate requires all issuers, including Plaintiffs and Plaintiffs’   insurance   issuer   Blue   Cross/Blue Shield of Michigan, to provide coverage of all Federal Drug Administration-approved contraceptives.
323. Some FDA-approved contraceptives cause abortions. 324. Under 5 U.S.C. § 706(2)(A), the Mandate is contrary to existing law, and is in violation of the Administrative Procedure Act. 325. Absent injunctive and declaratory relief against the Mandate, Plaintiffs have been and will continue to be harmed.
PRAYER FOR RELIEF Wherefore, Plaintiffs request that the Court:
66

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 67 of 68 Pg ID 67
a. Declare   that   the   Mandate   and   Defendants’   enforcement   of   the   Mandate against Plaintiffs violates the First Amendment to the United States Constitution;
b. Declare that   the   Mandate   and   Defendants’   enforcement   of   the   Mandate against Plaintiffs violates the Religious Freedom Restoration Act;
c. Declare that the Mandate was issued in violation of the Administrative Procedure Act;
d. Issue both a preliminary and a permanent injunction prohibiting and enjoining Defendants from enforcing the Mandate against Plaintiffs and other religious organizations, religious individuals, employers, and companies that object to funding and providing insurance coverage for contraceptives, abortion, abortifacients, and related education and counseling;
e. Award Plaintiffs the   costs   of   this   action   and   reasonable   attorney’s   fees; and
f. Award such other and further relief as it deems equitable and just. Respectfully submitted, THOMAS MORE LAW CENTER /s/ Erin Elizabeth Mersino Erin Elizabeth Mersino, Esq. (P70886) Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, Michigan 48106
67

2:13-cv-15198-SJM-MAR Doc # 1 Filed 12/20/13 Pg 68 of 68 Pg ID 68
Tel (734) 827-2001 Fax (734) 930-7160 emersino@thomasmore.org Counsel for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on December 20, 2013, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel   has   entered   an   appearance   by   operation   of   the   Court’s   electronic filing system.    Parties  may  access  this  filing  through  the  Court’s  system.    I  certify  that  a   copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)
68

 
 2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 1 of 40 Pg ID 73

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

THE AVE MARIA FOUNDATION; )

AVE MARIA COMMUNICATIONS )

(a/k/a “Ave Maria Radio”); DOMINO’S)

FARMS PETTING FARM;

)

RHODORA J. DONAHUE

)

ACADEMY, INC.; and THOMAS )

MORE LAW CENTER,

)

) Case No. 2:13-cv-15198

Plaintiffs,

)

v.

) MOTION FOR TEMPORARY

) RESTRAINING ORDER

KATHLEEN SEBELIUS, Secretary of )

the United States Department of Health ) Judge Stephen J. Murphy, III

and Human Services; UNITED

)

STATES DEPARTMENT OF

) Magistrate Judge Mark A. Randon

HEALTH AND HUMAN SERVICES; )

HILDA SOLIS, Secretary of the United )

States Department of Labor; UNITED )

STATES DEPARTMENT OF LABOR; )

TIMOTHY GEITHNER, Secretary of )

the United States Department of the

Treasury; and UNITED STATES

DEPARTMENT OF THE

TREASURY,

Defendants.

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393, Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001 Attorneys for Plaintiffs

1

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 2 of 40 Pg ID 74
PLAINTIFFS’ EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER & BRIEF IN SUPPORT
PLEASE TAKE NOTICE that at the earliest possible time for the court to hear this motion, Plaintiffs The Ave Maria Foundation, Ave Maria Communications, Domino’s Farms Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center, by and through their undersigned counsel, move the court for a Temporary Restraining Order pursuant to Fed. R. Civ. P. 65(b) and LR 65.1 in order to prevent immediate irreparable injury to Plaintiffs’ fundamental rights and interests.
On December 20, 2013, the Honorable Robert Cleland issued a preliminary injunction in Legatus v. Sebelius, No. 12-12061, ECF No. 91 (E.D. Mich 2013). Legatus is a nonprofit Catholic organization that is covered by the same insurance plan as the Plaintiffs here. Despite this similarity and the fact that in comparable cases the government has required plaintiffs covered by the same employee health plan to litigate their claims together, Mersino Dewatering v. Sebelius, No. 1: 13cv-1329, Mot. Trans., ECF 7 (D.D.C. Sept. 23, 2013), Defendants refused Plaintiffs’ request to join the action before Judge Cleland. Plaintiffs also sought to be included in the action currently pending before the Honorable Lawrence Zatkoff, Domino’s Farms Corp. v. Sebelius, No. 13-1654 (E.D. Mich 2013). But Defendants refused this request, and the Domino’s Farms Corp. plaintiffs’ October
2

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 3 of 40 Pg ID 75
7, 2013 motion seeking to add Plaintiffs The Ave Maria Foundation, Ave Maria Communications, Domino’s Farms Petting Farm, Rhodora J. Donahue Academy, Inc., and Thomas More Law Center was denied on December 20, 2013. Hours later, Plaintiffs filed their complaint before this Court. Due to the late date, Plaintiffs are forced to request injunctive relief on an emergency basis because the HHS Mandate will be enforced against them beginning January 1, 2014.
Plaintiffs here seek the same relief Judge Cleland has already granted to similarly situated nonprofit plaintiffs who share the same employee health plan. For the reasons contained in Judge Cleland’s thoughtful and persuasive December 20th order and opinion, and the reasons set forth in Plaintiffs’ brief accompanying this motion, the Court should enjoin enforcement of Defendants’ Health and Human Services Mandate (hereinafter the “Mandate”).
The Mandate violates Plaintiffs’ rights guaranteed by the First Amendment to the United States Constitution and the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. For the purposes of this request for a temporary restraining order, the Plaintiffs focus solely on their RFRA claim. Plaintiffs do not forfeit any of the claims alleged in their complaint.
Plaintiffs have made attempts to resolve this matter prior to seeking this temporary restraining order (“TRO”). Undersigned counsel made contact with the Department of Justice, specifically Benjamin Berwick and Bradley Humphreys
3

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 4 of 40 Pg ID 76
who advised that Defendants do not consent to the relief requested herein. With
the limited amount of time before January 1, 2014, and inability to reach
concurrence with the Defendants prior to this date, Plaintiffs had no choice but to
seek this emergency relief from the Court.
Plaintiffs’ counsel will provide notice of this TRO request by sending a copy
of this motion and brief to the Department of Justice via facsimile at (202) 616-
8470, and to Benjamin Berwick and Bradley Humphreys via email. The phone
number for the Department of Justice is (202) 514-3367.
Respectfully submitted this 23rd day of December, 2013.
Attorneys for Plaintiffs:
THOMAS MORE LAW CENTER
s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 emersino@thomasmore.org
s/ Richard Thompson_____________ Richard Thompson, Esq. (P21410) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 rthompson@thomasmore.org
4

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 5 of 40 Pg ID 77

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

)

THE AVE MARIA FOUNDATION; )

AVE MARIA COMMUNICATIONS )

(a/k/a “Ave Maria Radio”); DOMINO’S)

FARMS PETTING FARM;

)

RHODORA J. DONAHUE

)

ACADEMY, INC.; and THOMAS )

MORE LAW CENTER

) Case No. 2:13-cv-15198

)

Plaintiffs,

) MOTION AND BRIEF FOR

v.

) TEMPORARY RESTRAINING

) ORDER

KATHLEEN SEBELIUS, et al.,

)

) Judge Stephen J. Murphy, III

Defendants.

)

) Magistrate Judge Mark A. Randon

)

)

)

)

THOMAS MORE LAW CENTER Richard Thompson, Esq. (P21410) Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Drive P.O. Box 393, Ann Arbor, MI 48106 emersino@thomasmore.org (734) 827-2001 Attorneys for Plaintiffs

PLAINTIFFS’ BRIEF IN SUPPORT OF EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

i

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 6 of 40 Pg ID 78
ISSUE PRESENTED I. Whether by forcing Plaintiffs to choose between harming their organization by not offering insurance or offering insurance that violates Plaintiffs’ sincerely held religious beliefs Defendants’ enforcement of the HHS Mandate causes irreparable harm sufficient to warrant immediate injunctive relief.
ii

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 7 of 40 Pg ID 79
CONTROLLING AUTHORITY Religious Freedom Restoration Act of 1993 (“RFRA”), 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) Elrod v. Burns, 427 U.S. 347 (1976) Sherbert v. Verner, 374 U.S. 398 (1963) Wisconsin v. Yoder, 406 U.S. 205 (1972) Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), cert. granted, 2013 U.S. LEXIS 8418 (U.S. Nov. 26, 2013) (Case No. 13-354) Korte v. Sebelius, 735 F.3d 654; 2013 U.S. App. LEXIS 222748 (7th Cir. 2013). Zubik v. Sebelius, No. 13-cv-1459, 2013 U.S. Dist. LEXIS 165922 (W.D. Penn, Nov. 21, 2013) The Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12-2542, 2013 U.S. Dist. LEXIS 176432 (E.D.N.Y. Dec. 16, 2013) Legatus v. Sebelius, No. 12-cv-12061, Order Granting Prelim. Inj. (E.D. Mich Dec. 20, 2013) Reaching Souls International, Inc. v. Sebelius, No. 5:13-cv-01092, Order Granting Prelim. Inj. (W.D. Okla. Dec. 20, 2013)
iii

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 8 of 40 Pg ID 80

TABLE OF CONTENTS

Page

TABLE OF CONTENTS..........................................................................................iv

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

FACTUAL BACKGROUND....................................................................................1

ARGUMENT ...........................................................................................................12

I. Plaintiffs are Likely to Succeed on the Merits ..............................................13

A. The HHS Mandate violates the Religious Freedom Restoration Act .......................................................................................................13

1. The HHS Mandate substantially burdens Plaintiffs’ free exercise of religion ........................................................................................14

2. The HHS Mandate does not further a compelling interest .......21

3. The HHS Mandate does not employ the least restrictive means to further the government’s stated interest…………………………………….25

II. Plaintiffs will suffer irreparable harm without injunctive relief....................27

III. Granting injunctive relief will not cause substantial harm to others……………………... ..........................................................................27

IV. Granting injunctive relief is in the public interest .........................................28

V. The balance of harms favors granting Plaintiffs an injunction .....................28

CONCLUSION ........................................................................................................30

CERTIFICATE OF SERVICE ................................................................................31

iv

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 9 of 40 Pg ID 81
INTRODUCTION
Plaintiffs The Ave Maria Foundation, Ave Maria Communications,
Domino’s Farms Petting Farm, Rhodora J. Donahue Academy Inc., and Thomas
More Law Center are nonprofit corporations that seek a temporary restraining
order to enjoin the unconstitutional and illegal directives of the Health and Human Services Mandate.1 The Mandate strips Plaintiffs of their constitutionally
protected rights to religious freedom and free speech, disregards Plaintiffs’ right of
conscience, and is completely irreconcilable with the Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”), and the First Amendment.
It requires Plaintiffs to supply or facilitate coverage of contraceptive and
abortifacient products, services, and related counseling to their employees in
violation of Plaintiffs’ sincerely held religious beliefs.
Defendants issued an “accommodation” that does not alleviate the burden
the Mandate creates because Plaintiffs’ health insurance plans still serve as the
1 The Sixth Circuit’s recent decision dealing with a for profit company’s objections to the HHS Mandate, Autocam v. Sebelius, 730 F.3d 618 (6th Cir. 2013), has no bearing on the claims asserted by The Ave Maria Foundation, Ave Maria Communications, Domino’s Farms Petting Farm, Rhodora J. Donahue Academy Inc., and Thomas More Law Center. The Court specifically stated, “[w]e recognize that many religious groups organized under the corporate form have made successful Free Exercise Clause or RFRA claims, and our decision today does not question those decisions.” Autocam, 730 F.3d. at 627 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993); O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) aff’d, 546 U.S. 418 (2006)).
1

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 10 of 40 Pg ID 82
conduit by which “free” contraceptive and abortion-inducing drugs and devices are delivered to Plaintiffs’ employees in a manner directly contrary to Plaintiffs’ religious beliefs. Further, knowingly and freely enabling others to use, or facilitating the use of contraceptive or abortion-inducing drugs and services, is itself sinful under Catholic teaching. (Ex. 2, Donovan Decl. ¶ 31). “For every sin of cooperation in a grave sin of contraception or abortion, there is a second sin against charity (that of scandal to the person with whom the employer cooperates).” Id. at ¶ 34. Defendants’ “accommodation” is merely a shell game and does not address Plaintiffs’ fundamental religious objection to improperly facilitating access to contraceptive and abortion-inducing products and services.
The Mandate poses an urgent threat to the Plaintiffs, forcing them to comply with its terms by January 1, 2014. Because Plaintiffs are facing imminent, irreparable harm to their religious freedom and constitutional rights, they seek emergency injunctive relief from the Court. Fed. R. Civ. P. 65.
BACKGROUND Plaintiffs Plaintiffs The Ave Maria Foundation, Ave Maria Communications, Domino’s Farms Petting Farm, Rhodora J. Donahue Academy Inc., and Thomas More Law Center are all nonprofit corporations that were founded upon, adhere to, and strive to further, the teachings of the Roman Catholic Church. (Ex. 1,
2

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 11 of 40 Pg ID 83
Monaghan Decl.¶¶ 7, 9, 28) The Ave Maria Foundation “was founded in fidelity to the Magisterial Teaching of the Catholic Church and these teachings are and have been observed by The Ave Maria Foundation throughout its existence in accordance with the intention and desire of the director of The Ave Maria Foundation that the organization retain in perpetuity its identity as such an organization.” Id. at ¶ 9. “The Ave Maria Foundation exists to serve the common good, as elaborated in the moral and social teachings of the Roman Catholic Church, and to foster the Kingdom of God on earth through teaching the inherent dignity of every human being, a dignity based on our creation in the image and likeness of God and raised to a new level by our redemption in Jesus Christ.” Id. at ¶ 12. The Foundation’s purpose is “to support the advancement of the Roman Catholic faith and the Apostolic Mission of the Church, including evangelization and education of the faith.” Id. at ¶ 10. It fulfills this mission by supporting “educational institutions which operate consistently with Ex Corde Ecclesia, and through the use of media, including without limitation, radio, television, motion pictures and global telecommunications networks.” Id.
The Ave Maria Foundation supports Plaintiff Rhodora J. Donahue Academy, Inc., which is a religious non-profit corporation that “operates as a primary educational institution offering K-12 grade education grounded in the traditions of the Roman Catholic Church.” Id. at ¶19. Like all of the Plaintiffs in this case,
3

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 12 of 40 Pg ID 84
Rhodora J. Donahue Academy, Inc., is committed to the teachings of the Catholic Church. Id. at ¶ 20. Among the ways it demonstrates this commitment is by celebrating Mass daily on-site for students, staff, faculty, and their family members. Id.
Plaintiff Ave Maria Communications d/b/a Ave Maria Radio is also supported by contributions from The Ave Maria Foundation and is a “nonprofit corporation that furthers the education of individuals in the Catholic religion (and beyond) by producing Catholic radio programming and by employing radio, internet, and other media to offer news, analysis, teaching, devotions, and music that demonstrates the good news that Jesus is Lord over all areas of life and that the teachings of Christ, through His Church, offers a rational view of the world, a deep sense of spirituality, a firm family life, enhanced human relationships, and the creation of a culture of life and love.” Id. at ¶ 22.
Similarly, the Thomas More Law Center was founded by Thomas Monaghan, is supported with donations from The Ave Maria Foundation, and is a nonprofit corporation “dedicated to education and litigation on issues of human life, religious freedom, and traditional family values.” Id. at ¶ 25. Thomas Monaghan also founded and is a director of Plaintiff Domino’s Farms Petting Farm, a “nonprofit corporation that was founded to foster an understanding and
4

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 13 of 40 Pg ID 85
appreciation of an agricultural lifestyle and to operate an animal petting farm and other related events for educational purposes.” Id. at ¶¶ 26-27.
All of the Plaintiff organizations were “founded, organized, and are maintained in conformity with and/or for furtherance of the teachings of the Catholic Church.” Id. at ¶ 28. The Plaintiff organizations “acknowledge the Sacred Heart of Jesus as the true head of the organization and [ ] dedicate [their] work and all that [they] are to Him.” Id. at ¶ 13. Plaintiffs are compelled by their faith to follow Catholic teachings including those contained in Pope Paul VI’s 1968 encyclical Humanae Vitae, which states “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception—is a grave sin. (Ex. 4, Kresta Decl. ¶ 7). Plaintiffs subscribe to authoritative Catholic teaching regarding the proper nature of health care and medical treatment. For instance, Plaintiffs believe, in accordance with Pope John Paul II’s 1995 encyclical Evangelium Vitae, that “‘[c]ausing death’ can never be considered a form of medical treatment,” but rather “runs completely counter to the health-care profession, which is meant to be an impassioned and unflinching affirmation of life.” Id. Additionally, the Catholic Church “has consistently taught, throughout its entire existence, that contraception deliberately frustrates matrimony’s natural
5

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 14 of 40 Pg ID 86
power to generate life and is an offense against the law of God and of nature.” (Ex. 2, Donovan Decl. ¶ 9).
Plaintiffs do not believe that contraception or abortion properly constitute health care, but rather, involve immoral practices and the destruction of innocent human life. (Ex. 1, Monaghan Decl. ¶¶5, 28-30; Ex. 2. Donavan Decl. ¶¶ 9-14, 1819). Plaintiffs’ sincerely held religious beliefs prohibit them from facilitating access to, participating in, paying for, training others to engage in, or otherwise supporting abortion, contraception, sterilization or abortifacients, which they believe involve gravely evil acts. (Ex. 1, Monaghan Decl. at ¶¶ 17, 28-30; Ex. 2, Donavan Decl. ¶¶ 22-36). Further, Plaintiffs’ faith demands that they not enable, encourage, or facilitate others in doing an action which they themselves are morally prohibited from doing. (Ex. 2, Donovan Decl. ¶¶ 28-35).
Accordingly, Plaintiffs designed their group health insurance plan through the Ave Maria Human Resources and Blue Cross/Blue Shield of Michigan to specifically exclude coverage for abortion, abortifcients, sterilization, and artificial contraception. (Ex. 1, Monaghan Decl. ¶¶ 31- 33; Ex. 3, Zmuda Decl. ¶¶ 5, 1213). Plaintiffs believe providing their employees with health insurance is a form of Christian stewardship and if they are forced to cease providing their employees with health insurance this would violate their “religious duty to provide for the
6

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 15 of 40 Pg ID 87
health and well-being of [Plaintiffs’] employees and their families.” (Ex. 1, Monaghan Decl. ¶ 49). The Mandate
The Affordable Care Act requires all non-exempt group health plans and health insurance issuers to provide coverage without “cost sharing” for certain products and services for women as “preventative care,” and directed the Secretary of the United States Department of Health and Human Services to determine what would constitute “preventative care.” 42 U.S.C § 300gg-13(a)(4). Defendants directed the Institute of Medicine (“IOM”) to compile recommended guidelines describing which drugs, procedures, and services should be covered as preventative care for women. Women’s Preventative Services: Required Health Plan Coverage Guidelines, available at http://www.hrsa.gov/womensguidelines (last visited Dec. 20, 2013). IOM issued a report recommending that required preventative services include “the full range of Food and Drug Administration [‘FDA’]-approved contraceptive methods, sterilization procedures, and patient and education counseling for women with reproductive capacity.” Id. Defendants adopted the IOM recommendations in full. 76 Fed. Reg. 46621 (published Aug. 3, 2011). The dissenting member of the committee warned that“[t]he process set forth in the [Affordable Care Act] was unrealistic in the time allocated to such an important and time-intensive undertaking” and that “[r]eaders of the Report should
7

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 16 of 40 Pg ID 88
be clear on the fact that the recommendations were made without high quality, systematic evidence of the preventative nature of the services considered” and that “evidence that the use of the services in question leads to lower rates of disability or disease and increased rates of well-being is generally absent.” (Ex. 7, IOM Dissenting Op. at 232). Rather than being a science-based review, the committee’s review process “tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy” where the “process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition.” Id.
Defendants received over 200,000 responses to their request for comments on the amended Interim Final Rules, many of which were from religiouslyaffiliated institutions warning that the religious employer exemption to the Mandate requiring coverage for all FDA-approved contraceptives was too narrow, and that “the limited scope of the exemption raised religious liberty concerns.” Roman Catholic Archdioceses of N.Y. v. Sebelius, slip op. at 7 (Ex. 9) No. 1:12-cv02542, (E.D.N.Y. Dec. 16, 2013) (citing 77 Fed. Reg. 8,727). But Defendants finalized the amended Interim Final Rules on February 15, 2012, without making
8

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 17 of 40 Pg ID 89
any change to the criteria required for an organization to be eligible for the religious employer exemption.2 Id.
Defendants allowed a “temporary enforcement safe harbor” period once the Interim Final Rules issued during which time they were “to develop and propose changes to these final regulations that would meet two goals – providing
contraceptive coverage without cost-sharing to individuals who want it and
accommodating non-exempted, non-profit organizations’ religious objections to covering contraceptive services [. ]” 77 Fed. Reg. 8,727. In response to proposals set forth regarding possible means of accommodating religious organizations’
objections to the mandate, Defendants received over 400,000 comments. See 78 Fed. Reg. 39,870-71 (July 2, 2013).
Defendants claim to have addressed religious objections to the Mandate in
the Final Rules by (1) revising the definition of religious employers who are exempt from the Mandate as a non-profit referred to in § 6033(a)(3)(A)(i) or (ii) of the Internal Revenue Code, which includes churches, their integrated auxiliaries,
associations of churches, and the exclusively religious activities of religious orders,
2 To qualify for the religious employer exemption an organization was required to demonstrate the following criteria: “(1) the inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 45 C.F.R. § 147.130(a)(1)(iv)(B).
9

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 18 of 40 Pg ID 90
and (2) by providing an accommodation for “eligible organizations” that do not
meet the definition of “religious employer.” 78 Fed. Reg. at 39,874. Plaintiffs do
not qualify as a “religious employer” and are not covered by any other exemption.
See 42 U.S.C. § 18011(a)(2) (exempting plans that qualify for “grandfathered”
status by meeting criteria such as abstaining from plan changes since the date of
March 23, 2010); 26 U.S.C. § 5000A(d)(2)(A)(i)-(ii) (exempting members of
“recognized religious sect or division” that conscientiously object to acceptance of
public or private insurance funds).
To be an “eligible organization” for purposes of the government’s
“accommodation” the organization must satisfy the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. The self-certification must be executed by a person authorized to make the certification on behalf of the organization, and must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974.
45 C.F. R. § 147.131 (b). Plaintiffs “oppose[] providing coverage for some or all
of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on
account of religious objections,” but also oppose having to self-certify as required
10

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 19 of 40 Pg ID 91
by the “accommodation.” If Plaintiffs self-certify as required by the “accommodation,” they will be violating a tenant of their faith that forbids facilitating, cooperating with, or providing support for an evil act. (Ex. 2, Donovan Decl. ¶¶ 22-36).
By delivering the self-certification to their insurer administrator, Plaintiffs will trigger the insurer’s obligation to make separate payments for contraceptive services for their employees and beneficiaries enrolled in Plaintiffs’ health care plan. 78 Fed. Reg. at 39875-76. Plaintiffs will then be required to identify their employees to their insurer for the distinct purpose of enabling and facilitating free access to contraceptive, sterilization, and abortion-inducing drugs, devices, and services. Plaintiffs’ insurer, Blue Cross/Blue Shield of Michigan, must then make direct payments for these objectionable drugs, devices, and services during the time Plaintiffs insure an employee, plan participant, or beneficiary through Plaintiffs’ health insurance plan. 78 Fed. Reg. at 39,876. Blue Cross/Blue Shield of Michigan will be required to notify plan participants and beneficiaries of the contraceptive payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan. 78 Fed. Reg. 39,876. Plaintiffs’ insurer will be required to provide the contraceptive benefits “in a manner consistent” with the provision of other covered services under Plaintiffs’ plan. 78 Fed. Reg. 39,876-77. Thus, it
11

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 20 of 40 Pg ID 92
appears that coverage or payment disputes would likely be resolved under the terms of Plaintiffs’ existing plan documents, thereby, requiring Plaintiffs to continue to play a central role in facilitating free access to contraceptive, sterilization, and abortifacient services in violation of their sincerely held religious beliefs.
LEGAL STANDARD The factors the Court must consider in determining whether to issue a temporary restraining order (“TRO”) are the same as those considered for issuing a preliminary injunction. Workman v. Bredesen, 486 F.3d 896, 904-05 (6th Cir. 2007); Southerland v. Fritz, 955 F. Supp. 760, 761 (E.D. Mich. 1996). The Court must weigh the following factors: “(1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff could suffer irreparable harm without the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of the injunction on the public interest.” Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007).
ARGUMENT Injunctive relief is necessary and appropriate in this case as each of the four preliminary injunction/TRO factors weigh in Plaintiffs’ favor. Without protection from this Honorable Court, Plaintiffs will be forced to violate a fundamental tenet
12

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 21 of 40 Pg ID 93
of their faith by facilitating contraceptive and abortion-inducing drugs and services through their insurance plan, or to suffer harsh governmental sanction for their refusal to abandon the dictates of their faith. The Constitution and the Religious Freedom Restoration Act (“RFRA”) prohibit such an obvious and odious governmental attack on religious liberty.
I. Plaintiff is likely to succeed on the merits A. The Mandate violates RFRA
The Religious Freedom Restoration Act of 1993, 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. (hereinafter “RFRA”), strictly prohibits the federal government from substantially burdening a person's exercise of religion, except under the narrow conditions set by the Act. The Act commands as follows: “[the] [g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).” 42 U.S.C. § 2000bb-1(a). Subsection (b) provides that ‘[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is (1) in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that interest.” Id. at § 2000bb-1(b) (emphasis added). In its formulation of RFRA, Congress expressly adopted the compelling interest test described in
13

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 22 of 40 Pg ID 94
Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972).
RFRA defines “religious exercise” broadly 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); 2000cc-5. Thus, RFRA’s protections apply not only to acts of worship but also to actions taken in accordance with one’s faith. Plaintiff nonprofit corporations were formed, are managed, and exist in accordance with and/or for furtherance of the Catholic faith. Their selection and operation of a health insurance plan that comports with their religious beliefs is a religious exercise for purposes of RFRA protection.
1. The Mandate substantially burdens Plaintiffs’ free exercise of religion The Mandate places a substantial burden on Plaintiffs’ sincerely held religious beliefs. The Supreme Court made clear in Yoder, that religious exercise is substantially burdened when government action compels individuals “to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” Yoder, 406 U.S. at 218. “Plaintiffs cannot facilitate access to, provide, fund, participate in, or support in any way health care insurance which covers artificial contraception, abortion, sterilization, or abortifacients, or related education and counseling without violating [their] deeply held religious beliefs.” (Ex. 1,
14

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 23 of 40 Pg ID 95
Monaghan Decl. ¶ 30; Ex. 2, Donovan Decl. ¶¶ 35-36). But this is exactly what the Mandate requires.
Plaintiffs can either (1) provide insurance coverage for the objectionable services in violation of their beliefs; (2) self-certify and directly cause their insurance issuer to provide coverage for the objectionable services in violation of their religious beliefs; (3) cease offering insurance all together, which would harm their business and employees, still subject some of them to fines, and would interfere with their religious exercise of Christian stewardship; or (4) offer coverage that does not comply with the mandate and suffer harsh financial penalties. The Mandate burdens Plaintiffs’ religious exercise by pressuring them, under threat of government sanction, to modify their behavior and to violate their religious beliefs. This government-imposed coercive pressure substantially infringes Plaintiffs’ free exercise. Thomas v. Review Bd. Of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981).
In resolving the substantial burden inquiry, courts are not permitted to determine the centrality of a particular religious practice to an adherent’s faith or to inquire whether a plaintiff correctly interprets the commands of their faith. 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A); Thomas, 450 U.S. at 716 (“[I]t is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their
15

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 24 of 40 Pg ID 96
common faith. Courts are not arbiters of scriptural interpretation.”); Hernandez v. Comm’r of Internal Revenue Serv., 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretation of those creeds.”). Thus, the Court must only “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.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1137 (10th Cir. 2013) (en banc), cert. granted, ___S. Ct.___ , (Nov. 26, 2013); see Korte v. Sebelius, 2013 U.S. App. LEXIS 22748 at *75-76 (7th Cir. 2013). A court must accept a plaintiff’s description of his or her beliefs and practices, regardless of whether the court, or the government, finds them “acceptable, logical, consistent, or comprehensible.” Thomas, 450 U.S. at 714-15. “It is enough that the claimant has an ‘honest conviction’ that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion.” Korte, 2013 U.S. App. LEXIS 22748 at *75.
In Roman Catholic Archdiocese of N.Y. v. Sebelius, the United States District Court for the Eastern District of New York recently addressed the burden the Mandate poses to religiously objecting nonprofit employers. (Ex. 9). The court recognized three broad ways that government action may substantially burden religious exercise: “[the] [g]overnment action may: (1) compel the plaintiff to do
16

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 25 of 40 Pg ID 97
something that is inconsistent with his religious beliefs; (2) forbid the plaintiff from doing something that his religion motivates him to do; or (3) not directly compel the plaintiff to do something forbidden by his religious beliefs or to refrain from doing something motivated by those beliefs, but instead put substantial pressure on the plaintiff to do so.” Roman Catholic Archdiocese of N.Y., slip op. at 19-20 (citing Hobby Lobby, 723 F.3d at 1138). The court determined that the Mandate fits into the first category because it “directly compels plaintiffs, through threat of onerous penalties, to undertake actions that their religion forbids.” Id. (citing Hobby Lobby, 723 F.3d at 1151-52 (Hartz, C.J., concurring); Korte, 735 F.3d at 707 (Rovner, C.J., dissenting)). “[It] is difficult to comprehend any situation where a court could rule that a plaintiff facing government compulsion to engage in affirmative acts forbidden by his religion has not suffered a substantial burden, without implicitly ruling that the belief he has been forced to violate is just not that important.” Id. at 21. Accordingly, the court found that the Mandate substantially burdened the plaintiffs’ free exercise of religion. Id. at 29 (“[T]here can be no doubt that the coercive pressure here is substantial.”).
This Court should find the analysis performed by the district court in Roman Catholic Archdioceses of N.Y. v. Sebelius persuasive and should adopt the same standard: “[w]here government action coerces a religious adherent to undertake affirmative acts contrary to his religious beliefs, the “substantial burden” inquiry
17

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 26 of 40 Pg ID 98
under RFRA should focus primarily on the ‘intensity of the coercion applied by the government to act.” Roman Catholic Archdioceses of N.Y., slip op. at 22 (quoting Korte, 735 F.3d at 683; Hobby Lobby, 723 F.3d at 1137). Here, the intensity of the government coercion is substantial. If Plaintiffs do not comply with the Mandate, they will be subject to significant fines of $100 per day per beneficiary. See 26 U.S.C. § 4980D(b)(1). If they cease providing insurance altogether, the Plaintiff organizations with more than 50 employees will still be subject to substantial financial penalties, and each Plaintiff, regardless of the number of employees, will be violating their duties of Christian stewardship to provide for their employees. If Plaintiffs do comply with the Mandate, either by directly providing the contraceptive and abortifacient products and services, or by facilitating the same result through self-certifying to their insurance issuer, they will be violating the commands of their faith. (Ex. 2., Donovan Decl. ¶¶ 35-36).
The burden the Mandate creates is not alleviated by the accommodation. Plaintiffs are still required to actively participate in the government’s plan to increase use of products and services Plaintiffs believe are gravely sinful. Reaching Souls v. Sebelius, Order Granting Prelim. Inj. (Ex. 10) (W.D. Okla. Dec. 20, 2013) (rejecting the government’s “it’s just a form” argument); but see Priests For Life v. United States Dept. Health and Human Servs., Mem. Opinion, No.131261 (D.D.C. Dec. 19, 2013). Plaintiffs must sign the self-certification form
18

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 27 of 40 Pg ID 99
stating their objection, compile a list of their employees, and provide both to their health insurance issuer or third party administrator. Once Plaintiffs complete these actions, their insurance issuer will be required to use the information Plaintiffs have supplied to facilitate and initiate the provision of contraceptive and abortioninducing products, services, and related counseling. Plaintiffs’ insurance issuer must provide or arrange “payments for contraceptive services” for Plaintiffs’ employees as long as the employees remain on Plaintiffs’ health plan. See 78 Fed. Reg. at 39,892; 45 C.F.R. § 147.131(c)(2)(i)(B) (for employers offering insured plans, the 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”). Consequently, Plaintiffs’ decision to offer a group health plan results in the provision of “free” abortion-inducing products, contraception, sterilization, and related counseling, to their employees in a manner contrary to Plaintiffs’ religious beliefs. Further, by requiring Plaintiffs to complete a “self-certification” to avoid directly paying for these services, the government requires Plaintiffs to violate another command of their faith – the command to avoid cooperation in evil. (Ex. 2, Donovan Decl. ¶¶ 34-35).
In Zubik v. Sebelius, the United States District Court for the Western District of Pennsylvania issued an injunction preventing the Mandate’s enforcement against religiously objecting nonprofit, nonexempt plaintiffs who, like Plaintiffs
19

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 28 of 40 Pg ID 100
here were observant Catholics who argued that the accommodation did not alleviate the burden the Mandate caused to their religious exercise. Zubik v. Sebelius, No. 13-cv-1459, 2013 U.S. Dist. LEXIS 165922 (W.D. Penn, Nov. 21, 2013). The plaintiffs in Zubik described their objection to the accommodation by analogy, likening the result “to a neighbor who asks to borrow a knife to cut something on the barbecue grill, and the request is easily granted. The next day, the same neighbor requests a knife to kill someone, and the request is refused. It is the reason the neighbor requests the knife which makes it impossible for the lender to provide it on the second day.” Id. at *81. The Zubik court correctly found that the plaintiffs had “a sincerely-held belief that ‘shifting responsibility’ does not absolve or exonerate them from the moral turpitude created by the ‘accommodation’; to the contrary, it still substantially burdens their sincerely-held religious beliefs.” Id. at *82. Judge Cleland found this analogy instructive and noted,
[p]reviously when an employer like [Plaintiff] completed paperwork indicating that it would not be providing contraceptive services to its employees, the reason the documentation was used was irrelevant to [Plaintiff]. ‘Now, under the ‘accommodation,’ the reason the documentation is required is so that contraceptive products, services, and counseling can be provided in direct contravention of [Plaintiffs’] sincerely-held religious beliefs. The Government is asking [Plaintiffs] for documentation for what [Plaintiffs] sincerely believe is an immoral purpose, and thus, they cannot provide it. Legatus, Order Granting Prelim. Inj. at 16-17 (Ex. 8) (quoting Zubik, 2013 WL 6118696, at *25). This Court should agree that the Mandate and the
20

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 29 of 40 Pg ID 101
“accommodation” substantially burdens Plaintiffs’ exercise of their religion and coerces Plaintiffs through threats of crippling fines into acting directly contrary to their sincerely held religious beliefs.
2. The Mandate does not further a compelling government interest The Mandate and the “accommodation” place a substantial burden on Plaintiffs’ free exercise of religion under the RFRA, and, consequently, the government must demonstrate that their regulations further a compelling governmental interest and are the least restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1. In evaluating whether the government’s regulations pass the compelling interest test, “[t]he theme that emerges is the identification of ‘overriding,’ ‘paramount’ governmental interests of the very ‘highest order.’ Interests of lesser magnitude, and interests that are not paramount, including those that are otherwise served, cannot be considered ‘compelling.’ Legatus, Order Granting Prelim. Inj. at 17 (Ex. 8). The regulations at issue here allegedly “advance[] the compelling government interest in safeguarding public health and ensuring that women have equal access to health care.” 78 Fed. Reg. 39872. The government submits that providing women with contraception, abortifacients, and related services without requiring them to pay for it themselves (because their employer or its insurer will be forced to cover the cost via the employer insurance plan) will advance this
21

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 30 of 40 Pg ID 102
interest. Id. But RFRA demands that Defendants do more than allege some general public interest that the regulations supposedly further. The “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31 (2006) (quoting 42 U.S.C. § 2000bb-1(b)). Accordingly, “under RFRA’s version of strict scrutiny, the Government must establish a compelling and specific justification for burdening these claimants.” Korte, 2013 U.S. App. LEXIS 22748 at *83 (emphasis in original).
Strict scrutiny is “the most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). Defendants must “specifically identify an ‘actual problem’ in need of solving” and show that substantially burdening Plaintiffs’ free exercise of religion is “actually necessary to the solution.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (June 27, 2011) (internal citations omitted). Defendants bear the burden of proof and “ambiguous proof will not suffice.” Id. at 2739. When evaluating the broadly asserted government interests allegedly furthered by the Mandate, the Seventh Circuit in Korte stated:
Strict scrutiny requires a substantial congruity−a close “fit”−between the governmental interest and the means chosen to further that
22

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 31 of 40 Pg ID 103
interest. Stating the governmental interest at such a high level of generality makes it impossible to show that the mandate is the least restrictive means of furthering them. There are many ways to promote public health and gender equality, almost all of them less burdensome on religious liberty. Korte, 2013 U.S. App. LEXIS 22748 at * 84. Defendants cannot show that forcing Plaintiffs to provide or facilitate health insurance that makes contraceptives and abortifacients available to their employees “without cost sharing,” would further the government’s stated interest of “safeguarding public health” or “ensuring that women have equal access to health care.” Moreover, Plaintiffs dispute that contraception, abortion, and related services constitute health care or that increased provision of these products and procedures will safeguard public health. (Ex. 6, United States Conference of Catholic Bishops Comment; Ex. 7, IOM Report Dissenting Op.); See Gilardi v. United States Dep’t. of Health and Human Services, 733 F.3d 1208, 1221 (D.C. Cir. 2013) (noting as to the government’s claim that the Mandate “averts ‘negative health consequences for both the woman and the developing fetus’ that “the science is debatable and may actually undermine the government’s cause” and that “giving the government the benefit of the doubt, the health concerns underpinning the mandate can be variously described as legitimate, substantial, perhaps even important, but it does not rank as compelling, and that makes all the difference.”).
23

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 32 of 40 Pg ID 104
In evaluating free-exercise claims, “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Yoder, 406 U.S. 215. “[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 Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (citations omitted); O Centro, 524 U.S. at 433. Defendants cannot claim the Mandate promotes an interest of the “highest order” when the government has already exempted tens of millions of people from the Mandate’s requirements through “grandfathering” provisions and the “religious employer” exemption. Legatus, Order Granting Prelim. Inj. at 22 (Ex. 8) (“With tens of millions of people untouched, the Government has undermined its arguments that the HRSA Mandate promotes any compelling government interest.”). Consequently, Defendants cannot show that there is a compelling interest in denying an exemption to Plaintiffs. See Korte, 2013 U.S. App. LEXIS 22748 at *83-84; Gilardi, 733 F.3d at 1222-23; Hobby Lobby, 723 F.3d at 114344. The Court must “look[] beyond broadly formulated interests justifying the general applicability of government mandates” and must “scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” O Centro, 546 U.S. at 431. Defendants cannot show that any harm would result from granting an exemption to Plaintiffs. See Legatus, Order Granting Prelim. Inj. at 21 (Ex. 8).
24

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 33 of 40 Pg ID 105
3. The Mandate fails to use the least restrictive means Defendants designed the Mandate, and the narrow religious exemptions to the Mandate, in a way that make it impossible for Plaintiffs to comply with their religious beliefs without facing government sanction. (Ex. 2, Donovan Decl. at ¶¶ 35-36). The Mandate is not the least restrictive means by which the government can achieve its stated goals. As noted by the court in The Roman Catholic Archdiocese of N.Y., “numerous less restrictive alternatives are readily apparent.” No. 1:12-cv-02542, slip op. at 34 (Ex. 9). The court listed examples that would be less restrictive, including that the government could provide the services or insurance coverage directly to plaintiffs’ employees, or work with third parties without requiring plaintiffs’ active participation, or could provide tax incentives to either consumers or producers of the objectionable products. Id. The government could also offer grants to entities that already provide contraceptive services at free or subsidized rates. The government already subsidizes contraception for certain individuals. See, e.g., Family Planning grants in 42 U.S.C. § 300, et seq.; Public Health Services Act, Title X, 42 C.F.R. 59.5. It is clear that Defendants could further their interests without coercing the Plaintiffs to violate their religious beliefs through the Mandate and the “accommodation.” See Beckwith Elec. Co. v. Sebelius, No. 8:13-cv-0648, 2013 U.S. Dist. LEXIS 94056 at *60 (M.D. Fla. June 25, 2013) (“Certainly forcing
25

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 34 of 40 Pg ID 106
private employers to violate their religious beliefs in order to supply emergency contraceptives to their employees is more restrictive than finding a way to increase the efficacy of an already established [government-run] program that has a reported revenue stream of $1.3 billion”). The “accommodation” merely provides another way to violate the tenets of Plaintiffs’ faith. In light of the alternatives available to achieve the government’s stated interest, there is no justification for forcing Plaintiffs to violate their religious beliefs.
Whether the government has employed the least restrictive means to further its interest “depends on a comparison of the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity.” S. Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1206 (6th Cir. 1990). Here, the cost to Plaintiffs is “incalculable” and “irreparable.” Zubik, 2013 U.S. Dist. LEXIS 165922 at *99; Elrod v. Burns, 427 U.S. 347, 373 (1976). Conversely, there is no measurable cost to the government considering the myriad of exemptions it has already granted from the Mandate.
In sum, the Plaintiffs are likely to succeed on the merits of their claims because the Mandate simply cannot be tolerated under the plain language of the RFRA. The “accommodation” coerces the Plaintiffs to violate their sincerely held religious beliefs – that life is sacred from the moment of conception and that
26

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 35 of 40 Pg ID 107
cooperation in acts which attack human life is gravely sinful. Defendants cannot demonstrate that the Mandate or the “accommodation” through which it applies to Plaintiffs is the least restrictive means of furthering a compelling government interest.
II. Plaintiffs will suffer irreparable harm without injunctive relief Plaintiffs will be irreparably harmed unless this Court grants injunctive
relief, protecting them from enforcement of the Mandate. If Plaintiffs do not comply with the Mandate beginning January 1, 2014, they will be subject to significant government imposed fines. The Mandate deprives Plaintiffs of fundamental First Amendment rights and coerces them to violate the tenets of their faith to avoid government sanction. It is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373: Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) (“The Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.”) (citing Elrod)).
III. Granting injunctive relief will not cause substantial harm to others Defendants will not be harmed if they are restrained from enforcing the Mandate against Plaintiffs. Defendants have exempted millions of other citizens from the Mandate’s requirements including businesses whose plans are
27

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 36 of 40 Pg ID 108
“grandfathered,” and organizations that qualify for the “religious employer” exemption. The significant number of employers who fall within an exclusion or exemption “creates such an ‘underinclusiveness’ which demonstrates that the Government will not be harmed in any significant way by the exclusion of these few Plaintiffs.” Zubik, 2013 U.S. Dist. LEXIS 165922 at *106-07 (citations omitted).
IV. An injunction is in the public interest Because the Mandate deprives Plaintiffs of their constitutionally and
statutorily protected rights, granting an injunction to prevent this harm serves the public interest. “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994); Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (“[T]he public as a whole has a significant interest in ensuring equal protection of the laws and protection of First Amendment liberties”). The public interest is best served by preventing the Defendants from compelling individuals to violate their religious beliefs and rights of conscience, protected by RFRA.
V. The balance of harms favors an granting Plaintiffs an injunction The balance of harms favors granting an injunction in this case. The Court
has discretion “to grant a preliminary injunction even where the plaintiff fails to
28

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 37 of 40 Pg ID 109
show a strong or substantial probability of ultimate success on the merits of his claim, but where he at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if the injunction is issued.” Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009) (quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 104 (6th Cir. 1982)). Here, Plaintiffs have shown a substantial probability of ultimate success on the merits of their claims, and there is no question that the loss of their religious freedom will cause Plaintiffs irreparable harm. Elrod, 427 U.S. at. 373. Consequently, injunctive relief is appropriate and necessary.
As noted by Judge Cleland when evaluating claims of a similarly situated nonprofit Catholic organization covered by the same employee health insurance plan, “[d]enying [Plaintiff] a preliminary injunction at this time will effectively grant the Government a default success on the merits−at least until [Plaintiff] can change its self-certification status and thereby exclude contraception to its employees if [Plaintiff] were to succeed at trial.” Legatus, Order Granting Prelim. Inj. at 32 (Ex. 8). This Court should agree with Judge Cleland’s conclusion that “[t]he harm in delaying the implementation of a regulation that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs.” Id. at 33.
29

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 38 of 40 Pg ID 110
CONCLUSION On January 1, 2014, unless the Court enjoins its enforcement, the Mandate will become effective against Plaintiffs and strip them of their right to make health care insurance decisions in line with their Catholic beliefs. See 78 Fed. Reg. 39,870 (July 2, 2103); (Zmuda Decl. ¶¶ 11, 15). The balance of harms tips strongly in favor of Plaintiffs. Consequently, injunctive relief is warranted. Respectfully submitted this 23rd day of December, 2013.
Attorneys for Plaintiffs: THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886) Richard Thompson (P21410) 24 Frank Lloyd Wright Blvd. P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 emersino@thomasmore.org
30

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 39 of 40 Pg ID 111

CERTIFICATE OF SERVICE I hereby certify that on December 23, 2013, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by certified U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically:

Kathleen Sebelius

Office of the General Counsel

U.S. Dept. of Health and Human U.S. Dept. of Health and Human

Services

Services

200 Independence Avenue, SW

200 Independence Avenue, SW

Washington, DC 20201

Room 713F

Washington, DC 20201

Thomas Perez U.S. Dept. of Labor 200 Constitution Ave., N.W. Washington, DC 20210

U.S. Dept. of Labor 200 Constitution Ave., N.W. Room N 2427 Washington, DC 20210

Jack Lew U.S. Dept. of Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220

U.S. Dept. of Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220

Eric Holder Office of the Attorney General U.S. Dept. of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

Barbara L. McQuade U.S. Attorney for the Eastern District of Michigan 211 W. Fort Street Suite 2001 Detroit, Michigan 48226

31

2:13-cv-15198-SJM-MAR Doc # 3 Filed 12/23/13 Pg 40 of 40 Pg ID 112

and via facsimile to:

Eric Holder, Office of the Attorney General U.S. Department of Justice (202) 514-0539

and, as requested by Defendants, via Electronic Mail to:

Benjamin L. Berwick U.S. Department of Justice Benjamin.L.Berwick@usdoj.gov

Bradley P. Humphreys U.S. Department of Justice Bradley.P.Humphreys@usdoj.gov

THOMAS MORE LAW CENTER

s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)

32

 
 2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 1 of 44 Pg ID 318

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

AVE MARIA FOUNDATION, et al.,

) )

Plaintiffs,

) )

v.

) )

) Case No. 2:13-cv-15198-SJM-MAR

KATHLEEN SEBELIUS, in her official))

capacity as Secretary, United States )

Department of Health and Human Services, et al.,

) ) )

)

)

Defendants.

)

)

DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 2 of 44 Pg ID 319
TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii ISSUES PRESENTED............................................................................................ vii CONTROLLING OR MOST APPROPRIATE AUTHORITIES......................... viii INTRODUCTION .....................................................................................................1 BACKGROUND .......................................................................................................5 STANDARD OF REVIEW .....................................................................................10 ARGUMENT ...........................................................................................................10 I. PLAINTIFFS’ RELIGIOUS FREEDOM RESTORATION
ACT CLAIM IS WITHOUT MERIT............................................................10 A. The Regulations Do Not Substantially Burden Plaintiffs’
Exercise Of Religion ...........................................................................10 1. The regulations impose no more than a de minimis burden
on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs ..........................................12 2. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA...........................................................19 B. Even If There Were A Substantial Burden On Religious Exercise, The Regulations Serve Compelling Governmental Interests And Are The Least Restrictive Means To Achieve Those Interests...........22 1. The regulations significantly advance compelling governmental interests in public health and gender equality ......22 2. The regulations are the least restrictive means of advancing the government’s compelling interests........................................28 II. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC.......................................................................................32 CONCLUSION ........................................................................................................34
i

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 3 of 44 Pg ID 320
TABLE OF AUTHORITIES Abdulhaseeb v. Calbone,
600 F.3d 1301 (10th Cir. 2010) .....................................................................17 Adams v. Comm’r of Internal Revenue,
170 F.3d 173 (3d Cir. 1999) ....................................................................30, 31 Annex Medical Inc. v. Sebelius,
No. 12-2804, 2013 WL 101927 (D. Minn. Jan. 8, 2013) ..............................20 Autocam Corp. v. Sebelius,
No. 1:12-CV-1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012) .................................................................. passim Bowen v. Roy, 476 U.S. 693 (1986).......................................................................................13 Braunfeld v. Brown, 366 U.S. 599 (1961).................................................................................11, 28 Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) .......................................................................23 Catholic Diocese of Nashville v. Sebelius, No. 3:13-cv-01303 (M.D. Tenn. Dec. 26, 2013)................................... passim Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328 (N.D. Ga. 2012)..........................................................17 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).......................................................................................26 City of Boerne v. Flores, 521 U.S. 507 (1997).......................................................................................19 Civil Liberties for Urban Believers, 342 F.3d 752 (7th Cir. 2003) ...................................................................15, 21 Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008) ..........................................................................11 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) .........................................................................31 Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008).................................................................33
ii

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 4 of 44 Pg ID 321
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
Eden Foods, Inc. v. Sebelius, No. 13-11229, 2013 WL 1190001 (E.D. Mich. March 22, 2013).................20
Elrod v. Burns, 427 U.S. 347 (1976).......................................................................................32
Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) .........................................................................31
Gilardi v. Sebelius, 926 F. Supp. 2d 273 (D.D.C. 2013)...............................................................21
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 435 (2006).................................................................................25, 28
Gooden v. Crain, 353 F. App'x 885 (5th Cir. 2009) ..................................................................31
Graham v. Comm’r, 822 F.2d 844 (9th Cir. 1987) ...................................................................25, 31
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001).........................................................................11
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) ............................................................. passim
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008)............................................................... passim
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) ...................................................... 11, 17, 20, 22
Legatus v. Sebelius, No. 12-12061, 2013 WL 6768607 (Dec. 20, 2013) ................................18, 19
Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729 (6th Cir. 2007)......................................................15, 16, 21
McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004) ....................................................................15, 21
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) .........................................................................32
iii

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 5 of 44 Pg ID 322
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011).................................................................22
Mersino Mgmt. Co. v. Sebelius, No. 13-cv-11296, 2013 WL 3546702 (E.D. Mich. July 11, 2013) ...............18
Murphy v. State of Ark., 852 F.2d 1039 (8th Cir. 1988) .......................................................................31
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989)..........................................................................30
O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d at 1158-60................................................................13, 20, 22
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009).......................................................................21
Priests for Life v. U.S. Dep’t of Health & Human Servs., --- F. Supp. 2d ----, 2013 WL 6672400 (D.D.C. Dec. 19, 2013) .......... passim
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).......................................................................................24
S. Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203 (6th Cir. 1990) ...........................................................26, 28, 31
Sherbert v. Verner, 374 U.S. 398 (1963).................................................................................20, 25
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) .......................................................................34
Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981)............................................................................... passim
Univ. of Notre Dame v. Sebelius, No. 3:13-cv-01276 (D.D.C. Dec. 20, 2013) .......................................... passim
United States v. Israel, 317 F.3d 768 (7th Cir. 2003) .........................................................................28
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. Oliver, 255 F.3d 588 (8th Cir. 2001) .........................................................................25
iv

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 6 of 44 Pg ID 323
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) .........................................................................29
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ...............................................................29, 30
United States v. Winddancer, 435 F. Supp. 2d 687 (M.D. Tenn. 2006) .................................................25, 26
Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006) .........................................................................16
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) ..........................................................................15
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982).......................................................................................33
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007) ..........................................................................17
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)...........................................................................................10
Wisconsin v. Yoder, 406 U.S. 205 (1972)...........................................................................17, 20, 25
Workman v. Bredsen, 486 F.3d 896 (6th Cir. 2012) .........................................................................10
Zubik v. Sebelius, Nos. 13cv1459, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013) ....................11 STATE CASES
Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67 (Cal. 2004)...................................................................................25 STATUTES
42 U.S.C. § 18011....................................................................................................26 42 U.S.C. 2000bb-1..................................................................................................10 42 U.S.C. § 300gg-13 ................................................................................................6 Pub. L. No. 111-148, 124 Stat. 119 (2010)................................................................5 Pub. L. No. 103-141, 107 Stat. 1488 (1993)............................................................10
v

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 7 of 44 Pg ID 324
FEDERAL REGULATIONS 45 C.F.R. § 147.131 .....................................................................................7, 8, 9, 27 45 C.F.R. § 147.140 .................................................................................................26 75 Fed. Reg. 34,538, 34,546 (June 17, 2010) ..........................................................27 75 Fed. Reg. 41,726, 41,733 (July 19, 2010).....................................................23, 34 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011) .............................................................7 77 Fed. Reg. 16,501 (Mar. 21, 2012).........................................................................7 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012) ................................................... passim 78 Fed. Reg. 39,870 (July 2, 2013).................................................................. passim 78 Fed. Reg. 8456 (Feb. 6, 2013) ..............................................................................7
LEGISLATIVE MATERIALS 139 Cong. Rec. S14350-01 S14352 (daily ed. Oct. 26, 1993) ................................18 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009)...........................24, 34 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009).................................24 H.R. Rep. No. 111-443, pt. II (2010).......................................................................30
MISCELLANEOUS HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines ..............................................................................................................6, 7 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (2011)................................................................................ passim
vi

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 8 of 44 Pg ID 325
ISSUES PRESENTED 1. Have plaintiffs shown a likelihoo d of success on their clai m that the preventive services coverage regulations substantially burden their religious exercise under the Religious Freedom Restoration Act? 2. Assuming the regulations substantially burden plaintiffs’ rel igious exercise, have plaintiffs shown a likelihood of succe ss on their claim that the regulations do not serve compelling governmental interest or are not the least restrictive means to achieve those interest? 3. Assuming plaintiffs have shown a likelihood of success on the merits, have plaintiffs established irreparable harm and that the public interest weights in favor of granting a preliminary injunction?
vii

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 9 of 44 Pg ID 326
CONTROLLING OR MOST APPROPRIATE AUTHORITIES Bowen v. Roy, 476 U.S. 693 (1986) Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729 (6th
Cir. 2007) Catholic Diocese of Nashville v. Sebelius, No. 3:13-cv-01303, slip op. (M.D. Tenn.
Dec. 26, 2013) Univ. of Notre Dame v. Sebelius, No. 3:13-cv-01276, slip op. (N.D. Ind. Dec. 20,
2013) Priests for Life v. U.S. Dep’t of Health & Human Servs., --- F. Supp. 2d ----, 2013
WL 6672400 (D.D.C. Dec. 19, 2013)
viii

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 10 of 44 Pg ID 327

INTRODUCTION

Plaintiffs—The Ave Maria Founda tion, Ave Maria Comm unications,

Domino’s Farms Petting Farm, Rhodora J. Donahu Academy, Inc., and Thomas

More Law Center—challenge regulations related to the provision of contraceptive

coverage that do not burden t heir religious exercise and, indeed, require them only

to take the de minimis step t hat they would have to take in the absence of such

regulations: convey to their health insura nce insurer that they object to provi ding

contraceptive services. Plaintiffs are elig ible for a regulatory acco mmodation that

relieves them from having to contract, arrange, pay or refer for contraceptive

coverage, and that in no way prevents them from continuing to voice their

disapproval of contraception or from encouraging their employees to refrain from

using contraception. To avail themselves of this significant acco mmodation,

plaintiffs need do nothing m ore than provi de their insurer with a copy of a se lf-

certification that they are eligible fo r the acco mmodation and do not wish to

provide contraception. Such a mini mal requirement is no “burden” at al l, let alone

one sufficient to invalidate the regulations.

Specifically, plaintiffs ask this Court to preliminarily enjoin regulations that

are intended to accommod ate religious exer cise while helping to ensure that

women have access to hea lth coverage, without cost-sharing, for preventive

services that medical experts deem neces sary 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-prof it religious organizations, as discussed

below, the regulations that plaintiffs cha llenge require certain group health plans

and health insurance issuers and thi rd-party administrators to provide coverage,

without cost-sharing (such as a copaymen t, coinsurance, or a deductible), for,

among other things, all Food and Drug Adm

inistration (FDA)-approved

contraceptive methods, sterilization pr ocedures, and patient education and

1

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 11 of 44 Pg ID 328
counseling for women with reproductive capac ity, as prescribed by a health care provider.
When the contraceptive-coverage requi rement was first established, in August 2011, certain non-profit religi ous organizations objected on religious grounds to having to provide contraceptive coverage in the group health plans they offer to employees. Although, in the gover nment’s view, these organizations were mistaken to claim that an accommodation was required under the First Amendment or the Religious Freedom Restoration Act (RFRA), the defendant Departments decided to accommodate the concerns expressed by these organizations. First, they established an exemption for the group health plans of houses of worshi p and their integrated auxiliaries (and any associated group health insura nce coverage). In addition, defendants estab lished accommodations for th e group health plans of eligible non-profit religi ous organizations, li ke the plaintiffs here (and any associated group health insu rance coverage), that relieve them of responsibility to contract, arrange, pay, or refer for contracep tive coverage or services, but that also ensure that the women who participate in these plans are not denied access to contraceptive coverage without cost-sharing. To be eligible for an accommodation, the organization merely needs to certify that it m eets 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 some or all co ntraceptives. Once the organization certifies that it meets these crite ria, it need not contract, arrange, pay, or refer for contraceptive c overage or services. If the organization has third-party insurance—like the plaintiffs here—t he third-party insurer takes on the responsibility to provide contraceptive c overage to the organization’s em ployees and covered dependents. The objecting employer bears none of the cost (if any) of providing contraceptive coverage; nor does it administer such coverage; nor does it
2

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 12 of 44 Pg ID 329
contract or otherwise arrange for such coverage; nor does it refer for such coverage.
Remarkably, plaintiffs now declare th at these acco mmodations themselves violate their rights under RFRA and the First Amendment. They contend that the mere act of certifying that they are eligible for an a ccommodation is a substantial burden on their religious exercise becaus e, once they make the certification, their employees will be able to obta in contraceptive coverage through other parties. At bottom, plaintiffs’ position seems to be that any asserted burden, no matter how de minimis, amounts to a subst antial burden under RFRA. That is not the la w. Congress amended the initial version of RFRA to add the word “substantially,” and thus made clear that “any burden” woul d not suffi ce. Although these regulations require virtually nothing of the m, plaintiffs claim that the regulations run afoul of their religious beliefs pr ohibiting them from providing or facilitating health coverage for certain contracep tive services, and that the challenged regulations violate RFRA, the First Amendment, and the Administrative Procedure Act (APA).
With respect to plaintiffs’ RFRA cl aim, which is the only claim that plaintiffs raise in their m otion for a tem porary restraining order, plaintiffs cannot establish a substantial burden on their re ligious exercise—as they must —because the regulations do not require plaintiffs t o change their behavior in any significant way. Plaintiffs are not required to contra ct, arrange, pay, or refer for contraceptive coverage. To the contrary, plaintiffs are free to continue to refuse to do so, to voice their disapproval of contraception, and to encourage their employees to refrain from using contraceptive services. Plaintiffs contend that the need to sel f-certify in order to obtain the acco mmodation is it self a burden on their religious exercise. But the challenged regulations require plaintiffs only to self-certify that they have a religious objection to providi ng contraceptive coverage and otherwi se meet the criteria for an eligibl e organization, and t o share that self-cert ification with their
3

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 13 of 44 Pg ID 330
issuer. In other words, plainti ffs are required only to inform their issuer that the y object to providing contraceptive services, wh ich they have done or would have to do voluntarily anyway even ab sent these regulations in order to ensure that that they are not responsible for contracting, arranging, paying, or referring for such coverage. Plaintiffs can hardly claim that it is a violation of RFRA to require them to do almost exactly what they would do in t he ordinary course, absent the regulations. See Univ. of Notre Dame v. Sebelius , No. 3:13-cv-01276-PPS-CAN, slip op. at 17-24 (N.D. Ind. Dec. 20, 201 3) (concluding that the acco mmodation at issue here does not impose a substant ial burden on t he plaintiff’s religious exercise); Priests for Life v. U.S. Dep’ t of Health & Human Servs. , No. 1:13-cv1261-EGS, 2013 WL 6672400, at *6-10 (D.D.C. Dec. 19, 2013) (same); Catholic Diocese of Nashville v. Sebelius , No. 3: 13-cv-1303, slip op at 6-10 (M.D. Tenn. Dec. 26, 2013) (same).
Further, plaintiffs’ cha llenge rests largely on t he theory that even the extremely attenuated connec tion between them and the independent provision by insurers of paym ents for contra ceptive 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 fram e their religious beliefs, courts must independently consider whether a given law im poses a substantial burden on those beliefs. See Autocam Corp. v. Sebelius, No. 1:12-CV1096, 2012 WL 6845677, at *6 (W .D. Mich. Dec. 24, 2012), aff’d, 730 F.3d 618 (6th Cir. 2013). The regulations im pose, 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’ pa yment of salaries to their em ployees, which those em ployees can also use to buy contraceptive services if they so choose.
4

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 14 of 44 Pg ID 331
Moreover, even if the challen ged regulations were deem ed to im pose a substantial burden on plainti ffs’ religious exercise, the regulations w ould not violate RFRA because they are narrowly tailored to serve two compelling interests: improving the health of women and newborn children, and equalizing the provision of preventive care for women and men so that women can participate in the workforce, and society more generally, on an equal playing field with men.
Thus, and as explained below, the Cour t should deny plaintiffs’ motion for a temporary restraining order.
BACKGROUND Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not re ceive the preventive health care they needed to stay healthy, avoid or delay the onset of disease, lead productive lives, and reduce health care cost s. Due largely to cost, Ameri cans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM R EP.”), AR at 317-18, 407. 1 Section 1001 of the ACA—which includes the preventive services coverag e provision relevant here—seeks to cure this problem by making preventive care ac cessible and affordable for many m ore Americans. Specifically, the provisi on requires all group health plans and health insurance issuers that offer non-grandfathe red group or indivi dual health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).
1 Where appropriate, defend ants have provided pa rallel citations to the Administrative Record (AR).
5

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 15 of 44 Pg ID 332

Because there were no existing HRSA g uidelines relating to preventive care

and screening for women, th e Department of Health and Human Services (HHS)

requested that the Instit ute of Medi cine (IOM) develop recommendations to

implement the requirement to provide coverage, without cost-sharing, of preventive services f or women. IOM REP. at 2, AR at 300. 2 After conducting an

extensive science-based review, IOM recommended that HRSA guidelines include,

among other things, well-woman visits; breastfeeding support; domestic violence

screening; and, as relevant here, “the full range of [FDA]-ap proved contraceptive

methods, sterilization procedures, and patient education and counseling for wom en

with reproductive capacity.” Id. at 10-12, AR at 308-10. FD

A-approved

contraceptive methods include diaphragm s, oral contracept ive pills, emergency

contraceptives, and intrauterine devices (“IUDs”). See id. at 105, AR at 403. IOM

determined that coverage, wit hout cost-sharing, for these services is necess ary to

increase access to such services, and th ereby reduce unintended pregnancies (and

the negative health outcomes that di sproportionately 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 religious employers

authorized by regula tions issued that sa me day (the “2011 am ended interim final

regulations”). See HRSA, Women’s Preventive Serv ices: Required Health Plan

2 IOM, wh ich was established by the Nati onal Academy of Sciences in 1970, is funded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv, AR at 289.

3 At least twenty-eight states have laws requiring health insurance policies that

cover prescription drugs to also

provide coverage for FDA-approved

contraceptives. See Guttmacher Institute, State Policies in Brief: Insurance

Coverage of Contraceptives (June 2013), AR at 1023-26.

6

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 16 of 44 Pg ID 333
Coverage Guidelines (“HRSA Guidelines”), AR at 283-84. 4 Group health plans established or m aintained by these re ligious employers (and associated group health insurance coverage) are ex empt from any requirem ent to cover contraceptive services consis tent 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 em ployer” contained in the 2011 amended interim final regulations while also creating a temporary enforcem ent safe harbor for non-gra ndfathered group health plans sponsored by certain non-profit organizations wit h 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 ne w rulemaking during t he safe harbor period to adopt new regula tions to further acco mmodate non-grandfathered nonprofit religious organizations’ religio us objections to covering contraceptive services. Id. at 8728, AR at 215. The regulations challenged here (the “2013 final rules”) represent the cul mination 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 Rulemaking (ANPRM)), AR at 186-93; 78 Fe d. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.
4 To qualify for t he 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 nonprofi t organization as described in section
6033(a)(1) and section 6 033(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.
7

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 17 of 44 Pg ID 334

The 2013 final rules represent a significant acco

mmodation by the

government of the religious objections of certain non-profit religious organizations

while promoting two important policy goals. First, the regulations provi de women

who work for non-profit re ligious organizations with access to contraceptive

coverage without cost sharing, ther eby advancing the com pelling government

interests in safeguarding public health and ensuring that women have equal access

to health care. Second, the regulations advance these interests in a narrowly

tailored fashion t hat does not requi re non-profit religious organizations wit h

religious objections to providing contraceptive coverage to c ontract, pay, arrange,

or refer for that coverage.

The 2013 final rules sim plify and clarify the religious em ployer exemption

by eliminating the first three criteria and clarifying the fourth criterion. See supra

note 4. Under the 2013 fi nal rules, a “relig ious employer” is “an organization tha t

is organized and operates as a nonprof it entity and is refe rred 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, thei r integrated auxiliaries, and conventions

or associations of churches, and the exclusively religious activities of any religious

order. 45 C.F.R. § 147.131(a). The changes made to th e definition of religious

employer in the 2013 final rules are intende d to ensure “that a n otherwise exempt

plan is not di squalified because the employer’s purposes extend beyond t he

inculcation of religious values or because the employer hires or serves people of

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

The 2013 final rules also establish ac commodations with respect to the

contraceptive coverage requirement fo r group health plans established or

maintained by “eli gible organizations” (and group health in surance coverage

provided in connection with such plans). Id. at 39,875-81, AR at 7-13; 45 C.F.R.

8

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 18 of 44 Pg ID 335
§ 147.131(b), (f) (student he alth plans). An “eligible organization” is an organization that satisfies the following criteria:
(1) The organization opposes providing co verage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the
Secretary, that it sati sfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self-certification available for examination upon request by the firs t day of the first plan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. Under the 2013 fi nal rules, an eligib le organization is not require d “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. To be relieved of any such obligations, the rules require only that an eligible organization co mplete a self-certification form stating t hat it is an eligi ble organization and provide a copy of t hat selfcertification to its issuer (o r third-party administrator in the case of a self-insured group health plan). Id. at 39,878-79, AR at 10-11. Its participants and beneficiaries, however, will still benefit from separate payments for contraceptive services without cost sharing or ot her charge. Id. at 39,874, AR at 6. In the case of an organization with an insured group health plan, the organization’s health insurance issuer, upon receipt of the self-certificati on, must provide separate p ayments to plan participants and beneficiar ies for contraceptive services without cost sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,875-77, 39,881, AR at 7-9, 13. The 2013 final rul es generally apply to group health plans and he alth insurance issuers for plan years begi nning on or after January 1, 2014, see id. at 39,872, AR at 4, except that the amendments to t he religious employer exemption
9

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 19 of 44 Pg ID 336
apply to group health plans and group h ealth insurance issuers for plan year s beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
STANDARD OF REVIEW A temporary restraining order is an “extraordinary remedy that may 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 irreparable harm in the absence of prelim inary relief, that the balan ce of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20; Workman v. Bredsen, 486 F.3d 896, 904-05 (6th Cir. 2012).
ARGUMENT A. PLAINTIFFS’ RELIGIOUS FREEDOM RESTORATION ACT
CLAIM IS WITHOUT MERIT A. The Regulations Do Not Substanti ally Burden Plaintiffs’ Exercis e
Of Religion Under RFRA, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. § 2000bb-1 et seq.), the federal government “s hall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a com pelling governmental in terest. 42 U.S.C. 2000bb-1. Im portantly, “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) (em phasis added). “A substantial burden exists when government action puts ‘substanti al pressure on an adherent to m odify his behavior and to violate hi s 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)); see also Notre Dame, slip op. at 16-17; Priests for Life , 2013 WL 6672400, at *6-10; Catholic Diocese of Nashville, slip op. at 7-9. “An inconsequential or de minimis burden on religious practice d oes not rise to th is level, nor does a burden on activity
10

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 20 of 44 Pg ID 337
unimportant to the adherent’s religious sc heme.” Id. 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).
For two reasons, plaintiffs cannot s how that the challenged regulations substantially burden their religious exercise.5 First, because the regulations require virtually nothing of plaintiffs, and certainly do not require plaintiffs to modify their behavior in any meaningful way, the re gulations cannot be deemed to impose any more than a de minimis burden on plaintiffs—let a lone a substantial one. Second,
5 Plaintiffs rely heavily on two out-of-circuit cases— Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), and Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013)—both of which i nvolve for-profit com panies and which conflict with the Sixth Circuit’s Autocam decision. See, e.g., Pls.’ Mem. at 16-18, 22-23 Those cases are inapposi te because for-profit corporations—unlike plaintiffs—do not qualify for the religious em ployer exemption or t he accommodations for eligible organizations. See 78 Fed. Reg. at 39,875, AR at 7. Thus, for exam ple, the regul ations require for-profit companies to contract or otherwise arrange and pay fo r contraceptive coverage for the parti cipants and beneficiaries of their group health plan. Plaintiffs, by contrast, are in a markedly different position than the Hobby Lobby and Korte plaintiffs. As previousl y explained, in order to be relieved of the obligation to c ontract or otherwise arrange and pay for contraceptive coverage, plain tiffs must take th e simple step of completing the self-certification—which reite rates what they have already stated repeatedly in this case; that they are non -profit religious with religious objections to providing contraceptive c overage—and provide a copy of the self-certification to their issuers. Similarly, the district court in Zubik v. Sebelius, Nos. 13cv1459, 13cv0303, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013), was wrong to rely on cases involving claims of for-profit employers. The Zubik court’s conclusion that the regulations at issue in that case (an d in this one) im pose a substantial burde n on the plaintiffs in that case—which was rendered withou t citation to any le gal authority, id.at *2427—is unpersuasive. With respect to Archdiocese of New Y ork v. Seb elius, No. 1:12-cv-2542-BMC (E.D.N.Y. Dec. 16, 2013), also cited by plaintiffs, the court’s ruling was based on an erroneous inte rpretation of RFRA. The court held that “[w]here government action coerces a religious adherent to undertake affirmative acts contrary to his religious beliefs, the ‘substantial burden’ inquiry should focus primarily on the intensity of the coercio n applied by the government to act.” Slip op. at 22. Under this theory, the mere fact that a plain tiff sincerely believes that a challenged law violates his religious beli efs would be suffici ent to amount t o a substantial burden so long as t here is an adverse consequence attached to violating the law. Courts woul d play no role in de termining whether an alleged burden is “substantial.” This expansive interpretation of RFRA has no l imiting principle and is not supported by the case law or the legislative history.
11

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 21 of 44 Pg ID 338
even if t his Court finds that the regulations im pose some burden on plaintiffs’ religious exercise, any such burden would be far too attenuated to be substantial.
1. The regulations impose no more than a de minimis bur den on plaintiffs’ exercise of rel igion because the regulations require virtually nothing of plaintiffs
To put this case in its sim plest terms, plaintiffs challenge regulations t hat require them to do next to not hing, except what they would have to do even in the absence of the regulations. Plaintiffs, as eligible organizations, are not re quired to contract, arrange, pay, or refer for cont raceptive coverage. To the contrary, these plaintiffs are free t o continue to refuse to do so, to voice their disapproval of contraception, and to encourage thei r employees to refrain from using contraceptive services. Plaintiffs need onl y fulfill the self-certification requirement and provide the completed self-certification to their issuer. Plaintiffs need not pay for contraceptive services to their empl oyees. Instead, third parties—plaintiffs’ issuer—provide payments for contracep tive services, at no cost to plaintiffs. In short, with respect to contraceptive coverage, the non-exempt plaintiffs need not do anything more than they di d prior to the prom ulgation of the challenged regulations—that is, to inform their i ssuer that they object t o providing contraceptive coverage in order to ensure that they are not responsible for contracting, arranging, paying, or referring for such coverage. Thus, the regulations do not re quire plaintiffs “to m odify [their] religious beha vior in any way.” Kaemmerling, 553 F.3d at 679. The Court ’s inquiry should end here. A law cannot be a substantial burden on religious exer cise when “it involves no action or forbearance on [plaintiffs’] part, nor . . . otherwise interfere[s] with any religious act in which [plaintiffs] engage[].” Id.; see also Notre Dame, slip op. at 17-24; Priests for Life, 2013 WL 6672400, at *8-10; Catholic Diocese of Nashville , slip op. at 7-9.
12

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 22 of 44 Pg ID 339
Because the regulations place no burde n at all on plaintiffs, they plainly place no cognizable burden on their religi ous exercise. Plaintiffs’ contrary argument rests on an unprecedented an d sweeping theory of what it m eans for religious exercise to be burdened. Not only do plaintiffs want to be free from contracting, arranging, paying, or referri ng for contracept ive services for their employees—which, under these regulations, they are—but plaintiffs would also prevent anyone else from providing such coverage to their employees, who m ight not subscribe to plaintiffs’ religious beliefs. Plaintiffs’ expansive theory of RFRA would mean, for example, that even the government would not realistically be able to provide contraceptive coverage to plai ntiffs’ employees (as plaintiffs elsewhere suggest), because it would be “trigger[ed ],” id. ¶ 169; Pls.’ Mem . at 11, by plaintiffs’ refusal to provide such coverage themselves. But RFRA is a shield, not a sword, see O’Brien v. U.S. Dep’t of Health & Human Servs. , 894 F. Supp. 2d 1149, 1158-60 (E.D. Mo. 2012), and accordingly it does not prevent th e government from providing alternative means 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 Cl ause simply cannot be understood t o require the Government to conduct its own internal affa irs in ways that com port with the religious beliefs of particular citizens.”).
Plaintiffs’ RFRA challenge is sim ilar to the claim that the D.C. Ci rcuit rejected in Kaemmerling. There, a federal prisoner obj ected to the FBI’s collection of his DNA profile. 553 F.3d at 678. In concluding that this collection did not substantially burden the prisoner’s relig ious exercise, the court concl uded that “[t]he extraction and storage of DNA info rmation are entirely activities of the FBI, in which Kaemmerling plays no role and which occur after the BOP h as taken his fluid or ti ssue sample (to which he does not obje ct).” Id. at 679. In the court’s view, “[a]lthough the government’s activities with his fluid or tissue sample after
13

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 23 of 44 Pg ID 340
the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be sai d to hamper his religious exer cise because they do not pr essure [him] to modify his behavior and to vi olate his beliefs.” Id. (internal citation and quota tion marks omitted). The same is true here, where the provision of contraceptive services is “entirely [an] activit[y] of [a third party], in which [p laintiffs] play[] no role.” Id. As in Kaemmerling, “[a]lthough the [third party] ’s activities . . . may offend [plaintiffs’] religious beliefs, they cannot be sa id to ham per [their] religious exercise.” Id.
Perhaps understanding the tenuous ground on which their RFRA claim rests, given that the regulations do not require them to contract, arrange, pay, or refer for contraceptive services, plaintiffs attempt to circumvent this problem by advancing the novel theory that the regulations require them to somehow “facilitate access” to contraceptive coverage, and that it is this “facilitation” that violates plaintiffs’ religious beliefs. See, e.g., Compl. ¶¶ 184, 211; Pls.’ Mem at 14, 19. But t he challenged regulations require plaintiffs only to self-certify that they object to providing coverage for cont raceptive services and that they otherwise meet the criteria for an eligibl e organization, and t o share that self-cert ification with their issuer. In other words, plainti ffs are required to inform their issuer that they object to providing contraceptive c overage, which they have done or would have to do voluntarily anyway even absent these regula tions in order to ensure that they are not responsible for contrac ting, arranging, paying, or referring for contraceptive coverage. The sole difference is that they m ust inform their issuer that their objection is for religious reasons—a statement they have already mad e repeatedly in this litigation.
Furthermore, any burden i mposed by the purely adm inistrative selfcertification requirement—which should take plaintiffs a matter of m inutes—is, at most, de minimis, and thus cannot be “substantia l” under RFRA. The Sixth Circui t
14

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 24 of 44 Pg ID 341
and other courts have made clear that the substantial burden hurdle is a high one. Living Water Church of God v. Charter Twp. of M eridian, 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 self-certification is de minimis. They contend that, as an alternative to the accomm odations developed by the Departments, the government should somehow expand or create other publ ic programs so as to provi de contraceptive coverage to the wo men who participate in plaintiffs’ group health plans. RFRA plainly does not require defendants to expand or create governm ent programs, particularly where, as here, th ere is no st atutory authority to do so. See infra Section I.A.2.b. But, in any event, pl aintiffs’ own proposals would entail th e same putative “burden” as the existi ng accommodations, or an even greater burden: One way or another, plaintiffs wo uld have to certify their eligibility for an accommodation, and the result would be that the wo men who participate in the ir plan would get contraceptive coverage th rough another source such as Medicaid. The government would of c ourse, as it do es with Medicaid, have to verify employment and/or dependent beneficiary status with th e eligible organization. The current accomm odations are thus lik ely to require less of plaintiffs’ involvement than would a government program to separately provide contraceptive coverage for their employees and dependents.
Contrary to plaintiffs’ suggestion, the mere fact that plaintiffs claim that the self-certification requirement im poses a substantial burden on their religious exercise by requiring them to “facilitate” access to contraception does not make it
15

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 25 of 44 Pg ID 342
so. See Conestoga Wood Spe cialties Corp. v. Sebelius , 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013) (“[W] e reject the notion . . . that a plaintiff shows a burden to be substantial simply by claiming that it is.” ). Under RFRA, plaintiffs are entitled to their sincere religious beliefs, but they are not entitled to decide what does and does not i mpose a substantial burden on such beli efs. Although “[c]ourts are not arbiters of scriptural interpretation,” Thomas, 450 U.S. at 716, “RFRA still requires the court to determ ine whether the burden a law im poses on a plaintiff’s stated religious belief is ‘substantial,’” Conestoga, 917 F. Supp. 2d at 413. Plaintiffs would limit the Court’s inquiry to two pron gs: first, whether plaintiffs’ religious objections to the regulations are sincere, and second, whether the regulations apply significant pressure to plaintiffs to comp ly. But plaintiffs ig nore a critical third criterion of the “substantial burden” te st, which gives meaning to the term “substantial”: whether the challenged regul ations actually require plaintiffs to modify 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 (7t h Cir. 2006) (noting, in the RLUIPA context, that “the Supreme Court has found a ‘substantial burden’ to exist when the government puts ‘substantial pressure on an adherent to modify his behavior and to violate his beliefs’” (quot ing Hobbie v. Unemployment Appeals Comm’n of Fla. , 480 U.S. 136, 141 (1987))) (em phasis added); Westchester Day S ch. v. Vill. o f 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). A law “substantially burdens” an exercise of religion if it compels a person to “perform acts undeniably at odds with fundamen tal tenets of [ one’s] religious beliefs,” Wisconsin v. Yoder , 406 U.S. 205, 218 (1972) (emphasis added), or “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas, 450 U.S. at 717-18 (em phasis added). This test does not require
16

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 26 of 44 Pg ID 343
the Court to delve into the theological merits of a belie f, but instead requires the Court to exam ine the operation of the regul ations and their im pact on plaintiffs’ religious practice.6
Under plaintiffs’ alternative interpre tation of RFRA, courts would pla y virtually no role in determ ining whether an alleged burden is “substantial”—as long as a plaintiff’s religious belief is si ncere, that would be the end of the inquiry. Plaintiffs would thus be allowed to ev ade RFRA’s threshold by simply asserting that the burden on t heir religious exercise is “substantial,” thereby paradoxically reading the term “substantial” out of RFRA. See Autocam, 2012 WL 6845677, at *6 (“The Court does not doubt the sincer ity of Plaintiff Kennedy’s decision to draw the line he does, but the Court still has a duty to assess whether the claimed burden—no matter how sincerely felt—really amounts to a substantial burden on a person’s exercise of religion.”). “If every plaintiff were perm itted to unilaterally determine that a law burdene d their religious beliefs, a nd courts were required to assume that such burden was substantial, simply because the pl aintiff claimed that it was the case, then the standard expr essed by Congress under the RFRA would convert to an ‘any burden’ standard.” Conestoga, 917 F. Supp. 2d at 413-14; see
6 In Hobby Lobby, a bare m ajority of the en banc Tenth Circuit concluded that, in determining whether a burden is substantial, a court’s “ only task is to determ ine whether the claimant' s belief is sincere, and if so, whether the governm ent 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 m akes clear that in order for a law to im pose a substantial burden, it m ust require some actual change in religious behavior— either forced participation in conduc t or forced abstention from conduct. See Hobby Lobby, 723 F.3d at 1138 (citing Abdulhaseeb, 600 F.3d at 1315). The Hobby Lobby substantial burden analysis is al so inapposite because for-profit corporations are not eligible for the accommodations. For sim ilar reasons, the Seventh Circuit’s substantial burden analysis in Korte—which followed Hobby Lobby—is unpersuasive. See Korte, 735 F.3d at 683.
17

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 27 of 44 Pg ID 344
also Autocam, 2012 WL 6845677, at *7; Mersino, 2013 WL 3546702, at *16.7 The result would be t o subject every act of Congress to strict scrutiny every tim e any plaintiff could articulate a sincerely hel d religious objection to com pliance with that law. This is not the law.
Plaintiffs rely heavily on the recent decision in Legatus v. Sebelius, No. 1212061, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013). Defendants respectfully submit that Legatus was wrongly decided, for the r easons discussed above, and for the reasons stated in other recent cases rejecting similar RFRA claims. See Notre Dame, slip op. at 11-25; Priests for Life , 2013 WL 6672400, at *5-10; Catholic Diocese of Nashville, slip op. at 7-10. The Legatus court’s discussion of the central issue in this case— the existence or not of a substantial burde n on a plaintiff’s religious exercise—is extraordinarily scant. See 2013 WL 6768607, at *7-8. The court did nothing more than “accep[t] the assertion” offered by the plaintiff that the regulations substantially burden its exercise of religion, id. at *8, but as defendants have explained, RFRA re quires a court to undert ake an objective inquiry i nto whether, as a legal matter, the nature of the burden im posed on a pla intiff is, in fact, substantial. See also Conestoga, 917 F. Supp. 2d at 413. Indeed, the opinion in Legatus illustrates that plaintiffs’ lim itless approach to RFRA would leave nearly nothing for a reviewing court to do, and would mean that every time a plaintiff could articulate a sincerely hel d religious objection to any la w, that law would be found to i mpose a substantial burden on that plaintiff, and would be
7 RFRA’s legislative history makes clea r that Congress di d not intend such a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, subs tantial or ot herwise. Congress amended the bill to add the word “substa ntially,” “to make it clear that the compelling interest standards set forth in the act” apply “only t o 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).
18

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 28 of 44 Pg ID 345
subjected to strict scrutiny, the “most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997).
In sum, the regulations do not im pose a substantial burden on plaintiffs’ religious exercise, and thus plaintiffs are not likely to succeed on the merits.
2. Even if the regulations w ere found to impose some more than de minimis burden on plai ntiffs’ exercise of religion, any such burden w ould be fa r too attenuated to be “substantial” under RFRA
Although the regulations do not require pl aintiffs to contract, arrange, pay, or refer for contraceptive coverage, pl aintiffs’ complaint appears to be that the regulations require plaintiffs to indirec tly facilitate conduct on the part of their employees that they find objectionable ( i.e., the use of certain contracept ives). But this complaint has no limits. An employer provides numerous benefits, including a salary and other fri nge benefits, to i ts employees and by doing so i n some sense facilitates whatever use its employees make of those benefits. Plaintiffs not only seek to be free from the requirem ent to contract, arrange, pay, or refer for contraceptive coverage them selves—which they are under these regulations—but also seek to prevent anyone else from provi ding such coverage to their em ployees. But an employer has no right t o control the choices of its employees, who may not share its religious beliefs, and who have a legitimate interest in access to the preventive services coverage made available under the challenged regulations.
Indeed, courts have held that cl aims raised by for-profit co mpanies challenging the contraceptive coverage regulations, which—unlike here—actually require employers to cont ract, arrange, pa y, or refer for the relevant coverage themselves, are too attenuated to am ount to a substantial burden under RFRA. Any burden on plaintiffs, which are eligible for the religious employer exemption or the accommodations, is a fortiori too attenuated to be substa ntial. For exam ple, the district court in Conestoga reasoned that the ultimate d ecision of whether to use
19

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 29 of 44 Pg ID 346
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 im posed 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 1158-60.8
As these courts concluded, t he preventive services coverage regulations result in only an i ndirect impact on fo r-profit companies, which must provide contraceptive coverage them selves. Any burden on plain tiffs and simil ar eligible organizations that qualify for the accomm odations is even m ore attenuated. Not only are plaintiffs separated from the use of contraception by “a series of events” that must occur before the use of contrace ptive services to which plaint iffs object would “come into play,” Conestoga, 917 F. Supp. 2d at 414-15, but they are also further insulated by the fact that a third part y—plaintiffs’ issuer—and not plaintiffs, will actually contract, arrange, pa y, and refer for such services, and thus plaintiffs are in no way subsidizing— even indirectly—the use of preventive services that they find objectionable. U nder plaintiffs’ theory, their religious exercise is substantially burdened when one of their employees and her health care provider make an i ndependent determination that the use of certain contraceptive services is appropria te, and such services are paid for exclusively by plaintiffs’ issuer, with none of the cost being passed on to plaintiffs, and no administration of the payments by plaintiffs, sol ely because plaintiffs self-certified that they hav e religious objections to prov iding contraceptive co verage and so informed their
8 See also Korte, 735 F.3d at *709-14 (Rovne r, J., dissenting); Eden Foods, 2013 WL 1190001, at *4; Annex Medical, 2013 WL 101927, at *4-5.
20

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 30 of 44 Pg ID 347
issuer. But a burden cannot be “substantial” under RFRA when it is attenuated.
Cases that find a substantial burden uni formly involve a direct burden on the plaintiff rather than a burden imposed on another enti ty. See, e.g., Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009); see also Conestoga, 917 F. Supp. 2d at 413-14. A pl aintiff cannot establi sh a subst antial burden on hi s religious exercise by invoki ng this type of trickl e-down theory; t o constitute a substanti al burden under RFRA, the burden m ust be im posed on the plaintiff hi mself. See Conestoga, 917 F. Supp. 2d at 411, 413; Autocam, 2012 WL 6845677, at *7. 9 Here, of course, there is no such direct bur den. In fact, given that any payment for contraceptive services is made by plaintif fs’ issuer, the regula tions have even less impact on plaintiffs’ religious exercise than plaintiffs’ payment of salaries to their employees, which those em ployees can use to purchase contraceptives. See Catholic Diocese of Nashville, slip op. at 9 n.8; O’Brien, 894 F. Supp. 2d at 1160; Conestoga, 917 F. Supp. 2d at 414; Korte, 735 F.3d at 715-16 (Rovner, J., dissenting); Autocam, 2012 WL 6845677, at *6.
9 Thomas is not to the contrary. In Thomas, the Supreme Court recognized that “a compulsion may certainly be indirect and still co nstitute a substantial burden, such as the den ial of a benefit found in Thomas.” Conestoga, 917 F. Supp. 2d at 415 n.15. But that is not so where the burden itself is indirect, as it is here. See id.; Gilardi, 926 F. Supp. 2d at 283. As previously explained, see supra note 10, i n Hobby Lobby, 723 F.3d 1114, a bare majority of the en banc Tenth Circui t concluded that the word “substantial” in RFRA refers to the “intensity of coercion” rather than to the directness or indirectne ss of the burden, if any, on a plaintiff’s religious exercise. Id. at 1137-40. The Tenth Circuit’s conclusion that the substantial burden requirement relates to the intensity of the coercion, however, is inconsistent with Kaemmerling, discussed above, as well as other decisions that have analyzed “substantial burden” in terms of the degree to which the challenged law directly im poses a requirement or prohi bition on religious practi ce. 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 substantial burden analysis in Hobby Lobby and Korte are inapplicable to this case. See supra notes 6 & 7.
21

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 31 of 44 Pg ID 348
Plaintiffs remain free to refuse to contract, arrange, pay, or refer for contraceptive coverage; to voice their disapproval of contraception; and to encourage their employees to refrain from using contraceptive services. Th e regulations therefore affect plaintiffs’ religious practice, if at all, in a m ost attenuated way. In short, because the prev entive services coverage regulations “are several degrees removed from im posing a substantial burden on [plaintiffs] ,” O’Brien, 894 F. Supp. 2d at 1160, the Court shoul d deny plaintiffs’ m otion for a temporary restraining order, even if it finds—contrary to the governm ent’s argument—that the challenged regulations impose some burden on plaintiffs’ religious exercise.
B. Even If There Were A Substantial Burden On Religious Exercise, The Regulations Se rve Compelling Governmental Interests And Are The Least Restrictive Means To Achieve Those Interests 1. The regulations significantly advance compelling governmental interests in public health and gender equality
Even if plaintiffs were able to dem onstrate a substantial burden on their religious exercise, they would not preva il because the challenged regul ations are justified by two compelling interests, and are the least re strictive means to achieve those interests. First, the promotion of public health is unquestionably a compelling interest. Mead v. Holder , 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also, e.g. , Buchwald v. Univ. of N.M . Sch. of M ed., 159 F.3d 487, 498 (10t h Cir. 1998); Dickerson v. Stuart , 877 F. Supp. 1556, 1559 (M.D. Fla. 1995). And the challenged regulations further this compelling interest by “expanding access to and utilization of recommended preventive serv ices for women.” 78 Fed. Reg. at 39,887, AR at 19.
The primary predi cted benefit of the preventive services cover age regulations is that “individuals will e xperience improved health as a result of reduced transmission, prevention or de layed onset, and earlier treatm ent of
22

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 32 of 44 Pg ID 349
disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. “By expanding coverage and el iminating cost sharing for recommended preventive services, [the regulations are] expected to increase access to and utilization of these services, which are not used a t optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significant barrier to access to contraception.” (citation omitted)), AR at 5.
Increased access to FDA-approved contr aceptive services is a key part of these predicted health outcomes, as uni ntended 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 IO M concluded in identi fying services recommended to “prevent con ditions harmful to women’s health and well-being,” unintended pregnancy m ay delay “entry into prenatal care,” prolong “behaviors that present ri sks for t he developing fe tus,” and cause “depre ssion, anxiety, or other conditions.” IOM R EP. at 20, 103-04, AR at 318, 401-02. Contraceptive coverage further helps to avoid “the increased risk of adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpre gnancy intervals in particul ar have been associated with low birth weight, prem aturity, and small-for-gesta tional age births.”) (citing studies), AR at 4. And “[ c]ontraceptives also have me dical 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, me nstrual disorders, and acne).” 78 Fed. Reg. at 39,872, AR at 4; see also IOM REP. at 103-04 (“[P] regnancy may be contraindicated for wo men with serious medical conditions su ch as pulm onary hypertension . . . a nd cyanotic heart di sease, and for women with the Marfan Syndrome.”), AR at 401-02.
23

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 33 of 44 Pg ID 350
Closely tied to this interest is a relate d, but separate, compelling interest that is furthered by the regulations: assuring th at women have equa l access to health care services. 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. As the Supre me Court explained in Roberts v. U.S. Jaycees , 468 U.S. 609 (1984), there is a fundamental “importance, both t o the i ndividual and to society, of removing the barriers t o economic advancement and political and social integration that have historically plagued certain disadvantaged groups, including women.” Id. at 626. Thus, “[a]ssuring women equal access to . . . good s, privileges, and advant ages clearly furthers compelling state interests.” Id. By including in the ACA preventive health services for wom en, Congress made clear th at the goals and benefits of effective preventive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into account in the ACA. As explained by me mbers of Congress, “wom en have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 pe rcent more in out-of-pocket health car e costs than men.” 155 Cong. Rec. S12106-02, S12114 (da ily ed. Dec. 2, 2009) (st atement of Sen. Mikulski); 78 Fed. Reg. at 39,887, AR at 19; IOM R EP. at 19, AR at 317. These costs result in wo men often forg oing preventive car e and place wo men in the workforce at a d isadvantage compared to their male coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (dail y ed. Dec. 3, 2009); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 20, AR at 318. Congress’s attempt to equalize the provision of preventive health care services, with the resulting benefit of wo men being able to contribute to t he same degree as men as healthy and productive mem bers of society, furthers a co mpelling governmental interest. Cf. Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92-93 (Cal. 2004).10
10 In arguing that the governm ent’s interests are not com pelling, plaintiffs suggest
(Footnote continued on next page)
24

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 34 of 44 Pg ID 351
Although the ch allenged regulations further these two co mpelling governmental interests, while sim ultaneously accommodating the religious objections of eligible organizations, plaintiffs maintain that the interests underlying the regulations cannot be considered com pelling when millions of people are not protected by the regulations at the moment. Pls.’ Mem. at 24. But this is not a case where underinclusive enforcement of a law suggests t hat the governm ent’s “supposedly vital interest” is n ot really compelling. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 546-47 (1993 ). For the most part, the
the government must separately analyze the impact of and need for the regulations as to each and every employe r and employee in America. See Pls.’ Mem. at 22-23. But this level of specificity would be impossible to establish and would render this regulatory scheme—and potentially every regulatory scheme challenged due to religious objections—completely unworkable. See United States v. Lee , 455 U.S. 252, 259-60 (1982). In prac tice, courts have not re quired the governm ent to analyze the impact of a regulation on the single entity seeking an exemption, but have conducted the inqui ry with respect to all si milarly situated individuals or organizations. See, e.g., id. at 260 (consi dering 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 m ade, however, there is nothing so peculiar or special with Oliver’s situation which warrants an excep tion. There are no s afeguards to prevent similarly situated individuals from asserting the sam e privilege and leading to uncontrolled eagle harvesting.”); Dole v. Shenandoah Bapt ist Church, 899 F.2d 1389, 1398 (4th Cir. 1990) (“There is no principled way of e xempting the school without exempting all other sectarian sc hools and thereby the thousands of lay teachers and staff members on their payrolls.”); see also, e.g., Graham v. Comm’r, 822 F.2d 844, 853 (9th Cir. 1987), overruled in part on ot her 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), i s not to the contrary. To be sure, the Court rejected “slippery-slope” arguments for refusing to accommodate a p articular claimant. See 546 U.S. at 435-36. But it construed t he scope of t he requested exem ption as en compassing all memb ers of the plaintiff religious sect. See id. at 433. Sim ilarly, the exemption in Yoder, 406 U.S. 205, encompassed all Amish children; and the exem ption in Sherbert v. Verner , 374 U.S. 398 (1963), encom passed 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 othe r non-similarly situated groups. It was not an i nvitation 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.
25

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 35 of 44 Pg ID 352
“exemptions” referred to by plaintiffs are not exemptions from the preventive services coverage regulations at all, but are instead provisi ons of t he ACA that exclude individuals and entities from other requirements imposed by the ACA. Or they reflect the government’s attem pts to balance the co mpelling interests underlying the challenged regulations against other significant interests supporting the complex administrative scheme created by t he ACA. See Lee, 455 U.S. at 259 (“The Court has long recognized that balance must be struck between the values of the comprehensive social s ecurity system, which rests on a complex of actuarial factors, and the consequences of allo wing religiously based exem ptions.”); Winddancer, 435 F. Supp. 2d at 695-98 (recognizing that the regulations governing access to eagle parts “strike a delicate balance” between competing interests). And, unlike the exemption plaintiffs seek for employers that object to the regulations on religious grounds, t he existing excepti ons do not underm ine the governm ent’s interests in a significant way. See Lukumi, 508 U.S. at 547; S. Ridge Baptist Church v. Indus. Comm’n of Ohio , 911 F.2d 1203, 1208-09 (6th Cir. 1990); see also 78 Fed. Reg. at 39,887, AR at 19.
For example, the grandfatheri ng of cer tain health plans with respect to certain ACA provisions i s not lim ited 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 permanen t “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preventive services coverag e provision. See 78 Fed. Reg. at 39,887 n.49, AR at 19. T he grandfathering provi sion reflects Co ngress’s attempts to balance competing interests—specifically, the interest in spreading the benefits of the ACA, including those provi ded by the preventive services coverage provi sion, and the interest in maintaining existing c overage and easing the transiti on into the
26

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 36 of 44 Pg ID 353
new regulatory regi me established by th e ACA—in the context of a co mplex 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 serv ices coverage regulations. Even under t he grandfathering provision, it is projected that more group health plans will transition to the requirements under t he regulations over tim e. Defendants have estimated that a majority of group health plans will have lost their grandfather status by the end of 2013. See id. at 34,552; see also Kaiser Fam ily Foundation a nd Health Research & Educational Trust , Employer Health Benefits 2012 Annual Survey at 7-8, 190, AR at 663-64, 846. Thus, any purported adverse effect on the compelling interests underlying the re gulations will be quickly m itigated, which is in stark contrast to the permanent exemption plaintiffs seek. Plaintiffs woul d have thi s Court believe that an inte rest cannot truly be “com pelling” unless Congress is willing to im pose it on everyone all at on ce despite com peting interests, but plaintiffs offer no support for that untenable proposition.
The only true exem ption from the preventive services coverage regulations is the exem ption for the group health plans of re ligious employers. 45 C.F.R. § 147.131(a). But there is a rational disti nction between this narrow exception and the expansion plaintiffs seek. Houses of worship and their integrated auxiliaries that object to contraceptive co verage on religious grounds are more likely than other employers, including organizations eligible for the acco mmodations, to employ people of the same faith who sh are the same 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, 39,8 87, AR at 6, 19. In any event, it would be perverse to hold that the governm ent’s provision of a lim ited religious exemption eliminates its compe lling interest in the regulation, thus effectively extending the same exempti on to anyone else who wants it under
27

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 37 of 44 Pg ID 354
RFRA. Such a r eading of RF RA would discourage the government from accommodating religion, the opposite of what Congress intended i n enacting RFRA.
Granting plaintiffs the much broader exemption they request would undermine defendants’ ability to enforce the regulations in a rational manner. See O Centro, 546 U.S. at 435. W e 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 many people object to various medical services. If any organization with a religious objection were able to claim an exemption from the operation of the pr eventive services coverage regulations— even where the regulations require virt ually nothing of the organization—it is difficult to see how defendants could adm inister the regulations in a manner that would achieve Congress’s goals of im proving the health of women and newborn children and equalizing the coverage of preventive services for women. See United States v. Israel , 317 F.3d 768, 772 (7t h Cir. 2003) (recognizing t hat granting plaintiff’s RFRA claim “would lead to si gnificant administrative problems for the [government] and open the door to a . . . proliferation of claims”). Indeed, women who receive their health coverage thro ugh employers like plaintiffs would face negative health and other outcomes because they had obtained employment with an organization that objects to its employ ees’ use of contracep tive services, even when those services are paid for a nd administered by a third party. See id. (noting consequences “for the public and the go vernment”); 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,887, AR at 19.
2. The regulations are the least restrictive means of advancing the government’s compelling interests
When determining whether a particul ar regulatory scheme is the “least restrictive,” the appropriate inquiry is wh ether the individual or organization with
28

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 38 of 44 Pg ID 355
religious objections, and those sim ilarly situated, can be exem pted from the scheme—or whether the scheme can otherwise be modified—without undermining the government’s compelling interests. See, e.g., United States v. Sch mucker, 815 F.2d 413, 417 (6th Cir. 1987); United States v. Wilgus , 638 F.3d 1274, 1289-95 (10th Cir. 2011). The government is not require d “to do t he impossible—refute each and every conceivable alternative regulation scheme.” Id. at 1289. Instead, the government need only “refute the alterna tive schemes offered by the challenger.” Id.
Instead of explaini ng how plaintiffs and si milarly situated eligible organizations could be exem pted from the regulations without significant damage to the government’s com pelling interests, plaintiffs conjure up, without any statutory support, se veral brand new stat utory and regulatory schem es—most of which would require the governm ent to pay for contraceptive coverag e—that they claim would be less restrictive. See Pls.’ Mem. at 25-26 (suggesting tha t defendants could provide contraceptive se rvices through other programs). Yet plaintiffs fail to reco gnize that such alte rnatives would be inco mpatible with the fundamental statutory schem e set forth in the ACA, which plainti ffs do not challenge in this la wsuit. Congress di d not adopt a single (governm ent) payer system financed through taxes and instead op ted to build on t he existing system of employment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010). Plaintiffs point t o no statutory authorit y for any of their prof fered less restrictive alternatives. Nor is there any indication that Congress would have contem plated that agency action could be invalidat ed under RFRA because the agency in discharging its statutorily delegated authority failed to adopt an alternative scheme absent any statutory authori ty for doing so. Thus, even if defendants wanted to adopt one of pla intiffs’ non-employer-based alternatives, they would be constrained by the statute from doing so. See 78 Fed. Reg. at 39,888, AR at 20.
29

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 39 of 44 Pg ID 356
Indeed, as noted above, it is not clear why the governm ent’s provision of contraceptive coverage to women ba sed upon their em ployer’s objection to providing it would not be subj ect to exactly the same RF RA claim that plaintiffs advance here. But plaintiffs’ proposal s would do little—if anything—to satisfy their religious objections, and therefore should not be considered viable less restrictive alternatives. See New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940, 950-51 (1st Cir. 1989) (Breyer, J.) (consi dering 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 alternative over the challenged requirements). Under plaintiffs’ proposals, an eligible organi zation’s religious objection to contraceptive coverage would still “facilitate” the availab ility of such coverage—in this case, by the government—and the eli gible organization would likely be called upon to verify or certify matt ers such as the relig ious objection to contraceptive coverage, and employment or plan beneficiary status.
Finally, even if plaintiffs would be satisfied by their proposed alternativ e schemes, just because plaintiffs can devise an entirely new legislative and administrative scheme does not make that scheme a feasible less restrictive means, see Wilgus, 638 F.3d at 1289; Adams v. Comm’r of Internal Revenue , 170 F.3d 173, 180 n.8 (3d Ci r. 1999), particularly where such a lternatives would com e at enormous administrative and financia l cost to the government. A proposed alternative scheme is not an adequate alternative—and thus not a v iable less restrictive means to achie ve a co mpelling interest—if it is not feasible. See, e.g., New Life Baptist , 885 F.2d a t 947; Graham, 822 F.2d at 852. In determ ining whether a proposed alternative scheme is feasible, courts often consider the additional administrative and fiscal costs of the scheme. See, e.g., S. Ridge Baptist Church, 911 F.2d at 1206; Fegans v. Norris, 537 F.3d 897, 905-06 (8th Cir. 2008);
30

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 40 of 44 Pg ID 357
United States v. Lafley , 656 F.3d 936, 942 (9th Cir. 2011); New Life Baptist, 885 F.2d at 947. Defendants considered plaintiffs’ alternatives and determined that they were not feasible because the agencies lacked statutory aut hority to i mplement them; they woul d impose considerable new costs and other burdens on the government; and they would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Lafley, 656 F.3d at 942; Gooden v. Crain, 353 F. App’x 885, 888 (5th Cir. 2009); Adams, 170 F.3d at 180 n.8.
Nor would the proposed alternatives be equally effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Kaemmerling, 553 F.3d at 684 (findi ng that means was least restrictive where no alternative means would achieve compelling interests); Murphy v. State of Ark., 852 F.2d 1039, 1042-43 (8t h Cir. 1988) (same). As di scussed above, Congress determined that the best way to achieve the goals of the ACA, including expanding preventive services coverage, was to build on the existing employer-based system. The anticipated benefits of the preventive services coverage regulations are attributable not only to the fact that recommended contraceptive services will be available to women with no cost-sharing, but also to the fact that th ese services will be available through the existing e mployer-based system of health coverage through which women will face minimal logistical and ad ministrative obstacles to receiving coverage of their care. Plaintiffs ’ alternatives, by cont rast, have none of these advantages. They would require establishi ng entirely new governm ent programs and infrastructure s or fundamentally alteri ng existing ones, and woul d almost certainly require wo men to take burdensome steps to find out about the availability of and sign up for a new bene fit, thereby ensuring that fewer wo men would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20. Nor do plaintiffs offer any suggestion as to how these pr ograms could be integrated with the employer-based system or how wome n would obtain governm ent-provided
31

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 41 of 44 Pg ID 358
preventive services in practice. Thus, pl aintiffs’ proposals—in addition to raising myriad administrative and logistical di fficulties and being unauthorized by any statute and not funded by any appropri ation—are less likely to achieve the compelling interests furt hered by the re gulations, and therefore do not represent reasonable less restrictive means. Id.
Because plaintiffs have failed to offer viable less restrictive alternatives, the Court should reject plaintiffs’ argument that the regulations fail strict scrutiny. II. PLAINTIFFS CANNOT ES TABLISH IRREPARABLE HARM , AND
AN INJUNCTION WOULD INJU RE THE GOVERNMENT AND THE PUBLIC “The loss of First Amendm ent freedoms, for even m inimal periods of t ime, unquestionably constitutes irreparable injury.” Elrod v. Bur ns, 427 U.S. 347, 373 (1976). Even assuming arguendo that sa me rule applies to a statutory claim under RFRA, plaintiffs have not shown that the challenged regulations violate their First Amendment or RFRA rights, so there has been no “loss of First Amendment freedoms” for any period of ti me. Id. In this respect, the merits and irreparable injury prongs of the temporary restrain ing order analysis merge together, and plaintiffs cannot show irreparable inju ry without also showing a likelihood of success on the m erits, which they cannot do. See McNeilly v. Land , 684 F.3d 611, 621 (6th Cir. 2012). Turning to the final two tem porary restraining order factors—the balance of equities and the public interest—“there is inherent harm to an agency in preventing it from enforcing regulations t hat Congress found it in the public interest to direct that agency to develop and enforce.” Cornish v. Dudas , 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also Connection Distrib. Co. v. Reno , 154 F.3d 281, 296 (6t h Cir. 1998) (indicating that granting an injunction against the enforcement of a likely constitutional statute would harm the government). Enjoining the preventive services coverage regulations as to pl aintiffs would undermine the government’s
32

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 42 of 44 Pg ID 359
ability to achieve Congress’s goals of improving the health of women and newborn children and equalizing the coverage of preventive services for women and men.
It would also be contrary to the public interest to deny plaintiffs’ employees (and their fam ilies) the benefits of the preventive services coverage regulations. See Weinberger v. Romero-Barcelo , 456 U.S. 305, 312-13 (1982) (“[C] ourts . . . should pay particular regard for the public consequences in em ploying the extraordinary remedy of injunction.”). Ma ny of the plaintiffs’ em ployees may not share plaintiffs’ objections to the cha llenged regulations. Those employees should not be deprived of the bene fits of payments provi ded by a third party that is not their employer for the full range of F DA-approved contraceptive services, as prescribed by a health care provider, on the basis of t heir employers’ religious objection. Many women do not use contracep tive services because they are not covered by their health plan or requi re costly copa yments, coinsurance, or deductibles. IOM REP. at 19-20, 109, AR at 317-18, 407; 77 Fed. Reg. at 8727, AR at 214; 78 Fed. Reg. at 39,887, AR at 19. As a result, in m any cases, both women and developing fetuses suffer negative health consequences. See IOM REP. at 20, 102-04, AR at 318, 400-02; 77 Fed. Reg. at 8728, AR at 215. And women are put at a co mpetitive disadvantage due to their lost productivity and the disproportionate financial burden they bear in regard to preventive health services. 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009); see also IOM REP. at 20, AR at 318.
Enjoining defendants from enforcing, as to plaintiffs, the preventive services coverage regulations—the purpose of whi ch is to eliminate these burdens, 75 Fed. Reg. at 41,733, AR at 233; see also 77 Fed. Reg. at 8728, AR at 215— would thus inflict a very real harm on the public and, in particular, a readily identifiable group of individuals: plaintiffs’ em ployees and those em ployees’ covered dependants. See Stormans, Inc. v. Selecky , 586 F. 3d 1109, 1139 (9 th Cir. 2009) (vacating
33

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 43 of 44 Pg ID 360

preliminary injunction entered by district court and noting that “[t]here is a general

public interest in ensuring that all citizens have timely access to lawfully prescribed medications”). Accordingly, even assuming plaintiffs were likely to

succeed on the m erits (which they are no t for t he reasons explained above), any

potential harm to plaintiffs resulting from their offense at a third party providing payment for contraceptive services at no cost to, and with no administration by,

plaintiffs’ would be outweighed by t he significant harm an injunction would cause

these employees and their families. CONCLUSION

For the foregoing re asons, defendants re spectfully ask that the Court deny

plaintiffs’ motion for a temporary restraining order.

Dated: December 27, 2013

Respectfully Submitted,

Assistant

STUART F. DELERY Attorney General

Deputy

KATHLEEN R. HARTNETT Assistant Attorney General

BARBARA United

L. MCQUADE States Attorney

JENNIFER Director,

RICKETTS Federal Programs Branch

Deputy

SHEILA M. LIEBER Director

BRADLEY Virginia Trial U.S. Civil Washington, Tel: Fax: Email:

/s/ Bradley P. Humphreys P. HUMPHREYS
Bar No. 83212 Attorney Department of Justice Division, Federal Programs Branch 20 Massachusetts Ave., NW
D.C. 20530 (202) 514-3367 (202) 616-8470
bradley.p.humphreys@usdoj.gov

Attorneys for Defendants

34

2:13-cv-15198-SJM-MAR Doc # 9 Filed 12/27/13 Pg 44 of 44 Pg ID 361
CERTIFICATE OF SERVICE I hereby certify that on Decem ber 27, 2013, I electronically 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

 
 2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 1 of 16 Pg ID 446

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

THE AVE MARIA FOUNDATION; )

AVE MARIA COMMUNICATIONS ) Case No. 2:13-cv-15198

(a/k/a “Ave Maria Radio”); DOMINO’S)

FARMS PETTING FARM;

) Judge Stephen J. Murphy, III

RHODORA J. DONAHUE

)

ACADEMY, INC.; and THOMAS ) Magistrate Judge Mark A. Randon

MORE LAW CENTER,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, Secretary of )

the United States Department of Health )

and Human Services; UNITED

)

STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES; )

HILDA SOLIS, Secretary of the United )

States Department of Labor; UNITED )

STATES DEPARTMENT OF LABOR; )

TIMOTHY GEITHNER, Secretary of )

the United States Department of the )

Treasury; and UNITED STATES

)

DEPARTMENT OF THE

)

TREASURY,

)

)

Defendants.

)

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR A TEMPORARY RESTRAINING ORDER

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 2 of 16 Pg ID 447

TABLE OF CONTENTS

Page

TABLE OF CONTENTS............................................................................................i

ARGUMENT .............................................................................................................1

I. RFRA DEMANDS INJUNCTIVE RELIEF ...................................................2

a. Plaintiffs’ Faith is Substantially Burdened by the Mandate .................5

b. Defendants Have Not Evidenced a Compelling Interest ....................10

c. Defendants Do Not Use the Least Restrictive Means.........................12

II. CONCLUSION..............................................................................................13

CERTIFICATE OF SERVICE ................................................................................14

i

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 3 of 16 Pg ID 448
ARGUMENT
Defendants’ brief exhibits great intolerance for Plaintiffs’ less politically popular sincerely held religious beliefs.1 Defendants purport to know Plaintiffs’
religious beliefs better than Plaintiffs do, but simply asserting, without support,
that the Mandate is “too attenuated” and imposes only “de minimis” burdens upon
Plaintiffs does not make it so. Defendants do not have a better understanding of
Plaintiffs’ religious views and the substantial burdens Defendants are causing than
Plaintiffs. Forwarding this argument only highlights Defendants’ clear intolerance
for Plaintiffs’ religious views. Plaintiffs, as exhibited in the declarations attached
to their original motion, know their religious beliefs and Defendants do not
challenge the sincerity of Plaintiffs’ beliefs—Defendants, however, disagree with
these beliefs, essentially arguing that Plaintiffs “take one for the team” and violate
their religious beliefs to help further Defendants’ interests. Defendants ignore that
the Mandate forces Plaintiffs to formally cooperate with evil and commit grave sin.
The Mandate forces Plaintiffs to violate Catholic religious doctrine, the very
1 See Beckwith v. Sebelius, Case No. 8:13-cv-648, slip op. at *5 (Dkt. 39) (M.D. Fla. June 25, 2013) (“Religious tolerance serves as an important foundational tenet in the governance of any society. A commonly misunderstood term, to ‘tolerate’ does not mean with which to agree; it does not mean to understand; and it most certainly does not mean to adopt a belief as one’s own. By definition, to tolerate means ‘to respect (others’ beliefs, practices, etc.) without sharing them. . . . This case tests whether the challenged federal laws are ‘true to the spirit of practical accommodation that has made the United States a nation of unparalleled pluralism and religious tolerance.’”) (internal citations omitted). Since Defendants call for Plaintiff to violate a tenet of their faith by knowingly providing insurance which will unquestionably have the effect of providing contraceptives, abortifacients, and sterilization to their employees, Defendants have failed to accommodate Plaintiff’s sincerely held religious beliefs.
1

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 4 of 16 Pg ID 449
doctrine upon which Plaintiffs were founded. Without protection from the court, Plaintiffs will be required to facilitate access to contraception, sterilization and abortifacients through providing their employee health benefits plan—in direct contravention of Plaintiffs’ religious beliefs, resulting in irreparable harm.
I. RFRA DEMANDS INJUNCTIVE RELIEF Congress did not decide that contraception, sterilization, and abortifacients would be mandatorily included in all employee health benefits plans—Defendants did. 42 U.S.C § 300gg-13(a)(4) (Defendants determining that all FDA approved contraception, sterilization, and abortifacients would be mandatory). Congress left up to Defendants the ability to determine what would constitute “preventive care.” In doing so, Congress did not exclude the Patient Protection and Affordable Care Act and the implementation of the women’s preventive health service requirement from RFRA. See 42 U.S.C. § 2000bb-3(b) (“Federal statutory law adopted after November 16, 1993, is subject to [RFRA] unless such law explicitly excludes such application by reference to this chapter.”). Defendants promulgated interim final regulations that authorized an exemption, but only to “certain religious employers from the Guidelines where contraceptive services are concerned.” Interim Final Rule, 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). Instead of following RFRA’s controlling statutory command that “[g]overnment shall not substantially burden a person’s exercise of religion,” 42
2

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 5 of 16 Pg ID 450
U.S.C. § 2000bb-1(a), Defendants’ “religious employer” exemption addressed only “the unique relationship between a house of worship and its employees in ministerial positions.” Interim Final Rule, 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011). And rather than formulate this exemption from the federal contraceptives mandate in accordance with federal law (i.e. RFRA), Defendants sought to “be consistent with the policies of States that require contraceptive services coverage.” Id. This focus was particularly inapt for determining the scope of a religious exemption given that RFRA is inapplicable against States and local governments under City of Boerne v. Flores, 521 U.S. 507 (1997).
During the comment period, Defendants received 200,000 comments on the scope of the religious employer exemption, including comments about RFRA. On January 20, 2012, however, Secretary Sebelius announced that Defendants would not expand the exemption. And in February 2012, Defendants issued regulations that “finalized, without change,” the interim final regulations issued in August 2011. Final Rule 77 Fed. Reg. 8725, 8725 (Fed. 15, 2012).
At the same time Defendants finalized their narrow religious employer exemption, Defendants also stated their intention to develop an “accommodation” for “non-exempt” non-profit employers and to provide a temporary enforcement safe harbor. Id. Defendants then asserted, without explanation, analysis, or
3

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 6 of 16 Pg ID 451

justification, that “this approach complies with [RFRA], which generally requires a

federal law to not substantially burden religious exercise.” Id. at 8729.

Defendants reopened their rulemaking process for religious non-profits, such as

Plaintiffs and other faith groups, in an effort to ostensibly reassess why Defendants

were forcing faithful, religious groups to violate the very faith for which they

formed. Defendants proposed an “accommodation,” which has now been enacted

as their Final Rule. The United Conference of Catholic Bishops and thousands of

other faithful individuals commented during rulemaking that this Final Rule did

not alleviate Plaintiffs’ faith objections. Defendants ignored these comments and

persisted with their political goals. It should be no surprise that this Final Rule and

Mandate

has

fueled

outrage

and

lawsuits.

(http://www.becketfund.org/hhsinformationcentral/, last visited Dec. 30, 2013).

By failing to follow RFRA when considering the scope of religion-based

exemptions from the Mandate, Defendants guaranteed that partisan political

considerations would take the place of reasoned legal consideration. This is

exactly what the original proponents of RFRA worried would happen under the

Smith approach that RFRA reversed. See Religious Freedom Restoration Act of

1991: Hearings before the Subcomm. On Civil & Constitutional Rights of the H.

Comm. on the Judiciary, 102d Cong. 123 (1993) (statement of Rep. Solarz, chief

sponsor of H.R. 2797) (“Religion will be subject to the standard interest-group

4

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 7 of 16 Pg ID 452
politics that affect our many decisions. It will be the stuff of postcard campaigns, 30-second spots, scientific polling, and legislative horse trading.”). Therefore, Congress walled off religious freedom from the “vicissitudes of political controversy.” West Virgina State Bd. of Educ. V. Barnette, 319 U.S. 624, 638 (1943). RFRA accomplished this “by legislating all at once, across the board, a right to argue for religious exemptions and make the government prove the cases where it cannot afford to grant exemptions.” Religious Freedom Restoration Act of 1991: Hearing before the Subcomm. on Civil & Constitutional Rights of the H. Comm. on the Judiciary, 102d Cong. 340 (1993) (statement of Douglas Laycock, Professor of Law, University of Texas). Pursuant to RFRA, Defendants must demonstrate that their application of a substantial burden on Plaintiffs’ religious freedom complies with a compelling government interest and uses the least restrictive means. 42 U.S.C. § 2000bb-1(b); 42 U.S.C. § 2000bb-2(3). The Mandate fails to comply with RFRA; it fails strict scrutiny.
a. Plaintiffs’ Faith is Substantially Burdened by the Mandate. Defendants in their struggle to understand Plaintiffs’ religiosity and analyze how the Mandate imposes a substantial burden on Plaintiffs’ religious freedom skips the important first step of this analysis: to define the fundamental tenet or belief. Plaintiffs’ faith disallows facilitating access to or knowingly being involved
5

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 8 of 16 Pg ID 453
in providing contraception, sterilization and abortifacients. Such a violation of conscience is not new territory for the courts.
In Thomas v. Review Board, the Supreme Court analyzed a claim of a Jevovah’s witness who worked in a roll foundry. Thomas v. Review Bd. of Ind. Employment Sec. Div., 404U.S. 707, 709 (1981). Thomas was transferred into a division which produced tank turrets, the domelike structure which would eventually be affixed to the top of a tank’s hull. Id. Thomas “claimed his religious beliefs prevented him from participating in the production of war materials.” Id. The tank turrets, while not a war material in and of themselves, could eventually be used as a part of a tank that could be used by others as war materials. Id. at 709-11. When Thomas realized his work was “weapons related,” Thomas requested a transfer into a different department, which was unavailable, so Thomas quit his job to avoid a violation of his conscience. Id. at 710. Thomas testified that he was “daily faced with the knowledge these are tanks” even though his work merely involved hammering the turrets. Id. at 714. The State of Indiana denied Thomas unemployment benefits concluding “that denying Thomas benefits would create only an indirect burden on his free exercise rights and that the burden was justified.” Id. at 713. However, the Supreme Court reversed that decision, holding a “‘religious’ belief or practice . . . is not to turn upon a judicial perception . . . religious beliefs need not be acceptable, logical, consistent, or comprehensible
6

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 9 of 16 Pg ID 454
to others in order to merit First Amendment protection.” Id. at 714 (emphasis in original).
Similar to how Thomas could not work on a turret with the knowledge it would be used as a weapon without violating the principles of his religion, Plaintiffs cannot provide insurance that will result in the obtainment of sterilization procedures, chemical abortions, and contraception. Id. at 710. Although Defendants claim to have attenuated Plaintiffs’ concern, Plaintiffs’ conscience and religious beliefs do not support that claim. Instead, Plaintiffs are “daily faced with the knowledge” that if they provide the required insurance, that insurance will mandatorily include sterilization, contraception, and abortifacients. This coverage is triggered by Plaintiffs’ employee health benefits coverage and lasts only as long as Plaintiffs provide their health benefits plan through the agent(s) Plaintiffs hire to administer their insurance plan. Plaintiffs’ only options are to 1) quit providing insurance to their employees or 2) violate the tenets of their Catholic faith.
Defendants rely on the non-binding case of Conestoga Woods v. Sebelius, 917 F. Supp. 2d 394, 414 (E.D. Pa. 2013), which took the radical position that the Mandate’s burden was too attenuated to be substantial. Defendants’ reliance is misplaced. First, the Third Circuit on appeal failed to uphold the substantial burden analysis cited by Defendants. The only substantial burden analysis in the Third Circuit’s 2-1 panel decision was addressed by the dissent who retorted,
7

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 10 of 16 Pg ID 455
“[t]he District Court here failed to appreciate the applicability of” Yoder and
Sherbert.” Conestoga Wood Specialties Corp. v. Sec'y of the United States HHS,
724 F.3d 377, 409 (3d Cir. 2013) (Jordan, J.) (dissenting) (cert. pending). Second,
the Third Circuit’s analysis, much like the Sixth Circuit’s analysis in Autocam,
limited its scope to whether “a for-profit corporation can engage in religious
exercise,” and both holdings are unavailing to the present case. Id. at 388; Autocam v. Sebelius, No. 12-cv-2673, slip op. *13 (6th Cir. Sept. 17, 2013).2
Cases cited by Defendants, such as Living Water Church of God v. Charter
Township of Meridian, 258 Fed. Appx. 729 (6th Cir. 2007), actually support that
the Mandate substantially burdens Plaintiffs’ free exercise of religion. In Living
Water, the court quoted the definition of substantial burden from Thomas, and
clarified that “courts have been far more reluctant to find a violation where
compliance with the challenged regulation makes the practice of one's religion
more difficult or expensive, but the regulation is not inherently inconsistent with
the litigant's beliefs." Living Water, 248 Fed. Appx. at 734-35. Unlike the facts in
Living Water, the Mandate does not only Plaintiffs’ religious beliefs “merely more
2 Defendants do not explain why for litigation purposes it divides plaintiffs into two groups 1) for-profit companies which have no rights under RFRA and 2) non-profit companies which categorically have full rights under RFRA, then in its rule-making creates a divide amongst nonprofit companies: exempt and non-exempt but “accommodated.” If non-profit companies all share the same amount of religious freedom under RFRA, then the strength of these claims and exemptions provided should be equal. Especially in light of defendants not providing any evidence or legal basis under RFRA for distinguishing between the non-profits who receive exemptions and other religious non-profits, like Plaintiffs, who are not exempt from the Mandate.
8

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 11 of 16 Pg ID 456
difficult or more expensive;” it requires action that is “inherently inconsistent” with Catholic doctrine. The Mandate drives Plaintiffs out of the employee health benefits market entirely or forces Plaintiffs to violate the tenets of their Catholic faith to remain in the employee health benefits market. Wisconsin v. Yoder, 406 U.S. 205, 218 (1972); Thomas, 450 U.S. at 716-17.
Lastly, Defendants try to distinguish the instant case from Legatus v. Sebelius, No. 12-12061, 2013 WL 6768607 (E.D. Mich. Dec. 20, 2013). However, Defendants make no argument for how the two cases are actually distinguishable— relying only on the argument that Legatus was decided incorrectly. Legatus was not wrongly decided—and neither were the several cases nationally which have also granted injunctive relief from the “accommodation.” See, e.g., Reaching Souls International Inc. v. Sebelius, No. 5:13-cv-1092, slip op. (W.D. Okla. Dec. 20, 2013); The Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 12-2542, 2013 U.S. Dist. LEXIS 176432 (E.D.N.Y. Dec. 16, 2013); Zubik v. Sebelius, No. 13-cv1459, 2013 U.S. Dist. LEXIS 165922 (W.D. Penn, Nov. 21, 2013); Geneva College v. Sebelius, No. 2:12-cv-207, slip op. (W.D. Pa. Dec. 23, 2013); South Nazarene University v. Sebelius, No. 5:13-cv-1015, slip op. (W.D. Okla. Dec. 23, 2013); East Texas Baptist University v. Sebelius, No. 4:12-cv-3009, slip op. (S.D. Tex. Dec. 27, 2013); Grace Schools v. Sebelius, No. 3:12-cv-459, slip op. (N.D. Ind. Dec. 27, 2013).
9

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 12 of 16 Pg ID 457
b. Defendants Have Not Evidenced a Compelling Interest The Supreme Court described a compelling state interest as a “high degree of necessity,” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2741 (2011), noting that “[t]he State must specifically identify an ‘actual problem’ in need of solving, and the curtailment of [the asserted right] must be actually necessary to the solution.” See id. at 2738 (citations omitted). The “[m]ere speculation of harm does not constitute a compelling state interest.” Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 543 (1980). Defendants proffer two compelling governmental interests for the Mandate: health and gender equality. 77 Fed. Reg. 8725, 8279. Defendants’ invocation of the promotion of health and gender equality as compelling interests, without more, is insufficient to meet the demands of strict scrutiny. While recognizing “the general interest in promoting public health and safety,” the Supreme Court has held that “invocation of such general interests, standing alone, is not enough.” O Centro, 546 U.S. at 438. Defendants must demonstrate “some substantial threat to public safety, peace, or order,” or an equally compelling interest, that would be posed by exempting the claimant. See Yoder, 406 U.S. at 230. Defendants fail to evidence that employed women, such as the women at Plaintiffs’ nonprofits, forgo contraception, sterilization, or abortifacients due to cost sharing. Furthermore, Defendants fail to adequately explain why the religious
10

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 13 of 16 Pg ID 458
exemption cannot include a purely religious nonprofit corporation. Plaintiffs are all religious, non-profit corporation established to further the Catholic faith. Pl’s Mot. at Decl. of Thomas S. Monaghan. Defendants state in conclusory fashion that there is a rational distinction between this narrow exemption and the expansion plaintiffs seek. Defs. Br. at 27-28. However, Defendants do nothing to evidence their claimed “rational manner” defense. Defendants state that Houses of Worship are more likely to employ people of the same faith than religious, nonprofit organizations. This statement is not rational, nor does it meet Defendants’ burden in establishing strict scrutiny. Defendants cannot support a claim that a religious nonprofit organization that is established for and carries out a religious purpose, such as employees of the Ave Maria3 Foundation, would be less likely to employ people of the same faith and have a greater need for abortifacients, sterilization, or contraception than a church. See O Centro, 546 U.S. at 432-37. Thus, Defendants cannot demonstrate a compelling need to require Plaintiffs to comply with the Mandate when that same Mandate does not apply to other religious employers, who fit under the Defendants’ narrow exemption. Defendants cannot show a “substantial threat” to their asserted interests should Plaintiffs be exempted from the Mandate. Yoder, 406 U.S. at 230.
3 Ave Maria is Latin for Hail Mary, which in the Catholic faith is a prayer asking for the help and intercession of Mary, the Mother of Jesus. (http://www.usccb.org/prayer-andworship/devotionals/rosaries/prayers-of-the-rosary.cfm, last visited Dec. 30, 2013).
11

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 14 of 16 Pg ID 459
c. Defendants Do Not Use the Least Restrictive Means The existence of a compelling interest in the abstract does not give Defendants carte blanche to promote that interest through any regulation of their choosing particularly where, as here, a fundamental right is substantially burdened. See, e.g., United States v. Robel, 389 U.S. 258, 263 (1967) (noting that compelling interests “cannot be invoked as a talismanic incantation to support any [law]”). If the government “has open to it a less drastic way of satisfying its legitimate interests, it may not choose a [regulatory] scheme that broadly stifles the exercise of fundamental personal liberties.” Anderson v. Celebrezze, 460 U.S. 780, 806 (1983). Even if the government claims these options would not be as effective as the Mandate, “a court should not assume a plausible, less restrictive alternative would be ineffective.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 824 (2000). Defendants do nothing to refute that their interests could be achieve by utilizing the exchanges website—which would remove Plaintiffs’ insurance plan from any process of obtaining contraceptives, abortifacients or sterilization without cost sharing. Defendants currently arranged for insurance companies to provide these devices, procedures, and drugs free of charge. Using the government’s already established website for obtaining these devices, procedures, and drugs, independent of Plaintiffs’ employee health benefits plan, would eliminate Plaintiffs’ involvement and avoid a violation of Plaintiffs’ religious
12

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 15 of 16 Pg ID 460
beliefs. Further, as one Court previously noted, “[c]ertainly forcing private employers to violate their religious beliefs . . . is more restrictive than finding a way to increase the efficacy of an already established program that has a reported revenue stream of $1.3 billion.” Beckwith v. Sebelius, slip op at *34, n. 16 (quoting Family Planning Annual report: 2011 National Summary, available at http://www.hhs.gov/opa/pdfs/fpar-2011-national-summary.pdf, last visited Oct. 18, 2013). In fact, if a less restrictive alternative would serve the government’s purposes, as would occur here, Defendants “must use that alternative.” Playboy Entm’t Grp., Inc., 529 U.S. at 813; see also Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781 (1988).
II. CONCLUSION For these reasons and the reasons offered in their opening brief, Plaintiffs respectfully request that this Court grant their motion for a temporary restraining order. Respectfully submitted this 30th day of December, 2013.
Attorney for Plaintiffs: THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886) 24 Frank Lloyd Wright Blvd. P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001
13

2:13-cv-15198-SJM-MAR Doc # 11 Filed 12/30/13 Pg 16 of 16 Pg ID 461
CERTIFICATE OF SERVICE I hereby certify that on December 30, 2013, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. I certify that a copy of the foregoing has been served by ordinary U.S. Mail upon all parties for whom counsel has not yet entered an appearance electronically: None
THOMAS MORE LAW CENTER s/ Erin Mersino_________________ Erin Mersino, Esq. (P70886)
14

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THE AVE MARIA FOUNDATION, et al.,

Plaintiffs,

Case No. 13-cv-15198

v.

HONORABLE STEPHEN J. MURPHY, III

KATHLEEN SEBELIUS, et al.,

Defendants. /

OPINION AND ORDER GRANTING A PRELIMINARY INJUNCTION

Plaintiffs are five nonprofit organizations seeking to invalidate federal regulations that

require employer-sponsored health insurance plans to include coverage for contraceptives,

abortifacients, and sterilization at no cost to the plan beneficiaries. All five organizations

object to the challenged regulations for relig ious reasons, and none of the organizations

qualify for a "straight-up" exemption. Alt hough Plaintiffs could avoid t he requirement

through an accommodation for religious objectors, toqualify, Plaintiffs must execute a self-

certification that obliges their insurer to provide the objectionable services at no cost to the

plan beneficiaries. Plaintiffs say that prov iding even indirect support for contraception,

abortion, and sterilization would also violate their religious convictions.

Because failure to cover the required serv ices or execute a self-certific ation by

January 1, 2014 could have subjected Plaintiffs to financial penalties or other harms,

Plaintiffs moved for a temporary restraini ng order. The Court granted the motion on the

briefs and scheduled a hearing to determine if a preliminary injunction should issue. The

Court canceled the hearing af ter the parties jointly moved for a ruling based on the

submissions in their briefs. Having consideer d the parties' submissions, the Court will issue

a preliminary injunction.

BACKGROUND
I. Statutory and Regulatory Framework
The Affordable Care Act ("ACA") requires employers with fifty or more employees to
offer health insurance plans meeti ng certain coverage requirements. See 26 U.S.C. §
4980H. Failure to comply exposes an em ployer to substantial fines. See 26 U.S.C. §§
4980D(a), 4980H(a). Although smaller employers need not sponsor a health plan, if they
elect to do so, the government asserts that ht eir health plans must also meet the minimum
coverage requirements.1 Def.'s Resp. 5, ECF No. 9.
One such requirement is that health plans cover “preventative care and screening”
for women “as provided for in c omprehensive guidelines supported by the Health
Resources and Services Administration [‘HRSA’].” 42 U.S.C. § 300gg-13(a)(4). The HRSA-
adopted guidelines ("HRSA Mandate"), in turn , require coverage of “all Food and Drug
Administration approved contraceptive met hods, sterilization procedures, and patient
education and counseling for wom en with reproductive capacity.” HRSA, Women’s
Preventative Services: Requir ed Health Plan Coverage Guidelines, available at
1 Although the ACA may categorically exempt health plans offered by small employers from the minimum coverage requirements, Korte v. Sebelius, 735 F.3d 654, 661 (7th Cir. 2013); see also 26 U.S.C. § 4980H (mandating only that large employers sponsor health insurance plans); 26 U.S.C. § 4980D(d) (exempting "certain insured small employer plans" from fines for violations of the minimum coverage requirements), the parties here read 42 U.S.C. § 300gg-13(a) as extending such standards to all health plans. Pl.'s Br. 7, ECF No. 3; Def.'s Resp. 5. The parties' court filings a ccordingly reveal little about the size of the plaintiff organizations, but they appear to be a mix of large and small employers. Pl.'s Br. 15, 18.
Before rendering a final judgment, the Court may have to determine if the minimum coverage requirements apply to any plaintiffs that are small employers. But for purposes of considering Article III standing and a prelim inary injunction, it is enough that the government intends to enforcethe HRSA Mandate against smalel mployers electing to offer health plans.
2

http://www.hrsa.gov/womensguidelines/ (last visited Jan. 13, 2014);see also Eden Foods, Inc. v. Sebelius, 733 F.3d 626, 628 (6th Cir. 2013).
The ACA and implementing regulat ions initially varied this requirement for grandfathered health plans and health plans sponsored by religious employers. See 42 U.S.C. § 18011(a)(2); 45 C.F.R. §§ 147.140, 147.131(a). A health plan is grandfathered if at least one person has been continuously enrolled in the plan since March 23, 2010, and if the terms of the plan have remained unchanged. See 45 C.F.R. § 147.140; see also 26 C.F.R. § 54.9815–1251T; 29 C.F.R. § 2590.715–1251. A “religious employer” (1) has the “inculcation of religious values as its purpose,” (2) “primarily employs persons who share its religious tenets,” (3) “primarily serves persons who share its religious tenets,” and (4) is a non-profit organization under Sections 6033(a)(1) and 6033(a)(3)(A)(i) or (iii) of t he Internal Revenue Code. 45 C.F.R. § 147.131(a).
After receiving objections from organiza tions that did not qualify as religious employers, the government temporarily exempted nonprofit religious organizations from the HRSA Mandate. See Korte, 735 F.3d at 661–62. The gover nment also proposed and adopted an " accommodation" that allows "eligible organizations" to avoid the HRSA Mandate through a self-certification process. Coverage of Certain Preventative Services under the Affordable Care Act, 78 Fed. Reg. 39,873–74 (July 2, 2013). An eligible organization is one that (1) “opposes providing coverage for some or all . . . contraceptive services . . . on account of religious obj ections”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) self-certifies that it satisfies the foregoing criteria. See 45 C.F.R. § 147.131(a).
3

Although an eligible organization is not requried to file anything with the government, the organization must provide a copy of the self-certificati on to its health insurance provider. See 45 C.F.R. § 147.131(c)(1). The eligible organization is then relieved of any obligation to “contract, arrange, pay, or refer for contraceptive coverage,” 78 Fed. Reg. at 39,874, and the organization’s insurer must exclude contraceptive coverage from the organization’s health plan, see 45 C.F.R. § 147.131(c). But receipt of the self-certification obliges the insurer to “[p]rovide separate payments for any contraceptive services required to be covered” at no cost to the plan benefic iaries and to notify them of the available coverage. 45 C.F.R. § 147.131(c)(2)(i)–(d).
The final rules governing the accommodation for eligible organizations became effective January 1, 2014, at which point the temporary safe harbor also expired. See 78 Fed. Reg. at 39,872. II. The Plaintiff Organizations
Plaintiffs are five nonprofit organizations “founded, organized, and . . . maintained in conformity with and/or for furtherance of the teachings ofthe Catholic Church.” Monaghan Decl. ¶ 28, ECF No. 3-2. The Ave MariaFoundation was founded “to promote and spread Catholic education, Catholic media, community projects, and other Catholic charities.” Monaghan Decl. ¶ 7. It supports a variety of organizations, including three of its coplaintiffs, that “teach the principles of theCatholic tradition,” support the Catholic Church’s “moral and social teachings,” and educatehte public about the Catholic Church. Monaghan Decl. ¶¶ 11, 18, 21, 23. The Ave Maria Foundatoi n subscribes to the authoritative doctrine of the Catholic Church, including its teachingsagainst contraception,abortion, sterilization, and abortifacients. Monaghan Decl. ¶¶ 9, 12, 17.
4

The Rhondora J. Donahue Academy, Inc., isa religious primary school “grounded in the traditions of the Roman Catholic Church.” Monaghan Decl. ¶ 18–20. It “actively professes belief” in the author itative teachings of the Cat holic Church, including those related to sexual ac tivity. Gurnsey Decl. ¶ 8, ECF No. 3-6. Ave Maria Communications produces Catholic radio programming and prom otes Catholic teaching through a variety of media sources. Monaghan Decl. ¶¶ 21–22; KrestaDecl. ¶ 5, ECF No. 3-5. It too “actively professes belief” in the author itative teachings of the Cat holic Church, including those related to sexual activity. Kresta Decl. ¶ 7. The Thomas More Law Center is a “public interest law firm dedicated to education and lit igation on issues of human life, religious freedom, and traditional family values.” Monaghan Decl. ¶ 25. And Domino’s Farms Petting Farm is a nonprofit that promotes understanding of “an agriculture lifestyle” and “operate[s] an animal petting farm” for educational purposes. Monaghan Decl. ¶ 27.
All five organizations maintain a group heathl insurance plan through Blue Cross/Blue Shield of Michigan. Zumda Decl. ¶¶ 5, ECF No.3-4. Plaintiffs believe that providing health insurance is necessary to remain competitive employers and fulfills their “religious duty to provide for the health and well-being of [thei r] employees and their fa milies.” Monaghan Decl. ¶¶ 49, 52; see also Zumda Decl. ¶ 18; Kresta Decl. ¶ 20; Guernsey Decl. ¶ 21. But for religious reasons, Plaintiffs’ health plan exclude coverage for abortion, abortifacients, sterilization, and artificial contraceptoi n. Monaghan Decl. ¶¶ 31–33; Zumda Decl. ¶¶ 12–13.
Notwithstanding the HRSA Mandat e, Plaintiffs desire to continue providing health plans insurance coverage that excludes payments for abortions , sterilizations, and abortifacient and contraceptive drugs. Zumda, Decl. ¶ 17. But Palintiffs' existing health plan is ineligible for grandfathered status due to changes in cost-sharing. Zumda Decl. ¶¶ 8–9.
5

None of the plaintiff organizations qualify as re ligious employers. And Plaintiffs object to self-certifying as eligible organizations, because, they submit, doing so will indirectly support contraception, sterilization, and abortion. Monaghan Decl. ¶¶ 33, 41–48.
STANDARD OF REVIEW A court may issue a preliminayr injunction after weighing “('1) whether the movant has a strong likelihood of success on the m erits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuanceof the injunction would cause substantial harm to others; and (4) whether t he public interest would be served by the issuance of the injunction.'” Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011) (quotingCertified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007)).
DISCUSSION I. Likelihood of Success on the Merits
Plaintiffs seek injunctive relief under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bbet seq. RFRA affords a cause of action to any person whose religious exercise is substantially burdened by government action even if the burden results from a rule of general applicability. See 42 U.S.C. § 2000bb-1.
A RFRA claim proceeds in two steps. “First, the plaintiff must make out aprima facie case by establishing Article III standing and s howing that the law in question ‘would (1) substantially burden (2) a sincere (3) religious exercise.’” Autocam Corp. v. Sebelius, 730 F.3d 618, 625 (6thCir. 2013) (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006)). If the plaint iff makes those s howings, then the government must demonstrate “‘ that application of the burden to the person (1) is in
6

furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that . . . interest.’” Id. (quoting O Centro, 546 U.S. at 428).
A. A Substantial Burden on a Sincere Religious Exercise The centerpiece of the parties' disput e is over whether the HRSA Mandate substantially burdens Plaintiffs' religious exercise — a question on which there is a substantial division of opinion. Compare, e.g., Mich. Catholic Conference v. Sebelius, No. 13-1247, 2013 WL 6838707 (W.D.Mich. Dec. 27, 2013); Univ. of Notre Dame v. Sebelius, No. 13-1276, 2013 WL 6804773 (N.D. Ind. Dec. 20, 2013);Priests for Life v. U.S. Dep't of Health & Human Servs., No. 13-1261, 2013 WL 6672400 (D.D.C. Dec. 19, 2013), with S. Nazarene Univ. v. Sebelius, No. 13-1015, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013); Reaching Souls Int'l, Inc. v. Sebelius, No. 13-1092, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013); Legatus v. Sebelius , 12-12061, 2013 WL 6768607 (E.D . Mich. Dec. 20, 2013); Roman Catholic Archdioces e of N.Y. v. Sebelius , No. 12-2542, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013); Zubik v. Sebelius, Nos. 13-1459 & 13-303, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013). As the split of authorities suggests, neither side is guaranteed victory. Yet Plaintiffs here nevertheless show a strong likelihood of succeeding on the merits. The substantial burden requirement reflects the Free Exercise jurisprudence that predated Employment Division v. Smith, 494 U.S. 872 (1990). See O Centro, 546 U.S. at 424; S. Rep. No. 103-111. Al though there is no canonical definition of the phrase, generally, a burden is substantial if the gov ernment compels "an individual to choose between 'following the precepts of her religion and forfeiti ng benefits'" or "place[s] 'substantial pressure on an adherent to modify his behavior and to vio late his beliefs.'"
7

Living Water Church of God v.Charter Twp. of Meridian, 258 F. App'x 729, 734–37 (6th Cir. 2007) (internal citations omitted); see also, e.g., United States v. Lee, 455 U.S. 252, 256–58 (1982) (the requirement to pay Social Se curity taxes substantially burdened an Amish employer who objected to the Social Security system); Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707 (1981) (a state cannot deny unemployment benefits to a Jehovah's Witness who quit a job m aking tank turrets); Sherbert v. Verner, 374 U.S. 398 (1963) (a state cannot deny unem ployment benefits to a Seventh Day Adventist who refused to accept Saturday employment).
Conversely, RFRA offers no protection against government action that encumbers the practice of religion but does not pressurea litigant to violate his religious beliefs.See Living Water Church of God, 258 F. App'x at 374–75; see also, e.g., Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378 (1990) (no right to refuse to pay a state's general sales and use taxes to conserve money for religiouspurposes). Religious objections directed at the government's internal procedures or its management of public property fall into this category. See, e.g., Lyng v. N’west Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988) (no right to challenge agency plans to permit timber harvesting and road construction on government land); Bowen v. Roy , 476 U.S. 693 (1986) (no right to object to the government's use of a Social Security number); Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) (no right to object to ht e government's collection and use of DNA);Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) (enbanc) (no right to challenge the use of recycle wastewater to create artificial snow on public land).
Since the temporary safe harbor has now expried, Plaintiffs must (1) comply with the HRSA Mandate, (2) self-certify as an eligibleorganization, (3) offer a non-compliant health
8

insurance plan, or (4) discontinue offering healthinsurance altogether. Plaintiffs claim that

taking either of the first two options would vi olate their religious beliefs. Disregarding the

minimum coverage requirements may expose Plaintiffs to significant financial penalties.

See 26 U.S.C. § 4980D(a). But see 26 U.S.C. § 4980D(d) (exempting certain small

employers from the fines for noncompliance).And the final option —ending health benefits

for employees — Plaintiffs view as

undesirable from religious and business

competitiveness standpoints. Discont inuing health insurance would also expose large

employers to substantial fines. See 26 U.S.C. § 2680H(a).

At first glance, this array of alternatives compels Plaintiffs to choose between their

religious beliefs and other consequences. Although the government might well argue that

for small employers the option to exit the healthcare market will not substantially burden

their religious exercise, the importance the government places on employed-sponsored

health insurance in defending the ACA and HRSAMandate tends to foreclose the response

— and the government instead argues that the accommodat ion provides an es cape,

because it allows Plaintiffs to act "almost eaxctly what they would" have before the passage

of the HRSA Mandate. Def.'s Resp. 4.

How little Plaintiffs must do to qualify for the accommodation would be highly relevant

if they objected only to payingfor contraceptives directly. Taking a few minutes to complete

some paperwork would hardly be a s ignificant burden on their religious exercise. But

because Plaintiffs also object to executing theself-certification, the government's argument

amounts to disbelief that the self-certfication has much religious significance. And adopting

this argument would therefore require an examination of the sincerity of Plaintiffs' professed

beliefs — which the government does not question — or second-guessing the importance

9

or rationality of Plaintiffs' convictions — a task beyond the Court's ability or competence. See 42 U.S.C. § 2000cc-5(7)(A) (defining "religious exercise" in RFRA as "any exercise of religion, whether or not compelled by, orcentral to, a system of religious belief");Lee, 455 U.S. at 257 ("It is not within 'the judicial function and judicial competence' . . . to determine whether appellee or the Government has the proper interpretation of the Amish faith; '[c]ourts are not arbiters of scriptural interpretation.'" (quoting Thomas, 450 U.S. at 716)); Thomas, 450 U.S. at 714–16 (refusing to deci de whether a r eligious objector had appropriately concluded that he could produce steel used for weapons but not make the weapons themselves).
Contrary to the government's assertion, refusing to second-guess Plaintiffs' sincere beliefs of their religion prohibits does not mkae the substantial burden requirement a nullity. Courts may still evaluate whether a law pre ssures a litigant to modify her beh avior and whether that pressure is significant. Buthaving conceded that theaccommodation requires Plaintiffs to change their behavior in some way — here, by executing a certification — the government cannot then labelthat newly required action as tirvial. It is not the government's business to decide what behavior has religioussignificance. Only when a law or regulation requires "no action or forbearance" by a religious objector can the government dismiss otherwise significant burdens onreligious exercise offhand. Kaemmerling, 553 F.3d at 679 (emphasis added); see also id. (explaining that the cha llenge regulations required no modification of "religious behavior in any way").
The government's fallback position — that the any burden on Pl aintiffs' religious exercise is too attenuated to besubstantial — suffers from thesame defects as its principal argument. Def.'s Resp. 19. The HRSA Mandate requrei s Plaintiffs to act, directly burdening
10

their religious exercise. The only attenuation here concerns why Plaintiffs' believe they cannot execute the self-certification. Yet, to say that a person cannot attach religious significance to an act based on how others will react to it requires judging the rationality of a religious belief. And this, the courts cannot do. See Lee, 455 U.S. at 257; Thomas, 450 U.S. at 714–15.
The government is understandablyconcerned that religious objections predicated on remote consequences might cripple effective administration of laws. But a great number of religious objections bas ed on third-party actions are dismissed simply because the plaintiff is not pr essured to act in any way. See, e.g., Lyng, 485 U.S. 439 (no right to challenge agency plans to permit timber harvesting and road construction on government land); Bowen, 476 U.S. 693 (no right to object to thegovernment's use of a Social Security number); Kaemmerling, 553 F.3d 669 (no right to object tothe government's collection and use of DNA); Navajo Nation, 535 F.3d 1058 (no right to c hallenge the use of recycle wastewater to create artificial snow on pub lic land). And in t he remaining cases, RFRA answers the government's concern with the compelling interest test. Although the test is stringent, in appropriate situations, courts indeed have found a compelling interest in the uniform administration of laws. See, e.g., Lee, 455 U.S. 252 (an Amish employer had no right to refuse to pay Social Securitytaxes even though the requirement burdened religious exercise).
B. Compelling Interest Test Because Plaintiffs have demonstrated that the challenged regulations are apt to substantially burden their religious exercise,the government must show that the applicable
11

regulations are the “least restrci tive means of further [a] compelling governmental interest,” 42 U.S.C. § 2000bb-1(b). The government is unlikely to do so.
1. Compelling Governmental Interest A compelling gover nmental interest is one “of the highest order.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993); see also Lee, 455 U.S. at 258 (describing theinterest as “overriding”); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (describing the interest as “of the highest order”); Sherbert, 374 U.S. at 406 (describing the interest as“paramount”). Here, the government argues that the challenged regulations serve two compelling interests: the promotion of p ublic health and gender equality. Def.'s Resp. 22, 24. Considered in the abstract, both interests appear important. But the Supreme Court has warned against using “broadly formulated interests” to justify “the general applicability of government mandates.”O Centro, 546 U.S. at 431. Becausehte government must justify the application of a law to “particular religious claimants" in a case, id., the "law cannot be regarded as protecting an interest of the highes t order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited,” Lukumi, 508 U.S. at 547 (internal quotation marks and citations omitted) (ellipsis in original) Here, the sheer number of exceptions and stays to the HRSA Mandate undercut the government's argument that requiring religious objectors toprovide contraceptive coverage furthers vital interests. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1143–44 (10th Cir. 2013) (en banc), cert. granted, 134 S. Ct. 678; Gilardi v. U.S. Dep't of Health & Human Servs., 733 F.3d 1208, 1222 (D.C. Cir. 2013) (Opinion of Brown, J.); Conestoga Wood Specialties Corp. v. Sec'y of U. S. Dep't of Health & Human Servs., 724 F.3d 377,
12

414 (3d Cir. 2013) (Jordan, J., dissenting), cert. granted, 134 S. Ct. 678. Grandfathered health plans, religious employers' health plans, and possibly small employers' health plans need not meet the min imum coverage requirements, leaving "millions upon millions of people — by some estimates 190 million" — without health plans that provide free preventative services. Conestoga Wood Specialties, 724 F.3d at 414.
In response, the government argues that most health plans will eventually lose grandfathered status and thatthose who work for religious employers are less likely to use preventative services than those covered bythe accommodation. Def.'s Resp. 26–28. Both explanations may be factually accurate, but they miss the point. All of the exceptions undermine the supposed necessity of applyinghte HRSA Mandate uniformly. For instance, the provision for religious employers show s that ac commodating religious beliefs is sometimes more important than ensuring unive rsal access to free contraceptives. The government is thus hard pressed to say that public health and gender equality justify applying the HRSA Mandate to some religious objectors but not others.
2. Least Restrictive Means Even if government’s interests are compellni g, the government hasnot used the least restrictive means to further them. The least restrictive means inquiry involves “comparing the cost to the government ofaltering its activity to continue unimpeded versus the cost to the religious interest imposed by the government activity.” S. Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1206 (6th Cir. 1990). Plaintiffs suggest several alternative means by which t he government could provide pr eventative services without burdening their religious exercise. These include providing the cov erage directly to employees, working directly with third par ties to provide the coverage, providing tax
13

incentives to patients or drug companies, our sing existing healthcare exchanges to provide coverage. Pl.'s Br. 25; Pl.'s Reply 12, ECF No. 11.
The government argues against these options as requiring an exercise of statutory authority it does not possess or as imposi ng a signif icant financial and administrative burden on the government. Def.'s Resp. 28–32. Neither response is compelling. First, the government’s assertion that it would need additional statutory authority misses the point of the compelling interest test, which probes whether the government as a whole c ould have acted differently. See Roman Catholic Archdiocese, 2013 WL 6579764, at *18. And second, the government is not persuasive in attempting toconvince that implementing the Plaintiffs' proposals would entail great expense.The government's onlysupport is a portion of the administrative record that ex plains other proposals were considered and deemed less effective. Def.'s Resp. 31 (citing 78 Fed. Reg. at 39, 888). Without somehow quantifying the loss of effectiveness, the govenr ment cannot show that the HRSA Mandate is the least restrictive means of promoting public health and gender equality in light of the numerous other options available and the myriad of exceptions to it. See Korte, 735 F.3d at 686; Gilardi, 733 F.3d at 1222;Roman Catholic Archdiocese, 2013 WL 6579764, at *18. II. Other Factors
Due to the similarity between RFRA and First Amendment claims, the likelihood of success on the merits tends to megr e with the irreparable harm factor.See Autocam Corp., 730 F.3d at 624 (citing Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th C ir. 1998)). The deprivation of protected freedoms for “even minimal periods of time . . . constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976);see also McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012). The same is true of the public interest factor.
14

Although it is generally in the public interest to permit the implementation of laws, see Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008),the public has a stronger interest in preventing the loss of individual liberties, see Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.4d 1474, 1490 (6th Cir. 1995) . Because Plaintiffs are likely to succeed on t heir RFRA claim, the remaining factors also weigh in their favor. III. Balancing of the Equities
Because Plaintiffs have shown a strong possibility that they will succeed on the merits, issuance of a prelimni ary injunction is appropriate toprevent irreparable harm given the comparatively minimal harm will accrue tothe government and other stakeholders. The merits question is difficult. Other courts, including the United States Court of Appeals for the Sixth Circuit, have issued injunctions in similar cases. See, e.g., Michigan Catholic Conference v. Sebelius , No. 13-2723, Order ( 6th Cir. De c. 31, 2013) (granting a stay pending appeal); Catholic Diocese of Nashville v. Sebelius, No. 13-6640, Order (6th Cir. Dec. 31, 2013) (granting a stay pending appeal). Because the equities weigh in favor of a preliminary injunction, the Court will also enjoin enforcement of the HRSA Mandate.2
2 The Sixth Circuit has expedited appeals in Michigan Catholic Conference v. Sebelius, No. 13-2723, (6th Cir.), and Catholic Diocese of Nashville v. Sebelius, No. 13-6640, (6th Cir.), both of which present similar issues to the ones here. The Court, therefore, will consider staying this case pending the disposition of these appeals, and the Court invites the parties to submit their views on whether a stay is appropriate.
15

ORDER WHEREFORE, it is herebyORDERED that Defendants and theiragents, officers, and employees are ENJOINED from enforcing against Plaintiffs any requirement that they provide contraception, sterilization, abortifacients, or related education and counseling in their employee health plan, pursuant to 42 U.S.C. § 300gg-13(a )(4) and implementing regulations. IT IS FURTHER ORDERED that the parties may SUBMIT briefs on whether a stay should issue. Any briefs shoul d be submitted within seven (7) days of the entry of this order, be no m ore than seven (7) pages in l ength, and conform to the Local Rules. No replies will be permitted without leave of the Court. SO ORDERED.

Dated: January 13, 2014

s/Stephen J. Murphy, III STEPHEN J. MURPHY, III United States District Judge

I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on January 13, 2014, by electronic and/or ordinary mail.

s/Carol Cohron Case Manager

16

 
 2:13-cv-15198-SJM-MAR Doc # 16 Filed 01/17/14 Pg 1 of 4 Pg ID 485

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

AVE MARIA FOUNDATION, et al.,

) )

Plaintiffs,

) )

v.

) )

) Case No. 2:13-cv-15198-SJM-MAR

KATHLEEN SEBELIUS, in her official))

capacity as Secretary, United States )

Department of Health and Human Services, et al.,

) ) )

)

)

Defendants.

) )

JOINT MOTION TO STAY DISTRICT COURT PROCEEDINGS

On January 13, 2014, this Court gran ted plaintiffs’ motion for a preliminary

injunction, enjoining defendants from enforcing against plaintiffs the challenged

regulations. See ECF No. 15. The Court also invit ed the parties to submit briefs on

whether this case should be stayed pending the disposition of the expedited appeals

in Michigan Catholic Conference v. Sebelius, No. 13-2723 (6th Cir.), and Catholic

Diocese of Nashville v. S ebelius, No. 13-6640 (6th Cir. ). The parties have

conferred and believe that a stay is appr opriate until the deadline for defendants to

file a notice of appeal with respect to the Court’s January 13, 2014 order granting a

preliminary injunction and, if any such resolved.1

appeal is filed, until that appeal is

1 If defendants do not file a notice of appeal in this case, they nevertheless reserve the right to move this Court to continue to stay this case pending resolution of the expedited appeals in Michigan Catholic Conference v. Sebelius, No. 13-2723 (6th Cir.), and Catholic Diocese of Nashville v. Sebelius, No. 13-6640 (6th Cir.)—cases which will likely address some of the legal issues that are presented in this case. Plaintiffs would oppose any such request.

2:13-cv-15198-SJM-MAR Doc # 16 Filed 01/17/14 Pg 2 of 4 Pg ID 486
“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes of its docket with econom y of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgm ent, which must weigh competing interests and maintain an even balance.” Landis v. N. Am. Co. , 299 U.S. 248, 254-55 (1936). Pursuant to Federal Rule of Appellate Procedure 4(a) (1)(B), defendants have 60 days from the entry of t his Court’s January 13, 2014 order granting pre liminary injunctive relief—until March 14, 2014—to f ile any notice of appeal. It would be inefficient to spend t he resources and time of the pa rties and this Court for litigation to proceed in this case while relevant issues are being addressed by the Sixth Circuit. See Ass’n of Irritated Residents v. Fred Schakel Dairy, 634 F. Supp. 2d 1081, 1094 (E.D. Cal. 2008) (“[T] he district court ha s broad discretion to decide whether a stay is appropriate to prom ote economy of time and effort for itself, for counsel, and for litigants.”).
Accordingly, the parties ask this Court to stay all district court proceedings in this case until 14 days af ter the deadline for defendants to file a notice of appeal (i.e., March 28, 2014) or, if defendants file a notice of appeal, until 15 days after the mandate issues with respect to any such appeal.
Respectfully submitted this 17th day of January, 2014,
Attorneys for Plaintiffs THOMAS MORE LAW CENTER
/s/ Erin Mersino_________ Erin Mersino, Esq. (P70886) Richard Thompson (P21410) 24 Frank Lloyd Wright Blvd. P.O. Box 393 Ann Arbor, MI 48106 (734) 827-2001 emersion@thomasmore.org
2

2:13-cv-15198-SJM-MAR Doc # 16 Filed 01/17/14 Pg 3 of 4 Pg ID 487

Attorneys for Defendants

STUART F. DELERY Assistant Attorney General

KATHLEEN R. HARTNETT Deputy Assistant Attorney General

BARBARA L. MCQUADE United States Attorney

JENNIFER RICKETTS Director, Federal Programs Branch

SHEILA M. LIEBER Deputy Director, Federal Programs Branch

/s/ Michelle R. Bennett

_

MICHELLE R. BENNETT (CO Bar No. 37050)

Trial Attorney

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue N.W. Room 7310

Washington, D.C. 20530

Tel: (202) 305-8902

Fax: (202) 616-8470

Email: michelle.bennett@usdoj.gov

3

2:13-cv-15198-SJM-MAR Doc # 16 Filed 01/17/14 Pg 4 of 4 Pg ID 488

CERTIFICATE OF SERVICE

I hereby certify that on January 17, 2014, I caused a true and correct copy of the foregoing t o be served on plainti ffs’ counsel by m eans of the Court’s ECF

system.

/s/ Michelle R. Bennett

_

Michelle R. Bennett

 
 2:13-cv-15198-SJM-MAR Doc # 17 Filed 01/23/14 Pg 1 of 2 Pg ID 489

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AVE MARIA FOUNDATION, et al.,

Plaintiffs,

Case No. 13-cv-15198

v.

HONORABLE STEPHEN J. MURPHY, III

KATHLEEN SEBELIUS, et al.,

Defendants. /

ORDER GRANTING JOINT MOTION TO STAY (document no. 16), STAYING FURTHER PROCEEDINGS, AND ADMINISTRATIVELY CLOSING THE CASE

On January 13, 2014, the Court issued a preliminary injunction t hat enjoins

Defendants from enforcing against Plainti ffs federal regulations that require

employer-sponsored health insurance plans to include coverage for contraceptives ,

abortifacients, and sterilization at no cost to the plan beneficiaries. Opinion & Order, ECF

No. 15. The parties now jointly move to stay the case.

The Sixth Circuit has recently expedited appeals in Catholic Diocese of Nashville v.

Sebelius, No. 13-6640 (6th Cir.), and Michigan Catholic Conference v. Sebelius, No. 13-

2723 (6th Cir.). Due to the similarities between this case and the expedited appeals, a stay

is appropriate until Defendants’ opportunity for appealing the preliminary injunction has

passed or, if an appeal is filed,until that appeal is resolved.Therefore, the Court will grant

the parties’ joint motion for a stay.

2:13-cv-15198-SJM-MAR Doc # 17 Filed 01/23/14 Pg 2 of 2 Pg ID 490

ORDER WHEREFORE, it is herebyORDERED that the parties' jointmotion to stay (document no. 16) is GRANTED. IT IS FURTHER ORDERED that the case is STAYED until fourteen (14) days after the expiration of the time for Defendants to f ile a notice of appeal or, if Defendants file a notice of appeal, until fifteen (15)days after the mandate issueswith respect to that appeal, whichever is later. IT IS FURTHER ORDERED that this case is CLOSED for administrative and statistical purposes while the case is stayed. This closing is not a decision on the merits. Any party may move to reopen this case at any time. SO ORDERED.

Dated: January 23, 2014

s/Stephen J. Murphy, III STEPHEN J. MURPHY, III United States District Judge

I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on January 23, 2014, by electronic and/or ordinary mail.

Carol Cohron Case Manager

2

 
 Case: 2:13-cv-15198 As of: 11/19/2018 08:39 PM EST 1 of 4
CLOSED,APPEAL,STAYED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:13−cv−15198−SJM−MAR

The Ave Maria Foundation et al v. Sebelius et al Assigned to: District Judge Stephen J. Murphy, III Referred to: Magistrate Judge Mark A. Randon Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 12/20/2013 Date Terminated: 01/23/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

The Ave Maria Foundation

represented by Erin E. Mersino Great Lakes Justice Center 5600 W. Mount Hope Highway Lansing, MI 48917 517−322−3207 Fax: 517−322−3206 Email: erin@greatlakesjc.org ATTORNEY TO BE NOTICED

Plaintiff Ave Maria Communications

represented by Erin E. Mersino (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Domino's Farms Petting Farm

represented by Erin E. Mersino (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rhodora J. Donahue Academy, Inc.

represented by Erin E. Mersino (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Thomas More Law Center

represented by Erin E. Mersino (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius

represented by Adam Grogg 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 TERMINATED: 08/18/2017 ATTORNEY TO BE NOTICED
Bradley P. Humphreys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW Room 7219

Case: 2:13-cv-15198 As of: 11/19/2018 08:39 PM EST 2 of 4

Washington, DC 20530 202−514−3367 Fax: 202−616−8470 ATTORNEY TO BE NOTICED

Michelle R. Bennett U.S. Department of Justice Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
United States Department of Health and Human Services

represented by Adam Grogg (See above for address) TERMINATED: 08/18/2017 ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) ATTORNEY TO BE NOTICED

Michelle R. Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant Thomas E. Perez

represented by Adam Grogg (See above for address) TERMINATED: 08/18/2017 ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) ATTORNEY TO BE NOTICED

Michelle R. Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant
United States Department of the Treasury

represented by Adam Grogg (See above for address) TERMINATED: 08/18/2017 ATTORNEY TO BE NOTICED

Bradley P. Humphreys (See above for address) ATTORNEY TO BE NOTICED

Michelle R. Bennett (See above for address) ATTORNEY TO BE NOTICED

Defendant Jack Lew

represented by Adam Grogg (See above for address) TERMINATED: 08/18/2017 ATTORNEY TO BE NOTICED

Case: 2:13-cv-15198 As of: 11/19/2018 08:39 PM EST 3 of 4

Defendant United States Department of Labor

Bradley P. Humphreys (See above for address) ATTORNEY TO BE NOTICED
Michelle R. Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Adam Grogg (See above for address) TERMINATED: 08/18/2017 ATTORNEY TO BE NOTICED
Bradley P. Humphreys (See above for address) ATTORNEY TO BE NOTICED
Michelle R. Bennett (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/20/2013
12/23/2013 12/23/2013
12/23/2013 12/23/2013 12/23/2013 12/23/2013 12/27/2013 12/27/2013
12/30/2013

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: 0645−4431056 − Fee: &#036 400. County of 1st Plaintiff: Washtenaw − County Where Action Arose: Washtenaw − County of 1st Defendant: USA. [Previously dismissed case: No] [Possible companion case(s): Eastern District of Michigan, 12−cv−12061, Judge Judge Robert H. Cleland] (Mersino, Erin) (Entered: 12/20/2013)
2 Emergency MOTION for Leave to File Excess Pages by All Plaintiffs. (Mersino, Erin) (Entered: 12/23/2013)
3 Emergency MOTION for Temporary Restraining Order by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10) (Mersino, Erin) (Entered: 12/23/2013)
4 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by All Plaintiffs (Mersino, Erin) (Entered: 12/23/2013)
5 SUMMONS Issued for *Jack Lew, Thomas E. Perez, Kathleen Sebelius, United States Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury* (DTyl) (Entered: 12/23/2013)
6 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (DTyl) (Entered: 12/23/2013)
7 NOTICE of Appearance by Bradley P. Humphreys on behalf of All Defendants. (Humphreys, Bradley) (Entered: 12/23/2013)
8 MOTION for Leave to File Excess Pages in Opposition to Plaintiffs' Motion for Temporary Restraining Order by All Defendants. (Humphreys, Bradley) (Entered: 12/27/2013)
9 RESPONSE to 3 Emergency MOTION for Temporary Restraining Order filed by All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Catholic Diocese of Nashville v. Sebelius (M.D. Tenn.), # 3 Exhibit Univ. of Notre Dame v. Sebelius (N.D. Ind.), # 4 Priests for Life v. U.S. Dep't of Health & Human Servs. (D.D.C.)) (Humphreys, Bradley) (Entered: 12/27/2013)
10 MOTION for Leave to File Excess Pages by All Plaintiffs. (Mersino, Erin) (Entered: 12/30/2013)

Case: 2:13-cv-15198 As of: 11/19/2018 08:39 PM EST 4 of 4

12/30/2013 12/31/2013
01/02/2014
01/03/2014
01/13/2014 01/17/2014 01/23/2014 03/13/2014 03/13/2014 03/28/2014 05/11/2014 03/25/2015 08/16/2017 08/16/2017 08/18/2017 02/02/2018

11 REPLY to Response re 3 Emergency MOTION for Temporary Restraining Order filed by All Plaintiffs. (Mersino, Erin) (Entered: 12/30/2013)
12 ORDER Granting 2 Motion for Leave to File Excess Pages; Granting 3 Motion for TRO; Granting 8 Motion for Leave to File Excess Pages; and Granting 10 Motion for Leave to File Excess Pages − hearing set for 1/8/2014, 10:00 a.m... Signed by District Judge Stephen J. Murphy, III. (CCoh) (Entered: 12/31/2013)
13 NOTICE by All Plaintiffs re 12 Order on Motion for Leave to File Excess Pages, Order on Motion for TRO,,,,,, Joint Motion for Submission on Briefs (Mersino, Erin) Modified on 1/3/2014 (PMil).[DOCUMENT TITLED JOINT MOTION REGARDING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION] (Entered: 01/02/2014)
14 ORDER to forego hearing re: motion for preliminary injunction − to be decided upon the parties' submissions. Signed by District Judge Stephen J. Murphy, III. (CCoh) (Entered: 01/03/2014)
15 OPINION and ORDER Granting a Preliminary Injunction. Signed by District Judge Stephen J. Murphy, III. (CCoh) (Entered: 01/13/2014)
16 Joint MOTION to Stay by All Defendants. (Bennett, Michelle) (Entered: 01/17/2014)
17 ORDER Granting 16 Motion to Stay and Administratively Closing the Case.. Signed by District Judge Stephen J. Murphy, III. (CCoh) (Entered: 01/23/2014)
18 NOTICE OF APPEAL by All Defendants re 15 Memorandum Opinion & Order. Fee Status: No Fee Paid. (Humphreys, Bradley) (Entered: 03/13/2014)
19 Certificate of Service re 18 Notice of Appeal. (TMcg) (Entered: 03/13/2014)
20 MOTION to Clarify Injunction Order, ECF No. 15 by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit 1) (Mersino, Erin) (Entered: 03/28/2014)
21 ORDER Denying 20 Motion to Clarify.. Signed by District Judge Stephen J. Murphy, III. (CCoh) (Entered: 05/11/2014)
22 NOTICE of Appearance by Adam Grogg on behalf of All Defendants. (Grogg, Adam) (Entered: 03/25/2015)
23 NOTICE of Appearance by Michelle R. Bennett on behalf of All Defendants. (Bennett, Michelle) (Entered: 08/16/2017)
24 MOTION for Withdrawal of Attorney Adam Grogg by All Defendants. (Grogg, Adam) (Entered: 08/16/2017)
25 ORDER Granting 24 Motion to Withdraw as Attorney. Signed by District Judge Stephen J. Murphy, III. (DPar) (Entered: 08/18/2017)
26 STIPULATION of Dismissal Joint Stipulation by All Plaintiffs (Oliveri, Kate) (Entered: 02/02/2018)