Case 5:13-cv-01092-D Document 67 Filed 12/20/13 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

REACHING SOULS INTERNATIONAL, INC., et al.,
Plaintiffs,
v.
KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al.,
Defendants.

) ) ) ) ) ) Case No. CIV-13-1092-D ) ) ) ) ) )

MEMORANDUM DECISION AND ORDER
Before the Court are Plaintiffs’ Motion for Prelimi nary Injunction [Doc. No. 7] and Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction [Doc. No. 51]. Plaintiffs’ Motion seeks relief pursuant to Fe d. R. Civ. P. 65( a) from federal regulations implementing the Affordable Care Act (“ACA”)1 that provide a mechanism for certain religious employers to avoid the mandate to include contraceptive services ingroup health plan coverage, by executing a required self-certification form. This mechanism – referred to as the “accommodation” – is now codified in 26 C.F.R. § 54.9815-2713A, 29 C.F.R. § 2590.715-2713A, and 45 C.F.R. § 147.131. Defendants’ Motion seeks dismissal of the action pursuant to Fed. R. Civ. P. 12(b)(1) on the ground that Plaintiffs lack constitutional standing t o challenge the accommodation. The Motions, which are fully briefed and at issue, were the subject of a hearing held December 16, 2013.2

1 The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).
2 The purposes of th e hearing were to receive any relevant evidentiary materials and to hear oral arguments. The parties elected not to present evidecne but, instead, relied on writtenmaterials submitted with their briefs, except Plaintiffs provided copies of certain regulations and EBSA Form 700.

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Background Plaintiffs Reaching Soul s International, Inc. and Truett-McConnell College, Inc. are nonprofit religious organizations that provide be nefits to employees through a group health plan sponsored by Plaintiff GuideStone Financial Re sources of the Southern Baptist Convention (“GuideStone”). The plan provides group health benefits on a self-insured basis for organizations associated with the Southern Baptist Convention,which share its religious views regarding abortion and contraception, and rely on GuideSt one to provide coverage consistent with those views. Defendants are federal agencies and offici als responsible for promulgating ACA’s implementing regulations.3 During the rule-m aking process, the accommodation was adopted as a means for nonexempt religious organizations that provide em ployee health benefi ts and have religious objections to som e contraceptive m ethods, to com ply with ACA’s m andate of contraceptive coverage as a preventive care service for women. See 42 U.S.C. § 300gg-13. Plaintiffs’ Complaint asserts numerous statutory and constitutional challenges to the accommodation. The primary focus of Plaintiffs’ Motion and supporting arguments, however, are the Religious Freedom Restoration Act of 1993 as amended, 42 U.S.C. § 2000bbet seq. (“RFRA”), and the Tenth Circuit’s decision in Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir.), cert. granted, 82 U.S.L.W. 3139 (2013). Also, Plaintiffs seek injunctive relief broad enough to protect a putative class of similarly situated employers, as defined in their Complaint. See Compl. [Doc. No. 1], ¶ 18.4
3 Defendants are: Kathleen Sebelius, Secretar y of the United States Departm ent of Health and Human Services; United States Department of Health and Human Services; Thomas E. Perez, Secretary of the United States Department of Labor; United States Department of Labor; Jacob J. Lew, Secretary of the United States Department of the Treasury; and United States Department of the Treasury.
4 Alternatively, Plaintiffs have filed a Motion for Class Certification [Doc. No. 8] to obtain classwide relief from enforcement of the contraceptive mandate against similarly situated, nonexempt religious organizations.
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Defendants deny this case is controlled byHobby Lobby, which concerned the contraceptivecoverage mandate rather than the accommodation. Defendants concede, however, that this Court is bound by the Tenth Circuit’s decision of certain issues and must find in Plaintiffs’ favor on parts of the preliminary injunction analysis. Also, if Plaintiffs’ Motion is granted, Defendants “do not object to the scope of the resulting preliminary injunction including the named plaintiffs as well as any members of the class plaintiffshave proposed in their complaint.” See Defs.’ Mem. Opp’n Pls.’ Mot. Prelim. Inj. [Doc. No. 50], at 40. The focus of Defendants’ Motion, and their opposition to Plaintiffs’ Motion for Preliminary Injunction, is a contention that the accommodation will not result in actual injury to Plaintiffs (as required for standing) or substantially burden their religious beliefs (as required to succeed under RFRA). Defendants donot question the sincerity of Plaintiffs’ stated beliefs, but Defendants instead argue that any burden on those beliefs is either illusory, speculative, or de minimis, for reasons explained infra.
Findings of Fact Many facts relevant to the Court’s analysis of the Motions are undisputed. Because the allegations of the Com plaint and statem ents in affidavits regarding Plaintiffs’ organizational structure, religious character, and religious beliefs are unchallenged, they are accepted as true for present purposes. The Southern Baptist Convention is an association of Christian churches that share common religious beliefs, including support for the sanctityof human life from conception to natural death, and opposition to abortion and abortion-inducing dr ugs. GuideStone is a nonprofit corporation formed and controlled by the Southern Baptist Convention; it is a tax-exempt church benefits board that assists churches and other religious organiztaions by facilitating retirement plan services, health benefits coverage, risk m anagement, and other benefit programs. Gui deStone established the
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GuideStone Plan as a multiple-employer, self-insured health plan that qualifies as a “church plan” and thus is not subject to ERISA5. Consistent with the religious convictions of the Southern Baptist Convention, the GuideStone Plan does not cover expenses associated with the elective termination of a pregnancy, including contraceptive drugs or devi ces considered to be abortifacients. GuideStone has agreements with two corporations, one of which is Highmark Health Services, to provide claims administration services.
Reaching Souls International, Inc. (“Reaching Souls”) is a nonprofit corporation founded by a Southern Baptist minister for an evangelical purpose. Its principal officers are Southern Baptist ministers and its faith-based ministry includes training and support for missionaries in Africa, India, and Cuba and an orphan-care program. Truett-McConnell College, Inc. (“Truett-McConnell”) is a nonprofit corporation owned by the Georgia BaptistConvention that operates a private, Christian liberal arts college. Both organizations have adopted the Guide Stone Plan as a means to provide comprehensive health care benefits for their employees. Reaching Souls has approximately 10 fulltime employees; Truett-McConnell has approximately 80 full-time employees. Neither organization qualifies for ACA’s “religious employer” exemption, see 45 C.F.R. §§ 147.130(a)(1)(iv)(B), 147.131(a); and the GuideStone Plan doe s not qualify for ACA’s “grandfathered” health plan exemption, see 26 C.F.R. § 54.9815-1251T.
Although the parties disagree whether the contraceptive drugs to be covered under ACA’s mandate are abortifacients, it is undisputed that Plaintiffs oppose providing coverage for the same contraceptive methods at issue in Hobby Lobby, 723 F.3d at 1123, 1125, on account of religious objections. Thus, under the challenged regulations, Reaching Souls, Truett-McConnell, and other
5 The Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001et seq. The definition of “church plan” appears at § 1002(33); the exemption appears at § 1003(b)(2).
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similarly-situated employers would qualify as an “eligible organization” for the accommodation if they execute the required self-certification formand provide it to a third party administrator (“TPA”) for the GuideStone Plan. See 26 C.F.R. § 54.9815-2713A(a)-(b); 29 C.F.R. § 2590.715-2713A(a)(b); 45 C.F.R. § 147.131(b). Under the accommodation process contemplated by the regulations, a TPA receiving notice of self-certification woul d provide or arrange paym ents for m andated contraceptive services (including those objected toby Plaintiffs), and could seek reimbursement for the covered services plus an additional “allowance for administrative costs and margin” of at least 10 percent of total payments. See 45 C.F.R. § 156.50(d)(3)(ii). TheTPA would also provide notice to plan participants and beneficiaries of the availability of contraceptive coverage, without c ost sharing. See 26 C.F.R. § 54.9815-2173A(d); 29 C.F.R. § 2590.715-2173A(d).
Reaching Souls, Truett-McConnell, and otheremployers who have adopted the GuideStone Plan face a deadline of January 1, 2014, to elect am ong four alternatives: 1) discontinue participation in the GuideStone Plan and secure alternative coverage that com plies with ACA’s contraceptive mandate; 2) violate the mandate and incur penalties of $100 per day for each affected individual, see 26 U.S.C. § 4980D(b)(1); 3) discontinue all health plan coverage for employees;6 or 4) self-certify that the organization qualifies for the accommodation. Similarly, GuideStone must decide by December 31, 2013, whether to: 1) do nothing and expose nonexempt employers to ACA penalties for failing to provide contraceptive coverage under the GuideStone Plan, unl ess the employers discontinue participation in the plan; 2) assist eligible organizations with the accommodation process; or 3) discontinue coverage under the GuideStone Plan for organizations
6 All Plaintiffs state that their religious beliefs require them to provide health care coverage for employees, as a matter of value and respect for employees and commitment to the well-being of employees and their fam ilies. Cancellation of health coverage would also subject a “large employer” like TruettMcConnell to an annual penalty of $2,000 per full-time employee. See 26 U.S.C. § 4980H(a), (c)(1)-(2).
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that do not satisfy ACA’s “religious employer” exemption. It is undisputed that complying with the mandate, incurring penalties for noncom pliance, or discontinuing coverage would cause actual injury to Plaintiffs and substantially burden their religious beliefs. The questions presented – for purposes of standing and success under RFRA – involve only the impact of the accommodation on eligible organizations that participate in the GuideStone Plan.
All Plaintiffs have presented statements regarding their religious beliefs that reflect religious objections to participating in the accommodation process. Plaintiffs believe that executing the selfcertification form, or otherwise assisting in the implementation of ACA’s contraceptive mandate, would cause them to facilitate contraceptive coverageand would violate sincere religious principles.
Motion to Dismiss A. Standard of Decision
Standing to sue is a jurisdictional issue properly raised by a Rule 12(b)(1) m otion. See Wilderness Society v. Kane County , 632 F.3d 1162, 1168 (10th Cir. 2011) (en banc); see also Colorado Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004). Defendants’ Motion also raises a factual attack on jurisdiction, that is, Defendants “go beyond the allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” E.F.W. v. St. Stephen’s Indian High Schoo,l 264 F.3d 1297, 1303 (10th Cir. 2001()internal quotation omitted). Defendants contend the injury alleged in the Complaint – requiring Plaintiffs to trigger or facilitate coverage for contraceptive services – does not actually exist and “there is absolutely no connection between plaintiffs and contraceptive coverage” under the accommodation. See Defs.’ Mot. Dism. [Doc. No. 51] at 18.
“In addressing a factual attack, the court does not presuemthe truthfulness of the complaint’s factual allegations, but has wide di scretion to allow affidavits, other docum ents, and a lim ited
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evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” see E.F.W., 264 F.3d at 1303 (internal quotation omitted). In the context of this case, however, there are no disputed jurisdictional facts. As discussed infra, Defendants’ Motion is based on a contention t hat the challenged regulations do not have the legal effect alleged by Plaintiffs and, even if Plaintiffs could establish their factual allegations, they cannot show an injury that would establish standing. Therefore, Defendants’ Motion may properly be resolved under Rule 12(b)(1).7 B. Plaintiffs’ Standing
Defendants’ Motion challenges Plaintiffs’ Article III standing. To overcom e the Motion, Plaintiffs “must show an injury that is ‘1[] concrete, particularized, and actual or imminent; [2] fairly traceable to the challenged action; and [3] redressable by a favorable ruling.’” Hobby Lobby, 723 F.3d at 1126 (quoting Clapper v. Amnesty Int’l USA , 133 S. Ct. 1138, 1147 (2013)) (interna l quotation omitted). The first elem ent requires that Plaintiffs “m ust have suffered an ‘injury in fact’ – an invasion of a legally protected interest.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
The asserted injury in this case flows from the accommodation’s requirement that eligible religious organizations, like Reaching Souls and Truet t-McDonnell, must execute the selfcertification form and initiate a process by which contraceptive services that they oppose on
7 Under the law of this circuit, a Rule 12(b)(1) motion that raises a factual attack on subject matter jurisdiction must be converted to a Rule 56 m otion for summary judgment “when resolution of the jurisdictional question is intertwined with the merits of the case.” See Pringle v. United States , 208 F.3d 1220, 1222 (10th Cir. 2000);Holt v. United States, 46 F.3d 1000, 1003 (10thCir. 1995); see also Los Alamos Study Group v. United States Dep’t of Energy , 692 F.3d 1057, 1063- 64 (10the Cir. 1012). In this case, however, Defendants maintain that the jurisdictional issue of standing may be resolved “on the pleadings, documents incorporated by reference into the complaint, and judicially noticeable matters – all of which the Court may consider in reviewing defendants’ motion to dismiss.” See Defs.’ Reply Supp. Mot. Dism. [Doc. No. 59] at 2-3. Thus, the Court finds no need to treat Defendants’ Motion as a summary judgment motion. Further, any factual disputes are not germane to the Court’s jurisdictional analysis, discussed infra.
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religious grounds may be provided free of c harge to female employees and dependents who are health plan beneficiaries. Defendants’ position in this case is that a TPA of a church plan, like the GuideStone Plan, is not required to cover contraceptive services because ERISA provides the only implementing or enforcement authority for the accommodation, and church plans are not subject to ERISA. Defendants thus argue that the accommodation regulations do not apply to the GuideStone Plan as a matter of law, and Plai ntiffs’ (or a TPA’s) mistaken legal view that the regulations do apply cannot create an actual or imminent injury. Defendants’ litigation position in this case has been taken in only one other case f or which a written decision is available, Roman Catholic Archdiocese of New York v. Sebelius, No. 12 Civ. 2542, 2013 WL 6579764, *6 (E.D.N.Y Dec. 16, 2013) (to be published), and was fi rst asserted on October 31, 2013. See Defs.’ Resp. Pls.’ Mot. Accelerated Briefing Sched. [ Doc. No. 19] at 2-3 n.1. U pon consideration, the C ourt is not persuaded that Defendants’ position deprives Plaintiffs of standing.
Plaintiffs’ religious beliefs – the sincerity of which is unchallenged – prevent them from participating in a regulatory process designed to provide health care coverage that they oppose on religious grounds, even if the extent of t heir participation is taking the first step required by the regulations and permitting the remaining process to play out through other actors. By signing the form, an eligible organization self-certifies that it qualifies for the accommodation and, thus, that its employees and their dependents qualify for contraceptive coverage outside of their health plan. After signing the self-certification form, Plaintiffs must provide it to a TPA of r the GuideStone Plan in order to satisfy ACA’s contraceptive mandate through the accommodation process formulated by Defendants to extend contraceptive coverage toemployees of nonexempt religious organizations. The self-certification form itself notifies a TPA of the obligations set forth in federal regulations regarding the accommodation. These obligations include providing written notice to health plan
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participants and beneficiaries of the availability of contraceptive coverage without cost sharing.
Regardless whether the notice actually results in the provision of contraceptive services to which
Plaintiffs object, the accommodation requires that Plaintiffs either participate in a procedure devised
by federal officials to implement ACA’s mandate of contraceptive coverage, or incur substantial
penalties. Either spiritual or f inancial harm is sufficient, by itself, to establish an actual injury,
traceable to Defendants, and redressable by a ruling in Plaintiffs’ favor.
The Court reaches the same conclusion as the district judge inRoman Catholic Archdiocese
of New York, the Honorable Brian M. Cogan, who capably expressed the analysis of Plaintiffs’
injury-in-fact:
[P]laintiffs’ alleged injury is that the [accommodation] renders them complicit in a scheme aimed at providing coverage to which they have a religious objection. This alleged spiritual complicity is independent of whether the scheme actually succeeds at providing contraceptive coverage. It is undisputed that all of the non-exem pt plaintiffs will still have to either comply with the Mandate and provide the objectionable coverage or self-certify that they qualify for the accom modation. Plaintiffs allege that their religion f orbids them from completing this self-certification, because to them , authorizing others to pr ovide services that plaintiffs themselves cannot is tantamount to an endorsement or facilitation of such services. Therefore, regardless of the effect on plaintiffs’ TPAs, the regulations still require plaintiffs to take actions they believe are contrary to their religion.
Roman Catholic Archdiocese of New York, 2013 WL 6579764 at *7 (citations omitted).
In short, the alleged fact that the accom modation requires Plaintiffs to take action that is
repugnant to their sincere religious beliefs constitutes a sufficient injury to satisfy the constitutional
minimum of standing. Therefore, the Cour t finds that Plaintiffs have standing to challenge the
accommodation.
Motion for Preliminary Injunction
To prevail on their Motion, Plaintiffs must establish: a) they are likely to succeed on the
merits; b) they are likely to suf fer irreparable harm in the absence of pr eliminary relief; c) the
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balance of equities tips in their favor; and d) an injunction is in the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008); Crowe & Dunlevy, P.C. v. Stidham , 640 F.3d 1140, 1157 (10th Cir. 2011);see also Hobby Lobby, 723 F.3d at 1128. In this federal circuit, courts generally apply a modified standard under which, if a movant establishes that other requirements tip strongly in his favor, the movant “may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for l itigation and deserving of m ore deliberate investigation.” Greater Yellowstone Coal. v. Flowers , 321 F.3d 1250, 1255-56 (10th Cir.2003); see O Cent ro Espirita Beneficente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004) (en banc),aff’d sub nom., 546 U.S. 418 (2006). The m odified standard does not apply, however, to certain types of “historically disfavored” preliminary injunctions. See O Centro, 389 F.3d at 975;see also Attorney General v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009);RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009). Also, the modified standard does not apply where the m ovant seeks “to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme.” See Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003); see also Nova Health Sys. v. Edmondson , 460 F.3d 1295, 1298 n.6 ( 10th Cir. 2006); Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006). Courts “presum e that all governm ental action pursuant to a statutory scheme is ‘taken in the public interest.’” See Aid for Women, 441 F.3d at 1115 n.15.
In this case, Plaintiffs are seeking to restrain action of federal agencies taken in the public interest, and therefore, the m odified standard does not apply. Thus, Plaintiffs “m ust meet the traditional ‘substantial likelihood of success’ standard.” Nova Health Sys., 460 F.3d at 1298 n.6.
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A. Likelihood of Success on the Merits RFRA prohibits the federal government from substantially burdening a person’s exercise of religion, unless the government demonstrates that the application of the burden to the person is the least restrictive means of furthering a compelling governmental interest. See 42 U.S.C. § 2000bb-1. To establish a claim under RFRA, a plaintiff m ust prove “ the following three elements: (1) a substantial burden imposed by the federal governm ent on a (2) sincere (3) exercise of re ligion.” Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001);see Hobby Lobby, 723 F.3d at 1125-1126. The burden then shifts to the government, even at the preliminary injunction stage, to show that the compelling interest test is satisfied. See Hobby Lobby, 723 F.3d at 1126; see also Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). There is no question in this case that Plaintiffs’ religious beliefs areisncere and that their opposition to ACA’s contraceptive mandate is a religious exercise. Defendants also concede that, under the holding ofHobby Lobby, the federal government cannot satisfy the compelling interest test. See Defs.’ Mem. Opp’n Pls.’ Mot. Prelim. Inj. [Doc. No. 50], at 21. Thus, Plaintiffs’ likelihood of success on the merits of their RFRA claim hinges on their ability to establish a substantial burden. According to the Tenth Circuit, the substantial burden test has three prongs: [A] government act im poses a “substantial bur den” on religious exercise if it: (1) “requires participation in an activity prohibited by a sincerely he ld religious belief,” (2) “prevents participation in conduct motivated by a sincerely held religious belief,” or (3) “places substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held religious belief.” Hobby Lobby, 723 F.3d at 1138 (quoting Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010)). The court of appeals found in Hobby Lobby that ACA’s coverage mandate substantially burdens the religious exercise of persons who oppose covered contraceptive services on religious grounds under the t hird, “substantial pressure” prong. Although Hobby Lobby is f actually
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distinguishable, the cour t of a ppeals’ decision teaches the proper fram ework for a “substantial pressure” analysis.
“First, we must identify the religious belief in this case.” Id. at 1140. Like the corporate employers in Hobby Lobby, Plaintiffs have religious objections to contraceptive methods that they believe cause the death of a fertilized hum an embryo, and t o providing access to or otherwise supporting contraceptive services related to these methods. Further, in this case, Plaintiffs assert that “as a matter of religious faith, Plaintiffs may not participate inany way in the government’s program to provide access to these services.” See Pls.’ Mot. Prelim. Inj. [Doc. No. 7] at 11;see also Compl. [Doc. No. 1], ¶¶ 177-78. Defendants dispute whether the specific tasks to which Plaintiffs object, such as signing the self-certification form or providing it to a TPA, constitute “participation” in the program or facilitate access to contraceptive services, but Defendants acknowledge the strength of Plaintiffs’ opposition to ACA’s contraceptive mandate and the faith-based nature oftheir opposition.
“Second, we must determine whether this belief is sincere.”Hobby Lobby, 723 F.3d at 1140. Here, as in Hobby Lobby, Plaintiffs’ sincerity is unquestioned.
“Third, we turn to the question of whether teh government places substantial pressure on the religious believer.” Id. Here, as in Hobby Lobby, Plaintiffs contend that the pressure on their religious beliefs is substantial because participation in the accom modation would violate their beliefs, but refusing to participate will expose them to substantial financial penalties or losses. In response, Defendants contend Plaintiffs’ view that participating in the accommodation – by selfcertifying their eligibility and providing the self-certification form to a TPA – is legally flawed and misguided because their participation would notactually facilitate access to contraceptive coverage for participants and beneficiaries of the GuideStone Plan. Because, according to Defendants, the accommodation does not apply to church plans and aTPA under the GuideStone Plan need not offer
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or provide contraceptive coverage, Plaintiffs’ self-certification forms would not actually trigger the accommodation process or carry out ACA’s contarceptive mandate, and, thus, Plaintiffs’ opposition to signing the form is unfounded.
Upon consideration, the Court finds Defendants’ argument to be simply another variation of a proposition rejected by the court of appeals in Hobby Lobby. In that case, the governm ent argued that com plying with the contraceptive m andate was not a substantial burden on the employers’ beliefs because t he burden arose from the independent acts of third parties, such as employees or dependents who utilized the coverag.e This argument was found to be “fundamentally flawed because it advances an understanding of ‘substantial burden’ that presum es ‘substantial’ requires an inquiry into the theological merit of the belief in question rather than theintensity of the coercion applied by the governm ent to act contrary to those bel iefs.” Id. at 1137 (emphasis in original). The court determ ined that the quest ion for decision was “not whether the reasonable observer would consider the plaintiffs com plicit in an immoral act, but rather how the plaintiffs themselves measure their degree of complicity.” Id.
In this case, Plaintiffs have measured their complicity in facilitating ACA’s contraceptive mandate and determ ined that participat ing in the accommodation would endorse contraceptive services they deem morally problematic. As discussed supra, Plaintiffs’ religious beliefs do not permit them to take the af firmative steps n ecessary to qual ify their employees for certain contraceptive services under ACA’s coverage schem e. Regardless whether the self-certification form actually results in the provision ofsuch contraceptive coverage or services,8 Plaintiffs believe
8 Evidence was presented by Plaintiffs, without effective response by Defendants, that the largest GuideStone TPA, Highmark Inc. (“Highmark”), will provide the objected-to contraceptives upon receipt of the self-certification form. See Pls.’ Combined Reply Br., Ex. 1, Ormont Decl. [Doc. No. 56-1]. Defendants’
(continued...)
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that the acts of executing the formand providing it to a TPA convey support for the accommodation program and its goal of carrying out ACA’ s contraceptive mandate. The self-certification form states it certifies that the organization’s health plan qualifies for the accommodation with respect to the mandate, and it provides notice to a TPA of obligations under the accommodation regulations. In addition, the model language of the written noti ce that a TPA m ust give to plan beneficiaries states that their employer has provided the certification, and so separate contraceptive coverage is available from a third party. See 26 C.F.R. § 54.9815-2713A(d). Further, as noted, at least one TPA for GuideStone, Highmark, has adopted a plan tocarry out the accommodation. Regardless whether Highmark is compelled to comply or does so voluntarily, Plaintiffs’ concern for apparent complicity in the accommodation is not unfounded. In short, this Court, like Judge Cogan, rejects Defendants’ “it’s just a form” argument. See Roman Catholic Archdiocese of New Yor k, 2013 WL 6579764 at *14.
Under Hobby Lobby, the Court’s “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.” Hobby Lobby, 723 F.3d at 1137. Upon consideration ofthe record, the Court finds the accommodation scheme applies substantial pressure on Plaintiffs to violate their belief that participating in or facilitating the accommodation is the moral equivalent of directly complying with the contraceptive mandate. By refusing to participate, Reaching Souls, Truett-College, and similarly situated organizations face substantial financial penalties, and their refusal will cause a substantial financial loss to GuideStone if it excludes nonexem pt, noncompliant organizations from the
8(...continued) litigation position that there is no ERISA enforcement mechanism regarding self-insured church plans utterly fails to address the real potential for voluntary compliance by TPAs such as Highmark.
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GuideStone Plan. Here, as in Hobby Lobby, the Court finds that Plaintiffs have made a threshold showing of a substantial burden, and, thus, a likelihood of success on their RFRA claim.9
B. Remaining Requirements The Tenth Circuit has held that “establishing alikely RFRA violation satisfies the irreparable harm factor.” Hobby Lobby, 723 F.3d at 1146; see Kikumura, 242 F.3d at 963. The Court further finds that the harm to Plaintiffs without the injunction outweighs any harm to Defendants’ interest in carrying out the accommodation. As noted inHobby Lobby, the government has already granted an exemption from the contraceptive mandate to many religious organizations, and only a sm all number of contraceptive services covered by the mandate are at issue. In addition, the government has taken the position in this case that the accommodation is not enforceable against the GuideStone Plan anyway. On the other hand, Plaintiffs face the real dilemma of violating their religious beliefs or incurring f inancial penalties. Finally, in light of the current legal uncertainty regarding the enforceability of the contracep tive mandate in light of Hobby Lobby and other federal appellate decisions, the Court finds that the public interest lies in preserving the status quo and preventing enforcement of the accommodation until Plaintiffs’ claims are resolved.
Conclusion In summary, the Court concludes that Plaintiffs have satisfied their burden to establish standing to challenge the accommodation and that a preliminary injunction should issue to prevent the federal government from enforcing the accommodation and contraceptive m andate against them.10
9 In light of this conclusion, the Court ne ed not reach the First Amendment claims on w hich Plaintiffs also rely in their Motion.
10 Plaintiffs have offered to provide security, as required by Fed. R. Civ. P. 65(c),by posting a bond (continued...)
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ORDER IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Preliminary Injunction [Doc. No. 7] is GRANTED, and that Defendants’ Mo tion to Dism iss for Lack of Subject Matter Jurisdiction [Doc. No. 51] is DENIED. The following preliminary injunction is issued:
PRELIMINARY INJUNCTION Defendants, their agents, officers, and employees are hereby enjoined and restrained from taking any enforcement action against Plaintiffs, or any employers who provide medical coverage to employees under the GuideStone Plan and who are “eligible organizations” as defined by 26 C.F.R. § 54.9815-2713A(a), 29 C.F.R. § 2590.715-2713A(a), and 45 C.F.R. § 147.131(b), for not providing coverage for contraceptive services asrequired by 42 U.S.C. § 300gg-13(a)(4) and related regulations, including any penalties, fines and assessments for noncompliance with that statute, until further order of the Court. IT IS SO ORDERED this 20th day of December, 2013.
10(...continued) in an amount to be determined by the Court. Defendants have not requested security, and this issue was not addressed in further briefing or argument. In this circuit, “trial courts have ‘wide discretion under Rule 65(c) in determining whether to require security.’” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1215 (10th Cir. 2009) (quoting Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202, 1206 (10th Cir. 2003)). Under the circumstances presented, the Court finds that Defendants are unlikely to suffer monetary harm if it is later determined they were wrongfully enjoined, and thus, no security is necessary.
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 Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 1 of 76

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA

(1) REACHING SOULS

)

INTERNATIONAL, INC., an Oklahoma )

not for profit corporation;

)

(2) TRUETT-McCONNELL COLLEGE, )

INC., a Georgia nonprofit corporation; by )

themselves and on behalf of all others

)

similarly situated, and

)

(3) GUIDESTONE FINANCIAL

)

RESOURCES OF THE SOUTHERN

)

BAPTSIT CONVENTION, a Texas

)

nonprofit corporation,

)

)

Plaintiffs,

)

)

v.

)

)

(4) KATHLEEN SEBELIUS, Secretary of )

the United States Department of Health and )

Human Services;

)

(5) UNITED STATES DEPARTMENT OF )

HEALTH AND HUMAN SERVICES;

)

(6) THOMAS E. PEREZ, Secretary of the )

United States Department of Labor;

)

(7) UNITED STATES DEPARTMENT OF )

LABOR;

)

(8) JACOB J. LEW, Secretary of the

)

United States Department of the Treasury; )

and

)

(9) UNITED STATES DEPARTMENT OF )

THE TREASURY,

)

)

Defendants.

)

Civil Case No. _C_I_V_-_1_3_-__1_0_9_2_-_D_____

1

Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 2 of 76
CLASS ACTION COMPLAINT Plaintiffs REACHING SOULS INTERNATIONAL, INC., an Oklahoma not for profit corporation, and TRUETT-MCCONNELL COLLEGE, INC. a Georgia nonprofit corporation, on behalf of themselves and all others similarly situated (collectively, including the putative class members, the “Plaintiffs”), and GUIDESTONE FINANCIAL RESOURCES OF THE SOUTHERN BAPTIST CONVENTION, a Texas nonprofit corporation, by and through their attorneys, allege and state as follows: I. NATURE OF THE ACTION 1. This is a class action lawsuit on behalf of Christian employers who participate in the health benefits plan maintained by Plaintiff GuideStone Financial Resources of the Southern Baptist Convention (the “GuideStone Plan”) to provide health benefits to their employees. These employers are constrained by their religious convictions from participating in the federal government’s regulatory scheme to promote, encourage, and subsidize the use of abortioninducing drugs and devices (the “Final Mandate” as hereinafter defined). 2. The government defendants, however, have imposed regulatory requirements that require the class plaintiffs to provide health benefits to their employees that include coverage for, or access to, abortion-inducing drugs and devices. 3. The government defendants have exempted thousands of plans, covering tens of millions of employees, from the Final Mandate. These exemptions have been granted for a wide variety of reasons, from the purely secular exemption for plans in existence before a certain date
2
CHI1 2006165v.20

Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 3 of 76
(“grandfathered plans”) to a narrow exemption for certain “religious employers.” The class plaintiffs, however—despite their religious nature—do not qualify for these exemptions.
4. For example, plaintiff Reaching Souls International, Inc. (“Reaching Souls”) is a nonprofit religious organization dedicated to “[p]roclaiming the Gospel to emerging nations by loving, reaching, training, equipping, and multiplying the laborers.” Plaintiff Truett-McConnell College, Inc. (“Truett-McConnell”) is a Georgia Baptist college whose mission is to “equip[] students to fulfill the Great Commission by fostering a Christian worldview through a biblically centered education.” Like the other members of the class, these named plaintiffs are controlled by or associated with the Southern Baptist Convention and are guided by and operated in accordance with Christian teachings about the sanctity of all human life. Their religious beliefs forbid them from participating in the government’s scheme to provide abortion-inducing drugs and devices. Yet the government refuses to exempt Reaching Souls and Truett-McConnell as “religious employers.”
5. The result is that class members have been offered a stark choice: they must either abandon their Christian beliefs and participate in the Final Mandate, or they will be punished by the government with an array of fines and penalties unless and until they comply. The threat of such penalties imposes a substantial burden on the class members’ religious exercise, because it “requires participation in an activity prohibited by a sincerely held religious belief,” prevents participation in conduct motivated by a sincerely held religious belief, and “places substantial pressure on” the class members “to engage in conduct contrary to a sincerely
3

Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 4 of 76
held religious belief.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013), petition for cert. filed (U.S. Sept. 19, 2013) ( No. 13-354).
6. The Final Mandate also impermissibly coerces plaintiff GuideStone Financial Resources of the Southern Baptist Convention (“GuideStone”). GuideStone is operated according to Southern Baptist religious principles—indeed, GuideStone exists precisely to provide benefits to the class members and other affiliated institutions in accordance with those religious principles. Yet the Final Mandate effectively makes that mission largely illegal, and requires that GuideStone either participate in the government’s scheme or dramatically reduce the work of providing employee benefits for religious institutions. In many circumstances, GuideStone’s religious exercise of providing health benefits in accordance with Southern Baptist religious principles has been made illegal.
7. Fortunately, federal law forbids the government from forcing the Plaintiffs to face such penalties and harms for exercising their religion. In particular, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”) forbids such burdens on religious exercise unless the government can demonstrate that the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b). The government cannot meet that standard, making it illegal to impose the Final Mandate on the Plaintiffs. The Final Mandate is likewise invalid under the First Amendment’s Religion and Speech Clauses, the Fifth Amendment’s Due Process Clause, and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”).
4

Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 5 of 76
8. Without judicial relief, the Final Mandate will take effect against the GuideStone Plan when its new plan year begins on January 1, 2014. Accordingly, all Plaintiffs—Reaching Souls and Truett-McConnell (on behalf of themselves and others similarly situated), and GuideStone—bring this action seeking injunctive and declaratory relief against the Final Mandate. For decades, the class members and GuideStone have worked together to provide health benefits to employees that are consistent with their mission as religious organizations. The defendants’ attempt to make such behavior illegal should be rejected. II. JURISDICTION AND VENUE
9. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1361. This action arises under the Constitution and laws of the United States. This Court has jurisdiction to render declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. § 2000bb-1.
10. Venue lies in this district pursuant to 28 U.S.C. § 1391(e). One of the Plaintiffs, Reaching Souls, resides in this district. Additionally, a substantial part of the events or omissions giving rise to the claims occurred in this district. Reaching Souls maintains a significant organizational presence in this district; Reaching Souls would be harmed by the application of the Final Mandate in this district by having to directly or indirectly provide benefits coverage for abortifacient drugs and devices and related counseling and education in violation of its religious beliefs and/or having to pay penalties as a result of its activities in this district; and application of the Final Mandate would violate Reaching Souls’ religious beliefs, foreclose its religious exercise, and violate its Constitutional rights in this district.
5

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III. IDENTIFICATION OF PARTIES A. Plaintiffs 1. GuideStone 11. GuideStone, a Texas nonprofit corporation, sponsors the GuideStone Plan (as
hereinafter defined) pursuant to a ministry assignment from the Southern Baptist Convention to “[a]ssist churches, denominational entities and other evangelical ministry organizations by making available . . . health coverage.”
2. Reaching Souls 12. Reaching Souls is an Oklahoma not for profit corporation founded in 1986 by a Southern Baptist minister and evangelist with the mission of “training Africans to reach Africa.” Reaching Souls has since expanded its ministry to India and Cuba. Its principal officers, President, Chief Executive Officer, Chief Operating Officer and Chief Financial Officer, are all ordained Southern Baptist ministers and the majority of its staff are members of Southern Baptist Churches. Reaching Souls currently provides training and support for over 1,000 missionaries in seven nations in Africa, 10 missionaries in India, and 40 missionaries in Cuba. In response to the orphan crisis created by AIDS, war, and famine, Reaching Souls began an orphan care program called “Reaching Generations.” Currently, Reaching Generations cares for nearly 500 orphans in Africa and India. 13. All of Reaching Souls’ employees share its commitment to “obey our Lord Jesus Christ and His Word,” including the command to respect the sanctity of human life from conception to natural death. Each job description provided to current and prospective employees
6

Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 7 of 76
of Reaching Souls requires that every individual holding a position at the ministry be a Christian, meaning they have a personal relationship with Jesus Christ. Further, it is formally stated in each job description provided that a person who follows Jesus Christ will follow His commands to: 1) love God with all their heart, soul, mind, and strength; 2) love their neighbors as themselves; and 3) go and make disciples. Reaching Souls believes the Bible teaches that all people are our neighbors, including the unborn.
14. As part of its religious belief that it must promote the spiritual and physical wellbeing of its employees, Reaching Souls provides them with comprehensive health benefits. Reaching Souls has adopted the GuideStone Plan (as hereinafter defined) to provide medical coverage for its employees that complies with its commitment to their well-being and to the sanctity of human life.
3. Truett-McConnell
15. Truett-McConnell is a private, Christian, coeducational liberal arts college in Cleveland, Georgia. It is a single member Georgia nonprofit corporation with the Georgia Baptist Convention as its sole member. As the sole member of Truett-McConnell, the Georgia Baptist Convention appoints the trustees of Truett-McConnell. The Georgia Baptist Convention is an association of Southern Baptist churches in the state of Georgia, and is one of the state conventions associated with the Southern Baptist Convention. Truett-McConnell has adopted the GuideStone Plan to provide medical coverage for its employees.
16. Truett-McConnell has adopted the Southern Baptist Convention’s Baptist Faith and Message 2000 described hereinafter in paragraph 34 as its own statement of faith. All of
7

Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 8 of 76
Truett-McConnell’s faculty and staff share its commitment to the sanctity of life from conception to natural death as outlined in the Baptist Faith and Message 2000.
17. As part of its religious belief that it must promote the spiritual and physical wellbeing of its employees, Truett-McConnell provides them with comprehensive health benefits. Truett-McConnell has adopted the GuideStone Plan (as hereinafter defined) to provide medical coverage for its employees that complies with its commitment to their well-being and to the sanctity of human life.
4. Class Action Plaintiffs 18. Reaching Souls and Truett-McConnell bring this action on behalf of themselves and all others similarly situated. The class consists of employers that: (i) have adopted or in the future adopt the GuideStone Plan to provide medical coverage for their “employees” or former employees and their dependents (“employees” for purposes of this requirement has the meaning set forth in section 414(e)(3)(B) of the Internal Revenue Code of 1986 (the “Code”); (ii) are or could be reasonably construed to be “eligible organizations” within the meaning of the Final Mandate (as hereinafter defined); and (iii) are not “religious employers” within the meaning of the Final Mandate. B. Defendants 19. Defendants are appointed officials of the United States government and United States governmental agencies responsible for issuing and enforcing the challenged regulations.
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Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 9 of 76
20. Defendant Kathleen Sebelius is the Secretary of the United States Department of Health and Human Services (“HHS”). In this capacity, she has responsibility for the operation and management of HHS. Secretary Sebelius is sued in her official capacity only.
21. Defendant United States Department of Health and Human Services is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations.
22. Defendant Thomas E. Perez is the Secretary of the United States Department of Labor. In this capacity, he has responsibility for the operation and management of the Department of Labor. Secretary Perez is sued in his official capacity only.
23. Defendant United States Department of Labor is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations.
24. Defendant Jacob J. Lew is the Secretary of the United States Department of the Treasury. In this capacity, he has responsibility for the operation and management of the Department of the Treasury. Secretary Lew is sued in his official capacity only.
25. Defendant United States Department of the Treasury is an executive agency of the United States government and is responsible for the promulgation, administration, and enforcement of the challenged regulations.
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Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 10 of 76
IV. FACTUAL ALLEGATIONS A. Southern Baptist Convention 26. The Southern Baptist Convention, a Georgia nonprofit corporation, was organized
in 1845 by “messengers from missionary societies, churches, and other religious bodies of the Baptist denomination.” According to Article II of its Constitution, the Southern Baptist Convention was formed for the purpose of providing “a general organization for Baptists in the United States and its territories for the promotion of Christian missions at home and abroad and any other objects such as Christian education, benevolent enterprises, and social services which it may deem proper and advisable for the furtherance of the Kingdom of God.”
27. Since its founding, the Southern Baptist Convention has grown into a national network of more than 45,000 churches and church-type missions with nearly 16 million members residing throughout the United States and its territories.
28. The Southern Baptist Convention does not control Southern Baptist churches. Rather, it serves as the coordinating body facilitating ministries which the churches voluntarily support.
29. Beginning with a landmark pro-life resolution in 1982, the Southern Baptist Convention at its annual meetings has passed Resolutions supporting the sanctity of life and condemning elective abortions in general and abortifacient drugs in particular. Relevant Resolutions adopted by the Southern Baptist Convention that are still in force provide as follows:
1988 – “we call upon all Southern Baptists to take an active stand in support of the sanctity of human life”
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Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 11 of 76
1991 – “we oppose the testing, approval, distribution, and marketing in America of new drugs and technologies which will make the practice of abortion more convenient and more widespread” 1993 – “we oppose the testing, approval, distribution, marketing and usage in the United States of any abortion pills and urge U.S. corporations which are considering such business ventures to refuse to do so” 1994 – “we . . . condemn the blatant advocacy of RU 486 by the Clinton Administration, and oppose the testing, approval, manufacturing, marketing, and sale of the abortion pill in the United States” 2000 - “[we] reaffirm our abhorrence of elective abortion” 30. The Baptist Faith and Message 2000 adopted by the Southern Baptist Convention is the statement of faith and message declared for the purpose of setting “forth certain teachings which we believe.” 31. Article 15 of the Baptist Faith and Message 2000, which is titled, “The Christian and the Social Order,” provides “[w]e should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death.” (emphasis added) B. GuideStone 32. The Southern Baptist Convention formed GuideStone in 1918 (then called “The Board of Ministerial Relief and Annuities of the Southern Baptist Convention”) to provide relief, support, benefits, and annuities for ministers of the gospel and denominational workers, “within the bounds” of the Southern Baptist Convention. As a ministry of the Southern Baptist Convention, GuideStone shares the beliefs about the sanctity of human life stated in the Resolutions adopted by the Southern Baptist Convention in paragraph 25 and in the Baptist Faith and Message 2000.
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33. In a November 9, 1934, determination letter, the Internal Revenue Service determined that GuideStone was a tax-exempt organization under section 103(6) of the Revenue Act of 1932 (a predecessor of current Code section 501(c)(3)).
34. The mission and ministry of GuideStone, as most recently set forth by the Southern Baptist Convention at its 2013 Annual Meeting, is as follows:
GuideStone Financial Resources exists to assist the churches, denominational entities, and other evangelical ministry organizations by making available retirement plan services, life and health coverage, risk management programs, and personal and institutional investment programs. 35. The Southern Baptist Convention controls GuideStone by being its sole member and by having the sole authority to elect the members of the board of directors of GuideStone, which such directors by custom are generally referred to as “trustees.” 36. GuideStone is a “church benefits board” within the meaning of Code section 414(e)(3)(A) and a Texas statute providing that the Texas Insurance Code does not apply to a “church benefits board or a program, plan, benefit, or activity of the board or a person affiliated with the board.” TEX. BUS. ORGS. CODE § 22.409. C. The GuideStone Plan 37. GuideStone, in carrying out the mission and ministries assigned to it by the Southern Baptist Convention, established the GuideStone Plan for adoption by religious organizations associated with the Southern Baptist Convention. 38. Pursuant to Texas state law, GuideStone holds the assets funding the GuideStone Plan in trust. See id. at § 22.404.
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Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 13 of 76
39. The GuideStone Plan is one of the largest “multiple employer” church health care plans in the country. It serves hundreds of employers (churches, denominational entities and other ministry organizations) and more than 78,000 participants (pastors, employees and their families).
40. The GuideStone Plan provides health and other welfare benefits for employees of adopting employers and, where applicable, their dependents.
41. Participation in the GuideStone Plan is limited to current and former employees of organizations (and the employees’ dependents) that are “controlled by or associated with” the Southern Baptist Convention within the meaning of Code section 414(e)(3)(B).
42. The GuideStone Plan is a “church plan” within the meaning of section 414(e) of the Code (26 U.S.C. § 414(e)) and section 3(33) of the Employee Retirement Income Security Act of 1974 (“ERISA”) (29 U.S.C. § 1002(33)).
43. The GuideStone Plan is not subject to ERISA because it has not made an election under Code section 410(d). See ERISA section 4(b)(2) (29 U.S.C. § 1003(4)(b)(2)).
44. The GuideStone Plan is a self-insured health plan, and, therefore, does not contract with an insurance company to fund the health benefits it provides.
45. The plan year for the GuideStone Plan begins on January 1st of each year. 46. The GuideStone Plan does not meet the definition of a “grandfathered” plan under the Affordable Care Act for multiple reasons, including, but not limited to, the following: (1) the GuideStone Plan does not include the required “disclosure of grandfather status” statement; (2) neither the GuideStone Plan nor the participating employers in the GuideStone Plan take the
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Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 14 of 76
position that the GuideStone Plan is a grandfathered plan and thus they do not maintain the records necessary to verify, explain, or clarify its status as a grandfathered plan; and (3) in certain cases the percentage cost-sharing requirement for some participants measured from March 23, 2010, increased in excess of certain specified limits. See 26 C.F.R. § 54.9815-1251T.
47. Consistent with the convictions of the Southern Baptist Convention, the GuideStone Plan does not pay or reimburse expenses associated with “elective termination of a pregnancy by any method,” including oral and non-oral contraceptive drugs or devices that are abortive in nature.
48. Connecticut General Life Insurance Company, a Delaware corporation, and Highmark Health Services, a Pennsylvania corporation doing business as “Highmark Blue Cross Blue Shield”®, have entered into agreements with GuideStone to provide certain claims administration and other services with respect to medical benefits under the GuideStone Plan. Express Scripts, Inc., a Delaware corporation, has entered into a similar agreement with respect to pharmaceutical benefits.
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Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 15 of 76
V. STATUTORY AND REGULATORY BACKGROUND A. Statutory Background 49. In March 2010, Congress passed, and President Obama signed into law, the
Patient Protection and Affordable Care Act, Pub. L. 111-148, 124 Stat. 119 (March 23, 2010), amended by the Health Care & Education Reconciliation Act, Pub. L. 111-152, 124 Stat. 1029 (March 30, 2010) ( “Affordable Care Act” or the “Act”).
50. The Affordable Care Act established many new requirements for “group health plan[s]” within the meaning of Code section 5000(b)(1), which include any “plan . . . of, or contributed to by, an employer . . . to provide health care (directly or otherwise) to the employees, former employees . . . or their families.” 26 U.S.C. §§ 9815 & 9832.
51. As relevant here, the Act requires an employer’s group health plan to cover certain “preventive care” for women. Specifically, it indicated that “[a] group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum[,] provide coverage for and shall not impose any cost sharing requirements for—(4) with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.” Pub. L. No. 111-148 § 1001 (5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg-13(a)(4)).
52. As discussed below, it is through these comprehensive guidelines supported by the Health Resources and Services Administration that the Departments are attempting to force
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Plaintiffs to provide, contract for or otherwise facilitate coverage for or access to abortifacients and related education and counseling in violation of their religious beliefs.
53. The statute specifies that all of these services must be provided without “any cost sharing.” See 42 U.S.C. § 300gg-13(a).
54. Violations of the Affordable Care Act can subject an employer to substantial monetary penalties.
55. For employee benefit plans like the GuideStone Plan that are not subject to ERISA, these requirements are implemented through section 4980D of the Code, which requires “group health plans” to comply with 42 U.S.C. § 300gg-13(a)(4) and certain other provisions of the Public Health Services Act, as amended by the Affordable Care Act.
56. An employer offering a group health plan to its employees that fails to provide certain required coverage, including required contraceptive coverage, will be subject to an assessment of $100 per day for each affected individual beginning with the first plan year beginning on or after January 1, 2014. See 26 U.S.C. § 4980D(b) & (e)(1).
57. Additionally, certain employers that fail to offer “full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employersponsored plan” will be exposed to significant annual excise tax penalties of $2,000 per full-time employee. See id. at § 4980H(a), (c)(1). The implementation of this requirement, which was required to take effect on January 1, 2014, has been delayed until 2015 by the Defendants.
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B. Regulatory Background 1. The Initial Interim Final Rules and the IOM Guidelines
58. On July 19, 2010, the Departments published interim final rules (the “Interim Final Rules”) “implementing the rules for group health plans and health insurance coverage . . . under provisions of the . . . Affordable Care Act regarding preventive health services.” 75 Fed. Reg. 41726 (July 19, 2010). Among other things, the Interim Final Rules required group health plans and health insurers to cover preventive care for women as provided for in “guidelines supported by the Health Resources and Services Administration.” 75 Fed. Reg. at 41756-59 (codified at 26 C.F.R. §54.9815-2713T(a)(1)(iv); 29 C.F.R. §2590.715-2713(a)(1)(iv) and 45 C.F.R. §147.130(a)(1)(iv)).
59. The Interim Final Rules were enacted without prior notice of rulemaking or opportunity for public comment. Even though federal law had never required coverage of abortion-inducing contraceptives, Defendants determined for themselves that “it would be impracticable and contrary to the public interest to delay putting the provisions . . . in place until a full public notice and comment process was completed.” 75 Fed. Reg. at 41730.
60. Defendants stated they would later “provide the public with an opportunity for comment, but without delaying the effective date of the regulations,” demonstrating their intent to impose the regulations regardless of the legal flaws or general opposition that might be manifest in public comments. Id.
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61. In addition to reiterating the Affordable Care Act’s preventive services coverage requirements, the Interim Final Rules provided further guidance concerning the Act’s restriction on cost sharing.
62. The Interim Final Rules made clear that “cost sharing” refers to “out-of-pocket” expenses for plan participants and beneficiaries. Id. at 41731.
63. The Interim Final Rules acknowledged that, without cost sharing, expenses “previously paid out-of-pocket” would “now be covered by group health plans and issuers” and that those expenses would, in turn, result in “higher average premiums for all enrollees.” Id.; see also id. at 41737 (“Such a transfer of costs could be expected to lead to an increase in premiums.”)
64. In other words, the prohibition on cost-sharing was simply a way “to distribute the cost of preventive services more equitably across the broad insured population.” Id. at 41730.
65. After the Interim Final Rules were issued, numerous commenters warned against the potential conscience implications of requiring religious individuals and organizations to include certain kinds of services—specifically contraceptives, sterilizations, and abortion services—in their health care plans.
66. HHS directed a private health policy organization, the Institute of Medicine (“IOM”), to make recommendations regarding which drugs, procedures, and services should be considered in the development of comprehensive guidelines for preventive services for women. See http://www.hrsa.gov/womensguidelines (last visited Oct. 11, 2013) (attached as Exhibit 1).
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67. HHS did not ask the IOM to make coverage recommendations and the IOM explicitly excluded cost considerations and other considerations relevant to coverage recommendations from its determinations regarding effective preventive care for women.
68. In developing its guidelines, IOM invited a select number of groups to make presentations on preventive care. These were the Guttmacher Institute, the American Congress of Obstetricians and Gynecologists, John Santelli, the National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum.
69. No religious groups or other groups that opposed government-mandated coverage of contraceptives (including contraceptives that are or could be abortifacients) and related education and counseling were among the invited presenters.
70. On July 19, 2011, the IOM published its preventive care guidelines for women, including a recommendation that preventive services include “the full range of Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, 102-10 and Recommendation 5.5 (2011), available at http://www.nap.edu/catalog.php?record_id=13181 (last visited Oct. 11, 2013).
71. On August 1, 2011, thirteen days after the IOM issued its recommendations, the Health Resources and Services Administration (“HRSA”) issued guidelines tracking the language of the IOM report, defining preventive services exactly as the IOM report did. See 77 Fed. Reg. 8725, 8725 (Feb. 15, 2012); see also Exhibit 1, http://www.hrsa.gov/womensguidelines. HRSA did not explain how, if at all, its guidelines
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accounted for various factors relevant to coverage decisions that IOM had declined to consider

(including “cost effectiveness;” “established practice; patient and clinician preferences;

availability; ethical, legal, and social issues; and availability of alternatives”).

72. Food and Drug Administration (“FDA”) approved contraceptive methods include:

birth-control pills; prescription contraceptive devices such as IUDs; Plan B (also known as the

“morning-after pill”); ulipristal (also known as “ella” or the “week-after pill”); and other drugs,

devices,

and

procedures.

See

http://www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.htm

(last visited Oct. 11, 2013) (attached as Exhibit 2).

73. Some of these drugs and devices—including “emergency contraceptives” such as

Plan B, ella, and certain IUDs—are known abortifacients, in that they can cause the death of an

embryo by preventing it from implanting in the wall of the uterus.

74. Indeed, the FDA’s own Birth Control Guide states under the heading “Emergency

Contraceptives,” that both Plan B and ella can work by “preventing attachment (implantation) to

the

womb

(uterus).”

Ex.

B,

at

11-12,

http://www.fda.gov/ForConsumers/ByAudience/ForWomen/FreePublications/ucm313215.htm.

75. Neither the HRSA guidelines nor the Interim Final Rule mentioned or purported

to apply the Religious Freedom Restoration Act.

2. The Amended Interim Final Rules and the “Religious Employers” Exemption
76. On August 1, 2011, the Departments promulgated an amendment to the Interim

Final Rules. See 76 Fed. Reg. 46621 (Aug. 3, 2011).

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Case 5:13-cv-01092-D Document 1 Filed 10/11/13 Page 21 of 76
77. As amended, the Interim Final Rules granted the HRSA “discretion to exempt certain religious employers from the [IOM] Guidelines where contraceptive services are concerned.” Id. at 46623 (emphasis added).
78. The “religious employers” exemption was severely limited to formal churches, their integrated auxiliaries, and religious orders whose purpose is to inculcate faith and that hire and serve primarily people of their own faith tradition. 45 C.F.R. § 147.130(a)(1)(iv)(B) at 76 Fed. Reg. 46626.
79. The vast majority of religious organizations with conscientious objections to providing contraceptive or abortifacient products and related services were excluded from the “religious employers” exemption. Indeed, these religious employers fell outside of this definition if they primarily hired or served persons outside of their specific faith or if their purpose was not exclusively the inculcation of faith, thus excluding many religious organizations that served the sick or poor. This definition was also in conflict with the very nature of Southern Baptist and other evangelical organizations which exist to spread the Gospel to those outside the church.
80. HRSA exercised its discretion under the amended Interim Final Rules to grant an exemption for defined “religious employers” via a footnote on its website listing the Women’s Preventive Services Guidelines. The footnote states that “guidelines concerning contraceptive methods and counseling described above do not apply to women who are participants or beneficiaries in group health plans sponsored by religious employers.” See Ex. A at n.**, http://www.hrsa.gov/womensguidelines.
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81. Like the original Interim Final Rules, the amended Interim Final Rules were made

effective immediately, without prior notice or opportunity for public comment. 76 Fed. Reg. at

46624.

3. The Safe Harbor

82. The public outcry for a broader religious employers’ exemption continued for

many months and, on January 20, 2012, HHS issued a press release acknowledging “the

important concerns some have raised about religious liberty” and stating that religious objectors

would be “provided an additional year . . . to comply with the new law.” See Press Release, U.S.

Department of Health and Human Services, Statement by U.S. Department of Health and Human

Services

Secretary

Kathleen

Sebelius

(Jan.

20,

2012),

http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last visited Oct. 11, 2013)

(attached as Exhibit 3).

83. Defendants then created a “temporary enforcement safe harbor,” which is a self-

imposed stay of enforcement of the contraceptive services mandate for certain qualified

organizations. This “safe harbor” would remain in effect for a qualified organization until its

first plan year that began on or after August 1, 2013. See HHS Guidance on Temporary

Enforcement Safe Harbor (Feb. 10, 2012); 77 Fed. Reg. 16501, 16504 (Mar. 21, 2012).

84. The “temporary enforcement safe harbor” applied to “group health plans

sponsored by nonprofit organizations that, on and after February 10, 2012, do not provide some

or all of the contraceptive coverage otherwise required . . . because of the religious beliefs of the

organization.” See 77 Fed. Reg. at 16502-03.

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85. The Departments also indicated they would develop and propose changes to the regulations to accommodate the objections of non-exempt, nonprofit religious organizations following August 1, 2013. Id. at 16503.
4. The Advance Notice of Proposed Rulemaking 86. On March 21, 2012, the Departments issued an Advance Notice of Proposed Rulemaking (“ANPRM”), presenting “questions and ideas to help shape” a discussion of how to “maintain the provision of contraceptive coverage without cost sharing,” while accommodating the religious beliefs of non-exempt religious organizations. Id. at 16503. 87. The ANPRM recognized that forcing religious organizations to “contract, arrange, or pay for” the objectionable contraceptive and abortifacient services would infringe their “religious liberty interests.” Id. (emphasis added).
5. The Notice of Proposed Rulemaking 88. On February 1, 2013, the Departments issued a Notice of Proposed Rulemaking (“NPRM”) purportedly addressing the comments submitted in response to the ANPRM. See 78 Fed. Reg. 8456 (Feb. 6, 2013). 89. The NPRM proposed two changes to the then-existing Final Interim Rules. Id. at 8458-59. 90. First, it proposed revising the religious employers exemption to define a “religious employer” as one “that is organized and operates as a nonprofit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” Id. at 8474.
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91. The Departments emphasized, however, that this proposal “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the [Interim Final Rules].” Id. at 8461.
92. In other words, religious organizations like the Class Action Plaintiffs that are not formal churches, their integrated auxiliaries, or religious orders would continue to be excluded from the exemption.
93. Second, the NPRM reiterated the Departments’ intention to “accommodate” nonexempt, nonprofit religious organizations by making them “designate” their insurers and third party administrators to provide plan participants and beneficiaries with free coverage for, or access to, contraception, sterilization, abortifacients, and related education and counseling. Id. at 8474-75.
94. The NPRM made no reference to the requirements of the RFRA. 95. The proposed “accommodation” did not resolve the concerns of religious organizations like the Class Action Plaintiffs because it continued to force them to deliberately provide coverage for, or access to, abortifacients and related education and counseling. 96. During the two months allowed for comments, “over 400,000 comments” were submitted in response to the NPRM, 78 Fed. Reg. 39871, with religious organizations again overwhelmingly decrying the proposed “accommodation” as a gross violation of their religious liberty because it would conscript their health care plans as the main cog in the government’s scheme for expanding access to contraceptive and abortifacient services.
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97. On April 8, 2013, the Church Alliance, of which GuideStone is a member, submitted a 20-page comment letter on the NPRM, detailing how the expanded definition of “religious employer” excluded bona fide religious organizations, and how the proposed accommodation for “eligible organizations” was unworkable, particularly for multiple employer self-insured church plans like the GuideStone Plan. The Church Alliance is an organization composed of the chief executives of thirty-eight church benefit boards, covering mainline and evangelical Protestant denominations, two branches of Judaism, and Catholic schools and institutions. A copy of the Church Alliance’s comment letter is available at http://churchalliance.org/initiatives/comment-letters (last visited Oct. 11, 2013).
98. On April 8, 2013, the same day the notice-and-comment period ended and the day the Church Alliance submitted its comments, Defendant Secretary Sebelius answered questions about the contraceptive and abortifacient services requirement in a presentation at Harvard University.
99. In her remarks, Secretary Sebelius stated: We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exception. Churches and church dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other religious entities will be providing coverage to their employees starting August 1st . . . . [A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package.
See Kathleen Sebelius, Remarks at The Forum at Harvard School of Public Health (Apr. 8, 2013), available at http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (starting at 51:20) (last visited Oct. 11, 2013) (emphasis added).
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100. It is clear from the timing of these remarks that Defendants gave no consideration to the comments submitted by the Church Alliance or others in response to the NPRM’s proposed “accommodation.”
6. The Final Mandate 101. On June 28, 2013, Defendants issued final rules that ignore the objections repeatedly raised by religious organizations and continue to require objecting religious employers to participate in the government’s scheme of expanding free access to contraceptive and abortifacient services. See 78 Fed. Reg. 39870. The final rules assert, without explanation or analysis, that the mandate and the narrow exemption comply with the requirements of the RFRA. For convenience, we will refer to these rules, together with the comprehensive guidelines regarding preventive services for women supported by HRSA as the “Final Mandate.” 102. Under the Final Mandate, HRSA’s discretionary “religious employer” exemption, which is still implemented via footnote on its website, see Ex. A, http://www.hrsa.gov/womensguidelines, is limited to organizations “organized and operate[d]” as nonprofit entities and “referred to in section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code,” which means that it is limited to “churches, their integrated auxiliaries, and conventions and associations of churches” and the “exclusively religious activities or any religious order.” 78 Fed. Reg. at 39896 (codified at 45 C.F.R. § 147.131(a)). 103. All other religious organizations, including the Class Action Plaintiffs, are excluded from the exemption.
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104. Although religious organizations like the Class Action Plaintiffs share the same religious beliefs and concerns regarding sanctity of life as the Southern Baptist Convention, the Departments deliberately ignored the regulation’s impact on their religious liberty, stating that the “simplified and clarified definition of religious employer continues to respect the religious interests of houses of worship and their integrated auxiliaries in a way that does not undermine the governmental interests furthered by the contraceptive coverage requirement.” 78 Fed. Reg. at 39874.
105. The Final Mandate creates a separate “accommodation” for certain non-exempt religious organizations defined as “eligible organizations”. 78 Fed. Reg. at 39874 (codified at 45 C.F.R. § 147.131(b)&(c)).
106. An organization is an “eligible organization” and therefore eligible for the “accommodation” if it (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874 (codified at 45 C.F.R. § 147.131(b)).
107. The purpose or, at the very least, the impact of the Final Mandate, including the restrictively narrow scope of the religious employer exemption, is to discriminate against religious organizations that oppose contraception and abortion and to violate the Plaintiffs’ rights to the free exercise of religion, the freedom of speech, expressive association under the First Amendment, the Establishment Clause of the First Amendment, equal protection of the law
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guaranteed by the Fifth Amendment, and rights under RFRA. The Final Mandate is also generally invalid because its adoption violated the APA.
108. The Final Mandate applies to group health plans and health insurance issuers for plan years beginning on or after January 1, 2014, except that the amendments to the religious employer exemption apply to plan years beginning on or after August 1, 2012. See 78 Fed. Reg. at 39870. Defendants also extended the “temporary enforcement safe harbor” to encompass plan years beginning on or after August 1, 2013, and before January 1, 2014. Id. at 39872.
109. An eligible organization seeking an “accommodation” must execute a selfcertification “prior to the beginning of the first plan year to which an accommodation is to apply,” and deliver it to the organization’s insurer or, if the organization has a self-insured plan, to the plan’s appropriate third party administrator. Id. at 39875.
110. Thus, an eligible organization would need to execute the self-certification prior to its first plan year that begins on or after January 1, 2014. Id. VI. APPLICATION OF THE FINAL MANDATE TO THE PLAINTIFFS
A. Class Action Plaintiffs 111. By definition, none of the Class Action Plaintiffs are “religious employers” eligible for exemption under the Final Mandate. Therefore, the Final Mandate forces the Class Action Plaintiffs to choose between incurring severe financial hardship or violating their religious beliefs in one of the four following courses of action.
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1. Incur Financial Hardship or Violate Religious Beliefs By Continuing Participation in the GuideStone Plan
112. First, a Class Action Plaintiff could continue its participation in the GuideStone Plan. Doing so, however would force the Class Action Plaintiffs to choose between two unacceptable actions. The Class Action Plaintiffs could refuse to self-certify to any third party administrator under the GuideStone Plan to provide the coverage of drugs and devices and related counseling and education for their employees and dependents. For such refusal, however, each Class Action Plaintiff, regardless of its size, will be discriminated against for exercising its religious beliefs by being subject to a penalty beginning on January 1, 2014, under section 4980D of the Code, of $100 per day with respect to each individual to whom the failure to provide contraceptive services relates. See 26 U.S.C. §§ 4980D & 9815 (the latter section implements the preventive services requirements set forth in 42 U.S.C. § 300gg-13(a)(4)). The alternative course – to identify, begin a relationship with, and designate a third party administrator to provide the required contraceptive coverage in connection with the GuideStone Plan–would require the Class Action Plaintiffs to violate the requirements of their religion by contracting for, arranging for, and facilitating the coverage at issue.
a. Contracting or Arranging For 113. By delivering its self-certification to a third party administrator, a Class Action Plaintiff would trigger the third party administrator’s obligation to “provide or arrange separate payments for contraceptive services directly for plan participants and beneficiaries.” 78 Fed. Reg. at 39880.
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114. The self-certification must specifically notify the third party administrator of its “obligations set forth in the[] final regulations, and 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.” 78 Fed. Reg. at 39879.
115. In the case of a third party administrator to an ERISA-covered plan, the Final Mandate apparently assumes this obligation is imposed on the third party administrator by virtue of ERISA, because the third party administrator is already required to comply with the provisions of ERISA applicable to group health plans subject to ERISA, including section 715 of ERISA, which was added by the Affordable Care Act to impose the contraceptive coverage requirement on ERISA-covered plans. 78 Fed. Reg. 39870, 39876-77 n. 28 and 39881 n. 42 (July 2, 2013). However, ERISA cannot furnish the basis for the third party administrator’s obligations in the case of a plan like the GuideStone Plan that is not subject to ERISA. Accordingly, there can be no other basis for the third party administrator’s obligation to provide for or arrange for payments for contraceptive services other than through its contract with the GuideStone Plan.
116. The third party administrator would be required to provide the contraceptive benefits “in a manner consistent” with the provision of other covered services. 78 Fed. Reg. at 39876-77. Thus, any payment or coverage disputes presumably would have to be resolved under the terms of the GuideStone Plan—a state of affairs that violates the religious beliefs of both GuideStone and the Class Plaintiffs.
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b. Facilitating 117. Initially, a Class Action Plaintiff would have to identify its employees to the appropriate third party administrator for the distinct purpose of enabling the government’s scheme. The current third party administrators for the GuideStone Plan have not agreed to provide the drugs, devices and related services at issue to the Class Action Plaintiffs. Thus, GuideStone would have to seek out one or more administrators solely for the purpose of having the administrators provide the drugs, devices and related services at issue. After self-certifying to a third party administrator to provide the drugs and devices at issue, a Class Action Plaintiff would have to coordinate with the third party administrator regarding when it was adding or removing employees and beneficiaries from the GuideStone Plan and, as a result, from the contraceptive and abortifacient services payment scheme. 118. A Class Action Plaintiff would also have to coordinate with any appropriate third party administrator under the GuideStone Plan to provide notice to plan participants and beneficiaries of the contraceptive payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan, again under the auspices of the GuideStone Plan. 78 Fed. Reg. at 39876.
c. Paying For 119. The Final Rule sets forth a complex means through which a third party administrator may seek to recover its costs incurred in making payments for contraceptive and abortifacient services.
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120. The third party administrator must identify an issuer who participates in the federal exchanges established under the Affordable Care Act and who would be willing to make payments on behalf of the third party administrator.
121. Cooperating issuers would then be authorized to obtain refunds from the user fees they have paid to participate in the federal exchange as a means of being reimbursed for making payments for abortifacient contraceptives and related education and counseling on behalf of the third party administrator.
122. Issuers would be required to pay a portion of the refund back to the third party administrator to compensate it for any administrative expenses it has incurred.
123. These extreme machinations, ostensibly employed only to shift the cost of the Final Mandate, are severely flawed.
124. It is far from clear that there is a way to ensure that the cost of administering the coverage for, or access to, abortifacients and related education and counseling would not be passed on to the Class Action Plaintiffs through the third party administrator’s fees.
125. Moreover, taking the user fees intended for funding the federal exchanges and using them to provide contraceptive and abortifacient services to employees not participating in the federal exchanges would violate the statute authorizing the user fees. See 78 Fed. Reg. 15410, 15412 (Mar. 11, 2013); 31 U.S.C. § 9701.
2. Forced to Take Actions Contrary to Religious Beliefs and Incur Financial and Competitive Hardship By Discontinuing All Coverage
126. Second, a Class Action Plaintiff could discontinue participation in the GuideStone Plan and not seek replacement coverage. However, this choice would require the Class Action
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Plaintiffs to compromise their religious beliefs and place themselves at a disadvantage because of the Final Mandate. The Class Action Plaintiffs’ religious beliefs motivate them to promote the spiritual and physical well-being of their employees by providing them with health benefits within the construct of those beliefs; however, the Act and Final Mandate would present them with an all-or-nothing choice: either provide benefits that comply with the Final Mandate or cut benefits entirely. The Class Action Plaintiffs’ present course—providing benefits for their employees and their families, but doing so without violating their religion—has been outlawed.
127. Similarly, by being forced to discontinue all coverage, the Class Action Plaintiffs would be forced to mistreat their employees, and would be placed at a severe competitive disadvantage in their efforts to hire and retain employees.
128. Additionally, discontinuing coverage would impose on a Class Action Plaintiff with an average of 50 or more full-time employees an excise tax penalty of $2,000 annually beginning in 2015 for each full-time employee if at least one full-time employee enrolls for and receives subsidized coverage on a Health Insurance Marketplace formed in response to the Act (commonly referred to as an “exchange”).
3. Forced to Take Actions Contrary to Their Religious Beliefs by Replacing Coverage Under the GuideStone Plan With Group Insurance
129. Third, to avoid any penalties, a Class Action Plaintiff could discontinue participation in the GuideStone Plan and seek other coverage for its employees through group insurance that provides coverage for abortifacients and related education and counseling under the Act and Final Mandate. However, this would not be an acceptable alternative for a Class Action Plaintiff because it would require it to contract for, facilitate or pay for the provision of
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abortifacient contraceptives and related education and counseling thereby infringing on its sincerely held religious beliefs.
a. Contracting or Arranging For 130. The Class Action Plaintiffs’ religious convictions equally counsel against contracting with an insurance company that will provide free coverage for, or access to, contraceptives that are or could be abortifacients and related education and counseling, which would infringe their sincerely held religious beliefs. 131. Even if group insurance were an acceptable alternative, it is not a practical alternative. A change in coverage effective January 1, 2014, would require a Class Action Plaintiff to: (i) budget for the new coverage; (ii) select an insurer; (iii) negotiate a group contract with the insurer; and (iv) communicate the changes to its employees. There is insufficient time in which to do so. 132. The Affordable Care Act requires that participants in a group health plan be given a Summary of Benefits and Coverage that “accurately describes the benefits and coverage” of the plan. Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg-9). 133. Additionally, plan participants must be given a written notice of any material change in the Summary of Benefits and Coverage at least 60 days’ in advance notice of any such change. See 77 Fed. Reg. 8668, 8698-8705 (Feb. 14, 2012) (codified at 26 C.F.R. § 54.98152715(b), 29 C.F.R. § 2590.715-2715(b) and 45 C.F.R. § 147.200(b)). 134. Any change to a fully insured plan would likely constitute a material change in the information previously provided to covered employees of a Class Action Plaintiff in the Summary of Benefits and Coverage, which would require 60 days’ advance notice to the
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participants. 77 Fed. Reg. at 8698-8705. However, because of the lateness of the Final Mandate, there is inadequate time in which to change coverage within the law.
b. Facilitating 135. By having to take active steps to identify an insurance company that provides coverage for abortifacients and related education and counseling, to contract with that insurer, and to supply and adopt plan documentation and information that triggers coverage for those services (including the self-certification form), the Class Action Plaintiffs would be required to actively facilitate and promote the distribution of these products and services in ways that are constrained by their religious convictions.
c. Paying For 136. Defendants state that they “continue to believe, and have evidence to support,” that providing payments for contraceptive and abortifacient services will be “cost neutral for issuers,” because “[s]everal studies have estimated that the costs of providing contraceptive coverage are balanced by cost savings from lower pregnancy-related costs and from improvements in women’s health.” 78 Fed. Reg. at 39877. 137. On information and belief, the studies Defendants rely upon to support this claim are severely flawed. 138. Nevertheless, even if the payments were—over time—to become cost neutral, it is undisputed that there will be up-front costs for making the payments. See, e.g., id. at 39877-78 (addressing ways insurers can cover up-front costs).
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139. Moreover, if cost savings arise that make insuring an employer’s employees cheaper, the savings would have to be passed on to employers through reduced premiums, not retained by insurance issuers.
140. The Departments suggest that to maintain cost neutrality issuers may simply ignore this fact and “set the premium for an eligible organization’s large group policy as if no payments for contraceptive services had been provided to plan participants.” Id. at 39877.
141. This encourages issuers to artificially inflate the eligible organization’s premiums. 142. Under this methodology—even assuming its legality—the eligible organization would still bear the cost of the required payments for contraceptive and abortifacient services contrary to its sincerely held religious beliefs, as if the accommodation had never been made.
4. Impinge Religious Beliefs by Adopting a Self-Insured Plan With a Third Party Administrator Willing to Provide or Arrange for Contraception Benefits
143. Fourth, a Class Action Plaintiff could discontinue participation in the GuideStone Plan and adopt its own self-insured employee benefit plan for its employees and appoint a “third party administrator” under the Final Mandate to provide or arrange for the provision of contraceptives that are or could be abortifacients and related education and counseling.
144. As with the third option, this, too, would not be an acceptable alternative to the Class Action Plaintiffs because it would impinge their religious freedom by causing them to contract or arrange for, facilitate and pay for the provision of abortifacients and related education and counseling.
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a. Contracting or Arranging For 145. To comply with the Final Mandate in this manner, a Class Action Plaintiff would need to actively seek out and start a relationship with a third party administrator who is willing to provide the products and services at issue. 146. A Class Action Plaintiff would also need to send a self-certification to the third party administrator. By delivering its self-certification to the third party administrator of the new self-insured plan, a Class Action Plaintiff would trigger the third party administrator’s obligation to “provide or arrange separate payments for contraceptive services directly for plan participants and beneficiaries.” Id. at 39880. 147. The self-certification must specifically notify the third party administrator of its “obligations set forth in the[] final regulations, and 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 39879. 148. In the case of a third party administrator to an ERISA-covered plan, the Final Mandate apparently assumes this obligation is imposed on the third party administrator by virtue of ERISA, because the third party administrator is already required to comply with the provisions of ERISA applicable to group health plans subject to ERISA, including section 715 of ERISA, which was added by the Affordable Care Act to impose the contraceptive coverage requirement on ERISA-covered plans. 78 Fed. Reg. 39870, 39876-77 n. 28 and 39881 n. 42 (July 2, 2013). However, ERISA cannot serve as the basis for the third party administrator’s obligations in the case of a self-insured church plan that is not subject to ERISA. Accordingly,
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there can be no other basis for the third party administrator’s obligation to provide for or arrange for payments of contraceptive services other than through its contract with the new plan.
149. The third party administrator would be also required to provide the contraceptive benefits “in a manner consistent” with the provision of other covered services. Id. at 39876-77. Thus, any payment or coverage disputes presumably would be resolved under the terms of the Class Action Plaintiff’s plan documents.
150. As previously discussed, even if this alternative were an acceptable option, this would not be a practical alternative for a Class Action Plaintiff effective January 1, 2014. Class Action Plaintiffs would be required to: (i) budget for the new coverage; (ii) select a third party administrator willing to provide for or arrange contraceptive coverage; (iii) negotiate an administrative services agreement with the third party administrator; and (iv) communicate the plan changes to their employees.
151. For budgeting purposes, new single employer self-insured coverage may not be practical for a Class Action Plaintiff because it would impose a potential uncapped liability on the Class Action Plaintiff in light of the Act’s prohibition on annual and lifetime limits. Pub. L. No. 111-148 § 1001(5), 124 Stat. 131 (codified at 42 U.S.C. § 300gg-11).
152. A Class Action Plaintiff would have to actively seek out a third party administrator willing to provide or arrange for contraception and other objectionable benefits. Defendants acknowledge “there is no obligation for a third party administrator to enter into or remain in a contract with the eligible organization if it objects to any of these responsibilities.” 78 Fed. Reg. at 39880.
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153. Additionally, there is inadequate time to provide any changes in plan documentation, including any Summary of Benefits and Coverage and notices of any material change in the Summary of Benefits and Coverage. See 77 Fed. Reg. at 8698-8705 (codified at 26 C.F.R. § 54.9815-2715(b), 29 C.F.R. § 2590.715-2715(b) and 45 C.F.R. § 147.200(b)).
b. Facilitating 154. Under this option, the Class Action Plaintiffs would be required to actively facilitate and promote the distribution of these services in ways that would infringe upon their religious beliefs. Initially, a Class Action Plaintiff would have to identify its employees to the third party administrator for the distinct purpose of enabling the government’s scheme. Thereafter, a Class Action Plaintiff would have to coordinate with the third party administrator regarding when it was adding or removing employees and beneficiaries from its healthcare plan and, as a result, from the contraceptive and abortifacient services payment scheme. A Class Action Plaintiff would also have to coordinate with third party administrators to provide notice to plan participants and beneficiaries of the contraceptive payment benefit “contemporaneous with (to the extent possible) but separate from any application materials distributed in connection with enrollment” in a group health plan, under the auspices of the Class Action Plaintiff’s own selffunded plan. 78 Fed. Reg. at 39876.
c. Paying For 155. The Final Rule sets forth complex means through which a third party administrator may seek to recover its costs incurred in making payments for contraceptive and abortifacient services.
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156. The third party administrator must identify an issuer who participates in the federal exchanges established under the Affordable Care Act and who would be willing to make payments on behalf of the third party administrator.
157. Cooperating issuers would then be authorized to obtain refunds from the user fees they have paid to participate in the federal exchange as a means of being reimbursed for making payments for contraceptive and abortifacient services on behalf of the third party administrator.
158. Issuers would be required to pay a portion of the refund back to the third party administrator to compensate it for any administrative expenses it has incurred.
159. These extreme machinations, ostensibly employed only to shift the cost of the Final Mandate, are severely flawed.
160. There is no way to ensure that the cost of administering the coverage for, or access to, contraceptives that are or could be abortifacients and related education and counseling would not be passed on to the Class Action Plaintiffs through the third party administrator’s fees.
161. Moreover, taking the user fees intended for funding the federal exchanges and using them to provide contraceptive and abortifacient services to employees not participating in the federal exchanges would violate the statute authorizing the user fees. See 78 Fed. Reg. 15410, 15412 (Mar. 11, 2013); 31 U.S.C. § 9701.
162. For all these reasons, the accommodation does not relieve non-exempt religious organizations like the Class Action Plaintiffs from facilitating free access to contraceptives that are or could be abortifacients and related education and counseling.
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B. GuideStone 163. The Final Mandate forces GuideStone to choose between violating the shared religious beliefs of the Southern Baptist Convention and its participating employers regarding the sanctity of life or interfering with its ability to carry out its ministry assignment to provide health plans to churches and other ministry organizations. GuideStone has only three courses of action with respect to the coverage for employees of the Class Action Plaintiffs after December 31, 2013.
1. Continue Refusal to Provide Coverage for Abortifacient Contraceptives and Related Services
164. First, GuideStone Financial Services could continue to refuse to do anything that would provide coverage under the GuideStone Plan for contraceptives that are or could be abortifacient abortion-inducing drugs and devices and related education and counseling services. However, as discussed earlier, this would expose Class Action Plaintiffs that remain in the GuideStone Plan to the financially ruinous penalties under Code section 4980D of $100 per day for each affected individual. Alternatively, Class Action Plaintiffs may be financially forced to cancel their health care coverage for their employees, and this would have a substantial adverse financial impact on the GuideStone Plan and the remaining employers because there would be fewer participating employers to share the fixed costs of administration.
165. Pursuing this course could force the GuideStone to dramatically scale back the ministry it has been assigned by the Southern Baptist Convention to provide health insurance benefits to evangelical ministry organizations.
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2. Provide Coverage for Abortifacient Contraceptives and Related Services Through an Accommodation
166. Second, at least in theory, a third party administrator of the GuideStone Plan could provide through an “accommodation” coverage for abortifacients and related education and counseling services. However, doing so would impinge the sincerely held religious beliefs GuideStone shares with the Southern Baptist Convention and the Class Action Plaintiffs, by causing it to enter into contracts with one or more third party administrators who in turn will have the responsibility to contract or arrange for, facilitate and pay for the provision of abortifacients and related education and counseling.
167. Additionally, the Final Mandate purports to restrict GuideStone from interfering with the accommodation thereby having its rights to free speech and the free exercise of its religious convictions curtailed. See 26 C.F.R. § 54.9815-2713A(b)(1)(B)(iii), published 78 Fed. Reg. 39870, 39892-93 (July 2, 2013) (prohibiting interference with the third party administrator’s arrangements to provide contraceptive services).
168. Further, the mere fact that GuideStone may have a contractual relationship with one or more third party administrators that could be called upon to effectuate the accommodation impinges its sincerely held religious beliefs.
169. Class Action Plaintiffs may be forced to cancel their health care coverage for their employees for religious reasons to avoid the provision of objectionable coverage, and this would have a substantial adverse financial impact on employers and participants remaining in the GuideStone Plan because there would be fewer participating employers to share the fixed costs of administration.
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3. Drop Coverage for All Class Action Plaintiffs 170. Third, effective January 1, 2014, GuideStone could seek to limit its coverage to only “religious employers” that are exempt from the Final Mandate. This would force GuideStone to stop a large part of its religious exercise, and would be counter to its ministry assignment from the Southern Baptist Convention to make available health coverage to those employers that share common bonds and convictions with the Southern Baptist Convention. This would also cause a severe disruption to the Class Action Plaintiffs who would be dropped from the GuideStone Plan, unless they wanted to drop employee health coverage altogether, they would be forced at this late date to seek other coverage beginning January 1, 2014. Finally, limiting coverage would also have an adverse impact on the employers and participants continuing to utilize the GuideStone Plan because there would be fewer participating employers to share the fixed costs of administration. VII. RELIGIOUS FREEDOM RESTORATION ACT 171. Under RFRA, the Federal Government is prohibited from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability,” unless it “demonstrates that application of the burden to the person is (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. A. The Mandate Substantially Burdens Plaintiffs’ Exercise of Religion 172. As previously discussed, forcing Plaintiffs to provide, contract or arrange for, pay for or otherwise facilitate access to contraceptives that are or could be abortifacients and related
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education and counseling or suffer substantial adverse economic effects is a substantial burden on their exercise of religion.
173. As discussed earlier, the Southern Baptist Convention has passed Resolutions supporting the sanctity of life and condemning elective abortions in general and abortifacient drugs in particular. Relevant Resolutions adopted by the Southern Baptist Convention that are still in force provide as follows:
1988 – “we call upon all Southern Baptists to take an active stand in support of the sanctity of human life” 1991 – “we oppose the testing, approval, distribution, and marketing in America of new drugs and technologies which will make the practice of abortion more convenient and more widespread” 1993 – “we oppose the testing, approval, distribution, marketing and usage in the United States of any abortion pills and urge U.S. corporations which are considering such business ventures to refuse to do so” 1994 – “we . . . condemn the blatant advocacy of RU 486 by the Clinton Administration, and oppose the testing, approval, manufacturing, marketing, and sale of the abortion pill in the United States” 2000 - “[we] reaffirm our abhorrence of elective abortion” 174. Article 15 of the Baptist Faith and Message 2000, which has the heading “The Christian and the Social Order,” provides “[w]e should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death.” 175. Reaching Souls, Truett-McConnell and the other Class Action Plaintiffs share the core convictions of the Southern Baptist Convention regarding the sanctity of life from conception to natural death. For example, Truett-McConnell has adopted the Baptist Faith and Message 2000 as its official doctrinal statement and displays it on its website under the heading
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“About Us.” See http://www.truett.edu/abouttmc/baptist-faith-a-message.html (last visited Oct. 11, 2013.) The Baptist Faith and Message 2000 is also listed in the Employee Handbook provided to all Truett-McConnell employees. Additionally, all full-time faculty have signed the document as part of their employment agreement since October 27, 2010. Therefore, TruettMcConnell believes that an abortion or other method that harms an embryo from the moment of conception/fertilization, ends a human life and is a sin. Reaching Souls and Truett-McConnell are dedicated to carrying out their missions and ministries in accordance with their religious principles. Accordingly, they have adopted the GuideStone Plan so that their employee health plan is consistent with these religious principles.
176. Consistent with the polity of the Southern Baptist Convention, which recognizes the autonomy and independence of the local church, no Southern Baptist church or Southern Baptist-church-affiliated organization is required to adopt the GuideStone Plan to provide benefits for its employees, but those that have adopted the GuideStone Plan have evidenced their commitment to provide an employee benefit plan that is consistent with their commitment to human life.
177. Reaching Souls and Truett-McConnell cannot participate in the government’s system for providing coverage for abortion-inducing drugs, and related counseling and education, for its employees. They cannot pay for such benefits. They cannot provide paperwork that will trigger such benefits. They cannot designate another party to provide such benefits. They cannot make certifications that would create a duty for another entity to provide such benefits under their plan and through them. Simply put, as a matter of religious faith,
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Reaching Souls and Truett-McConnell cannot participate in any way in the government’s program to provide access to these services without violating their deeply held religious beliefs.
178. The other class members—all of whom share the core convictions of the Southern Baptist Convention regarding the sanctity of life from conception to natural death, and all of whom have chosen to provide health benefits through the GuideStone Plan, which is expressly designed to provide benefits in accordance with Southern Baptist Convention principles and does not provide abortifacient contraceptive coverage—likewise cannot participate in the government’s program without violating their religious beliefs.
179. GuideStone is likewise operated in accordance with these religious teachings, and cannot participate in the government’s program to provide access to these abortifacient services without violating its sincerely held religious beliefs. The Final Mandate would impinge its religious freedom by requiring it to enter into contracts with one or more third party administrators who in turn will have the responsibility to contract or arrange for, facilitate and pay for the provision of abortifacients and related education and counseling. As described above, the Final Mandate would require GuideStone to either compromise its religious beliefs or dramatically reduce its religious exercise of administering health benefits in accordance with Southern Baptist principles.
180. As set forth above, refusing to comply with the Final Mandate will result in severe financial consequences for the class members (in the form of massive fines and penalties) and for GuideStone (in the form of elimination of large portions of its ministry).
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181. For all Plaintiffs, therefore, the Final Mandate “requires participation in an activity prohibited by a sincerely held religious belief,” prevents participation in conduct motivated by a sincerely held religious belief, and “places substantial pressure on” the class members “to engage in conduct contrary to a sincerely held religious belief.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1138 (10th Cir. 2013), petition for cert. filed (U.S. Sept. 19, 2013) ( No. 13-354). This is the essence of a substantial burden on religion.
B. There is No Compelling Interest for the Application of the Final Mandate to Plaintiffs
182. The government lacks any compelling interest in coercing the Plaintiffs to promote and facilitate access to contraceptives that are or could be abortifacients and related education and counseling.
183. Many of these goods or services are already widely available at non-prohibitive costs.
184. The FDA has approved twenty contraceptive methods that fall under the Final Mandate. Id. at 1123. In this Complaint, Plaintiffs only object to four of the twenty currently FDA approved methods, an identical objection to that of the Hobby Lobby plaintiffs. Id. at 1125, namely: (1) ella; (2) Plan B, Plan B One-Step, and Next Choice (Levonorgestrel); (3) the Copper IUD; and (4) the IUD with Progestin.
185. Among other things, the Departments claim that the “religious employers” exemption does not undermine its compelling interest in making contraceptive and abortifacient services available for free to women because “houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers
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to employ people who are of the same faith and/or adhere to the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. at 39887. Under this reasoning, the Class Action Plaintiffs should also be exempt. Because the Class Action Plaintiffs share the well-known views of the Southern Baptist Convention on abortifacients, the Class Action Plaintiffs’ employees are just as likely as employees of exempt organizations to adhere to the same values, and thus are less likely than other people to use the objectionable drugs, devices, and services.
186. In one form or another, the government also provides exemptions for: (i) grandfathered plans, 42 U.S.C. § 18011; 75 Fed. Reg. at 41731; (ii) small employers with fewer than 50 employees, 26 U.S.C. § 4980H(c)(2)(A)1; (iii) members of certain religious sects or divisions that conscientiously object to acceptance of public or private insurance funds, 26 U.S.C. § 5000A(d)(2)(A)(i); and (iv) members of “health care sharing ministries” that meet certain criteria, 26 U.S.C. § 5000A(d)(2)(B)(i).
187. Although there are many requirements for maintaining grandfathered status, see 26 C.F.R. § 54.9815-1251T(g), if those requirements are met, a plan may be grandfathered for an indefinite period of time.
188. According to the Departments’ “mid-range estimate,” 55% of large-employer plans would remain grandfathered and 34% of small-employer plans would remain grandfathered for 2013. Defendants assumed that large-employer plans accounted for 133
1 To be clear, although small employers are exempt from the penalties under Code section 4980H if they do not provide coverage, they are subject to the penalties under Code section 4980D if they do provide coverage that does not include coverage for abortifacient contraceptives and related services.
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million enrollees, and small-employer plans accounted for 43 million enrollees, so their “midrange” projections anticipated that roughly 88 million Americans would still be covered by grandfathered plans in 2013. 75 Fed. Reg. 34538, 34550 & 34553 (June 17, 2010); see also http://web.archive.org/web/20130620171510/http://www.healthcare.gov/news/factsheets/2010/0 6/keeping-the-health-plan-you-have-grandfathered.html (last visited Oct. 11, 2013) (attached as Exhibit 4); https://www.cms.gov/CCIIO/Resources/Files/factsheet_grandfather_amendment .html (noting that amendment to regulations “will result in a small increase in the number of plans retaining their grandfathered status relative to the estimates made in the grandfathering regulation”) (attached as Exhibit 5).
189. In fact, these projections regarding the number of employees still covered by grandfathered plans may be low since they were based only on ERISA-covered plans and governmental plans, thus omitting non-ERISA church plans like the GuideStone Plan. 75 Fed. Reg. at 34550.
190. According to the United States Small Business Administration, in 2010, more than 31 million individuals are employed by firms with fewer than 50 employees. See, static_us(2).xlsx at http://www.sba.gov/advocacy/849/12162#susb (last visited Oct. 11, 2013) (attached as Exhibit 6).
191. These broad exemptions demonstrate that the government has no compelling interest in refusing to include religious organizations like the Class Action Plaintiffs within its religious exemption.
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192. These broad exemptions also demonstrate that the Final Mandate is not a generally applicable law entitled to judicial deference, but rather is constitutionally flawed.
193. The government’s willingness to exempt various secular organizations and postpone the employer mandate, while adamantly refusing to provide anything but the narrowest of exemptions for religious organizations also shows that the Final Mandate is not neutral, but rather discriminates against religious organizations because of their religious commitment to promoting the sanctity of life.
194. Indeed, the Final Mandate was promulgated by government officials, and supported by non-governmental organizations, who hold religious beliefs regarding marriage, family, and abortion that are firmly contrary to the Plaintiffs’ beliefs.
195. Defendant Sebelius, for example, has long been a staunch supporter of abortion rights and a vocal critic of religious teachings and beliefs regarding abortion and contraception. On October 5, 2011, six days after the comment period for the original Interim Final Rules ended, Defendant Sebelius gave a speech at a fundraiser for NARAL Pro-Choice America. She told the assembled crowd that “we are in a war.” See William McGurn, Op-Ed., The Church of Kathleen Sebelius, Wall St. J., Dec. 13, 2011, available at http://online.wsj.com/article/SB10001424052970203518404577094631979925326.html (last visited Oct. 11, 2013).
196. She further criticized individuals and entities, whose beliefs differed from those held by her and the others at the fundraiser, stating: “Wouldn’t you think that people who want to
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reduce the number of abortions would champion the cause of widely available, widely affordable contraceptive services? Not so much.” Id.
197. On July 16, 2013, Secretary Sebelius further compared opponents of the Affordable Care Act generally to “people who opposed civil rights legislation in the 1960s,” stating that upholding the Act requires the same action as was shown “in the fight against lynching and the fight for desegregation.” See Kathleen Sebelius, U.S. Secretary of Health and Human Services, Address at the 104th NAACP Annual Conference (July 16, 2013), available at http://www.hhs.gov/secretary/about/speeches/sp20130716.html (last visited Oct. 11, 2013).
C. The Final Mandate is Not the Least Restrictive Means of Providing Contraceptive Services
198. There are multiple ways in which the government could provide access to contraceptives and related education and counseling without requiring religious employers such as the Class Action Plaintiffs to provide for such benefits through their employee benefit plans in violation of their religious beliefs.
199. 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 coverage for contraceptive services; (iv) grant tax credits or deductions to women who purchase contraceptive services; or (v) allow employees who want plans with drugs and devices at issue to access such plans in the new healthcare exchanges.
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200. Plaintiffs in no way recommend these alternatives, and, indeed, oppose many or all of them as a matter of policy. But the fact that they remain available to the government demonstrates that the Final Mandate cannot survive the requirement of RFRA prohibiting the Federal Government from “substantially burden[ing] a person’s exercise of religion,” unless, among other things, it is the “least restrictive means of furthering” the government’s compelling interest. 42 U.S.C. § 2000bb-1(b)(2). VIII. CLASS ACTION ALLEGATIONS
201. Reaching Souls and Truett-McConnell (the “Class Representatives”) bring this action on behalf of themselves and all others similarly situated as members of a proposed plaintiff class pursuant to Sections (a), (b)(1), and (b)(2) of Rule 23 of the Federal Rules of Civil Procedure. This action satisfies the numerosity, commonality, typicality, adequacy, risk of incompatible standards, and cohesiveness requirements of those provisions.
202. The class is defined as those employers that: (i) have adopted or in the future will adopt the GuideStone Plan to provide medical coverage for their “employees” or former employees and their dependents (“employees” for purposes of this requirement has the meaning set forth in Code section 414(e)(3)(B)); (ii) are or could be reasonably construed to be “eligible organizations” within the meaning of the Final Mandate; and (iii) are not “religious employers” within the meaning of the Final Mandate.
203. The class members are all evangelical organizations operated in accordance with Southern Baptist principles and religious teachings, and that share the core convictions of the Southern Baptist Convention regarding the sanctity of life from conception to natural death. Currently, there are estimated to be more than 138 current class member employers in
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approximately 26 states. The proposed class includes employers that are not currently known but may join the GuideStone Plan in the future. Accordingly, joinder is impracticable, and the disposition of the claims of these class members in a single class action will provide substantial benefits to all parties and to the Court. The claims of the representative Class Representatives are typical of the claims of the class in that the Class Representatives and all class members will be equally and similarly harmed by the Defendants’ enforcement of the Affordable Care Act and Final Mandate. Furthermore, the factual bases of Defendants’ actions are common to all class members. The class members share in the same religious beliefs regarding the sanctity of life from conception to natural death and, therefore, will suffer the same impact and violation of rights.
204. Most if not all of the questions of law and fact are common to the Class Representatives and the class members as set forth above. By definition none of the Class Action Plaintiffs are eligible for the religious employer exemption under the Final Mandate. Therefore, the Final Mandate forces the Class Action Plaintiffs to choose between incurring severe financial hardship or substantially burdening their sincerely held religious beliefs and suffering the infringement of their religious freedom by taking steps to invoke the “accommodation,” in one of the four courses of action discussed above.
205. The Class Representatives will fairly and adequately protect the interests of the Class. The Class Representatives have retained counsel with substantial experience in litigating class action cases and in litigating violations of religious and constitutional rights. Plaintiffs and their counsel are committed to prosecuting this action vigorously on behalf of the Class, and
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have the resources to do so. Upon information and belief, the Class Representatives do not have an interest adverse to those of the class.
206. This case is maintainable as a class action under Rule 23(b)(1) of the Federal Rules of Civil Procedure. Because the Class Representatives seek injunctive relief and corresponding declaratory relief for the entire class, the prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to Defendants and with respect to individual members of the class which would establish incompatible standards of conduct for Defendants. Further, separate adjudications with respect to individual class members would, as a practical matter, give rise to avoidable litigation over whether the separate adjudications are dispositive of the interests of other class members who are not parties and may impair and impede their ability to protect their interests.
207. This case is also maintainable as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure because Defendants have acted and refused to act on grounds generally applicable to the entire class under the same statute and regulations. All members of the class are entitled to a declaration that the Final Mandate violates the Class Action Plaintiffs’ rights to the free exercise of religion, the freedom of speech, and expressive association under the First Amendment; violate the Establishment Clause of the First Amendment; deprive Class Action Plaintiffs of the equal protection of the law guaranteed by the Fifth Amendment; and violate the Religious Freedom Restoration Act. Further, all members of the class will be entitled to an injunction prohibiting Defendants from enforcing the Final Mandate against the Class Action Plaintiffs and from charging or assessing penalties against the Class Action Plaintiffs for failure
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to offer or facilitate access to contraceptives that are or could be abortifacients and related education and counseling. IX. CAUSES OF ACTION
COUNT I Violation of the Religious Freedom Restoration Act 208. The Plaintiffs incorporate by reference all preceding paragraphs. 209. Plaintiffs’ sincerely held religious beliefs require them to speak on behalf of the unborn, contend for the sanctity of all human life from conception to natural death, uphold the conviction that an abortion or other method that harms an embryo from the moment of conception/fertilization, ends a human life and is a sin. The Final Mandate which requires Plaintiffs to promote and support—directly and/or indirectly—abortifacients and related education and counseling, including providing a health care plan that provides access to or the means of acquiring such products or services, impinges upon Plaintiffs’ religious freedoms. Plaintiffs’ compliance with their religious beliefs is a religious exercise. 210. The Final Mandate substantially burdens Plaintiffs’ sincerely held religious beliefs. 211. The Final Mandate does not further any compelling governmental interest. 212. The Final Mandate is not the least restrictive means to accomplish any permissible governmental interest. 213. The Final Mandate creates government-imposed coercive pressure on the Plaintiffs to change, compromise, or violate their religious beliefs. 214. The Final Mandate chills the Plaintiffs’ religious exercise.
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215. The Final Mandate forces GuideStone to choose between suffering infringement upon its religious beliefs or dramatically reducing the scope of its ministry.
216. The Final Mandate exposes the Class Action Plaintiffs to substantial financial penalties for their religious exercise.
217. The Final Mandate exposes the Plaintiffs to substantial competitive disadvantages.
218. The Final Mandate imposes a substantial burden on the Class Action Plaintiffs’ religious exercise.
219. The Final Mandate is not the least restrictive means of furthering Defendants’ stated interests.
220. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate violate the Plaintiffs’ rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.
221. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT II Violation of the First Amendment to the United States Constitution
Free Exercise Clause Burden on Religious Exercise 222. The Plaintiffs incorporate by reference all preceding paragraphs.
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223. The Final Mandate compels the Plaintiffs to subsidize and/or provide access to abortifacients and related education and counseling regarding contraceptives that are or could be abortifacients thereby infringing upon their sincerely held religious beliefs. Plaintiffs’ compliance with these beliefs is a religious exercise.
224. Neither the Affordable Care Act nor the Final Mandate is neutral. 225. Neither the Affordable Care Act nor the Final Mandate is generally applicable. 226. Defendants have created categorical and individualized exemptions to the Final Mandate. 227. The Final Mandate furthers no compelling governmental interest. 228. The Final Mandate is not the least restrictive means of furthering Defendants’ stated interests. 229. The Final Mandate creates government-imposed coercive pressure on the Plaintiffs to change or violate its religious beliefs. 230. The Final Mandate chills Plaintiffs’ religious exercise. 231. The Final Mandate exposes Class Action Plaintiffs to substantial fines for their religious exercise. 232. The Final Mandate exposes the Plaintiffs to substantial competitive disadvantages with respect to the hiring and retention of employees. 233. The Final Mandate imposes a substantial burden on the Plaintiffs’ religious exercise.
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234. The Final Mandate is not narrowly tailored to any compelling governmental interest.
235. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate violate the Plaintiffs’ rights secured to it by the Free Exercise Clause of the First Amendment of the United States Constitution.
236. Absent injunctive and declaratory relief against the Final Mandate, the Class Action Plaintiffs have been and will continue to be harmed.
COUNT III Violation of the First Amendment to the United States Constitution
Free Exercise Clause Intentional Discrimination 237. The Plaintiffs incorporate by reference all preceding paragraphs. 238. The Plaintiffs’ sincerely held religious beliefs prohibit them from deliberately subsidizing and/or providing to their employees access to abortifacients and related education and counseling regarding contraceptives that are or could be abortifacients. The Plaintiffs’ compliance with these beliefs is a religious exercise. 239. Despite being informed in detail of these beliefs beforehand, Defendants designed the Final Mandate and the religious employers exemption therein to target religious organizations like the Plaintiffs because of their religious beliefs. 240. Defendants promulgated both the Final Mandate and its religious employers exemption to suppress the religious exercise of the Plaintiffs and others.
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241. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate thus violate the Plaintiffs’ rights secured to them by the Free Exercise Clause of the First Amendment of the United States Constitution.
242. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT IV Violation of the First Amendment to the United States Constitution
Free Exercise and Establishment Clauses Discrimination Among Religions
243. The Plaintiffs incorporate by reference all preceding paragraphs. 244. The Free Exercise Clause and Establishment Clause of the First Amendment mandate the equal treatment of all religious faiths and institutions without discrimination or preference. 245. This mandate of equal treatment protects organizations as well as individuals. 246. The Final Mandate’s narrow exemption for “religious employers” but not others discriminates among religions on the basis of religious views or religious status. 247. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate thus violate the Plaintiffs’ rights secured to them by the First Amendment of the United States Constitution. 248. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
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COUNT V Violation of the First Amendment to the United States Constitution
Establishment Clause Selective Burden/Denominational Preference (Larson v. Valente) 249. The Plaintiffs incorporate by reference all preceding paragraphs. 250. By design, Defendants imposed the Final Mandate on some religious organizations but not on others, resulting in a selective burden on the Plaintiffs. 251. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate therefore violate the Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment of the United States Constitution. 252. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT VI Interference in Matters of Internal Religious Governance
Free Exercise Clause and Establishment Clause 253. The Plaintiffs incorporate by reference all preceding paragraphs. 254. The Free Exercise Clause and the Establishment Clause protect the freedom of religious organizations to decide for themselves, free from state interference, matters of internal governance as well as those of faith and doctrine. 255. Under these Clauses, the government may not interfere with a religious organization’s internal decisions concerning the organization’s religious structure, leadership, or doctrine.
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256. 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.
257. Each of the Plaintiffs has made an internal decision, based on religious convictions regarding the sanctity of life, that the health plans it makes available to its employer members and employees may not subsidize, provide, or facilitate access to contraceptives that are or could be abortifacients and related education and counseling.
258. The Final Mandate’s interference with the Plaintiffs’ internal decisions affects their faith and mission by requiring them to subsidize, provide, and facilitate practices that directly conflict with their religious beliefs.
259. Because the Final Mandate interferes with the Plaintiffs’ internal decision making in a manner that affects their faith and mission, it violates the Establishment Clause and Free Exercise Clause of the First Amendment.
260. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT VII Religious Discrimination Violation of the First and Fifth Amendments to the United States Constitution Establishment Clause and Due Process 261. The Plaintiffs incorporate by reference all preceding paragraphs. 262. By design, Defendants imposed the Final Mandate on some religious organizations but not on others, resulting in discrimination among religious objectors.
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263. Religious liberty is a fundamental right. 264. The “religious employer” exemption in the Final Mandate protects many religious objectors, but not the Plaintiffs. 265. The “accommodation” in the Final Mandate provides no meaningful protection for the Plaintiffs. 266. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate therefore violate the Plaintiffs’ rights secured to them by the Establishment Clause of the First Amendment and the Due Process Clause of the Fifth Amendment to the United States Constitution. 267. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT VIII Violation of the Fifth Amendment to the United States Constitution
Due Process and Equal Protection 268. The Plaintiffs incorporate by reference all preceding paragraphs. 269. The Due Process Clause of the Fifth Amendment mandates the equal treatment of all religious faiths and institutions without discrimination or preference. 270. This mandate of equal treatment protects organizations as well as individuals. 271. The Final Mandate’s narrow exemption for “religious employers” but not others discriminates among religions on the basis of religious views or religious status.
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272. The Final Mandate and Defendants’ threatened enforcement of the Final Mandate thus violate the Plaintiffs’ rights secured to them by the Fifth Amendment of the United States Constitution.
273. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT IX Violation of the First Amendment to the United States Constitution
Freedom of Speech 274. The Plaintiffs incorporate by reference all preceding paragraphs. 275. The Plaintiffs believe that the governmental requirement to provide abortifacients and related education and counseling violates their religious beliefs. 276. The Final Mandate would compel Plaintiffs to provide self-certifications, designations, or other written or spoken statements which, by law, will trigger payments for abortifacients and related services. 277. The Final Mandate also forbids Plaintiffs from speaking to third party administrators and encouraging them not to provide access to abortifacient contraceptives. 278. The Final Mandate would compel the Plaintiffs to facilitate access to governmentdictated education and counseling related to contraceptives that are or could be abortifacients. 279. Defendants’ actions thus violate the Plaintiffs’ right to speak, and the Plaintiffs’ right to be free from compelled speech, as secured to them by the First Amendment of the United States Constitution.
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280. The Final Mandate’s speech restrictions are not narrowly tailored to a compelling governmental interest.
281. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT X Violation of the First Amendment to the United States Constitution
Freedom of Speech Expressive Association 282. The Plaintiffs incorporate by reference all preceding paragraphs. 283. The Plaintiffs sincerely believe that contraceptives that are or could be abortifacients violate their religious beliefs. 284. The Final Mandate would compel the Plaintiffs to facilitate activities that they sincerely believe are violations of their religious beliefs. 285. The Final Mandate would compel the Plaintiffs to facilitate access to governmentdictated education and counseling related to contraceptives that are or could be abortifacients. 286. Defendants’ actions thus violate the Plaintiffs’ right of expressive association as secured to them by the First Amendment of the United States Constitution. 287. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
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COUNT XI Violation of the First Amendment to the United States Constitution
Free Exercise Clause and Freedom of Speech Unbridled Discretion
288. The Plaintiffs incorporate by reference all preceding paragraphs. 289. By stating that HHS, through the Health Resources and Services Administration, “may” grant an exemption to certain religious groups, the Final Mandate purports to vest HHS with unbridled discretion over which organizations can have their First Amendment interests accommodated. 290. Defendants have ignored federal religious liberty law and have instead exercised unbridled discretion in a discriminatory manner by granting an exemption via footnote in a website for a narrowly defined group of “religious employers” but not for other religious organizations like the Plaintiffs. 291. Defendants have further exercised unbridled discretion by indiscriminately waiving enforcement of some provisions of the Affordable Care Act while refusing to waive enforcement of the Final Mandate, despite its conflict with the free exercise of religion. 292. Defendants’ actions therefore violate the Plaintiffs’ right not to be subjected to a system of unbridled discretion when engaging in speech or when engaging in religious exercise, as secured to them by the First Amendment of the United States Constitution. 293. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
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COUNT XII Violation of the Administrative Procedure Act Lack of Good Cause and Improper Delegation 294. The Plaintiffs incorporate by reference all preceding paragraphs. 295. The Affordable Care Act expressly delegates to HHS, through its agency HRSA, the authority to establish guidelines concerning the “preventive care” that a group health plan and health insurance issuer must provide. 296. Given this express delegation, Defendants were required to engage in formal notice-and-comment rulemaking in a manner prescribed by law before issuing the guidelines that group health plans and insurers must cover. Proposed regulations were required to be published in the Federal Register and interested persons were required to be given an opportunity to participate in the rulemaking through the submission of written data, views, or arguments. 297. Defendants promulgated the “preventive care” guidelines without engaging in formal notice-and-comment rulemaking in a manner prescribed by law. Defendants, instead, wholly delegated their responsibilities for issuing preventive care guidelines to a nongovernmental entity, the IOM. 298. The IOM did not permit or provide for the broad public comment otherwise required under the APA concerning the guidelines that it would recommend. The dissent to the IOM report noted both that the IOM conducted its review in an unacceptably short time frame, and that the review process lacked transparency. Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps, 231 (2011), available at http://www.nap.edu/openbook.php?record_id=13181&page=231 (last visited Oct. 11, 2013).
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299. Within two weeks of the IOM issuing its guidelines, Defendant HHS issued a press release announcing that the IOM’s guidelines were required under the Affordable Care Act. See 77 Fed. Reg. at 8725; see also Ex. A, http://www.hrsa.gov/womensguidelines.
300. Defendants have never adequately explained why they failed to enact these “preventive care” guidelines through notice-and-comment rulemaking as required by the APA.
301. Defendants’ stated reasons that public comments were unnecessary, impractical, and opposed to the public interest are false and insufficient, and do not constitute “good cause.”
302. Without proper notice and opportunity for public comment, Defendants were unable to take into account the full implications of the regulations by completing a meaningful “consideration of the relevant matter presented.”
303. Thereafter, Defendants did not consider or respond to the voluminous subsequent comments they received in opposition to the Interim Final Rules or the NPRM.
304. Therefore, Defendants have taken agency action not in observance with procedures required by law, and the Class Action Plaintiffs are entitled to relief pursuant to 5 U.S.C. § 706(2)(D).
305. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT XIII Violation of the Administrative Procedure Act
Arbitrary and Capricious Action 306. The Plaintiffs incorporate by reference all preceding paragraphs.
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307. In promulgating the Final Mandate, Defendants failed to consider the constitutional and statutory implications of the Final Mandate on the Plaintiffs and similar organizations.
308. Defendants’ explanation for their decision not to exempt the Plaintiffs and similar religious organizations from the Final Mandate runs counter to the evidence submitted by religious organizations during the comment periods.
309. Defendant Secretary Sebelius, in remarks made at Harvard University on April 8, 2013, essentially conceded that the Defendants completely disregarded the religious liberty concerns submitted by thousands of religious organizations and individuals. See Kathleen Sebelius, Remarks at The Forum at Harvard School of Public Health (Apr. 8, 2013), available at http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (starting at 51:20) (last visited Oct. 11, 2013).
310. Thus, Defendants’ issuance of the Final Mandate was arbitrary and capricious within the meaning of 5 U.S.C. § 706(2)(A) because they failed to consider the full implications of the Final Mandate and they did not take into consideration the evidence against it.
311. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT XIV Violation of the Administrative Procedure Act Agency Action Without Statutory Authority 312. The Plaintiffs incorporate by reference all preceding paragraphs.
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313. Defendant’s authority to enact regulations under the Affordable Care Act is limited to the authority expressly granted them by Congress.
314. Defendants lack statutory authority to coerce third party administrators to pay or provide for contraceptive abortifacients and related educational and counseling services for individuals with whom they have no contractual or fiduciary relationship.
315. Defendants lack statutory authority to prevent insurance issuers and third party administrators from passing on the costs of providing abortifacient contraceptives and related educational and counseling services via higher premiums or other charges that are not “cost sharing.”
316. Defendants lack statutory authority to allow user fees from the federal exchanges to be used to purchase contraceptive abortifacients and related educational and counseling services for employees not participating in the exchanges.
317. Because the Final Mandate’s “accommodation” for non-exempt, nonprofit religious organizations lacks legal authority, it is arbitrary and capricious and provides no legitimate protection of Plaintiffs’ First Amendment rights.
318. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
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COUNT XV Violation of the Administrative Procedure Act
Agency Action Not in Accordance with Law Weldon Amendment
Religious Freedom Restoration Act First Amendment to the United States Constitution 319. The Plaintiffs incorporate by reference all preceding paragraphs. 320. The Final Mandate is contrary to the Weldon amendment, which has been included in every federal appropriations law since 2004. Section 507 of the most recent Appropriations Act provides that “[n]one of the funds made available in this Act [making appropriations for Defendants Department of Labor and HHS] may be made available to a Federal agency or program . . . if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Consolidated Appropriations Act, Pub. L. No. 112-74, Division F, Title V, 125 Stat. 786, 1111 (2012). 321. The Final Mandate requires certain employers, including the Class Action Plaintiffs, to deliberately provide health benefits for their employees that facilitates access to all Federal Drug Administration-approved contraceptives, and as a possible result requires GuideStone Plan and GuideStone to elect whether they must also facilitate those acts. 322. Some FDA-approved contraceptives required to be provided by the Final Mandate cause abortions. 323. As set forth above, the Final Mandate violates RFRA and the First Amendment.
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324. Under 5 U.S.C. § 706(2)(A), the Final Mandate is contrary to existing law, and is in violation of the APA.
325. Absent injunctive and declaratory relief against the Final Mandate, the Plaintiffs have been and will continue to be harmed.
COUNT XVI Violation of the Administrative Procedure Act Agency Action Not in Accordance with the Affordable Care Act 326. The Plaintiffs incorporate by reference all preceding paragraphs. 327. The Final Mandate is contrary to the provisions of the Affordable Care Act. 328. Section 1303(b)(1)(A) of the Affordable Care Act states that “nothing in this title”—i.e., title I of the Act, which includes the provision dealing with “preventive services”— “shall be construed to require a qualified health plan to provide coverage of [abortion] services . . . as part of its essential health benefits for any plan year.” 329. Section 1303 of the Affordable Care Act further states that it is “the issuer” of a plan that “shall determine whether or not the plan provides coverage” of abortion services. 330. Under the Affordable Care Act, Defendants do not have the authority to decide whether a plan covers abortion; rather, only the issuer of the plan has that authority. 331. The Final Mandate requires certain employers, including the Class Action Plaintiffs, to deliberately provide health benefits for their employers that would facilitate access to coverage of all Federal Drug Administration-approved contraceptives, and as a possible result requires GuideStone Plan and GuideStone to elect whether they must also facilitate those acts.
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332. Some FDA-approved contraceptives cause abortions. 333. Under 5 U.S.C. § 706(2)(A), the Final Mandate is contrary to existing law, and is in violation of the APA. 334. Absent injunctive and declaratory relief against the Final Mandate, the Class Action Plaintiffs have been and will continue to be harmed.
Request for Preliminary Injunction 335. Plaintiffs repeat and reallege the allegations contained in the paragraphs above as if fully set forth herein. 336. Plaintiffs request a preliminary injunction prohibiting Defendants while this lawsuit is pending from enforcing the Final Mandate against the Plaintiffs, including Class Action Plaintiffs, GuideStone Financial Services and the GuideStone Plan and any of its third party administrators (acting on behalf of the aforementioned entities), and prohibiting the Defendants from charging or assessing penalties against the Class Action Plaintiffs for failure to offer or facilitate access to abortifacient contraceptives and related education and counseling, including those found in 26 U.S.C. §§ 4980D and 4980H, because (a) Plaintiffs and Class Action Plaintiffs will suffer immediate and irreparable injury, (b) other remedies available at law, such as monetary damages, are inadequate to fully compensate them for that injury, (c) there is a substantial likelihood that Plaintiffs and Class Action Plaintiffs will prevail on the merits, (d) the harm faced by Plaintiffs and Class Action Plaintiffs outweighs the harm that would be sustained by Defendants if a preliminary injunction were granted; (e) the issuance of a preliminary
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injunction will not adversely affect the public interest and public policy, and (f) Plaintiffs are willing to post a bond in an amount the Court deems appropriate. FED. R. CIV. P. 65.
337. Moreover, class-wide injunctive relief is necessary to give GuideStone Financial Services effective relief. If Defendants enforce the Final Mandate against any members of the GuideStone Plan, GuideStone Financial Services would be exposed to the injuries and harm described in Section VI.B. above.
338. Plaintiffs respectfully request that the Court set a hearing on this request for a preliminary injunction at the earliest possible time and, after hearing, grant Plaintiffs’ request for preliminary injunction.
PRAYER FOR RELIEF Wherefore, the Plaintiffs, on behalf of themselves and all others similarly situated, request that the Court:
1. Enter an order certifying the proposed plaintiff class, designating Reaching Souls and Truett-McConnell as named representative of the Class, and designating the undersigned as Class Counsel.
2. Declare that the Final Mandate and Defendants’ enforcement of the Final Mandate against the Plaintiffs violate the Religious Freedom Restoration Act, and that no penalties can be charged or assessed against the Plaintiffs for failure to offer or facilitate access to contraceptives that are or could be abortifacients and
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related education and counseling, including any penalties under 26 U.S.C. §§ 4980D and 4980H;
3. Declare that the Final Mandate and Defendants’ enforcement of the Final Mandate against the Plaintiffs violate the First Amendment of the United States Constitution, and that no penalties can be charged or assessed against the Plaintiffs for failure to offer or facilitate access to contraceptives that are or could be abortifacients and related education and counseling, including any penalties under 26 U.S.C. §§ 4980D and 4980 H;
4. Declare that the Final Mandate and Defendants’ enforcement of the Final Mandate against the Plaintiffs violate the Fifth Amendment of the United States Constitution, and that no penalties can be charged or assessed against the Plaintiffs for failure to offer or facilitate access to contraceptives that are or could be abortifacients and related education and counseling, including any penalties under 26 U.S.C. §§ 4980D and 4980H;
5. Declare that the Final Mandate was issued in violation of the Administrative Procedure Act, and that no penalties can be charged or assessed against the Class Action Plaintiffs for failure to offer or facilitate access to contraceptives that are or could be abortifacients and related education and counseling, including any penalties under 26 U.S.C. §§ 4980D and 4980H;
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6. Issue a preliminarily injunction and permanent injunction prohibiting Defendants
from enforcing the Final Mandate against the Plaintiffs, including Class Action
Plaintiffs, and prohibiting the Defendants from charging or assessing penalties
against the Class Action Plaintiffs for failure to offer or facilitate access to
contraceptives that are or could be abortifacients and related education and
counseling;
7. Award the Plaintiffs the costs of this action and reasonable attorney’s fees; and
8. Award such other and further relief as it deems equitable and just.
Respectfully submitted this 11th day of October, 2013.
/s/ Jared Giddens Jared D. Giddens
Oklahoma Bar No. 3555 jgiddens@cwlaw.com Conner & Winters, LLP 1700 One Leadership Square 211 North Robinson Oklahoma City, OK 73102 Tel: (405) 272-5721 Fax: (405) 232-2695
Mark Rienzi D.C. Bar No. 494336 mrienzi@becketfund.org Adèle Auxier Keim Virginia Bar No. 76476 akeim@becketfund.org Daniel Blomberg Kansas Bar No. 23723 dblomberg@becketfund.org
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THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street NW, Suite 220 Washington, DC 20007 Tel.: (202) 955-0095 Fax: (202) 955-0090 Carl C. Scherz
Oklahoma No. 20420 cscherz@lockelord.com Seth Roberts Texas Bar No. 24051255 sroberts@lockelord.com Locke Lord LLP 2200 Ross Avenue, Suite 2200 Dallas, TX 75201 Tel.: (214) 740-8583 Fax: (214) 756-8583 Counsel for Plaintiffs
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 Case 5:13-cv-01092-D Document 50 Filed 11/15/13 Page 1 of 52

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

_____________________________________

)

REACHING SOULS INTERNATIONAL, )

INC., et al.,

)

)

Plaintiffs,

)

)

v.

) Case No. 5:13-cv-1092-D

)

KATHLEEN SEBELIUS, in her official

)

capacity as the Secretary of the United States )

Department of Health and Human

)

Services, et al. et al.,

)

)

Defendants.

)

______________________________________ )

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

Case 5:13-cv-01092-D Document 50 Filed 11/15/13 Page 2 of 52
TABLE OF CONTENTS TABLES OF AUTHORITIES ........................................................................................... iii INTRODUCTION ............................................................................................................... 1 BACKGROUND ................................................................................................................. 3 MOVANT’S STATEMENT OF MATERIAL FACTS ...................................................... 7 STANDARD OF REVIEW............................................................................................... 15 ARGUMENT..................................................................................................................... 16 I. THIS CASE SHOULD BE DISMISSED BECAUSE THE
COURT LACKS SUBJECT MATTER JURISDICTION..................................... 16 II. PLAINTIFFS’ CLAIMS LACK MERIT ............................................................... 18
A. Plaintiffs’ Religious Freedom Restoration Act Claim Fails ....................... 18 B. The Regulations Do Not Violate the Free Exercise Clause ........................ 21 C. The Regulations Do Not Violate the Establishment Clause,
the Due Process Clause, or the Equal Protection Clause ............................ 25 D. The Regulations Do Not Violate the Right to Free Speech
or Expressive Association .......................................................................... 29 E. Plaintiffs’ APA Claims Fail ........................................................................ 32
1. The regulations were promulgated in accordance with the APA……………………………………………………… .. 32
2. The regulations are neither arbitrary nor capricious ........................... 34 2. Plaintiffs lack standing to raise their statutory
authority claims................................................................................... 35 4. The regulations do not violate restrictions relating to abortion .......... 36
i

Case 5:13-cv-01092-D Document 50 Filed 11/15/13 Page 3 of 52 II. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM,
AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC .......................................................................................... 39 IV. THE SCOPE OF ANY PRELIMINARY INJUNCTIVE RELIEF .................. 40 CONCLUSION ................................................................................................................. 40
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TABLE OF AUTHORITIES
FEDERAL CASES
Am. Family Ass’n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) ............................................................................. 23
Armstrong v. Sebelius, 2013 WL 5213640 (D. Colo. Sept. 17, 2013) ........................................................ 20
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................... 16
Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970) ............................................................................................... 36
Autocam Corp. v. Sebelius, No. 1:12-cv-1096, 2012 WL. 6845677 (W.D. Mich. Dec. 24, 2012) ........ 22, 23, 29
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) ........................................................................ 23, 24
Banker’s Life and Cas. Co. v. Crenshaw, 486 U.S. 71 (1988) ................................................................................................. 28
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994) ............................................................................................... 25
Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011) ............................................................................... 39
Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249 (10th Cir. 1998) .............................................................................. 34
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ............................................................................................... 31
Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013) ................................................................... 29
Briscoe v. Sebelius, 2013 WL. 4781711 (D. Colo. Sept. 6, 2013) ......................................................... 20
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Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ................................................................................ 26
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ................................................................................... 21, 22, 23
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ........................................................................................... 30
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .............................................................................. 27
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) .................................................................................. 40
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) ......................................................................... 40
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987) ............................................................................................... 28
Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................................................................................... 26
Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008) ............................................................................................... 36
Droz v. Comm’r of IRS, 48 F.3d 1120 (9th Cir. 1995) .................................................................................. 26
Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL. 1190001 (E.D. Mich. Mar. 22, 2013) ...................... 22
Emp’t Div. v. Smith, 494 U.S. 872 (1990) ......................................................................................... 21, 23
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976) ............................................................................................... 39
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Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013) .................................................................................. 19
Gillette v. United States, 401 U.S. 437 (1971) ............................................................................................... 26
Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1 (1st Cir. 2011) ...................................................................................... 28
Goodall v. Stafford County School Bd., 60 F.3d 168 (4th Cir. 1995) .................................................................................... 25
Gov’t Empls. Ins. Co. v. Benton, 859 F.2d 1147 (3d Cir. 1988) ................................................................................. 38
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006) ................................................................................ 23
Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012) ............................................................. passim
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) ................................................................................. 19
Hinck v. United States, 550 U.S. 501 (2007) ......................................................................................... 35, 36
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) .............................................................. 22
Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) .................................................................. 20, 22, 39
Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839 (2d Cir. 1996) ..................................................................................... 28
Johnson v. Robison, 415 U.S. 361 (1974) ............................................................................................... 28
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ............................................................................... 19
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Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735 (S.D. Ill. 2012) ...................................................................... 22
Larson v. Valente, 456 U.S. 228 (1982) .................................................................................. 25, 26, 27
Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002) ............................................................................. 24
Liberty Univ., Inc. v. Lew, 2013 WL. 3470532 (4th Cir. July 11, 2013) .......................................................... 27
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................................................... 16
MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., 2013 WL. 1340719 (E.D. Mich. Apr. 3, 2013) .......................................... 22, 29, 31
Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ................................................................................................. 34
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) ............................................................................................... 31
Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012) ................................................................... 20
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) ............................................................................................... 30
Olsen v. DEA, 878 F.2d 1458 (D.D.C. 1989)................................................................................. 25
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ............................................................................................... 31
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. ("FAIR"), 547 U.S. 47 (2006) ..................................................................................... 29, 30, 31
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St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616 (7th Cir. 2007) .................................................................................. 28
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ................................................................................................. 15
Swanson v. Guthrie Indep. Sch. Dist., 135 F.3d 694 (10th Cir. 1998) ................................................................................ 23
Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981) ............................................................................................... 19
Turner Construction Co. v. United States, 94 Fed. Cl. 561 (Fed. Cl. 2010) .............................................................................. 24
United States v. Amer, 110 F.3d 873 (2d Cir. 1997) ................................................................................... 22
Walz v. Tax Commission of New York, 397 U.S. 664 (1970) ............................................................................................... 27
Warth v. Seldin, 422 U.S. 490 (1975) ............................................................................................... 35
Whitmore v. Arkansas, 495 U.S. 149 (1990) ............................................................................................... 17
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ................................................................................................... 16
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)............................................................................................ 22
FEDERAL STATUTES
5 U.S.C. § 553(b) ......................................................................................................... 32, 33
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29 U.S.C. §1003(b)(2) ............................................................................................... 7, 13, 1 42 U.S.C. § 18021(a)(1) .............................................................................................. 14, 37 42 U.S.C. § 18023(b)(1)(A)(i)..................................................................................... 13, 37 42 U.S.C. § 18031 ....................................................................................................... 14, 37 42 U.S.C. § 300gg-1(b)(3)................................................................................................. 33 42 U.S.C. § 300gg-13(a).................................................................................................... 33 42 U.S.C. § 300gg-13(a)(4) ............................................................................................. 4, 8 42 U.S.C. § 300gg-14(b) ................................................................................................... 34 42 U.S.C. § 2000bb-1 ........................................................................................................ 18 Pub. L. No. 103-141, 107 Stat. 1488 (1993) ..................................................................... 18 Pub. L. No. 111-148, 124 Stat. 119 (2010) ..................................................................... 3, 7 Pub. L. No. 112-74, Stat. 786, 111-12 (Dec. 23, 2011) .................................................... 14
FEDERAL REGULATIONS 26 C.F.R. § 54.9815-2713A(b)(1)(iii) ......................................................................... 13, 30 29 C.F.R. § 2510.3-16(b)................................................................................................... 17 29 C.F.R. § 2590.715-2713A(b)(1)(iii) ............................................................................. 30 45 C.F.R. § 147.131(a) .............................................................................................. 6, 9, 11 45 C.F.R. § 147.131(b) .................................................................................................. 7, 12 45 C.F.R. § 46.202(f)................................................................................................... 15, 38 62 Fed. Reg. 8610 (Feb. 25, 1997) .............................................................................. 14, 38 76 Fed. Reg. 46,621 (Aug. 3, 2011) ................................................................................ 5, 9
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Case 5:13-cv-01092-D Document 50 Filed 11/15/13 Page 10 of 52 77 Fed. Reg. 8725 (Feb. 15, 2012) ................................................................................ 5, 10 77 Fed. Reg. 16,501 (Mar. 21, 2012) ...................................................................... 5, 10, 32 78 Fed. Reg. 8456 (Feb. 6, 2013) ............................................................................ 5, 10, 32 78 Fed. Reg. 39,870 (July 2, 2013) ............................................................................ passim LEGISLATIVE MATERIAL 148 Cong. Rec. H6566 (daily ed. Sept. 25, 2002)....................................................... 15, 39 MISCELLANEOUS HRSA, Women’s Preventive Services: Required Health
Plan Coverage Guidelines ..................................................................................... passim INST. MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN:
CLOSING THE GAPS (2011).................................................................................... passim
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INTRODUCTION Plaintiffs asks this Court to enjoin regulations that are intended to accommodate religious exercise while helping to e nsure that women have access to health cov erage, without cost-sharing, for preventive services that medical experts deem necessary for women’s health and well-being. Subject to an exemption for houses of worship and their integrated auxiliaries, and accommodation s for certain other non-profit religious organizations, the regulations that plaintiffs challenge require certain group health plans and health insurance issuers to provi de coverage, without cost-sharing (such as a copayment, coinsurance, or a deductib le), for, among oth er things, all Food and Drug Administration (FDA)-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider. The regulations are t he product of a decision b y defendants to accommodate concerns expressed by non-profit religious organizations by relieving them of any responsibility to contract, arrange, pay, or refer for contraceptive coverage or services. The regulations also seek to ensure that wo men who participate in th e group health plans of such organizations are not denied acces s to contraceptive co verage without c ostsharing. To invo ke the accommodations, an organization merely needs to certif y that it meets the eligibility criteria and share a copy of the certification with its issuer or TPA. Once it does so, the or ganization’s issuer or third-party administrator (TPA) takes on the responsibility to provide separate payments for contraceptive services to the organization’s plan participants and beneficiaries. The objecting employer does not bear the cost (if any) of providing contraceptive coverage; nor does it administer, contract for, arrange, or refer for such coverage.
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Notably, plaintiffs in this case are GuideStone Financial Resources of the Southern Baptist Convention (“GuideStone” or the “GuideStone Plan”)—a self-insured church plan under t he Employee Retirement Income Security Act (ERISA), see Compl. ¶¶ 4244, ECF No. 1 —and two non -profit organizations (Reaching Souls and True ttMcConnell) that offer health coverage to their employees through the GuideStone Plan, see id. ¶¶ 12, 14, 15, 17. While defendants continue to consider potential options to fully and appropriately extend the consu mer protections provided by the regulations to self insured church plans, t hey acknowledge that, at this ti me, they lack authority to req uire the TPAs of self-insured church plans to make the separate pa yments for contraceptive services for participants and beneficiaries in such plans under the accommodation.
Plaintiffs’ motion for preliminary injunction should be denied and this case should be dismissed or su mmary judgment should be granted in f avor of the govern ment for several reasons. At the outset, plaintiffs lack standin g to assert their claims. As noted above, because GuideStone is a self-insured church plan, the government lacks authority to require any TPA of the GuideStone Plan to make the separate payments for contraceptive services for participants and beneficiaries in the plan under the accommodation. Because the re maining plaintiffs offer coverage to their em ployees through the GuideStone Plan, the injur y of which plaintif fs complain—that the regulations somehow require them to facilitate access to co ntraceptive services to which they object on religious grounds or to contract, arrange, or pay for such services—simply does not apply to plaintiffs here and, as a result, plaintiffs lack standing.
For the same reason, even if plaintiffs had standing, their RFRA claim would fail on the merits. Because the government cannot require any TPA of the GuideStone Plan to provide separate payments for contraceptive services to the participants and beneficiaries
2

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of the GuideStone Plan, the re gulations impose absolutely no burden on plaintiffs’ religious exercise, much less a substantial bur den as required under RFRA. In short, the regulations do not require plaintiffs to facilitate or act as a trig ger for their employees to obtain contraceptive coverage, even if such a claim could establish a substantial burden under RFRA, which it cannot.
Plaintiffs’ First Am endment claims are equ ally meritless. Indeed, nearly every court to consider si milar First Amendment challenges to the pr ior version of the regulations rejected the claims, and their analysis applies here. Nor do the regulations violate the Due Process or Equal Protection Clauses. Plaintiffs also cannot succeed on their APA claims. Plaintiffs lack standing to raise some of their arguments (for a reason in addition to th e one explained above), and, in an y event, the regulations are i n accordance with federal law.
Finally, plaintiffs cannot satisfy the re maining requirements for obtaining a preliminary injunction. For these r easons, and those exp lained below, plaintiffs’ motion for a preliminary injunction should be deni ed, and def endants’ motion to dis miss or, in the alternative, for summary judgment should be granted.
BACKGROUND Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111148, 124 S tat. 119 (20 10), many Americans did not receive the preventive health care they needed. Due largely to cost, A mericans used preventi ve 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, 407.1 Section 1001 of the ACA seeks to cure t his problem by making preventive care accessible and
1 Where appropriate, defendants have provid ed parallel citati ons to the Ad ministrative Record (AR), on file with the Court. See ECF No. 49.
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affordable for many more Americans. Specifically, the provision requires all group health plans and health ins urance issuers that of fer non-grandfathered health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additi onal preventive care and screenings . . . as provid ed for in comprehensive guidelines supported by the Healt h Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(4).
Because there were no existing HR SA guidelines relating t o preventive care and screening for women, the Department of Health and Human Services requested that the Institute of Medicine (IOM) develop recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300. Af ter conducting an extensive science-based review, IOM recommended that HRSA guidelines include, as relevant he re, “the f ull range of [FDA]-approved contraceptive methods, sterilization procedures, and patient educatio n and counseling f or women with reproductive capacity.” Id. at 10-12, AR at 308-10. IOM determined that 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 them) and promote healthy birth spacing. Id. at 10203, AR at 400-01.
On August 1, 201 1, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exe mption relating to cer tain 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 28 3-84.2 In February 2012, the gover nment
2 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
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adopted in final regulations the definition of “religious employer” contained in the 2011 amended interim final regulations while also creating a te mporary enforcement safe harbor for non-grandfathered group health plans sponsored b y certain non -profit organizations with reli gious objections to co ntraceptive 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 und ertake a new ru lemaking during t he safe harbor period to adopt new r egulations to further accommodate non-grandfathered nonprofit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215. The regulations challenged here (the “2013 final rules”) represent the culmination 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), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013), AR at 165-85.3
(1) The inculcation of religious values is the purpose of the organization;
(2) the organization primarily employs persons who share the reli gious 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 de scribed in section 6033(a)(1) and s ection 6033(a)(3)(A)(i) or (iii) of the Inter nal Revenue Code of 1986, as amended.
76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220. 3 The 2013 final rules generally apply to group health plans and health insurance issuers for plan years beginning on or af ter January 1, 2014, except the amendments to the religious employer exemption apply to gro up health plans and group health in surance issuers for plan years beginning on or after August 1, 2013. See 78 Fed. Reg. at 39,87172, AR at 3-4.
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The 2013 final rules represent a significant accommodation by the government of the religious objections of certain non-profit religious organizations while promoting two important policy goals. The regulations provide women who work for non-profit religious organizations with ac cess to contr aceptive coverage wit hout cost sharing, thereby advancing the government’s compelling interests in safeguarding public health and ensuring that women have equal access to health care. The regulations do so in a narrowly tailored way that does not require non-profit religious organizations with religious objections to contract, arrange, pay, or refer for that coverage.
The 2013 final rules simplify and clarify the religious employer exemption by eliminating the first three criteria and clarif ying the fourth. Under the 2013 f inal rules, a “religious employer” is “an org anization that is orga nized and operates as a nonprofit entity and is ref erred to in section 6033(a )(3)(A)(i) or (a)(3) (A)(iii) of the Internal Revenue Code of 1986, as a mended,” which refers to c hurches, their integrated auxiliaries, and conventions or associations of churches, a nd the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a).
The 2013 final rules also est ablish accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations.” 78 Fed. Reg. at 39,875-80, AR at 7-12. 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 f orm and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through

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(3) of this section, and m akes such self -certification available f or examination upon request by the first day of the f irst plan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. Under the 2013 final rules, an eligible organization is not required “to cont ract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. To be relieved of any such obligations, the 2013 final rules require only that an eligible organization complete a self-certification form stating that it is an eli gible organization and prov ide a co py of that self -certification to its iss uer or TPA. Id. at 39,878-79, AR at 10-11. In the case of a self-insured group health plan that is not a self -insured church plan, the organization’s TPA, upon receipt of the self certification, must provide or arrange sepa rate payments for contraceptive services for participants and beneficiaries in the plan w ithout cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12. 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. The regulations do not require the TPAs of self-insured church plans—like the GuideStone Plan—to make separate payments for contraceptive services for participants and beneficiaries in su ch plans under t he accommodation. See 78 Fed. Reg. at 39,8 7939,880, AR at 11-12; 29 U.S.C. § 1003(b)(2).
MOVANT’S STATEMENT OF MATERIAL FACTS 1. Before the P atient Protection and Affordable Care Act (“ ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”), AR at 317-18, 407.
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2. Due largely to c ost, Americans used preventive services at a bout half the recommended rate. See id. at 19-20, 109, AR at 317-18, 407.
3. Section 1001 of the ACA seeks to cure this problem by making preventive care accessible and affordable for many more Americans. 42 U.S.C. § 300gg-13(a)(4).
4. Specifically, the prov ision requires all gro up health plans and health insurance issuers that offer non-grandfathered health covera ge to p rovide 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.” Id.
5. Because there were no existing HRSA guidelines relating to preventive care and screening f or women, the Depart ment of Health and Human Services tasked the Institute of Medicine (IOM) with developing recommendations to i mplement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300.
6. After conducting an e xtensive science-based review, IOM reco mmended that HRSA guidelines include, as relevant here, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient educatio n and counseling f or women with reproductive capacity.” Id. at 10-12, AR at 308-10.
7. 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.
8. IOM determined that coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies
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(and the negative health outcomes that disproportionately accompany them) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.
9. On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, encompassing all FDA-approved “contraceptive methods, sterilization procedures, and patient education a nd counseling,” as p rescribed by a health car e provider, subject to an exemption relating to certain religiou s 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.
10. 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 value s 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 re ligious tenets of the organization; and

(4) the organization is a n onprofit organization a s described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Inter nal Revenue Code of 1986, as amended.
76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.

11. 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 Guidelines, AR at

283-84; 45 C.F.R. § 147.131(a).

12. In February 2012, the government adopted in f inal regulations the

definition of “religious emplo yer” contained in the 2011 a mended interim final

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regulations while also creating a te mporary enforcement safe harbor f or nongrandfathered group h ealth plans sp onsored 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.
13. The government committed to undertake a new rulemaking during the safe harbor period to adopt new r egulations to further accommodate non-grandfathered nonprofit religious organizations’ religious objections to covering contraceptive services. 77 Fed. Reg. at 8728, AR at 215.
14. The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,870 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21, 2012) (Advance Notice of Proposed Rulemaking), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking), AR at 16585.
15. The 2013 final rules generally apply to group health plans and health insurance issuers for plan years beginning on or af ter January 1, 2014, exce pt 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 78 Fed. Reg. at 39,871-72, AR at 3-4.
16. The 2013 f inal rules represent a signif icant accommodation by the government of the religious objections of certain non-profit religious organizations while promoting two important policy goals. See 78 Fed. Reg. 39,870, AR at 1-31.
17. The regulations provide women who work for non-profit religious organizations with ac cess to contr aceptive coverage wit hout cost sharing, thereby
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advancing the government’s interests in safeguarding public health and ensuring that women have equal access to health care. See id.
18. The regulations do s o in a way that does not require non-profit religious organizations with rel igious objections to contract, arrange, pa y, or refer for that coverage. See id.
19. The 2013 final rules simplify and clarify the religious employer exemption by eliminating the first three criteria and clarifying the fourth. See id. at 39,874, AR at 6.
20. Under the 2013 final rules, a “religi ous employer” is “an or ganization that is organized and op erates as a nonprof it entity and is ref erred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Inter nal 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).
21. The changes made to the definition of religious employer in the 2013 final rules ensure “that an o therwise exempt plan is not dis qualified because the e mployer’s purposes extend beyond the inculcation of religious values or because the employer hires or serves people of different religious faiths.” 78 Fed. Reg. at 39,874, AR at 6.
22. The 2013 final rules also establish accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations” (and gr oup health insurance coverage provided in connection with such plans). Id. at 39,875-80, AR at 7-12.
23. An “eligible organization” is an organization that satisf ies the following criteria:
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(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 f orm and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and m akes such self -certification available f or examination upon request by the first day of the f irst 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.

24. Under the 2013 final rules, an eligible organization is not required “to

contract, arrange, pay, or ref er for contraceptive covera ge” to w hich it has re ligious

objections. 78 Fed. Reg. at 39,874, AR at 6.

25. To be relieved of any such obligations, the 2013 final rules require only that

an eligible organi zation complete a self -certification form stating t hat it is an eligible

organization and provide a cop y of that self-certification to its issuer or TPA. See id. at

39,878-79, AR at 10-11.

26. In the case of a sel f-insured group health p lan that is not a self -insured

church plan, the organization’s TPA, upon receipt of the self-certification, must provide

or arrange separate payments for contraceptive services for participants and beneficiaries

in the plan without cost-sharing, premium, fee, or o ther charge to plan p articipants or

beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12.

27. 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.

28. The regulations do not require the TPAs of self-insured church plans—like

the GuideStone Plan—to make separate payments for contraceptive services f or

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participants and beneficiaries in such plans under the accommodation. See id. at 39,87939,880, AR at 11-12; 29 U.S.C. § 1003(b)(2).
29. Houses of worship and their integr ated auxiliaries tha t object to contraceptive coverage on rel igious 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 likel y than other people to use contra ceptive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, AR at 6.
30. By contrast, individuals in plans of eligible organizations that qualify for the accommodations are less lik ely than individuals in plans of religious e mployers to share their employer’s faith and obj ect to contraceptive coverage on religious grounds. See id. at 39,874, 39,887, AR at 6, 19.
31. “Nothing in t he[] final regulations prohibits an eligible organization from expressing its opposition to the use of contraception.” Id. at 39,880 n.41, AR at 12.
32. The regulations only prohibit an e mployer’s improper attempt to interfere with its employees’ ability to obtain contraceptive coverage from a thir d party by, for example, threatening the TPA with a termination of its relationshi p with the e mployer because of the TPA’ s “arrangements to p rovide or arra nge separate payments for contraceptive services for participants or beneficiaries.” See 26 C.F.R. § 54.98152713A(b)(1)(iii); 29 C.F.R. § 2950.715-2713A(b)(1)(iii).
33. Section 1303(b)(1) of the ACA provide s that “nothing in this ti tle . . . shall be construed to require a qua lified health plan to provide coverage of [abortion services].” 42 U.S.C. § 18023(b)(1)(A)(i).
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34. A “qualified health plan,” within the meaning of this provision, is a health plan that has been certified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance issuer. 42 U.S.C. § 18021(a)(1).
35. Health insurance exchanges are to be set up by states or HHS no later than January 1, 2014. Id. § 18031.
36. The Weldon Amendment denies funds made available in the Cons olidated Appropriations Act of 2012 to an y federal, state, or loc al agency, program, or government that “subjects any institutional or in dividual health care entity to discrimination on the basis 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 S tat. 786, 1111-12 (Dec. 23, 2011).
37. The preventive services covered b y the regulations “ do not i nclude abortifacient drugs.” 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.ht ml (last visited Sept. 11, 2013); see also IOM REP. at 22 (reco gnizing that ab ortion services are outside the scope of recommendations), AR at 320.
38. The list of FDA-approved contraceptives includes e mergency contraceptives such as Plan B. See IOM REP. at 105, AR at 403.
39. 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 contracep tives rather than abort ifacients. See Prescription Drug Products ; Certain Combined Oral Contra for Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 861 1 (Feb. 25, 1997) (noting th at “emergency contraceptive pills are not
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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 f rom implantation until delivery.”).
40. In light of this conclu sion by the F DA, HHS informed Title X gr antees, which are requir ed to offer a range of acceptable and ef fective family planning methods—and, except under lim ited circumstances, may not of fer 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 visi ted Nov. 12, 2013); see also 42 U.S.C. §§ 300, 300a-6.
41. Representative Weldon, the sponsor of the W eldon Amendment, did not consider the wor d “abortion” in the stat ute to include F DA-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 st atute, nor has emergency contraception, what has commonly been inter preted as the morningafter pill. . . . [U]nder the current FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”).
STANDARD OF REVIEW Defendants move to di smiss this case for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted under F ederal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. The party invoking federal jurisdiction bears the burden of establishing its existence, and the Court must deter mine whether it has subject matter jurisdiction before addressing the merits of a claim. Steel Co. v.
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Citizens for a Better Env’t, 523 U.S. 83, 94-95, 104 (1998). Under Rule 12(b)(6), “the tenet that a court must accept as true all of the allegations con tained in a com plaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).
To the extent that the Court must consider the administrative record in addition to the face of the com plaint, defendants move, in the alternat ive, for summary judgment under Rule 56. A party is entitled to summary judgment where the administrative record demonstrates “that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
This memorandum also responds to plaintiffs’ motion for preliminary injunction. A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such re lief.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). “ A plaintiff seeking a preli minary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20.
ARGUMENT I. THIS CASE SHOULD BE DISMIS SED BECAUSE THE COU RT LACKS
SUBJECT MATTER JURISDICTION Plaintiffs’ motion for preliminary injunction, and their entire case, should be dismissed 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 b y the defendant’s conduct, and (3) that is likely to be redressed by a favorable ruling. Lujan v. Defenders of W ildlife, 504 U.S . 555, 560 (1992). As t o the inju ry prong, a pla intiff
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must demonstrate that it has “suffered an injury in fact—an invasion of a le gally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or h ypothetical.” 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. Arka nsas, 495 U.S. 149 , 158 (1990) (quotat ion omitted).
The harm alleged by plaintiffs is that, to avail themselves of the accommodations, the challenged regulations require them to engage in actions that “facilitate” and/or make them the “tr igger” for the provisi on of payments for contraceptive services b y a third party. See Pls.’ Br. in Supp. of Mot. for Prelim. Inj. (“Pls.’ Br.”) at 11, ECF No. 7 . The GuideStone Plan, however, is a self -insured “church plan” that is not subject to ERISA. Compl. ¶¶ 42-44. Defendants lack regulatory authority to require the TPAs of selfinsured church plans that have not made such an election to make the separate payments for contraceptive services for participants and beneficiaries in s uch plans under the accommodation.
In general, under the challenged regulations, when a TPA receives a copy of the self-certification from an eligible employer that sponsors a self-insured group health plan, that TPA becomes an ERISA Section 3(16), 29 U.S.C. § 1002(16), plan administrator and claims administrator for the purpose of providing the separate payments for contraceptive services. See 29 C.F.R. § 251 0.3-16(b). Thus, the co ntraceptive coverage requirements can be enf orced 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 ambit of ERISA. See 29 U.S.C. § 10 03(b)(2). Thus, ERISA enforcement authority is not avail able with respect to the TPAs of self-insured
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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 beneficiaries under the accommodation, including the plaintiffs’ employees and their covered dependents.
Reaching Souls and Truett McConnell (and all the other members of the putative class)—collectively, the “employer plaintiffs”—remain eligible for the accommodations under the f inal regulation pro mulgated by defendant Department of the Treasur y, 26 C.F.R. § 54.9815-2713A, and therefore need not contract, arrange, pay, or refer for contraceptive coverage.4 And neither the GuideStone Plan nor any TPA of the GuideStone Plan is required under the regu lations to provid e separate payments for contraceptive services or to contract or otherwise arrange with a third p arty for such payments to be made with respect to the part icipants and beneficiaries of the GuideStone Plan. In sh ort, under the challen ged regulations, there is abs olutely no c onnection between plaintiffs and contraceptive coverage. Thus, the i njury of which plaintif fs complain—that the regulations somehow require them to f acilitate access to contraceptive services to which they object on religious grounds—simply does not a pply to plaintiffs here. Because plaintif fs lack standing to assert th eir claims, this case should be dismissed in its entirety. II. PLAINTIFFS’ CLAIMS LACK MERIT
A. Plaintiffs’ Religious Freedom Restoration Act Claim Fails Under RFRA, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. § 2000bb-1 et seq .), the federal government “shall not substantially burden a person’s
4 The same can be sai d of any other en tity that qualifies as an “eligible organizat ion” under the accommodations and participates in the GuideStone church plan, whether or not that organization is a plaintiff in this action.
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exercise of religion” unless that burden is the least restrictive means to f urther a compelling governmental interest. 42 U.S.C. 2000bb-1. Importantly, “only substantial burdens on the e xercise of religion trigg er the co mpelling interest requirement.” Henderson v. Kennedy, 253 F .3d 12, 17 ( D.C. Cir. 2001). “ A substantial burden e xists when government action puts ‘substantial pressure on an adherent to modify his behavior and to violate his belie fs.’” Kaemmerling v. Lappin, 553 F.3d 669, 6 78 (D.C. Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)). “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unimportant to the adherent’s religious scheme.” Kaemmerling, 553 F.3d at 678; see Garner v. Kennedy, 713 F.3d 237, 241-42 (5th Cir. 2013) (“In order to show a subs tantial burden, the pla intiff must show that t he challenged action ‘t ruly pressures the adherent to signif icantly modify his religious behavior and sign ificantly violate his religious beliefs.’”).
Plaintiffs cannot possibl y show—as they must—that the challenged regulations substantially burden their religious exercise for the same reason that they have not even alleged an injury sufficient for purposes of Article III standing. See supra at Section I. The employer plaintiffs are eligible f or the accommodation, and thus, th ey need not contract, arrange, pay, or ref er for contraceptive services. And again, the government cannot require an y TPA of the GuideStone Plan, which is a self -insured church plan, to provide separate payments for contraceptive services to the participants and beneficiaries of the GuideStone Plan, meaning that plaintiffs are not “trigger[ing]” or “facilitate[ing]” access to contraceptive coverage, Pls.’ Br. at 11, nor in any way “participat[ing] . . . in the government’s scheme by either providing” contraceptive coverage themselves “or designating a [TPA] for the purpose of providing such coverage,” id. at 13. Because the
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GuideStone Plan is a self-insured church plan, the challenged regulations do not require the GuideStone Plan nor its TPAs to provide separate payments for contraceptive services, or to contract or otherwise arrange with a third party for such pa yments to b e made with re spect to the participants and b eneficiaries of the GuideStone Plan. The regulations, therefore, impose absolutely no burden on plaintiffs’ religious ex ercise, let alone a substantial burden.
Plaintiffs contend the Tenth Circuit’s decision in Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), is dispositive of the substantial burden inquiry here, but it is not. Hobby Lobby addressed the RFRA claim of for-profit corporations, which, unlike plaintiffs here, are not eligible for the accommodations—and thus are required by the regulations to contract, or otherwise arrange, and pay for, contraceptive coverage for their employees—and do not have a s elf-insured church pl an. The Hobby Lobby court had no o ccasion to co nsider whether the regulations’ accommodations as ap plied to a self-insured church pl an—which relieve eligible non-profit religious organizations like the employer plaintiffs of any obligation to contract, arrange, pay, or ref er for contraceptive coverage, and do not requir e church plan TPA s to provide separate payments for contraceptive services—impose a substantial b urden on religious exercise. They do not f or the reasons discussed above.5 Because the challenged regulations do not impose a substa ntial burden on plaint iffs’ religious exercise, plaintiffs’ RFRA claim (Count I) should be dismissed or summary judgment granted to defendants.
5 Plaintiffs also rel y on Armstrong v. S ebelius, 2013 WL 5213640 (D. Colo. Sept. 17, 2013), Briscoe v. Sebelius, 2013 WL 4781711 (D. Colo. Sept. 6, 20 13), and Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012), aff’d, 2013 WL 5481997 (10th Cir. Oct. 3, 2012). But these decisions all hinged on the Tenth Circuit’s holding in Hobby Lobby and therefore are similarly inapposite here.
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Even if the challenged regulations were deemed to impose a substantial burden on plaintiffs’ religious exercise, the regul ations satisfy strict scr utiny because they are narrowly tailored to serve compelling governmental interests in public health and gen der equality. Defendants recognize that a majority of the en banc Tenth Circuit rejected the government’s strict scrutiny argument in Hobby Lobby, and that t his Court is bo und by that decision. Defendants have f iled a petition for a writ of certiorari that a sks the Supreme Court to review the Te nth Circuit’s decision. Defendants raise the argument here merely to preserve it for appeal.6
B. The Regulations Do Not Violate the Free Exercise Clause A law that is neutral and generally applicable does not run afoul of the F ree Exercise Clause even i f it prescribes conduct that an individual’s re ligion proscribes or has the incidental ef fect of burdening a particular religious practic e. Emp’t Div. v. Smith, 494 U.S. 872, 879 (19 90). “Neutrality and general applicability are interrelated.” Church of the L ukumi Babalu Aye, Inc. v. City o f Hialeah, 508 U. S. 520, 5 31 (1993). A la w is neutral if it does not target religiously motivated conduct either on its face or as applied. Id. at 533. A neutral law has as i ts purpose something other than the disapproval of a particular religion, or of religion in general. Id. at 545. A law is ge nerally applicable so long as i t does not selectively impose burdens only on conduct motivated by religious belief. Id. Unlike such selective laws, the preventive services co verage regulations are neutral and genera lly applicable. Indeed, nearly every court to ha ve considered a f ree
6 Defendants have not included in t he Movant’s Statement of Material Facts section of this brief facts that relate to the stric t scrutiny analysis. Defendants reserve the rig ht to assert such facts at a later date in light of the Supreme Court’s resolution of defendants’ petition for a writ of certiorari in Hobby Lobby and any subsequent Supreme Court decision in that case.
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exercise challenge to t he prior version of the regulations has rejected it, concluding that the regulations are neutral and gen erally applicable.7 “The regulations were pass ed, not
with the obje ct of interfering with religious practices, but instead to improve women’s
access to health care and lessen the disparity between men’s and women’s healthcare
costs.” O’Brien v. U. S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1161
(E.D. Mo. 2012), appeal pending, No. 12-3357 (8th Cir.). The regulations reflect expert
medical recommendations about the medical necessity of contraceptive services, without
regard to any religious motivations for or a gainst such services. See, e.g., Conestoga
Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 410 (E.D. Pa. 2013) (“It is clear
from the history of the regulations and the report published by the Institute of Medicine
that the purpose of the [regulations] is not to target religion, but instead to promote public
health and gender equality.”), aff’d, 724 F.3d 377 (3d Cir. 2013).
The regulations, moreover, do not pursue their purpose “only against 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] conduct within its reach
7 See MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., 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, 20 13); Conestoga Wood Specialties Corp . v. Sebelius, 917 F. Supp. 2d 39 4, 409-10 (E.D. Pa. 2013), aff’d, 724 F.3d 377 (3d Cir. 2013); Grote Indus., LLC v. Sebel ius, 914 F. Supp. 2d 9 43, 952-53 (S.D. Ind. 2012), rev’d on other grounds, No. 13-1077 (7th Cir. Nov. 8, 2013); Autocam Corp. v. Sebelius, No. 1:12-cv-1096, 2012 WL 6845677, at *5 (W.D. Mich. Dec. 24, 2012), aff’d, 730 F.3d 618 (6th Cir. 2013); Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735, 744-47 (S.D. Ill. 2 012), rev’d on o ther grounds, No. 1 2-3841 (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 v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1160-62 (E.D. Mo. 2012), appeal pending, No. 12-3357 (8th Cir.); 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).
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without regard to w hether the con duct was religiously motivated” was gen erally applicable). The regulations apply to all non-grandfathered health plans that do not qualify for the relig ious employer exemption or the a ccommodations for eligible organizations. Thus, “it is j ust not true . . . that the burdens of the [regulations] fall on religious organizations ‘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 Tenth Circ uit has made clear that the e xistence of “express e xceptions for objectively defined categories of [entities],” like grandf athered plans and rel igious employers, does n ot negate a law’ s general applicability. Axson-Flynn v. John son, 356 F.3d 1277, 129 8 (10th Cir. 2004); see also Grace United Me thodist Church v. City of Cheyenne, 451 F.3d 643, 651 (10t h Cir. 2 006) (refusing to “interp ret Smith as standing for the proposition that a secular exe mption automatically creates a claim for a religious exemption”); Swanson v. Guthri e Indep. Sch. Dist., 135 F. 3d 694, 698, 701 (10t h Cir. 1998) (concluding school’s attendance policy was not subject to s trict scrutiny despite exemptions for “strict categories of students,” such as fifth-year seniors and special education students). The exception for grandfathered plans is availa ble on equal ter ms to all employers, whether religious or secular. And the reli gious employer exemption and eligible organization accommodations serve to accommodate religion, not to disf avor it. Such categorical exceptions do not trigger strict scrutiny. See, e.g., Autocam Corp. v. Sebelius, No. 1:12-cv-1096, 2012 WL 6845677, at *5 (W.D. Mich. Dec. 24, 2012), aff’d, 730 F.3d 618 (6th Cir. 2013); O’Brien, 894 F. Supp. 2d at 1162.
“[C]arving out an exemption for defined religious entities [also] does not make a law non-neutral as to others.” Grote Indus., LLC v. Sebelius , 914 F. Supp. 2d 943, 95 3 (S.D. Ind. 2012) (quotation omitted), rev’d on other grounds, No. 13-1077 (7th Cir. Nov.
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8, 2013). Indeed, the religious employer exemption “presents a strong argument in favor
of neutrality” by “demonstrating that the o bject of the law was not to inf ringe upon or
restrict practices because of their religious motivation.” O’Brien, 894 F. Supp. 2d at 1161
(quotations omitted); see Conestoga, 917 F. Supp. 2d at 410. The regulations are not
rendered unlawful “merely because the [religious employer exemption] does not exte nd as far as Plaintiff[] wish[es].” Grote, 914 F. Supp. 2d at 953.8
Finally, even if the regulations were not neutral or generally applicable, plaintiffs’
free exercise clai m still would f ail because, as explained ab ove, the regulations d o not
substantially burden plaintiffs’ religious exercise. See Axson-Flynn, 356 F.3d at 1294
(explaining that, eve n where a law is not neutral or generall y applicable, strict scrutin y
applies only if the law substantially burdens religious exercise); Levitan v. Ashcroft, 281
8 Plaintiffs seek to undermine the government’s rationale for distinguishing between houses of worship, which are exempt, and other non-profit religious organizations, which are accommodated, by opining that becau se “[p]laintiffs have explicitly religious missions to which their employees subscribe, . . . there is no reason to believe Plaintiffs’ employees are l ess likely to share their religious beliefs.” Pl.’s Br. at 18 (citations omitted). Even assuming that this supposition meant that all of plaintiffs’ employees share the organ izations’ specific religious b eliefs regarding the u se of contraceptive services, it does not render unlawful the distinctions drawn by the government—which are based on the gene ral characteristics of houses of worship as compared to those of other non-profit religious organizations, like hospitals, universities, and charities, see 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19, and not the characteri stics of the specif ic plaintiffs here. See, e.g., Turner Construction Co. v. United States, 94 Fed. Cl. 561, 571 (Fed. Cl. 201 0) (observing that a revie wing court is not to “s ift through an age ncy’s rationale with a fine-toothed comb;” instead, the relevant question is whether the agency articulated a rati onal connection bet ween the f acts found and the choice made). Moreover, defendants’ decision to incorpo rate long-standing concepts from the tax code that refer to churche s, their integra ted auxiliaries, conventions or associatio ns of churches, and the ex clusively religious activities of any religious order, in an ef fort to avoid entangling inquiries regarding th e religious beliefs of plaintiffs’ employees, is reasonable.
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F.3d 1313, 1320 (D.C. Cir. 2002) (same); Goodall v. Stafford County School Bd., 60 F.3d
168, 173 (4th Cir. 1995) (same). For these reasons, plaintiffs’ free exercise claims (Counts II, III, IV, and VI) fail.9
C. The Regulations Do Not Violate the Establishment Clause, the Due Process Clause, or the Equal Protection Clause
“The clearest command of the E stablishment Clause is that one re ligious
denomination cannot be officially preferred over another.” Larson v. Valente, 456 U .S.
228, 244 (1982) (emphasis added). A law that discriminates among religions by “aid[ing]
one religion” or “prefer[ring] one religion over another” is subject to strict scrutiny. Id. at
246; see also Olsen v. DEA, 878 F .2d 1458, 1461 (D.D.C. 1989 ) (observing that “[ a]
statutory exemption authorized for one church alone, and for which no other church may
qualify,” creates a “denominational preference”). Thus, for example, the Supreme Court
has struck down on Es tablishment Clause grounds a state statute tha t was “draf ted with
the explicit intention” of requiring “parti cular religious denominations” to c omply with
registration and rep orting requirements while excluding other re ligious denominations.
Larson, 456 U.S. at 254; see also Bd. of Educ. of Kiryas J oel Vill. Sch. Dist. v. Grumet,
512 U.S. 687, 703-07 (1994) (striking down statute that “single[d] out a particular
religious sect for special treatment”). The Court, on the other hand, has upheld a statute
9 Plaintiff’s so-called “unbridled discretion” claim under the Free Exercise and Free Speech Clauses, Compl. ¶¶ 288-293 (Count XI), also fails. First, plaintiffs misunderstand the regulations when they assert that they provide HRSA “unbridled discretion over which organizations can [be] accommodated.” Compl. ¶ 289. That is incorre ct. The regulations permitted HRSA to create a religious employer exemption, and HRSA did so in its August 1, 2011 action. See HRSA Guidelines, AR at 283 -84. Any employer that meets the cr iteria of a “religious employer” is exempt from the contraceptive-coverage requirement. See id.; see, e.g., Grote, 914 F. Supp. 2d at 953. Second, plaintiffs’ allegation that defendants acted in a d iscriminatory manner by creating the religious employer exemption is without merit. As explained below, the religious e mployer exemption does not grant any denominational preference or ot herwise discriminate among religions.
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that provided an exemption from military service for persons who had a co nscientious objection to all wars, but not those who obj ected to onl y a parti cular war. Gillette v. United States, 401 U.S. 437 ( 1971). The Court explained that the statute did not discriminate among religions because “no particular sectarian affiliation” was required to qualify for conscientious objector status. Id. at 450-51. “[C]onscientious objector status was available on an equal basis to both the Quaker and the Roman Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson, 544 U. S. 709, 7 24 (2005) (up holding RLUIPA because it di d not “c onfer[] . . . pr ivileged status on any particular religious sect” or “single[] out [any] bona fide faith for disadvantageous treatment”).
Like the statutes at iss ue in Gillette and Cutter, the preventive serv ices coverage regulations do not grant any denominational preference or otherwise discriminate among religions. It is of no moment that the r eligious employer exemption and accommodations for eligible organizations apply to some employers but not others. “[T]he Establishment Clause does not prohibit the government from [differentiating between organizations based on their structure and purpose] when granting religious accommodations as long as the distinction[s] drawn b y the re gulations . . . [ are] not based on religious af filiation.” Grote, 914 F. Supp. 2d at 954; accord O’Brien, 894 F. Supp. 2d at 1163; see also, e.g., Children’s Healthcare Is a L egal Duty, Inc. v. Min De Pa rle, 212 F.3d 1084, 1090-93 (8th Cir. 2000); Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995) (concluding that religious exemption from self-employment Social Security taxes did not violate the Establishment Clause even though “so me individuals receive exemptions, and othe r individuals with identical beliefs do not”); Diocese of Albany, 859 N.E.2d at 468-69 (“This kind of distinction—not between denominations, but between religious
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organizations based on the nature of their ac tivities—is not what Larson condemns.”). Here, the distinctions established by the regulations are not so drawn.
The regulations’ definitions of religious employer and eligible orga nization “do[] not refer to any particular denomination.” Grote, 914 F. Supp. 2d at 954. The e xemption and accommodations are available on an equ al basis to organizati ons affiliated with any and all religio ns. The regulations, therefore, do not discr iminate among religi ons in violation of the Establish ment Clause. Indeed, every court to have considered an Establishment Clause challenge to the pr ior version of the reg ulations—which also included a require ment that the organizatio n be an organization as described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended—has rejected it. See, e.g., O’Brien, 894 F. Sup p. 2d at 11 62; Conestoga, 917 F. Supp. 2d at 4 16-17; Grote, 914 F. Supp. 2d at 954; see also Walz v. Tax Commission of New York, 397 U.S. 664, 672-73 (1970) (upholding property tax exemption “to religious organizations for religious properties used solely for religious worship”); Liberty Univ., Inc. v. Lew , 2013 WL 3470532, at *17-*18 (4th Cir. July 11, 2013) (upholding another religious exemption in ACA where it made “no explicit and deliberate distinctions between sects” (quotation omitted)).10 For these reasons, plaintiffs’ Establishment Clause claims (Counts IV, V, VI, and VII) fail.
10 Plaintiffs stretch Colorado Christian University v. W eaver, 534 F. 3d 1245 (10th Cir . 2008), well beyond its facts in asserting that the case stands for the proposition that the Establishment Clause prohibits the government from distinguishing among different types of organizations that adhere to t he same religion. The court’s decision in Weaver was limited to “laws that facially regulate religious issues,” id. at 1257, and, particularly, those that do so in a way that denies certain religious institutions public benefits that are afforded to all other institutions, w hether secular or religious. The court in Weaver said nothing about the constitutionality of exemptions from generally applicable laws that are designed to a ccommodate religion, as opposed to discriminate against religion. A requirement that any religious exemption that the govern ment creates must be extende d to all org anizations—no matter their structure or purp ose—would severely hamper the
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Like plaintiffs’ Establishment Clause claim, its due process and equal protection claims are based on the theory that the regulations discriminate among religions. Because, as shown above, the regulations do not so discriminate, plaintiffs’ due process and equal protection claims warrant o nly rational basis revi ew. See, e.g., Johnson v. Robison, 415 U. S. 361, 375 n. 14 (1974); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir. 2007) (“Where a plaintiff’s First Amendment Free Exercise claim has failed, the Supreme Court has applied o nly rational basis scrutiny in its subsequent review of an equal protec tion fundamental right to religious free exercise claim based on the same facts.”); Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 868 (2d Cir. 1996) (applying rational basis test to la w that did not discriminate among religions). The regulations satisfy rational basis review because defendants could rationally have concluded that, as a general matter, houses of worship and their integrated auxiliaries are more likely than other religious organizations, such as religious charities, schools, and hospitals, to e mploy people of the same faith who s hare their objection to the use of contraceptive services. See, e.g., Banker’s Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 85 (1988); Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1, 10 (1st Cir. 2011); see also 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19. A ccordingly, Counts VII and VIII should be dismissed or summary judgment granted to defendants.11
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 a mple room under the Establishment Clause for ‘benevolent’ n eutrality which will per mit religious exercise to e xist without sponsorship and witho ut interference.”); Diocese of Albany, 859 N.E.2d at 464 (“To hold that any religious exemption that is not all-inclusive renders a statute n on-neutral would be to discourage the ena ctment of any such exemptions—and thus to restrict, rather than promote, freedom of religion.”). 11 Plaintiffs also allege that, by requiring them to facilitate practices in violation of their religious beliefs, the regulations interfere with plaintiffs’ “internal decisions” in violation of the Religion Clauses. Compl. ¶¶ 253-260 (Count VI). But that is m erely a restatement
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D. The Regulations Do Not Violate the Right to Free Speech or Expressive Association
Plaintiffs’ free speech claims fare no better. The right to freedom of speech “prohibits the go vernment from telling pe ople what the y must say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006 ). But the preventive services coverage regulations do not “compel speech”—by plaintiffs or any other person, employer, or entity—in violation of the Fi rst Amendment. Nor do they limit what plaintiffs may say. Plaintiffs remain free under the regulations to express whatever views it may have on the us e of contraceptive ser vices (or an y other health care servi ces) as well as its views about the regulations.
As plaintiffs point out, Pls.’ Br. at 19, to avail themselves of the accommodations, the employer plaintiffs must self-certify that they meet the definition of “eligible organization.” But, c ontrary to plai ntiffs’ assertion, id., the self-certification does not in any sense “trigger payments” for contraceptive services, Pls.’ Br. at 19, as the government cannot require any TPA of the GuideStone Plan, which is a self -insured church plan, to pro vide payments for contraceptive services. Completion of the si mple self-certification form, moreover, is “plainly incidental to the . . . regulation of conduct,” FAIR, 547 U.S. at 62, not speech. Indeed, every court to review a free speech challenge to the prior contracepti ve-coverage regulations has rejected it, in part, because the regulations deal with conduct. See, e.g., MK Chambers Co. v. U.S . Dep’t of Health & Human Servs., 2013 WL 1340719, at *6 (E .D. Mich. Apr. 3, 2013 ); Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013); Conestoga, 917 F. S upp. 2d at 418; Autocam, 2012 WL 6845677, *8; O’Brien, 894 F. S upp. 2d at 116 5-67. The accommodations likewise regulate conduct by relieving an eligible organization of any obligation to
of plaintiffs’ substantial burden and free exercise theories, which fail for reasons explained already.
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contract, arrange, pay, or ref er for contraceptive covera ge to wh ich it has reli gious objections. Accordingly, plaintiffs’ self-certifying their eligibility for an accommodation, which is incidental to t he regulation of conduct, does not violate the ir speech rights. See FAIR, 547 U.S. at 61-63.
Similarly flawed is plaintiffs’ claim that they are barred from expressing particular views to their TP A. See Pls.’ Br. at 19 . Defendants have bee n clear that “[ n]othing in these final regulations prohibits an eligible organization from expressing its opposition to the use of contraception.” 78 F ed. Reg. at 39,880 n.41, AR at 12. W hat the regulation s prohibit is an e mployer’s improper attempt to interf ere with its employees’ ability to obtain contraceptive coverage from a third p arty by, for example, threatening the T PA with a ter mination of its relationship with the emplo yer because of the TP A’s “arrangements to provide or ar range separate payments for contraceptive services for participants or benef iciaries.” See 26 C.F.R. § 54.9815 -2713A(b)(1)(iii); 29 C.F. R. § 2590.715-2713A(b)(1)(iii).
As an ini tial matter, plaintiffs lack standing to assert t his claim (for a reason in addition to the one ex plained supra at Section I). Because GuideStone is a self-insured church plan, the regulations do not re quire any TPA of the GuideStone Plan to provide separate payments for contraceptive services or to con tract or otherwise arrange with a third party for such payments to be made with respect to the participants and beneficiaries of the GuideStone Plan. Therefore, any assertion that the non-interference provision will affect the speech of plaintiffs here is far too speculative for purposes of Article III standing. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013).
Even if plaintiffs had standing to ass ert this claim, it would f ail on the merits. Addressing an analogous argument in the context of the National Labor Relations Act,
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the Supreme Court concluded that an employer’s threatening statements to its employees regarding the effects of unionization fell outside the pr otection of the First Amendment because they interfered with employee rights. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). The Court explained tha t there was no First Amendment violation because the employer was “free to communicate . . . any of his general views . . . so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’” Id.; see also Ohralik v. O hio State Bar Ass’n , 436 U.S. 447, 456 (197 8). The sa me is true here. Because the reg ulations do not pre vent plaintiffs from expressing their vi ews regarding the use of contraceptive services, but rather, protect e mployees’ right to obtai n payments for contraceptive services through issuers/TPAs, there is no inf ringement of plaintiffs’ right to free speech.
The regulations also do not violate pl aintiffs’ right to expres sive association. The regulations do not interfere in any way with the composition of plaintiffs’ workforce. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 (2000) (holding Boy Scouts’ freedom of expressive association was violated by law requiring organization to accept gay man as a scoutmaster); Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984) (concluding statute that forced group to accep t women against its d esires was s ubject to strict scrutiny). The regulations do not f orce plaintiffs to hire employees they does not wish to hire, and plaintiffs are free to associate to voice their disapproval of the use o f contraception and the regulations. Even the statute at issue in FAIR, which required law schools to al low military recruiters on campus if other recruiters were allowed on campus, did not violate the law s chools’ right to expres sion association. 547 U.S. at 68 -70. The p reventive services coverage regulations do not even implicate plaintiffs’ right. See MK Chambers v. U.S. Dep’t of Health & Human Servs., No. 13-cv-11379-BPH-MJH, Order Denying Mot.
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for Prelim. Inj. at 12 -13, ECF No. 46 (Sept. 13, 2013) (rejecting ex pressive association challenge to prior version of regulations); Diocese of Albany, 859 N.E. 2 d at 4 65 (upholding similar state law because it “does [not] compel [plaintiffs] to associa te, or prohibit them from associating, with an yone”). For these reasons, plaintiffs’ free speech and expressive association claims (Counts IX and X) fail.
E. Plaintiffs’ APA Claims Fail 1. The regulations were promulgated in accordance with the APA
Plaintiffs assert that defendants failed to compl y with the A PA’s notice an d comment procedures, both in relation to the challenged regulations and in relation to the HRSA Guidelines. Plaintiffs also claim that defendants improperly delegated their authority when they sought the expertise of the IOM. All of these allegations are baseless. The APA’s rulemaking provisions gener ally require that agencies provide notice of a proposed rule, invite and consider public comments, and adopt a final rule that includes a statement of basis and purpose. See 5 U.S.C. § 553(b) , (c). Defendants complied with these requirements.
As to the challenged regulations, defendants issued the ANPRM on March 21, 2012, and solicited comments on it. 7 7 Fed. Reg. 16, 501. Defendants then considered those comments and issued the NPRM on Fe bruary 6, 2013, requesting comments on the proposals contained in it. 78 F ed. Reg. 8456 , 8457. Def endants received over 400,00 0 comments, and the preamble to the 2013 final rules contains a detailed discussion of the comments and of defendants’ responses to them. See 78 Fed. Reg. 38,969, 39,871-39,888 (July 2, 2013). The mere fact that the regulations as ultimately issued may not satisfy the preferences of each and every commenter is certainly not evidence that those comments were not con sidered. Given the ra nge of interests and v iews among commenters, it i s
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unlikely—if not impossible—that any regulation will be f ully in line with the co mments made by every commenter.
As to the HRSA Guidelines, because there were no existing HRSA guidelines relating to pre ventive care and screen ing for women, HRSA sought the scientif ic and medical expertise of the IOM. This is not at all unusual, as entities like HRSA frequently contract with non-governmental entities, including the IO M, for this t ype of technical input. Seeking such input is not a deleg ation of HRSA’s authority, but rathe r a consultation. After considering the IOM ’s recommendations, HRSA independently made the decision to adopt guidelines based on those recommendations, subject to the religious employer exemption. Moreover, nothing in the APA, or any other statute, requires HRSA to have subjected IOM’s recommendations to notic e and comment procedures before adopting them in the guidelines. The APA’s notice-and-comment requirements apply only to ru lemaking, 5 U.S.C. § 553(b), and a “rule” is defined in t he APA, in relevant part, as being “designed to implement, interpret, or prescribe law or policy,” id. § 551(4). The guidelines neither do nor are designed to do any such thing, and as such the y do not constitute a “rul e” within the meaning of the AP A; they are simpl y clinical recommendations of a scientif ic body. The substantive obligations that are i mposed on group health plans and health insurance issuers were imposed by Congress, in 42 U.S.C. § 300gg-13(a) and in corresponding provisions of ERISA and the Internal Revenue Code, which expressly and automatically imported the content of various guidelines (including the HRSA Guidelines), including new content after a specified period of time. Indeed, in the same provision, Congress also imported by reference clinical recommendations of the United States P reventive Services Task Force and the Advi sory Committee on Immunization Practices of the Centers for Disease Control and Prevention. Id. The
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clinical recommendations of these entities are not generall y required to be subject to notice and comment, and there is no suggestion that Congress intended otherwise here for any of the referenced recommendations.12
2. The regulations are neither arbitrary nor capricious Plaintiffs’ claim that t he regulations ar e arbitrary and capricious is belied b y the policymaking path discussed above, which illustrates that the regulations are neither arbitrary nor caprici ous. See Motor V ehicle Mfrs. Ass’n of the U.S . v. State Farm Mut. Auto. Ins. Co. , 463 U. S. 29, 43 (1983) (age ncy action must be up held so long as “the agency’s path may reasonably be discerned”); Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249, 1257 (10th Cir. 1998) (under APA, reviewing court’s role “is not to assess the wisdom of policy choices”). The preamble to the rules also sets out that path in detail, see 78 Fed. Reg. at 39,871-88, and there can be no serious question that it can be reasonably discerned. Similarly, plaintiffs’ brazen claim that defendants failed to consider the constitutional and stat utory implications of the regulations is f latly contradicted b y the record, which explicitly discusses that very issue. See 78 Fed. Reg. at 39,886-88. Just as the fact that p laintiffs is disap pointed that the regulations are not in keeping with all of their comments does not mean that defendants failed to consider those comments, plaintiffs’ contrary policy preferences do not render the re gulations arbitrary or capricious.
12 In contrast, other pro visions of the ACA use cl ear language whe n referring to the promulgation of substantive rules. See, e.g., 42 U.S.C. § 300gg-1(b)(3) (“The Secretary shall promulgate regulations with respect to enrollment periods under paragraphs (1) and (2).”); id. § 30 0gg-14(b) (“The Secretary shall promulgate regulations to define the dependents to w hich coverage shall be made available under s ubsection (a).”); id. § 300gg-17(d). That Congress explicitly did not use such language here indicates that it did not intend the HRSA Guidelines to be “rules” within the meaning of the APA.
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3. Plaintiffs lack standing to raise their statutory authority claims Plaintiffs make three allegations in w hich they claim that defendants lacked statutory authority to enact parts of the reg ulations. Specifically, plaintiffs allege that defendants lack statu tory authority (1) “to coerce [TPAs] . . . to pay or provide for [contraceptive services] for individuals with whom they have no contractual or fiduciary relationship, Compl. ¶ 314; (2) “to prevent insurance issuers and [TPAs] from passing on the costs” of providing contraceptive services, id. ¶ 315; and (3) “to allow user fees from the federal exchanges to be used” b y TPAs “to purchase c ontraceptive . . . servic es for employees not participating in the exchanges,” id. ¶ 316. Plaintiffs, however, lack standing to a ssert these claims (for a reason in addition t o the on e explained supra at Section I). First, plaintiffs lack standing to raise these claims because they challenge the government’s regulation of third parties (i.e., health insurance issuers and TPAs), rather than of plaintiffs themselves. The claims thus run afoul of the “general rule that a part y must assert [its] own legal rights and in terests, and cannot rest [ its] claim to relief on the legal rights or interests of third par ties.” Hinck v. Un ited States, 550 U.S. 501, 510 n.3 (2007) (quotation omitted); see also Warth v. Seldin, 422 U.S. 490, 499 (197 5). It is undisputed that plaintiffs are neither issuers nor TPAs, and plaintiffs cannot demonstrate any reason why those entities are unable to assert their own claims if they so desire. Thus, plaintiffs lack standing to raise these claims. Second, because GuideStone is a self-insured church plan, the regulations do not require it or any of its TPAs to provide separate payments for contraceptive services or to contract or otherwise arrange with a third part y for such pa yments to be m ade with respect to the participants and beneficiaries of the GuideStone Plan. And plaintiffs lack
35

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standing to challenge the government’s authority to regu late other TPAs b y requiring them to make such payments under the acco mmodation. See Hinck, 550 U.S. at 510 n.3 (explaining that a plaintiff “cannot rest [ its] claim to relief on the legal rights or interest s of third partie s”). Furthermore, because plaintiffs will not be paying for contraceptive services under the reg ulations, they are not affected by—and certainly not injured by— the parts of the regula tions that prev ent TPAs from passing on t he costs of providing contraceptive coverage or allow TP As to obt ain reimbursement for payments for contraceptive services through adjustments to FFE user fees. Plaintiffs thus lack standing to raise these claims for these reasons as well. See Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (“A plaintiff must demonstrate standing for each claim he seeks to press.”).
4. The regulations do not violate restrictions relating to abortion Plaintiffs contend the r egulations violate the APA because they conflict with two federal statutes dealing with abortion: section 1303(b)(1) of the A CA, and the Weldon Amendment to the Consolidated Appropriations Act of 2012. Plaintiffs appear to re ason that, because the p reventive services coverage regulations require group health plans to cover emergency contraception, such as P lan B, and certain IUDs, t hey in effect require plaintiffs to provide coverage for abortions in violation of federal law. Plaintiffs’ claim based on section 1303(b)(1) of the ACA should be rejected at the outset because plaintiffs lack pruden tial standing to assert it. The doctrine of prudential standing requires that a plaintiff’s claim fall within “the zone of interests to be protected or regulated b y the statute or constitutio nal guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp , 397 U.S. 150, 153 (1970) . But the necessar y link between plaintiffs and section 1303(b)(1) is missing here. See O’Brien, 894 F. S upp. 2d
36

Case 5:13-cv-01092-D Document 50 Filed 11/15/13 Page 47 of 52
at 1167-68 (holding t hat plaintiff lacked prudential standin g to raise si milar claim). Section 1303(b)(1) provides that “nothing in this title . . . shall be construed to require a qualified health plan to provide co verage of [abortion services],” 42 U .S.C. § 18023(b)(1)(A)(i), but plaintiffs are neither health insurance issuers nor purchasers of a qualified health plan.13 They therefore do not fall within the zone of interests to be protected by the statute in question.
Even if the Court were to reach the m erits of both o f these claim s, plaintiffs’ premise that the con traceptive coverage regulations require abortion coverage is fundamentally incorrect. The regulati ons do not require th at any health plan co ver abortion as a preventive service, or that it cover abortion at all, as that term is defined in federal law. Rather, the regulations require only that non-grandfathered, non-exempt and non-accommodated group health plans cover all FDA-approved “contraceptive methods, sterilization procedures, and patient educ ation and counseling,” as prescribed by a health care provider. See HRSA Guidelines, AR at 283-84. And the government has made clear that the preventive services covered by the regulations do not include abortifacient drugs.14 Although plaintiffs believe that Plan B, ella, and certai n IUDs are abortifacient drugs or cause aborti ons, neither the govern ment nor this Court is required to accept that
13 A “qualified health plan,” within the meaning of this provision, is a health plan that has been certified by the health insurance exchange “through which such plan is offered” and that is of fered by a he alth insurance issuer. 42 U.S.C. § 18021(a)(1). Health insurance exchanges are t o be se t up b y states or th e federal government no l ater than Januar y 1, 2014. Id. § 1 8031. The GuideStone Plan is not offered on a health insurance e xchange and is not offered by a health insurance issuer, and so is not a “qualified health plan.” 14 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), http://www.hhs.gov/healthcare/facts/factsheets/ 2011/08/womensprevention08012011a.html (last visited S ept. 20, 2 013); see also IOM REP. at 22 , AR at 32 0 (recognizing that abortion services are outside the scope of permissible recommendations).
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characterization, which is inconsistent with the FDA’s scientific views and wit h federal law. While plaintiffs’ religious beliefs may define abortion more broadly than federal law to include emergency contraception and certain IUDs, statutory interpretation requires that terms be construed as a matter of law and not in accordance with any particular individual’s views or beliefs. E.g., Gov’t Empls. Ins. Co. v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).
In recommending what contraceptive services should be covered by health plans without cost-sharing, the IOM Re port identified the contraceptiv es that have b een approved by the FDA as safe and effective. See IOM REP. at 10, AR at 312. And the list of FDA-approved contraceptives includes emergency contraceptives such as P lan B. See id. at 105, AR at 403. The basis f or the in clusion of such drug s as safe and eff ective means of contraception dates back to 199 7, when the F DA 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 wom an is pregnant ” and that there is “no evid ence 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.”). In ligh t of this conclusion b y the FDA, HHS inf ormed Title X grantees, which are requir ed to offer a range of acceptable and ef fective family planning methods—and may not offer abortion exce pt under li mited circumstances (e.g., rape, incest, or when the lif e of the woman would be in danger) —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,
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Case 5:13-cv-01092-D Document 50 Filed 11/15/13 Page 49 of 52
1997), http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited S ept. 20, 2013); see also
42 U.S.C. §§ 300, 300a-6. Because they reflect a settled understanding of FDA-approved
contraceptives that is in accordance with existing federal laws prohibiting federal funding
for certain abortions, the regulations are co nsistent with over a decade of regulatory
policy and practice and thus c annot be deemed contrary to any law dealing with abortion.15 See Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807, 815 (D.C.
Cir. 2011) (giving particular deference to an agency’s longstanding interpretation) (citing
Barnhart v. Walton, 535 U.S. 212, 220 (2002)).
In sum, plaintiffs’ APA claims (Counts XII, XIII, XIV, XV, and XVI) fail.
III. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC Plaintiffs have not established that they are likely to suffer irreparable harm in the
absence of preliminary relief because, as explained above, they have not shown a
likelihood of success on the merits of their RFRA or First Amendment claims. See Hobby
Lobby, 723 F.3d at 1146 (explaining that, in the RFRA and First Amendment context, the
merits and irreparable injury prongs of the preli minary injunction analysis merge
together, and plaintiffs cannot show irreparable injury without also showing a likelihood
of success on the m erits). As to the balance of equities and the pub lic interest, “there i s
15 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the wor d “abortion” in the stat ute 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 st atute, nor has emergency contraception, what has commonly been interpreted as the m orningafter pill. . . . [U]nder the current FDA policy[,] that is considered contraception, and it is not affected at all b y this statute.”). His statement leaves little doubt that the Weldon Amendment was not intended to apply to emergency contraceptives. See Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564 (1976) (indicating that a statement of one of the legislation’s sponsors deserves to be accorded substantial weight in interpreting a statute).
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inherent harm to an a gency in preventing it from enforcing regulations that Cong ress 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 (6 th Cir. 1998) ( indicating that granting an in junction against the enforcement of a likely constitutional statute would harm the government). Accordingly, plaintiffs have not established the three remaining elements necessary to obtain a preliminary injunction. IV. THE SCOPE OF ANY PRELIMINARY INJUNCTIVE RELIEF
In their motion for preliminary injunction, plaintiffs argue that “ [t]he benefits of the [requested] injunction [should] extend be yond the named plaintiffs to encompass all [proposed] class members.” Pls.’ Br. at 23 . Defendants believe entr y of preliminary injunctive relief is inappropriate in this ca se for the many reasons explained above. Nevertheless, if the Court disagrees and concludes that the named plaintiffs have met their burden of establishing jurisdiction and all four elements for obtaining a preli minary injunction, defendants do not object t o the sc ope of the resulting pr eliminary injunction including the named plaintiffs as well as any members of the class plaintiffs have proposed in their complaint. See Compl. ¶ 18. Defendants, however, reserve the right to oppose class certification and the entry of any permanent relief on a class-wide basis.
CONCLUSION For the f oregoing reasons, def endants respectfully ask that th e Court den y plaintiffs’ motion for preliminary injunction, and grant defendants’ motion to dismiss or, in the alternative, for summary judgment on all of plaintiffs’ claims. Respectfully submitted this 15th day of November, 2013,
STUART F. DELERY Assistant Attorney General
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Case 5:13-cv-01092-D Document 50 Filed 11/15/13 Page 51 of 52
SANFORD C. COATS United States Attorney JENNIFER RICKETTS Director, Federal Programs Branch SHEILA M. LIEBER Deputy Director /s/ Benjamin L. Berwick BENJAMIN L. BERWICK (MA Bar No. 679207) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W., Room 7306 Washington, D.C. 20001 Tel: (202) 305-8573; Fax: (202) 616-8470 Email: benjamin.l.berwick@usdoj.gov Attorneys for Defendants
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Case 5:13-cv-01092-D Document 50 Filed 11/15/13 Page 52 of 52 CERTIFICATE OF SERVICE
I hereby certify that o n November 15, 2013, I electronicall y filed the f oregoing with the Clerk of the Court by using the CM/ECF system.
/s/ Benjamin L. Berwick BENJAMIN L. BERWICK
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 Case 5:13-cv-01092-D Document 51 Filed 11/15/13 Page 1 of 52

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

_____________________________________

)

REACHING SOULS INTERNATIONAL, )

INC., et al.,

)

)

Plaintiffs,

)

)

v.

) Case No. 5:13-cv-1092-D

)

KATHLEEN SEBELIUS, in her official

)

capacity as the Secretary of the United States )

Department of Health and Human

)

Services, et al. et al.,

)

)

Defendants.

)

______________________________________ )

DEFENDANTS’ MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT AND
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendants
move to dis miss this action for lack of subject matter juris diction and failure to state a
claim upon which relief may be granted. In the alternative, defendants move for summary
judgment on all of plaintiffs’ claims pursuant to Rule 56. The grounds for these motions
are set forth in the accompanying memorandum.

Case 5:13-cv-01092-D Document 51 Filed 11/15/13 Page 2 of 52
TABLE OF CONTENTS TABLES OF AUTHORITIES ........................................................................................... iii INTRODUCTION ............................................................................................................... 1 BACKGROUND ................................................................................................................. 3 MOVANT’S STATEMENT OF MATERIAL FACTS ...................................................... 7 STANDARD OF REVIEW............................................................................................... 15 ARGUMENT..................................................................................................................... 16 I. THIS CASE SHOULD BE DISMISSED BECAUSE THE
COURT LACKS SUBJECT MATTER JURISDICTION..................................... 16 II. PLAINTIFFS’ CLAIMS LACK MERIT ............................................................... 18
A. Plaintiffs’ Religious Freedom Restoration Act Claim Fails ....................... 18 B. The Regulations Do Not Violate the Free Exercise Clause ........................ 21 C. The Regulations Do Not Violate the Establishment Clause,
the Due Process Clause, or the Equal Protection Clause ............................ 25 D. The Regulations Do Not Violate the Right to Free Speech
or Expressive Association .......................................................................... 29 E. Plaintiffs’ APA Claims Fail ........................................................................ 32
1. The regulations were promulgated in accordance with the APA……………………………………………………… .. 32
2. The regulations are neither arbitrary nor capricious ........................... 34 2. Plaintiffs lack standing to raise their statutory
authority claims................................................................................... 35 4. The regulations do not violate restrictions relating to abortion .......... 36
i

Case 5:13-cv-01092-D Document 51 Filed 11/15/13 Page 3 of 52 II. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM,
AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC .......................................................................................... 39 IV. THE SCOPE OF ANY PRELIMINARY INJUNCTIVE RELIEF .................. 40 CONCLUSION ................................................................................................................. 40
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TABLE OF AUTHORITIES
FEDERAL CASES
Am. Family Ass’n v. FCC, 365 F.3d 1156 (D.C. Cir. 2004) ............................................................................. 23
Armstrong v. Sebelius, 2013 WL 5213640 (D. Colo. Sept. 17, 2013) ........................................................ 20
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................... 16
Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970) ............................................................................................... 36
Autocam Corp. v. Sebelius, No. 1:12-cv-1096, 2012 WL. 6845677 (W.D. Mich. Dec. 24, 2012) ........ 22, 23, 29
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) ........................................................................ 23, 24
Banker’s Life and Cas. Co. v. Crenshaw, 486 U.S. 71 (1988) ................................................................................................. 28
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994) ............................................................................................... 25
Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807 (D.C. Cir. 2011) ............................................................................... 39
Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249 (10th Cir. 1998) .............................................................................. 34
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ............................................................................................... 31
Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013) ................................................................... 29
Briscoe v. Sebelius, 2013 WL. 4781711 (D. Colo. Sept. 6, 2013) ......................................................... 20
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Case 5:13-cv-01092-D Document 51 Filed 11/15/13 Page 5 of 52
Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ................................................................................ 26
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ................................................................................... 21, 22, 23
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ........................................................................................... 30
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008) .............................................................................. 27
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) .................................................................................. 40
Cornish v. Dudas, 540 F. Supp. 2d 61 (D.D.C. 2008) ......................................................................... 40
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987) ............................................................................................... 28
Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................................................................................... 26
Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008) ............................................................................................... 36
Droz v. Comm’r of IRS, 48 F.3d 1120 (9th Cir. 1995) .................................................................................. 26
Eden Foods, Inc. v. Sebelius, No. 13-cv-11229, 2013 WL. 1190001 (E.D. Mich. Mar. 22, 2013) ...................... 22
Emp’t Div. v. Smith, 494 U.S. 872 (1990) ......................................................................................... 21, 23
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976) ............................................................................................... 39
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Case 5:13-cv-01092-D Document 51 Filed 11/15/13 Page 6 of 52
Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013) .................................................................................. 19
Gillette v. United States, 401 U.S. 437 (1971) ............................................................................................... 26
Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1 (1st Cir. 2011) ...................................................................................... 28
Goodall v. Stafford County School Bd., 60 F.3d 168 (4th Cir. 1995) .................................................................................... 25
Gov’t Empls. Ins. Co. v. Benton, 859 F.2d 1147 (3d Cir. 1988) ................................................................................. 38
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006) ................................................................................ 23
Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012) ............................................................. passim
Henderson v. Kennedy, 253 F.3d 12 (D.C. Cir. 2001) ................................................................................. 19
Hinck v. United States, 550 U.S. 501 (2007) ......................................................................................... 35, 36
Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. 2012) .............................................................. 22
Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) .................................................................. 20, 22, 39
Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839 (2d Cir. 1996) ..................................................................................... 28
Johnson v. Robison, 415 U.S. 361 (1974) ............................................................................................... 28
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008) ............................................................................... 19
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Case 5:13-cv-01092-D Document 51 Filed 11/15/13 Page 7 of 52
Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735 (S.D. Ill. 2012) ...................................................................... 22
Larson v. Valente, 456 U.S. 228 (1982) .................................................................................. 25, 26, 27
Levitan v. Ashcroft, 281 F.3d 1313 (D.C. Cir. 2002) ............................................................................. 24
Liberty Univ., Inc. v. Lew, 2013 WL. 3470532 (4th Cir. July 11, 2013) .......................................................... 27
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................................................... 16
MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., 2013 WL. 1340719 (E.D. Mich. Apr. 3, 2013) .......................................... 22, 29, 31
Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ................................................................................................. 34
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) ............................................................................................... 31
Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012) ................................................................... 20
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) ............................................................................................... 30
Olsen v. DEA, 878 F.2d 1458 (D.D.C. 1989)................................................................................. 25
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ............................................................................................... 31
Rumsfeld v. Forum for Academic & Inst. Rights, Inc. ("FAIR"), 547 U.S. 47 (2006) ..................................................................................... 29, 30, 31
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Case 5:13-cv-01092-D Document 51 Filed 11/15/13 Page 8 of 52
St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616 (7th Cir. 2007) .................................................................................. 28
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ................................................................................................. 15
Swanson v. Guthrie Indep. Sch. Dist., 135 F.3d 694 (10th Cir. 1998) ................................................................................ 23
Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707 (1981) ............................................................................................... 19
Turner Construction Co. v. United States, 94 Fed. Cl. 561 (Fed. Cl. 2010) .............................................................................. 24
United States v. Amer, 110 F.3d 873 (2d Cir. 1997) ................................................................................... 22
Walz v. Tax Commission of New York, 397 U.S. 664 (1970) ............................................................................................... 27
Warth v. Seldin, 422 U.S. 490 (1975) ............................................................................................... 35
Whitmore v. Arkansas, 495 U.S. 149 (1990) ............................................................................................... 17
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ................................................................................................... 16
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)............................................................................................ 22
FEDERAL STATUTES
5 U.S.C. § 553(b) ......................................................................................................... 32, 33
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Case 5:13-cv-01092-D Document 51 Filed 11/15/13 Page 9 of 52
29 U.S.C. §1003(b)(2) ............................................................................................... 7, 13, 1 42 U.S.C. § 18021(a)(1) .............................................................................................. 14, 37 42 U.S.C. § 18023(b)(1)(A)(i)..................................................................................... 13, 37 42 U.S.C. § 18031 ....................................................................................................... 14, 37 42 U.S.C. § 300gg-1(b)(3)................................................................................................. 33 42 U.S.C. § 300gg-13(a).................................................................................................... 33 42 U.S.C. § 300gg-13(a)(4) ............................................................................................. 4, 8 42 U.S.C. § 300gg-14(b) ................................................................................................... 34 42 U.S.C. § 2000bb-1 ........................................................................................................ 18 Pub. L. No. 103-141, 107 Stat. 1488 (1993) ..................................................................... 18 Pub. L. No. 111-148, 124 Stat. 119 (2010) ..................................................................... 3, 7 Pub. L. No. 112-74, Stat. 786, 111-12 (Dec. 23, 2011) .................................................... 14
FEDERAL REGULATIONS 26 C.F.R. § 54.9815-2713A(b)(1)(iii) ......................................................................... 13, 30 29 C.F.R. § 2510.3-16(b)................................................................................................... 17 29 C.F.R. § 2590.715-2713A(b)(1)(iii) ............................................................................. 30 45 C.F.R. § 147.131(a) .............................................................................................. 6, 9, 11 45 C.F.R. § 147.131(b) .................................................................................................. 7, 12 45 C.F.R. § 46.202(f)................................................................................................... 15, 38 62 Fed. Reg. 8610 (Feb. 25, 1997) .............................................................................. 14, 38 76 Fed. Reg. 46,621 (Aug. 3, 2011) ................................................................................ 5, 9
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Case 5:13-cv-01092-D Document 51 Filed 11/15/13 Page 10 of 52 77 Fed. Reg. 8725 (Feb. 15, 2012) ................................................................................ 5, 10 77 Fed. Reg. 16,501 (Mar. 21, 2012) ...................................................................... 5, 10, 32 78 Fed. Reg. 8456 (Feb. 6, 2013) ............................................................................ 5, 10, 32 78 Fed. Reg. 39,870 (July 2, 2013) ............................................................................ passim LEGISLATIVE MATERIAL 148 Cong. Rec. H6566 (daily ed. Sept. 25, 2002)....................................................... 15, 39 MISCELLANEOUS HRSA, Women’s Preventive Services: Required Health
Plan Coverage Guidelines ..................................................................................... passim INST. MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN:
CLOSING THE GAPS (2011).................................................................................... passim
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INTRODUCTION Plaintiffs asks this Court to enjoin regulations that are intended to accommodate religious exercise while helping to e nsure that women have access to health cov erage, without cost-sharing, for preventive services that medical experts deem necessary for women’s health and well-being. Subject to an exemption for houses of worship and their integrated auxiliaries, and accommodation s for certain other non-profit religious organizations, the regulations that plaintiffs challenge require certain group health plans and health insurance issuers to provi de coverage, without cost-sharing (such as a copayment, coinsurance, or a deductib le), for, among oth er things, all Food and Drug Administration (FDA)-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity, as prescribed by a health care provider. The regulations are t he product of a decision b y defendants to accommodate concerns expressed by non-profit religious organizations by relieving them of any responsibility to contract, arrange, pay, or refer for contraceptive coverage or services. The regulations also seek to ensure that wo men who participate in th e group health plans of such organizations are not denied acces s to contraceptive co verage without c ostsharing. To invo ke the accommodations, an organization merely needs to certif y that it meets the eligibility criteria and share a copy of the certification with its issuer or TPA. Once it does so, the or ganization’s issuer or third-party administrator (TPA) takes on the responsibility to provide separate payments for contraceptive services to the organization’s plan participants and beneficiaries. The objecting employer does not bear the cost (if any) of providing contraceptive coverage; nor does it administer, contract for, arrange, or refer for such coverage.
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Notably, plaintiffs in this case are GuideStone Financial Resources of the Southern Baptist Convention (“GuideStone” or the “GuideStone Plan”)—a self-insured church plan under t he Employee Retirement Income Security Act (ERISA), see Compl. ¶¶ 4244, ECF No. 1 —and two non -profit organizations (Reaching Souls and True ttMcConnell) that offer health coverage to their employees through the GuideStone Plan, see id. ¶¶ 12, 14, 15, 17. While defendants continue to consider potential options to fully and appropriately extend the consu mer protections provided by the regulations to self insured church plans, t hey acknowledge that, at this ti me, they lack authority to req uire the TPAs of self-insured church plans to make the separate pa yments for contraceptive services for participants and beneficiaries in such plans under the accommodation.
Plaintiffs’ motion for preliminary injunction should be denied and this case should be dismissed or su mmary judgment should be granted in f avor of the govern ment for several reasons. At the outset, plaintiffs lack standin g to assert their claims. As noted above, because GuideStone is a self-insured church plan, the government lacks authority to require any TPA of the GuideStone Plan to make the separate payments for contraceptive services for participants and beneficiaries in the plan under the accommodation. Because the re maining plaintiffs offer coverage to their em ployees through the GuideStone Plan, the injur y of which plaintif fs complain—that the regulations somehow require them to facilitate access to co ntraceptive services to which they object on religious grounds or to contract, arrange, or pay for such services—simply does not apply to plaintiffs here and, as a result, plaintiffs lack standing.
For the same reason, even if plaintiffs had standing, their RFRA claim would fail on the merits. Because the government cannot require any TPA of the GuideStone Plan to provide separate payments for contraceptive services to the participants and beneficiaries
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of the GuideStone Plan, the re gulations impose absolutely no burden on plaintiffs’ religious exercise, much less a substantial bur den as required under RFRA. In short, the regulations do not require plaintiffs to facilitate or act as a trig ger for their employees to obtain contraceptive coverage, even if such a claim could establish a substantial burden under RFRA, which it cannot.
Plaintiffs’ First Am endment claims are equ ally meritless. Indeed, nearly every court to consider si milar First Amendment challenges to the pr ior version of the regulations rejected the claims, and their analysis applies here. Nor do the regulations violate the Due Process or Equal Protection Clauses. Plaintiffs also cannot succeed on their APA claims. Plaintiffs lack standing to raise some of their arguments (for a reason in addition to th e one explained above), and, in an y event, the regulations are i n accordance with federal law.
Finally, plaintiffs cannot satisfy the re maining requirements for obtaining a preliminary injunction. For these r easons, and those exp lained below, plaintiffs’ motion for a preliminary injunction should be deni ed, and def endants’ motion to dis miss or, in the alternative, for summary judgment should be granted.
BACKGROUND Before the Patient Protection and Affordable Care Act (“ACA”), Pub. L. No. 111148, 124 S tat. 119 (20 10), many Americans did not receive the preventive health care they needed. Due largely to cost, A mericans used preventi ve 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, 407.1 Section 1001 of the ACA seeks to cure t his problem by making preventive care accessible and
1 Where appropriate, defendants have provid ed parallel citati ons to the Ad ministrative Record (AR), on file with the Court. See ECF No. 49.
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affordable for many more Americans. Specifically, the provision requires all group health plans and health ins urance issuers that of fer non-grandfathered health coverage to provide coverage for certain preventive services without cost-sharing, including, “[for] women, such additi onal preventive care and screenings . . . as provid ed for in comprehensive guidelines supported by the Healt h Resources and Services Administration.” 42 U.S.C. § 300gg-13(a)(4).
Because there were no existing HR SA guidelines relating t o preventive care and screening for women, the Department of Health and Human Services requested that the Institute of Medicine (IOM) develop recommendations to implement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300. Af ter conducting an extensive science-based review, IOM recommended that HRSA guidelines include, as relevant he re, “the f ull range of [FDA]-approved contraceptive methods, sterilization procedures, and patient educatio n and counseling f or women with reproductive capacity.” Id. at 10-12, AR at 308-10. IOM determined that 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 them) and promote healthy birth spacing. Id. at 10203, AR at 400-01.
On August 1, 201 1, HRSA adopted guidelines consistent with IOM’s recommendations, subject to an exe mption relating to cer tain 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 28 3-84.2 In February 2012, the gover nment
2 To qualify for the religious employer exemption contained in the 2011 amended interim final regulations, an employer had to meet the following criteria:
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adopted in final regulations the definition of “religious employer” contained in the 2011 amended interim final regulations while also creating a te mporary enforcement safe harbor for non-grandfathered group health plans sponsored b y certain non -profit organizations with reli gious objections to co ntraceptive 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 und ertake a new ru lemaking during t he safe harbor period to adopt new r egulations to further accommodate non-grandfathered nonprofit religious organizations’ religious objections to covering contraceptive services. Id. at 8728, AR at 215. The regulations challenged here (the “2013 final rules”) represent the culmination 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), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013), AR at 165-85.3
(1) The inculcation of religious values is the purpose of the organization;
(2) the organization primarily employs persons who share the reli gious 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 de scribed in section 6033(a)(1) and s ection 6033(a)(3)(A)(i) or (iii) of the Inter nal Revenue Code of 1986, as amended.
76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220. 3 The 2013 final rules generally apply to group health plans and health insurance issuers for plan years beginning on or af ter January 1, 2014, except the amendments to the religious employer exemption apply to gro up health plans and group health in surance issuers for plan years beginning on or after August 1, 2013. See 78 Fed. Reg. at 39,87172, AR at 3-4.
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The 2013 final rules represent a significant accommodation by the government of the religious objections of certain non-profit religious organizations while promoting two important policy goals. The regulations provide women who work for non-profit religious organizations with ac cess to contr aceptive coverage wit hout cost sharing, thereby advancing the government’s compelling interests in safeguarding public health and ensuring that women have equal access to health care. The regulations do so in a narrowly tailored way that does not require non-profit religious organizations with religious objections to contract, arrange, pay, or refer for that coverage.
The 2013 final rules simplify and clarify the religious employer exemption by eliminating the first three criteria and clarif ying the fourth. Under the 2013 f inal rules, a “religious employer” is “an org anization that is orga nized and operates as a nonprofit entity and is ref erred to in section 6033(a )(3)(A)(i) or (a)(3) (A)(iii) of the Internal Revenue Code of 1986, as a mended,” which refers to c hurches, their integrated auxiliaries, and conventions or associations of churches, a nd the exclusively religious activities of any religious order. 45 C.F.R. § 147.131(a).
The 2013 final rules also est ablish accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations.” 78 Fed. Reg. at 39,875-80, AR at 7-12. 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 f orm and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through

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(3) of this section, and m akes such self -certification available f or examination upon request by the first day of the f irst plan year to which the accommodation in paragraph (c) of this section applies. 45 C.F.R. § 147.131(b); see also 78 Fed. Reg. at 39,874-75, AR at 6-7. Under the 2013 final rules, an eligible organization is not required “to cont ract, arrange, pay, or refer for contraceptive coverage” to which it has religious objections. 78 Fed. Reg. at 39,874, AR at 6. To be relieved of any such obligations, the 2013 final rules require only that an eligible organization complete a self-certification form stating that it is an eli gible organization and prov ide a co py of that self -certification to its iss uer or TPA. Id. at 39,878-79, AR at 10-11. In the case of a self-insured group health plan that is not a self -insured church plan, the organization’s TPA, upon receipt of the self certification, must provide or arrange sepa rate payments for contraceptive services for participants and beneficiaries in the plan w ithout cost-sharing, premium, fee, or other charge to plan participants or beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12. 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. The regulations do not require the TPAs of self-insured church plans—like the GuideStone Plan—to make separate payments for contraceptive services for participants and beneficiaries in su ch plans under t he accommodation. See 78 Fed. Reg. at 39,8 7939,880, AR at 11-12; 29 U.S.C. § 1003(b)(2).
MOVANT’S STATEMENT OF MATERIAL FACTS 1. Before the P atient Protection and Affordable Care Act (“ ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), many Americans did not receive the preventive health care they needed. See INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 19-20, 109 (2011) (“IOM REP.”), AR at 317-18, 407.
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2. Due largely to c ost, Americans used preventive services at a bout half the recommended rate. See id. at 19-20, 109, AR at 317-18, 407.
3. Section 1001 of the ACA seeks to cure this problem by making preventive care accessible and affordable for many more Americans. 42 U.S.C. § 300gg-13(a)(4).
4. Specifically, the prov ision requires all gro up health plans and health insurance issuers that offer non-grandfathered health covera ge to p rovide 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.” Id.
5. Because there were no existing HRSA guidelines relating to preventive care and screening f or women, the Depart ment of Health and Human Services tasked the Institute of Medicine (IOM) with developing recommendations to i mplement the requirement to provide coverage, without cost-sharing, of preventive services for women. IOM REP. at 2, AR at 300.
6. After conducting an e xtensive science-based review, IOM reco mmended that HRSA guidelines include, as relevant here, “the full range of [FDA]-approved contraceptive methods, sterilization procedures, and patient educatio n and counseling f or women with reproductive capacity.” Id. at 10-12, AR at 308-10.
7. 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.
8. IOM determined that coverage, without cost-sharing, for these services is necessary to increase access to such services, and thereby reduce unintended pregnancies
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(and the negative health outcomes that disproportionately accompany them) and promote healthy birth spacing. See id. at 102-03, AR at 400-01.
9. On August 1, 2011, HRSA adopted guidelines consistent with IOM’s recommendations, encompassing all FDA-approved “contraceptive methods, sterilization procedures, and patient education a nd counseling,” as p rescribed by a health car e provider, subject to an exemption relating to certain religiou s 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.
10. 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 value s 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 re ligious tenets of the organization; and

(4) the organization is a n onprofit organization a s described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Inter nal Revenue Code of 1986, as amended.
76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011), AR at 220.

11. 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 Guidelines, AR at

283-84; 45 C.F.R. § 147.131(a).

12. In February 2012, the government adopted in f inal regulations the

definition of “religious emplo yer” contained in the 2011 a mended interim final

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regulations while also creating a te mporary enforcement safe harbor f or nongrandfathered group h ealth plans sp onsored 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.
13. The government committed to undertake a new rulemaking during the safe harbor period to adopt new r egulations to further accommodate non-grandfathered nonprofit religious organizations’ religious objections to covering contraceptive services. 77 Fed. Reg. at 8728, AR at 215.
14. The regulations challenged here (the “2013 final rules”) represent the culmination of that process. See 78 Fed. Reg. 39,870 (July 2, 2013), AR at 1-31; see also 77 Fed. Reg. 16,501 (Mar. 21, 2012) (Advance Notice of Proposed Rulemaking), AR at 186-93; 78 Fed. Reg. 8456 (Feb. 6, 2013) (Notice of Proposed Rulemaking), AR at 16585.
15. The 2013 final rules generally apply to group health plans and health insurance issuers for plan years beginning on or af ter January 1, 2014, exce pt 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 78 Fed. Reg. at 39,871-72, AR at 3-4.
16. The 2013 f inal rules represent a signif icant accommodation by the government of the religious objections of certain non-profit religious organizations while promoting two important policy goals. See 78 Fed. Reg. 39,870, AR at 1-31.
17. The regulations provide women who work for non-profit religious organizations with ac cess to contr aceptive coverage wit hout cost sharing, thereby
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advancing the government’s interests in safeguarding public health and ensuring that women have equal access to health care. See id.
18. The regulations do s o in a way that does not require non-profit religious organizations with rel igious objections to contract, arrange, pa y, or refer for that coverage. See id.
19. The 2013 final rules simplify and clarify the religious employer exemption by eliminating the first three criteria and clarifying the fourth. See id. at 39,874, AR at 6.
20. Under the 2013 final rules, a “religi ous employer” is “an or ganization that is organized and op erates as a nonprof it entity and is ref erred to in section 6033(a)(3)(A)(i) or (a)(3)(A)(iii) of the Inter nal 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).
21. The changes made to the definition of religious employer in the 2013 final rules ensure “that an o therwise exempt plan is not dis qualified because the e mployer’s purposes extend beyond the inculcation of religious values or because the employer hires or serves people of different religious faiths.” 78 Fed. Reg. at 39,874, AR at 6.
22. The 2013 final rules also establish accommodations with respect to the contraceptive coverage requirement for group health plans established or maintained by “eligible organizations” (and gr oup health insurance coverage provided in connection with such plans). Id. at 39,875-80, AR at 7-12.
23. An “eligible organization” is an organization that satisf ies the following criteria:
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(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 f orm and manner specified by the Secretary, that it satisfies the criteria in paragraphs (b)(1) through (3) of this section, and m akes such self -certification available f or examination upon request by the first day of the f irst 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.

24. Under the 2013 final rules, an eligible organization is not required “to

contract, arrange, pay, or ref er for contraceptive covera ge” to w hich it has re ligious

objections. 78 Fed. Reg. at 39,874, AR at 6.

25. To be relieved of any such obligations, the 2013 final rules require only that

an eligible organi zation complete a self -certification form stating t hat it is an eligible

organization and provide a cop y of that self-certification to its issuer or TPA. See id. at

39,878-79, AR at 10-11.

26. In the case of a sel f-insured group health p lan that is not a self -insured

church plan, the organization’s TPA, upon receipt of the self-certification, must provide

or arrange separate payments for contraceptive services for participants and beneficiaries

in the plan without cost-sharing, premium, fee, or o ther charge to plan p articipants or

beneficiaries, or to the eligible organization or its plan. See id. at 39,879-80, AR at 11-12.

27. 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.

28. The regulations do not require the TPAs of self-insured church plans—like

the GuideStone Plan—to make separate payments for contraceptive services f or

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participants and beneficiaries in such plans under the accommodation. See id. at 39,87939,880, AR at 11-12; 29 U.S.C. § 1003(b)(2).
29. Houses of worship and their integr ated auxiliaries tha t object to contraceptive coverage on rel igious 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 likel y than other people to use contra ceptive services even if such services were covered under their plan. See 78 Fed. Reg. at 39,874, AR at 6.
30. By contrast, individuals in plans of eligible organizations that qualify for the accommodations are less lik ely than individuals in plans of religious e mployers to share their employer’s faith and obj ect to contraceptive coverage on religious grounds. See id. at 39,874, 39,887, AR at 6, 19.
31. “Nothing in t he[] final regulations prohibits an eligible organization from expressing its opposition to the use of contraception.” Id. at 39,880 n.41, AR at 12.
32. The regulations only prohibit an e mployer’s improper attempt to interfere with its employees’ ability to obtain contraceptive coverage from a thir d party by, for example, threatening the TPA with a termination of its relationshi p with the e mployer because of the TPA’ s “arrangements to p rovide or arra nge separate payments for contraceptive services for participants or beneficiaries.” See 26 C.F.R. § 54.98152713A(b)(1)(iii); 29 C.F.R. § 2950.715-2713A(b)(1)(iii).
33. Section 1303(b)(1) of the ACA provide s that “nothing in this ti tle . . . shall be construed to require a qua lified health plan to provide coverage of [abortion services].” 42 U.S.C. § 18023(b)(1)(A)(i).
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34. A “qualified health plan,” within the meaning of this provision, is a health plan that has been certified by the health insurance exchange “through which such plan is offered” and that is offered by a health insurance issuer. 42 U.S.C. § 18021(a)(1).
35. Health insurance exchanges are to be set up by states or HHS no later than January 1, 2014. Id. § 18031.
36. The Weldon Amendment denies funds made available in the Cons olidated Appropriations Act of 2012 to an y federal, state, or loc al agency, program, or government that “subjects any institutional or in dividual health care entity to discrimination on the basis 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 S tat. 786, 1111-12 (Dec. 23, 2011).
37. The preventive services covered b y the regulations “ do not i nclude abortifacient drugs.” 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.ht ml (last visited Sept. 11, 2013); see also IOM REP. at 22 (reco gnizing that ab ortion services are outside the scope of recommendations), AR at 320.
38. The list of FDA-approved contraceptives includes e mergency contraceptives such as Plan B. See IOM REP. at 105, AR at 403.
39. 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 contracep tives rather than abort ifacients. See Prescription Drug Products ; Certain Combined Oral Contra for Use as Postcoital Emergency Contraception, 62 Fed. Reg. 8610, 861 1 (Feb. 25, 1997) (noting th at “emergency contraceptive pills are not
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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 f rom implantation until delivery.”).
40. In light of this conclu sion by the F DA, HHS informed Title X gr antees, which are requir ed to offer a range of acceptable and ef fective family planning methods—and, except under lim ited circumstances, may not of fer 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 visi ted Nov. 12, 2013); see also 42 U.S.C. §§ 300, 300a-6.
41. Representative Weldon, the sponsor of the W eldon Amendment, did not consider the wor d “abortion” in the stat ute to include F DA-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 st atute, nor has emergency contraception, what has commonly been inter preted as the morningafter pill. . . . [U]nder the current FDA policy[,] that is considered contraception, and it is not affected at all by this statute.”).
STANDARD OF REVIEW Defendants move to di smiss this case for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted under F ederal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively. The party invoking federal jurisdiction bears the burden of establishing its existence, and the Court must deter mine whether it has subject matter jurisdiction before addressing the merits of a claim. Steel Co. v.
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Citizens for a Better Env’t, 523 U.S. 83, 94-95, 104 (1998). Under Rule 12(b)(6), “the tenet that a court must accept as true all of the allegations con tained in a com plaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).
To the extent that the Court must consider the administrative record in addition to the face of the com plaint, defendants move, in the alternat ive, for summary judgment under Rule 56. A party is entitled to summary judgment where the administrative record demonstrates “that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
This memorandum also responds to plaintiffs’ motion for preliminary injunction. A preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such re lief.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). “ A plaintiff seeking a preli minary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20.
ARGUMENT I. THIS CASE SHOULD BE DISMIS SED BECAUSE THE COU RT LACKS
SUBJECT MATTER JURISDICTION Plaintiffs’ motion for preliminary injunction, and their entire case, should be dismissed 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 b y the defendant’s conduct, and (3) that is likely to be redressed by a favorable ruling. Lujan v. Defenders of W ildlife, 504 U.S . 555, 560 (1992). As t o the inju ry prong, a pla intiff
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must demonstrate that it has “suffered an injury in fact—an invasion of a le gally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or h ypothetical.” 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. Arka nsas, 495 U.S. 149 , 158 (1990) (quotat ion omitted).
The harm alleged by plaintiffs is that, to avail themselves of the accommodations, the challenged regulations require them to engage in actions that “facilitate” and/or make them the “tr igger” for the provisi on of payments for contraceptive services b y a third party. See Pls.’ Br. in Supp. of Mot. for Prelim. Inj. (“Pls.’ Br.”) at 11, ECF No. 7 . The GuideStone Plan, however, is a self -insured “church plan” that is not subject to ERISA. Compl. ¶¶ 42-44. Defendants lack regulatory authority to require the TPAs of selfinsured church plans that have not made such an election to make the separate payments for contraceptive services for participants and beneficiaries in s uch plans under the accommodation.
In general, under the challenged regulations, when a TPA receives a copy of the self-certification from an eligible employer that sponsors a self-insured group health plan, that TPA becomes an ERISA Section 3(16), 29 U.S.C. § 1002(16), plan administrator and claims administrator for the purpose of providing the separate payments for contraceptive services. See 29 C.F.R. § 251 0.3-16(b). Thus, the co ntraceptive coverage requirements can be enf orced 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 ambit of ERISA. See 29 U.S.C. § 10 03(b)(2). Thus, ERISA enforcement authority is not avail able with respect to the TPAs of self-insured
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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 beneficiaries under the accommodation, including the plaintiffs’ employees and their covered dependents.
Reaching Souls and Truett McConnell (and all the other members of the putative class)—collectively, the “employer plaintiffs”—remain eligible for the accommodations under the f inal regulation pro mulgated by defendant Department of the Treasur y, 26 C.F.R. § 54.9815-2713A, and therefore need not contract, arrange, pay, or refer for contraceptive coverage.4 And neither the GuideStone Plan nor any TPA of the GuideStone Plan is required under the regu lations to provid e separate payments for contraceptive services or to contract or otherwise arrange with a third p arty for such payments to be made with respect to the part icipants and beneficiaries of the GuideStone Plan. In sh ort, under the challen ged regulations, there is abs olutely no c onnection between plaintiffs and contraceptive coverage. Thus, the i njury of which plaintif fs complain—that the regulations somehow require them to f acilitate access to contraceptive services to which they object on religious grounds—simply does not a pply to plaintiffs here. Because plaintif fs lack standing to assert th eir claims, this case should be dismissed in its entirety. II. PLAINTIFFS’ CLAIMS LACK MERIT
A. Plaintiffs’ Religious Freedom Restoration Act Claim Fails Under RFRA, Pub. L. No. 103-141, 107 Stat. 1488 (1993) (codified at 42 U.S.C. § 2000bb-1 et seq .), the federal government “shall not substantially burden a person’s
4 The same can be sai d of any other en tity that qualifies as an “eligible organizat ion” under the accommodations and participates in the GuideStone church plan, whether or not that organization is a plaintiff in this action.
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exercise of religion” unless that burden is the least restrictive means to f urther a compelling governmental interest. 42 U.S.C. 2000bb-1. Importantly, “only substantial burdens on the e xercise of religion trigg er the co mpelling interest requirement.” Henderson v. Kennedy, 253 F .3d 12, 17 ( D.C. Cir. 2001). “ A substantial burden e xists when government action puts ‘substantial pressure on an adherent to modify his behavior and to violate his belie fs.’” Kaemmerling v. Lappin, 553 F.3d 669, 6 78 (D.C. Cir. 2008) (citing Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)). “An inconsequential or de minimis burden on religious practice does not rise to this level, nor does a burden on activity unimportant to the adherent’s religious scheme.” Kaemmerling, 553 F.3d at 678; see Garner v. Kennedy, 713 F.3d 237, 241-42 (5th Cir. 2013) (“In order to show a subs tantial burden, the pla intiff must show that t he challenged action ‘t ruly pressures the adherent to signif icantly modify his religious behavior and sign ificantly violate his religious beliefs.’”).
Plaintiffs cannot possibl y show—as they must—that the challenged regulations substantially burden their religious exercise for the same reason that they have not even alleged an injury sufficient for purposes of Article III standing. See supra at Section I. The employer plaintiffs are eligible f or the accommodation, and thus, th ey need not contract, arrange, pay, or ref er for contraceptive services. And again, the government cannot require an y TPA of the GuideStone Plan, which is a self -insured church plan, to provide separate payments for contraceptive services to the participants and beneficiaries of the GuideStone Plan, meaning that plaintiffs are not “trigger[ing]” or “facilitate[ing]” access to contraceptive coverage, Pls.’ Br. at 11, nor in any way “participat[ing] . . . in the government’s scheme by either providing” contraceptive coverage themselves “or designating a [TPA] for the purpose of providing such coverage,” id. at 13. Because the
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GuideStone Plan is a self-insured church plan, the challenged regulations do not require the GuideStone Plan nor its TPAs to provide separate payments for contraceptive services, or to contract or otherwise arrange with a third party for such pa yments to b e made with re spect to the participants and b eneficiaries of the GuideStone Plan. The regulations, therefore, impose absolutely no burden on plaintiffs’ religious ex ercise, let alone a substantial burden.
Plaintiffs contend the Tenth Circuit’s decision in Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), is dispositive of the substantial burden inquiry here, but it is not. Hobby Lobby addressed the RFRA claim of for-profit corporations, which, unlike plaintiffs here, are not eligible for the accommodations—and thus are required by the regulations to contract, or otherwise arrange, and pay for, contraceptive coverage for their employees—and do not have a s elf-insured church pl an. The Hobby Lobby court had no o ccasion to co nsider whether the regulations’ accommodations as ap plied to a self-insured church pl an—which relieve eligible non-profit religious organizations like the employer plaintiffs of any obligation to contract, arrange, pay, or ref er for contraceptive coverage, and do not requir e church plan TPA s to provide separate payments for contraceptive services—impose a substantial b urden on religious exercise. They do not f or the reasons discussed above.5 Because the challenged regulations do not impose a substa ntial burden on plaint iffs’ religious exercise, plaintiffs’ RFRA claim (Count I) should be dismissed or summary judgment granted to defendants.
5 Plaintiffs also rel y on Armstrong v. S ebelius, 2013 WL 5213640 (D. Colo. Sept. 17, 2013), Briscoe v. Sebelius, 2013 WL 4781711 (D. Colo. Sept. 6, 20 13), and Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012), aff’d, 2013 WL 5481997 (10th Cir. Oct. 3, 2012). But these decisions all hinged on the Tenth Circuit’s holding in Hobby Lobby and therefore are similarly inapposite here.
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Even if the challenged regulations were deemed to impose a substantial burden on plaintiffs’ religious exercise, the regul ations satisfy strict scr utiny because they are narrowly tailored to serve compelling governmental interests in public health and gen der equality. Defendants recognize that a majority of the en banc Tenth Circuit rejected the government’s strict scrutiny argument in Hobby Lobby, and that t his Court is bo und by that decision. Defendants have f iled a petition for a writ of certiorari that a sks the Supreme Court to review the Te nth Circuit’s decision. Defendants raise the argument here merely to preserve it for appeal.6
B. The Regulations Do Not Violate the Free Exercise Clause A law that is neutral and generally applicable does not run afoul of the F ree Exercise Clause even i f it prescribes conduct that an individual’s re ligion proscribes or has the incidental ef fect of burdening a particular religious practic e. Emp’t Div. v. Smith, 494 U.S. 872, 879 (19 90). “Neutrality and general applicability are interrelated.” Church of the L ukumi Babalu Aye, Inc. v. City o f Hialeah, 508 U. S. 520, 5 31 (1993). A la w is neutral if it does not target religiously motivated conduct either on its face or as applied. Id. at 533. A neutral law has as i ts purpose something other than the disapproval of a particular religion, or of religion in general. Id. at 545. A law is ge nerally applicable so long as i t does not selectively impose burdens only on conduct motivated by religious belief. Id. Unlike such selective laws, the preventive services co verage regulations are neutral and genera lly applicable. Indeed, nearly every court to ha ve considered a f ree
6 Defendants have not included in t he Movant’s Statement of Material Facts section of this brief facts that relate to the stric t scrutiny analysis. Defendants reserve the rig ht to assert such facts at a later date in light of the Supreme Court’s resolution of defendants’ petition for a writ of certiorari i n Hobby Lobby and any subsequent Supreme Court decision in that case.
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exercise challenge to t he prior version of the regulations has rejected it, concluding that the regulations are neutral and gen erally applicable.7 “The regulations were pass ed, not
with the obje ct of interfering with religious practices, but instead to improve women’s
access to health care and lessen the disparity between men’s and women’s healthcare
costs.” O’Brien v. U. S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1161
(E.D. Mo. 2012), appeal pending, No. 12-3357 (8th Cir.). The regulations reflect expert
medical recommendations about the medical necessity of contraceptive services, without
regard to any religious motivations for or a gainst such services. See, e.g., Conestoga
Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394, 410 (E.D. Pa. 2013) (“It is clear
from the history of the regulations and the report published by the Institute of Medicine
that the purpose of the [regulations] is not to target religion, but instead to promote public
health and gender equality.”), aff’d, 724 F.3d 377 (3d Cir. 2013).
The regulations, moreover, do not pursue their purpose “only against 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] conduct within its reach
7 See MK Chambers Co. v. U.S. Dep’t of Health & Human Servs., 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, 20 13); Conestoga Wood Specialties Corp . v. Sebelius, 917 F. Supp. 2d 39 4, 409-10 (E.D. Pa. 2013), aff’d, 724 F.3d 377 (3d Cir. 2013); Grote Indus., LLC v. Sebel ius, 914 F. Supp. 2d 9 43, 952-53 (S.D. Ind. 2012), rev’d on other grounds, No. 13-1077 (7th Cir. Nov. 8, 2013); Autocam Corp. v. Sebelius, No. 1:12-cv-1096, 2012 WL 6845677, at *5 (W.D. Mich. Dec. 24, 2012), aff’d, 730 F.3d 618 (6th Cir. 2013); Korte v. U.S. Dep’t of Health & Human Servs., 912 F. Supp. 2d 735, 744-47 (S.D. Ill. 2 012), rev’d on o ther grounds, No. 1 2-3841 (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 v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149, 1160-62 (E.D. Mo. 2012), appeal pending, No. 12-3357 (8th Cir.); 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).
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without regard to w hether the con duct was religiously motivated” was gen erally applicable). The regulations apply to all non-grandfathered health plans that do not qualify for the relig ious employer exemption or the a ccommodations for eligible organizations. Thus, “it is j ust not true . . . that the burdens of the [regulations] fall on religious organizations ‘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 Tenth Circ uit has made clear that the e xistence of “express e xceptions for objectively defined categories of [entities],” like grandf athered plans and rel igious employers, does n ot negate a law’ s general applicability. Axson-Flynn v. John son, 356 F.3d 1277, 129 8 (10th Cir. 2004); see also Grace United Me thodist Church v. City of Cheyenne, 451 F.3d 643, 651 (10t h Cir. 2 006) (refusing to “interp ret Smith as standing for the proposition that a secular exe mption automatically creates a claim for a religious exemption”); Swanson v. Guthri e Indep. Sch. Dist., 135 F. 3d 694, 698, 701 (10t h Cir. 1998) (concluding school’s attendance policy was not subject to s trict scrutiny despite exemptions for “strict categories of students,” such as fifth-year seniors and special education students). The exception for grandfathered plans is availa ble on equal ter ms to all employers, whether religious or secular. And the reli gious employer exemption and eligible organization accommodations serve to accommodate religion, not to disf avor it. Such categorical exceptions do not trigger strict scrutiny. See, e.g., Autocam Corp. v. Sebelius, No. 1:12-cv-1096, 2012 WL 6845677, at *5 (W.D. Mich. Dec. 24, 2012), aff’d, 730 F.3d 618 (6th Cir. 2013); O’Brien, 894 F. Supp. 2d at 1162.
“[C]arving out an exemption for defined religious entities [also] does not make a law non-neutral as to others.” Grote Indus., LLC v. Sebelius , 914 F. Supp. 2d 943, 95 3 (S.D. Ind. 2012) (quotation omitted), rev’d on other grounds, No. 13-1077 (7th Cir. Nov.
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8, 2013). Indeed, the religious employer exemption “presents a strong argument in favor
of neutrality” by “demonstrating that the o bject of the law was not to inf ringe upon or
restrict practices because of their religious motivation.” O’Brien, 894 F. Supp. 2d at 1161
(quotations omitted); see Conestoga, 917 F. Supp. 2d at 410. The regulations are not
rendered unlawful “merely because the [religious employer exemption] does not exte nd as far as Plaintiff[] wish[es].” Grote, 914 F. Supp. 2d at 953.8
Finally, even if the regulations were not neutral or generally applicable, plaintiffs’
free exercise clai m still would f ail because, as explained ab ove, the regulations d o not
substantially burden plaintiffs’ religious exercise. See Axson-Flynn, 356 F.3d at 1294
(explaining that, eve n where a law is not neutral or generall y applicable, strict scrutin y
applies only if the law substantially burdens religious exercise); Levitan v. Ashcroft, 281
8 Plaintiffs seek to undermine the government’s rationale for distinguishing between houses of worship, which are exempt, and other non-profit religious organizations, which are accommodated, by opining that becau se “[p]laintiffs have explicitly religious missions to which their employees subscribe, . . . there is no reason to believe Plaintiffs’ employees are l ess likely to share their religious beliefs.” Pl.’s Br. at 18 (citations omitted). Even assuming that this supposition meant that all of plaintiffs’ employees share the organ izations’ specific religious b eliefs regarding the u se of contraceptive services, it does not render unlawful the distinctions drawn by the government—which are based on the gene ral characteristics of houses of worship as compared to those of other non-profit religious organizations, like hospitals, universities, and charities, see 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19, and not the characteri stics of the specif ic plaintiffs here. See, e.g., Turner Construction Co. v. United States, 94 Fed. Cl. 561, 571 (Fed. Cl. 201 0) (observing that a revie wing court is not to “s ift through an age ncy’s rationale with a fine-toothed comb;” instead, the relevant question is whether the agency articulated a rati onal connection bet ween the f acts found and the choice made). Moreover, defendants’ decision to incorpo rate long-standing concepts from the tax code that refer to churche s, their integra ted auxiliaries, conventions or associatio ns of churches, and the ex clusively religious activities of any religious order, in an ef fort to avoid entangling inquiries regarding th e religious beliefs of plaintiffs’ employees, is reasonable.
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F.3d 1313, 1320 (D.C. Cir. 2002) (same); Goodall v. Stafford County School Bd., 60 F.3d
168, 173 (4th Cir. 1995) (same). For these reasons, plaintiffs’ free exercise claims (Counts II, III, IV, and VI) fail.9
C. The Regulations Do Not Violate the Establishment Clause, the Due Process Clause, or the Equal Protection Clause
“The clearest command of the E stablishment Clause is that one re ligious
denomination cannot be officially preferred over another.” Larson v. Valente, 456 U .S.
228, 244 (1982) (emphasis added). A law that discriminates among religions by “aid[ing]
one religion” or “prefer[ring] one religion over another” is subject to strict scrutiny. Id. at
246; see also Olsen v. DEA, 878 F .2d 1458, 1461 (D.D.C. 1989 ) (observing that “[ a]
statutory exemption authorized for one church alone, and for which no other church may
qualify,” creates a “denominational preference”). Thus, for example, the Supreme Court
has struck down on Es tablishment Clause grounds a state statute tha t was “draf ted with
the explicit intention” of requiring “parti cular religious denominations” to c omply with
registration and rep orting requirements while excluding other re ligious denominations.
Larson, 456 U.S. at 254; see also Bd. of Educ. of Kiryas J oel Vill. Sch. Dist. v. Grumet,
512 U.S. 687, 703-07 (1994) (striking down statute that “single[d] out a particular
religious sect for special treatment”). The Court, on the other hand, has upheld a statute
9 Plaintiff’s so-called “unbridled discretion” claim under the Free Exercise and Free Speech Clauses, Compl. ¶¶ 288-293 (Count XI), also fails. First, plaintiffs misunderstand the regulations when they assert that they provide HRSA “unbridled discretion over which organizations can [be] accommodated.” Compl. ¶ 289. That is incorre ct. The regulations permitted HRSA to create a religious employer exemption, and HRSA did so in its August 1, 2011 action. See HRSA Guidelines, AR at 283 -84. Any employer that meets the cr iteria of a “religious employer” is exempt from the contraceptive-coverage requirement. See id.; see, e.g., Grote, 914 F. Supp. 2d at 953. Second, plaintiffs’ allegation that defendants acted in a d iscriminatory manner by creating the religious employer exemption is without merit. As explained below, the religious e mployer exemption does not grant any denominational preference or ot herwise discriminate among religions.
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that provided an exemption from military service for persons who had a co nscientious objection to all wars, but not those who obj ected to onl y a parti cular war. Gillette v. United States, 401 U.S. 437 ( 1971). The Court explained that the statute did not discriminate among religions because “no particular sectarian affiliation” was required to qualify for conscientious objector status. Id. at 450-51. “[C]onscientious objector status was available on an equal basis to both the Quaker and the Roman Catholic.” Larson, 456 U.S. at 247 n.23; see also Cutter v. Wilkinson, 544 U. S. 709, 7 24 (2005) (up holding RLUIPA because it di d not “c onfer[] . . . pr ivileged status on any particular religious sect” or “single[] out [any] bona fide faith for disadvantageous treatment”).
Like the statutes at iss ue in Gillette and Cutter, the preventive serv ices coverage regulations do not grant any denominational preference or otherwise discriminate among religions. It is of no moment that the r eligious employer exemption and accommodations for eligible organizations apply to some employers but not others. “[T]he Establishment Clause does not prohibit the government from [differentiating between organizations based on their structure and purpose] when granting religious accommodations as long as the distinction[s] drawn b y the re gulations . . . [ are] not based on religious af filiation.” Grote, 914 F. Supp. 2d at 954; accord O’Brien, 894 F. Supp. 2d at 1163; see also, e.g., Children’s Healthcare Is a L egal Duty, Inc. v. Min De Pa rle, 212 F.3d 1084, 1090-93 (8th Cir. 2000); Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995) (concluding that religious exemption from self-employment Social Security taxes did not violate the Establishment Clause even though “so me individuals receive exemptions, and othe r individuals with identical beliefs do not”); Diocese of Albany, 859 N.E.2d at 468-69 (“This kind of distinction—not between denominations, but between religious
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organizations based on the nature of their ac tivities—is not what Larson condemns.”). Here, the distinctions established by the regulations are not so drawn.
The regulations’ definitions of religious employer and eligible orga nization “do[] not refer to any particular denomination.” Grote, 914 F. Supp. 2d at 954. The e xemption and accommodations are available on an equ al basis to organizati ons affiliated with any and all religio ns. The regulations, therefore, do not discr iminate among religi ons in violation of the Establish ment Clause. Indeed, every court to have considered an Establishment Clause challenge to the pr ior version of the reg ulations—which also included a require ment that the organizatio n be an organization as described in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended—has rejected it. See, e.g., O’Brien, 894 F. Sup p. 2d at 11 62; Conestoga, 917 F. Supp. 2d at 4 16-17; Grote, 914 F. Supp. 2d at 954; see also Walz v. Tax Commission of New York, 397 U.S. 664, 672-73 (1970) (upholding property tax exemption “to religious organizations for religious properties used solely for religious worship”); Liberty Univ., Inc. v. Lew , 2013 WL 3470532, at *17-*18 (4th Cir. July 11, 2013) (upholding another religious exemption in ACA where it made “no explicit and deliberate distinctions between sects” (quotation omitted)).10 For these reasons, plaintiffs’ Establishment Clause claims (Counts IV, V, VI, and VII) fail.
10 Plaintiffs stretch Colorado Christian University v. W eaver, 534 F. 3d 1245 (10th Cir . 2008), well beyond its facts in asserting that the case stands for the proposition that the Establishment Clause prohibits the government from distinguishing among different types of organizations that adhere to t he same religion. The court’s decision in Weaver was limited to “laws that facially regulate religious issues,” id. at 1257, and, particularly, those that do so in a way that denies certain religious institutions public benefits that are afforded to all other institutions, w hether secular or religious. The court in Weaver said nothing about the constitutionality of exemptions from generally applicable laws that are designed to a ccommodate religion, as opposed to discriminate against religion. A requirement that any religious exemption that the govern ment creates must be extende d to all org anizations—no matter their structure or purp ose—would severely hamper the
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Like plaintiffs’ Establishment Clause claim, its due process and equal protection claims are based on the theory that the regulations discriminate among religions. Because, as shown above, the regulations do not so discriminate, plaintiffs’ due process and equal protection claims warrant o nly rational basis revi ew. See, e.g., Johnson v. Robison, 415 U. S. 361, 375 n. 14 (1974); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir. 2007) (“Where a plaintiff’s First Amendment Free Exercise claim has failed, the Supreme Court has applied o nly rational basis scrutiny in its subsequent review of an equal protec tion fundamental right to religious free exercise claim based on the same facts.”); Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 868 (2d Cir. 1996) (applying rational basis test to la w that did not discriminate among religions). The regulations satisfy rational basis review because defendants could rationally have concluded that, as a general matter, houses of worship and their integrated auxiliaries are more likely than other religious organizations, such as religious charities, schools, and hospitals, to e mploy people of the same faith who s hare their objection to the use of contraceptive services. See, e.g., Banker’s Life and Cas. Co. v. Crenshaw, 486 U.S. 71, 85 (1988); Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1, 10 (1st Cir. 2011); see also 78 Fed. Reg. at 39,874, 39,887, AR at 6, 19. A ccordingly, Counts VII and VIII should be dismissed or summary judgment granted to defendants.11
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 a mple room under the Establishment Clause for ‘benevolent’ n eutrality which will per mit religious exercise to e xist without sponsorship and witho ut interference.”); Diocese of Albany, 859 N.E.2d at 464 (“To hold that any religious exemption that is not all-inclusive renders a statute n on-neutral would be to discourage the ena ctment of any such exemptions—and thus to restrict, rather than promote, freedom of religion.”). 11 Plaintiffs also allege that, by requiring them to facilitate practices in violation of their religious beliefs, the regulations interfere with plaintiffs’ “internal decisions” in violation of the Religion Clauses. Compl. ¶¶ 253-260 (Count VI). But that is m erely a restatement
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D. The Regulations Do Not Violate the Right to Free Speech or Expressive Association
Plaintiffs’ free speech claims fare no better. The right to freedom of speech “prohibits the go vernment from telling pe ople what the y must say.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47, 61 (2006 ). But the preventive services coverage regulations do not “compel speech”—by plaintiffs or any other person, employer, or entity—in violation of the Fi rst Amendment. Nor do they limit what plaintiffs may say. Plaintiffs remain free under the regulations to express whatever views it may have on the us e of contraceptive ser vices (or an y other health care servi ces) as well as its views about the regulations.
As plaintiffs point out, Pls.’ Br. at 19, to avail themselves of the accommodations, the employer plaintiffs must self-certify that they meet the definition of “eligible organization.” But, c ontrary to plai ntiffs’ assertion, id., the self-certification does not in any sense “trigger payments” for contraceptive services, Pls.’ Br. at 19, as the government cannot require any TPA of the GuideStone Plan, which is a self -insured church plan, to pro vide payments for contraceptive services. Completion of the si mple self-certification form, moreover, is “plainly incidental to the . . . regulation of conduct,” FAIR, 547 U.S. at 62, not speech. Indeed, every court to review a free speech challenge to the prior contracepti ve-coverage regulations has rejected it, in part, because the regulations deal with conduct. See, e.g., MK Chambers Co. v. U.S . Dep’t of Health & Human Servs., 2013 WL 1340719, at *6 (E .D. Mich. Apr. 3, 2013 ); Briscoe v. Sebelius, 927 F. Supp. 2d 1109 (D. Colo. 2013); Conestoga, 917 F. S upp. 2d at 418; Autocam, 2012 WL 6845677, *8; O’Brien, 894 F. S upp. 2d at 116 5-67. The accommodations likewise regulate conduct by relieving an eligible organization of any obligation to
of plaintiffs’ substantial burden and free exercise theories, which fail for reasons explained already.
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contract, arrange, pay, or ref er for contraceptive covera ge to wh ich it has reli gious objections. Accordingly, plaintiffs’ self-certifying their eligibility for an accommodation, which is incidental to t he regulation of conduct, does not violate the ir speech rights. See FAIR, 547 U.S. at 61-63.
Similarly flawed is plaintiffs’ claim that they are barred from expressing particular views to their TP A. See Pls.’ Br. at 19 . Defendants have bee n clear that “[ n]othing in these final regulations prohibits an eligible organization from expressing its opposition to the use of contraception.” 78 F ed. Reg. at 39,880 n.41, AR at 12. W hat the regulation s prohibit is an e mployer’s improper attempt to interf ere with its employees’ ability to obtain contraceptive coverage from a third p arty by, for example, threatening the T PA with a ter mination of its relationship with the emplo yer because of the TP A’s “arrangements to provide or ar range separate payments for contraceptive services for participants or benef iciaries.” See 26 C.F.R. § 54.9815 -2713A(b)(1)(iii); 29 C.F. R. § 2590.715-2713A(b)(1)(iii).
As an ini tial matter, plaintiffs lack standing to assert t his claim (for a reason in addition to the one ex plained supra at Section I). Because GuideStone is a self-insured church plan, the regulations do not re quire any TPA of the GuideStone Plan to provide separate payments for contraceptive services or to con tract or otherwise arrange with a third party for such payments to be made with respect to the participants and beneficiaries of the GuideStone Plan. Therefore, any assertion that the non-interference provision will affect the speech of plaintiffs here is far too speculative for purposes of Article III standing. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013).
Even if plaintiffs had standing to ass ert this claim, it would f ail on the merits. Addressing an analogous argument in the context of the National Labor Relations Act,
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the Supreme Court concluded that an employer’s threatening statements to its employees regarding the effects of unionization fell outside the pr otection of the First Amendment because they interfered with employee rights. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). The Court explained tha t there was no First Amendment violation because the employer was “free to communicate . . . any of his general views . . . so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’” Id.; see also Ohralik v. O hio State Bar Ass’n , 436 U.S. 447, 456 (197 8). The sa me is true here. Because the reg ulations do not pre vent plaintiffs from expressing their vi ews regarding the use of contraceptive services, but rather, protect e mployees’ right to obtai n payments for contraceptive services through issuers/TPAs, there is no inf ringement of plaintiffs’ right to free speech.
The regulations also do not violate pl aintiffs’ right to expres sive association. The regulations do not interfere in any way with the composition of plaintiffs’ workforce. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 656 (2000) (holding Boy Scouts’ freedom of expressive association was violated by law requiring organization to accept gay man as a scoutmaster); Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984) (concluding statute that forced group to accep t women against its d esires was s ubject to strict scrutiny). The regulations do not f orce plaintiffs to hire employees they does not wish to hire, and plaintiffs are free to associate to voice their disapproval of the use o f contraception and the regulations. Even the statute at issue in FAIR, which required law schools to al low military recruiters on campus if other recruiters were allowed on campus, did not violate the law s chools’ right to expres sion association. 547 U.S. at 68 -70. The p reventive services coverage regulations do not even implicate plaintiffs’ right. See MK Chambers v. U.S. Dep’t of Health & Human Servs., No. 13-cv-11379-BPH-MJH, Order Denying Mot.
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for Prelim. Inj. at 12 -13, ECF No. 46 (Sept. 13, 2013) (rejecting ex pressive association challenge to prior version of regulations); Diocese of Albany, 859 N.E. 2 d at 4 65 (upholding similar state law because it “does [not] compel [plaintiffs] to associa te, or prohibit them from associating, with an yone”). For these reasons, plaintiffs’ free speech and expressive association claims (Counts IX and X) fail.
E. Plaintiffs’ APA Claims Fail 1. The regulations were promulgated in accordance with the APA
Plaintiffs assert that defendants failed to compl y with the A PA’s notice an d comment procedures, both in relation to the challenged regulations and in relation to the HRSA Guidelines. Plaintiffs also claim that defendants improperly delegated their authority when they sought the expertise of the IOM. All of these allegations are baseless. The APA’s rulemaking provisions gener ally require that agencies provide notice of a proposed rule, invite and consider public comments, and adopt a final rule that includes a statement of basis and purpose. See 5 U.S.C. § 553(b) , (c). Defendants complied with these requirements.
As to the challenged regulations, defendants issued the ANPRM on March 21, 2012, and solicited comments on it. 7 7 Fed. Reg. 16, 501. Defendants then considered those comments and issued the NPRM on Fe bruary 6, 2013, requesting comments on the proposals contained in it. 78 F ed. Reg. 8456 , 8457. Def endants received over 400,00 0 comments, and the preamble to the 2013 final rules contains a detailed discussion of the comments and of defendants’ responses to them. See 78 Fed. Reg. 38,969, 39,871-39,888 (July 2, 2013). The mere fact that the regulations as ultimately issued may not satisfy the preferences of each and every commenter is certainly not evidence that those comments were not con sidered. Given the ra nge of interests and v iews among commenters, it i s
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unlikely—if not impossible—that any regulation will be f ully in line with the co mments made by every commenter.
As to the HRSA Guidelines, because there were no existing HRSA guidelines relating to pre ventive care and screen ing for women, HRSA sought the scientif ic and medical expertise of the IOM. This is not at all unusual, as entities like HRSA frequently contract with non-governmental entities, including the IO M, for this t ype of technical input. Seeking such input is not a deleg ation of HRSA’s authority, but rathe r a consultation. After considering the IOM ’s recommendations, HRSA independently made the decision to adopt guidelines based on those recommendations, subject to the religious employer exemption. Moreover, nothing in the APA, or any other statute, requires HRSA to have subjected IOM’s recommendations to notic e and comment procedures before adopting them in the guidelines. The APA’s notice-and-comment requirements apply only to ru lemaking, 5 U.S.C. § 553(b), and a “rule” is defined in t he APA, in relevant part, as being “designed to implement, interpret, or prescribe law or policy,” id. § 551(4). The guidelines neither do nor are designed to do any such thing, and as such the y do not constitute a “rul e” within the meaning of the AP A; they are simpl y clinical recommendations of a scientif ic body. The substantive obligations that are i mposed on group health plans and health insurance issuers were imposed by Congress, in 42 U.S.C. § 300gg-13(a) and in corresponding provisions of ERISA and the Internal Revenue Code, which expressly and automatically imported the content of various guidelines (including the HRSA Guidelines), including new content after a specified period of time. Indeed, in the same provision, Congress also imported by reference clinical recommendations of the United States P reventive Services Task Force and the Advi sory Committee on Immunization Practices of the Centers for Disease Control and Prevention. Id. The
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clinical recommendations of these entities are not generall y required to be subject to notice and comment, and there is no suggestion that Congress intended otherwise here for any of the referenced recommendations.12
2. The regulations are neither arbitrary nor capricious Plaintiffs’ claim that t he regulations ar e arbitrary and capricious is belied b y the policymaking path discussed above, which illustrates that the regulations are neither arbitrary nor caprici ous. See Motor V ehicle Mfrs. Ass’n of the U.S . v. State Farm Mut. Auto. Ins. Co. , 463 U. S. 29, 43 (1983) (age ncy action must be up held so long as “the agency’s path may reasonably be discerned”); Biodiversity Legal Found. v. Babbitt, 146 F.3d 1249, 1257 (10th Cir. 1998) (under APA, reviewing court’s role “is not to assess the wisdom of policy choices”). The preamble to the rules also sets out that path in detail, see 78 Fed. Reg. at 39,871-88, and there can be no serious question that it can be reasonably discerned. Similarly, plaintiffs’ brazen claim that defendants failed to consider the constitutional and stat utory implications of the regulations is f latly contradicted b y the record, which explicitly discusses that very issue. See 78 Fed. Reg. at 39,886-88. Just as the fact that p laintiffs is disap pointed that the regulations are not in keeping with all of their comments does not mean that defendants failed to consider those comments, plaintiffs’ contrary policy preferences do not render the re gulations arbitrary or capricious.
12 In contrast, other pro visions of the ACA use cl ear language whe n referring to the promulgation of substantive rules. See, e.g., 42 U.S.C. § 300gg-1(b)(3) (“The Secretary shall promulgate regulations with respect to enrollment periods under paragraphs (1) and (2).”); id. § 30 0gg-14(b) (“The Secretary shall promulgate regulations to define the dependents to w hich coverage shall be made available under s ubsection (a).”); id. § 300gg-17(d). That Congress explicitly did not use such language here indicates that it did not intend the HRSA Guidelines to be “rules” within the meaning of the APA.
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3. Plaintiffs lack standing to raise their statutory authority claims Plaintiffs make three allegations in w hich they claim that defendants lacked statutory authority to enact parts of the reg ulations. Specifically, plaintiffs allege that defendants lack statu tory authority (1) “to coerce [TPAs] . . . to pay or provide for [contraceptive services] for individuals with whom they have no contractual or fiduciary relationship, Compl. ¶ 314; (2) “to prevent insurance issuers and [TPAs] from passing on the costs” of providing contraceptive services, id. ¶ 315; and (3) “to allow user fees from the federal exchanges to be used” b y TPAs “to purchase c ontraceptive . . . servic es for employees not participating in the exchanges,” id. ¶ 316. Plaintiffs, however, lack standing to a ssert these claims (for a reason in addition t o the on e explained supra at Section I). First, plaintiffs lack standing to raise these claims because they challenge the government’s regulation of third parties (i.e., health insurance issuers and TPAs), rather than of plaintiffs themselves. The claims thus run afoul of the “general rule that a part y must assert [its] own legal rights and in terests, and cannot rest [ its] claim to relief on the legal rights or interests of third par ties.” Hinck v. Un ited States, 550 U.S. 501, 510 n.3 (2007) (quotation omitted); see also Warth v. Seldin, 422 U.S. 490, 499 (197 5). It is undisputed that plaintiffs are neither issuers nor TPAs, and plaintiffs cannot demonstrate any reason why those entities are unable to assert their own claims if they so desire. Thus, plaintiffs lack standing to raise these claims. Second, because GuideStone is a self-insured church plan, the regulations do not require it or any of its TPAs to provide separate payments for contraceptive services or to contract or otherwise arrange with a third part y for such pa yments to be m ade with respect to the participants and beneficiaries of the GuideStone Plan. And plaintiffs lack
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standing to challenge the government’s authority to regu late other TPAs b y requiring them to make such payments under the acco mmodation. See Hinck, 550 U.S. at 510 n.3 (explaining that a plaintiff “cannot rest [ its] claim to relief on the legal rights or interest s of third partie s”). Furthermore, because plaintiffs will not be paying for contraceptive services under the reg ulations, they are not affected by—and certainly not injured by— the parts of the regula tions that prev ent TPAs from passing on t he costs of providing contraceptive coverage or allow TPAs to obtain reimburse ment for payments for contraceptive services through adjustments to FFE user fees. Plaintiffs thus lack standing to raise these claims for these reasons as well. See Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (“A plaintiff must demonstrate standing for each claim he seeks to press.”).
4. The regulations do not violate restrictions relating to abortion Plaintiffs contend the r egulations violate the APA because they conflict with two federal statutes dealing with abortion: section 1303(b)(1) of the A CA, and the Weldon Amendment to the Consolidated Appropriations Act of 2012. Plaintiffs appear to re ason that, because the p reventive services coverage regulations require group health plans to cover emergency contraception, such as P lan B, and certain IUDs, t hey in effect require plaintiffs to provide coverage for abortions in violation of federal law. Plaintiffs’ claim based on section 1303(b)(1) of the ACA should be rejected at the outset because plaintiffs lack pruden tial standing to assert it. The doctrine of prudential standing requires that a plaintiff’s claim fall within “the zone of interests to be protected or regulated b y the statute or constitutio nal guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970) . But the necessar y link between plaintiffs and section 1303(b)(1) is missing here. See O’Brien, 894 F. S upp. 2d
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at 1167-68 (holding t hat plaintiff lacked prudential standin g to raise si milar claim). Section 1303(b)(1) provides that “nothing in this title . . . shall be construed to require a qualified health plan to provide co verage of [abortion services],” 42 U .S.C. § 18023(b)(1)(A)(i), but plaintiffs are neither health insurance issuers nor purchasers of a qualified health plan.13 They therefore do not fall within the zone of interests to be protected by the statute in question.
Even if the Court were to reach the m erits of both o f these claim s, plaintiffs’ premise that the con traceptive coverage regulations require abortion coverage is fundamentally incorrect. The regulati ons do not require th at any health plan co ver abortion as a preventive service, or that it cover abortion at all, as that term is defined in federal law. Rather, the regulations require only that non-grandfathered, non-exempt and non-accommodated group health plans cover all FDA-approved “contraceptive methods, sterilization procedures, and patient educ ation and counseling,” as prescribed by a health care provider. See HRSA Guidelines, AR at 283-84. And the government has made clear that the preventive services covered by the regulations do not include abortifacient drugs.14 Although plaintiffs believe that Plan B, ella, and certai n IUDs are abortifacient drugs or cause aborti ons, neither the govern ment nor this Court is required to accept that
13 A “qualified health plan,” within the meaning of this provision, is a health plan that has been certified by the health insurance exchange “through which such plan is offered” and that is of fered by a he alth insurance issuer. 42 U.S.C. § 18021(a)(1). Health insurance exchanges are t o be se t up b y states or th e federal government no l ater than Januar y 1, 2014. Id. § 1 8031. The GuideStone Plan is not offered on a health insurance e xchange and is not offered by a health insurance issuer, and so is not a “qualified health plan.” 14 HealthCare.gov, Affordable Care Act Rules on Expanding Access to Preventive Services for Women (August 1, 2011), http://www.hhs.gov/healthcare/facts/factsheets/ 2011/08/womensprevention08012011a.html (last visited S ept. 20, 2 013); see also IOM REP. at 22 , AR at 32 0 (recognizing that abortion services are outside the scope of permissible recommendations).
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characterization, which is inconsistent with the FDA’s scientific views and with federal law. While plaintiffs’ religious beliefs may define abortion more broadly than federal law to include emergency contraception and certain IUDs, statutory interpretation requires that terms be construed as a matter of law and not in accordance with any particular individual’s views or beliefs. E.g., Gov’t Empls. Ins. Co. v. Benton, 859 F.2d 1147, 1149 (3d Cir. 1988).
In recommending what contraceptive services should be covered by health plans without cost-sharing, the IOM Re port identified the contraceptives that have b een approved by the FDA as safe and effective. See IOM REP. at 10, AR at 312. And the list of FDA-approved contraceptives includes emergency contraceptives such as P lan B. See id. at 105, AR at 403. The basis f or the in clusion of such drug s as safe and eff ective means of contraception dates back to 199 7, when the F DA 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 wom an is pregnant ” and that there is “no evid ence 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 f rom implantation until delivery.”). In ligh t of this conclusion b y the FDA, HHS inf ormed Title X grantees, which are requir ed to offer a range of acceptable and effective family planning methods—and may not offer abortion exce pt under li mited circumstances (e.g., rape, incest, or when the lif e of the woman would be in danger) —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,
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1997), http://www.hhs.gov/opa/pdfs/opa-97-02.pdf (last visited S ept. 20, 2013); see also
42 U.S.C. §§ 300, 300a-6. Because they reflect a settled understanding of FDA-approved
contraceptives that is in accordance with existing federal laws prohibiting federal funding
for certain abortions, the regulations are co nsistent with over a decade of regulatory
policy and practice and thus c annot be deemed contrary to any law dealing with abortion.15 See Bhd. of R.R. Signalmen v. Surface Transp. Bd., 638 F.3d 807, 815 (D.C.
Cir. 2011) (giving particular deference to an agency’s longstanding interpretation) (citing
Barnhart v. Walton, 535 U.S. 212, 220 (2002)).
In sum, plaintiffs’ APA claims (Counts XII, XIII, XIV, XV, and XVI) fail.
III. PLAINTIFFS CANNOT ESTABLISH IRREPARABLE HARM, AND AN INJUNCTION WOULD INJURE THE GOVERNMENT AND THE PUBLIC Plaintiffs have not established that they are likely to suffer irreparable harm in the
absence of preliminary relief because, as explained above, they have not shown a
likelihood of success on the merits of their RFRA or First Amendment claims. See Hobby
Lobby, 723 F.3d at 1146 (explaining that, in the RFRA and First Amendment context, the
merits and irreparable injury prongs of the preli minary injunction analysis merge
together, and plaintiffs cannot show irreparable injury without also showing a likelihood
of success on the m erits). As to the balance of equities and the pub lic interest, “there i s
15 Representative Weldon, the sponsor of the Weldon Amendment, himself did not consider the wor d “abortion” in the stat ute 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 st atute, nor has emergency contraception, what has commonly been interpreted as the m orningafter pill. . . . [U]nder the current FDA policy[,] that is considered contraception, and it is not affected at all b y this statute.”). His statement leaves little doubt that the Weldon Amendment was not intended to apply to emergency contraceptives. See Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564 (1976) (indicating that a statement of one of the legislation’s sponsors deserves to be accorded substantial weight in interpreting a statute).
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inherent harm to an a gency in preventing it from enforcing regulations that Cong ress 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 (6 th Cir. 1998) ( indicating that granti ng an in junction against the enforcement of a likely constitutional statute would harm the government). Accordingly, plaintiffs have not established the three remaining elements necessary to obtain a preliminary injunction. IV. THE SCOPE OF ANY PRELIMINARY INJUNCTIVE RELIEF
In their motion for preliminary injunction, plaintiffs argue that “ [t]he benefits of the [requested] injunction [should] extend be yond the named plaintiffs to encompass all [proposed] class members.” Pls.’ Br. at 23 . Defendants believe entr y of preliminary injunctive relief is inappropriate in this ca se for the many reasons explained above. Nevertheless, if the Court disagrees and concludes that the named plaintiffs have met their burden of establishing jurisdiction and all four elements for obtaining a preli minary injunction, defendants do not object t o the sc ope of the resulting pr eliminary injunction including the named plaintiffs as well as any members of the class plaintiffs have proposed in their complaint. See Compl. ¶ 18. Defendants, however, reserve the right to oppose class certification and the entry of any permanent relief on a class-wide basis.
CONCLUSION For the f oregoing reasons, def endants respectfully ask that th e Court den y plaintiffs’ motion for preliminary injunction, and grant defendants’ motion to dismiss or, in the alternative, for summary judgment on all of plaintiffs’ claims. Respectfully submitted this 15th day of November, 2013,
STUART F. DELERY Assistant Attorney General
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SANFORD C. COATS United States Attorney JENNIFER RICKETTS Director, Federal Programs Branch SHEILA M. LIEBER Deputy Director /s/ Benjamin L. Berwick BENJAMIN L. BERWICK (MA Bar No. 679207) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W., Room 7306 Washington, D.C. 20001 Tel: (202) 305-8573; Fax: (202) 616-8470 Email: benjamin.l.berwick@usdoj.gov Attorneys for Defendants
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Case 5:13-cv-01092-D Document 51 Filed 11/15/13 Page 52 of 52 CERTIFICATE OF SERVICE
I hereby certify that o n November 15, 2013, I electronicall y filed the f oregoing with the Clerk of the Court by using the CM/ECF system.
/s/ Benjamin L. Berwick BENJAMIN L. BERWICK
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 Case 5:13-cv-01092-D Document 56 Filed 11/27/13 Page 1 of 52

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
(1) REACHING SOULS INTERNATIONAL, INC., et al.,

Plaintiffs, v.
(4) KATHLEEN SEBELIUS, Secretary of the United States Department of Health and Human Services, et al.,

Case No. 5:13-cv-01092-D

Defendants.

PLAINTIFFS’ COMBINED REPLY IN SUPPORT OF PRELIMINARY INJUNCTION AND OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
AND MOTION FOR SUMMARY JUDGMENT

Case 5:13-cv-01092-D Document 56 Filed 11/27/13 Page 2 of 52
TABLE OF CONTENTS
INTRODUCTION ............................................................................................................... 1 LCvR 56.1(c) RESPONSE TO DEFENDANTS’ STATEMENT OF MATERIAL
FACTS...................................................................................................................... 2 STATEMENT OF ADDITIONAL FACTS ...................................................................... 13 ARGUMENT..................................................................................................................... 19
I. All Plaintiffs Have Standing ..................................................................................... 19 II. Defendants’ Motion Must Be Denied ...................................................................... 22
A. The Mandate violates RFRA ............................................................................ 22 B. The Mandate violates the Administrative Procedures Act ............................... 25
1. The Final Rules are “not in accordance with law” because they purport to bind ERISA-exempt church plan TPAs....................................... 25
2. The Final Rules are “arbitrary and capricious” because they force Reaching Souls and Truett-McConnell to comply with an unenforceable accommodation scheme ........................................................ 26
3. Defendants violated the APA by promulgating the HRSA Guidelines without notice, comment or publication in the Federal Register.................. 30
C. The Mandate violates the Free Exercise Clause ............................................... 33 D. The Establishment Clause claims cannot be resolved in Defendants’ favor .... 38 E. The Mandate violates Plaintiffs’ Free Speech rights ........................................ 40 F. The Mandate violates Plaintiffs’ right to expressive association. ..................... 41 G. Defendants’ motion for summary judgment is premature. ............................... 43 III. Plaintiffs are entitled to an injunction .................................................................... 44 A. Plaintiffs have a substantial likelihood of success on the merits and face a
substantial threat of irreparable harm ............................................................... 44 B. A preliminary injunction will not harm Defendants or the public.................... 44 CONCLUSION ................................................................................................................. 45

Case 5:13-cv-01092-D Document 56 Filed 11/27/13 Page 3 of 52
TABLE OF AUTHORITIES Cases
Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321 (2013) .............................................................................................................. 40
Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193 (10th Cir. 2006)................................................................................................... 2
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004)........................................................................................... 36, 37
Beck v. Mays Home Health, Inc., No. 10-cv-566-D, 2012 WL 1066151 (W.D. Okla. Mar. 29, 2012) ........................................... 2
Boy Scouts of America v. Dale, 530 U.S. 640 (2000) ............................................................................................................ 40, 41
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ...................................................................................................... 33, 34, 37
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) .................................................................................................................. 37
Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008)............................................................................... 33, 34, 38, 39
Cressman v. Thompson, 719 F.3d 1139 (10th Cir. 2013)..................................................................................... 19, 20, 21
FCC v. NextWave Pers. Commc'ns Inc., 537 U.S. 293 (2003) .................................................................................................................. 25
Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999) .......................................................................................... 34, 36, 37
Gilardi v. U.S. Dep’t of Health & Human Srvs., No. 13-5069, 2013 WL 5854246 (D.C. Cir. Nov. 1, 2013) ...................................................... 23
Gillette v. United States, 401 U.S. 437 (1971) .................................................................................................................. 39
Goetz v. Glickman, 149 F.3d 1131 (10th Cir. 1998)................................................................................................. 39
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006)................................................................................................... 36
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Heideman v. S. Salt Lake City, 348 F.3d 1182 (10th Cir. 2003)................................................................................................. 13
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013)............................................................................... 23, 24, 33, 35
Holy Land Found. for Relief and Dev’t v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) .................................................................................................. 43
Hydro Res., Inc. v. U.S. E.P.A., 608 F.3d 1131 (10th Cir. 2010)........................................................................................... 21, 25
In re Motor Fuel Temper. Sales Practice Litig., 641 F.3d 470 (10th Cir. 2011)................................................................................................... 42
Jock v. Sterling Jewelers, Inc., 677 F. Supp. 2d 661 (S.D.N.Y. 2009) ....................................................................................... 23
Korte v. Sebelius, No. 12-3841, 2013 WL 5960692 (7th Cir. Nov. 8, 2013)......................................................... 24
Larson v. Valente, 456 U.S. 228 (1982) .................................................................................................................. 38
Lutheran Soc. Serv. of Minn. v. United States, 758 F.2d 1283 (8th Cir. 1985)................................................................................................... 39
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) .............................................................................................................. 32
Mission Grp. Kansas, Inc. v. Riley, 146 F.3d 775 (10th Cir. 1998)................................................................................................... 30
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .............................................................................................................. 26, 28
Nat'l Collegiate Athletic Ass'n v. Califano, 622 F.2d 1382 (10th Cir.1980).................................................................................................. 21
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994)....................................................................................... 26, 28, 30
Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989)................................................................................................... 43
Prof’l Reactor Operator Soc. v. U.S. Nuclear Regulatory Comm’n, 939 F.2d 1047 (D.C. Cir. 1991) ................................................................................................ 32
iii

Case 5:13-cv-01092-D Document 56 Filed 11/27/13 Page 5 of 52
Rumsfeld v. FAIR Inc., 547 U.S. 47 (2006) .................................................................................................................... 40
Save Palisade FruitLands v. Todd, 279 F.3d 1204 (10th Cir. 2002)................................................................................................. 39
SEC v. Wolfson, 539 F.3d 1249 (10th Cir. 2008)................................................................................................. 43
Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004)................................................................................................. 22
Sorenson Commc'ns, Inc. v. F.C.C., 567 F.3d 1215 (10th Cir. 2009)................................................................................................. 30
Sprint Comm’s Co., L.P. v. APCC Servs., Inc., 554 U.S. 269 (2008) .................................................................................................................. 21
Summum v. City of Ogden, 297 F.3d 995 (10th Cir. 2002)................................................................................................... 37
Swanson v. Guthrie Independent School District, 135 F.3d 694 (10th Cir. 1998)................................................................................................... 36
Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997 (2012) .............................................................................................................. 33
U.S. West, Inc. v. FCC, 182 F.3d 1224 (10th Cir. 1999)................................................................................................. 41
United States v. Cain, 583 F.3d 408 (6th Cir. 2009)..................................................................................................... 32
United States v. O’Brien, 391 U.S. 367 (1968) .................................................................................................................. 12
Zubik v. Sebelius, No. 13-cv-1459, 2013 WL 6118696 (W.D. Pa. Nov. 21, 2013) ........................................ passim
Statutes 5 U.S.C. § 553............................................................................................................................... 30
5 U.S.C. § 706............................................................................................................................... 25
26 U.S.C. § 4980D ........................................................................................................................ 30
26 U.S.C. § 4980H .................................................................................................................. 20, 30
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42 U.S.C. § 300gg-13 ................................................................................................................... 30 Regulations 7 C.F.R. § 247.9 ............................................................................................................................ 12 10 C.F.R. § 20.1003 ...................................................................................................................... 12 26 C.F.R. § 54.9815-2713A................................................................................................... passim 29 C.F.R. § 2510.3-16................................................................................................................... 16 29 C.F.R. § 2590.715–2713A ................................................................................................ passim 45 C.F.R. § 147.130 ................................................................................................................ 30, 31 45 C.F.R. § 147.131 ...................................................................................................................... 37 75 Fed. Reg. 41,726 (July 19, 2010)............................................................................................. 31 76 Fed. Reg. 46621 (Aug. 3, 2011)............................................................................................... 31 78 Fed. Reg. 8456 (Feb. 6, 2013) ................................................................................................. 39 78 Fed. Reg. 39870 (July 2, 2013)......................................................................................... passim Rules Fed. R. Civ. P. 12 .......................................................................................................................... 43 Fed. R. Evid. 802 ............................................................................................................................ 2 W.D. Okla. LCvR 56.1(b)............................................................................................................... 2 Other Authorities Abortion Non-Discrimination Act of 2002
(H.R. 4691, 107th Cong. 2002) ................................................................................................. 13 The Church of Kathleen Sebelius, Wall St. J., Dec. 13, 2011....................................................... 18 The Forum at Harvard School of Public Health, A Conversation with Kathleen Sebelius, U.S.
Secretary of Health & Human Services (April 8, 2013) ........................................................... 19 Stedman's Medical Dictionary (28th ed. 2006) ............................................................................. 37
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INTRODUCTION Plaintiffs have a sincere and unchallenged religious objection to participating in Defendants’ abortifacient distribution scheme. If they persist in their religious exercis e, Plaintiffs face massive penalties. Under Hobby Lobby, Defendants’ impositions amount to a substantial b urden under RFRA that Defendants may not impose unless they satisfy strict scrutiny. Defendants rightly concede that they cannot satisfy strict scru tiny in light of Hobby Lobby. Dkt. 50, Defs’ Br. 21. They further admit that they “lack authority” to impose their requirements on administrators of plans like the one at i ssue here. Id. at 2, 17-18. And they admit that they have exempted other religious organizations with the e xact same religious objection to participating in the scheme. Id. at 11-13. The only court to consider Defendants’ justification for this arbitrary rule has called it “ speculative,” “unsubstantiated,” and “unpersuasive.” Zubik v. Sebelius , No. 13-cv-1459, 2013 WL 6118696, at *29 (W.D. Pa. Nov. 21, 2013). Defendants’ concessions, combined with controlling law, doom their case. Defendants cannot avoid this result by seeking refuge in the law of standing because they continue to insist that Plaintiffs sign their self-certification form. Plaintiffs cannot sign the form because their religious beliefs prevent them from being complicit in Defendants’ scheme, and because, beginning January 1, GuideStone’s third party administrator Highmark intends to rely on any self-certification forms it receives to offer abortifacient coverage to girls as young as ten. Ormont Decl. (Ex. 1) ¶¶ 4-5. For all these reasons, Defendants’ Motion should be denied.
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LCvR 56.1(c) RESPONSE TO DEFENDANTS’ STATEMENT OF MATERIAL FACTS
Preliminary Statement. The factual claims set forth in the Defendants’ Statement of Material Facts (“Defendants’ Statement”) largely consist of legal conclusions. This is improper, as the statement is supposed to contain “facts” not legal conclusions. See W.D. Okla. LCvR 56.1(b) (requiring statement of “facts”). Sections of the Federal Code and the Federal Register speak for themselves.
To the exten t Defendants’ Statement concerns actual f acts, those facts are largel y based on either (a) hearsay statements from the D efendants’ own documents or (b) hearsay statements from third parties (incl uding the IOM Report). This approach is improper. The court cannot rel y on Def endants’ inadmissible hearsay assertions for the truth of the matter asserted, either at trial, Fed. R. Evid. 802, or on summary judgment. See Argo v. Blue Cros s & Blue Shield of Ka nsas, Inc., 452 F .3d 1193, 1199 (10th Cir. 2006) (noting that, even when contained in affidavits, “courts should disr egard inadmissible hearsay statements . . . as those statements could not be presented at trial in any form.”); see also Beck v. Mays Home Health, Inc ., No. 10-cv-566-D, 2012 WL 1066151, *1 n.2 (W.D. Okla. Mar. 29, 2012) (DeGiusti, J.) (same).
Furthermore, any reliance on t he purported administrative record before discovery begins would be improper for a second reason: Plaintiffs have not yet had the opportunity to conduct discovery to deter mine whether the proffered administrative record is complete and accura te. As set f orth in Plaintiffs’ Rule 56(d) Motio n, serious questions have been raised about the lack of knowledge on the part of the witness who certified that
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record to this court. Pre-discovery summary judgment in reliance on the proffered record is premature.
Subject to and including the objections set forth above, Plaintiffs’ further responses to particular statements are set forth below: 1. Disputed and unsupported. The only related statement in these p ages is a sin gle survey “indicat[ing] that less than half of women are up to date with reco mmended preventive care screenings and s ervices (Robertson and Collins, 2011).” AR 318. The Robertson and Collins survey, however, did not consider contraceptive coverage to be “preventive care,” instead asking women “whether they had received a set of recommended preventive screening tests: blood pressure, cholesterol, cervical cancer, colon cancer (f or ages 50 to 64) and brea st cancer (f or ages 50-64).” Robertson & Collins, Findings from the Commonwealth Fund Biennial Health Insurance Survey of 2010 8-9 (The Commonwealth Fund 2011) (Ex. 2-A). The only study in the cite d IOM pages pertaining to contraception concerns whether changes in cost structure for certain contraceptives can cause “a chan ge in the mix of contraceptive methods prescribed and purchased.” AR 407, 1359. 2. Disputed and unsupported. See Response No. 1. 3. Disputed and unsupported. Undisputed that the cited statute exists. The statute speaks for itself, and nothing in the citation provided indicates what the statute “seeks to” do, or its efficacy, reasonableness, or general applicability in pursuing its alleged goals. 4. This is a legal concl usion, rather than a stat ement of fact. The cited statute, which is only partially quoted, speaks for itself.
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5. Disputed and unsupported. The IOM Report includes a statement of its charge from HHS and that statement does not include any discussion of coverage issues. AR 300. Rather, the HHS charge simply deals with assessing preventive health guidelines, and expressly excludes factors such as cost-effectiveness and community-based solutions. AR 300-01 (“The cost-effectiveness of screenings or ser vices could not be a f actor for the committee to consider in its anal yses leading to its re commendations.”). IOM also acknowledged that it d id not “conduct a USPSTF-style systematic review for any single preventable health condition or determinant of well-being.” AR 294. Indeed, IOM expressly recommended to HHS that it shou ld “establish a co mmission to reco mmend coverage of new preventive services for women to be covered under the ACA” and that commission should “[d]esign and implement a coverage decision making methodology to consider evidence review bodies (and oth er clinical guidelin e bodies) and covera ge factors (e.g. cost, cost-effectiveness, legal, ethical).” AR 311.
Furthermore, Plaintiffs dispute: (1) the p ropriety of HHS abdicating its authority for creating preve ntive care guidelines by adopting IOM’s recommendations wholesale even though those recommendations did not account for coverage-related issues like cost effectiveness; (2) the impartiality of the IOM co mmittee that was f ormulated to recommend guidelines; (3) the methods the IOM committee employed; and (4) the merits of IOM’s recomm endations. Specifically, HHS outsourced del iberations to the IOM, which in turn cr eated a “Co mmittee 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
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inviting presentations from groups with religious objections to forced participation in the distribution of contraceptives, sterilization, and abortion-inducing drugs. AR 516-19.
In addition, the dissent reports that t he IOM committee was tasked to act on a n “unacceptably short time frame” in which to conduct meaningful scientific review, and that the IOM committee should not have made recommendations simply to keep pace with “the ACA-mandated rapidity with which the committee was confronted.” AR 529530. “[T]he committee process f or evaluation of the evidence lack ed 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. Ultimately, “the committee erre d [in] their zeal to recommend something despite the time c onstraints and a f ar from perfect methodology” and “failed to demonstrate [transparency and strict objectivity] in the Report.” AR 530-31 (deeming evidence evaluation process a “fatal flaw” in the report). 6. Undisputed that the quoted text appears in the IOM Report, but disputed that IOM’s review was “extensive” and “ science-based.” Plaintiffs incorporate their r esponse to Paragraph 5 supra. The report di d not rec ommend that “HRSA guidelines include” anything, but rather recommended the drugs, devices, procedures, and related advice “for consideration as a preventive service for women.” AR 308. 7. Undisputed but incomplete. FDA-approved contraceptive methods also include, inter alia, sterilization. AR 402-03. Emergency contraceptives (specifically: ella, Plan B and certain IUDs) can induce abortion, see Paragraph 37, infra.
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8. Disputed and unsu pported. The cited page s of the IOM Report do not discus s coverage of contraception without cost-sharing at all, much less t hat such cove rage is “necessary to i ncrease access to such s ervices” or avoid bad ou tcomes. AR 400-01; see also AR 1290 (“The scarcity of studies on [negative health effects of unintended pregnancy] is surprising, given that the prevention of unintended pregnancy has been a major rationale for the funding and provision of family planning”); AR 1291 (“The scarcity of studies on the eff ects of unintended pregnanc y on the p hysical and mental health of men and women . . . must be noted.”). 9. Undisputed. This was done, however, via press release , see Press Release, A Statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius (Jan. 20, 2012) (Ex. 2 -B), and website announcement, see AR 283-84, and without following notice and comment rulemaking. 10. This statement is a characterization of the law, not a statement of fact. The regulation speaks for itself. Undisputed that the 2011 final rule contained the four prongs described. 11. This is a disputed proposition of law. Undisputed that HRSA’s webpage and the C.F.R. contain provisions addressing this topic. Disputed that Defendants have employed a proper definition of “religious employer,” in that Plaintiffs are religious employers and should be treated as s uch under the law. See, e.g., Plaintiffs’ Statement of Additional Facts ¶¶ 1-8. 12. Undisputed. 13. Undisputed that the g overnment undertook new rulemaking, but disputed that th e rulemaking “accommodated” non-grandfathered non-profit religious organizations’
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religious objections to forced participation i n the govern ment’s scheme. See Plaintiffs’ Statement of Additional Facts ¶¶ 13-15, 20-21 (noting that Plaintiffs cannot comply with new rule). 14. Undisputed, but see Response 13. 15. Disputed, unsupported, and argumentative. The “significance” of the “accommodation” and the “importan[ce]” of the government’s policy goals are not f acts, and Defendants’ self-serving characterizations of their own documents are not admissible evidence establishing “facts.” LCvR 56.1(b). Undisputed that the a ccommodation only helps “certain” religious non-profits. As evidenced b y Defendants’ opposition to Plaintiffs’ request f or even preliminary relief, the govern ment continues to insist that Plaintiffs perform acts that violate th eir religious beliefs. See Plaintiffs’ Statement of Additional Facts ¶¶ 13-15, 20-21 (noting that Plaintiffs cannot comply with new rule). 16. Disputed and un supported. Defendants have claimed that, at least a s relevant to this case, 78 Fed. Reg. 39,870 (July 2, 2013), AR at 1-31 (the “Mandate” or “Final Rules”) is not enforceable against Plaintiffs’ third part y administrators (or “TPAs”) and does n ot provide access to contraceptive coverage. Defs’ Br. 2, 17-18. Consequently, it f acially does not advance the government’s claimed interests. Plaintiffs do not dispute , however, that the goal of the regulations , and the reas on for Defendants’ insistence on Plain tiffs’ immediate compliance with the system, is promoting use of and facilitating access to contraceptives. Id. at 1-2, 10-11. 17. This is a disputed pr oposition of law, and is unsupported. As set f orth in Plaintiffs’ Complaint and supporting declarations, the regulations requ ire Plaintiffs to tak e
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numerous steps to contract, arrange, pay for, or refer for the relevant coverage. See, e.g., Head Decl., Dkt. 7-1 ¶¶ 20-25, 45; Wells Decl., Dkt. 7-2 ¶¶ 7-10, 20; Armstrong Decl., Dkt. 7-3 ¶¶ 8-11, 22; see also Dkt. 1, Compl. ¶¶ 111-170. 18. This is a legal conclusion, not a statement of fact. The regulation speaks for itself. 19. This is a legal conclusion, not a statement of fact. The regulation speaks for itself. 20. This is a legal conclusion, not a statement of fact. The regulation speaks for itself. 21. This is a legal conclusion, not a statement of fact. The regulation speaks for itself. 22. This is a legal conclusion, not a statement of fact. The regulation speaks for itself. 23. This is a legal conclu sion, not a state ment of fact. The regulation speaks f or itself. Disputed and unsupported. See Paragraph 17. 24. This is a legal conclusion, not a stat ement of fact. Disputed and unsupported. See Paragraph 17. The regulation speaks for itself, and im poses additional requirements on Plaintiffs including, inter alia, a prohibition on asking or instructing a TPA not to provide payments for the objected-to services in connection with Plaintiffs’ plan. See 26 C.F.R. § 54.9815-2713A (Plaintiffs “must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arra ngements”). In addition, the self certification form requires Plaintiffs to authorize TPAs to provide such payments, and to inform TPAs of their obligation to pro vide such payments under federal law. See SelfCertification Form (Ex. 2-C). Plaintiffs are forbidden by their religion from taking these actions. See Plaintiffs’ Statement of Additional Facts at ¶¶ 13-21. 25. This is a characterization of the law, not a statement of fact. The regulation speaks for itself, and on its face contains no exemption for “self-insured church plan[s].” Instead, the
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regulation expressly requires that “if a third party administrator receives a c opy of the [self] certification . . . the third party administrator shall provide or arrange payments for contraceptive services.” 29 C. F.R. § 2590.715–2713A(b)(2); 26 C.F.R. § 54. 9815– 2713A(b)(2). “A third party administrator that receives a copy of the self-certification . . . must provide or arrange separate payments for contraceptive services for participants and beneficiaries in the plan.” 78 Fed. Reg. 39870, 39880 (July 2, 2013) (emphasis added). 26. This is a characterization of the law, not a statement of fact. The regulation speaks for itself. The statement is also incomplete, in that Defendants’ Statement 28 claims there is an unspoken carve-out for self-insured church plans, but Statement 27 contains no similar statement addressing whether Defendants believe that TPAs of self-insured church plans will be reimbursed under the regulation. 27. This is a characterization of the law, not a statement of fact. The regulation speaks for itself. The regulation contain s no such exception on its f ace, and was issued under bo th ERISA and the Internal Revenue Code. 28. This is a characterization of the law, not a statement of fact. The regulation speaks for itself. 29. Disputed and unsupported. The assertion is inadmissible speculation. The cited materials contain no evidence (admissible or otherwise) for the government’s speculation about the likely religious beliefs of people who work for different religious institutions. Nor have Def endants offered any reason to believe that the y are legally permitted to engage in speculation about the religious beliefs of those who asso ciate with particular religious institutions, or to discriminate among such institutions based on government
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predictions or pr eferences about what religious beliefs citizens and organizations may hold. Further, they have admitted in parallel litigation that they have no basis f or their speculation. Ex. 2-D, Deposition Transcript of Gary M. Cohen, Defendants’ Rule 30(b)(6) Designee, Director of the Center for Consumer Information and Ins urance Oversight in the Ce nters for Medicare and Medicaid Serv ices, Zubik v. Sebelius , No. 2:13-cv-01459 (W.D. Pa. Nov. 21, 2013) , Dkt. 51-1 at 34:9-24 (admitting there is “no evidence” for Defendants’ speculation that employees of religious organizations like Plaintiffs “are more li kely not to ob ject to the use of contraceptives.”) (Ex. 2-D). That court found Defendants’ reasoning “speculative,” “unsubstantiated,” and “unpersuasive.” Zubik, 2013 WL 6118696, at *29. 30. See Response 29. 31. Disputed and unsupported. Undisputed that t he rules contain t he cited language, b ut the language is contradicted by the text of the rule, whic h provides that eligible organizations are prohibited from engaging in particular speech about their opposition to contraception. See 29 C.F.R. § 2590.715-2713A (“must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrangements”). 32. This is a legal conc lusion, not a state ment of fact. Disputed and unsupported. The words chosen in the st atement—“improper attempt to interf ere” and “threatening”—do not appear in the re gulatory provision, which is in f act far broader. See 29 C.F.R. § 2590.715-2713A (“must not, directly or indirectly, seek to i nfluence the t hird party administrator’s decision to m ake any such a rrangements”). Defendants cannot edit the regulation via litigation.
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33. This is a le gal conclusion, not a s tatement of fact. The statutory language continues and speaks for itself. 34. This is a le gal conclusion, not a s tatement of fact. The statutory language continues and speaks for itself. 35. This is a legal conclusion, not a statement of fact. The statutory language speaks for itself. This statement is also speculative. 36. This is a le gal conclusion, not a s tatement of fact. The statutory language continues and speaks for itself. 37. This is a legal concl usion, not a state ment of f act. Disputed and unsuppor ted. Defendants cannot rely on their own hear say assertions to prove the f acts in the statement. Plaintiffs believe that the intentional termination of pregnancy is an abort ion and that all human life must be protected from the t ime of conception. See Plaintiffs’ Statement of Additional Facts ¶¶2, 6, 8-9. By Defendants’ own admission, the Mandate requires coverage of several F DA-approved drugs and d evices that act i n part by “inhibiting implantation.” See Brief for Appellees at 9 n.6, Hobby Lobby Stores, Inc. v. Sebelius, No. 12-6294 (10th Cir. filed Mar. 15, 2013) (Doc. No. 90). The FDA’s Birth Control Guide likewise acknowledges that these drugs and devices may work by preventing “attachment (implantation)” of a fertilized egg in the uterus. FDA Birth Control Guide (Ex. 2-E) at 11-12. 38. Undisputed, but incomplete. The list also incl udes other “emergency contraceptives” that can cause abortions. See Paragraph 37, supra.
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39. Undisputed that Defendants have made statements deeming these drugs to be contraceptives, rather than abortifacients, based on their view that pregnancy begins at implantation rather t han conception. Defendants’ own hears ay statements are not admissible facts. In an y case, other provisions of federal law ackno wledge that human life begins at concepti on. See, e.g., 10 C.F.R. § 20.1003 (“Embryo/fetus means the developing human organism from conception until the tim e of birth.”); 7 C.F.R. § 247.9 (“For a pregnant woman, the State agenc y must count each e mbryo or fetus in utero as a household member in determining if the household meets the income eligibility standards.”). Plaintiffs understand human life to begin at conception rather than implantation, and understand drugs and devices that kill human life after conception to be abortifacient. See Plaintiffs’ Statement of Additional Facts ¶¶ 2, 6, 8-9. Furthermore, while Defendants have made statements deeming these drugs “saf e and eff ective,” their hearsay assertions are not admissible to prove that fact. See Fed. R. Evid. 802. 40. Undisputed that Defendants issued a memorandum, found on Defendant HHS’s website, with the quoted language. The cited memorandum, however, says nothing about whether this language is “in light of this conclusion b y the FDA” or has anything to do with whether emergency contraceptives can cause abortions. 41. Disputed and unsupported. Defendants’ self-serving snippets of individual Representatives’ statements does n ot provide evidentiary support for the underlying factual statement. “What motivate[d] one legislator to m ake a speech about a statute [ in 2002] is not necessar ily what motivate[d] scores of others to enact it” in 2013 . United States v. O’Brien, 391 U.S. 367, 384 (1968). Moreover, Defendants’ quoted statements of
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Representative Weldon were in conn ection with the then -proposed Abortion NonDiscrimination Act of 2002 (H.R. 4691, 107th Cong. 2002)), which was never adopted. See www.govtrak.us/congress/bills/107/hr4691 (last visited Nov. 21, 2013).
STATEMENT OF ADDITIONAL FACTS1 1. GuideStone Financial Services of the S outhern Baptist Conven tion (“GuideStone”) was established in 19 18 by the S outhern Baptist Convention. Dkt. 7-1 ¶ 4. Today, GuideStone operates a self-insured, ERISA-exempt “church plan” that provides health benefits to current and f ormer employees of organizations associated wit h the Convention. Id. ¶ 5, 9. The GuideStone Plan is one of the largest church health care plans in the country, providing benefits to over 78,000 people. Id. ¶ 4. 2. As an arm of the Southern Baptist Conv ention, GuideStone shares the Convention’s belief that “[w]e should speak on behalf of the unborn and contend f or the sanctity of all human life from conception to natural death.” Id. ¶ 16-17 (quoting the Baptist Faith and Message 2000). 3. Consistent with those beliefs, the GuideSton e Plan does not pa y or reimburse f or expenses associated with “elective termination of a pregnancy by any method,” including contraceptive methods that may cause early abortions. Id. ¶ 18. 4. As many as 187 GuideStone Plan employers, with over 5, 144 full-time employees, may be considered “eligible organizations” that are not e xempt from the Mandate. Id. ¶ 1 Plaintiffs submit these facts to oppose Defendants’ motions to dismiss and for summary judgment and to support Plaintiffs’ motion for a preliminary injunction (Dkt. 7). Plaintiffs are not required to submit admissible evidence in support of their motion, because at the preliminary injunction stage, the Federal Rules of Evidence do not apply. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003).
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31. Most of these e mployers are small non-profit organizations operating on limited budgets and devoted to religious ministries. Id. ¶ 32. Two GuideSt one Plan employers, Reaching Souls International, Inc. (“Reaching Souls”) and Truett-McConnell College, Inc. (“Truett-McConnell”), are plaintiffs in this lawsuit. Dkt. 7-2 ¶ 17; Dkt. 7-3 ¶ 19. 5. Reaching Souls is an Oklahoma not-for-profit corporation f ounded in 1986 b y a Southern Baptist pastor. Dkt. 7-2 ¶ 3. Today, Reaching Souls trains pastors and cares for orphans on three continents. Id. Reaching Souls requires all of its employees to share its Christian faith. Id. at ¶ 4. 6. Reaching Souls’ beliefs are consistent with the S outhern Baptist Convention’s teachings about the sanctity of all human life, and Reaching Souls has ado pted the GuideStone Plan to provide health benefits for its 10 full time employees in a manner that is consistent with its c ommitment to the sanctity of human life and the well -being of its employees. Id. ¶¶ 5-6, 13. 7. Truett-McConnell is a private, Christia n, coeducational liberal arts college that has adopted the Southern Baptist Convention’s Baptist Faith and Message 2000 as its own statement of faith. Dkt. 7-3 ¶¶ 3-5. The Baptist Faith and Message 2000 is included in the employee handbook, and all f ull-time faculty must sign the Baptist Faith and Me ssage 2000 as part of their employment agreement. Id ¶ 5. 8. Truett-McConnell has adopted the GuideStone Plan to provide healt h benefits for its 78 full time employees in a manner that is consistent with its commitment to the sanctity of human life from conception to natural death and to the well-being of its employees. Id. ¶¶ 5-7, 14.
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9. The Mandate incl udes drugs and device s that may work by preventing “attachment (implantation)” of a f ertilized egg in the uterus. Ex. 2-E (FDA Birth Control Guide) at 11-12. 10. All Plaintiffs—GuideStone, Reaching Souls, and Tr uett-McConnell—believe it would be sinful for them to intentionally trigger the provision of drugs and devices that may destroy a newly-conceived human life and thus caus e an abort ion. Dkt. 7-1 ¶¶ 19, 22-25; Dkt. 7-2 ¶¶ 9, 19-20; Dkt. 7-3 ¶¶ 10, 21-22. 11. Plaintiffs believe that obeying the Mandate’s requirement to participate in th e provision of abortion-causing drugs would harm their public witness of and advocacy for protecting human life from conception to na tural death, and would risk leading o thers astray. Dkt. 7-1 ¶¶ 20-21; Dkt. 7-2 ¶ 10; Dkt. 7-3 ¶ 11. 12. Plaintiffs are also guided by their beliefs to provide for the health and welfare of their employees by providing them with adequate health benefits. Dkt. 7-1 ¶ 38; Dkt. 7-2 ¶ 67; Dkt. 7-3 ¶¶ 6-8. 13. Plaintiffs are prohibited by their religion from participating in the government’s scheme to di stribute, encourage, facilitate, and/or reduce th e cost o f drugs and devices that may cause abortions. Dkt. 7-1 ¶¶ 19, 22-25; Dkt. 7-2 ¶¶ 9, 19-20; Dkt. 7-3 ¶¶ 10, 2122; see also Dkt. 7-1 ¶¶ 17; D kt. 7-2 ¶¶ 4 -5; Dkt. 7 -3 ¶¶ 4 -5 (setting forth underlying religious beliefs). 14. Plaintiffs are prohibited by their religion from signing, submitting, or facilitating the transfer of the government-required certification at issue in this case. Dkt. 7-1 ¶ 24; Dkt.
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7-2 ¶ 10; Dkt. 7-3 ¶ 11; see also Head Supp. Decl. (Ex. 3 ) ¶¶ 8-12; Wells Supp. Decl.

(Ex. 4) ¶¶ 10, 14; Armstrong Supp. Decl. (Ex. 5) ¶¶ 10, 15.

15. Plaintiffs’ religious beliefs about their obligation not to pa

rticipate in the

government’s scheme have not c hanged in light of the govern ment’s recent sta tements

that it cannot use ERISA to force TPAs to act on the certifications for non-ERISA plans.

Ex. 3 ¶¶ 8-9; Ex. 4 ¶¶ 10, 14; Ex. 5 ¶¶ 10, 15.

16. On the back of the self-certification form, there is a “Notice to Third Part y

Administrators of Self-Insured Health Plans,” which states that t he form “constitutes

notice to the third party administrator that . . . [t]he obligations of the third party

administrator are set forth in 26 C.F.R. § 54.9815-2713A, 29 C.F.R. § 2510.3-16, and 29

C.F.R. § 2590.715-2713A,” and that “[t]his certification is an instrument under which the

plan is operated.” Ex. 2-C (Self-Certification Form).

17. Signing the self-certification form and providing it to a TPA violates Plaintiffs’

religious beliefs by making them complicit in the government’s scheme to provide

abortifacients. Ex. 3 ¶¶ 7-10; Ex. 4 ¶¶ 7-9; Ex. 5 ¶¶ 7-9.

18. Defendants’ regulations prohibit Reaching Souls and Truett-McConnell from

“seek[ing] to influence the third party administrator’s decision to make . . . arrangements”

to provide abortifacient coverage. 26 C.F.R. § 54.9815-2713A.

19. One of GuideStone’s third party administrators, Highmark, Inc. (“Highmark”) has

already informed GuideStone that it intends to offer contraceptive and abortifacient

coverage to the qualif ied employees and beneficiaries of all GuideStone Plan employers

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from whom it receives the self-certification form, including girls as young as 10. Ex. 1 ¶¶ 4-5. Highmark’s position is a matter of immediate and deep concern to GuideStone. Id. 20. Plaintiffs also continue to object to signing and delivering the self-certification form because Defendants have stated that they “continue to consider potential options to fully and appropriately extend the consu mer protections provided by the regulations to self insured church plans.” Def. Br. 2. But as already explained, Plaintiffs cannot provide such services or auth orize someone else to do so; the y must avoid participating in an y system involving the provision of such services. Dkt. 7-1 ¶¶ 19, 22-25; Dkt. 7-2 ¶¶ 9, 1920; Dkt. 7 -3 ¶¶ 10, 21-22. It makes no dif ference whether th ose authorizations lead to payments that take place now or next year. Ex. 3 ¶¶ 8-9; Ex. 4 ¶¶ 10, 14; Ex. 5 ¶¶ 10, 15. 21. To restate: Plaintiffs object to (1) signing a self-certification form that on its f ace authorizes a TPA to deliver abortifacients to their e mployees now; (2) deliv ering that form to a TPA that could rely on it as an authorization to deliver these abortifacients to their employees, now or in the f uture; (3) agreeing to refrain from asking that TPA not to deliver abortifacients to Plaintiffs’ employees; (4) creating a new relationship between plan beneficiaries and a third party administrators for the sole purpose of providing abortifacients; or (5) otherwise participating in Defendants’ scheme to provide abortifacients to its employees. Ex. 3 ¶ 8; Ex. 4 ¶ 14; Ex. 5 ¶ 15. 22. If Plaintiffs fail to sign and sub mit the government-required certification at issue in this case, the y face large penalties. For example, Truett-McConnell, which has approximately 78 full time employees, will incur penalties of approximately $2,810,500
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per year unless it gives up its religious exercises and complies with the Mandate. Dkt. 7-3 ¶ 14. 23. Reaching Souls has approximately 10 full time employees and would face penalties of approximately $365,000 per year. Dkt. 7-2 ¶ 13. 24. Class members collectively face estimated penalties of $187,756,000 per year, while GuideStone faces losses of $39,088,325 in medical plan c ontributions if the class members are effectively forbidden from participating in the GuideStone Plan because of the Mandate. Dkt. 7-1 ¶¶ 35, 43. 25. Defendants estimated that in 2013, plans covering an estimated 87 million people would be “grandfathered.” HealthCare.gov Grandfathering Factsheet (Ex. 2-F) at 5-7. 26. Defendants estimate that the Affordable Care Act “exempts all firms that have fewer than 50 employees – 96 percent of all firms in the United S tates or 5.8 million out of 6 million total firms – from any employer responsibility requirements.” WhiteHouse.Gov, The Affordable Care Act Increases Choice and Saving Money for Small Business (Ex. 2G) at 2. 27. Defendant Sebelius said at a f undraiser in October 2011—shortly after the Mandate had been announced but before any of the exemptions had been announced—that “we are in a wa r” over emergency contraception. William McGurn, Op-Ed., The Church of Kathleen Sebelius, Wall St. J., Dec. 13, 2011. 28. On April 8, 20 13, the Church Alli ance, an organization composed of the chief executives of thirty-eight church benefit boards, covering two branches of Judaism, Catholic schools and institutions, and mainline and evangelical Protestant denominations,
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including GuideStone, submitted a 20-page comment letter on the NPRM, detailing how the expanded def inition of “religious em ployer” excluded bona fide religious organizations, and how the pr oposed accommodation for “eligible organizations” was unworkable, particularly for self-insured church plans like GuideStone. AR 025526-45, Church Alliance, Comments on Notice of Proposed Rulemaking (Apr. 8, 2013). 29. Defendant Sebelius an nounced the con tent of the Final Rule the sa me day that the comment period closed, without taking the time to review—let alone consider—the many substantive objections to the Final Rule. In that presentation, Sebelius stated:
We have just completed the open comment period for the so-called accommodation, and by August 1st of this year, every employer will be covered by the law with one exce ption. Churches and ch urch dioceses as employers are exempted from this benefit. But Catholic hospitals, Catholic universities, other reli gious entities will be providing cover age to their employees starting August 1st . . . . [A]s of August 1st, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package.2
ARGUMENT I. All Plaintiffs Have Standing. Article III standing requires (1) an injury in fact (2) fairly traceable to Defendants’ actions, and (3) likely redressable by a favorable decision. Cressman v. Thompson, 719 F.3d 1139, 1144 (10th Cir. 2013). Defendants argue that they can force Plaintiffs to participate in their regulatory scheme, while Plaintiffs lack standing to seek this Court’s
2 The Forum at Harvard Sch. of Publ Health, A Conversation with Kathleen Sebelius, U.S. Secretary of Health & Human Services (April 8, 2013), available at http://theforum.sph.harvard.edu/events/conversation-kathleen-sebelius (starting at 51:2052:00).
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protection, because Defendants “lack regulatory authority” to enforce part of the Mandate “at this time.” Defs’ Br. 2, 17-18.
This argument fails for three reasons. First, Plaintiffs have standing because the Mandate forces them to take action against their will to avoid massive penalties. Cressman, 719 F.3d at 1145. To avoid massive penalties, they must provide either objectionable coverage that violates their religious beliefs or a self-certification which instructs their TPA to provide payments for abortion-inducing drugs and devices that also violate Plaintiffs’ religious beliefs. See 26 C.F.R. § 54.9815–2713A; 29 C.F.R. § 2590.715–2713A; Ex. 2-C (Self-Certification Form).3 At least one of GuideStone’s TPAs has stated an intention to provide these payments upon receipt of a selfcertification. Ex. 1 ¶¶ 4-5 & Ex. 1-A. Plaintiffs cannot sign or submit the selfcertifications to their TPAs because such action would make them participate in Defendants’ scheme. Indeed the forms expressly instruct the recipient to obey the regulations that require TPAs to provide or arrange for contraceptives services. See Ex. 2C (Self-Certification Form). Moreover, it incorporates these instructions into Plaintiffs’ health plan. Id. Furthermore, Defendants’ gag rule prohibits the class members from “directly or indirectly” asking their TPA not to provide payments for the products at issue. 26 C.F.R. § 54.9815–2713A(b)(1)(iii).
Plaintiffs believe that taking these acts would violate their religious beliefs. But Defendants intend to enforce their rules, which places enormous pressure on Plaintiffs to 3 Plaintiffs cannot avoid this dilemma by discontinuing coverage. That would still violate their religious beliefs, Dkt. 7-1 ¶¶ 38, 40; Dkt. 7-2 ¶¶ 6, 14; Dkt. 7-3 ¶¶ 6, 16, and subject Plaintiffs with 50 or more full-time employees to other penalties. See 26 U.S.C. § 4980H.
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violate their religious beliefs and compromise their religious missions. Dkt. 7-1 ¶¶ 19, 22-25; Dkt. 7-2 ¶¶ 9, 19-20; Dkt. 7-3 ¶¶ 10, 21-22; Ex. 3 ¶¶ 8-9; Ex. 4 ¶¶ 10, 14; Ex. 5 ¶¶ 10, 15.
Plaintiffs must take these actions before January 1st or be penalized, so Plaintiffs are confronted with a concrete, imminent violation of a legally protected interest that is directly traceable to the Defendants’ Mandate that can be avoided by a favorable decision in this action. See Cressman, 719 F.3d at 1144.
Second, even aside from the actionable burden on Plaintiffs’ exercise of religion from such requirements, Plaintiffs have standing based on the simple fact that compliance with the rules will require an expenditure of time and money. The government has conceded that “the total annual burden for preparing and providing the information in the selfcertification” is approximately $41 and 50 minutes for “each eligible organization.” See 78 Fed. Reg. 39890. See also Ex. 2-C (Self-Certification Form). This burden of time and expense establishes standing. See, e.g., Sprint Comm’s Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 289 (2008) (an interest of “only a dollar or two” could establish standing); Cressman, 719 F.3d at 1142, 1145 (license plate renewal fee of $16.50 was an “actual, concrete monetary injury” for standing purposes); Hydro Res., Inc. v. E.P.A., 608 F.3d 1131, 1183 (10th Cir. 2010) (requirement to comply with permitting process establishes injury in fact); Nat’l Collegiate Athletic Ass’n v. Califano, 622 F.2d 1382, 1389 (10th Cir.1980) (“Certainly the cost of obeying the regulations constitutes injury.”).
Third, Defendants’ new ERISA-based litigation position does not change the regulations, which on their face apply to all TPAs, with no exception for church plan
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TPAs. The regulations—issued both by the Department of Labor under ERISA and by

the Treasury Department under the Internal Revenue Code—provide that “if a third party

administrator receives a copy of the [self] certification . . . the third party administrator

shall provide or arrange payments for contraceptive services.” 29 C.F.R. § 2590.715–

2713A(b)(2); 26 C.F.R. § 54.9815–2713A(b)(2); see also 78 Fed. Reg. 39879, 39880

(July 2, 2013) (TPA who receives a self-certification “must provide or arrange”

payments). The “obligations and burdens imposed by [law] speak for themselves, and no

additional evidence is necessary to establish standing.” Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1235 (10th Cir. 2004).4

II. Defendants’ Motion Must Be Denied.

A.

The Mandate violates RFRA.

Plaintiffs’ faith forbids them from participating in the government’s scheme to

subsidize and promote the use of abortifacients. Dkt. 7-1 ¶¶ 19, 22-25; Dkt. 7-2 ¶¶ 9, 19-

20; Dkt. 7-3 ¶¶ 10, 21-22. Plaintiffs cannot provide these services themselves and cannot

authorize someone else to provide them. Id. Plaintiffs’ religious beliefs require them to

avoid participating in any system that could involve the provision of such services. Id.

This religious obligation to avoid participating in Defendants’ scheme remains

unchanged despite Defendants’ new claim that part of the system is not yet fully

operational with respect to Plaintiffs. Ex. 3 ¶¶ 8-9; Ex. 4 ¶¶ 10, 14; Ex. 5 ¶¶ 10, 15.

4 See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992) (“When the suit is one challenging the legality of government action,” there is “ordinarily little question” that a plaintiff who is the object of the law has standing).
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Hobby Lobby provides the required framework for RFRA analysis. First, a court must “identify the religious belief” at issue.5 Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1140 (10th Cir. 2013). Second, it must “determine whether this belief is sincere.” Id. Third, it must determine “whether the government places substantial pressure on the religious believer.” Id. Finally, if there is substantial pressure, Defendants’ action will be upheld only if Defendants carry the burden of satisfying strict scrutiny. Id. at 1143.
Defendants effectively concede virtually every prong of this test. Defendants do not dispute the existence, religiosity, or sincerity of Plaintiffs’ religious beliefs. And Defendants admit that Hobby Lobby already rejected their strict scrutiny argument. Def. Br. at 21.
Thus, the only part of the Hobby Lobby analysis that remains is whether the Mandate “places substantial pressure” on Plai ntiffs to violate their bel iefs. 723 F.3d at 11 40. If Plaintiffs continue their religious exerc ises, they face the same penalties that constituted “substantial pressure” in Hobby Lobby. Compare Dkt. 7-1 ¶¶ 35, 43; Dkt. 7-3 ¶ 14; Dkt. 7-2 ¶ 13; with 723 F.3d at 1140; see also Gilardi v. U.S. Dep’t of Health & Human Srvs., No. 13-5069, 2013 WL 5854246, at * 7 (D.C. Cir. Nov. 1, 2 013) (the Mandate b urdens objectors by “pressur[ing] [them] to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties”); Zubik, 2013 WL 6118696, at
5 The Supreme Court has granted certiorari in Hobby Lobby, 82 U.S.L.W. 3139 (Nov. 26, 2013), but it remains binding precedent in this Circuit. See, e.g., Jock v. Ste rling Jewelers, Inc., 677 F. Supp. 2 d 661, 666 ( S.D.N.Y. 2009) (“[A]lthough the Supreme Court has since granted certiorari, the Second Circuit's decision in Stolt–Nielsen remains binding at this time.”).
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*25 (concluding that the acco mmodation “substantially burdens” the religious beliefs of non-profits by “asking Plaintiffs for documentation for what Plaintiffs sincerely believe is an immoral purpose.”).
Defendants cannot avoid this conclusion by arguing that Plaintiffs really should be comfortable signing the self-certification form in light of Defendants’ new litigation position. The questions of moral complicity in this case are religious, not legal, and Defendants have no authority to dictate when and whether Plaintiffs’ involvement in the scheme is “too attenuated” to implicate their religion. Hobby Lobby, 723 F.3d at 1153-54. As Hobby Lobby instructed:
[I]t is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes “too much” moral disapproval on those only “indirectly” assisting wrongful conduct. Whether an act of complicity is or isn't “too attenuated” from the underlying wrong is sometimes itself a matter of faith we must respect. Id.; Gilardi, 2013 WL 5854246, at *6 (“[I]t is not for courts to decide [what] severs [a religious objector’s] moral responsibility”) (internal citation omitted); Korte v. Sebelius, No. 12-3841, 2013 WL 5960692, at *24 (7th Cir. Nov. 8, 2013) (rejecting Defendants’ “‘attenuation’ argument” because it asks whether “th[e] [Mandated] coverage impermissibly assist[s] the commission of a wrongful act in violation of the moral doctrines of the Catholic Church,” a question which “[n]o civil authority can decide”); Zubik, 2013 WL 6118696, at *14 (“Completion of the self-certification form would be akin to cooperating with/facilitating ‘an evil’ and would place the Diocese ‘in a position
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of providing scandal’ because ‘it makes it appear as though [the Diocese] is cooperating with an objectionable practice that goes against [Church] teaching.’”).
B. The Mandate violates the Administrative Procedures Act. 1. The Final Rules are “not in accordance with law” because they purport to bind ERISA-exempt church plan TPAs.
“The [APA] requires federal courts to set aside federal agency action that is ‘not in accordance with law,’ 5 U.S.C. § 706(2)(A) —which means, of course, any law, and not merely those law s that the agenc y itself is charged with ad ministering.” FCC v. NextWave Pers. Commc’ns Inc., 537 U.S. 2 93, 300 (2003 ); Hydro Res., Inc. v. E.P.A., 608 F.3d at 1145. The Final Rules a re “not in accordanc e with” RFRA, the First Amendment, the ACA, or the Weldon Amendment, and they should be set aside on that basis. But they are also “not in accordance with law” because, as Defendants admit, they conflict with federal laws exempting church benefit plans from ERISA. See Defs’ Br. 2, 17-18.
The Final Rules purport to bind all TPAs, including those affiliated with church plans. As amended, 26 C.F.R. § 54.9815–2713A flatly states that “if a [TPA] receives a copy of the self-certification . . . and agrees to enter i nto or remain in a con tractual relationship with the eli gible organization or i ts plan” then “the [ TPA] shall provide or arrange payments for contraceptive services[.]” (emphasis added); see 78 Fed. Reg. 39892 -93 (promulgating regulation). Nothing on the face of this amended regulation indicates that it does not apply to TPAs of non-ERISA church plans.
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Defendants now admit that they “lack authority” to regulate the TPAs of non-ERISA church plans in this wa y. Defs’ Br. 2, 17-18. But Defendants’ position conflicts with the express requirements of the regulation, 26 C.F.R. § 54.9815–2713A, and “[a]fter-the-fact rationalization by counsel” cannot save their rule. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1584 (10th Cir. 1994). Given Defendants’ binding admission, their invalid regulation should be set aside as contrary to law. NextWave, 537 U.S. at 300; Hydro Res., 608 F.3d at 1145.
2. The Final Rules are “arbitrary and capricious” because they force Reaching Souls and Truett-McConnell to comply with an unenforceable accommodation scheme.
Defendants’ admission that the Final Rules do not bind non-ERISA church plan TPAs make continued enforcement of the self-certification requirement against Reaching Souls and Truett-McConnell arbitrary and capricious. An “agency must cogently explain why it has exercised its discretion in a given manner,” and “articulate . . . a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43-44 (1983); Olenhouse, 42 F.3d at 1584. Defendants offer no explanation f or their insistence that Reaching Souls and Truett-McConnell comply with step one of the Mandate despite Defendants’ inability to enforce step two. Where, as here, a n agency’s explanation is “nonexistent,” its actions are necessarily arbitrary and capricious. Motor Vehicle Mfrs., 463 U.S. at 42-44.
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a. It is arb itrary and capricious to require Reaching Souls and Truett-McConnell to comply with th e allegedly meaningless accommodation scheme.
The Mandate states that Defendants created the accommodation to “protect[] certain nonprofit religious organizations with religious objections to contraceptive coverage.” 78 Fed. Reg. 39 873. “The purpose of the self -certification” is to “af ford the third party administrator notice of obligations” under the Final Regulations, and to “designat[e] . . . the third pa rty administrator(s) as plan administrator and cla ims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” 78 Fed . Reg. 39879 . Defendants now say that a self -certification executed b y Reaching Souls and Tr uettMcConnell would serve neither of these purposes, because “at this time” Defendants lack authority to impose obligations on TPAs of non-ERISA church plans like the GuideStone Plan. Defs’ Br. 2, 17-18. But they continue to assert that Reaching Souls and True ttMcConnell must comply with the accommodation by (1) executing the self-certification form; (2) “provid[ing] each thir d party administrator that will process claims for any contraceptive services . . . with a cop y of the self-certification,” and (3) ref raining from seeking to “interfere with” or “influence” the TPA’s decision to provide such services. See id.; see also 26 C.F.R. § 54.98 15-2713A(a), (b) (sta ting the acco mmodation requirements).
Defendants give no r eason for continuing to require Reaching Souls and Truett McConnell to execute and deliver self-certification forms that allegedly will not serve the purposes for which they were created, apart from the bald assertion that their regulations
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require it. See Defs’ Br. 7, 17-18. Defendants’ failure to explain is f atal to their rule. Motor Vehicle Mfrs., 463 U.S. at 42-44.
b. It is arbitrary and capricious not to exempt Reaching Souls and Truett-McConnell from the contraceptive mandate altogether.
The Final Rule is also arbitrary and capricious because Defendants’ decision to impose the Ma ndate on organizations like R eaching Souls and Truett-McConnell is not supported by substantial evidence in the record. Olenhouse, 42 F.3d at 1584 (“[T]he ‘arbitrary or capricious’ standard requires an agency's action to be supported by the facts in the reco rd,” and “will be se t aside as a rbitrary if it is unsupported by ‘substantial evidence.’”).
Defendants do not d ispute that Plaintiffs only object to a s mall subset of the contraceptives covered by the Mandate—the four methods capable of being used as “emergency contraceptives” that may destroy a fertilized egg and thus end a newl yconceived human life. Dkt. 1, Compl. ¶ 184; see Dkt. 7-1 ¶¶ 19, 22-25; Dkt. 7-2 ¶¶ 9, 1920; Dkt. 7-3 ¶¶ 10, 21-22. But although it discussed the use of contraceptives in general, the IOM Report mentioned emergency contraceptives only in passing.6 Neither the Final Rules nor the HRSA Guidelines identified any evidence to support Defendants’ decision to penalize religious organizations that, like Plaintiffs, are willing to cover sixteen out of twenty FDA-approved contraceptive methods. Compare Hobby Lobby, 723 F.3d at 1146
6 See IOM Report at AR 403 (noting that “[ a] wide arra y of safe and highly effective FDAapproved methods of contraception is available, inclu ding . . . em ergency contraception” and tha t “[s]ome methods, such as . . . emergency contraceptives, are available without a prescription”).
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(Tymkovich, J., c oncurring) (noting that “the government’s interest is largel y realized” when an organization is willing to cover “sixteen of the twenty contraceptive methods”)
Defendants likewise lack substantial evidence to support their de cision to distinguish between “religious employers” and “eligi ble organizations.” See 78 Fed. Reg. 39874 . Defendants claimed in the Man date that the limits they have imposed on th e religious employer exemption are justified because objecting “[h]ouses of worship and their integrated auxiliaries . . . are more likely than other e mployers to e mploy people of the same faith who sh are the same objection, and who wo uld therefore be less li kely than other people to use con traceptive services even if such services were covered under their plan.” Id. Defendants’ reasoning is “speculative,” “unsubstantiated,” and “unpersuasive.” Zubik, 2013 WL 6118696, at *29.
As the Defendants’ 30(b)(6) witness in a par allel case has now admitted under oath, Defendants have no evidence that this assumption is correct. See Plaintiffs’ Response to Defendants’ Statement, supra, at ¶ 29. In fact, the evidence before the agencies was to the contrary: during the ru lemaking process, commenters pointed out th at many non-exempt religious organizations hire employees that share their religious beliefs,7 and that it would
7 CCCU NPRM Comments at 4-5 (Apr. 8, 2013), AR CMS-2012-0031-82670-A1 (“The CCCU is particularly frustrated by that rationale for the exemption-accommodation paradigm, because a requirement for membership in th e CCCU is th at full-time administrators and faculty at ou r institutions share the Christian faith of the institution. . . . Ironically, churches, on the other hand, some of which do n ot hire only Christians, remain exempt in this scheme.”).
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impose a significant burden on church benefit plans in particular to erect a dividing wall between religious organizations that share the same faith.8
Thus, Defendants now acknowledge that their decision to exempt some religious
organizations and “ac commodate” others was based on a rati onale that is wholl y
unsupported by the e vidence before the agenc y. This is a quintessential abus e of
discretion. Olenhouse, 42 F.3d at 1584.
3. Defendants violated the APA by promulgating the HRSA Guidelines without notice, comment or publication in the Federal Register.
“Under the APA, legislative rules can be issued only following notice and comment
procedures.” Sorenson Commc'ns, Inc. v. F.C.C., 567 F.3d 1215, 1222 (10th Cir. 2009);
see 5 U.S.C. § 553(b)–(c) (stating procedural requirements). Congress gave HHS’ sub-
agency, HRSA, the authority to enact “comprehensive guidelines” for women’s
preventive health. See 42 U.S.C. § 300gg-13 (a)(4); 45 C.F.R. § 147.130 (a)(iv). Those
guidelines are no w binding on Reaching Souls and Tru ett-McConnell, who must either
adopt a health benefit plan that complies with HRSA’s guidelines and HHS’ exceptions,
or face massive penalties. See 26 U.S.C. § 4980D, 4980H. This is a paradigmatic delegation of rulemaking authority,9 but instead of following the re quirements of the
8 See, e.g., Church Alliance NPRM Comments (Apr. 8, 2013), AR 025526-45; see also Zubik, 2013 WL 6118696, at *29-30. 9 Defendants claim (at 33-34) that t hey were not required t o comply with notice-andcomment rulemaking when pro mulgating the HRSA Gui delines. They are mistaken. “[W]hen Congress authorizes an agency to create standards, it is delegating legislative authority, rather than itself setting forth a standard which the agency might then particularize through interpretation.” Mission Grp. Kansas, Inc. v. Riley, 146 F.3d 775, 781-85 (10th Cir. 1998) (internal quotations omitted). Therefore, legislative rules like the
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APA, HRSA simply adopted the recommendations of a nongovernmental body—IOM— in a press release. See Ex. 2-B. HHS incorporated HRSA’s guidelines by reference in an interim final rule promulgated the same day. 76 F ed. Reg. 46621 (published Aug. 3, 2011); 45 C.F.R. § 147.130. But the int erim final rule neither published HRSA’s recommendations in the Federal Register nor explained HRSA’s reasons for adopting the IOM’s Report’s recommendations without change. This left many questions unanswered: to take one example, Defendants did not explain why they adopted the IOM Report’s recommendations as coverage requirements even though the IO M explicitly declined to consider many factors important for the formulation of coverage requirements, such as cost-effectiveness. Def’s Br. 33-34; see also Plaintiffs’ Response to Defendants’ Statement, supra, at ¶ ¶ 5-8. Nor did the interim final rule e xplain why HRSA made emergency contraceptives, which were mentioned in the IOM Report only in passing, part of its mandatory guidelines. See supra at 28. Under the APA, this was an abuse of discretion.
HRSA Guidelines must be promulgated in compliance with the APA notice and comment procedures. Id. at 782 (when an a gency adopts a new ru le, it “ may not give i t binding effect in the absence of compliance with APA notice and comment procedures[.]”).
Defendants’ own prac tices belie its clai m that it was not require d to f ollow APA procedures here. The same statute that instructed HRSA to d evelop guidelines for women’s preventive services also required HRSA to develop “comprehensive guidelines” for children’s preventive care. 42 U.S.C. § 300gg- 13(a)(3). Relying on 42 U.S.C. § 300gg–92 and the “good cause” exception to the APA, Defendants published guidelines governing children’s preventive services in the Federal Register as interim final rules, with a request for comments. See 75 Fed. Reg. 41,726, 41,740 et seq. (July 19, 2010) (requesting comments by Sept. 17, 2010).
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Plaintiffs were prejudiced by this failure in at least two wa ys. First, they were harmed by HHS’ failure to offer them the opportunity for public notice and comment, as required by the AP A. See 5 U.S.C. § 553. Second, they were harmed because the evidence considered by the IO M was decidedl y one-sided. IOM’s inv ited presenters included a number of proponents of mandatory contraceptive coverage and o f government-funded abortion. AR 516-19. No religious group s or other groups that oppose governmentmandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters. Id.; Dkt. 1, Compl. ¶¶ 68-69; see also United States v. Cain, 583 F.3d 408, 420 (6th Cir. 2009) (stating that the APA requires public comments in part to “ensure f air treatment for persons to be aff ected by regulation”). Moreover, as the IOM Report dissent observed, the drafting committee suffered from an “unacceptably short time frame,” “lacked transparency and was largely subject to the pref erences of the committee’s composition,” which “tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy.” IOM Report at 231-32 (AR at 529-530). Under such circumstances, prejudice is clear. Nat’l Ski, 910 F. Supp. 2d at 1279-80.10

10 Plaintiffs’ Weldon Amendment/ACA claim survives as well. Plaintiffs have prudential

standing because, as conscientious objectors to abortion, they are plainly within the “zone

of interests” prote cted by both laws. Match-E-Be-Nash-She-Wish Band of Pottawatomi

Indians v. Patchak, 132 S. Ct. 2199, 2210 (2 012). Defendants’ interpretation of the term

“abortion” is not entitled to def erence because Congress empowered the “i ssuer of a

qualified health plan,” not HHS, to interpret “abortion” under

42 U.S.C. § 18023

(b)(1)(A)(ii), and they have no special expert ise in interpreting appr opriations laws like

the Weldon Amendment. See Prof’l Reactor Operator Soc. v. U.S. Nuclear Regulatory

Comm’n, 939 F.2d 1047, 1051 (D.C. Cir. 1991).

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C. The Mandate violates the Free Exercise Clause. Defendants claim that the forced compliance with the Mandate cannot violate the Free Exercise Clause because it is “neutral and generally applicable.” Defs’ Br. 21. It is neither. The Mandate is not neutral because it ex pressly discriminates among religious objectors, creating a three-tiered system in which so me are e xempt (churches and “integrated auxiliaries”), some must comply with the “a ccommodation” and g ag rule a t issue here (non-exempt religious non-profits), and some receive no protection at all (religious believers who earn profits, but see Hobby Lobby , 723 F.3d 1114). Defendants openly admit that this facial discrimination among religious believers who have the same beliefs, and seek t o engage in the same religious conduct, is based on the government’s views of which religious exercises will or wi ll not be com patible with the govern mentpredicted religious beliefs of an organization’s employees. Defs’ Br. 13. This open discrimination among religio us institutions fails even “ the minimum requirement of neutrality” which requires that a law not discriminate on its face. Church of the Lukumi Babalu Aye, In c. v. City of Hialeah, 508 U.S. 520, 533 (1993); Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1260 (10th Cir. 2008) (“[T]he First
In support of their interpretation, Defendants cite a 2002 statement by Rep. Weldon— but that comment, made about an un -enacted bill ei ght years before the F DA approved ella in 2010, likewise sheds little light on the meaning of a law Congress passed in 2011. Relying on the “ordinary meaning” found in medical dictionaries, Taniguchi v. Kan Pacific Saipan, Lt d., 132 S. Ct. 1 997, 2002 (2012) , it is clear that em ergency contraceptives may qualify as “abortion.” See Stedman’s Medical Dictionary 4 (28th ed. 2006) (defining “abortion” as the “[ e]xpulsion from the ute rus of an embr yo or f etus [before] viability.”); id. at 1438 (defining “pregnancy” as “[t]he state of a f emale after conception and until the termination of the gestation”).
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Amendment prohibits not only laws with ‘the object’ of suppressing a religious practice, but also ‘[o]fficial action that targets religious conduct for distinctive treatment.’”) (quoting Lukumi, 508 U.S. at 534).
Defendants cannot jus tify this discrimination among religious organizations merely by claiming its “purpose” is “something other than the disapproval of a particula r religion, or of religion in general.” Def s’ Br. 21-22. The Tenth Circuit has alread y expressly rejected this argument, rejecting the distinction between discrimination among religions and discr imination among religious institutions as “a p uzzling and wholl y artificial distinction.” Weaver, 534 F.3d at 1 259-60 (“[T]he constitutional requirement is of government neutrality, through the application of “generally applicable law[s],” not just of governmental avoidance of bigotry.”).11
Nor is the Mandate generall y applicable. The Mandate f avors secular over religious values by granting broad exemptions for grandfathered and s mall-employer plans for secular reasons, while denying religious exemptions f or non-church religious organizations. Fraternal Order of Police v. City of Newark, 170 F.3d 359, 36 5 (3d Cir . 1999) (“F.O.P.”) (“[I]t is clear from [Smith and Lukumi]” that government cannot decide
11 Defendants cite Lukumi to argue that the F ree Exercise Clause is not invoked because the Mandate does not target “ only ” religious conduct—secular institutions are al so subject to it. Defs’ Br. 22-23. But this oversimplification would excuse all but the most blatant attacks on r eligion. Indeed, Lukumi itself warned again st this extreme reading, noting that the “explici t[ ] target[ing]” in Lukumi made it “an easy [case]” and “that the First Amendment’s protection of religion extends be yond those rare occasions on which the government explicitly targets religion (or a particular religion).” Lukumi, 508 U.S. at 577-78, 580 (Blackmun, J., concurring) ; see also id . at 564 (Souter, J., concurring) (“[T]his is far from a representative free-exercise case.”).
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“that secular motivations are more important than religious motivations.”). These secularvalue exemptions are quite large and se verely undermine the government’s claimed interest. See Hobby Lobby, 723 F.3d at 1143 (“[T]he interest here c annot be compelling because the contrac eptive-coverage requirement presently does not apply to tens of millions of people. As noted above, this exempted population includes those working for private employers with grandfathered plans, for employers with fewer than f ifty employees, and, under a pro posed rule, for colleges and universities run by religious institutions.”); Zubik, 2013 WL 6118696, at *29 (“If there is no compelling governmental interest to ap ply the c ontraceptive mandate to the religious e mployers who operate the ‘houses of worship,’ then there can b e no c ompelling governmental interest to a pply (even in an indirect fashion) the contraceptive mandate to the religious employers of the nonprofit, religious affiliated/related entities, like Plaintiffs in these cases.”). Defendants nowhere explain why they can accept secular reasons for exemptions covering millions of people, but to refuse the modest religious exemption sought here.
Instead, Defendants cite Tenth Circuit cases t o argue that “the exist ence of ‘express exemptions for objectively defined categories of [entities],’ . . . does not negate a law’s general applicability.” Defs’ Br. 23. But the cases cited do n ot advance the proposition claimed. In Swanson v. Guthrie Independent School District, the purpose of the school’s policy was to ensur e state f unding by prohibiting part-time attendance except f or fifth year seniors and special-education students, which was based on the number of full-time students, plus f ifth-year seniors and special -education students. 135 F.3d 694, 697, 701
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(10th Cir. 1998) . Thus, the “exceptions” wer e not reall y exceptions at all and did not destroy neutrality and general applicability.
Similarly, in Grace United Methodist Church v. City of Cheye nne, the court found no free exercise violation where a city board denied a variance for a church to run a daycare center in a residentia l zone. 451 F.3d 64 3, 647-48 (10th Cir . 2006). The court held that the zoning code was not “discri minatorily applied” merely because it permitted case-bycase exceptions for “churches, schools, and other similar uses.” Id. at 654; see also id. at 650 & n.1. It was uncontroverted that the board “did not have the ‘authority or discretion’ to permit anyone to operate a daycare center in a residential zone.” Id. at 653. The denial was “mandatory,” not “discretionary.” Id. at 654. Nor was there “e vidence that secul ar daycare centers ha[ d] been per mitted to o perate . . . , while religio us organizations like the Church ha[ d] been denied such an exception.” Id. Thus, the co urt emphasized that “this [was] not a controversy in which the City made a ‘val ue judgment in favor of secular motivations, but not religi ous motivations’” Id. (quoting and distin guishing F.O.P., 170 F.3d at 365).
In Axson-Flynn v. Johnson, a university student alleged a Free Exercise violation after being pressured to withdraw from the drama department for refusing to use certa in curse words. 356 F.3d 1277, 1280 (10th Cir. 200 4). The university claimed that its “ strict adherence to offensive script req uirement was a ‘neutra l rule of general applicability.’” Id. at 1294. The co urt disagreed since the student ha d shown that the poli cy was “discriminatorily applied.” Id. at 1294, 1298 -99 (Jewish student “received permission to
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avoid doing an improvisational exercise on Yom Kippur”; university “sometimes granted [student] herself an exemption”).
Here, the f acts are an alogous to th ose in F.O.P. and Axson-Flynn, not to those in Swanson or Grace United. The Man date’s “religious employers” exemption is wholly discretionary. 45 C.F.R. § 147.131(a) (agency “may” establish exemption). Defendants have already revised the exemption once, simply in response to public comment. See 78 Fed. Reg. 39873-74. Perhaps the best illustration of the exemption’s discretionary nature is that it has been enacted onl y via footnote on an HHS website. See AR 283-84.12 Furthermore, the e xemption explicitly discriminates among religious organizations, protecting only institutional churches and th eir integrated auxilia ries, while otherwise identical non-integrated organizations are ex cluded. Cf. Axson Flynn, 356 F.3d at 1293 , 1298-99; see also Zubik, 2013 WL 6118696, at *29-30. And it favors secular motivations for grandfathered and small-employer exemptions, while eschewing exemptions for nonchurch religious organizations. Cf. F.O.P., 170 F.3d at 3 65. Expressly adding these discriminatory exemptions to th e law underscores, not ameliorates, their inv idiousness. Lukumi, 508 U.S. at 542 (“categories of selection are of paramount concern”); F.O.P., 170 F.3d at 36 5 (“concern is onl y further implicated when the government does not
12 These facts also ref ute that the “unbridle d discretion” cla im (Count XI) may be dismissed. Defs’ Br. 25 & n.9. The creation in a we bsite footnote of a religious employers exemption, revised at agency whim, and extending only to institutional churches, is a perf ect example of unbridled discretion. See, e.g., AR 283-84. The “determination of who m ay” exercise First Amendment rights may not be “lef t to the unbridled discretion of a government official.” Summum v. City of O gden, 297 F.3d 995, 1007 (10th Cir. 2002) (quoting City of Lakewood v. Plai n Dealer Publ’g Co., 486 U.S. 750, 770 (1988)).
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merely create a mechanism for individualized exemptions, but instead, actually creates a categorical exemption”).13

D. The Establishment Clause claims cannot be resolved in Defendants’ favor.
As with their Free Exercise arguments, Defendants’ Establishment Clause arguments

hinge on the discredited notion that the government may prefer some religious

institutions over others, so long as the discrimination is based on their internal structure

and assumed religiosity, rather than denomination. Defs’ Br. 25-28. But the Tenth Circuit

has directly rejected that argument. In Weaver, the university challenged state

regulations that provided scholarships for students to attend any college, secular or

religious, unless the state deemed it “pervasively sectarian.” 534 F.3d at 1250. Just like

Defendants here, the state argued there was no Establishment Clause violation because

the law only discriminated based on “types of institutions,” not “types of religions.” Id. at

1259. The court deemed this a “wholly artificial distinction,” holding that “when the state

passes laws that facially regulate religious issues, it must treat … religious institutions

without discrimination or preference.” Id. at 1257, 1259; Larson v. Valente, 456 U.S.

228, 247 n.23 (1982) (rejecting that a law’s “disparate impact among religious

organizations is constitutionally permissible when such distinctions result from

application of secular criteria”).

13 The government’s claim that “nearly every court” to c onsider a f ree exercise

challenge “has rejected it,” Defs’ Br. 22 & n.7, is misleading. The vast majority of courts

addressing challenges have, like the Tenth Circuit, held the Mandate unlawful under

RFRA and so have not reached the f ree exercise claim.

See

www.becketfund.org/hhsinformationcentral/ (in merits rulings, 3 out of 3 non -profit

plaintiffs and 32 out of 38 for-profit plaintiffs have prevailed).

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Moreover, the Mandate does discriminate among religious denominations: it favors
those that consist primarily of “houses of worship,” “integrated auxiliaries,” or “religious
orders,” 78 Fed. Reg. 8456, 8461 (Feb. 6, 2013), and disfavors non-hierarchal churches
like the Southern Baptist Convention, whose faith encourages the creation of financially
and institutionally autonomous religious organizations. See Dkt. 7-1 ¶¶ 11-13; Lutheran
Soc. Serv. of Minn. v. United States, 758 F.2d 1283, 1288 (8th Cir. 1985). The law cannot
prefer denominations that exercise religion mainly through “houses of worship[],” 78
Fed. Reg. 8461, while disfavoring those whose faith “move[s] [its adherents] to engage in” broader religious ministries. Weaver, 534 F. 3d at 1259.14
Defendants’ reliance on Gillette v. United States, Br. 25-26, further illustrates why
their position is wrong. 401 U.S. 437 (1971). Gillette granted military conscientious-
objector status based on the nature of the conscientious objection. Id. at 442 n.5 (granting
exemption to those who object to “war in any form,” not to those who object to only “a
particular war”). The religious exemption was therefore available to all sincere
objectors—regardless of their faith—who asserted the same objection and sought to
engage in the same practice. Id. at 450-51. This equal treatment of objectors is precisely
14 Under the Fifth Amendment, since Plaintiffs have shown the Mandate infringes on their fundamental right to religion, the Mandate’s religious classifications are also subject to “strict scrutiny.” Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1210 (10th Cir. 2002); see also Goetz v. Glickman, 149 F.3d 1131, 1140 (10th Cir. 1998). Not that the classifications can survive even rational basis review: Defendants discriminate between essentially identical religious organizations based solely on unfounded speculation about the likely religious beliefs of religious institutions’ employees. See Plaintiffs’ Response to Defendants’ Statement, supra, ¶ 29. Such discriminatory assessment of religiosity is flatly illegal. Weaver, 534 F.3d at 1259 (banning “discrimination . . . expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations”). Thus, Counts VII and VIII remain viable.
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what the Mandate lacks, because it discriminates among institutions that engage in the exact same activity, and have the exact same religious objections.
E. The Mandate violates Plaintiffs’ Free Speech rights. The Mandate forces Reaching Souls, Truett-McConnell and other class members to request and au thorize others to pro vide their employees with abortion-inducing drugs. See, e.g., 26 C.F.R. § 54.9815 -2713A(a)(4); see also Ex. 2-C (Self-Certification Form). Defendants insist that they can do this because it is “plain ly incidental to the . . . regulation of conduct.” Defs’ Br. 29-30 (quoting Rumsfeld v. FAIR Inc., 547 U.S. 47, 62 (2006)). But FAIR concerned a law that regulated what affected parties “must do . . . not what they may or may not say.” 547 U.S . at 60 (emphases original). Here, the forced speech is the essential act that Defendants require. Such a “direct regulation of speech . . . plainly violate[s] the First Amendment.” Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2327 (2013). So Defendants switch tacks, arguin g that Reaching Souls and Truett-McConnell cannot contest being required to sign a form that, Defendants allege, is unenforceable. Defs’ Br. 17-18. But Def endants get things backward: they must show wh y they may massively penalize Reaching Souls and Truett-McConnell for declining to speak. If Defendants are “not free to interfere with speech for no better reas on than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the[m],” Boy Scouts of Am. v. Dale, 530 U.S. 640, 661 (2000), they certainly cannot compel speech for no purpose at all.
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The Mandate also muzzles Reaching Souls and Truett-McConnell from asking the TPAs not to be involved in the distribution of objectionable drugs and services. See, e.g., 26 C.F.R. § 54.9815–2713A(b)(1)(iii). Defendants respond that the muzzle does no harm since Reaching Souls and Truett-McConnell may tell everyone but the TPAs of their opposition to participating in the Mandate, and th at the TPAs will not provide the objectionable drugs anyway. But Plaintiffs reasonably believe that one or more of GuideStone’s TPAs will obey Defendants’ forms and regulations, rather than their briefs. Ex. 1 ¶¶ 4-5. Moreover, a ban on “speech tailored to a particular aud ience . . . cannot be cured simply by the f act that a speaker can speak to a larger ind iscriminate audience.” U.S. West, Inc. v. FCC, 182 F.3d 1224, 1232 (10th Cir. 1999) (“Effective speech has . . . a speaker and an audi ence. A restriction o n either . . . is a restriction on speech .”). Further, Defendants confuse Plaintiffs’ religious liberty claims with their speech claims: the speech harm is not in the provision of the drugs, but in censorship itself. Defendants are censoring Reaching Souls and Tr uett-McConnell from talking with GuideStone’s TPA Highmark, which currently plans to treat certification as a t rigger. Ex. 1 ¶ ¶ 4-5. Defendants’ rules burden both Plaintiffs’ free exercise and their free speech.
F. The Mandate violates Plaintiffs’ right to expressive association. Against Plaintiffs’ expressive association claim, Defendants make a one-paragraph argument that the only possible infringement on express ive association is f orced acceptance of unwanted members. Defs’ Br. 31-32. But unconstitutional burdens on expressive association “take many forms,” just “one of which” is a “regulation that forces the group to accept members it does not desire.” Boy Scouts of America v. Dale, 530 U.S.
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640, 648 (2000); see, e.g., In re Motor Fuel Temper. Sales Practice Litig., 641 F.3d 470, 479-81 (10th Cir. 2011) (associational rights can be infringed by, inter alia, expenditure caps, reporting requirements, and dis closure of internal comm unications). The appropriate inquiry is whether an associat ion is expressive an d, if so, whether the challenged law “i mpair[s] [the Plaintiffs’] expression.” Dale, 530 U.S. at 648, 653 . Courts must “give deference to” the Plaintiffs’ views on both. Id.
Plaintiffs have a distinctive religious message that they share through their associations, and the Mandate i mpairs their message. Both Reaching Souls and Truett McConnell are built around and exist to share their religious beliefs. Dkt. 7 -2 ¶¶ 3-4 (Reaching Souls employees must affirm and share the same core religious belief s as Reaching Souls); see also Dkt. 7-3 ¶ 5 (same requirement for Truett-McConnell faculty and trustees). These beliefs include the Scriptural command to respect the sanctity of human life, which requires Plaintiffs to treat unborn people with respect and to speak on their behalf. Dkt. 7-2 ¶¶ 4-5; Dkt. 7-3 ¶¶ 4-5. Reaching Souls and Truett-McConnell expressly require the ir employees or f aculty to prof ess Christian faith and live consistently with that faith. Dkt. 7-2 ¶ 4 (Reaching Souls); Dkt. 7-3 ¶ 5 (TruettMcConnell). Reaching Souls and Truett -McConnell have thes e requirements in part to express their c ommitment to living an d sharing specific Christian p rinciples, including the sanctity of human life. Dkt. 7-2 ¶¶ 5, 10; Dkt. 7-3 ¶¶ 4-5, 11. Part of the reason that both Reaching Souls and Truett-McConnell chose to associate with the GuideStone Plan was to “provide heal th benefits for [their] employees in co mpliance with [ their] commitment to . . . the sanctity of human life.” Dkt. 7-2 ¶¶ 6, 11; Dkt. 7-3 ¶¶ 7, 11.
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The Mandate i mpairs Reaching Souls’ and Truett -McConnell’s expressive associations with their employees and with GuideStone by forcing participation in the government’s scheme. That participation forces Reaching Souls and Truett-McConnell to directly contradict the religious message which they intend to send via their associations with their e mployees and GuideStone, thereby “intru[ding] into t he internal structure or affairs of” those associations. Dale, 530 U.S. at 648; accord Pleasant v. Lovell, 876 F.2d 787, 795 (10th C ir. 1989) (“[I]nterfering with the internal workin gs of [an association]” can “infringe upon” the “right to associate … to promote a[] ... viewpoint”); Dkt. 7-2 ¶¶ 3-7, 10; Dkt. 7-3 ¶ 11.
The Mandate similarly burdens GuideStone, which uses its association with Reaching Souls, Truett-McConnell and other class members to s hare and express their religious beliefs respecting hum an life and dignit y. See, e.g., Dkt. 7-1 ¶¶ 14, 16-21, 26-28. GuideStone is committed to operating consistently with its Southern Baptist faith; indeed, failing to do so would destroy its ab ility to a ssociate with ministries that, like the class members, want health services that are compliant with Southern Baptist beliefs. Id. ¶¶ 21, 26-28. Thus, the Man date imperils GuideStone’s raison d’être. The Mandate li kewise burdens each of the class members’ association with GuideStone. Id.
G. Defendants’ motion for summary judgment is premature. Defendants’ motion to dismiss is actually just a motion for summary judgment because the Court must consider materials outside the pleadings in order to resolve it. See Fed. R. Civ. P. 12(d); SEC v. Wolfson, 539 F.3d 1249, 1265 (10th Cir. 2008); Holy Land Found. for Relief and Dev’t v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003) (district court
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abused discretion by considering administrative record without co nverting Rule 12(b ) motion to Rule 56 motion). Defendants’ de facto summary judgment motion is premature as set forth in Plaintiffs’ Rule 56(d) motion, which is incorporated herein.
III. Plaintiffs are entitled to an injunction. A. Plaintiffs have a substantial likelihood of success on the merits and face a substantial threat of irreparable harm.
For the same reasons set forth in Section II above and discussed in Plaintiffs’ Motion for a Preliminary Injunction, the Court should also find that Plaintiffs have demonstrated a substantial likelihood of success on the merits. They have therefore also estab lished irreparable harm, because the Tenth Circuit has “explicitly held—by analogy to First Amendment cases—that establishing a likely RFRA violation satisfies the irreparabl e harm factor.” Hobby Lobby, 723 F.3d at 1146.
B. A preliminary injunction will not harm Defendants or the public. Defendants claim that an injunction protecting the Plaintiffs “would injure the government and the public.” Def. Br. 39-40. This makes no sense in light of Defendants’ admission that they cannot enforce their scheme against TPAs.15
15 Defendants’ argument that Plaintiffs must be coerced into this scheme because “Congress found it to be in the public interest to direct an agency to develop and enforce,” id. at 39-40, is also incorrect: Congress did not mandate contraceptive coverage, Defendants did; Congress instructed the government to respect religious freedom in RFRA; and Congress left church plans like the one at issue here outside of ERISA. 29 U.S.C. § 1003(b)(2). In any case, Defendants have voluntarily provided widespread temporary relief from many of the requirements Congress did create—but not from Defendants’ own contraceptive scheme. See http://www.cms.gov/ CCIIO/Resources/Letters/Downloads/commissioner-letter-11-14-2013.PDF.
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CONCLUSION For the above reasons, Plaintiffs respectfully request that this court deny Defendants’

motion to di smiss or, in the alternati ve, for summary judgment, and grant Plai ntiffs’

motion for a preliminary injunction.

Respectfully submitted this 27th day of November, 2013.

/s/ Jared D. Giddens Jared D. Giddens Oklahoma Bar No. 3355
jgiddens@cwlaw.com J. Dillon Curran Oklahoma Bar No. 19442
dcurran@cwlaw.com CONNER & WINTERS, LLP 1700 One Leadership Square 211 North Robinson Oklahoma City, OK 73102 Tel: (405) 272-5721 Fax: (405) 232-2695
Carl C. Scherz Admitted Pro Hac Vice Oklahoma No. 20420 cscherz@lockelord.com Seth Roberts Admitted Pro Hac Vice Texas Bar No. 24051255 sroberts@lockelord.com LOCKE LORD LLP 2200 Ross Avenue, Suite 2200 Dallas, TX 75201 Tel.: (214) 740-8583 Fax: (214) 756-8583

Mark Rienzi Admitted Pro Hac Vice D.C. Bar No. 494336 mrienzi@becketfund.org
Adèle Auxier Keim Admitted Pro Hac Vice Virginia Bar No. 76476 akeim@becketfund.org
Daniel Blomberg Admitted Pro Hac Vice Kansas Bar No. 23723 dblomberg@becketfund.org
THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street NW, Suite 220 Washington, DC 20007 Tel.: (202) 955-0095 Fax: (202) 955-0090
COUNSEL FOR PLAINTIFFS REACHING SOULS INTERNATIONAL, INC., TRUETTMCCONNELL COLLEGE, INC., AND GUIDESTONE FINANCIAL RESOURCES OF THE SOUTHERN BAPTIST CONVENTION

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Case 5:13-cv-01092-D Document 56 Filed 11/27/13 Page 52 of 52 CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was filed through the Court’s ECF filing system on counsel for Defendants on November 27, 2013.
/s/ Jared D. Giddens Jared D. Giddens
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 Case 5:13-cv-01092-D Document 7 Filed 10/25/13 Page 1 of 34

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA

REACHING SOULS INTERNATIONAL, INC., et al.,
Plaintiffs, v. KATHLEEN SEBELIUS, et al.,
Defendants.

§ § § § § § Civil Action No. 5:13-CV-01092-D § § § §

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION, REQUEST FOR EXPEDITED CONSIDERATION, AND BRIEF IN SUPPORT

Case 5:13-cv-01092-D Document 7 Filed 10/25/13 Page 2 of 34
Table of Contents
BACKGROUND ................................................................................................................. 3 The Abortifacient Mandate....................................................................................... 3 The Parties and Their Religious Exercise ................................................................ 5 The Mandate’s Burden on Plaintiffs’ Religious Exercise ........................................ 7
ARGUMENT....................................................................................................................... 9 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ........................ 10
A. The mandate violates the Religious Freedom Restoration Act ................... 10 1. Plaintiffs’ religious beliefs forbid them from facilitating the provision of abortion-causing drugs and devices............................. 11 2. Plaintiffs’ religious beliefs are sincere ............................................. 12 3. The Mandate Requires Plaintiffs to Stop Their Religious Exercise ............................................................................................ 12 4. The mandate cannot satisfy strict scrutiny ....................................... 13
B. The Mandate Violates the First Amendment’s Religion Clauses ............... 16 C. The Mandate Violates the Free Speech Clause. .......................................... 19 II. IRREPARABLE HARM........................................................................................ 20 III. THE BALANCE OF EQUITIES TIPS IN PLAINTIFFS' FAVOR ...................... 20 IV. A PRELIMINARY INJUNCTION IS IN THE PUBLIC INTEREST .................. 21 V. PRELIMINARY INJUNCTION THAT BENEFITS THE ENTIRE CLASS ....... 22 CONCLUSION ................................................................................................................. 25
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TABLE OF AUTHORITIES

FEDERAL CASES

Page(s)

A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010) ....................................................................................... 12

Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321 (2013) ................................................................................................. 19

Armstrong v. Sebelius, No. 13-CV-00563-RBJ, 2013 WL 5213640 (D. Colo. Sept. 17, 2013) ............... passim

Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) .................................................................................... 9

Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987) ..................................................................................... 23

Briscoe v. Sebelius, 2013 WL 4781711 (D. Colo. Sept. 6, 2013) ...................................................... 2, 15, 21

City of Boerne v. Flores, 521 U.S. 507 (1997) ..................................................................................................... 13

Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) (McConnell, J.) ................................................... 16, 18

Doe v. Rumsfeld, 341 F. Supp. 2d 1 (D.D.C. 2004) ................................................................................. 23

Grutter v. Bollinger, 539 U.S. 306 (2003) ..................................................................................................... 15

Heideman v. S. Salt Lake City, 348 F.3d 1182 (10th Cir. 2003) ..................................................................................... 9

Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278 (W.D. Okla. Nov. 19, 2012) ..........................................................21

Hobby Lobby Stores, Inc. v. Sebelius, No. CIV-12-1000-HE, 2013 WL 3869832 (W.D. Okla. July 19, 2013) ..........................3

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Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) ................................................................................... passim
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) ............................................................................................................16
Ill. League of Advocates v. Ill. Dept. of Human Servs., 13-C-1300, 2013 WL 3287145 (N.D. Ill. June 28, 2013)............................................ 23
Kansas Health Care Assoc. v. Kansas Dept. of Soc. & Rehab. Servs., 31 F.3d 1536 (10th Cir. 1994) .............................................................................................23
Larson v. Valente, 456 U.S. 228 (1982) ..................................................................................................16, 17, 18
Lutheran Soc. Serv. of Minn. v. United States, 758 F.2d 1283 (8th Cir. 1985) .............................................................................................17
Mainstream Mktg. Servs., Inc. v. Fed. Trade Comm’n, 283 F. Supp. 2d 1151 (D. Colo. 2003), rev’d on other grounds, 358 F.3d 1228 (10th Cir. 2004) ............................................................................................................ 23
Newland v. Sebelius, 881 F. Supp. 2d 1287 (D. Colo. 2012), aff’d, __ F.3d ____, 2013 WL 5481997......................................................................................................... passim
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) (en banc) ......................................................................13, 22
Richmond Tenants Org. v. Kemp, 956 F.2d 1300 (4th Cir. 1992) ..................................................................................... 23
Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781 (1988) ..............................................................................................................18
Sherbert v. Verner, 374 U.S. 398 (1963) ..............................................................................................................11
TBS, Inc. v. FCC, 512 U.S. 624 (1994) ..............................................................................................................19
Thomas v. Review Bd., 450 U.S. 707 (1981) ..............................................................................................................11
United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002)(en banc) .....................................................................10, 15
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Univ. of Texas v. Camenisch, 451 U.S. 390 (1981) ....................................................................................................... 9
Vegetal v. Gonzales, 546 U.S. 418 (2006) ..................................................................................................10, 13, 24
Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994) ....................................................................................... 23
Wisconsin v. Yoder, 406 U.S. 205 (1972) ..............................................................................................................11
FEDERAL STATUTES 26 U.S.C. §§ 4980D, 4980H ......................................................................................................25 26 U.S.C. §§ 4980D & 9815 ........................................................................................................8 26 U.S.C. § 4980D(d) ...................................................................................................................5 26 U.S.C. § 4980H (a), (c)(1) ......................................................................................................9 26 U.S.C. § 4980H(c)(2)(A) ........................................................................................................5 26 U.S.C. § 5000A(d)(2)(A),(B),(ii)&(2)(B)(i) ......................................................................14 29 U.S.C. §§ 1132, 1185d ..........................................................................................................25 29 U.S.C. §§ 1185d(a)(1), 1132 ..................................................................................................8 42 U.S.C. § 300gg-13(a)...............................................................................................................3 42 U.S.C. § 300gg-13(a)(4)................................................................................................3, 8, 25 42 U.S.C. § 2000bb-1 .................................................................................................................10 42 U.S.C. § 2000bb-1(b) ............................................................................................................10 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A) .............................................................................10 42 U.S.C. § 2000bb(b)(1) ...........................................................................................................11 42 U.S.C. § 18011 (2010).............................................................................................................5 Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029
(2010) .........................................................................................................................................1 § 414(e)(3)(B) of the Internal Revenue Code ............................................................................6
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The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 1119 (2010) .................................................................................................................... 1
FEDERAL RULES FED. R. CIV. P. 65 ........................................................................................................................25 Fed. R. of Evid. 801(d)(2)(A) ........................................................................................................14 Fed. R. of Evid. 902(5) ..................................................................................................................14 FEDERAL REGULATIONS 26 C.F.R. § 1.6033-2(h)(2) & (3).....................................................................................................4 29 C.F.R. § 2590.715-2713A .....................................................................................................19 29 C.F.R. § 2590.715-2713A (b)(2), (c)(2)..............................................................................19 29 C.F.R. § 2590.715–2713A ......................................................................................................4 45 C.F.R. § 147.130(a)(1)(iv)(A)-(B) .........................................................................................3 45 C.F.R. § 147.131(a) .................................................................................................................4 45 C.F.R. § 147.131(b) .................................................................................................................4 45 C.F.R. § 147.131(c)(2)(i)(B)...................................................................................................4 76 Fed. Reg. 46621-01 (published Aug. 3, 2011) .....................................................................3 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012) ................................................................................14 78 Fed. Reg. at 39879 .................................................................................................................13 78 Fed. Reg. at 39880 ...............................................................................................................4, 5 78 Fed. Reg. at 39875 ...................................................................................................................4 78 Fed. Reg. at 39874 .............................................................................................................4, 18 78 Fed. Reg. at 39874(a) ..............................................................................................................4 OTHER AUTHORITIES 7B C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1785.2
(1986 & Supp. 1994).................................................................................................... 23
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Case 5:13-cv-01092-D Document 7 Filed 10/25/13 Page 7 of 34 Health and Human Services, Announcement of Anticipated Availability of Funds for
Family Planning Services Grants, available at http://www.hhs.gov/opa/pdfs/fy-13services-announcement.pdf at 9 (last visited Oct. 21, 2013) (announcing that “[t]he President[’]s Budget for Fiscal Year (FY) 2013 requests approximately $297 million for the Title X Family Planning Program”) ..................................................................... 15 O Centro Espirita Beneficiente Unaio Do Vegetal v. Ashcroft, No. CV 00-1647.....................................................................................................................24 Statement by U.S. Dep’t of Health & Human Servs. Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html.............. 14
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Plaintiffs Reaching Souls International, Inc. (“Reaching Souls”), TruettMcConnell College, Inc. (“Truett-McConnell”), by themselves and on behalf of all others similarly situated, and GuideStone Financial Resources of the Southern Baptist Convention (“GuideStone”) (collectively “Plaintiffs”) seek a preliminary injunction prohibiting Defendants from enforcing the Affordable Care Act’s (“ACA”)1 requirement that they facilitate access to abortion-inducing products and related education and counseling under their health plans (the “Mandate”) in violation of their shared religious beliefs.
Reaching Souls and Truett-McConnell are ministries committed to living their Christian faith and sharing the good news about Jesus Christ. Reaching Souls does this by training evangelists and caring for orphans in Africa, Cuba, and India. TruettMcConnell equips its students with a Biblically-based liberal arts education.
Plaintiffs’ commitment to their faith precludes them from participating in the government’s scheme to subsidize and promote use of abortifacients under group health plans. As a matter of religious exercise, Reaching Souls and Truett-McConnell exclude abortifacients from their health plans through GuideStone, which offers health benefits for Southern Baptist and evangelical Christian employers consistent with their faith.
The government admits that the Mandate affects the religious liberty of non-profit organizations and has exempted a narrow category of religious organizations— institutional churches, their integrated auxiliaries, and the exclusively religious activities
1 Together, the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 1119 (2010) and the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010).
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of religious orders. Ministries like Reaching Souls and Truett-McConnell, that do not meet this strict test, must designate their insurer or health benefits administrator to deliver the objectionable abortifacients. The government calls this an “accommodation,” but it fails to accommodate Reaching Souls and Truett-McConnell’s religious beliefs, which preclude them from designating anyone to provide abortifacients.
Starting on January 1, 2014, Defendants will impose massive fines on non-exempt ministries that receive health benefits through GuideStone unless and until they cooperate with the Mandate in a manner that violates their religious beliefs. The Mandate will also force GuideStone to shrink its religious mission dedicated to offering health benefits to Southern Baptist and evangelical Christian employers consistent with their faith.
The Mandate violates the Religious Freedom Restoration Act (“RFRA”) for the reasons recently set forth in Hobby Lobby v. Sebelius, 723 F.3d 1114, 1137-1145 (10th Cir. 2013). The Mandate also violates the First Amendment, both because it impermissibly prefers some religious organizations over others, and because it restricts Plaintiffs’ speech. These openly religious Plaintiffs are currently in the process of arranging benefit plans for the coming year, and they should be free to do so without illegal coercion under the Mandate. Plaintiffs therefore request a preliminary injunction protecting them and other non-exempt ministries that depend on GuideStone for their health benefits from the Mandate during the course of this litigation. Other courts in this Circuit have not hesitated to grant a preliminary injunction under similar circumstances. See Newland v. Sebelius, 881 F. Supp. 2d 1287, 1294-95 (D. Colo. 2012), aff’d, __ F.3d ____, 2013 WL 5481997 at **2-3 (10th Cir. Oct. 3, 2013); Briscoe v. Sebelius, 2013 WL
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4781711, at *5 (D. Colo. Sept. 6, 2013); Hobby Lobby Stores, Inc. v. Sebelius, No. CIV-

12-1000-HE, 2013 WL 3869832, at *3 (W.D. Okla. July 19, 2013); Armstrong v.

Sebelius, No. 13-CV-00563-RBJ, 2013 WL 5213640, at *3 (D. Colo. Sept. 17, 2013)

(granting preliminary injunction on remand), prior to remand, No. 13-1218, 2013 WL

4757949 (10th Cir. Sept. 5, 2013) (vacating district court’s order and remanding for

reconsideration in light of Hobby Lobby).

The Abortifacient Mandate

BACKGROUND

ACA mandates that any “group health plan” must provide coverage for certain “preventive care” without “any cost sharing.” 42 U.S.C. § 300gg-13(a). ACA allowed the Health Resources and Services Administration (HRSA), a division of Defendant HHS, to define “preventative care.” 42 U.S.C. § 300gg-13(a)(4).
HRSA’s definition includes FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling, including “emergency contraception” such as Plan B (the “morning-after” pill), Ella (the “week-after” pill), and certain intrauterine devices. Dkt. 1 (Ex. 2) at 11-12.2 The FDA’s Birth Control Guide notes that these drugs and devices may work by preventing “attachment (implantation)” of a fertilized egg in the uterus. Dkt. 1 (Ex. 2) at 11-12.
HHS allowed HRSA “discretion” to create an exemption for “certain religious employers from the Guidelines” regarding “contraceptive services.” 76 Fed. Reg. 4662101 (published Aug. 3, 2011); 45 C.F.R. § 147.130(a)(1)(iv)(A)-(B). On June 28, 2013, HHS issued the long-awaited final rule—the Mandate. It treats only certain entities as
2 Plaintiffs object to four of the twenty currently FDA approved methods (similar to the Hobby Lobby plaintiffs), namely: (1) Ella; (2) Plan B, Plan B One-Step, and Next Choice (Levonorgestrel); (3) the Copper IUD; and (4) the IUD with Progestin.
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exempt “religious employers”—institutional churches, their integrated auxiliaries and the exclusively religious activities of a religious order—that are “organized and operate[d]” as nonprofit entities and “referred to in section 6033” of the Internal Revenue Code. 78 Fed. Reg. at 39874(a); 45 C.F.R. § 147.131(a). 3 The Mandate creates a separate “accommodation” for any non-exempt religious organization that (1) “[o]pposes providing coverage for some or all of the contraceptive services required”; (2) “is organized and operates as a nonprofit entity”; (3) “holds itself out as a religious organization”; and (4) “self-certifies that it satisfies the first three criteria.” 78 Fed. Reg. at 39874; 45 C.F.R. § 147.131(b). Such entities must sign the certification before “the beginning of the first plan year” beginning on or after January 1, 2014, and deliver it to the plan’s insurer or third party administrator. 78 Fed. Reg. at 39875.
Delivery triggers the insurer’s or third party administrator’s obligation to make “separate payments for contraceptive services directly for plan participants and beneficiaries.” Id. at 39875-76; see 45 C.F.R. § 147.131(c)(2)(i)(B); 29 C.F.R. § 2590.715–2713A. If a third party administrator of a self-insured plan declines to provide the services, the objecting religious organization must find one that is willing in order for the accommodation to result in payments for the drugs. 78 Fed. Reg. at 39880.
If a third party administrator (“TPA”) is willing, the religious organization—via its self-certification—must expressly designate the TPA as its “plan administrator and claims administrator solely for the purpose of providing payments for contraceptive
3 Whether an entity is an “integrated auxiliary” of a church turns primarily on the degree of the church’s control over and funding of the entity. See 26 C.F.R. § 1.60332(h)(2) & (3) (affiliation); id. § 1.6033-2(h)(4) (internal support). The definition was for tax considerations, not religious conscience concerns, and thus can arbitrarily turn on whether a religious non-profit receives 49% or 50% of financial support from a formal church in a given year.
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services for participants and beneficiaries.” Id. at 39879. The self-certification must notify the TPA of its “obligations set forth in these final regulations.” Id. at 39879.
By contrast to this convoluted “accommodation” for religious organizations, many secular businesses are simply exempt. Employers who provide “grandfathered” health care plans, covering an estimated 87 million people, are exempt. See 42 U.S.C. § 18011 (2010); Dkt. 1 (Ex. 4) at 5. Employers with fewer than fifty employees, covering an estimated 34 million individuals, also may avoid certain fines under the Mandate. See 26 U.S.C. § 4980H(c)(2)(A); 26 U.S.C. § 4980D(d); Dkt. 1 (Ex. 6) at 1.
The Parties and Their Religious Exercise The Southern Baptist Convention formed GuideStone in 1918 to provide benefits
for ministers of the gospel and denominational workers, “within the bounds” of the Southern Baptist Convention. Head Decl. (“Ex. 1”) ¶ 4. In carrying out that mission, GuideStone established a health benefits plan for and limited to current and former employees of organizations (and their dependents) that are “controlled by or associated with” the Southern Baptist Convention (the “GuideStone Plan”). Id. The GuideStone Plan is one of the largest church health care plans in the country, serving hundreds of churches and ministries and providing health benefits to more than 78,000 people. Id.
As an arm of the Southern Baptist Convention, GuideStone shares the beliefs about the sanctity of human life stated in Article 15 of the Baptist Faith and Message 2000 adopted by the Southern Baptist Convention:
All Christians are under obligation to seek to make the will of Christ supreme in our own lives and in human society. . . . We should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death. . . . In order to promote these ends Christians should be ready to work with all men of good will in
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any good cause, always being careful to act in the spirit of love without compromising their loyalty to Christ and His truth. Ex. 1 ¶ 17; Dr. Armstrong Decl. (“Ex. 3”) ¶ 4. Consistent with those beliefs, the GuideStone Plan does not pay or reimburse for expenses associated with “elective termination of a pregnancy by any method,” including contraceptive methods that may cause early abortions. Ex. 1 ¶ 18. Reaching Souls is an Oklahoma not-for-profit corporation founded in 1986 by a Southern Baptist minister and evangelist with the mission of training African pastors and evangelists. Wells Decl. (“Ex. 2”) ¶ 3. Reaching Souls believes the Bible teaches that all people are our neighbors, including the unborn. Id. ¶ 4. Reaching Souls’ beliefs are consistent with the Southern Baptist Convention’s teachings about the sanctity of all human life, and Reaching Souls has adopted the GuideStone Plan to provide health benefits for its 10 full time employees in a manner that is consistent with its commitment to the sanctity of human life and the well-being of its employees. Id. ¶¶ 5-6, 13. Truett-McConnell is a private, Christian, coeducational liberal arts college that has adopted the Southern Baptist Convention’s Baptist Faith and Message 2000 as its own statement of faith. Ex. 3 ¶¶ 3-5. Truett-McConnell is committed to the sanctity of life from conception to natural death and has adopted the GuideStone Plan to provide health benefits for its employees consistent with those beliefs. Id. ¶¶ 5-7. The class consists of employers that: (i) have adopted or will in the future adopt the GuideStone Plan to provide medical coverage for their “employees” or former employees and their dependents (“employees” for purposes of this requirement has the meaning set forth in section 414(e)(3)(B) of the Internal Revenue Code of 1986 (the
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“Code”)); (ii) are or could be reasonably construed to be “eligible organizations” within the meaning of the Mandate; and (iii) are not “religious employers” within the meaning of the Mandate. Ex. 1 ¶ 30. The class includes approximately 187 employers in 26 states that are “eligible organizations” sharing the core convictions of the Southern Baptist Convention regarding the sanctity of life from conception to natural death. Id. ¶ 31. The Mandate’s Burden on Plaintiffs’ Religious Exercise
The Plaintiffs’ religion prohibits them from complying with the Mandate. Reaching Souls, Truett-McConnell and the other class members cannot trigger the provision of abortion-causing drugs and devices by providing a certification to another party, or by designating another party to do it for them. Ex. 2 ¶¶ 9, 19-20; Ex. 3 ¶¶ 10, 21-22. These Plaintiffs are barred by their religion from facilitating access to these products. Ex. 2 ¶¶ 9, 19-20; Ex. 3 ¶¶ 10, 21-22. Likewise, GuideStone cannot facilitate access to these products, whether by paying for them, contracting with a third party administrator who will pay for them, or otherwise allowing or helping any party to be designated to distribute them in connection with the GuideStone plan. Ex. 1 ¶¶ 19, 2225. GuideStone is barred by its religion from facilitating access to these products. Id. If Plaintiffs continue their religious exercise of providing health benefits without abortioninducing drugs and devices, however, they face enormous penalties from the government. Ex. 2 ¶ 13; Ex. 3 ¶¶ 14-15. For example, Reaching Souls currently has approximately 10 full time employees covered under its health plan and could incur penalties of approximately $365,000 per year based on its current employee count, which would have a devastating and fatal impact on its operations. Ex. 2 ¶ 13. Truett-McConnell has
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approximately 78 full time employees and could incur penalties of approximately $2,847,000 per year, which would also have a devastating impact. Ex. 3 ¶ 14. With 187 non-exempt employers and over 5,144 full-time employees, Ex. 1 ¶ 31, if GuideStone continues to offer employee health benefits without the mandated items, class members would incur penalties of approximately $514,400 per day–$187,756,000 per year−and expose themselves to private enforcement suits. Ex. 1 ¶ 35; see 26 U.S.C. §§ 4980D & 9815 (preventive services requirements set forth in 42 U.S.C. § 300gg-13(a)(4)); 29 U.S.C. §§ 1185d(a)(1), 1132. These threatened penalties impose substantial pressure on Plaintiffs to stop their religious exercise. Ex. 1 ¶ 25; Ex 2 ¶ 17; Ex. 3. ¶ 19.
Similarly, GuideStone estimates losses of $39 million in contributions from “eligible organizations” that may be forced to leave the GuideStone Plan. Ex. 1 ¶ 43. This departure would have a dramatic financial impact upon GuideStone and likely require it to reduce its personnel and other resources that carry out its ministries. See id. ¶ 38. There would also be a significant impact upon the employers that remain in the GuideStone Plan because of increased costs resulting from loss of scale and the impact on the financial stability of the GuideStone Plan. See id. ¶ 42. These consequences impose substantial pressure on GuideStone to stop its religious exercise. See id. ¶ 25.
Moreover, forcing Plaintiffs to cancel their health plans would compromise their shared religious beliefs, which motivate them to promote the spiritual and physical wellbeing of their employees by providing health benefits. See Ex. 1 ¶ 38; Ex. 2 ¶¶ 6-7; Ex. 3 ¶¶ 6-8. By discontinuing all coverage, Plaintiffs would also be placed at a severe competitive disadvantage in their efforts to hire and retain employees, adversely
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impacting Plaintiffs’ ministries. Ex. 1 ¶¶ 39, 41; Ex. 2 ¶ 15; Ex. 3 ¶ 17. Some Plaintiffs would also face separate fines for canceling their plans. 26 U.S.C. § 4980H (a), (c)(1); Ex. 1 ¶ 36 ($7,608,000 penalty for the class); Ex. 3 ¶ 15 ($156,000 penalty for TruettMcConnell). The Mandate also substantially burdens GuideStone’s religious ministry by pressuring it to stop its religious exercise of providing benefits without abortifacients, and forcing GuideStone to reduce its mission of providing health benefits to organizations sharing the core beliefs of the Southern Baptist Convention. See Ex. 1 at 25.
As they do every Fall, Plaintiffs are now planning for the 2014 plan year. Ex. 1 ¶ 48; Ex. 2 ¶ 22; Ex. 3 ¶ 24. This is a complex, time-consuming process, and it is already being burdened by the Mandate. Ex. 1 ¶ 48. The Mandate casts grave uncertainty on Plaintiffs’ ability to provide health benefits for their employees and families next January — less than three months away. See id. ¶ 49. Enrollment must occur now. A lapse in coverage would be disastrous for Plaintiffs’ operations and employees. Id. ¶ 49.
ARGUMENT Injunctive relief is warranted here because (1) Plaintiffs have a likelihood of success on the merits, (2) there is a threat of irreparable harm, which (3) outweighs any harm to Defendants, and (4) the injunction would not adversely affect the public interest.4 See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012).
4 “[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981); see also Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003) (“The Federal Rules of Evidence do not apply to preliminary injunction hearings.”).
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I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS A. The mandate violates the Religious Freedom Restoration Act Under RFRA, the federal government “may substantially burden a person’s
exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §2000bb-1(b); see also United States v. Hardman, 297 F.3d 1116, 1126 (10th Cir. 2002)(en banc). RFRA requires strict scrutiny to religious exercise claims. See Gonzales, 546 U.S. at 424, 43031. The framework for analyzing a RFRA claim requires the court to “identify the religious belief” at issue; “determine whether this belief is sincere;” determine “whether the government places substantial pressure on the religious believer;” and finally, if there is substantial pressure, the government action will be upheld only if it satisfies strict scrutiny—i.e., if it is “‘the least restrictive means of advancing a compelling interest.’” See Hobby Lobby, 723 F.3d at 1140-43 (citation omitted); 42 U.S.C. § 2000bb-1.
Under this rubric, and under substantially similar facts, the Hobby Lobby, Newland, and Armstrong courts concluded that the Act’s contraception mandate violated RFRA, because it substantially pressured the Plaintiffs to violate their sincere religious beliefs against facilitating access to abortion-inducing drugs and devices, without satisfying strict scrutiny. See Hobby Lobby at 723 F.3d at 1146-47; Newland, 2013 WL 5481997, at *2; Armstrong, 2013 WL 4757949 at 1.
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1. Plaintiffs’ religious beliefs forbid them from facilitating the provision of abortion-causing drugs and devices.
RFRA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,’” 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A), and abstaining from certain activities for religious reasons qualifies as “religious exercise,” just as much as abstaining from work on certain days. See Hobby Lobby CITE; see also Sherbert v. Verner, 374 U.S. 398 (1963); Thomas v. Review Bd., 450 U.S. 707 (1981); see Wisconsin v. Yoder, 406 U.S. 205 (1972); 42 U.S.C. § 2000bb(b)(1). Plaintiffs’ religious beliefs are similar to the religious beliefs asserted in Hobby Lobby where the plaintiffs believed that human life begins when sperm fertilizes an egg and that it was “immoral for them to facilitate any act that causes the death of a human embryo.” Hobby Lobby, 723 F.3d at 1122. The Hobby Lobby plaintiffs also objected to “‘participating in, providing access to, paying for, training others to engage in, or otherwise supporting’ the devices and drugs” at issue. Id. at 1140. In this case, Plaintiffs share the core convictions of the Southern Baptist Convention regarding the sanctity of life and believe that it would compromise their shared religious faith to intentionally facilitate the provision of abortifacient drugs and related services. See Ex. 1 ¶ 38; Ex. 2 ¶¶ 6-7; Ex. 3 ¶¶ 6-8. Paying for such benefits; providing paperwork that will trigger such benefits; designating another party to provide such benefits; and/or making certifications that would create a duty for third party administrators to provide such benefits would likewise impinge their religious beliefs. Ex. 1 ¶¶ 19, 22-25; Ex. 2 ¶¶ 9, 19-20; Ex. 3 ¶¶ 10, 21-22. Simply put, as a matter of religious faith, Plaintiffs may not participate in any way in the government’s program to provide access to these services.
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2. Plaintiffs’ religious beliefs are sincere In Hobby Lobby, the court saw “no reason to question” the plaintiffs’ sincerity of similar beliefs. See Hobby Lobby, 723 F.3d at 1140. The court acknowledged the common nature of these beliefs in American culture: “The assertion that life begins at conception is familiar in modern religious discourse …. Moral culpability for enabling a third party’s supposedly immoral act is likewise familiar.” Id. at 1140 n.15. Under this element, the question is not “whether the reasonable observer would consider the plaintiffs complicit in an immoral act, but rather how the plaintiffs themselves measure their degree of complicity.”5 Id. at 1142; see also A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 264 (5th Cir. 2010). Here, there is no legal basis to question the sincerity of Plaintiffs’ beliefs, given the Southern Baptist Convention’s longstanding and well publicized opposition to abortion. Ex. 1 ¶ 14; Ex. 2 ¶ 5 ; Ex. 3 ¶¶ 4-5.
3. The Mandate Requires Plaintiffs to Stop Their Religious Exercise
Government action substantially burdens a religious belief when it (i) “requires participation in an activity prohibited by a sincerely held religious belief,” (ii) “prevents participation in conduct motivated by a sincerely held religious belief,” or (iii) “places substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held religious belief.” Hobby Lobby, 723 F.3d at 1138.
5 The Hobby Lobby court further noted that “it is not within the judicial function and judicial competence to inquire whether the petitioner . . . correctly perceived the commands of [his] faith. Courts are not the arbiters of scriptural interpretation.” Hobby Lobby, 723 F.3d at 1138 (quoting Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 716 (1982)(internal quotation marks omitted). Rather, the only task “is to determine whether the claimant’s belief is sincere.” Id. at 1137.
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As to the first prong, the Mandate expressly requires Plaintiffs to participate directly in the government’s scheme by either providing coverage for contraceptive abortifacients themselves or designating a third party administrator for the purpose of providing such converge. 78 Fed. Reg. at 39879. Failure to do so will result in enormous fines to employers, and severe financial and religious harms to GuideStone. Ex. 1 ¶¶ 3538. Under the second prong, all Plaintiffs currently cooperate in their religious exercise of providing health benefits consistent with their religious faith. Yet the Mandate prevents that continued religious exercise on threat of the penalties described above. As to the third prong, the Mandate’s threatened fines and other harms create enormous pressure on Plaintiffs to comply with the Mandate’s requirements. Thus the mandate imposes more than “substantial pressure . . . to engage in conduct contrary to a sincerely held religious belief.” Hobby Lobby, 723 F.3d at 1138.
Not surprisingly, in Hobby Lobby, the Tenth Circuit found that 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, 2013 WL 3216103, at *21. The same is true here.
4. The mandate cannot satisfy strict scrutiny Defendants thus must prove that the Mandate is the least restrictive means of advancing a compelling interest. See O Centro Espirita Beneficiente Uniao do Vegetal v. Gonzales, 546 U.S. 418, 423 (2006). RFRA imposes “the most demanding test known to constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). Defendants cannot meet it here.
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The Hobby Lobby court considered Defendants’ asserted interests in promoting “public health” and “gender equality” and concluded that they failed to satisfy strict scrutiny. See Hobby Lobby, 723 F.3d at 1143-44. First, these asserted government interests are too “broadly formulated” to justify denying “specific exemptions to particular religious claimants.” Id. at 1143. Second, these interests “cannot be compelling because the contraceptive-coverage requirement presently does not apply to tens of millions of people,” including “those working for private employers with grandfathered plans,” and those working “for employers with fewer than fifty employees.” Id.; 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012) (exempting other religious employers); 26 U.S.C. § 5000A(d)(2)(A),(B),(ii)&(2)(B)(i) (exempting certain religious sects that object to insurance). “[A] law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Id. The Hobby Lobby court’s conclusion compels the same result here.
Nor can Defendants plausibly claim that crushing the Plaintiffs with fines is the least restrictive means of meeting a compelling need for contraceptive access. Defendants have publicly acknowledged that “birth control … is the most commonly taken drug in America by young and middle-aged women” and that “contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.”6 These services are widely available because the
6 Statement by U.S. Dep’t of Health & Human Servs. Secretary Kathleen Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (Oct. 21, 2012). Statements on government websites are admissions under Fed. R. of Evid. 801(d)(2)(A) and are self-authenticating under Fed. R. of Evid. 902(5).
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federal government has constructed an extensive funding network designed to increase contraceptive access, education, and use, including requested spending of almost $300 million in fiscal year 2013 to provide contraceptives directly through Title X funding.7
Such alternative means of addressing the claimed interest doom the Mandate. See, e.g., U.S. v. Hardman, 297 F.3d 1116, 1130 (10th Cir. 2002) (explaining that, under strict scrutiny, government must “demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights”) (quoting Sherbert v. Verner, 374 U.S. 398, 407 (1963)) (emphasis in original). In addition to such direct provision, Defendants could: allay the costs of the drugs through individual subsidies, reimbursements, tax credits or tax deductions; empower other willing actors to deliver the drugs and to sponsor education about them; or use their own healthcare exchanges to offer coverage they believe is needed, rather than forcing the Plaintiffs to do it for them. Because Defendants have not employed feasible, less restrictive alternatives instead of burdening religious objectors, the Mandate violates RFRA. See, e.g., Newland, 881 F. Supp. 2d at 129; see also Grutter v. Bollinger, 539 U.S. 306, 339 (2003) (narrow tailoring requires “serious, good faith consideration of workable . . . alternatives”).
7 See Department of Health and Human Services, Announcement of Anticipated Availability of Funds for Family Planning Services Grants, available at http://www.hhs.gov/opa/pdfs/fy-13-services-announcement.pdf at 9 (last visited Oct. 21, 2013) (announcing that “[t]he President[’]s Budget for Fiscal Year (FY) 2013 requests approximately $297 million for the Title X Family Planning Program”).
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In sum, Plaintiffs are likely to prevail on their claim that the Mandate violates RFRA. See Hobby Lobby, 723 F.3d at 1137-1145; Newland, 2013 WL 5481997, at *2-3; Briscoe, 2013 WL 4781711, at *4; Armstrong, 2013 WL 4757949, at *1.
B. The Mandate Violates the First Amendment’s Religion Clauses The Mandate’s second-class treatment of Reaching Souls and Truett-McConnell also violates the First Amendment. While the government has exempted other religious objectors from the Mandate (primarily, churches and their “integrated auxiliaries”) it has refused to exempt the Plaintiffs and class members, even though they are engaged in the exact same religious exercise—and seek the exact same relief—as those preferred religious organizations the government has chosen to exempt. To put the matter bluntly: if these class members simply handed their ministry over to a church, to be funded and controlled directly by that church, the government would exempt them entirely. But because these class members instead fund, operate, and control their ministries themselves—in compliance with the long-held religious views of the Southern Baptist Convention regarding the sanctity of life—they face millions of dollars in fines. The Free Exercise and Establishment Clauses prohibit the government from making such “explicit and deliberate distinctions between different religious organizations.” Larson v. Valente, 456 U.S. 228, 246 n.23 (1982) (striking down laws that created differential treatment between “well-established churches” and “churches which are new and lacking in a constituency”). By preferring church-run organizations to other types of religious groups, the Mandate inappropriately “interfer[es] with an internal . . . decision that affects the faith and mission” of a religious organization, Hosanna-
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Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 707 (2012), and engages in “discrimination . . . expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations[.]” Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008) (McConnell, J.) (applying Larson to invalidate distinction between “sectarian” and “pervasively sectarian” organizations). Such discrimination is forbidden by the Religion Clauses.
The Mandate runs afoul of the First Amendment in another way as well. By only exempting churches, religious orders, and non-profit religious organizations that receive at least 50% of their funding from a church or denomination and thus qualify as "integrated auxiliaries," the government is drawing the kind of "explicit and deliberate distinctions between different religious organizations" that Larson condemned. 456 U.S. at 246 n.23. Unlike Roman Catholics, Episcopalians, and other hierarchal churches, Southern Baptists are “congregational churches in which each local congregation is autonomous.” Lutheran Soc. Serv. of Minn. v. United States, 758 F.2d 1283, 1288 (8th Cir. 1985). This autonomy naturally leads in many cases to financial and institutional autonomy. Whether a religious organization is exempt from the Mandate because it is an “integrated auxiliary” can turn in many cases on small differences in the organization’s funding sources. Organizations affiliated with hierarchal churches, with their greater number of affiliates and the ability of religious organizations to direct subordinate organizations—unlike Southern Baptist organizations—are more likely to meet the “internally supported” requirement for integrated auxiliaries. Thus, the Mandate has the
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effect of discriminating against religious organizations affiliated with non-hierarchal faiths like the Southern Baptists.
Defendants do not deny that they have engaged in this type of discrimination. Instead, they explained in the final regulations that they made assumptions about the likely religious beliefs of people who work for religious organizations like the Plaintiffs:
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. 78 Fed. Reg. at 39874 (emphases added). Defendants cite no factual authority for this assumption. Plaintiffs have explicitly religious missions to which their employees subscribe, Ex. 1 ¶ 6; Ex. 2 ¶¶ 3-4; Ex. 3 ¶¶ 3-5, and there is no reason to believe Plaintiffs’ employees are less likely to share their religious beliefs. And Defendants cite no legal authority for the proposition that the government is permitted to discriminate among different religious institutions, giving religious liberty to some and not to others, based on government predictions about the religious beliefs of individuals who work for various ministries. The government has no power to do so. See Weaver, 534 F.3d at 1259 (noting that distinguishing religious organizations based on their internal religious characteristics is “even more problematic than the Minnesota law invalidated in Larson” and that government cannot engage in such “discrimination . . . expressly based on the degree of religiosity of the institution and the extent to which that religiosity affects its operations[.]”).
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C. The Mandate Violates the Free Speech Clause. The First Amendment protects Plaintiffs’ rights to be free from governmentally compelled speech or silence. See Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 796-97 (1988) (“[T]he First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not to say.”). The Mandate violates both rights. The Mandate’s proposed accommodation requires Plaintiffs to make statements that will trigger payments for the use of contraceptive and abortion-inducing drugs and devices, and for “education and counseling” about using such products. Ex. 1 ¶ 45; Ex. 2 ¶ 20; Ex. 3 ¶ 22; 29 C.F.R. § 2590.715-2713A (b)(2), (c)(2). This would compel Plaintiffs to engage in speech they wish to avoid: speech facilitating a message and activities that contradict their public witness to their religious faith. The Mandate also expressly prohibits the Plaintiffs from engaging in speech with a particular content and viewpoint: they are barred by federal law from talking to a third party administrator and encouraging them not to provide contraceptive and abortion-inducing drugs and devices. See 29 C.F.R. § 2590.715-2713A (“must not, directly or indirectly, seek to influence the third party administrator’s decision to make any such arrangements”). Each violation—compelled speech and compelled silence—triggers strict scrutiny, TBS, Inc. v. FCC, 512 U.S. 624, 642 (1994), which the Mandate fails for the reasons discussed above. See also Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331 (2013) (rejecting forced speech requirement even for recipients of
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government funds because it would render grantees able to express contrary beliefs “only at the price of evident hypocrisy”). II. IRREPARABLE HARM
The impending violation of Plaintiffs’ rights under RFRA satisfies the irreparable harm factor. See Hobby Lobby, 723 F.3d at 1146; Armstrong, 2013 WL 5213640 *3 (D. Colo. Sept. 17, 2013); Newland, 881 F. Supp. 2d at 1294 (noting “it is well-established that the potential violation of Plaintiffs' constitutional and RFRA rights threatens irreparable harm”) (citation omitted); see also Kikumura, 242 F.3d at 963.
The disruptions occasioned by this impending deadline are occurring now. Plaintiffs face the certain prospect of violating the mandate in less than three months’ time—by January 1, 2014—and incurring steep penalties before a decision on the merits. See Newland, 881 F. Supp. 2d at 1294. Plaintiffs must: establish the structure and coverage provisions in advance of the 2014 plan year; make changes to the plan documentation and provide written notice of any material changes at least 60 days’ in advance of the change; and coordinate with any third party administrators. As the Newland court found, Plaintiffs are confronted with imminent irreparable harm absent injunctive relief “[i]n light of the extensive planning involved in preparing and providing its employee insurance plan, and the uncertainty that this matter will be resolved before the coverage effective date.” Newland, 881 F. Supp. 2d at 1294-95. III. THE BALANCE OF EQUITIES TIPS IN PLAINTIFFS' FAVOR
The balance of equities tips strongly in favor of Plaintiffs. The Tenth Circuit has recognized the considerable importance of an entity’s religious liberty interests, and that
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the Defendants’ interest in enforcing the Mandate in this context is not compelling. See Hobby Lobby, 723 F.3d at 1143-44, 1145-46; Newland, 2013 WL 5481997, *3; Newland, 881 F. Supp. 2d at 1295. As the Tenth Circuit acknowledged, Plaintiffs have a Hobson’s choice between catastrophic fines or facing pressure to violate one’s religious beliefs. See Hobby Lobby, 723 F.3d at 1146-47.
In contrast, Defendants have already exempted churches and certain church-related entities from the mandate, exempted smaller employers, and given many non-religious employers an open-ended exemption in the form of grandfathering. Given that these exemptions apply to tens of millions of people, preventing Defendants from enforcing the mandate against Plaintiffs would not “substantially injure” Defendants. See Newland, 881 F. Supp. 2d at 1295. Granting a preliminary injunction will merely preserve the status quo, and any minimal harm in temporarily foregoing enforcement of the Mandate “pales in comparison to the possible infringement upon Plaintiffs’ constitutional and statutory rights.” Newland, 881 F. Supp. 2d at 1295; Hobby Lobby, 723 F.3d at 1141. IV. A PRELIMINARY INJUNCTION IS IN THE PUBLIC INTEREST
“[T]here is a strong public interest in the free exercise of religion even where that interest may conflict with [another statutory scheme] . . . .” Newland, 881 F. Supp. 2d at 1295 (quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1010 (10th Cir. 2004) (en banc)). Indeed, “it is always in the public interest to prevent the violation of a party’s constitutional rights” which are implicated by RFRA. See Briscoe, 2013 WL 4781711 at *5; Hobby Lobby, 723 F.3d at 1147. The public interest in enforcing a fundamental right outweighs the interest in immediate enforcement
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of a new law that creates a “substantial expansion of employer obligations” and raises “concerns and issues not previously confronted.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1296 (W.D. Okla. Nov. 19, 2012); see also Newland, 881 F. Supp. 2d at 1295; Armstrong, 2013 WL 5213640, at *4. This is particularly true where the government has created numerous exceptions to enforcement of the statute. See Newland, 881 F. Supp. 2d at 1295; Hobby Lobby, 723 F.3d at 1143-44. V. PRELIMINARY INJUNCTION THAT BENEFITS THE ENTIRE CLASS
Plaintiffs seek a preliminary injunction that will benefit the entire class. The scope of preliminary injunctive relief depends on the scope of the harm to be prevented during the pendency of the matter. See O Centro Espirita, 389 F.3d at 977 (explaining that “[t]he underlying purpose of the preliminary injunction is to preserve the relative positions of the parties until a trial on the merits can be held”). In this case, that harm is the impermissible government pressure to give up the religious exercise of providing, administering, and offering a health benefits plan consistent with Plaintiffs’ faith.
Plaintiffs therefore request injunctive relief that maintains the status quo pending final resolution of the case. That status quo is the provision of health benefits that complies with Plaintiffs’ faith, but without facing the enormous financial losses threatened by the Mandate. For Reaching Souls and Truett-McConnell, this requires an injunction permitting them to continue participation in the GuideStone Plan, and forbidding any application of the Mandate against them for that religious exercise. For GuideStone, preserving the status quo requires an injunction permitting it to continue offering the GuideStone Plan to all class members without facilitating access to the
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products and services at issue, and without risk of penalty to participants in the
GuideStone Plan. A preliminary injunction allowing GuideStone to continue offering its
plan—and allowing employers to continue using it—is necessary to spare GuideStone
from the illegal coercion imposed by the Mandate and described above.
The benefits of the injunction extend beyond the named plaintiffs to encompass all
class members. But the court does not need to certify the proposed class now to provide
adequate preliminary injunctive relief for the upcoming plan year. The Tenth Circuit has
recognized that class certification is unnecessary if all class members will benefit from an
injunction issued on behalf of the named plaintiffs. See Kansas Health Care Assoc. v.
Kansas Dept. of Soc. & Rehab. Servs., 31 F.3d 1536, 1548 (10th Cir. 1994).8
8 See also 7B C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1785.2 (1986 & Supp. 1994); Ill. League of Advocates v. Ill. Dept. of Human Servs., 13C-1300, 2013 WL 3287145, at *3 (N.D. Ill. June 28, 2013) (holding that (1) “[d]istrict courts have the power to order injunctive relief covering potential class members prior to class certification” under their general equity powers; and (2) “[t]he lack of formal class certification does not create an obstacle to classwide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.”) (citing 3 Newberg on Class Actions § 9:45 (4th ed. 2002)). Other circuits have similarly held that a broad injunction can be entered affecting unnamed parties prior to class certification if it would be necessary to give the named plaintiff effective relief. See Washington v. Reno, 35 F.3d 1093, 1103-04 (6th Cir. 1994) (upholding a nationwide injunction because it found that “the appropriate relief to be granted to the plaintiffs on their Commissary Fund claim necessarily implicate[d] nationwide relief” and would otherwise be “illusory”); see, e.g. Richmond Tenants Org. v. Kemp, 956 F.2d 1300, 1304-05, 1308-09 (4th Cir. 1992) (holding that an injunction prohibiting the eviction of public housing tenants beyond the named plaintiff without notice and a hearing was appropriate against government entities); Bresgal v. Brock, 843 F.2d 1163, 1165, 1169-71 (9th Cir. 1987) (finding that class-wide relief may be appropriate even in an individual action and that “[t]here is no general requirement that an injunction affect only the parties in the suit.”); Doe v. Rumsfeld, 341 F. Supp. 2d 1, 19 (D.D.C. 2004) (issuing a permanent injunction enjoining the Department of Defense from inoculating employees with the anthrax vaccine without the employees’ consent); cf. Mainstream Mktg. Servs., Inc. v. Fed. Trade
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A good example of this kind of injunction in a RFRA case is Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 (2006). A church, its officers, and some of its members sought relief under RFRA to end the enforcement of importation restrictions on hoasca, a sacramental tea. The preliminary injunctive relief granted by the district court and affirmed by the Supreme Court not only protected the plaintiff church and its members, but also separately protected any other “bona fide participants in [church] ceremonies for religious use of hoasca.” O Centro Espirita Beneficiente Unaio Do Vegetal v. Ashcroft, No. CV 00-1647, Document 100 (D.N.M. Nov. 13, 2002) (attached as Ex. 4). So, too, the named Plaintiffs here should receive an injunction prohibiting enforcement of the Mandate not only against them individually, but also against all other participants in the same church plan.
The only way to provide effective relief for GuideStone would be to enjoin enforcement of the Mandate with respect to all class members. The Mandate has provided Plaintiffs with a stark choice: (a) violate their religious beliefs by including this coverage in their health plans or involving the health plans’ third-party administrators in doing so; or (b) oppose the Mandate and have the employers that remain in the plan incur devastating fines in the nature of $187,756,000 per year. Under either scenario, GuideStone is compromised in its ability to carry out its ministry assignment to provide health benefits in accordance with Southern Baptist teachings and will lose member
Comm’n, 283 F. Supp. 2d 1151, 1158, 1171 (D. Colo. 2003) (addressing the constitutionality of a do-not-call regulation, the court permanently enjoined the FTC from enforcing the do-not-call list against any telemarketer nationwide), rev’d on other grounds, 358 F.3d 1228 (10th Cir. 2004).
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participation and the $39,088,325 in health payments from employers that are forced to leave the plan. In the alternative, the Court could also certify the class, for the reasons set forth in Plaintiffs’ forthcoming motion for class certification.
CONCLUSION Plaintiffs request a preliminary injunction prohibiting Defendants, their agents, officers, and employees from making any effort to apply or enforce the substantive requirements imposed in 42 U.S.C. § 300gg-13(a)(4) (including, but not limited to, all requirements to provide health benefits for FDA approved contraceptive methods that are or could be abortifacients and related education and counseling (specifically including (1) ella; (2) Plan B, Plan B One-Step, and Next Choice (Levonorgestrel); (3) the Copper IUD; and (4) the IUD with Progestin)), and are enjoined and restrained from pursuing, charging, or assessing penalties, fines, assessments, or any other enforcement actions for noncompliance related thereto, including those found in 26 U.S.C. §§ 4980D, 4980H, and 29 U.S.C. §§ 1132, 1185d (and including, but not limited to, penalties for failure to offer or facilitate access to contraceptives that are or could be abortifacients and related education and counseling (including (1) ella; (2) Plan B, Plan B One-Step, and Next Choice (Levonorgestrel); (3) the Copper IUD; and (4) the IUD with Progestin)) against Reaching Souls, Truett-McConnell, GuideStone, all non-exempt employer participants in the GuideStone Plan, and all third party administrators for the aforementioned parties as their conduct relates to the GuideStone Plan. Plaintiffs are willing to post a bond in an amount the Court deems appropriate. FED. R. CIV. P. 65.
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Respectfully submitted this 25th day of October, 2013.

/s/ Jared Giddens Jared D. Giddens Oklahoma Bar No. 3555 jgiddens@cwlaw.com Conner & Winters, LLP 1700 One Leadership Square 211 North Robinson Oklahoma City, OK 73102 Tel: (405) 272-5721 Fax: (405) 232-2695
Mark Rienzi D.C. Bar No. 494336 mrienzi@becketfund.org Adèle Auxier Keim Virginia Bar No. 76476 akeim@becketfund.org Daniel Blomberg Kansas Bar No. 23723 dblomberg@becketfund.org THE BECKET FUND FOR RELIGIOUS LIBERTY 3000 K Street NW, Suite 220 Washington, DC 20007 Tel.: (202) 955-0095 Fax: (202) 955-0090

Carl C. Scherz Oklahoma No. 20420 cscherz@lockelord.com Seth Roberts Texas Bar No. 24051255 sroberts@lockelord.com Locke Lord LLP 2200 Ross Avenue, Suite 2200 Dallas, TX 75201 Tel.: (214) 740-8583 Fax: (214) 756-8583

COUNSEL FOR PLAINTIFFS

REACHING

SOULS

INTERNATIONAL, INC., TRUETT-

MCCONNELL COLLEGE, INC., AND

GUIDESTONE

FINANCIAL

RESOURCES OF THE SOUTHERN

BAPTIST CONVENTION

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Case 5:13-cv-01092-D Document 7 Filed 10/25/13 Page 34 of 34

CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was filed through the Court's ECF filing system on October 25, 2013, and that a copy was served via first-class mail, postage prepaid, on the following:

Eric Holder United States Attorney General 950 Pennsylvania Ave. NW Washington, DC 20530
Ben Berwick Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue NW, Room 7219 Washington, DC 20530

_ /s/ Jared Giddens

CERTIFICATE OF CONFERENCE
I hereby certify that Mark Rienzi conferred with Ben Berwick, with the Department of Justice, on behalf of Defendants on October 25, 2013, and Mr. Berwick indicated that Defendants would be opposed to the relief requested herein.
_ /s/ Jared Giddens

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 Case 5:13-cv-01092-D Document 59 Filed 12/06/13 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

_____________________________________

)

REACHING SOULS INTERNATIONAL, )

INC., et al.,

)

)

Plaintiffs,

)

)

v.

) Case No. 5:13-cv-1092-D

)

KATHLEEN SEBELIUS, in her official

)

capacity as the Secretary of the United States )

Department of Health and Human

)

Services, et al. et al.,

)

)

Defendants.

)

______________________________________ )

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

Case 5:13-cv-01092-D Document 59 Filed 12/06/13 Page 2 of 33
TABLE CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION .....................................................................................................1 REPLY TO PLAINTIFFS’ “PRELIMINARY STATEMENT” CONCERNING DEFENDANTS’ STATEMENT OF MATERIAL FACTS ..........2 RESPONSE TO PLAINTIFFS’ STATEMENT OF ADDITIONAL FACTS ..........4 ARGUMENT ...........................................................................................................10 I. PLAINTIFFS LACK STANDING TO CHALLENGE
THE REGULATIONS ..................................................................................10 II. THE REGULATIONS DO NOT VIOLATE RFRA ....................................13 III. THE REGULATIONS DO NOT VIOLATE THE FREE
EXERCISE CLAUSE....................................................................................15 IV. THE REGULATIONS DO NOT VIOLATE THE
ESTABLISHMENT CLAUSE, THE DUE PROCESS CLAUSE, OR THE EQUAL PROTECTION CLAUSE ...............................................17 V. THE REGULATIONS DO NOT VIOLATE THE RIGHT TO FREE SPEECH OR EXPRESSIVE ASSOCIATION .............................................19 VI. THE REGULATIONS DO NOT VIOLATE THE APA ..............................21 CONCLUSION ........................................................................................................24
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TABLE OF AUTHORITIES
CASES
Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010) .....................................................................15
Adair v. El Pueblo Boys’ & Girls’ Ranch, Inc., 2008 WL 792031 (D. Colo. Mar. 20, 2008)....................................................3
Auer v. Robbins, 519 U.S. 452 (1997).......................................................................................13
Autocam Corp. v. Sebelius, 2012 WL 6845677 (W.D. Mich. Dec. 24, 2012)...........................................17
Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004) .....................................................................17
Banner Health v. Sebelius, 2013 WL 2112169 (D.D.C. May 16, 2013) ....................................................4
Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).......................................................................................21
Camp v. Pitts, 411 U.S. 138 (1973).........................................................................................3
Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871 (2011).....................................................................................13
Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (8th Cir. 2000) ......................................................................18
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013)...................................................................................12
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Conestoga Wood Specialties Corp. v. Sebelius, 917 F. Supp. 2d 394 (E.D. Pa. 2013).......................................................14, 16
Dolan v. U.S. Postal Service, 546 U.S. 481 (2006).......................................................................................13
Emp’t Div. v. Smith, 494 U.S. 872 (1990).......................................................................................17
Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976).......................................................................................24
Garner v. Kennedy, 713 F.3d 237 (5th Cir. 2013) .........................................................................15
Gilardi v. HHS, 2013 WL 5854246 (D.C. Cir. Nov. 1, 2013).................................................15
Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1 (1st Cir. 2011)..............................................................................19
Grote Indus., LLC v. Sebelius, 914 F. Supp. 2d 943 (S.D. Ind. 2012)............................................................16
Hill v. ITT Federal Servs. Int’l Corp., 2007 WL 951125 (D. Colo. Mar. 27, 2007)............................................17, 20
Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) .....................................................................15
Hoctor v. Dep’t of Agric., 82 F.3d 165 (7th Cir. 1996) .....................................................................23, 24
Korte v. Sebelius, 2013 WL 5960692 (7th Cir. Nov. 8, 2013) ...................................................15
Larson v. Valente, 456 U.S. 228 (1982).......................................................................................18
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Living Water Church of God v. Charter Twp. Of Meridian, 258 Fed. App’x 729 (6th Cir. 2007) ..............................................................14
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).......................................................................................12
Miller v. City of Cincinnati, 622 F.3d 524 (6th Cir. 2010) .........................................................................21
Mission Grp. Kansas, Inc. v. Riley, 146 F.3d 775 (10th Cir. 1998) .......................................................................23
N. Laramie Range Alliance v. FERC, 733 F.3d 1030 (10th Cir. 2013) .....................................................................12
Nova Health Sys. v. Gandy, 416 F.3d 1149 (10th Cir. 2005) .....................................................................11
O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149 (E.D. Mo. 2012) ...............................................3, 16, 17
Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1 (D.D.C. 2006).....................................................................4
Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989) .......................................................................21
Raines v. Byrd, 521 U.S. 811 (1997).......................................................................................12
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).......................................................................................21
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007).........................................................................................3
United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963)........................................................................................ 9
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Wildearth Guardians v. U.S. Forest Serv., 713 F. Supp. 2d 1243 (D. Colo. 2010) ............................................................4
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001).......................................................................................24
Zubik v. Sebelius, 2013 WL 618696 (W.D. Pa. Nov. 21, 2013).................................................15
FEDERAL STATUTES 5 U.S.C. § 551(4) .....................................................................................................23 5 U.S.C. § 706 ...........................................................................................................3 26 U.S.C. § 4980D .....................................................................................................8 26 U.S.C. § 4980D(b) ................................................................................................8 26 U.S.C. § 4980H(c)(2)............................................................................................8 29 U.S.C. § 1003(b)(2).......................................................................................11, 13 42 U.S.C. § 300gg-13(a) ............................................................................................8
FEDERAL REGULATIONS 45 C.F.R. § 46.202(f) .................................................................................................5 62 Fed. Reg. 8610 (Feb. 25, 1997) ............................................................................5 75 Fed. Reg. 34,538 (June 17, 2010) .........................................................................8 78 Fed. Reg. 39,870 (July 2, 2013).................................................................. passim 78 Fed. Reg. 8456 (Feb. 6, 2013) ............................................................................10
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LEGISLATIVE MATERIAL 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002) ......................................24
MISCELLANEOUS INST. OF MED., CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (2011) ...................................................................................5, 22
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INTRODUCTION Defendants made clear in their m otion that the regulations plaintiffs challenge do not require the third-party administrator (TPA) of a self-insured church plan, like plaintiff GuideStone Financial Resources of the Sout hern Baptist Convention (“GuideStone” or the “GuideStone Plan”), to make payments for contraceptive services for participants and beneficiaries in the plan. Plaintiffs nonetheless argue th at their r eligious exercise is substantially burdened by the regula tions. It is worth ref lecting on this claim. Reaching Souls and Truett-McConnell (and any other eligible organization that participates in the GuideStone Plan)—the “employer plaintiffs”—need only self-certify that they are nonprofit religious organ izations with a religi ous objection to pro viding contraceptive coverage—a statement that th ey have repeatedly made in this litigation and elsewhere and that is entirel y consistent with their religious beliefs—to be relieved of that requirement. Furthermore, no T PA of the GuideStone Plan will be required to provide contraceptive coverage to pla n participants and beneficiaries. And yet, somehow, plaintiffs contend not onl y that they are inju red by this regulatory scheme—which they are not—but also that it amounts to a substantial burden on their religious exercise. This claim is simply implausible. Plaintiffs’ opposition confirms that they are fighting an invisible dragon. Plaintiffs assert that signing the self-certification authorizes their TPA to make payments for contraceptive services for participants and beneficiaries of the GuideStone Plan. But it does no such thing. Be cause GuideStone is a self -insured church pla n, its TPAs are not required by the regul ations to make payments for contraceptive services f or plan participants and beneficiaries. Plaintiffs, moreover, may inform their TPAs that the y are not required by the regulations to make such payments. Furthermore, the self-certification
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form explicitly states that, “on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be cov ered.” Ex. 2 -C, ECF No. 56 -2. Plaintiffs therefore suffer no legall y cognizable injury as a result of the challenged regulations and, in any event, state no valid legal claim. Accordingly, this case should be dismissed or summary judgment granted in favor of defendants.
REPLY TO PLAINTIFFS’ “PRELIMINARY STATEMENT” CONCERNING DEFENDANTS’ STATEMENT OF MATERIAL FACTS
Defendants do not und erstand the Local Rules to contemplate replies to responses to statements of material fact in support of summary judgment. See LCvR 56.1. Therefore, defendants do not address plain tiffs’ individual respo nses to def endants’ statements of fact. However, plaintiffs make several arguments in their “preliminary statement” in response to def endants’ statements of fact. See Pls.’ Combined Reply in Supp. of Prelim. Inj. & Opp’n to Def s.’ Mot. to Dis miss & Mot. for Summ. J. (“Pls.’ Opp’n”) at 2-3, ECF No. 56. Defendants hereby respond to those arguments.
Plaintiffs assert, as a threshold matter, that defendants’ motion to dismiss or, in the alternative, for summary judgment, should be convert ed entirely into a motion for summary judgment and then be deferred as premature. See Pls.’ Opp’n at 43-44. But plaintiffs offer no compelling ju stification for their re quest. Defendants have moved to dismiss all of plaintiffs’ claims f or lack of jurisdiction and f ailure to state a claim upon which relief may be granted; defendants seek summary judgment only in the alternative and only “[t]o the extent the Court must consider the administrative record.” Defs.’ Mot. to Dismiss or, in the Alternative, for Summ. J. & Mem. in Supp. (“Defs.’ Mot.”) at 15-16, ECF No. 51 (emphasis added). Virtually all of defendants’ arguments rely only on the pleadings, documents incorporated by reference into th e complaint, and j udicially
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noticeable matters—all of which the Court may consider in reviewing defendants’ motion to dismiss. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); see also, e.g., O’Brien v. U.S. Dep’t of Health & Human Servs., 894 F. Supp. 2d 1149 (E.D. Mo. 2012) (dismissing similar claims on Rule 12(b)(1) and (6) motion), appeal pending, No. 12-3357 (8th Cir.) . Therefore, the Co urt need not consid er the administrative record to dismiss each of plaintiffs’ claims,1 and no discovery is required for the Court to deter mine whether each of plaintiffs’ claims withstands dismissal, nor— for that matter—to resolve any of plaintiffs’ claims.
Moreover, plaintiffs’ general assertion that the government cannot rely on the administrative record for purposes of seeking summary judgment in defense of an agency rulemaking, see Pls.’ Opp’n at 2, is incorrect. Plaintiffs challenge regulations that are the product of agency rulemaking governed by the Ad ministrative Procedure Act (APA). Judicial review of such challenges should be limited to the administrative record, see, e.g., Camp v . Pitts, 411 U.S. 138, 142 (1973); 5 U.S .C. § 706, w hich contains a ll nonprivileged information that the agencies considered in promulgating the new regulations. The government routinely relies upon, and courts routinely review, administrative record materials for purposes of summary judgment of constitutional and statutory claims in the context of challenges to agency rulemaking. “Under Plaintiff’s evidentiary analysis, courts would never be able to analyze the a dministrative record because such record always consists of . . . out of court statements. Plaintiff’s hearsay arguments are thus inapposite.” Adair v. El Pueblo Boys’ & Girls’ Ranch, Inc. , 2008 WL 792031, *9 (D. Colo. Mar. 20, 2008).
1 Furthermore, the possibility that the Court will disagree, and will ev entually rely on the administrative record to resolve a particular claim, is not grounds for converting defendants’ motion entirely into one for summary judgment.
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Defendants also oppose plaintiffs’ Rule 56(d) motion and will file a memorandum in opposition to that motion no later than December 13, 2013, f ully explaining why discovery is not warranted in this case. At this point, i n response to plaintiffs’ suggestion that the ad ministrative record may not be co mplete or acc urate, see Pls.’ Opp’n at 2 -3, defendants merely note that “absent clear evi dence to the contrar y, an agency is entitled to a strong presumption of regularity, that it properly designated the administrative record.” Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 5 (D.D. C. 2006) (citations o mitted); see also Wildearth Guardians v. U. S. Forest Serv., 713 F. Supp. 2d 1243, 12 54 (D. Colo. 2010) (“A party attempting to convince a reviewing court to e xpand the scope of its review properly bears a sizeable burden if it is to convince the court to forego the customary deference owned an agency’s determination of what constitutes t he record.”). Moreover, although the Depart ment of Health and Hu man Services (“HHS”) regu larly files certifications with ad ministrative records as a matter of practice, there is no legal requirement that an administrative record be certified at all, much less that the individual certifying the administrative record have personal knowledge of everyone involved in considering, formulating, or reviewing a regulation or ad ministrative decision, or tha t the individual have personally reviewed every document related to the rules’ p romulgation. See Banner Health v. Sebelius, 2013 WL 2112169, *11 (D.D.C. May 16, 2013).
RESPONSE TO PLAINTIFFS’ STATEMENT OF ADDITIONAL FACTS 1-2. Undisputed 3. Defendants dispute this paragraph to the extent it su ggests that the
regulations require coverage of abortifacients or abortion-inducing drugs. The challenged regulations do not req uire coverage of abortion or abortif acients. See HRSA Guidelines,
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AR at 283-84; IOM REP. at 22, AR at 320 (recognizing that abortion services are outside the scope of recommendations); HealthCare.gov, Affordable Care Act Ru les on Expanding Access to Preventive Services for Women (August 1, 2011), available at http://www.hhs.gov/healthcare/facts/factsheets/2011/08/ womensprevention08012008a.html; see also Prescription Drug Products; Certain Combined Oral Contra for Use as Postcoita l 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 ad verse effect on an establi shed pregnancy”); 45 C.F.R. § 46. 202(f) (“Pregnancy encompasses the period of time from implantation until delivery.”).
In any event, plaintiffs’ characterization of certain contraceptives as abortifacients or abortion-inducing drugs is not material to the resolution of this case. Plaintiffs object to providing cover age of certain FDA -approved contraceptive methods. The precise reasons for plaintiffs’ objection are immaterial.
4-8. Undisputed. 9. This paragraph is disputed and immaterial to the extent it sugges ts that the regulations require coverage of abortifacients or abortion-inducing drugs. See Resp. to ¶ 3. 10. Disputed to t he extent plaintiffs claim to “facilitate” coverage for contraceptive services, as this is simply plaintiffs’ characterization of what the challenged regulations require. Defendants explain in the Argument section of this brief why plaintiffs’ characterization is incorrect. This p aragraph is also disput ed and immaterial to the extent it suggests that the regulations require coverage of abortifacients or abortioninducing drugs. See Resp. to ¶ 3.
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11. This paragraph is disputed and immaterial to the extent it sugges ts that the regulations require coverage of abortifacients or abortion-inducing drugs. See Resp. to ¶ 3.
12. Undisputed. 13. Disputed to t he extent plaintiffs claim the regulations require them to “distribute, encourage, facilitate, and/or reduce the cost of ” coverage f or contraceptive services, as this is s imply plaintiffs’ characterization of what the challenged regulations require. Defendants explain in the Argument section of this b rief why plaintiffs’ characterization is incorrect. This paragraph is also disputed and immaterial to the extent it suggests that the re gulations require coverage of abortifacients or abortion-inducing drugs. See Resp. to ¶ 3. 14. Disputed. Defendants explain in the Argument section of this bri ef why plaintiffs’ characterization of the challenged regulations is incorrect. 15. Disputed to the extent plaintiffs claim to “participate” in a scheme to provide coverage for contraceptive services, as this is si mply plaintiffs’ characterization of what the challenge d regulations require. Defendants explain in the Argument section of this brief why plaintiffs’ characterization is incorrect. 16. Undisputed but incomplete. The self-certification form speaks for itself. As defendants have explained repeatedly, the regulations do not require the TPAs of selfinsured church pl ans, like the GuideStone Plan, to provide or ar range payments for contraceptive services for plan participants and beneficiaries. 17. Disputed to th e extent plaintiffs claim that the regulations make them “complicit in a scheme” to provide coverage for contraceptive services, as this is simply plaintiffs’ characterization of what the challenged regulations require. Defendants explain
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in the Argu ment section of this brief why plaintiffs’ characterization is incorrec t. This paragraph is also di sputed and i mmaterial to the extent it suggests that the regulations require coverage of abortifacients or abortion-inducing drugs. See Resp. to ¶ 3.
18. This paragraph consists of plaintiffs’ description and characterization of a provision of law. The provision s peaks for itself. This paragraph is also dispu ted and immaterial to the extent it suggests that the re gulations require coverage of abortifacients or abortion-inducing drugs. See Resp. to ¶ 3.
19. Disputed and u nsupported. Plaintiffs claim that Highmark has suggested that it would f orego providing suc h payments if it received an inde mnification from GuideStone. Ormont Decl. ¶ 4, ECF No. 56-1. However, the Exhibit attached to th e relevant Declaration provides no support f or this assertion. Moreover, even if Highmark did intend to provide separate pa yments for contraceptive services absent an indemnification, this would suggest that the TPA believes that it i s legally obligated to provide such payments. As defendants have explained, that is not the case.
20. Disputed to t he extent plaintiffs claim the regulations require them to “provide,” “authorize,” or “participat[ e] in” the provision of contraceptive coverage, as this is si mply plaintiffs’ characterization of what the chall enged regulations r equire. Defendants explain in the Argument section of this brief why plaintiffs’ characterization is incorrect.
21. Disputed. This paragraph consists largely of plaintiffs’ characterization of what the cha llenged regulations require. Defendants explain in th e Argument section of this brief why plaintiffs’ characterization is incorrect. This paragraph is also disputed and immaterial to the extent it suggests that the re gulations require coverage of abortifacients or abortion-inducing drugs. See Resp. to ¶ 3.
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22. Disputed. The tax described in 26 U.S.C. § 49 80D applies at a rate o f $100 per day “with respect to each ind ividual to whom such failure relates.” 26 U.S.C. § 4980D(b).
23. Disputed. The tax described in 26 U.S.C. § 49 80D applies at a rate o f $100 per day “with respect to each ind ividual to whom such failure relates.” 26 U.S.C. § 4980D(b).
24. Disputed. The tax described in 26 U.S.C. § 4980D applies at a rate of $100 per day “with respect to each ind ividual to whom such failure relates.” 26 U.S.C. § 4980D(b). The “losses” asserted b y GuideStone are specu lative because, as def endants have explained, the regulations do not require the TPAs of self-insured church plans, like the GuideStone Plan, to provide or ar range payments for contraceptive services for plan participants and beneficiaries.
25. Defendants do not di spute that the government made the projections for 2011 and 2013 t o which plaintiffs refer. Defendants note that a majority of group health plans will have lost the ir grandfather status by the end of 2013. See 75 Fed. Reg. 34,538, 34,552 (June 17, 2010); see also Kaiser Family Foundation and Health Research & Educational Trust, Employer Health Benefits 2012 Annua l Survey at 7-8, 190, A R at 663-64, 846 (indicating that 58 percent of firms had at least one grandfathered health plan in 2012, down from 72 percent in 201 1, and that 48 percent of covered workers were in grandfathered health plans in 2012, down from 56 percent in 2011).
26. Defendants do not dispute the government estimates to which plaintiffs refer. Defendants note that 26 U.S.C. § 498 0H(c)(2) does not exe mpt small employers from the preventive services coverage regulations. See 42 U.S.C. § 300gg-13(a); 78 Fed. Reg. 39,870, 39,887 n.49 (July 2, 2013), AR at 19 . Like large businesses, non-exempt,
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non-accommodated small businesses that offer non-grandfathered health co verage to their employees are re quired to provide cove rage for recommended preventive services, including contraceptive services, without cost-sharing. See 78 Fed. Reg. at 39,887 n.49, AR at 19.
27. Defendants object to this paragraph b ecause it relies on material not included in the Administrative Record. The introduction of this extra-record evidence is inappropriate and should not be considered by the Court. Plaintiffs are challenging agency regulations, and thus this Court’s rev iew is li mited to the a dministrative record. See, e.g., United States v. Carlo Bianchi & Co., 373 U.S. 709, 715 (1963). To the extent the Court co nsiders this paragraph despite its reliance on e xtra-record evidence, it is immaterial. Furthermore, plaintiffs’ selective quotation of the S ecretary’s remarks is incomplete and disputed. Defendants refer the Court to the full transcript, which speaks for itself.
28. Defendants do not dis pute that the Churc h Alliance sub mitted comments during the rulemaking process. The comments speak for themselves.
29. Defendants object to this paragraph b ecause it relies on material not included in the Administrative Record. The introduction of this extra-record evidence is inappropriate and should not be considered by the Court. Plaintiffs are challenging agency regulations, and thus this Court’s rev iew is li mited to the a dministrative record. See, e.g., Carlo Bianchi, 373 U.S. at 715. To the extent the Court considers this paragraph despite its r eliance on extra -record evidence, it is i mmaterial. Furthermore, plaintiffs’ selective emphasis of the Secretary’s remarks is disputed. Defendants refer the Court to the full transcript, which speaks for itself.
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Rulemaking is an on going and d ynamic process, and def endants considered comments both as they were submitted throughout the comment period in response to the NPRM, and as they had been submitted in response to the ANPRM. When the Secretary spoke, she was reflecting where defendants’ process was at the time—informed by all the comments defendants had received and considered, including the approximately 200,000 comments defendants had received and considered even before the NPRM was issued, 78 Fed. Reg. 8456, 8459 (Feb. 6, 2013), AR at 168. Moreover, plaintiffs’ assertion that the outcome of the rule making was pre determined is belied b y a simple comparison of the NPRM and the f inal regulations. The N PRM, for example, pro posed three p ossible approaches for accommodating self-insured group health plans esta blished or maintained by eligible organizations, id. at 8463-8464, AR at 172-73, and t he final regulations represent the selection of one of those approaches—a choice made “after reviewing the comments on the three proposed approaches,” 78 Fed. Reg. at 39,879, AR at 11.
ARGUMENT I. PLAINTIFFS LACK STANDING TO CHALLENGE THE REGULATIONS
Defendants demonstrated in their opening brief that plaintiffs have not alleged an injury sufficient to es tablish standing. The regulations do n ot require the employer plaintiffs to engage in actions that facilitate or trigger payments for contraceptive services by third parties, and neither GuideStone nor its TPAs are required by the regulations to provide or arrange p ayments for contraceptive services f or plan participants and beneficiaries. In short, because Guid eStone is a self -insured church plan, the injuries of which plaintiffs complain—that the regulations somehow require them to facilitate access to contraceptive services or to contract, arran ge, or pay for such services—simply do not exist.
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Plaintiffs maintain that they are injured by signing the self-certification form, which they contend “instructs” their TPAs to provide separate payments for contraceptive services. Pls.’ Opp’n at 20. But it does just the opposite. The se lf-certification form expressly states that, “on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.” Ex. 2-C, ECF No. 56-2. And the government has made clear that the regulations do n ot require the GuideStone Plan or any TPA of the Plan to make payments for contraceptive services for plan participan ts and beneficiaries. That is because the government’s authority to require TPAs to make such payments derives from ERISA, 78 Fed. R eg. at 39,879-39,880, AR at 11-12, and church p lans are specif ically excluded from regulation under ERISA, 29 U.S.C. § 1003(b)(2).
In response to this argument, plaintiffs contend tha t “[a]t least one of GuideStone’s TPAs ha s stated an intention to provide these pa yments upon receipt of a self-certification.” Pls.’ Opp’n at 20 (citing O rmont Decl. ¶¶ 4-5, ECF No. 56-1). As an initial matter, this assertion is not supported by the email cited by plaintiffs’ declarant. Furthermore, that evidentiary issue aside, this particular TPA—Highmark Inc.—has suggested that it wo uld forego providing such payments if it received an inde mnification from GuideStone. Ormont Decl. ¶ 4. Thus, GuideStone itself could take action to avoid the alleged injury. See, e.g., Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 n.8 (10th Cir. 2005). Moreover, Highmark’s alleged intention to provide separate payments for contraceptive services absent an indemnification suggests that the TPA believes that it is legally obligated to provide such payments. As defendants have explained, that is not the case. Highmark’s misunderstanding of the law does not pr ovide plaintiffs with standing, as any alleged injury that results from such misunderstanding is not traceable to the
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challenged regulations, but is instead the result of a third party’s erroneous interpretation of those regulations. See, e.g., N. Laramie Range Alliance v. FERC, 733 F.3d 1030, 1035 (10th Cir. 2013).
Plaintiffs, therefore, have not sh own—as it is their b urden to do—that their signing of the self-certification instructs their TPA to do a nything or that their T PA will provide payments for contraceptive services absent any legal requirement to do so. Because plaintiffs do not assert that m erely signing the self-certification—aside from its purported consequences, which defendants have shown are not consequences at al l— constitutes the “i nvasion of a legally protected interest ,” plaintiffs lack standing to challenge the regulations. Raines v. Byrd, 521 U.S. 811, 819 (1997) (emphasis added).
Plaintiffs also assert t hat they are i njured because the reg ulations prevent the m from asking their TPA not to provide payments for contraceptive services. Opp’n at 20. But this allegation does not a mount to an “a ctual or i mminent” injury either. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “Nothing in [the 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. Moreover, plaintiffs may inform their TPAs that they are not required by the regulations to make payments for contraceptive services for plan participants and beneficiaries. Plaintiffs make no ef fort in th eir opposition to c ome to grips with these realities or the result—that plaintiffs’ claim that the regulations will affect their speech is f ar too s peculative to e stablish standing. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013).
Lastly, plaintiffs contend that t he regulations “on thei r face apply to all TPAs, with no exception for church plan TPAs,” Pls.’ Opp’n at 21-22, but they do not. The preamble to the 2013 final rules makes clear that the authority for requiring TPAs of self-
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insured group health plans to make separate payments for contraceptive services is ERISA. See, e.g., 78 Fed. Reg. at 39,879 (stating defendants adopted the approach from the NPRM that relies on ERISA); id. (explaining that a TPA “becomes an ERISA section 3(16) plan ad ministrator and clai ms administrator” for contraceptive coverage); id. at 39,880 (indicating that the “legal authority” to regulate TPAs of self-insured group health plans comes from “ERISA”). And church plans are specifically excluded from the ambit of ERISA by statute. See 29 U.S.C. § 1003(b)(2). Thus, the “purpose and context” of the regulations, in conjunction with the “wh ole . . . text,” de monstrate that the require ment that TPAs make separate payments for contraceptive services does not apply to the TPAs of self-insured church plans. Dolan v. U. S. Postal Service , 546 U. S. 481, 486 (200 6). Moreover, defendants have made clear that t his interpretation of the regulations is the proper one, and courts “defer to an agency’s interpretation of its own regulation[s],” even when “advanced in a legal brief.” Chase Bank USA, N.A. v. McCoy, 131 S.Ct. 871, 880 (2011); see also Auer v. Robbins, 519 U.S. 452, 461-62 (1997). II. THE REGULATIONS DO NOT VIOLATE RFRA
According to plaintiffs, their RFRA claim boils down to one question: do plaintiffs assert a religious objection to the regulations? And, because plaintiffs have decided that complying with the regulations violates their religious beliefs, the Court’s inquiry is at an end. But this is not the law.
As an initial matter, plaintiffs’ asserted religious objectio n to the regulations i s based on a misunderstanding about what the regulations require as to self-insured church plans like GuideStone. Plaintiffs claim that signing the self -certification violates th eir religious beliefs because it “autho rize[]s” a third part y to make payments for contraceptive services for plan participants and benef iciaries of the GuideStone Plan,
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Pls.’ Opp’n at 22, or “trigger[s]” the provision of contraceptive coverage, Pls.’ Statement of Add’l Facts ¶ 10. But, as explained ab ove, these assertion s are incorrect. The self certification states th at the certif ying organization opposes providing contraceptive coverage on religious grounds, and the regulations do not require GuideStone’s TPAs to make payments for contraceptive services. Because pla intiffs’ purported rel igious objections are based on a misconception of the regulations, they have not established any burden on their religious exercise, much less a substantial one.
Nor is it the case, as plaintiffs suggest, that the Court s hould ignore plaintiffs’ misconception of the regulations and merely credit, without inquiry, plaintiffs’ assertion that the regulat ions substantially burden their religious exe rcise. 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 substantial simply by claiming that it is.”). Under RFRA, a plaintiff is entitled to its sincere religious beliefs, but it is not entitled to decide what does and does not i mpose a sub stantial burden on suc h beliefs. Nor may a plaintiff demand that a court join it in its misconception of what a given law will actually mean for that plaintiff. Here, plaintiffs, having informed the Court of what they think the regulations mean, would all but eliminate the Court’s inquiry into what the regulations actually require, and would then limit the Court’s substantial burden inquiry to two prongs: first, whether plaintiffs’ religious objection to their incorrect understanding of the challenged regulations is sincer e, and second, whether their incorrect understanding of the regulations applies significant pressure on plaintiffs to comply. But plaintiffs ignore a critical third criterion of the “substantial burden” test, which gives meaning to the term “substantial”: whether the challenge d regulations actually require plaintiffs to m odify their behavior in a significant—or more than de minimis—way. See, e.g., Living Water
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Church of God v. Charter Twp. Of Meridian, 258 Fed. App’x 729, 734-36 (6th Cir. 2007) (reviewing cases); Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir. 2013).2
They do not. The employer plaintiffs need only sign the se lf-certification, which states that they are non-profit religious organizations with religious objections to providing contraceptive coverage, and provide a co py of the self-certification to t heir TPAs. The regulations do not require GuideStone or any TPA of the GuideStone Plan to make or ar range payments for contraceptive services for plan participants and beneficiaries. Therefore, the regulations require no more of plaintiffs than they would have to do in the abse nce of the regulations—that is, to inf orm their TPAs that they do not intend to cover contraceptive services in order to ensure that they are not responsible for contracting, arrang ing, paying, or ref erring for such coverage. Plaintif fs can hardl y claim that it is a violation of RFRA to require them to do almost exactly what they would do in the ordinary course, absent the regulations.3
III. THE REGULATIONS DO N OT VIOLATE THE FREE EXERCISE CLAUSE
2 Hobby Lobby v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), is n ot to t he contrary. The Hobby Lobby court relied he avily on Abdulhaseeb v. Calbone, 600 F .3d 1301 (10th Cir. 2010), which makes clear that, for a law to impose a substantial burden, it must require some actual change in re ligious behavior—either forced participation in conduct or f orced abstention from conduct. See 723 F.3d at 1138 (citing Abdulhaseeb, 600 F.3d at 1315)). 3 Plaintiffs’ reliance on Zubik v. Sebelius, 2013 WL 618696 (W.D. Pa. Nov. 21, 2013); Gilardi v. HHS, 2013 WL 5854246 (D.C. Cir. Nov. 1, 2013); and Korte v. Sebelius, 2013 WL 5960692 (7th Cir. Nov. 8, 2013), is misplaced. None of those cases involved eligible organizations that offer health coverage through a self-insured church plan, and thus, the courts had no occasion to ad dress the ar guments defendants raise here. I n any event, defendants believe th ose cases were wrongly decided for the reasons defendants explained in those cases.
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Defendants explained in their opening brief that nearly every court to have considered a free exercise challenge to the prior version of the regulations has rejected it, concluding that the re gulations are ne utral and generally applicable. Plaintiffs make no effort to m eaningfully address this a uthority, instead blit hely asserting that the at l east eight decisions rejecting the sa me free exercise clai m plaintiffs assert here are unpersuasive because other courts did not reach the free exercise claim. See Pls.’ Opp’n at 38 n.13. This assertion is baseless.
O’Brien, 894 F. Supp. 2d 1149, is instructive. There, the court determined that the regulations “are n eutral,” because they “were passed, not with the object of interfering with religious practices, but instead to improve women’s access to health care and lessen the disparity between men’s and women’s healthcare costs.” Id. at 1161. Rejecting the same argument plaintiffs make here, the court further determined that “the religious employer exemption does not compromise the neutrality of the regulations by favoring certain religious employers over ot hers. Rather, . . . the relig ious employer exemption presents a stron g argument in f avor of neutrality.” Id.; see also Grote Indus., LLC v. Sebelius, 914 F . Supp. 2d 943, 953 (S .D. Ind. 2012) (“[ C]arving out an exemption f or defined religious ent ities [also] does not make a law n on-neutral as to othe rs.”); Conestoga, 917 F. Supp. 2d at 41 0 (“The f act that exe mptions were made for religious employers . . . . shows that the government made efforts to accommodate religious beliefs, which counsels in favor of the regulations’ neutra lity.”). The O’Brien court also concluded that the regulations were generally applicable despite exceptions for grandfathered plans and religious employers. 894 F. Supp. 2d at 1161. The court explained that the exceptions do not suggest disfavor of religion because they apply to all employers that sat isfy the requirements, “regardless of those emplo yers’ personal
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religious inclinations.” Id. at 1162; see Autocam Corp. v. Sebelius, 2012 WL 6845677, at
*5 (W.D. Mich. Dec. 24, 2012) (“[C]ategorical exemptions . . . do[] not mean that [a] law
does not apply generally.”) (citing United States v. Lee, 455 U.S. 252, 2 61 (1982)).
Plaintiffs’ arguments to the contrar y are no more persuasive here than the y were in
O’Brien or any of the other cases that have upheld the regulations against Free Exercise Clause challenges.4
IV. THE REGULATIONS DO NOT VIOLATE THE ESTABLISHMENT CLAUSE, THE DUE PROCESS CLAUSE, OR THE EQUAL PROTECTION CLAUSE The copious authority cited in defendants’ opening brief, see Defs.’ Mot. at 25-27,
amply demonstrates that the Establishment Clause prohibits only denominational
preferences; it does n ot prevent the government from distinguishing between t ypes of
religious organizations by exempting houses of worship irrespective of their
denomination and a ccommodating non-profit religious charitie s, universities, and
hospitals irrespective of their denom ination, as def endants have done in the challenge d
regulations.
4 Plaintiffs appear to su ggest that t he government has creat ed a dis cretionary system of individual exceptions with respect to the regulations, see Opp’n at 37 & n.12, but it has not. A system of individual exemptions is one that enables the government to make a subjective, case-by-case inquiry of the reaso ns for the releva nt conduct, like the “g ood cause” standard applied in many states for determining an individual’s eligibility for unemployment compensation. Emp’t Div. v. Smith, 494 U.S. 872, 884 (199 0); AxsonFlynn v. Johnson, 356 F.3d 1277, 1297 (10th Cir. 2004). No such system exists here. The challenged regulations do not leave d efendants with any discretion to deci de who is exempt or who is accommodated because the regulations set out the cri teria for both determinations. See Defs.’ Mot. at 25 n.9, E CF No. 51 . There is, t herefore, no merit t o plaintiffs’ unbridled discretion claim either.
Plaintiffs make no ef fort to save their interference with inte rnal church affairs claim (Count VI), and thus, it should be dismissed. See, e.g., Hill v. ITT Federal Servs. Int’l Corp., 2007 WL 951125, at *3 n.4 (D . Colo. Mar. 27, 200 7) (deeming f ailure to respond to argument a concession).
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Larson v. Valente, on which plaintiffs rely, fully supports the government’s position. See, e.g., 456 U.S. 2 28, 244 (198 2) (“one religious de nomination cannot be officially preferred over another”); id. at 245-46 (referring to “constitutional prohibition of denominational preferences” and “principle of denominational neutrality”); id. at 245 (“[L]egislators . . . are required to accord to their own religions the very same treatment given to small, new, or unpopular denominations.”); id. at 246 (“[T]he government must be neutral when it comes to competition between sects.”); id. (“[T]he fullest realization of true religious liberty requires that government . . . ef fect no favoritism among sects[.]”). Although the law at issue in Larson did not refer to any particular religious denomination on its f ace, it violated the constitutional prohibition against denominational preferences because it “effect[ed] the selective legislative imposition of burdens and advantages upon particular denominations.” Id. at 254. The provision was drafted to “includ[e] particular religious denominations and exc lud[e] others.” Id. Indeed, the Court discussed the legislative history of the statute, w hich showed that lang uage was changed dur ing the legislative process “for the sole purpose of exempting the [Roman Catholic] Archdiocese from the prov isions of the Act.” Id. at 254; see also Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3 d 1084 (8th Cir. 2000) (u pholding “sect-neutral” statute after striking down prior “sect-specific” one). The re is n o similar discrimination among denominations here. T he religious employer exemption is available on equal terms to employers of all denominations.
Plaintiffs argue in th e alternative that the regulations do discriminate among denominations by distinguishing between denominations that exercise their beliefs primarily through houses of worship and denominations, like the Catholic Church, that “exercise their rel igion via other ministries such as health care ser vices.” Opp’n a t 24.
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This argument is baseless. The fact that some Catholic entitles, like a diocese, are exempt while other Catholic entities, like hospitals, charities, and universities, are accommodated does not a mount to di scrimination among denominations. See, e.g., East Tex. Baptist Univ., No. 4:12-cv-03009 (S.D. Tex.) (suit by accommodated, but not exe mpt, Baptist university challenging regulations).5
V. THE REGULATIONS DO NOT V IOLATE THE RIGHT TO FREE SPEECH OR EXPRESSIVE ASSOCIATION Plaintiffs’ opposition reveals that their free speech claim, like many of their other
claims, is based on a m isunderstanding of what the regulations require as to self -insured church plans. Plaintiffs contend signing the self-certification violates their free speech rights because it will “request” or “authorize others to provide [contraceptive coverage]” to plaintiffs’ employees. Pls.’ Opp’n at 40. But, as explained above, that is not the case.
Defendants do not un derstand plaintiffs to c laim that signin g a f orm that states only what plaintiffs have already stated i n this litigation and elsewhere—i.e., that plaintiffs are non -profit religious organizations that oppose pro viding contraceptive coverage on religious grounds—violates their right to f ree speech. But, even if plaintiffs did make such a claim, it would fail, as the one-time self-certification requirement is plainly incidental to the regulation of conduct, not speech. The self-certification is in no sense a “ stand-alone” speech r equirement. Rather, it is pa rt of a regulator y scheme
5 Plaintiffs make almost no effort to save thei r due process and equa l protection claims. See Pls.’ Opp’n at 39 n.14. They do not dispute that defendants “could rationally have concluded” that, a s a general matter, houses of worship and their integrated auxiliaries are more likely than other religious organizations, like hospitals, charities, and universities, to empl oy people of the sa me faith who share their objection to contraceptives. See Gonzalez-Droz v. Gonzal ez-Colon, 660 F.3 d 1, 10 (1st Cir. 2011). Moreover, defendants’ decision to incorpo rate long-standing concepts from the tax code that refer to churches and their integrated auxiliaries, in an effort to avoid the type of entangling inquiries that commenters objected to, is similarly rational. That is all the Due Process and Equal Protection Clauses require.
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governing the provision of health covera ge, and it se rves to relieve certif ying organizations from certain conduct otherwise required by law and to “verify compliance” with the criteria f or the accommodation . 78 Fed. Reg. at 39,875. Courts have unanimously concluded that this regulatory scheme regulates conduct, not speech. See Defs.’ Mot. at 29 (citing cases).
Plaintiffs fail to addre ss the addi tional standing argument defendants made with respect to plaintif fs’ non-interference claim, see Defs.’ Mot. at 30, and, thus, that clai m should be dis missed for this reason alone. See Hill, 2007 WL 951 125, at *3 n. 4. The claim also fails on the merits. The regulations do not proh ibit plaintiffs from expressing their views on the use of contraceptive servi ces or the regulation s to an yone, including their TPAs. Plaintiffs, moreover, may inform their TPAs (including Highmark) that they are not required by the regulations to make payments for contraceptive services for plan participants and beneficiaries. Thus, the non-interference provision in no sense prevents plaintiffs from speaking with their TPAs about the obligati ons imposed—or not imposed—on the TPA by the challenged regulations.6
Finally, plaintiffs’ expressive association claim fails for at least two reasons. First, as explained above, neither GuideStone nor any TPA of the GuideStone Plan is required by the regulations to provide payments for contraceptive coverage. Thus, the regulations do not interfere in any way with plaintiffs’ ability to associate to share and express their religious beliefs. Second, and more broadly, plaintiffs cite no authority for their novel theory that the f reedom of association extends so f ar as to require the Court to inquire only whether plaintiffs’ association is expressive and whether the regulations impair that
6 Even if the Cou rt were to f ind, over the government’s objection, that the noninterference provision violates the Free Speech Clause, the appropriate remedy would be to hold that t he provision cannot be applied to the e mployers in th is case because they have self-insured church plans, not to strike down the regulations in their entirety.
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expression. “A government action does not interfere with the right of expressive association unless it directly or indi rectly interferes with group membership.” Miller v. City of Cinci nnati, 622 F.3d 524, 538 (6th Ci r. 2010); see Roberts v. U.S. Jaycees, 468 U.S. 609, 622-23 (1984). Indeed, the expressive association cases cited b y plaintiffs involved laws that interfered with group membership. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (law required organization to accept gay man as scoutmaster); Pleasant v. Lovell, 876 F.2d 787, 804 (10th Cir. 1989) (collection of information on “the identities and activities of [group’s] members” led to “ reluctan[ce] to associate with the group”). Because the challenged regulations do not interf ere with the co mposition of plaintiffs’ workforces or the GuideStone Plan, plaintiffs’ expressive association claim fails. VI. THE REGULATIONS DO NOT VIOLATE THE APA
Plaintiffs contend that the regulations are n ot in accordance with law “because they conflict with federal laws exempting church benefit plans from ERISA.” Pls.’ Opp’n at 24. But, as expla ined above, the regulations do not require t he TPAs of self-insured church plans to provide or arrange pa yments for contraceptive services, and defendants’ interpretation of their own regulatio ns is ent itled to def erence. Furthermore, the self certification requirement is not “ meaningless” as applied to e mployers that of fer health coverage through a self-insured church plan. Pls.’ Opp’n at 27. As explained in the final rules, the self-certification requirement serves, among other things, to relie ve certifying organizations from the requirement otherwise imposed by law to provide coverage for contraceptive services and to “verify compliance” with the criteria f or the accommodation. 78 Fed. Reg. at 39,875.
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Plaintiffs are also wrong when the y assert that the regulations are arbitrary and capricious because the employer plaintiffs are not exempted. First, the fact that plaintiffs happen to object onl y to som e preventive services is entirel y beside the point. The regulations seek to ensure that women have access to the “ full range of [FDA]-approved contraception methods.” IOM REP. at 10, AR at 308 (em phasis added). This is because some contraceptive methods may be more appropriate than ot hers depending on a woman’s personal medical history, and the decision about which form of contraceptive to use is a perso nal medical decision that is made by a wo man in c onsultation with her doctor. The IOM Report indicates that “[f]or women with certain medical conditions or risk factors, some contraceptive methods may be contraindicated.” IOM REP. at 105, AR at 403. For example, for some women, hormonal contraceptives (like birth control pills) may be contraindicated because of certain risk factors, such as uncontrolled hypertension or coronary artery disease, so the doctor may instead prescribe a copper IUD, which does not contain hormones. Thus, the f act that the regulations require coverage of all FDAapproved contraceptive methods is far from arbitrary or capricious.
Second, plaintiffs are incorrect t o suggest that the distinction drawn by the regulations between exempt organizations and eligible organizations is not a rational one. The sole piece of evidence the y point to is t he comment submitted by the Council for Christian Colleges and Universities, which stated that a re quirement for membership in the organization is tha t the ad ministrators and faculty “share the C hristian faith” of the institution. Pls.’ Opp’n at 29 n.7 . But the m ere fact that a disti nction drawn in the regulations may not comport with the comments submitted by one, or even more than one, commenter is far from evidence that the distinction is ar bitrary or capricious. Af ter all, defendants received comments throughout the development of these regulations from
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other religious non-profit organizations that stated that they impose no such requirement. See, e.g., Comments of Wisconsin Catholic Conference, at 2 (June 15, 2 012) (“We employ and aid Catholics and non-Catholics alike because our faith compels us to be of service to all.”) (AR Disk 3, ANP RM comments 1, at 416); Co mments of La Salle University, at 1 (June 19, 2012) (noting that the “vast majority of Catholic colleges and universities” do not “serv[e] and employ[]” only those who share their faith, but “engage in dialogue with all people and with all sources of truth, rather than ‘primarily’ other Catholics”) (AR Disk 3, ANPRM comments 2, at 3505).
Furthermore, as def endants have explained, the HR SA Guidelines are not legislative rules within the meaning of the APA, and thus, are not r equired to be subjec t to notice and co mment rulemaking. The HRSA Guideli nes are not “de signed to implement, interpret, or prescribe l aw or policy,” 5 U .S.C. § 551(4); rather, the substantive obligations that are im posed on group health plans a nd health insurance issuers were i mposed by Congress in statuto ry provisions that auto matically import the content of various clinical guidelines. Indeed, the case on which plaintiffs rely, Mission Grp. Kansas, Inc. v. R iley, 146 F.3 d 775 (10 th Cir. 1998) (quoting Hoctor v. Dep ’t of Agric., 82 F.3d 165 (7th Cir. 1996)), is not on ly inapposite, but illustrates the distinction. Hoctor dealt with a r ule that had the f orce of law o f its own accord and that was promulgated pursuant to a statute tha t authorized the agenc y “to promulgate such rules, regulations, and orders as [it] may deem necessary in order to effectuate the purposes of [the Act].” 82 F.3d at 167. No such language appears in the statute here; in other words, the statute did not, as plaintiffs suggest, instruct HRSA to create guidelines. Other parts of the ACA cont ain such commanding language akin to that in t he statute at issue in Hoctor, see Defs.’ Mot. at 34 n.12 , but the st atutory provisions here notably do not, and
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simply incorporate by reference the content of a number of clinical guidelines which, on
their own, do not have the force of law.7
CONCLUSION
For the foregoing reasons, defendants respectfully ask that the Court grant
defendants’ motion to dismiss or, i n the alternative, for summary judgment on all of
plaintiffs’ claims.
Respectfully submitted this 6th day of December, 2013,
7 Plaintiffs’ argument regarding the Weldon Amendment brushes aside decade s of regulatory policy and practice summarized in defendants’ opening brief. Speaking in support of, and as a co-sponsor of, what was then a n independent bill wi th essentially identical language to the W eldon Amendment, see Abortion Non-Discrimination Act, H.R. 4691, 107th Cong. (2002), Representative Weldon called it “a tre mendous misinterpretation or a tremendous stretch of the imagination” to suggest that the statutory language would impact the pro vision of contraceptive services. 148 Cong. Rec. H6566, H6580 (daily ed. Sept. 25, 2002). And he explained that “[t]he morning-after pill is not defined by the FDA as abortion. It is defined as contraception. It is something different. So to interpret this statute to claim that it is going to prohibit access is to take essentially a religious entity’s doctrine and put that into the statute, and it is just not there. It is not in the language.” Id. at H6571; see also id. at H6580 (“Now, some religious groups may interpret [emergency contraception] as abortion, but we make no reference in this statute to religious groups or their def initions; and under th e current FDA policy that is considered contraception, and it is not affected at all by this statute.”). Plaintiffs disregard all of this as an out -of-date floor statement from 2002, ign oring both the f act that the language of the Abortion Non-Discrimination Act discussed in 2002 is nearly identical to the language of the Weldon A mendment that was subsequentl y enacted, and repeatedl y reenacted thereafter, and the f act that Rep resentative Weldon was the author, sponsor, and namesake of the nearly identical Weldon Amendment. The Supreme Court has made clear that the statements of the sp onsor of a piece of legislation deserve to be a ccorded substantial interpretive weight. Fed. Energy Admin. v. Algonq uin SNG, Inc., 426 U.S. 548, 564 (1976). Moreover, plaintiffs’ claim that t he ACA gives issues of a qualif ied health plan the ri ght to define what is and i s not an “abortion” as a matter of law is baseless. The statute ensures only that the issuer may decide whether to of fer coverage for abortion, unless the state prohibits it. There is absolutely no suggestion that Congress intended to so dra matically shift to regulated entities the mselves the locus of statutory interpretation that is generally left to agencies charged with implementing the statute and, if need be, to the courts. Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes.”).
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STUART F. DELERY Assistant Attorney General SANFORD C. COATS United States Attorney JENNIFER RICKETTS Director, Federal Programs Branch SHEILA M. LIEBER Deputy Director /s/ Benjamin L. Berwick BENJAMIN L. BERWICK (MA Bar No. 679207) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W., Room 7306 Washington, D.C. 20001 Tel: (202) 305-8573; Fax: (202) 616-8470 Email: benjamin.l.berwick@usdoj.gov Attorneys for Defendants
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I hereby certify that on December 6, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system.
/s/ Benjamin L. Berwick BENJAMIN L. BERWICK
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FILED

United States Court of Appeals

PUBLISH

Tenth Circuit

UNITED STATES COURT OF APPEALS

July 14, 2015

FOR THE TENTH CIRCUIT _________________________________

Elisabeth A. Shumaker Clerk of Court

LITTLE SISTERS OF THE POOR HOME FOR THE AGED, DENVER, COLORADO, a Colorado non-profit corporation; LITTLE SISTERS OF THE POOR, BALTIMORE, INC., a Maryland non-profit corporation, by themselves and on behalf of all others similarly situated; CHRISTIAN BROTHERS SERVICES, a New Mexico non-profit corporation; CHRISTIAN BROTHERS EMPLOYEE BENEFIT TRUST,

Plaintiffs - Appellants,

v.

No. 13-1540

SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; THOMAS E. PEREZ, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB J. LEW, Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF THE TREASURY,

Defendants - Appellees. ––––––––––––––––––––––––––––––––––– SOUTHERN NAZARENE UNIVERSITY; OKLAHOMA WESLEYAN UNIVERSITY; OKLAHOMA BAPTIST UNIVERSITY; MID-AMERICA CHRISTIAN UNIVERSITY; REACHING SOULS INTERNATIONAL, INC., an Oklahoma not
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for profit corporation; TRUETTMCCONNELL COLLEGE, INC., a Georgia nonprofit corporation, by themselves and on behalf of all others similarly situated; GUIDESTONE FINANCIAL RESOURCES OF THE SOUTHERN BAPTIST CONVENTION, a Texas nonprofit corporation,
Plaintiffs - Appellees.
v.
SYLVIA MATHEWS BURWELL, Secretary of the United States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; THOMAS E. PEREZ, Secretary of the United States Department of Labor; UNITED STATES DEPARTMENT OF LABOR; JACOB J. LEW, Secretary of the United States Department of the Treasury; UNITED STATES DEPARTMENT OF THE TREASURY,
Defendants - Appellants. -----------------------------67 CATHOLIC THEOLOGIANS AND ETHICISTS; ALABAMA PHYSICIANS FOR LIFE; AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS & GYNECOLOGISTS; AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AMERICAN BIBLE SOCIETY; AMERICAN CENTER FOR LAW AND JUSTICE; AMERICAN CIVIL LIBERTIES UNION OF COLORADO; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA; AMERICAN CIVIL LIBERTIES UNION; AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME);
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AMERICAN PUBLIC HEALTH ASSOCIATION; AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE; ASIAN & PACIFIC ISLANDER AMERICAN HEALTH FORUM; ASIAN AMERICANS ADVANCING JUSTICE | AAJC; ASIAN AMERICANS ADVANCING JUSTICE | LOS ANGELES; ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS; ASSOCIATION OF CHRISTIAN SCHOOLS INTERNATIONAL; ASSOCIATION OF GOSPEL RESCUE MISSIONS; BLACK WOMEN'S HEALTH IMPERATIVE; CALIFORNIA WOMEN'S LAW CENTER, NATIONAL WOMEN'S LAW CENTER; CALIFORNIA WOMEN'S LAW CENTER; CATHOLIC MEDICAL ASSOCIATION; CHRISTIAN LEGAL SOCIETY; CHRISTIAN MEDICAL ASSOCIATION; CHRISTIE'S PLACE; CONCERNED WOMEN FOR AMERICA; DR. R. ALBERT MOHLER, JR.; ETHICS & RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION; FEMINIST MAJORITY FOUNDATION; FORWARD TOGETHER; HIV LAW PROJECT; IBIS REPRODUCTIVE HEALTH; INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE AND CHRISTIAN LEGAL SOCIETY; INTERNATIONAL MISSION BOARD OF THE SOUTHERN BAPTIST CONVENTION; IPAS; LEGAL MOMENTUM; LIBERTY COUNSEL; LIBERTY UNIVERSITY; LIBERTY, LIFE, AND LAW FOUNDATION; LUTHERAN CHURCH - MISSOURI SYNOD; MERGER WATCH; NARAL PRO-CHOICE AMERICA; NARAL PRO-CHOICE COLORADO; NARAL PRO-CHOICE WYOMING; NATIONAL ASIAN PACIFIC AMERICAN WOMEN'S FORUM;
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NATIONAL ASSOCIATION OF CATHOLIC NURSES; NATIONAL ASSOCIATION OF EVANGELICALS; NATIONAL ASSOCIATION OF PRO LIFE NURSES; NATIONAL CATHOLIC BIOETHICS CENTER; NATIONAL FAMILY PLANNING & REPRODUCTIVE HEALTH ASSOCIATION; NATIONAL HEALTH LAW PROGRAM; NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL ORGANIZATION FOR WOMEN (NOW) FOUNDATION; NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES; NATIONAL WOMEN AND AIDS COLLECTIVE; NATIONAL WOMEN'S HEALTH NETWORK; NATIONAL WOMEN'S LAW CENTER; PLANNED PARENTHOOD ASSOCIATION OF UTAH; PLANNED PARENTHOOD OF KANSAS AND MIDMISSOURI; PLANNED PARENTHOOD OF THE HEARTLAND; PLANNED PARENTHOOD OF THE ROCKY MOUNTAINS, INC.; POPULATION CONNECTION; PRISON FELLOWSHIP MINISTRIES; RAISING WOMEN'S VOICES FOR THE HEALTH CARE WE NEED; SERVICE EMPLOYEES INTERNATIONAL UNION (SEIU); SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE U.S. (SIECUS); SOUTHERN BAPTIST THEOLOGICAL SEMINARY; UNITED STATES CONFERENCE OF CATHOLIC BISHOPS,
Amici Curiae. _________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:13-CV-02611-WJM-BNB) &
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THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. Nos. 5:13-CV-01015-F & 5:13-CV-01092-D) _________________________________
Mark L. Rienzi, Becket Fund for Religious Liberty, Washington, DC (Daniel Blomberg and AdPle Auxier Keim, Becket Fund for Religious Liberty, Washington, DC; Carl C. Scherz and Seth Roberts, Locke Lord LLP, Dallas, Texas; and Kevin C. Walsh, University of Richmond Law School, Richmond, Virginia, with him on the briefs), appearing for Little Sisters of the Poor Home for the Aged, Little Sisters of the Poor, Baltimore, Inc., Christian Brothers Services, Christian Brothers Employee Benefit Trust, Reaching Souls International, Inc., Truett-McConnell College, Inc., and GuideStone Financial Resources of the Southern Baptist Convention.
Adam C. Jed, Attorney, Appellate Staff, Civil Division (Stuart F. Delery, Assistant Attorney General; Sanford C. Coats and John F. Walsh, United States Attorneys; Beth S. Brinkmann, Deputy Assistant Attorney General; Mark B. Stern, Alisa B. Klein, Patrick G. Nemeroff, and Megan Barbero, Attorneys, Appellate Staff Civil Division, with him on the briefs), United States Department of Justice, Washington, DC, appearing for Sylvia Mathews Burwell, United States Department of Health and Human Services, Thomas E. Perez, Jacob J. Lew, and United States Department of the Treasury.
Gregory S. Baylor, Alliance Defending Freedom, Washington, DC (Matthew W. Bowman, Alliance Defending Freedom, Washington, DC, David A. Cortman, Alliance Defending Freedom, Lawrenceville, Georgia, and Kevin H. Theriot, Alliance Defending Freedom, Leawood, Kansas, with him on the briefs), appearing for Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist University, and MidAmerica Christian University.
_________________________________
Before MATHESON, McKAY, and BALDOCK, Circuit Judges. _________________________________
MATHESON, Circuit Judge. _________________________________
TABLE OF CONTENTS
Glossary ........................................................................................................................................ vii I. Introduction.......................................................................................................................... 1
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II. Hobby Lobby and this case .................................................................................................. 3

III. Background .......................................................................................................................... 4

A.

Regulatory Background ................................................................................................ 4

1. The ACA Mandate and the Religious Employer Exemption............................................... 4

2. The Accommodation Scheme for Religious Non-Profit Organizations .............................. 7

a. EBSA Form 700 ................................................................................................................... 9

b. Alternative notice ............................................................................................................... 11

3. The Mechanics of the Accommodation for Insured Plans, Self-Insured Plans, and SelfInsured Church Plans .............................................................................................................. 13

a. Insured plans...................................................................................................................... 14

b. Self-insured plans............................................................................................................... 15

c. Self-insured church plans .................................................................................................. 17

d. Legal obligation to provide coverage after the accommodation ....................................... 17

B.

The Plaintiffs .............................................................................................................. 18

1. Little Sisters of the Poor .................................................................................................... 18

2. Southern Nazarene............................................................................................................. 20

3. Reaching Souls................................................................................................................... 22

C.

Procedural History ...................................................................................................... 23

1. Little Sisters of the Poor .................................................................................................... 23

2. Southern Nazarene............................................................................................................. 25

3. Reaching Souls................................................................................................................... 26

IV. Unusual Nature of Plaintiffs’ Claim .................................................................................. 27

V. RFRA ................................................................................................................................. 30

A.

Legal Background....................................................................................................... 33

1. Standard of Review............................................................................................................ 33

2. RFRA and Free Exercise ................................................................................................... 34

3. Elements of RFRA Analysis .............................................................................................. 35

4. Courts Determine Substantial Burden ............................................................................... 36

5. Accommodations Can Lessen or Eliminate Burden .......................................................... 40

B.

Substantial Burden Analysis....................................................................................... 41

1. Plaintiffs’ RFRA Arguments ............................................................................................. 41

2. The Accommodation Scheme Eliminates Burdens on Religious Exercise ....................... 43

3. The Accommodation Scheme Does Not Impose a Substantial Burden............................. 45

a. Opting out does not cause contraceptive coverage. .......................................................... 45

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b. No substantial burden from complicity.............................................................................. 66

c. No burden from ongoing requirements.............................................................................. 72

C.

Strict Scrutiny ............................................................................................................. 75

D.

Conclusion .................................................................................................................. 75

VI. First Amendment ............................................................................................................... 75

A.

Free Exercise Clause .................................................................................................. 77

1. Legal Background .............................................................................................................. 78

2. The Mandate and Accommodation Scheme are Neutral ................................................... 79

3. The Mandate and Accommodation Scheme are Generally Applicable ............................. 79

4. The Mandate and Accommodation Scheme Have a Rational Basis.................................. 81

B.

Establishment Clause.................................................................................................. 83

1. Organizational Distinctions Well-Established in Federal Law.......................................... 83

2. Organizational Distinctions and Respecting the Religion Clauses.................................... 85

3. Organizational Distinctions Compatible with Larson and Colorado Christian ................ 86

4. Plaintiffs’ Argument Based on the Departments’ Rationale.............................................. 88

C.

Free Speech Clause..................................................................................................... 90

1. Compelled Speech ............................................................................................................. 91

2. Compelled Silence ............................................................................................................. 95

VII. Conclusion ......................................................................................................................... 95

GLOSSARY
This opinion is heavily laden with terms from the applicable statute and
regulations, types of health insurance arrangements, and names of numerous entities. We
appreciate the challenge this presents to the reader and provide this glossary to help
navigate the opinion.
Legal and Regulatory Terms: ACA: The Affordable Care Act, which encompasses the Patient Protection and
Affordable Care Act, enacted on March 23, 2010, and the Health Care and Education Reconciliation Act, enacted on March 30, 2010.
Accommodation scheme: A regulatory mechanism that allows religious non-profit organizations to relieve themselves of their obligation to provide contraceptive
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coverage for employees by either (a) sending a form to their health insurance issuer or third-party administrator or (b) sending a notification to the Department of Health and Human Services.
ANPRM: Advance Notice of Proposed Rulemaking, which an administrative agency may issue to notify the public it is contemplating rulemaking and to invite comments.
Departments: The Department of Health and Human Services, Department of Labor, and Department of the Treasury, which collectively implement the ACA.
EBSA: The Employee Benefits Security Administration, an agency within the Department of Labor.
ERISA: The Employee Retirement Income Security Act, codified at 29 U.S.C. § 1001 et seq., which is a federal law that sets minimum standards for certain employersponsored benefit plans.
Form 700: A standardized notification that religious non-profit organizations may send to their health insurance issuer or third party administrator under the accommodation scheme to self-certify they object to providing contraceptive coverage.
HHS: The Department of Health and Human Services, which is one of the three departments tasked with implementing the ACA and contraceptive coverage requirement.
HRSA: The Health Resources and Services Administration, an agency within HHS, which issued guidelines requiring coverage of all FDA-approved contraceptive methods under the ACA.
IOM: The Institute of Medicine, an independent body that reviewed evidence on women’s preventive services and issued a report used by the HRSA in formulating its guidelines.
IRC: The Internal Revenue Code, codified at 26 U.S.C. § 1 et seq., which is a comprehensive compilation of the federal tax laws.
Mandate: Regulations enacted under the ACA requiring employer-sponsored group health plans to cover contraceptive services for women as a form of preventive care.
RFRA: The Religious Freedom Restoration Act, codified at 42 U.S.C. § 2000bb-1 et seq., which states that laws that substantially burden a person’s exercise of religion are only permissible if they are the least restrictive means of furthering a compelling governmental interest.
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RLUIPA: The Religious Land Use and Institutionalized Persons Act, codified at 42 U.S.C. § 2000cc et seq., which states that laws that substantially burden religious exercise through land use restrictions or restrictions on prisoners are only permissible if they are the least restrictive means of furthering a compelling governmental interest.
Religious employers: As defined by reference to §§ 6033(a)(3)(A)(i) or (iii) of the IRC, employers that are organized and operate as non-profit entities and are churches, their integrated auxiliaries, conventions or associations of churches, or the exclusively religious activities of any religious order.
Religious non-profit organizations: Organizations that do not qualify as religious employers but are eligible for an accommodation from the contraceptive coverage requirement because they have religious objections to providing contraceptive coverage, are organized and operate as non-profit entities, hold themselves out as religious organizations, and self-certify that they satisfy these criteria. The Plaintiffs in these cases are religious non-profit organizations.
Health Insurance Terms:
Group health plan: A benefit plan established or maintained by an employer that provides health insurance to employees and their dependents either directly—a selfinsured group health plan—or through a health insurance issuer—an insured group health plan.
Health insurance issuer: A health insurance company, service, or organization that must be licensed to engage in the insurance business and is subject to state laws regulating insurance.
Insured group health plan: A benefit plan in which the employer employs a health insurance issuer to assume the risk of providing health insurance.
Plan participants and beneficiaries: Individuals who are covered by a group health plan.
Self-insured group health plan: A benefit plan in which the employer assumes the risk of providing health insurance.
Self-insured church plan: A self-insured group health plan established by a church or association of churches covering the church or association’s employees, which is not subject to regulation under ERISA unless it has elected to opt in to ERISA’s provisions.
TPA: A third-party administrator, which is an entity that processes insurance claims and provides administrative services for employers with self-insured group health plans.
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Plaintiffs and Related Entities:
Little Sisters of the Poor:
Little Sisters of the Poor: A religious non-profit organization that provides health care to employees through the Christian Brothers Employee Benefit Trust.
Christian Brothers Employee Benefit Trust: A self-insured church plan that is not subject to ERISA and uses Christian Brothers Services as its TPA.
Christian Brothers Services: The TPA for the Christian Brothers Employee Benefit Trust.
Southern Nazarene:
Southern Nazarene University: A religious non-profit organization that is self-insured up to $100,000 and provides health care to employees through Blue Cross Blue Shield for claims above $100,000.
Oklahoma Baptist University: A religious non-profit organization insured by Blue Cross Blue Shield of Oklahoma.
Oklahoma Wesleyan University: A religious non-profit organization insured by Community Care of Oklahoma.
Mid-America Christian University: A religious non-profit organization that provides health care to employees through plans provided by GuideStone Financial Resources.
Reaching Souls:
Reaching Souls: A religious non-profit organization that provides health care to employees through the GuideStone Plan.
Truett-McConnell College: A religious non-profit organization that provides health care to employees through the GuideStone Plan.
GuideStone Financial Resources: A religious non-profit organization that sponsors the GuideStone Plan and has arranged for TPAs to provide claims administration under that plan.
GuideStone Plan: A self-insured church plan that is not subject to ERISA and uses entities like Connecticut General Life Insurance Company, Highmark Health Services, and Express Scripts, Inc. as its TPAs.
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I. INTRODUCTION When Congress passed the Affordable Care Act (“ACA”) in 2010, it built upon the widespread use of employer-based health insurance in the United States.1 The ACA
and its implementing regulations require employers who provide health insurance
coverage to their employees to include coverage for certain types of preventive care
without cost to the insured. The appeals before us concern the regulations that require
group health plans to cover contraceptive services for women as a form of preventive care (“Mandate”).2
In response to religious concerns, the Departments implementing the ACA—
Health and Human Services (“HHS”), Labor, and Treasury—adopted a regulation that
exempts religious employers—churches and their integrated auxiliaries—from covering
contraceptives. When religious non-profit organizations complained about their omission
from this exemption, the Departments adopted a regulation that allows them to opt out of
1 A majority of the nonelderly population in the United States receives health insurance as a job benefit through an employer. See Melissa Majerol, Vann Newkirk & Rachel Garfield, The Uninsured: A Primer – Key Facts About Health Insurance and the Uninsured in America, The Kaiser Commission on Medicaid and the Uninsured, 1 (Jan. 2015), http://files.kff.org/attachment/the-uninsured-a-primer-key-facts-about-healthinsurance-and-the-uninsured-in-america-primer.
2 We use “Mandate” as shorthand for the ACA’s employer mandate, which requires employers who offer health benefits to comply with the coverage requirements detailed in the ACA and its implementing regulations. This Mandate is distinct from the individual mandate at issue in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), which generally requires individuals to maintain health insurance.
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providing, paying for, or facilitating contraceptive coverage.3 Under this regulation, a
religious non-profit organization can opt out by delivering a form to their group health
plan’s health insurance issuer or third-party administrator (“TPA”) or by sending a
notification to HHS.
The Plaintiffs in the cases before us are religious non-profit organizations. They
contend that complying with the Mandate or the accommodation scheme imposes a
substantial burden on their religious exercise. The Plaintiffs argue the Mandate and the
accommodation scheme violate the Religious Freedom Restoration Act (“RFRA”) and the Religion and Speech Clauses of the First Amendment.4
Although we recognize and respect the sincerity of Plaintiffs’ beliefs and
arguments, we conclude the accommodation scheme relieves Plaintiffs of their
obligations under the Mandate and does not substantially burden their religious exercise
under RFRA or infringe upon their First Amendment rights. Exercising jurisdiction
3 Plaintiffs object to the term “opt out” because their accommodation from the Mandate involves an act on their part—self-certification—that they deem objectionable. We believe “opt out” is accurate. Self-certifying for the accommodation expressly relieves Plaintiffs of their obligation to provide, pay for, or facilitate contraceptive coverage, and does so without substantially burdening their religious exercise. Under these conditions, the self-certification is accurately characterized as an “opt out.” By definition, all opt-out mechanisms require some affirmative act by objecting parties.
4 RFRA applies to all subsequent federal statutes absent a specific exemption by Congress. See 42 U.S.C. § 2000bb-3(b) (“Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.”). The ACA, enacted in 2010, did not contain a specific exemption and is subject to RFRA. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1157 (10th Cir. 2013).
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under 28 U.S.C. § 1292(a), we affirm the district court’s denial of a preliminary injunction to the plaintiffs in Little Sisters of the Poor Home for the Aged v. Sebelius, 6 F. Supp. 3d 1225 (D. Colo. 2013), and reverse the district courts’ grants of a preliminary injunction to the plaintiffs in Southern Nazarene University v. Sebelius, No. CIV-131015-F, 2013 WL 6804265 (W.D. Okla. Dec. 23, 2013), and Reaching Souls International, Inc. v. Burwell, No. CIV-13-1092-D, 2013 WL 6804259 (W.D. Okla. Dec. 20, 2013).
II. HOBBY LOBBY AND THIS CASE Last year, the Supreme Court decided Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), in which closely-held for-profit corporations challenged the Mandate under RFRA. The difference between Hobby Lobby and this case is significant and frames the issue here. In Hobby Lobby, the plaintiff for-profit corporations objected on religious grounds to providing contraceptive coverage and could choose only between (1) complying with the ACA by providing the coverage or (2) not complying and paying significant penalties. Id. at 2759-60. In the cases before us, the plaintiff religious nonprofit organizations can avail themselves of an accommodation that allows them to opt out of providing contraceptive coverage without penalty. Plaintiffs contend the process to opt out substantially burdens their religious exercise. In other words, unlike in Hobby Lobby, the Plaintiffs do not challenge the general obligation under the ACA to provide contraceptive coverage. They instead challenge the process they must follow to get out of complying with that obligation. The Plaintiffs do
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not claim the Departments have not tried to accommodate their religious concerns. They claim the Departments’ attempt is inadequate because the acts required to opt out of the Mandate substantially burden their religious exercise. As we discuss more fully below, however, the accommodation relieves Plaintiffs of their obligation to provide, pay for, or facilitate contraceptive coverage, and does so without substantially burdening their religious exercise.
III. BACKGROUND We begin by providing background information on the ACA and its implementing regulations, the Plaintiffs objecting to the accommodation scheme, and the procedural history of the three cases before us.
A. Regulatory Background The regulations at issue in these cases have evolved in significant ways since their initial promulgation. We review: (1) the exemption from the ACA’s contraceptive coverage requirement for churches and integrated auxiliaries, (2) the accommodation scheme for religious non-profit organizations, and (3) the mechanics of the accommodation scheme for different types of group health plans. 1. The ACA Mandate and the Religious Employer Exemption Under the ACA, employer-sponsored group health plans must meet minimum coverage requirements. As part of these requirements, both group health plans and health insurance issuers must cover preventive health care services and cannot require plan participants and beneficiaries to share the costs of these services through co-payments,
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deductibles, or co-insurance. 42 U.S.C. § 300gg-13. On July 19, 2010, the Departments issued interim final rules implementing the ACA’s requirements for preventive services. 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 (July 19, 2010).
Among the services required by the ACA are preventive care and screenings for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration” (“HRSA”), a federal agency within HHS. 42 U.S.C. § 300gg-13(a)(4). On August 1, 2011, after receiving recommendations from the Institute of Medicine (“IOM”), the HRSA issued its guidelines for women’s preventive health services. The guidelines include coverage of “[a]ll Food and Drug Administration [(“FDA”)] approved contraceptives, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” as prescribed by a health care provider. HRSA, Women’s Preventive Services Guidelines, http://www.hrsa.gov/womensguidelines (last visited Mar. 25, 2015).
In accordance with the HRSA’s guidelines, the Departments require coverage of the full range of FDA-approved contraceptive services. See 26 C.F.R. § 54.98152713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv). Not all employers, however, are required to comply with the Mandate.
First, employers with 50 or fewer employees are exempt from the Mandate because they are not required to offer insurance under the ACA. See 26 U.S.C.
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§§ 4980H(c)(2)(A), 4980D(d). Second, “grandfathered” plans are exempt from the Mandate because the ACA
allows individuals to temporarily maintain the health coverage they possessed before the ACA was enacted. See 42 U.S.C. § 18011.5
Third, and the most relevant here, is the exemption for religious employers. In response to concerns from religious organizations, the Departments amended the interim final regulations to give the HRSA authority to exempt group health plans established or maintained by religious employers. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 76 Fed. Reg. 46,621, 46,623 (Aug. 3, 2011). The Departments defined a “religious employer” as one that: “(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code.” Id. The cited sections “refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as the exclusively religious activities of
5 The exception for grandfathered plans is temporary and transitional. A health plan loses its grandfathered status—and is subject to the Mandate—when it eliminates benefits, increases cost sharing requirements, or changes the terms of employer contributions. See 45 C.F.R. § 147.140(g). In 2011, 56 percent of individuals who receive health care from their employer were covered by grandfathered plans; in 2014, only 26 percent were covered by grandfathered plans. See Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits: 2014 Annual Survey, 7 (2014), http://files.kff.org/attachment/2014-employer-health-benefits-survey-full-report.
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any religious order.” Id. The Departments noted the definition was intended “to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.” Id.6 They invited comments on the proposed definition of “religious employer” and potential alternatives. Id.
The Departments received more than 200,000 responses to their request for comments from a variety of entities both supporting and opposing expansion of the proposed exemption. See Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012). After reviewing these comments, they published final regulations on February 15, 2012, adopting their proposed definition of “religious employer.” Id. at 8727. They also created a one-year safe harbor for religious non-profit organizations, during which the Departments would not enforce the Mandate against them. Id. at 8728. 2. The Accommodation Scheme for Religious Non-Profit Organizations
In response to religious groups that were dissatisfied with the scope of the proposed religious employer exemption, the Departments issued an advance notice of
6 A number of states have laws that require employers to cover contraceptive services but excuse some religious employers from complying. The Departments developed their definition to accord with these existing state laws. See 76 Fed. Reg. at 46,623.
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proposed rulemaking (“ANPRM”) in anticipation of creating additional accommodations for non-exempt religious non-profit organizations. Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg. 16,501 (Mar. 21, 2012). After reviewing the comments received from the ANPRM, the Departments published proposed rules creating an accommodation for a wider range of religious non-profit organizations. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 8456 (Feb. 6, 2013).
The Departments received over 400,000 comments on the proposed rules, and finalized two notable changes. Coverage of Certain Preventive Services Under the Affordable Care Act, 78 Fed. Reg. 39,870, 39,871 (July 2, 2013). First, the Departments simplified and clarified the existing exemption for religious employers by eliminating the first three elements of the definition, thereby defining “religious employer” as “an employer 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 [(“IRC”)].” Id. at 39,874. Second, they created an accommodation for religious non-profit organizations that did not meet this simplified definition of a religious employer. Id.
The regulations state a religious non-profit organization can receive this accommodation if it: (1) has religious objections to “providing coverage for some or all of the contraceptive services required to be covered” under the Mandate, (2) “is organized and operates as a nonprofit entity,” (3) “holds itself out as a religious organization,” and (4) “self-certifies that it satisfies the first three criteria.” Id. The
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accommodation is available for both (1) insured group health plans, under which an employer contracts with a health insurance issuer to assume the risk of providing benefits to employees, and (2) self-insured group health plans, under which the employer itself assumes the risk of providing benefits to employees. Id. at 39,875-80.7 As we explain below, religious non-profit organizations can self-certify their religious objection and receive the accommodation either by notifying their health insurance issuer or TPA or by notifying HHS directly.
a. EBSA Form 700 To self-certify under the accommodation scheme, the Departments initially required religious non-profit organizations to use the Employee Benefits Security Administration’s (“EBSA”) Form 700 (“Form”).8 Objecting organizations are relieved from complying with the Mandate by delivering the executed Form to their health insurance issuer or TPA. The Form notifies the health insurance issuer or TPA that the organization self-certifies as exempt from the Mandate because it has a religious objection to providing coverage for some or all contraceptive services to its employees, and identifies the relevant federal regulations under which the organization is permitted to opt out of that obligation. See Dep’t of Labor, EBSA Form 700 (Aug. 2014),
7 Employers with self-insured group health plans typically employ a TPA to coordinate logistics and deliver benefits. Cong. Budget Office, Key Issues in Analyzing Major Health Insurance Proposals, 6 (Dec. 2008), http://www.cbo.gov/sites/default/files/12-18-keyissues.pdf.
8 A copy of the Form appears at the end of this opinion.
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http://www.dol.gov/ebsa/preventiveserviceseligibleorganizationcertificationform.doc (citing 26 C.F.R. § 54.9815-2713A(a); 29 C.F.R. § 2590.715-2713A(a); 45 C.F.R. § 147.131(b)).
The back of the Form notifies TPAs of their obligations.9 Form at 2. It informs the TPA that the eligible organization “[w]ill not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services.” Form at 2. It identifies regulations requiring the TPA to provide contraceptive coverage without cost sharing to plan participants and beneficiaries if the TPA agrees to continue providing administrative services for a group health plan. Id. (citing 26 C.F.R. § 54.9815-2713A; 29 C.F.R. § 2510.3-16; 29 C.F.R. § 2590.715-2713A). A TPA that receives the Form from an objecting employer is eligible for a government payment to cover the costs of providing contraceptive coverage. See 45 C.F.R. § 156.50(d)(5).
As part of this scheme, the regulations initially included a non-interference provision, which specified that objecting religious non-profit organizations “must not, directly or indirectly, seek to influence the third party administrator’s decision” whether to provide coverage for contraceptives. 26 C.F.R. § 54.9815-2713A(b)(iii) (2013). When the Plaintiffs filed their suits, they sought a preliminary injunction relieving them
9 The notice of regulatory requirements on the back of the Form is specifically addressed to TPAs. See Form at 2. The legal obligations of health insurance issuers are evident from the text of the ACA itself. See 42 U.S.C. § 300gg-13.
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from complying with this version of the accommodation scheme, arguing delivery of the Form to their health insurance issuer or TPA constituted a substantial burden on their religious exercise in violation of RFRA and the First Amendment.
b. Alternative notice In response to litigation by Plaintiffs and others, the Departments have since expanded the accommodation scheme.10 The Supreme Court granted injunctions pending appeal in two suits brought by religious non-profit organizations, including the Little Sisters, that objected to the accommodation scheme. See Wheaton Coll. v. Burwell, 134 S. Ct. 2806 (2014); Little Sisters of the Poor Home for the Aged, Denver, Colo. v. Sebelius, 134 S. Ct. 1022 (2014). In a third suit, the Court declined to recall or stay a circuit court mandate in favor of the Government, but granted an injunction to religious non-profit organizations pending final disposition of their petition for certiorari. See Zubik v. Burwell, Nos. 14A1065, 14-1418, 2015 WL 3947586, at *1 (U.S. June 29, 2015). The injunctions allowed the organizations to notify HHS directly of their religious objection to the Mandate rather than sending the Form to their health insurance issuers or TPAs. In response to the injunction in Wheaton College, the Departments issued an interim final rule on August 27, 2014, creating an alternative accommodation for religious non-profit organizations. Coverage of Certain Preventive Services Under the
10 As we explain in this section, the Departments did not expand the pool of actors who could claim an accommodation and obtain relief from the Mandate. They expanded the accommodation scheme by offering objecting organizations an alternative method of self-certification.
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Affordable Care Act, 79 Fed. Reg. 51,092, 51,092 (Aug. 27, 2014).11
These regulations relieve a religious non-profit organization from complying with
the Mandate if it notifies HHS in writing of its religious objection to the provision of
some or all contraceptive services. Id. at 51,094. The notice may be sent by letter or
email, and must contain (1) “the name of the eligible organization and the basis on which
it qualifies for an accommodation,” (2) “its objection based on sincerely held religious
beliefs to providing coverage of some or all contraceptive services,” including any
particular subset to which it objects; (3) the name and type of the group health plan; and
(4) the name and contact information for any of the plan’s TPAs and/or health insurance
issuers. Id. at 51,094-95. According to the Departments, these requirements constitute
“the minimum information necessary for the Departments to determine which entities are
covered by the accommodation, to administer the accommodation, and to implement the
11 We discuss the procedural history of the cases before us below, but note that this alternative accommodation is akin to the accommodation granted by the Supreme Court in the cases mentioned above—Little Sisters, 134 S. Ct. 1022; Wheaton College, 134 S. Ct. 2806; and Zubik, 2015 WL 3947586:
If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators. Wheaton Coll., 134 S. Ct. at 2807.
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policies in the July 2013 final regulations.” Id. at 51,095.
The revised regulations also repeal the non-interference provision by deleting
language prohibiting organizations from interfering with or seeking to influence their TPA’s decision to cover contraception. Id.12
We note again that the entirety of this accommodation scheme for religious non-
profit organizations—using either the Form or the alternative notice to HHS—was not
available to the for-profit corporate plaintiff in Hobby Lobby. Here, an accommodation is
available to Plaintiffs. In the cases before us, we consider whether their taking advantage
of that accommodation to opt out of the Mandate is itself a substantial burden on their
religious exercise.
3. The Mechanics of the Accommodation for Insured Plans, Self-Insured Plans, and Self-Insured Church Plans The Plaintiffs use different types of employer-sponsored group health plans, which
the Departments treat differently within the accommodation scheme. By its own terms,
12 The regulations explain the rationale for this change: The Departments interpret the July 2013 final regulations solely as prohibiting the use of bribery, threats, or other forms of economic coercion in an attempt to prevent a third party administrator from fulfilling its independent legal obligations to provide or arrange separate payments for contraceptive services. Because such conduct is generally unlawful and is prohibited under other state and federal laws, and to reduce unnecessary confusion, these interim final regulations delete the language prohibiting an eligible organization from interfering with or seeking to influence a third party administrator’s decision or efforts to provide separate payments for contraceptive services. 79 Fed. Reg. at 51,095.
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the ACA obligates both group health plans and health insurance issuers to provide contraceptive coverage. 42 U.S.C. § 300gg-13 (“A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.”); 26 C.F.R. § 54.98152713(a)(1); 29 C.F.R. § 2590.715-2713(a)(1); 45 C.F.R. § 147.130(a)(1). Because the differences among these arrangements are relevant to our discussion of the merits of Plaintiffs’ claims, we consider it helpful to explain how the Mandate and accommodation scheme affect insured plans, self-insured plans, and self-insured church plans.
a. Insured plans When a religious non-profit organization offers its employees an insured plan, the statutory language not only requires the group health plan to cover contraception, but also obligates the plan’s health insurance issuer to ensure plan participants and beneficiaries receive contraceptive coverage. See 42 U.S.C. §§ 300gg-13; 300gg-22. Thus, even if a religious non-profit organization does not self-certify that it has an objection, its health insurance issuer is obligated to provide contraceptive coverage to plan participants and beneficiaries and charge the organization for the cost. See Priests for Life v. U.S. Dep’t of Health & Hum. Servs., 7 F. Supp. 3d 88, 95-96 & n.2 (D.D.C. 2013). The organization can free itself from complying with the Mandate and paying for that coverage, however,
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“if the eligible organization or group health plan provides either a copy of the selfcertification to each issuer providing coverage in connection with the plan or a notice to the Secretary of Health and Human Services.” 26 C.F.R. § 54.9815-2713AT(c)(1); 29 C.F.R. § 2590.715-2713A(c)(1); 45 C.F.R. § 147.131(c)(1). When an organization submits the Form expressing an objection to providing contraceptive coverage, “the issuer has sole responsibility for providing such coverage in accordance with § 147.130.” 45 C.F.R. § 147.131(c)(1)(i); see also 26 C.F.R. § 54.9815-2713AT(c)(1)(i) (requiring coverage in accordance with § 54.9815-2713); 29 C.F.R. § 2590.715-2713A(c)(1)(i) (requiring coverage in accordance with § 2590.715-2713). Similarly, when an organization notifies HHS, the Department of Labor will send a separate notification to the organization’s issuer informing it of that notice and describing its regulatory obligations. 45 C.F.R. § 147.131(c)(1)(ii); see also 26 C.F.R. § 54.98152713AT(c)(1)(ii); 29 C.F.R. § 2590.715-2713A(c)(1)(ii).
In the context of insured plans, health insurance issuers are generally responsible for paying for contraceptive coverage when a religious non-profit organization opts out. See 45 C.F.R. § 156.50. The Departments expect this will be cost-neutral for issuers because of the cost savings that accompany improvements in women’s health and lower pregnancy rates. See 78 Fed. Reg. at 39,877.
b. Self-insured plans When a religious non-profit organization offers its employees a self-insured plan, the accommodation works in a slightly different fashion. A self-insured group health
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plan complies with the regulatory requirements and is excused from providing contraceptive coverage if “[t]he eligible organization or its plan contracts with one or more third party administrators” and “[t]he eligible organization provides either a copy of the self-certification to each third party administrator or a notice to the Secretary of Health and Human Services that it is an eligible organization and of its religious objection to coverage of all or a subset of contraceptive services.” 26 C.F.R. § 54.98152713AT(b)(1); 29 C.F.R. § 2590.715-2713A(b)(1).
Although the text of the ACA does not specify a role for TPAs, it expressly requires group health plans to include contraceptive coverage, and federal regulations impose obligations on TPAs that administer self-insured group health plans. See 42 U.S.C. § 300gg-13; 26 C.F.R. § 54.9815-2713AT(b); 29 C.F.R. § 2590.715-2713A(b). The regulations require a TPA administering a group health plan to provide or arrange for contraceptive coverage without cost sharing with the organization or its beneficiaries when it: (1) receives a notification that an eligible employer has opted out of providing coverage and (2) decides to remain in a relationship with that employer or its plan to provide administrative services for the plan. 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The TPA’s obligations are enforceable under the Employee Retirement Income Security Act (“ERISA”). See 78 Fed. Reg. at 39,879-80.
In the context of self-insured plans, a TPA may seek reimbursement if it has received the Form or a notification from the government and “provides or arranges payments for contraceptive services.” See 26 C.F.R. § 54.9815-2713AT(b)(3); 29 C.F.R.
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§ 2590.715-2713A(b)(3); 45 C.F.R. § 156.50(d)(2)(ii)-(iii). TPAs do so by working through health insurance issuers, who receive adjustments to fees they pay to the government under the ACA and pass along the reimbursements to TPAs. See 45 C.F.R. § 156.50(d).
c. Self-insured church plans Although federal regulations impose certain requirements on TPAs, the Departments concede they lack authority to enforce those requirements as to self-insured “church plans,” which are group health plans established by a church or association of churches covering the church’s or association’s employees. 29 U.S.C. § 1002(33). Organizations that provide health care coverage for employees through self-insured church plans are exempt from regulation under ERISA. 29 U.S.C. § 1003(b)(2). Unless a church plan has made an election under 26 U.S.C. § 410(d), which opts plans into provisions of ERISA, the Departments concede they lack authority to compel church plan TPAs to provide contraceptive coverage, and may not levy fines against those TPAs for failing to provide it.
d. Legal obligation to provide coverage after the accommodation Although the accommodation is available for both insured and self-insured group health plans, the source of the legal obligation to provide contraceptive coverage after a religious non-profit organization has opted out differs based on the type of insurance arrangement the organization uses. When an organization takes advantage of the accommodation, the ACA requires health insurance issuers to provide coverage for
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insured group health plans, while federal regulations adopted pursuant to the ACA require TPAs to arrange coverage for self-insured group plans that are subject to ERISA. As we discuss below, these distinctions shape the claims advanced by different Plaintiffs in the cases before us.
B. The Plaintiffs The Plaintiffs13 in this litigation object to both means to receive an accommodation—sending the Form to their health insurance issuer or TPA or sending a notification to HHS. The Plaintiffs differ from each other in ways that are relevant to the Departments’ authority to require employers to provide contraceptive coverage and relieve objecting religious non-profit organizations from the Mandate when they use the accommodation scheme. 1. Little Sisters of the Poor The Little Sisters of the Poor Home for the Aged, Denver, Colorado and Little Sisters of the Poor, Baltimore (“Little Sisters”) belong to an order of Catholic nuns who devote their lives to care for the elderly. The Little Sisters provide health insurance coverage to their employees through the Christian Brothers Employee Benefit Trust (“Trust”), a self-insured church plan that is not subject to ERISA. The Trust uses Christian Brothers Services (“Christian Brothers”), another Catholic organization, as its TPA.
13 When we refer to the plaintiffs in all three cases collectively, we use “Plaintiffs.” When we refer to a subset of the plaintiffs, we use “plaintiffs.”
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The Little Sisters have always excluded coverage of sterilization, contraception, and abortifacients from their health care plan in accordance with their religious belief that deliberately avoiding reproduction through medical means is immoral. The Little Sisters “believe that it is wrong for them to intentionally facilitate the provision of these medical procedures, drugs, devices, and related counseling and services.” LS Br. at 10. They cite “well-established Catholic teaching that prohibits encouraging, supporting, or partnering with others in the provision of sterilization, contraception, and abortion.” LS Br. at 9-10. The Little Sisters contend they “cannot provide these things, take actions that directly cause others to provide them, or otherwise appear to participate in the government’s delivery scheme,” as the mere appearance of condoning these services “would violate their public witness to the sanctity of human life and human dignity and could mislead other Catholics and the public.” LS Br. at 10.
The Little Sisters are subject to the Mandate unless they take advantage of the accommodation scheme by delivering the Form to the Christian Brothers, their TPA, or notifying HHS of their religious objection. If they do not take one of these steps and do not provide contraceptive coverage, they estimate a single Little Sisters home could incur penalties of up to $2.5 million per year, and allege the Trust could lose up to $130 million in plan contributions. The Little Sisters plaintiffs object that the accommodation scheme violates their sincerely held religious beliefs because they cannot take actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme.
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2. Southern Nazarene
Southern Nazarene University, Oklahoma Wesleyan University, Oklahoma Baptist
University, and Mid-America Christian University are “Christ-centered institutions of
higher learning.” SN Br. at 1-2. Southern Nazarene is partially self-insured; it generally
assumes the risks of providing coverage but contracts with a health insurance issuer to
pay all claims over $100,000. For its insured employee coverage, it uses Blue Cross Blue
Shield of Oklahoma. It offers separate coverage to students through an insured plan.
Oklahoma Baptist is an insured university. It uses Blue Cross Blue Shield of Oklahoma,
and offers separate coverage to students through an insured plan. Oklahoma Wesleyan is
an insured university. It uses Community Care of Oklahoma. Mid-America Christian is
a self-insured university on a church plan that is not subject to ERISA. It uses plans
provided by GuideStone Financial Resources.14
14 The descriptions of Mid-America Christian’s insurance arrangements in the record before us are inconsistent. Before the district court, counsel described MidAmerica Christian’s plan as “insured by GuideStone,” App. in SN at A32, and suggested it would be obligated, like Oklahoma Baptist and Oklahoma Wesleyan, to deliver the Form to its health insurance issuer to opt out of the Mandate. In its opening brief on appeal, counsel described Mid-America Christian’s plan as “self-insured,” and suggested it would be obligated, like Southern Nazarene, to deliver the Form to its TPA. SN Br. at 2, 18. In a supplemental brief and at oral argument, counsel now indicates Mid-America Christian has a self-insured church plan and is more akin to the Reaching Souls plaintiffs. SN Supp. Br. II at 9 n.2; Oral Arg. in SN at 20:24-20:32.
We treat Mid-America Christian’s plan as a self-insured church plan. The parties in Southern Nazarene stipulated as fact that Mid-America Christian’s group health plan is provided by GuideStone Financial Resources. Southern Nazarene, 2013 WL 6804265, at *2. Because we understand GuideStone Financial Resources to be a sponsor of selfinsured church plans and not an insurer, we assume the latest characterization on appeal
Continued . . .
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The universities have brought suit collectively, but they are in slightly different positions insofar as Mid-America Christian University uses a church plan and contracts with a TPA, Oklahoma Baptist University and Oklahoma Wesleyan use health insurance issuers, and Southern Nazarene contracts with a TPA but uses a health insurance issuer for student coverage and employee claims above $100,000.
The universities believe “it would be sinful and immoral for them to participate in, pay for, facilitate, enable, or otherwise support access to abortion, abortion-inducing drugs and devices, and related counseling.” SN Br. at 1-2. They object to the provision of contraceptives they consider abortifacients. The universities currently offer health plans to students and employees that do not cover the contraceptives the universities find objectionable.
The universities are subject to the Mandate, but they may take advantage of the accommodation scheme by delivering the Form or notifying HHS of their religious objections to relieve themselves of the obligation to provide contraceptive coverage. They object to the accommodation, however, because they believe it requires them to expressly or functionally offer contraceptive coverage through their group health plan, interferes with the spiritual development of their communities, and requires them to facilitate behavior they consider sinful. If they do not take advantage of the
______________________________________ Cont.
is correct and treat Mid-America Christian’s group health plan as a self-insured church plan that is not subject to ERISA.
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accommodation, each university must either provide coverage or incur penalties of $100 per employee per day. 3. Reaching Souls
Reaching Souls is a non-profit corporation founded by a Southern Baptist minister and based in Oklahoma. The organization trains pastors and evangelists and provides care to orphans in Africa, India, and Cuba. Truett-McConnell College is a private liberal arts college based in Georgia. Both Reaching Souls and Truett-McConnell use the GuideStone Plan, a self-insured church plan that is not subject to ERISA. GuideStone Financial Resources, a Texas non-profit corporation, established the GuideStone Plan and holds the assets funding it in trust. GuideStone Financial Resources has entered into agreements with other entities to provide claims administration as TPAs under the GuideStone Plan, including Connecticut General Life Insurance Company, Highmark Health Services, and Express Scripts, Inc.
Reaching Souls believes life begins at conception and objects to four of the twenty FDA-approved methods of contraception that Reaching Souls characterizes as abortifacients. Truett-McConnell has adopted the Southern Baptist Convention’s statement of faith and objects to the same four methods of contraception. GuideStone Financial Resources, as an arm of the Southern Baptist Convention, also opposes coverage of contraception methods it believes to be abortifacients. The organizations ground their beliefs in the sanctity of human life and opposition to elective abortion in the religious teachings of the Southern Baptist Convention.
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Both Reaching Souls and Truett-McConnell College are subject to the Mandate, but they may take advantage of the accommodation scheme by delivering the Form or notifying HHS of their religious objections. If they do, GuideStone Financial Resources would have to pass the information to the TPAs of the GuideStone Plan to effectuate the coverage. The plaintiffs believe this would violate their religious beliefs “by making them complicit in the government’s scheme to provide abortifacients.” RS Br. at 4. If the organizations do not take advantage of the accommodation scheme or provide coverage, they contend they will incur millions of dollars in fines, which “would crush the ministries and force a mass exodus from GuideStone.” RS Br. at 3.
C. Procedural History The district courts reached different results in the three cases before us, denying a preliminary injunction to the plaintiffs in Little Sisters but granting a preliminary injunction to the plaintiffs in Southern Nazarene and Reaching Souls. Reviewing the reasoning behind their determinations clarifies the claims before us on appeal. 1. Little Sisters of the Poor In Little Sisters, the district court determined that complying with the accommodation scheme would not impose a substantial burden on the Little Sisters’ or Christian Brothers’ religious exercise. 6 F. Supp. 3d at 1239-45. The court’s analysis of the preliminary injunction factors began and ended by examining whether the plaintiffs would suffer irreparable injury if the requested relief were denied. Id. at 1236. After determining it was the court’s duty to determine how the regulations operate as a matter
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of law, id. at 1239, the court concluded the accommodation scheme does not require the Little Sisters to provide contraceptive coverage or to participate in the provision of contraceptive coverage, id. at 1239-42.
The court noted that the Little Sisters—unlike the plaintiffs in Hobby Lobby— could be relieved of the obligation to provide coverage by signing and delivering the Form to their TPA, the Christian Brothers. Id. at 1237.15 The court underscored that, while the Departments could require the Little Sisters to sign and deliver the Form to their TPA to avoid the Mandate, the Departments lacked enforcement authority under ERISA to levy fines or otherwise force the Christian Brothers to provide contraceptive coverage as the TPA for a self-insured, ERISA-exempt church plan. Id. at 1243-44. The court concluded that requiring the Little Sisters to sign and deliver the Form to opt out did not constitute a substantial burden on their religious exercise and declined to issue a preliminary injunction. Id. at 1242-45.
The Little Sisters next asked the Tenth Circuit for an injunction pending appeal, which this court denied. The Supreme Court subsequently granted their request for an injunction pending appeal, allowing the Little Sisters to notify HHS of their religious objection instead of sending the Form to their TPA as the regulations at the time required.
15 At the time the district courts decided all three of the cases before us, the interim final rules allowing Plaintiffs to opt out by notifying HHS of their religious objection had not yet been issued. The district court decisions therefore focus on the Form and do not consider the expanded accommodation scheme in August 2014’s interim final rules. In supplemental briefing to this court, the Plaintiffs argue the expanded scheme does not adequately address the religious liberty concerns they have raised in this litigation.
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See Little Sisters, 134 S. Ct. 1022. The Little Sisters now appeal the district court’s denial of a preliminary injunction.
2. Southern Nazarene In Southern Nazarene, the district court granted a preliminary injunction to the
plaintiffs. 2013 WL 6804265, at *11. The court’s analysis focused mainly on the plaintiffs’ likelihood of success on the merits.16 Id. at *7-10. The court characterized the Form as “in effect, a permission slip which must be signed by the institution to enable the plan beneficiary to get access, free of charge, from the institution’s insurer or third party administrator, to the products to which the institution objects.” Id. at *8. It determined the Form imposed a substantial burden on the plaintiffs’ sincere religious exercise and the Government had not articulated a compelling state interest or argued its approach was the least restrictive means of advancing that interest. Id. at *7-10.
16 The district court noted that, unlike in the recently decided Priests for Life, 7 F. Supp. 3d 88, the parties in Southern Nazarene “stipulated that the act of signing the certification is contrary to the religious beliefs to which these institutions subscribe.” Southern Nazarene, 2013 WL 6804265, at *8. The court’s characterization paraphrases the stipulation, which addresses only the litigation position taken by the Southern Nazarene plaintiffs. The parties specifically stipulated: “The Universities believe that, within the operation of the regulations, completing and delivering the self-certification to their issuers or third party administrators would violate the Universities’ sincere religious beliefs.” Id. at *5. The Government accepts that the Southern Nazarene plaintiffs take the position that completing the self-certification would violate their religious beliefs—a fairly straightforward characterization of their litigation position—but has never conceded that completing the self-certification actually would violate their religious beliefs.
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The court concluded the plaintiffs had shown they were likely to succeed on the merits. Id. After reaching this conclusion, it briefly reviewed the other preliminary injunction factors and entered a preliminary injunction that prevented the Departments from enforcing the Mandate, requiring self-certification to opt out, or levying penalties. Id. at *10-11. The Government now appeals the district court’s ruling. 3. Reaching Souls
Like the district court in Southern Nazarene, the district court in Reaching Souls granted a preliminary injunction to the plaintiffs. 2013 WL 6804259, at *8. The court primarily analyzed the likelihood of plaintiffs’ success on the merits. Id. at *6-8. It characterized the Government’s substantial burden argument as “simply another variation of a proposition rejected by the court of appeals in Hobby Lobby,” likening it to the argument that the Mandate was not a substantial burden on for-profit employers because it required intervening acts by third parties—employees deciding whether to acquire contraception. Id. at *7. It emphasized that regardless of whether the Form actually triggers the provision of contraceptive services, the plaintiffs believe that signing it would signal their tacit support or cooperation. Id.
The court thus determined “the accommodation scheme applies substantial pressure on Plaintiffs to violate their belief that participating in or facilitating the accommodation is the moral equivalent of directly complying with the contraceptive mandate.” Id. at *8. It briefly reviewed the other preliminary injunction factors and enjoined the Government from requiring the plaintiffs to comply with the Mandate and
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accommodation scheme or penalizing the plaintiffs for noncompliance. Id. The Government now appeals the district court’s ruling.
IV. UNUSUAL NATURE OF PLAINTIFFS’ CLAIM Before we present our analysis of the issues, we wish to highlight the unusual nature of Plaintiffs’ central claim, which attacks the Government’s attempt to accommodate religious exercise by providing a means to opt out of compliance with a generally applicable law. Most religious liberty claimants allege that a generally applicable law or policy without a religious exception burdens religious exercise, and they ask courts to strike down the law or policy or excuse them from compliance. Our circuit’s three most recent RFRA cases fall into this category. In Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc), aff’d sub nom. Hobby Lobby, 134 S. Ct. 2751, the ACA required the plaintiffs to provide their employees with health insurance coverage of contraceptives against their religious beliefs. In Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014), a prison policy denied the plaintiff access to a sweat lodge, where he wished to exercise his Native American religion. In Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010), a prison policy denied the plaintiff a halal diet, which is necessary to his Muslim religious exercise. In each instance, the law or policy failed to provide an exemption or accommodation to the plaintiff(s). The Supreme Court’s recent ruling in Holt v. Hobbs, 135 S. Ct. 853 (2015), which concerned a prison ban on inmates’ growing beards, is another recent example of the
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more common RFRA claim. The plaintiff in Holt sought to grow a beard in accordance
with his Muslim faith. In Holt, like in Hobby Lobby, the government defendants insisted
on a complete restriction and did not attempt to accommodate the plaintiff’s religious
exercise. The plaintiff in Holt proposed a compromise—he would be allowed to grow
only a half-inch beard—which the prison refused. 135 S. Ct. at 861. The Court
ultimately approved this compromise in its ruling. Id. at 867.
In the cases before us, by contrast, the Departments have developed a religious
accommodation rather than leaving it for the courts to fashion judicial relief. Plaintiffs
not only challenge a law that requires them to provide contraceptive coverage against
their religious beliefs, they challenge the exception that the law affords to them. The
precedents Plaintiffs cite are instructive in some respects, but none of them involve a situation where the government offers religious objectors an accommodation.17 The
Supreme Court and this circuit have suggested such accommodations might have
eliminated or lessened burdens we otherwise deemed substantial. See, e.g., Hobby
Lobby, 134 S. Ct. at 2759 (observing the accommodation scheme “constitutes an
17 The accommodation adds an additional consideration that makes this unlike the typical RFRA case. In Hobby Lobby, Yellowbear, Abdulhaseeb, and Holt, the government either required or prohibited acts of religious significance to the plaintiffs. In the cases before us, the government has freed Plaintiffs from the responsibility to perform the act they consider religiously objectionable—namely, providing contraceptive coverage. Nonetheless, the Plaintiffs argue an act they do not consider objectionable in itself—completing a form or writing to HHS—becomes objectionable because it either causes the provision of contraceptive coverage or renders them complicit in the provision of contraceptive coverage. Therefore, unlike the aforementioned cases, we are in the slightly different position of considering whether an otherwise unobjectionable act, understood in context, constitutes a substantial burden on Plaintiffs’ religious exercise.
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alternative that achieves all of the Government’s aims while providing greater respect for religious liberty”); Yellowbear, 741 F.3d at 56 (underscoring that the case “isn’t a situation where the claimant is left with some degree of choice in the matter and we have to inquire into the degree of the government’s coercive influence on that choice”). Until now, however, we have not squarely considered a RFRA challenge to a religious accommodation.
The closest Tenth Circuit case we have found is United States v. Friday, 525 F.3d 938 (10th Cir. 2008), in which defendant Winslow Friday argued his conviction for shooting a bald eagle without a permit violated RFRA because he shot the eagle for use in a tribal religious ceremony. The Bald and Golden Eagle Protection Act forbids killing a bald eagle, but an applicant can obtain a permit to “take” a live eagle for a religious ceremony. See 16 U.S.C. §§ 668, 668a. We recognized the potential question of “whether it substantially burdens Mr. Friday’s religion to require him to obtain a permit in advance of taking an eagle.” Friday, 525 F.3d at 947. We said we were “skeptical that the bare requirement of obtaining a permit can be regarded as a ‘substantial burden’ under RFRA,” id., but Mr. Friday did not make that specific argument, and we decided the permit accommodation otherwise met RFRA’s strict scrutiny element, id. at 948.
We spoke favorably of the government’s accommodation scheme in Friday, even though “[t]hat accommodation may be more burdensome than the [religious objectors] would prefer, and may sometimes subordinate their interests to other policies not of their choosing.” Id. at 960. As we noted in conclusion: “Law accommodates religion; it
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cannot wholly exempt religion from the reach of the law.” Id. We therefore turn to uncharted Tenth Circuit terrain.
* * * * The Plaintiffs in the three cases before us assert claims against the Mandate and accommodation scheme under RFRA and the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses.18 Because we determine the accommodation scheme relieves Plaintiffs from complying with the Mandate and does not substantially burden their religious exercise under RFRA or infringe upon their First Amendment rights, we affirm the district court’s denial of a preliminary injunction to the plaintiffs in Little Sisters and reverse the district courts’ grants of a preliminary injunction to the plaintiffs in Southern Nazarene and Reaching Souls.
V. RFRA Under RFRA, the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless “it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. Plaintiffs argue the ACA and its implementing regulations violate RFRA because
18 We refer to “Plaintiffs” throughout the discussion, but in the First Amendment context, “Plaintiffs” refers only to the plaintiffs in Little Sisters and Reaching Souls. See infra note 51.
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they substantially burden their religious exercise by forcing them to do one of three
things: (a) comply with the Mandate and provide contraceptive coverage, (b) take
advantage of the accommodation scheme, or (c) pay steep fines for non-compliance.19
We conclude that the accommodation scheme relieves Plaintiffs of complying with the
Mandate or paying fines and does not impose a substantial burden on Plaintiffs’ religious
exercise for the purposes of RFRA.
To explain why the accommodation is permissible under RFRA, we first review
the RFRA framework and consider how religious accommodations may lessen or
eliminate the substantiality of a burden on religious exercise. We then apply this
framework to the accommodation scheme before us, which exempts religious non-profits
19 The Government identifies a fourth option: by declining to sponsor a group health plan, Plaintiffs could avoid complying with the Mandate, using the accommodation, or paying the fines. The Government frames the Plaintiffs’ provision of health insurance as an economic expenditure, and notes that regulations may make a business activity more expensive or onerous without violating the freedom of religion. See Tony & Susan Alamo Found. v. Sec. of Labor, 471 U.S. 290, 303-05 (1985); Braunfeld v. Brown, 366 U.S. 599, 605-06 (1961); but see Hobby Lobby, 134 S. Ct. at 2777. Plaintiffs respond that they consider the provision of health insurance a religious obligation, not merely an economic expenditure. Plaintiffs “believe they have a religious obligation to care for the employees who join in their ministry, and they cannot throw those people off their insurance policies without violating that obligation and harming their ministry.” LS Reply Br. at 8.
Because we determine the accommodation scheme is not a substantial burden, we need not decide whether this fourth option constitutes a substantial burden on religious exercise—or, if it does, whether it survives strict scrutiny.
For similar reasons, we need not address the safe harbor provision detailed in the June 2013 regulations, which indicates organizations with self-insured group health plans that bring administration of their plans in-house and thereby do not use third-party administrators currently are not subject to enforcement of the contraceptive coverage requirement. 78 Fed. Reg. at 39,880-81.
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from providing contraceptive coverage and instead assigns that task to health insurance issuers and TPAs.
We conclude the accommodation does not substantially burden Plaintiffs’ religious exercise. The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity. Furthermore, these de minimis administrative tasks do not substantially burden religious exercise for the purposes of RFRA.
The dissent parts ways with our majority opinion on the self-insured plaintiffs’ RFRA claims. It stresses that, by opting out, the self-insured plaintiffs would cause the legal responsibility to provide contraceptive coverage to shift to their TPAs.20 We agree. As we observe below, the regulations are clear on that point.21 But shifting legal

20 Plaintiffs make causation the centerpiece of their RFRA claim. They allege that opting out of the Mandate would cause or make them complicit in providing contraceptive coverage, and thus substantially burdens their religious exercise. Much of our opinion assesses and ultimately rejects the merits of this claim.
21 Indeed, this is an unremarkable feature of the accommodation scheme. An opt out religious accommodation typically contemplates that a non-objector will replace the religious objector and take over any legal responsibilities.

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responsibility to provide coverage away from the plaintiffs relieves rather than burdens their religious exercise. The ACA and its implementing regulations entitle plan participants and beneficiaries to coverage whether or not the plaintiffs opt out. And the government has established a scheme where, if the law is followed, self-insured plaintiffs that opt out are relieved of providing, paying for, and facilitating coverage; the government assigns that responsibility to their TPAs; and plan participants and beneficiaries receive the coverage to which they are entitled by federal law. Such an arrangement is among the common and permissible methods of religious accommodation in a pluralist society, and does not constitute a substantial burden under RFRA.
A. Legal Background 1. Standard of Review
Each appeal before us seeks review of a district court order granting or denying a preliminary injunction. We review orders granting or denying a preliminary injunction for abuse of discretion. See Hobby Lobby, 723 F.3d at 1128; Aid for Women v. Foulston, 441 F.3d 1101, 1115 (10th Cir. 2006).
A preliminary injunction may be granted if the party seeking it shows: “(1) a likelihood of success on the merits; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the movant outweighs any harm to the non-moving party; and (4) an injunction is in the public interest.” Hobby Lobby, 723 F.3d at 1128. A district court abuses its discretion by granting or denying a preliminary injunction based on an error of law. See id.; Aid for Women, 441 F.3d at 1115.
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2. RFRA and Free Exercise RFRA was enacted in 1993 in response to Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), in which the Supreme Court held that burdens on religious exercise are constitutional under the Free Exercise Clause if they result from a neutral law of general application and have a rational basis. Id. at 878-80; United States v. Hardman, 297 F.3d 1116, 1126 (10th Cir. 2002). Congress enacted RFRA to restore the pre-Smith standard, which permitted legal burdens on an individual’s religious exercise only if the government could show a compelling need to apply the law to that person and that the law did so in the least restrictive way. Smith, 494 U.S. at 882-84; see also Hobby Lobby, 134 S. Ct. at 2792-93 (Ginsburg, J., dissenting). Congress specified the purpose of RFRA was to restore this compelling interest test as it had been recognized in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972). See 42 U.S.C. § 2000bb(b)(1).
By restoring the pre-Smith compelling interest standard, Congress did not express any intent to alter other aspects of Free Exercise jurisprudence. See id.; Hobby Lobby, 723 F.3d at 1133 (“Congress, through RFRA, intended to bring Free Exercise jurisprudence back to the test established before Smith. There is no indication Congress meant to alter any other aspect of pre-Smith jurisprudence . . . .”). Notably, pre-Smith jurisprudence allowed the government “wide latitude” to administer large administrative programs, and rejected the imposition of strict scrutiny in that context. As the Supreme Court indicated in Bowen v. Roy,
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In the enforcement of a facially neutral and uniformly applicable requirement for the administration of welfare programs reaching many millions of people, the Government is entitled to wide latitude. The Government should not be put to the strict test applied by the District Court; that standard required the Government to justify enforcement of the use of Social Security number requirement as the least restrictive means of accomplishing a compelling state interest.
476 U.S. 693, 707 (1986). As we discuss at greater length below, the pre-Smith standards
restored by RFRA permitted the Government to impose de minimis administrative
burdens on religious actors without running afoul of religious liberty guarantees.
3. Elements of RFRA Analysis
RFRA analysis follows a burden-shifting framework. “[A] plaintiff establishes a
prima facie claim under RFRA by proving the following three elements: (1) a substantial
burden imposed by the federal government on a (2) sincere (3) exercise of religion.” Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 2001); see 42 U.S.C. § 2000bb-1(a).22
The burden then shifts to the government to demonstrate its law or policy advances “a
compelling interest implemented through the least restrictive means available.” Hobby
Lobby, 723 F.3d at 1142-43. The government must show that the “compelling interest
test is satisfied through application of the challenged law ‘to the person’—the particular
22 RFRA originally defined “exercise of religion” as “the exercise of religion under the First Amendment to the Constitution.” In 1999, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) amended RFRA, and redefined “exercise of religion” by reference to 42 U.S.C. § 2000cc-5(7)(A). 42 U.S.C. § 2000bb-2(4). Section 2000cc-5(7)(A) expanded the phrase to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); see Kikumura, 242 F.3d at 960.
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claimant whose sincere exercise of religion is being substantially burdened.” Id. at 1126 (quotations and citation omitted). “This burden-shifting approach applies even at the preliminary injunction stage.” Id.
We have previously stated “a government act imposes a ‘substantial burden’ on religious exercise if it: (1) requires participation in an activity prohibited by a sincerely held religious belief, (2) prevents participation in conduct motivated by a sincerely held religious belief, or (3) places substantial pressure on an adherent to engage in conduct contrary to a sincerely held religious belief.” Hobby Lobby, 723 F.3d at 1125-26 (quotations and alterations omitted); see also Yellowbear, 741 F.3d at 55 (applying this framework to RLUIPA); Abdulhaseeb, 600 F.3d at 1315 (same). As we discuss in the next section, whether a law substantially burdens religious exercise in one or more of these ways is a matter for courts—not plaintiffs—to decide. 4. Courts Determine Substantial Burden
To determine whether plaintiffs have made a prima facie RFRA claim, courts do not question “whether the petitioner . . . correctly perceived the commands of [his or her] faith.” Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716 (1981); see Hobby Lobby, 723 F.3d at 1138-40. But courts do determine whether a challenged law or policy substantially burdens plaintiffs’ religious exercise. RFRA’s statutory text and religious liberty case law demonstrate that courts—not plaintiffs—must determine if a law or policy substantially burdens religious exercise.
RFRA states the federal government “shall not substantially burden a person’s
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exercise of religion.” 42 U.S.C. § 2000bb-1(a). We must “give effect . . . to every clause and word” of a statute when possible. United States v. Menasche, 348 U.S. 528, 538-39 (1955). Drafts of RFRA prohibited the government from placing a “burden” on religious exercise. Congress added the word “substantially” before passage to clarify that only some burdens would violate the act. 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statements of Sen. Kennedy and Sen. Hatch).
We therefore consider not only whether a law or policy burdens religious exercise, but whether that burden is substantial. If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning. See Menasche, 348 U.S. at 53839. Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.
Every circuit that has addressed a RFRA challenge to the accommodation scheme at issue here has concluded that whether the government has imposed a “substantial burden” is a legal determination. See E. Tex. Baptist Univ. v. Burwell, Nos. 14-20112, 14-10241, 14-40212, 14-10661, 2015 WL 3852811, at *3-5 & n.33 (5th Cir. June 22, 2015); Univ. of Notre Dame v. Burwell, 786 F.3d 606, 612 (7th Cir. 2015); Geneva Coll. v. Sec’y of U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 436 (3d Cir. 2015); Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 247-49 (D.C. Cir. 2014); Mich. Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372, 385 (6th
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Cir. 2014), vacated and remanded, 135 S. Ct. 1914 (2015). This is consistent with our
determination that we review de novo “what constitutes [a] substantial burden . . . and the
ultimate determination as to whether the RFRA has been violated.” United States v.
Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996); see also Yellowbear, 741 F.3d at 56
(determining “a reasonable finder of fact could conclude the prison has substantially
burdened Mr. Yellowbear’s religious exercise”). Thus, we “accept[] as true the factual
allegations that [Plaintiffs’] beliefs are sincere and of a religious nature—but not the legal
conclusion, cast as a factual allegation, that [their] religious exercise is substantially
burdened.” Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008); see Mahoney v.
Doe, 642 F.3d at 1112, 1121 (D.C. Cir. 2011); Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001).23
We have cautioned that substantiality does not permit us to scrutinize the
“theological merit” of a plaintiff’s religious beliefs—instead, we analyze “the intensity of
23 Plaintiffs cite Thomas to argue we must accept their belief that they cannot participate in the accommodation whether or not that belief is “acceptable, logical, consistent, or comprehensible.” LS Br. at 47; RS Br. at 39 (quoting Thomas, 450 U.S. at 714). Thomas concerned the denial of unemployment benefits to a claimant who quit his job because his religious beliefs prohibited him from producing armaments to be used for war. Thomas prevents courts from scrutinizing the theological merit of a plaintiff’s sincere religious belief, but not from assessing whether a challenged law or policy amounts to a substantial burden on religious exercise. See Hernandez v. Comm’r, 490 U.S. 680, 699 (1989) (“It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds. We do, however, have doubts whether the alleged burden imposed by the deduction disallowance on the Scientologists’ practices is a substantial one.” (citing Thomas, 450 U.S. at 716)).
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the coercion applied by the government to act contrary to those beliefs.” Hobby Lobby, 723 F.3d at 1137 (emphasis omitted). “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.” Id.24 In determining whether a law or policy applies substantial pressure on a claimant to violate his or her beliefs, we consider how the law or policy being challenged actually operates and affects religious exercise. See Geneva Coll., 778 F.3d at 436 (“We may consider the nature of the action required of the appellees, the connection between that action and the appellees’ beliefs, and the extent to which that action interferes with or otherwise affects the appellees’ exercise of religion—all without delving into the appellees’ beliefs.”); see also 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy) (observing that RFRA would not impose strict scrutiny for “governmental actions that have an incidental effect on religious institutions”).
When evaluating RFRA claims, we have therefore recognized that not all burdens alleged by plaintiffs amount to substantial burdens. See Abdulhaseeb, 600 F.3d at 1321 (“We are not willing to conclude, however, that every single presentation of a meal an inmate considers impermissible constitutes a substantial burden on an inmate’s religious exercise.”); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 654 (10th Cir. 2006) (“[W]e are not persuaded by Grace United’s assertion that the Board’s
24 The Government does not dispute the sincerity of Plaintiffs’ religious beliefs. See Little Sisters, 6 F. Supp. 3d at 1237; Southern Nazarene, 2013 WL 6804265, at *5; Reaching Souls, 2013 WL 6804259, at *4.
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denial of a zoning variance for its proposed daycare operation constitutes more than an incidental burden on religious conduct.”); Kikumura, 242 F.3d at 961 (requiring evidentiary proof from the plaintiff that an alleged burden was “substantial” and remanding to the district court). Furthermore, as we discuss in the following section, the existence of an accommodation may affect whether a law or policy burdens religious exercise and whether that burden is substantial. 5. Accommodations Can Lessen or Eliminate Burden
We finally note that accommodations function to lessen or eliminate the burden of a generally applicable law. In Hobby Lobby, this court said the stark choice between providing contraceptive coverage and paying steep fines constitutes a sufficiently substantial burden to warrant relief under RFRA. Hobby Lobby, 723 F.3d 1114. Religious objectors are not always put to such a stark choice. When, as here, plaintiffs are offered an accommodation to a law or policy that would otherwise constitute a substantial burden, we must analyze whether the accommodation renders the potential burden on religious exercise insubstantial or nonexistent such that the law or policy that includes the accommodation satisfies RFRA.
Accommodations may eliminate burdens on religious exercise or reduce those burdens to de minimis acts of administrative compliance that are not substantial for RFRA purposes. The Supreme Court recognized this point in Hobby Lobby when it suggested an accommodation to exempt the plaintiff corporations from complying with the Mandate could satisfy RFRA concerns. Hobby Lobby, 134 S. Ct. at 2782 (“At a
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minimum, [the accommodation] does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.”); see also id. at 2786-87 (Kennedy, J., concurring). The D.C. Circuit observed that “[a] burden does not rise to the level of being substantial when it places an inconsequential or de minimis burden on an adherent’s religious exercise.” Priests for Life, 772 F.3d at 246 (quotations, citations, and alterations omitted). Were it otherwise, our substantial burden inquiry would become a blunt tool incapable of recognizing the meaningful difference between forcing organizations to provide or pay for contraceptives and allowing them to opt out of that requirement. To determine whether the accommodation scheme in these cases renders the alleged burden on Plaintiffs’ religious exercise nonexistent or insubstantial, we turn to the merits of Plaintiffs’ RFRA arguments.
B. Substantial Burden Analysis 1. Plaintiffs’ RFRA Arguments
The cases before us turn on whether complying with the accommodation constitutes a substantial burden. The Government does not dispute the sincerity of Plaintiffs’ religious belief that they may not provide, pay for, or facilitate contraceptive coverage. The parties dispute whether the accommodation scheme substantially burdens the Plaintiffs’ exercise of religion.
Plaintiffs oppose completing the Form or notifying HHS because they believe they are being asked to play a causal role in the delivery of contraceptive coverage and would
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be complicit or perceived to be complicit in the overall contraceptive delivery scheme by
virtue of their opting out. They also allege their continuing involvement in the regulatory
scheme is a substantial burden.25
The Government responds that completing the Form or notification does not
involve Plaintiffs in the delivery of contraceptive coverage. The accommodation relieves
Plaintiffs of their obligations under the Mandate, and when that occurs, federal law
authorizes and obligates a health insurance issuer or TPA to provide or arrange for the
delivery of contraceptive coverage to plan participants and beneficiaries who are entitled
to that coverage under the ACA. The Government therefore argues the accommodation
25 The Little Sisters and Reaching Souls plaintiffs clarify that they “have never objected to merely identifying themselves so that the government can leave them alone.” LS Supp. Br. II at 2 n.2; RS Supp. Br. II at 2 n.2. They have expressed satisfaction with the Supreme Court’s injunctions pending appeal in Little Sisters and Wheaton College. LS Supp. Br. II at 1-2; RS Supp. Br. II at 2, 12; Oral Arg. in LS at 12:10-12:40. They nevertheless object to the recent modified accommodation promulgated by the Departments—the opt out letter to HHS—both because the self-certification requires more information about their group health plan than the aforementioned notice the Supreme Court proposed, and because of the “collateral consequences” that follow after they opt out. Oral Arg. in LS at 12:10-13:53.
The Little Sisters and Reaching Souls plaintiffs have not convincingly explained how the notice to HHS promulgated by the Departments would substantially burden their religious exercise but the notice crafted by the Supreme Court does not. In Wheaton College, the Supreme Court emphasized the plaintiffs had functionally notified the Departments they met the necessary requirements to obtain an accommodation, and said “[n]othing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” 134 S. Ct. at 2807; see also Zubik, 2015 WL 3947586.
The Southern Nazarene plaintiffs object to affirmatively voicing a religious objection, including the type of notice described in Wheaton College. See Oral Arg. in SN at 24:30-25:20. They appear to believe that exemption from the Mandate—like the exemption for religious employers—is the only proper result under RFRA.
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does not substantially burden Plaintiffs’ religious exercise as a matter of law.
2. The Accommodation Scheme Eliminates Burdens on Religious Exercise
Under the accommodation scheme, the act of opting out relieves objecting
religious non-profit organizations from complying with the Mandate and excuses them
from participating in the provision of contraceptive coverage. The Departments designed
the accommodation so that, upon receipt of the Form or a notification from the
government, health insurance issuers and TPAs—not the objecting religious non-profit
organization—provide contraceptive coverage and ensure the organization will not be
required to provide, pay for, or otherwise facilitate that coverage. See Mich. Catholic
Conf., 755 F.3d at 391. We review this feature of the accommodation scheme to show
how it eliminates burdens Plaintiffs otherwise would face, similar to the burdens the for-
profit plaintiffs faced in Hobby Lobby.
First, the regulations specify a health insurance issuer must handle contraceptive
coverage separately from the insurance provided under the religious non-profit
organization’s plan.
A group health insurance issuer that receives a copy of the self-certification or notification . . . must (A) Expressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan; and (B) Provide separate payments for any contraceptive services required to be covered under § 147.130(a)(1)(iv) for plan participants and beneficiaries for so long as they remain enrolled in the plan.

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45 C.F.R. § 147.131(c)(2)(i).26
Second, after a religious non-profit organization opts out, a health insurance issuer
may not share the costs of providing contraception with the employer or employees.
With respect to payments for contraceptive services, the [health insurance] issuer may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee, or other charge, or any portion thereof, directly or indirectly, on the eligible organization, the group health plan, or plan participants or beneficiaries. The issuer must segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services.
45 C.F.R. § 147.131(c)(2)(ii); see also 26 C.F.R. § 54.9815-2713A(c)(2)(ii); 29 C.F.R.
§ 2590.715-2713A(c)(2)(ii). TPAs are subject to similar requirements. See 26 C.F.R.
§ 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
Finally, a health insurance issuer or TPA must, in communicating with plan
participants or beneficiaries, send separate notice regarding contraceptive coverage from
other plan notifications and make clear the employer neither administers nor funds
contraceptive benefits. A health insurance issuer or TPA
must provide to plan participants and beneficiaries written notice of the availability of separate payments for contraceptive services contemporaneous with (to the extent possible), but separate from, any application materials distributed in connection with enrollment (or reenrollment) in group health coverage that is effective beginning on the first day of each applicable plan year. The notice must specify that the eligible organization does not administer or fund contraceptive benefits, but that the third party administrator or issuer, as applicable, provides separate
26 TPAs are not subject to this provision. Instead, a TPA that receives the Form or a notification from the government must provide or arrange for contraceptive coverage for plan participants and beneficiaries if it wishes to remain the TPA for the group health plan. See 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
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payments for contraceptive services, and must provide contact information for questions and complaints. 26 C.F.R. § 54.9815-2713A(d); 29 C.F.R. § 2590.715-2713A(d); see also 45 C.F.R. § 147.131(d). All of the foregoing remove the objecting religious non-profit organizations from providing contraceptive coverage, but Plaintiffs argue these protections of their religious liberty are insufficient because they still must deliver a Form or notify HHS to opt out of the Mandate. They contend this act substantially burdens their religious exercise because it “triggers” the provision of contraceptive coverage, makes them complicit in the larger delivery scheme, and demands their ongoing involvement. We disagree. The accommodation relieves Plaintiffs of their statutory obligation to provide contraceptive coverage to their plan participants and beneficiaries, and as we discuss below, taking advantage of that accommodation is not a substantial burden on religious exercise. 3. The Accommodation Scheme Does Not Impose a Substantial Burden To explain why the accommodation scheme does not substantially burden Plaintiffs’ religious exercise, we look at the theories argued by the Plaintiffs and why they fail. a. Opting out does not cause contraceptive coverage. Although the accommodation scheme frees Plaintiffs from providing, paying for, or facilitating contraceptive coverage, they contend that, by delivering the Form or notifying HHS, they nevertheless “trigger” or cause contraceptive coverage. They do not. As we explain below, Plaintiffs’ causation argument misconstrues the statutory and
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regulatory framework. Federal law, not the Form or notification to HHS, provides for contraceptive coverage without cost sharing to plan participants and beneficiaries. Because the mechanics of the accommodation scheme differ slightly for different types of plans, we examine how the regulations work for insured plans, self-insured plans, and self-insured church plans. But in each circumstance, Plaintiffs’ causation argument fails to establish any burden on Plaintiffs’ religious exercise.
i. Insured Plans The plaintiffs with insured plans deal directly with a health insurance issuer and do not use a TPA.27 They argue the accommodation scheme levies a substantial burden on their religious exercise because “insurance issuers will sell [them] plans that either (a) expressly include abortifacients; or (b) functionally include abortifacients by guaranteeing separate payments for them upon [their] execution and conveyance of the selfcertification to the issuer.” SN Br. at 18. We disagree. The regulations do not burden the religious exercise of employers using insured plans. The ACA obligates both group health plans and health insurance issuers to provide contraceptive coverage. A religious non-profit organization may comply with the Mandate and provide coverage to its employees, opt out using the accommodation, or not comply with the law and pay fines. But in each instance, the health insurance issuer
27 The plaintiffs with insured plans are Oklahoma Wesleyan University and Oklahoma Baptist University. Southern Nazarene also has an insured plan for students and claims above $100,000.
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must ensure the organization’s employees receive contraceptive coverage. By delivering the Form or notifying HHS, an organization with an insured plan
does not enable coverage—to the contrary, it simply notifies its health insurance issuer the organization will not be providing coverage. The health insurance issuer then has an independent and exclusive obligation to provide that coverage without cost sharing. The relevant regulation states: “When a self-certification is provided directly to an issuer, the issuer has sole responsibility for providing such coverage in accordance with § 147.130.” 45 C.F.R. § 147.131(c)(1)(i). Because the ACA obligates health insurance issuers to provide contraceptive coverage, they must meet this obligation independently and irrespective of the notification. The self-certification does not impose any responsibility; it merely makes it the issuer’s sole responsibility rather than one shared with the group health plan itself.
Because federal law requires the health insurance issuer to provide coverage and the accommodation process removes an objecting organization from participating, plaintiffs with insured plans fail to show the accommodation burdens their religious exercise. The insured plaintiffs are not burdened when they are relieved of their responsibility and their insurers provide coverage as required by independent obligations set out in the ACA.
ii. Self-Insured Plans The accommodation scheme permits religious non-profit organizations with selfinsured plans to opt out by delivering the Form to their TPA or notifying HHS that they
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have a religious objection and will not comply with the Mandate. When the objecting organization opts out, the TPA that administers its group health plan is responsible for providing contraceptive coverage if it wishes to remain a TPA for the plan. In this section, we address this self-insured arrangement. In the next section, we consider the subset of self-insured plaintiffs having church plans over which the government lacks enforcement authority under ERISA to compel the TPA to comply with its legal obligations.
1) Plaintiffs’ argument The only plaintiff with a self-insured plan subject to ERISA is Southern Nazarene. Southern Nazarene argues the accommodation scheme substantially burdens its religious exercise because the scheme requires it to “comply with the Mandate by either (a) setting up a self-insured plan that includes abortifacients; or (b) setting up a self-insured plan that functionally includes abortifacients by guaranteeing separate payments for them by the TPA upon the entity’s execution of the self-certification.” SN Br. at 18. Self-insured plaintiffs with ERISA-exempt church plans make similar claims. Plaintiffs and the dissent emphasize that the TPA may arrange or provide coverage only after a religious non-profit organization opts out.28 We consider this to be an
28 In University of Notre Dame, Judge Posner said: “By refusing to fill out the form Notre Dame would subject itself to penalties, but Aetna and Meritain would still be required to provide the services to the university’s students and employees.” Univ. of Notre Dame, 786 F.3d at 614.
We understand the mechanics of the accommodation to work differently. Aetna, as a health insurance issuer for Notre Dame’s students, would be obligated to provide
Continued . . .
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uncontested and unremarkable feature of the accommodation scheme.29 The regulations
state that when a religious non-profit organization opts out of providing contraceptive
coverage, the TPA is notified that the organization will not administer or pay for
contraceptive coverage, and that it must provide or arrange for contraceptive coverage
without cost sharing if it wishes to continue administering the plan. 26 C.F.R. § 54.9815-
2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The TPA is authorized and obligated
to provide the coverage guaranteed by the ACA only if the religious non-profit
organization that has primary responsibility for contraceptive coverage opts out of
providing it.
Plaintiffs suggest this shift in legal responsibility for contraceptive coverage
substantially burdens their religious exercise under RFRA. They argue their opting out
would trigger, cause, or offer a “permission slip” for the delivery of contraception by
allowing their TPA to provide the coverage. Southern Nazarene, 2013 WL 6804265, at
______________________________________ Cont.
contraceptive coverage under the ACA whether or not Notre Dame delivered the Form or notification to HHS. See 42 U.S.C. § 300gg-13. Meritain, a TPA, would be obligated to provide contraceptive coverage only after Notre Dame delivered the Form or notification to HHS and opted out of the Mandate. See 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2).
29 Even the dissent in Wheaton College recognized that a TPA need only provide the legally required contraceptive coverage when a religious non-profit organization takes advantage of the accommodation scheme. As Justice Sotomayor observed, “a third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification.” Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting from grant of injunction pending appeal).
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*8. We disagree. 2) Opting out does not cause coverage
The ACA requires all group health plans to cover preventive services, including contraception, without cost sharing. Because a group health plan must include contraceptive coverage under the ACA, the accommodation scheme requires a TPA that administers a self-insured religious non-profit organization’s group health plan to provide coverage if the organization opts out. The TPA must then arrange coverage for plan participants and beneficiaries if it wishes to continue functioning as the TPA for the objecting organization. This arrangement allows religious non-profit organizations to opt out and ensures plan participants and beneficiaries will receive the contraceptive coverage to which they are entitled by law.
Under this framework, the plaintiffs’ argument does not identify a substantial burden on religious exercise. The opt out does not “cause” contraceptive coverage; it relieves objectors of their coverage responsibility, at which point federal law shifts that responsibility to a different actor. The ACA and its implementing regulations have already required that group health plans will include contraceptive coverage and have assigned legal responsibilities to ensure such coverage will be provided when the religious non-profit organization opts out. See Wheaton College v. Burwell, No. 14-2396, 2015 WL 3988356, at *4 (7th Cir. July 1, 2015); E. Tex. Baptist Univ., 2015 WL 3852811, at *5-6; Univ. of Notre Dame, 786 F.3d at 613-14; Geneva Coll., 778 F.3d at

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437-38; Priests for Life, 772 F.3d at 254-55.30 This arrangement is typical of religious
objection accommodations that shift responsibility to non-objecting entities only after an
objector declines to perform a task on religious grounds.31 Although a religious non-
profit organization may opt out from providing contraceptive coverage, it cannot preclude
30 To the extent Plaintiffs are specifically concerned about the language on the Form, that concern can be alleviated by taking advantage of the expanded accommodation and notifying HHS in writing. Plaintiffs need not use any terms they consider morally charged, like “certify,” in their letter or email to HHS.
We further note the notification to HHS requires self-insured plaintiffs only to register their objection and identify their TPA—it does not require them to inform their TPA of any legal responsibilities to provide contraceptive coverage. When the opt out is submitted to HHS, the plaintiffs are relieved of their responsibilities. The government then takes steps to ensure that coverage is provided—HHS notifies the Department of Labor of the objection, and the Department of Labor then contacts the TPA to inform it of its duties under the ACA.
31 Analogizing the opt out to conscientious objections to war, see, e.g., Priests for Life, 772 F.3d at 245-46; Univ. of Notre Dame, 786 F.3d at 623-24 (Hamilton, J., concurring), should not overshadow the diverse array of mechanisms that federal, state, and local governments have used to accommodate objectors. Many religious objection schemes require an affirmative opt out before another person is required to step in and assume responsibility, and may require the objector to identify a replacement in the process. See, e.g., 2015 Utah Laws Ch. 46 (accommodating religious objections to samesex marriage of those working in county clerks’ offices by requiring that “[a] county clerk shall . . . establish policies to ensure that the county clerk, or a designee of the county clerk who is willing, is available during business hours to solemnize a legal marriage for which a marriage license has been issued”); Stormans Inc. v. Selecky, 844 F. Supp. 2d 1172 (W.D. Wash. Feb. 22, 2012) (reinstating a “refuse and refer” approach where pharmacies need not provide contraception so long as they refer patients to alternative providers); Conn. Agencies Regs. § 19a-580d-9 (requiring health care providers who object to implementing a do-not-resuscitate order to “turn over care of the patient without delay to another provider who will implement the DNR order”); Internal Revenue Service, Tax Guide for Churches & Religious Organizations 18 (2013), www.irs.gov/pub/irs-pdf/p1828.pdf (explaining that a church may opt out of paying Social Security and Medicare taxes for religious reasons, shifting that responsibility to their employees to pay those taxes as though they were self-employed).
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the government from requiring others to provide the legally required coverage in its
stead.32 In short, the framework established by federal law, not the actions of the
religious objector, ensures that plan participants and beneficiaries will receive
contraceptive coverage.33
32 Plaintiffs argue that, under the accommodation scheme, organizations with selfinsured plans participate in the delivery of contraceptive coverage because their TPAs cannot arrange for that coverage unless and until plaintiffs deliver the Form or notification to HHS. We discuss above why this characterization of the accommodation scheme is incorrect, but we note here that this concern is specific to self-insured plans subject to ERISA. Plaintiffs could avoid the situation they deem objectionable by employing an insured plan, employing a self-insured church plan where the Departments lack authority to enforce the Mandate against their TPA, or administering the self-insured plan on their own in-house without using a TPA. Although the dissent notes that inhouse administration is complex, Dissent at 22-23, Plaintiffs have not demonstrated it would be a substantial burden under RFRA. The fact that this alternative may be more expensive or difficult for plaintiffs does not necessarily make it a substantial burden. See Braunfeld, 366 U.S. at 605-06.
33 In this regard, the accommodation scheme here is comparable to a conscientious objector accommodation scheme, which provides for someone to replace the objector when he opts out of military service. See Priests for Life, 772 F.3d at 245-46; see also Univ. of Notre Dame, 786 F.3d at 623-24 (Hamilton, J., concurring). Indeed, the conscientious objector scheme is administratively more burdensome than filing the Form or notifying HHS to opt out of the Mandate. A conscientious objector must register in the Selective Service System before being able to apply for an exemption, must complete an application and appear for an in-person interview, and, if the exemption is granted, must perform two years of service for the government in lieu of military service. See 50 U.S.C. § 456j.
The dissent points to differences between the religious accommodation here and the conscientious objector scheme. But the comparison is apt. Courts have recognized that, to opt out of military service for religious reasons, a conscientious objector must notify the government of his objection knowing that someone else will take his place. See Trans World Airlines v. Hardison, 432 U.S. 63, 96 n.13 (1977) (Marshall, J., dissenting) (recognizing that “the effect of excusing conscientious objectors from military conscription is to require a nonobjector to serve instead, yet we have repeatedly upheld this exemption”); Sheridan v. United States, 483 F.2d 169, 174 (8th Cir. 1973)
Continued . . .
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3) Response to dissent
The dissent argues that our reasoning fails to appreciate the difference between
insured and self-insured plans. With insured plans, the health insurance issuer bears legal
responsibility to provide contraceptive coverage whether or not the religious non-profit
has opted out. With self-insured plans, the TPA shoulders legal responsibility for
coverage only after the religious non-profit has opted out.
______________________________________ Cont.
(acknowledging that when the plaintiff evaded induction, “another person had to be called in his place”); McKenzie v. Schuppener, 415 F.2d 1056, 1058 (5th Cir. 1969) (characterizing a conscientious objection application as “the situation where appellant must go to Vietnam or someone else go in his place”). Similarly, to opt out of the Mandate, the self-insured religious objector must notify the government knowing that a TPA will take its place.
And historically, it is not unprecedented to require an objector to identify a substitute for military service. To the contrary, the first federal draft statute permitted a draftee to avoid service only by either providing a substitute or paying $300. See Act of March 3, 1863, ch. 75, § 13, 12 Stat. 731, 733 (1863). As the dissent observes, the Civil War Enrollment Act sparked riots, Dissent at 14-15 n.7, but these were triggered by opposition to the draft itself, the inability of working class people to pay the $300 exemption, and anxiety about freed slaves entering the labor market after the war—not the fact that the draft law allowed draftees to name a substitute in their place. See Leslie M. Harris, In the Shadow of Slavery: African Americans in New York City, 1626-1863, at 279-88 (2003). Although Congress later eliminated the $300 commutation fee (except for conscientious objectors), it retained the provision allowing enrollees to supply a substitute. See Act of July 4, 1864, ch. 237, §§ 2, 10, 11, 13 Stat. 379, 379-80 (1864). To the extent the dissent suggests Chief Justice Taney’s thoughts on the topic are relevant, Dissent at 14-15 n.7, we note that he considered conscription itself unconstitutional, not the substitution provision. See Leon Friedman, Conscription and the Constitution: The Original Understanding, 67 Mich. L. Rev. 1493, 1546-48 (1969). In fact, Chief Justice Taney paid $100 to excuse his “body servant” from the draft. See Bernard C. Steiner, Life of Roger Brooke Taney: Chief Justice of the United States Supreme Court 511-12 (1922).
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We agree this is a distinction between these types of plans, but the dissent overplays its importance. See Dissent at 5 (deeming the difference between insured and self-insured plans “the critical distinction”).34 In both contexts, the ACA requires that group health plans cover contraceptive services, and a plaintiff knows coverage will be provided when it opts out. Plaintiffs do not dispute plan participants and beneficiaries’ right to contraceptive coverage, nor do they contest the government’s ability to require TPAs and health insurance issuers to arrange for such coverage when a religious nonprofit organization opts out. The only question before us is whether the plaintiffs are substantially burdened when they notify the government of their objection with the knowledge that another party will be required to provide coverage in their stead. The answer is no.
A religious accommodation tries to reconcile religious liberty with the rule of law. When faced with an unavoidable conflict between following the law or religious belief, RFRA provides a religious objector a means to challenge a generally applicable law and seek an exception to avoid following that law without having to break it. A statutory accommodation, as we have here, serves the same purpose. As noted above, this case is
34 Although the Mandate in the insured plan context assigns responsibility to provide contraceptive coverage to both the religious non-profit organization and its health insurance issuer, we do not believe this is the only permissible arrangement to permit religious accommodation. Requiring all accommodations to follow this model would be duplicative, costly, and impractical, and would foreclose a wide range of pragmatic arrangements that bring in substitutes when and only when a religious objector opts out of performing a task. See, e.g., supra note 31.
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unusual because the Plaintiffs do not seek an accommodation where none exists, but
instead challenge a statutory accommodation and argue that the process for seeking
refuge in it substantially burdens their religious exercise. As to the self-insured plaintiffs,
the dissent contends that if they opt out and transfer their duty to provide contraceptive
coverage to the TPA, they necessarily cause such coverage. We disagree.
By opting out, the self-insured plaintiffs shift their duty to provide coverage to a
TPA, but they do not change their plan participants and beneficiaries’ entitlement to contraceptive coverage under federal law.35 The dissent suggests, however, that because
the plaintiffs can stymie coverage to their employees by breaking the law and incurring
fines, and because opting out ultimately results in the TPAs’ providing coverage, the
plaintiffs’ opting out therefore would cause contraceptive coverage. But this
misconstrues the purpose of religious accommodation: to permit the religious objector
both to avoid a religious burden and to comply with the law. If the plaintiffs wish to
avail themselves of a legal means—an accommodation—to be excused from compliance
35 The dissent attempts to distinguish between health plan beneficiaries’ entitlement to coverage and their actual receipt of coverage. This distinction breaks down under inspection. If a religious non-profit complies with the law by providing coverage, the beneficiaries are entitled to and receive coverage. If the non-profit opts out as the law allows, the beneficiaries likewise are entitled to and receive coverage, they just do not receive it from the non-profit. Only if the non-profit disobeys the law and refuses either to provide coverage or opt out would the beneficiaries not receive coverage (though they would still be entitled to it). If the opt out were not part of the law, the plaintiffs would be in the same position as the for-profits in Hobby Lobby—without a legal option to avoid providing coverage. But the accommodation scheme gives the plaintiffs a legal avenue to avoid providing coverage as opposed to non-compliance with the law with the attendant financial penalties.
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with a law, they cannot rely on the possibility of their violating that very same law to challenge the accommodation.
In making this argument, the dissent focuses almost exclusively on whether the plaintiffs’ opt out is a but-for cause of the TPAs’ authority to provide contraceptive coverage.36 It does, but this approach misses the mark. Although opting out is necessarily a but-for cause of someone else—the TPA—providing contraceptive coverage, that is the point of an accommodation—shifting a responsibility from an objector to a non-objector. That is how a legislative policy choice—here, to afford women contraceptive coverage—can be reconciled with religious objections to that policy. We do not “den[y] the existence of any causation.” Dissent at 10. We instead correctly identify the effect of opting out. The effect is to shift legal responsibility from the self-insured plaintiff to its TPA and relieve the plaintiff of the duty it considers objectionable. The effect is not the provision of contraceptive coverage, which would be afforded under the law whether or not the plaintiff opts out.
36 Plaintiffs and the dissent characterize the self-certification as giving the TPA “permission” to provide contraceptive coverage. Dissent at 9. This characterization ignores that the self-certification specifically registers an objection to providing coverage, relieves the plaintiffs of their obligation to provide it, and affirmatively distances the plaintiffs in numerous ways from providing coverage to plan participants and beneficiaries. See supra Section V.B.2. Equating the opt out to a permission slip is akin to “disregard[ing] the difference between a ‘No Trespassing’ sign and a welcome mat.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 245 (1995) (Stevens, J., dissenting). The government is not compelling the plaintiffs to endorse or license something they consider objectionable; instead, the government is allowing them to decline a legal responsibility while requiring another party to perform it in their stead.
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The ACA requires that either the religious non-profit organization or the TPA must provide contraceptive coverage for a self-insured group health plan, and the accommodation must be evaluated with that provision in mind. The scheme allows the religious non-profit organization to opt out of the responsibility of providing coverage and assigns that duty to the TPA administering the group health plan. Crucially, it does not change or expand contraceptive coverage beyond what federal law has already guaranteed. As the Supreme Court said in Hobby Lobby, the effect of the accommodation on employees “would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.” 134 S. Ct. at 2760.
The government has designed the accommodation so plaintiffs that opt out are freed from providing, paying for, or facilitating contraception, and the TPA’s responsibility to provide coverage in their stead stems from federal law. Because this arrangement does not substantially burden the plaintiffs when they comply with the law, it does not matter whether the plaintiffs could prevent plan participants and beneficiaries from receiving coverage by violating the law. The dissent seems to suggest the ACA and its implementing regulations give self-insured plaintiffs discretion to decide whether their employees receive contraceptive coverage. The ACA and its implementing regulations do not, and the plaintiffs do not contend that they do. To the contrary, federal law generally requires that all people must have health insurance and that all health insurance must include preventive services, including contraceptive coverage. See 42 U.S.C.
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§ 300gg-13.37 And “although [the ACA] does not specifically mention third-party administrators, they administer ‘group health plans,’ which must include coverage. Nothing suggests the insurers’ or third-party administrators’ obligations would be waived if the plaintiffs refused to apply for the accommodation.” E. Tex. Baptist Univ., 2015 WL 3852811, at *5 (alterations omitted). The accommodation scheme does not give plaintiffs discretion to thwart their employees’ right to contraceptive coverage by refusing to provide coverage and also refusing to register their objection so the government can make alternative arrangements to free them from providing coverage.38 Because Congress has created a federal entitlement to contraceptive coverage and formulated a framework to guarantee that coverage will be provided even if plaintiffs decline to provide it, self-insured plaintiffs do not “cause” contraceptive coverage by exercising their ability to opt out.
4) No cause of substantial burden In sum, the self-insured plaintiffs’ causal analysis falters regarding the effect of opting out, which is to shift legal responsibility to provide contraceptive coverage from
37 The dissent asks, “if the self-insured plaintiffs do not opt out, who will provide the coverage for their plan participants and beneficiaries?” Dissent at 8. The answer is the self-insured plaintiffs, if they comply with the law. But this is the reason for the opt out: to allow the plaintiffs a legal means to avoid providing coverage.
38 In the absence of any such discretionary power or responsibility, plaintiffs are not faced with the Hobson’s choice the dissent describes. Dissent at 7-8, 12, 23. To the contrary, the accommodation eliminates any Hobson’s choice by allowing plaintiffs to opt out of providing coverage.
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plaintiffs to their TPAs. When the government establishes a scheme that anticipates
religious concerns by allowing objectors to opt out but ensuring that others will take up
their responsibilities, plaintiffs are not substantially burdened merely because their
decision to opt out cannot prevent the responsibility from being met.
To establish a claim under RFRA, about which the dissent says little, a plaintiff
must show the government substantially burdens its sincere religious exercise. The ACA
states group health plans must cover contraception, and the regulations state that if a
religious non-profit organization opts out, that coverage will be provided by a TPA.
Opting out does not cause the coverage itself; federal law does, by establishing a scheme
that permits plaintiffs to opt out of their legal responsibility while simultaneously
ensuring that plan participants and beneficiaries receive the coverage to which they are
legally entitled. Allowing plaintiffs to opt out is not a substantial burden under RFRA.39
39 The dissent’s theory of causation is not viable for the reasons discussed above. We also fail to see how it comports with the Supreme Court’s orders in Wheaton College, 134 S. Ct. 2806, and Zubik, 2015 WL 3947586. In Part II.B.1, the dissent objects that “a third party’s legal authority (i.e. permission) to provide the coverage is wholly dependent upon (i.e. caused by) the self-insured non-profit opting out.” Dissent at 9. But that would be equally true of the arrangement proposed in the Supreme Court’s orders in Zubik, which enjoined the Mandate only “[i]f the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a) or 29 CFR §2590.715-2713A(a) or 45 CFR §147.131(b) (as applicable),” 2015 WL 3947586, at *1, and Wheaton College, which enjoined the Mandate only “[i]f the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services,” 134 S. Ct. at 2807. (The plaintiffs in Zubik are self-insured and use TPAs. See Geneva College, 778 F.3d at 433. Wheaton College employs various insurance arrangements, but uses a TPA to deliver a portion of its coverage—specifically, its prescription drug
Continued . . .
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iii. Self-Insured Church Plans
The foregoing analysis of self-insured plans applies to the subset of self-insured
church plans. We address additional reasons here to reject the church plan plaintiffs’
RFRA claims. The plaintiffs with self-insured church plans are in a unique position.40 A TPA
cannot be compelled to provide or arrange for contraceptive coverage if it administers a
church plan under 26 U.S.C. § 414(e) that has not elected to comply with provisions of
ERISA under 26 U.S.C. § 410(d)—which describes the self-insured church plans in the
cases before us. The Departments concede they lack authority under ERISA to force
these church plan TPAs to perform their regulatory responsibility. See 29 U.S.C.
§ 1003(b)(2). As a result, the Government can require the plaintiffs with self-insured
church plans to use the Form or notify HHS to register their objection and opt out, but it
has no enforcement authority to compel or penalize those plaintiffs’ TPAs if they decline
______________________________________ Cont.
coverage. See Wheaton College v. Burwell, 50 F. Supp. 3d. 939, 944 (N.D. Ill. 2014).) Wheaton College had already submitted a notice of its objection to the government, but the Supreme Court did not limit the injunction to that factual scenario. As Justice Sotomayor observed, “because Wheaton is materially indistinguishable from other nonprofits that object to the Government’s accommodation, the issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy.” Wheaton College, 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).
40 The plaintiffs with self-insured church plans include the Little Sisters, Reaching Souls, Truett-McConnell, and Mid-America Christian. The analysis in this section also applies to the plaintiffs that operate or administer self-insured church plans, which include the Christian Brothers Employee Benefit Trust, Christian Brothers Services, and GuideStone Financial Resources.
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to provide or arrange for contraceptive coverage.41
The lack of enforcement authority makes any burden on plaintiffs with church
plans even less substantial than the burden on plaintiffs with self-insured plans that are
subject to ERISA. Nonetheless, plaintiffs with church plans offer the following
arguments as to why the accommodation scheme might still burden their religious
exercise. First, the Departments could decide to alter the regulations and assert authority
over church plans under ERISA. Second, the mere act of signing the Form or delivering
the notification may involve them in the provision of contraception, either by cooperating
with the Departments or by providing authorization to a TPA, which then decides it
wants to provide contraceptive coverage after all. Third, their opting out incentivizes
TPAs to provide coverage even if they are exempt from ERISA. Fourth, the Government
has not demonstrated why the plaintiffs must complete the self-certification if their TPAs
can decline to provide contraceptive coverage. In addition to the reasons self-insured
plans in general are not substantially burdened by the accommodation scheme, we
41 If TPAs for self-insured church plans decide not to provide contraceptive coverage, plan participants and beneficiaries would not get the coverage to which they are otherwise entitled under the ACA. The dissent suggests it is paradoxical to maintain the ACA ensures plan participants and beneficiaries will receive contraceptive coverage and also acknowledge TPAs for self-insured church plans may in fact decline to provide that coverage. Dissent at 11 n.4. The positions are consistent. The ACA requires all group health plans to provide contraceptive coverage, but because it can only enforce that requirement through ERISA, church plans that are exempt from ERISA do not face any consequences if they fail to meet it. Put differently, the ACA creates a legal duty for all group health plans, but the Government cannot enforce that duty against a narrow subset of self-insured church plans. The inability to enforce that duty does not mean the duty does not exist.
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conclude the plaintiffs with self-insured church plans have failed to identify a substantial burden on religious exercise.
1) Hypothetical regulation The plaintiffs argue the Departments could assert authority over church plans under ERISA at some point in the future. We assess the regulations as they currently exist, not amendments to ERISA’s implementing regulations the Department of Labor may hypothetically promulgate. An “[i]njunction issues to prevent existing or presently threatened injuries. One will not be granted against something merely feared as liable to occur at some indefinite time in the future.” Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931). Should the Departments assert ERISA authority over church plans at some later date, plaintiffs may then seek a preliminary injunction to prevent the Departments from enforcing the Mandate. Unless and until the Departments change their position, however, plaintiffs’ speculative argument does not warrant a preliminary injunction. See Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1157 (10th Cir. 2011).
2) No causation from church plan TPA notification The plaintiffs contend completing the self-certification would be a substantial burden because it would allow TPAs to provide coverage to their group health plan participants and beneficiaries, even if the Departments cannot compel the TPA to do so under ERISA. But plaintiffs with self-insured church plans are not substantially burdened by the requirement that they complete the Form or notification to HHS. As we explained in the previous section on self-insured plans, when a religious non-profit
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organization opts out of the Mandate, the requirement that the group health plan include contraceptive coverage is a product of federal law, not the product of the organization’s opting out. Opting out frees plaintiffs from their obligation to provide contraceptive coverage under the ACA. The lack of substantial burden is especially evident when the group health plan is administered by a TPA that has made clear it will not provide contraceptive coverage on religious grounds. The Little Sisters’ TPA, for example, is Christian Brothers, their co-plaintiff in this case. It is clear Christian Brothers need not, and will not, provide contraceptive coverage if the Little Sisters opt out of the Mandate.42
3) No incentive from church plan TPA notification Even when TPAs for self-insured church plans indicate they may comply with the Mandate, the TPAs make that decision, and the objecting religious non-profit organization is not substantially burdened. The plaintiffs in Reaching Souls argue one of their TPAs, Highmark, has indicated it will provide contraceptive coverage if they opt out of the Mandate. The Reaching Souls plaintiffs argue their act of opting out would not only provide Highmark with permission to provide contraceptive coverage, but would incentivize it to do so because Highmark could then seek reimbursement from the government. Plaintiffs fail to demonstrate the reimbursement provision actually gives TPAs an incentive to provide coverage. They claim a TPA that receives the Form or a letter from
42 Plaintiff TPAs that administer church plans are not substantially burdened for similar reasons. In the absence of any enforcement power, the Government cannot levy fines against them for declining to provide contraceptive coverage.
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the government “becomes eligible for government payments that will both cover the TPA’s costs and include an additional payment (equal to at least 10% of costs) for the TPA’s margin and overhead.” LS Br. at 16. At a hearing in Reaching Souls, counsel for the Government seemed to accept this characterization. But the regulations themselves expressly contradict this reading. They state the payment for margin and overhead goes to health insurance issuers who act as intermediaries for the reimbursement, and need not go to TPAs.43 See 45 C.F.R. § 156.50(d)(5) (specifying health insurance issuers must reimburse TPAs for “the portion of the adjustment attributable to the total dollar amount of the payments for contraceptive services submitted by the third party administrator” but that “[n]o such payment is required with respect to the allowance for administrative costs and margin”).
Moreover, even if TPAs were to receive a payment for margin and overhead—set at 15% of costs for 2014—plaintiffs do not demonstrate this allowance actually functions as an incentive to provide contraceptive coverage rather than repayment for the administrative costs TPAs incur by stepping in to arrange for or provide coverage. Plaintiffs have not demonstrated the allowance for administrative overhead actually
43 The Departments credit the health insurance issuer for (1) the total dollar amount of the TPA’s payments for contraceptive coverage, and (2) an allowance of at least 10% for administrative costs and margin. See 45 C.F.R. § 156.50(d)(3). The health insurance issuer then pays the TPA for the total dollar amount of the TPA’s payments for contraceptive coverage, but is not required to pay the TPA the allowance for administrative costs and margin. See 45 C.F.R. § 156.50(d)(5). As a result, the regulations require only that a TPA receive repayment for what it has actually spent providing contraceptive coverage. A reimbursement solely for costs incurred would not generate a profit or offer any incentive to provide contraceptive coverage.
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generates a profit for TPAs, nor have they demonstrated that the allowance would incentivize TPAs to provide coverage where they otherwise would not.
4) The Government may require affirmative objection Plaintiffs finally argue that if the Departments lack ERISA enforcement authority against TPAs of self-insured church plans, the Government has no reason to require religious non-profit organizations to comply with the accommodation scheme and deliver the Form or notify HHS. It is the plaintiffs’ burden, however, to state a prima facie case under RFRA. Because they cannot establish that signing the Form or notifying HHS constitutes a substantial burden on their religious exercise, we do not question the Departments’ interest in requiring them to opt out of the Mandate to avoid penalties for failure to provide contraceptive coverage.44
* * * * We conclude the Plaintiffs’ causation arguments do not establish a burden on their religious exercise, much less a substantial burden, because opting out would not trigger,
44 The Departments have a sound reason to require an affirmative opt out—not all religious organizations share the beliefs of the Little Sisters, Reaching Souls, TruettMcConnell, and Mid-America Christian. The parties agree that the Departments can require non-objecting employers to provide contraceptive coverage under their group health plans. To enforce that general requirement, the Departments may require objecting employers to affirmatively voice their objection instead of assuming all religious non-profit organizations share the plaintiffs’ beliefs.
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incentivize, or otherwise cause the provision of contraceptive coverage.45 We therefore turn to Plaintiffs’ argument that the act of opting out and the administrative requirements associated with the accommodation make them feel or appear complicit in the overall contraceptive coverage scheme.
e. No substantial burden from complicity The accommodation relieves Plaintiffs from providing, paying for, or facilitating contraceptive coverage, and federal law requires health insurance issuers and TPAs to provide contraceptive coverage when religious non-profit organizations take advantage of the accommodation. Plaintiffs argue the act of opting out would nevertheless substantially burden their religious exercise because they believe delivering the Form or notification to HHS would make them complicit in the overall scheme to deliver contraceptive coverage. They wish to play no part in it. We find this argument unconvincing for a number of reasons. First, the purpose and design of the accommodation scheme is to ensure that Plaintiffs are not complicit—that they do not have to provide, pay for, or facilitate contraception. Plaintiffs’ concern that others may believe they condone the Mandate is unfounded. Opting out sends the unambiguous message that they oppose contraceptive coverage and refuse to provide it, and does not foreclose them from objecting both to
45 Under these circumstances, as the Third Circuit observed, “the burden is not merely attenuated at the outset but totally disconnected from the appellees.” Geneva Coll., 778 F.3d at 442.
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contraception and the Mandate in the strongest possible terms.
Second, to the extent Plaintiffs assert that completing the Form or notification
violates their religious beliefs, they state a necessary but not a sufficient predicate for a
RFRA claim. Under RFRA, they must establish that completing the Form or notification
substantially burdens their religious exercise; otherwise, this argument could be used to
avoid almost any legal obligation that involves a form. Plaintiffs do not object to signing
forms and paperwork generally—they object to the Form or notification to HHS, and they
do so because they believe it involves them in directly or indirectly providing, paying for,
or facilitating contraceptive coverage, which they oppose as a matter of religious
conviction. As we have explained, the Plaintiffs misstate their role in the accommodation
scheme. RFRA does not require us to defer to their erroneous view about the operation
of the ACA and its implementing regulations.46
46 Plaintiffs cite Thomas for the proposition that we cannot question the theological merit of their religious beliefs. See Thomas, 450 U.S. at 715 (“We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.”). We agree with that proposition, but we may—indeed, we must— determine whether the accommodation scheme substantially burdens their religious exercise.
In Thomas, Mr. Thomas believed he could not participate in the production of war materials. Id. at 709. The government argued Mr. Thomas’s beliefs did not warrant protection by suggesting those beliefs were inconsistent and not shared by his coreligionists. Id. at 714-15. The Supreme Court specifically rejected these attempts to impeach Mr. Thomas’s religious beliefs, id. at 715-16, but the Court was not confronted with the question of whether those beliefs were substantially burdened. Both the Supreme Court and the Tenth Circuit have indicated that accepting a plaintiff’s religious belief does not foreclose an inquiry into whether religious exercise has been substantially burdened. See, e.g., Hernandez, 490 U.S. at 699; Kikumura, 242 F.3d at 961.
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Third, because the accommodation does not involve them in providing, paying for,
facilitating, or causing contraceptive coverage, Plaintiffs’ only involvement in the scheme
is the act of opting out. Plaintiffs are not substantially burdened solely by the de minimis
administrative tasks this involves. All opt-out schemes require some affirmative act to
free objectors from the obligations they would otherwise face. The Plaintiffs’ logic
would undermine conscientious objection schemes that require the objection to be made,
relieve objectors of their obligations, but assign those obligations to other, non-objecting
actors in their stead. See, e.g., Gillette v. United States, 401 U.S. 437 (1971)
(acknowledging a petitioner must complete an exemption application to obtain
______________________________________ Cont.
The Government does not question Plaintiffs’ religious beliefs that contraception is sinful and they cannot be involved in providing, paying for, or facilitating contraceptive coverage. But Plaintiffs go beyond Thomas when they insist that we cannot question whether opting out makes them complicit in providing contraceptive coverage. We may properly consider that opting out excuses them from providing coverage, does not cause that coverage to be extended to plan participants and beneficiaries, and involves only routine administrative tasks that are not substantial burdens under RFRA. See Little Sisters, 6 F. Supp. 3d at 1239 (“Thus, Plaintiff’s contention that the Court cannot look behind their statements about what offends their religious beliefs is well-supported. However, the Court is under no such restriction with regard to Plaintiffs’ construction of how the Final Rules operate, including the administrative burdens imposed on the parties by these regulations.”).
For these reasons, Thomas is inapposite when the inquiry focuses on whether a burden is substantial. It does not preclude courts from examining the relationship between a sincerely held religious belief and the alleged burden imposed by the Government. This important distinction prevents the Government from having to survive strict scrutiny whenever a plaintiff misunderstands the burden being placed upon them— for example, if Mr. Thomas had been required to produce equipment for farming and sincerely, but incorrectly, believed that equipment was being produced for war. See, e.g., Priests for Life, 772 F.3d at 249 n.14.
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conscientious objector status in wartime); Welsh v. United States, 398 U.S. 333 (1970) (same).47 Having to file paperwork or otherwise register a religious objection, even if one disagrees with the ultimate aim of the law at issue, does not alone substantially burden religious exercise.
The Government may therefore require religious objectors to complete de minimis administrative tasks to opt out. Filing the Form or notifying HHS easily fits within this category. The Departments have made opting out of the Mandate at least as easy as obtaining a parade permit, filing a simple tax form, or registering to vote—in other words, a routine, brief administrative task. The purpose of the Form or notification to HHS is to extricate Plaintiffs from their legal obligation to provide contraceptive coverage. Opting out ensures they will play no part in the provision of contraceptive coverage, prohibits TPAs and health insurance issuers from sharing the costs of providing coverage with them, and requires notice to employees that they do not administer or fund contraceptive services.
47 As other courts have observed, invalidating the accommodation scheme would run contrary to many other laws allowing objectors to opt out of government programs and requirements. See Priests for Life, 772 F.3d at 245 (deeming Plaintiffs’ argument against the accommodation scheme “extraordinary and potentially far reaching”); Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 557 (7th Cir. 2014), vacated and remanded sub nom., Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015) (“The novelty of Notre Dame’s claim—not for the exemption, which it has, but for the right to have it without having to ask for it—deserves emphasis. . . . What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths.”).
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The notification to HHS is especially minimal, as it requires Plaintiffs only to
register their objection with HHS and does not require any contact with their health
insurance issuers or TPAs. Although Plaintiffs must tell HHS which health insurance
issuer or TPA they use to opt out of the Mandate, this is not a substantial burden on religious exercise.48 It is the kind of administrative task the Departments can require of
religious believers in the administration of governmental programs. See Priests for Life,
772 F.3d at 246; Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 305-06
(1985); see also Jimmy Swaggart Ministries v. Bd. of Equaliz. of Cal., 493 U.S. 378, 395
(1990); Hernandez, 490 U.S. at 696-97. When understood in light of the ACA’s
requirement that group health plans and health insurance issuers provide contraceptive
coverage and the manner in which the accommodation relieves Plaintiffs of providing
48 Plaintiffs using the Form need only enter the name of the objecting organization, name and title of the individual authorized to make the certification on behalf of the organization, and the mailing address, email address, and phone number of that individual. That person signs, dates, and sends the form to their TPA or health insurance issuer. Employers are required to keep the Form on file for six years. The Plaintiffs have leeway in drafting a notification to HHS, which need only include
the name of the eligible organization and the basis on which it qualifies for an accommodation; its objection based on sincerely held religious beliefs to providing coverage of some or all contraceptive services (including an identification of the subset of contraceptive services to which coverage the eligible organization objects, if applicable); the plan name and type (i.e., whether it is a student health insurance plan within the meaning of 45 CFR 147.145(a) or a church plan within the meaning of ERISA section 3(33)); and the name and contact information for any of the plan’s third party administrators and health insurance issuers. 79 Fed. Reg. at 51,094-95.
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that coverage, identifying one’s TPA in a letter to HHS is at most a minimal burden and certainly not a substantial one.
Finally, Plaintiffs are not substantially burdened when, after they opt out and are relieved of their obligations under the Mandate, health insurance issuers or TPAs must provide contraception to plan participants and beneficiaries. Plaintiffs sincerely oppose contraception, but their religious objection cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled under the ACA. “Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out.” Priests for Life, 772 F.3d at 246. Pre-Smith case law and RFRA’s legislative history underscore that religious exercise is not substantially burdened merely because the Government spends its money or arranges its own affairs in ways that plaintiffs find objectionable. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450-54 (1988); Bowen, 476 U.S. at 699-700; Tony & Susan Alamo Found., 471 U.S. at 303; S. Rep. No. 103-111, at 9 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1898 (“[P]re-Smith case law makes it clear that strict scrutiny does not apply to government actions involving only management of internal Government affairs or the use of the Government’s own property or resources.”). RFRA does not prevent the Government from reassigning obligations after an objector opts out simply because the objector strongly opposes the ultimate goal of the generally applicable law.
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Plaintiffs’ complicity argument therefore fails. Opting out would eliminate their complicity with the Mandate and require only routine and minimal administrative paperwork, and they are not substantially burdened by the Government’s subsequent efforts to deliver contraceptive coverage in their stead.
f. No burden from ongoing requirements As a final argument, Plaintiffs deny the act of opting out would free them from further involvement in the provision of contraceptive coverage. They argue the accommodation scheme would require their ongoing participation, and give two examples to support this claim. First, Plaintiffs argue they would remain involved because the Departments are commandeering their group health plans to provide contraceptive coverage to their employees. They note their TPA or health insurance issuer can provide coverage only as long as plan participants and beneficiaries remain employed with the religious non-profit organization. Plaintiffs have not shown, assuming they opt out, how the provision of coverage to plan participants and beneficiaries through the health insurance issuer or TPA would substantially burden their religious exercise. Plaintiffs’ plan participants and beneficiaries are not guaranteed contraceptive coverage without cost sharing because they work for the Plaintiffs; they are guaranteed contraceptive coverage under the ACA. The ACA mandates health insurance that includes contraceptive coverage. See 42 U.S.C. § 300gg-13(a)(4). Plaintiffs’ theory would not only relieve them of complying with the
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Mandate, it would prevent health insurance issuers and TPAs from stepping in under the ACA to provide plan participants and beneficiaries with the coverage they are entitled to receive under federal law.
Second, Plaintiffs object that they must (a) notify their TPA or health insurance issuer when employees join or leave their broader health insurance scheme, and (b) complete the self-certification or notification to HHS when they create or terminate a relationship with a TPA or health insurance issuer. As to the first requirement, employers already must notify their TPA or health insurance issuer when they hire or fire employees. The communication with the TPA or health insurance issuer regarding general health insurance coverage for entering or exiting plan participants and beneficiaries would occur regardless of any legal obligation under the accommodation scheme. The latter requirement, however, is an obligation specific to the accommodation scheme. An insured or self-insured employer using the Form must send it to “each” TPA or health insurance issuer as the employer forms contractual relationships with them. 26 C.F.R. § 54.9815-2713AT(b)(1)(ii); 29 C.F.R. § 2590.715-2713A(b)(1)(ii). If the employer instead uses the notification process, the regulations state: “If there is a change in any of the information required to be included in the notice, the organization must provide updated information to the Secretary of Health and Human Services.” 26 C.F.R. § 54.9815-2713AT(b)(1)(ii)(B); 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B).
Once again, this does not constitute a substantial burden. The only new requirement is that employers must complete the Form or notify HHS of their objection
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when they contract with a new health insurance issuer or TPA. Plaintiffs do not argue the time, cost, or energy required to comply with this requirement constitutes a substantial burden; they argue it is the moral significance of their involvement which burdens their religious exercise.49 If the first self-certification is not a substantial burden, a second or third self-certification would not be substantially burdensome given the extremely minimal administrative requirements of the Form or notification. As we have discussed above, de minimis administrative requirements do not themselves amount to substantial burdens on religious liberty. See Tony & Susan Alamo Found., 471 U.S. at 305-06; see also Jimmy Swaggart Ministries, 493 U.S. at 394-95; Hernandez, 490 U.S. at 696-97. If the actual delivery of the Form or notification is not a substantial burden, a contingent administrative requirement to update the Form or notification is not either.
The regulations require the Plaintiffs to complete the Form or deliver the notification if they wish to opt out. But this ministerial act to opt out is not a substantial burden on religious exercise, nor are the collateral requirements of the scheme. The Departments have allowed Plaintiffs to opt out of a neutral and generally applicable requirement imposed by federal law, and have done so in a manner that affirmatively distances those organizations from the provision of contraceptive coverage that other employers must provide. It is not a substantial burden to require organizations to provide
49 The interim final rules estimate “the total annual burden for preparing and providing the information in the self-certification or notice to HHS will require approximately 50 minutes for each eligible organization with an equivalent cost burden of approximately $53.” 79 Fed. Reg. at 51,097.
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minimal information for administrative purposes to take advantage of that
accommodation.
C. Strict Scrutiny Because we determine Plaintiffs have failed to demonstrate a substantial burden
on their religious exercise, we need not address whether the Departments have shown a
compelling state interest and adopted the least restrictive means of advancing that interest.50
D. Conclusion
In the absence of a substantial burden, Plaintiffs have not demonstrated a strong
likelihood of success on the merits of their RFRA claim, nor have they demonstrated they
will suffer irreparable injury if an injunction is denied. Accordingly, a preliminary
injunction on RFRA grounds is inappropriate.
VI. FIRST AMENDMENT
Although the district courts focused almost exclusively on RFRA, Plaintiffs also
50 We recognize third-party rights and interests are at stake in this litigation— namely, that plan participants and beneficiaries are entitled by law to contraceptive coverage without cost sharing. When evaluating RFRA and Free Exercise claims, courts properly consider the impact of religious liberty claims on pre-existing rights holders. Hobby Lobby, 134 S. Ct. at 2760 (emphasizing “[t]he effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero”); see Cutter v. Wilkinson, 544 U.S. 709, 720 (2005); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709-10 (1985); Yoder, 406 U.S. at 230; Sherbert, 374 U.S. at 409; Braunfeld, 366 U.S. at 604-05. Because we determine Plaintiffs have not demonstrated a substantial burden on their religious exercise, we do not reach the strict scrutiny analysis where the rights and interests of third parties are properly weighed.
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raised constitutional claims. They argue the accommodation scheme violates the Free
Exercise and Establishment Clauses of the First Amendment by exempting religious
employers from the Mandate but requiring religious non-profit organizations to seek an
accommodation.51 Plaintiffs also argue the accommodation scheme simultaneously
51 In this discussion of First Amendment claims, “Plaintiffs” refers only to the plaintiffs in Little Sisters and Reaching Souls, and not Southern Nazarene. All of the plaintiffs raised First Amendment claims in their complaints, but only the Little Sisters and Reaching Souls plaintiffs preserved these claims in their subsequent motions for a preliminary injunction and briefs on appeal. App. in LS at 57a-66a, 136a-38a; App. in RS at A65-74, A145-49.
The district courts in Little Sisters and Reaching Souls did not reach the First Amendment claims. In Little Sisters, the court found the plaintiffs’ assertion of irreparable harm—which they were required to show to obtain a preliminary injunction, see Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)—was based only on RFRA. See Little Sisters, 6 F. Supp. 3d at 1245. In Reaching Souls, the court determined it did not need to reach First Amendment claims because it granted a preliminary injunction on RFRA grounds. See Reaching Souls, 2013 WL 6804259, at *8 n.9.
On appeal, we consider the First Amendment claims in both cases. First, the Little Sisters plaintiffs made a sufficient argument before the district court. They expressly sought a preliminary injunction on First Amendment as well as RFRA grounds. App. in LS at 136a-138a. They did not elaborate on their First Amendment claims in the irreparable harm analysis, but “[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Kikumura, 242 F.3d at 963 (quotations omitted). Second, although we reverse the district court’s grant of a preliminary injunction on RFRA grounds in Reaching Souls, plaintiffs there raised the question whether that preliminary injunction is appropriate on First Amendment grounds. “If the district court fails to analyze the factors necessary to justify a preliminary injunction, this court may do so if the record is sufficiently developed.” Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009); see also Hobby Lobby, 723 F.3d at1145 (“The record we have is the record the parties chose to create below—it is the record they deemed sufficient for the district court to decide the preliminary injunction question. For each element, we believe this record suffices for us to resolve each of the remaining preliminary injunction factors.”). Because the First Amendment claims in both Little Sisters and Reaching Souls are legal questions that have
Continued . . .
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compels and silences their speech in violation of the Free Speech Clause of the First
Amendment. We disagree and conclude the accommodation scheme comports with the
First Amendment. We note that the same standard of review we identified for the RFRA
claim applies to the First Amendment claims.
A. Free Exercise Clause
Plaintiffs contend the ACA and its implementing regulations violate the Free
Exercise Clause by exempting some religious objectors—churches and their “integrated
auxiliaries”—from the Mandate, while requiring others—specifically, religious non-
profit organizations—to comply with the Mandate, seek an accommodation, or pay
substantial fines. They have not explained how their Free Exercise claim differs from
their Establishment Clause claim, nor do they explain how they could prevail under the
standard in Smith if they are unlikely to succeed under RFRA. Because we conclude the
______________________________________ Cont.
been fully briefed on appeal, we resolve those questions in this opinion rather than remanding them to the district courts and prolonging this litigation.
By contrast, the Southern Nazarene plaintiffs included First Amendment claims in their complaint, but did not assert them in their motion for a preliminary injunction or accompanying memorandum of law. As a result, the district court did not reach any First Amendment claims in its decision. See Southern Nazarene, 2013 WL 6804265. Moreover, the Southern Nazarene plaintiffs do not make First Amendment claims in their opening brief on appeal.
Although we believe our First Amendment analysis applies to all group health plans and does not depend on whether they are insured, self-insured, or self-insured church plans, we note Little Sisters and Reaching Souls involve only self-insured church plans that are not subject to ERISA, and the insured and self-insured plans discussed in Southern Nazarene are not before us.
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Mandate and accommodation scheme are neutral and generally applicable laws, they are subject only to rational basis review, which they survive. 1. Legal Background
The First Amendment’s religion clauses state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. 1. To resolve challenges under the Free Exercise Clause, we use a wellestablished framework. If a law is neutral and generally applicable, it does not violate the Free Exercise Clause “even if the law has the incidental effect of burdening a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); see Smith, 494 U.S. at 878-80. “A law is neutral so long as its object is something other than the infringement or restriction of religious practices.” Grace United, 451 F.3d at 649-50. A law that is facially neutral may nevertheless fail the neutrality test if it covertly targets religious conduct for adverse treatment. Lukumi Babalu, 508 U.S. at 534.
To determine whether a law is generally applicable, we ask if the “legislature decide[d] that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.” Id. at 542-43. “[A] law that is both neutral and generally applicable need only be rationally related to a legitimate governmental interest to survive a constitutional challenge.” Grace United, 451 F.3d at 649.

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2. The Mandate and Accommodation Scheme are Neutral The Mandate and the accommodation scheme are neutral laws. See Priests for
Life, 772 F.3d at 267-69; Mich. Catholic Conf., 755 F.3d at 393-94. The Mandate is facially neutral with regard to employers, and neither the history nor the text of the ACA and its implementing regulations suggest the Mandate was targeted at a particular religion or religious practice. Plaintiffs cannot show Congress or HHS “had as their object the suppression of religion.” Lukumi Babalu, 508 U.S. at 542. To the contrary, the Mandate arose from concerns about the personal and social costs of barriers preventing women from receiving preventive care, including reproductive health care. See IOM, Clinical Preventive Services for Women: Closing the Gaps 102-03 (2011), available at www.nap.edu/catalog.php?record_id=13181. The accommodation scheme was developed to facilitate the free exercise of religion, not to target religious groups or burden religious practice. To that end, the Departments expanded the religious employer exemption and religious non-profit organization accommodation to respond to the concerns of religious groups. The Plaintiffs’ apparent dissatisfaction with the accommodation offered to them does not mean the Mandate or the accommodation scheme is non-neutral. 3. The Mandate and Accommodation Scheme are Generally Applicable
The Mandate and the accommodation scheme are also generally applicable. See Priests for Life, 772 F.3d at 267-69; Mich. Catholic Conf., 755 F.3d at 393-94. Plaintiffs cannot show Congress or the Departments sought to impose the Mandate only against
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religious groups; to the contrary, the Mandate applies to all employers with more than
fifty employees using non-grandfathered health plans.52 “The exemptions do not render
the law so under-inclusive as to belie the government’s interest in protecting public
health and promoting women’s well-being or to suggest that disfavoring Catholic or other
pro-life employers was its objective.” Priests for Life, 772 F.3d at 268. Plaintiffs fail to
demonstrate the accommodation scheme targets religious conduct or was created with the
objective of disfavoring particular faiths. Lukumi Babalu, 508 U.S. at 542-43. To the
contrary, the Mandate was enacted as part of a larger program of health care reform, and
both the exemption for religious employers and the accommodation for religious non-
profit organizations demonstrate federal deference to religious liberty concerns and were
promulgated to facilitate rather than inhibit the free exercise of religion.
52 Smith stated that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason.” Smith, 494 U.S. at 884 (quotations and citation omitted). But as we noted in Grace United, “we have already refused to interpret Smith as standing for the proposition that a secular exemption automatically creates a claim for a religious exemption.” Grace United, 451 F.3d at 651. We have instead held:
a system of individualized exemptions is one that gives rise to the application of a subjective test. Such a system is one in which case-by-case inquiries are routinely made, such that there is an individualized governmental assessment of the reasons for the relevant conduct that invites considerations of the particular circumstances involved in the particular case.
Axson-Flynn v. Johnson, 356 F.3d 1277, 1297 (10th Cir. 2004) (quotations and citations omitted). None of the categorical exemptions enacted by the ACA and its implementing regulations establish a system of individualized objections. And for the reasons detailed above, we believe the accommodation scheme effectively relieves objecting religious non-profit organizations of their obligations.
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4. The Mandate and Accommodation Scheme Have a Rational Basis Rather than make an argument based on the rational relationship standard,
Plaintiffs instead contend our decision in Hobby Lobby precludes us from finding that public health and gender equality, without greater specificity, constitute compelling governmental interests. But, as we have explained, the compelling interest test does not apply; the rational basis test does. Grace United, 451 F.3d at 649. The Government observes that in the cases before us, the accommodation scheme rationally serves the twin interests of facilitating religious exercise and filling coverage gaps resulting from accommodating that religious exercise.
On rational basis review, these interests are sufficient. Alleviating governmental interference with religious exercise, which the accommodation scheme does, is a permissible legislative purpose. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987). And we need not scrutinize whether the Government’s interest in public health and gender equality is more compelling in this case than in Hobby Lobby. We need only determine that public health and gender equality are legitimate state interests. We believe they meet this more permissive standard, which is not foreclosed by our compelling interest analysis in Hobby Lobby. See, e.g., Hobby Lobby, 723 F.3d at 1143 (determining public health and gender equality are too broad to satisfy the compelling interest test but noting “[w]e recognize

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the importance of these interests”).53 The accommodation scheme advances both the free
exercise of religion and the Government’s legitimate interests in public health and gender
equality. See Hobby Lobby, 134 S. Ct. at 2759 (“We therefore conclude that [the
accommodation] system constitutes an alternative that achieves all of the Government’s
aims while providing greater respect for religious liberty.”).
Furthermore, when applying the rational basis test, we are not limited to interests
specifically articulated by the Departments. We may look to any conceivable legitimate
governmental interest, and “the burden is upon the challenging party to negative any
reasonably conceivable state of facts that could provide a rational basis.” Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (citations and internal quotations
omitted). The more specific governmental interest in health by ensuring access to
contraception without cost sharing, which we did not specifically address in Hobby
Lobby, would constitute a legitimate interest conceivably advanced by the
accommodation scheme. See Hobby Lobby, 723 F.3d at 1160 (Bacharach, J., concurring)
(“[T]he plurality does not mention the public interest that the government had relied on at
53 See also Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 549 (1987) (identifying “a compelling interest in eliminating discrimination against women”); Roberts v. U.S. Jaycees, 468 U.S. 609, 626 (1984) (“Assuring women equal access to such goods, privileges, and advantages clearly furthers compelling state interests.”); Prince v. Massachusetts, 321 U.S. 158, 165-67 (1944) (upholding child labor laws against a free exercise challenge on health and welfare grounds); Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (upholding a mass vaccination program against a liberty challenge on health and welfare grounds); see also Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (determining a compelling interest in eradicating racial discrimination “substantially outweighs whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs”).
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the preliminary-injunction hearing: the health reasons for promoting employee access to emergency contraceptives.”). The Departments’ recognized interest in the uniformity and ease of administration of its programs would also meet this standard. See, e.g., Bowen, 476 U.S. at 707; Hernandez, 490 U.S. at 682; United States v. Lee, 455 U.S. 252, 258-59 (1982).
The Mandate and accommodation scheme easily pass the rational basis test. Because the Mandate is both neutral and generally applicable and supported by a rational basis, Plaintiffs fail to make out a plausible claim under the Free Exercise Clause.
B. Establishment Clause Plaintiffs contend that exempting churches and integrated auxiliaries from the Mandate but requiring religious non-profit organizations to seek an accommodation violates the Establishment Clause. We disagree. Because the Departments have chosen to distinguish between entities based on neutral, objective organizational criteria and not by denominational preference or religiosity, the distinction does not run afoul of the Establishment Clause. 1. Organizational Distinctions Well-Established in Federal Law Federal law distinguishes between different types of religious organizations, and as we discuss below, this differentiation is constitutionally permissible. Under the ACA and its implementing regulations, a religious employer “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.” 45 C.F.R. § 147.131(a). The regulations
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at issue in this case draw on the tax code’s distinction between houses of worship and religious non-profits, a “longstanding and familiar” distinction in federal law. Priests for Life, 772 F.3d at 238; see also Geneva Coll., 778 F.3d at 443 (determining it was permissible for the Departments to base the exemption on the IRC’s provision “because that provision was a bright line that was already statutorily codified and frequently applied”).
Exempting churches while requiring other religious objectors to seek an accommodation is standard practice under the tax code. The IRC and other regulations award benefits to some religious organizations—typically, houses of worship—based on articulable criteria that other religious organizations do not meet. See 26 U.S.C. § 6033(a)(3)(A)(i), (iii). Churches, their integrated auxiliaries, and conventions or associations of churches are automatically considered tax exempt and need not notify the government they are applying for recognition, but other religious non-profit organizations must apply for tax-exempt status if their annual gross receipts are more than $5,000. See id. § 508(a), (c)(1)(A). Similarly, churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of any religious order need not file tax returns, but religious non-profit organizations with gross receipts above $5,000—even if they are tax-exempt—must file annually. Id. § 6033(a). Congress has placed special limitations on tax inquiries and examinations of churches, but not integrated auxiliaries, church-operated schools, or religious non-profit organizations. See id. § 7611.
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Congress has used similar organizational distinctions in the realm of religious accommodations. Churches and qualified church-controlled organizations that object to paying Social Security and Medicare taxes for religious reasons may opt out of paying them by filing a form with the IRS, but other religious non-profit organizations may not. See id. § 3121(w). 2. Organizational Distinctions and Respecting the Religion Clauses
Distinctions based on organizational form enable the government to simultaneously respect both the Free Exercise Clause and Establishment Clause and permit the construction of accommodation schemes that pass constitutional muster. The Supreme Court has concluded
[t]he general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 669 (1970); see also Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 469 (N.Y. 2006) (observing the Plaintiffs’ argument here “would call into question any limitations placed by the Legislature on the scope of any religious exemption—and thus would discourage the Legislature from creating any such exemptions at all,” and thus concluding “[a] legislative decision not to extend an accommodation to all kinds of religious organizations does not violate the Establishment Clause”). We recognize the
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Government enjoys some discretion in fashioning religious accommodations, and believe doing so on the basis of organizational form comports with the Establishment Clause. 3. Organizational Distinctions Compatible with Larson and Colorado Christian
The Departments have offered the accommodation to Plaintiffs based on their organizational form. Plaintiffs rely on the decisions in Larson v. Valente, 456 U.S. 228 (1982), and Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008), to support their Establishment Clause claim. But those cases do not hold that distinctions based on organizational type are impermissible.
Larson involved an Establishment Clause challenge to a Minnesota law that imposed registration and reporting requirements on religious organizations that received less than half of their contributions from members or affiliated organizations. Larson, 456 U.S. at 231. The legislature drew this distinction to discriminate against particular religions, which was evident in the legislative history. Id. at 253-54 (“[T]he history of [the challenged law] demonstrates that the provision was drafted with the explicit intention of including particular religious denominations and excluding others.”). Colorado Christian differentiated institutions based on intrusive inquiries into their degree of religiosity. 534 F.3d 1259. In Colorado Christian, we concluded Colorado’s exclusion of “pervasively sectarian” institutions from state scholarship programs violated the First Amendment “for two reasons: the program expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice.” Id. at 1250.
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Neither of these two concerns in Colorado Christian is applicable here. Larson and Colorado Christian prohibit preferences based on denomination (e.g.,
Catholic, Jewish, Islamic, etc.) and religiosity (e.g., pervasively sectarian, moderately sectarian, non-sectarian, etc.), but do not prohibit distinctions based on organizational type (e.g., church, non-profit, university, etc.). As Larson noted: “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” 456 U.S. at 244. In Colorado Christian, we determined that “defendants supply no reason to think that the government may discriminate between ‘types of institution’ on the basis of the nature of the religious practice these institutions are moved to engage in.” 534 F.3d at 1259. As a result, Establishment Clause jurisprudence clearly indicates denominational preferences expressed by the government are subject to strict scrutiny. See id. Religiosity distinctions are subject to strict scrutiny as well because they involve the government in scrutinizing and making decisions based on particular expressions of religious belief. See id. at 1256 (invalidating Colorado law because it “expressly discriminates among religions, allowing aid to ‘sectarian’ but not ‘pervasively sectarian’ institutions, and it does so on the basis of criteria that entail intrusive governmental judgments regarding matters of religious belief and practice”).
Plaintiffs cite no case holding that organizational distinctions, as opposed to those based on denomination or religiosity, run afoul of the Establishment Clause. Unlike Awad v. Ziriax, 670 F.3d 1111, 1128-29 (10th Cir. 2012), which concerned a state constitutional amendment forbidding courts from considering or using Sharia law,
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evidence of animus or favoritism aimed at a denomination or degree of religiosity is absent here. “Because the law’s distinction does not favor a certain denomination and does not cause excessive entanglement between government and religion, the framework does not violate the Establishment Clause.” Mich. Catholic Conf., 755 F.3d at 395; see also Priests for Life, 772 F.3d at 272-74.
Neither Larson nor Colorado Christian supports Plaintiffs’ claim that distinctions between churches and other religious entities is impermissible. As we concluded in Colorado Christian, “if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices.” 534 F.3d at 1266. This is what the Departments have done with the accommodation scheme in compliance with the First Amendment’s Establishment Clause. 4. Plaintiffs’ Argument Based on the Departments’ Rationale
Plaintiffs seize on the Departments’ rationale for the distinction that religious nonprofit organizations are more likely than churches to employ individuals who do not share their employers’ beliefs but are nevertheless entitled to contraceptive coverage under the ACA. See 78 Fed. Reg. at 39,874 (“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.”). Plaintiffs argue some denominations are
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less likely to carry out ministry functions through a church or integrated auxiliary than others, and that the workforces of some non-profit institutions may be more religiously homogenous than the workforces of some established churches.
The Departments’ rationale may not be perfectly accurate, but it does not make the accommodation scheme unconstitutional. The class of religious non-profit organizations encompasses a vast array of religiously affiliated universities, hospitals, service providers, and charities, some of them employing thousands of people. Of course, some religious non-profit organizations may be more likely than some churches to employ coreligionists, but the Departments may reasonably recognize that, on the whole, churches are more likely to employ those who share their beliefs. Priests for Life, 772 F.3d at 272. The Departments originally exempted religious employers to “respect[] the unique relationship between a house of worship and its employees in ministerial positions.” 76 Fed. Reg. at 46,623. We recognize that relationship between houses of worship and ministerial employees has been given special solicitude under the First Amendment. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 712-13 (2012). The Departments must avoid inquiries that involve them in “excessive entanglement” between religion and government, see Colorado Christian, 534 F.3d at 1261-62, and the general notion that houses of worship are more likely than religious non-profit organizations to employ people of the same faith avoids impermissible

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scrutiny into the beliefs of religious entities and their employees.54 * * * *
Drawing a distinction between religious employers and religious non-profit organizations is a neutral and reasonable way for the Departments to pursue their legitimate goals in a constitutional manner. It gives special solicitude to churches to facilitate the liberties guaranteed by the Free Exercise Clause, and offers the accommodation scheme to relieve religious non-profit organizations of their obligation to provide contraceptive coverage under the Mandate without imposing a substantial burden on their religious exercise. The accommodation scheme does not violate the Establishment Clause.
C. Free Speech Clause Plaintiffs finally contend the accommodation scheme violates the Free Speech Clause of the First Amendment, which states that “Congress shall make no law . . . abridging the freedom of speech,” U.S. Const. amend. 1, by compelling them both to speak and remain silent, see Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796-97 (1988). First, they argue that requiring them to sign and deliver the Form or the notification to HHS constitutes compelled speech. Second, they argue that prohibiting
54 The original definition of “religious employer” required that the employer “primarily employs persons who share its religious tenets [and] primarily serves persons who share its religious tenets.” 76 Fed. Reg. at 46,623. In response to religious entities that argued these requirements might involve excessive entanglement with religion, the Departments eliminated three of the four criteria and based the definition solely on organizational form. 78 Fed. Reg. at 8459. Plaintiffs now contend that simplified definition makes unfounded assumptions about who religious employers employ.
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them from influencing their TPAs’ provision of contraceptive coverage compels them to be silent. Both arguments fail. 1. Compelled Speech
The compelled speech claim fails. To the extent such a claim requires government interference with the plaintiff’s own message, see Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 557 (2005) (stating a compelled speech claim arises when “an individual is obliged personally to express a message he disagrees with, imposed by the government”), the regulations do not require an organization seeking an accommodation to engage in speech it finds objectionable or would not otherwise express. The only act the accommodation scheme requires is for religious non-profit organizations with group health plans to sign and deliver the Form or notification expressing their religious objection to providing contraceptive coverage. The Sixth Circuit reasoned: “Even assuming the government is compelling this speech, it is not speech that the appellants disagree with and so cannot be the basis of a First Amendment claim.” Mich. Catholic Conf., 755 F.3d at 392; see also Geneva Coll., 778 F.3d at 438-39 (“If anything, because the appellees specifically state on the self-certification form that they object on religious grounds to providing such coverage, it is a declaration that they will not be complicit in providing coverage.”). Plaintiffs cannot point to speech they are required to express and find objectionable.55
55 In Axson-Flynn, we recognized that a compelled speech claim may apply to non-ideological speech. We held a University of Utah theater student had alleged a
Continued . . .
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Indeed, Plaintiffs have not shown any likelihood that their sending in the Form or the notification would convey a message of support for contraception. Plaintiffs do not demonstrate their TPA, their health insurance issuer, or HHS—any one of which would be the sole recipient of the Form or notification—would view it as anything other than an objection to providing contraception. Rumsfeld v. Forum for Academic & Inst. Rights, Inc. (“FAIR”), 547 U.S. 47 (2006), is instructive. In FAIR, a group of law schools challenged the Solomon Amendment, a federal statute that denied federal funding to universities that barred military recruiters from their campuses. At that time, the military did not permit gay, lesbian, and bisexual individuals to serve. The schools claimed a First Amendment compelled speech violation, arguing their compliance with the Solomon Amendment would signal their agreement with this policy. The Supreme Court rejected the argument, noting compliance did not signal agreement with the military’s positions, and the Solomon Amendment did not prevent the schools from making their own position clear. FAIR, 547 U.S. at 65.
This point is even stronger in the instant case, where Plaintiffs would send the Form or notification to convey their opposition to providing contraception, and the ACA and implementing regulations do not prevent them from expressing that opposition widely. Plaintiffs remain free to express opposition to contraception; “[n]othing in the[]
______________________________________ Cont.
compelled speech violation because she was required to utter certain swear words as part of a script and objected to doing so on religious grounds. 356 F.3d at 1284 n.4.
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final regulations prohibits an eligible organization from expressing its opposition to the use of contraceptives.” 78 Fed. Reg. at 39,880 n.41. With the passage of the interim final rule, Plaintiffs also have the option to send a letter or email to HHS expressly objecting to any provision of contraception. They can fully explain their position in that notification. We are especially unconvinced that this option, freed from the text of the Form and permitting greater self-expression, forces Plaintiffs to engage in unwanted speech. Plaintiffs have not suggested the notification must be conveyed or communicated to any third parties or wider audience aside from the Departments themselves.
Even if Plaintiffs could identify speech they disagreed with—for example, identifying the name of their TPA or health insurance issuer—the argument that they are forced to send a message they do not wish to send is unavailing. The First Amendment does not—and cannot—protect organizations from having to make any and all statements “they wish to avoid.” The cases cited by Plaintiffs are not about routine administrative burdens akin to complying with the accommodation scheme. These cases instead concern compelled ideological expression such as salutes to the flag, W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943); messages on license plates, Wooley v. Maynard, 430 U.S. 705, 715 (1977), Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir. 2013); wearing school slogans, Frudden v. Pilling, 742 F.3d 1199, 1203-04 (9th Cir. 2014); and taking a political stance on commercial sex, Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2331 (2013).
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“Compelling an organization to send a form to a third party to claim eligibility for an exemption ‘is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.’” Priests for Life, 772 F.3d at 271 (quoting FAIR, 547 U.S. at 62). “That would be the equivalent of entitling a tax protester to refuse on First Amendment grounds to fill out a 1099 form and mail it to the Internal Revenue Service.” Wheaton College, 2015 WL 3988356, at *8. None of the cases cited by Plaintiffs involve compliance with the administrative requirements of a government program, and especially not a government program designed to exempt and distance an organization from activity it finds objectionable.
We finally note that Plaintiffs’ signature and delivery of the Form or notification to HHS is “plainly incidental to the . . . regulation of conduct” and thus is not protected speech. FAIR, 547 U.S. at 62. The act of signing and delivering the Form or notification to HHS is required to opt out of the Mandate. The Supreme Court has “rejected the view that ‘conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.’ Instead, we have extended First Amendment protection only to conduct that is inherently expressive.” Id. at 65-66 (quoting United States v. O’Brien, 391 U.S. 367, 376 (1968)). The fact that Plaintiffs must complete the Form or notification to HHS to opt out of coverage does not render the act inherently expressive. See id. at 62.
For the foregoing reasons, we reject Plaintiffs’ compelled speech claim.
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2. Compelled Silence We further reject the claim that the accommodation scheme compels Plaintiffs’
silence. Like the Sixth and Seventh Circuits, we note Plaintiffs have made only general claims objecting to the non-interference regulation and have failed to indicate how it precludes speech in which they wish to engage. Mich. Catholic Conf., 755 F.3d at 39293; Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 561 (7th Cir. 2014), vacated and remanded sub nom., Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015). After the issuance of the interim final rule repealing the non-interference regulation, we do not believe this question is before us. We agree with the Government and the D.C. Circuit that the repeal of the non-interference rule renders Plaintiffs’ claims regarding compelled silence moot. See Priests for Life, 772 F.3d at 242 n.8.
VII. CONCLUSION We have reviewed the district courts’ decisions to grant or deny a preliminary injunction to Plaintiffs in the three cases before us. Because we determine the ACA and its implementing regulations do not substantially burden Plaintiffs’ religious exercise or violate the Plaintiffs’ First Amendment rights, Plaintiffs have not established a likelihood of success on the merits or a likely threat of irreparable harm as required for a preliminary injunction. See Hobby Lobby, 723 F.3d at 1128. We therefore affirm the district court’s denial of a preliminary injunction in Little Sisters, 6 F. Supp. 3d 1225, and reverse the district courts’ grant of a preliminary

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injunction in Southern Nazarene, 2013 WL 6804265, and Reaching Souls, 2013 WL
6804259.
EBSA FORM 700-- CERTIFICATION (revised August 2014)
This form may be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing, pursuant to 26 CFR 54.9815-2713A, 29 CFR 2590.715-2713A, and 45 CFR 147.131. Alternatively, an eligible organization may also provide notice to the Secretary of Health and Human Services.
Please fill out this form completely. This form should be made available for examination upon request and maintained on file for at least 6 years following the end of the last applicable plan year. Name of the objecting organization
Name and title of the individual who is authorized to make, and makes, this certification on behalf of the organization
Mailing and email addresses and phone number for the individual listed above
I certify the organization is an eligible organization (as described in 26 CFR 54.9815-2713A(a), 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)) that has a religious objection to providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.
Note: An organization that offers coverage through the same group health plan as a religious employer (as defined in 45 CFR 147.131(a)) and/or an eligible organization (as defined in 26 CFR 54.9815-2713A(a); 29 CFR 2590.715-2713A(a); 45 CFR 147.131(b)), and that is part of the same controlled group of corporations as, or under common control with, such employer and/or organization (within the meaning of section 52(a) or (b) of the Internal Revenue Code), is considered to meet the requirements of 26 CFR 54.9815-2713A(a)(3), 29 CFR 2590.715-2713A(a)(3), and 45 CFR 147.131(b)(3).
I declare that I have made this certification, and that, to the best of my knowledge and belief, it is true and correct. I also declare that this certification is complete.
______________________________________ Signature of the individual listed above
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______________________________________ Date
The organization or its plan using this form must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.
Notice to Third Party Administrators of Self-Insured Health Plans
In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.7152713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization:
(1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and
(2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A.
As an alternative to using this form, an eligible organization may provide notice to the Secretary of Health and Human Services that the eligible organization has a religious objection to providing coverage for all or a subset of contraceptive services, pursuant to 26 CFR 54.98152713A(b)(1)(ii)(B) and (c)(1)(ii), 29 CFR 2590.715-2713A(b)(1)(ii)(B) and (c)(1)(ii), and 45 CFR 147.131(c)(1)(ii). A model notice is available at: http://www.cms.gov/cciio/resources/Regulationsand-Guidance/index.html#Prevention.
This form or a notice to the Secretary is an instrument under which the plan is operated.
PRA Disclosure Statement
According to the Paperwork Reduction Act of 1995, no persons are required to respond to a collection of information unless it displays a valid OMB control number. The valid OMB control number for this information collection is 1210-0150. An organization that seeks to be recognized as an eligible organization that qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing may complete this self-certification form, or provide notice to the Secretary of Health and Human Services, in order to obtain or retain the benefit of the exemption from covering certain contraceptive services. The self-certification form or notice to the Secretary of Health and Human Services must be maintained in a manner consistent with the record retention requirements under section 107 of the Employee Retirement Income Security Act of 1974, which generally requires records to be retained for six years. The time required
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to complete this information collection is estimated to average 50 minutes per response, including the time to review instructions, gather the necessary data, and complete and review the information collection. If you have comments concerning the accuracy of the time estimate(s) or suggestions for improving this form, please write to: U.S. Department of Labor, Employee Benefits Security Administration, Office of Policy and Research, 200 Constitution Avenue, N.W., Room N-5718, Washington, DC 20210 or email ebsa.opr@dol.gov and reference the OMB Control Number 12100150.

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Little Sisters et al. v. Burwell, Nos. 13-1540, 14-6026, 14-6028 BALDOCK, Circuit Judge, dissenting in part.
Today the Court holds, among other things, that the ACA contraceptive Mandate’s accommodation scheme does not substantially burden religious non-profits that object to facilitating contraceptive or abortifacient coverage because opting out does not cause, authorize, or otherwise facilitate such coverage.1 The Court’s opinion provides perhaps the most thorough explanation of the accommodation scheme’s nuanced mechanics that I have yet read. And for argument’s sake, I follow its holding as to the insured plaintiffs’ and Little Sisters plaintiffs’ RFRA claims.2 But I cannot join the Court’s holding as to the other self-insured plaintiffs’ RFRA claims, as that holding contradicts the Court’s own reasoning and thorough explanation of the accommodation scheme.
In reality, the accommodation scheme forces the self-insured plaintiffs to perform an act that causes their beneficiaries to receive religiously objected-to coverage. The fines the government uses to compel this act thus impose a substantial burden on the selfinsured plaintiffs’ religious exercise. Moreover, less restrictive means exist to achieve the government’s contraceptive coverage goals here. I must therefore dissent in part.
1 For consistency, I adopt the Court’s glossary. 2 As I explain below, the Little Sisters plaintiffs, though self-insured, have not shown that their opting out will necessarily cause their plan participants and beneficiaries to receive contraceptive coverage. Accordingly, my use of the term “self-insured plaintiffs” does not refer to the Little Sisters unless otherwise stated.
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I.

WHEN IS A BURDEN ON RELIGIOUS EXERCISE “SUBSTANTIAL?”

The first step of a RFRA claim requires plaintiffs to show (1) that the federal

government has imposed a substantial burden on a (2) sincere (3) exercise of religion.

See 42 U.S.C. § 2000bb-1(a). The unique threshold question we and so many other

courts are currently grappling with, however, is how to determine whether a substantial

burden exists where a law compels religious adherents to perform an act they sincerely

oppose when this opposition might be based on a faulty understanding of the law. See,

e.g., E. Tex. Baptist Univ. v. Burwell, 2015 WL 3852811, at *3 (5th Cir. June 22, 2015).

Several learned judges have argued compellingly that, under Burwell v. Hobby

Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the amount of coercion the government uses

to force a religious adherent to perform an act she sincerely believes is inconsistent with

her understanding of her religion’s requirements is the only consideration relevant to

whether a burden is “substantial” under RFRA. See, e.g., Priests For Life v. U.S. Dep’t

of Health & Human Servs., No. 13-5368, slip op. at 17–22 (D.C. Cir. May 20, 2015)

(Brown, J., dissenting from the denial of rehearing en banc); id. at 35 (Kavanaugh, J.,

dissenting from the denial of rehearing en banc); Univ. of Notre Dame v. Burwell, 786

F.3d 606, 628 (7th Cir. 2015) (Flaum, J., dissenting); Eternal Word Television Network,

Inc. v. Sec’y, Dep’t of Health & Human Servs., 756 F.3d 1339, 1340 (11th Cir. 2014)

(Pryor, J. specially concurring); see also Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d

1114, 1137 (10th Cir. 2013) (“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.”); cf. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. 2

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Ct. 2028, 2031–33 (2015) (analyzing a plaintiff’s exercise as a “religious practice” under Title VII where the act was motivated by “her understanding of her religion’s requirements”).
These judges assert that whether religious objectors properly understand the legal significance of the compelled act has no bearing on the substantial burden analysis. E.g. Priests For Life., No. 13-5368, slip op. at 35 (Kavanaugh, J., dissenting) (“But what if the religious organizations are misguided in thinking that this scheme . . . makes them complicit in facilitating contraception or abortion? That is not our call to make under the first prong of RFRA.”). And Hobby Lobby supports this position well, as questioning a religious adherent’s understanding of the significance of a compelled action comes dangerously close to questioning “whether the religious belief asserted in a RFRA case is reasonable”—a “question that the federal courts have no business addressing.” Hobby Lobby, 134 S. Ct. at 2778.
Under this understanding of RFRA, the accommodation scheme substantially burdens any religious non-profit that objects to performing an act that would cause or otherwise make it complicit in providing contraceptive coverage simply because the scheme uses substantial fines to compel an act that the non-profit sincerely believes would have that effect. The actual legal significance of the compelled act is irrelevant to the substantial burden analysis. And because the government has conceded (2) the sincerity of (3) the religious exercise at issue, the only issue left to address is whether the government has shown that the accommodation scheme survives strict scrutiny. The judges who take this position, so far, all agree that the government has not made this
3
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showing. Priests For Life., No. 13-5368, slip op. at 22–25 (Brown, J., dissenting); id. at 46–51 (Kavanaugh, J., dissenting); Notre Dame, 786 F.3d at 629–30 (Flaum, J., dissenting); Eternal Word Television Network, 756 F.3d at 1348–49 (Pryor, J. specially concurring).
Notwithstanding the strength of those positions, I will proceed under the following assumptions to highlight an even deeper problem lurking within the self-insured accommodation scheme: First, I will assume that whether a burden on religious exercise is “substantial” turns not only on the amount of coercion the government uses to compel an act (no one disputes the substantiality of the fines at issue here), but also on “how the law or policy being challenged actually operates and affects religious exercise.” Slip Op. at 39. Second, I will assume this Court may tell a religious adherent she does not face a substantial burden on her religious exercise if her understanding of the law is flawed. Third, I will assume that any burden the accommodation scheme imposes on Plaintiffs— who object to performing any act that would cause or otherwise make them complicit in providing various forms of contraceptive coverage—cannot be substantial unless they show, for example, how their compelled act causes that coverage. See Slip Op. at 45–66.
The Court tells Plaintiffs they cannot make this showing “because opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage.” Slip Op. at 65. If showing this causation is a prerequisite to establishing a substantial burden, the Court properly rejects the insured plaintiffs’ RFRA claim, as their action or inaction will not affect whether their plan beneficiaries receive objected-to coverage. But the self-insured plaintiffs’ inaction will prevent their plan beneficiaries
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from receiving the coverage. If their beneficiaries receive this coverage, it is only because the self-insured plaintiffs, by opting out, caused that effect. Thus, the selfinsured plaintiffs have shown how their opting out would cause the provision and receipt of objected-to coverage and established a substantial burden on their religious exercise.
II. THE CRITICAL DISTINCTION IN THIS CASE I have nothing to add to the Court’s summary of the background in these cases, and very little to add to its explanation of the detailed mechanics of the ACA accommodation scheme. But a critical distinction within scheme bears repeating. Under the ACA accommodation scheme, in the insured health plan context, “a health insurance issuer . . . would be obligated to provide contraceptive coverage under the ACA whether or not [the insured non-profit] delivered the Form or notification to HHS.” Slip Op. at 48 n.28 (citing 42 U.S.C. § 300gg-13). But in the self-insured context, a TPA would be “authorized and obligated to provide the coverage . . . only if the religious non-profit . . . opts out.” Slip Op at 49 (emphases added); see also 26 C.F.R. § 54.9815-2713AT(b)(2); 29 C.F.R. § 2590.715-2713A(b)(2). The Fifth, Sixth, and Seventh Circuits failed to recognize this distinction. See E. Tex. Baptist, 2015 WL 3852811, at *5; Notre Dame, 789 F.3d at 614; Mich. Catholic Conference & Catholic Family Servs. v. Burwell, 755 F.3d 372, 387 (6th Cir. 2014) cert. granted, judgment vacated 135 S. Ct. 1914 (2015). The Third and D.C. Circuits failed to appreciate its significance. See Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human Servs., 778 F.3d 422, 438 (3d Cir. 2015); Priests For Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 254–56 (D.C. Cir. 2014). This Court considers the
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distinction “unremarkable.” Slip Op. at 49. I disagree. The distinction makes a difference, and juxtaposing the insured plaintiffs and self-insured plaintiffs forces that difference into bold relief.
A. The Insured Plaintiffs Assuming causation is key, I agree the accommodation scheme does not substantially burden the insured plaintiffs’ religious exercise. As the Court explains, even total inaction on the part of an insured non-profit still results in its plan participants and beneficiaries receiving the coverage to which they are entitled under the ACA because the government has independently obligated a third party (insurance issuers) to provide it.3 See Slip Op. at 46–47. Opting out in the insured context does not cause the receipt of contraceptive coverage; rather, it merely absolves the eligible insured nonprofit of any responsibility for the contraceptive coverage its plan participants and beneficiaries will receive whether it opts out or not. Thus, assuming Plaintiffs must show how opting out causes coverage, the accommodation scheme does not substantially burden the insured plaintiffs’ exercise of religion. The insured accommodation is more akin to traditional conscientious objector schemes: the government can and will conscript the actors it needs to achieve its goals whether objectors opt out or not. The same cannot be said of the self-insured plaintiffs, however.
3 Even the government’s proffered fourth option—declining to sponsor a group health plan—would not interfere with contraceptive coverage for the insured plaintiffs’ plan beneficiaries. Without an employer-sponsored plan, these beneficiaries would have to find other health insurance. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2664 (2012) (Scalia, J., dissenting). And that insurance would likely cover contraceptives. See 42 U.S.C. § 300gg-13.
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B. The Self-Insured Plaintiffs Unlike the insured plaintiffs, the ACA leaves the self-insured plaintiffs in a position where, by refusing to opt out, they can prevent their plan beneficiaries from receiving the objected-to coverage the beneficiaries are entitled to and would otherwise receive under the ACA. In other words, their plan participants and beneficiaries will receive the coverage only if they opt out as the government commands. This makes their opting out a but-for cause of the receipt of the coverage. The Court views this ability to prevent contraceptive coverage by inaction as nothing more than the ability to disobey the law. See Slip Op. at 54–55 & n.35. But that is the same limited ability the plaintiffs in Hobby Lobby possessed, and it goes to the heart of the substantial burden the self-insured plaintiffs face here. “In Hobby Lobby, the plaintiff[s] . . . could choose only between (1) complying with the ACA by providing the coverage or (2) not complying and paying significant penalties.” Slip Op. at 3 (citing Hobby Lobby, 134 S. Ct. at 2759–60). Similarly, these self-insured plaintiffs must choose between (1) complying with the ACA by taking an action that ultimately causes their beneficiaries to receive this coverage or (2) not complying and paying significant penalties. This is a Hobson’s choice, which we have long held imposes a substantial burden under RFRA. See Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th Cir. 2010) (“We conclude that a religious exercise is substantially burdened under [RFRA] 42 U.S.C. § 2000cc–1(a) when a government . . . presents the plaintiff with a Hobson’s choice—an illusory choice where the only realistically possible course of action trenches on an adherent’s sincerely held religious belief.”); Hobby Lobby, 723 F.3d at 1141 (10th
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Cir. 2013) (explaining that the choice between compromising religious beliefs and paying fines under the ACA “is precisely the sort of Hobson’s choice described in Abdulhaseeb”).
1. The Obvious Causal Connection If causation is key to showing a substantial burden, see Slip Op. at 32–33, 45–66, the self-insured plaintiffs have surely shown that burden. Certainly, a shifting legal responsibility alone may not necessarily create a causal relationship. But here, the selfinsured plaintiffs’ opt out causes the coverage because (1) the government cannot force plaintiffs themselves to provide the coverage, Hobby Lobby, 134 S. Ct. at 2785, and (2) the government cannot shift the ability (let alone the responsibility) to provide the coverage to non-objectors unless the self-insured plaintiffs opt out. See 29 C.F.R. § 2590.715-2713A(b)(2); Slip Op. at 48–49. Opting out is thus the only way their plan participants and beneficiaries may receive the coverage. Put another way, if the self-insured plaintiffs do not opt out, who will provide the coverage for their plan participants and beneficiaries? The answer: no one. The selfinsured plaintiffs cannot do so per their faith; the TPAs cannot do so per the law. Thus, the self-insured accommodation renders any duty to provide, and any entitlement to receive, contraceptive coverage wholly unenforceable and thus illusory—unless and until the self-insured plaintiffs opt out. Cf. Pennington v. Northrop Grumman Space & Mission Sys. Corp., 269 F. App’x 812, 819 (10th Cir. 2008) (unpublished) (“[W]hen a promise, in reality, promises nothing—it is illusory.” (Internal marks and citation omitted)).
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To fully understand why no one can or will provide this objected-to coverage unless the self-insured plaintiffs perform a compelled act, one must view the ACA Mandate and accommodation scheme in light of Hobby Lobby. Hobby Lobby clearly holds forcing religious employers to provide objected-to contraceptive coverage violates RFRA. 134 S. Ct. at 2785. So, if any entity is to provide the coverage, it must be a third party. The insured accommodation independently conscripts third parties to provide the coverage. But as this Court points out, the self-insured accommodation was drafted such that no third party can provide the coverage in the self-insured context unless and until the objecting religious employer opts out. Slip Op. at 48–49; see also Eternal Word Television Network, 756 F.3d at 1347 (Pryor, J., specially concurring) (explaining that, without the Form or letter, a TPA “has no legal authority to step into the shoes of the [non-profit] and provide contraceptive coverage to the employees and beneficiaries of the [non-profit]”). As such, a third party’s legal authority (i.e. permission) to provide the coverage is wholly dependent upon (i.e. caused by) the self-insured non-profit opting out.
The Court believes we should focus on the fact that the ACA “entitle[s] plan participants and beneficiaries to coverage whether or not the plaintiffs opt out” and imposes a duty on “either the religious non-profit organization or the TPA” to provide that coverage. Slip Op. at 33, 57. But this reasoning (1) fails to consider the ACA Mandate in light of the limitations Hobby Lobby already imposed, and (2) confuses legal concepts (duty and entitlement) with real-world effects (provision and receipt).
First, the Court’s focus on the ACA’s requirement that “either the religious nonprofit organization or the TPA” provide the coverage, Slip Op. at 57, ignores the fact that
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the government cannot require the religious non-profit to provide the coverage under Hobby Lobby. By ignoring the limitation Hobby Lobby imposes on the government, the Court simultaneously acknowledges that “opting out is necessarily a but-for cause of someone else—the TPA—providing contraceptive coverage,” Slip Op. at 56, and nevertheless rejects the self-insured plaintiffs’ RFRA claims for lack of causation. Slip Op. at 64–65. But again, Hobby Lobby forbids the government from placing this requirement on the non-profits themselves. So if opting out is necessarily a but-for cause of someone else providing the coverage, it is necessarily a but-for cause of anyone providing the coverage at all. Essentially, the Court concedes but-for cause and then turns around and denies the existence of any causation. What?
Second, the Court asserts that the self-insured plaintiffs’ opt out will not cause the actual provision and receipt of objected-to coverage because the ACA creates an independent, albeit illusory, duty and entitlement related to that coverage. True, opting out does not cause entitlement to contraceptive coverage—the ACA entitles all health plan beneficiaries to contraceptive coverage. But these beneficiaries will not receive that coverage unless the self-insured plaintiffs do something to cause its provision from a third party. In other words, the ACA may independently say “someone” has a duty to provide contraceptive coverage, see 29 C.F.R. § 2590.715–2713, but no one can or will honor that duty and provide the coverage unless the self-insured plaintiffs opt out. No self-insured plaintiff will honor it because the government cannot force them to under Hobby Lobby, and no third party can honor it because no third party has authority to do so without an opt out. Based on this error, the Court concludes that “federal law, not the
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actions of the religious objector, ensures that plan participants and beneficiaries will
receive contraceptive coverage.” Slip Op. at 52 (emphasis added). But that is simply
wrong. As explained above, federal law alone does not ensure receipt of the coverage
from the self-insured plaintiffs; and it does not even allow, let alone ensure, receipt of
that coverage from a third party unless the self-insured plaintiffs opt out. Rather, federal
law, only in conjunction with the self-insured plaintiffs’ opt out, allows plan participants
and beneficiaries to receive contraceptive coverage.4
These errors, taken together, cause the Court to reject a straw man rather than the
self-insured plaintiffs’ RFRA claims. The self-insured plaintiffs do not claim a RFRA
violation based on the fact that the ACA created an entitlement to contraceptive
coverage; they object to the causal role they must play in providing that coverage. 5
4 Even with the opt-out, federal law does not always ensure receipt of the coverage. For example, the Court asserts “the ACA ensures plan participants and beneficiaries will receive contraceptive coverage” but simultaneously contradicts itself by acknowledging that TPAs for self-insured church plans may in fact decline to provide that coverage, in which case “plan participants and beneficiaries would not get the coverage to which they are otherwise entitled.” Slip Op. at 61 & n.41 (emphases added).
The Court’s attempt to paint these contradictory positions as consistent suffers from the same logical flaw highlighted above; that is, it confuses the actual provision and receipt of coverage with a concededly unenforceable entitlement and duty to provide it. If the law cannot force an unwilling TPA to provide contraceptive coverage, the TPA will not provide it, and the plan beneficiaries will not receive it. Cf. Mach Mining, LLC v. E.E.O.C., 135 S. Ct. 1645, 1652–53 (2015) (acknowledging that even the government may violate the law, “especially so when [it faces] no consequence”). Thus, the existence of an unenforceable duty to provide contraceptive coverage does not ensure receipt, as this Court seems to believe.
5 The Court also asserts that religious non-profits “cannot preclude the government from requiring others to provide the legally required coverage in its stead,” Slip Op. at 51–52, and “cannot hamstring government efforts to ensure that plan participants and beneficiaries receive the coverage to which they are entitled under the ACA,” Slip Op. at
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A proper accommodation may relieve otherwise substantial burdens on religious exercise, but this accommodation fails to do so, at least in the self-insured context. And to be sure, “[a] burden does not rise to the level of being substantial when it places an inconsequential or de minimis burden on an adherent’s religious exercise.” Slip Op. at 41 (quoting Priests for Life, 772 F.3d at 246). But here, the accommodation scheme foists upon the self-insured plaintiffs a choice with dire consequences. Either (1) they refuse to act, which would avoid causing their plan beneficiaries to receive objected-to coverage but trigger crippling fines for violating the law or (2) they act, which would cause the receipt of this coverage and violate their faith. If “the purpose of religious accommodation” was to permit religious objectors “to avoid a religious burden and to comply with the law,” see Slip Op. at 55, it fails to achieve that purpose. Rather, the accommodation foists upon the self-insured plaintiffs a Hobson’s choice and thus a substantial burden on their exercise of religion. Abdulhaseeb, 600 F.3d at 1315.
2. This is Not a Conscientious Objector Accommodation Scheme The Court believes this accommodation scheme akin to the conscientious objector schemes used for military conscription. See Slip Op. at 52 n.33. Not so. The
71. I agree that this should not be the case but, unfortunately, the government drafted the self-insured accommodation such that the self-insured plaintiffs can, by inaction, do exactly that. As explained above, that is precisely why their opting out causes the receipt of objected-to coverage.
Moreover, to the extent this language connotes dissatisfaction with the problems created by the self-insured accommodation, such dissatisfaction is irrelevant to whether the law imposes a substantial burden under RFRA. Our job is not to “add words to the law to produce what is thought to be a desirable result.” Abercrombie & Fitch, 135 S. Ct. at 2033.
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accommodation scheme may function like a conscientious objector scheme in some regards, but it ultimately forces objectors to play a very different and causal role.
Military conscription law generally requires male citizens to register for the draft and allows the President to draft a certain number of men from that pool of candidates into active duty in the Armed Forces.6 See, e.g., Arver v. United States, 245 U.S. 366, 375–76 (1918) (allowing the President to draft up to two groups of 500,000 men). After registering, conscientious objectors can opt out of serving in combat. 50 App. U.S.C. § 456(j). But they cannot reduce the number of men the President ultimately drafts. Whether objectors lawfully register and opt out, or register and then choose unlawfully to avoid induction, or even choose unlawfully not to register at all, the President can and will draft the same number of men needed for war. See LAWRENCE M. BASKIR & WILLIAM A. STRAUSS, CHANCE AND CIRCUMSTANCE: THE DRAFT, THE WAR, AND THE VIETNAM GENERATION 14–28 (1978) (explaining that the government’s Vietnam draft policies “did not care who was drafted as long as enough people were drafted”).
Indeed, the Court’s reliance on Sheridan v. United States, 483 F.2d 169 (8th Cir. 1973), highlights this difference. In Sheridan, the defendant registered for the draft but did not lawfully opt out. Instead, he simply refused to be inducted. Id. at 170. But the result under conscription law was the same: “another person [was] called in his place.” Id. at 174. In other words, like the insured plaintiffs, no matter what conscientious objectors do or refuse to do, the government can and will achieve its military draft goals. 6 Currently, “every male citizen of the United States . . . between the ages of eighteen and twenty-six” must register in order to facilitate any eventual conscription into the Armed Forces. 50 App. U.S.C. § 453(a).
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The opposite result occurs under the self-insured accommodation scheme. If a self-insured plaintiff simply refuses to provide coverage and does not opt out, the government cannot call a third party in its place. The accommodation scheme thus places the self-insured plaintiffs in a very different position vis-à-vis helping the government achieve its religiously objectionable goals. Conscientious objectors cannot prevent the government from conscripting their replacements; but the self-insured plaintiffs can completely prevent the government from even authorizing their TPAs to provide objected-to coverage. Conscientious objectors also need not identify a related third party to serve in their stead; but the self-insured plaintiffs must identify a related third party through a form or letter. And this form or letter is the only means by which the government can authorize that third party to serve in their stead. Under conscientious objector schemes, the government may independently draft non-objecting Americans into combat to further its war efforts; conscientious objectors have no power to stop it. But under the self-insured accommodation scheme the government needs the self-insured plaintiffs to commit an act to further its contraceptive coverage efforts; their beneficiaries will not receive this coverage unless they commit that act and cause that result. Such a conscientious objector scheme—where the government could draft a replacement soldier only if the initial conscientious objector opted out and identified a previously ineligible relative to serve in his stead—would be immensely problematic, to say the least.7
7 The Court attempts to counter this point by referencing the Enrollment Act of 1863, which “permitted a draftee to avoid service only by either providing a substitute or paying $300.” Slip Op. at 52 n.33 (quoting Act of March 3, 1863, ch. 75, § 13, 12 Stat. 731, 733 (1863)). But this act was a short-lived experiment that did not even survive to
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In relying on conscientious objector schemes the Court commits the same error it
levies against this dissent: it fails to appreciate the broader structures of both the
accommodation and conscientious objector schemes. In comparing the two schemes, the
Court focuses only on the acts the objector must perform to opt out, and what happens if
the objector performs those acts. The comparison totally ignores the broader and more
critical difference between the two schemes: what happens if the objector refuses to
perform those acts? Conscription law requires that “someone” go to war, and in the end
“someone” will go to war. The law is such that the government can and will shift this
legal duty to a non-objector regardless of the objector’s action or inaction. Conversely,
the ACA says “someone” must provide contraceptive coverage, but the self-insured
accommodation was drafted such that if the self-insured plaintiffs choose to do nothing
rather than opt out, no one will actually provide that coverage. Again, the government
cannot force the plaintiffs to provide the coverage, and it cannot shift the duty to provide
the coverage unless the self-insured plaintiffs choose to opt out. If the government could
independently shift this duty (as conscription law allows) or eliminate the need to shift
the duty at all (as the insured accommodation does) that might eliminate the causal role
the end of that war. Moreover, resentment over the Enrollment Act and its opt-out provision triggered the “New York City draft riot, the largest [and deadliest] civil insurrection in American history apart from the South’s rebellion itself.” ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863–1877 at 32 (1988). “No case questioning the Civil War draft was heard by the Supreme Court, but it is known that Chief Justice Roger Taney prepared a rough outline of an opinion declaring the act unconstitutional.” Leon Friedman, Conscription and the Constitution, 67 MICH. L. REV. 1493, 1546 (1969). Indeed, one eminent historian called the substitution provision a “grotesque monstrosit[y]” and stated “[t]he government could hardly have devised a worse law.” BRUCE CATTON, THE CIVIL WAR 208 (1987). I would call that problematic.
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the self-insured plaintiffs currently face. But presently, the law forces the self-insured plaintiffs into gatekeeping positions and then uses fines to force them to open the gates.
3. The Supreme Court’s Little Sisters and Wheaton College Orders The Court also believes the accommodation scheme does not impose a substantial burden on self-insured non-profits because the government’s new alternative notice accommodation—which forces an objecting non-profit to write a letter to HHS opting out and identifying its TPAs and/or health insurance issuers—is essentially akin to the Supreme Court’s injunctions pending appeal in Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, 134 S. Ct. 1022 (2014), Wheaton College v. Burwell, 134 S. Ct. 2806 (2014), and most recently Zubik v. Burwell, Nos. 14A1065, 141418, 2015 WL 3947586, at *1 (U.S. June 29, 2015). See Slip Op. at 42 n.25, 59 n.39. But the Court’s reliance on these interim orders appears to be based on two flawed assumptions: (1) that the notices required by these orders were sufficient to authorize a TPA to provide coverage it could not provide before, and (2) even assuming this dubious interpretation of the orders, that they approved of compelling religious non-profits to play this causal role under RFRA’s first step (no substantial burden) as opposed to approving of such compulsion only where it satisfies RFRA’s second step (strict scrutiny). As to the first assumption, the Little Sisters order nowhere contemplates allowing the government to use the Little Sisters’ interim written notice to facilitate coverage by alternative means. And the Wheaton College order did not allow the government to rely on Wheaton’s interim written notice, either. Rather, it allowed the government to rely on preexisting knowledge that Wheaton qualified for exemption and would not provide
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certain contraceptive coverage. See Wheaton Coll., 134 S. Ct. at 2807 (“But [Wheaton] has already notified the Government—without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” (emphases added)). Moreover, as Justice Sotomayor’s dissent in Wheaton College shows, the written notices required in Wheaton College, Little Sisters, and Zubik were insufficient to authorize TPA coverage under the then-effective accommodation, and may remain insufficient even under the new alternative accommodation. See Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).8
To the extent Wheaton College allows the government to rely on its knowledge of Wheaton’s objection, this merely tracks the Supreme Court’s decision in Bowen v. Roy, where the Court rejected a Free Exercise challenge to the government’s use of a social security number it already possessed and concluded that the First Amendment does not “require the government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” 476 U.S. at 693, 699 (1986). But importantly:
8 That is, even under the new alternative notice scheme, the “information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a),” see Zubik, 2015 WL 3947586, at *1, does not contain all the information required by the regulations and thus might not qualify as a valid opt out sufficient to trigger TPA coverage, see 29 C.F.R. § 2590.715-2713A(b)(1)(ii)(B) (requiring the self-insured organization to provide, among other things “the plan name and type . . . and the name and contact information for any of the plan’s third party administrators”); Wheaton Coll., 134 S. Ct. at 2814 n.6 (Sotomayor, J., dissenting).
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a majority of justices [in Roy] indicated that the requirement that applicants furnish a social security number was a different matter. Five justices either concluded or strongly suggested that the government could not require an applicant to provide the number on a benefits application if the applicant had a sincere religious objection to doing so. Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 567 (7th Cir. 2014) (Flaum, J., dissenting) (emphasis in original), cert. granted, judgment vacated sub nom. Univ. of Notre Dame v. Burwell, 135 S. Ct. 1528 (2015); see Roy, 476 U.S. at 714–16 (Blackmun, J., concurring in part), 732 (O’Connor, J., concurring in part and dissenting in part) (“The rise of the welfare state was not the fall of the Free Exercise Clause.”), 733 (White, J., dissenting). Moreover, the Court may well have expressly allowed for this reliance in Wheaton College because, unlike the Little Sisters, Wheaton provides insurance through both selfinsured plans and insured plans subject to the Mandate. See Wheaton Coll. v. Burwell, 50 F. Supp. 3d 939, 944 (N.D. Ill. 2014) (Wheaton “offers its health insurance pursuant to six plans: two insured HMO plans, a [grandfathered] PPO plan, two self-funded prescription drug plans, and an insured student health plan.” (footnote omitted)). Thus, unlike the wholly self-insured Little Sisters, the government might independently ensure that an issuer from at least one of these insured health plans provides full contraceptive coverage to at least some of Wheaton’s various plan beneficiaries under the current ACA regime without forcing Wheaton to play a causal role in the receipt of that coverage. Thus, the Little Sisters, Wheaton College, and Zubik orders allow religious nonprofits to simply notify the government that they qualify for exemption and will not provide contraceptive coverage. The government may use its knowledge of these
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objections when choosing between independently available alternative means to ensure coverage is provided (as the conscientious objector and insured schemes do). But these orders do not allow the government to compel religious non-profits to furnish the document that is essential to cause their plan beneficiaries to receive objected-to coverage.
And yet, suppose these orders could be read to say that the written notices they required were legally sufficient to authorize a previously ineligible TPA to provide objected-to coverage. Under that dubious interpretation, the orders would indeed force self-insured religious objectors to perform an act that causes the ultimate provision of the coverage, as they would make the provision of the coverage wholly contingent upon the religious objectors’ acts of providing HHS with that notice. For all the reasons discussed above, that interpretation of the orders would impose a substantial burden on the selfinsured plaintiffs’ exercise of religion.
So, turning to the Court’s second assumption, even under its dubious interpretation of the orders, the orders nowhere say that forcing religious non-profits to play this sort of causal role avoids imposing a substantial burden on their religious exercise. Instead, assuming the Court’s interpretation of these orders is correct, these orders would impose a substantial burden under RFRA’s first step and therefore must comply with RFRA’s second step (strict scrutiny). Indeed, Judge Kavanaugh has compellingly argued that these orders simply set forth a less restrictive means of achieving the government’s compelling interest in facilitating access to contraceptive coverage. See Priests For Life, No. 13-5368, slip op. at 46–51 (Kavanaugh, J., dissenting). These orders do not require
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religious non-profits to identify related third parties for the government to authorize and possibly conscript in their stead. Rather, they only require the non-profits to inform HHS that they qualify for exemption and will not provide objected-to coverage. As discussed above regarding conscientious objector schemes, a significant difference exists between asking a religious objector to say simply “no” and compelling that objector to identify a related entity to serve as a scapegoat where no one else can.9
4. ERISA-Bound Plans v. ERISA-Exempt Church Plans The burden the self-insured plaintiffs face is most salient with regards to Southern Nazarene, whose TPA is subject to ERISA enforcement and therefore will be not only authorized but also required to provide contraceptives to the participants and beneficiaries of Southern Nazarene’s self-insured plan only if Southern Nazarene opts out. See 29 C.F.R. § 2590.715-2713A(b)(2). Southern Nazarene’s opt out will thus clearly cause someone to provide contraceptive coverage where no one would or could before. But the lack of an enforcement mechanism as to ERISA-exempt church plans does not itself remove the causal role and substantial burden that the accommodation scheme foists upon the church-plan plaintiffs. For example, the Guidestone Plan is an ERISAexempt church plan, but at least one of its TPAs, Highmark, has indicated it will provide full contraceptive coverage for those self-insured organizations that use the Guidestone Plan and validly opt out. And plaintiffs Reaching Souls, Truett-McConnell College, and
9 Moreover, this less restrictive means of achieving the same goal necessarily dooms the current self-insured accommodation scheme under strict scrutiny. See infra Part III.
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Mid-America Christian University are all self-insured plaintiffs that use the Guidestone Plan. Slip Op. at 21; SN Supp. Br. II at 9 n.2. So even though their opting out might not trigger an enforceable duty to provide objected-to coverage, these church plan plaintiffs have established that their opting out will actually cause Highmark to provide the coverage—coverage it cannot provide unless they opt out.
True, given the repeal of the accommodation scheme’s non-interference provision, church plans like the Guidestone Plan might try to fire TPAs like Highmark and replace them with TPAs that promise not to provide coverage for objected-to contraceptives, and those plaintiffs that use the Guidestone Plan might be able to fire Guidestone if it refuses to do so. See RS Oral at 12:57–13:10. Thus, by economic coercion, these plaintiffs might be able to ultimately stop the provision of the coverage they were initially forced to cause. But, the government maintains that “such conduct is generally unlawful and is prohibited under . . . state and federal laws.” See 79 Fed. Reg. at 51,095. And none of this changes the present fact that if plaintiffs who use the Guidestone Plan opt out, they will cause Highmark to perform a religiously objected-to act on their behalf where Highmark previously could not do so. Thus, those self-insured plaintiffs that use the Guidestone Plan have shown “presently threatened injuries” warranting injunctive relief. Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931).
The Little Sisters plaintiffs, on the other hand, have not established this causal connection. The Little Sisters’ primary TPA, Brothers Services, is not bound by ERISA and has promised not to provide contraceptive coverage even if Little Sisters opts out. Little Sisters asserts that Brothers Trust also uses other TPAs who might choose to
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provide contraceptive coverage if they opt out, but they have not sufficiently developed this theory to bear the burden of establishing that their opting out will presently cause someone to provide contraceptive coverage to their plan beneficiaries.
The Court also suggests self-insured non-profits “could relieve themselves of any lingering doubts they may have about causation by [1] employing an insured plan, [2] employing a self-insured church plan where the Departments lack authority to enforce the Mandate against their TPA, or [3] administering the self-insured plan on their own inhouse without using a TPA.” Slip Op. at 52 n.32. But none of these options alleviate the substantial burden the accommodation scheme imposes. First, choosing to switch from a self-insured plan, where no coverage can be provided without an opt out, to an insured plan, where coverage will be provided by a third party, would simply mean choosing to cause that coverage by switching plans rather than opting out. Second, as discussed above, even in the church plan context, opting out may still cause a TPA to provide the coverage. Third, no plaintiff in this case administers its plan in-house. So to the extent the Court opines on the legal effect the ACA Mandate might have on a plan not at issue in this case, the Court impermissibly exceeds its jurisdiction by “advising what the law would be upon a hypothetical state of facts.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)).
Given that we do not have jurisdiction to pass on this hypothetical, the self-insured plaintiffs should not have to rebut it to prove a present substantial burden under RFRA. But, because the Court goes there, administering a self-insured plan in-house without a TPA can be prohibitively complex, limit options for managing care, and create legal
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pitfalls that many non-profits simply cannot afford to handle. See Thomas R. McLean & Edward P. Richards, Health Care’s “Thirty Years War”: The Origins and Dissolution of Managed Care, 60 N.Y.U. ANN. SURV. AM. L. 283, 313 (2004); see generally Rhonda D. Orin and Daniel J. Healy, Self-Administering, Insuring and Funding Benefit Plans, 197– 213 in HUMAN RESOURCES (Thompson 2007 Summer Edition).
C. Summing Up the Substantial Burden On the Self-Insured Plaintiffs The Court concludes that the Plaintiffs’ causation arguments fail because “opting out would not trigger, incentivize, or otherwise cause the provision of contraceptive coverage.” Slip Op. at 65–66. This conclusion is correct in the insured context. But the self-insured plaintiffs, with the exception of Little Sisters, have shown exactly how their act of opting out will cause someone to provide contraceptive coverage where their refusal to act would prevent that result. Unfortunately, the Court fails to see this obvious causal relationship because it ignores the clear holding of Hobby Lobby and fails to comprehend the difference between unenforceable entitlement and actual receipt. The government has left self-insured plaintiffs in a position where they must decide whether their beneficiaries will actually receive objected-to contraceptive coverage. The accommodation does not absolve these plaintiffs of this responsibility. Instead, it forces them to either (1) violate their sincere religious beliefs by performing an action that will cause their beneficiaries to receive objected-to coverage, or (2) violate the law and incur steep fines to obey those religious beliefs. Again, this is a Hobson’s choice and thus a substantial burden on their religious exercise under RFRA. Abdulhaseeb, 600 F.3d at 1317; Hobby Lobby, 723 F.3d at 1141.
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III. STRICT SCRUTINY Because the government has imposed a substantial burden on at least the selfinsured plaintiffs’ religious exercise, under RFRA it must demonstrate that this burden is “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. Our precedent currently holds the government has no compelling interest in contraceptive coverage. See Hobby Lobby, 723 F.3d at 1143. But even assuming such a compelling interest, see Hobby Lobby, 134 S. Ct. at 2780 (assuming the same), 2785–86 (Kennedy, J., concurring), 2799 (Ginsburg, J., dissenting), the government cannot show this scheme is the least restrictive means of furthering that interest. As discussed above, the Supreme Court’s interim orders in Little Sisters, Wheaton College, and Zubik, even when interpreted so as to force self-insured non-profits to play a necessary causal role in contraceptive coverage, provide a less restrictive means of achieving the same goal. See Priests For Life, No. 13-5368, slip op. at 46–51 (Kavanaugh, J., dissenting). The existence of this less restrictive means dooms the current accommodation scheme under strict scrutiny. Hobby Lobby, 134 S. Ct. at 2781–82.
IV. CONCLUSION “Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty,” Hobby Lobby, 134 S. Ct. at 2760, a liberty essential to our country’s constitutional tradition, albeit with boundaries difficult to define, see id. at 2785 (Kennedy, J., concurring). The Court today makes causation one of those boundaries. Even assuming this boundary, however, the self-insured plaintiffs in this case, with the
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exception of the Little Sisters plaintiffs, have clearly shown how their compelled act will cause their plan beneficiaries to receive objected-to coverage that they could not otherwise receive. Therefore, I dissent from the Court’s holding regarding these selfinsured plaintiffs. Even assuming a causation requirement, I would still hold these selfinsured plaintiffs have shown a substantial likelihood of success on the merits of their RFRA claim and that the other requirements for a preliminary injunction are met. I would therefore affirm the district court’s denial of a preliminary injunction in Little Sisters, 6 F. Supp. 3d 1225, affirm the district court’s grant of a preliminary injunction in Reaching Souls, 2013 WL 6804259, and affirm in part (as to the self-insured plaintiffs: Southern Nazarene University and Mid-America University) and reverse in part (as to the insured plaintiffs: Oklahoma Baptist University and Oklahoma Wesleyan University) the district court’s grant of a preliminary injunction in Southern Nazarene, 2013 WL 6804265.
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Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
July 14, 2015

Chris Wolpert Chief Deputy Clerk

Mr. Daniel Howard Blomberg Ms. Adele Auxier Keim Becket Fund for Religious Liberty 1200 New Hampshire Avenue, NW Suite 700 Washington, DC 20036
Ms. Alisa Beth Klein Mr. Adam C. Jed Mr. Patrick Nemeroff Mr. Mark B. Stern U.S. Department of Justice Appellate Staff, Civil Division 950 Pennsylvania Avenue, NW Washington, DC 20530
Mr. Mark Rienzi Becket Fund for Religious Liberty 1200 New Hampshire Avenue, NW Suite 700 Washington, DC 20036
Mr. Seth Michael Roberts Mr. Carl Christopher Scherz Locke Lord 2200 Ross Avenue, Suite 2200 Dallas, TX 75201
Mr. Kevin C. Walsh University of Richmond School of Law 28 Westhampton Way Richmond, VA 23173
RE: 13-1540, 14-6026, 14-6028, Little Sisters of the Poor, et al v. Burwell, et al
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Dist/Ag docket: 1:13-CV-02611-WJM-BNB
Dear Counsel:
Enclosed is a copy of the opinion of the court issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 12 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R. 35 and 40 for further information governing petitions for rehearing.
Please contact this office if you have questions.
Sincerely,

cc: Leila Abolfazli Kimberley K Allen Brigitte Amiri Megan Barbero Gregory Baylor Michelle Renee Bennett Gretchen Borchelt Matthew Scott Bowman Stephen Robert Clark Kimberlee Wood Colby Miles E. Coleman David Andrew Cortman John Dillon Curran Charles E. Davidow Deborah Jane Dewart Steven W. Fitschen Noel Francisco

Elisabeth A. Shumaker Clerk of the Court
2

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Derek L. Gaubatz Jared D. Giddens Andree J. Goldsmith Marcia D. Greenberger Brady Ross Henderson Bradley Philip Humphreys Jonathan Keim Ayesha N. Khan Ovide Marc Lamontagne Francis J. Manion Emily Martin Colby M. May Mary Elizabeth McAlister Martha Jane Perkins Stuart J. Roth Jay Sekulow Jordan Sekulow Mailee R. Smith Geoffrey R. Surtees Kevin H. Theriot Jay T. Thompson Judith G. Waxman Walter Martin Weber Edward Lawrence White Erik Zimmerman
EAS/bv
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 Case 5:13-cv-01092-D Document 95 Filed 03/15/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

REACHING SOULS INTERNATIONAL, )

INC., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

ALEX M. AZAR, II, Secretary of the

)

United States Department of Health

)

and Human Services, et al.,

)

)

Defendants.

)

Case No. CIV-13-1092-D

ORDER GRANTING PERMANENT INJUNCTION AND DECLARATORY RELIEF

Upon consideration of Plaintiffs’ Motion for Permanent Injunction and Declaratory

Relief [Doc. No. 91], and Defendants’ response thereto, the Court finds that the Motion

should be granted, as set forth herein.

Plaintiffs Reaching Souls International, Inc. and Truett-McConnell College, Inc. are

nonprofit religious organizations that provide employee health benefits through a group

plan sponsored by Plaintiff GuideStone Financial Resources of the Southern Baptist

Convention (“GuideStone”). The GuideStone Plan is a “church plan” as defined by

29 U.S.C. § 1002(33), and is available to organizations controlled by or associated with the

Southern Baptist Convention, which share sincere religious views regarding abortion and

contraception and rely on GuideStone to provide insurance coverage consistent with those

views. By the Complaint, a prior motion for a preliminary injunction, and the instant

Motion, Plaintiffs seek relief pursuant to Fed. R. Civ. P. 65 from federal regulations

Case 5:13-cv-01092-D Document 95 Filed 03/15/18 Page 2 of 5
implementing the Affordable Care Act (“ACA”)1 that require compliance with ACA’s mandate to include contraceptive services in group health plan coverage as a preventive care service for women, and provide a means of compliance for nonexempt organizations that have religious objections to some contraceptive methods. See 42 U.S.C. § 300gg-13. This mechanism, known as the accommodation, was codified in 26 C.F.R. § 54.98152713A, 29 C.F.R. § 2590.715-2713A, and 45 C.F.R. § 147.131.2 Defendants are federal agencies and officials responsible for implementing these regulations and other recently proposed amendments.3
On December 20, 2013, the Court granted preliminary injunctive relief and enjoined the enforcement of the accommodation and the contraceptive mandate as a violation of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”), under Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2103), aff’d sub nom., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). See Mem. Decision & Order [Doc.
1 The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).
2 These regulations have been recently reserved and amended by interim final rules. See 82 Fed. Reg. 47792, 47838 (Oct. 13, 2017). But federal courts have enjoined enforcement of the interim rules so their effectiveness remains in doubt.
3 By operation of Fed. R. Civ. P. 25(d), the current defendants are: Alex Azar, Secretary of the United States Department of Health and Human Services; United States Department of Health and Human Services; R. Alexander Acosta, Secretary of the United States Department of Labor; United States Department of Labor; Steven T. Mnuchin, Secretary of the United States Department of the Treasury; and United States Department of the Treasury.
2

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No. 67] (available at 2013 WL 6804259).4 At Plaintiffs’ request, and without objection by Defendants, the injunction was made broad enough to protect a putative class of similarly situated employers, as defined in the Complaint. See id. at 16; Compl. [Doc. No. 1], ¶ 18. Defendants appealed, and this case was stayed by agreement of the parties. See 3/26/14 Order [Doc. No. 79]. After an appellate ruling in consolidated appeals, Little Sisters of the Poor v. Burwell, 794 F.3d 1151 (10th Cir. 2015), a grant of certiorari by the Supreme Court that resulted in an order vacating the decision and remanding the case for further proceedings, Zubick v. Burwell, 136 S. Ct. 1557 (2016), and a change of administrations, the Tenth Circuit on October 23, 2017, granted Defendants’ motion for voluntarily dismissal of the appeal. The case is once again pending in this Court.5
Upon consideration of Plaintiff’s current Motion in light of the existing case record, the Court finds that a permanent injunction under Rule 65(d) and declaratory relief under 28 U.S.C. § 2201 are warranted, and states the following findings and conclusions:
1) Plaintiffs have demonstrated, and Defendants concede, that the promulgation and enforcement of the contraceptive mandate against Plaintiffs, either through the accommodation or other regulatory means that require Plaintiffs to facilitate the provision
4 Plaintiffs also sought injunctive relief based on constitutional claims that the Court declined to reach. See id. at 16 n.9; see also 3/10/14 Order [Doc. No. 77]. In addition, the Complaint asserts a claim under the Administrative Procedures Act, 5 U.S.C. § 706. See Compl., ¶ 333. These claims have not been resolved, and currently remain pending.
5 Given the marked change in circumstances, one might question what remains to be accomplished in this action. Plaintiffs’ counsel assures the Court that an actual controversy still exists even though Defendants offer little resistance, and the Court accepts the representations of counsel, which Defendants do not dispute.
3

Case 5:13-cv-01092-D Document 95 Filed 03/15/18 Page 4 of 5
of coverage for contraceptive services to which they hold sincere religious objections, violated and would violate RFRA.
2) Plaintiffs will suffer irreparable harm as a direct result of Defendants’ conduct unless Defendants are enjoined from further interfering with Plaintiffs’ practice of their religious beliefs.
3) The threatened injury to Plaintiffs outweighs any injury to Defendants resulting from this injunction.
4) The public interest in the vindication of religious freedom favors the entry of an injunction.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Permanent Injunction and Declaratory Relief [Doc. No. 91] is GRANTED.
IT IS FURTHER ORDERED that the Court issues the following PERMANENT INJUNCTION:
Defendants, their agents, officers, employees, and all successors in office are enjoined and restrained from any effort to apply or enforce the substantive requirements of 42 U.S.C. § 300gg-13(a)(4) and any implementing regulations as those requirements relate to the provision of contraceptive drugs, devices, or procedures and related education and counseling to which Plaintiffs have sincerely-held religious objections, and are enjoined and restrained from pursuing, charging, or assessing penalties, fines, assessments, or other enforcement actions for noncompliance related thereto, including those in 26 U.S.C. §§ 4980D and 4980H, and 29 U.S.C. §§ 1132 and 1185d, and including, but not limited to,
4

Case 5:13-cv-01092-D Document 95 Filed 03/15/18 Page 5 of 5 penalties for failure to offer or facilitate access to religiously-objectionable contraceptive drugs, devices, or procedures, and related education and counseling, against Reaching Souls International, Inc., Truett-McConnell College, Inc., GuideStone Financial Resources of the Southern Baptist Convention, all current and future participating employers in the GuideStone Plan, and any-third party administrators acting on behalf of these entities with respect to the GuideStone Plan. Defendants remain free to enforce 26 U.S.C. § 4980H for any purpose other than to require Plaintiffs, other employers participating in the GuideStone Plan, and third-party administrators acting on their behalf, to provide or facilitate the provision of contraceptive coverage, or to punish them for failing to do so.
IT IS SO ORDERED this 15th day of March, 2018.
5

 
      
136  S.Ct.  1557  (2016)  
David  A.  ZUBIK,  et  al.,  petitioners   v.  
Sylvia  BURWELL,  Secretary  of  Health  and  Human  Services,  et  al.   Priests  for  Life,  et  al.,  petitioners   v.  
Department  of  Health  and  Human  Services,  et  al.   Roman  Catholic  Archbishop  of  Washington,  et  al.,  petitioners  
v.   Sylvia  Burwell,  Secretary  of  Health  and  Human  Services,  et  al.  
East  Texas  Baptist  University,  et  al.,  petitioners   v.  
Sylvia  Burwell,  Secretary  of  Health  and  Human  Services,  et  al.   Little  Sisters  of  the  Poor  Home  for  the  Aged,  Denver,  Colorado,  et  al.,  
petitioners   v.  
Sylvia  Burwell,  Secretary  of  Health  and  Human  Services,  et  al.   Southern  Nazarene  University,  et  al.,  petitioners   v.  
Sylvia  Burwell,  Secretary  of  Health  and  Human  Services,  et  al.   Geneva  College,  petitioner   v.  
Sylvia  Burwell,  Secretary  of  Health  and  Human  Services,  et  al.  
Nos.  14-­1418,  14-­1453,  14-­1505,  15-­35,  15-­105,  15-­119,  15-­191.  
Supreme  Court  of  United  States.  
May  16,  2016.  
ON  WRIT  OF  CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR  THE   THIRD  CIRCUIT.  
ON  WRIT  OF  CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR  THE   DISTRICT  OF  COLUMBIA  CIRCUIT.  
ON  WRIT  OF  CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR  THE   FIFTH  CIRCUIT.  

ON  WRIT  OF  CERTIORARI  TO  THE  UNITED  STATES  COURT  OF  APPEALS  FOR  THE   TENTH  CIRCUIT.  
1558*1558  Noel  J.  Francisco,  David  T.  Raimer,  Anthony  J.  Dick,  Jones  Day,  Washington,   DC,  Paul  M.  Pohl,  John  D.  Goetz,  Leon  F.  DeJulius,  Jr.,  Ira  M.  Karoll,  Jones  Day,   Pittsburgh,  PA,  Matthew  A.  Kairis,  Jones  Day,  Columbus,  OH,  for  petitioners  in  Nos.  14-­ 1418  and  14-­1505.  
1559*1559  Paul  D.  Clement,  Erin  E.  Murphy,  Robert  M.  Bernstein,  Bancroft  PLLC,   Washington,  DC,  David  A.  Cortman,  Gregory  S.  Baylor,  Jordan  W.  Lorence,  Kevin  H.   Theriot,  Matthew  S.  Bowman,  Rory  T.  Gray,  Alliance  Defending  Freedom,  Washington,  DC,   for  petitioners  in  Nos.  15-­119  and  15-­191.  
Robert  J.  Muise,  David  Yerushalmi,  American  Freedom  Law  Center,  Ann  Arbor,  MI,  for   petitioner  in  Nos.  14-­1453.  
Mark  Rienzi,  Eric  C.  Rassbach,  Hannah  C.  Smith,  Diana  M.  Verm,  Adèle  Auxier  Keim,   Daniel  H.  Blomberg,  The  Becket  Fund  for  Religious  Liberty,  Washington,  DC,  for  East   Texas  Baptist  University,  Houston  Baptist  University,  and  petitioners  in  No.  15-­105.  
Kenneth  R.  Wynne,  Wynne  &  Wynne  LLP,  Houston,  TX,  for  Westminster  Theological   Seminary.  
David  A.  Cortman,  Gregory  S.  Baylor,  Jordan  W.  Lorence,  Kevin  H.  Theriot,  Matthew  S.   Bowman,  Rory  T.  Gray,  Alliance  Defending  Freedom,  Washington,  DC,  for  petitioners  in   Nos.  15-­119  and  15-­191.  
Bradley  S.  Tupi,  Pittsburgh,  PA,  for  Geneva  College.  
Carl  C.  Scherz,  Laurence  A.  Hansen,  Locke  Lord  LLP,  Dallas,  TX,  Kevin  C.  Walsh,   Richmond,  VA,  for  petitioners  in  No.  15-­105.  
Paul  D.  Clement,  Erin  E.  Murphy,  Robert  M.  Bernstein,  Bancroft  PLLC,  Washington,  DC,   Mark  Rienzi,  Eric  C.  Rassbach,  Hannah  C.  Smith,  Diana  M.  Verm,  Adèle  Auxier  Keim,   Daniel  H.  Blomberg,  The  Becket  Fund  for  Religious  Liberty,  Washington,  DC,  for  East   Texas  Baptist  University,  Houston  Baptist,  University,  and  petitioners  in  No.  15-­105.  
Paul  M.  Pohl,  John  D.  Goetz,  Leon  F.  DeJulius,  Jr.,  Ira  M.  Karoll,  Jones  Day  Pittsburgh,  PA,   Robert  J.  Muise,  David  Yerushalmi,  American  Freedom,  Law  Center,  Ann  Arbor,  MI,  Noel  J.   Francisco,  David  T.  Raimer,  Anthony  J.  Dick,  Jones  Day,  Washington,  DC,  for  petitioners.  
Donald  B.  Verrilli,  Jr.,  Solicitor  General,  Benjamin  C.  Mizer,  Principal  Deputy  Assistant,   Attorney  General,  Ian  Heath  Gershengorn,  Edwin  S.  Kneedler,  Deputy  Solicitors  General,   Brian  H.  Fletcher,  Assistant  to  the  Solicitor  General,  Mark  B.  Stern,  Alisa  B.  Klein,  Adam  C.   Jed,  Patrick  G.  Nemeroff,  Megan  Barbero,  Joshua  Salzman,  Attorneys,  Department  of   Justice,  Washington,  DC,  for  respondents.  
PER  CURIAM.  

Petitioners  are  primarily  nonprofit  organizations  that  provide  health  insurance  to  their   employees.  Federal  regulations  require  petitioners  to  cover  certain  contraceptives  as  part  of   their  health  plans,  unless  petitioners  submit  a  form  either  to  their  insurer  or  to  the  Federal   Government,  stating  that  they  object  on  religious  grounds  to  providing  contraceptive   coverage.  Petitioners  allege  that  submitting  this  notice  substantially  burdens  the  exercise  of   their  religion,  in  violation  of  the  Religious  Freedom  Restoration  Act  of  1993,  107  Stat.  1488,   42  U.S.C.  §  2000bb  et  seq.  
Following  oral  argument,  the  Court  requested  supplemental  briefing  from  the  parties   addressing  "whether  contraceptive  1560*1560  coverage  could  be  provided  to  petitioners'   employees,  through  petitioners'  insurance  companies,  without  any  such  notice  from   petitioners."  Post,  p.  1561.  Both  petitioners  and  the  Government  now  confirm  that  such  an   option  is  feasible.  Petitioners  have  clarified  that  their  religious  exercise  is  not  infringed   where  they  "need  to  do  nothing  more  than  contract  for  a  plan  that  does  not  include   coverage  for  some  or  all  forms  of  contraception,"  even  if  their  employees  receive  cost-­free   contraceptive  coverage  from  the  same  insurance  company.  Supplemental  Brief  for   Petitioners  4.  The  Government  has  confirmed  that  the  challenged  procedures  "for   employers  with  insured  plans  could  be  modified  to  operate  in  the  manner  posited  in  the   Court's  order  while  still  ensuring  that  the  affected  women  receive  contraceptive  coverage   seamlessly,  together  with  the  rest  of  their  health  coverage."  Supplemental  Brief  for   Respondents  14-­15.  
In  light  of  the  positions  asserted  by  the  parties  in  their  supplemental  briefs,  the  Court   vacates  the  judgments  below  and  remands  to  the  respective  United  States  Courts  of   Appeals  for  the  Third,  Fifth,  Tenth,  and  D.C.  Circuits.  Given  the  gravity  of  the  dispute  and   the  substantial  clarification  and  refinement  in  the  positions  of  the  parties,  the  parties  on   remand  should  be  afforded  an  opportunity  to  arrive  at  an  approach  going  forward  that   accommodates  petitioners'  religious  exercise  while  at  the  same  time  ensuring  that  women   covered  by  petitioners'  health  plans  "receive  full  and  equal  health  coverage,  including   contraceptive  coverage."  Id.,  at  1.  We  anticipate  that  the  Courts  of  Appeals  will  allow  the   parties  sufficient  time  to  resolve  any  outstanding  issues  between  them.  
The  Court  finds  the  foregoing  approach  more  suitable  than  addressing  the  significantly   clarified  views  of  the  parties  in  the  first  instance.  Although  there  may  still  be  areas  of   disagreement  between  the  parties  on  issues  of  implementation,  the  importance  of  those   areas  of  potential  concern  is  uncertain,  as  is  the  necessity  of  this  Court's  involvement  at  this   point  to  resolve  them.  This  Court  has  taken  similar  action  in  other  cases  in  the  past.   See,  e.g.,  Madison  County  v.  Oneida  Indian  Nation  of  N.Y.,  562  U.S.  42,  43,  131  S.Ct.  704,   178  L.Ed.2d  587  (2011)  (per  curiam)  (vacating  and  remanding  for  the  Second  Circuit  to   "address,  in  the  first  instance,  whether  to  revisit  its  ruling  on  sovereign  immunity  in  light  of   [a]  new  factual  development,  and  —  if  necessary  —  proceed  to  address  other  questions  in   the  case  consistent  with  its  sovereign  immunity  ruling");;  Kiyemba  v.  Obama,  559  U.S.  131,   132,  130  S.Ct.  1235,  175  L.Ed.2d  1070  (2010)  (per  curiam)  (vacating  and  remanding  for  the   D.C.  Circuit  to  "determine,  in  the  first  instance,  what  further  proceedings  in  that  court  or  in   the  District  Court  are  necessary  and  appropriate  for  the  full  and  prompt  disposition  of  the   case  in  light  of  the  new  developments");;  Villarreal  v.  United  States,  572  U.S.  ___,  134  S.Ct.   1939,  188  L.Ed.2d  957  (2014)(vacating  and  remanding  to  the  Fifth  Circuit  "for  further  

consideration  in  light  of  the  position  asserted  by  the  Solicitor  General  in  his  brief  for  the   United  States").  
The  Court  expresses  no  view  on  the  merits  of  the  cases.  In  particular,  the  Court  does  not   decide  whether  petitioners'  religious  exercise  has  been  substantially  burdened,  whether  the   Government  has  a  compelling  interest,  or  whether  the  current  regulations  are  the  least   restrictive  means  of  serving  that  interest.  
Nothing  in  this  opinion,  or  in  the  opinions  or  orders  of  the  courts  below,  is  to  affect  the  ability   of  the  Government  to  ensure  that  women  covered  by  petitioners'  health  plans  "obtain,   without  cost,  the  full  1561*1561  range  of  FDA  approved  contraceptives."  Wheaton  College  v.   Burwell,  573  U.S.  ___,  ___,  134  S.Ct.  2806,  2807,  189  L.Ed.2d  856  (2014).  Through  this   litigation,  petitioners  have  made  the  Government  aware  of  their  view  that  they  meet  "the   requirements  for  exemption  from  the  contraceptive  coverage  requirement  on  religious   grounds."  Id.,  at  ___,  134  S.Ct.,  at  2807.  Nothing  in  this  opinion,  or  in  the  opinions  or  orders   of  the  courts  below,  "precludes  the  Government  from  relying  on  this  notice,  to  the  extent  it   considers  it  necessary,  to  facilitate  the  provision  of  full  contraceptive  coverage"  going   forward.  Ibid.  Because  the  Government  may  rely  on  this  notice,  the  Government  may  not   impose  taxes  or  penalties  on  petitioners  for  failure  to  provide  the  relevant  notice.  
The  judgments  of  the  Courts  of  Appeals  are  vacated,  and  the  cases  are  remanded  for   further  proceedings  consistent  with  this  opinion.  
It  is  so  ordered.  
Justice  SOTOMAYOR,  with  whom  Justice  GINSBURG  joins,  concurring.  
I  join  the  Court's  per  curiam  opinion  because  it  expresses  no  view  on  "the  merits  of  the   cases,"  "whether  petitioners'  religious  exercise  has  been  substantially  burdened,"  or   "whether  the  current  regulations  are  the  least  restrictive  means  of  serving"  a  compelling   governmental  interest.  Ante,  at  1560-­1561.  Lower  courts,  therefore,  should  not  construe   either  today's  per  curiam  or  our  order  of  March  29,  2016,  as  signals  of  where  this  Court   stands.  We  have  included  similarly  explicit  disclaimers  in  previous  orders.   See,  e.g.,  Wheaton  College  v.  Burwell,  573  U.S.  ___,  134  S.Ct.  2806,  189  L.Ed.2d  856   (2014)  ("[T]his  order  should  not  be  construed  as  an  expression  of  the  Court's  views  on  the   merits").  Yet  some  lower  courts  have  ignored  those  instructions.  See,  e.g.,  Sharpe   Holdings,  Inc.  v.  Department  of  Health  and  Human  Servs.,  801  F.3d  927,  944  (C.A.8   2015)  ("[I]n  Wheaton  College,  Little  Sisters  of  the  Poor,  and  Zubik,  the  Supreme  Court   approved  a  method  of  notice  to  HHS  that  is  arguably  less  onerous  than  [existing   regulations]  yet  permits  the  government  to  further  its  interests.  Although  the  Court's  orders   were  not  final  rulings  on  the  merits,  they  at  the  very  least  collectively  constitute  a  signal  that   less  restrictive  means  exist  by  which  the  government  may  further  its  interests").  On  remand   in  these  cases,  the  Courts  of  Appeals  should  not  make  the  same  mistake.  
I  also  join  the  Court's  opinion  because  it  allows  the  lower  courts  to  consider  only  whether   existing  or  modified  regulations  could  provide  seamless  contraceptive  coverage  "`to   petitioners'  employees,  through  petitioners'  insurance  companies,  without  any  ...  notice  from   petitioners.'"  Ante,  at  1559.  The  opinion  does  not,  by  contrast,  endorse  the  petitioners'  

position  that  the  existing  regulations  substantially  burden  their  religious  exercise  or  that   contraceptive  coverage  must  be  provided  through  a  "separate  policy,  with  a  separate   enrollment  process."  Supp.  Brief  for  Petitioners  1;;  Supp.  Reply  Brief  for  Petitioners  5.  Such   separate  contraceptive-­only  policies  do  not  currently  exist,  and  the  Government  has  laid  out   a  number  of  legal  and  practical  obstacles  to  their  creation.  See  Supp.  Reply  Brief  for   Respondents  3-­4.  Requiring  standalone  contraceptiveonly  coverage  would  leave  in  limbo  all   of  the  women  now  guaranteed  seamless  preventive-­care  coverage  under  the  Affordable   Care  Act.  And  requiring  that  women  affirmatively  opt  into  such  coverage  would  "impose   precisely  the  kind  of  barrier  to  the  delivery  of  preventive  services  that  Congress  sought  to   eliminate."  Id.,  at  6.  
1562*1562  Today's  opinion  does  only  what  it  says  it  does:  "afford[s]  an  opportunity"  for  the   parties  and  Courts  of  Appeals  to  reconsider  the  parties'  arguments  in  light  of  petitioners'   new  articulation  of  their  religious  objection  and  the  Government's  clarification  about  what   the  existing  regulations  accomplish,  how  they  might  be  amended,  and  what  such  an   amendment  would  sacrifice.  Ante,  at  1560.  As  enlightened  by  the  parties'  new  submissions,   the  Courts  of  Appeals  remain  free  to  reach  the  same  conclusion  or  a  different  one  on  each   of  the  questions  presented  by  these  cases.  
  

 
 Case: 5:13-cv-1092 As of: 09/13/2018 04:13 PM CDT 1 of 10
CLOSED,CONV,MITCHELL,_MR
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:13−cv−01092−D

Reaching Souls International Inc et al v. Sebelius et al Assigned to: Honorable Timothy D. DeGiusti Case in other court: Tenth Circuit, 14−06028 Cause: 42:2000 Job Discrimination (Public Accomodations)
Plaintiff

Date Filed: 10/11/2013 Date Terminated: 07/17/2018 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Reaching Souls International Inc an Oklahoma not for profit corporation

represented by Dwain Jared Giddens Conner & Winters−OKC 211 N Robinson Ave Suite 1700 Oklahoma City, OK 73102 405−272−5711 Fax: 405−232−2695 Email: jgiddens@cwlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adele A Keim The Becket Fund for Religious Liberty 3000 K St NW Suite 220 Washington, DC 20007 202/955−0095 Fax: 202/955−0090 Email: akeim@becketfund.org ATTORNEY TO BE NOTICED

Carl C Scherz Locke Lord LLP − DALLAS 2200 Ross Ave Suite 2200 Dallas, TX 75201 214−740−8583 Fax: 214−756−8583 Email: cscherz@lockelord.com ATTORNEY TO BE NOTICED

Daniel H Blomberg The Becket Fund for Religious Liberty 1200 New Hampshire Ave NW Suite 700 Washington, DC 20036 202−955−0095 Fax: 202−955−0090 Email: dblomberg@becketlaw.org PRO HAC VICE ATTORNEY TO BE NOTICED

J Dillon Curran Conner & Winters−OKC 211 N Robinson Ave Suite 1700 Oklahoma City, OK 73102 405−272−5711 Fax: 405−232−2695 Email: dcurran@cwlaw.com ATTORNEY TO BE NOTICED

Case: 5:13-cv-1092 As of: 09/13/2018 04:13 PM CDT 2 of 10

Plaintiff Truett−McConnell College Inc a Georgia nonprofit corporation; by themselves and on behalf of all others similarly situated
Plaintiff Guidestone Financial Resources of the Southern Baptist Convention a Texas nonprofit corporation

Mark L Rienzi The Becket Fund for Religious Liberty 3000 K St NW Suite 220 Washington, DC 20007 202−955−0095 Fax: 202−955−0090 Email: mrienzi@becketfund.org ATTORNEY TO BE NOTICED
Seth M Roberts Locke Lord LLP − DALLAS 2200 Ross Ave Suite 2200 Dallas, TX 75201 214−740−8453 Fax: 214−756−8453 Email: sroberts@lockelord.com ATTORNEY TO BE NOTICED
represented by Dwain Jared Giddens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adele A Keim (See above for address) ATTORNEY TO BE NOTICED
Carl C Scherz (See above for address) ATTORNEY TO BE NOTICED
Daniel H Blomberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
J Dillon Curran (See above for address) ATTORNEY TO BE NOTICED
Mark L Rienzi (See above for address) ATTORNEY TO BE NOTICED
Seth M Roberts (See above for address) ATTORNEY TO BE NOTICED
represented by Dwain Jared Giddens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adele A Keim (See above for address) ATTORNEY TO BE NOTICED
Carl C Scherz (See above for address)

Case: 5:13-cv-1092 As of: 09/13/2018 04:13 PM CDT 3 of 10
ATTORNEY TO BE NOTICED
Daniel H Blomberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
J Dillon Curran (See above for address) ATTORNEY TO BE NOTICED
Mark L Rienzi (See above for address) ATTORNEY TO BE NOTICED
Seth M Roberts (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kathleen Sebelius Secretary of the United States Department of Health and Human Services
Defendant Health and Human Services Department of United States
Defendant Thomas E Perez Secretary of the United States Department of Labor
Defendant

represented by Benjamin L Berwick US Attorney's Office − Federal Programs Branch DC 20 Massachusetts Ave NW Rm 7144 Washington, DC 20530 202−305−8573 Fax: 202−616−8470 Email: benjamin.l.berwick@usdoj.gov ATTORNEY TO BE NOTICED
Michelle R Bennett US Dept of Justice Civil Div−20−DC Federal Programs Branch 20 Massachusetts Ave NW Washington, DC 20001 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick (See above for address) ATTORNEY TO BE NOTICED
Michelle R Bennett (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin L Berwick (See above for address) ATTORNEY TO BE NOTICED
Michelle R Bennett (See above for address) ATTORNEY TO BE NOTICED

Case: 5:13-cv-1092 As of: 09/13/2018 04:13 PM CDT 4 of 10

Labor Department of United States

represented by Benjamin L Berwick (See above for address) ATTORNEY TO BE NOTICED

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

Defendant
Jacob J Lew Secretary of the United States Department of the Treasury

represented by Benjamin L Berwick (See above for address) ATTORNEY TO BE NOTICED

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

Defendant
Department of the Treasury United States

represented by Benjamin L Berwick (See above for address) ATTORNEY TO BE NOTICED

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

Date Filed 10/11/2013
10/15/2013 10/15/2013 10/15/2013 10/15/2013 10/15/2013 10/25/2013
10/25/2013

# Docket Text
1 COMPLAINT against Health and Human Services, Department of, Labor, Department of, Jacob J Lew, Thomas E Perez, Kathleen Sebelius, Treasury, Department of filed by Reaching Souls International Inc, Truett−McConnell College Inc, Guidestone Financial Resources of the Southern Baptist Convention. (Attachments: # 1 Exhibit 1 − Women's Preventive Svcs Guidelines, # 2 Exhibit 2 − Birth Control Medicines to Help You, # 3 Exhibit 3 − News Release re HHS, # 4 Exhibit 4 − The Affordable Care Act, # 5 Exhibit 5 − CMS.gov, # 6 Exhibit 6 − Employment Measures, # 7 Civil Cover Sheet)(ap) (Entered: 10/15/2013)
2 Summons Issued Electronically as to Health and Human Services, Department of, Labor, Department of, Jacob J Lew, Thomas E Perez, Kathleen Sebelius, Treasury, Department of, U.S. Attorney and U.S. Attorney General (ap) (Entered: 10/15/2013)
3 ENTRY of Appearance by J Dillon Curran on behalf of All Plaintiffs (Curran, J) (Entered: 10/15/2013)
4 DISCLOSURE STATEMENT − CORPORATE by All Plaintiffs . (Curran, J) (Entered: 10/15/2013)
5 NOTICE OF RELATED OR COMPANION CASE by All Plaintiffs (Curran, J) (Entered: 10/15/2013)
6 ENTRY of Appearance by Jared D Giddens on behalf of All Plaintiffs (Giddens, Jared) (Entered: 10/15/2013)
7 MOTION for Preliminary Injunction , Request for Expedited Consideration, and Brief in Support by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Declaration of Timothy E. Head, # 2 Exhibit 2 − Declaration of Joshua Wells, # 3 Exhibit 3 − Declaration of David Armstrong, # 4 Exhibit 4 − Preliminary Injunction filed USDC−District of New Mexico 11−13−2002)(Giddens, Jared) (Entered: 10/25/2013)
8 MOTION to Certify Class , Request for Expedited Consideration and Brief in Support by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Declaration of Timothy E. Head, # 2 Exhibit 2 − Declaration of Joshua Wells, # 3 Exhibit 3 − Declaration of David Armstrong, # 4 Exhibit 4 − Declaration of Carl C. Scherz, # 5 Exhibit 5 − Declaration of Mark Rienzi)(Giddens, Jared) (Entered: 10/25/2013)

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10/28/2013 10/28/2013 10/28/2013 10/28/2013 10/28/2013 10/28/2013 10/28/2013
10/28/2013
10/29/2013 10/30/2013 10/31/2013
10/31/2013 10/31/2013 11/04/2013
11/04/2013 11/04/2013 11/04/2013 11/04/2013 11/04/2013

9 SUMMONS RETURNED EXECUTED by All Plaintiffs. Kathleen Sebelius served on 10/21/2013. (Curran, J) (Entered: 10/28/2013)
10 SUMMONS RETURNED EXECUTED by All Plaintiffs. Health and Human Services Department of served on 10/21/2013. (Curran, J) (Entered: 10/28/2013)
11 SUMMONS RETURNED EXECUTED by All Plaintiffs. Thomas E Perez served on 10/21/2013. (Curran, J) (Entered: 10/28/2013)
12 SUMMONS RETURNED EXECUTED by All Plaintiffs. Labor Department of served on 10/21/2013. (Curran, J) (Entered: 10/28/2013)
13 SUMMONS RETURNED EXECUTED by All Plaintiffs. Jacob J Lew served on 10/21/2013. (Curran, J) (Entered: 10/28/2013)
14 SUMMONS RETURNED EXECUTED by All Plaintiffs. Department of the Treasury served on 10/21/2013. (Curran, J) (Entered: 10/28/2013)
15 SUMMONS RETURNED EXECUTED as to Non−Party for Summons and Complaint served on Eric Holder, United States Attorney General on 10/21/2013, filed by Plaintiffs Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc. (Curran, J) (Entered: 10/28/2013)
16 SUMMONS RETURNED EXECUTED as to Non−Party for Summons and Complaint served on Sanford C. Coats, United States Attorney for the Western District of Oklahoma on 10/17/2013, filed by Plaintiffs Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc. (Curran, J) (Entered: 10/28/2013)
17 ENTRY of Appearance by Benjamin L Berwick on behalf of All Defendants (Berwick, Benjamin) (Entered: 10/29/2013)
18 MOTION to Expedite Hearing on Motions for Preliminary Injunction and Class Certification and for Accelerated Briefing Schedule by All Plaintiffs. (Giddens, Jared) (Entered: 10/30/2013)
19 RESPONSE in Opposition re 18 MOTION to Expedite Hearing on Motions for Preliminary Injunction and Class Certification and for Accelerated Briefing Schedule filed by All Defendants. (Attachments: # 1 Proposed Order)(Berwick, Benjamin) (Entered: 10/31/2013)
20 MOTION for Extension of Time to File Response/Reply as to 8 MOTION to Certify Class , Request for Expedited Consideration and Brief in Support by All Defendants. (Attachments: # 1 Proposed Order)(Berwick, Benjamin) (Entered: 10/31/2013)
21 MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Proposed Order)(Berwick, Benjamin) (Entered: 10/31/2013)
22 ORDER directing Plaintiff to File a Reply no later than 11/7/2013 re 19 Response in Opposition to Motion, filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of. Signed by Honorable Timothy D. DeGiusti on 11/4/2013. (mb) (Entered: 11/04/2013)
23 MOTION for Leave to Appear Pro Hac Vice of Daniel Blomberg by All Plaintiffs. (Curran, J) (Entered: 11/04/2013)
24 MOTION for Leave to Appear Pro Hac Vice of Adele Auxier Keim by All Plaintiffs. (Curran, J) (Entered: 11/04/2013)
25 MOTION for Leave to Appear Pro Hac Vice of Mark Rienzi by All Plaintiffs. (Curran, J) (Entered: 11/04/2013)
26 MOTION for Leave to Appear Pro Hac Vice of Michael Roberts by All Plaintiffs. (Curran, J) (Entered: 11/04/2013)
27 MOTION for Leave to Appear Pro Hac Vice of Carl C. Scherz by All Plaintiffs. (Curran, J) (Entered: 11/04/2013)

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11/04/2013
11/04/2013
11/05/2013 11/05/2013 11/05/2013 11/05/2013 11/05/2013 11/05/2013 11/05/2013 11/06/2013 11/06/2013 11/06/2013 11/06/2013 11/06/2013 11/06/2013 11/07/2013

28 REPLY to Response to Motion re 20 MOTION for Extension of Time to File Response/Reply as to 8 MOTION to Certify Class , Request for Expedited Consideration and Brief in Support , 21 MOTION for Leave to File Excess Pages filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Declaration of Mark L. Rienzi, # 2 Exhibit 2 − EBSA Form 700 − Certification)(Giddens, Jared) (Entered: 11/04/2013)
29 REPLY to Response to Motion re 20 MOTION for Extension of Time to File Response/Reply as to 8 MOTION to Certify Class , Request for Expedited Consideration and Brief in Support , 18 MOTION to Expedite Hearing on Motions for Preliminary Injunction and Class Certification and for Accelerated Briefing Schedule (Corrected Exhibit 2) filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Declaration of Mark L. Rienzi, # 2 Exhibit 2 − EBSA Form 700 − Certification)(Giddens, Jared) (Entered: 11/04/2013)
30 UNOPPOSED MOTION for Leave to File Sur−Reply by All Defendants. (Berwick, Benjamin) (Entered: 11/05/2013)
31 UNOPPOSED MOTION for Leave Nunc Pro Tunc To File Corrected Pleading And To Strike by All Plaintiffs. (Attachments: # 1 Attachment Proposed Order)(Curran, J) (Entered: 11/05/2013)
32 Receipt for Money Received from Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc in the amount of $50.00, receipt number OKW500036183 regarding 23 MOTION for Leave to Appear Pro Hac Vice of Daniel Blomberg (ap) (Entered: 11/05/2013)
33 Receipt for Money Received from Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc in the amount of $50.00, receipt number OKW500036184 regarding 24 MOTION for Leave to Appear Pro Hac Vice of Adele Auxier Keim (ap) (Entered: 11/05/2013)
34 Receipt for Money Received from Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc in the amount of $50.00, receipt number OKW500036185 regarding 25 MOTION for Leave to Appear Pro Hac Vice of Mark Rienzi (ap) (Entered: 11/05/2013)
35 Receipt for Money Received from Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc in the amount of $50.00, receipt number OKW500036186 regarding 26 MOTION for Leave to Appear Pro Hac Vice of Michael Roberts (ap) (Entered: 11/05/2013)
36 Receipt for Money Received from Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc in the amount of $50.00, receipt number OKW500036187 regarding 27 MOTION for Leave to Appear Pro Hac Vice of Carl C. Scherz (ap) (Entered: 11/05/2013)
37 ORDER granting 23 Motion to Appear Pro Hac Vice of Daniel Blomberg. Signed by Honorable Timothy D. DeGiusti on 11/6/2013. (mb) (Entered: 11/06/2013)
38 ORDER granting 24 Motion to Appear Pro Hac Vice of Adele Auxier Keim. Signed by Honorable Timothy D. DeGiusti on 11/6/2013. (mb) (Entered: 11/06/2013)
39 ORDER granting 25 Motion to Appear Pro Hac Vice of Mark Rienzi. Signed by Honorable Timothy D. DeGiusti on 11/6/2013. (mb) (Entered: 11/06/2013)
40 ORDER granting 26 Motion to Appear Pro Hac Vice of Seth Michael Roberts. Signed by Honorable Timothy D. DeGiusti on 11/6/2013. (mb) (Entered: 11/06/2013)
41 ORDER granting 27 Motion to Appear Pro Hac Vice of Carl C. Scherz. Signed by Honorable Timothy D. DeGiusti on 11/6/2013. (mb) (Entered: 11/06/2013)
42 ORDER granting 31 Motion for Leave Nunc Pro Tunc to File Corrected Pleading and Strike 28 Reply. Signed by Honorable Timothy D. DeGiusti on 11/6/2013. (mb) (Entered: 11/06/2013)
43 Receipt for Money Received from Reaching Souls International Inc, Truett−McConnell College Inc in the amount of $400.00, receipt number OKW500036253 regarding 1 Complaint,, (ap) (Entered: 11/07/2013)

Case: 5:13-cv-1092 As of: 09/13/2018 04:13 PM CDT 7 of 10

11/07/2013
11/08/2013 11/14/2013 11/14/2013 11/14/2013 11/15/2013 11/15/2013 11/15/2013 11/19/2013 11/25/2013 11/26/2013
11/27/2013 11/27/2013 11/27/2013

44 ORDER denying 18 Motion to Expedite Briefing Schedule; granting 20 Motion for Extension of Time to File Response re 7 MOTION for Preliminary Injunction , Request for Expedited Consideration, and Brief in Support, 8 MOTION to Certify Class , Request for Expedited Consideration and Brief in Support ; granting 21 Motion for Leave to File Excess Pages. Defendants' Combined Brief in Response to Motion for Preliminary Injunction and in Support of a Motion to Dismiss or in the Alternative Motion for Summary Judgment due 11/15/2013 and shall not exceed 45 pages; Plaintiffs' Combined Reply Brief Regarding Defendants' Motion to Dismiss or in the Alternative, Motion for Summary Judgment due 11/27/2013 and shall not exceed 45 pages; Defendants' Reply Brief Regarding Motion to Dismiss or Alternatively Motion for Summary Judgment due 12/6/2013 and shall not exceed 15 pages; Defendants' Response to Plaintiffs' Motion for Class Certification shall be filed within 30 days after the Court rules on Plaintiffs' Motion for Preliminary Injunction. Hearing on pending motions set for 12/16/2013 at 9:30 a.m., Courtroom 503. Signed by Honorable Timothy D. DeGiusti on 11/7/2013. (mb) (Entered: 11/07/2013)
45 ORDER denying as moot 30 Motion for Leave to File Sur−Reply. Signed by Honorable Timothy D. DeGiusti on 11/8/2013. (mb) (Entered: 11/08/2013)
46 ENTRY of Appearance by Daniel H Blomberg on behalf of All Plaintiffs (Blomberg, Daniel) (Entered: 11/14/2013)
47 ENTRY of Appearance by Mark L Rienzi on behalf of All Plaintiffs (Rienzi, Mark) (Entered: 11/14/2013)
48 ENTRY of Appearance by Adele A Keim on behalf of All Plaintiffs (Keim, Adele) (Entered: 11/14/2013)
49 NOTICE (other) by All Defendants of Filing of Certified Administrative Record (Attachments: # 1 Index, # 2 Certification)(Berwick, Benjamin) (Entered: 11/15/2013)
50 RESPONSE in Opposition re 7 MOTION for Preliminary Injunction , Request for Expedited Consideration, and Brief in Support filed by All Defendants. (Berwick, Benjamin) (Entered: 11/15/2013)
51 MOTION to Dismiss , MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative, MOTION for Summary Judgment and Memorandum in Support by All Defendants. (Berwick, Benjamin) (Entered: 11/15/2013)
70 NOTICE Admin Record filed on 3 DVDs and submitted to Clk's Ofc by All Defendants re 49 Notice (other) (ap) Modified on 1/8/2014 to add document number. DVD's placed in file in the file room (kw, ). (Entered: 11/20/2013)
52 ENTRY of Appearance by Seth M Roberts on behalf of All Plaintiffs (Roberts, Seth) (Entered: 11/25/2013)
53 ENTER ORDER: Defendants have provided an administrative record in electronic format. Defendants have filed briefs that reference less than 100 pages of the administrative record. The Court directs Defendants to file an appendix of exhibits that contains only the pertinent parts of the administrative record cited in their briefs, and to provide a courtesy copy of the appendix within 7 days. Signed by Honorable Timothy D. DeGiusti on 11/26/2013. (mb) (Entered: 11/26/2013)
54 MOTION for Extension of Time to Complete Discovery Pursuant to Rule 56(d) and Brief in Support by All Plaintiffs. (Attachments: # 1 Exhibit 1−Declaration of Mark Rienzi, # 2 Exhibit 2 − Supplemental Declaration of Timothy E. Head)(Giddens, Jared) (Entered: 11/27/2013)
55 DEMAND for Trial by Jury by All Plaintiffs. (Giddens, Jared) (Entered: 11/27/2013)
56 REPLY by Plaintiffs Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc re 51 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative MOTION for Summary Judgment and Memorandum in Support, 7 MOTION for Preliminary Injunction , Request for Expedited Consideration, and Brief in Support filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Declaration of Joseph Ormont, # 2 Exhibit 2 − Declaration of Mark Rienzi, # 3 Exhibit 3 − Supplemental Declaration of Timothy E. Head, # 4 Exhibit 4 − Declaration of Joshua Wells, # 5

Case: 5:13-cv-1092 As of: 09/13/2018 04:13 PM CDT 8 of 10

11/27/2013 12/03/2013 12/03/2013 12/06/2013 12/12/2013
12/13/2013 12/16/2013
12/17/2013 12/18/2013 12/19/2013 12/20/2013 12/20/2013 12/20/2013 12/23/2013

Exhibit 5 − Declaration of David Armstrong)(Giddens, Jared) (Entered: 11/27/2013)
Docket Annotation: 54 Rule 56(d) Motion and Brief is not a motion for extension of time (mb) (Entered: 12/02/2013)
57 APPENDIX Excerpts of Administrative Record by All Defendants. (Berwick, Benjamin) (Entered: 12/03/2013)
58 ENTRY of Appearance by Carl C Scherz on behalf of Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc (Scherz, Carl) (Entered: 12/03/2013)
59 REPLY to Response to Motion re 51 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative MOTION for Summary Judgment and Memorandum in Support filed by All Defendants. (Berwick, Benjamin) (Entered: 12/06/2013)
60 ORDER that the hearing will be limited to consideration of re 51 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative MOTION for Summary Judgment and Memorandum in Support filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of, and 7 MOTION for Preliminary Injunction , Request for Expedited Consideration, and Brief in Support filed by Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc. ORDER MORE FULLY SET OUT. Signed by Honorable Timothy D. DeGiusti on 12/12/2013. (mb) (Entered: 12/12/2013)
61 RESPONSE in Opposition re 54 MOTION for Extension of Time to Complete Discovery Pursuant to Rule 56(d) and Brief in Support filed by All Defendants. (Berwick, Benjamin) (Entered: 12/13/2013)
62 Minute Entry for proceedings held before Honorable Timothy D. DeGiusti: Motion Hearing held on 12/16/2013 re 51 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative MOTION for Summary Judgment and Memorandum in Support filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of, 7 MOTION for Preliminary Injunction , Request for Expedited Consideration, and Brief in Support filed by Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc. (Court Reporter Christy Clark.) (mb) (Entered: 12/16/2013)
63 UNOPPOSED MOTION for Leave to File Supplemental Authority by All Plaintiffs. (Attachments: # 1 Exhibit)(Rienzi, Mark) (Entered: 12/17/2013)
64 ORDER granting 63 Motion for Leave to File Supplemental Authority. Signed by Honorable Timothy D. DeGiusti on 12/18/2013. (mb) (Entered: 12/18/2013)
65 NOTICE (other) by All Defendants Defendants' Notice of Supplemental Authority and Response to Plaintiffs' Notice of Supplemental Authority (Attachments: # 1 Exhibit Priests for Life v. HHS)(Berwick, Benjamin) (Entered: 12/19/2013)
66 ORDER Striking re 65 Notice (other) filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of. Signed by Honorable Timothy D. DeGiusti on 12/20/2013. (mb) (Entered: 12/20/2013)
67 ORDER denying 51 Motion to Dismiss for Lack of Jurisdiction; granting 7 Motion for Preliminary Injunction. Injunction Issued. Signed by Honorable Timothy D. DeGiusti on 12/20/2013. (mb) (Entered: 12/20/2013)
68 REPLY by Plaintiffs Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc re 61 Response in Opposition to Motion filed by All Plaintiffs. (Scherz, Carl) (Entered: 12/20/2013)
69 ORDER denying 8 Motion to Certify Class. Signed by Honorable Timothy D. DeGiusti on 12/23/2013. (mb) (Entered: 12/23/2013)

Case: 5:13-cv-1092 As of: 09/13/2018 04:13 PM CDT 9 of 10

02/11/2014 02/12/2014 02/13/2014 02/25/2014
02/25/2014 03/04/2014 03/10/2014 03/24/2014 03/26/2014 03/26/2014 03/31/2014 07/16/2015 07/16/2015 08/07/2015 10/23/2017

71 NOTICE OF INTERLOCUTORY APPEAL by All Defendants. (Berwick, Benjamin) (Entered: 02/11/2014)
72 Interlocutory PRELIMINARY RECORD LETTER − Electronic Transmission of Notice of Appeal with Preliminary Record sent to Tenth Circuit Court of Appeals re 71 Notice of Interlocutory Appeal (cpp) (Entered: 02/12/2014)
73 Tenth Circuit USCA Case Number 14−6028 for 71 Notice of Interlocutory Appeal filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of. (cpp) (Entered: 02/13/2014)
74 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 12/16/2013 before Judge DeGiusti. Court Reporter: Christina L. Clark, Telephone number (405) 609−5123. Transcript of: Proceedings Volume: I of I Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/18/2014. Redacted Transcript Deadline set for 3/28/2014. Release of Transcript Restriction set for 5/27/2014. (cc) (Entered: 02/25/2014)
75 TRANSCRIPT Order Form by All Defendants re 71 Notice of Interlocutory Appeal that transcripts are not necessary. See order form for dates and proceedings. (Berwick, Benjamin) (Entered: 02/25/2014)
76 TRANSCRIPT LETTER advising no transcripts are necessary re 71 Notice of Interlocutory Appeal filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of. The record is ready for appeal purposes. (cpp) (Entered: 03/04/2014)
77 ORDER denying 51 Motion to Dismiss; denying 51 Motion for Summary Judgment; denying 54 Plaintiffs' Rule 56(d) Motion. Each party shall inform the Court by written notice filed within 14 days of its position regarding a stay of the action pending appeal. Signed by Honorable Timothy D. DeGiusti on 3/10/2014. (mb) (Entered: 03/10/2014)
78 NOTICE (other) by All Defendants (Joint Notice in Response to Court's March 10, 2014 Order) (Berwick, Benjamin) (Entered: 03/24/2014)
79 ORDER Staying Case re 78 Notice (other) filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of. Signed by Honorable Timothy D. DeGiusti on 3/26/2014. (mb) (Entered: 03/26/2014)
80 ADMINISTRATIVE CLOSING ORDER: This action is administratively terminated without prejudice during the pendency of the interlocutory appeal filed by Defendants. The Clerk shall reopen this case upon receipt of the Tenth Circuit's mandate. Signed by Honorable Timothy D. DeGiusti on 3/26/2014. (mb) (Entered: 03/26/2014)
81 ORDER of USCA as to 71 Notice of Interlocutory Appeal filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of (cpp) (Entered: 04/10/2014)
82 USCA OPINION as to 71 Notice of Interlocutory Appeal filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of. Affirmed and Reversed; Terminated on the merits after oral hearing. Mandate to issue. (cla) (Entered: 07/16/2015)
83 USCA JUDGMENT as to 71 Notice of Interlocutory Appeal filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of. (cla) (Entered: 07/16/2015)
84 ENTRY of Appearance by Michelle R Bennett on behalf of Department of the Treasury, Health and Human Services Department of, Labor Department of, Jacob J Lew, Thomas E Perez, Kathleen Sebelius (Bennett, Michelle) (Entered: 08/07/2015)
85 ORDER of USCA as to 71 Notice of Interlocutory Appeal filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of. Dismissed; Terminated on the merits after submissions without oral hearing (ml) (Entered: 10/23/2017)

Case: 5:13-cv-1092 As of: 09/13/2018 04:13 PM CDT 10 of 10

10/23/2017 11/17/2017 12/08/2017 01/03/2018 01/10/2018 02/16/2018 02/26/2018 03/05/2018 03/12/2018
03/15/2018 07/13/2018 07/17/2018
08/30/2018
08/31/2018

86 USCA MANDATE Issued re 71 Notice of Interlocutory Appeal filed by Kathleen Sebelius, Labor Department of, Department of the Treasury, Thomas E Perez, Jacob J Lew, Health and Human Services Department of (ml) (Entered: 10/23/2017)
87 ORDER directing the parties to file a joint status report stating their positions regarding further proceedings not later than 12/8/2017. Signed by Honorable Timothy D. DeGiusti on 11/17/2017. (mb) (Entered: 11/17/2017)
88 STATUS REPORT (Joint) by Defendants Department of the Treasury, Health and Human Services Department of, Labor Department of, Jacob J Lew, Thomas E Perez, Kathleen Sebelius. (Bennett, Michelle) (Entered: 12/08/2017)
89 Notice of Disclosure of Potential Ground for Disqualification and Procedure for Remittal. (Attachments: # 1 Attachment 1−Plaintiffs Waiver, # 2 Attachment 2− Defendants Waiver)(ml) (Entered: 01/03/2018)
90 ORDER that Plaintiff's shall file their proposed motion for permanent injunction by 2/16/2018. Defendants shall respond by 3/5/2018. Plaintiffs' reply due 3/12/2018. Signed by Honorable Timothy D. DeGiusti on 1/10/2018. (mb) (Entered: 01/10/2018)
91 MOTION for Permanent Injunction and Declaratory Relief, and Brief in Support by All Plaintiffs. (Giddens, Dwain) (Entered: 02/16/2018)
92 NOTICE (other) by All Plaintiffs re 91 MOTION for Permanent Injunction and Declaratory Relief, and Brief in Support (Attachments: # 1 Exhibit Order Granting Permanent Injunction and Declaratory Relief)(Giddens, Dwain) (Entered: 02/26/2018)
93 RESPONSE to Motion re 91 MOTION for Permanent Injunction and Declaratory Relief, and Brief in Support filed by All Defendants. (Bennett, Michelle) (Entered: 03/05/2018)
94 REPLY to Response to Motion re 91 MOTION for Permanent Injunction and Declaratory Relief, and Brief in Support filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit 1: Order Granting Permanent Injunction, # 2 Exhibit Exhibit 2: Guidestone Revised Proposed Order)(Giddens, Dwain) (Entered: 03/12/2018)
95 ORDER GRANTING PERMANENT INJUNCTION and Declaratory Relief. Signed by Honorable Timothy D. DeGiusti on 3/15/2018. (mb) (Entered: 03/15/2018)
96 UNOPPOSED MOTION for Judgment by All Plaintiffs. (Giddens, Dwain) (Entered: 07/13/2018)
97 JUDGMENT in favor of Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc against Department of the Treasury, Health and Human Services Department of, Labor Department of, Jacob J Lew, Kathleen Sebelius, Thomas E Perez. Signed by Honorable Timothy D. DeGiusti on 7/17/2018. (mb) (Entered: 07/17/2018)
98 UNOPPOSED MOTION for Extension of Time to File Bill of Costs and Motion for Attorney Fees by Guidestone Financial Resources of the Southern Baptist Convention, Reaching Souls International Inc, Truett−McConnell College Inc. (Attachments: # 1 Proposed Order)(Rienzi, Mark) (Entered: 08/30/2018)
99 ORDER granting 98 Unopposed Motion for Extension of Deadlines for Bill of Costs and Motion for Attorney's Fees. Plaintiffs to file a motion for attorney fees and bill of costs no later than 10/15/2018. Signed by Honorable Timothy D. DeGiusti on 8/31/2018. (mb) (Entered: 08/31/2018)