Case 1:13-cv-00709-RC Document 1 Filed 12/10/13 Page 1 of 47 PageID #: 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

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CATHOLIC DIOCESE OF BEAUMONT; )

CATHOLIC CHARITIES OF

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SOUTHEAST TEXAS, INC.,

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Plaintiffs,

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v.

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KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

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Department of Health and Human

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Services; THOMAS PEREZ, in his official )

Civil Action No. __________________

capacity as Secretary of the U.S.

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Department of Labor, JACOB J. LEW, in )

DEMAND FOR JURY TRIAL

his official capacity as Secretary of the

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

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DEPARTMENT OF HEALTH AND

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HUMAN SERVICES; U.S.

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DEPARTMENT OF LABOR; and U.S. )

DEPARTMENT OF TREASURY,

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Defendants.

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ORIGINAL COMPLAINT 1. This lawsuit is about one of America’s most cherished freedoms: the freedom to practice one’s religion without government interference. It is not about whether people have a right to abortion-inducing products, sterilization, and contraception. Those products and services are widely available in the United States, and nothing prevents the Government itself from making them more widely available. H ere, however, the Government seeks to require Plaintiffs—all of which are Catholic entities—to violate their sincerely held religious beliefs by providing, paying for, and/or facilitating access to those products and services. American history and tradition, embodied in the First Amendment to the United States Constitution and the Religious Freedom Restoration Act (“RFRA”), safeguard religious entities from such overbearing
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and oppressive governmental action. Plaintiffs therefore seek relief in this Court to protect this most fundamental of American rights.
2. Plaintiffs provide a wide range of spiritual, educational, and social services to members of their communities, Catholic and non-Catholic alike. P laintiff Catholic Diocese of Beaumont (the “Diocese”), not only provides pastoral care and spiritual guidance for thousands of Catholics, but also provides education and essential social ministry to thousands of Catholics and non-Catholics throughout the nine East Texas counties. As an extension of the Diocese’s mission of Catholic ministry, Plaintiff Catholic Charities of Southeast Texas, Inc. (“Catholic Charities”) offers a host of social services to thousands in need throughout those same nine East Texas counties.
3. Plaintiffs’ work is in every respect guided by and consistent with Roman Catholic belief, including the requirement that they serve those in need, regardless of their religion. This is perhaps best captured by words attributed to St. Francis of Assisi: “Preach the Gospel at all times. Use words if necessary.” As Pope Benedict XVI has more recently put it, “[L]ove for widows and orphans, prisoners, and the sick and needy of every kind, is as essential to [the Catholic Church] as the ministry of the sacraments and preaching of the Gospel. T he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” As Plaintiff Catholic Charities notes, “We like to say that we serve people because of our faith, not theirs. Our faith calls us to serve others, regardless of their personal faith traditions.” T hus, Catholic individuals and organizations consistently work to create a more just community by serving any and all neighbors in need.
4. Catholic Church teachings also uphold the firm conviction that sexual union should be reserved to married couples who are open to the creation of life; thus, artificial interference
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with the creation of life, including through abortion, sterilization, and contraceptives, is contrary to Catholic doctrine.
5. Defendants have promulgated various rules (collectively, “the U.S. Government Mandate”) that force Plaintiffs to violate their sincerely held religious beliefs. These rules, first proposed on July 19, 20 10, require Plaintiffs and other Catholic and religious organizations to provide, pay for, and/or facilitate access to abortion-inducing products, sterilization, and contraception, in violation of their sincerely held religious beliefs. In response to the intense public criticism that the Government’s original proposal provoked, including by some of the current Administration’s most ardent supporters, the Government proposed changes to the rules that, it asserted, were intended to eliminate the substantial burden that the Mandate imposed on religious beliefs. In fact, however, these changes made that burden worse by significantly increasing the number of religious organizations subject to the U.S. Government Mandate, and by driving a wedge between religious organizations, such as Plaintiff Diocese, and equally religious charitable and educational arms of the Church, such as Plaintiff Catholic Charities.
6. In its final form, the U.S. Government Mandate contains three basic components: 7. First, it requires employer group health plans to cover, without cost-sharing requirements, all “FDA-approved contraceptive methods and contraceptive counseling”—a term that includes abortion-inducing products, contraception, sterilization, and related counseling and education. 8. Second, the Mandate creates a narrow exemption for certain “religious employers,” defined to include only organizations that are “organized and operate[] as a nonprofit entity and [are] referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, a s amended.” The referenced Code section does not, nor is it intended to, address religious liberty.
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Instead, it is a paperwork-reduction provision that addresses whether and when tax-exempt nonprofit entities must file an annual informational tax return, known as a Form 990. A s the Government has repeatedly affirmed, this exemption is intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.” 78 F ed. Reg. 8,456, 8,461 ( Feb. 6, 2013) ; see also 78 F ed. Reg. 39,870, 39,874 ( July 2, 2013) . Consequently, the only organizations that qualify for the exemption are “churches, synagogues, mosques, and other houses of worship, and religious orders.” 78 Fed. Reg. at 8,461. This is the narrowest “conscience exemption” ever adopted in federal law. It grants the Government broad discretion to sit in judgment of which groups qualify as “religious employers,” thus favoring certain religious organizations over others and entangling the Government in matters of religious faith and practice.
9. Third, the U.S. Government Mandate creates a second class of religious entities that, in the Government’s view, are not sufficiently “religious” to qualify for the “religious employer” exemption. These religious entities, deemed “eligible organizations,” are subject to a so-called “accommodation” that is intended to eliminate the burden that the Mandate imposes on t heir religious beliefs. The “accommodation,” however, is illusory: it continues to require “eligible organizations” to participate in a new employer-based scheme to provide, pay for, and/or facilitate access by employees to products and services that are completely contrary to the fundamental beliefs of the organizations.
10. Catholic Charities does not qualify under the Government’s narrow definition of “religious employers,” even though it is quintessentially a religious organization under any reasonable definition of the term. Its very existence is dependent upon upholding all of the tenets of the Catholic faith in the social ministries it provides on behalf of the Diocese, and as
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required by the Diocese. While Catholic Charities is an “eligible organizations” subject to the so-called “accommodation,” the “accommodation” does nothing to change the Government’s requirement that Plaintiff enter into a co ntract with an insurance company which, as a d irect result, is required to provide or procure abortion-inducing products, contraception, sterilization, and related counseling for this Plaintiff’s employees. Consequently, as religious organizations, Plaintiffs’ actions are the trigger and but-for cause of the provision of the objectionable products and services. Plaintiffs cannot avoid facilitating the provision of the objectionable products and services—for example, by contracting with an insurance company that will not provide or procure the objectionable products and services or even dropping their health-insurance plans altogether—without subjecting themselves to crippling fines and/or lawsuits by individuals and governmental entities.
11. Plaintiffs, moreover, must facilitate the provision of the objectionable services in other ways that further exacerbate their religiously impermissible cooperation in the provision of the objectionable products and services. For example, in order to be eligible for the so-called “accommodation,” Plaintiff Catholic Charities must provide (with the approval of Plaintiff Diocese) a “certification” to the insurance provider setting forth its religious objections to the Mandate. The provision of this “certification,” in turn, automatically triggers an obligation on the part of the insurance provider to provide or procure the objectionable products and services for the employees of the Plaintiff Catholic Charities. A religious organization’s selfcertification, therefore, is a trigger and but-for cause of the provision of the objectionable products and services.
12. Indeed, notwithstanding the “accommodation,” the U.S. Government Mandate “requires the objecting religious organization to fund or otherwise facilitate the morally
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objectionable coverage.” Comments of U.S. Conference of Catholic Bishopa, at 3 ( Mar. 20, 2013), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013NPRM-Comments-3-20-final.pdf. The Government asserts that the provision of the objectionable products and services will be “cost-neutral.” This assertion, however, ignores the regulatory and administrative costs that will inevitably force insurance companies and third-party administrators to increase the prices they charge religious employers subject to the “accommodation.” T he Government’s assertion of “cost neutrality” is also based on t he implausible (and morally objectionable) assumption that “lower costs [from] fewer childbirths” will offset the cost of the contraceptive services. 78 Fed. Reg. at 8463. More importantly, even if the Government’s assumption were correct, it simply means that premiums previously going toward childbirths will be redirected to contraceptive and related services in order to achieve the (objectionable) goal of “fewer childbirths.”
13. In short, the “accommodation” requires non-exempt religious organizations, including Plaintiffs, to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related counseling, contrary to their sincerely-held religious beliefs.
14. The Diocese appears to qualify as a “r eligious employer,” and, as such, is eligible for the “religious employer” exemption from the Mandate. H owever, the Diocese operates an insurance plan that encompasses not only individuals directly employed by the Diocese itself, but, in addition, individuals employed by Catholic Charities. Because Catholic Charities does not itself appear to qualify as an exempt “religious employer,” the Government’s newly minted interpretation of the Mandate requires that the Diocese must either (1) sponsor a plan that will provide, pay for, and/or facilitate the provision of the objectionable products and services to the
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employees of Catholic Charities, or (2) no longer extend its plan to Catholic Charities, subjecting it to massive fines if it does not c ontract with another insurance provider that will offer the objectionable coverage.
15. This reflects a change from the Government’s original interpretation of the Mandate. That interpretation allowed Catholic Charities to remain on the Diocese’s plan, which, in turn, would have shielded it from the Mandate if the Diocese were exempt. See 77 Fed. Reg. 16,501, 16,502 ( Mar. 21, 2012). T he Final Rule, in contrast, removes this protection and thereby increases the number of religious organizations subject to the Mandate. And in so doing, the Mandate seeks to divide the Catholic Church, artificially separating its “houses of worship” from its faith in action, directly contrary to Pope Benedict’s admonition that “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.”
16. The U.S. Government Mandate is irreconcilable with the First Amendment, RFRA, the Administrative Procedure Act, and other laws. T he Government has not demonstrated any compelling interest in forcing Plaintiffs to provide, pay for, and/or facilitate access to abortioninducing products, sterilization, and contraception. N or has the Government demonstrated that the U.S. Government Mandate is the least restrictive means of advancing any interest it has in increasing access to these products and services, which are already widely available and which the Government could make more widely available without conscripting Plaintiffs as vehicles for the dissemination of products and services to which they so strongly object. T he Government, therefore, cannot justify its decision to force Plaintiffs to provide, pay for, and/or facilitate access to these products and services in violation of their sincerely held religious beliefs.
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17. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. I. PRELIMINARY MATTERS
18. Plaintiff Catholic Diocese of Beaumont is a nonprofit unincorporated religious organization organized and existing according to the Code of Canon Law of the Roman Catholic Church and recognized by the State of Texas. The Diocese includes Roman Catholic parishes, schools, and organizations in East Texas. T he principal office of the Diocese is located in Beaumont, Texas. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
19. Plaintiff Catholic Charities is a nonprofit corporation incorporated in the State of Texas. Its principal place of business is in Beaumont, Texas. It is organized exclusively for charitable, religious, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.
20. Defendant Kathleen Sebelius is the Secretary of the U.S. Department of Health and Human Services (“HHS”). She is sued in her official capacity.
21. Defendant Thomas Perez is the Secretary of the U.S. Department of Labor. He is sued in his official capacity.
22. Defendant Jacob J. Lew is the Secretary of the U.S. Department of the Treasury. He is sued in his official capacity.
23. Defendant U.S. Department of Health and Human Services is an executive agency of the United States within the meaning of RFRA and the Administrative Procedure Act (“APA”).
24. Defendant U.S. Department of Labor is an executive agency of the United States within the meaning of RFRA and the APA.
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25. Defendant U.S. Department of the Treasury is an executive agency of the United States within the meaning of RFRA and the APA.
26. This is an action for declaratory and injunctive relief under 5 U.S.C. § 702, 28 U.S.C. §§ 2201, 2202, and 42 U.S.C. § 2000bb-1.
27. An actual, justiciable controversy currently exists between Plaintiffs and Defendants. Absent a declaration resolving this controversy and the validity of the U.S. Government Mandate, Plaintiffs will be required to provide, pay for, and/or facilitate access to objectionable products and services in contravention of their sincerely held religious beliefs, as described below.
28. Plaintiffs have no a dequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile.
29. This Court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(4), and 1346(a)(2).
30. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1). A. The Diocese 31. The Diocese encompasses forty-four parishes and seven missions and serves a region that comprises nine counties (spanning 8,392 square miles) in East Texas, with a population of approximately 628,794, including 73,672 Roman Catholics. T he counties within the Diocese are Chambers, Hardin, Jasper, Jefferson, Liberty, Newton, Orange, Polk and Tyler. This region was originally served by The Catholic Diocese of Galveston, beginning in 1847, which was re-designated the Diocese of Galveston-Houston on July 25, 1959. On September 29, 1966, Pope Paul VI established the Diocese of Beaumont to serve these nine counties (as well as four others which were later made part of the Diocese of Tyler, formed in 1986). The parishes and missions of the Diocese and its five schools are part of the Diocese.
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32. The Most Rev. Curtis J. Guillory, S.V.D., D.D. (“Bishop Guillory”) is over the Diocese.
33. Bishop Guillory is assisted in his ministry by a staff of numerous clergypersons, religious brothers and sisters, and lay people. The Diocese employs over 950 people, over 370 of who are currently eligible for health plan benefits offered through the Diocese. The Diocese employs Catholic and non-Catholic persons, and it does not generally track how many of its employees are Catholic, members of other religious faiths, or non-religious.
34. The Diocese carries out a tripartite spiritual, educational, and social service mission, reflecting the several dimensions of its ministry. The spiritual ministry of the Diocese is conducted largely through its parishes. Through the ministry of its priests, the Diocese ensures the regular availability of the sacraments to all Catholics, living or visiting, within its nine counties. It also provides numerous other opportunities for prayer, worship, and faith formation. In addition to overseeing the sacramental life of its parishes, the Diocese coordinates Catholic campus ministry for the students at Lamar University, as well as other ministries throughout the region.
35. The Diocese conducts much of its educational mission through its schools. The first Catholic school in Southeast Texas opened in 1895 in Beaumont (St. Anthony School). With a focus on faith formation, rigorous academics, and service to others, the Diocese’s schools are committed to assisting parents in preparing their children to meet the challenges of the modern world. Students of diocesan schools are provided opportunities to develop basic academic and physical skills, to pursue knowledge, and to critically study and analyze the world in which they live. The schools of the Diocese follow curriculum standards based upon national Catholic education standards, core curriculum standards, and the social teachings of the Catholic
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Church. Each of the five Catholic schools within the Diocese is fully accredited through the Texas Catholic Conference Accreditation Commission.
36. There are five diocesan schools, which educate approximately 1532 high school and elementary students. The Diocese and its parishes operate all five of these schools, which employ approximately 232 teachers and other school staff.
37. The schools of the Diocese offer a unique educational experience unlike any other in the area. Diocesan schools have established three priorities that make them stand out from other educational institutions. Students are taught faith—not just the basics of Christianity, but how to have a relationship with God that will remain with them after they leave their Catholic school. S ervice, the giving of one’s time and effort to help others, is taught as both a requirement of faith and good citizenship. F inally, high academic standards help each student reach his or her potential. Nationally, over 99% of students in Catholic high schools graduate.
38. The Catholic educational system has demonstrated a particular dedication to teaching the underserved. Indeed, diocesan schools welcome students in all financial conditions, from all backgrounds, and of any or no f aith. Twenty-nine percent of students in diocesan schools are from minority backgrounds, and twenty-two percent of diocesan students are not Catholic. To make a Catholic education available to as many children as possible, the Diocese and its parishes and schools expend substantial funds in tuition assistance programs. In addition, the Diocese provides Catholic religious education in all of its 44 parishes to approximately 1,287 public high school students and 5,017 elementary and middle public school children.
39. Much of the social service and charitable work of the Diocese is performed through its 51 parishes and missions, which, like the six schools discussed above, are organized as part of the Diocese. The parishes within the Diocese maintain their own charitable efforts,
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serving the needs of their communities with programs including food pantries for the poor, adopt-a-family programs at Christmas, meals served to the homeless, outreach and support for women in crisis pregnancies, health-care assistance programs, pastoral care to the sick, prisoner and immigrant ministry, and visits to nursing homes and hospitals.
40. In summary, the Diocese of Beaumont, a nonprofit religious organization organized and existing according to the Code of Canon Law of the Roman Catholic Church and recognized by the State of Texas, employs approximately 950 persons, over 370 of whom are eligible for health plan benefits offered through the Diocese. The Diocese includes five diocesan schools that serve approximately 1,532 students. And through its parishes, the Diocese serves an indeterminate number of persons who are homeless, hungry, elderly, or otherwise in need of material, educational, pastoral, or other assistance, without regard to religious belief.
41. The Diocese qualifies as a “religious employer” under the narrow exemption from compliance with the U.S. Government Mandate.
42. The Diocese provides health insurance coverage to employees through the Christian Brothers Employee Benefit Trust, a self-funded church plan which serves employers of the Catholic Church by providing medical benefits to health plan participants. H ealth plan materials specifically state that “the Trust works within the framework of the tenets of the Catholic Church.” T o that end, the Trust health plan does not cover abortion or sterilization drugs or services, nor does it cover contraceptives, except when prescribed to treat a m edical illness and approved by the Trust.
43. Moreover, the Christian Brothers Employee Benefit Trust health plan offered by the Diocese does not meet the definition of a “grandfathered” plan under the Patient Protection and Affordable Care Act. S ince March 2010, c hanges to the health plan have resulted in
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increases to plan deductible amounts that exceed “medical inflation” as defined in 26 C .F.R. § 549815-1251T. A dditionally, health plan materials provided to participants or beneficiaries have not included a statement that the plan is believed to be a grandfathered plan, as required by 26 C.F.R. § 54.9815-1251T(a)(2)(ii).
44. Plaintiff Catholic Charities offers coverage through the Diocese’s insurance plan. 45. The plan year for the Diocese (and the organizations participating in its plan) begins on March 1. B. Catholic Charities 46. Catholic Charities, one of the largest nongovernmental social service providers in the region, annually provides services to over 4,962 people. “Catholic Charities is charged by the Diocese of Beaumont to defend and insure the preservation of human dignity. Inspired by the social teachings of the Church, we strive to improve the lives of those individuals and families who utilize our services, by recognizing and addressing the evolving needs of our society. It is our vision to achieve a universal community that is stronger physically, mentally, emotionally and spiritually, willing and empowered to care for the needs of all its members.” 47. To that end, it carries out the mandates of the Gospel and the social teaching of the Church through works of Christian charity, service, and social justice by providing competent and caring social services, special assistance to those in great need, and programs of community outreach and advocacy using the skills and talents of professional staff and volunteers. Catholic Charities pursues these goals through its own programs and through partnerships with parishes, community groups, and governmental agencies. 48. Multiple programs run by Catholic Charities provide a panoply of services to the community. They are available to people in need without regard to their religion.
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49. The following are just three examples of Catholic Charities work: 1) Immigration Services is the only non-profit in Southeast Texas recognized by the BIA and U.S. Citizenship and Immigration Service (USCIS), formerly known as Immigration and Naturalization Service (INS), to provide legal immigration services to clients. The Immigration Services Director is accredited to represent clients in immigration matters before the USCIS. 2) The Hospitality Center is a clean, safe and dignified environment where a hearty, daily meal is provided for the elderly on fixed incomes, temporarily needy, working poor, disabled and homeless persons. Last year, the Hospitality Center served approximately 40,000 meals. 3) Elijah’s Place is a program to provide ongoing grief support services to children, ages 5 to 18, who have experienced the death of a parent or sibling. Elijah’s Place grief support provides a setting for age specific group support sessions for the children (ages 5-6, 7-10, 11-13, and 14-18) and a support session for parents. Parents and children come to Elijah’s Place two evenings each month. Participation in the program can last 12 to 18 m onths, or until the family decides they no longer require the service.
50. Catholic Charities has approximately 18 full-time employees. Like the Diocese, Catholic Charities employs individuals of all faiths.
51. Catholic Charities is a member-director corporation. 52. Catholic Charities does not qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Catholic Charities does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate. 53. Catholic Charities employees are offered health insurance through the Diocese’s health plan.
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II. STATUTORY AND REGULATORY BACKGROUND A. Statutory Background 54. In March 2010, Congress enacted the Patient Protection and Affordable Care Act,
Pub. L. No. 111-148, 124 Stat. 119 ( 2010), and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (collectively, the “Affordable Care Act” or the “Act”). The Affordable Care Act established many new requirements for “group health plan[s],” broadly defined as “employee welfare benefit plan[s]” within the meaning of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1), that “provide[] medical care . . . to employees or their dependents.” 42 U.S.C. § 300gg-91(a)(1).
55. As relevant here, the Act requires an employer’s group health plan to cover certain women’s “preventive care.” S pecifically, it indicates that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . a s provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” 42 U .S.C. § 300gg -13(a)(4). Because the Act prohibits “cost sharing requirements,” the health plan must pay for the full costs of these “preventive care” services without any deductible or co-payment.
56. “[T]he Affordable Care Act preserves the ability of individuals to retain coverage under a group health plan or health insurance coverage in which the individual was enrolled on March 23, 2010.” Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,731 ( July 19, 2010) (“Interim Final Rules”); 42 U .S.C. § 18011. These so-called “grandfathered health plans do not have to meet the requirements” of the U.S.
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Government Mandate. 75 Fed. Reg. at 41,731. HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732.
57. Federal law provides several mechanisms to enforce the requirements of the Act, including the U.S. Government Mandate. For example:
a. Under the Internal Revenue Code, certain employers who fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan” will be exposed to significant annual fines of $2,000 pe r full-time employee. See 26 U.S.C. § 4980H (a), (c)(1).
b. Under the Internal Revenue Code, group health plans that fail to provide certain required coverage may be subject to a penalty of $100 a day per affected beneficiary. See 26 U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this applies to employers who violate the “preventive care” provision of the Affordable Care Act).
c. Under ERISA, plan participants can bring civil actions against insurers for unpaid benefits. 29 U.S.C. § 1132(a)(1)(B); see also Cong. Research Serv., RL 7-5700.
d. Similarly, the Secretary of Labor may bring an enforcement action against group health plans of employers that violate the U.S. Government Mandate, as incorporated by ERISA. See 29 U.S.C. § 1132(b)(3); see also Cong. Research Serv., RL 7-5700 (asserting that these penalties can apply to employers and insurers who violate the “preventive care” provision of the Affordable Care Act).
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58. Several of the Act’s provisions, along with other federal statutes, reflect a clear congressional intent that the executive agency charged with identifying the “preventive care” required by § 300gg-13(a)(4) should exclude all abortion-related services.
59. For example, the Weldon Amendment, which has been included in every HHS and Department of Labor appropriations bill since 2004, pr ohibits certain agencies from discriminating against an institution based on that institution’s refusal to provide abortion-related services. Specifically, it states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . i f 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.” C onsolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507(d)(1), 125 Stat. 786, 1111 (2011). The term “health care entity” is defined to include “an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan.” Id. § 507(d)(2) (emphasis added).
60. The legislative history of the Act also demonstrates a clear congressional intent to prohibit the executive branch from requiring group health plans to provide abortion-related services. For example, the House of Representatives originally passed a bill that included an amendment by Congressman Bart Stupak prohibiting the use of federal funds for abortion services. See H.R. 3962, 111th Cong. § 265 (Nov. 7, 2009). The Senate version, however, lacked that restriction. S . Amend. No. 2786 t o H.R. 3590, 111th Cong. (Dec. 23, 2009). T o avoid a filibuster in the Senate, congressional proponents of the Act engaged in a procedure known as
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“budget reconciliation” that required the House to adopt the Senate version of the bill largely in its entirety. Congressman Stupak and other pro-life House members, however, indicated that they would refuse to vote for the Senate version because it failed to adequately prohibit federal funding of abortion. In an attempt to address these concerns, President Barack Obama issued an executive order providing that no executive agency would authorize the federal funding of abortion services. See Exec. Order No. 13535, 75 Fed. Reg. 15,599 (Mar. 24, 2010).
61. The Act, therefore, was passed on the central premise that all agencies would uphold and follow “longstanding Federal laws to protect conscience” and to prohibit federal funding of abortion. Id. That executive order was consistent with a 2009 speech that President Obama gave at the University of Notre Dame, in which he indicated that his Administration would honor the consciences of those who disagree with abortion, and draft sensible conscience clauses.
B. Regulatory Background – Defining “Preventive Care” and the Narrow Exemption
62. In a span of less than two years, Defendants promulgated the U.S. Government Mandate, subverting the Act’s clear purpose to protect the rights of conscience. T he Mandate immediately prompted intense criticism and controversy, in response to which the Government has undertaken various revisions. None of these revisions, however, alleviates the burden that the Mandate imposes on Plaintiffs’ religious beliefs. To the contrary, these revisions have resulted in a final rule that is significantly worse than the original one.
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(1) The Original Mandate 63. On July 19, 2010, Defendants issued interim final rules addressing the statutory requirement that group health plans provide coverage for women’s “preventive care.” 75 Fed. Reg. 41,726 (citing 42 U .S.C. § 300gg-13(a)(4)). Initially, the rules did not define “preventive care,” instead noting that “[t]he Department of HHS is developing these guidelines and expects to issue them no later than August 1, 2011.” Id. at 41,731. 64. To develop the definition of “preventive care,” HHS outsourced its deliberations to the Institute of Medicine (“IOM”), a non-governmental “independent” organization. The IOM in turn created a “Committee on Preventive Services for Women,” composed of 16 members who were selected in secret without any public input. At least eight of the Committee members had founded, chaired, or worked with “pro-choice” advocacy groups (including five different Planned Parenthood entities) that have well-known political and ideological views, including strong animus toward Catholic teachings on abortion and contraception. 65. Unsurprisingly, the IOM Committee invited presentations from several “prochoice” groups, such as Planned Parenthood and the Guttmacher Institute (named for a former president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization. Instead, opponents were relegated to lining up for brief open-microphone sessions at the close of each meeting. 66. At the close of this process, on J uly 19, 2011, t he IOM issued a final report recommending that “preventive care” for women be defined to include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for [all] women with reproductive capacity.” Inst. Of Med., Clinical Preventive Services for Women: Closing the Gaps,” at 218-219 (2011).
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67. The extreme bias of the IOM process spurred one member of the Committee, Dr. Anthony Lo Sasso, to dissent from the final recommendation, writing: “[T]he committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.” Id. at 232.
68. At a press briefing the next day, the chair of the IOM Committee fielded a question from a representative of the U.S. Conference of Catholic Bishops regarding the “coercive dynamic” of the Mandate, asking whether the Committee considered the “conscience rights” of those who would be forced to pay for coverage that they found objectionable on moral and religious grounds. In response, the chair illustrated her cavalier attitude toward the religiousliberty issue, stating bluntly: “[W]e did not take into account individual personal feelings.” See Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women, Press Briefing (July 20, 2011), available at http://www.iom .edu/Reports/2011/Clinical-Preventive-Services-forWomen-Closing-the-Gaps.aspx. The chair later expressed concern to Congress about considering religious objections to the Mandate because to do so would risk a “s lippery slope” that could occur by “opening up t hat door” to religious liberty. See Executive Overreach: The HHS Mandate Versus Religious Liberty: Hearing Before the H. Comm. On the Judiciary, 112th Cong. (2012) (testimony of Linda Rosenstock, Chair, Inst. Of Med. Comm. On Preventive Servs. For Women).
69. Less than two weeks after the IOM report, without pausing for notice and comment, HHS issued a press release on A ugust 1, 2011, a nnouncing that it would adopt the IOM’s definition of “preventive care,” including all “FDA-approved contraception methods and contraceptive counseling.” See U.S. Dept. of Health and Human Services, “Affordable Care Act
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Ensures Women Receive Preventive Services at No Additional Cost,” available at http://www.hhs.gov/news/press/2011pres/08/20110801b.html. HHS ignored the religious, moral and ethical dimensions of the decision and the ideological bias of the IOM Committee and stated that it had “relied on independent physicians, nurses, scientists, and other experts” to reach a definition that was “based on s cientific evidence.” Under the final “scientific” definition, the category of mandatory “preventive care” extends to “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” See “Women’s Preventive Services: Required Health Plan Coverage Guidelines,” http://www.hrsa.gov/womensguidelines.
70. The Government’s definition of mandatory “preventive care” also includes abortion-inducing products. F or example, the FDA has approved “emergency contraceptives” such as the morning-after pill (otherwise known as Plan B), which can prevent an embryo from implanting in the womb, and Ulipristal (otherwise known as HRP 2000 or ella), which likewise can induce abortions.
71. Shortly after announcing its definition of “preventive care,” the Government proposed a narrow exemption from the Mandate for a small category of “religious employers” that met all of the following four criteria: “(1) The inculcation of religious values is the purpose of the organization”; “(2) The organization primarily employs persons who share the religious tenets of the organization”; “(3) The organization serves primarily persons who share the religious tenets of the organization”; and “(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. 46,621, 4 6,626 (Aug. 3, 2011) (codified at 45 C .F.R. § 147.130(a)(iv)(B)).
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72. As the Government itself admitted, this narrow exemption was intended to protect only “the unique relationship between a house of worship and its employees in ministerial positions.” Id. at 46,623. It provided no pr otection for religious universities, elementary and secondary schools, hospitals, and charitable organizations.
73. The sweeping nature of the Mandate was subject to widespread and withering criticism. Religious leaders from across the country protested that they should not be punished or considered less religious simply because they chose to live out their faith by serving needy members of the community who might not share their beliefs. For example, the University of Dallas urged the Government to “expand the existing religious employer exemption to include religious institutions . . . beyond just churches and religious orders.” Comments of the University of Dallas at 2.
74. Despite such pleas, the Government at first refused to reconsider its position. Instead, the Government “finalize[d], without change,” the narrow exemption as originally proposed. 77 Fed. Reg. at 8,729 (Feb. 15, 2012). At the same time, the Government announced that it would offer a “a o ne-year safe harbor from enforcement” for religious organizations that remained subject to the Mandate. Id. at 8,728. As noted by then-jBishop Farrell, the promised safe harbor effectively gave objecting religious institutions “one year to violate their consciences.” M ost Reverend Kevin J. Farrell, D.D., The War Against Religious Freedom Escalates (Jan. 23, 2012), available at http://bishopkevinfarrell.org/blog/2012/01/the-war-againstreligious-freedom-escalates/ (last visited August 15, 2013).
75. A month later, under continuing public pressure, the Government issued an Advance Notice of Proposed Rulemaking (“ANPRM”) that, it claimed, set out a solution to the religious-liberty controversy created by the Mandate. 77 Fed. Reg. 16,501 (Mar. 21, 2012). The
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ANPRM did not revoke the Mandate, and in fact reaffirmed the Government’s view at the time that the “religious employer” exemption would not be changed. Id. at 16,501-08. Instead, the ANPRM offered hypothetical “possible approaches” that would, in the Government’s view, somehow solve the religious-liberty problem without granting an exemption for objecting religious organizations. Id. at 16,507. As the U.S. Conference of Catholic Bishops soon recognized, however, any semblance of relief offered by the ANPRM was illusory. Although it was designed to “create an appearance of moderation and compromise, it [did] not actually offer any change in the Administration’s earlier stated positions on mandated contraceptive coverage.” See Comments of U.S. Conference of Catholic Bishops, at 3 ( May 15, 2012), available at http://www.usccb.org/about/general-counsel/rulemaking/upload/comments-on-advance-notice-ofproposed-rulemaking-on-preventive-services-12-05-15.pdf.
(2) The Government’s Final Offer and the Empty “Accommodation”
76. On February 1, 201 3, the Government issued a Notice of Proposed Rulemaking (“NPRM”), setting forth in further detail its proposal to “accommodate” the rights of Plaintiffs and other religious organizations. The NPRM, like the Government’s previous proposals, was once again met with strenuous opposition, including over 400,000 comments. For example, the U.S. Conference of Catholic Bishops stated that “the ‘accommodation’ still requires the objecting religious organization to fund or otherwise facilitate the morally objectionable coverage. Such organizations and their employees remain deprived of their right to live and work under a health plan consonant with their explicit religious beliefs and commitments.” C omments of U.S. Conference of Catholic Bishop, at 3 ( Mar. 20, 2013) , available at http://www.usccb.org/about/general-counsel/rulemaking/upload/2013-NPRM-Comments-3-20final.pdf.
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77. Despite this opposition, on June 28, 2013, the Government issued a final rule that adopted substantially all of the NPRM’s proposal without significant change. See 78 Fed. Reg. 39870 (July 2, 2013) (“Final Rule”).
78. The Final Rule makes three changes to the Mandate. As described below, even the revised Mandate places unlawful burdens on Plaintiffs and other religious organizations. Indeed, one change significantly increases that burden by significantly increasing the number of religious organizations subject to the Mandate.
79. First, the Final Rule makes what the Government concedes to be a nonsubstantive, cosmetic change to the definition of “religious employer.” In particular, it eliminates the first three prongs of that definition, such that, under the new definition, an exempt “religious employer” is simply “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 78 Fed. Reg. at 39,874 (codified at 45 C.F.R. § 147.131(a)). As the Government has admitted, this new definition does “not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 f inal rules.” 7 8 Fed. Reg. at 8,461. Instead, it continues to “restrict[]the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders.” Id. In this respect, the Final Rule mirrors the intended scope of the original “religious employer” exemption, which focused on “the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. at 46,623. Religious organizations that have a broader mission are still not, in the Government’s view, “religious employers.”
80. The “religious employer” exemption, moreover, creates an official, Governmentfavored category of religious groups that are exempt from the Mandate, while denying this
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favorable treatment to all other religious groups. The exemption applies only to those groups that are referred “to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.” This category includes only (i) “churches, their integrated auxiliaries, and conventions or associations of churches,” and (iii) “the exclusively religious activities of any religious order.” T he IRS has adopted an intrusive 14-factor test to determine whether a group meets these qualifications. See Foundation of Human Understanding v. United States, 88 Fed. Cl. 203, 220 ( Fed. Cl. 2009). Among these 14 factors is whether the group has “ a recognized creed and form of worship,” “a definite and distinct ecclesiastical government,” “a formal code of doctrine and discipline,” “a distinct religious history,” “an organization of ordained ministers” “a literature of its own,” “established places of worship,” “regular congregations, “regular religious services,” “Sunday schools for the religious instruction of the young,” and “schools for the preparation of its ministers.” Id. Not only do these factors favor some religious groups at the expense of others, but they also require the Government to make intrusive judgments regarding religious beliefs, practices, and organizational features to determine which groups fall into the favored category.
81. Second, the Final Rule establishes an illusory “accommodation” for certain nonexempt objecting religious entities that qualify as “eligible organizations.” To qualify as an “eligible organization,” a religious entity must (1) “oppose[] providing coverage for some or all of [the] contraceptive services,” (2) b e “organized and operate[] as a non-profit entity”; (3) “hold[] itself out as a religious organization,” and (4) self-certify that it meets the first three criteria, and provide a copy of the self-certification either to its insurance company or, if the religious organization is self-insured, to its third-party administrator. 26 C.F.R. § 54.9816 2713A(a). The provision of this self-certification then automatically requires the insurance issuer or third-party administrator to provide or arrange “payments for contraceptive services” for the
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organization’s employees, without imposing any “cost-sharing requirements (such as a copayment, coinsurance, or a deductible).” Id. § 54.9816-2713A(b)(2), (c)(2). The objectionable coverage, moreover, is directly tied to the organization’s health plan, lasting only as long as the employee remains on that plan. See 29 C.F.R. § 2590.715 -2713A(d); 45 C .F.R. § 147.131(c)(2)(i)(B). In addition, self-insured organizations are prohibited from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or procure contraceptive services. 26 C.F.R. § 54.9815–2713.
82. This so-called “accommodation” fails to relieve the burden on r eligious organizations. Under the original version of the Mandate, a non-exempt religious organization’s decision to offer a group health plan resulted in the provision of coverage for abortion-inducing products, contraception, sterilization, and related counseling. Under the Final Rule, a non-exempt religious organization’s decision to offer a group health plan still results in the provision of coverage—now in the form of “payments”—for abortion-inducing products, contraception, sterilization, and related counseling. Id. § 54.98 16-2713A(b)-(c). In both scenarios, Plaintiffs’ decision to provide a group health plan triggers the provision of “free” contraceptive coverage to their employees in a manner contrary to their beliefs. The provision of the objectionable products and services are directly tied to Plaintiffs’ insurance policies, as the objectionable “payments” are available only so long as an employee is on t he organization’s health plan. See 29 C.F.R. § 2590.715-2713A(d) (for self-insured employers, the third-party administrator “will provide or arrange separate payments for contraceptive services . . . for so long as [employees] are enrolled in [their] group health plan”); 45 C .F.R. § 147.131(c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan”). For self-
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insured organizations, moreover, the self-certification constitutes the religious organization’s “designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits.” 78 Fed. Reg. at 39,879 (emphasis added). Thus, employer health plans offered by non-exempt religious organizations are the vehicle by which “free” abortion-inducing products, contraception, sterilization, and related counseling are delivered to the organizations’ employees.
83. Needless to say, this shell game does not address Plaintiffs’ fundamental religious objection to improperly facilitating access to the objectionable products and services. T he Mandate coerces Plaintiffs, through threats of crippling fines and other pressure, into facilitating access to contraception, abortion-inducing products, sterilization, and related counseling for their employees, contrary to their sincerely held religious beliefs.
84. The so-called “accommodation,” moreover, requires Plaintiffs to cooperate in the provision of objectionable coverage in other ways as well. For example, in order to be eligible for the so-called “accommodation,” Plaintiffs must provide a “certification” to their insurance provider setting forth their religious objections to the Mandate. The provision of this “certification,” in turn, automatically triggers an obligation on the part of the insurance provider to provide Plaintiffs’ employees with the objectionable coverage. A religious organization’s selfcertification, therefore, is a trigger and but-for cause of the objectionable coverage.
85. The Mandate also requires Plaintiffs to subsidize the objectionable products and services.
86. For organizations that procure insurance through a separate insurance provider, the Government asserts that the cost of the objectionable products and services will be “cost neutral” and, therefore, that Plaintiffs will not actually be paying for it, notwithstanding the fact
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that Plaintiffs’ premiums are the only source of funding that their insurance providers will receive for the objectionable products and services.
87. The Government’s “cost-neutral” assertion, however, is implausible. It rests on the assumption that cost “savings” from “fewer childbirths” will be at least as large as the direct costs of paying for contraceptive products and services and the costs of administering individual policies. 78 Fed. Reg. at 8,463. Some employees, however, will choose not to use contraception notwithstanding the Mandate. Others would use contraception regardless of whether it is being paid for by an insurance company. A nd yet others will shift from less expensive to more expensive products once coverage is mandate and cost-sharing is prohibited. Consequently, there can be no assurance that cost “savings” from “fewer childbirths” will offset the cost of providing contraceptive services.
88. More importantly, even if the Government’s “cost-neutral” assertion were true, it is irrelevant. T he so-called “accommodation” is nothing more than a shell game. P remiums previously paid by the objecting employers to cover, for example, “childbirths,” will now be redirected to pay for contraceptive products and services. T hus, the objecting employer is still required to pay for the objectionable products and services.
89. For self-insured organizations, the Government’s “cost-neutral” assumption is likewise implausible. The Government asserts that third-party administrators required to provide or procure the objectionable products and services will be compensated by reductions in user fees that they otherwise would pay for participating in federally-facilitated health exchanges. See 78 Fed. Reg. at 39,882. S uch fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third-party administrators. S uch regulatory regimes, however, do not fully compensate the
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regulatory entities for the costs and risks incurred. A s a result, few if any third-party administrators are likely to participate in this regime, and those that do are likely to increase fees charged to the self-insured organizations.
90. Either way, as with insured plans, self-insured organizations likewise will be required to subsidize contraceptive products and services notwithstanding the so-called “accommodation.”
91. For all of these reasons, the U.S. Government Mandate continues to require Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization, and related education and counseling, in violation of their sincerely-held religious beliefs.
92. Third, the Final Rule actually increases the number of religious organizations that are subject to the Mandate. U nder the Government’s initial interpretation of the “religious employer” exemption, if a nonexempt religious organization “provided health coverage for its employees through” a plan offered by a separate, “affiliated” organization that was “exempt from the requirement to cover contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.” 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012).
93. For example, the Diocese operates an insurance plan that covers not only the Diocese itself, but Plaintiff Catholic Charities. Under the Government’s initial interpretation of the religious employer exemption, if the Diocese was an exempt “religious employer,” then Catholic Charities received the benefit of that exemption, regardless of whether it independently qualified as a “religious employer,” since it could continue to participate in the Diocese’s exempt
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plan. Catholic Charities, therefore, could benefit from the Diocese’s exemption even if by itself it could not meet the Government’s unprecedentedly narrow definition of “religious employer.”
94. The Final Rule eliminates this safeguard. Instead, it provides that “each employer” must “independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respect to its employees and their covered dependents.” 78 Fed. Reg. at 39,886. See also 78 Fed. Reg. at 8,467. Since Catholic Charities does not meet the Government’s narrow definition of a “religious employer,” it is now subject to the U.S. Government Mandate.
95. Moreover, since Catholic Charities is part of the Diocese’s insurance plan, the Diocese is now required by the Mandate to do one of two things: s ince Catholic Charities participates in the diocesan insurance plan, the Diocese would be forced to sponsor a plan that will provide Catholic Charities’ employees with access to “free” contraception, abortion-inducing products, sterilization, and related counseling. Alternatively, the Diocese must expel Catholic Charities from its insurance plan and thereby subject Catholic Charities to massive fines unless it enters into an arrangement with another insurance provider that will, in turn, provide or procure the objectionable products and services.
96. In this respect, the Mandate seeks to divide the Catholic Church. The Church’s faith in action, carried out through its charitable and educational arms, is every bit as central to the Church’s religious mission as is the administration of the Sacraments. In the words of Pope Benedict, “[t]he Church cannot neglect the service of charity any more than she can neglect the Sacraments and the Word.” Yet the Mandate seeks to separate these consubstantial aspects of the Catholic faith, treating one as “religious” and the other as not. T he Mandate therefore deeply intrudes into internal Church governance.
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97. In sum, the revised Mandate imposes a burden on the Plaintiffs’ religious beliefs; it in fact makes that burden significantly worse by increasing the number of religious organizations that are subject to the Mandate. The U.S. Government Mandate, therefore, requires Plaintiffs to act contrary to their sincerely held religious beliefs. III. THE U.S. GOVERNMENT MANDATE IMPOSES A SUBSTANTIAL BURDEN
ON PLAINTIFFS’ RELIGIOUS LIBERTY A. The U.S. Government Mandate Substantially Burdens Plaintiffs’
Religious Beliefs 98. Since the founding of this country, our law and society have recognized that individuals and institutions are entitled to freedom of conscience and religious practice. Absent a compelling reason, no government authority may compel any group or individual to act contrary to their religious beliefs. A s noted by Thomas Jefferson, “[n]o provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.” 99. The U.S. Government Mandate violates Plaintiffs’ rights of conscience by forcing them to participate in an employer-based scheme to provide access to products and services to which they strenuously object on moral and religious grounds. 100. It is a core tenet of Plaintiffs’ religion that abortion, contraception, and sterilization are serious moral wrongs. 101. Plaintiffs’ Catholic beliefs therefore prohibit them from providing, paying for, and/or facilitating access to abortion-inducing products, contraception, or sterilization. 102. As a corollary, Plaintiffs’ Catholic beliefs prohibit them contracting with an insurance company or third-party administrator that will, as a result, provide or procure the objectionable products and services to Plaintiffs’ employees. 103. Plaintiffs’ beliefs are deeply and sincerely held.
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104. The U.S. Government Mandate, therefore, requires Plaintiffs to do precisely what their sincerely held religious beliefs prohibit—provide, pay for, and/or facilitate access to objectionable products and services or else incur crippling sanctions.
105. The U.S. Government Mandate therefore imposes a substantial burden on plaintiffs’ religious beliefs.
106. The Mandate’s exemption for “religious employers” does not alleviate the burden. 107. The “religious employers” exemption does not apply to Plaintiff Catholic Charities. 108. Although the Diocese is a “religious employer,” the Mandate still forces it either to (1) sponsor a plan that will provide Catholic Charities with access to the objectionable products and services, or (2) no longer extend its plan to these organizations, subjecting them to massive fines if they do not contract with another insurance provider that will provide the objectionable coverage. 109. The first option forces the Diocese to act contrary to its sincerely-held religious beliefs. The second option compels the Diocese to submit to the government’s interference with its structure and internal operations by accepting a construct that divides churches from their ministries. 110. The so-called “accommodation” does not alleviate the burden on P laintiffs’ sincerely held religious beliefs. 111. Notwithstanding the so-called “accommodation,” Plaintiffs are still required to provide, pay for, and/or facilitate access to the objectionable products and services.
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112. Plaintiffs’ Catholic beliefs do not simply prohibit them from using or directly paying for the objectionable coverage. Their beliefs also prohibit them from facilitating access to the objectionable products and services in the manner required by the Mandate.
113. Finally, the Plaintiffs cannot avoid the U.S. Government Mandate without incurring significant adverse consequences. If they eliminate their employee health plans, they are subject to annual fines of $2,000 per full-time employee and would suffer a disadvantage in employee recruitment and retention. If they keep their health plans but refuse to provide or facilitate the objectionable coverage, they are subject to daily fines of $100 a d ay per affected beneficiary. These adverse consequences therefore coerce Plaintiffs into violating their religious beliefs.
114. In short, while the President claims to have “found a solution that works for everyone” and that ensures that “religious liberty will be protected,” his promised “accommodation” does neither. U nless and until this issue is definitively resolved, the U.S. Government Mandate does and will continue to impose a substantial burden on P laintiffs’ religious beliefs.
B. The U.S. Government Mandate Is Not a Neutral Law of General Applicability
115. The U.S. Government Mandate is not a neutral law of general applicability. It offers multiple exemptions from its requirement that employer-based health plans include or facilitate coverage for abortion-inducing products, sterilization, contraception, and related education and counseling. It was, moreover, implemented by and at the behest of individuals and organizations who disagree with Plaintiffs’ religious beliefs regarding abortion and contraception, and thus targets religious organizations for disfavored treatment.
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116. For example, the Mandate exempts all “grandfathered” plans from its requirements, thus excluding tens of millions of people from the mandated coverage. As the government has admitted, while the numbers are expected to diminish over time, “98 million individuals will be enrolled in grandfathered group health plans in 2013.” 75 F ed. Reg. 41726,41732 (July 19, 2010). Elsewhere, the government has put the number at 87 million. See “Keeping the Health Plan You Have” (June 14, 2010 ), http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-havegrandfathered.html. A nd according to one district court last year, “191 million Americans belong[ed] to plans which may be grandfathered under the ACA.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1291 (D. Colo. 2012).
117. Similarly, small employers (i.e., those with fewer than 50 employees) are exempt from certain enforcement mechanisms to compel compliance with the Mandate. See 26 U.S.C. § 4980H(a) (exempting small employers from the assessable payment for failure to provide health coverage).
118. In addition, the Mandate exempts an arbitrary subset of religious organizations that qualify for tax-reporting exemptions under Section 6033 of the Internal Revenue Code. The Government cannot justify its protection of the religious-conscience rights of the narrow category of exempt “religious employers,” but not of Plaintiffs and other religious organizations that remain subject to the Mandate.
119. The U.S. Government Mandate, moreover, was promulgated by Government officials, and supported by non-governmental organizations, who strongly oppose certain Catholic teachings and beliefs. For example, on October 5, 2011, Defendant Sebelius spoke at a fundraiser for NARAL Pro-Choice America. D efendant Sebelius has long supported abortion
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rights and criticized Catholic teachings and beliefs regarding abortion and contraception. NARAL Pro-Choice America is a pro-abortion organization that likewise opposes many Catholic teachings. At that fundraiser, Defendant Sebelius criticized individuals and entities whose beliefs differed from those held by her and the other attendees of the NARAL Pro-Choice America fundraiser, stating: “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.” In addition, the Mandate was modeled on a California law that was motivated by discriminatory intent against religious groups that oppose contraception.
120. Consequently, Plaintiffs allege that the purpose of the U.S. Government Mandate, including the narrow exemption, is to discriminate against religious institutions and organizations that oppose abortion and contraception.
C. The U.S. Government Mandate Is Not the Least Restrictive Means of Furthering a Compelling Governmental Interest
121. The U.S. Government Mandate is not narrowly tailored to serve a compelling governmental interest.
122. The Government has no compelling interest in forcing Plaintiffs to violate their sincerely held religious beliefs by requiring them to participate in a scheme for the provision of abortion-inducing products, sterilization, contraceptives, and related education and counseling. The Government itself has relieved numerous other employers from this requirement by exempting grandfathered plans and plans of employers it deems to be sufficiently religious. Moreover, these services are widely available in the United States. The U.S. Supreme Court has held that individuals have a constitutional right to use such services. And nothing that Plaintiffs do inhibits any individual from exercising that right.
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123. Even assuming the interest was compelling, the Government has numerous alternative means of furthering that interest without forcing Plaintiffs to violate their religious beliefs. For example, the Government could have provided or paid for the objectionable services itself through other programs established by a duly enacted law. Or, at a minimum, it could have created a broader exemption for religious employers, such as those found in numerous state laws throughout the country and in other federal laws. T he Government therefore cannot possibly demonstrate that requiring Plaintiffs to violate their consciences is the least restrictive means of furthering its interest.
124. The U.S. Government Mandate, moreover, would simultaneously undermine both religious freedom—a fundamental right enshrined in the U.S. Constitution—and access to the wide variety of social and educational services that Plaintiffs provide. As President Obama acknowledged in his announcement of February 10, 2012, religious organizations like Plaintiffs do “more good for a community than a government program ever could.” The U.S. Government Mandate, however, puts these good works in jeopardy.
125. That is unconscionable. Accordingly, Plaintiffs seek a declaration that the U.S. Government Mandate cannot lawfully be applied to Plaintiffs, an injunction barring its enforcement, and an order vacating the Mandate. IV. THE U.S. GOVERNMENT MANDATE THREATENS PLAINTIFFS WITH
IMMINENT INJURY THAT SHOULD BE REMEDIED BY A COURT 126. The U.S. Government Mandate is causing serious, ongoing hardship to Plaintiffs that merits relief now. 127. On June 28, 2013, Defendants finalized the U.S. Government mandate, including the narrow “religious employer” exemption and the so-called “accommodation” proposed in the
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NPRM. By the terms of the Final Rule, Plaintiffs must comply with the Mandate for their plan years beginning on or after January 1, 2014.
128. Defendants have given no indication that they will not enforce the essential provisions of the Mandate that impose a substantial burden on Plaintiffs’ rights. Consequently, absent the relief sought herein, Plaintiffs will be required to provide, pay for, and/or facilitate access to contraception, abortion-inducing products, sterilization, and related education and counseling, in violation of their sincerely held religious beliefs.
129. The U.S. Government Mandate is also harming Plaintiffs in other ways. 130. Health plans do not take shape overnight. A number of analyses, negotiations, and decisions must occur each year before Plaintiffs can offer a health benefits package to their employees. For example, an employer using an outside insurance issuer must work with actuaries to evaluate its funding reserves, and then negotiate with the insurer to determine the cost of the products and services it wants to offer its employees. A n employer that is self-insured, after consulting with its actuaries, must similarly negotiate with its third-party administrator (“TPA”). 131. Under normal circumstances, Plaintiffs must begin the process of determining their health care package for a plan year at least several months before the plan year begins. The multiple levels of uncertainty surrounding the U.S. Government Mandate make this already lengthy process even more complex. 132. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they may be subject to government fines and penalties. The hardship placed on Plaintiffs by such fines and penalties would be immense, given that most of their income comes from grants, fundraisers, and the free-will offerings of the Catholic people. F urther, Plaintiffs require significant time to budget for such additional expenses.
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133.The U.S. Government Mandate and its uncertain legality, moreover, undermine Plaintiffs’ ability to hire and retain employees, thus placing them at a competitive disadvantage in the labor market relative to organizations that do not have a religious objection to the Mandate.
134. Plaintiffs therefore need judicial relief now in order to prevent the serious, ongoing harm that the U.S. Government Mandate is already imposing on them. V. CAUSES OF ACTION
COUNT I Substantial Burden on Religious Exercise
in Violation of RFRA 135. Plaintiffs repeat and re-allege each of the foregoing allegations in this Complaint. 136. RFRA prohibits the Government from substantially burdening an entity’s exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden furthers a compelling governmental interest and is the least restrictive means of furthering that interest. 137. RFRA protects organizations as well as individuals from Government-imposed substantial burdens on religious exercise. 138. RFRA applies to all federal law and the implementation of that law by any branch, department, agency, instrumentality, or official of the United States. 139. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs. 140. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion.
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141. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
142. Requiring Plaintiffs to comply with the U.S. Government Mandate is not the least restrictive means of furthering a compelling governmental interest.
143. By enacting and threatening to enforce the U.S. Government Mandate against Plaintiffs, Defendants have violated RFRA.
144. Plaintiffs have no adequate remedy at law. 145. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT II Substantial Burden on Religious Exercise in Violation of
the Free Exercise Clause of the First Amendment 146. Plaintiffs repeat and re-allege each of the foregoing allegations in this Complaint. 147. The Free Exercise Clause of the First Amendment prohibits the Government from substantially burdening an entity’s exercise of religion. 148. The Free Exercise Clause protects organizations as well as individuals from Government-imposed burdens on religious exercise. 149. The U.S. Government Mandate requires Plaintiffs to provide, pay for, and/or facilitate access to abortion-inducing products, contraception, sterilization procedures, and related counseling, in a manner that is directly contrary to their religious beliefs. 150. The U.S. Government Mandate substantially burdens Plaintiffs’ exercise of religion. 151. The U.S. Government Mandate is not a neutral law of general applicability, because it is riddled with exemptions for which there is not a consistent, legally defensible basis. It offers multiple exemptions from its requirement that employer-based health plans include or
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facilitate access to abortion-inducing products, sterilization, contraception, and related education and counseling.
152. The U.S. Government Mandate is not a neutral law of general applicability because it was passed with discriminatory intent.
153. The U.S. Government Mandate implicates constitutional rights in addition to the right to free exercise of religion, including, for example, the rights to free speech, free association, and freedom from excessive government entanglement with religion.
154. The Government has no compelling governmental interest to require Plaintiffs to comply with the U.S. Government Mandate.
155. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest.
156. By enacting and threatening to enforce the U.S. Government Mandate, the Government has burdened Plaintiffs’ religious exercise in violation of the Free Exercise Clause of the First Amendment.
157. Plaintiffs have no adequate remedy at law. 158. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT III Compelled Speech in Violation of the Free Speech Clause of the First Amendment 159. Plaintiffs repeat and re-allege each of the foregoing allegations in this Complaint. 160. The First Amendment protects against the compelled affirmation of any religious or ideological proposition that the speaker finds unacceptable. 161. The First Amendment protects organizations as well as individuals against compelled speech.
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162. Expenditures are a form of speech protected by the First Amendment. 163. The First Amendment speakers from being forced to support a viewpoint that conflicts with their religious beliefs. 164. The U.S. Government Mandate would compel Plaintiffs to provide health care plans to their employees that include or facilitate access to products and services that violate their religious beliefs. 165. The U.S. Government Mandate would compel Plaintiffs to subsidize, promote, and facilitate education and counseling services regarding these objectionable products and services. 166. The U.S. Government Mandate would compel Plaintiffs to issue a certification of its beliefs that, in turn, would result in the provision of access to objectionable products and services to Plaintiffs’ employees. 167. By imposing the U.S. Government Mandate, Defendants are compelling Plaintiffs to publicly subsidize or facilitate the activity and speech of private entities that are contrary to their religious beliefs, and compelling Plaintiffs to engage in speech that will result in the provision of access to objectionable products and services to Plaintiffs’ employees. 168. The U.S. Government Mandate is viewpoint-discriminatory and subject to strict scrutiny. 169. The U.S. Government Mandate furthers no compelling governmental interest. 170. The U.S. Government Mandate is not narrowly tailored to further a compelling governmental interest. 171. Plaintiffs have no adequate remedy at law.
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172. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT IV Prohibition of Speech in Violation of the First Amendment 173. Plaintiffs repeat and re-allege each of the foregoing allegations in this Complaint. 174. The First Amendment protects the freedom of speech, including the right of religious groups to speak out to persuade others to refrain from engaging in conduct that may be considered immoral. 175. The Mandate violates the First Amendment freedom of speech by imposing a gag order that prohibits Plaintiffs from speaking out in any way that might “influence,” “directly or indirectly,” the decision of a third-party administrator to provide or procure contraceptive products and services to Plaintiffs’ employees. 176. Plaintiffs have no adequate remedy at law. 177. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT V Official “Church” Favoritism and Excessive Entanglement with Religion
in Violation of the Establishment Clause of the First Amendment 178. Plaintiffs repeat and re-allege each of the foregoing allegations in this Complaint. 179. The Establishment Clause of the First Amendment prohibits the Government from adopting an official definition of a “religious employer” that favors some religious groups while excluding others. 180. The Establishment Clause also prohibits the Government from becoming excessively entangled in the affairs of religious groups by scrutinizing their beliefs, practices, and organizational features to determine whether they meet the Government’s favored definition.
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181. The “religious employer” exemption violates the Establishment Clause in two ways.
182. First, it favors some religious groups over others by creating an official definition of “religious employers.” Religious groups that meet the Government’s official definition receive favorable treatment in the form of an exemption from the Mandate, while other religious groups do not.
183. Second, even if it were permissible for the Government to favor some religious groups over others, the “religious employer” exemption would still violate the Establishment Clause because it requires the Government to determine whether groups qualify as “religious employers” based on i ntrusive judgments about their beliefs, practices, and organizational features. The exemption turns on an intrusive 14-factor test to determine whether a group meets the requirements of section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. T hese 14 f actors probe into matters such as whether a religious group has “a distinct religious history” or “a recognized creed and form of worship.” But it is not the Government’s place to determine whether a group’s religious history is “distinct,” or whether the group’s “creed and form of worship” are “recognized.” By directing the Government to partake of such inquiries, the “religious employer” exemption runs afoul of the Establishment Clause prohibition on excessive entanglement with religion.
184. Plaintiffs have no adequate remedy at law. 185. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VI Interference in Matters of Internal Church Governance in Violation of
the Religion Clauses of the First Amendment 186. Plaintiffs repeat and re-allege each of the foregoing allegations in this Complaint.
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187. The Free Exercise Clause and Establishment Clause and the Religious Freedom Restoration Act protect the freedom of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.
188. Under these Clauses, the Government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, ministers, or doctrine.
189. Under these Clauses, the Government may not interfere with a religious organization’s internal decision if that interference would affect the faith and mission of the organization itself.
190. Plaintiffs are religious organizations affiliated with the Roman Catholic Church. 191. The Catholic Church views abortion, sterilization, and contraception as intrinsically immoral, and prohibits Catholic organizations from condoning or facilitating those practices. 192. Plaintiffs have abided and must continue to abide by the decision of the Catholic Church on these issues. 193. The Government may not interfere with or otherwise question the final decision of the Catholic Church that its religious organizations must abide by these views. 194. Plaintiffs have therefore made the internal decision that the health plans they offer to their employees may not cover, subsidize, or facilitate access to abortion, sterilization, or contraception. 195. The Diocese has further made the internal decision that Catholic Charities (as an adopting employer) may offer their employees health-insurance coverage through the Diocese’s
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plan, which allows the Diocese to ensure that this quintessentially Catholic organization does not offer access to services that are contrary to Catholic teaching.
196. The U.S. Government Mandate interferes with Plaintiffs’ internal decisions concerning their structure and mission by requiring them to facilitate practices that directly conflict with Catholic beliefs.
197. The U.S. Government Mandate’s interference with Plaintiffs’ internal decisions affects their faith and mission by requiring them to facilitate practices that directly conflict with their religious beliefs.
198. Because the U.S. Government Mandate interferes with the internal decisionmaking of Plaintiffs in a manner that affects Plaintiffs’ faith and mission, it v iolates the Establishment Clause and the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act.
199. Plaintiffs have no adequate remedy at law. 200. Defendants are imposing an immediate and ongoing harm on Plaintiffs that warrants relief.
COUNT VII Illegal Action in Violation of the APA 201. Plaintiffs repeat and re-allege each of the foregoing allegations in this Complaint. 202. The APA requires that all Government agency action, findings, and conclusions be “in accordance with law.” 203. The U.S. Government Mandate, its exemption for “religious employers,” and its so-called “accommodation” for “eligible” religious organizations are illegal and therefore in violation of the APA.
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204. The Weldon Amendment states that “[n]one of the funds made available in this Act [to the Department of Labor and the Department of Health and Human Services] may be made available to a Federal agency or program . . . i f such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, div. F, tit. V, § 507( d)(1), 125 Stat. 786, 1111 (2011).
205. The Affordable Care Act contains no clear expression of an affirmative intention of Congress that employers with religiously motivated objections to the provision of health plans that include access to abortion-inducing products, sterilization, contraception, or related education and counseling should be required to provide such plans.
206. The U.S. Government Mandate requires employer-based health plans to provide access to abortion-inducing products, contraception, sterilization, and related education. It does not permit employers or issuers to determine whether the plan covers abortion, as the Act requires. By issuing the U.S. Government Mandate, Defendants have exceeded their authority, and ignored the direction of Congress.
207. The U.S. Government Mandate violates RFRA. 208. The U.S. Government Mandate violates the First Amendment. 209. The U.S. Government Mandate is not in accordance with law and thus violates 5 U.S.C. § 706(2)(A). 210. Plaintiffs have no adequate or available administrative remedy, or, in the alternative, any effort to obtain an administrative remedy would be futile. 211. Plaintiffs have no adequate remedy at law.
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212. Defendants’ failure to act in accordance with law imposes an immediate and ongoing harm on Plaintiffs that warrants relief.
WHEREFORE, Plaintiffs respectfully pray that this Court: 1. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under RFRA; 2. Enter a declaratory judgment that the U.S. Government Mandate violates
Plaintiffs’ rights under the First Amendment; 3. Enter a declaratory judgment that the U.S. Government Mandate was
promulgated in violation of the APA; 4. Enter an injunction prohibiting the Defendants from enforcing the U.S.
Government Mandate against Plaintiffs; 5. Enter an order vacating the U.S. Government Mandate; 6. Award Plaintiffs attorneys’ and expert fees under 42 U.S.C. § 1988; and 7. Award all other relief as the Court may deem just and proper.
By: /s/ Randal G. Cashiola Randal G. Cashiola Texas State Bar No. 03966802 rcashiola@cashiolalaw.com CASHIOLA & BEAN 2090 Broadway, Suite A Beaumont, Texas 77701 (409) 813-1443 telephone (409) 813-1467 facsimile Attorney-in-Charge for Plaintiffs
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

CATHOLIC DIOCESE OF BEAUMONT; )

CATHOLIC

CHARITIES

OF )

SOUTHEAST TEXAS, INC.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S. )

Department of Health and Human )

Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S. )

Department of Labor, JACOB J. LEW, in )

his official capacity as Secretary of the )

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

DEPARTMENT OF HEALTH AND )

HUMAN

SERVICES;

U.S. )

DEPARTMENT OF LABOR; and U.S. )

DEPARTMENT OF TREASURY,

)

)

Defendants.

Civil Action No. 1:13-cv-00709-RC DEMAND FOR JURY TRIAL

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION AND BRIEF IN SUPPORT OF
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs Catholic Diocese of Beaumont (“Diocese”) and Catholic Charities of Southeast Texas, Inc. (“Catholic Charities”) respectfully move this Court for entry of an Order prohibiting Defendants, during the pendency of this litigation, from enforcing the U.S. Government Mandate against the Plaintiffs.
Plaintiffs need immediate and preliminary injunctive relief because they will be subject to the Mandate beginning on January 1, 2014, when their new plan year begins for their employee group health plan. Accordingly, the Diocese and Catholic Charities need a decision on their

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request for injunctive relief before January 1, 20 14. A s set forth more fully in below: (1) the Plaintiffs are substantially likely to succeed on the merits of its claims; (2) the Plaintiffs face a substantial threat of irreparable injury if the injunction is not issued, (3) the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) granting the injunction will not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir.1987); Canal Author. v. Callaway, 489 F.2d 567, 572 (5th Cir.1974) (en banc ).
Plaintiffs are willing to post a bond in the amount the court deems appropriate, if the Court deems necessary.
For the reasons described herein, Plaintiffs request that a preliminary injunction follow the issuance of the temporary restraining order prohibiting Defendants, during the pendency of this litigation, from enforcing the U.S. Government Mandate against the Diocese and Catholic Charities.
INTRODUCTION This very month, in granting an injunction for the Diocese of Pittsburg, Catholic Charities of Pittsburg and others on virtually identical grounds asserted by Plaintiffs here, a Pennsylvania federal court noted that the government’s legal strategy in these Mandate cases is to trivialize Catholics’ sincerely-held beliefs:
Despite [conceding plaintiffs’ beliefs are sincerely-held], the Government trivializes these sincerely-held beliefs of Plaintiffs throughout its Brief in Opposition, to wit, the “accommodation”: (1) “requires virtually nothing of Plaintiffs”; (2) “certainly does not require Plaintiffs to modify their behavior in any meaningful way”; (3) is “no more than a de minimis burden”; (4) requires Plaintiffs to “do next to nothing”; and (5) Plaintiffs “need only fulfill the self- certification requirement and provide the completed self-certification to their issuers and TPAs.” Zubik v. Sebelius, 13-CV-1459, 2013 WL 6118696, at *31 (W.D. Pa. Nov. 21, 2013), attached at Supp. Appx. at 63-64 (citations omitted).
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As the Pennsylvania court noted, the government myopically focuses on the cost-free nature of the contraceptive services and the ease by which a form can be signed, while ignoring “the incalculable cost of the loss of [Plaintiffs’] rights to freely exercise their religion.” Id. As shown in this combined motion and brief, the government’s short-sighted rhetoric does a disservice not only to Plaintiffs’ sincerely held beliefs, but to this country’s jurisprudence on religious freedom.
Plaintiffs, as part of the Roman Catholic Church, believe that life begins at conception and that artificial interference with life and conception is immoral. Accordingly, Plaintiffs believe that they may not provide, pay for, and/or facilitate access to abortion, sterilization, or artificial contraception. The Government has promulgated regulations that coerce Plaintiffs to violate this sincerely held religious belief by requiring them, under threat of punitive fines and other negative consequences, to facilitate access to abortion-inducing products, artificial contraception, sterilization procedures, and related counseling. See 45 C.F.R. § 147.130(a)(1)(iv) (“Mandate”). Despite repeated pleas from the religious community, the Mandate narrowly defines “religious employers” as “houses of worship and religious orders,” excluding Catholic charitable, health, elder care, childcare, and other ministries, including Plaintiffs Catholic Charities.
More specifically, the Mandate divides the Catholic Church into two wings: (1) a “religious” wing limited to “houses of worship and religious orders” that provide religious services; and (2) a “charitable” wing that provides what the Government views as secular services. But this artificial distinction ignores the reality that many entities in the Catholic Church engage in charity as an exercise of religion. By excluding Catholic charitable
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organizations from the category of exempt “religious employers,” the Mandate forces a substantial wing of the Church to act in contravention of its sincerely held religious beliefs.
The Government claims that its recent revisions to the Mandate address the concerns of religious organizations. They most emphatically do not. Indeed, the Government knew these revisions would not resolve Plaintiffs’ concerns, because Plaintiffs and other religious organizations repeatedly informed the Government that the now codified proposals were inadequate. Like its predecessors, this iteration of the Mandate narrowly defines “religious employers” so as to exclude Catholic charitable and educational organizations, including Plaintiffs Catholic Charities.
The Mandate’s so-called “accommodation” for “non-religious employers,” moreover, is illusory because it addresses fundamental religious objections through accounting gimmicks. As a result, Plaintiffs remain the vehicle through which the objectionable products and services are delivered to their employees. Indeed, the Final Rule is significantly worse than the Government’s original rule because it eliminates an important prior protection that allowed “religious employers” (i.e., the Diocese) to shield its affiliated religious organization (i.e., Catholic Charities) from operation of the Mandate by including such organizations in the insurance plan of the “religious employer.” Now, although the Diocese is exempt from the Mandate, the ministries that share its plans—through Catholic Charities—are not exempt. The Final Rule, therefore, actually increases the number of religious organizations, subject to the Mandate.
This oppressive Mandate is irreconcilable with the Religious Freedom Restoration Act (“RFRA”), the First Amendment, and other federal law. First, under RFRA, the Government may not impose a substantial burden on Plaintiffs’ exercise of religion without showing that it is
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the least restrictive means to advance a compelling governmental interest. See 42 U.S.C.§ 2000bb-1(a), (b). The Government has excluded tens of millions from the Mandate through a series of exemptions; thus, it cannot show a compelling interest in forcing the Mandate on the much smaller band of employers that seek an exemption on the basis of religious hardship. Nor is the Mandate narrowly tailored because the Government could easily advance its goals without using Plaintiffs to deliver objectionable products and services to Plaintiffs’ employees.
Second, the Mandate violates the First Amendment’s Free Speech and Religion Clauses. It infringes on Plaintiffs’ freedom of speech by requiring them to facilitate “counseling” in favor of abortion, contraception, and sterilization. It violates the Free Exercise Clause by targeting Plaintiffs’ religious practices, offering a multitude of exemptions to other employers for nonreligious reasons, but denying any exemption that would relieve Plaintiffs’ religious hardship. It violates the Establishment Clause by creating a state-favored category of “religious employers” based on intrusive judgments about their religious practices, beliefs, and organizational structure. And, it violates the First Amendment’s protection of internal church governance by splitting the Catholic Church in two and denying “religious employer” status to those entities carrying out the Church’s religious mission through charitable, health care, childcare, and education ministries.
In sum, there is no legal justification for the Government’s gratuitous intrusion on Plaintiffs’ religious freedom. Plaintiffs urgently need injunctive relief now, without which they will be forced to decide between violating their religious beliefs or violating the law—the epitome of irreparable harm. By contrast, a preliminary injunction will impose no substantial harm on the Government, which has refrained from mandating contraceptive coverage for more than two centuries. Accordingly, Plaintiffs respectfully request a preliminary injunction to preserve the status quo while this Court adjudicates this vital question of religious liberty.
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BACKGROUND
I. STATUTORY AND REGULATORY BACKGROUND The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119
(2010) (the “Act”) requires employer “group health plan[s]” to include insurance coverage for women’s “preventive care and screenings,” 42 U.S.C. § 300gg-13(a)(4), which has been defined by the Department of Health and Human Services (“HHS”) to include “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Women’s Preventive Services Guidelines (Ex. A). FDA-approved contraceptives include the morning-after pill (Plan B) and Ulipristal (HRP 2000 or Ella), which can induce an abortion. Failure to provide these services exposes Plaintiffs to fines of $100/day per affected beneficiary. 26 U.S.C. § 4980D (b). Dropping health plans subjects Plaintiffs to substantial annual penalties of $2,000 per employee over 30 employees. Id. § 4980H(a), (c)(1).
From its inception, the Act exempted health plans covering millions of people. See WhiteHouse.Gov, “The Affordable Care Act Increases Choice and Saving Money for Small Businesses” (Ex. B) at 1 (“exempt[ing] 96[%] of all firms . . . or 5.8 million out of 6 million total firms”); Id. §§ 4980D(d); 4980H(a). Plans that have not changed certain benefits or contributions are “grandfathered” and exempt. See 42 U.S.C. § 18011; 26 C.F.R. § 54.9815 1251T(g)(1)(v). By one estimate, the Act exempts “over 190 million health plan participants and beneficiaries.” Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298 (D. Colo. 2012).
From the start, however, the Government refused to exempt religious entities other than those satisfying its narrow definition of “religious employer”—intended to “accommodate” only
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“the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). Despite intense criticism, the Government finalized the narrow definition “without change.” 77 Fed. Reg. 8,725, 8,727–28, 8,730 (Feb. 15, 2012).
Five weeks later, under increased pressure, the Government issued an Advanced Notice of Proposed Rulemaking (“ANPRM”), suggesting accommodations to religious objections, yet reaffirming that the “religious employer” exemption would not change. 77 Fed. Reg. 16,501, 16,501–08 (Mar. 21, 2012). Religious entities explained in detail why proposals in the ANPRM would not relieve the burden on their religious freedom. See, e.g., Comments of U.S. Conf. of Catholic Bishops (May 15, 2012) (Ex. C) at 3 (“[The ANPRM] create[s] an appearance of moderation and compromise, [but does] not actually offer any change in the Administration’s earlier stated positions on mandated contraceptive coverage.”). Yet, on February 1, 2013, the Government issued a Notice of Proposed Rulemaking (“NPRM”) adopting the ANPRM’s proposals. T he NPRM was opposed in over 400,000 comments, largely reiterating previous objections. See, e.g., Comments of U.S. Conf. of Catholic Bishops (Mar. 20, 2013) (Ex. D) at 3 (noting that religious entities are still required “to fund or otherwise facilitate the morally objectionable coverage”).
Ignoring opposition, the Final Rule adopted substantially all of the NPRM’s proposals without significant change. See 78 Fed. Reg. 39,870, 39,899 (July 2, 2013) (“Final Rule”). Thus, the Mandate will be in effect for plan years beginning on or after January 1, 2014. The Final Rule’s three changes to the Mandate fail to relieve the unlawful burdens imposed on Plaintiffs, and one change significantly increases the number of religious organizations subject to the Mandate.
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First, the Final Rule made a cosmetic change to the original “religious employer” exemption by replacing the first three prongs of the “religious employer” definition with “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, a s amended.” 78 Fed. Reg. 39,870, 39,896 (July 2, 2013) (codified at 45 C.F.R. § 147.131(a)). The Government admits that this change does “not expand the universe of employer plans that qualify for the exemption beyond that which was intended in the 2012 final regulations,” but “restrict[s] the exemption primarily to group health plans established or maintained by churches, synagogues, mosques, and other houses of worship, and religious orders.” 78 Fed. Reg. 8,456, 8,461 (Feb. 6, 2013).
Thus, the Final Rule mirrors the original definition’s focus on “the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). Religious entities with broader missions are still not considered “religious employers.”
Second, the Final Rule increases the burden imposed on religious entities by expanding the number that are subject to the Mandate. Under the original “religious employer” definition, if a nonexempt religious entity provided health coverage to its employees through a plan offered by a separate but affiliated entity that was exempt, “then neither the [affiliated organization] nor the [nonexempt entity would be] required to offer contraceptive coverage to its employees.” 77 Fed. Reg. at 16,502. For example, Plaintiff Diocese operates a plan that covers its own employees as well as those of Plaintiff Catholic Charities. Under the original religious employer definition, if the Diocese was an exempt “religious employer,” then Catholic Charities received the benefit of that exemption. But the Final Rule eliminates that protection, providing instead that “each employer [must] independently meet the definition of religious employer . . . in order
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to avail itself of the exemption.” 78 Fed. Reg. at 39,886; see also 78 Fed. Reg. at 8,467 (NPRM). As a result, the Diocese is foregoing cost savings and premium increases to maintain the grandfathered status of one of its healthcare plans that protects its non-exempt affiliated entities from the Mandate.1
Third, the Final Rule establishes an illusory “accommodation” for nonexempt objecting religious entities that qualify as “eligible organizations.” To qualify as an “eligible organization,” a religious entity must (1) “oppose[] providing coverage for some or all of [the] contraceptive services”; (2) be organized and operate[] as a non-profit entity”; (3) “hold[] itself out as a religious organization”; (4) self-certify that it meets the first three criteria; and (5) provide either to its insurance company or, if self-insured, to its third party administrator. 26 C.F.R. §54.9815-2713A(a), (b). An eligible organization’s self-certification requires the insurance issuer or third party administrator to provide “payments for contraceptive services” for the objecting organization’s employees. See 78 Fed. Reg. at 39,895 ( codified at 26 C .F.R. § 54.9815-2713A(a)-(c)). This “accommodation” fails to relieve the burden on r eligious organizations” religious beliefs because a non-exempt religious organization’s decision to offer a group health plan still results in the provision of coverage – now in the form of “payments” – for abortion-inducing products, contraception, sterilization, and related counseling. Id. § 54.98152713A(a)-(c). P laintiffs’ provision of a group health plan triggers the provision of “free” objectionable products and services to their employees in a manner contrary to their beliefs.
In sum, the Final Rule does not address Plaintiffs’ religious objections to facilitating access to the objectionable products and services. This should not surprise the Government,
1 Other options are to (1) provide Catholic Charities employees with access to “free” objectionable products and services; or (2) expel Catholic Charities from the plan, subjecting them it to massive fines if it does not contract with an insurer that will provide the objectionable coverage. Decl. ¶ 27-40.
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which was repeatedly notified well before it issued the Final Rule that its “accommodation” would not relieve the burden on Plaintiffs’ religious beliefs. Despite representations that it was making a good-faith effort to address those religious objections—including before this very Court in a previously filed case by some of the same Plaintiffs2—the Government issued the Final Rule that it knew would do no such thing. Plaintiffs are still coerced, under threat of crippling fines and other negative consequences, into being the vehicle to deliver contraception, abortion-inducing products, sterilization, and related counseling to their employees, contrary to their sincerely held religious beliefs. I. PLAINTIFF’S BACKGROUND
Plaintiffs are part of the Catholic Church and, as such, sincerely believe that they have a religious duty to provide educational, spiritual, health, and charitable services to individuals of all faiths. Just as sincerely, they believe that life begins at the moment of conception, and that “preventive” services covered by the Mandate that interfere with life and conception are immoral. See Guillory Decl. ¶¶ 12-14; Fernandez Decl. ¶ 4-5, 10-11, 13-15. Accordingly, Plaintiffs believe that they may not provide, pay for, and/or facilitate access to contraception, sterilization, abortion, or related counseling, including by contracting with a third party that will, as a result, provide or procure the objectionable products and services for Plaintiffs’ employees. See Guillory Decl. ¶¶ 15-26; Fernandez Decl. ¶¶ 16-24.
2 Catholic Diocese of Nashville v. Sebelius, No. 3-12-0934, 2012 WL 5879796, at *4 (M.D. Tenn. Nov. 21, 2012) (dismissing action for lack of standing because “Defendants announced their intention to develop alternative means of providing contraceptive services free of charge to employees of non-exempt, nongrandfathered organizations with religious objections to contraceptive coverage” and “published their plan to amend the Rules to address the exact concerns Plaintiffs raise in this action”; noting that “the Government’s actions are entitled to a good faith presumption”).
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It is a cruel irony that the Mandate—promulgated under a statute that was intended, at least in part, to help the poor and needy—imposes on Plaintiffs the impossible choice of either abandoning their religious principles or else violating the law and facing crippling penalties. For example, Catholic Charities provides critical services to the most vulnerable in the community, may be forced to limit these critical services if it were to incur the Mandate’s draconian fines. See Guillory Decl. ¶¶ 10, 20, 28-29; Fernandez Decl. ¶¶ 5-6, 18-20. That is money that could have otherwise supported those entities’ charitable programs and services.
ARGUMENT A court should grant a temporary restraining order and preliminary injunction if, after considering four factors, it determines that the balance of equities favors such relief. See In re Eagle-Picher Indus., Inc., 963 F.2d 855, 858 (6th Cir. 1992). The four factors courts should consider are:
(1) the plaintiff’s likelihood of success on t he merits; (2) whether the plaintiff may suffer irreparable harm absent the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of an injunction upon the public interest. Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001); Int’l Res. v. N.Y. Life Ins. Co., 950 F.2d 294, 302 ( 6th Cir. 1991); Planned Parenthood of Greater Memphis Region v. Dreyzehner, 853 F. Supp. 2d 724, 732 (M.D. Tenn. Feb. 17, 2012). These factors do not all need to be met and instead merely “guide the discretion of the court.” Eagle-Picher, 963 F.2d at 859; Dreyzehner, 853 F. Supp. 2d at 734. In other words, “they are not meant to be rigid and unbending requirements,” because “‘[a] fixed legal standard is not the essence of equity jurisprudence.’” Eagle-Picher, 963 F.2d at 859 (citation omitted).
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Here, a preliminary injunction is warranted because Plaintiffs meet all four factors for such interim relief. I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
To satisfy the “likelihood of success” factor, “it is ordinarily sufficient if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.” Dreyzehner, 853 F. Supp. 2d at 734 (quoting Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997)).
Applying this standard, Plaintiffs are likely to succeed on the merits of all of their claims, including that the Mandate: (1) violates RFRA because it substantially burdens Plaintiffs’ exercise of religion without being the least restrictive means to achieve a compelling government interest (Compl. Count I, ¶¶ 135-145); (2) violates the Free Exercise Clause of the First Amendment because it is not a neutral and generally applicable law (Compl. Count II, ¶¶ 146158); (3) violates the First Amendment prohibition on compelled speech because it compels Plaintiffs to support and/or facilitate “counseling” that contradicts their religious viewpoint (Compl. Count III, ¶¶ 159-172); (4) violates the Establishment Clause of the First Amendment because it establishes an official category of Government-favored “religious employers,” which excludes some religious groups based on intrusive judgments regarding their beliefs, practices, and organizational structure (Compl. Count IV, ¶¶ 173-177); and (5) violates both Religion Clauses of the First Amendment because it interferes with Plaintiffs’ rights of internal church governance (Compl. Count V, ¶¶ 178-185).
A. The Mandate Violates RFRA Under RFRA, the Federal Government is prohibited from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,”
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unless it “demonstrates that application of the burden to the person is (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a), (b); Gonzales v. O Centro Espírita Beneficente União Do Vegetal, 546 U.S. 418, 423 (2006). Thus, once Plaintiffs demonstrate a substantial burden, the Government bears the burden of proving that application of the Mandate to Plaintiffs furthers “a compelling governmental interest” and is “the least restrictive means of furthering that compelling governmental interest.” See 42 U.S.C. § 2000bb-1(b); O Centro, 546 U.S. at 423, 428. Here, the Government cannot make such a showing.
RFRA was enacted to prevent the type of regulation codified in the Mandate. Congress passed RFRA “to restore [and codify] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and . . . guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb; O Centro, 546 U.S. at 430-31. Nadine Strossen, then-President of the American Civil Liberties Union, testified in support of RFRA’s enactment to safeguard “such familiar practices as . . . permitting religiously sponsored hospitals to decline to provide abortion or contraception services.” The Religious Freedom Restoration Act: Hearing on S. 2969 Before the S. Comm. on the Judiciary, 102d Cong. 192 (1992); see also 139 Cong. Rec. 9,685 (1993) (statement of Rep. S. Hoyer) (noting that, post-Smith, a “Catholic teaching hospital lost its accreditation for refusing to provide abortion services” and that RFRA would “correct th[is] injustice[]”); id. at 4,660 (statement of Rep. Green) (noting that RFRA prevents the Government from “enact[ing] laws that force a person to participate in actions that violate their religious beliefs”).
Here, the Mandate cannot possibly survive scrutiny under RFRA because: (1) it imposes a “substantial burden” on Plaintiffs’ free exercise of religion; (2) the Government has no
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compelling interest in imposing this burden; and (3) it is not the least restrictive means to achieve
the Government’s interest. It is not surprising, then, that the only court to have reached the
merits of similar RFRA claims brought by Catholic Dioceses and affiliated organizations
concluded that plaintiffs have a likelihood of prevailing on their RFRA claim and granted
preliminary relief enjoining the Government from enforcing the Mandate. See Zubik, et al. v.
Sebelius, et al., No. 2:13-cv-01459 (W.D. Pa. Nov. 21, 2013) and Persico, et al. v. Sebelius, et
al., No. 1:13-cv-00303 (W.D. Pa. Nov. 21, 2013), Mem. Op. Re: Pls.’ Mot. for Exp. Prelim. Inj.
(Ex. I) (“Zubik/Persico Slip Op.”) at 4, 61, 65.3
1. The Mandate Substantially Burdens Plaintiffs’ Exercise of Religion.
Under RFRA, courts must first assess whether the challenged law imposes a
“substantial[] burden” on t he plaintiff’s “exercise of religion.” Id. This initial inquiry requires
courts to (1) identify the particular exercise of religion at issue, and (2) assess whether the law
substantially burdens that religious practice. See, e.g., Koger v. Bryan, 523 F.3d 789, 796 ( 7th
Cir. 2008) (applying this two-part test under RLUIPA, RFRA’s sister statute); see also Hobby
Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1140 (10th Cir. 2013) (en banc) (stating that the
3 Courts have also issued preliminary injunctions against the Mandate in the majority of cases brought by for-profit companies with religious owners. If anything, a preliminary injunction is even more appropriate in this case involving non-profit entities. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc); Gilardi v. HHS, No. 13-5069 (D.C. Cir. Mar. 29, 2013) (Doc. 24); Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013); Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013); Korte v.Sebelius, No. 12-3841, 2012 WL 6757353 (7th Cir. Dec. 28, 2012); O’Brien v. HHS, No. 12-3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012); Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 56087 (W.D. Pa. Apr. 19, 2013); Hartenbower v. HHS, No. 1:13cv-2253 (N.D. Ill. Apr. 18, 2013) (Doc. 16); Hall v. Sebelius, No. 13-00295 (D. Minn. Apr. 2, 2013) (Doc. 12); Bick Holdings Inc. v. HHS, No. 4:13-cv-00462 (E.D. Mo. Apr. 1, 2013) (Doc. 21); Tonn & Blank Constr., LLC v. Sebelius, No. 1:12-cv-00325 (N.D. Ind. Apr. 1, 2013) (Doc. 43); Lindsay v. HHS, No. 131210 (N.D. Ill. Mar. 20, 2013); Monaghan v. Sebelius, No. 12-15488, 2013 WL 1014026 (E.D. Mich. Mar. 14, 2013); Sioux Chief Mfg. Co. v. Sebelius, No. 13-0036 (W.D. Mo. Feb. 28, 2013) (Doc. 9); Triune Health Grp., Inc. v. HHS, No. 12-6756 (N.D. Ill. Jan. 3, 2013) (Doc. 50); Sharpe Holdings, Inc. v. HHS, No. 2:12CV-92, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012); Am. Pulverizer Co. v. HHS, No. 12-cv-3459, 2012 WL 6951316 (W.D. Mo. Dec. 20, 2012); Tyndale House Publishers, Inc. v. Sebelius, 904 F. Supp. 2d 106 (D.D.C. 2012); Legatus v. Sebelius, No. 12-12061, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012); Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012).
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court must (1) “identify the religious belief in this case,” (2) “determine whether this belief is sincere,” and (3) “turn to the question of whether the government places substantial pressure on the religious believer”). Here, the Mandate imposes a substantial burden on Plaintiffs’ religious exercise by forcing them to do what their religion forbids: facilitate access to abortion-inducing products, contraception, sterilization, and related counseling. See Zubik/Persico Slip Op. at 53.
(i) “Exercise of Religion” RFRA defines “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc5(7)(A). Because the exercise of religion has been interpreted to include a diverse array of conduct, ranging from refusing to give children a formal education, see Yoder, 406 U.S. at 21019, to eating only certain foods, see Nelson v. Miller, 570 F.3d 868, 8 78-89 (7th Cir. 2009), RFRA protects “not only belief and profession but the performance of (or abstention from) physical acts.” Emp’t Div. v. Smith, 494 U.S. 872, 877 (1990). Protected religious exercise includes any act or practice that is “rooted in the religious beliefs of the party asserting the claim or defense.” United States v. Ali, 682 F.3d 705, 710 (8th Cir. 2012) (internal quotation marks and alteration omitted). Whether an act or practice is rooted in religious belief, and thus entitled to protection, does not “turn upon a judicial perception of the particular belief or practice in question.” Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 714 (1981). Instead, courts must accept plaintiffs’ description of their beliefs and practices, regardless of whether the court, or Government, finds them “acceptable, logical, consistent, or comprehensible.” Id. at 714–15 (refusing to question plaintiff’s moral line); see also United States v. Lee, 455 U.S. 252, 257 (1982); Koger, 523 F.3d at 797 (plaintiff’s “dietary request [was] squarely within the definition
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of religious exercise”); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (rejecting efforts to dispute plaintiff’s representation that a medical test would violate his religion).
“Courts,” as the Supreme Court has put it, “are not arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716. Thus, “[r]epeatedly and in many different contexts,” the Supreme Court has “warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” Smith, 494 U.S. at 887. Instead, the judicial role is limited to “determining ‘whether the beliefs professed by [the plaintiff] are sincerely held and whether they are, in his own scheme of things, religious.’” Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984) (quoting United States v. Seeger, 380 U.S. 163, 185 ( 1965)). By necessity, this is a modest inquiry that is restrained by the need to avoid excessive entanglement in religion. See Jolly, 76 F.3d at 476. The purpose of the sincerity inquiry is simply to screen out manipulative claims based on sham beliefs that can be readily identified as such, for example, a high-school student who suddenly proclaims a religious objection to Math. Courts need not accept claims that are “so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection.” Thomas, 450 U.S. at 715.
“While it is a delicate task to evaluate religious sincerity without questioning religious verity, . . . free exercise doctrine is based upon the premise that courts are capable of distinguishing between these two questions.” Jolly, 76 F.3d at 476 (emphasis omitted). By screening claims for religious sincerity, and by allowing the Government to impose burdens that are truly necessary to serve a compelling interest, courts can apply RFRA to grant bona fide religious exemptions without “allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.” Yoder, 406 U.S. at 216. Based on this approach, the Supreme Court has repeatedly reaffirmed “the feasibility of case-by-case
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consideration of religious exemptions to generally applicable rules,” which can be “‘applied in an appropriately balanced way’ to specific claims for exemptions as they ar[i]se.” O Centro, 546 U.S. at 436 (quoting Cutter v. Wilkinson, 544 U.S. 709, 722 (2005)).
Here, there can be no doubt that Plaintiffs’ refusal to comply with the Mandate is a protected exercise of religion under RFRA. It is undisputed that Plaintiffs have a sincerely held religious belief that they may not provide, pay for, or facilitate access to abortion-inducing products, contraception, sterilization, or related counseling, including by contracting with an insurance company or third party administrator that will, as a result, provide or procure the objectionable products and services for Plaintiffs’ employees. See Guillory Decl. ¶¶ 12-13; Fernandez Decl. ¶¶ 16-17. While courts are bound to accept Plaintiffs’ description of their beliefs without resort to any independent religious authority, here the sincerity of Plaintiffs’ beliefs is buttressed by repeated confirmations from the U.S. Conference of Catholic Bishops. See supra at 5. These authoritative statements of Catholic belief make it unmistakably clear that Plaintiffs’ objection to the Mandate is “not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living.” Yoder, 406 U.S. at 216.
Nor do Plaintiffs seek to impose their religious beliefs on anyone else, or “to require the government itself to conduct its affairs in conformance with [their] religion.” Kaemmerling v. Lappin, 553 F.3d 669, 680 (D.C. Cir. 2008). On the contrary, Plaintiffs recognize that notwithstanding their religious objections, they have no legal right to prevent individuals from procuring the objectionable products and services from the Government or anywhere else.
Plaintiffs simply invoke RFRA to enforce the law that the Government may not force them, in their own conduct, to take actions that violate their religious conscience. In particular,
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the Government may not require Plaintiffs to provide, pay for, and/or facilitate access to abortion- inducing products, contraception, sterilization, and related counseling. Nor can the Government force Plaintiffs to contract with a third party that will, as a result, provide or procure the objectionable products and services for Plaintiffs’ employees. By imposing these requirements, the Mandate is a straightforward effort that “forces [Plaintiffs] to engage in conduct that their religion forbids.” Henderson v. Kennedy, 253 F.3d 12, 16 (D.C. Cir. 2001).
It is no answer to claim that Plaintiffs, unlike the Hobby Lobby litigants and other forprofit corporations, may be eligible for the Government’s so-called “accommodation.” For purposes of the RFRA analysis, what matters is whether the Government is coercing entities to take actions that violate their sincerely held religious beliefs. Hobby Lobby, 723 F.3d at 1137 (“Our only task is to determine whether the claimant’s belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief.”). The fact is that the “accommodation” compels Plaintiffs to contract with an insurance issuer or third party administrator that will, as a result of that contract, provide or procure the objectionable products and services for Plaintiffs’ employees. Indeed, the insurance issuer or third party administrator’s obligation exists only so long as Plaintiffs’ employees remain on Plaintiffs’ insurance plan.4
As Plaintiffs have explained to the Government, they believe their involvement in this scheme would constitute impermissible facilitation of access to the objectionable products and services. See Guillory Decl. ¶¶ 15-26; Fernandez Decl. ¶¶ 16-24. See also Zubik/Persico Slip Op. at 47-49 (“[T]he ‘accommodation’ requires [plaintiffs] to shift the responsibility of
4 See 29 C.F.R. § 2590.715-2713A(d) (for self-insured employers, the third party administrator “will provide or arrange separate payments for contraceptive services . . . for so long as [employees] are enrolled in [their] group health plan”); 45 C.F.R. § 147.131(c)(2)(i)(B) (for employers that offer insured plans, the insurance issuer must “[p]rovide separate payments for any contraceptive services . . . for plan participants and beneficiaries for so long as they remain enrolled in the plan”).
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purchasing insurance and providing contraceptive products, services, and counseling, onto a secular source. The Court concludes that Plaintiffs have 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 s till substantially burdens their sincerely-held religious beliefs.”).
Because Plaintiffs object to facilitating the objectionable products and services in the manner required by the Mandate, it is irrelevant whether the Mandate also forces them to directly subsidize these products and services. For example, it makes no difference that insurance issuers are required to “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.” 26 C.F.R. § 54.98 152713A(c)(2)(ii). It also makes no difference whether payments for objectionable products and services will be “cost neutral” to Plaintiffs. 78 Fed. Reg. at 8,463. Indeed, Plaintiffs would be willing to pay increased premiums if that would allow them to avoid serving as the vehicle by which the objectionable products and services would be delivered to their employees. It is, in short, the impermissible facilitation of access to objectionable products and services that violates Plaintiffs’ sincerely held religious beliefs. And it is undisputed that the Mandate forces Plaintiffs to engage in impermissible facilitation.
In any event, it is also clear that, under the Mandate, Plaintiffs will almost certainly be required to subsidize the objectionable products and services, thereby further exacerbating the already impermissible substantial burden. This is so, even if the Government’s dubious costneutrality assumption is true. Take, for example, religious organizations that procure insurance from an insurance company, wherein the insurance company must provide or procure the objectionable products and services for the religious organization’s employees. According to the
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Government, the cost to the insurance company of doing so will be offset by, among other things, “fewer childbirths” that result from the use of contraception, sterilization, abortioninducing products, and related counseling. 78 F ed. Reg. at 8,463. But even if the Mandate succeeds in reducing “childbirths” in high enough numbers to achieve cost-neutrality, the premiums previously going toward childbirths will now be used to provide the objectionable products and services necessary to obtain that reduction in childbirths. After all, obtaining that reduction is the very basis upon which the Government’s cost-neutrality assumption is premised.
As noted, however, the Government’s cost-neutrality assumption is implausible. It depends on the questionable assumption that the cost of contraception will be offset by “lower costs from improvements in women’s health and fewer childbirths,” 78 Fed. Reg. at 8,463, which in turn depends on the assumption that the Mandate will induce large numbers of women who do not currently use contraception to begin doing so. This, of course, demonstrates why Plaintiffs so vehemently object to the Mandate: It forces them to participate in a scheme specifically designed to lure women to engage in practices contrary to Plaintiffs’ sincerely held religious beliefs. More important for present purposes, the Government has adduced no evidence that women will change their behavior in sufficient numbers to achieve cost-neutrality. The same is true for self-insured organizations, for whom, the Government asserts, third party administrators will be permitted to recoup their costs through reductions in user fees on federally facilitated health exchanges. See 78 Fed. Reg. at 39,882. These fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third party administrators. Such regulatory regimes, however, invariably fail to fully compensate regulated entities for the costs and risks incurred. As a result, few if any third party administrators are likely to participate in this regime, and those
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that do are likely to increase fees charged to self-insured organizations. Consequently, the costs of providing objectionable products and services will be passed back to religious organizations.
For these reasons, Plaintiffs’ refusal to facilitate the objectionable products and services in the manner required by the Mandate is a protected exercise of religion. Accordingly, the only relevant question for this Court under the “substantial burden” analysis is whether the Mandate puts substantial pressure on Plaintiffs to act in a manner that is contrary to this religious practice.
(ii) “Substantial Burden” Once Plaintiffs’ refusal to facilitate contraception is correctly identified as a protected religious exercise, the “substantial burden” analysis is straightforward. As the Supreme Court has made clear, a federal law “substantially burdens” an exercise of religion if it compels one “to perform acts undeniably at odds with fundamental tenets of [one’s] religious beliefs,” Yoder, 406 U.S. at 218, or “put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas, 450 U.S. at 717-18; Kaemmerling, 553 F.3d at 678 (same). In Yoder, for example, the Court found a substantial burden imposed by a $5 penalty charged to the Amish plaintiffs for refusing to follow a compulsory secondary-education law. In Thomas, the Court similarly held that the denial of unemployment compensation substantially burdened the pacifist convictions of a Jehovah’s Witness who refused to work at a factory manufacturing tank turrets. 450 U.S. at 716-18. Thus, it is clear that even the threat of withholding unemployment benefits, or a $5 penalty, exerts enough pressure on a religious believer to qualify as a “substantial burden.” Here, the Mandate imposes enough pressure on Plaintiffs to constitute a “substantial burden.” If Plaintiffs refuse to facilitate the objectionable products and services through their health plans, they will be subject to fatal fines of $100 a day per affected beneficiary. See 26
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U.S.C. § 4980D(b); see also Jennifer Staman & Jon Shimabukuro, Cong. Research Serv., RL 75700, Enforcement of the Preventive Health Care Services Requirements of the Patient Protection and Affordable Care Act (Feb. 24, 2012) at 7 (asserting that this fine applies to employers that violate the “preventive care” provision of the Act). On the other hand, if Plaintiffs seek to exit the insurance market altogether, they could be subject to an annual fine of $2,000 per full-time employee after the first thirty employees. See 26 U.S.C. § 4980H(a), (c)(1). These penalties, which would amount to millions of dollars and inflict significant competitive harms, clearly impose the type of pressure that qualifies as a substantial burden under RFRA— far outweighing, for example, the $5 penalty that was a substantial burden in Yoder. There is no doubt that the threat of such penalties compels Plaintiffs to facilitate access to abortion-inducing products, contraception, sterilization, and related counseling, which their religion forbids.
The only federal district court to address substantial burden with respect to similarly situated plaintiffs has applied binding Supreme Court precedent and Korte to hold that the Mandate “places a substantial burden on plaintiffs’ right to freely exercise their religion – specifically their right to not facilitate or initiate the provision of contraceptive products, services, or counseling.” Zubik/Persico Slip op. at 53.
First, the court applied the test from Korte that “[a]t a minimum, a substantial burden exists when the government compels a religious person to ‘perform acts undeniably at odds with fundamental tenets of [his] religious beliefs. Id. at 46 (quoting Korte v. Sebelius, Nos. 12-3841, 13-1077, 2013 WL 5960692, at *22 (7th Cir. Nov. 8, 2013)). This test analyzes the plaintiffs’ sincerely held religious beliefs as articulated, without questioning their scope:
. . . the test for substantial burden does not ask whether the claimant has correctly interpreted his religious obligations. See (sic) Lee, 455 U.S. at 257; Thomas, 450 U.S. at 715-16. Indeed that inquiry is prohibited. “[I]n this sensitive area, it is not within
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the judicial function and judicial competence to inquire whether the [adherent has] . . . correctly perceived the commands of [his] . . . faith. C ourts are not arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716. 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. Id. at 48 ( quoting Korte, 2013 WL 5960692, at *22). Thus the Court must accept Plaintiffs’ articulation of their sincerely held religious beliefs, if unchallenged by the Government, that prohibit them from signing the self-certification and participating in the accommodation process. See Guillory Decl. ¶¶ 15-26; Fernandez Decl. ¶¶ 16-24. Second, the court determined that the accommodation substantially burdens plaintiffs’ religious exercise because it requires them “to sign a form which thereby facilitates/initiates the provision of contraceptive products, services, and counseling.” Zubik/Persico Slip op. at 48; see id. at 48-53. Despite the clear legal standard, in that case the Government argued that the accommodation did not require plaintiffs to violate their religious beliefs or modify their behavior because eligible entities “merely [had to] sign a piece of paper” and inform their third party administrator (“TPA”) of the same religious objections they had prior to the issuance of the Mandate. Id. at 47. The court rejected that argument, however, because plaintiffs sincerely believe that the accommodation requires action that violates their religious beliefs. See, e.g., id. at 49 ( “The Government is asking Plaintiffs for documentation for what Plaintiffs sincerely believe is an immoral purpose, and thus, they cannot provide it.”). Although plaintiffs may be engaging in the same conduct as they did before the Mandate, the effect is significantly different: “in the past, such actions barred the provision of contraceptive products, services or counseling. Now, this type of information previously submitted to an insurer or TPA will be used to facilitate/initiate the provision of contraceptive products, services or counseling – in direct
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contravention of their religious tenets.” Id. at 48 (emphasis added). Moreover, the participation
of the TPA does not affect the analysis, nor “absolve” plaintiffs:
[T]he “accommodation” requires [plaintiffs] to shift the responsibility of purchasing insurance and providing contraceptive products, services, and counseling, onto a secular source. The Court concludes that Plaintiffs have 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 49. This is especially true because the Government acknowledged the effect of
signing the self-certification and conceded plaintiffs’ sincerely held religious beliefs. See Slip
op. at 47.
Third, the court in Zubik and Persico also rejected the Government’s attempt to
distinguish for-profit cases like Korte. For example, during oral argument in Zubik and Persico,
Defendants asserted:
unlike the for-profit cases where the regulations do actually require the employers to provide contraceptive services in their employee plans, here again it’s a third party that provides payment for contraceptive services. So the burden in these cases, in these nonprofit cases, is accommodated, really this entity is far more attenuated and unsubstantial.
Zubik and Persico Nov. 13, 2013 Oral Arg. Tr. at 52:17-24 (excerpt attached at Ex. J).
The district court disagreed, however, and “found the recent decisions pertaining to secular, for-
profit organizations to be instructive . . . .” Zubik/Persico Slip op. at 39 (emphasis added).
Finally, the court in Zubik and Persico found a substantial burden in the distinction
between exempt and accommodated entities: by dividing the Catholic Church into a “worship
arm” and “‘good works’ arm[]”, “the Government has created a substantial burden on Plaintiffs’
right to freely exercise their religious beliefs.” Id. at 53. The court questioned: “Why should
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religious employers who provide the charitable and educational services of the Catholic Church be required to facilitate/initiate the provision of contraceptive products, services, and counseling, through their health insurers or TPAs, when religious employers who operate the houses of worship do not?” Id. at 50-51. The court found the religious employer exemption “enigmatic” in the manner in which it “allows the same members of the same religion to completely adhere to their religious beliefs at times (when the ‘exemption’ applies), while other times, forces them to violate those beliefs (when the ‘accommodation’ applies).” Id. at 52 (emphasis in original). The Bishops “while wearing their ‘house-of-worship’ hats, are not in any moral peril; yet, when they wear their ‘head-of-the-“good works”-agencies’ hats, they must take affirmative actions which facilitate/initiate the provision of contraceptive products, services, and counseling in violation of their religious tenets.” Id. at 51-52. Additionally, the court was “constrained to understand” why charitable, social services agencies would not be treated the same as the Church itself with respect to the free exercise of that religion. If the contraceptive mandate creates such a substantial burden on the Dioceses’ exercise of religion so as to require the religious employer “exemption,” the contraceptive mandate obviously creates the same substantial burden on the nonprofit, religious affiliated/related organizations like Plaintiffs . . . , which implement the “good works” of the Dioceses. Id. at 52. The same applies here.
As noted and relied upon by the Western District of Pennsylvania, the Seventh and Tenth Circuits recently addressed challenges by for-profit companies against the Mandate and found that the religious exercise of for-profit entities is substantially burdened by the Mandate. The Seventh Circuit in Korte held that the Government may not force a for-profit company to contract with a third party that would provide contraceptive coverage to the company’s employees over the owners’ religious objections. That holding applies with even greater force
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here, where Plaintiffs are non-profit religious organizations. Korte makes clear that “the substantial-burden test under RFRA focuses primarily on the ‘intensity of the coercion applied by the government to act contrary to religious beliefs,’ [the inquiry] evaluates the coercive effect of the governmental pressure on the adherent’s religious practice and steers well clear of deciding religious questions.” 2013 WL 5960692, at *23 (emphasis added). Thus, the court was bound to accept the plaintiffs’ sincere religious belief that complying with the Mandate “would make them complicit in a grave moral wrong.” Id.; see also id. at *5 (“As the [plaintiffs] understand their religious obligations, providing the mandated coverage would facilitate a grave moral wrong.” (emphasis added)). In light of that sincere belief, the only question for purposes of the substantial burden analysis was whether the Government had imposed “substantial pressure” to force plaintiffs to comply with the Mandate, id. at *22 (quoting Thomas, 450 U.S. at 718), to which the court found it easy to answer. By threatening such “ruinous fines,” the Mandate “placed enormous pressure on the plaintiffs to violate their religious beliefs and conform to its regulatory mandate,” thus imposing a “direct and substantial” burden on plaintiffs’ religious exercise. Id. at *23. T he Tenth Circuit, sitting en banc, likewise recently held that a for-profit religious company was likely to succeed on the merits of a R FRA claim because the Mandate imposed a substantial burden on religious exercise by “demand[ing],” on pain of onerous penalties, “that [plaintiffs] enable access to contraceptives that [they] deem morally problematic.” Hobby Lobby, 723 F.3d at 1141.5 The same is true here.
In sum, the Mandate leaves no way for Plaintiffs to continue their operations in a manner consistent with their sincerely held religious beliefs. Instead, it forces them to either abandon
5 See also Gilardi v. HHS, No. 13-5069, 2013 WL 5854246 (D.C. Cir. Nov. 1, 2013) (affirming grant of injunction); Annex Med., Inc. v. Sebelius, No. 13-1118, 2013 U.S. App. LEXIS 2497 (8th Cir. Feb. 1, 2013) (granting injunction pending appeal); O’Brien v. HHS, No. 12-3357, 2012 U.S. App. LEXIS 26633 (8th Cir. Nov. 28, 2012) (granting injunction pending appeal).
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their beliefs by facilitating access to objectionable products and services, or violate the law and face severe penalties. See Guillory Decl. ¶¶ 15-26; Fernandez Decl. ¶¶ 16-24. Imposing this impossible dilemma constitutes a substantial burden on P laintiffs’ religious exercise. This burden is exacerbated by the fact that the Mandate will almost certainly require Plaintiffs to subsidize the objectionable products and services.
2. The Government Cannot Demonstrate that the Mandate Furthers a Compelling Government Interest.
Under RFRA, the Government must “demonstrate that the compelling interest test is satisfied through application of the challenged law [to] the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 430–31 “[B]roadly formulated” or “sweeping” interests are inadequate. Id. at 431; Yoder, 406 U.S. at 221. Rather, the Government must show with “particularity how [even] admittedly strong interest[s]” “would be adversely affected by granting an exemption.” Yoder, 406 U .S. at 236; see also O Centro, 546 U.S. at 431. The Government, therefore, must show a specific compelling interest in forcing “the particular claimant[s] whose sincere exercise of religion is being substantially burdened” into serving as the instruments by which its purported goals are advanced. Id. at 430-31; Tyndale House Publishers, Inc. v. Sebelius, 904 F .Supp. 2d 106, 125 -26 (D.D.C. 2012). The Government cannot begin to meet this standard.
At the most basic level, “a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993) (internal quotation marks and alteration omitted); see also O Centro, 546 U.S. at 433; Newland, 881 F. Supp. 2d at 1297-98. Here, the Government cannot claim an interest of the “highest order” where it exempts millions of employees from the Mandate through grandfathering provisions and small-employer
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exemptions. The Government cannot plausibly maintain that Plaintiffs’ employees must be covered by the Mandate when it already exempts millions of women receiving insurance through grandfathered plans simply to fulfill the President’s promise that “Americans who like their health plan can keep it.” HHS.gov, “U.S. Departments of Health and Human Services, Labor, and Treasury Issue Regulation on ‘Grandfathered’ Health Plans [U]nder the Affordable Care Act” (June 14, 2010) (Ex. E). An interest is hardly compelling if it can be trumped by political expediency. Such a broad exemption “completely undermines any compelling interest in applying the preventive care coverage mandate.” Newland, 881 F. Supp. 2d a t 1298; see also Hobby Lobby, 723 F.3d at 1144; Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402, 434 (W.D. Pa. 2013), injunction granted 2013 U.S. Dist. LEXIS 85107 (W.D. Pa. June 18, 2013); Tyndale, 904 F. Supp. 2d at 128.
The Mandate’s narrow “religious employer” exemption further undermines the Government’s claim that its interests are “compelling.” In O Centro, a religious group sought an exemption from the Controlled Substances Act to use hoasca—a hallucinogen—for religious purposes. When granting the exemption, the Supreme Court refused to credit the Government’s alleged interest in public health and safety when the Act at issue already contained an exemption for the religious use of another hallucinogen—peyote. “Everything the Government says about the DMT in hoasca,” the Court explained, “applies in equal measure to the mescaline in peyote.” O Centro, 546 U.S. at 433. Because Congress permitted peyote use in the face of concerns regarding health and public safety, “it [wa]s difficult to see how” those same concerns could “preclude any consideration of a similar exception for” the religious use of hoasca. Id. Likewise, “everything the Government says” about its interests in requiring Plaintiffs to facilitate access to the mandated products and services “applies in equal measure” to entities that meet the
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Mandate’s definition of “religious employer,” as well as the numerous other entities that are exempt from the Mandate for non-religious reasons.
That the Government’s own religious employer exemption undermines its alleged compelling interest was confirmed in Zubik and Persico, where the court reasoned that the religious employer exemption “is an acknowledgment of the lack of a compelling governmental interest as to religious employers who hire employees for their ‘houses of worship,’” and the Government’s claim that there is such a compelling interest as to “a different religious affiliated/related employer fails.” Zubik/Persico Slip op. at 55-56. Indeed, the court concluded that the Government’s justification for the distinction between exempt and accommodated entities is “speculative and unsubstantiated by the record and, therefore, unpersuasive.” Id. at 56-57.6 Ultimately, the court found there was no compelling interest because of the religious employer exemption:
If there is no compelling governmental interest to apply the contraceptive mandate to the religious employers who operate the ‘houses of worship,’ then there can be no compelling governmental interest to apply (even in an indirect fashion) the contraceptive mandate to the religious employers of the nonprofit, religious affiliated/related entities, like Plaintiffs in these cases. Slip op. at 56. Finally, the Government’s interest cannot be compelling where the Mandate would only fill, at best, a “modest gap” in contraceptive coverage. Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2741 (2011). The Government acknowledges that contraceptives are widely available at free and reduced cost and are also covered by “over 85 percent of employer-sponsored health
6 The court also explained that recognizing such a compelling interest “would be to allow the Government to cleave the Catholic Church into two parts: worship, and service and ‘good works,’ thereby entangling the Government in deciding what comprises ‘religion.’” Zubik/Persico Slip op. at 56; see also infra at Sect. I.D.2.
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insurance plans.” 75 Fed. Reg. 41,726, 41,732 (July 19, 2010); HHS.gov, “A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius” (Jan. 20, 2012) (Ex. F). The Government, moreover, has adduced “no empirical data or other evidence . . . t hat the provision of the FDA-approved emergency contraceptives . . . would result in fewer unintended pregnancies, an increased propensity to seek prenatal care, or a lower frequency of risky behavior endangering unborn babies.” Beckwith v. Sebelius, No. 8:13-cv-0648-T-17MAP, 2013 WL 3297498, at *17 (M.D. Fla. June 25, 2013).
To the contrary, recent scholarship confirms that a modest increase in coverage for contraception is unlikely to significantly impact contraceptive use, “because the group of women with the highest unintended pregnancy rates (the poor) are not addressed or affected by the Mandate [because they are unemployed], and are already amply supplied with free or low-cost contraception,” and “because women have a true variety of reasons for not using contraception that the law cannot mitigate or satisfy simply by attempting to increase access to contraception by making it ‘free.’” Helen M. Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 VILL. L. REV. 379, 380 (2013). As such, the Government cannot claim to have “identif[ied] an actual problem in need of solving,” Brown, 131 S. Ct. at 2738 (internal marks and citation omitted), much less that its proposed solution will address the alleged problem in any meangful way. See Zubik/Persico Slip Op. at 57 (holding that the Government provided no evidence that “women who receive their health coverage through employers like plaintiffs would face negative health and other outcomes”). Simply put, the Government “does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Brown, 131 S. Ct. at 2741 n.9.
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3. The Government Cannot Demonstrate that the Mandate Is the Least Restrictive Means to Achieve Its Asserted Interests.
Under RFRA, the Government must also show that the regulation “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b)(2). Under that test, “[i]f there are other, reasonable ways to achieve those [interests] with a lesser burden on constitutionally protected activity, [the Government] may not choose the way of greater interference. If it acts at all, it must choose less drastic means.” Dunn v. Blumstein, 405 U.S.
330, 343 (1972) (internal quotations marks omitted). “A statute or regulation is the least restrictive means if ‘no alternative forms of regulation would [accomplish the compelling interest] without infringing [religious exercise] rights.’” Kaemmerling, 553 F.3d at 684 (quoting Sherbert, 374 U.S. at 407). “Nor can the government slide through the test merely because another alternative would not be quite as good.” Hodgkins v. Peterson, 355 F.3d 1048, 1060 (7th Cir. 2004).
The “least restrictive means” test “necessarily implies a comparison with other means.” Washington v. Klem, 497 F.3d 272, 284 (3d Cir. 2007). “Because this burden is placed on t he Government, it must be the party to make this comparison.” Id. The Government must demonstrate that “it has actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.” Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005); see also Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013) (explaining that strict scrutiny requires a “serious, good faith consideration of workable . . . alternatives” that will achieve the government’s stated goal) (quoting Grutter v. Bollinger, 539 U.S. 306, 339 (2003)).
The Western District of Pennsylvania found that in light of the Government’s failure to meet its burden on compelling interest it “need not consider whether the ‘accommodation’ was
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the least restrictive means of meeting the stated compelling interests.” Zubik/Persico Slip op. at 58. “Nevertheless,” the court concluded that “the Government failed to present any credible evidence tending to prove that it utilized the least restrictive means of advancing those interests.” Id. at 58, 60. Indeed, “there is nothing in the record to establish, or even hint, that a broader ‘religious employer’ exemption, to include Plaintiffs . . . , w ould have any impact at all on ‘the entire statutory scheme’”, id. at 60, despite the Government’s assertion that the “accommodation” was the “‘only possible means’ of furthering the two [alleged] compelling governmental interests . . . .” Id. at 58. In that case, all the Government could point to in support of its least restrictive means argument was one page of the Federal Register (78 Fed. Reg. 39,888 (July 2, 2013))—a page that “clearly announces that the alternatives to the current regulations— including the contraceptive mandate—would not advance the Government’s interests ‘as effectively as’ the contraceptive mandate and the ‘accommodation.’” Id. at 60 (emphasis in original). But, as the court noted: “G reater efficacy does not equate to the least restrictive means.” Id. at 60.
The Seventh Circuit in Korte has also recently held that the Government “has not come close to carrying its burden of demonstrating that it cannot achieve its policy goals in ways less damaging to religious-exercise rights.” Korte, 2013 WL 5960692, at *26. By asserting sweeping interests in “public health” and “gender equality,” the Government has “guarantee[d] that the mandate” will fail strict scrutiny because it is “impossible to show that the mandate is the least restrictive means of furthering” those broad interests. Id. at *25. Moreover, even assuming the Government has a compelling interest in the more specific goal of “broaden[ing] access to free contraception and sterilization”—an assumption that is “both contestable and contested”—
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the Mandate still fails strict scrutiny because “there are many ways to increase access to free contraception” without forcing Plaintiffs to participate in the effort. Id. at *25-26.
Here, the Government has myriad ways to achieve its asserted interests without forcing Plaintiffs to violate their religious beliefs. Plaintiffs in no way recommend these alternatives and oppose many of them as a matter of policy, but the fact that they are available to the Government shows that the Mandate cannot survive RFRA’s narrow-tailoring requirement. For example, the Government could: (i) directly provide contraceptive services to the few individuals who do not receive it under their health plans; (ii) offer grants to entities that already provide contraceptive services at free or subsidized rates and/or work with these entities to expand delivery of the services; (iii) directly offer insurance coverage for contraceptive services; (iv) grant tax credits or deductions to women who purchase contraceptive services; or (v) allow Plaintiffs to comply with the Mandate by providing coverage for methods of family planning consistent with Catholic beliefs (i.e., Natural Family Planning training and materials). Indeed, the Government is already providing “free contraception to women,” including through the Title X Family Planning Program. Newland, 881 F. Supp. 2d at 1299. The Government’s utter failure to consider these alternatives is fatal, because strict scrutiny requires a “serious, good faith consideration” of workable alternatives. Grutter, 539 U.S. at 339; Zubik/Persico Slip Op. at 59 (holding that the Government could not meet its burden to establish that the “accommodation” is the least restrictive means because it failed to “offer[] any evidence [in the administrative record] concerning: (1) the identity of all other possible ‘least restrictive means’ considered by the Government; (2) the analysis of each of the ‘means’ to determine which was the ‘least’ restrictive; (3) the identity of the person(s) involved in the identification and evaluation of the
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alternative ‘means’; or (4) ‘evidence-based’ analysis as to why the Government believes that the ‘accommodation’ is the ‘least restrictive means’”).
B. The Mandate Violates the Free Exercise Clause The Free Exercise Clause of the First Amendment embodies a “fundamental nonpersecution principle” that prevents the Government from “enact[ing] laws that suppress religious belief or practice.” Lukumi, 508 U.S. at 523. “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Id. at 532. While the Free Exercise Clause does not require heightened scrutiny of laws that are “neutral [and] generally applicable,” Smith, 494 U.S. at 881, it does require strict scrutiny of laws that disfavor religion. See Lukumi, 508 U.S. at 532. Thus, “[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Id. at 546. In Lukumi, for example, the Supreme Court invalidated a municipal ordinance that imposed penalties on “[w]hoever . . . unne cessarily . . . ki lls any animal.” Id. at 537. Although the ordinance was not facially discriminatory, the Court found that its practical effect was to disfavor religious practioners of Santeria because it allowed exemptions for secular but not for religious reasons. Once the city began allowing exemptions, the Court held that the law was no longer “generally applicable,” and the city could not “refuse to extend [such exemptions] to cases of ‘religious hardship’ without compelling reason.” Id. at 537 (internal citation omitted). Likewise, in Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365-67 (3d Cir. 1999) (Alito, J.), the Third Circuit invalidated a police department policy that prohibited a Sikh police officer from wearing a beard because it contained an exemption for
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officers who were unable to shave for medical reasons but not for religious reasons. Relying on Lukumi, the court found that the “decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny.” Id. at 365.
The same reasoning applies here. The Mandate is not “generally applicable” because it is riddled with exemptions, see supra at 4, and yet there is no such exemption for religious employers like Plaintiffs. It makes no difference that the Mandate contains an exemption for a narrow subset of religious groups—namely, those that meet the Government’s limited definition of a “religious employer.” Because it offers so many secular exemptions, the Government must give equal consideration to all claimants who seek similar exemptions on religious grounds. The Free Exercise Clause does not merely require equal treatment for some religious entities. Thus, the Mandate fails the test of general applicability, and the Government may not “refuse to extend [exemptions] to cases of ‘religious hardship’ without compelling reason.” Lukumi, 508 U.S. at 537.
In addition, the Mandate is not “neutral” because it is specifically targeted at Plaintiffs’ religious practice of refusing to provide or facilitate access to contraception. When the Government promulgated the Mandate, it was acutely aware that any gap in coverage for contraception was due primarily to the religious beliefs and practices of employers such as the Catholic Church. Indeed, the Government itself concedes that 85% of health plans already cover contraception, and it asserts that adding contraception to the remaining 15% is cost-neutral. If so, then the only conceivable reason why the latter plans would not include contraceptive coverage is a religious or moral objection. But instead of pursuing a wide variety of options for increasing access to contraception without forcing religious groups like Plaintiffs to participate in
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the effort, the Government deliberately chose to pick a high-profile fight by forcing religious groups to provide or facilitate access to contraception in violation of their core beliefs.
The record, moreover, establishes that the Mandate was part of a conscious political strategy to marginalize and delegitimize Plaintiffs’ religious views on contraception by holding them up for ridicule on the national stage. For example, at a N ARAL Pro-Choice America fundraiser, Defendant Sebelius stated, “Wouldn’t you think that people who want to reduce the number of abortions would champion the cause of widely affordable contraceptive services? Not so much.” (Compl. ¶ 119). Thus, the Government went out of its way to impose an unnecessary burden on P laintiffs’ religious practices. Not only the “real operation,” but also the intended effect, of the Mandate has always been to target and suppress Plaintiffs’ religious practices. Lukumi, 508 U.S. at 533-35.
Finally, the Mandate is subject to strict scrutiny because it implicates the “hybrid” rights of religious believers. In Employment Division v. Smith, 494 U.S. 872, 881-82 (1990), the Supreme Court noted that the Free Exercise Clause can “reinforce[]” other constitutional protections, such as freedom of speech and association, which are particularly important when religious beliefs and practices are at stake. The present case illustrates why. In order to carry out their religious mission, Plaintiffs must enjoy the freedom to associate in religious schools and charities without being forced to violate their core beliefs. The Mandate denies them this freedom by effectively prohibiting them from forming schools and charities unless they (a) provide or facilitate access to contraception, and (b) sponsor Government speech in the form of contraceptive “counseling.” T hus, not only does the Mandate violate Plaintiffs’ rights of free speech and association, but the effect of these violations is to deny Plaintiffs their ability to engage in religious schooling, health care, and charity—essential components of their faith.
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C. The Mandate Violates the First Amendment Protection Against Compelled Speech
It is “a basic First Amendment principle that ‘freedom of speech prohibits the government from telling people what they must say.’” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S.Ct. 2321, 2327 ( 2013) (quoting Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47, 61 (2006)). Thus, “[a]ny attempt by the government either to compel individuals to express certain views, or to subsidize speech to which they object, is subject to strict scrutiny.” R.J. Reynolds Tobacco Co., et al., v. FDA, 696 F. 2d 1205, 1211 (D.C. Cir. 2012) (citing United States v. United Foods, Inc., 533 U.S. 405, 410-11 (2001)). Protection against compelled speech “applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.” Hurley v. IrishAm. Gay, Lesbian & Bisexual Grp. of Bos., Inc., 515 U.S. 557, 573 (1995).
The Mandate violates the First Amendment prohibition on c ompelled speech in two ways. First, it requires Plaintiffs to provide, pay for, and/or facilitate access to “counseling” related to abortion-inducing products, contraception, and sterilization for their employees.
Because Plaintiffs oppose abortion and contraception, they strongly object to providing any support for “counseling” that encourages, promotes, or facilitates such practices. Indeed, opposition to abortion and contraception is an important part of the religious message that Plaintiffs preach, and they routinely counsel men and women against engaging in such practices. Consequently, forcing Plaintiffs to support “counseling” in favor of such practices, or even to give details about the availability of such practices, imposes a serious burden on their freedom of speech. In short, Plaintiffs cannot be forced to act as mouthpieces in the Government’s campaign to expand access to abortion and contraception.
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Second, to qualify for the so-called “accommodation,” the Mandate requires Plaintiffs to provide a “certification” stating their objection to the provision of abortion-inducing products, contraception, sterilization, and related counseling. This “certification” in turn triggers an obligation on the part of Plaintiffs’ third party administrator (or their insurance provider, if they do not self-insure) to provide or procure the objectionable products and services for Plaintiffs’ employees. Plaintiffs object to this certification requirement both because it compels them to engage in speech that triggers provision of the objectionable products and services, and because it deprives them of the freedom to speak on the issue of abortion and contraception on their own terms, at a time and place of their own choosing, outside of the confines of the Government’s regulatory scheme. See, e.g., Evergreen Ass’n v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011) (striking down law requiring crisis pregnancy centers to issue disclaimers that they did not provide abortion-related services); Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456, 459, 462 n.6 (D. Md. 2011), aff’d 722 F.3d 184 ( 4th Cir. 2013) (en banc) (enjoining enforcement of law requiring crisis pregnancy centers to post notice “encourag[ing] women who are or may be pregnant to consult with a licensed health care provider”).
D. The “Religious Employer” Exemption Violates the Establishment Clause The “religious employer” exemption violates the Establishment Clause of the First Amendment in two ways. First, it creates an artificial, Government-favored category of “religious employers,” which favors some types of religious groups over others. Second, it creates an excessive entanglement between government and religion.
1. Discrimination Among Religious Groups The principle of equal treatment among religious groups lies at the core of the Establishment Clause. J ust as the Government cannot discriminate among sects or
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denominations, so too it cannot “discriminate between ‘types of institution’ on the basis of the nature of the religious practice these institutions are moved to engage in.” Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008) (McConnell, J.). Because religious liberty encompasses not only the freedom of religious belief, but also the freedom to adopt different practices and institutional structures, official favoritism for certain “types” of religious institutions is just as insidious as favoritism based on creed.
For example, in Larson v. Valente, 456 U.S. 228 (1982), the Supreme Court struck down a Minnesota law imposing special registration requirements on any religious organization that did not “receive[] more than half of [its] total contributions from members or affiliated organizations.” Id. at 231-32. T he state defended the law on t he ground that it was facially neutral and merely had a disparate impact on some religious groups. The Court, however, rejected that argument, finding that the law discriminated among denominations by privileging “well-established churches that have achieved strong but not total financial support from their members,” while disadvantaging “churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance on financial support from members.” Id. at 246 n.23 (internal quotation marks omitted). The D.C. Circuit has followed similar reasoning, stating that “an exemption solely for ‘pervasively sectarian’ schools would itself raise First Amendment concerns—discriminating between kinds of religious schools.” Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1342 (D.C. Cir. 2002) (emphasis added).
Here, the Mandate violates this principle of neutrality by establishing an official category of “religious employer” that favors some religious groups over others. The exemption is defined to include only “nonprofit organization[s] described in section 6033(a)(1) and section
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6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code [of 1986, a s amended].” As the Government has explained, those provisions of the tax code include only “churches, synagogues, mosques, and other houses of worship, and religious orders.” 78 Fed. Reg. at 8,461. This definition favors religious groups that fit into the traditional categories of “houses of worship” or “religious orders,” while disadvantaging groups that exercise their religious faith through alternative means—including religious ministries, like Plaintiffs Catholic Charities, which expresses its faith by providing other various charitable services to the elderly, poor, and needy and educating young people.
2. Excessive Entanglement “It is well established . . . that courts should refrain from trolling through a person’s or institution’s religious beliefs.” Mitchell v. Helms, 530 U.S. 793, 828 (2000). “It is not only the conclusions that may be reached . . . which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.” NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 502 (1979). “Most often, this principle has been expressed in terms of a prohibition of ‘excessive entanglement’ between religion and government.” Colo. Christian, 534 F.3d at 1261 (citing Agostini v. Felton, 521 U.S. 203 (1997)). “Properly understood, the doctrine protects religious institutions from governmental monitoring or second-guessing of their religious beliefs and practices, whether as a condition to receiving benefits . . . or as a basis for regulation or exclusion from benefits (as here).” Colo. Christian, 534 F.3d at 1261 (citing Carl H. Esbeck, Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 WASH. & LEE L. REV. 347, 397 (1984)). In determining eligibility for a religious exemption, the Government may not ask intrusive questions designed to determine whether a group is “sufficiently religious,” Univ. of
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Great Falls, 278 F.3d at 1343, or even whether the group has a “substantial religious character.” Id. at 1344. Rather, any inquiry into a group’s eligibility for a religious exemption must be limited to determining whether the group is a “bona fide religious institution[].” Id. at 1343-45 (approving of a religious exemption that would include any non-profit group that “holds itself out” as religious, but reserving the question of whether groups could be required to show that they are “affiliated with . . . a recognized religious organization”).
Here, the Government’s criteria for the “religious employer” exemption go far beyond determining bona fide religious status. By its terms, the exemption applies to groups that are “described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” This category includes (i) “churches, their integrated auxiliaries, and conventions or associations of churches,” and (iii) “the exclusively religious activities of any religious order.” 78 Fed. Reg. at 8,458. The IRS, however, has adopted an intrusive 14-factor test to determine whether a group meets these criteria. See Found. of Human Understanding v. United States, 88 Fed. Cl. 203, 220 (Fed. Cl. 2009). The fourteen (14) criteria ask whether a religious group has:
(1) a distinct legal existence; (2) a recognized creed and form of worship; (3) a definite and distinct ecclesiastical government; (4) a formal code of doctrine and discipline; (5) a distinct religious history; (6) a membership not associated with any church or denomination; (7) an organization of ordained ministers; (8) ordained ministers selected after completing prescribed studies; (9) a literature of its own; (10) established places of worship; (11) regular congregations; (12) regular religious services; (13) Sunday schools for the religious instruction of the young; and (14) schools for the preparation of its ministers. Id. (citing Church of the Visible Intelligence v. United States, 4 Cl. Ct. 55, 64 (1983)). Not only do these factors favor some religious groups over others, but they do so on the basis of intrusive judgments regarding religious beliefs, practices, and organizational structure. For example, probing into whether a group has “a recognized creed and form of worship” not
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only requires the Government to determine which belief systems will be deemed “recognized creed[s],” but also demands inquiry into which practices qualify as “forms of worship.” In answering such questions, the Government cannot escape being “cast in the role of arbiter of [an] essentially religious dispute.” New York v. Cathedral Acad., 434 U.S. 125, 132-33 (1977).
Similarly, in determining whether a religious group has had “a distinct religious history,” the exemption not only favors long-established religious groups, but also requires the Government to probe into potentially disputed matters of religious history. Any dispute as to whether a group’s history is sufficiently “distinct” or “religious,” should not be resolved by the Government.
Indeed, “church and state litigating in court about what does or does not have religious meaning touches the very core of the constitutional guarantee against religious establishment.” Id. at 133.
E. The Mandate Unconstitutionally Interferes with Plaintiffs’ Rights of Internal Church Governance
The Supreme Court has recognized that the Religion Clauses of the First Amendment prohibit the Government from interfering with matters of internal church governance. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S.Ct. 694 (2012), the Court held that the Government may not apply anti-discrimination laws to interfere with religious groups in the hiring and firing of ministers because the First Amendment prohibits “government interference with an internal church decision that affects the faith and mission of the church itself.” Id. at 707. Indeed, because “the autonomy of religious groups . . . has often served as a shield against oppressive civil laws,” the Court has “long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.” Id. at 712 (Alito, J., concurring).
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Here, the Mandate violates this principle by artificially splitting the Catholic Church in two and preventing the Church from exercising supervisory authority over its constituents in a way that ensures compliance with Church teachings. See Guillory Decl. ¶¶ 15-26. In particular, the religious employer definition treats the Catholic Church as having two wings—a religious one and a charitable one—and treats only the former as a religious employer, when, in fact, the Church’s religious and charitable arms are one and the same: “The Church cannot neglect the service of charity anymore than she can neglect the sacraments and the word.” USCCB’s Papal Visit Blog, “Benedict XVI’s Plea: Put the Poor at the Heart of Catholic Life” (Mar. 25, 2008) (Ex. H). Thus, by refusing to recognize the Church’s charitable functions as those of a single, integrated “religious employer,” the Mandate directly interferes with Catholic Church structure. See also Zubik/Persico Slip Op. at 53 (holding that by dividing the Catholic Church into a “worship arm” and a “good works arm[]”, “[t]he Government has created a substantial burden on Plaintiffs’ right to freely exercise their religious beliefs”); id. at 50-52.
The Mandate, moreover, compounds this error by interfering with the Church hierarchy’s ability to ensure that subordinate institutions, including various charitable and educational ministries, adhere to Church teaching through participation in a single insurance plan. Such an arrangement is currently in place in the Beaumont Diocese, where the Diocese makes its health plan available to the employees of its religious affiliate, Catholic Charities. By serving as the insurance provider for this organization, the Diocese can directly ensure that this organization offers its employees a health plan that is in all ways consistent with Catholic beliefs as the Plaintiffs carry out their mission in accordance with their Catholic beliefs. The Mandate disrupts this internal arrangement by forcing the Diocese to either sponsor a plan that will provide the employees of Catholic Charities with access to “free” abortion-inducing products, contraception,
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sterilization, and related counseling; or, expel Catholic Charities from the Diocese’s plan, thereby forcing it to enter into a different contract for the objectionable coverage. II. PLAINTIFFS ARE SUFFERING ONGOING IRREPARABLE HARM
Plaintiffs are entitled to injunctive relief because the Mandate is causing them substantial irreparable harm. “It is well settled that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Tyndale, 904 F. Supp. 2d at 129 (D.D.C. 2012) (quoting Elrod v. Burns, 427 U.S. 347, 373 ( 1976)) appeal dismissed, No. 13-5018, 2013 WL 2395168 (D.C. Cir. May 3, 2013) . “By extension, the same is true of rights afforded under the RFRA, which covers the same types of rights as those protected under the Free Exercise Clause of the First Amendment.” Id. (citing O Centro Espirita Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 995 (10th Cir. 2004), aff’d 546 U.S. 418 (2006)) (“[The plaintiff] would certainly suffer an irreparable harm, assuming of course that it is likely to succeed on the merits of its RFRA claim.”)); cf. Jeffreys v. My Friend’s Place, Inc., 719 F. Supp. 639, 647-48 (M.D. Tenn. 1989) (citing EEOC v. Chrysler Corp., 733 F.2d 1183, 1186 ( 6th Cir. 1984)).
The forced violation of Plaintiffs’ faith is the epitome of irreparable injury. See, e.g., Mobil Oil Corp. v. Henriksen Enters., 490 F. Supp. 74, 77 ( W.D. Mich. 1980) (holding that irreparable harm occurs when monetary damages are inadequate). The Mandate forces Plaintiffs to violate central tenets of their religious beliefs. See Guillory Decl. ¶¶ 15-26; Fernandez Decl. ¶¶ 16-24. Absent an injunction, the Government can begin enforcing the Mandate against Plaintiffs before the final resolution of this case, while there is a serious question as to whether the Mandate violates the Constitution and other applicable law. Thus, every moment that passes without relief inflicts ongoing irreparable harm to Plaintiffs’ religious freedoms,
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confronting them with the impossible choice of violating their religious beliefs or violating the law. Because this is not the type of harm that can later be remedied by monetary damages, the injury is irreparable. See Mobil Oil Corp., 490 F. Supp. at 77; Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984) (“[Irreparable] harm . . . cannot be prevented or fully rectified by the final judgment after trial.”). III. THE BALANCE OF HARMS WEIGHS IN FAVOR OF PLAINTIFFS
Any harm that may result from granting preliminary relief to Plaintiffs necessarily “pales in comparison” to the serious harms to their religious freedoms that will be continued absent that relief. Newland, 881 F. Supp. 2d at 1295. On the one hand, as described above, enforcement of the Mandate will plainly cause Plaintiffs irreparable harm by forcing them to violate their religious beliefs of pay oppressive fines until the merits of this suit are conclusively resolved.
On the other hand, preliminary relief would not cause the Government appreciable harm because it has not mandated contraceptive coverage for over two centuries, and there is no urgent need to enforce the Mandate against Catholic groups before its legality can be adjudicated. In addition, given that the Mandate already contains exemptions that by some estimates are available to “over 190 million health plan participants and beneficiaries,” Id. at 1298, t he Government cannot possibly claim that it w ill be harmed by this Court granting a temporary exemption for Plaintiffs.
Indeed, any claim of harm is fatally undermined by the Government’s acquiescence to preliminary injunctive relief in several other cases challenging the Mandate. See, e.g., Sharpe Holdings, Inc. v. HHS, No. 2:12-cv-00092 (E.D. Mo. Mar. 11, 2013) (Dkt. 41); Sioux Chief Mfg. Co. v. Sebelius, No. 4:13-cv-0036 (W.D. Mo. Feb. 28, 2013) (Dkt. 9); Hall v. Sebelius, No. 130295 (D. Minn. Apr. 2, 2013) (Dkt. 11); Bick Holding, Inc. v. Sebelius, No. 4:13-cv-00462 (E.D.
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Mo. Apr. 1, 2013) (Dkt. 19). The Government “cannot claim irreparable harm in this case while acquiescing to preliminary injunctive relief in several similar cases.” Geneva Coll. v. Sebelius, No. 2:12-cv-00207, 2013 U.S. Dist. LEXIS 56087, at *41 (W.D. Pa. Apr. 19, 2013).
In short, when balanced against the irreparable injury to Plaintiffs if the Mandate is enforced, any harm the Government might claim from a temporary injunction is de minimus. IV. GRANTING A TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION WILL SERVE THE PUBLIC INTEREST Preliminary relief also serves the public interest. For one thing, the Sixth Circuit has recognized that “it is always in the public interest to prevent violation of a party’s constitutional rights.” Deja Vu, 274 F.3d at 400 ( quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 ( 6th Cir. 1994)). This same reasoning should also apply to the rights protected by RFRA, which is meant to give religious exercise even greater protection than that provided under the First Amendment. Cf., e.g., Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001). In particular, there is a “strong public interest in a citizen’s free exercise of religion, a public interest clearly recognized by Congress when it enacted RFRA.” O Centro, 389 F.3d at 1010, aff’d 546 U.S. 418 (2006). Here, public interest in a preliminary injunction is especially high because enforcement of the Mandate will threaten or diminish the continuation of Plaintiffs’ charitable, health care, childcare, and educational activities, which serve thousands of needy individuals. See Guillory Decl. ¶¶ 15-26; Fernandez Decl. ¶¶ 16-24. If the Government goes ahead with the enforcement of the Mandate, Plaintiffs may be forced to shut down or restructure their operations, leaving a gap in the network of critical social services relied on by so many in their communities. By contrast, no publ ic harm would come from simply preserving the status quo pending further litigation. Even if the public interest were served by widespread free access to abortion-inducing
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products, contraception, and sterilization—a highly dubious assumption—these products and services are widely available, and the Government has adduced no e vidence that the Mandate will make them more widely available in the relatively short period of time that will be required to adjudicate this case on the merits.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court adjudicate this motion on a n expedited basis and grant Plaintiffs’ request for a preliminary injunction exempting Plaintiffs from application of, and enforcement of, compliance with the Mandate.
By: /s/ Randal G. Cashiola Randal G. Cashiola Texas State Bar No. 03966802 rcashiola@cashiolalaw.com CASHIOLA & BEAN 2090 Broadway, Suite A Beaumont, Texas 77701 (409) 813-1443 telephone (409) 813-1467 facsimile Attorney-In-Charge For Plaintiffs
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Case 1:13-cv-00709-RC Document 3-1 Filed 12/10/13 Page 1 of 6 PageID #: 101

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

CATHOLIC DIOCESE OF BEAUMONT; )

CATHOLIC CHARITIES OF

)

SOUTHEAST TEXAS, INC.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S.

)

Department of Health and Human

)

Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S.

)

Department of Labor, JACOB J. LEW, in )

his official capacity as Secretary of the

)

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

)

DEPARTMENT OF HEALTH AND

)

HUMAN SERVICES; U.S.

)

DEPARTMENT OF LABOR; and U.S. )

DEPARTMENT OF TREASURY,

)

)

Defendants.

)

Civil Action No. 1:13-cv-00709-RC DEMAND FOR JURY TRIAL

DECLARATION OF BISHOP CURTIS J. GUILLORY, S.V.D., D.D. I, Bishop Curtis J. Guillory, on b ehalf of the Roman Catholic Diocese of Beaumont (“Diocese”), declare and state as follows: 1. I am over the age of eighteen (18) and competent to make this statement. I submit this declaration in support of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction in the above-captioned matter. 2. I have served as the Bishop of the Diocese from 2002 to the present time. A s Bishop, I am responsible for the Diocese.

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3. I am very familiar with the Diocese’s mission, religious beliefs, and the Diocese’s health insurance policy. The facts in this declaration are based upon my personal knowledge and information available to me, and if I were called upon t o testify to them, I could and would competently do so.
4. The Diocese is a nonprofit religious organization organized and existing according to the Code of Canon Law of the Roman Catholic Church and recognized by the State of Texas.
5. The Diocese employs over 950 people, approximately 370 of whom are currently eligible for health plan benefits offered through the Diocese.
6. The Diocese carries out a t ripartite spiritual, educational, and social service mission, reflecting the several dimensions of its ministry. This mission is rooted in and animated by the Roman Catholic faith, shared by all parishioners in our parishes and schools.
7. The spiritual ministry of the Diocese is conducted largely through its parishes. Through the ministry of its priests, the Diocese ensures the regular availability of the sacraments to all Catholics living in or visiting Beaumont and the surrounding 9 counties.
8. The educational ministry of the Diocese is conducted through its schools and Religious Education Programs. The Diocese includes 3 Parish schools and 2 diocesan schools that serve approximately 1,088 students. The Religious Education Programs in our 44 parishes and 7 missions serve over 6,304 children.
9. Much of the Diocese’s social service and charitable work is performed through its parishes and missions, which, like the schools discussed above, are organized as part of the Diocese.

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10. Furthermore, the Diocese also provides services to the poor and vulnerable through an independent entity, Catholic Charities of Southeast Texas (which is separately incorporated) that is closely aligned with the Church and comports itself in accordance with Church teaching. Catholic Charities employs 18 people, 9 of whom are currently eligible for coverage on the diocesan health plan.
11. Consistent with Church teachings on social justice, the Diocese makes health insurance benefits available to its religious personnel, seminarians, and full-time employees working at least 30 hours a week through the diocesan health plan.
12. The Diocese is part of the Roman Catholic Church. The Church teaches that life begins at the moment of conception, that sexual union should be reserved to committed marital relationships in which the husband and wife are open to the transmission of life, and, therefore, that artificial interference with life and conception are immoral.
13. Offering a health insurance plan that provides coverage for or facilitates access to abortion-inducing products, contraceptives, sterilization, and related education and counseling is thus inconsistent with the core moral and religious beliefs of the Diocese.
14. The Diocese provides its employees’ health plan through the Christian Brothers Employee Benefit Trust, a s elf-funded church plan which serves employers of the Catholic Church by providing medical benefits to health plan participants. Health plan materials specifically state that “the Trust works within the framework of the tenets of the Catholic Church.” T o that end, the Trust health plan does not cover abortion or sterilization drugs or services, nor does it cover contraceptives except when prescribed to treat a medical illness and approved by the Trust.

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15. The Diocese’s employee health plan does not meet the Affordable Care Act’s definition of a “grandfathered” plan.
16. The plan year for the Diocese (and Catholic Charities as an adopting employer) begins on March 1.
17. The Mandate requires employers, on pain of substantial financial penalties, to facilitate access to abortion-inducing products, artificial contraception, medical sterilization procedures, and related counseling through their employer health-care plans.
18. Consistent with Church teachings regarding the sanctity of life, the diocesan health plan has historically excluded coverage for abortion, contraceptives (except when used for non-contraceptive purposes), sterilization, and related education and counseling.
19. Though the Diocese meets the Mandate’s definition of a religious employer and is thus exempt from facilitating access to the mandated products and services for its own employees, this exemption does not apply to the employees of non-exempt, affiliated entities such as Catholic Charities which participates in the Diocesan Employee Health Plan.
20. Catholic Charities is charged by the Diocese of Beaumont to defend and insure the preservation of human dignity by reflecting the values and tenets of the Catholic Church, while showing no preference for any particular religion when serving those in need. In my capacity as Bishop of the Diocese, I am responsible for the adherence by Catholic Charities to the teachings and beliefs of the Roman Catholic Church.
21. The Mandate artificially splits the Diocese (and the Catholic Church for that matter) in two: a religious wing and a ch aritable wing. T he former is to be exempt from the Mandate and the latter is not—preventing the Diocese from exercising supervisory authority over

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its constituent Catholic Charities in a way that ensures compliance with Church teachings and beliefs.
22. The Mandate thus interferes with the Church’s ability to ensure that its various charitable and educational ministries adhere to Church teaching through participation in a single insurance plan. B y serving as the insurance provider for Catholic Charities, the Diocese can directly ensure that Catholic Charities offers its employees a health plan that is in all ways consistent with Catholic beliefs.
23. The Mandate disrupts this internal arrangement by forcing the Diocese to either (i) facilitate, through its insurance plan, the provision of contraception, abortion-inducing products, sterilization, and related counseling to employees of Catholic Charities (a non-exempt entity) from participating in the Diocese’s plans; or (ii) expel Catholic Charities from its plans, thereby forcing it as a non-exempt organizations to enter into an arrangement with another insurance provider or third-party administrator that will, in turn, be required to provide the objectionable products and services to their employees.
24. The first option forces the Diocese to act contrary to its sincerely-held religious beliefs. T he second option not only makes the Diocese complicit in the provision of objectionable coverage, by forcing Catholic Charities out of its plan and to obtain the objectionable coverage through another insurance provider, but also compels the Diocese to submit to the Government’s interference with its structure and internal operations by accepting a construct that divides churches from their ministries.
25. Moreover, as a C atholic entity, the Diocese bears a p articular responsibility to witness to the Church’s teachings. T he Diocese bears witness to those teachings not only by word, but also by deed, including its actions regarding the provision of employee health

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insurance. W ere the Diocese to sponsor a plan that triggered the provision of objectionable products and services to the employees of its affiliated entities or expel those organizations from its plan, the Diocese would commit the further offense of giving scandal by acting in a way inconsistent with Church teachings.
26. Taking action that would trigger the provision of the objectionable products and services for the employees of its affiliated entities would be contrary to the Diocese’s beliefs even if the Diocese does not directly fund the objectionable coverage. Of course, any use of the Diocese’s funds to provide the mandated products and services would only exacerbate the violation of the Diocese’s religious beliefs.
27. The Diocese provides health benefits to its employees because it f ollows the Catholic social teaching that health care is among those basic rights which flow from the sanctity and dignity of human life. T o drop health care benefits—in order to avoid the provision of objectionable drugs and services—would inhibit the Diocese’s ability to follow this teaching.
28. Potential liability for significant fines and uncertainty regarding the Diocese’s ability to offer and provide health benefits undermines Diocese’s ability to retain and recruit employees. W ere the Diocese to stop offering health benefits, it would be at a competitive disadvantage to institutions to who do not have religious objections to the Mandate.
29. The Mandate places substantial pressure on the Diocese to violate its sincerely held religious beliefs by threatening fines and other negative consequences if the Diocese refuses to facilitate access to the objectionable products and services.
30. I declare under penalty of perjury that the foregoing is true and correct.

Executed on December 10, 2013

/s/ Curtis J. Guillory Bishop Curtis J. Guillory, S.V.D., D.D.

Case 1:13-cv-00709-RC Document 3-2 Filed 12/10/13 Page 1 of 6 PageID #: 107

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

CATHOLIC DIOCESE OF BEAUMONT; )

CATHOLIC CHARITIES OF

)

SOUTHEAST TEXAS, INC.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S. )

Department of Health and Human )

Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S. )

Department of Labor, JACOB J. LEW, in )

his official capacity as Secretary of the )

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

DEPARTMENT OF HEALTH AND )

HUMAN

SERVICES;

U.S. )

DEPARTMENT OF LABOR; and U.S. )

DEPARTMENT OF TREASURY,

)

)

Defendants.

)

Civil Action No. 1:13-cv-00709-RC DEMAND FOR JURY TRIAL

DECLARATION OF CAROLYN R. FERNANDEZ I, Carolyn R. Fernandez, on behalf of Catholic Charities of Southeast Texas, Inc., declare and state as follows: 1. I am over the age of eighteen (18) and competent to make this statement. I submit this declaration in support of Plaintiffs’ Motion for Temporary Restraining Order and for Preliminary Injunction in the above-captioned matter. 2. I am the President and CEO of Catholic Charities of Southeast Texas, Inc. (“Catholic Charities”). I have served in this capacity since 2009. I began my service in the Catholic Charities network in 2007.
1

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3. Due to my responsibilities as President and CEO, I am very familiar with Catholic Charities’ mission, religious beliefs, and health insurance policy. T he facts set forth in this declaration are based upon my personal knowledge and information available to me, and if I were called upon to testify to them, I could and would competently do so.
4. Catholic Charities annually provides services to approximately 6,000 people. It “is a faith-driven, service-driven, and forward-driven organization committed to living out the commission of Jesus Christ throughout the Diocese of Beaumont by welcoming the stranger, caring for children, and strengthening families.”
5. To that end, it carries out the mandates of the Gospel and the social teaching of the Church through works of Christian charity, service, and social justice by providing competent and caring social services, special assistance to those in great need, and programs of community outreach and advocacy using the skills and talents of professional staff and volunteers. C atholic Charities pursues these goals through its own programs and through partnerships with parishes, community groups, and governmental agencies.
6. The seven programs of Catholic Charities bring child and family services, emergency assistance, financial and homebuyer education, daily food service, immigration legal assistance, grief support and counseling services to the community.
7. Catholic Charities has ten full-time and seven part-time employees. 8. Catholic Charities is a member-director corporation. 9. I am informed that Catholic Charities does not qualify as an entity described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. Accordingly, Catholic Charities does not qualify as a “religious employer” under the exemption to the U.S. Government Mandate.
2

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10. Catholic Charities employees are offered health insurance through the Diocese of Beaumont. The plan does not cover abortion, contraceptives, or sterilization.
11. Due to plan changes in 2010 and 2011, the group health insurance plan offered to Catholic Charities employees through the Diocese does not meet the definition of a “grandfathered” plan within the meaning of the Affordable Care Act. A dditionally, Catholic Charities has not included a statement in plan materials provided to participants or beneficiaries informing them that it b elieves its plan is a grandfathered health plan within the meaning of section 1251 of the Affordable Care Act.
12. Catholic Charities’ plan year begins March 1. 13. Catholic Charities’ Catholic faith is at the heart of its charitable mission. T he Catholic Church teaches that life begins at the moment of conception, that sexual union should be reserved to committed marital relationships in which the husband and wife are open to the transmission of life, and, therefore, that artificial interference with life and conception are immoral. A ccordingly, Catholic Charities will never provide the objectionable services to its employees because each such service violates Catholic teachings. 14. Catholic Charities is required by the Mandate to facilitate access to abortioninducing products, artificial contraception, medical sterilization procedures, and related counseling through their employer health-care plan. 15. The so-called “accommodation” does not resolve Catholic Charities’ religious objection. The Mandate, even in its revised form, forces Catholic Charities to take actions that facilitate access to products and services antithetical to the Catholic faith. Among other things, Catholic Charities’ employees would only receive free contraceptives, sterilization, abortifacients, and related counseling by virtue of Catholic Charities’ decision to provide health
3

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coverage. Catholic Charities would also be required to self-certify its religious objection, which will trigger the provision of the mandated coverage. T his mandated coverage will be made available to the Catholic Charities’ employees only for so long as they remain on the Diocese of Beaumont’s plan. Catholic Charities will be forced to further facilitate access to the mandated coverage by, among other things, identifying its benefits-eligible employees for the insurance company. U ltimately, under both the original and final versions of the Mandate, Catholic Charities is forced, in violation of its sincerely held religious beliefs, to participate in a scheme that provides its employees with access to contraceptive benefits.
16. Moreover, as a Catholic entity, Catholic Charities bears a particular responsibility to witness to the Church’s teachings. C atholic Charities bears witness to those teachings not only by word, but also by deed, including its actions regarding the provision of employee health insurance. W ere Catholic Charities to comply with the Mandate, in addition to impermissibly facilitating access to the objectionable products and services, Catholic Charities would commit the further offense of giving scandal by acting in a way inconsistent with Church teachings.
17. Compliance with the Mandate would be contrary to Catholic Charities’ beliefs even in the event that Catholic Charities does not directly fund the objectionable products and services. Of course, any use of Catholic Charities’ funds to provide the mandated products and services would only exacerbate the violation of Catholic Charities’ religious beliefs.
18. There is no resolution to the dilemma created by the Mandate for Catholic Charities. E ven eliminating the employee group health plan in its entirety fails to resolve the injuries to Catholic Charities caused by the implementation of the Mandate. If Catholic Charities ceases offering employee health plans or fails to provide the required coverage, Catholic
4

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Charities will face fines of $2,000 per employee after the first thirty (30) employees per year or $100 per individual per day.
19. Potential liability for significant fines and uncertainty regarding Catholic Charities’ ability to offer and provide health benefits undermines Catholic Charities’ ability to recruit and retain employees. Were Catholic Charities to stop offering health benefits, it would be at a competitive disadvantage to institutions who do not have religious objections to the Mandate.
20. The Mandate places substantial pressure on Catholic Charities to violate its sincerely held religious beliefs by threatening fines and other negative consequences if Catholic Charities refuses to facilitate access to the objectionable products and services.
21. Catholic Charities is further harmed by the Mandate’s attempt at creating an artificial separation between Catholic Charities from the Catholic Church and, in particular, the Diocese of Beaumont.
22. Catholic Charities is the social justice arm of the church. Each year, Catholic Charities receives funding from the Diocese through an annual appeal.
23. Despite being inextricably connected to the Church and the Diocese, and being governed by the Church’s mission and beliefs, Catholic Charities falls outside the scope of the so-called “religious employer” exemption, leaving it w ithout protection from the Mandate’s requirements.
24. The Mandate splits the Catholic Church in two, a religious wing and a charitable wing, the former which is exempt from the Mandate and the latter which is not—preventing the Church from exercising supervisory authority over its constituents in a way that ensures compliance with Church teachings.
5

Case 1:13-cv-00709-RC Document 3-2 Filed 12/10/13 Page 6 of 6 PageID #: 112 25. I declare under penalty of perjury that the foregoing is true and correct. Executed on December 10, 2013. /s/Carolyn R. Fernandez Carolyn R. Fernandez
6

Case 1:13-cv-00709-RC Document 3-3 Filed 12/10/13 Page 1 of 4 PageID #: 113

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

CATHOLIC DIOCESE OF BEAUMONT; )

CATHOLIC

CHARITIES

OF )

SOUTHEAST TEXAS, INC.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S. )

Department of Health and Human )

Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S. )

Department of Labor, JACOB J. LEW, in )

his official capacity as Secretary of the )

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

DEPARTMENT OF HEALTH AND )

HUMAN

SERVICES;

U.S. )

DEPARTMENT OF LABOR; and U.S. )

DEPARTMENT OF TREASURY,

)

)

Defendants.

Civil Action No. 1:13-cv-00709-RC DEMAND FOR JURY TRIAL

TEMPORARY RESTRAINING ORDER After considering Plaintiffs’ Motion for Temporary Restraining Order and Request for Preliminary Injunction, the Court hereby grants the motions and finds as follows:
1. Plaintiffs allege that regulations promulgated by Defendants require Plaintiffs to provide, as part of a company-funded health insurance plan, to facilitate access to abortioninducing products, artificial contraception, sterilization procedures, and related counseling.
2. Defendants’ Mandate is contained in 42 U.S.C. § 300gg-13(a)(4).

Case 1:13-cv-00709-RC Document 3-3 Filed 12/10/13 Page 2 of 4 PageID #: 114
3. Without injunctive relief from the Court, Plaintiffs will suffer immediate and irreparable harm. Defendants’ Mandate will not permit Plaintiffs to continue to have an employee heath benefits plan that excludes any coverage for to abortion-inducing products, artificial contraception, sterilization procedures, and related counseling based on t heir religious beliefs and moral values.
4. Defendants’ Mandate permits exemptions for some classes of religious objectors, but not organization such as Plaintiffs, including Catholic Charities of Southeast Texas, Inc.
5. The requirements of the Mandate substantially burden Plaintiffs’ exercise of their religious beliefs.
6. The Mandate is not justified by a compelling governmental interest. 7. The Mandate is not the least restrictive means to further any compelling governmental
interest. 8. Plaintiffs have demonstrated a credible argument and evidence that there is a substantial
likelihood that Plaintiffs will succeed on the merits of the claim. 9. Plaintiffs have demonstrated that Defendants will not suffer any harm or costs by this
Court granting Plaintiffs’ motion for temporary restraining order and preliminary injunction and that the balance of equities tips in Plaintiffs’ favor. 10. Plaintiffs have demonstrated that the public interest will be served and not harmed by the granting of the requested injunctive relief. 11. Plaintiffs have no adequate remedy at law other than obtaining a declaratory judgment and injunctive relief.

Case 1:13-cv-00709-RC Document 3-3 Filed 12/10/13 Page 3 of 4 PageID #: 115
12. There would be no substantial injury to other parties, because the only other parties are the Defendants to be enjoined and they can assert no h arm in the granting of this Temporary Restraining Order and Preliminary Injunction.
For these reasons, the Court ORDERS the following: 1. Plaintiffs’ motion for a temporary restraining order and preliminary injunction is GRANTED. 2. Defendants, its officers, agents, servants, employees, and attorneys, and all persons acting in concert, and including any insurance carriers or third party insurance plan administrators with whom Plaintiffs may contract for group health benefits, are ENJOINED, during the pendency of this action and until further order by this Court, from applying and enforcing against Plaintiffs any statutes, rules, laws, or regulations that require Plaintiffs to include in their employee health benefit plan any coverage of all Food and Drug Administration (“FDA”)-approved contraceptives methods, sterilization procedures, and related patient education and counseling, including the substantive requirement imposed in 42 U .S.C. § 300 gg-13(a)(4), (“the Mandate”), as well as any penalties, fines, assessments, or enforcement actions for non-compliance, including those found in 26 U .S.C. §§ 4980D, 4980H, and 29 U.S.C. §§ 1132, 11 85d, and also Defendants, their officers, agents, servants, employees, successors in office, attorneys and those acting in active concert or participation with them are enjoined from applying and enforcing the Mandate against any insurance carriers or third party plan administrators with whom Plaintiffs may seek to contract with respect to the provision or administration of an employee health plan for Plaintiffs’ employees.

Case 1:13-cv-00709-RC Document 3-3 Filed 12/10/13 Page 4 of 4 PageID #: 116
3. No bond s hall be required of Plaintiffs as there is no de monstrable monetary harm to Defendants caused by this preliminary injunction.
4. The clerk to issue notice to Defendants that the hearing on Plaintiffs’ request for preliminary injunction is set for ________, 201__, at _______ am/pm.
5. This order will expire on _______________, 201____

 
 Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 1 of 62 PageID #: 136

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

ROMAN CATHOLIC DIOCESE OF BEAUMONT; CATHOLIC CHARITIES OF

) ) )

SOUTHEAST TEXAS, INC.,

)

Plaintiffs,

) )

v.

) Case No. 1:13-cv-00709-RC )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States Department of Health and Human Services, et

) ) )

al.,

)

)

)

Defendants.

)

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

Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 2 of 62 PageID #: 137
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................4
STANDARD OF REVIEW .............................................................................................................8
ARGUMENT ...................................................................................................................................9
I. THIS CASE SHOULD BE DISMISSED BECAUSE THE COURT LACKS SUBJECT MATTER JURISDICTION ...............................................................................9
II. PLAINTIFFS’ CLAIMS LACK MERIT...........................................................................11
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit ...............11
1. The regulations do not substantially burden plaintiffs’ exercise of religion...................................................................................................11
a. The regulations impose no more than a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs ....................12
b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA ...................................19
2. Even if there was a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests .......................................21
a. The regulations significantly advance compelling governmental interests in public health and gender equality.........21
b. The regulations are the least restrictive means of advancing the government’s compelling interests .........................27
B. The Regulations Do Not Violate the Free Exercise Clause ...................................30
C. The Regulations Do Not Violate the Free Speech Clause .....................................34
D. The Regulations Do Not Violate the Establishment Clause ..................................38
i

Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 3 of 62 PageID #: 138 E. The Regulations Do Not Interfere With Church Governance ...............................43 F. Plaintiffs’ APA Claim Fails ...................................................................................43
III. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC..............45
CONCLUSION ..............................................................................................................................47
ii

Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 4 of 62 PageID #: 139
TABLE OF AUTHORITIES
Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) .........................................................................................18
Adams v. Comm’r of Internal Revenue, 170 F.3d 173 (3d Cir. 1999)...............................................................................................29
Agostini v. Felton, 521 U.S. 203 (1997)...........................................................................................................43
Am. Family Ass’n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) .........................................................................................32
Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) .............................................................................................32
Annex Medical, Inc. v. Sebelius, No. 12-cv-2804, 2013 WL 101927 (D. Minn. Jan. 8, 2013) .............................................20
Archbishop of Washington v. Sebelius, No. 1:13-cv-01441-ABJ, slip op. (D.D.C. Dec. 20, 2013) ........................................ passim
Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................................................................................9
Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012) ....................... passim
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .........................................................................................32
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994)...........................................................................................................39
Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011) ...........................................................................................46
Bowen v. Kendrick, 487 U.S. 589 (1988)...........................................................................................................43
Bowen v. Roy, 476 U.S. 693 (1986)...........................................................................................................15
Braunfeld v. Brown, 366 U.S. 599 (1961)...........................................................................................................27
iii

Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 5 of 62 PageID #: 140
Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013)...............................................................................37
Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ...........................................................................................23
Capital Fed. Sav. & Loan Ass’n v. Comm’r of Internal Revenue, 96 T.C. 204 (1991).............................................................................................................42
Centro Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011) ...................................................................................38
Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ...........................................................................................40
Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328 (N.D. Ga. 2012) ..............................................................................18
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).........................................................................................26, 32, 33, 35
Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752 (7th Cir. 2003) ...........................................................................14, 17, 22, 36
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) .......................................................................................................12
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .........................................................................................41
Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008)...............................................................................................12
Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013) ......................................................................... passim
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .............................................................................................47
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) .....................................................................................47
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987)...........................................................................................................41
iv

Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 6 of 62 PageID #: 141
Cutter v. Wilkinson, 544 U.S. 709 (2005)...........................................................................................................40
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995) ..................................................................................23
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) ...........................................................................................25
Droz v. Comm’r of IRS, 48 F.3d 1120 (9th Cir. 1995) .............................................................................................40
Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL 1190001 (E.D. Mich. Mar. 22, 2013) .............................21, 33
Elrod v. Burns, 427 U.S. 347 (1976)...........................................................................................................47
Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990)...........................................................................................................32
Evergreen Ass’n v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011)................................................................................38
Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) .............................................................................................31
Found. of Human Understanding v. Comm’r of IRS, 88 T.C. 1341 (1987)...........................................................................................................42
GEICO v. Benton, 859 F.2d 1147 (3d Cir. 1988).............................................................................................45
Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402 (W.D. Penn. 2013)............................................................................33
Gillette v. United States, 401 U.S. 437 (1971)...........................................................................................................40
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006).....................................................................................................26, 28
Gooden v. Crain, 353 F. App’x 885 (5th Cir. 2009) ......................................................................................31
v

Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 7 of 62 PageID #: 142
Graham v. Comm’r, 822 F.2d 844 (9th Cir. 1987) .......................................................................................26, 31
Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012) ................................................................................30
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) .......................................................................................12, 36
Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) .........................................................................................................13
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) ..............................................................19, 22, 33
Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Eng’rs, 335 F.3d 607 (7th Cir. 2003) .............................................................................................42
Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 132 S. Ct. 694 (2012) .........................................................................................................44
Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42 (2d Cir. 1990).................................................................................................34
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ................................................................................... passim
Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177 (6th Cir. 1993) .................................................................................................35
Knight v. Conn. Dep't of Pub. Health, 275 F.3d 156 (2d Cir. 2001)...............................................................................................35
Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735 (S.D. Ill. 2012)..................................................................................30
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) .................................................................................12, 17, 19
Larson v. Valente, 456 U.S. 228 (1982)...............................................................................................39, 40, 41
Lemon v. Kurtzman, 403 U.S. 602 (1971)...........................................................................................................43
vi

Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 8 of 62 PageID #: 143
Liberty Univ., Inc. v. Lew, 2013 WL 3470532 (4th Cir. July 11, 2013).......................................................................41
Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729 (6th Cir. 2007) ..........................................................................17, 18, 22
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...........................................................................................................10
MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., No. 13-cv-11379, 2013 WL 1340719 (E.D. Mich. Apr. 3, 2013) ...............................33, 37
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) ...........................................................................................42
Mahoney v. Dist. of Columbia, 662 F. Supp. 2d 74 (D.D.C. 2009) .....................................................................................35
McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004).........................................................................................17, 22
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) .............................................................................................47
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) .....................................................................................23
Mersino Mgmt. Co. v. Sebelius, No. 2:13-cv-11296, 2013 WL 3546702 (E.D. Mich. July 11, 2013)...........................13, 19
Murphy v. State of Ark., 852 F.2d 1039 (8th Cir. 1988) ...........................................................................................31
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)...........................................................................................................39
Univ. of Notre Dame v. Seelius, No. 3:13-cv-01276-PPS-CAN, slip op. (N.D. Ind. Dec. 20, 2013) ........................... passim
Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936 (D.C. Cir. 2004) ...........................................................................................14
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989) ........................................................................................30, 31
vii

Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 9 of 62 PageID #: 144
O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149 (E.D. Mo. 2012)...................................................................... passim
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)...........................................................................................................39
Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989) .........................................................................................39
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) .............................................................................................34
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009) ...........................................................................................22
Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 1:13-cv-1261-EGS, slip op (D.D.C. Dec. 19, 2013) ........................................... passim
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)...........................................................................................................25
Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736 (1976)...........................................................................................................43
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR), 547 U.S. 47 (2006).............................................................................................................36
S. Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203 (6th Cir. 1990) ...............................................................................27, 28, 31
Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-CV-92-DDN, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) .............................33
Sherbert v. Verner, 374 U.S. 398 (1963).....................................................................................................21, 26
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)...............................................................................................................9
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ...........................................................................................48
Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981).........................................................................................12, 18, 21, 22
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Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 10 of 62 PageID #: 145
United States v. Amer, 110 F.3d 873 (2d Cir. 1997)...............................................................................................33
United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963)...........................................................................................................32
United States v. Corum, 362 F.3d 489 (8th Cir. 2004) .............................................................................................43
United States v. Israel, 317 F.3d 768 (7th Cir. 2003) .............................................................................................29
United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) .............................................................................................31
United States v. Lee, 455 U.S. 252 (1982).....................................................................................................25, 26
United States v. O’Brien, 391 U.S. 367 (1968)...........................................................................................................38
United States v. Oliver, 255 F.3d 588 (8th Cir. 2001) .............................................................................................25
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) .............................................................................................29
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ...................................................................................29, 31
United States v. Will, 671 F.2d 963 (6th Cir. 1982) .............................................................................................42
United States v. Winddancer, 435 F. Supp. 2d 687 (M.D. Tenn. 2006)............................................................................26
Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006) .............................................................................................18
Walz v. Tax Comm’n of NY, 397 U.S. 664 (1970)...........................................................................................................41
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007)...............................................................................................17
ix

Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 11 of 62 PageID #: 146
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)...........................................................................................................47
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007)...............................................................................................18
Whitmore v. Arkansas, 495 U.S. 149 (1990)...........................................................................................................10
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)...............................................................................................................10
Wisconsin v. Yoder, 406 U.S. 205 ..........................................................................................................18, 21, 26
Zubik v. Sebelius, No. 2:13-cv-01459, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013).............................12, 43
STATE CASES Catholic Charities of Diocese of Albany v. Serio,
859 N.E.2d 459 (N.Y. 2006)...................................................................................... passim Catholic Charities of Sacramento, Inc. v. Superior Court,
85 P.3d 67 (Cal. 2004) ............................................................................................... passim
FEDERAL STATUTES 29 U.S.C. § 1002........................................................................................................................3, 11 29 U.S.C. § 1003............................................................................................................................11 42 U.S.C. § 18011..........................................................................................................................27 42 U.S.C. § 18118....................................................................................................................44, 46 42 U.S.C. § 2000bb-1 ....................................................................................................................12 42 U.S.C. § 300..............................................................................................................................45 42 U.S.C. § 300a-6.........................................................................................................................45 42 U.S.C. § 300gg-13 ......................................................................................................................5
x

Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 12 of 62 PageID #: 147
Pub. L. No. 103-141, 107 Stat. 1488 (1993)..................................................................................12 Pub. L. No. 111-148, 124 Stat. 119 (2010)......................................................................................5
FEDERAL REGULATIONS 26 C.F.R. § 54.9815-2713A.....................................................................................................10, 37 29 C.F.R. § 2510.3-16....................................................................................................................10 29 C.F.R. § 2590.715-2713A.........................................................................................................37 45 C.F.R. § 147.131 ............................................................................................................... passim 45 C.F.R. § 147.140 .......................................................................................................................25 45 C.F.R. § 46.202 .........................................................................................................................44 62 Fed. Reg. 8610 (Feb. 25, 1997) ................................................................................................44 75 Fed. Reg. 34,538 (June 17, 2010) .............................................................................................25 75 Fed. Reg. 41,726 (July 19, 2010)..................................................................................22, 24, 47 76 Fed. Reg. 46,621 (Aug. 3, 2011).................................................................................................6 76 Fed. Reg. 7767 (Feb. 11, 2011) ................................................................................................46 77 Fed. Reg. 8725 (Feb. 15, 2012) ........................................................................................ passim 77 Fed. Reg. 16,501 (Mar. 21, 2012).........................................................................................7, 13 78 Fed. Reg. 8456 (Feb. 6, 2013) ..............................................................................................7, 13 78 Fed. Reg. 39,870 (July 2, 2013)........................................................................................ passim
LEGISLATIVE MATERIAL 139 Cong. Rec. S14350-01 S14352 (daily ed. Oct. 26, 1993)...................................................... 18 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) .......................................................... 44 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) ................................................ 23, 46 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) .......................................................23
xi

Case 1:13-cv-00709-RC Document 10 Filed 12/23/13 Page 13 of 62 PageID #: 148 H.R. Rep. No. 111-443 pt. II (2010) ..............................................................................................27
MISCELLANEOUS Guttmacher Institute, State Policies in Brief: Insurance Coverage of
Contraceptives (June 2013)..................................................................................................4 HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines ........... passim HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive
Services for Women (August 1, 2011) .............................................................................43 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING
THE GAPS 19-20, 109 (2011) ...................................................................................... passim Kaiser Family Foundation and Health Research & Educational Trust, Employer
Health Benefits 2012 Annual Survey ................................................................................25 Office of Population Affairs, Memorandum (Apr. 23, 1997)........................................................44
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INTRODUCTION The regulations are the product of a decision by defendants to attem pt to accommodate concerns expressed by som e non-profit religious organizations by relieving those with religious objections to contraceptive coverage of any respons ibility to contract, arrange, pay, or refer for contraceptive coverage or services. The Catho lic Diocese of Beaumont (“the Diocese”) is entirely exempt from the contraceptive cove rage requirement. And Catholic Charities of Southeast Texas, Inc. (“Catholic Charities”) is eligible for a regula tory accommodation th at relieves it from having to contract , arrange, pay or refer for contra ceptive coverage, and that in no way prevents it from continuing to voice its disapproval of contraception or from encouraging its employees to refrain from using con traception. To avail itself of this significant accommodation, Catholic Charities need do not hing more than provide its third-party administrator (TPA) with a copy of a self-certification th at it is eligible for the accommodation. Catholic Charities’ TPA has no obligation to provi de contraceptive coverage, either. It is hard to fathom how the mere act of requiring Catholic Charities to com plete this self-certification could amount to a “substantial” burden, especially where—as here—the certification requires noting of Catholic Charities’ TPA or anyone else with respective to contraceptive coverage. Notably, both plaintiffs offer e mployees health coverage through the Diocese' s health plan, which, according to plaintiffs, is a sel f-insured “church plan.” C ompl. ¶¶ 42, 44. W hile defendants continue to consider potential options to fully and appr opriately extend the consumer protections provided by the regula tions to self-insured church plans, they acknowledge that, under current law, they lack authority to require the TPAs of self-insured church plans to m ake the separate payments for contraceptive services for participants and beneficiaries in such plans under the accommodation. For this and several other reasons, plainti ffs’ motion for a tem porary restraining order should be denied and this case should be dismissed or summary judgment should be granted in favor of the government. At the outset, as the court in Archbishop of Washington v. Sebelius, No. 1:13-cv-01441-ABJ (D.D.C. Dec. 20, 2013), recen tly recognized, with respect to sim ilarly
1

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situated organizations that offer insurance to th eir employees through a self-insured church plan, the plaintiffs here lack standing to assert th eir claims. As noted above, because th e Diocese’s plan is a self-insured church plan, the government lacks authorit y to require plaintiffs’ TPA t o make the separate payments for contraceptive serv ices for participants and benef iciaries in th e plan under the accommodation. Becau se both plaintiffs offer coverage to their em ployees through the Diocese’s plan, the injury of which plaintiffs complain—that the regulations somehow require th em to facilitate access to c ontraceptive services to which they object on religious grounds or to contract, arrange, or pa y for such services—simply does not apply to plaintiffs here and, as a result, plaintiffs lack standing. See id slip op. at 46-51.
Even if plaintiffs had standing, however, their assertion that th ese accommodations themselves violate their rights und er RFRA, t he First A mendment, and the Adm inistrative Procedure Act (APA) would fail. W ith respect to plaintiffs’ RFRA c laim, plaintiffs cannot establish a substantial burden on their religiou s exercise—as they must—because, as noted above, the governm ent cannot requi re plaintiffs’ TPA to provide separate paym ents for contraceptive services to the participants and beneficiaries of the plan. Thus, the regulations impose absolutely no burden on plaintiffs’ religious exercise, much less a substantial burden as required under RFRA. Furtherm ore, even if the governm ent could require plaintiffs’ TPA to make the separate payments, the regulations would not require plaintiffs to change their behavior in any significant way. Plaintiffs are not re quired to contract, arrange, pay, or refer for contraceptive coverage. To the contrary, plaintiffs are free to continue to refuse to do so, to voice their disapproval of contracep tion, and to encourage their em ployees to refrain from using contraceptive services. Pl aintiffs contend that the need for Ca tholic Charities to self-certify in order to ob tain the ac commodation is itself a burden on their religious exercise. But the challenged regulations require Ca tholic Charities only to self-certify that it has a religious objection to providing cont raceptive coverage and otherwise m eets the criteria fo r an eligib le organization, and to share that se lf-certification with its TPA. In other words, Catholic Charities is required only to convey to its TPA that it is a non-profit religious orga nization that objects to
2

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providing contraceptive services, which it has done or would have to do voluntarily anyway even

absent these regulations in order to ensure that it is not responsible fo r contracting, arranging,

paying, or referring for such covera ge. Plaintiffs can hardly claim that it is a violation of RFRA

to require them to do alm ost exactly what they would do in the ordinary course, absent the

regulations. See Univ. of Notre Dame v. Seb elius, No. 3:13-cv-01276-PPS-CAN, slip op. at 17-

24 (N.D. Ind. Dec. 20, 2013) (concluding that th e accommodation does not im pose a substantial

burden on the plaintiff’s religious exercise); Priests for Life v. U.S. De p’t of Health & Human

Servs., No. 1:13-cv-1261-EGS, slip op. at 17-30 (D.D.C. Dec. 19, 2013) (same).

Further, plaintiffs’ challenge rests largely on the theo ry that ev en the extrem ely

attenuated connection b etween them and the independent and wholly voluntary provision by

their TPA of payments for contraceptive services to which they object on religious grounds—but

for which plaintiffs pay nothing—amounts to a s ubstantial burden on thei r religious exercise.

This cannot be. Regardless of how plaintiffs

frame their religious beliefs, courts m ust

independently consider whether a given law im poses a substantial burden on those beliefs. The

regulations impose, at most, only the m ost de minimis burden on plaintiffs’ religious exercise,

too slight and attenuated to be “substantial” under RFRA, and little d ifferent from plaintiffs’

payment of salaries to their employees, which those employees can also use to buy contraceptive

services if they so choose.

Moreover, even if the challenged regulations were deemed to impose a substantial burden

on plaintiffs’ religious exercise, the regulatio ns would not violate RFRA because they are

narrowly tailored to serve two compelling interests: improving the health of women and newborn

children, and equalizing the provision of preven tive care for women and men so that women can

participate in the workforce, and society more generally, on an equal playing field with men.

Plaintiffs’ First Am endment claims are equa lly meritless. Indeed, nearly every cou rt to

consider similar First Amendment challenges to the prior version of the re gulations has rejected

the claims, and their analysis applies here. Plaintiffs’ APA claims also fail. The regulations are in

accordance with federal law, and defendants’ interpretation of the regulations is not erroneous.

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For these reasons, and those explained below, defendants’ motion to dism iss or, in the alternative, for summ ary judgment should be granted, and plaintiffs’ motion for a tem porary restraining order should be denied.
BACKGROUND Before the Patient Protection and Affordab le Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of dis ease, lead productive lives, and reduce health care costs. Due largely to co st, Americans used pr eventive services at abou t half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1920, 109 (2011) (“IOM R EP.”), AR at 317-18, 407. 1 Section 1001 of the ACA—which includes the preventive services coverage provision relevant here—seeks to cure this problem by m aking preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without costsharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4). Because there were n o existing HRSA gui delines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) requested that the Institute of Medicine (IOM) de velop recommendations to implement the requirement to provide coverage, without cost-sharing, of pr eventive services for wom en. IOM REP. at 2, AR at 300. 2 After conducting an extensive science-based re view, IOM recommended that HRSA guidelines include, among other things, well-wom an visits; breastfeeding support; dom estic violence screening; and, as relevant here, “the full range of [FDA ]-approved contraceptive m ethods, sterilization procedures, and patient educat ion and counseling for wom en with reproductive
1 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR). 2 IOM, which was established by the National Academy of Sciences in 19 70, is fun ded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv, AR at 289.
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capacity.” Id. at 10-12, AR at 308-10. IOM determ ined that coverage, without cost-sharing, for these services is necess ary to increase access to such serv ices, and thereby reduce unintended pregnancies (and the n egative health outcom es that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.3
On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exemption relating to certain r eligious employers authorized by regulations issued that same day (the “2011 a mended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guid elines (“HRSA Guidelines”), AR at 283 -84.4 Group health plans established or maintained by these religious employers (and associated group health insurance coverage) are ex empt from any requirement to cover contraceptive services consistent with HRSA’s guidelines. See id.; 45 C.F.R. § 147.131(a).
In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 a mended interim final regulations wh ile also creating a temporary enforcement safe harbor for non-gr andfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious
3 At least twenty-eight states have laws requiring health insurance policies that cover prescription drugs to also provide coverage for FD A-approved contraceptives. See Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives (June 2013), AR at 1023-26. 4 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and (4) the organization is a non profit organization as described in section 60 33(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
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organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215.

The regulations challenged here (the “2013 fina l rules”) repres ent the culm ination of that

process. See 78 Fed. Reg. 39,870 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar.

21, 2012) (Advance Notice of Proposed Rulem aking (ANPRM)), AR at 186-93; 78 Fed. Reg.

8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.

The 2013 final rules represent a significant accommodation by the governm ent of the

religious objections of c ertain non-profit religious organizations while promoting two important

policy goals. First, the regu lations provide wom en who wo rk for non-profit religious

organizations with access to contraceptive coverage without cost sharing, thereby advancing the

compelling government interests in safeguarding public health and ensuring that w omen have

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

fashion that does not require non-profit religious organizations with re ligious objections to

providing contraceptive coverage to contract, pay, arrange, or refer for that coverage.

The 2013 final rules simplify and clarify the religious employer exemption by eliminating

the first three crite ria and clarifying th e fourth criterion. See supra note 5. Under the 2013 final

rules, a “religious em ployer” is “an organiza tion that is organized and operates as a nonprofit

entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code

of 1986, as amended,” which refers to churches, their integrated auxiliaries, and conventions or

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

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

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

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

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

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

coverage requirement for group health plans

established or maintained by “eligible

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

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

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

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

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

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

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

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

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

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

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

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

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

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

an organization with an insured group hea

lth plan—such as Catholic Charities—the

organization’s health in surance issuer, upon recei pt of the self-certification, m ust provide

separate payments to plan participants and bene ficiaries for contraceptive services without cost

sharing, premium, fee, or other ch arge to plan participants or be neficiaries, or to the eligible

organization or its plan. See id. at 39,875-77, AR at 7-9. And in th e case of an organization with

a self-insured group health plan—such as other plaintiffs here—the or ganization’s TPA, upon

receipt of the self-certification, will provide or arrange separa te payments for contraceptive

services for participants and bene ficiaries in the plan; again, w ithout cost-sharing, premium, fee,

or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See

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id. at 39,87 9-80, AR at 11-12. Any costs in curred by the TPA will be reim bursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
The 2013 final rules generally apply to group h ealth plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except that the amendments to the relig ious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
STANDARD OF REVIEW Defendants move to dismiss this case for lack of subject matter jurisdiction and failure to state a claim upon which relief m ay be granted under Federal Rules of Ci vil Procedure 12(b)(1) and 12(b)(6), respectively. Th e party invoking federal juri sdiction bears the burden of establishing its existence, and the Court must determine whether it has subject matter jurisdiction before addressing the merits of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 9495, 104 (1998). Under Rule 12(b)(6), “the ten et that a co urt must accept as true all of th e allegations contained in a com plaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statem ents, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To the exte nt that th e Court m ust consider the administrative record in addition to the face of the complaint, defendants move, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. A pa rty is entitled to summ ary judgment where the adm inistrative record demonstrates “that there is no genuine dispute as to any m aterial fact and that the m oving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This memorandum also responds to plaintiffs ’ motion for a tem porary restraining order and preliminary injunction. A tem porary restraining order is an “extraordinary remedy that may only be awarded upon a clear showing that th e plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council , Inc., 555 U.S. 7, 22 (2008). A plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irrep arable harm in the absence of preliminary relief, that the balance of equities tips in his f avor, and that an injunction is in the
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public interest.” Id. at 20.5

ARGUMENT

I. THIS CASE SHOULD BE DISMI SSED BECAUSE THE COURT LACKS SUBJECT MATTER JURISDICTION
Plaintiffs’ motion for a tem porary restraining order and prelim inary injunction, and their

entire case, should be dism issed at the outset for lack of

standing. “[T]he irreducible

constitutional minimum of standing” requires that a plaintiff (1) have suffered an injury in fact,

(2) that is caused by the defendant’s conduct, and (3 ) that is likely to be redressed by a favorable

ruling. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992). As to the injury prong, a

plaintiff must demonstrate that it has “suf fered an injury in fact—an invasion of a legally

protected interest which is (a) concrete and p articularized, and (b) ac tual or imm inent, not

conjectural or hypothetical.” Id. at 560 (quotations omitted). Allegations of possible future injury

do not suffice; rather, “[a] threatened injury must be certainly impending to constitute injury in

fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quotation omitted).

The harm alleged by plaintiffs is that, to avail themselves of the acco mmodations, the

challenged regulations require them to engage in action s that “facilitate” and/or make them the

“trigger” for the provision of paym ents for contraceptive services by a third party. See Pls.’

Mem. at 9. The Diocese’s plan, however, is a self-insured church plan, Com pl. ¶ 42, and

defendants lack regulatory author ity to require the TPAs of such self-insured church plans to

make the separate payments for contraceptive serv ices for participants and beneficiaries in such

plans under the accommodation.

In general, under the challe nged regulations, when a TPA receives a copy of the self-

certification from an eligible em ployer that sponsors a self-insured group health plan, that TPA

becomes an ERISA Se ction 3(16), 29 U.S.C. § 1002(16), plan adm inistrator and claim s

5 Plaintiffs’ reliance on out-of-circuit, pre-Winter case law to suggest that the relevant factors “merely ‘guide the discretion of the court,’” Pls.’ Mem. of Law in Supp. of Pls.’ Mot. for TRO & Prelim. Inj. (“Pls.’ Mem.”) at 11, ECF No. 3, is in significant tension with Supreme Court’s requirement that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the m erits,” Winter, 555 U.S. at 20 (emphasis added); Choice Inc. of Texas v. Greenstein, 691 F.3d 710, 717 n.35 (5th Cir. 2012).
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administrator for the pu rpose of providing th e separate payments for con traceptive services. See 29 C.F.R. § 2510.3-16(b). Thus, the contraceptive coverage requirements can be enforced against such TPAs through defendant Department of Labor’s ERISA enforcement authority. See 78 Fed. Reg. at 39,879-39,880, AR at 11-12. But church plans are specifically excluded from the am bit of ERISA. See 29 U.S.C. § 1003(b)(2). Thus, ERISA enfor cement authority is not available with respect to the TPAs of s elf-insured church plans under the accommodation, and the government cannot compel such TPAs under such authority to provide contraceptive coverage to self-insured church plan participants and beneficiarie s under the accom modation, including th e plaintiffs’ employees and their covered dependents.
The Diocese is entirely exempt from the regulations, and Catho lic Charities remains eligible for the acco mmodations under the final regu lation promulgated by defendant Department of the Treasury, 26 C.F.R. § 54.9815-2713A, and theref ore need not contract, arrange, pay, or refer for contraceptive coverage. 6 And neither plaintiffs’ plan nor their TPA is required under the regulations to provide separate paym ents for contraceptive services or to contract or otherwise arrange with a third party for such payments to be made. In short, under the challenged regulations, there is abso lutely no connection between plain tiffs and contracep tive coverage. Thus, the injury of which plaintiffs complain—that the regulations somehow require them to facilitate acces s to c ontraceptive services to which they object on religiou s grounds— simply does not apply to plaintiffs here. 7 Because plaintiffs lack standing to assert their claim s, this case should be dism issed in its entirety. See Archbishop of Washington , slip op. at 46-51 (finding that similarly situated plaintiffs lacked standing because there is no “concrete, actual or imminent, cognizable injury in fact”).
6 The same is true with respect to any other entity that qualifies as an “eligible organization” under the accommodations, whether or not that organization is a plaintiff in this action. 7 Nor can plaintiffs complain that their TPAs might voluntarily elect to provide contraceptive coverage notwithstanding the fact that defendants do not have the authority to require them to do so, as this allegation would be far too speculative for the purposes of Article III standing. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013).
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II. PLAINTIFFS’ CLAIMS LACK MERIT A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit 1. The regulations do not substantia lly burden plaintiffs’ exercise of religion Under RFRA, Pub. L. No. 103-141, 107 St at. 1488 (1993) (codified at 42 U.S.C.
§ 2000bb-1 et seq.), the federal government “shall not substantially burden a person’s exercise of religion” unless that burde n is the least restrictive means to further a compelling governm ental interest. 42 U.S.C. 2000 bb-1. Importantly, “only substantial burdens on the exercise of religion trigger the compelling interest requirement.” Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (emphasis added). “A substantial burden ex ists when government action puts ‘substantial pressure on an adherent to m odify his behavior and to violate his beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C . Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)); see also Notre Dame, slip op. at 16-17; Priests for Life, slip op. at 20. “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unim portant to the adherent’s religious schem e.” Kaemmerling, 553 F.3d at 678; see also Garner v. Kennedy, 713 F.3d 237, 241-42 (5th Ci r. 2013) (“In order to show a substantial burden, the plaintiff must show that the challenged action ‘truly pressures the adherent to significantly m odify his religious behavior and signi ficantly violate his religious beliefs.’”).
For three reasons, plaintiffs cannot show that the challeng ed regulations substantially burden their religious exercise. For three reasons, plaintiffs cannot show that the challenged regulations substantially burden their religious exercise. First, as ex plained above, because plaintiffs’ plan is a self-insured chu rch plan, the challenged regulations do not require plaintiffs’ TPA to provide separate payments for contraceptive services, or to contract or otherwise arrange with a third party for such payments to be made with respect to the participants and beneficiaries of plaintiffs’ plan. The regulations, therefore, impose absolutely no burden on plaintiffs’
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religious exercise, let alone a substantial burden. See supra Section I.8 Second, even assum ing
the regulations do require plaintiffs’ TPA to provide separate payments for contraceptive
services—which the regulations do not 9—the regulations require virtually nothing of plaintiffs,
and certainly do not require plain tiffs to modify their behavior in any m eaningful way. Thus, the
regulations cannot be deem ed to impose any more than a de minimis burden on plaintiffs—let
alone a substantial one. Third, even if this Court finds that the regulations im pose some burden
on plaintiffs’ religious exercise, any such burden would be far too attenuated to be substantial.
a. The regulations impose no more t han a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs
To put this case in its s implest terms, plaintiffs challenge regulations that require them to
do next to nothing, except what they would have to do even in the absence of the regulations.
The Diocese is entirely exempt from the contraceptive co verage requirement.10 And Catholic
8 Plaintiffs’ heavy reliance on out-of-circuit cases in volving for-profit companies (Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), cert. granted, No. 13-354; Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013); and Gilardi v. U.S. Dep’t of Health & Human Servs., 733 F.3d 1208 (D.C. Cir. 2013)), as well as the district court ruling in Zubik v. Sebel ius, No. 2:13-cv-01459, 2013 WL 6118696 (W.D. Pa. No v. 21, 2013), is misplaced. None of those ca ses involved eligible organizations that offer health coverage through a self-insured church plan, and thus, the courts had no occasion to address the arguments defendants raise here. Furthermore, those out-of-circuit for-profit com pany cases are inapposite because for-profit corporations—unlike plaintiffs—do not qualify for the religious employer exemption or the accommodations for eligible organizations. See 78 Fed. Reg. at 39,875, AR at 7. Thus, for example, the regulations require for-profit companies to contract or otherwise arrange and pay for contraceptive coverage for the participants and beneficiaries of their group health plans. Plaintiffs, by contrast, are in a markedly different position. As prev iously explained, the Diocese is ex empt, and in o rder to be relieved of t he obligation to contract or otherwise arrange and pay for c ontraceptive coverage, Catholic Charities must only fulfill the self-certification requirement. Similarly, the district court in Zubik was wrong to rely on those for-profit company ca ses. The Zubik court’s conclusion that the regulations at issue in that cas e (and in this one) impose a s ubstantial burden on t he plaintiffs in that case—which was rendered without citation to any legal authority, id.at *24-27—is unpersuasive. 9 Defendants will make this assum ption in t he remainder of their RFRA argument because plaintiffs’ claims fail regardless of whether the challenged regulations require anything of their third-party TPAs. 10 Plaintiffs state that the scope of the religious employer exemption adopted in the 2013 final rules is narrower than that contemplated in the ANPRM. See, e.g., Pls.’ Mem. at 8. This contention is both false and irrelevant. Plaintiffs contend that, in the ANPRM, the government suggested that non-exempt organizations that participate in the health plan of an exempt organization would benefit from the exemption. But defendants never advanced that interpretation of the exemption. Plaintiffs’ misleading quotation from the ANPRM, see id., does not indicate otherwise when read in full. In the ANPRM, defendants said:
In addition, we no te that this ex emption is available to relig ious employers in a variety of arrangements. For example, a C atholic elementary school may be a di stinct common-law employer from the Catholic diocese with which it is affiliated. If the school’s employees receive health coverage through a plan established or maintained by the school, and the school meets the
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Charities, as an eligible orga nization, is not require d to contract, arrange , pay, or refer for
contraceptive coverage. To the contrary, Catholic Charities is free to continue to refuse to do so,
to voice its disapproval of cont raception, and to encourage its em ployees to refrain f rom using
contraceptive services. Catholic Charities need only fulfill the self-certification requirement and
provide the completed self-certification to its TPA. Ca tholic Charities need not pay for
contraceptive services to their employees. In stead, third parties—pl aintiffs’ TPA—provide
payments for contraceptive s ervices, at no cost to p laintiffs. In short, with respect to
contraceptive coverage, the non-exempt plaintiff, Catholic Charities, need not do anything m ore
than it did prior to the promulgation of the challenged regulations—that is, to inform its TPA that
it objects to providing contraceptive coverage in order to ensure that it is not responsible for
contracting, arranging, paying, or referring for such coverage . Thus, the regulations do not
require plaintiffs “to modify [their] religious behavior in any way.” Kaemmerling, 553 F.3d at
679. The Court’s inquiry should end here. A law cannot be a substantial burden on religious
exercise when “it involves no ac tion 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, slip op. at 21-27.
Because the regulations place no burden at all on plaintiffs, they plainly place no
cognizable burden on their religio us exercise. Plaintiffs’ contrary argum ent rests on an
definition of a religious employer in the final regulations, then the religious employer exemption applies. If, instead, the same school provides health coverage for its employees through the same plan under which the diocese provides coverage for its employees, and the diocese is exempt from the requirement to cover contraceptive services, then neither the diocese nor the school is required to offer contraceptive coverage to its employees.
77 Fed. Reg. at 16,502 (emphasis added), AR at 187. This passage in no way suggests that a non-exempt employer (i.e., one that does not meet the definition of “religious employer” in the final rules) would become exempt simply by providing coverage through the same plan as an exem pt employer. Far from it, both hypotheticals presented in the ANPRM deal with a school—the “same” school—that itself m eets the definition of an e xempt religious employer. Defendants’ decision to exempt entities on an employer-by-employer basis is thu s consistent with defendants’ prior statements in the ANPRM. More over, the age ncies expressly “propose[d] to make the accommodation or the religious employer exemption available on an employer-by-employer basis” in the NPRM. 78 Fed. Reg. at 8467, AR at 176. Finally, even if the scope of the exemption in the final rules were different from what was originally proposed in the ANPRM—which it is not—plaintiffs have not indicated why that would be improper. In fact, that is the very purpose of the rulemaking process. See, e.g., Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 951 (D.C. Cir. 2004).
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unprecedented and sweeping theory of what it mean s for religious exercise to be burdened. Not only do plaintiffs wa nt to be free from contracting, arranging, paying, or referring for contraceptive services for their employees—w hich, under these regulations, they are—but plaintiffs would also prevent anyone else from providing such coverage to their em ployees, who might not subscribe to plaintiffs’ religious beliefs. That this is the de facto impact of plaintiffs’ stated objections is m ade clear by their sugg estion that RFRA is violated whenever they are a “but-for cause” of the provision of the objectionable products and services. See, e.g., Compl. ¶ 84. This theory would m ean, for example, that even the government would not realistically be able to provide contraceptive coverage to plaintiffs’ employees (as plaintiffs elsewhere suggest), because it would be “trigger[ed],” id.; Pls.’ Mem . at 9, by plainti ffs’ 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. S upp. 2d 1149, 1158-60 (E.D. Mo. 2012), appeal pending, No. 12-3357 (8th Cir.), and accordingly it does not prevent the government from providing alternative means of achieving important statutory objectives once it has prov ided a religious accommodation. Cf. Bowen v. Roy, 476 U.S. 693, 699 (1986) (“The Free Ex ercise Clause sim ply cannot be understood to require the Governm ent to conduct it s own internal affairs in ways that com port with the religious beliefs of particular citizens.”).
Plaintiffs’ RFRA challenge is s imilar to th e claim that the D.C. Circuit rejected in Kaemmerling. There, a federal prisoner objected to the FBI’s coll ection of his DNA profile. 553 F.3d at 678. In concluding that this collecti on did not substantially burden the prisoner’s religious exercise, the court concluded that “[t]he extraction and storage of DNA information are entirely activities of the FBI, in which Kae mmerling plays no role an d which occur af ter the BOP has taken his fluid or tissue sample (to which he does not object).” Id. at 679. In the court’s view, “[a]lthough the government’s activities with his fluid or ti ssue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be sa id to ham per his religious exercise because they do not pressure [him] to modify his behavior and to violate his beliefs.” Id. (internal citation and q uotation marks omitted). The same is true he re, where th e provision of
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contraceptive services is “entirely [an] activit[y] of [a third party], in which [plaintiffs] play[] no role.” Id. As in Kaemmerling, “[a]lthough the [third party]’s activities . . . m ay offend [plaintiffs’] religious beliefs, they cannot be said to hamper [their] religious exercise.” Id.
Perhaps understanding the tenuous ground on whic h their RFRA claim rests, given that the regulations do not require them to contract, arrange, pay, or refer for contraceptive services, plaintiffs attempt to circumvent this problem by advancing the novel theory that the regulations require them to som ehow “facilitate acce ss” to contrac eptive coverage, and that it is th is “facilitation” that violates plaintiffs’ religious beliefs. See, e.g., Compl. ¶¶ 5, 9, 13, 16; Pls.’ Mem at 21-22. But the challenged regulations do not require the Diocese to do anything, and require Catholic Charities only to self-certify that it obj ects to providing coverage for contraceptive services and that it otherwise meets the criteria for an eligible organization, and to share that self-certification with its TPA. In other words, Catholic Charities is required to inform its TPA that it objects to provi ding contraceptive coverage, which it has done or would have to do voluntarily anyway even absent these regulations in order to ensure that it is not responsible for contracting, arranging, paying, or referring for contraceptive coverage. The sole difference is that it must inform its TPA that its objection is for religious reasons—a statement it has already made repeatedly in this litigation and elsewhere.
Furthermore, any burden im posed by the pu rely administrative self-certification requirement—which should take Catholic Charities a matter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA. Courts have made clear that the substantial burden hurdle is a high one. Living Water Church of God v. Charter Twp. of Meridian , 258 F. App’x 729, 734 (6th Cir. 2007); see also Kaemmerling, 553 F.3d at 678 (“A n 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. I ndeed, if this is not a de minimis burden, it is hard to see what would be. In fact, p laintiffs’ alternative proposals only confirm that the alleged “burden” of self-certification is de minimis. They contend
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that, as an alternative to th e accommodations developed by th e Departments, the governm ent should somehow expand or create other public programs so as to provide contraceptive coverage to the women who participate in their group health plans. RFRA plainly does not require defendants to expand or create governm ent programs, particularly where, as here, there is no statutory authority to do so. See infra Section II.A.2.b. But, in an y event, plaintiffs’ own proposals would entail the sam e putative “burden” as the existing accommodations, or an even greater burden: One wa y or anothe r, plaintiffs would have to certif y their eligib ility for an accommodation, and the result would be that the wo men who participate in their plan would get contraceptive coverage through another source such as Medi caid. The governm ent would of course, as it does with Medicaid, have to verify employment and/or dependent beneficiary status with the eligible organ ization. The curren t accommodations are thus likely to req uire less of plaintiffs’ involvement than would a governm ent program to separately provide contraceptive coverage for their employees and dependents.
Contrary to plaintiffs’ suggestion, the m ere fact that Catholic Charities claim s that the self-certification requirement imposes a substantial burden on its religious exercise by requiring it to “facilitate” acce ss to contraception does not m ake it s o. See Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013) (“[W ]e reject the notion . . . that a plaintiff shows a burden to be substan tial simply by claiming that it is.”), aff’d, 724 F.3d 377 (3d Cir. 2013). Under RFRA, plaintiffs are entitled to their sincere relig ious beliefs, but they are not entitled to decide what does and does not im pose a substantial burden on such beliefs. Although “[c]ourts are not arbiters of scriptural interpretation,” Thomas, 450 U.S. at 716, “RFRA still requires the court to determine whether the burden a law imposes on a plaintiff’s stated religious belief is ‘su bstantial,’” Conestoga, 917 F. Supp. 2d at 413. Plaint iffs would lim it the Court’s inquiry to two prongs: first, whether plaintiffs’ religious objections to the regulations are sincere, and second, whether the regulations apply signif icant pressure to plaintiffs to comply. But plaintiffs ignore a critical third criterion of the “substantial burde n” test, which gives meaning to the term “substantial”: whether th e challenged regulations actually require plaintiffs to m odify
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their behavior in a significant—or more than de minimis—way. See Living Water Church of God, 258 F. App’x at 734-36; see also, e.g., Vision Church v. Vill. of Long Grove, 468 F.3d 975, 997 (7th Cir. 2006) (noting, in the RLUIPA context, that “t he Supreme Court has found a ‘substantial burden’ to exist when the governm ent puts ‘substantial pressu re on an adherent to modify his behavior and to violate his beliefs’” (quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 141 (1987))) (emphasis added); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348-49 (2d Cir. 2007); Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328, 1353-54 (N.D. Ga. 2012). As plaintiffs them selves appear to recognize, a “law ‘subs tantially burdens’ an exercise of religion if it compels one “to perform acts undeniably at odds with fundamental tenets of [one’s] religious beliefs,” Pls.’ Mem. at 23 (quoting Wisconsin v. Yoder , 406 U.S. 205, 218 (1972)) (em phasis added), “or ‘put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.’” Id. (quoting Thomas, 450 U.S. at 717-18) (emphasis added). This test does not require the Court to delve into the theological merits of a belief, b ut instead to examine the operation of the regu lations and their impact on plaintiffs’ religious practice. See Autocam, 2012 WL 6845677 at *7-8.11
Under plaintiffs’ alternative interpretation of RFRA, courts would play virtually no role in determining whether an alleged burden is “s ubstantial”—as long as a plaintiff’s religious belief is sincere, that would be the end of the inquiry. Plaintiffs would thus be allowed to evade RFRA’s threshold by simply asserting that the burd en on their religious exercise is “substantial,” thereby paradoxically reading the term “substantial” out of RFRA. See id. at *6 (“The Court does
11 In Hobby Lobby, a bare majority of the en banc Tenth Circuit concluded that, in determining whether a burden is substantial, a court’s “only task is to determine whether the claimant's belief is sin cere, and if so, whether the government has appl ied substantial pressure on the claimant to violate that belief.” 723 F.3d at 1137. The government believes that the majority’s ruling in Hobby Lobby was wrong on this and many other points. However, even if this Court we re inclined to agree with the Tenth C ircuit, the majority proceeded to rely on Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), which makes clear that in order for a law to impose a substantial burden, it must require some actual change in religious behavior—either forced participation in conduct or forced abstention from conduct. See Hobby Lobby, 723 F.3d at 1138 (citing Abdulhaseeb, 600 F.3d at 1315). The Hobby Lobby substantial burden analysis is also inapposite because for-profit co rporations are no t eligible for th e accommodations. For similar reasons, the Seventh Circuit’s substantial burden analysis in Korte—which followed Hobby Lobby—is unpersuasive. See Korte, 735 F.3d at 687.
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not doubt the sincerity of Plaintiff Kennedy’s deci sion to draw the line he does, but the Court still has a duty to assess whether the claim ed burden—no m atter how sincerely felt—really amounts to a substantial burden on a person’s exer cise of religion.”). “I f every plaintiff were permitted to unilaterally determine that a law b urdened their re ligious beliefs, and c ourts were required to assume that such burden was substantial, simply because the plaintiff claimed that it was the case, then the standard expressed by Congress under the RFRA would convert to an ‘any burden’ standard.” Conestoga, 917 F. Supp. 2d at 413-14; see also Autocam, 2012 WL 6845677, at *7; Mersino Mgmt. Co. v. Sebelius, No. 13-CV-11296, 2013 WL 3546702, at *16 (E.D. Mich. July 11, 2013). 12 The result would be to subject every ac t of Congress to strict scrutiny every time a plaintiff could articulate a sincerely held religious objection to compliance with that law.
Finally, plaintiffs seem to suggest that the re gulations will actually require them to fund or subsidize access to contraceptive coverage because their issuers will find a way to pass on the costs of such coverage to plaintiffs. See, e.g., Pls.’ Mem. at 20. But the regulations specifically prohibit plaintiffs’ TPA from charging any pr emium or otherwise pa ssing on any costs to plaintiffs with re spect to the issuers’ payments for contraceptive services. See 78 Fed. Reg. at 39,880, AR at 12; see also Notre Dame, slip op. at 23-24. Any suggest ion that plaintiffs’ TPA(s) will violate the law is purely spe culative, and boils down to the baseless a rgument that the regulations impose a s ubstantial burden beca use a third party m ight violate those sam e regulations. This contention has no merit.
In sum, the regulations do not impose a su bstantial burden on plaintiffs’ religious exercise, and thus Count I should be dismissed or summary judgment granted to defendants.
12 RFRA’s legislative history makes clear that Congress did not intend such a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, substantial or otherwise. Congress amended the bill to add the word “substantially,” “to make it clear that the compelling interest standards set forth in the act” apply “only to Government actions [that] place a substantial burden on the exercise of” religious liberty. 139 Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy); see also id. (text of Amendment No. 1082).
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b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA
Although the regulations do not require plainti ffs to contract, arrange, pay, or refer for contraceptive coverage, plaintiffs’ complaint appears to be that the regulations require plaintiffs to indirectly facilitate conduct on the part of their employees that they find objectionable (i.e., the use of certain contraceptives). But this complaint has no limits. An employer provides numerous benefits, including a salary and ot her fringe benefits, to its em ployees and by doing so in som e sense facilitates whatever use its employees make of those benefits. Plaintiffs not only seek to be free from the requirement to contract, arrange , pay, or refer for contraceptive coverage themselves—which they are under these regulations —but also seek to prevent anyone else from providing such coverage to their employees. But an employer has no right to control the choices of its employees, who may not share its religious beliefs, and who have a legitim ate interest in access to the preventive services coverage made available under the challenged regulations.
Indeed, courts have held that claim s raised b y for-profit com panies challenging the contraceptive coverage regulations, which—unlike here—actually require employers to contract, arrange, pay, or refer for the relevant coverage themselves, are too attenuated to am ount to a substantial burden under RFRA. See, e.g., Autocam, 2012 WL 6845677, at *6-7. Any burden on plaintiffs, which are eligible for the religious employer exemption or the accommodations, is a fortiori too attenuated to be subs tantial. For ex ample, the distr ict court in Conestoga reasoned that the ultimate decision of whether to use contraception “rests not with [the employer], but with [the] employees” and that “any burden im posed by the regulations is too attenuated to be considered substantial.” 917 F. Supp. 2d at 414-15. The Conestoga court further explained that the indirect nature of any burden imposed by the regulations distinguished them from the statutes challenged in Yoder, Sherbert, Thomas, and Gonzales. See Conestoga, 917 F. Supp. 2d at 415; see also, e.g., Autocam, 2012 WL 6845677, at *6; O’Brien, 894 F. Supp. 2d at 1158-60.13
As these courts concluded, the preventive services coverage regulations result in only an
13 See also Korte, 735 F.3d at 705-15 (Rovner, J., dissenting); Eden Foods, 2013 WL 1190001; Annex Medical, Inc. v. Sebelius, No. 12–2804, 2013 WL 101927, *4-5 (D. Minn. Jan. 8, 2013).
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indirect impact on for-profit companies, which must provide contraceptive coverage themselves. Any burden on plaintiffs and sim ilar eligible organizations that qualify for the acco mmodations is even more attenuated. Not only are plain tiffs separated from the use of contracep tion by “[a] series of event s” that must occur before the u se of contraceptiv e services to which plaintiffs object would “come into play,” Conestoga, 917 F. Supp. 2d at 414-15, but they are also further insulated by the f act that a th ird party—plaintiffs’ TPA—and not plaintiffs, will a ctually contract, arrange, pay, and refer for such services, and thus plaintiffs are in no way subsidizing— even indirectly—the use of prev entive services that they find objectionable. Under plaintiffs’ theory, their religious exercise is substantially burdened w hen one of their em ployees and her health care provider m ake an i ndependent determination that th e use o f certain co ntraceptive services is appropriate, and such services are paid for exclusively by plaintiffs’ issuers, with none of the cost being passed on to plaintiffs, and no administration of the paym ents by plaintiffs, solely because plaintiffs self-certified that they have religious ob jections to providing contraceptive coverage and so informed their issuers.
But a burden cannot be “substantial” under RFRA when it is attenuated. See Autocam, 2012 WL 6845677, at *6-7. Cases that find a substantial burden unifor mly involve a direct burden on the plaintiff rather than a burden imposed on another entity. See, e.g., Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009); see also Conestoga, 917 F. Supp. 2d at 413-14. A plaintiff cannot establish a substa ntial burden on his relig ious exercise by invoking this type of trickle-down theory; to constitute a substantial burden under RFRA, the burden must be imposed on the plaintiff him self. See Conestoga, 917 F. Supp. 2d at 411, 413; Autocam, 2012 WL 6845677, at *7.14 Here, of course, there is no such direct burden. In f act, given that any payment
14 Thomas is not to the contrary. In Thomas, the Suprem e Court recognized that “a compulsion may certainly be indirect and still constitute a substantial burden, such as the denial of a benefit found in Thomas.” Conestoga, 917 F. Supp. 2d at 415 n.15. But that is not so where the burden itself is ind irect, as it is h ere. See id.. As p reviously explained, see supra note 9, in Hobby Lobby, 723 F.3d 1114, a bare majority of the en banc Tenth Circuit concluded that the word “substantial” in RFRA refers to the “intensity of coercion” rather than to the directness or indirectness of the burden, if any, on a pl aintiff’s religious exercise. Id. at 1137-40. The Te nth Circuit’s conclusion that the substantial burden requirement relates to the intensity of the coercion, however, is inconsistent with Kaemmerling, discussed above, as well as other decisions that have analyzed “substantial burden” in terms of the degree to which the challenged law directly imposes a requ irement or pr ohibition on religious practice. See 553 F.3d at 678-79;
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for contraceptive services is made by plaintiffs’ issuers, the regulations have even less impact on plaintiffs’ religious exercise than plaintiffs’ payment of salaries to their employees, which those employees can use to purchase contraceptives. See O’Brien, 894 F. Supp. 2d at 1160; Conestoga, 917 F. Supp. 2d at 414; Korte, 735 F.3d at 715-16 (Rovner, J., dissenting); Autocam, 2012 WL 6845677, at *6.
Plaintiffs remain free t o refuse t o contract, arrange, pay, or refer for contraceptive coverage; to voice their disapproval of contra ception; and to encourage their employees t o refrain from using con traceptive services. The regulations therefor e affect plain tiffs’ religious practice, if at all, in a most attenuated way. In short, because the prev entive services coverage regulations “are several degrees removed from im posing a substa ntial burden on [plaintiffs],” O’Brien, 894 F. Supp. 2d at 1160, the Court should dism iss plaintiffs’ RFRA claim, or grant summary judgment to defendants, even if it finds—contrary to the government’s argument—that the challenged regulations impose some burden on plaintiffs’ religious exercise.
2. Even if there w ere a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests a. The regulations significantly advance compelling govern mental interests in public health and gender equality
Even if plaintiffs were able to de monstrate a substantial burden on their religious exercise, they would not prevail because th e challenged regulations are justified by two compelling interests, and are the le ast restrictive means to achieve th ose interests. First, the promotion of public health is unquestionably a com pelling interest. Mead v. Holder , 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also, e.g., Buchwald v. Univ. of N.M. Sch. of Med. , 159 F.3d 487, 498 (10th Cir. 1998); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995). And the challenged regulations further this com pelling interest by “expanding access to and utilization of recommended preventive services for women.” 78 Fed. Reg. at 39,887, AR at 19.
Living Water Church of God, 258 Fed. App’x at 734 ; McEachin, 357 F.3d at 203 n.6; Civil Liberties for Urban Believers, 342 F.3d at 761. And, again, the substantial burden analysis in Hobby Lobby and Korte are inapplicable to this case. See supra notes 8 & 11.
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The primary predicted benefit of the preventi ve services coverage regulations is that “individuals will experience im proved health as a result of reduced tran smission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increas e access to and utilization of these services, which are no t used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significan t barrier to access to con traception.” (citation omitted)), AR at 5.
Increased access to FDA-approved contraceptive services is a key part o f these predicted health outcomes, as unintended pregnancies have proven in m any cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39, 872, AR at 4. As IOM concluded in identifying services recomm ended to “prevent conditions harm ful to wom en’s health and well-being,” unintende d pregnancy m ay delay “entry in to prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “dep ression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02. Contraceptive coverage further helps to avoid “the increased risk of adverse pregnancy outcom es for pr egnancies that are too clo sely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small-for-gestational age births.”) (citing stu dies), AR at 4. And “[ c]ontraceptives also have medical benefits for women who are contraindicated for pregnancy, and there are dem onstrated preventive health benefits from contraceptives relating to conditions other than pregnancy (for example, prevention of certain cancers, m enstrual disorders, and acne).” 78 Fed. Reg. at 39,872, AR at 4; see also IOM REP. at 103-04 (“[ P]regnancy may be contrai ndicated for wom en with serious m edical conditions such as pulmonary hypert ension . . . and cyanotic hear t disease, and for wom en with the Marfan Syndrome.”), AR at 401-02.
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Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations: assuring that women have equal access to hea lth care services. 78 Fed. Reg. at 39,872, 39,887, AR a t 4, 19. As the Suprem e Court explained in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), there is a fundam ental “importance, both to the individual and to society, of removing the barriers to econom ic advancement and political and social integration that have historically plagued certain disa dvantaged groups, including wom en.” Id. at 626. Thus, “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interests.” Id. By including in the ACA pre ventive health services for women, Congress made clear that the goals and benefits of effective prev entive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into account in the ACA. As explained by members of Congress, “wom en have different health needs than m en, and these need s often generate additi onal costs. W omen of childbearing age spend 68 percent m ore in out-of-pocket health care costs than m en.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) (s tatement of Sen. Mikulski); 78 Fed. Reg. at 39,887, AR at 19; IOM R EP. at 19, AR at 317. These costs resu lt in wom en often forgoing preventive care and place wom en in the workforce at a disadvantag e compared to their m ale coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 20, AR at 318. Congress’s atte mpt to equalize the provision of preventive health care services, with the resulting benefit of women being able to contribu te to the same degree as m en as healthy and productive members of society, furthers a com pelling governmental interest. Cf. Catholic Charities of Sacramento, Inc. v. Superior Court , 85 P.3d 67, 92-93 (Cal. 2004).15
15 In arguing that the government’s interests are not compelling, plaintiffs suggest the government must separately analyze the impact of and ne ed for the regulations as to each and every employer and employee in America. See Pls.’ Mem. at 27. But this level of s pecificity 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 p ractice, courts have not required the government to analyze the impact of a regulation on the single entity seeking an exemption, but have conducted the inquiry with respect to all similarly situated individuals or organizations. See, e.g., id. at 260 (considering the impact on the tax system if all religious adherents—not just the plaintiff—could opt out); United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (per curiam) (“Oliver has argued a one-man exemption should be made, however, there is nothing so
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Although the challenged regulations further these two compelling governmental interests,
while simultaneously accommodating the religious objections of eligible organizations, plaintiffs
maintain that the inte rests underlying the regulations cannot be considered com pelling when
millions of people are n ot protected by the regula tions at the m oment. Pls.’ Mem. at 27-28. But
this is not a case where underinc lusive enforcement of a law suggests that the governm ent’s
“supposedly vital interest” is not really com pelling. Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 546-47 (1993). For the m ost part, the “exemptions” referred to by
plaintiffs are not exemptions from the preventive services coverage regul ations at all, but are
instead provisions of the ACA that exclude individuals and entities from other requirem ents
imposed by the ACA. Or they reflect th e government’s attempts to balance the compelling
interests underlying the challenge d regulations against other si gnificant interests supporting the
complex administrative scheme created by the ACA. See Lee, 455 U.S. at 259 (“The Court has
long recognized that balance m ust be struck be tween the values of th e comprehensive social
security system, which rests on a complex of actuarial factors, and the consequences of allowing
religiously based exemptions.”); Winddancer, 435 F. Supp. 2d at 695-98 (recognizing that the
regulations governing access to eagle parts “strik e a delicat e balance” between competing
interests). And, unlike the exem ption plaintiffs seek for employers that obj ect to the regulations
on religious grounds, the existing exceptions do not undermine the government’s interests in a
peculiar or special with Oliver’s situation which warrants an exception. There are no safeguards to prevent similarly situated individuals from asserting the same privilege and leading to uncontrolled eagle harvesting.”); Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1398 (4th Cir. 1990) (“There is no principled way of exempting the school without exempting all other sectarian schools and thereby the thousands of lay teachers and staff members on their payrolls.”); see also, e.g., Graham v. Comm’r, 822 F.2d 844, 853 (9th Cir. 1987), overruled in part on other grounds by Navajo Nation v. U .S. Forest Serv., 479 F.3d 1 024, 1033 (9th Cir. 200 7) (en banc); United States v. Winddancer, 435 F. Supp . 2d 687, 697 (M.D. Tenn. 2006). Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 435 (2006), is not to the contrary. To be sure, the Court rejected “slippery-slope” arguments for refusing to accomm odate a particular claim ant. See 546 U.S. at 435-36. But it construed the scope of the requested exemption as enc ompassing all members of t he plaintiff religious sect. See id. at 4 33. Similarly, the exemption in Yoder, 406 U.S. 205, encompassed all Amish children; and the exemption in Sherbert v. Verner, 374 U.S. 398 (1963), encompassed all individuals who had a religious objection to working on Saturdays. See O Centro, 546 U.S. at 431. The Court’s warning in O Centro against “slippery-slope” arguments was a rejection of arguments by analogy—that is, sp eculation that providing an exemption to one group will lead to exemptions for o ther nonsimilarly situated groups. It was not an invitation to ignore the reality t hat an exemption for a p articular claimant might necessarily lead to an exemption for an entire category of similarly situated entities.
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significant way. See Lukumi, 508 U.S. at 547; S. Ridge B aptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1208-09 (6th Cir. 1990); see also 78 Fed. Reg. at 39,887, AR at 19.
For example, the grand fathering of certain health plans with respec t to certa in ACA provisions is not limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140. In fact, the effect of grandfat hering is not really a perm anent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preven tive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at 19. The grandfathering provision reflects Congress’s at tempts to balance competing interests—specifically, the inte rest in spread ing the benefits of the ACA, including those provided by the preventive servi ces coverage provision, and the inte rest in maintaining existing coverage and easing the transition into the ne w regulatory regime established by the ACA—i n the context of a complex statutory scheme. See 75 Fed. Reg. 34,538, 34,546 (June 17, 2010).
This incremental transition does not call into question the compelling interests furthered by the preventive services coverage regulations. Even under the grandfathering provision, it is projected that more group health plans will tran sition to the requirements under the regulation s over time. Defendants have estim ated that a majority of group heal th plans will have lost their grandfather status by the end of 2013. See id. at 34,552; see also Kaiser Family Foundation and Health Research & Educational Trust, Em ployer Health Benefits 2012 A nnual Survey at 7-8, 190, AR at 663-64, 846. Thus, any purported adve rse effect on the com pelling interests underlying the regulations will be quickly mitigated, which is in s tark contrast to the permanent exemption plaintiffs seek. Plaintiffs would have this Court believe that an interest cannot truly be “compelling” unless Congress is willing to im pose it on everyone all at once despite com peting interests, but plaintiffs offer no support for that untenable proposition.16
16 Plaintiffs also allude to a “small-employer exemption[].” Pls.’ Mem. at 27-28. But 26 U.S.C. § 4980H(c)(2) does not, as plaintiffs suggest, exempt small employers from the challenged regulations. Small b usinesses that elect to offer non-grandfathered health coverage to their employees are re quired to provide coverage for recommended preventive health services without cost sharing. See 42 U.S.C. § 300gg-13. And, small employers have business incentives to offer health coverage to their employees; an otherwise eligible small employer would lose eligibility for certain tax benefits if it did not do so. See 26 U.S.C. § 45R.
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The only true exem ption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a). But there is a rational distinction between this narrow exception and the expansion plaintiffs seek. Houses of worship and their in tegrated auxiliaries that object to contraceptive coverage on religious grounds are m ore likely than other em ployers, including organizations eligible for the accommodations, to employ people of the sa me faith who share the sam e objection, and who would therefore be less likely to use contracep tive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19. In any event, it would be perverse to hold that the governm ent’s provision of a li mited religious exemption eliminates its compelling interest in the regulation, thus eff ectively extending the sam e exemption to anyone else who wants it under RFRA. Such a reading of RFRA would discourage the government from accommodating religion, the opposite of what Congress intended in enacting RFRA.
Granting plaintiffs the m uch broader exemption they request w ould undermine defendants’ ability to en force the regulations in a rational manner. See O Centro , 546 U.S. at 435. We are a “cosm opolitan nation made up of people of alm ost every conceivable religious preference,” Braunfeld v. Brown, 366 U.S. 599, 606 (1961); 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 preventive services coverage regulations—even where the regulations require virtually nothing of the organization— it is d ifficult to see how defendants could adm inister the regul ations in a m anner that would achieve Congress’s goals of i mproving the h ealth of wom en and newborn children and equalizing the coverage of preventive services for wom en. See United States v. Isr ael, 317 F.3d 768, 772 (7th Cir. 2003) (recognizing that granti ng plaintiff’s RFRA claim “would lead to significant administrative problems for the [government] and open the door to a . . . proliferation of claims”). Indeed, women who receive their health coverage th rough employers like plaintiffs would face negative health and other outcom es because they had obtain ed employment with an organization that objects to its em ployees’ use of contraceptiv e services, even when those
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services are paid for and adm inistered by a third party. See id. (noting consequences “for the public and the government”); 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,887, AR at 19.
b. The regulations are the least restrictive means of advancing the government’s compelling interests
When determining whether a particular regulato ry scheme is the “least res trictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme—or whether the schem e can otherwise be modified—without undermining the government’s compelling interests. See, e.g., United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987); United States v. Wilgus, 638 F.3d 1274, 128995 (10th Cir. 2011). The governm ent is not requi red “to do the im possible—refute each and every conceivable alternative reg ulation scheme.” Wilgus, 638 F.3d at 1289. Instead, the government need only “refute the alternative schemes offered by the challenger.” Id.
Instead of explaining how plaintiffs and sim ilarly situated eligible organizations could be exempted from the regulations without significant dam age to the governm ent’s compelling interests, plaintiffs conjure up, without any statutory support, several brand ne w statutory and regulatory schemes—most of which would requi re the governm ent to pay for contraceptive coverage—that they claim would be less restrictive. See Pls.’ Mem. at 33. Yet plaintiffs fail to recognize that such alternatives would be incom patible with the fundame ntal statutory schem e set forth in the ACA, which plaintif fs do not challenge in this lawsuit. Congress did not adopt a single (government) payer system financed th rough taxes and instead opted to build on the existing system of e mployment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010). Plaintiffs point to no statutory authority for any of their proffered less restrictive alternatives. Nor is there any indication that Congress would ha ve contemplated that agency action could be inv alidated under RFRA because th e agency in discharging its statutorily delegated authority failed to adopt an alternative scheme absent any statutory authority for doing so. Thus, even if defendants wanted to adopt on e of plaintiffs’ non-employer-based alternatives, they would be constrained by the statute from doing so. See 78 Fed. Reg. at 39,888, AR at 20.
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Furthermore, plaintiffs them selves indicate that they would “oppose m any of” the alternatives that they put forth. Pls.’ Mem . at 33. Indeed, as noted above, it is not clear why the government’s provision of contraceptive cove rage to wom en based upon their em ployer’s objection to providing it would not be subject to exac tly the sam e RFRA claim that plaintiffs advance here. By their own admission then, plaintiffs’ proposals would do little—if anything—to satisfy their religious objections , and therefore should not be cons idered viable less restrictive alternatives. See New Life Baptist Church Acad. v. Town of E. Longmeadow , 885 F.2d 940, 95051 (1st Cir. 1989) (Breyer, J.) (considering the limited extent to which an alternative would alleviate a religious burden in rejecting it as a “less restrictive alte rnative,” even though the plaintiff had expressed a preference for the a lternative over the challen ged requirements). An eligible organization’s religious objection to contraceptive coverage would still “f acilitate” the availability of such coverage—in this case, by the governm ent—and the eligible organization would likely be called upon to verify or certify matters such as the religious objection to contraceptive coverage, and em ployment or plan beneficiary status. Plai ntiffs cannot plausibly contend that the regulations ar e not the le ast restrictive means while s imultaneously asserting that they would oppose their own suggested alternatives.
Finally, even if plaintiffs w ould be satisfied by their proposed alternative schemes, just because plaintiffs can devise an en tirely new legislative an d administrative scheme does not make that schem e a feasible less restrictive means, see Wilgus, 638 F .3d at 1289; Adams v. Comm’r of Internal Revenue , 170 F.3d 173, 180 n.8 (3d Cir. 1999) , particularly where such alternatives would com e at enorm ous administrative and financial cost to the governm ent. A proposed alternative scheme is not an adequate a lternative—and thus not a viable less restrictive means to achieve a compelling interest—if it is not feasible. See, e.g., New Life Baptist, 885 F.2d at 947; Graham, 822 F.2d at 852. In determ ining whether a proposed alternative schem e is feasible, courts often consider the additional adm inistrative and fiscal costs of the schem e. See, e.g., S. Ridge Baptist Church, 911 F.2d at 1206; Fegans v. Norris, 537 F.3d 897, 905-06 (8th Cir. 2008); United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011); New Life Baptist, 885 F.2d at
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947. Defendants considered pl aintiffs’ alternatives and determined that they were not feasible because the agencies lacked statu tory authority to im plement them; they would i mpose considerable new costs and other burdens on the government; and they would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Lafley, 656 F.3d at 942; Gooden v. Crain, 353 F. App’x 885, 888 (5th Cir. 2009); Adams, 170 F.3d at 180 n.8.
Nor would the proposed alternatives be equa lly effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g. , Kaemmerling, 553 F.3d at 684 (finding that m eans was least restrictive where no a lternative means would achieve compelling interests); Murphy v. State of Ark. , 852 F.2d 1039, 1042-43 (8th Cir. 1988) (sam e). As discussed above, Congress determ ined that th e best way to achieve the goals of the ACA, including expanding preventive services coverage , was to build on the existing em ployer-based system. The anticipated benefits of the preventiv e services coverage regulations are attributable not only to the fact that recommended contraceptive services will be available to women with no cost-sharing, but also to the fact that these services will be available through the existing employer-based system of health co verage through which wom en will face m inimal logistical and administrative obstacles to receiving cov erage of their care. Plaintiffs’ alternatives, b y contrast, have none of these advantages. They would require estab lishing entirely new government programs and infrastructures or f undamentally altering existing ones, and would almost certainly require women to take burdensome steps to find out about the availability of and sign up for a new benefit, thereby ensuring that fewer women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20. Nor do plaintiffs of fer any suggestion as to how thes e programs could be integrated with the employer-based system or how wom en would obtain governm entprovided preventive services in p ractice. Thus, plaintiffs’ proposals—in addition to rais ing myriad administrative and logistical dif ficulties and being unauthor ized by any statu te and not funded by any appropriation—are less likely to achieve the compelling interests furthered by the regulations, and therefore do not represent reasonable less restrictive means. Id.
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Because plaintiffs have failed to offer viable less restrictive alternatives, the Court should reject plaintiffs’ argument that the regulations fail strict scrutiny.17
B. The Regulations Do Not Violate the Free Exercise Clause
A law that is neutral and ge nerally applicable does not r un afoul of the Free Exercis e
Clause even if it prescribes conduct that an indi vidual’s religion proscribes or has the incidental
effect of burdening a particular religious practice. Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990).
“Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law is neutral
if it does not target religiously m otivated conduct either on its face or as applied. Id. at 533. A
neutral law has as its pu rpose something other than the disapproval of a particular religion, or of
religion in general. Id. at 545. A law is generall y applicable so long as it does not selectively
impose burdens only on conduct motivated by religious belief. Id.
Unlike such selective laws, the preventive se rvices coverage regulations are neutral and
generally applicable. Indeed, nearly every court to have consid ered a free exercise challeng e to
the prior version of the regulations has rejected it, concluding that the regulations are neutral and generally applicable.18 See, e.g., Notre Dame, slip op. at 25-31; Priests for Life, slip op. at 30-35;
Archbishop of Washington , slip op. at 51-60, Autocam, 2012 WL 6845677, at *5. “The
regulations were passed, not with the object of interfering with religious practices, but instead to
improve women’s access to health care and les sen the d isparity between m en’s and women’s
17 Plaintiffs cite extra-record evidence in support of many of their arguments. For example, they cite a law review article for th e proposition that th e challenged regulations “are unlikely to sign ificantly impact contraceptive use.” See Pls.’ Mem. at 30. The introduction of this and other extra-record evidence is in appropriate and should not be considered by the Court. Plaintiffs are challenging agency regulations, and thus this Court’s review is limited to the administrative record. See, e.g., United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963). 18 See MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., No. 13-11379, 2013 WL 1340719, at *5 (E.D. Mich. Apr. 3, 2013); Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL 1190001, at *4-*5 (E.D. Mich. Mar. 22, 2013); Conestoga, 917 F. Supp. 2d at 409-10; Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943, 952-53 (S.D. Ind. 2012), rev’d on other grounds, No. 13-1077 (7th Cir. Nov. 8, 2013); Autocam, 2012 WL 6845677 at *5; Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735, 744-47 (S.D. Ill. 2012), rev’d on other grounds, No. 12-3841 (7th Cir. Nov. 8, 2013); Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1289-90 (W.D. Okla. 2012), rev’d on other grounds, 723 F.3d 1114; O’Brien, 894 F. Supp. 2d at 1160-62; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 81-87 (Cal. 2004) (same). But see Sharpe Holdings, Inc. v. HHS, 2012 WL 6738489, at *5 (E.D. Mo. Dec. 31, 2012); Geneva Coll. v. Sebelius, 929 F.Supp.2d 402 (W.D. Penn. 2013).
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healthcare costs.” O’Brien, 894 F. Supp. 2d at 1161; see also Notre Dame, slip op. at 29-30 (“It is [ ] abundantly clear that the wom en’s health requirements in the ACA are entirely neutral and not intended to target religion.”). The regulations reflect expert medical recommendations about the medical necessity of contracep tive services, without regard to any religious m otivations for or against such services . See, e.g., Conestoga, 917 F. Supp. 2d at 410 (“It is clear from the history of the regulations and the report publish ed by the In stitute of Medicine that the purpos e of the [regulations] is not to target religion, but instead to promote public health and gender equality.”).
The regulations, moreover, do not pursue their purpose “only agai nst conduct motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (concluding law that “punishe[d] conduc t within its reach wit hout regard to whether the conduct was religiously m otivated” was generall y applicable). The regulations apply to all non-grandfathered health plans that do not qualif y for the religious employer exem ption or the accommodations for eligible organizations. Thus, “it is just not true . . . that the burdens of the [regulations] fall on religious orga nizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536).
The existence of express exceptions or accommodations for objectively defined categories of entities, like grandf athered plans, religious employers, and eligible organizations, “does not mean that the la w does not apply generally.” Notre Dame, slip op. at 30. “General applicability does no t mean abso lute universality.” Olsen v. Mukasey , 541 F.3d 827, 832 (8th Cir. 2008); accord Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004); Am. Friends Serv. Comm. Corp. v. Thornburgh , 951 F.2d 957, 960-61 (9th Cir. 1991) (concluding e mployer verification statute was generally applicable even though it exem pted independent contractors, household employees, and em ployees hired prio r to Novem ber 1986 because exem ptions “exclude[d] entire, objectiv ely-defined categories of em ployees”); Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42, 44 (2d Cir. 1990) (same); Ungar v. N.Y.C. Hous. Auth., 363 F. App’x 53, 56 (2d Cir. 2010). “Instead, exemp tions undermining ‘general applicability’ are
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those tending to suggest disfavor of religion.” O’Brien, 894 F. Supp. 2d at 1162. The exception for grandfathered plans is available on equal terms to all employers, whether religious or secular. And the religious em ployer exemption and elig ible organization accommodations serve to accommodate religion, not to disfavor it. Id.; see also Conestoga, 917 F. Supp. 2d at 410. Thus, these categorical exceptions and accommodations do not trigger strict scrutiny.
Carving out an exem ption for defined reli gious entities also does not m ake a law nonneutral as to others. Indeed, the religious employer exemption “presents a strong argument in favor of ne utrality” by “dem onstrating that the object of the law was not to infringe upon or restrict practices because of their relig ious motivation.” O’Brien, 894 F. Supp. 2d at 1161 (quotations omitted); see Conestoga, 917 F. Supp. 2d at 410 (“The f act that exem ptions were made for religious em ployers . . . . shows that the gov ernment made efforts to a ccommodate religious beliefs, which counsels in favor of the regulations’ neutrality.”). The regulations are not unlawful merely because the religious em ployer exemption does not extend as far as Plaintiffs wish.
Plaintiffs’ reliance on Lukumi, 508 U.S. 520, is of no help, as this case is a far cry from Lukumi, where the legislature specifically targeted the religious exercise of members of a single church (Santeria) by enacting ordinances that used terms such as “sacrifice” and “ritual,” id. at 533-34, and prohibited f ew, if any, anim al killings other than Sa nteria sacrifices, id. at 535-36. Here, there is no indica tion that th e regulations are anything other th an an effort to increase women’s access to and utilization of recommended preventive services. See Notre Dame, slip op. at 27-28; Priests for Life, slip op. at 52-55; O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410. Plaintiffs’ unsupported assertion th at the regulations are “part of a conscious political strategy to marginalize and delegitimize Plaintiffs’ religious views by holding them up for ridicule on the national stage,” Pls.’ Mem . at 34, is mere rhetorical bluster. And it cannot be disputed that defendants have made extensive efforts—through the religious employer exemption and the elig ible organization accommodations—to accommodate religion in way s that will n ot
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undermine the goal of ensuring that wom preventive services without cost sharing.19

en have access to coverage for recomm ended

Plaintiffs also posit that the regulations m ust have been designed to target plaintiffs’

religious practice of refusing to facilitate ac cess to co ntraception because, prior to th e

promulgation of the regulations, “85% of health plans already cover[ed] contraception.” Pls.’

Mem. at 35. As an initial matter, this 85 percent figure represents only large employers, not small

employers (only 62 percent of which covered cont raception prior to issuance of the regulations)

or plans on the individual m arket. IOM REP. at 109, AR at 407. More importantly, many of the

plans that covered con traceptive services imposed cost-sharing requirements that often resulted

in women forgoing preventive care. Id. at 19-20, 109. The regulations elim inate that cost-

sharing. Finally, even if plaintiffs could show that the regulations have a disproportionate effect

on them (and they have not), it would not destroy the regulations’ neutrality. See O’Brien, 894 F.

Supp. 2d at 1161 (rejecting identical argum ent). “[A] neutral and perf ectly constitutional law

may have a disproportionate im pact upon religiously inspired behavior . . . . The Free Exercise

Clause is not violated even though a group motivated by religious reasons may be more likely to

engage in the proscribed conduct.” Id. (citing cases). Indeed, by plaintiffs’ logic, the government

also was “target[ing],” Pls.’ Me m. at 34, those with religious obj ections to vaccinations, as a

similar or even greater percen tage of health plans covered vaccinations prior to promulgation of

the challenged regulations. See 75 Fed. Reg. 41,726, 41,732 (July 19, 2010), AR at 232.

Finally, plaintiffs maintain that th e challenged regulations are subject to strict scrutiny

under a “hy brid rights” theory b ecause they also infringe on plaintiffs’ freedom of speech and

association. The Suprem e Court, however, ha s never invoked this so -called “hybrid rights

theory” to justify applying strict scrutiny to a free exercise claim . See Lukumi, 508 U.S. at 567

19 Fraternal Order of Police v. C ity of Newark, 170 F.3d 359 (3d Cir. 199 9), an out-of-circuit case on which plaintiffs also rely (Pls.’ Mem. at 34), addressed a policy that created a secular exemption but refused all religious exemptions. The preventive services coverage regulations, in contrast, contain an exemption and accommodations that specifically seek to accommodate religion. Thus, unlike in Fraternal Order, there is simply no basis h ere to infer a discriminatory object behind the regulations. See Conestoga, 917 F. Supp. 2d at 409-10.

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(Souter, J., concurring in part and concurring in the judgm ent) (noting the hybrid rights exception would either s wallow the Smith rule or be entirely unnecessa ry). And several circuits have specifically rejected the theory. See Knight v. Conn. D ep’t of Pub. Health , 275 F.3d 156, 167 (2d Cir. 2001); Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993). Nevertheless, assuming arguendo that the hybrid rights th eory is valid, it a pplies only where the plaintiff’s non-free-exercise claims are “independently viable.” Mahoney v. Dist. of Columbia , 662 F. Supp. 2d 74, 95 n.12 (D.D.C. 2009). Here, plaint iffs assert that th e preventive services coverage provision violates both the right to free exercise of religion and their rights to free speech and free association. Yet, p laintiffs do not even raise a separate free association claim and, as explained b elow, their free speech claims are meritless. “‘[A] plaintiff does n ot allege a hybrid rights claim entitled to strict scrutiny analysis merely by combining a free exercise claim with an utterly m eritless claim of t he violation of anothe r alleged fundam ental right.’” Civil Liberties for Urban Believers, 342 F.3d at 765 (quoting Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 19 99)); see also Henderson , 253 F.3d at 19 (“[ T]he combination of two untenable claims” does not “equal[] a tenable one.”). Thus, ev en if the hybrid rights theory were valid, it would not trigger strict scrutiny in this case. See Notre D ame, slip op. at 30-31 (rejecting an identical “hybrid rights” claim).
For these reasons, plaintiffs’ free exercise claim—Count II of the Complaint—fails.20 C. The Regulations Do Not Violate the Free Speech Clause Plaintiffs’ free speech claims fare no better. The right to freedom of speech “prohibits the government from telling people what they m ust say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). But the preven tive services coverage regulations do not compel speech—by plaintiffs or any other person, employer, or entity—in violation of the First Amendment. Nor do they lim it what plain tiffs may say. Plaintiffs rem ain free under the regulations to express whatever views they may have on the use of contraceptive services (or any
20 Even if the regulations were not neutral or generally applicable, plaintiffs’ free exercise challenge still would fail because the regulations satisfy strict scrutiny. See supra.
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other health care services) as well as their views about the regulat ions. Plaintiffs, moreover, may encourage their employees not to use contraceptive services.
Plaintiffs contend that the regu lations violate their free spee ch rights in three ways, none of which has merit. First, plaintiffs are wrong to contend that the regulations require plaintiffs to “support ‘counseling’ in favor of” preventive services to w hich they object. P ls.’ Mem. at 37. The regulations sim ply require coverage of “education and counseling for all wom en with reproductive capacity.” HRSA Guid elines, AR at 283-84. There is no requirem ent that such education and counseling be “in favor of” any particular contraceptive service, or even in support of contraception in general. The con versations that m ay take place between a patient and her doctor cannot be known or screened in advance and may cover any number of options. To the extent that plaintiffs intend to argue that the covered education and coun seling is objectionable because some of the conversations between a doctor and one of plain tiffs’ employees might be supportive of contracepti on, accepting this theory would m ean that the First Am endment is violated by the m ere possibility of an e mployer’s disagreement with a potential subject of discussion between an employee an d her doctor, and would extend to all such interactions, not just those that are th e subject of the challeng ed regulations. The First Am endment does no t require such a drastic result. See, e.g., Priests for Life , slip op at 37-38; Notre Dame, slip op. at 34-36; Conestoga, 917 F.Supp.2d at 418-19.
Second, plaintiffs note that, in o rder to avail itself of an acco mmodation, an organization must self-certify th at it m eets the definition of “elig ible organization.” Pls.’ Mem . at 38. But, contrary to plaintiffs’ assertion, the self-certification does not in any sense “trigger” payments for contraceptive services, Pls.’ Mem . at 38, as th e government cannot require the T PA of a selfinsured church plan to provide payments for contraceptive services. Moreover, completion of the simple self-certification form is “plainly in cidental to the . . . regulation of conduct,” FAIR, 547 U.S. at 62, not speech . Indeed, ev ery court to review a Free Speech challenge to the prio r contraceptive-coverage regulations has rejected it, in part, because th e regulations deal with conduct. See Autocam, 2012 WL 6845677, *8; see also MK Chambers, 2013 WL 1340719 at *6
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(“Like the [law at issue in FAIR], the contraceptive requirement regulates conduct, not speech. ” (quotations omitted)); Briscoe v. Sebelius , 927 F. Supp. 2d 1109, 1120 (D. Colo. 2013) (“The plaintiffs cite no authority and I am not aw are of any authority holding that such conduct qualifies as speech so as to trigger First Amendment protection.”); Conestoga, 917 F. Supp. 2d at 418; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento, 85 P.3d at 89 (rejecting similar claim); Catholic Charities of the Diocese of Albany , 859 N.E.2d at 465 (same). The accommodations likew ise regulate conduct by relieving an eligible organization of the obligation “to con tract, arrange, pay, or refe r for con traceptive coverage” to which it ha s religious objections. 78 Fed. Reg. at 39,874, AR at 6. 21 Plaintiffs’ suggestion that self-certifying their eligibility for an accommodation, which is incidental to the regulation of conduct, violates their speech rights lacks merit. See FAIR, 547 U.S. at 61-63.
The regulations also do not requ ire plaintiffs to subsidize an y conduct that is “inherently expressive.” FAIR, 547 U.S. at 66; see also United Sta tes v. O’Brien, 391 U.S. 367, 376 (1968) (recognizing that some forms of “symbolic speec h” are protected by the First Amendment). As an initial matter, the regulations explicitly prohibit plaintiffs’ issuers and TPAs f rom imposing any cost sharing, prem ium, fee, or other charge on plaintiffs with respect to the separate payments for contraceptive services m ade by the issuers or TPAs. Plain tiffs, therefore, are no t funding or subsidizing a nything pertaining to contracep tive coverage. Moreover, even if plaintiffs played som e role in an issuer’s or TPA’s provision of paym ents for contraceptive services (and they do not), m aking payments for health care services is not the sort of conduct the Supreme Court has recognized as inherently expressive. See Notre Dame , slip op at 36 (“[B]ecause the regulations do not force [plaintiff] to say anything, nor do they prevent [plaintiff] from forthrightly expressing its views regarding the t opic of contraception, [plaintiff’s] free speech rights are not being infrin ged.”); Priests for Life, slip op 39 (“[T]here is nothing
21 Indeed, self-certifying eligibility for a religious accommodation is a far cry from the la ws at issue i n the cases plaintiffs cite, which mandated the posting of specific written messages throughout an organization’s building and advertisements, as well as s peaking oral messages to the organization’s clients. See Pls.’ Mem. at 37 (citing Evergreen Ass’n v. C ity of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011) and Centro Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011)).
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inherently expressive about [plaintiff’s] insurer, wholly separate from [plaintiff], providing contraceptive coverage, just as there is nothing inherently expressive about a law school’s decision to allow recruiters on cam pus.”) (citing FAIR, 547 U.S. at 64); see also Conestoga, 917 F. Supp. 2d at 418; Autocam, 2012 WL 6845677, at *8; O’Brien, 894 F. Supp. 2d at 1166-67; Catholic Charities of Sacramento, 85 P.3d at 89; Diocese of Albany, 859 N.E.2d at 465; see also FAIR, 547 U.S. at 65-66 (m aking space for m ilitary recruiters on campus is not conduct th at indicates colleges’ support for, or sponsorship of, recruiters’ message).
Finally, plaintiffs’ claim that the regula tions impose a so-called “gag order” that interferes with their f ree-speech rights, see Compl. ¶ 175, is wholly without merit. Defendants have been clear that “[n]othing in these final regulations prohibits an eligible organization from expressing its oppos ition to the us e of contra ception.” 78 Fed. Reg. at 39,880 n.41, AR at 12. What the regulations prohibit is an em ployer’s improper attempt to interfere with its employees’ ability to obtain contraceptive coverage from a third party by, for exampl e, threatening the TPA with a termination of its relationship with the employer because of the TPA’s “arrangem ents to provide or arrange separate payments for contraceptive services for participants or beneficiaries.” See 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii). Addressing an analogous argument in the context of the Nati onal Labor Relations Act, the Suprem e Court concluded that an em ployer’s threatening statements to its employees regarding the effects of unionization fell outside the protec tion of the First Am endment because they interfered with employee rights. NLRB v. Gissel Packing Co. , 395 U.S. 575, 618 (1969). The Court explained that there was no First Am endment violation because the employer was “free to communicate . . . any of his general views . . . so long as the comm unications do not contai n a ‘threat of reprisal or force or prom ise of benefit.’” Id.; see also Ohralik v. Ohio State Bar Ass’n , 436 U.S. 447, 456 (1978) (“[I]t has never been deemed an abridgment of freedom of speech or press to make a course of condu ct illegal merely because the conduct was in part initiated, evidenced, or carried out by m eans of language, either spoken, written, or printed.” (q uotation omitted)). The same is true here. Becau se the regulations do no t prevent plaintiffs from expressing their views
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regarding the use of contracepti ve services, but, rather, prot ect employees’ right to obtain payments for contraceptive services through TPAs, there is no infringement of plaintiffs’ right to free speech. See Notre Dame , slip op. at 35-36 (rejecting iden tical challenge to the challenged regulations).22
Accordingly, the regulations do not violate the Free Speech Clause, and Counts III and IV of the Complaint should be dismissed or summary judgment granted to the government.
D. The Regulations Do Not Violate the Establishment Clause “The clearest command of the Esta blishment Clause is th at one re ligious denomination cannot be officially preferred over another.” Larson v. Valente , 456 U.S. 228, 244 (1982) (emphasis added). A law that discrim inates among religions by “aid[ing] one r eligion” or “prefer[ring] one religion over anothe r” is subject to strict scrutiny. Id. at 246; see also Notre Dame, slip op. at 31-34 (reje cting a sim ilar Establishment Clause claim ); Archbishop of Washington, slip op. at 75-80 (same). Thus, for example, the Supreme Court has struck down on Establishment Clause grounds a stat e statute that was “drafted w ith the explicit intention” of requiring “particular religious denominations” to com ply with registration and reporting requirements while excluding ot her religious denominations. Larson, 456 U.S. at 254; see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet , 512 U.S. 687, 703-07 (1994) (striking down statute that created special school district for religious enclave of Satmar Hasidim because it “single[d] out a partic ular religious sect for special treatment”). The Court, on the other hand, has upheld a statute th at provided an exem ption from military service for persons who had a conscientious objection to all wars, but not those who objected to only a particular w ar. Gillette v. United States, 401 U.S. 437 (1971). The Court explained that the statute did not discrim inate among religions becau se “no particula r sectarian affiliation” was required to q ualify for conscientious objector status. Id. at 450-51. “[C]onscientious object or status was available on an
22 Defendants acknowledge that the court in Archbishop of Washington concluded that the non-interference provision of t he accommodation violated the plaintiffs’ free speech rights. See slip op. at 71-74. For the reasons stated above, and by the district court in Notre Dame, slip op. at 35-36 , defendants respectfully submit that that aspect of the court’s ruling was error.
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equal basis to both the Q uaker and the Roman Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (upholding RLUIPA against Establishment Clause challenge because it did not “conf er[] . . . priv ileged status on any particular religious sect” o r “single[] out [any] bona fide faith for disadvantageous treatment”).
Like the statutes at is sue in Gillette and Cutter, the preventive s ervices coverage regulations do not grant any de nominational preference or ot herwise discriminate among religions. It is of no mom ent that the religious employer exemption and accommodations for eligible organizations apply to some e mployers but not others. The regulations do not “violate the Establishment Clause because [they] delin eate[] the contours of a religious acco mmodation that applies equally to o rganizations of every faith and [do] not favor any denom ination over another.” Priests for Life, slip op. at 42-43; accord Notre Dame, slip op. at 31-34; Archbishop of Washington, slip op. at 78-80); O’Brien, 894 F. Supp. 2d at 1163; see also, e.g. , Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle , 212 F.3d 1084, 1090-93 (8th Cir. 2000); Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995); Diocese of Albany, 859 N.E.2d at 468-69. Here, the distinctions established by the regulations are not so drawn.
“Plaintiffs’ [ ] argument—that the Establishm ent Clause prohibits distinctions am ong different types of organizations affiliated with the same faith—finds no support in Establishment Clause case law.” Archbishop of Washington, slip op at 78. The exem ption and accommodations are available on an equal basis to organizations affiliated with any and all religions. The regulations, therefore, do not di scriminate among religions in vi olation of the Establishm ent Clause. Indeed, every court to have considered an Establishment Clause challenge to the prior version of the regulations has rejected it. See, e.g., O’Brien, 894 F. Supp. 2d at 1162 (upholding prior version of religious employer exemption because it did “not differentiate between religions, but applie[d] equally to all denom inations”); Conestoga, 917 F. Supp. 2d at 416-17 (sam e); see also Liberty Univ., Inc. v. Lew, 733 F.3d 72, 100-03 (4th Cir. 2013) (upholding another religious
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exemption contained in the ACA against an Establishment Clause challenge), cert. denied, No. 13-306 (Dec. 2, 2013).23
“As the Suprem e Court has frequently articu lated, there is space betw een the religion
clauses, in which there is ‘room for play in the joints;’ governm ent may encourage the free
exercise of religion by granti ng religious acco mmodations, even if not required by the Free
Exercise Clause, without running afoul of the Establishm ent Clause.” O’Brien, 894 F. Supp. 2d
at 1163 (citations om itted). Accommodations of religion are poss ible because the type of
legislative line-drawing to which th e plaintiffs object in this case is cons titutionally permissible.
Id.; Conestoga, 917 F. Supp. 2d at 417; see, e.g., Walz v. Tax Comm’n of NY , 397 U.S. 664, 666 (1970); Amos, 483 U.S. at 334 (upholding Title VII’s exemption for religious organizations).24
Plaintiffs also claim that th e regulations’ definition of re ligious employer violates the
Establishment Clause b ecause, more than th irty-five years ago, the In ternal Revenue Service
(IRS) developed a non-exhaustive list of four teen facts and circum stances that m ay be
considered, in addition to “any other fact s and circumstances which m ay bear upon the
organization’s claim for church status,” in assessing whether an org anization is a church. See
23 Plaintiffs stretch Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), well beyond its facts in suggesting that the case stands for the proposition that the Establishment Clause prohibits the government from distinguishing among different types of organizations that adhere to the same religion. Pls.’ Mem. at 38-39. Weaver was limited to “laws that facially regulate religious issues,” 534 F.3d at 1257, and, particularly, those that do so in a way that denies certain religious institutions public benefits that are afforded to all other institutions, secular or religious. The court in Weaver said nothing about the constitutionality of exemptions from generally applicable laws that are designed to accommodate religion, as opposed to discriminate against religion. A requirement that any religious exemption that the government creates must extend to all organizations—no matter their structure or purpose—would hamper the government’s ability to accommodate religion. See Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334 (1987) (“There is ample room under the Establishment Clause for ‘benevolent’ neutrality which will permit religious exercise to exist without sponsorship and without interference.”); Diocese of Albany, 859 N.E.2d at 464 (“To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions – and thus to restrict, rather than promote, freedom of religion.”). And, the manner in which the law at issue in Weaver was administered required the government to make intrusive inquiries into a school’s religious beliefs and practices by, for example, reading syllabi to determine if a school’s theology courses were likely to convince students of religious truths. See 534 F.3d at 1261-62. The religious employer exemption requires no such inquiry: Qualification for the exemption does not require the government to make any determination, much less an unconstitutionally intrusive one. See also Archbishop of Washington, slip op. at 77 (explaining that Weaver does not support the plaintiffs’ claims). 24 Even if the regulations discriminate among religions (and they do not), they are valid under the Establishment Clause, because they satisfy strict scrutiny. See supra; Larson, 456 U.S. at 251-52.
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Found. of Human Understanding v. Comm’r of IRS , 88 T.C. 1341, 1357-58 (1987); Internal Revenue Manual (IRM) 7.26.2.2.4. Although plaintiffs do not appear to have ever before challenged the constitutionality of this non-exhaustive list, they now contend that it acts to require the governm ent to m ake impermissible “judgments regarding beliefs, practices, and organizational structure.” Pls.’ Mem. at 40-41. This claim fails for numerous reasons.
As an initial matter, the claim is not ripe an d therefore should be dismissed for lack of jurisdiction. See Archbishop of Washington, slip op. at 84-85 (finding that plaintiffs lack standing to argue that the IRS’s fourteen-factor test violates the Establishm ent Clause). The nonexhaustive list that plaintiffs seek to challenge is not set out in any statute, regulation, or other binding source of law. It is instead contained in the IRM, wh ich serves as a s ource of guidance for the internal administration of the IRS and is not binding on the IRS or courts. United States v. Will, 671 F.2d 963, 967 (6th Cir. 1982); Capital Fed. Sav. & Loan Ass’n v. Comm’r of Internal Revenue, 96 T.C. 204, 216-17 (1991). A party can cha llenge such guidance “only if and when the directive has been a pplied specifically to them.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987); see also, e.g., Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Eng’rs, 335 F.3d 607, 619 (7th Cir. 2003) (concludi ng general statem ent of policy was not ripe for review). Plaintiffs do not challenge a ny determination by the IRS that was based on this IRM provision. Because defendants ha ve not applied a similar non-exhaustive list of facts and circumstances to plaintiffs, plaintiffs’ challenge is not ripe.
Indeed, qualification for the religious employer exemption do es not require the government to m ake any determ ination, whether as a result of the application of the nonexhaustive list or otherwise. If an organization “is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Inte rnal Revenue Code of 1986, as amended,” it qualifies for the exem ption, without any governm ent action whatsoever. 45 C.F.R. § 147.131(a). Plaintiffs, moreover, have no difficulty determining whether they qualify for the exemption. The Diocese alleges that it qualifies for the exem ption, Compl. ¶ 14, and Catholic Charities allege that it do es not, id. ¶ 10. Any claim —which plaintiffs do not in fact
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make—that the govern ment will dispute thes e allegations and therefore need to undertak e any sort of intrusive inquiry into whether plaintiffs qualify for the exemption is entirely speculative and thus unripe for this reason as well.
Finally, even assuming plaintiffs could m ount a facial challenge to a non-exhaustive list of facts and circumstances that the defendant agencies have never applied to plaintiffs, any such challenge would be m eritless. Any intera ction between the g overnment and religio us organizations that m ay be necess ary to enforc e the religious em ployer exemption is not so “comprehensive,” Lemon v. Kurtzman , 403 U.S. 602, 619 (1971), or “pervasive,” Agostini v. Felton, 521 U.S. 203, 233 (1997) (quotations o mitted), as to result in excessive entanglem ent. The Supreme Court has upheld law s that require government monitoring that is m ore onerous than any monitoring that m ay be required to enforce the religious em ployer exemption. See Bowen v. Kendrick , 487 U.S. 589, 615-617 (1988) (no ex cessive entanglement where the government reviewed and m onitored programs and materials); Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 764–765 (1976) (no excessive en tanglement where the state conducted annual audits); see also United States v. Corum, 362 F.3d 489, 496 (8th Cir. 2004). And every court to address the issue upheld the prior version of the relig ious employer exemption, which contained the sam e requirement that the o rganization be one that is r eferred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue C ode of 1986, as am ended, against an entanglement challenge. See Conestoga, 917 F. Supp. 2d at 417; O’Brien, 894 F. Supp. 2d at 1164-65; Geneva Coll., 929 F. Supp. 2d at 439-40.25
Thus, plaintiffs’ Establishment Clause claim—Count V of the Complaint—fails.
25 Even if this Court were to conclude that it had jurisdiction to adjudicate a facial c hallenge to the non-exhaustive list of facts and circ umstances set fort h in IRM 7.26.2.2 .4 and that such nonbinding guidance violates the Establishment Clause, the remedy would be invalidation of the list, not invalidation of the contraceptive coverage requirement or the religious employer exemption. The regulations would survive, with the religious employer exemption being available to any organization that is organized and operates as a n onprofit entity and is a church, integrated auxiliary of a church, convention or association of churches, or the exclusively religious activities of any religious order, as those terms are specifically defined under section 6033 or commonly understood.
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E. The Regulations Do Not Interfere With Church Governance Plaintiffs also assert th at, by allegedly requiring plaintiffs to facilitate practices in violation of their religious beli efs, the regulations in terfere with p laintiffs’ “internal church governance” in violation of the Religion Clauses. See Pls.’ Mem . at 42. But that is m erely a restatement of plaintiffs’ substantial burden theory,26 which fails for reasons explained already. Indeed, the m ain case cited by plaintiffs on this point, Hosanna-Tabor Evangelical Lutheran Church & School v. E .E.O.C., 132 S. Ct. 694 (2012), is inapposite. In Hosanna-Tabor, the Supreme Court held that allowing a m inister employee to sue her church em ployer under the Americans with Disabilities Act—thereby inter fering with “a church’s ability to se lect its own ministers”—violates the Free Exerci se and Establishment Clauses. Id. at 704, 706. But this case is not about the selection of clergy, nor any other matters of church governance apart from plaintiffs’ religious objection to providing contraceptive coverage (which, again, is subsumed by plaintiffs’ substantial burden argum ent). Nor is this case about any law that regulates the structure of the church—plaintiffs m ay choose whatever organizational structure they wish. Thus, Count VI should be dism issed or su mmary judgment granted to defendants. See Archbishop of Washington, slip op. at 86-88 (entering summa ry judgment in favor of defendants on plaintiffs’ claim that the regulations interfere with church governance). F. Plaintiffs’ APA Claim Fails In Count VII (the only count not raised in their tem porary restraining order m otion), plaintiffs contend the regulations violate th e APA because they conflict with the W eldon Amendment to the Consolidated Appropriations Act of 2012. They are incorrect. Plaintiffs appear to reason that, b ecause the preventive services coverage regulations require group health plans to cover em ergency contraception, such as Plan B, they require plaintiffs to provide coverage for abortions in viol ation of federal law. The W eldon Amendment denies funds m ade available in the Consolidated Appropriations Act of 2012 to any federal, state, or local agency,
26 While the Zubik ruling was incorrect for reasons explained already, supra note 7, that court analyzed arguments about interference with the church under RFRA’s “substantial burden” test. See 2013 WL 6118696 at *27.
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program, or governm ent that “sub jects any in stitutional 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.” Pub. L. N o. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011). The regulations, however, do not require that any health plan cover abortion at all, m uch less as a preventive service. The government has made clear that the preventive services covered by the regulations do not in clude abortifacient drugs.27 Although plaintiffs are certainly entitled to believe that em ergency contraceptives and certain IUDs are abortifacien t drugs or cause abortions, neither the government nor this Court is required to accept that characterization, which is inconsistent with th e FDA’s scientif ic assessment and with f ederal law. W hile plaintiffs’ religious beliefs m ay define abortion m ore broadly than federal law, statutory interpretation requires that terms be construed as a m atter of law and not in accordan ce with any individual’s personal views or beliefs. E.g., GEICO v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).
In recommending what contraceptive services should be covered by health plans w ithout cost-sharing, the IOM Report iden tified the contraceptives that have been approved by the FDA as safe and effective. See IOM R EP. at 10, AR at 308. And the list of FDA-approved contraceptives includes emergency contraceptives such as Plan B. See id. at 105, AR at 403. The basis for the inclusion of such drugs among safe and effective means of contraception dates back to 1997, when the FDA first explained why Plan B a nd similar drugs act as contraceptives rather than abortifacients. See Prescription Drug Products; Certain Combined Oral Contraceptives fo r Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997); 45 C.F.R. § 46.202(f). In light of this conclus ion by the F DA, HHS informed Title X grantees, which are required to offer a range of acceptable and e ffective family planning methods—and, except under limited circumstances, may not offer abortion—that they “should consider the availability of emergency contraception the same as any othe r method which has been established as safe
27 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited Dec. 11, 2013); see also IOM REP. at 22 (recognizing that abortion services are outside the scope of recommendations), AR at 320.
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and effective.” Office of Populati

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

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

§§ 300, 300a-6. The regulations are consis tent with over a decade of re gulatory policy and

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

Signalmen v. Surface Transp. Bd. , 638 F.3d 807, 815 (D.C. Cir. deference to an agency’s longstanding interpretation).28

2011) (giving particular

Thus, because the challenged regulations are not contrary to law, Count VII of the

Complaint should be dismissed or summary judgment granted to defendants.

III. PLAINTIFFS CANNOT ESTABLI SH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC
“The loss of First Am endment freedoms, for even m inimal periods of tim e,

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Even

assuming arguendo that sam e rule applies to a st atutory claim under RFRA, plaintiffs have not

shown that the challenged regula tions violate their First Amendm ent or RFRA rights, so there

has been no “loss of First Am endment freedoms” for any period of tim e. Id. In this respect, the

merits and irreparable injury prongs of the temporary restraining order analysis merge together,

and plaintiffs cannot show irreparable injury without also showing a likelihood of success on the

merits, which they cannot do. See McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012).

Furthermore, plaintiffs’ claim to irrepara ble harm is further underm ined by their own

delay in filing suit. Although the challenged regul ations were published in the Federal Register

in early July, 78 Fed. Reg. 39,870, th ese plaintiffs waited over five months—until December 10,

2013—to file suit and to seek the extraordinary re medy of a temporary restraining order. Such a

substantial and unexplained delay seriously undermines these plai ntiffs’ claim of irrepa rable

harm. See, e.g., Autocam, 2012 WL 6845677, at *9 (noting, in a challenge to the prior

28 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of contraceptive services has never been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as the morning-after pill. . . . [U]nder the current FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”).
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contraceptive-coverage regulations, that “the im mediacy of the dilemm a Plaintiffs face is in no small part of their own m aking,” because plaintiffs filed suit “less than two m onths before the deadline Plaintiffs say is critical”); Fund for Animals v. Frizzell , 530 F.2d 982, 987 (D.C. Cir. 1975) (denying preliminary injunctive relief and noting that a delay of forty- four days after final regulations were issued was “inexcusable”).
Turning to the final two temporary restraining order factors—the balance of equities and the public interest—“there is i nherent harm to an agency in preventing it from enforcing regulations that Congress found it in the public interest to direct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also Connection Distrib. Co. v. Reno, 154 F.3d 281, 296 (6th Cir. 1998) (indicating that granting an injunction against the enforcement of a likely constitutional statute would harm the governm ent). Enjoining the preventive services coverage regulations as to plaintiffs would unde rmine the governm ent’s ability to achieve Congress’s goals of i mproving the health of women and newborn children and equalizing the coverage of preventive services for women and men.29
It would also be con trary to the pub lic interest to deny plaintiffs ’ employees (and their families) the benefits of the preventive se rvices 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 e mploying the extraord inary remedy of injunction.”). Many of the plaintiffs’ employees may not sh are plaintiffs’ objections to th e challenged regulations. Those employees should not be deprived of the benefits of payments provided by a third party that is not their employer for the full ra nge of FDA-approved contraceptive services, as prescribed by a health care provider, on the basis of their employers’ religious objection. Many wom en do not
29 Plaintiffs note that defendants consented to preliminary injunctions in a few cases involving for-profit companies, see Pls.’ Mem. at 45-46, but defendants’ consent in those cases was nothing more than an effort to conserve judicial and governmental resources. Those cases were i n the Seventh, Eighth, and D.C. Circuits, and they were filed after motions panels in those circuits had preliminary enjoined the regulations pending appeal in similar cases. See Mersino, 2013 WL 3546702 at *16 (“[W]here the government has conceded to injunctive relief, it appears that it has generally done so in jurisdictions where the legal landscape has been set against them, and continuing to litigate the claims in those jurisdictions would be a waste of both judicial and client resources.”). The government continues to oppose preliminary injunctions in other circuits regarding for-profit plaintiffs, and opposes in all circuits injunctive relief sought by non-profit plaintiffs like plaintiffs here.
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use contraceptive s ervices because they are no t covered by their health plan or requ ire costly copayments, coinsurance, or deductibles. IOM R EP. 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 wom en are put at a com petitive disadvantage due to their lost pr oductivity 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 pl aintiffs, the preventive services coverage regulations—the purpose of wh ich is to elim inate these burdens, 75 Fed. Reg. at 41,733, AR a t 233; see also 77 Fed. Reg. at 8728, AR at 215—would thus in flict a very real harm on the public and, in particular, a readily id entifiable group of individuals. See Stormans, Inc. v. Selecky , 586 F.3d 1109, 1139 (9th Cir. 2009) (v acating preliminary injunction en tered by district court and noting that “[t]here is a general public interest in ensuring that all citizen s have timely access to lawfully prescribed medications”). Accordingly, even assuming plaintiffs were likely to succeed on the m erits (which they are not for the reas ons explained above), any potential harm to plaintiffs resulting from their of fense at a third party providing p ayment for contraceptive services at no cost to, and w ith no adm inistration by, plainti ffs’ would be outweighed by the significant harm an injunction would cause these employees and their families.
CONCLUSION For the foregoing reasons, defenda nts respectfully ask that the Court deny plaintiffs’ motion for a tem porary restraining order and prelim inary injunction, and gran t defendants’ motion to dismiss or, in the alternative, for summary judgment on all of plaintiffs’ claims. Respectfully submitted this 23rd day of December, 2013,

KATHLEEN

STUART F. DELERY Assistant Attorney General
R. HARTNETT

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Deputy JOHN
SHEILA Deputy
BRADLEY United Civil 20

Assistant Attorney General
MALCOLM BALES United States Attorney
JENNIFER RICKETTS Director, Federal Programs Branch
M. LIEBER Director, Federal Programs Branch
/s/ Bradley P. Humphreys P. HUMPHREYS (VA Bar No. 83212)
Trial Attorney States Department of Justice
Division, Federal Programs Branch Massachusetts Avenue N.W., Room 7108 Washington, D.C. 20530 Telephone: (202) 514-3367 Facsimile: (202) 616-8470 Email: Bradley.P.Humphreys@usdoj.gov
Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on December 23, 2013, I caused a true and correct copy of the foregoing to be served on plaintiffs’ counsel by means of the Court’s ECF system.
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS

 
 Case 1:13-cv-00709-RC Document 11 Filed 12/23/13 Page 1 of 3 PageID #: 198

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

ROMAN CATHOLIC DIOCESE OF BEAUMONT; CATHOLIC CHARITIES OF

) ) )

SOUTHEAST TEXAS, INC.,

)

Plaintiffs,

) )

v.

) Case No. 1:13-cv-00709-RC )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States Department of Health and Human Services, et

) ) )

al.,

)

)

)

Defendants.

)

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Pursuant to Federal Rules of Civil Pro cedure 12(b)(1) and 12(b)(6), defendants hereby move to dismiss this action. In the alternative, defendants move for summary judgment on all of plaintiffs’ claims pursuant to Rule 56. The gr ounds for these m otions are set f orth in the accompanying memorandum.
Respectfully submitted this 23rd day of December, 2013,

KATHLEEN Deputy JOHN
SHEILA Deputy BRADLEY

STUART F. DELERY Assistant Attorney General
R. HARTNETT Assistant Attorney General
MALCOLM BALES United States Attorney
JENNIFER RICKETTS Director, Federal Programs Branch
M. LIEBER Director, Federal Programs Branch
/s/ Bradley P. Humphreys P. HUMPHREYS (VA Bar No. 83212)

Case 1:13-cv-00709-RC Document 11 Filed 12/23/13 Page 2 of 3 PageID #: 199

United Civil 20

Trial Attorney States Department of Justice
Division, Federal Programs Branch Massachusetts Avenue N.W., Room 7108 Washington, D.C. 20530 Telephone: (202) 514-3367 Facsimile: (202) 616-8470 Email: Bradley.P.Humphreys@usdoj.gov
Attorneys for Defendants

2

Case 1:13-cv-00709-RC Document 11 Filed 12/23/13 Page 3 of 3 PageID #: 200
CERTIFICATE OF SERVICE I hereby certify that on December 23, 2013, I caused a true and correct copy of the foregoing to be served on plaintiffs’ counsel by means of the Court’s ECF system.
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS

Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 1 of 62 PageID #: 201

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

ROMAN CATHOLIC DIOCESE OF BEAUMONT; CATHOLIC CHARITIES OF

) ) )

SOUTHEAST TEXAS, INC.,

)

Plaintiffs,

) )

v.

) Case No. 1:13-cv-00709-RC )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States Department of Health and Human Services, et

) ) )

al.,

)

)

)

Defendants.

)

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

Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 2 of 62 PageID #: 202
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................4
STANDARD OF REVIEW .............................................................................................................8
ARGUMENT ...................................................................................................................................9
I. THIS CASE SHOULD BE DISMISSED BECAUSE THE COURT LACKS SUBJECT MATTER JURISDICTION ...............................................................................9
II. PLAINTIFFS’ CLAIMS LACK MERIT...........................................................................11
A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit ...............11
1. The regulations do not substantially burden plaintiffs’ exercise of religion...................................................................................................11
a. The regulations impose no more than a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs ....................12
b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA ...................................19
2. Even if there was a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests .......................................21
a. The regulations significantly advance compelling governmental interests in public health and gender equality.........21
b. The regulations are the least restrictive means of advancing the government’s compelling interests .........................27
B. The Regulations Do Not Violate the Free Exercise Clause ...................................30
C. The Regulations Do Not Violate the Free Speech Clause .....................................34
D. The Regulations Do Not Violate the Establishment Clause ..................................38
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Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 3 of 62 PageID #: 203 E. The Regulations Do Not Interfere With Church Governance ...............................43 F. Plaintiffs’ APA Claim Fails ...................................................................................43
III. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC..............45
CONCLUSION ..............................................................................................................................47
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Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 4 of 62 PageID #: 204
TABLE OF AUTHORITIES
Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) .........................................................................................18
Adams v. Comm’r of Internal Revenue, 170 F.3d 173 (3d Cir. 1999)...............................................................................................29
Agostini v. Felton, 521 U.S. 203 (1997)...........................................................................................................43
Am. Family Ass’n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) .........................................................................................32
Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 (9th Cir. 1991) .............................................................................................32
Annex Medical, Inc. v. Sebelius, No. 12-cv-2804, 2013 WL 101927 (D. Minn. Jan. 8, 2013) .............................................20
Archbishop of Washington v. Sebelius, No. 1:13-cv-01441-ABJ, slip op. (D.D.C. Dec. 20, 2013) ........................................ passim
Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................................................................................9
Autocam Corp. v. Sebelius, No. 1:12-CV-1096, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012) ....................... passim
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .........................................................................................32
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994)...........................................................................................................39
Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011) ...........................................................................................46
Bowen v. Kendrick, 487 U.S. 589 (1988)...........................................................................................................43
Bowen v. Roy, 476 U.S. 693 (1986)...........................................................................................................15
Braunfeld v. Brown, 366 U.S. 599 (1961)...........................................................................................................27
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Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 5 of 62 PageID #: 205
Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013)...............................................................................37
Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487 (10th Cir. 1998) ...........................................................................................23
Capital Fed. Sav. & Loan Ass’n v. Comm’r of Internal Revenue, 96 T.C. 204 (1991).............................................................................................................42
Centro Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011) ...................................................................................38
Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ...........................................................................................40
Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328 (N.D. Ga. 2012) ..............................................................................18
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).........................................................................................26, 32, 33, 35
Civil Liberties for Urban Believers v. City of Chi., 342 F.3d 752 (7th Cir. 2003) ...........................................................................14, 17, 22, 36
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) .......................................................................................................12
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .........................................................................................41
Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008)...............................................................................................12
Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013) ......................................................................... passim
Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .............................................................................................47
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) .....................................................................................47
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987)...........................................................................................................41
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Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 6 of 62 PageID #: 206
Cutter v. Wilkinson, 544 U.S. 709 (2005)...........................................................................................................40
Dickerson v. Stuart, 877 F. Supp. 1556 (M.D. Fla. 1995) ..................................................................................23
Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) ...........................................................................................25
Droz v. Comm’r of IRS, 48 F.3d 1120 (9th Cir. 1995) .............................................................................................40
Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL 1190001 (E.D. Mich. Mar. 22, 2013) .............................21, 33
Elrod v. Burns, 427 U.S. 347 (1976)...........................................................................................................47
Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990)...........................................................................................................32
Evergreen Ass’n v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011)................................................................................38
Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008) .............................................................................................31
Found. of Human Understanding v. Comm’r of IRS, 88 T.C. 1341 (1987)...........................................................................................................42
GEICO v. Benton, 859 F.2d 1147 (3d Cir. 1988).............................................................................................45
Geneva Coll. v. Sebelius, 929 F. Supp. 2d 402 (W.D. Penn. 2013)............................................................................33
Gillette v. United States, 401 U.S. 437 (1971)...........................................................................................................40
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006).....................................................................................................26, 28
Gooden v. Crain, 353 F. App’x 885 (5th Cir. 2009) ......................................................................................31
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Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 7 of 62 PageID #: 207
Graham v. Comm’r, 822 F.2d 844 (9th Cir. 1987) .......................................................................................26, 31
Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012) ................................................................................30
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) .......................................................................................12, 36
Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641 (2012) .........................................................................................................13
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) ..............................................................19, 22, 33
Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Eng’rs, 335 F.3d 607 (7th Cir. 2003) .............................................................................................42
Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 132 S. Ct. 694 (2012) .........................................................................................................44
Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42 (2d Cir. 1990).................................................................................................34
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ................................................................................... passim
Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177 (6th Cir. 1993) .................................................................................................35
Knight v. Conn. Dep't of Pub. Health, 275 F.3d 156 (2d Cir. 2001)...............................................................................................35
Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735 (S.D. Ill. 2012)..................................................................................30
Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) .................................................................................12, 17, 19
Larson v. Valente, 456 U.S. 228 (1982)...............................................................................................39, 40, 41
Lemon v. Kurtzman, 403 U.S. 602 (1971)...........................................................................................................43
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Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 8 of 62 PageID #: 208
Liberty Univ., Inc. v. Lew, 2013 WL 3470532 (4th Cir. July 11, 2013).......................................................................41
Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729 (6th Cir. 2007) ..........................................................................17, 18, 22
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...........................................................................................................10
MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., No. 13-cv-11379, 2013 WL 1340719 (E.D. Mich. Apr. 3, 2013) ...............................33, 37
Mada-Luna v. Fitzpatrick, 813 F.2d 1006 (9th Cir. 1987) ...........................................................................................42
Mahoney v. Dist. of Columbia, 662 F. Supp. 2d 74 (D.D.C. 2009) .....................................................................................35
McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004).........................................................................................17, 22
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) .............................................................................................47
Mead v. Holder, 766 F. Supp. 2d 16 (D.D.C. 2011) .....................................................................................23
Mersino Mgmt. Co. v. Sebelius, No. 2:13-cv-11296, 2013 WL 3546702 (E.D. Mich. July 11, 2013)...........................13, 19
Murphy v. State of Ark., 852 F.2d 1039 (8th Cir. 1988) ...........................................................................................31
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)...........................................................................................................39
Univ. of Notre Dame v. Seelius, No. 3:13-cv-01276-PPS-CAN, slip op. (N.D. Ind. Dec. 20, 2013) ........................... passim
Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936 (D.C. Cir. 2004) ...........................................................................................14
New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940 (1st Cir. 1989) ........................................................................................30, 31
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Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 9 of 62 PageID #: 209
O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149 (E.D. Mo. 2012)...................................................................... passim
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)...........................................................................................................39
Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989) .........................................................................................39
Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008) .............................................................................................34
Potter v. Dist. of Columbia, 558 F.3d 542 (D.C. Cir. 2009) ...........................................................................................22
Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 1:13-cv-1261-EGS, slip op (D.D.C. Dec. 19, 2013) ........................................... passim
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)...........................................................................................................25
Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736 (1976)...........................................................................................................43
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR), 547 U.S. 47 (2006).............................................................................................................36
S. Ridge Baptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203 (6th Cir. 1990) ...............................................................................27, 28, 31
Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 2:12-CV-92-DDN, 2012 WL 6738489 (E.D. Mo. Dec. 31, 2012) .............................33
Sherbert v. Verner, 374 U.S. 398 (1963).....................................................................................................21, 26
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)...............................................................................................................9
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) ...........................................................................................48
Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981).........................................................................................12, 18, 21, 22
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Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 10 of 62 PageID #: 210
United States v. Amer, 110 F.3d 873 (2d Cir. 1997)...............................................................................................33
United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963)...........................................................................................................32
United States v. Corum, 362 F.3d 489 (8th Cir. 2004) .............................................................................................43
United States v. Israel, 317 F.3d 768 (7th Cir. 2003) .............................................................................................29
United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) .............................................................................................31
United States v. Lee, 455 U.S. 252 (1982).....................................................................................................25, 26
United States v. O’Brien, 391 U.S. 367 (1968)...........................................................................................................38
United States v. Oliver, 255 F.3d 588 (8th Cir. 2001) .............................................................................................25
United States v. Schmucker, 815 F.2d 413 (6th Cir. 1987) .............................................................................................29
United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) ...................................................................................29, 31
United States v. Will, 671 F.2d 963 (6th Cir. 1982) .............................................................................................42
United States v. Winddancer, 435 F. Supp. 2d 687 (M.D. Tenn. 2006)............................................................................26
Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006) .............................................................................................18
Walz v. Tax Comm’n of NY, 397 U.S. 664 (1970)...........................................................................................................41
Washington v. Klem, 497 F.3d 272 (3d Cir. 2007)...............................................................................................17
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Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 11 of 62 PageID #: 211
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)...........................................................................................................47
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007)...............................................................................................18
Whitmore v. Arkansas, 495 U.S. 149 (1990)...........................................................................................................10
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)...............................................................................................................10
Wisconsin v. Yoder, 406 U.S. 205 ..........................................................................................................18, 21, 26
Zubik v. Sebelius, No. 2:13-cv-01459, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013).............................12, 43
STATE CASES Catholic Charities of Diocese of Albany v. Serio,
859 N.E.2d 459 (N.Y. 2006)...................................................................................... passim Catholic Charities of Sacramento, Inc. v. Superior Court,
85 P.3d 67 (Cal. 2004) ............................................................................................... passim
FEDERAL STATUTES 29 U.S.C. § 1002........................................................................................................................3, 11 29 U.S.C. § 1003............................................................................................................................11 42 U.S.C. § 18011..........................................................................................................................27 42 U.S.C. § 18118....................................................................................................................44, 46 42 U.S.C. § 2000bb-1 ....................................................................................................................12 42 U.S.C. § 300..............................................................................................................................45 42 U.S.C. § 300a-6.........................................................................................................................45 42 U.S.C. § 300gg-13 ......................................................................................................................5
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Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 12 of 62 PageID #: 212
Pub. L. No. 103-141, 107 Stat. 1488 (1993)..................................................................................12 Pub. L. No. 111-148, 124 Stat. 119 (2010)......................................................................................5
FEDERAL REGULATIONS 26 C.F.R. § 54.9815-2713A.....................................................................................................10, 37 29 C.F.R. § 2510.3-16....................................................................................................................10 29 C.F.R. § 2590.715-2713A.........................................................................................................37 45 C.F.R. § 147.131 ............................................................................................................... passim 45 C.F.R. § 147.140 .......................................................................................................................25 45 C.F.R. § 46.202 .........................................................................................................................44 62 Fed. Reg. 8610 (Feb. 25, 1997) ................................................................................................44 75 Fed. Reg. 34,538 (June 17, 2010) .............................................................................................25 75 Fed. Reg. 41,726 (July 19, 2010)..................................................................................22, 24, 47 76 Fed. Reg. 46,621 (Aug. 3, 2011).................................................................................................6 76 Fed. Reg. 7767 (Feb. 11, 2011) ................................................................................................46 77 Fed. Reg. 8725 (Feb. 15, 2012) ........................................................................................ passim 77 Fed. Reg. 16,501 (Mar. 21, 2012).........................................................................................7, 13 78 Fed. Reg. 8456 (Feb. 6, 2013) ..............................................................................................7, 13 78 Fed. Reg. 39,870 (July 2, 2013)........................................................................................ passim
LEGISLATIVE MATERIAL 139 Cong. Rec. S14350-01 S14352 (daily ed. Oct. 26, 1993)...................................................... 18 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) .......................................................... 44 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) ................................................ 23, 46 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) .......................................................23
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Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 13 of 62 PageID #: 213 H.R. Rep. No. 111-443 pt. II (2010) ..............................................................................................27
MISCELLANEOUS Guttmacher Institute, State Policies in Brief: Insurance Coverage of
Contraceptives (June 2013)..................................................................................................4 HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines ........... passim HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive
Services for Women (August 1, 2011) .............................................................................43 INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING
THE GAPS 19-20, 109 (2011) ...................................................................................... passim Kaiser Family Foundation and Health Research & Educational Trust, Employer
Health Benefits 2012 Annual Survey ................................................................................25 Office of Population Affairs, Memorandum (Apr. 23, 1997)........................................................44
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INTRODUCTION The regulations are the product of a decision by defendants to attem pt to accommodate concerns expressed by som e non-profit religious organizations by relieving those with religious objections to contraceptive coverage of any respons ibility to contract, arrange, pay, or refer for contraceptive coverage or services. The Catho lic Diocese of Beaumont (“the Diocese”) is entirely exempt from the contraceptive cove rage requirement. And Catholic Charities of Southeast Texas, Inc. (“Catholic Charities”) is eligible for a regula tory accommodation th at relieves it from having to contract , arrange, pay or refer for contra ceptive coverage, and that in no way prevents it from continuing to voice its disapproval of contraception or from encouraging its employees to refrain from using con traception. To avail itself of this significant accommodation, Catholic Charities need do not hing more than provide its third-party administrator (TPA) with a copy of a self-certification th at it is eligible for the accommodation. Catholic Charities’ TPA has no obligation to provi de contraceptive coverage, either. It is hard to fathom how the mere act of requiring Catholic Charities to com plete this self-certification could amount to a “substantial” burden, especially where—as here—the certification requires noting of Catholic Charities’ TPA or anyone else with respective to contraceptive coverage. Notably, both plaintiffs offer e mployees health coverage through the Diocese' s health plan, which, according to plaintiffs, is a sel f-insured “church plan.” C ompl. ¶¶ 42, 44. W hile defendants continue to consider potential options to fully and appr opriately extend the consumer protections provided by the regula tions to self-insured church plans, they acknowledge that, under current law, they lack authority to require the TPAs of self-insured church plans to m ake the separate payments for contraceptive services for participants and beneficiaries in such plans under the accommodation. For this and several other reasons, plainti ffs’ motion for a tem porary restraining order should be denied and this case should be dismissed or summary judgment should be granted in favor of the government. At the outset, as the court in Archbishop of Washington v. Sebelius, No. 1:13-cv-01441-ABJ (D.D.C. Dec. 20, 2013), recen tly recognized, with respect to sim ilarly
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situated organizations that offer insurance to th eir employees through a self-insured church plan, the plaintiffs here lack standing to assert th eir claims. As noted above, because th e Diocese’s plan is a self-insured church plan, the government lacks authorit y to require plaintiffs’ TPA t o make the separate payments for contraceptive serv ices for participants and benef iciaries in th e plan under the accommodation. Becau se both plaintiffs offer coverage to their em ployees through the Diocese’s plan, the injury of which plaintiffs complain—that the regulations somehow require th em to facilitate access to c ontraceptive services to which they object on religious grounds or to contract, arrange, or pa y for such services—simply does not apply to plaintiffs here and, as a result, plaintiffs lack standing. See id slip op. at 46-51.
Even if plaintiffs had standing, however, their assertion that th ese accommodations themselves violate their rights und er RFRA, t he First A mendment, and the Adm inistrative Procedure Act (APA) would fail. W ith respect to plaintiffs’ RFRA c laim, plaintiffs cannot establish a substantial burden on their religiou s exercise—as they must—because, as noted above, the governm ent cannot requi re plaintiffs’ TPA to provide separate paym ents for contraceptive services to the participants and beneficiaries of the plan. Thus, the regulations impose absolutely no burden on plaintiffs’ religious exercise, much less a substantial burden as required under RFRA. Furtherm ore, even if the governm ent could require plaintiffs’ TPA to make the separate payments, the regulations would not require plaintiffs to change their behavior in any significant way. Plaintiffs are not re quired to contract, arrange, pay, or refer for contraceptive coverage. To the contrary, plaintiffs are free to continue to refuse to do so, to voice their disapproval of contracep tion, and to encourage their em ployees to refrain from using contraceptive services. Pl aintiffs contend that the need for Ca tholic Charities to self-certify in order to ob tain the ac commodation is itself a burden on their religious exercise. But the challenged regulations require Ca tholic Charities only to self-certify that it has a religious objection to providing cont raceptive coverage and otherwise m eets the criteria fo r an eligib le organization, and to share that se lf-certification with its TPA. In other words, Catholic Charities is required only to convey to its TPA that it is a non-profit religious orga nization that objects to
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providing contraceptive services, which it has done or would have to do voluntarily anyway even

absent these regulations in order to ensure that it is not responsible fo r contracting, arranging,

paying, or referring for such covera ge. Plaintiffs can hardly claim that it is a violation of RFRA

to require them to do alm ost exactly what they would do in the ordinary course, absent the

regulations. See Univ. of Notre Dame v. Seb elius, No. 3:13-cv-01276-PPS-CAN, slip op. at 17-

24 (N.D. Ind. Dec. 20, 2013) (concluding that th e accommodation does not im pose a substantial

burden on the plaintiff’s religious exercise); Priests for Life v. U.S. De p’t of Health & Human

Servs., No. 1:13-cv-1261-EGS, slip op. at 17-30 (D.D.C. Dec. 19, 2013) (same).

Further, plaintiffs’ challenge rests largely on the theo ry that ev en the extrem ely

attenuated connection b etween them and the independent and wholly voluntary provision by

their TPA of payments for contraceptive services to which they object on religious grounds—but

for which plaintiffs pay nothing—amounts to a s ubstantial burden on thei r religious exercise.

This cannot be. Regardless of how plaintiffs

frame their religious beliefs, courts m ust

independently consider whether a given law im poses a substantial burden on those beliefs. The

regulations impose, at most, only the m ost de minimis burden on plaintiffs’ religious exercise,

too slight and attenuated to be “substantial” under RFRA, and little d ifferent from plaintiffs’

payment of salaries to their employees, which those employees can also use to buy contraceptive

services if they so choose.

Moreover, even if the challenged regulations were deemed to impose a substantial burden

on plaintiffs’ religious exercise, the regulatio ns would not violate RFRA because they are

narrowly tailored to serve two compelling interests: improving the health of women and newborn

children, and equalizing the provision of preven tive care for women and men so that women can

participate in the workforce, and society more generally, on an equal playing field with men.

Plaintiffs’ First Am endment claims are equa lly meritless. Indeed, nearly every cou rt to

consider similar First Amendment challenges to the prior version of the re gulations has rejected

the claims, and their analysis applies here. Plaintiffs’ APA claims also fail. The regulations are in

accordance with federal law, and defendants’ interpretation of the regulations is not erroneous.

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For these reasons, and those explained below, defendants’ motion to dism iss or, in the alternative, for summ ary judgment should be granted, and plaintiffs’ motion for a tem porary restraining order should be denied.
BACKGROUND Before the Patient Protection and Affordab le Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed to stay healthy, avoid or delay the onset of dis ease, lead productive lives, and reduce health care costs. Due largely to co st, Americans used pr eventive services at abou t half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1920, 109 (2011) (“IOM R EP.”), AR at 317-18, 407. 1 Section 1001 of the ACA—which includes the preventive services coverage provision relevant here—seeks to cure this problem by m aking preventive care accessible and affordable for many more Americans. Specifically, the provision requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without costsharing, including, “[for] women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4). Because there were n o existing HRSA gui delines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) requested that the Institute of Medicine (IOM) de velop recommendations to implement the requirement to provide coverage, without cost-sharing, of pr eventive services for wom en. IOM REP. at 2, AR at 300. 2 After conducting an extensive science-based re view, IOM recommended that HRSA guidelines include, among other things, well-wom an visits; breastfeeding support; dom estic violence screening; and, as relevant here, “the full range of [FDA ]-approved contraceptive m ethods, sterilization procedures, and patient educat ion and counseling for wom en with reproductive
1 Where appropriate, defendants have provided parallel citations to the Administrative Record (AR). 2 IOM, which was established by the National Academy of Sciences in 19 70, is fun ded by Congress to provide expert advice to the federal government on matters of public health. IOM REP. at iv, AR at 289.
4

Case 1:13-cv-00709-RC Document 11-1 Filed 12/23/13 Page 18 of 62 PageID #: 218
capacity.” Id. at 10-12, AR at 308-10. IOM determ ined that coverage, without cost-sharing, for these services is necess ary to increase access to such serv ices, and thereby reduce unintended pregnancies (and the n egative health outcom es that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.3
On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exemption relating to certain r eligious employers authorized by regulations issued that same day (the “2011 a mended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guid elines (“HRSA Guidelines”), AR at 283 -84.4 Group health plans established or maintained by these religious employers (and associated group health insurance coverage) are ex empt from any requirement to cover contraceptive services consistent with HRSA’s guidelines. See id.; 45 C.F.R. § 147.131(a).
In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 a mended interim final regulations wh ile also creating a temporary enforcement safe harbor for non-gr andfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious
3 At least twenty-eight states have laws requiring health insurance policies that cover prescription drugs to also provide coverage for FD A-approved contraceptives. See Guttmacher Institute, State Policies in Brief: Insurance Coverage of Contraceptives (June 2013), AR at 1023-26. 4 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and (4) the organization is a non profit organization as described in section 60 33(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.
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organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215.

The regulations challenged here (the “2013 fina l rules”) repres ent the culm ination of that

process. See 78 Fed. Reg. 39,870 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar.

21, 2012) (Advance Notice of Proposed Rulem aking (ANPRM)), AR at 186-93; 78 Fed. Reg.

8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.

The 2013 final rules represent a significant accommodation by the governm ent of the

religious objections of c ertain non-profit religious organizations while promoting two important

policy goals. First, the regu lations provide wom en who wo rk for non-profit religious

organizations with access to contraceptive coverage without cost sharing, thereby advancing the

compelling government interests in safeguarding public health and ensuring that w omen have

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

fashion that does not require non-profit religious organizations with re ligious objections to

providing contraceptive coverage to contract, pay, arrange, or refer for that coverage.

The 2013 final rules simplify and clarify the religious employer exemption by eliminating

the first three crite ria and clarifying th e fourth criterion. See supra note 5. Under the 2013 final

rules, a “religious em ployer” is “an organiza tion that is organized and operates as a nonprofit

entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code

of 1986, as amended,” which refers to churches, their integrated auxiliaries, and conventions or

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

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

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

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

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

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

coverage requirement for group health plans

established or maintained by “eligible

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

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

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

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

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

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

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

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

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

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

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

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

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

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

an organization with an insured group hea

lth plan—such as Catholic Charities—the

organization’s health in surance issuer, upon recei pt of the self-certification, m ust provide

separate payments to plan participants and bene ficiaries for contraceptive services without cost

sharing, premium, fee, or other ch arge to plan participants or be neficiaries, or to the eligible

organization or its plan. See id. at 39,875-77, AR at 7-9. And in th e case of an organization with

a self-insured group health plan—such as other plaintiffs here—the or ganization’s TPA, upon

receipt of the self-certification, will provide or arrange separa te payments for contraceptive

services for participants and bene ficiaries in the plan; again, w ithout cost-sharing, premium, fee,

or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See

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id. at 39,87 9-80, AR at 11-12. Any costs in curred by the TPA will be reim bursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
The 2013 final rules generally apply to group h ealth plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except that the amendments to the relig ious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
STANDARD OF REVIEW Defendants move to dismiss this case for lack of subject matter jurisdiction and failure to state a claim upon which relief m ay be granted under Federal Rules of Ci vil Procedure 12(b)(1) and 12(b)(6), respectively. Th e party invoking federal juri sdiction bears the burden of establishing its existence, and the Court must determine whether it has subject matter jurisdiction before addressing the merits of a claim. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 9495, 104 (1998). Under Rule 12(b)(6), “the ten et that a co urt must accept as true all of th e allegations contained in a com plaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statem ents, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To the exte nt that th e Court m ust consider the administrative record in addition to the face of the complaint, defendants move, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. A pa rty is entitled to summ ary judgment where the adm inistrative record demonstrates “that there is no genuine dispute as to any m aterial fact and that the m oving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This memorandum also responds to plaintiffs ’ motion for a tem porary restraining order and preliminary injunction. A tem porary restraining order is an “extraordinary remedy that may only be awarded upon a clear showing that th e plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council , Inc., 555 U.S. 7, 22 (2008). A plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irrep arable harm in the absence of preliminary relief, that the balance of equities tips in his f avor, and that an injunction is in the
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public interest.” Id. at 20.5

ARGUMENT

I. THIS CASE SHOULD BE DISMI SSED BECAUSE THE COURT LACKS SUBJECT MATTER JURISDICTION
Plaintiffs’ motion for a tem porary restraining order and prelim inary injunction, and their

entire case, should be dism issed at the outset for lack of

standing. “[T]he irreducible

constitutional minimum of standing” requires that a plaintiff (1) have suffered an injury in fact,

(2) that is caused by the defendant’s conduct, and (3 ) that is likely to be redressed by a favorable

ruling. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992). As to the injury prong, a

plaintiff must demonstrate that it has “suf fered an injury in fact—an invasion of a legally

protected interest which is (a) concrete and p articularized, and (b) ac tual or imm inent, not

conjectural or hypothetical.” Id. at 560 (quotations omitted). Allegations of possible future injury

do not suffice; rather, “[a] threatened injury must be certainly impending to constitute injury in

fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quotation omitted).

The harm alleged by plaintiffs is that, to avail themselves of the acco mmodations, the

challenged regulations require them to engage in action s that “facilitate” and/or make them the

“trigger” for the provision of paym ents for contraceptive services by a third party. See Pls.’

Mem. at 9. The Diocese’s plan, however, is a self-insured church plan, Com pl. ¶ 42, and

defendants lack regulatory author ity to require the TPAs of such self-insured church plans to

make the separate payments for contraceptive serv ices for participants and beneficiaries in such

plans under the accommodation.

In general, under the challe nged regulations, when a TPA receives a copy of the self-

certification from an eligible em ployer that sponsors a self-insured group health plan, that TPA

becomes an ERISA Se ction 3(16), 29 U.S.C. § 1002(16), plan adm inistrator and claim s

5 Plaintiffs’ reliance on out-of-circuit, pre-Winter case law to suggest that the relevant factors “merely ‘guide the discretion of the court,’” Pls.’ Mem. of Law in Supp. of Pls.’ Mot. for TRO & Prelim. Inj. (“Pls.’ Mem.”) at 11, ECF No. 3, is in significant tension with Supreme Court’s requirement that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the m erits,” Winter, 555 U.S. at 20 (emphasis added); Choice Inc. of Texas v. Greenstein, 691 F.3d 710, 717 n.35 (5th Cir. 2012).
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administrator for the pu rpose of providing th e separate payments for con traceptive services. See 29 C.F.R. § 2510.3-16(b). Thus, the contraceptive coverage requirements can be enforced against such TPAs through defendant Department of Labor’s ERISA enforcement authority. See 78 Fed. Reg. at 39,879-39,880, AR at 11-12. But church plans are specifically excluded from the am bit of ERISA. See 29 U.S.C. § 1003(b)(2). Thus, ERISA enfor cement authority is not available with respect to the TPAs of s elf-insured church plans under the accommodation, and the government cannot compel such TPAs under such authority to provide contraceptive coverage to self-insured church plan participants and beneficiarie s under the accom modation, including th e plaintiffs’ employees and their covered dependents.
The Diocese is entirely exempt from the regulations, and Catho lic Charities remains eligible for the acco mmodations under the final regu lation promulgated by defendant Department of the Treasury, 26 C.F.R. § 54.9815-2713A, and theref ore need not contract, arrange, pay, or refer for contraceptive coverage. 6 And neither plaintiffs’ plan nor their TPA is required under the regulations to provide separate paym ents for contraceptive services or to contract or otherwise arrange with a third party for such payments to be made. In short, under the challenged regulations, there is abso lutely no connection between plain tiffs and contracep tive coverage. Thus, the injury of which plaintiffs complain—that the regulations somehow require them to facilitate acces s to c ontraceptive services to which they object on religiou s grounds— simply does not apply to plaintiffs here. 7 Because plaintiffs lack standing to assert their claim s, this case should be dism issed in its entirety. See Archbishop of Washington , slip op. at 46-51 (finding that similarly situated plaintiffs lacked standing because there is no “concrete, actual or imminent, cognizable injury in fact”).
6 The same is true with respect to any other entity that qualifies as an “eligible organization” under the accommodations, whether or not that organization is a plaintiff in this action. 7 Nor can plaintiffs complain that their TPAs might voluntarily elect to provide contraceptive coverage notwithstanding the fact that defendants do not have the authority to require them to do so, as this allegation would be far too speculative for the purposes of Article III standing. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013).
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II. PLAINTIFFS’ CLAIMS LACK MERIT A. Plaintiffs’ Religious Freedom Restoration Act Claim Is Without Merit 1. The regulations do not substantia lly burden plaintiffs’ exercise of religion Under RFRA, Pub. L. No. 103-141, 107 St at. 1488 (1993) (codified at 42 U.S.C.
§ 2000bb-1 et seq.), the federal government “shall not substantially burden a person’s exercise of religion” unless that burde n is the least restrictive means to further a compelling governm ental interest. 42 U.S.C. 2000 bb-1. Importantly, “only substantial burdens on the exercise of religion trigger the compelling interest requirement.” Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001) (emphasis added). “A substantial burden ex ists when government action puts ‘substantial pressure on an adherent to m odify his behavior and to violate his beliefs.’” Kaemmerling v. Lappin, 553 F.3d 669, 678 (D.C . Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)); see also Notre Dame, slip op. at 16-17; Priests for Life, slip op. at 20. “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unim portant to the adherent’s religious schem e.” Kaemmerling, 553 F.3d at 678; see also Garner v. Kennedy, 713 F.3d 237, 241-42 (5th Ci r. 2013) (“In order to show a substantial burden, the plaintiff must show that the challenged action ‘truly pressures the adherent to significantly m odify his religious behavior and signi ficantly violate his religious beliefs.’”).
For three reasons, plaintiffs cannot show that the challeng ed regulations substantially burden their religious exercise. For three reasons, plaintiffs cannot show that the challenged regulations substantially burden their religious exercise. First, as ex plained above, because plaintiffs’ plan is a self-insured chu rch plan, the challenged regulations do not require plaintiffs’ TPA to provide separate payments for contraceptive services, or to contract or otherwise arrange with a third party for such payments to be made with respect to the participants and beneficiaries of plaintiffs’ plan. The regulations, therefore, impose absolutely no burden on plaintiffs’
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religious exercise, let alone a substantial burden. See supra Section I.8 Second, even assum ing
the regulations do require plaintiffs’ TPA to provide separate payments for contraceptive
services—which the regulations do not 9—the regulations require virtually nothing of plaintiffs,
and certainly do not require plain tiffs to modify their behavior in any m eaningful way. Thus, the
regulations cannot be deem ed to impose any more than a de minimis burden on plaintiffs—let
alone a substantial one. Third, even if this Court finds that the regulations im pose some burden
on plaintiffs’ religious exercise, any such burden would be far too attenuated to be substantial.
a. The regulations impose no more t han a de minimis burden on plaintiffs’ exercise of religion because the regulations require virtually nothing of plaintiffs
To put this case in its s implest terms, plaintiffs challenge regulations that require them to
do next to nothing, except what they would have to do even in the absence of the regulations.
The Diocese is entirely exempt from the contraceptive co verage requirement.10 And Catholic
8 Plaintiffs’ heavy reliance on out-of-circuit cases in volving for-profit companies (Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), cert. granted, No. 13-354; Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013); and Gilardi v. U.S. Dep’t of Health & Human Servs., 733 F.3d 1208 (D.C. Cir. 2013)), as well as the district court ruling in Zubik v. Sebel ius, No. 2:13-cv-01459, 2013 WL 6118696 (W.D. Pa. No v. 21, 2013), is misplaced. None of those ca ses involved eligible organizations that offer health coverage through a self-insured church plan, and thus, the courts had no occasion to address the arguments defendants raise here. Furthermore, those out-of-circuit for-profit com pany cases are inapposite because for-profit corporations—unlike plaintiffs—do not qualify for the religious employer exemption or the accommodations for eligible organizations. See 78 Fed. Reg. at 39,875, AR at 7. Thus, for example, the regulations require for-profit companies to contract or otherwise arrange and pay for contraceptive coverage for the participants and beneficiaries of their group health plans. Plaintiffs, by contrast, are in a markedly different position. As prev iously explained, the Diocese is ex empt, and in o rder to be relieved of t he obligation to contract or otherwise arrange and pay for c ontraceptive coverage, Catholic Charities must only fulfill the self-certification requirement. Similarly, the district court in Zubik was wrong to rely on those for-profit company ca ses. The Zubik court’s conclusion that the regulations at issue in that cas e (and in this one) impose a s ubstantial burden on t he plaintiffs in that case—which was rendered without citation to any legal authority, id.at *24-27—is unpersuasive. 9 Defendants will make this assum ption in t he remainder of their RFRA argument because plaintiffs’ claims fail regardless of whether the challenged regulations require anything of their third-party TPAs. 10 Plaintiffs state that the scope of the religious employer exemption adopted in the 2013 final rules is narrower than that contemplated in the ANPRM. See, e.g., Pls.’ Mem. at 8. This contention is both false and irrelevant. Plaintiffs contend that, in the ANPRM, the government suggested that non-exempt organizations that participate in the health plan of an exempt organization would benefit from the exemption. But defendants never advanced that interpretation of the exemption. Plaintiffs’ misleading quotation from the ANPRM, see id., does not indicate otherwise when read in full. In the ANPRM, defendants said:
In addition, we no te that this ex emption is available to relig ious employers in a variety of arrangements. For example, a C atholic elementary school may be a di stinct common-law employer from the Catholic diocese with which it is affiliated. If the school’s employees receive health coverage through a plan established or maintained by the school, and the school meets the
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Charities, as an eligible orga nization, is not require d to contract, arrange , pay, or refer for
contraceptive coverage. To the contrary, Catholic Charities is free to continue to refuse to do so,
to voice its disapproval of cont raception, and to encourage its em ployees to refrain f rom using
contraceptive services. Catholic Charities need only fulfill the self-certification requirement and
provide the completed self-certification to its TPA. Ca tholic Charities need not pay for
contraceptive services to their employees. In stead, third parties—pl aintiffs’ TPA—provide
payments for contraceptive s ervices, at no cost to p laintiffs. In short, with respect to
contraceptive coverage, the non-exempt plaintiff, Catholic Charities, need not do anything m ore
than it did prior to the promulgation of the challenged regulations—that is, to inform its TPA that
it objects to providing contraceptive coverage in order to ensure that it is not responsible for
contracting, arranging, paying, or referring for such coverage . Thus, the regulations do not
require plaintiffs “to modify [their] religious behavior in any way.” Kaemmerling, 553 F.3d at
679. The Court’s inquiry should end here. A law cannot be a substantial burden on religious
exercise when “it involves no ac tion 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, slip op. at 21-27.
Because the regulations place no burden at all on plaintiffs, they plainly place no
cognizable burden on their religio us exercise. Plaintiffs’ contrary argum ent rests on an
definition of a religious employer in the final regulations, then the religious employer exemption applies. If, instead, the same school provides health coverage for its employees through the same plan under which the diocese provides coverage for its employees, and the diocese is exempt from the requirement to cover contraceptive services, then neither the diocese nor the school is required to offer contraceptive coverage to its employees.
77 Fed. Reg. at 16,502 (emphasis added), AR at 187. This passage in no way suggests that a non-exempt employer (i.e., one that does not meet the definition of “religious employer” in the final rules) would become exempt simply by providing coverage through the same plan as an exem pt employer. Far from it, both hypotheticals presented in the ANPRM deal with a school—the “same” school—that itself m eets the definition of an e xempt religious employer. Defendants’ decision to exempt entities on an employer-by-employer basis is thu s consistent with defendants’ prior statements in the ANPRM. More over, the age ncies expressly “propose[d] to make the accommodation or the religious employer exemption available on an employer-by-employer basis” in the NPRM. 78 Fed. Reg. at 8467, AR at 176. Finally, even if the scope of the exemption in the final rules were different from what was originally proposed in the ANPRM—which it is not—plaintiffs have not indicated why that would be improper. In fact, that is the very purpose of the rulemaking process. See, e.g., Ne. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 951 (D.C. Cir. 2004).
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unprecedented and sweeping theory of what it mean s for religious exercise to be burdened. Not only do plaintiffs wa nt to be free from contracting, arranging, paying, or referring for contraceptive services for their employees—w hich, under these regulations, they are—but plaintiffs would also prevent anyone else from providing such coverage to their em ployees, who might not subscribe to plaintiffs’ religious beliefs. That this is the de facto impact of plaintiffs’ stated objections is m ade clear by their sugg estion that RFRA is violated whenever they are a “but-for cause” of the provision of the objectionable products and services. See, e.g., Compl. ¶ 84. This theory would m ean, for example, that even the government would not realistically be able to provide contraceptive coverage to plaintiffs’ employees (as plaintiffs elsewhere suggest), because it would be “trigger[ed],” id.; Pls.’ Mem . at 9, by plainti ffs’ 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. S upp. 2d 1149, 1158-60 (E.D. Mo. 2012), appeal pending, No. 12-3357 (8th Cir.), and accordingly it does not prevent the government from providing alternative means of achieving important statutory objectives once it has prov ided a religious accommodation. Cf. Bowen v. Roy, 476 U.S. 693, 699 (1986) (“The Free Ex ercise Clause sim ply cannot be understood to require the Governm ent to conduct it s own internal affairs in ways that com port with the religious beliefs of particular citizens.”).
Plaintiffs’ RFRA challenge is s imilar to th e claim that the D.C. Circuit rejected in Kaemmerling. There, a federal prisoner objected to the FBI’s coll ection of his DNA profile. 553 F.3d at 678. In concluding that this collecti on did not substantially burden the prisoner’s religious exercise, the court concluded that “[t]he extraction and storage of DNA information are entirely activities of the FBI, in which Kae mmerling plays no role an d which occur af ter the BOP has taken his fluid or tissue sample (to which he does not object).” Id. at 679. In the court’s view, “[a]lthough the government’s activities with his fluid or ti ssue sample after the BOP takes it may offend Kaemmerling’s religious beliefs, they cannot be sa id to ham per his religious exercise because they do not pressure [him] to modify his behavior and to violate his beliefs.” Id. (internal citation and q uotation marks omitted). The same is true he re, where th e provision of
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contraceptive services is “entirely [an] activit[y] of [a third party], in which [plaintiffs] play[] no role.” Id. As in Kaemmerling, “[a]lthough the [third party]’s activities . . . m ay offend [plaintiffs’] religious beliefs, they cannot be said to hamper [their] religious exercise.” Id.
Perhaps understanding the tenuous ground on whic h their RFRA claim rests, given that the regulations do not require them to contract, arrange, pay, or refer for contraceptive services, plaintiffs attempt to circumvent this problem by advancing the novel theory that the regulations require them to som ehow “facilitate acce ss” to contrac eptive coverage, and that it is th is “facilitation” that violates plaintiffs’ religious beliefs. See, e.g., Compl. ¶¶ 5, 9, 13, 16; Pls.’ Mem at 21-22. But the challenged regulations do not require the Diocese to do anything, and require Catholic Charities only to self-certify that it obj ects to providing coverage for contraceptive services and that it otherwise meets the criteria for an eligible organization, and to share that self-certification with its TPA. In other words, Catholic Charities is required to inform its TPA that it objects to provi ding contraceptive coverage, which it has done or would have to do voluntarily anyway even absent these regulations in order to ensure that it is not responsible for contracting, arranging, paying, or referring for contraceptive coverage. The sole difference is that it must inform its TPA that its objection is for religious reasons—a statement it has already made repeatedly in this litigation and elsewhere.
Furthermore, any burden im posed by the pu rely administrative self-certification requirement—which should take Catholic Charities a matter of minutes—is, at most, de minimis, and thus cannot be “substantial” under RFRA. Courts have made clear that the substantial burden hurdle is a high one. Living Water Church of God v. Charter Twp. of Meridian , 258 F. App’x 729, 734 (6th Cir. 2007); see also Kaemmerling, 553 F.3d at 678 (“A n 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. I ndeed, if this is not a de minimis burden, it is hard to see what would be. In fact, p laintiffs’ alternative proposals only confirm that the alleged “burden” of self-certification is de minimis. They contend
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that, as an alternative to th e accommodations developed by th e Departments, the governm ent should somehow expand or create other public programs so as to provide contraceptive coverage to the women who participate in their group health plans. RFRA plainly does not require defendants to expand or create governm ent programs, particularly where, as here, there is no statutory authority to do so. See infra Section II.A.2.b. But, in an y event, plaintiffs’ own proposals would entail the sam e putative “burden” as the existing accommodations, or an even greater burden: One wa y or anothe r, plaintiffs would have to certif y their eligib ility for an accommodation, and the result would be that the wo men who participate in their plan would get contraceptive coverage through another source such as Medi caid. The governm ent would of course, as it does with Medicaid, have to verify employment and/or dependent beneficiary status with the eligible organ ization. The curren t accommodations are thus likely to req uire less of plaintiffs’ involvement than would a governm ent program to separately provide contraceptive coverage for their employees and dependents.
Contrary to plaintiffs’ suggestion, the m ere fact that Catholic Charities claim s that the self-certification requirement imposes a substantial burden on its religious exercise by requiring it to “facilitate” acce ss to contraception does not m ake it s o. See Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 413 (E.D. Pa. 2013) (“[W ]e reject the notion . . . that a plaintiff shows a burden to be substan tial simply by claiming that it is.”), aff’d, 724 F.3d 377 (3d Cir. 2013). Under RFRA, plaintiffs are entitled to their sincere relig ious beliefs, but they are not entitled to decide what does and does not im pose a substantial burden on such beliefs. Although “[c]ourts are not arbiters of scriptural interpretation,” Thomas, 450 U.S. at 716, “RFRA still requires the court to determine whether the burden a law imposes on a plaintiff’s stated religious belief is ‘su bstantial,’” Conestoga, 917 F. Supp. 2d at 413. Plaint iffs would lim it the Court’s inquiry to two prongs: first, whether plaintiffs’ religious objections to the regulations are sincere, and second, whether the regulations apply signif icant pressure to plaintiffs to comply. But plaintiffs ignore a critical third criterion of the “substantial burde n” test, which gives meaning to the term “substantial”: whether th e challenged regulations actually require plaintiffs to m odify
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their behavior in a significant—or more than de minimis—way. See Living Water Church of God, 258 F. App’x at 734-36; see also, e.g., Vision Church v. Vill. of Long Grove, 468 F.3d 975, 997 (7th Cir. 2006) (noting, in the RLUIPA context, that “t he Supreme Court has found a ‘substantial burden’ to exist when the governm ent puts ‘substantial pressu re on an adherent to modify his behavior and to violate his beliefs’” (quoting Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 141 (1987))) (emphasis added); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 348-49 (2d Cir. 2007); Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328, 1353-54 (N.D. Ga. 2012). As plaintiffs them selves appear to recognize, a “law ‘subs tantially burdens’ an exercise of religion if it compels one “to perform acts undeniably at odds with fundamental tenets of [one’s] religious beliefs,” Pls.’ Mem. at 23 (quoting Wisconsin v. Yoder , 406 U.S. 205, 218 (1972)) (em phasis added), “or ‘put[s] substantial pressure on an adherent to modify his behavior and violate his beliefs.’” Id. (quoting Thomas, 450 U.S. at 717-18) (emphasis added). This test does not require the Court to delve into the theological merits of a belief, b ut instead to examine the operation of the regu lations and their impact on plaintiffs’ religious practice. See Autocam, 2012 WL 6845677 at *7-8.11
Under plaintiffs’ alternative interpretation of RFRA, courts would play virtually no role in determining whether an alleged burden is “s ubstantial”—as long as a plaintiff’s religious belief is sincere, that would be the end of the inquiry. Plaintiffs would thus be allowed to evade RFRA’s threshold by simply asserting that the burd en on their religious exercise is “substantial,” thereby paradoxically reading the term “substantial” out of RFRA. See id. at *6 (“The Court does
11 In Hobby Lobby, a bare majority of the en banc Tenth Circuit concluded that, in determining whether a burden is substantial, a court’s “only task is to determine whether the claimant's belief is sin cere, and if so, whether the government has appl ied substantial pressure on the claimant to violate that belief.” 723 F.3d at 1137. The government believes that the majority’s ruling in Hobby Lobby was wrong on this and many other points. However, even if this Court we re inclined to agree with the Tenth C ircuit, the majority proceeded to rely on Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), which makes clear that in order for a law to impose a substantial burden, it must require some actual change in religious behavior—either forced participation in conduct or forced abstention from conduct. See Hobby Lobby, 723 F.3d at 1138 (citing Abdulhaseeb, 600 F.3d at 1315). The Hobby Lobby substantial burden analysis is also inapposite because for-profit co rporations are no t eligible for th e accommodations. For similar reasons, the Seventh Circuit’s substantial burden analysis in Korte—which followed Hobby Lobby—is unpersuasive. See Korte, 735 F.3d at 687.
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not doubt the sincerity of Plaintiff Kennedy’s deci sion to draw the line he does, but the Court still has a duty to assess whether the claim ed burden—no m atter how sincerely felt—really amounts to a substantial burden on a person’s exer cise of religion.”). “I f every plaintiff were permitted to unilaterally determine that a law b urdened their re ligious beliefs, and c ourts were required to assume that such burden was substantial, simply because the plaintiff claimed that it was the case, then the standard expressed by Congress under the RFRA would convert to an ‘any burden’ standard.” Conestoga, 917 F. Supp. 2d at 413-14; see also Autocam, 2012 WL 6845677, at *7; Mersino Mgmt. Co. v. Sebelius, No. 13-CV-11296, 2013 WL 3546702, at *16 (E.D. Mich. July 11, 2013). 12 The result would be to subject every ac t of Congress to strict scrutiny every time a plaintiff could articulate a sincerely held religious objection to compliance with that law.
Finally, plaintiffs seem to suggest that the re gulations will actually require them to fund or subsidize access to contraceptive coverage because their issuers will find a way to pass on the costs of such coverage to plaintiffs. See, e.g., Pls.’ Mem. at 20. But the regulations specifically prohibit plaintiffs’ TPA from charging any pr emium or otherwise pa ssing on any costs to plaintiffs with re spect to the issuers’ payments for contraceptive services. See 78 Fed. Reg. at 39,880, AR at 12; see also Notre Dame, slip op. at 23-24. Any suggest ion that plaintiffs’ TPA(s) will violate the law is purely spe culative, and boils down to the baseless a rgument that the regulations impose a s ubstantial burden beca use a third party m ight violate those sam e regulations. This contention has no merit.
In sum, the regulations do not impose a su bstantial burden on plaintiffs’ religious exercise, and thus Count I should be dismissed or summary judgment granted to defendants.
12 RFRA’s legislative history makes clear that Congress did not intend such a relaxed standard. The initial version of RFRA prohibited the government from imposing any “burden” on free exercise, substantial or otherwise. Congress amended the bill to add the word “substantially,” “to make it clear that the compelling interest standards set forth in the act” apply “only to Government actions [that] place a substantial burden on the exercise of” religious liberty. 139 Cong. Rec. S14350-01, S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy); see also id. (text of Amendment No. 1082).
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b. Even if the regulations were found to impose some more than de minimis burden on plaintiffs’ exercise of religion, any such burden would be far too attenuated to be “substantial” under RFRA
Although the regulations do not require plainti ffs to contract, arrange, pay, or refer for contraceptive coverage, plaintiffs’ complaint appears to be that the regulations require plaintiffs to indirectly facilitate conduct on the part of their employees that they find objectionable (i.e., the use of certain contraceptives). But this complaint has no limits. An employer provides numerous benefits, including a salary and ot her fringe benefits, to its em ployees and by doing so in som e sense facilitates whatever use its employees make of those benefits. Plaintiffs not only seek to be free from the requirement to contract, arrange , pay, or refer for contraceptive coverage themselves—which they are under these regulations —but also seek to prevent anyone else from providing such coverage to their employees. But an employer has no right to control the choices of its employees, who may not share its religious beliefs, and who have a legitim ate interest in access to the preventive services coverage made available under the challenged regulations.
Indeed, courts have held that claim s raised b y for-profit com panies challenging the contraceptive coverage regulations, which—unlike here—actually require employers to contract, arrange, pay, or refer for the relevant coverage themselves, are too attenuated to am ount to a substantial burden under RFRA. See, e.g., Autocam, 2012 WL 6845677, at *6-7. Any burden on plaintiffs, which are eligible for the religious employer exemption or the accommodations, is a fortiori too attenuated to be subs tantial. For ex ample, the distr ict court in Conestoga reasoned that the ultimate decision of whether to use contraception “rests not with [the employer], but with [the] employees” and that “any burden im posed by the regulations is too attenuated to be considered substantial.” 917 F. Supp. 2d at 414-15. The Conestoga court further explained that the indirect nature of any burden imposed by the regulations distinguished them from the statutes challenged in Yoder, Sherbert, Thomas, and Gonzales. See Conestoga, 917 F. Supp. 2d at 415; see also, e.g., Autocam, 2012 WL 6845677, at *6; O’Brien, 894 F. Supp. 2d at 1158-60.13
As these courts concluded, the preventive services coverage regulations result in only an
13 See also Korte, 735 F.3d at 705-15 (Rovner, J., dissenting); Eden Foods, 2013 WL 1190001; Annex Medical, Inc. v. Sebelius, No. 12–2804, 2013 WL 101927, *4-5 (D. Minn. Jan. 8, 2013).
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indirect impact on for-profit companies, which must provide contraceptive coverage themselves. Any burden on plaintiffs and sim ilar eligible organizations that qualify for the acco mmodations is even more attenuated. Not only are plain tiffs separated from the use of contracep tion by “[a] series of event s” that must occur before the u se of contraceptiv e services to which plaintiffs object would “come into play,” Conestoga, 917 F. Supp. 2d at 414-15, but they are also further insulated by the f act that a th ird party—plaintiffs’ TPA—and not plaintiffs, will a ctually contract, arrange, pay, and refer for such services, and thus plaintiffs are in no way subsidizing— even indirectly—the use of prev entive services that they find objectionable. Under plaintiffs’ theory, their religious exercise is substantially burdened w hen one of their em ployees and her health care provider m ake an i ndependent determination that th e use o f certain co ntraceptive services is appropriate, and such services are paid for exclusively by plaintiffs’ issuers, with none of the cost being passed on to plaintiffs, and no administration of the paym ents by plaintiffs, solely because plaintiffs self-certified that they have religious ob jections to providing contraceptive coverage and so informed their issuers.
But a burden cannot be “substantial” under RFRA when it is attenuated. See Autocam, 2012 WL 6845677, at *6-7. Cases that find a substantial burden unifor mly involve a direct burden on the plaintiff rather than a burden imposed on another entity. See, e.g., Potter v. Dist. of Columbia, 558 F.3d 542, 546 (D.C. Cir. 2009); see also Conestoga, 917 F. Supp. 2d at 413-14. A plaintiff cannot establish a substa ntial burden on his relig ious exercise by invoking this type of trickle-down theory; to constitute a substantial burden under RFRA, the burden must be imposed on the plaintiff him self. See Conestoga, 917 F. Supp. 2d at 411, 413; Autocam, 2012 WL 6845677, at *7.14 Here, of course, there is no such direct burden. In f act, given that any payment
14 Thomas is not to the contrary. In Thomas, the Suprem e Court recognized that “a compulsion may certainly be indirect and still constitute a substantial burden, such as the denial of a benefit found in Thomas.” Conestoga, 917 F. Supp. 2d at 415 n.15. But that is not so where the burden itself is ind irect, as it is h ere. See id.. As p reviously explained, see supra note 9, in Hobby Lobby, 723 F.3d 1114, a bare majority of the en banc Tenth Circuit concluded that the word “substantial” in RFRA refers to the “intensity of coercion” rather than to the directness or indirectness of the burden, if any, on a pl aintiff’s religious exercise. Id. at 1137-40. The Te nth Circuit’s conclusion that the substantial burden requirement relates to the intensity of the coercion, however, is inconsistent with Kaemmerling, discussed above, as well as other decisions that have analyzed “substantial burden” in terms of the degree to which the challenged law directly imposes a requ irement or pr ohibition on religious practice. See 553 F.3d at 678-79;
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for contraceptive services is made by plaintiffs’ issuers, the regulations have even less impact on plaintiffs’ religious exercise than plaintiffs’ payment of salaries to their employees, which those employees can use to purchase contraceptives. See O’Brien, 894 F. Supp. 2d at 1160; Conestoga, 917 F. Supp. 2d at 414; Korte, 735 F.3d at 715-16 (Rovner, J., dissenting); Autocam, 2012 WL 6845677, at *6.
Plaintiffs remain free t o refuse t o contract, arrange, pay, or refer for contraceptive coverage; to voice their disapproval of contra ception; and to encourage their employees t o refrain from using con traceptive services. The regulations therefor e affect plain tiffs’ religious practice, if at all, in a most attenuated way. In short, because the prev entive services coverage regulations “are several degrees removed from im posing a substa ntial burden on [plaintiffs],” O’Brien, 894 F. Supp. 2d at 1160, the Court should dism iss plaintiffs’ RFRA claim, or grant summary judgment to defendants, even if it finds—contrary to the government’s argument—that the challenged regulations impose some burden on plaintiffs’ religious exercise.
2. Even if there w ere a substantial burden on religious exercise, the regulations serve compelling governmental interests and are the least restrictive means to achieve those interests a. The regulations significantly advance compelling govern mental interests in public health and gender equality
Even if plaintiffs were able to de monstrate a substantial burden on their religious exercise, they would not prevail because th e challenged regulations are justified by two compelling interests, and are the le ast restrictive means to achieve th ose interests. First, the promotion of public health is unquestionably a com pelling interest. Mead v. Holder , 766 F. Supp. 2d 16, 43 (D.D.C. 2011); see also, e.g., Buchwald v. Univ. of N.M. Sch. of Med. , 159 F.3d 487, 498 (10th Cir. 1998); Dickerson v. Stuart, 877 F. Supp. 1556, 1559 (M.D. Fla. 1995). And the challenged regulations further this com pelling interest by “expanding access to and utilization of recommended preventive services for women.” 78 Fed. Reg. at 39,887, AR at 19.
Living Water Church of God, 258 Fed. App’x at 734 ; McEachin, 357 F.3d at 203 n.6; Civil Liberties for Urban Believers, 342 F.3d at 761. And, again, the substantial burden analysis in Hobby Lobby and Korte are inapplicable to this case. See supra notes 8 & 11.
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The primary predicted benefit of the preventi ve services coverage regulations is that “individuals will experience im proved health as a result of reduced tran smission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increas e access to and utilization of these services, which are no t used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significan t barrier to access to con traception.” (citation omitted)), AR at 5.
Increased access to FDA-approved contraceptive services is a key part o f these predicted health outcomes, as unintended pregnancies have proven in m any cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39, 872, AR at 4. As IOM concluded in identifying services recomm ended to “prevent conditions harm ful to wom en’s health and well-being,” unintende d pregnancy m ay delay “entry in to prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “dep ression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02. Contraceptive coverage further helps to avoid “the increased risk of adverse pregnancy outcom es for pr egnancies that are too clo sely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872 (“Short interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small-for-gestational age births.”) (citing stu dies), AR at 4. And “[ c]ontraceptives also have medical benefits for women who are contraindicated for pregnancy, and there are dem onstrated preventive health benefits from contraceptives relating to conditions other than pregnancy (for example, prevention of certain cancers, m enstrual disorders, and acne).” 78 Fed. Reg. at 39,872, AR at 4; see also IOM REP. at 103-04 (“[ P]regnancy may be contrai ndicated for wom en with serious m edical conditions such as pulmonary hypert ension . . . and cyanotic hear t disease, and for wom en with the Marfan Syndrome.”), AR at 401-02.
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Closely tied to this interest is a related, but separate, compelling interest that is furthered by the regulations: assuring that women have equal access to hea lth care services. 78 Fed. Reg. at 39,872, 39,887, AR a t 4, 19. As the Suprem e Court explained in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984), there is a fundam ental “importance, both to the individual and to society, of removing the barriers to econom ic advancement and political and social integration that have historically plagued certain disa dvantaged groups, including wom en.” Id. at 626. Thus, “[a]ssuring women equal access to . . . goods, privileges, and advantages clearly furthers compelling state interests.” Id. By including in the ACA pre ventive health services for women, Congress made clear that the goals and benefits of effective prev entive health care apply equally to women, who might otherwise be excluded from such benefits if their unique health care needs were not taken into account in the ACA. As explained by members of Congress, “wom en have different health needs than m en, and these need s often generate additi onal costs. W omen of childbearing age spend 68 percent m ore in out-of-pocket health care costs than m en.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009) (s tatement of Sen. Mikulski); 78 Fed. Reg. at 39,887, AR at 19; IOM R EP. at 19, AR at 317. These costs resu lt in wom en often forgoing preventive care and place wom en in the workforce at a disadvantag e compared to their m ale coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 20, AR at 318. Congress’s atte mpt to equalize the provision of preventive health care services, with the resulting benefit of women being able to contribu te to the same degree as m en as healthy and productive members of society, furthers a com pelling governmental interest. Cf. Catholic Charities of Sacramento, Inc. v. Superior Court , 85 P.3d 67, 92-93 (Cal. 2004).15
15 In arguing that the government’s interests are not compelling, plaintiffs suggest the government must separately analyze the impact of and ne ed for the regulations as to each and every employer and employee in America. See Pls.’ Mem. at 27. But this level of s pecificity 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 p ractice, courts have not required the government to analyze the impact of a regulation on the single entity seeking an exemption, but have conducted the inquiry with respect to all similarly situated individuals or organizations. See, e.g., id. at 260 (considering the impact on the tax system if all religious adherents—not just the plaintiff—could opt out); United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001) (per curiam) (“Oliver has argued a one-man exemption should be made, however, there is nothing so
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Although the challenged regulations further these two compelling governmental interests,
while simultaneously accommodating the religious objections of eligible organizations, plaintiffs
maintain that the inte rests underlying the regulations cannot be considered com pelling when
millions of people are n ot protected by the regula tions at the m oment. Pls.’ Mem. at 27-28. But
this is not a case where underinc lusive enforcement of a law suggests that the governm ent’s
“supposedly vital interest” is not really com pelling. Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520, 546-47 (1993). For the m ost part, the “exemptions” referred to by
plaintiffs are not exemptions from the preventive services coverage regul ations at all, but are
instead provisions of the ACA that exclude individuals and entities from other requirem ents
imposed by the ACA. Or they reflect th e government’s attempts to balance the compelling
interests underlying the challenge d regulations against other si gnificant interests supporting the
complex administrative scheme created by the ACA. See Lee, 455 U.S. at 259 (“The Court has
long recognized that balance m ust be struck be tween the values of th e comprehensive social
security system, which rests on a complex of actuarial factors, and the consequences of allowing
religiously based exemptions.”); Winddancer, 435 F. Supp. 2d at 695-98 (recognizing that the
regulations governing access to eagle parts “strik e a delicat e balance” between competing
interests). And, unlike the exem ption plaintiffs seek for employers that obj ect to the regulations
on religious grounds, the existing exceptions do not undermine the government’s interests in a
peculiar or special with Oliver’s situation which warrants an exception. There are no safeguards to prevent similarly situated individuals from asserting the same privilege and leading to uncontrolled eagle harvesting.”); Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1398 (4th Cir. 1990) (“There is no principled way of exempting the school without exempting all other sectarian schools and thereby the thousands of lay teachers and staff members on their payrolls.”); see also, e.g., Graham v. Comm’r, 822 F.2d 844, 853 (9th Cir. 1987), overruled in part on other grounds by Navajo Nation v. U .S. Forest Serv., 479 F.3d 1 024, 1033 (9th Cir. 200 7) (en banc); United States v. Winddancer, 435 F. Supp . 2d 687, 697 (M.D. Tenn. 2006). Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 435 (2006), is not to the contrary. To be sure, the Court rejected “slippery-slope” arguments for refusing to accomm odate a particular claim ant. See 546 U.S. at 435-36. But it construed the scope of the requested exemption as enc ompassing all members of t he plaintiff religious sect. See id. at 4 33. Similarly, the exemption in Yoder, 406 U.S. 205, encompassed all Amish children; and the exemption in Sherbert v. Verner, 374 U.S. 398 (1963), encompassed all individuals who had a religious objection to working on Saturdays. See O Centro, 546 U.S. at 431. The Court’s warning in O Centro against “slippery-slope” arguments was a rejection of arguments by analogy—that is, sp eculation that providing an exemption to one group will lead to exemptions for o ther nonsimilarly situated groups. It was not an invitation to ignore the reality t hat an exemption for a p articular claimant might necessarily lead to an exemption for an entire category of similarly situated entities.
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significant way. See Lukumi, 508 U.S. at 547; S. Ridge B aptist Church v. Indus. Comm’n of Ohio, 911 F.2d 1203, 1208-09 (6th Cir. 1990); see also 78 Fed. Reg. at 39,887, AR at 19.
For example, the grand fathering of certain health plans with respec t to certa in ACA provisions is not limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140. In fact, the effect of grandfat hering is not really a perm anent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preven tive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at 19. The grandfathering provision reflects Congress’s at tempts to balance competing interests—specifically, the inte rest in spread ing the benefits of the ACA, including those provided by the preventive servi ces coverage provision, and the inte rest in maintaining existing coverage and easing the transition into the ne w regulatory regime established by the ACA—i n the context of a complex statutory scheme. See 75 Fed. Reg. 34,538, 34,546 (June 17, 2010).
This incremental transition does not call into question the compelling interests furthered by the preventive services coverage regulations. Even under the grandfathering provision, it is projected that more group health plans will tran sition to the requirements under the regulation s over time. Defendants have estim ated that a majority of group heal th plans will have lost their grandfather status by the end of 2013. See id. at 34,552; see also Kaiser Family Foundation and Health Research & Educational Trust, Em ployer Health Benefits 2012 A nnual Survey at 7-8, 190, AR at 663-64, 846. Thus, any purported adve rse effect on the com pelling interests underlying the regulations will be quickly mitigated, which is in s tark contrast to the permanent exemption plaintiffs seek. Plaintiffs would have this Court believe that an interest cannot truly be “compelling” unless Congress is willing to im pose it on everyone all at once despite com peting interests, but plaintiffs offer no support for that untenable proposition.16
16 Plaintiffs also allude to a “small-employer exemption[].” Pls.’ Mem. at 27-28. But 26 U.S.C. § 4980H(c)(2) does not, as plaintiffs suggest, exempt small employers from the challenged regulations. Small b usinesses that elect to offer non-grandfathered health coverage to their employees are re quired to provide coverage for recommended preventive health services without cost sharing. See 42 U.S.C. § 300gg-13. And, small employers have business incentives to offer health coverage to their employees; an otherwise eligible small employer would lose eligibility for certain tax benefits if it did not do so. See 26 U.S.C. § 45R.
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The only true exem ption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a). But there is a rational distinction between this narrow exception and the expansion plaintiffs seek. Houses of worship and their in tegrated auxiliaries that object to contraceptive coverage on religious grounds are m ore likely than other em ployers, including organizations eligible for the accommodations, to employ people of the sa me faith who share the sam e objection, and who would therefore be less likely to use contracep tive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19. In any event, it would be perverse to hold that the governm ent’s provision of a li mited religious exemption eliminates its compelling interest in the regulation, thus eff ectively extending the sam e exemption to anyone else who wants it under RFRA. Such a reading of RFRA would discourage the government from accommodating religion, the opposite of what Congress intended in enacting RFRA.
Granting plaintiffs the m uch broader exemption they request w ould undermine defendants’ ability to en force the regulations in a rational manner. See O Centro , 546 U.S. at 435. We are a “cosm opolitan nation made up of people of alm ost every conceivable religious preference,” Braunfeld v. Brown, 366 U.S. 599, 606 (1961); 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 preventive services coverage regulations—even where the regulations require virtually nothing of the organization— it is d ifficult to see how defendants could adm inister the regul ations in a m anner that would achieve Congress’s goals of i mproving the h ealth of wom en and newborn children and equalizing the coverage of preventive services for wom en. See United States v. Isr ael, 317 F.3d 768, 772 (7th Cir. 2003) (recognizing that granti ng plaintiff’s RFRA claim “would lead to significant administrative problems for the [government] and open the door to a . . . proliferation of claims”). Indeed, women who receive their health coverage th rough employers like plaintiffs would face negative health and other outcom es because they had obtain ed employment with an organization that objects to its em ployees’ use of contraceptiv e services, even when those
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services are paid for and adm inistered by a third party. See id. (noting consequences “for the public and the government”); 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,887, AR at 19.
b. The regulations are the least restrictive means of advancing the government’s compelling interests
When determining whether a particular regulato ry scheme is the “least res trictive,” the appropriate inquiry is whether the individual or organization with religious objections, and those similarly situated, can be exempted from the scheme—or whether the schem e can otherwise be modified—without undermining the government’s compelling interests. See, e.g., United States v. Schmucker, 815 F.2d 413, 417 (6th Cir. 1987); United States v. Wilgus, 638 F.3d 1274, 128995 (10th Cir. 2011). The governm ent is not requi red “to do the im possible—refute each and every conceivable alternative reg ulation scheme.” Wilgus, 638 F.3d at 1289. Instead, the government need only “refute the alternative schemes offered by the challenger.” Id.
Instead of explaining how plaintiffs and sim ilarly situated eligible organizations could be exempted from the regulations without significant dam age to the governm ent’s compelling interests, plaintiffs conjure up, without any statutory support, several brand ne w statutory and regulatory schemes—most of which would requi re the governm ent to pay for contraceptive coverage—that they claim would be less restrictive. See Pls.’ Mem. at 33. Yet plaintiffs fail to recognize that such alternatives would be incom patible with the fundame ntal statutory schem e set forth in the ACA, which plaintif fs do not challenge in this lawsuit. Congress did not adopt a single (government) payer system financed th rough taxes and instead opted to build on the existing system of e mployment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010). Plaintiffs point to no statutory authority for any of their proffered less restrictive alternatives. Nor is there any indication that Congress would ha ve contemplated that agency action could be inv alidated under RFRA because th e agency in discharging its statutorily delegated authority failed to adopt an alternative scheme absent any statutory authority for doing so. Thus, even if defendants wanted to adopt on e of plaintiffs’ non-employer-based alternatives, they would be constrained by the statute from doing so. See 78 Fed. Reg. at 39,888, AR at 20.
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Furthermore, plaintiffs them selves indicate that they would “oppose m any of” the alternatives that they put forth. Pls.’ Mem . at 33. Indeed, as noted above, it is not clear why the government’s provision of contraceptive cove rage to wom en based upon their em ployer’s objection to providing it would not be subject to exac tly the sam e RFRA claim that plaintiffs advance here. By their own admission then, plaintiffs’ proposals would do little—if anything—to satisfy their religious objections , and therefore should not be cons idered viable less restrictive alternatives. See New Life Baptist Church Acad. v. Town of E. Longmeadow , 885 F.2d 940, 95051 (1st Cir. 1989) (Breyer, J.) (considering the limited extent to which an alternative would alleviate a religious burden in rejecting it as a “less restrictive alte rnative,” even though the plaintiff had expressed a preference for the a lternative over the challen ged requirements). An eligible organization’s religious objection to contraceptive coverage would still “f acilitate” the availability of such coverage—in this case, by the governm ent—and the eligible organization would likely be called upon to verify or certify matters such as the religious objection to contraceptive coverage, and em ployment or plan beneficiary status. Plai ntiffs cannot plausibly contend that the regulations ar e not the le ast restrictive means while s imultaneously asserting that they would oppose their own suggested alternatives.
Finally, even if plaintiffs w ould be satisfied by their proposed alternative schemes, just because plaintiffs can devise an en tirely new legislative an d administrative scheme does not make that schem e a feasible less restrictive means, see Wilgus, 638 F .3d at 1289; Adams v. Comm’r of Internal Revenue , 170 F.3d 173, 180 n.8 (3d Cir. 1999) , particularly where such alternatives would com e at enorm ous administrative and financial cost to the governm ent. A proposed alternative scheme is not an adequate a lternative—and thus not a viable less restrictive means to achieve a compelling interest—if it is not feasible. See, e.g., New Life Baptist, 885 F.2d at 947; Graham, 822 F.2d at 852. In determ ining whether a proposed alternative schem e is feasible, courts often consider the additional adm inistrative and fiscal costs of the schem e. See, e.g., S. Ridge Baptist Church, 911 F.2d at 1206; Fegans v. Norris, 537 F.3d 897, 905-06 (8th Cir. 2008); United States v. Lafley, 656 F.3d 936, 942 (9th Cir. 2011); New Life Baptist, 885 F.2d at
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947. Defendants considered pl aintiffs’ alternatives and determined that they were not feasible because the agencies lacked statu tory authority to im plement them; they would i mpose considerable new costs and other burdens on the government; and they would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g., Lafley, 656 F.3d at 942; Gooden v. Crain, 353 F. App’x 885, 888 (5th Cir. 2009); Adams, 170 F.3d at 180 n.8.
Nor would the proposed alternatives be equa lly effective in advancing the government’s compelling interests. See 78 Fed. Reg. at 39,888, AR at 20; see also, e.g. , Kaemmerling, 553 F.3d at 684 (finding that m eans was least restrictive where no a lternative means would achieve compelling interests); Murphy v. State of Ark. , 852 F.2d 1039, 1042-43 (8th Cir. 1988) (sam e). As discussed above, Congress determ ined that th e best way to achieve the goals of the ACA, including expanding preventive services coverage , was to build on the existing em ployer-based system. The anticipated benefits of the preventiv e services coverage regulations are attributable not only to the fact that recommended contraceptive services will be available to women with no cost-sharing, but also to the fact that these services will be available through the existing employer-based system of health co verage through which wom en will face m inimal logistical and administrative obstacles to receiving cov erage of their care. Plaintiffs’ alternatives, b y contrast, have none of these advantages. They would require estab lishing entirely new government programs and infrastructures or f undamentally altering existing ones, and would almost certainly require women to take burdensome steps to find out about the availability of and sign up for a new benefit, thereby ensuring that fewer women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20. Nor do plaintiffs of fer any suggestion as to how thes e programs could be integrated with the employer-based system or how wom en would obtain governm entprovided preventive services in p ractice. Thus, plaintiffs’ proposals—in addition to rais ing myriad administrative and logistical dif ficulties and being unauthor ized by any statu te and not funded by any appropriation—are less likely to achieve the compelling interests furthered by the regulations, and therefore do not represent reasonable less restrictive means. Id.
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Because plaintiffs have failed to offer viable less restrictive alternatives, the Court should reject plaintiffs’ argument that the regulations fail strict scrutiny.17
B. The Regulations Do Not Violate the Free Exercise Clause
A law that is neutral and ge nerally applicable does not r un afoul of the Free Exercis e
Clause even if it prescribes conduct that an indi vidual’s religion proscribes or has the incidental
effect of burdening a particular religious practice. Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990).
“Neutrality and general applicability are interrelated.” Lukumi, 508 U.S. at 531. A law is neutral
if it does not target religiously m otivated conduct either on its face or as applied. Id. at 533. A
neutral law has as its pu rpose something other than the disapproval of a particular religion, or of
religion in general. Id. at 545. A law is generall y applicable so long as it does not selectively
impose burdens only on conduct motivated by religious belief. Id.
Unlike such selective laws, the preventive se rvices coverage regulations are neutral and
generally applicable. Indeed, nearly every court to have consid ered a free exercise challeng e to
the prior version of the regulations has rejected it, concluding that the regulations are neutral and generally applicable.18 See, e.g., Notre Dame, slip op. at 25-31; Priests for Life, slip op. at 30-35;
Archbishop of Washington , slip op. at 51-60, Autocam, 2012 WL 6845677, at *5. “The
regulations were passed, not with the object of interfering with religious practices, but instead to
improve women’s access to health care and les sen the d isparity between m en’s and women’s
17 Plaintiffs cite extra-record evidence in support of many of their arguments. For example, they cite a law review article for th e proposition that th e challenged regulations “are unlikely to sign ificantly impact contraceptive use.” See Pls.’ Mem. at 30. The introduction of this and other extra-record evidence is in appropriate and should not be considered by the Court. Plaintiffs are challenging agency regulations, and thus this Court’s review is limited to the administrative record. See, e.g., United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963). 18 See MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., No. 13-11379, 2013 WL 1340719, at *5 (E.D. Mich. Apr. 3, 2013); Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL 1190001, at *4-*5 (E.D. Mich. Mar. 22, 2013); Conestoga, 917 F. Supp. 2d at 409-10; Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943, 952-53 (S.D. Ind. 2012), rev’d on other grounds, No. 13-1077 (7th Cir. Nov. 8, 2013); Autocam, 2012 WL 6845677 at *5; Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735, 744-47 (S.D. Ill. 2012), rev’d on other grounds, No. 12-3841 (7th Cir. Nov. 8, 2013); Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1289-90 (W.D. Okla. 2012), rev’d on other grounds, 723 F.3d 1114; O’Brien, 894 F. Supp. 2d at 1160-62; see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 468-69 (N.Y. 2006) (rejecting similar challenge to state law); Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 81-87 (Cal. 2004) (same). But see Sharpe Holdings, Inc. v. HHS, 2012 WL 6738489, at *5 (E.D. Mo. Dec. 31, 2012); Geneva Coll. v. Sebelius, 929 F.Supp.2d 402 (W.D. Penn. 2013).
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healthcare costs.” O’Brien, 894 F. Supp. 2d at 1161; see also Notre Dame, slip op. at 29-30 (“It is [ ] abundantly clear that the wom en’s health requirements in the ACA are entirely neutral and not intended to target religion.”). The regulations reflect expert medical recommendations about the medical necessity of contracep tive services, without regard to any religious m otivations for or against such services . See, e.g., Conestoga, 917 F. Supp. 2d at 410 (“It is clear from the history of the regulations and the report publish ed by the In stitute of Medicine that the purpos e of the [regulations] is not to target religion, but instead to promote public health and gender equality.”).
The regulations, moreover, do not pursue their purpose “only agai nst conduct motivated by religious belief.” Lukumi, 508 U.S. at 545; see United States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (concluding law that “punishe[d] conduc t within its reach wit hout regard to whether the conduct was religiously m otivated” was generall y applicable). The regulations apply to all non-grandfathered health plans that do not qualif y for the religious employer exem ption or the accommodations for eligible organizations. Thus, “it is just not true . . . that the burdens of the [regulations] fall on religious orga nizations ‘but almost no others.’” Am. Family Ass’n v. FCC, 365 F.3d 1156, 1171 (D.C. Cir. 2004) (quoting Lukumi, 508 U.S. at 536).
The existence of express exceptions or accommodations for objectively defined categories of entities, like grandf athered plans, religious employers, and eligible organizations, “does not mean that the la w does not apply generally.” Notre Dame, slip op. at 30. “General applicability does no t mean abso lute universality.” Olsen v. Mukasey , 541 F.3d 827, 832 (8th Cir. 2008); accord Axson-Flynn v. Johnson, 356 F.3d 1277, 1298 (10th Cir. 2004); Am. Friends Serv. Comm. Corp. v. Thornburgh , 951 F.2d 957, 960-61 (9th Cir. 1991) (concluding e mployer verification statute was generally applicable even though it exem pted independent contractors, household employees, and em ployees hired prio r to Novem ber 1986 because exem ptions “exclude[d] entire, objectiv ely-defined categories of em ployees”); Intercommunity Ctr. for Justice & Peace v. INS, 910 F.2d 42, 44 (2d Cir. 1990) (same); Ungar v. N.Y.C. Hous. Auth., 363 F. App’x 53, 56 (2d Cir. 2010). “Instead, exemp tions undermining ‘general applicability’ are
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those tending to suggest disfavor of religion.” O’Brien, 894 F. Supp. 2d at 1162. The exception for grandfathered plans is available on equal terms to all employers, whether religious or secular. And the religious em ployer exemption and elig ible organization accommodations serve to accommodate religion, not to disfavor it. Id.; see also Conestoga, 917 F. Supp. 2d at 410. Thus, these categorical exceptions and accommodations do not trigger strict scrutiny.
Carving out an exem ption for defined reli gious entities also does not m ake a law nonneutral as to others. Indeed, the religious employer exemption “presents a strong argument in favor of ne utrality” by “dem onstrating that the object of the law was not to infringe upon or restrict practices because of their relig ious motivation.” O’Brien, 894 F. Supp. 2d at 1161 (quotations omitted); see Conestoga, 917 F. Supp. 2d at 410 (“The f act that exem ptions were made for religious em ployers . . . . shows that the gov ernment made efforts to a ccommodate religious beliefs, which counsels in favor of the regulations’ neutrality.”). The regulations are not unlawful merely because the religious em ployer exemption does not extend as far as Plaintiffs wish.
Plaintiffs’ reliance on Lukumi, 508 U.S. 520, is of no help, as this case is a far cry from Lukumi, where the legislature specifically targeted the religious exercise of members of a single church (Santeria) by enacting ordinances that used terms such as “sacrifice” and “ritual,” id. at 533-34, and prohibited f ew, if any, anim al killings other than Sa nteria sacrifices, id. at 535-36. Here, there is no indica tion that th e regulations are anything other th an an effort to increase women’s access to and utilization of recommended preventive services. See Notre Dame, slip op. at 27-28; Priests for Life, slip op. at 52-55; O’Brien, 894 F. Supp. 2d at 1161; Conestoga, 917 F. Supp. 2d at 410. Plaintiffs’ unsupported assertion th at the regulations are “part of a conscious political strategy to marginalize and delegitimize Plaintiffs’ religious views by holding them up for ridicule on the national stage,” Pls.’ Mem . at 34, is mere rhetorical bluster. And it cannot be disputed that defendants have made extensive efforts—through the religious employer exemption and the elig ible organization accommodations—to accommodate religion in way s that will n ot
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undermine the goal of ensuring that wom preventive services without cost sharing.19

en have access to coverage for recomm ended

Plaintiffs also posit that the regulations m ust have been designed to target plaintiffs’

religious practice of refusing to facilitate ac cess to co ntraception because, prior to th e

promulgation of the regulations, “85% of health plans already cover[ed] contraception.” Pls.’

Mem. at 35. As an initial matter, this 85 percent figure represents only large employers, not small

employers (only 62 percent of which covered cont raception prior to issuance of the regulations)

or plans on the individual m arket. IOM REP. at 109, AR at 407. More importantly, many of the

plans that covered con traceptive services imposed cost-sharing requirements that often resulted

in women forgoing preventive care. Id. at 19-20, 109. The regulations elim inate that cost-

sharing. Finally, even if plaintiffs could show that the regulations have a disproportionate effect

on them (and they have not), it would not destroy the regulations’ neutrality. See O’Brien, 894 F.

Supp. 2d at 1161 (rejecting identical argum ent). “[A] neutral and perf ectly constitutional law

may have a disproportionate im pact upon religiously inspired behavior . . . . The Free Exercise

Clause is not violated even though a group motivated by religious reasons may be more likely to

engage in the proscribed conduct.” Id. (citing cases). Indeed, by plaintiffs’ logic, the government

also was “target[ing],” Pls.’ Me m. at 34, those with religious obj ections to vaccinations, as a

similar or even greater percen tage of health plans covered vaccinations prior to promulgation of

the challenged regulations. See 75 Fed. Reg. 41,726, 41,732 (July 19, 2010), AR at 232.

Finally, plaintiffs maintain that th e challenged regulations are subject to strict scrutiny

under a “hy brid rights” theory b ecause they also infringe on plaintiffs’ freedom of speech and

association. The Suprem e Court, however, ha s never invoked this so -called “hybrid rights

theory” to justify applying strict scrutiny to a free exercise claim . See Lukumi, 508 U.S. at 567

19 Fraternal Order of Police v. C ity of Newark, 170 F.3d 359 (3d Cir. 199 9), an out-of-circuit case on which plaintiffs also rely (Pls.’ Mem. at 34), addressed a policy that created a secular exemption but refused all religious exemptions. The preventive services coverage regulations, in contrast, contain an exemption and accommodations that specifically seek to accommodate religion. Thus, unlike in Fraternal Order, there is simply no basis h ere to infer a discriminatory object behind the regulations. See Conestoga, 917 F. Supp. 2d at 409-10.

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(Souter, J., concurring in part and concurring in the judgm ent) (noting the hybrid rights exception would either s wallow the Smith rule or be entirely unnecessa ry). And several circuits have specifically rejected the theory. See Knight v. Conn. D ep’t of Pub. Health , 275 F.3d 156, 167 (2d Cir. 2001); Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993). Nevertheless, assuming arguendo that the hybrid rights th eory is valid, it a pplies only where the plaintiff’s non-free-exercise claims are “independently viable.” Mahoney v. Dist. of Columbia , 662 F. Supp. 2d 74, 95 n.12 (D.D.C. 2009). Here, plaint iffs assert that th e preventive services coverage provision violates both the right to free exercise of religion and their rights to free speech and free association. Yet, p laintiffs do not even raise a separate free association claim and, as explained b elow, their free speech claims are meritless. “‘[A] plaintiff does n ot allege a hybrid rights claim entitled to strict scrutiny analysis merely by combining a free exercise claim with an utterly m eritless claim of t he violation of anothe r alleged fundam ental right.’” Civil Liberties for Urban Believers, 342 F.3d at 765 (quoting Miller v. Reed, 176 F.3d 1202, 1207-08 (9th Cir. 19 99)); see also Henderson , 253 F.3d at 19 (“[ T]he combination of two untenable claims” does not “equal[] a tenable one.”). Thus, ev en if the hybrid rights theory were valid, it would not trigger strict scrutiny in this case. See Notre D ame, slip op. at 30-31 (rejecting an identical “hybrid rights” claim).
For these reasons, plaintiffs’ free exercise claim—Count II of the Complaint—fails.20 C. The Regulations Do Not Violate the Free Speech Clause Plaintiffs’ free speech claims fare no better. The right to freedom of speech “prohibits the government from telling people what they m ust say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006). But the preven tive services coverage regulations do not compel speech—by plaintiffs or any other person, employer, or entity—in violation of the First Amendment. Nor do they lim it what plain tiffs may say. Plaintiffs rem ain free under the regulations to express whatever views they may have on the use of contraceptive services (or any
20 Even if the regulations were not neutral or generally applicable, plaintiffs’ free exercise challenge still would fail because the regulations satisfy strict scrutiny. See supra.
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other health care services) as well as their views about the regulat ions. Plaintiffs, moreover, may encourage their employees not to use contraceptive services.
Plaintiffs contend that the regu lations violate their free spee ch rights in three ways, none of which has merit. First, plaintiffs are wrong to contend that the regulations require plaintiffs to “support ‘counseling’ in favor of” preventive services to w hich they object. P ls.’ Mem. at 37. The regulations sim ply require coverage of “education and counseling for all wom en with reproductive capacity.” HRSA Guid elines, AR at 283-84. There is no requirem ent that such education and counseling be “in favor of” any particular contraceptive service, or even in support of contraception in general. The con versations that m ay take place between a patient and her doctor cannot be known or screened in advance and may cover any number of options. To the extent that plaintiffs intend to argue that the covered education and coun seling is objectionable because some of the conversations between a doctor and one of plain tiffs’ employees might be supportive of contracepti on, accepting this theory would m ean that the First Am endment is violated by the m ere possibility of an e mployer’s disagreement with a potential subject of discussion between an employee an d her doctor, and would extend to all such interactions, not just those that are th e subject of the challeng ed regulations. The First Am endment does no t require such a drastic result. See, e.g., Priests for Life , slip op at 37-38; Notre Dame, slip op. at 34-36; Conestoga, 917 F.Supp.2d at 418-19.
Second, plaintiffs note that, in o rder to avail itself of an acco mmodation, an organization must self-certify th at it m eets the definition of “elig ible organization.” Pls.’ Mem . at 38. But, contrary to plaintiffs’ assertion, the self-certification does not in any sense “trigger” payments for contraceptive services, Pls.’ Mem . at 38, as th e government cannot require the T PA of a selfinsured church plan to provide payments for contraceptive services. Moreover, completion of the simple self-certification form is “plainly in cidental to the . . . regulation of conduct,” FAIR, 547 U.S. at 62, not speech . Indeed, ev ery court to review a Free Speech challenge to the prio r contraceptive-coverage regulations has rejected it, in part, because th e regulations deal with conduct. See Autocam, 2012 WL 6845677, *8; see also MK Chambers, 2013 WL 1340719 at *6
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(“Like the [law at issue in FAIR], the contraceptive requirement regulates conduct, not speech. ” (quotations omitted)); Briscoe v. Sebelius , 927 F. Supp. 2d 1109, 1120 (D. Colo. 2013) (“The plaintiffs cite no authority and I am not aw are of any authority holding that such conduct qualifies as speech so as to trigger First Amendment protection.”); Conestoga, 917 F. Supp. 2d at 418; O’Brien, 894 F. Supp. 2d at 1165-67; see also Catholic Charities of Sacramento, 85 P.3d at 89 (rejecting similar claim); Catholic Charities of the Diocese of Albany , 859 N.E.2d at 465 (same). The accommodations likew ise regulate conduct by relieving an eligible organization of the obligation “to con tract, arrange, pay, or refe r for con traceptive coverage” to which it ha s religious objections. 78 Fed. Reg. at 39,874, AR at 6. 21 Plaintiffs’ suggestion that self-certifying their eligibility for an accommodation, which is incidental to the regulation of conduct, violates their speech rights lacks merit. See FAIR, 547 U.S. at 61-63.
The regulations also do not requ ire plaintiffs to subsidize an y conduct that is “inherently expressive.” FAIR, 547 U.S. at 66; see also United Sta tes v. O’Brien, 391 U.S. 367, 376 (1968) (recognizing that some forms of “symbolic speec h” are protected by the First Amendment). As an initial matter, the regulations explicitly prohibit plaintiffs’ issuers and TPAs f rom imposing any cost sharing, prem ium, fee, or other charge on plaintiffs with respect to the separate payments for contraceptive services m ade by the issuers or TPAs. Plain tiffs, therefore, are no t funding or subsidizing a nything pertaining to contracep tive coverage. Moreover, even if plaintiffs played som e role in an issuer’s or TPA’s provision of paym ents for contraceptive services (and they do not), m aking payments for health care services is not the sort of conduct the Supreme Court has recognized as inherently expressive. See Notre Dame , slip op at 36 (“[B]ecause the regulations do not force [plaintiff] to say anything, nor do they prevent [plaintiff] from forthrightly expressing its views regarding the t opic of contraception, [plaintiff’s] free speech rights are not being infrin ged.”); Priests for Life, slip op 39 (“[T]here is nothing
21 Indeed, self-certifying eligibility for a religious accommodation is a far cry from the la ws at issue i n the cases plaintiffs cite, which mandated the posting of specific written messages throughout an organization’s building and advertisements, as well as s peaking oral messages to the organization’s clients. See Pls.’ Mem. at 37 (citing Evergreen Ass’n v. C ity of New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011) and Centro Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456 (D. Md. 2011)).
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inherently expressive about [plaintiff’s] insurer, wholly separate from [plaintiff], providing contraceptive coverage, just as there is nothing inherently expressive about a law school’s decision to allow recruiters on cam pus.”) (citing FAIR, 547 U.S. at 64); see also Conestoga, 917 F. Supp. 2d at 418; Autocam, 2012 WL 6845677, at *8; O’Brien, 894 F. Supp. 2d at 1166-67; Catholic Charities of Sacramento, 85 P.3d at 89; Diocese of Albany, 859 N.E.2d at 465; see also FAIR, 547 U.S. at 65-66 (m aking space for m ilitary recruiters on campus is not conduct th at indicates colleges’ support for, or sponsorship of, recruiters’ message).
Finally, plaintiffs’ claim that the regula tions impose a so-called “gag order” that interferes with their f ree-speech rights, see Compl. ¶ 175, is wholly without merit. Defendants have been clear that “[n]othing in these final regulations prohibits an eligible organization from expressing its oppos ition to the us e of contra ception.” 78 Fed. Reg. at 39,880 n.41, AR at 12. What the regulations prohibit is an em ployer’s improper attempt to interfere with its employees’ ability to obtain contraceptive coverage from a third party by, for exampl e, threatening the TPA with a termination of its relationship with the employer because of the TPA’s “arrangem ents to provide or arrange separate payments for contraceptive services for participants or beneficiaries.” See 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.715-2713A(b)(1)(iii). Addressing an analogous argument in the context of the Nati onal Labor Relations Act, the Suprem e Court concluded that an em ployer’s threatening statements to its employees regarding the effects of unionization fell outside the protec tion of the First Am endment because they interfered with employee rights. NLRB v. Gissel Packing Co. , 395 U.S. 575, 618 (1969). The Court explained that there was no First Am endment violation because the employer was “free to communicate . . . any of his general views . . . so long as the comm unications do not contai n a ‘threat of reprisal or force or prom ise of benefit.’” Id.; see also Ohralik v. Ohio State Bar Ass’n , 436 U.S. 447, 456 (1978) (“[I]t has never been deemed an abridgment of freedom of speech or press to make a course of condu ct illegal merely because the conduct was in part initiated, evidenced, or carried out by m eans of language, either spoken, written, or printed.” (q uotation omitted)). The same is true here. Becau se the regulations do no t prevent plaintiffs from expressing their views
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regarding the use of contracepti ve services, but, rather, prot ect employees’ right to obtain payments for contraceptive services through TPAs, there is no infringement of plaintiffs’ right to free speech. See Notre Dame , slip op. at 35-36 (rejecting iden tical challenge to the challenged regulations).22
Accordingly, the regulations do not violate the Free Speech Clause, and Counts III and IV of the Complaint should be dismissed or summary judgment granted to the government.
D. The Regulations Do Not Violate the Establishment Clause “The clearest command of the Esta blishment Clause is th at one re ligious denomination cannot be officially preferred over another.” Larson v. Valente , 456 U.S. 228, 244 (1982) (emphasis added). A law that discrim inates among religions by “aid[ing] one r eligion” or “prefer[ring] one religion over anothe r” is subject to strict scrutiny. Id. at 246; see also Notre Dame, slip op. at 31-34 (reje cting a sim ilar Establishment Clause claim ); Archbishop of Washington, slip op. at 75-80 (same). Thus, for example, the Supreme Court has struck down on Establishment Clause grounds a stat e statute that was “drafted w ith the explicit intention” of requiring “particular religious denominations” to com ply with registration and reporting requirements while excluding ot her religious denominations. Larson, 456 U.S. at 254; see also Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet , 512 U.S. 687, 703-07 (1994) (striking down statute that created special school district for religious enclave of Satmar Hasidim because it “single[d] out a partic ular religious sect for special treatment”). The Court, on the other hand, has upheld a statute th at provided an exem ption from military service for persons who had a conscientious objection to all wars, but not those who objected to only a particular w ar. Gillette v. United States, 401 U.S. 437 (1971). The Court explained that the statute did not discrim inate among religions becau se “no particula r sectarian affiliation” was required to q ualify for conscientious objector status. Id. at 450-51. “[C]onscientious object or status was available on an
22 Defendants acknowledge that the court in Archbishop of Washington concluded that the non-interference provision of t he accommodation violated the plaintiffs’ free speech rights. See slip op. at 71-74. For the reasons stated above, and by the district court in Notre Dame, slip op. at 35-36 , defendants respectfully submit that that aspect of the court’s ruling was error.
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equal basis to both the Q uaker and the Roman Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (upholding RLUIPA against Establishment Clause challenge because it did not “conf er[] . . . priv ileged status on any particular religious sect” o r “single[] out [any] bona fide faith for disadvantageous treatment”).
Like the statutes at is sue in Gillette and Cutter, the preventive s ervices coverage regulations do not grant any de nominational preference or ot herwise discriminate among religions. It is of no mom ent that the religious employer exemption and accommodations for eligible organizations apply to some e mployers but not others. The regulations do not “violate the Establishment Clause because [they] delin eate[] the contours of a religious acco mmodation that applies equally to o rganizations of every faith and [do] not favor any denom ination over another.” Priests for Life, slip op. at 42-43; accord Notre Dame, slip op. at 31-34; Archbishop of Washington, slip op. at 78-80); O’Brien, 894 F. Supp. 2d at 1163; see also, e.g. , Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle , 212 F.3d 1084, 1090-93 (8th Cir. 2000); Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995); Diocese of Albany, 859 N.E.2d at 468-69. Here, the distinctions established by the regulations are not so drawn.
“Plaintiffs’ [ ] argument—that the Establishm ent Clause prohibits distinctions am ong different types of organizations affiliated with the same faith—finds no support in Establishment Clause case law.” Archbishop of Washington, slip op at 78. The exem ption and accommodations are available on an equal basis to organizations affiliated with any and all religions. The regulations, therefore, do not di scriminate among religions in vi olation of the Establishm ent Clause. Indeed, every court to have considered an Establishment Clause challenge to the prior version of the regulations has rejected it. See, e.g., O’Brien, 894 F. Supp. 2d at 1162 (upholding prior version of religious employer exemption because it did “not differentiate between religions, but applie[d] equally to all denom inations”); Conestoga, 917 F. Supp. 2d at 416-17 (sam e); see also Liberty Univ., Inc. v. Lew, 733 F.3d 72, 100-03 (4th Cir. 2013) (upholding another religious
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exemption contained in the ACA against an Establishment Clause challenge), cert. denied, No. 13-306 (Dec. 2, 2013).23
“As the Suprem e Court has frequently articu lated, there is space betw een the religion
clauses, in which there is ‘room for play in the joints;’ governm ent may encourage the free
exercise of religion by granti ng religious acco mmodations, even if not required by the Free
Exercise Clause, without running afoul of the Establishm ent Clause.” O’Brien, 894 F. Supp. 2d
at 1163 (citations om itted). Accommodations of religion are poss ible because the type of
legislative line-drawing to which th e plaintiffs object in this case is cons titutionally permissible.
Id.; Conestoga, 917 F. Supp. 2d at 417; see, e.g., Walz v. Tax Comm’n of NY , 397 U.S. 664, 666 (1970); Amos, 483 U.S. at 334 (upholding Title VII’s exemption for religious organizations).24
Plaintiffs also claim that th e regulations’ definition of re ligious employer violates the
Establishment Clause b ecause, more than th irty-five years ago, the In ternal Revenue Service
(IRS) developed a non-exhaustive list of four teen facts and circum stances that m ay be
considered, in addition to “any other fact s and circumstances which m ay bear upon the
organization’s claim for church status,” in assessing whether an org anization is a church. See
23 Plaintiffs stretch Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), well beyond its facts in suggesting that the case stands for the proposition that the Establishment Clause prohibits the government from distinguishing among different types of organizations that adhere to the same religion. Pls.’ Mem. at 38-39. Weaver was limited to “laws that facially regulate religious issues,” 534 F.3d at 1257, and, particularly, those that do so in a way that denies certain religious institutions public benefits that are afforded to all other institutions, secular or religious. The court in Weaver said nothing about the constitutionality of exemptions from generally applicable laws that are designed to accommodate religion, as opposed to discriminate against religion. A requirement that any religious exemption that the government creates must extend to all organizations—no matter their structure or purpose—would hamper the government’s ability to accommodate religion. See Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334 (1987) (“There is ample room under the Establishment Clause for ‘benevolent’ neutrality which will permit religious exercise to exist without sponsorship and without interference.”); Diocese of Albany, 859 N.E.2d at 464 (“To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions – and thus to restrict, rather than promote, freedom of religion.”). And, the manner in which the law at issue in Weaver was administered required the government to make intrusive inquiries into a school’s religious beliefs and practices by, for example, reading syllabi to determine if a school’s theology courses were likely to convince students of religious truths. See 534 F.3d at 1261-62. The religious employer exemption requires no such inquiry: Qualification for the exemption does not require the government to make any determination, much less an unconstitutionally intrusive one. See also Archbishop of Washington, slip op. at 77 (explaining that Weaver does not support the plaintiffs’ claims). 24 Even if the regulations discriminate among religions (and they do not), they are valid under the Establishment Clause, because they satisfy strict scrutiny. See supra; Larson, 456 U.S. at 251-52.
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Found. of Human Understanding v. Comm’r of IRS , 88 T.C. 1341, 1357-58 (1987); Internal Revenue Manual (IRM) 7.26.2.2.4. Although plaintiffs do not appear to have ever before challenged the constitutionality of this non-exhaustive list, they now contend that it acts to require the governm ent to m ake impermissible “judgments regarding beliefs, practices, and organizational structure.” Pls.’ Mem. at 40-41. This claim fails for numerous reasons.
As an initial matter, the claim is not ripe an d therefore should be dismissed for lack of jurisdiction. See Archbishop of Washington, slip op. at 84-85 (finding that plaintiffs lack standing to argue that the IRS’s fourteen-factor test violates the Establishm ent Clause). The nonexhaustive list that plaintiffs seek to challenge is not set out in any statute, regulation, or other binding source of law. It is instead contained in the IRM, wh ich serves as a s ource of guidance for the internal administration of the IRS and is not binding on the IRS or courts. United States v. Will, 671 F.2d 963, 967 (6th Cir. 1982); Capital Fed. Sav. & Loan Ass’n v. Comm’r of Internal Revenue, 96 T.C. 204, 216-17 (1991). A party can cha llenge such guidance “only if and when the directive has been a pplied specifically to them.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987); see also, e.g., Home Builders Ass’n of Greater Chicago v. U.S. Army Corps of Eng’rs, 335 F.3d 607, 619 (7th Cir. 2003) (concludi ng general statem ent of policy was not ripe for review). Plaintiffs do not challenge a ny determination by the IRS that was based on this IRM provision. Because defendants ha ve not applied a similar non-exhaustive list of facts and circumstances to plaintiffs, plaintiffs’ challenge is not ripe.
Indeed, qualification for the religious employer exemption do es not require the government to m ake any determ ination, whether as a result of the application of the nonexhaustive list or otherwise. If an organization “is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Inte rnal Revenue Code of 1986, as amended,” it qualifies for the exem ption, without any governm ent action whatsoever. 45 C.F.R. § 147.131(a). Plaintiffs, moreover, have no difficulty determining whether they qualify for the exemption. The Diocese alleges that it qualifies for the exem ption, Compl. ¶ 14, and Catholic Charities allege that it do es not, id. ¶ 10. Any claim —which plaintiffs do not in fact
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make—that the govern ment will dispute thes e allegations and therefore need to undertak e any sort of intrusive inquiry into whether plaintiffs qualify for the exemption is entirely speculative and thus unripe for this reason as well.
Finally, even assuming plaintiffs could m ount a facial challenge to a non-exhaustive list of facts and circumstances that the defendant agencies have never applied to plaintiffs, any such challenge would be m eritless. Any intera ction between the g overnment and religio us organizations that m ay be necess ary to enforc e the religious em ployer exemption is not so “comprehensive,” Lemon v. Kurtzman , 403 U.S. 602, 619 (1971), or “pervasive,” Agostini v. Felton, 521 U.S. 203, 233 (1997) (quotations o mitted), as to result in excessive entanglem ent. The Supreme Court has upheld law s that require government monitoring that is m ore onerous than any monitoring that m ay be required to enforce the religious em ployer exemption. See Bowen v. Kendrick , 487 U.S. 589, 615-617 (1988) (no ex cessive entanglement where the government reviewed and m onitored programs and materials); Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 764–765 (1976) (no excessive en tanglement where the state conducted annual audits); see also United States v. Corum, 362 F.3d 489, 496 (8th Cir. 2004). And every court to address the issue upheld the prior version of the relig ious employer exemption, which contained the sam e requirement that the o rganization be one that is r eferred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue C ode of 1986, as am ended, against an entanglement challenge. See Conestoga, 917 F. Supp. 2d at 417; O’Brien, 894 F. Supp. 2d at 1164-65; Geneva Coll., 929 F. Supp. 2d at 439-40.25
Thus, plaintiffs’ Establishment Clause claim—Count V of the Complaint—fails.
25 Even if this Court were to conclude that it had jurisdiction to adjudicate a facial c hallenge to the non-exhaustive list of facts and circ umstances set fort h in IRM 7.26.2.2 .4 and that such nonbinding guidance violates the Establishment Clause, the remedy would be invalidation of the list, not invalidation of the contraceptive coverage requirement or the religious employer exemption. The regulations would survive, with the religious employer exemption being available to any organization that is organized and operates as a n onprofit entity and is a church, integrated auxiliary of a church, convention or association of churches, or the exclusively religious activities of any religious order, as those terms are specifically defined under section 6033 or commonly understood.
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E. The Regulations Do Not Interfere With Church Governance Plaintiffs also assert th at, by allegedly requiring plaintiffs to facilitate practices in violation of their religious beli efs, the regulations in terfere with p laintiffs’ “internal church governance” in violation of the Religion Clauses. See Pls.’ Mem . at 42. But that is m erely a restatement of plaintiffs’ substantial burden theory,26 which fails for reasons explained already. Indeed, the m ain case cited by plaintiffs on this point, Hosanna-Tabor Evangelical Lutheran Church & School v. E .E.O.C., 132 S. Ct. 694 (2012), is inapposite. In Hosanna-Tabor, the Supreme Court held that allowing a m inister employee to sue her church em ployer under the Americans with Disabilities Act—thereby inter fering with “a church’s ability to se lect its own ministers”—violates the Free Exerci se and Establishment Clauses. Id. at 704, 706. But this case is not about the selection of clergy, nor any other matters of church governance apart from plaintiffs’ religious objection to providing contraceptive coverage (which, again, is subsumed by plaintiffs’ substantial burden argum ent). Nor is this case about any law that regulates the structure of the church—plaintiffs m ay choose whatever organizational structure they wish. Thus, Count VI should be dism issed or su mmary judgment granted to defendants. See Archbishop of Washington, slip op. at 86-88 (entering summa ry judgment in favor of defendants on plaintiffs’ claim that the regulations interfere with church governance). F. Plaintiffs’ APA Claim Fails In Count VII (the only count not raised in their tem porary restraining order m otion), plaintiffs contend the regulations violate th e APA because they conflict with the W eldon Amendment to the Consolidated Appropriations Act of 2012. They are incorrect. Plaintiffs appear to reason that, b ecause the preventive services coverage regulations require group health plans to cover em ergency contraception, such as Plan B, they require plaintiffs to provide coverage for abortions in viol ation of federal law. The W eldon Amendment denies funds m ade available in the Consolidated Appropriations Act of 2012 to any federal, state, or local agency,
26 While the Zubik ruling was incorrect for reasons explained already, supra note 7, that court analyzed arguments about interference with the church under RFRA’s “substantial burden” test. See 2013 WL 6118696 at *27.
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program, or governm ent that “sub jects any in stitutional 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.” Pub. L. N o. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011). The regulations, however, do not require that any health plan cover abortion at all, m uch less as a preventive service. The government has made clear that the preventive services covered by the regulations do not in clude abortifacient drugs.27 Although plaintiffs are certainly entitled to believe that em ergency contraceptives and certain IUDs are abortifacien t drugs or cause abortions, neither the government nor this Court is required to accept that characterization, which is inconsistent with th e FDA’s scientif ic assessment and with f ederal law. W hile plaintiffs’ religious beliefs m ay define abortion m ore broadly than federal law, statutory interpretation requires that terms be construed as a m atter of law and not in accordan ce with any individual’s personal views or beliefs. E.g., GEICO v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).
In recommending what contraceptive services should be covered by health plans w ithout cost-sharing, the IOM Report iden tified the contraceptives that have been approved by the FDA as safe and effective. See IOM R EP. at 10, AR at 308. And the list of FDA-approved contraceptives includes emergency contraceptives such as Plan B. See id. at 105, AR at 403. The basis for the inclusion of such drugs among safe and effective means of contraception dates back to 1997, when the FDA first explained why Plan B a nd similar drugs act as contraceptives rather than abortifacients. See Prescription Drug Products; Certain Combined Oral Contraceptives fo r Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997); 45 C.F.R. § 46.202(f). In light of this conclus ion by the F DA, HHS informed Title X grantees, which are required to offer a range of acceptable and e ffective family planning methods—and, except under limited circumstances, may not offer abortion—that they “should consider the availability of emergency contraception the same as any othe r method which has been established as safe
27 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited Dec. 11, 2013); see also IOM REP. at 22 (recognizing that abortion services are outside the scope of recommendations), AR at 320.
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and effective.” Office of Populati

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

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

§§ 300, 300a-6. The regulations are consis tent with over a decade of re gulatory policy and

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

Signalmen v. Surface Transp. Bd. , 638 F.3d 807, 815 (D.C. Cir. deference to an agency’s longstanding interpretation).28

2011) (giving particular

Thus, because the challenged regulations are not contrary to law, Count VII of the

Complaint should be dismissed or summary judgment granted to defendants.

III. PLAINTIFFS CANNOT ESTABLI SH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC
“The loss of First Am endment freedoms, for even m inimal periods of tim e,

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Even

assuming arguendo that sam e rule applies to a st atutory claim under RFRA, plaintiffs have not

shown that the challenged regula tions violate their First Amendm ent or RFRA rights, so there

has been no “loss of First Am endment freedoms” for any period of tim e. Id. In this respect, the

merits and irreparable injury prongs of the temporary restraining order analysis merge together,

and plaintiffs cannot show irreparable injury without also showing a likelihood of success on the

merits, which they cannot do. See McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012).

Furthermore, plaintiffs’ claim to irrepara ble harm is further underm ined by their own

delay in filing suit. Although the challenged regul ations were published in the Federal Register

in early July, 78 Fed. Reg. 39,870, th ese plaintiffs waited over five months—until December 10,

2013—to file suit and to seek the extraordinary re medy of a temporary restraining order. Such a

substantial and unexplained delay seriously undermines these plai ntiffs’ claim of irrepa rable

harm. See, e.g., Autocam, 2012 WL 6845677, at *9 (noting, in a challenge to the prior

28 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of contraceptive services has never been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as the morning-after pill. . . . [U]nder the current FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”).
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contraceptive-coverage regulations, that “the im mediacy of the dilemm a Plaintiffs face is in no small part of their own m aking,” because plaintiffs filed suit “less than two m onths before the deadline Plaintiffs say is critical”); Fund for Animals v. Frizzell , 530 F.2d 982, 987 (D.C. Cir. 1975) (denying preliminary injunctive relief and noting that a delay of forty- four days after final regulations were issued was “inexcusable”).
Turning to the final two temporary restraining order factors—the balance of equities and the public interest—“there is i nherent harm to an agency in preventing it from enforcing regulations that Congress found it in the public interest to direct that agency to develop and enforce.” Cornish v. Dudas, 540 F. Supp. 2d 61, 65 (D.D.C. 2008); see also Connection Distrib. Co. v. Reno, 154 F.3d 281, 296 (6th Cir. 1998) (indicating that granting an injunction against the enforcement of a likely constitutional statute would harm the governm ent). Enjoining the preventive services coverage regulations as to plaintiffs would unde rmine the governm ent’s ability to achieve Congress’s goals of i mproving the health of women and newborn children and equalizing the coverage of preventive services for women and men.29
It would also be con trary to the pub lic interest to deny plaintiffs ’ employees (and their families) the benefits of the preventive se rvices 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 e mploying the extraord inary remedy of injunction.”). Many of the plaintiffs’ employees may not sh are plaintiffs’ objections to th e challenged regulations. Those employees should not be deprived of the benefits of payments provided by a third party that is not their employer for the full ra nge of FDA-approved contraceptive services, as prescribed by a health care provider, on the basis of their employers’ religious objection. Many wom en do not
29 Plaintiffs note that defendants consented to preliminary injunctions in a few cases involving for-profit companies, see Pls.’ Mem. at 45-46, but defendants’ consent in those cases was nothing more than an effort to conserve judicial and governmental resources. Those cases were i n the Seventh, Eighth, and D.C. Circuits, and they were filed after motions panels in those circuits had preliminary enjoined the regulations pending appeal in similar cases. See Mersino, 2013 WL 3546702 at *16 (“[W]here the government has conceded to injunctive relief, it appears that it has generally done so in jurisdictions where the legal landscape has been set against them, and continuing to litigate the claims in those jurisdictions would be a waste of both judicial and client resources.”). The government continues to oppose preliminary injunctions in other circuits regarding for-profit plaintiffs, and opposes in all circuits injunctive relief sought by non-profit plaintiffs like plaintiffs here.
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use contraceptive s ervices because they are no t covered by their health plan or requ ire costly copayments, coinsurance, or deductibles. IOM R EP. 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 wom en are put at a com petitive disadvantage due to their lost pr oductivity 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 pl aintiffs, the preventive services coverage regulations—the purpose of wh ich is to elim inate these burdens, 75 Fed. Reg. at 41,733, AR a t 233; see also 77 Fed. Reg. at 8728, AR at 215—would thus in flict a very real harm on the public and, in particular, a readily id entifiable group of individuals. See Stormans, Inc. v. Selecky , 586 F.3d 1109, 1139 (9th Cir. 2009) (v acating preliminary injunction en tered by district court and noting that “[t]here is a general public interest in ensuring that all citizen s have timely access to lawfully prescribed medications”). Accordingly, even assuming plaintiffs were likely to succeed on the m erits (which they are not for the reas ons explained above), any potential harm to plaintiffs resulting from their of fense at a third party providing p ayment for contraceptive services at no cost to, and w ith no adm inistration by, plainti ffs’ would be outweighed by the significant harm an injunction would cause these employees and their families.
CONCLUSION For the foregoing reasons, defenda nts respectfully ask that the Court deny plaintiffs’ motion for a tem porary restraining order and prelim inary injunction, and gran t defendants’ motion to dismiss or, in the alternative, for summary judgment on all of plaintiffs’ claims. Respectfully submitted this 23rd day of December, 2013,

KATHLEEN

STUART F. DELERY Assistant Attorney General
R. HARTNETT

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Deputy JOHN
SHEILA Deputy
BRADLEY United Civil 20

Assistant Attorney General
MALCOLM BALES United States Attorney
JENNIFER RICKETTS Director, Federal Programs Branch
M. LIEBER Director, Federal Programs Branch
/s/ Bradley P. Humphreys P. HUMPHREYS (VA Bar No. 83212)
Trial Attorney States Department of Justice
Division, Federal Programs Branch Massachusetts Avenue N.W., Room 7108 Washington, D.C. 20530 Telephone: (202) 514-3367 Facsimile: (202) 616-8470 Email: Bradley.P.Humphreys@usdoj.gov
Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on December 23, 2013, I caused a true and correct copy of the foregoing to be served on plaintiffs’ counsel by means of the Court’s ECF system.
/s/ Bradley P. Humphreys BRADLEY P. HUMPHREYS

Case 1:13-cv-00709-RC Document 11-2 Filed 12/23/13 Page 1 of 10 PageID #: 263

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

ROMAN CATHOLIC DIOCESE OF BEAUMONT; CATHOLIC CHARITIES OF

) ) )

SOUTHEAST TEXAS, INC.,

)

Plaintiffs,

) )

v.

) Case No. 1:13-cv-00709-RC )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States Department of Health and Human Services, et

) ) )

al.,

)

)

)

Defendants.

)

DEFENDANTS’ STATEMENT OF MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Defendants hereby subm it the following statem ent of m aterial facts as to which defendants contend there is no genuine issue in connection with their m otion for summ ary judgment under Rule 56(b) of the Federal Rules of Civil Procedure:
1. Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111148, 124 Stat. 119 (2010), due largely to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”), AR at 317-18, 407.
2. Section 1001 of the ACA requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health cove rage to provide coverage for certain preventive services without cost-sh aring, including, “[for] wom en, such additio nal preventive care and screenings . . . as provided for in com prehensive guidelines supported by the Health Resources and Services Administration [(HRSA)].” 42 U.S.C. § 300gg-13(a)(4).
3. Because there were no existing HRSA gui delines relating to preventive care and screening for women, the Department of Health and Hum an Services (HHS) tasked the Institute

Case 1:13-cv-00709-RC Document 11-2 Filed 12/23/13 Page 2 of 10 PageID #: 264

of Medicine (IOM) with develo ping recommendations to implement the requirement to provide

coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300. 4. After conducting an extensive science- based review, IOM recomm ended that

HRSA guidelines include, among other things, “t he full range of [FDA ]-approved contraceptive

methods, sterilization procedur es, and patient education and counseling for wom reproductive capacity.” Id. at 10-12, AR at 308-10.

en with

5. FDA-approved contraceptive m ethods include diaphragms, oral contraceptive

pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105, AR at 403.

6. Coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies (and the negative health outcomes

that disproportionately accompany unintended pregnancies) and promote healthy birth spacing.

See id. at 102-03, AR at 400-01. 7. On August 1, 2011, HRSA a

dopted guidelines consistent with IOM’s

recommendations, encompassing all FDA-appr oved “contraceptive m ethods, sterilization

procedures, and patient education and counseling,” as prescribed by a health care provider, subject to an exemption relating to certain r eligious employers authorized by regulations issued

that same day (the “2011 a mended interim final regulations”). See HRSA, Women’s Preventive

Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84.

8. To qualify for the religious em ployer exemption contained in the 2011 am ended

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 nonprofit orga nization 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.

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76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.

9. Group health plans established or m aintained by religious em ployers, and

associated coverage, are exempt from any requirement to cover contraceptive services consistent

with HRSA’s guidelines. See HRSA, Women’s Preventive Services: Required Health P lan

Coverage Guidelines (“HRSA Guidelines”), AR at 283-84; 45 C.F.R. § 147.131(a).

10. In February 2012, the governm ent adopted in final regulations the definition of

“religious employer” contained in the 2011 amended interim final regulations while also creating

a temporary enforcement safe harbor for non- grandfathered group hea lth plans sponsored by

certain non-profit organizations with religious objections to contraceptive coverage (and any

associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012),

AR at 213-14.

11. The government committed to undertake a new rulemaking during the safe harbor

period to adopt new regulations to further accommodate non-grandfathered non-profit religious

organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215.

12. The regulations challenged here (the “2013 final rules”) represent the culmination

of that process. See 78 Fed. Reg. 39,870, AR a t 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21,

2012) (Advance Notice of Proposed Rulem aking (ANPRM)), AR at 186-93; 78 Fed. Reg. 8456

(Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.

13. Under the 2013 final rules, a “religious employer” is “an organization that is

organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or

(a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended,” which refers to churches, their

integrated auxiliaries, and conventions or associations of church es, and the exclusively religious

activities of any religious order. 45 C.F.R. § 147.131(a).

14. The 2013 final ru les establish accommodations with respect to the contraceptive

coverage requirement for group health plans

established or maintained by “eligible

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

at 39,875-80, AR at 7-12; 45 C.F.R. § 147.131(b).

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15. An “eligible organization” is an organization that satisfies the following criteria:
(1) The organization opposes providing coverage for som e 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 for m and m anner specified by the
Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and m akes such self-c ertification available fo r examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. 16. Under the 2013 final rules, an eligible organization is not required “to contract, arrange, pay, or refer fo r contraceptive coverage” to which it has reli gious objections. 78 Fed. Reg. at 39,874, AR at 6. 17. To be relieved of any such obligations , the 2013 final rules require only that an eligible organization complete a self-certification form stating that it is an elig ible organization and provide a copy of that self- certification to its issuer or third party administrator (TPA). Id. at 39,878-79, AR at 10-11. 18. Its participants and beneficiaries, however, will s till benefit from separate payments for contraceptive servi ces made by the issuer or TPA, without cost sharing or other charge. Id. at 39,874, AR at 6. 19. In the case of an orga nization with a self-insured group health plan—such as plaintiffs here—the organization’s TPA, upon receipt of the self-certification, must, among other things, provide or arrange separate paym ents for contraceptive serv ices for participants and beneficiaries in the plan without cost-sharing, prem ium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12. 20. Any costs incurred by the TPA will be re imbursed through an adjustm ent to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
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21. The government “propos[ed] to m ake the accommodation or the religious employer exemption available on an e mployer-by-employer basis” in the NPRM. 78 Fed. Reg. 8456, 8467 (Feb. 6, 2013), AR at 176.
22. The 2013 fi nal rules generally apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except the amendments to the relig ious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3.
23. The regulations specifically prohib it TPAs from charging any prem ium or otherwise passing on any costs to eligible organizat ions with respect to the TPAs’ paym ents for contraceptive services. See 78 Fed. Reg. at 39,880, AR at 12.
24. The primary predicted benefit of the prev entive services covera ge regulations is that “individuals will experience improved health as a result of reduced transm ission, prevention or delayed onset, and ear lier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19.
25. “By expanding coverage and elim inating cost sharing for recommende d preventive services, [the regulati ons are] expected to increase ac cess to and utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that co st sharing can be a si gnificant barrier to access to contraception.” (citation omitted)), AR at 5.
26. Although a majority of employers cover FDA-approved contraceptives, see IOM Rep. at 109, AR at 407, many women forgo preventive services because of cost-sharing imposed by their health plans, see id. at 19-20, 109, AR at 317-18, 407.
27. Unintended pregnancies have proven in many cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4.
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28. Unintended pregnancy may delay “entry in to prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02.
29. Contraceptive coverage further helps to avoid “the increased risk o f adverse pregnancy outcomes for pregnancies that are too closely spaced.” Id. at 103, AR at 401; see also 78 Fed. Reg. at 39,872, AR at 4.
30. “Contraceptives also have m edical benefits for wom en who are contraindicated for pregnancy, and there are demonstrative preven tive health benefits from contraceptives relating to conditions other than pregnancy (f or example, prevention of certain cancers, menstrual disorders, and acne).” 78 Fed. Reg. at 39,872, AR at 4; see also IOM Rep. at 103-04, AR at 401-02.
31. “[W]omen have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (da ily ed. Dec. 2, 2009) (s tatement of Sen. Feinstein); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 19, AR at 317.
32. These costs result in wom en often forgoing preventive care and place women in the workforce at a d isadvantage compared to their m ale coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009) (statem ent of Sen. Murray); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 20, AR at 318.
33. The grandfathering of certain health plans with respect to certain provisions of the ACA is not specif ically limited to the preven tive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140.
34. The effect of grandfathering is not r eally a perm anent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preventive services coverage provision. See 78 Fed. Reg. at 39,887 n.49, AR at 19.
35. A majority of group health plans will have lost their grandfather status by the end of 2013. See 75 Fed. Reg. 34,538, 34,552 (June 17, 2010); see also Kaiser Family Foundation
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and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190, AR at 663-64, 846.
36. 26 U.S.C. § 4980H(c)(2) does not exem pt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 78 Fed. Reg. at 39,887 n.49, AR at 19.
37. Instead, it excludes em ployers with fe wer than fifty full-tim e equivalent employees from the employer responsibility provision, meaning that, starting in 2015, such employers are not subject to the possibility of a ssessable payments if they do not provide health coverage to their full-time employees and their dependents. See 26 U.S.C. § 4980H(c)(2).
38. Small businesses that do offer non-gra ndfathered health coverage to their employees are required to provide coverage for recommended preventive services, including contraceptive services, without cost-sharing. 78 Fed. Reg. at 39,887 n.49, AR at 19.
39. The only exem ption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a).
40. Houses of worship and their integ rated auxiliaries that ob ject to con traceptive coverage on religious grounds ar e more likely than other em ployers to em ploy people of the same faith who share the sam e objection, and w ho would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, AR at 6.
41. Congress did not adopt a single (govern ment) payer system financed through taxes and instead opted to build on the exis ting system of employment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010).
42. Defendants are constrained by statute from adopting the alternative administrative schemes proposed by plaintiffs. See 78 Fed. Reg. at 39,888, AR at 20.
43. Plaintiffs’ proposed alternatives are not feasible because they would im pose considerable new costs and other burdens on the governm ent and would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20.
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44. 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.
45. Plaintiffs’ alternatives would require establishing entirely new governm ent programs and infrastructures or fundam entally altering an existing one, and would require women to take burdensom e steps to find out a bout the availability of and sign up for a new benefit, thereby ensuring that fewe r women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20.
46. “Nothing in the[] final regulations pr ohibits an eligible organization from expressing its opposition to the use of contraception.” 78 Fed. Reg. at 39,880 n.41, AR at 12.
47. The regulations only prohibit an em ployer’s improper attempt to interfere with its employees’ ability to obtain co ntraceptive coverage from a third party by, for exam ple, threatening the TPA with a term ination of its relationship with the e mployer because of the TPA’s “arrangements to provide or arrange separa te payments for con traceptive services for participants or beneficiaries.” See 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2590.7152713A(b)(1)(iii).
48. The Women’s Health Am endment, which contained the requirem ent to provide coverage for recommended preventive services for women without cost-sharing, was intended to fill significant gaps re lating to wom en’s health tha t existed in the other prev entive care guidelines identified in the Affordable Care Act. See 155 Cong. Rec. S12021-02, S12025 (daily ed. Dec. 1, 2009) (statement of Sen. Boxer); 155 Cong. Rec. S12265-02, S12271 (daily ed. Dec. 3, 2009) (statement of Sen. Franken).
49. The Weldon Amendment denies funds m ade available in the Consolidated Appropriations Act of 2012 to any fe deral, state, or local agenc y, program, or government that “subjects any institutional or individual health care entity to discrimination on the ba sis that the health care entity does not provide , pay for, provide coverage of, or ref er for abortions.” Pub. L. No. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011).
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50. “Abortifacient drugs are not included” in the preventive services covered by the

regulations. HealthCare.gov, Affor dable Care Act Rules on Expanding Access to Preventiv e

Services

for W

omen

(August 1, 2011),

available

at

http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last

visited Sept. 23, 2013); see also IOM REP. at 22 (recognizing that abor tion services are outside the scope of recommendations), AR at 320.

51. The list of FDA-approved contraceptives includes emergency contraceptives such

as Plan B. See IOM REP. at 105, AR at 403. 52. The basis f or the inclusion of such drugs among safe and effective m eans of

contraception dates back to 1997, when the FDA first explained why Plan B and sim ilar drugs act as con traceptives rather than abortifacients. See Prescription Drug Products; Certain

Combined Oral Contraceptiv es for Use as Po stcoital Emergency Contraception, 62 Fed. Reg.

8610, 8611 (Feb. 25, 1997); 45 C.F.R. § 46.202(f). 53. In light of this conclusion by the FDA, HHS informed Title X grantees, which are

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

under limited circumstances, may not offer abortion—that they “should consider the availability of emergency contraception the same as any othe r method which has been established as safe

and effective.” Office of Populati

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

http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited Sept. 23, 2013); see also 42 U.S.C.

§§ 300, 300a-6.

54. Representative Weldon, the sponsor of the Weldon Amendment, did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148

Cong. Rec. H6566, H6580 (daily ed . Sept. 25, 2 002) (“The provision of contraceptive services

has never been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as the morning-after pill. . . . [ U]nder the current FDA policy[,] that

is considered contraception, and it is not affected at all by this statute.”).

Respectfully submitted this 23rd day of December, 2013,

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Case 1:13-cv-00709-RC Document 11-2 Filed 12/23/13 Page 10 of 10 PageID #: 272

KATHLEEN Deputy JOHN
SHEILA Deputy
BRADLEY United Civil 20

STUART F. DELERY Assistant Attorney General
R. HARTNETT Assistant Attorney General
MALCOLM BALES United States Attorney
JENNIFER RICKETTS Director, Federal Programs Branch
M. LIEBER Director, Federal Programs Branch
/s/ Bradley P. Humphreys P. HUMPHREYS (VA Bar No. 83212)
Trial Attorney States Department of Justice
Division, Federal Programs Branch Massachusetts Avenue N.W., Room 7108 Washington, D.C. 20530 Telephone: (202) 514-3367 Facsimile: (202) 616-8470 Email: Bradley.P.Humphreys@usdoj.gov
Attorneys for Defendants

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Case 1:13-cv-00709-RC Document 11-3 Filed 12/23/13 Page 1 of 1 PageID #: 273

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

ROMAN CATHOLIC DIOCESE OF BEAUMONT; CATHOLIC CHARITIES OF

) ) )

SOUTHEAST TEXAS, INC.,

)

Plaintiffs,

) )

v.

) Case No. 1:13-cv-00709-RC )

)

KATHLEEN SEBELIUS, in her official

)

capacity as Secretary, United States Department of Health and Human Services, et

) ) )

al.,

)

)

)

Defendants.

)

[PROPOSED] ORDER Upon consideration of defendants’ motion to dismiss or, in the alternative, for summ ary judgment, plaintiffs’ response, and any reply thereto, IT IS ORDERED that defendants’ motion is GRANTED.

Dated:

______________________________ Hon. Ron Clark United States District Judge

 
 Case 1:13-cv-00709-RC Document 22 Filed 12/29/13 Page 1 of 27 PageID #: 884

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

CATHOLIC DIOCESE OF BEAUMONT; )

CATHOLIC

CHARITIES

OF )

SOUTHEAST TEXAS, INC.,

)

)

Plaintiffs,

)

v.

)

)

KATHLEEN SEBELIUS, in her official )

capacity as Secretary of the U.S. )

Department of Health and Human )

Services; THOMAS PEREZ, in his official )

capacity as Secretary of the U.S. )

Department of Labor, JACOB J. LEW, in )

his official capacity as Secretary of the )

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

DEPARTMENT OF HEALTH AND )

HUMAN

SERVICES;

U.S. )

DEPARTMENT OF LABOR; and U.S. )

DEPARTMENT OF TREASURY,

)

)

Defendants.

Civil Action No. 1:13-cv-00709-RC DEMAND FOR JURY TRIAL

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ STATEMENT OF MATERIAL FACTS Plaintiffs Diocese of Beaumont and Catholic Charities of Southeast Texas, Inc.

(collectively, “Plaintiffs”), submit that the following objections and responses to Defendants’

Statement of Material Facts.

1. Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111148, 124 Stat. 119 (2010), due largely to cost, Americans used preventive services at about half the recommended rate. See INST. OF MED., CLINICAL PREVENTATIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”), AR at 317-18, 407.

RESPONSE: Disputed and unsupported. To the extent Defendants refer to preventive

services generally, this statement is immaterial, as Plaintiffs challenge only the aspects of the

preventive service requirements regarding “FDA-approved contraceptive methods and

contraceptive counseling”—a term that includes abortion-inducing products, contraception,

Case 1:13-cv-00709-RC Document 22 Filed 12/29/13 Page 2 of 27 PageID #: 885
sterilization, and related counseling and education (collectively, “contraceptive services”). To the extent that Defendants are suggesting that “preventive services” include contraceptive services, the pages of the IOM Report Defendants cite do not support their assertion.
The only related statement in these pages is a single survey “indicat[ing] that less than half of women are up to date with recommended preventive care screenings and services (Robertson and Collins, 2011).” IOM REP. at 20. That survey, however, did not consider contraceptive coverage to be “preventive care.” Rather, “[t]he survey asked women whether they had received a set of recommended preventive screening tests: blood pressure, cholesterol, cervical cancer, colon cancer (for ages 50 to 64) and breast cancer (for ages 50 to 64) screens.” See Robertson & Collins, Women at risk: Why increasing numbers of women are failing to get the health care they need and how the Affordable Care Act will help, in Realizing Health Reform’s Potential (2011), at 8-9. Similarly, the only study referenced in the cited IOM pages actually relating to contraception does not discuss rates of women’s use of contraceptive services; rather, it analyzes women who already use some type of contraception, but decided to switch to another type. See IOM REP. at 119.
2. Section 1001 of the ACA requires all group health plans and health insurance issuers that offer non-grandfathered group or individual health coverage to provide coverage for certain preventive services without 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).
RESPONSE: Undisputed that the quoted text appears in Section 1001 of the ACA, but Section 1001 of the ACA is a provision of law, not a statement of fact.
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3. Because there were no existing HRSA guidelines relating to preventive care and screening for women, the Department of Health and Human Services (HHS) tasked the Institute of Medicine (IOM) with developing recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300.
RESPONSE: Disputed. Plaintiffs do not dispute that HHS tasked IOM with developing recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women, but dispute the propriety of HHS delegating its authority for creating preventive care guidelines to IOM, the impartiality of the IOM committee that was formulated to recommend preventive care guidelines, the methods the IOM committee employed to take on this task, and the recommendations the IOM offered. Specifically, HHS outsourced its deliberations to the IOM, which in turn created a “Committee on Preventive Services for Women” that invited presentations from several “pro-choice” groups, such as Planned Parenthood and the Guttmacher Institute (named for a former president of Planned Parenthood), without inviting any input from groups that oppose government-mandated coverage for abortion, contraception, and sterilization. See IOM REP. at 218-19.
In addition, “[t]he Report acknowledges” that it suffered from an “unacceptably short time frame for the [ ] committee to conduct or solicit meaningful reviews of the evidence associated with the preventive nature of the services considered,” IOM Rep. at 231-32. Further, “the committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee’s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.” Id. at 232. Ultimately, “the committee erred [in] their zeal to recommend something despite the time constraints and a far from perfect methodology” and “failed to demonstrate [transparency and strict objectivity] in the Report.” Id. at 232-33. The “evidence evaluation process [was] a fatal flaw of the Report.” Id. at 233.
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4. After conducting an extensive science-based review, IOM recommended that HRSA guidelines include, among other things, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Id. at 10-12, AR at 308-10.
RESPONSE: Undisputed that the quoted text appears in the IOM Report, but disputed that the IOM’s review was “extensive” and “science-based.” See Response to Paragraph 3, above. Plaintiffs incorporate herein their response to Paragraph 3, supra.
5. FDA-approved contraceptive methods include diaphragms, oral contraceptive pills, emergency contraceptives (such as Plan B and Ella), and intrauterine devices (“IUDs”). See id. at 105, AR at 403.
RESPONSE: Undisputed, but incomplete. FDA-approved contraceptive methods also include, inter alia, sterilization. See IOM REP. at 104-05. Further, Ulipristal (trade name “Ella”) is a close analogue to the abortion drug RU-486, with the same biological effect—that is, it can induce an abortion even after implantation. See Comments of the U.S. Conference of Catholic Bishops (Mar. 20, 2013) (citing European Medicines Agency, Evaluation of Medicines for Human Use: CHMP Assessment for Ellaone (2009)); Comments of the U.S. Conference of Catholic Bishops (Aug. 31, 2011) (citing A. Tarantal, et al., “Effects of Two Antiprogestins on Early Pregnancy in the Long-Tailed Macaque (Macaca fascicularis),” 54 Contraception 107-115 (1996), at 114 (“studies with mifepristone and HRP 2000 have shown both antiprogestins to have roughly comparable activity in terminating pregnancy when administered during the early stages of gestation”); G. Bernagiano & H. von Hertzen, “Towards more effective emergency contraception?”, 375 The Lancet 527-28 (Feb. 13, 2010), at 527 (“Ulipristal has similar biological effects to mifepristone, the antiprogestin used in medical abortion”)).
There is no authoritative agency interpretation of the term “abortion” in the context of the Weldon Amendment, the Government cites no statutory definition, no medical definition, and no case interpreting the term in that context. Stedman’s Medical Dictionary, for example, defines
4

Case 1:13-cv-00709-RC Document 22 Filed 12/29/13 Page 5 of 27 PageID #: 888
“abortion” as the “[e]xpulsion from the uterus of an embryo or fetus [before] viability.” STEDMAN’S MEDICAL DICTIONARY 4 (27th ed. 2000) (emphasis added). On this definition, some of the Mandate’s covered services clearly qualify as “abortion.”
Further, Defendants’ definition of pregnancy and when an abortion occurs is contradictory with Roman Catholic teaching on the subject: “Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion, which, in its moral context, includes the interval between conception and implantation of the embryo.” See Ethical and Religious Directives for Catholic Health Care Services, 5th Ed. (2009) (emphasis added).
6. Coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany unintended pregnancies) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.
RESPONSE: Disputed and unsupported. The pages of the IOM Report that Defendants cite do not support this assertion. The only related points in these pages are references to (1) another IOM report observing, without citation, that “[p]rogress in reducing unintended pregnancies will require not only making contraceptive methods more available, accessible, and acceptable through improved services, but also the development of new methods that meet additional needs,” see Inst. of Med., Women’s Health Research: Progress, Pitfalls, and Promise (2010), at 147; and (2) two studies that observed that increased rates of contraceptive use by unmarried women and adolescents, respectively, were associated with decreased rates of unintended pregnancies. IOM REP. at 105. Neither the referenced IOM report nor the cited studies discussed coverage of contraception without cost sharing at all, let alone that coverage without cost-sharing is necessary for increasing access to these services and thereby reducing the
5

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rate of unintended pregnancies and promoting healthy birth spacing, or that requiring religious
organizations to provide such coverage is a necessary means to either of those ends.
7. On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, encompassing all FDA-approved “contraceptive methods, sterilization procedures, and patient education and counseling,” as prescribed by a health care provider, subject to an exemption relating to certain religious employers authorized by regulations issued that same day (the “2011 amended interim final regulations”). See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84.
RESPONSE: Undisputed.
8. To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
(1) The inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; and (4) the organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.
76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 2201.
RESPONSE: Undisputed, but this is a provision of law, not a statement of fact.
9. Group health plans established or maintained by religious employers (and associated group health insurance coverage) are exempt from any requirement to cover contraceptive services consistent with HRSA’s guidelines. See HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines (“HRSA Guidelines”), AR at 283-84; 45
C.F.R. § 147.131(a).
RESPONSE: This is a disputed proposition of law, not a statement of fact. Moreover,
under the government’s initial interpretation of the “religious employer” exemption, if a
nonexempt religious organization “provided health coverage for its employees through” a plan
offered by a separate, “affiliated” organization that was “exempt from the requirement to cover
contraceptive services, then neither the [affiliated organization] nor the [nonexempt entity would
1 Plaintiffs do not concede that the Administrative Record is properly before the Court. To the extent Defendants rely on the Administrative Record, references herein by Plaintiffs to the Administrative Record are to demonstrate that it does not support Defendants’ Statement of Facts.
6

Case 1:13-cv-00709-RC Document 22 Filed 12/29/13 Page 7 of 27 PageID #: 890
be] required to offer contraceptive coverage to its employees.” 77 Fed. Reg. 16,501, 16,502 (Mar. 21, 2012). But the Final Rules eliminated that safeguard, and now interpret the exemption to require “each employer” to “independently meet the definition of eligible organization or religious employer in order to take advantage of the accommodation or the religious employer exemption with respect to its employees and their covered dependents.” 78 Fed. Reg. 39,870, 39,886; See also 78 Fed. Reg. 8,456, 8,467 (Feb. 6, 2013) (NPRM). Nevertheless, the language of 45 C.F.R. § 147.131(a) explicitly exempts “group health plan[s] established or maintained by a religious employer (and health insurance coverage provided in connection with a group health plan established or maintained by a religious employer)” from “any requirement to cover contraceptive services” under the HRSA guidelines. Id. By its terms, this exemption does not solely exempt the religious employer; rather, it exempts the entire “group health plan” that the religious employer “establishe[s] or maintain[s],” id., which in the case of the diocesan plaintiffs here provides coverage to affiliated religious entities.
10. In February 2012, the government adopted in final regulations the definition of “religious employer” contained in the 2011 amended interim final regulations while also creating a temporary enforcement safe harbor for non-grandfathered group health plans sponsored by certain non-profit organizations with religious objections to contraceptive coverage (and any associated group health insurance coverage). See 77 Fed. Reg. 8725, 8726-27 (Feb. 15, 2012), AR at 213-14.
RESPONSE: Undisputed. 11. The government committed to undertake a new rulemaking during the safe harbor period to adopt new regulations to further accommodate non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215. RESPONSE: Undisputed that the government undertook new rulemaking, but disputed that the new rulemaking in fact accommodated non-grandfathered non-profit religious organizations’ religious objections to covering contraceptive services.
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12. The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,870, 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 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking (NPRM)), AR at 165-85.
RESPONSE: Undisputed, but Plaintiffs incorporate herein their response to Paragraph
11, supra, with respect to what “that process” is.
13. Under the 2013 final rules, a “religious employer” is “an organization that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Internal Revenue Code of 1986, as amended,” which refers to churches, their integrated auxiliaries, and conventions or associations of churches, and the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a).
RESPONSE: This is an undisputed proposition of law, not a statement of fact.
14. The 2013 final rules establish accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations” (and group health insurance coverage provided in connection with such plans). Id. at 39,875-80, AR at 7-12; 45 C.F.R. § 147.131(b).
RESPONSE: This is a disputed proposition of law, not a statement of material fact.
While defendants purport to have established an “accommodation” regarding contraceptive
coverage for certain religious “eligible organizations,” that so-called “accommodation” does not
resolve Plaintiffs’ religious objections and still requires Plaintiffs to facilitate access to products
and services the use of which is antithetical to Plaintiffs’ mission and beliefs and the Roman
Catholic faith.
15. An “eligible organization” is an organization that satisfies the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections. (2) The organization is organized and operates as a nonprofit entity. (3) The organization holds itself out as a religious organization. (4) The organization self-certifies, in a form and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and makes such self- certification available for examination upon request by the first day of the first plan year to which the accommodation in paragraph (c) of this section applies.
45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7.
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RESPONSE: This is an undisputed proposition of law, not a statement of material fact. 16. Under the 2013 final rules, an eligible organization is not required “to contract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. RESPONSE: This is a disputed proposition of law, not a statement of material fact. The Final Rules compel Plaintiffs to designate a third party administrator as plan administrator and claims administrator for the purpose of providing payments for contraceptive services for Plaintiffs’ health plan participants. The Final Rules require Plaintiffs to find a third party administrator willing to provide the mandated coverage, contract with that party, and provide a self-certification to that party to be eligible for the accommodation. See 78 Fed. Reg. at 39,879 (providing requirements for self-certification and providing that, “[u]pon receipt of the copy of the self-certification, the third party administer may decide not to enter into, or remain in, a contractual relationship with the eligible organization to provide administrative services for the plan”). Upon locating a willing third party administrator, entering into a contract with that party, and providing the party with the requisite self-certification, “the third party administrator becomes an ERISA section 3(16) plan administrator and claims administrator solely for the purpose of providing payments for contraceptive services for participants and beneficiaries in a self-insured plan.” 78 Fed. Reg. at 39,879. “[A] plan administer is defined in ERISA section 3(16)(A)(i) as ‘the person specifically so designated by the terms of the instrument under which the plan is operated.’ . . . [As such, T]he self-certification is one of the instruments under which the employer’s plan is operated under ERISA section 3(16)(A0(i).” Id. Accordingly, the Final Rules require the non-exempt Plaintiffs to find and designate a third party administrator as plan administrator and claims administrator for the purpose of providing payments for contraceptive services for Plaintiffs’ health plan participants and to provide the requisite self-certification to the
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designated third party administrator in order to facilitate those payments. Moreover, Plaintiffs’ employees would receive access to the mandated payments only by virtue of their participation in the health plan Plaintiffs choose to offer. See 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(c)(2)(i)(B) (indicating that payments are available only “so long as” Plaintiffs’ employees remain on Plaintiffs’ insurance plan”).
17. To be relieved of any such obligations, the 2013 final rules require only that an eligible organization complete a self-certification form stating that it is an eligible organization and provide a copy of that self-certification to its issuer or third party administrator (TPA). Id. at 39,878-79, AR at 10-11.
RESPONSE: This paragraph is argumentative, and is a disputed proposition of law, not a statement of material fact. Plaintiffs incorporate herein their response to Paragraph 16, supra.
18. Its participants and beneficiaries, however, will still benefit from separate payments for contraceptive services made by the issuer or TPA, without cost sharing or other charge. Id. at 39,874, AR at 6.
RESPONSE: Disputed. Plaintiffs do not dispute that the 2013 final rules anticipate that health plan participants and beneficiaries will receive separate payments for contraceptive services made by the issuer or TPA without cost sharing or other charge. But Plaintiffs dispute that contraceptive services are a “benefit”; Plaintiffs believe they are immoral.
19. In the case of an organization with a self-insured group health plan—such as plaintiffs here—the organization’s TPA, upon receipt of the self-certification, must, among other things, provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan without cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12.
RESPONSE: This is an incomplete proposition of law, not a statement of material fact. Plaintiffs incorporate herein their responses to Paragraph 16, supra and 20, infra. The 2013 final rules allow third party administrators to “decide not to enter into, or remain in, a contractual
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relationship with the eligible organization to provide administrative services for the plan.” 78 Fed. Reg. at 39,879.
20. Any costs incurred by the TPA will be reimbursed through an adjustment to Federally-facilitated Exchange (FFE) user fees. See id. at 39,880, AR at 12.
RESPONSE: Undisputed that the 2013 final rules anticipate that costs incurred by the TPA will be reimbursed through an adjustment to the FFE user fees, but disputed that such mechanisms will fully compensate TPAs. These fee reductions are to be established through a highly regulated and bureaucratic process for evaluating, approving, and monitoring fees paid in compensation to third-party administrators. Such regulatory regimes invariably fail to fully compensate the regulated entities for the costs and risks incurred. As a result, few if any thirdparty administrators are likely to participate in this regime, and those that do are likely to increase fees charged to self-insured organizations.
21. The government “propose[d] to make the accommodation or the religious employer exemption available on an employer-by-employer basis” in the NPRM. 78 Fed. Reg. 8456, 8467 (Feb. 6, 2013), AR at 176. RESPONSE: Undisputed.
22. The 2013 final rules generally apply to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, see id. at 39,872, AR at 4, except the amendments to the religious employer exemption apply to group health plans and group health insurance issuers for plan years beginning on or after August 1, 2013, see id. at 39,871, AR at 3. RESPONSE: This is an undisputed proposition of law, not a statement of material fact.
23. The regulations specifically prohibit TPAs from charging any premium or otherwise passing on any costs to eligible organizations with respect to the TPAs’ payments for contraceptive services. See 78 Fed. Reg. at 39,880, AR at 12.
RESPONSE: This is an incomplete proposition of law, not a statement of material fact. The 2013 final rules allow TPAs to “decide not to enter into, or remain in, a contractual relationship with the eligible organization to provide administrative services for the plan.” 78 Fed. Reg. at 39,879. Plaintiffs incorporate herein their response to paragraph 20, supra.
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24. The primary predicted benefit of the preventive services coverage regulations is that “individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” 75 Fed. Reg. 41,726, 41,733 (July 19, 2010), AR at 233; see also 77 Fed. Reg. at 8728, AR at 215; 78 Fed. Reg. at 39,872, 39,887, AR at 4, 19.
RESPONSE: This not a statement of fact, but unsupported speculation. Defendants’ regulations are not evidence of the fact asserted, namely, that “individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease.” See Williams v. City of New York, No. 06-CV-6601 (NGG), 2009 WL 3254465, at *11 (E.D.N.Y. Oct. 6, 2009) (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient.”).
In addition, contraceptive services, “unlike other mandated ‘preventive services,’ do not ‘prevent’ disease. Instead, they disrupt the healthy functioning of the human reproductive system.” See Comments of the U.S. Conference of Catholic Bishops (Mar. 20, 2013). “Furthermore, various contraceptives are associated with adverse health outcomes, including an increased risk of such serious conditions as breast cancer, cardiac failure, and stroke.” Id. The publishers of the Physicians’ Desk Reference warn women of these, and other “[s]erious, and possibly life-threatening, side effects.” Comments of the U.S. Conference of Catholic Bishops at 4 (Sept. 17, 2010) (discussing PDR Network, “Oral contraceptives,” at PDRhealth (2009)).
25. “By expanding coverage and eliminating cost sharing for recommended preventive services, [the regulations are] expected to increase access to and utilization of these services, which are not used at optimal levels today.” 75 Fed. Reg. at 41,733, AR at 233; see also 78 Fed. Reg. at 39,873 (“Research [ ] shows that cost sharing can be a significant barrier to access to contraception.” (citation omitted)), AR at 5.
RESPONSE: Undisputed that the quoted text appears in the 2013 final rules, but the statement itself is disputed, unsupported, and speculative. Defendants’ regulations are not evidence of the fact asserted, namely, that “expanding coverage and eliminating cost sharing for recommended preventive services, [will] increase access to and utilization of these services,
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which are not used at optimal levels today.” See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”).
In addition, the cited page of the Administrative Record in turn cites a study entitled “A Comparison of Contraceptive Procurement Pre- and Post-Benefit Change,” which analyzes changes in contraceptive use after the Kaiser Foundation Health Plan in California changed its coverage policy to include universal coverage for contraception. See Postlethwaite, D., et al, 76 Contraception 360 (2007). But, this study provides no support for the government’s assertion that cost sharing is a barrier to contraception. In any event, the sole purpose of the study was to evaluate whether eliminating cost sharing for contraceptive coverage “would lead to a change in the mix of contraceptive methods prescribed and purchased by a large health plan and whether those changes could theoretically result in averting a greater number of unintended pregnancies.” Id. Ultimately, the study concluded that removing cost for contraception “may” result in increased use, not of contraception generally, but of what the study deemed more effective forms of contraception—that is, whether women would switch to a more expensive but perhaps more effective type of contraception if cost were not a concern. Id.
Further, Plaintiffs’ sincerely-held Catholic religious beliefs provide that there are no “optimal levels” of the use of contraceptive services, as “[t]he Church teaches that . . . artificial interference with life and conception is immoral.”
26. Although a majority of employers cover FDA-approved contraceptives, see IOM REP. at 109, AR at 407, many women forgo preventive services because of cost-sharing imposed by their health plans, see id. at 19-20, 109, AR at 317-18, 407.
RESPONSE: Disputed, unsupported, and immaterial. The pages of the IOM Report that Defendants cite do not support this assertion. The only related points in these pages are references to studies regarding preventive services other than contraceptive services. See IOM
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REP. at 19 (discussing women’s use of preventive care, including cancer screenings, dental examinations, mammograms, and Pap smears); Id. at 20 (referencing study asking women whether they had received a set of recommended preventive screening tests that did not include contraceptive services: blood pressure, cholesterol, cervical cancer, colon cancer (for ages 50 to 64) and breast cancer (for ages 50 to 64) screens); Id. at 109 (mentioning research on preventive and primary care services in general). The one study mentioned that touches on contraceptive services examined women who were already taking contraception and the likelihood that they would switch to another method in light of reduced or eliminated out-ofpocket costs.
In fact, more than 89 percent of insurance plans “cover[ed] contraceptive methods in 2002.” IOM REP. at 109. Further, 89% of women trying to avoid pregnancy are already practicing contraception. See The Guttmacher Institute, “Fact Sheet: Contraceptive Use in the United States," (Aug. 2010), available at http://www.guttmacher.org/pubs/ fb_contr_use.html. Among the other 11%, lack of access is not a statistically significant reason why they do not use contraceptives. Mosher WD and Jones J, “Use of contraception in the United States: 1982– 2008,” Vital and Health Statistics, 2010, Series 23, No. 29, at 14 and Table E, available at http://www.cdc.gov/NCHS/data/series/ sr_23/sr23_029.pdf. Even among the most at-risk populations, cost is not the reason those women do not use contraceptives. See R. Jones, J. Darroch and S.K. Henshaw “Contraceptive Use Among U.S. Women Having Abortions,” Perspectives on Sexual and Reproductive Health 34 (Nov/Dec 2002): 294–303 (Perspectives is a publication of the Guttmacher Institute); see also CDC, “Prepregnancy Contraceptive Use Among Teens with Unintended Pregnancies Resulting in Live Births — Pregnancy Risk Assessment Monitoring System (PRAMS), 2004–2008,” Morbidity and Mortality Weekly
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Report 61(02);25-29 (Jan. 20, 2012), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6102a1.htm?s_cid=mm6102a1_e (2012 CDC study showed that even among those most at risk for unintended pregnancy, only 13% cite cost as a reason for not using contraception).
Moreover, Defendants have admitted that “85 percent of employer-sponsored health insurance plans cover[] preventive services,” and that they do so “without [beneficiaries] having to meet a deductible,” 75 Fed. Reg. at 41,732—in other words, without a significant form of cost sharing.
27. Unintended pregnancies have proven in many cases to have negative health consequences for women and developing fetuses. See 78 Fed. Reg. at 39,872, AR at 4.
RESPONSE: Disputed and unsupported. Defendants’ regulations are not evidence of the fact asserted. See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient. Plaintiffs incorporate herein their response to Paragraph 24, supra.
28. Unintended pregnancy may delay “entry into prenatal care,” prolong “behaviors that present risks for the developing fetus,” and cause “depression, anxiety, or other conditions.” IOM REP. at 20, 103-04, AR at 318, 401-02.
RESPONSE: Undisputed, but incomplete. Plaintiffs incorporate herein their response to Paragraph 24, supra.
29. 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 interpregnancy intervals in particular have been associated with low birth weight, prematurity, and small-for-gestational age births.”) (citing studies), AR at 4.
RESPONSE: Disputed and unsupported. The pages of the IOM Report that Defendants cite do not support their assertion. Also, Defendants’ regulations are not evidence of
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the fact asserted. See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”).
Furthermore, the quoted text does not bear on whether contraceptive coverage has any impact on the incidence of the referenced negative consequences of short interpregnancy intervals. In addition, Plaintiffs incorporate herein their response to Paragraph 24, supra.
30. “Contraceptives also have medical benefits for women who are contraindicated for pregnancy, and there are demonstrative preventive health benefits from contraceptives relating to conditions other than pregnancy (for example, prevention of certain cancers, menstrual disorders, and acne).” 78 Fed. Reg. at 39,872, AR at 4; see also IOM REP. at 103-04 (“[P]regnancy may be contraindicated for women with serious medical conditions such as pulmonary hypertension . . . and cyanotic heart disease, and for women with the Marfan Syndrome.”), AR at 401-02.
RESPONSE: Undisputed that the quoted text appears in the 2013 final rules, but the statement itself is disputed, unsupported, and immaterial. Defendants’ regulations are not evidence of the fact asserted. See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”).
Furthermore, “contraceptive methods have both risks and benefits,” negative consequences of which range from “side effects” to death. IOM REP. at 105-06. And, “[f]or women with certain medical conditions or risk factors, some contraceptive methods may be contraindicated.” Id. at 105. Plaintiffs also incorporate herein their response to Paragraph 24, supra.
In addition, Plaintiffs have no objection to (and this case is not about) the use of contraceptives for non-contraceptive purposes, and Plaintiffs currently cover contraceptives when prescribed for such medically-necessary, non-contraceptive purposes.
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31. “[W]omen have different health needs than men, and these needs often generate additional costs. Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.” 155 Cong. Rec. S12106-02, S12114 (daily ed. Dec. 2, 2009); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 19, AR at 317.
RESPONSE: Undisputed that the quoted text appears in the Congressional Record, but the statement itself is disputed and unsupported. Defendants’ self-serving selection of the legislative history of the statute, individual Congresspersons’ statements, or Defendants’ own regulations do not provide evidentiary support for the underlying factual statement. See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”). The statement also has no bearing on the utilization of contraceptive services at all. Likewise, Defendants’ citation to the IOM Report provides support only for the general proposition that some women have significant health care expenses, including paying for prescriptions for themselves and their families and paying for screening and preventive services entirely unrelated to contraception. See IOM REP. at 19.
32. These costs result in women often forgoing preventive care and place women in the workforce at a disadvantage compared to their male coworkers. See, e.g., 155 Cong. Rec. S12265-02, S12274 (daily ed. Dec. 3, 2009); 78 Fed. Reg. at 39,887, AR at 19; IOM REP. at 20, AR at 318.
RESPONSE: Disputed and unsupported. Defendants’ self-serving selection of the legislative history of the statute, individual Congresspersons’ statements, or Defendants’ regulations does not provide evidentiary support for the underlying factual statement. See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”). The statement also has no bearing on the utilization of contraceptive services at all. Additionally, Defendants’ citation to the IOM Report provides support only for the general proposition that some women have difficulty paying medical bills and for screening and preventive services
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unrelated to contraception, while also noting that women are more likely than men to be dependents on a health care plan, which is irrelevant to their participation in the workforce. See IOM REP. at 20.
33. The grandfathering of certain health plans with respect to certain provisions of the ACA is not specifically limited to the preventive services coverage regulations. See 42 U.S.C. § 18011; 45 C.F.R. § 147.140.
RESPONSE: This is an incomplete statement of law, not a statement of material fact. While the grandfathering provisions may not be specifically limited to excluding the ACA’s preventive services coverage requirements, Defendants themselves highlighted in the regulations that grandfathered health plans are not subject to the preventive services coverage requirements. Specifically, Defendants’ model disclosure to plan beneficiaries provides that “[b]eing a grandfathered health plan means that your [plan or policy] may not include certain consumer protections of the Affordable Care Act that apply to other plans, for example, the requirement for the provision of preventive health services without any cost sharing.” 45 C.F.R. §147.140(a)(2)(ii). In other words, grandfathered health plans are exempt from the preventive services coverage regulations regardless of whether that is the only provision of the ACA for which they can avoid compliance.
34. The effect of grandfathering is not really a permanent “exemption,” but rather, over the long term, a transition in the marketplace with respect to several provisions of the ACA, including the preventive services coverage provision. See 78 Fed. Reg. at 39,887 n.49.
RESPONSE: Disputed, unsupported, and speculative. Defendants’ regulations are not evidence of the fact asserted. See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”).
At any rate, Defendants have acknowledged in their own regulations that grandfathered health plans are “exempt” from provisions of the ACA, including the preventive services
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coverage provision. See, e.g., 75 Fed. Reg. 70,114, 70,117 (Nov. 15, 2010) (“Because grandfathered health plans are exempt from many of [the provisions of the Affordable Care Act] while group health plans and group and individual health insurance coverage that are not grandfathered health plans must comply with them, it was critical for plans and issuers to receive clear guidance as to whether they were so exempt as soon as possible”); 75 Fed. Reg. 34,538, 34,545 (June 17, 2010) (“Grandfathered health plans are exempt from many of these provisions while group health plans and group and individual health insurance coverage that are not grandfathered health plans must comply with them.”); HHS, Grandfathered Plans, available at http://www.hhs.gov/healthcare/insurance/grandfather/ (“The Affordable Care Act exempts most plans that existed on March 23, 2010 — the day the law was enacted — from some of the law’s consumer protections.”).
In addition, the predicted “majority of group health plans [that] will lose their grandfathered status by the end of 2013” is a bare majority, leaving 49% still possessing grandfathered status. 75 Fed. Reg. at 34,553. Defendants’ data further estimates that a majority of “large employer” group health plans will still possess grandfathered status by the end of 2013. Id. Because 49% of total group health plans and 55% of large employer group health plans are predicted to maintain grandfathered status through the end of 2013, and because twice as many people are in large group health plans as are in small ones, Defendants’ data predicts that a majority of total persons covered by group health plans (large and small) will be in grandfathered health plans through the end of 2013. 75 Fed. Reg. at 34,550, 34,553. And, as Defendants’ own estimates acknowledge, “[m]ost of the 133 million Americans with employer-sponsored health insurance through large employers will maintain the coverage they have today,” i.e., will retain grandfathered health coverage. HHS, U.S. Departments of Health and Human Services, Labor,
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and Treasury Issue Regulation on “Grandfathered” Health Plans under the Affordable Care Act, available at http://www.hhs.gov/news/press/2010pres/06/20100614e.html (June 14, 2010) (“June 14, 2010 Press Release”).
Further, the grandfathering exclusion has no sunset provision; a health plan has a “right” to keep its grandfathered status. 75 Fed. Reg. at 34,540, 34,558, 34,562, 34,566. A health plan can maintain its grandfathered status indefinitely while increasing costs to employees if it stays within the parameters of Defendants’ regulations for grandfathered plans. 75 Fed. Reg. at 34,538. Indeed, Defendants’ assertion contradicts the President’s promise that “if you like your plan, you can keep it.” See June 14, 2010 Press Release.
35. A majority of group health plans will have lost their grandfather status by the end of 2013. See id. at 34,552; see also Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annual Survey at 7-8, 190 (indicating that 58 percent of firms had at least one grandfathered health plan in 2012, down from 72 percent in 2011, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in 2011), AR at 663-64, 846.
RESPONSE: Disputed and unsupported. Plaintiffs incorporate herein their response to Paragraph 34, supra.
36. 26 U.S.C. § 4980H(c)(2) does not exempt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 78 Fed. Reg. at 39,887 n.49, AR at 19.
RESPONSE: This is a disputed proposition of law, not a statement of material fact. While small employers are technically required to provide coverage for recommended preventive services, Defendants have permanently exempted them from some of the Mandate’s enforcement mechanisms. See, e.g., 26 U.S.C. §§ 4980H(a), 4980H(c)(2)(A). These small employer plans cover about 20 to 40 million employees and dependents. See U.S. Census Bureau, Employment Size of Firms, www.census.gov/econ/smallbus.html.
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37. Instead, it excludes employers with fewer than fifty full-time equivalent employees from the employer responsibility provision, meaning that, starting in 2015, such employers are not subject to the possibility of assessable payments if they do not provide health coverage to their full-time employees and their dependents. See 26 U.S.C. § 4980H(c)(2).
RESPONSE: This is a disputed proposition of law, not a statement of material fact. Plaintiffs incorporate herein their response to Paragraph 36, supra.
38. Small businesses that do offer non-grandfathered health coverage to their employees are required to provide coverage for recommended preventive services, including contraceptive services, without cost-sharing. 78 Fed. Reg. at 39,887 n.49, AR at 19.
RESPONSE: This is an incomplete statement of a proposition of law, not a statement of material fact. While small employers are technically required to provide coverage for recommended preventive services, Defendants have permanently exempted them from some of the Mandate’s enforcement mechanisms. See, e.g., 26 U.S.C. §§ 4980H(a), 4980H(c)(2)(A). These small employer plans cover about 20 to 40 million employees and dependents. See U.S. Census Bureau, Employment Size of Firms, www.census.gov/econ/smallbus.html.
39. The only exemption from the preventive services coverage regulations is the exemption for the group health plans of religious employers. 45 C.F.R. § 147.131(a).
RESPONSE: This is a disputed proposition of law, not a statement of material fact. As set forth in Plaintiffs’ responses to Paragraphs 34 and 36, incorporated herein, grandfathered health plans are exempt from the preventive service coverage requirements of the ACA, and small employers are exempt from some of the Mandate’s enforcement mechanisms.
40. Houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share 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. See 78 Fed. Reg. at 39,874, AR at 6.
RESPONSE: Disputed and unsupported. Defendants’ regulations are not evidence of the fact asserted, and this statement is pure speculation. See Williams, 2009 WL 3254465, at *11
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(“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”).
In addition, HHS has acknowledged that there is no evidentiary basis for the conclusion that individuals who work for entities like ArchCare and Catholic Health Services of Long Island are more likely not to object to the use of contraceptives and therefore are more likely to use contraceptives. See Cohen Dep. at 34:9-24 (“Q. . .What was the evidentiary basis for the conclusion that individuals who work for entities like ArchCare and Catholic Health Services of Long Island are more likely not to object to the use of contraceptives and therefore are more likely to use contraceptives? A. I think that conclusion was based on just logic and common sense on the one hand and, secondly, on the evidence that a very large majority -- I've seen figures up to 95 percent of sexually active women in the United States use contraceptives at one point or another. Q. So there was no evidence particular to those types of institutions? A. No, I don't believe so.”).
41. Congress did not adopt a single (government) payer system financed through taxes and instead opted to build on the existing system of employment-based coverage. See H.R. Rep. No. 111-443, pt. II, at 984-86 (2010).
RESPONSE: Undisputed. 42. Defendants are constrained by statute from adopting the alternative administrative schemes proposed by plaintiffs. See 78 Fed. Reg. at 39,888, AR at 20. RESPONSE: This is a disputed proposition of law, not a statement of material fact. Defendants’ regulations are also not evidence of the fact asserted. See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”). 43. Plaintiffs’ proposed alternatives are not feasible because they would impose considerable new costs and other burdens on the government and would otherwise be impractical. See 78 Fed. Reg. at 39,888, AR at 20.
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RESPONSE: This is disputed proposition of law, not a statement of material fact. Defendants’ regulations are not evidence of the fact asserted. See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”).
44. 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.
RESPONSE: This is a disputed proposition of law, not a statement of material fact. Defendants’ regulations are also not evidence of the fact asserted. See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”).
45. Plaintiffs’ alternatives would require establishing entirely new government programs and infrastructures or fundamentally altering an existing one, and would require women to take burdensome steps to find out about the availability of and sign up for a new benefit, thereby ensuring that fewer women would take advantage of it. See 78 Fed. Reg. at 39,888, AR at 20.
RESPONSE: This is argumentative and a disputed proposition of law, not a statement of material fact. Defendants’ regulations are also not evidence of the fact asserted. See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”)
46. “Nothing in the[] final regulations prohibits an eligible organization from expressing its opposition to the use of contraception.” 78 Fed. Reg. at 39,880 n.41, AR at 12.
RESPONSE: This is a disputed proposition of law, not a statement of material fact. Defendants’ regulations are also not evidence of the fact asserted. See Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”).
Further, the regulations broadly prohibit religious organizations from “directly or indirectly, seek[ing] to influence the[ir] third party administrator’s decision” to provide or
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procure contraceptive services, 26 C.F.R. § 54.9815–2713A, thus limiting the means by which
Plaintiffs may express their opposition to the use of contraception. Moreover, Plaintiffs express
their religious opposition to the use of contraception, in part, through the manner in which they
have established health care coverage for their employees, which currently prohibits the use of
contraceptive services consistent with plaintiffs’ faith.
47. The regulations only prohibit an employer’s improper attempt to interfere with its employees’ ability to obtain contraceptive coverage from a third party by, for example, threatening the TPA with a termination of its relationship with the employer because of the TPA’s “arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries.” See 26 C.F.R. § 54.9815-2713A(b)(1)(iii); 29 C.F.R. § 2950.7152713A(b)(1)(iii).
RESPONSE: This is argumentative and a disputed proposition of law, not a statement
of material fact. Plaintiffs incorporate herein their response to Paragraph 46, infra.
48. The Women’s Health Amendment, which contained the requirement to provide coverage for recommended preventive services for women without cost-sharing, was intended to fill significant gaps relating to women’s health that existed in the other preventive care guidelines identified in the Affordable Care Act. See 155 Cong. Rec. S12021-02, S12025 (daily ed. Dec. 1, 2009) (statement of Sen. Boxer); 155 Cong. Rec. S12265-02, S12271 (daily ed. Dec. 3, 2009) (statement of Sen. Franken).
RESPONSE: This is argumentative and a disputed restatement of the law, and not a
statement of material fact. Plaintiffs incorporate herein their response to Paragraph 46, infra.
49. The Weldon Amendment denies funds made available in the Consolidated Appropriations Act of 2012 to any federal, state, or local agency, program, or government that “subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Pub. L. No. 112-74, §§ 506, 507, 125 Stat. 786, 1111-12 (Dec. 23, 2011).
RESPONSE: This is an incomplete statement of a proposition of law, not a statement
of material fact. The Weldon Amendment defines the term “health care entity” to include “a
health insurance plan.” See Pub. L. No. 112-74, § 507(d)(2) (2011).
24

Case 1:13-cv-00709-RC Document 22 Filed 12/29/13 Page 25 of 27 PageID #: 908
50. “Abortifacient drugs are not included” in the preventive services covered by the regulations. HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive regulations. HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/womensprevention08012011a.html (last visited Sept. 23, 2013); see also IOM REP. at 22 (recognizing that abortion services are outside the scope of recommendations), AR at 320.
RESPONSE: Disputed as stated in Plaintiffs’ response incorporated herein, emergency
contraceptives (such as Plan B and Ella) can also act as abortifacients.
51. The list of FDA-approved contraceptives includes emergency contraceptives such as Plan B. See IOM REP. at 105, AR at 403.
RESPONSE: Undisputed that the list of FDA-approved contraceptive includes
emergency contraceptives such as Plan B, but, as stated in Plaintiffs’ response herein, emergency
contraceptives (such as Plan B and Ella) can also act as abortifacients.
52. The basis for the inclusion of such drugs among safe and effective means of contraception dates back to 1997, when the FDA first explained why Plan B and similar drugs act as contraceptives rather than abortifacients. See Prescription Drug Products; Certain Combined Oral Contra for Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997) (noting that “emergency contraceptive pills are not effective if the woman is pregnant” and that there is “no evidence that [emergency contraception] will have an adverse effect on an established pregnancy”); 45 C.F.R. § 46.202(f) (“Pregnancy encompasses the period of time from implantation until delivery.”).
RESPONSE: Disputed and unsupported. The cited regulation does not support this
assertion. Namely, it does not describe “[t]he basis for the inclusion of [emergency
contraceptives] among safe and effective means of contraception.” In addition, Defendants’
regulations are not evidence of the fact asserted. See Williams, 2009 WL 3254465, at *11 (“On a
motion for summary judgment, such conclusory assertions [of party’s own testimony]
unsupported by admissible evidence are insufficient”). Plaintiffs incorporate herein their
response to paragraph 5, infra.
53. In light of this conclusion by the FDA, HHS informed Title X grantees, which are required to offer a range of acceptable and effective family planning methods—and, except
25

Case 1:13-cv-00709-RC Document 22 Filed 12/29/13 Page 26 of 27 PageID #: 909
under limited circumstances, may not offer abortion—that they “should consider the availability of emergency contraception the same as any other method which has been established as safe and effective.” Office of Population Affairs, Memorandum (Apr. 23, 1997), http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited [INSERT], 2013) [sic]; see also 42 U.S.C. §§ 300, 300a-6.
RESPONSE: Undisputed that the HHS so informed Title X grantees, but the truth of the underlying assertions is disputed. Plaintiffs incorporate herein their response to paragraph 5, infra.
54. Representative Weldon, the sponsor of the Weldon Amendment, did not consider the word “abortion” in the statute to include FDA-approved emergency contraceptives. See 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) (“The provision of contraceptive services has never been defined as abortion in Federal statute, nor has emergency contraception, what has commonly been interpreted as the morning-after pill. . . . [U]nder the current FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”).
RESPONSE: Disputed and unsupported. Defendants’ self-serving selection of the legislative history of the statute or individual Congresspersons’ statements does not provide evidentiary support for the underlying factual statement. “What motivate[d] one legislator to make a speech about a statute [in 2002] is not necessarily what motivate[d] scores of others to enact it” in 2012. United States v. O’Brien, 391 U.S. 367, 384 (1968); see also Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 457 n.15 (2002) (rejecting reliance on floor statements); see also Williams, 2009 WL 3254465, at *11 (“On a motion for summary judgment, such conclusory assertions [of party’s own testimony] unsupported by admissible evidence are insufficient”). Plaintiffs incorporate herein their response to Paragraph 5, infra, emergency contraceptives (such as Plan B and Ella) can also act as abortifacients.
Respectfully submitted on this 29th day of December, 2013,
26

Case 1:13-cv-00709-RC Document 22 Filed 12/29/13 Page 27 of 27 PageID #: 910
By: /s/ Randal G. Cashiola Randal G. Cashiola Texas State Bar No. 03966802 rcashiola@cashiolalaw.com CASHIOLA & BEAN 2090 Broadway, Suite A Beaumont, Texas 77701 (409) 813-1443 telephone (409) 813-1467 facsimile Attorney-in-Charge for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that on December 29, 2013 the foregoing document was filed through the Court's ECF filing system on counsel for Defendants.
/s/ Randal G. Cashiola Randal G. Cashiola
27

 
 Case 1:13-cv-00709-RC Document 32 Filed 12/31/13 Page 1 of 1 PageID #: 1026

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

CATHOLIC DIOCESE OF BEAUMONT §

AND CATHOLIC CHARITIES OF

§

SOUTHEAST TEXAS, INC.

§

§

Plaintiffs,

§

§ CIVIL ACTION No. 1:13-cv-709

v.

§

§ JUDGE RON CLARK

KATHLEEN SEBELIUS, SECRETARY, §

U.S. DEPT. OF HEALTH AND HUMAN §

SERVICES, ET AL.

§

§

Defendants.

§

ORDER

Before the court is Plaintiffs’ Motion for Temporary Restraining Order and Preliminary

Injunction. [Doc. # 3]. Pursuant to Fed. R. Civ. P. Rule 65(a)(2), and with the agreement of the

parties, the hearing on the preliminary injunction was consolidating with a hearing on permanent

injunctive relief. For the reasons stated in the forthcoming Memorandum Opinion, the

government is enjoined from applying or enforcing the regulations that require the Plaintiffs,

their health plans, TPAs, or issuers, to provide or execute the self-certification forms that enable

or require the TPA or issuer to provide health insurance coverage for Plaintiff’s employees for

FDA-approved contraceptives, emergency contraceptives, products, or services under the

requirements imposed in 42 U.S.C. § 300gg-13(a)(4), Pub. L. 11-148, § 1563(e)-(f), as well as

the application of the penalties found in 26 U.S.C. §§ 4980D & 4980H, and 29 U.S.C. § 1132.

A final judgment consistent with this Order and the Memorandum Opinion

will be forthcoming. So ORDERED and SIGNED this 31 day of December, 2013.

___________________________________ Ron Clark, United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

CATHOLIC DIOCESE OF BEAUMONT §

AND CATHOLIC CHARITIES OF

§

SOUTHEAST TEXAS, INC.

§

§

Plaintiffs,

§

§ CIVIL ACTION No. 1:13-cv-709

v.

§

§ JUDGE RON CLARK

KATHLEEN SEBELIUS, SECRETARY, §

U.S. DEPT. OF HEALTH AND HUMAN §

SERVICES, ET AL.

§

§

Defendants.

§

MEMORANDUM AND ORDER

Plaintiffs, the Catholic Diocese of Beaumont and Catholic Charities of Southeast Texas,

Inc., filed suit against Defendants United States Departments of Health and Human Services,

Labor, and Treasury, seeking an injunction against enforcement of a portion of the Patient

Protection and Affordable Care Act that requires employers to provide their employees with a

health plan that covers all FDA-approved contraceptive methods, sterilization procedures, and

patient education and counseling (“contraceptive services”). The Government asserts that

Plaintiffs lack standing, and alternatively failed to show a violation of the Religious Freedom

Restoration Act, a violation of their Free Exercise rights, or a violation of their Free Speech

rights.

This case is one of many similar cases brought by religious organizations across the country. Some district courts have found for the plaintiffs,1 while others have found for the

1 See e.g., E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv-3009, at *42-43 (S.D. Tex. Dec. 27, 2013); Southern Nazarene University v. Sebelius, No. 13-cv-1015-F (W.D. Okla. Dec. 23, 2013); Geneva College v. Sebelius, No. 12-cv-00207 (W.D. Pa. Dec. 23 2013); Legatus v. Sebelius, No. 12-cv-12061 (E.D. Mich. Dec. 20, 2013); Roman Catholic Archbishop of Washington v.

Government.2 As detailed below, this court’s analysis and conclusions are in line with those of
the Honorable Lee H. Rosenthal in in E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv-3009, at
*42-43 (S.D. Tex. Dec. 27, 2013), the Honorable Brian M. Cogan in Roman Catholic
Archdiocese of New York v. Sebelius, No. 12-cv-2542, 2013 WL 6579764 (E.D.N.Y. Dec. 16,
2013) and the Honorable Arthur J. Schwab in Zubik v. Sebelius, No. 13-cv-01459 (W.D. Pa.
Nov. 21, 2013).
Requiring the head of a religious organization to sign a putatively correct statement of
religious belief, which the Government has defined to authorize a third party to take an action
that is contrary to those religious beliefs, imposes a substantial burden on the free exercise of
religion. That conclusion is not changed by the Government’s argument that, at present, it does
not have the power to compel the third party to act. The court finds that Plaintiffs have
demonstrated that they have standing and have met their burden for issuance of a permanent
injunction.
Sebelius, No. 13-cv- (D.D.C. Dec. 20, 2013) (enjoining mandate on “compelled silence” argument; but otherwise denying injunctive relief), emergency motion for expedited briefing for injunction filed Dec. 23 2013, No. 13-5371 (D.C. Cir.); Reaching Souls Int’l v. Sebelius, No. 13cv-01092 (W.D. Okla. Dec. 20, 2013); Reaching Souls Int’l, Inc. v. Sebelius, No. 5:13-cv-1092 (W.D. Ok. Dec. 20, 2013); Roman Catholic Archdiocese of New York v. Sebelius, No. 12-cv2542, 2013 WL 6579764 (E.D.N.Y. Dec. 16, 2013) (holding that the accommodation violates RFRA and enjoining the mandate); Persico v. Sebelius, No. 13-cv-00303 (W.D. Pa. Nov. 21, 2013); Zubik v. Sebelius, No. 13-cv-01459 (W.D. Pa. Nov. 21, 2013). 2 See, e.g., Catholic Diocese of Nashville v. Sebelius, No. 3:13-cv-1303 (M.D. Tenn. Dec. 26, 2013); University of Notre Dame v.Sebelius, No. 13-cv-01276 (N.D. Ind. Dec. 20. 2013), emergency motion for injunction filed Dec. 23, 2013, No 13-3853 (7th Cir.); Priests for Life v. U.S. Dep’t of Health & Human Servs., No. 13-cv-1261, 2013 WL 6672400 (D.D.C. Dec. 19, 2013) (holding that the accommodation does not create a RFRA substantial burden), emergency motion for injunction filed Dec. 20, 2013, No. 13- 5368 (D.C. Cir.).
2

I. Background Plaintiffs filed suit on December 10, 2013. Because of the January 1, 2014 deadline the court ordered early consultation by counsel on the issues. With input from counsel at the management conference, the court entered an expedited briefing schedule and set a hearing for December 30, 2013. Defendants moved for dismissal or in the alternative, for summary judgment. The Government filed the administrative record, and the court has reviewed those portions designated by counsel in the pleadings and papers on file. The parties have also filed “Parties Stipulated Preliminary Findings.” [Doc. # 26]. At the hearing Plaintiffs presented witnesses, live and by deposition, and the court heard argument of counsel. The parties agreed that the record had been fully developed and only questions of law existed. The parties also agreed at the hearing that they did not object to the court consolidating that hearing with a trial on the merits, and making a final determination as to matters raised by Defendants’ motion to dismiss or alternatively for summary judgment and Plaintiffs’ request for an injunction based on the record before the court. [Transcript of Hearing on December 30, 2013 (Tr.) pp. 75-77].3 See Fed. R. Civ. P. 65(a)(2). The court did not scour the administrative record in a search for facts that support either party, but it has considered the portions that have been specifically referenced by the parties in their motions and briefing. Doddy v. Oxy USA, Inc., 101 F.3d 448, 463 (5th Cir. 1996) (citations omitted). The Government argues that the court should limit its review of the facts to the administrative record, and presumably the stipulated facts. Since Plaintiffs are alleging interference with important constitutional rights, the court will consider the evidence presented
3 A final, certified transcript has not been prepared, so the page numbers in this Memorandum Order are those of a rough transcript. They may differ from those of any final transcript that is prepared.
3

by Plaintiffs. See McNary v. Haitian Refugee Ctr., 498 U.S. 479, 493-94, 111 S. Ct. 888, 896-97 (1991).
The facts pertinent to this case are virtually uncontroverted, and very similar to the facts in all of the other opinions the court has seen so far. To save space the court will adopt the Parties Stipulated Preliminary Findings [Doc # 26] as findings of fact of the court. The court also finds that the statements concerning the religious beliefs of Catholics (including Plaintiffs) the teachings of the Catholic Church, and the role that Plaintiff Catholic Charities plays in the ministry of Plaintiff Roman Catholic Diocese of Beaumont, set out in the “Declaration of Bishop Curtis J Guillory, S.V.D., D.D.” [Doc # 3-1] factually set out the sincere religious beliefs of Plaintiffs and their respective members. [Bishop Guillory, Tr. p. 4]. The court sustains the Government’s objection to those statements that express Bishop Guillory’s opinions as to the legal effect of, or proper legal interpretation of, the regulations and statutes in question, at paragraphs 15, 17, 19, 21, and the first sentence of 22, and will not consider those as facts.
A. Findings of Fact as to Plaintiffs’ Sincere Religious Beliefs In summary, Plaintiffs are both entities affiliated with the Roman Catholic Church. In
their complaint and motion for preliminary injunction, they allege that the contraceptive mandate forces them to choose between violating central elements of their religious faith and paying substantial financial penalties. For nearly two thousand years the Catholic Church “has taught that life is sacred from conception to death and any – whether it’s medicine or instruments that would prevent life, we consider morally wrong.” [Bishop Guillory, Tr. pp. 5-6].
The Church also teaches that material cooperation with evil is also morally wrong. “Material cooperation with evil is like in this particular case, for instance, we for instance as copayers with the insurance would be cooperating in what we think is morally wrong. In other
4

words, it's cooperating in -- into something that we consider evil, or morally evil; and we are a part of that. We are a participant in that action or that program. And that's what we call material cooperation.” [Bishop Guillory, Tr. p. 9]. Defendants do not challenge that Plaintiffs have a sincerely held religious belief that all forms of contraceptives and abortifacients are morally wrong.
B. Findings of Fact as to Catholic Diocese of Beaumont The Catholic Diocese of Beaumont (“Diocese”) is a non-profit organization that
encompasses forty-four parishes and seven missions located in the greater Beaumont area. The Diocese employs over 950 people, approximately 370 of whom are currently eligible for health plan benefits offered through the Diocese. The Diocese carries out a tripartite mission of spiritual, educational, and social service. Its spiritual ministry is carried out through its parishes. Its educational ministry is conducted through its schools and religious education programs. The Diocese operates three parish schools and two diocesan schools which serve approximately 1,088 students.
Consistent with Church teachings on social justice, the Diocese provides a self-insured health plan to employees working at least thirty hours per week. The plan is offered through the Christian Brothers Employee Benefit Trust. Consistent with Catholic teaching, the Trust health plan does not cover abortifacients, sterilization, or contraception.4 Dropping coverage for Catholic Charities so the Bishop would not have to sign the self-certification form would violate the sincerely held religious belief that employee health care is a right, and should be provided.
4 Though generally not covered by the Trust plan, contraceptives may be covered when provided for medically necessary, non-contraceptive purposes that have been approved by the Trust.
5

C. Findings of Fact as to Catholic Charities of Southeast Texas, Inc. Catholic Charities of Southeast Texas, Inc. (“Catholic Charities”) is a faith-driven non-
profit that provides services to approximately 6,000 individuals annually. Catholic Charities has ten full-time and seven part-time employees who are offered health insurance through the Diocese.
Catholic Charities participates in the Catholic charitable mission of aiding those in need, including feeding the poor, helping immigrants, and providing counseling. [Bishop Guillory, Tr. p. 11]. Bishop Guillory has the primary responsibility for determining whether programs administered by Catholic Charities comport with Catholic teachings and principles, and as such, it is an entity of the Catholic Diocese of Beaumont. [Bishop Guillory, Tr. pp. 11-12]. The Diocese contributes almost a third of the budget of Catholic Charities. The self-certification form at issue in this dispute would have to be signed either by Bishop Guillory or by another person with his approval. [Bishop Guillory, Tr. p. 22]. If the form were not prepared or coverage for Catholic Charities were dropped, the resulting fines would impose a heavy financial burden on Plaintiffs. [Bishop Guillory, Tr. p. 20]; [Sherlock, Tr. pp. 33-34].
D. The Statutory and Regulatory History The now familiar statutory and regulatory history is outlined in the “Parties Stipulated
Preliminary Findings” and is set out in detail in E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv3009, (S.D. Tex. Dec. 27, 2013), Roman Catholic Archdiocese of New York v. Sebelius, No. 12cv-2542, (E.D.N.Y. Dec. 16, 2013), and Zubik v. Sebelius, No. 13-cv-01459 (Pa. Nov. 21, 2013). In brief, Congress enacted the Patient Protection and Affordable Care Act (ACA) as well as the Health Care and Education Reconciliation Act in March 2010. This was followed by more than three years of rule making.
6

The ACA requires that group health insurance plans cover certain preventative medical services without cost-sharing, such as a copayment or a deductible. Pursuant to regulations subsequently issued, the preventative services that must be covered include contraception, sterilization, and related counseling (the “Mandate”). There was a good deal of concern over the impact of the law and regulations on the religious beliefs and practices of various faith groups and several proposals for some kind of religious exemption were published and amended. Some 600,000 comments were received during the process.
The Final Rules purport to accommodate religious objections to the Mandate in two ways. First, the Final Rules revised the definition of “religious employers,” who are entirely exempt from the Mandate. The Final Rules define “religious employer” as a non-profit referred to in § 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code, which in turn refers to churches, their integrated auxiliaries, associations of churches, and the exclusively religious activities of religious orders. 78 Fed. Reg. at 39,874. The Diocese meets this definition and is thus exempt from the contraceptive mandate. Catholic Charities is not exempt. This is true even though Catholic Charities participates in the Diocese’s health plan, because non-exempt entities cannot avail themselves of the religious employer exemption unless they “independently meet the definition of religious employer.” Id. at 39,886.
The Final Rules provide for an “accommodation” for “eligible organizations” that do not meet the definition of “religious employer.” An “eligible organization” is one that satisfies the following criteria:
(1) The organization opposes providing coverage for some or all of any contraceptive services required to be covered under § 147.130(a)(1)(iv) on account of religious objections.
(2) The organization is organized and operates as a nonprofit entity.
7

(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). There is no dispute that Catholic Charities would qualify for this accommodation if the self-certification form is signed. The Final Rules state that an eligible organization is not required to “contract, arrange, pay, or refer for contraceptive coverage” as to which it has religious objections. 78 Fed. Reg. at 39,874. Instead, the eligible organization must complete a self-certification form stating that it is an eligible organization, and provide a copy of that form to its issuer or, where an eligible organization self-insures, as do all plaintiffs here, to their TPA. The TPA is then required to provide or arrange for payments for contraceptive services, a requirement imposed through the Department of Labor’s ERISA enforcement authority. See id. at 39,879-39,880. The self-certification “will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” Id. at 39,879. The TPA is required to provide these services “without cost sharing premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan.” Id. at 39,879-80. The TPA may seek reimbursement for such payments through adjustments to its Federally-Facilitated Exchange (“FFE”) user fees. Id. at 39,882.
8

II. Legal Standard for Injunctions “It is well-established that the party seeking a permanent injunction must demonstrate: ‘(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion.’” Abraham v. Alpha Chi Omega, 708 F.3d 614, 626-27 (5th Cir. 2013) (quoting eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 126 S. Ct. 1837, 1839 (2006)).
III. Analysis A. Article III Standing
Defendants have argued that Plaintiffs lack Article III standing, asserting that the government has no ability to enforce the contraceptive mandate because the health plan in question is a church plan not governed by ERISA. As discussed in detail by Judges Rosenthal and Cogan, the injury to the religious organizations relates to the submission of the selfcertification form, not to whether a TPA may or may not be penalized for not providing contraceptive coverage. E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv-3009, at *23 (S.D. Tex. Dec. 27, 2013). Indeed, the existence of a regulatory loophole cannot obviate Plaintiffs’ standing. Id. “This alleged spiritual complicity is independent of whether the scheme actually succeeds at providing contraceptive coverage.” Roman Catholic Archdiocese of N.Y. v. Sebelius, No. 1-12-cv-2542 (E.D.N.Y. Dec. 16, 2013).
9

Furthermore, the federal regulations governing Defendant Department of Labor, and those governing Defendant Department of the Treasury provide:
(iii) The eligible organization must not directly or indirectly, seek to interfere with a third party administrator’s arrangements to provide or arrange separate payments for contraceptive services for participants or beneficiaries, and must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrangement. Compare 26 C.F.R. §54.9815-2713A(b)(iii), relating to Department of Treasury, Internal Revenue Service, and the exact same language in 29 C.F.R. §2590.715-2713A(b)(iii), relating to Department of Labor. Mr. Sherlock, President of the Board of Plaintiff Catholic Charities, testified that he has already contacted insurers and plan providers to determine whether any would offer coverage if Plaintiffs did not provide a self-certification. [Mr. Sherlock, Tr. pp. 27-29]. What stronger way is there to influence a provider of goods and services than shopping your requirements to competitors? A rule that prevents plaintiffs from comparison shopping, and negotiating, for an acceptable policy on favorable terms is a burden. Plaintiffs’ injury is sufficient for the requirements of Article III standing. B. First Amendment- Free Exercise of Religion Prior to 1990, First Amendment jurisprudence relied on a compelling-interest test. See Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790 (1963). In 1990, the Supreme Court held that the “Free Exercise Clause of the First Amendment d[id] not prohibit governments from burdening religious practices through generally applicable laws.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424, 126 S. Ct. 1211, 1216 (2006) (describing Emp’t Div., Dep’t of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990)). In Smith, the Supreme Court also held that “the
10

Constitution does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws.” Gonzales, 546 U.S. at 424, 126 S. Ct. at 1216 (citing Smith, 494 U.S. at 883-90, 110 S. Ct. at 1602-06).
In response to Smith, Congress sought to restore the compelling-interest test by the passages of the Religious Freedom Restoration Act of 1993 (“RFRA”) in 1993. 42 U.S.C. § 2000bb, et seq. “[T]he Federal Government may not, as a statutory matter, substantially burden a person’s exercise of religion, ‘even if the burden results from a rule of general applicability’ unless the government can satisfy the compelling-interest test.” O Centro, 546 U.S. at 424, 126 S. Ct. at 1216 (quoting § 2000bb-1(a)).
The threshold inquiry under RFRA is whether the Government’s regulation substantially burdens the exercise of a sincerely held religious belief. See Diaz v. Collins, 114 F.3d 69, 71 (5th Cir. 1997). Defendants do not dispute Plaintiffs have a sincerely held religious belief that contraception and abortion is morally wrong; therefore, the only question that remains in this inquiry is whether the ACA substantially burdens that belief. If the court finds a substantial burden, the Government must then show that the burden “is in furtherance of a compelling governmental interest” and that it “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b).
1. Substantial Burden As ably discussed at length by Judge Rosenthal, Fifth Circuit case law uses a subjective standard for determining the presence of a substantial burden. So long as Plaintiffs are compelled or pressured by punitive fines to act or refrain from action, and that action or inaction is religiously offensive to them, a substantial burden exists. See E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv-3009, at *26-40 (S.D. Tex. Dec. 27, 2013).
11

RFRA does not expressly define “substantial burden.” See Hicks v. Garner, 69 F.3d 22, 26 n. 22 (5th Cir. 1995). The analysis of substantial burdens under RFRA is based on the pre-
Smith cases Yoder and Sherbert. In Yoder, the plaintiffs were Old Order Amish and Conservative Amish Mennonites who
refused to enroll their fourteen- and fifteen-year-old children in public or private school, in
violation of Wisconsin’s compulsory education requirements, arguing that school attendance
endangered the children’s salvation. Yoder, 406 U.S. at 207-209, 92 S. Ct. at 1529-30. The Supreme Court in Yoder held that the
impact of the compulsory-attendance law on respondents’ practice of the Amish religion [wa]s not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. . . . [The compulsory-attendance law] carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent. . . . [It] carries with it a very real threat of undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region.
Yoder, 406 U.S. at 218, 92 S. Ct. at 1534-35. In Sherbert, the plaintiff was a Seventh-Day Adventist who refused to work on her
Sabbath, Saturday, and was denied unemployment benefits because of that. Sherbert, 374 U.S. at 399-401, 83 S. Ct. at 1791-92. The Supreme Court held that
not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.
12

Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship. Sherbert, 374 U.S. at 404, 83 S. Ct. at 1794. “Under RFRA, a ‘substantial burden’ is imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by threat of civil or criminal sanctions (Yoder).” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1069, 1069-70 (9th Cir. 2008) (en banc). The Fifth Circuit has explained government action substantially burdens a religious belief when it “truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs,” in the RLUIPA context. Moussazadeh v. Tex. Dept. of Criminal Justice, 703 F.3d 781, 793 (quoting Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004)). Even indirect compulsion that infringes upon free exercise can be substantial. See Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718, 101 S. Ct. 1425, 1432 (1981). Defendants have argued that any burden the ACA places on Plaintiffs is de minimis. Plaintiffs aver that it is not. District courts are split on this matter, with authority supporting both positions. Compare University of Notre Dame v.Sebelius, No. 13-cv-01276 (N.D. Ind. Dec. 20. 2013) (holding de minimus burden) with E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv-3009 (S.D. Tex. Dec. 27, 2013) (finding substantial burden exists). So just what is being required of the Bishop in this case? According to the Government he need only sign EBSA Form 700, which contains a true statement of his, and the Church’s, objection to contraceptive services. But, the regulations provide that “the self-certification will be treated as a designation of the third party administrator(s) as plan administrator and claims
13

administrator for contraceptive benefits . . . .” 78 FR 39879 (emphasis added). The rule drafters have chosen to be their own lexicographers, and the Government is bound by that choice. Like Humpty Dumpty, politicians may ascribe varied nuances of meaning and intent to their statements.5 Judicial interpretation of federal regulations requires a more consistent, plain meaning approach. See U.S. v. Woods, ___ U.S. ___, 134 S. Ct. 557, 566-67 (2013).
The Government responds: “we have no power to actually compel the third party administrator provide the coverage so there is no burden.” If the IRS and the Department of Labor are truly helpless hothouse flowers in this dispute, then why did the Government not accept this court’s invitation to agree to a limited extension of Plaintiffs’ deadlines to avoid the necessity of preparing for, and presenting, this case during a holiday season. See Doc # 5, p. 2, par. 3. Based on their docket sheets, there were, at the same time, cases around the country requiring the immediate attention of counsel for the Government, Mr. Humphries. See also Archdiocese of New York, p 11-12 (belated assertion of powerlessness argument), East Tex. Baptist University, p. 24, n.4 (why must form be signed now if it is meaningless?)
More importantly, given the history behind the adoption the First Amendment, can the court accept either the Government’s de minimus argument or its assertion of powerlessness? Nobody would argue today that requiring any person of faith to sign a Test Act oath would be a de minimus burden on the exercise of religious beliefs.6 Would the result be different if such an
5 “When I use a word” said Humpty Dumpty, in rather a scornful tone “it means just what I choose it to mean-neither more nor less.” Lewis Carroll, Through the Looking-Glass, 1872. 6 See An Act for Preventing Dangers Which May Happen from Popish Recusants, 1672, 25 Car. II, c. 2, § 7 (Eng.) (commonly referred to as the Test Act of 1673) (averment of disbelief in transubstantiation); N.C. Const. of 1776, art. XXXII (“That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of
14

oath was worded to comport with the signer’s personal belief, but another statute or regulation provided that it would be “treated as” the opposite? After all, once the oath is signed the Government would have no way of knowing what the person truly believed.
Submitting the self-certification affidavit is not simply espousing a belief that Plaintiffs hold. It is defined as an authorization for the TPA to provide coverage. It enables the exact harm that Plaintiffs seek to avoid, harm that Plaintiffs find religiously forbidden. If Plaintiffs choose to follow the course they believe their faith dictates, they face fines that all parties agree are onerous. The Diocese could dump Catholic Charities from its health plan, but this runs afoul of Church teachings on social justice and the rights of employees. This “Hobson’s Choice” is a quintessential “substantial burden” on the free exercise of religious belief, prohibited by RFRA.
2. Compelling Interest The RFRA states that “Government may substantially burden a person’s exercise of
religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000bb–1(b). “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.” O Centro, 546 U.S. at 431-32.
Defendants propose two compelling interests: the promotion of public health and provision of equal access for women to healthcare. As stated by Judge Cogan, the Government’s position that Christian Brothers could not be “required” or “mandated” to provide coverage for contraceptive services “fatally undermines any claim that imposing the Mandate on these
the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.”)
15

plaintiffs serves a compelling governmental interest. Roman Catholic Archdiocese of New York v. Sebelius, No. 12-cv-2542, at *33 (E.D.N.Y. Dec. 16, 2013).
On the other hand, if the objectives are simply assumed to be compelling, Defendants have failed to establish that this is the least restrictive means to achieve them. Indeed, several other district court opinions have provided a myriad of less restrictive alternatives. See E. Tex. Baptist Univ. v. Sebelius, No. 4-12-cv-3009, at *42-43 (S.D. Tex. Dec. 27, 2013) (discussing various less restrictive alternatives proposed by other courts). Defendants therefore fail to meet their burden.
C. The APA Plaintiffs pled claims under the Administrative Procedures Act (APA). Plaintiff’s
proposed conclusions of law make no mention of the APA, and at the hearing, which Plaintiffs agreed could be consolidated with the trial, the issue was not raised. The Government’s proposed conclusions of law included the somewhat circular analysis: “The regulations do not violate the Administrative Procedure Act because the regulations are in accordance with federal law.” Nobody has asserted that the rulemaking process, or the procedures used for adopting the contested regulation violated the law, but the court has found that the regulations themselves violate Plaintiff’s rights. That conclusion does not depend on an analysis of the APA. To make clear that the court is entering a final judgment, Plaintiff’s APA claim is dismissed.
IV. Conclusion Plaintiffs are entitled to a permanent injunction. To re- state the Order signed on December 31, 2013 [Doc. # 32], the Government is enjoined from applying or enforcing the regulations that require the Plaintiffs, their health plans, TPAs, or issuers, to provide or execute the self-certification forms that enable or require the TPA or issuer to provide health insurance
16

coverage for Plaintiff’s employees for FDA-approved contraceptives, emergency contraceptives, products, or services under the requirements imposed in 42 U.S.C. § 300gg-13(a)(4), Pub. L. 11148, § 1563(e)-(f), as well as the application of the penalties found in 26 U.S.C. §§ 4980D & 4980H, and 29 U.S.C. § 1132.”
IT IS FURTHER ORDERED that all currently pending motions are DENIED as MOOT. A final judgment consistent with the Memorandum and Order shall be forthcoming.
So ORDERED and SIGNED this 2 day of January, 2014. ___________________________________ Ron Clark, United States District Judge
17

 
 Case 1:13-cv-00709-RC Document 34 Filed 01/03/14 Page 1 of 3 PageID #: 1044

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION

CATHOLIC DIOCESE OF BEAUMONT §

AND CATHOLIC CHARITIES OF

§

SOUTHEAST TEXAS, INC.

§

§

Plaintiffs,

§

§ CIVIL ACTION No. 1:13-cv-709

v.

§

§ JUDGE RON CLARK

KATHLEEN SEBELIUS, SECRETARY, §

U.S. DEPT. OF HEALTH AND HUMAN §

SERVICES, ET AL.

§

§

Defendants.

§

FINAL JUDGMENT AND ORDER OF INJUNCTION

The court’s Memorandum and Order [Doc. # 33] stating the reasons for issuance of an

injunction in this matter is incorporated herein. In compliance with Rule 65 the court enters this

Final Judgment and Order of Injunction to specifically state the terms of the injunction and

describe the acts restrained. It is hereby ORDERED that Defendant Secretary of the United

States Department of Health and Human Services Kathleen Sebelius, Defendant Secretary of the

United States Department of Labor Thomas Perez, and Defendant Secretary of the United States

Department of Treasury Jacob Lew, and all agents, officers, servants, employees, and attorneys

of each of their respective Departments, are PERMANENTLY ENJOINED from:

1. enforcing against Plaintiff Catholic Diocese of Beaumont, or Plaintiff Catholic Charities of

Southeast Texas, Inc., or against either of their employee health plan insurers, health plan

providers, or health plan third party administrators in the provision to either Plaintiff of health

insurance, health plan coverage, or health plan services or administration, any requirement to

provide any contraceptive services or methods, sterilization procedures, abortifacient methods, or

patient education and counseling concerning such services, methods, or procedures, including

Case 1:13-cv-00709-RC Document 34 Filed 01/03/14 Page 2 of 3 PageID #: 1045
any such contraceptive services or methods, sterilization procedures, abortifacient methods, or patient education and counseling concerning such services, methods or procedures “supported by the Health Resources and Services Administration” as provided for in 42 U.S.C. §300gg-13(a)(4) or in any implementing regulation including 26 C.F.R. §54.9815-2713(a)(1)(iv), 29 C.F.R. §2590.715-2713A(a)(4), and 45 C.F.R. §147.130(a)(1)(iv); 2. enforcing against Plaintiffs Catholic Diocese of Beaumont, or Plaintiff Catholic Charities of Southeast Texas, Inc., any requirement to sign or provide, or against either of their employee health plan insurers, health plan providers, or health plan third party administrators in the provision to either Plaintiff of health insurance, health plan coverage, or health plan services or administration, any requirement to request or require from either Plaintiff, EBSA Form 700Cerification or any self-certification form as described in 26 C.F.R. §54.9815-2713A(a)(4), 29 C.F.R. §2590.715-2713A(a)(4), and 45 C.F.R. S147.131(b)(4); 3. enforcing against Plaintiffs Catholic Diocese of Beaumont, or Plaintiff Catholic Charities of Southeast Texas, Inc., any prohibition on seeking to interfere with, or seeking to influence, one of its third party administrator’s arrangements or decisions concerning services, methods, procedures, education or counseling referred to in Section 1 of this Final Judgment and Order of Injunction or concerning contraceptive services as provided for in federal regulations including 26 C.F.R. §54.9815-2713A(b(1)9iii) and 29 C.F.R. §2590.715-2713A(b)(1)(iii); 4. imposing any tax or penalty on, or bringing any civil suit or enforcement action against, Plaintiff Catholic Diocese of Beaumont, or Plaintiff Catholic Charities of Southeast Texas, Inc., for failing to provide services, methods, or procedures, as described in Section 1 of this Final Judgment and Order of Injunction, or for failing to provide contraceptive services, or for failing to sign or provide a self-certification form as described in Section 2 of this Final Judgment and Order of Injunction, or for any alleged attempt to interfere with, or influence, any of its third
2

Case 1:13-cv-00709-RC Document 34 Filed 01/03/14 Page 3 of 3 PageID #: 1046 party administrator’s arrangements or decisions concerning contraceptive services or service, methods, procedures, education, or counseling referred to in Section 1 of this Final Judgment and Order of Injunction, including any tax, penalty, civil suit, or enforcement action authorized by 26 U.S.C. §§ 4980D & 4980H, 29 U.S.C. § 1132, or by any pertinent federal regulation; and from 5. imposing any tax or penalty on, or bringing any civil suit or enforcement action against, either of Plaintiff’s employee health plan insurers, health plan providers, or health plan third party administrators for any failure to request or require a self-certification, or any failure to provide to Plaintiffs or to Plaintiff’s employees any contraceptive services or methods, sterilization procedures, abortifacient methods, or patient education and counseling concerning such services or methods, which is not included in such plan with the agreement of Plaintiffs.
IT IS FURTHER ORDERED that all relief not specifically granted here is DENIED, and that all costs shall be borne by the party incurring the same. This is a Final Judgment disposing of the claims of all parties, and is appealable.
So ORDERED and SIGNED this 3 day of January, 2014.
___________________________________ Ron Clark, United States District Judge
3

 
 U.S. v. Chabot, 793 F.3d 338 (2015) 116 A.F.T.R.2d 2015-5270, 2015-2 USTC P 50,388
KeyCite Yellow Flag - Negative Treatment Declined to Extend by United States v. Apple MacPro Computer, 3rd Cir.(Pa.), March 20, 2017

Amendment privilege and the required records exception to the facts. U.S.C.A. Const.Amend. 5.
2 Cases that cite this headnote

Synopsis Background: Government filed petition to enforce summonses for foreign bank account records that the Bank Secrecy Act required foreign bank account owners to keep. The United States District Court for the District of New Jersey, Freda L. Wolfson, J., 2014 WL 4979735, granted petition. Account owners appealed.
[Holding:] As matter of first impression, the Court of Appeals, Restani, J., sitting by designation, held that requested records fell within required records exception to Fifth Amendment privilege against compelled self-incrimination.
Affirmed.
West Headnotes (13)
[1] Federal Courts Criminal Justice
Witnesses Determination of right to privilege
Whether enforcement of a summons violates the Fifth Amendment privilege against compelled self-incrimination is a mixed question of law and fact; Court of Appeals reviews de novo the

[2]

Witnesses

Self-Incrimination

An individual may claim the Fifth Amendment privilege against compelled self-incrimination if compelled to produce self-incriminating, testimonial communications. U.S.C.A. Const.Amend. 5.

Cases that cite this headnote

[3]

Witnesses

Privilege as to production of documents

The act of producing documents may trigger the Fifth Amendment privilege against self-incrimination because, by producing documents, one acknowledges that the documents exist, admits that the documents are

documents are those that the subpoena requests;

production are self-incriminating, the Fifth Amendment privilege applies. U.S.C.A. Const.Amend. 5.

1 Cases that cite this headnote

[4]

Witnesses

Privilege as to production of documents

Because the required records exception to the Fifth Amendment privilege against compelled self-incrimination is exclusively applicable to valid, regulatory recordkeeping schemes, the

1

U.S. v. Chabot, 793 F.3d 338 (2015) 116 A.F.T.R.2d 2015-5270, 2015-2 USTC P 50,388
government cannot simply create a recordkeeping requirement in order to prosecute crimes, such as a willful failure to report offense. U.S.C.A. Const.Amend. 5.
Cases that cite this headnote
[5] Witnesses Privilege as to production of documents
Courts use prong one of the required records exception to the Fifth Amendment privilege against compelled self-incrimination, which requires the reporting or recordkeeping scheme to have an essentially regulatory purpose, to evaluate whether compliance with a recordkeeping scheme is likely to lead to criminal charges as a general matter; if the
turn over potentially incriminating evidence to be used in criminal prosecutions, the scheme is not essentially regulatory. U.S.C.A. Const.Amend. 5.
Cases that cite this headnote
[6] Witnesses Privilege as to production of documents
The following three-part test is used to determine when the required records exception should be applied to the Fifth Amendment privilege against compelled self-incrimination:
must be essentially regulatory; second, information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and third, the records themselves must have assumed public aspects which render them at least analogous to public documents. U.S.C.A. Const.Amend. 5.
1 Cases that cite this headnote

[7]

Witnesses

Privilege as to production of documents

The first prong of the required records exception to the Fifth Amendment privilege against compelled self-incrimination asks whether a recordkeeping scheme targets an inherently criminal activity and/or an inherently suspicious class of persons. U.S.C.A. Const.Amend. 5.

Cases that cite this headnote

[8]

Witnesses

Privilege as to production of documents

taxpayers using foreign bank accounts to keep and maintain banking information for government inspection, was essentially regulatory in nature, supporting application of required records exception to bring records requested pursuant to the regulation outside the scope of the Fifth Amendment privilege against compelled self-incrimination; regulation did not apply exclusively to those engaged in criminal activity, and important objective of regulation was to monitor and facilitate compliance with currency regulation and tax laws. U.S.C.A. Const.Amend. 5; 31 C.F.R. § 1010.420.
1 Cases that cite this headnote

[9]

Witnesses

Privilege as to production of documents

Where a recordkeeping scheme exclusively targets those who engage in illegal activities, its purpose is essentially criminal and does not fall within the required records exception to the Fifth Amendment privilege against compelled self-incrimination. U.S.C.A. Const.Amend. 5.

Cases that cite this headnote

2

U.S. v. Chabot, 793 F.3d 338 (2015) 116 A.F.T.R.2d 2015-5270, 2015-2 USTC P 50,388
[10] Witnesses Privilege as to production of documents
supporting application of required records exception to Fifth Amendment privilege against compelled self-incrimination, if they would typically be kept in connection with the regulated activity. U.S.C.A. Const.Amend. 5.
1 Cases that cite this headnote
[11] Witnesses Privilege as to production of documents
regulation required taxpayers using foreign bank accounts to keep and maintain for government inspection was customarily kept by foreign bank account owners, supporting application of required records exception to bring records requested pursuant to the regulation outside the scope of the Fifth Amendment privilege against compelled self-incrimination; reasonable account owners would retain the name, number, and type of accounts, the name and address of bank where account was held, and account balances to readily access their foreign accounts, and although regulation required account owners to retain information for five years, that length of time seemed appropriate for taxation and similar purposes. U.S.C.A. Const.Amend. 5; 31 C.F.R. § 1010.420.
1 Cases that cite this headnote
[12] Witnesses Privilege as to production of documents
regulation required taxpayers using foreign bank accounts to keep and maintain for government inspection had public aspects, supporting application of required records exception to bring records requested pursuant to the regulation outside the scope of the Fifth

Amendment privilege against compelled self-incrimination; regulation was valid, civil regulatory scheme, account owners voluntarily participated in foreign banking, government circulated banking information to several government agencies for use related to noncriminal purposes, and although foreign banking did not require a license, private activities that do not require a license may still be subject to the required records exception. U.S.C.A. Const.Amend. 5; 31 C.F.R. § 1010.420.
Cases that cite this headnote
[13] Witnesses Waiver of Privilege
When accountholders voluntarily engage in foreign banking, they effectively waive their Fifth Amendment privilege against compelled selfcompelled disclosure of their account records. U.S.C.A. Const.Amend. 5; 31 C.F.R. § 1010.420.
Cases that cite this headnote
Attorneys and Law Firms *340 Vivek Chandrasekhar, Esq., Richard A. Levine, Esq., (Argued), Roberts & Holland, LLP, New York, NY, Counsel for Appellants. Robert J. Branman, I, Esq.,(Argued), Robert W. Metzler, Esq., United States Department of Justice, Washington, DC, Counsel for Appellee. Before: AMBRO and COWEN, Circuit Judges, and RESTANI,* Judge.
3

U.S. v. Chabot, 793 F.3d 338 (2015) 116 A.F.T.R.2d 2015-5270, 2015-2 USTC P 50,388
*341 OPINION OF THE COURT
RESTANI, Judge.

exception applied and thus the Fifth Amendment did not prohibit production of the documents sought. The District Court therefore granted the petition to enforce the summonses.

petition to enforce summonses for foreign bank account records that 31 C.F.R. § 1010.420 requires the Chabots to keep. Today we join six other circuits in holding that these records fall within the required records exception to the Fifth Amendment privilege. Accordingly, we will
I. Background
In April 2010, the IRS received information from French authorities concerning United States persons1 with undisclosed bank accounts at HSBC Bank. The IRS alleges that it has information regarding accounts held by
2007. According to the information provided to the IRS, Eli Chabot is the beneficial owner of Pelsa.
On June 20, 2012, the IRS issued summonses to Eli and Renee Chabot requesting that they appear on July 13, 2012, to give testimony and produce documents about their foreign bank accounts for the period from January 1, 2006, to December 31, 2009.2 notified the IRS that the Chabots would not appear, were asserting their Fifth Amendment privilege against self-incrimination, and would not produce the requested documents. The IRS amended the two summonses on November 16, 2012, limiting their scope to only those documents required to be maintained under 31 C.F.R. § 1010.420. The Chabots continued to claim the Fifth Amendment privilege, and the IRS filed a petition to enforce the amended summonses on May 14, 2014.
Before the District Court, the Chabots claimed that, although the contents of the records sought might not be protected by the Fifth Amendment, their act of producing the documents was protected. The Chabots specifically claimed that responding to the summonses might subject them to prosecution for their failure to file the same information in an annual Report of Foreign Bank and Financial Accounts. The Chabots also claimed that any exception to the Fifth Amendment privilege based on the required records exception should not apply in this case. The District Court held that the required records

II. Jurisdiction and Standard of Review
[1] The District Court had jurisdiction pursuant to 26 U.S.C. § 7402(b) and 26 U.S.C. § 7604(a) (2012). We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Whether enforcement of a summons violates the Fifth Amendment privilege is a mixed question of law and fact. United States v. Ins. Consultants of Knox, Inc., 187 F.3d 755, 759 (7th Cir.1999). Here, the question before us is purely one of law, *342 and we review de novo the
privilege and the required records exception to the present facts. In re Grand Jury Proceedings, 707 F.3d 1262, 1266 n. 4 (11th Cir.2013).
III. Discussion
follows: (1) allowing the government to rely on the required records exception to enforce the summonses in this case will lead to general governmental abrogation of
crime; (2) the information that would be gleaned from compliance with the summonses is almost identical to what the government needs to charge the Chabots with the felony of willful failure to report an overseas account in the Report of Foreign Bank and Financial Accounts, thus requiring the Chabots to incriminate themselves; and (3) the records that 31 C.F.R. § 1010.420 requires accountholders to keep do not satisfy the three-pronged test for applying the required records exception to the
records fall within the required records exception to the Fifth Amendment privilege. Therefore, the questions
fall within the required records exception to the Fifth
policy concerns are insurmountable barriers to our application of this exception. Unpersuaded by the
4

U.S. v. Chabot, 793 F.3d 338 (2015) 116 A.F.T.R.2d 2015-5270, 2015-2 USTC P 50,388
overriding effect of the stated concerns, we conclude that required records exception to the Fifth Amendment

A. The Development of the Required Records Exception to the Fifth Amendment Privilege
[2] [3]
shall be compelled in any criminal case to be a witness

may claim this privilege if compelled to produce self-
Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). The act of producing documents may trigger the Fifth Amendment privilege.
See id. at 410, 96 S.Ct. 1569. This is because, by producing documents, one acknowledges that the

custody, and concedes that the documents are those that the subpoena requests. Id. aspects of compelled production are self-incriminating,

the Fifth Amendment privilege applies. See 410 12, 96 S.Ct. 1569.

id. at

In Shapiro v. United States, the Supreme Court first articulated the required records exception to the Fifth

Amendment privilege. 335 U.S. 1, 32 33, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948); In re Grand Jury Subpoena Dated Feb. 2, 2012, 741 F.3d 339, 344 (2d Cir.2013)
Shapiro was decided, private

papers were entitled to Fifth Amendment protection based on their private status. See 335 U.S. at 33 34, 68 S.Ct. 1375. Public papers, however, did not have Fifth

Amendment protection. See id. at 5, 68 S.Ct. 1375. In Shapiro, the Supreme Court qualified this distinction when it held that the Fifth Amendment privilege did not apply to certain private papers that the law required a

person to keep. Id. at 33, 68 S.Ct. 1375. The Supreme

Court subsequently fleshed out

holding in

Grosso v. United States, wherein it explained that the

following three prongs must be met in order for records to

fall *343

exception: (1) the

reporting or recordkeeping scheme must have an

essentially regulatory purpose; (2) a person must

customarily keep the records that the scheme requires him

390 U.S. 62, 67 68, 88 S.Ct. 709, 19 L.Ed.2d 906

(1968).

Fisher, which found no Fifth Amendment privilege because the involved taxpayers were not the persons compelled to produce, appeared to shift the focus away from the private/public distinction in determining whether

compelled production of records violates the Fifth Amendment privilege.3 See 425 U.S. at 397, 400 01, 96 S.Ct. 1569. Despite this somewhat altered view of how the Fifth Amendment relates to the production of documents, courts have continued to rely on the required

records exception. See, e.g., Balt.

oc.

Servs. v. Bouknight, 493 U.S. 549, 555 56, 110 S.Ct. 900,

107 L.Ed.2d 992 (1990) (recognizing the principle behind

act-of-production privilege even though her compliance with a court order to produce her child would have aided in her prosecution); Doe, 741 F.3d at 342 43, 346 (applying the required records exception to the
-of-production privilege where his

records would have aided in criminal proceedings against him).

Courts have offered several reasons for continuing to apply the required records exception to the Fifth Amendment privilege, even though the threshold framework for applying the privilege to documents appears to have changed to a degree. The first is, engaging in an activity for which Congress conditions participation upon recordkeeping effectively waives the right to invoke the Fifth Amendment privilege to prevent compelled disclosure of such records. In re Two Grand Jury Subpoenae Duces Tecum Dated Aug. 21, 1985, 793 F.2d 69, 73 (2d Cir.1986). The next, and perhaps weaker,

recordId. And the last is,
continued application of the required records exception is

interest in using the records that it requires individuals to keep. See, e.g., Bouknight, 493 U.S. at 556, 110 S.Ct.

the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to
s public purposes unrelated to the In re Grand Jury
Proceedings, 707 F.3d at 1274 (citing In re Special Feb. 2011 1 Grand Jury Subpoena Dated Sept. 12, 2011, 691 F.3d 903, 908 09 (7th Cir.2012)). These reasons support application of the exception under either the private/public framework or the act-of-production framework. Thus, the required records exception has retained its vitality as an exception to the Fifth
5

U.S. v. Chabot, 793 F.3d 338 (2015) 116 A.F.T.R.2d 2015-5270, 2015-2 USTC P 50,388
Amendment privilege against self-incrimination. See Bouknight, 493 U.S. at 554 62, 110 S.Ct. 900.
s Ability to Use the Required Records Exception to Abrogate the Fifth Amendment Privilege The Chabots predict that inclusion of their account records in the required records *344 exception will encourage the government to make excessive use of the exception in order to abrogate the Fifth Amendment
also suggest that this would allow the government to abrogate the Fifth Amendment more generally by creating a host of record-retention or reporting requirements. Because there is significant overlap between this argument and the first prong of the required records
here.
[4] In Shapiro, the Supreme Court explained that there was little danger of Congress completely abrogating the Fifth Amendment privilege as long as the records that Congress required individuals to keep closely served the purpose of a valid, civil regulation. Shapiro, 335 U.S. at 32 33, 68 S.Ct. 1375. In that case, the Emergency Price Control
commodity prices during wartime that required vendors to keep records of their sales. Id. at 5 n. 3, 32 33, 68 S.Ct. 1375. Because these sale records closely served the
that in
total abrogation of the Fifth Amendment privilege for any and all crimes. See id. at 4 5, 32 33, 68 S.Ct. 1375. In
exclusive application to valid, regulatory recordkeeping schemes, the government cannot simply create a recordkeeping requirement in order to prosecute crimes, such as a willful failure to report offense. See In re Grand Jury Investigation M.H., 648 F.3d 1067, 1075,
In the present case, the government conditions voluntary participation in foreign banking on maintaining records and reporting information regarding foreign bank accounts. See id. at 1078. As explained in greater detail regarding the first prong of the Grosso test, the recordkeeping requirement is part of a valid, essentially regulatory scheme. These records serve legitimate

noncriminal purposes, because government agencies use this data for tax collection, development of monetary policy, and conducting intelligence activities. See United States v. Under Seal, 737 F.3d 330, 335, 337 (4th Cir.2013) (listing the noncriminal purposes for which government agencies, including the Treasury Department, use account record data); In re Grand Jury Subpoena, 696 F.3d 428, 436 (5th Cir.2012) (employing similar reasoning). Therefore, it is unlikely that the government will be able to use the required records exception to abrogate the Fifth Amendment privilege for any and all
C. Compliance with the Summonses Will Result in Criminal Liability
summonses for their account records will provide a
government needs to prosecute them for willful failure to
Unfortunately for the Chabots, this argument echoes the familiar yet unsuccessful arguments of other holders of foreign bank accounts who have invoked the Fifth Amendment privilege to prevent compliance with summonses for required records. See, e.g., Doe, 741 F.3d at 342 43, 353 (rejecting same argument).
[5] Courts use prong one of the required records exception to evaluate whether compliance with a recordkeeping scheme is likely to lead to criminal charges as a general matter. Doe, 741 F.3d at 349; M.H., 648 F.3d at 1074 75. *345 individuals to turn over potentially incriminating evidence to be used in criminal prosecutions, the scheme is not essentially regulatory. See M.H., 648 F.3d at 1075 (concluding that § 1010.420 is essentially regulatory, in part, because the records that it requires accountholders to keep are not inherently incriminating and therefore not significant links in the chain of evidence necessary to bring criminal charges against accountholders). As discussed in further detail infra, production of the records that the IRS seeks is unlikely to lead to criminal proceedings as a general matter, because owning a bank account overseas is not an inherently criminal activity.
Id. at 1074.
To the extent that the Chabots argue that production of the requested account records will establish a significant link in the chain of evidence in their particular case, we are not persuaded that this precludes application of the required
6

U.S. v. Chabot, 793 F.3d 338 (2015) 116 A.F.T.R.2d 2015-5270, 2015-2 USTC P 50,388
records exception. The Fifth Amendment applies only if the compelled production is potentially self-incriminating. If producing the documents were not potentially incriminating, the Chabots would have no Fifth Amendment concerns. It is the potentially incriminating nature of production that allows the Chabots to invoke an otherwise valid Fifth Amendment privilege. It is this same potentially incriminating nature that makes the required
records. See Doe, argument appears to boil down to this: the exception to the Fifth Amendment is inapplicable if the Fifth Amendment otherwise would apply. Such an argument is nothing more than a request that the exception be abolished altogether a request we must reject.
D. Applying the Required Records Exception to Section 1010.420 [6] As indicated, in Grosso, the Supreme Court set forth the following three-part test for when the required records exception should be applied to the Fifth Amendment privilege:
[F]irst, the purposes of the United
regulatory; second, information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and third, the records themselves must have
render them at least analogous to public documents.
390 U.S. at 67 68, 88 S.Ct. 709. Although this is an issue of first impression for this Circuit, the Second, Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits previously have applied the required records exception to enforce summonses for the records that 31 C.F.R. § 1010.420 requires accountholders to keep.4 Today we join these circuits in applying the required records exception
. documents that must be maintained Doe, 741 F.3d at 344.

1. Essentially Regulatory Purpose
[7] [8] The Chabots contend that § 1010.420 is a recordkeeping scheme with an essentially criminal purpose. The first prong of the required records exception asks whether a recordkeeping scheme targets an inherently criminal activity and/or an inherently suspicious class of persons. *346 See Doe, 741 F.3d at 347 48; M.H., 648 F.3d at 1075 76. Therefore, we begin our inquiry by determining what and whom § 1010.420 targets. Section 1010.420 regulates foreign bank account ownership, an activity in which people participate for a myriad of legitimate and legal reasons. As the
gnized at oral argument, someone might own an overseas account to ensure convenient access to money when living, working, or even vacationing abroad. Oral Argument at 13:19, 13:48, United States v. Chabot, (No. 14 4465), available at http://www2.ca3.uscourts.gov/oralargument/audio/ 14 4465USAv.Chabot, etal.mp3.
In a similar vein, the class of persons who own foreign bank accounts is comprised of law-abiding citizens as well as miscreants. Doe, 741 F.3d at 350 51. On this point, we agree with the Fifth Cir
-keeping requirements do not apply exclusively to those engaged in criminal
In re Grand Jury Subpoena, 696 F.3d at 435.
[9] Where a recordkeeping scheme exclusively targets those who engage in illegal activities, its purpose is essentially criminal. For example, the Supreme Court held that the statutes at issue in Grosso and Marchetti v. United States were essentially criminal because the regulations at issue exclusively targeted individuals who were engaged in an inherently illegal activity, namely gambling. Grosso, 390 U.S. at 68, 88 S.Ct. 709;
Marchetti, 390 U.S. 39, 46 48, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). See also Leary v. United States, 395 U.S. 6, 18, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969)
provisions [of the Marihuana Tax Act] would have required petitioner unmistakably to identify himself as a
oup [of
Haynes v. United States, 390 U.S. 85, 96, 100, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968) (concluding that the registration requirement of the
Amendment privilege where the requirement mainly targeted individuals who possessed a firearm but had
7

U.S. v. Chabot, 793 F.3d 338 (2015) 116 A.F.T.R.2d 2015-5270, 2015-2 USTC P 50,388
therefore targeting an inherently suspicious class of persons). Conversely, because § 1010.420 does not apply exclusively, or even largely, to criminals, it does not operate simply as a dragnet for criminals by forcing them to maintain self-incriminating records. Instead, § 1010.420 is an essentially regulatory scheme. See also In re Grand Jury Proceedings, 707 F.3d at 1272 (concluding that § 1010.420 has an essentially regulatory purpose
p of individuals).
The Chabots contend that the Financial Crimes
The Chabots attempt to bolster their argument by highlighting the fact that the records that § 1010.420 requires accountholders to keep are also useful for potential criminal proceedings against these individuals.
records can be very important for ... a lot of things [that] you might w Argument at 27:29. Just because some of these things
purpose is essentially criminal. See, e.g., Under Seal, 737 F.3d at 334 36 (explaining that, despite how useful records maintained under § 1010.420 are to criminal prosecutions, *347 this utility does not negate §
As the government acknowledged at oral argument, one in passing the Bank Secrecy Act of
1970 was to reach accountholders who were avoiding U.S. criminal laws. Oral Argument at 27:19. Section 1010.420 was promulgated pursuant to this Act and therefore shares this goal. An equally important objective of both the Act and § 1010.420, however, is to monitor and facilitate compliance with currency regulation and tax laws. Id. at 27:20; see also Under Seal, 737 F.3d at 335 (noting that
regulatory, and counterterrorism purposes in addition to
our sister circuits that have addressed these arguments, we
essentially criminal scheme to be unpersuasive.5
2. Customarily Kept
[10] [11] The Chabots argue that holders of overseas accounts customarily would not keep the records that § 1010.420 requires them to maintain. Though the courts

the guideline from the Second Circuit that asks whether holders of foreign bank accounts as a general group are likely to keep the records that § 1010.420 requires them to keep, rather than only examining the practices of those individuals who engage in foreign banking solely to avoid U.S. laws. Doe, 741 F.3d at 350 51. As stated succinctly by the Ninth Circuit:
typically be kept in connection with the regulated
M.H., 648 F.3d at 1076. Therefore, we begin our inquiry by examining what records those who lawfully engage in foreign banking ordinarily would retain.
Section 1010.420 mandates that owners and beneficiaries of foreign accounts keep the following information accessible for five years: (1) the name on the account, (2) the account number, (3) the name and address of the bank or person with whom the account is maintained, (4) the account type, and (5) the maximum annual account value. 31 C.F.R. § 1010.420. Common sense tells us that this is all information that an accountholder needs in order to
access funds located abroad or at home. See M.H., 648 F.3d at 1076 (concluding that the records that § 1010.420 requires individuals to keep contain essential information for accountholders and beneficiaries). Because reasonable accountholders would retain this information in order to readily access their foreign accounts, we conclude that these are records that accountholders customarily would keep.6 Doe, 741 F.3d at 350; In re Grand Jury Subpoena, 696 F.3d at 435.
keeps records of the maximum annual values of his overseas accounts is unpersuasive. Maximum annual *348 account values are simply account balances, and account owners typically keep these numbers on record.
See Doe, 741 F.3d at 350; M.H., 648 F.3d at 1076.
The Chabots further argue that even if there are some accountholders who maintain the records that § 1010.420 requires them to keep, they do not retain these records for the five-year period that § 1010.420 mandates. The Chabots, however, misunderstand the inquiry that this prong of the required records exception entails. The
individuals typically would maintain the information that the law requires them to keep, not the length of time for which they normally would do so absent the requirement. The Chabots fail to cite any case in which the length of time for which someone usually kept a document affected
customarily kept, and we have been unable to identify any
8

U.S. v. Chabot, 793 F.3d 338 (2015) 116 A.F.T.R.2d 2015-5270, 2015-2 USTC P 50,388
such case. See, e.g., M.H., 648 F.3d at 1076 they would typically be kept in connection with the with an extraordinarily long time period, but rather one that seems appropriate for taxation and similar purposes. We therefore conclude that prong two is met.

3. Public Aspects
[12] The Chabots contend that their account records do not have public aspects because owning a foreign bank account is not a public activity. It is undeniable that an individual who holds an overseas account normally does not think of his account records as being equivalent to
have privacy protections elsewhere does not transform

M.H., 648 F.3d at 1078. We note that several circuits have reasoned that records required to be kept under a valid, civil regulatory scheme (i.e., meet prong one of the Grosso sufficient to meet the third prong. See, e.g., Doe, 741 F.3d
at 352; M.H., 648 F.3d at 1076 77. We need not adopt such a broad holding to conclude that the documents
the third prong of the Grosso test.
[13] As discussed earlier under the first prong of the Grosso test, § 1010.420 is a valid, civil regulatory scheme, and the Chabots voluntarily participated in the regulated activity, namely foreign banking. When accountholders such as the Chabots voluntarily engage in foreign banking, they effectively waive their Fifth Amendment privilege to

account records.7 *349 See M.H., 648 F.3d at 1078 (relying on this consent theory in concluding that the

prong of the Grosso test); In re Special Feb. 2011 1

Grand Jury Subpoena,

choice to engage in an activity that imposes

record-keeping requirements under a valid civil regulatory

scheme carries consequences, perhaps the most

significant of which ... is the possibility that those records

might have to be turned over upon demand,

notwi

cf.

Smith v. Richert, 35 F.3d 300, 303 (7th Cir.1994) (holding that production of certain documents necessary

to determine personal income tax liability were not within
become a taxpayer cannot be thought voluntary ... [as] [a]lmost anyone who works is a taxpayer, along with
from these records to several government agencies, which use this information for a number of important noncriminal purposes. See Under Seal, 737 F.3d at 335, 337 (concluding that the records kept pursuant to § 1010.420 possess public aspects given the Treasury Departme agencies for the purpose of implementing economic, monetary, and regulatory public policies); In re Grand Jury Subpoena, 696 F.3d at 436 (employing similar
account records acquire public aspects.
The Chabots contend that the absence of a licensing requirement for foreign banking necessarily means that their account records do not have public aspects. This argument, however, does nothing to advance the Chabo case, because private activities that do not require licenses still may be subject to the required records exception. See Under Seal, 737 F.3d at 337 (refusing to accept
records were not subject to the required records exception because banking is a private activity which does not require participants to obtain licenses); In re Grand Jury Proceedings, 707 F.3d at 1274 n. 8 (same); In re Grand Jury Subpoena, 696 F.3d at 435 36 (same). We conclude that the records sought in this case are sufficiently imbued
required records exception.8 Thus all three prongs are met.
IV. Conclusion
The Chabots have failed to raise valid policy or other reasons as to why their account records should not be included in the required records exception to the Fifth Amendment privilege. Because § 1010.420 is essentially regulatory, requires account owners to retain records that they customarily keep, and requires retention of records that have public aspects, we will affirm the District
All Citations
793 F.3d 338, 116 A.F.T.R.2d 2015-5270, 2015-2 USTC P 50,388
9

U.S. v. Chabot, 793 F.3d 338 (2015) 116 A.F.T.R.2d 2015-5270, 2015-2 USTC P 50,388

Footnotes

*

Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

1 business are United States persons.

. The parties do not dispute that the Chabots or their

2

The IRS had issued an earlier summons on March 12, 2012, requesting that the Chabots appear to testify. The

Chabots appeared on May 12, 2012, but asserted their Fifth Amendment privilege and refused to answer any of the

3

The degree to which Fisher represents a complete repudiation of the private/public distinction remains unsettled. It has

been stated that the general consensus is that Fisher was an attempt to find Fifth Amendment protections applicable to

compelled production of documents without relying on the private/public distinction. Doe, 741 F.3d at 343 n. 2.

4

See In re Grand Jury Subpoena Dated Feb. 2, 2012, 741 F.3d 339 (2d Cir.2013); United States v. Under Seal, 737

F.3d 330 (4th Cir.2013); In re Grand Jury Proceedings, 707 F.3d 1262 (11th Cir.2013); In re Grand Jury Subpoena,

696 F.3d 428 (5th Cir.2012); In re Special Feb. 2011 1 Grand Jury Subpoena Dated Sept. 12, 2011, 691 F.3d 903 (7th

Cir.2012); In re Grand Jury Investigation M.H., 648 F.3d 1067 (9th Cir.2011).

5

See supra note 4.

6

Though some courts have found the similarity between the type of information contained in the records that § 1010.420

requires accountholders to keep and the information that these individuals must report to the IRS pursuant to §

1010.350 to be additional proof that accountholders customarily keep this information, we find this reasoning to be

circular. See, e.g., In re Grand Jury Proceedings, 707 F.3d at 1273; In re Grand Jury Subpoena, 696 F.3d at 435;

M.H.,

Oral Argument at 28:59.

7
recent decision in Horne v. Department of Agriculture, U.S. , 135 S.Ct. 2419, 192 L.Ed.2d 388 (2015). The Chabots cite Horne regulation in a way that abrogates a Constitutional protection, and then point to engagement in such activity as

language cited for it, which is taken out of context, is far too broad. The Supreme Court clearly indicated that the specific issue addressed related to takings, not the privilege against self-incrimination (or any other constitutional right
for that matter), and that the conclusion it was reaching was specific to the facts presented in that case. See Horne,

identi

8

As the interstate commerce power gives Congress the authority to prohibit foreign banking, Congress could impose the

lesser restriction of a licensing requirement on foreign banking. See

416 U.S. 21,

46 47, 94

foreign commerce is not open to dispute, and that body was not limited to any one particular approach to effectuate its

Doe, 741 F.3d at 351 52. Obviously, this kind of scheme would be considerably more burdensome than §

End of Document
10

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

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

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

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

f.

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

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

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

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

a nd

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

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

5 of I0

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

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

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

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

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

EXHIBITB

E XHIBIT B

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

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

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

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

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

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

2

 
 Case: 1:13-cv-709 As of: 03/14/2019 09:24 AM CDT 1 of 7

U.S. District Court Eastern District of TEXAS [LIVE] (Beaumont) CIVIL DOCKET FOR CASE #: 1:13−cv−00709−RC

CLOSED,JURY

Catholic Diocese of Beaumont et al v. Sebelius et al Assigned to: Judge Ron Clark Case in other court: 5CA, 14−40212 Cause: 28:2201 Injunction
Plaintiff

Date Filed: 12/10/2013 Date Terminated: 01/03/2014 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Catholic Diocese of Beaumont

represented by Randal Girard Cashiola Cashiola Law Firm 2090 Broadway Ste A Beaumont, TX 77701 409−813−1443 Fax: 409−813−1467 Email: rcashiola@cashiolalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Catholic Charities of Southeast Texas, Inc.

represented by Randal Girard Cashiola (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

represented by Michelle Renee Bennett U.S. Department of Justice, Civil Division, Federal Programs 20 Massachusetts Avenue, NW Washington, DC 20530 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Anderson Grogg US Department of Justice − Civil Division 20 Massachusetts Ave, NW Washington, DC 20001 202−514−2395 Fax: 202−616−8470 Email: adam.a.grogg@usdoj.gov TERMINATED: 08/22/2017
Bradley Philip Humphreys US Department of Justice − Civil Division 20 Massachusetts Ave NW Room 7108 Washington, DC 20530 202−514−3367 Fax: 202−616−8470 Email: bradley.p.humphreys@usdoj.gov ATTORNEY TO BE NOTICED

Case: 1:13-cv-709 As of: 03/14/2019 09:24 AM CDT 2 of 7

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

represented by Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Anderson Grogg (See above for address) TERMINATED: 08/22/2017
Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Anderson Grogg (See above for address) TERMINATED: 08/22/2017
Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Anderson Grogg (See above for address) TERMINATED: 08/22/2017
Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Anderson Grogg (See above for address) TERMINATED: 08/22/2017
Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED
represented by Michelle Renee Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:13-cv-709 As of: 03/14/2019 09:24 AM CDT 3 of 7

Adam Anderson Grogg (See above for address) TERMINATED: 08/22/2017
Bradley Philip Humphreys (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/10/2013 12/10/2013 12/10/2013 12/10/2013
12/10/2013 12/10/2013
12/11/2013 12/13/2013
12/17/2013 12/20/2013 12/20/2013 12/23/2013

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0540−4437086.), filed by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont. (Attachments: # 1 Civil Cover Sheet)(Cashiola, Randal) (Entered: 12/10/2013)
Case Assigned to Judge Ron Clark. (aam, ) (Entered: 12/10/2013)
DEMAND for Trial by Jury by Catholic Charities of Southeast Texas, Inc. and Catholic Diocese of Beaumont. (aam, ) (Entered: 12/10/2013)
In accordance with the provisions of 28 USC Section 636(c), you are hereby notified that a U.S. Magistrate Judge of this district court is available to conduct any or all proceedings in this case including a jury or non−jury trial and to order the entry of a final judgment. The form Consent to Proceed Before Magistrate Judge is available on our website. All signed consent forms, excluding pro se parties, should be filed electronically using the event Notice of Consent to Proceed Before Magistrate Judge. (aam, ) (Entered: 12/10/2013)
2 First MOTION for Leave to File Excess Pages by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont. (Attachments: # 1 Text of Proposed Order Proposed Order)(Cashiola, Randal) (Entered: 12/10/2013)
3 First MOTION for Temporary Restraining Order and Preliminary Injunction by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont. (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Declaration, # 3 Text of Proposed Order Proposed Order)(Cashiola, Randal) Modified on 12/30/2013 (tkd, ). (Entered: 12/10/2013)
4 SUMMONS Issued as to Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, and U.S. Department of Treasury and emailed to plas' atty for service (aam, ) (Entered: 12/11/2013)
5 ORDER setting status/management conference for 12/20/2013 9:00 AM in Ctrm 2 (Beaumont) before Judge Ron Clark. Motion hearing set re 3 First MOTION for Temporary Restraining Order and Preliminary Injunction for 12/30/2013 09:00 AM in Ctrm 2 (Beaumont) before Judge Ron Clark.. Signed by Judge Ron Clark on 12/13/2013. (bjc) Modified on 12/30/2013 (tkd, ). (Entered: 12/13/2013)
6 NOTICE of Attorney Appearance by Bradley Philip Humphreys on behalf of All Defendants (Humphreys, Bradley) (Entered: 12/17/2013)
7 Minute Entry for proceedings held before Judge Ron Clark: Management/Status Conference held on 12/20/2013. (Court Reporter Chris Bickham.) (fal, ) (Entered: 12/20/2013)
8 SCHEDULING ORDER. Deadline for defts to respond to 3 Motion for TRO and Preliminary Injunction is 12/23/13. Pltfs may reply by noon on 12/27/13. Proposed findings of fact are due by noon on 12/27/13. Motion hearing set for 12/30/13 at 9:00 AM. Signed by Judge Ron Clark on 12/20/13. (tkd, ) (Entered: 12/20/2013)
9 Unopposed MOTION for Expansion of Page Limits by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Attachments: # 1 Text of Proposed Order)(Humphreys, Bradley) Modified on 12/26/2013 (tkd, ). (Entered: 12/23/2013)

Case: 1:13-cv-709 As of: 03/14/2019 09:24 AM CDT 4 of 7

12/23/2013 12/23/2013
12/23/2013 12/27/2013 12/27/2013 12/27/2013 12/27/2013 12/29/2013
12/29/2013 12/29/2013 12/29/2013 12/29/2013 12/29/2013 12/29/2013

10 RESPONSE in Opposition re 3 First MOTION for Temporary Restraining Order and Preliminary Injunction filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Humphreys, Bradley) Modified on 12/26/2013 (tkd, ). Modified on 12/30/2013 (tkd, ). (Entered: 12/23/2013)
11 MOTION to Dismiss by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Attachments: # 1 Memorandum in Support, # 2 Statement of Material Facts, # 3 Text of Proposed Order)(Humphreys, Bradley) Two−part motion; see also #12 Motion for Summary Judgment. Modified on 12/26/2013 (tkd, ). (Entered: 12/23/2013)
12 MOTION for Summary Judgment by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Docketed for statistical purposes only; see #11 Motion for Dismiss which is a two−part motion.) (tkd, ) (Entered: 12/26/2013)
13 REPLY to Response to Motion re 3 First MOTION for Temporary Restraining Order and Preliminary Injunction filed by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Cashiola, Randal) Modified on 12/30/2013 (tkd, ). (Entered: 12/27/2013)
14 Proposed Findings of Fact by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont. (Cashiola, Randal) (Entered: 12/27/2013)
15 Proposed Conclusions of Law by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont. (Cashiola, Randal) Modified on 12/30/2013 (tkd, ). (Entered: 12/27/2013)
16 NOTICE of Filing of Administrative Record by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit Record Index)(Humphreys, Bradley) Modified on 12/30/2013 (tkd, ). (Entered: 12/27/2013)
17 NOTICE of Supplemental Authority by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 10 Response in Opposition to Motion, 12 MOTION for Summary Judgment (Attachments: # 1 Catholic Diocese of Nashville v. Sebelius, # 2 Michigan Catholic Conference v. Sebelius, # 3 Little Sisters of the Poor Home for the Aged v. Sebelius)(Humphreys, Bradley) Modified on 12/30/2013 (tkd, ). (Entered: 12/29/2013)
18 NOTICE of Supplemental Authority by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont (Attachments: # 1 Exhibit 1)(Cashiola, Randal) Modified on 12/30/2013 (tkd, ). (Entered: 12/29/2013)
19 Supplemental NOTICE of Supplemental Authority by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont (Attachments: # 1 Exhibit 1)(Cashiola, Randal) Modified on 12/30/2013 (tkd, ). (Entered: 12/29/2013)
20 FILED IN ERROR. Please ignore. MOTION to Strike Administrative Record by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Cashiola, Randal) Modified on 12/30/2013 (tkd, ). (Entered: 12/29/2013)
21 Second Supplemental NOTICE of Supplemental Authority by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Cashiola, Randal) Modified on 12/30/2013 (tkd, ). (Entered: 12/29/2013)
22 RESPONSE to Statement of Material Facts in 11 MOTION to Dismiss filed by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont. (Cashiola, Randal) Modified on 12/30/2013 (tkd, ). (Entered: 12/29/2013)
***FILED IN ERROR. Please ignore document #20, Motion to Strike Filing of Administrative Record. Motion is missing a certificate of conference and must be

Case: 1:13-cv-709 As of: 03/14/2019 09:24 AM CDT 5 of 7

12/30/2013 12/30/2013 12/30/2013 12/30/2013 12/31/2013
12/31/2013 12/31/2013
12/31/2013 12/31/2013 12/31/2013 01/02/2014
01/03/2014

refiled. (tkd, ) (Entered: 12/30/2013)
23 Minute Entry for proceedings held before Judge Ron Clark: Motion Hearing held on 12/30/2013 re 3 First MOTION for Temporary Restraining Order and Preliminary Injunction filed by Catholic Diocese of Beaumont, Catholic Charities of Southeast Texas, Inc.. (Court Reporter Chris Bickham.) (fal, ) (Entered: 12/30/2013)
24 Witness List. (fal, ) (Entered: 12/30/2013)
25 OBJECTIONS to the Filing of 16 Administrative Record by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont (Attachments: # 1 Text of Proposed Order)(Cashiola, Randal) Modified on 1/2/2014 (tkd, ). (Entered: 12/30/2013)
26 Stipulated Preliminary Findings by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont, Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Humphreys, Bradley) Modified on 1/2/2014 (tkd, ). (Entered: 12/30/2013)
27 Second NOTICE of Supplemental Authority by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 3 First MOTION for Temporary Restraining Order and Preliminary Injunction, 11 MOTION to Dismiss, 12 MOTION for Summary Judgment (Attachments: # 1 Exhibit)(Humphreys, Bradley) Modified on 1/2/2014 (tkd, ). (Entered: 12/31/2013)
28 NOTICE of Filing of Defendants' Cross−Designations of Cohen Testimony by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury (Attachments: # 1 Exhibit Defendants' Cross−Designations, # 2 Exhibit Deposition Transcript for Gary M. Cohen)(Humphreys, Bradley) Modified on 1/2/2014 (tkd, ). (Entered: 12/31/2013)
29 NOTICE of Supplemental Authority by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury re 3 First MOTION for Temporary Restraining Order and Preliminary Injunction, 11 MOTION to Dismiss, 12 MOTION for Summary Judgment (Attachments: # 1 Exhibit Little Sisters of the Poor v. Sebelius (CA10))(Humphreys, Bradley) Modified on 1/2/2014 (tkd, ). (Entered: 12/31/2013)
30 Third Supplemental NOTICE of Supplemental Authority by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont (Attachments: # 1 Exhibit 1)(Cashiola, Randal) Modified on 1/2/2014 (tkd, ). (Entered: 12/31/2013)
31 RESPONSE to 30 Notice of Supplemental Authority Regarding Roman Catholic Diocese of Fort Worth v. Sebelius filed by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Humphreys, Bradley) Modified on 1/2/2014 (tkd, ). (Entered: 12/31/2013)
32 ORDER re 3 Motion for Temporary Restraining Order and Preliminary Injunction. A final judgment consistent with this order and the memorandum opinion will be forthcoming. Signed by Judge Ron Clark on 12/31/13. (tkd, ) (Entered: 01/02/2014)
33 MEMORANDUM AND ORDER that pltfs are entitled to a permanent injunction. The Government is enjoined from applying or enforcing the regulations that require the Plaintiffs, their health plans, TPAs, or issuers, to provide or execute the self−certification forms that enable or require the TPA or issuer to provide health insurance coverage for Plaintiff's employees for FDA−approved contraceptives, emergency contraceptives, products, or services under the requirements imposed in 42 U.S.C. § 300gg−13(a) (4), Pub. L. 11−148, § 1563(e)−(f), as well as the application of the penalties found in 26 U.S.C. §§ 4980D & 4980H, and 29 U.S.C. § 1132. Further ordered that all currently pending motions are denied as moot. A final judgment will be forthcoming. Signed by Judge Ron Clark on 1/2/14. (tkd, ) (Entered: 01/03/2014)
34 FINAL JUDGMENT and Order of Injunction. All costs of court will be borne by the party incurring same. This is a final judgment disposing of the claims of all parties and is appealable. Signed by Judge Ron Clark on 1/3/14. (tkd, ) (Entered: 01/03/2014)

Case: 1:13-cv-709 As of: 03/14/2019 09:24 AM CDT 6 of 7

02/24/2014 03/03/2014 03/25/2014 03/27/2014 03/31/2014 04/02/2014 04/02/2014 04/03/2014 04/29/2014
04/30/2014 05/02/2014 05/12/2014 03/25/2015 05/17/2016
06/26/2017

35 NOTICE OF APPEAL as to 33 Memorandum & Opinion,,, 34 Judgment, 32 Order by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Humphreys, Bradley) (Entered: 02/24/2014)
36 NOTICE of Docketing Notice of Appeal from USCA re 35 Notice of Appeal, filed by U.S. Department of Treasury, U.S. Department of Labor, Kathleen Sebelius, Jacob J. Lew, Thomas Perez, U.S. Department of Health and Human Services. USCA Case Number 14−40212. (dlc, ) (Entered: 03/03/2014)
37 TRANSCRIPT ORDER received from the Defendants−Appellants advising transcript is unnecessary for appeal purposes filed by Adam Craig Jed. (tlh, ) Modified on 3/27/2014 (dlc, ). (Entered: 03/26/2014)
NOTICE of certification of eROA provided to 5th Circuit Court of Appeals. (dlc, ) (Entered: 03/27/2014)
38 TRANSCRIPT REQUEST by Catholic Charities of Southeast Texas, Inc., Catholic Diocese of Beaumont for proceedings held on 12/30/2013 before Judge Clark, Transcript due by 12/30/2013. (Cashiola, Randal) (Entered: 03/31/2014)
USCA 5th Circuit Notice − Original record on appeal is accepted (dlc, ) (Entered: 04/02/2014)
Release of electronic record on appeal to appellant's counsel, Adam Jed via utility upload tool pursuant to his request. (dlc, ) (Entered: 04/02/2014)
Release of electronic record on appeal to appellee's counsel, Thomas Allen via utility upload tool pursuant to his request. (dlc, ) (Entered: 04/03/2014)
39 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on December 30, 2013 before Judge Ron Clark. Court Reporter: Christina Bickham,Telephone number: 409−654−2891. <P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov<P> Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 5/23/2014. Redacted Transcript Deadline set for 6/2/2014. Release of Transcript Restriction set for 7/31/2014. (clb, ) (Entered: 04/29/2014)
NOTICE of certification of supplemental record on appeal provided to 5th Circuit Court of Appeals. (dlc, ) (Entered: 04/30/2014)
USCA 5th Circuit Notice − Supplemental record on appeal is accepted. (dlc, ) (Entered: 05/12/2014)
Release of electronic supplemental record on appeal to appellee's counsel, Thomas Allen via utility upload tool pursuant to his request. (dlc, ) (Entered: 05/12/2014)
40 NOTICE of Attorney Appearance by Adam Anderson Grogg on behalf of All Defendants (Grogg, Adam) (Entered: 03/25/2015)
41 SUPREME COURT ORDER GRANTING the petition for a writ of certiorari as to 35 Notice of Appeal, filed by U.S. Department of Treasury, U.S. Department of Labor, Kathleen Sebelius, Jacob J. Lew, Thomas Perez, U.S. Department of Health and Human Services. The judgment or mandate of the Court will not issue for at least 25 days pursuant to Rule 45. Should a petition for rehearing be filed timely, the judgment or mandate will be further stayed pending this Court's action on the petition for rehearing (pkb, ) (Entered: 05/18/2016)
42 ORDER of USCA granting motion to extend the stay of further proceedings to August 22, 2017 as to 35 Notice of Appeal, filed by U.S. Department of Treasury, U.S. Department of Labor, Kathleen Sebelius, Jacob J. Lew, Thomas Perez, U.S. Department of Health and Human Services. Circuit Judge: Jerry E. Smith (Attachments: # 1 USCA Cover Letter)(dlc, ) (Entered: 06/28/2017)

Case: 1:13-cv-709 As of: 03/14/2019 09:24 AM CDT 7 of 7

08/16/2017 08/16/2017
08/22/2017 10/05/2017 10/19/2017

43 NOTICE of Attorney Appearance by Michelle Renee Bennett on behalf of All Defendants (Bennett, Michelle) (Entered: 08/16/2017)
44 MOTION to Withdraw as Attorney by Jacob J. Lew, Thomas Perez, Kathleen Sebelius, U.S. Department of Health and Human Services, U.S. Department of Labor, U.S. Department of Treasury. (Grogg, Adam) (Additional attachment(s) added on 8/17/2017: # 1 Proposed Order) (tkd, ). (Entered: 08/16/2017)
45 ORDER granting 44 Motion to Withdraw as Attorney. Attorney Adam Anderson Grogg terminated. Signed by Judge Ron Clark on 8/22/17. (dlc, ) (Entered: 08/23/2017)
46 USCA NOTICE with Updated Case Caption (Attachments: # 1 USCA Cover Letter)(dlc, ) (Entered: 10/06/2017)
47 ORDER of USCA dismissing the appeal as of October 19, 2017, as to 35 Notice of Appeal, filed by U.S. Department of Treasury, U.S. Department of Labor, Kathleen Sebelius, Jacob J. Lew, Thomas Perez, U.S. Department of Health and Human Services (Attachments: # 1 USCA Cover Letter)(dlc, ) (Entered: 10/19/2017)