Case: 4:12-cv-00476-CEJ Doc. #: 1 Filed: 03/15/12 Page: 1 of 12 PageID #: 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

FRANK R. O’BRIEN JR.,

)

O’BRIEN INDUSTRIAL HOLDINGS, LLC,

)

)

PLAINTIFFS,

)

)

vs.

)

)

)

UNITED STATES DEPARTMENT

)

OF HEALTH AND HUMAN SERVICES;

)

KATHLEEN SEBELIUS, in her official capacity )

as the Secretary of the United States Department )

of Health and Human Services;

)

UNITED STATES DEPARTMENT OF

)

THE TREASURY; TIMOTHY F. GEITHNER, )

in his official capacity as the Secretary of the

)

United States Department of the Treasury;

)

UNITED STATES DEPARTMENT OF LABOR; )

and HILDA L. SOLIS, in her official capacity as )

Secretary of the United States Department of Labor, )

)

DEFENDANTS.

)

_________________________________________ )

CASE NO. ______________ COMPLAINT

Plaintiffs, Frank R. O’Brien Jr. and O’Brien Industrial Holdings, LLC, through their

attorneys, say:

NATURE OF ACTION

1.

In this case, Plaintiffs seek judicial review of Defendants’ violations of constitutional

and statutory provisions in connection with the Defendants’ promulgation and implementation of

certain regulations adopted under the 2010 Patient Protection and Affordable Care Act

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(“PPACA”), specifically those regulations mandating that employers include in employee health

benefit plans coverage of services that violate an employer’s religious and moral values.

2.

Specifically, Plaintiffs ask the court for declaratory and injunctive relief from the

operation of the Final Rule confirmed and promulgated by the Defendants on February 15, 2012,

mandating that group health plans include coverage, without cost sharing, for “all Food and Drug

Administration-approved contraceptive methods, sterilization procedures and patient education

and counseling for all women with reproductive capacity” in plan years beginning on or after

August 1, 2012 (hereafter, “the Mandate” or “the Final Rule”) see 45 CFR § 147.130 (a)(1)(iv),

as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources

and Services Administration (HRSA) Guidelines found at http://www.hrsa.gov/

womensguidelines.

3.

Plaintiff, Frank R. O’Brien Jr., is an adherent of the Catholic religion. As the

individual with the controlling interest in Plaintiff, O’Brien Industrial Holdings, LLC (“OIH”)

and its subsidiaries, O’Brien wishes to conduct his business in a manner that does not violate the

principle of his religious faith.

4.

O’Brien has concluded that complying with the Mandate would require him to

violate his religious beliefs because it would require him and/or the corporations he controls to

pay for, not only contraception and sterilization, but also abortion, because certain drugs and

devices such as the “morning-after pill,” “Plan B,” and “Ella” come within the Mandate’s and

HRSA’s definition of “Food and Drug Administration-approved contraceptive methods” despite

their known abortifacient mechanisms of action.

5.

O’Brien contends that by requiring him to choose between conducting his business in

a manner consistent with his religion, or paying ruinous fines and penalties, the Mandate violates

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his rights under the First Amendment, the Religious Freedom Restoration Act, and violates the Administrative Procedure Act.

JURISDICTION AND VENUE

6.

This 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.

7.

Venue is appropriate in this district pursuant to 28 U.S.C. §1391(e)(3) as the

Plaintiffs reside within this district.

IDENTIFICATION OF PARTIES

8.

Plaintiff, Frank R. O’Brien Jr., is an individual and a citizen of the State of Missouri

and the United States.

9.

O’Brien holds the sole voting interest in Plaintiff, O’Brien Industrial Holdings, LLC,

a Missouri limited liability company. Plaintiff, OIH, is the holding company for and owner of

the Christy family of companies: Christy Catalytics, LLC, Christy Industrial Services Co., LLC,

Christy Minerals Company, LLC, and the Christy Refractories Company, L.L.C. and O’Brien

Asset Management, LLC.

10.

Frank R. O’Brien Jr. is the Chairman and Managing Member of OIH. He is

responsible for setting all policies governing the conduct of all phases of the business of OIH and

the Christy family of companies.

11.

Defendant United States Department of Health and Human Services (“HHS”), is an

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agency of the United States, and is responsible for administration and enforcement of the

Mandate/Final Rule.

12.

Defendant Kathleen Sebelius is Secretary of HHS, and is named as a party in her

official capacity.

13.

Defendant United States Department of the Treasury is an agency of the United

States, and is responsible for administration and enforcement of the Mandate/Final Rule.

14.

Defendant Timothy F. Geithner is Secretary of the Treasury, and is named as a party

in his official capacity.

15.

Defendant United States Department of Labor (“DOL”) is an agency of the United

States, and is responsible for administration and enforcement of the Mandate/Final Rule.

16.

Defendant Hilda L. Solis is Secretary of DOL, and is named as a party in her official

capacity.

FACTUAL ALLEGATIONS

17.

Plaintiff, OIH, through its subsidiaries is engaged in the exploration, mining and

processing of refractory and ceramic raw materials (Christy Minerals); the manufacturing and

distribution of refractory and insulatory products (Christy Refractories); the installation of

refractory products for all types of industries (Christy Industrial); and the supplying of ceramic

and alumina balls to over 40 countries as well as mass transfer media for the hydrocarbon and

chemical processing industries (Christy Catalytics).

18.

Plaintiff, OIH, has its main offices at 4641 McRee Avenue in St. Louis, Missouri.

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Prominently displayed in the company’s lobby is a statue of the Sacred Heart of Jesus.1

19.

Plaintiff, OIH and its subsidiaries, share a common Mission and Values, which is

published on OIH’s website.

20.

According to the company’s website, OIH’s Mission “is to make our labor a pleasing

offering to the Lord while enriching our families and society.”

21.

OIH’s statement of the company’s values begins with the following: “Integrity. Our

conduct is guided by the Golden Rule and the Ten Commandments. We will not discriminate

based on anyone’s personal belief system.” The statement of company values contains a link to

“more information about our mission and values.”

22.

OIH’s “Explanation of Mission & Values” posted on its website begins with a direct

quotation from Ephesians 6:1-9, and proceeds to list the following company goals.

* For all of OIH’s employees to have the ability to own their own home accomplished through each employee’s personnel’s pay and an annual profit sharing bonus;
* For all of OIH’s employees to have the ability to send their children to college, accomplished through a generous company scholarship program.
* For all of OIH’s employees to have the opportunity to retire with dignity through participation in a 401(k) profit sharing plan.

23.

OIH explains its mission of “enriching society” by stating that OIH and its

subsidiaries “pledge to tithe on the earnings of the Companies.” Part of the tithing is

accomplished through a “St. Nicholas Fund,” named for the fourth century bishop of Myra. OIH

asks its employees to “keep their eyes open” for situations where “a little monetary help may

1 Catholic devotion to the Sacred Heart of Jesus is focused on Christ’s love, of which his Heart is said to be the living and expressive symbol. Some Catholics display images pertaining to this devotion in their homes and workplaces.

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make a big difference to someone” and to contact the company’s St. Nicholas Committee. The

committee investigates such referrals and responds to them anonymously.

24.

OIH and its subsidiaries currently have 87 employees. The employees are covered

by a group policy of health insurance offered and underwritten by United Healthcare Insurance

Company. The plan’s annual renewal date is January 1. Like its profit sharing, retirement plan,

and scholarship program and tithing efforts, Plaintiffs consider the provision of employee health

insurance an integral component of furthering the Company’s mission and values.

25.

Plaintiff O’Brien holds to the teachings of the Catholic Church regarding the sanctity

of human life from conception to natural death. He believes that actions intended to terminate an

innocent human life by abortion are gravely sinful. Further, O’Brien adheres to Catholic Church

teaching regarding the immorality of artificial means of contraception and sterilization.

26.

Plaintiff O’Brien believes that he cannot pay for and provide coverage for

contraceptives, sterilization, abortion or related education and counseling without violating his

religious beliefs.

APPLICABLE PROVISIONS OF THE MANDATE

27.

Under the Mandate or Final Rule being challenged herein, employers with more than

50 full-time employees are required to include in group health plans coverage for all FDA-

approved contraceptive methods, sterilization, and education and counseling for same.

28.

Plaintiff, OIH and its subsidiaries constitute a “single employer” for purposes of

PPACA as defined at 42 U.S.C. § 18024(b)(4)(A), and are, thus, subject to the Mandate.

29.

Plaintiff, OIH’s group health plan is due for renewal on January 1, 2013. Plaintiff

wishes to renew coverage for its employees while, at the same time, excluding coverage for all

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FDA-approved contraceptive methods, sterilization procedures and patient education and

counseling regarding such procedures.

30.

Under the terms of the Mandate, Plaintiffs will not be permitted to obtain coverage

that excludes the aforementioned drugs and services. On the contrary, the Mandate will require

that Plaintiffs provide their employees with coverage of those services that Plaintiffs consider sinful and immoral.2

31.

The Plaintiffs do not qualify for the “religious employer” exemption contained in the

Final Rule. See 45 CFR § 147.130 (a)(1)(A) and (B)

32.

Because Plaintiffs do not qualify for the “religious employer” exemption, they are

not permitted to take advantage of the “temporary safe-harbor” as set forth by the Defendants at

77 Fed. Register 8725 (Feb. 15, 2012).

33.

Plaintiffs are thus subjected to the Mandate now and are confronted with choosing

between complying with its requirements in violation of their religious beliefs, or paying ruinous

fines that would have a crippling impact on their ability to survive economically.

34.

The Mandate coerces Plaintiffs into complying with its requirements or abandoning

integral components of the Plaintiffs’ religiously inspired mission and values.

2 The State of Missouri has its own version of a contraceptives mandate. § 376.1199 R. S. Mo. Unlike the federal Mandate being challenged here, however, the Missouri statute contains a complete exemption — not limited to “religious” employers — for any employer for whom “the use of such contraceptives is contrary to the moral, ethical or religious beliefs or tenets of such person or entity.” § 376.1199, 4(1), R. S. Mo.
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CAUSES OF ACTION Count I
Violation of the Religious Freedom Restoration Act

35.

Plaintiffs incorporate by reference all of the preceding paragraphs.

36.

Plaintiffs’ sincerely held religious beliefs prevent them from providing coverage for

“all FDA-approved contraceptive methods, sterilization procedures, and patient education and

counseling related to such procedures.”

37.

The Mandate/Final Rule, by requiring Plaintiffs to provide said coverage, imposes a

substantial burden on Plaintiffs’ free exercise of religion by coercing Plaintiffs to choose

between conducting their business in accordance with their religious beliefs or paying substantial

penalties to the government.

38.

The Mandate/Final Rule furthers no compelling governmental interest.

39.

The Mandate/Final Rule is not narrowly tailored to furthering any compelling

interest.

40.

The Mandate/Final Rule is not the least restrictive means of furthering the

Defendants’ stated interests.

41.

The Mandate/Final Rule and the Defendants’ threatened enforcement of same violate

rights secured to the Plaintiffs by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et

seq.

42.

Absent injunctive and declaratory relief against the Mandate/Final Rule, Plaintiffs

have been and will continue to be harmed.

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Count II Violation of the First Amendment to the United States Constitution Free Exercise Clause

43.

Plaintiffs incorporate by reference paragraphs 1-34 of this Complaint.

44.

Plaintiffs’ sincerely held religious beliefs prevent them from providing coverage for

“all FDA-approved contraceptive methods, sterilization procedures, and patient education and

counseling related to such procedures.”

45.

The Mandate/Final Rule, by requiring Plaintiffs to provide coverage imposes a

substantial burden on Plaintiffs’ free exercise of religion by coercing Plaintiffs to choose

between conducting their business in accordance with their religious beliefs or paying substantial

penalties to the government.

46.

The Mandate/Final Rule furthers no compelling governmental interest.

47.

The Mandate/Final Rule is not narrowly tailored to furthering any compelling

interest.

48.

The Mandate/Final Rule is not the least restrictive means of furthering the

Defendants’ stated interests.

49.

The Mandate/Final Rule is neither neutral nor generally applicable.

50.

The Mandate/Final Rule and the Defendants’ threatened enforcement of same violate

Plaintiffs’ rights to free exercise of religion as guaranteed by the First Amendment to the United

States Constitution.

51.

Absent injunctive and declaratory relief against the Mandate/Final Rule, Plaintiffs

have been and will continue to be harmed.

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Count III Violation of the First Amendment to the United States Constitution Free Speech Clause

52.

Plaintiffs incorporate by reference paragraphs 1-34 of this Complaint.

53.

Plaintiffs believe that the aforementioned services covered by the Mandate/Final

Rule are contrary to their religious beliefs.

54.

The Mandate/Final Rule would compel the Plaintiffs to subsidize activities the

Plaintiffs believe to be immoral.

55.

The Mandate/Final Rule compels the Plaintiffs to pay for and/or provide education

and counseling related to contraception, sterilization, and abortion.

56.

Defendants’ actions thus violate the Plaintiffs’ free speech rights as guaranteed by the

First Amendment to the United States Constitution.

57.

Absent injunctive and declaratory relief against the Mandate/Final Rule, Plaintiffs

have been and will continue to be harmed.

Count IV Violation of the Administrative Procedure Act

58.

Plaintiffs incorporate by reference paragraphs 1-34 of this Complaint.

59.

The Mandate/Final Rule is contrary to Section 1303(b)(1)(A) of PPACA which

provides that “nothing in this title” . . . “shall be construed to require a qualified health plan to

provide coverage of [abortion] services . . . as part of its essential health benefits for any plan

year.”

60.

The Defendants, in promulgating the Mandate/Final Rule, failed to consider the

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constitutional and statutory implications of the Mandate on for-profit, secular employers such as

Plaintiffs.

61.

The Mandate/Final Rule is contrary to existing law and is in violation of the

Administrative Procedure Act, 5 U.S.C. § 706(2)(A).

62.

Absent injunctive and declaratory relief against the Mandate/Final Rule, Plaintiffs’

have been and will continue to be harmed.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request that the Court:

a. Declare that the Mandate/Final Rule and Defendants’ enforcement of same against

the Plaintiffs violate the Religious Freedom Restoration Act;

b. Declare that the Mandate/Final Rule and Defendants’ enforcement of same against

the Plaintiffs violate the First Amendment to the United States Constitution;

c. Declare that the Mandate/Final Rule and Defendants’ enforcement of same against

the Plaintiffs violate the Administrative Procedure Act;

d. Issue a permanent injunction prohibiting the Defendants from enforcing the

Mandate/Final Rule against the Plaintiffs and others not before the court with religious

objections to providing health insurance coverage for “all FDA-approved contraceptive methods,

sterilization procedures, and patient education and counseling” for same;

e. Award the Plaintiffs costs and reasonable attorney’s fees;

f. Award such other relief as the court deems just.

Submitted this 15th day of March, 2012.

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/s/ Francis J. Manion Francis J. Manion (KY Bar No. 85594)* Geoffrey R. Surtees (KY Bar No. 89063)* AMERICAN CENTER FOR LAW & JUSTICE PO Box 60 New Hope, KY 40052 Tel: (502) 549-7020 Fax: (502) 549-5252 fmanion@aclj.org
Edward L. White III (MI Bar No. P62485)* AMERICAN CENTER FOR LAW & JUSTICE 5068 Plymouth Rd. Ann Arbor, MI 48105 Tel: (734) 662-2984 Fax: (734) 302-1758 Patrick T. Gillen (MI Bar No. 47456)* FIDELIS CENTER FOR LAW AND POLICY 1025 Commons Circle Naples, FL 34119 Tel: (239) 687-5311 Fax: (312) 276-5129 Attorneys for Plaintiffs *Motion for admission pro hac vice to be filed.
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

FRANK R. O’BRIEN JR.,

)

O’BRIEN INDUSTRIAL HOLDINGS, LLC,

)

)

PLAINTIFFS,

)

)

vs.

)

)

)

)

UNITED STATES DEPARTMENT

)

OF HEALTH AND HUMAN SERVICES;

)

KATHLEEN SEBELIUS, in her official capacity )

as the Secretary of the United States Department )

of Health and Human Services;

)

UNITED STATES DEPARTMENT OF

)

THE TREASURY; TIMOTHY F. GEITHNER, )

in his official capacity as the Secretary of the

)

United States Department of the Treasury;

)

UNITED STATES DEPARTMENT OF LABOR; )

and HILDA L. SOLIS, in her official capacity as )

Secretary of the United States Department of Labor, )

)

DEFENDANTS.

)

_________________________________________ )

CASE NO. 4:12-cv-476
FIRST AMENDED COMPLAINT

Plaintiffs, Frank R. O’Brien Jr. and O’Brien Industrial Holdings, LLC, through their

attorneys, say:

NATURE OF ACTION

1.

In this case, Plaintiffs seek judicial review of Defendants’ violations of constitutional

and statutory provisions in connection with the Defendants’ promulgation and implementation of

certain regulations adopted under the 2010 Patient Protection and Affordable Care Act

1

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(“PPACA”), specifically those regulations mandating that employers include in employee health

benefit plans coverage of services that violate an employer’s religious and moral values.

2.

Specifically, Plaintiffs ask the court for declaratory and injunctive relief from the

operation of the Final Rule confirmed and promulgated by the Defendants on February 15, 2012,

mandating that group health plans include coverage, without cost sharing, for “all Food and Drug

Administration-approved contraceptive methods, sterilization procedures and patient education

and counseling for all women with reproductive capacity” in plan years beginning on or after

August 1, 2012 (hereafter, “the Mandate” or “the Final Rule”) see 45 CFR § 147.130 (a)(1)(iv),

as confirmed at 77 Fed. Register 8725 (Feb. 15, 2012), adopting and quoting Health Resources

and Services Administration (HRSA) Guidelines found at http://www.hrsa.gov/

womensguidelines.

3.

Plaintiff, Frank R. O’Brien Jr., is an adherent of the Catholic religion. As the

individual with the controlling interest in Plaintiff, O’Brien Industrial Holdings, LLC (“OIH”)

and its subsidiaries, O’Brien wishes to conduct his business in a manner that does not violate the

principle of his religious faith.

4.

O’Brien has concluded that complying with the Mandate would require him to

violate his religious beliefs because it would require him and/or the corporations he controls to

pay for, not only contraception and sterilization, but also abortion, because certain drugs and

devices such as the “morning-after pill,” “Plan B,” and “Ella” come within the Mandate’s and

HRSA’s definition of “Food and Drug Administration-approved contraceptive methods” despite

their known abortifacient mechanisms of action.

5.

O’Brien contends that by requiring him to choose between conducting his business in

a manner consistent with his religion, or paying ruinous fines and penalties, the Mandate violates

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his rights under the First Amendment, the Religious Freedom Restoration Act, and violates the Administrative Procedure Act.

JURISDICTION AND VENUE

6.

This 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.

7.

Venue is appropriate in this district pursuant to 28 U.S.C. §1391(e)(3) as the

Plaintiffs reside within this district.

IDENTIFICATION OF PARTIES

8.

Plaintiff, Frank R. O’Brien Jr., is an individual and a citizen of the State of Missouri

and the United States.

9.

O’Brien holds the sole voting interest in Plaintiff, O’Brien Industrial Holdings, LLC,

a Missouri limited liability company. Plaintiff, OIH, is the holding company for and owner of

the Christy family of companies: Christy Catalytics, LLC, Christy Industrial Services Co., LLC,

Christy Minerals Company, LLC, and the Christy Refractories Company, L.L.C. and O’Brien

Asset Management, LLC.

10.

Frank R. O’Brien Jr. is the Chairman and Managing Member of OIH. He is

responsible for setting all policies governing the conduct of all phases of the business of OIH and

the Christy family of companies.

11.

Defendant United States Department of Health and Human Services (“HHS”), is an

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agency of the United States, and is responsible for administration and enforcement of the

Mandate/Final Rule.

12.

Defendant Kathleen Sebelius is Secretary of HHS, and is named as a party in her

official capacity.

13.

Defendant United States Department of the Treasury is an agency of the United

States, and is responsible for administration and enforcement of the Mandate/Final Rule.

14.

Defendant Timothy F. Geithner is Secretary of the Treasury, and is named as a party

in his official capacity.

15.

Defendant United States Department of Labor (“DOL”) is an agency of the United

States, and is responsible for administration and enforcement of the Mandate/Final Rule.

16.

Defendant Hilda L. Solis is Secretary of DOL, and is named as a party in her official

capacity.

FACTUAL ALLEGATIONS

17.

Plaintiff, OIH, through its subsidiaries is engaged in the exploration, mining and

processing of refractory and ceramic raw materials (Christy Minerals); the manufacturing and

distribution of refractory and insulatory products (Christy Refractories); the installation of

refractory products for all types of industries (Christy Industrial); and the supplying of ceramic

and alumina balls to over 40 countries as well as mass transfer media for the hydrocarbon and

chemical processing industries (Christy Catalytics).

18.

Plaintiff, OIH, has its main offices at 4641 McRee Avenue in St. Louis, Missouri.

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Prominently displayed in the company’s lobby is a statue of the Sacred Heart of Jesus.1

19.

Plaintiff, OIH and its subsidiaries, share a common Mission and Values, which is

published on OIH’s website.

20.

According to the company’s website, OIH’s Mission “is to make our labor a pleasing

offering to the Lord while enriching our families and society.”

21.

OIH’s statement of the company’s values begins with the following: “Integrity. Our

conduct is guided by the Golden Rule and the Ten Commandments. We will not discriminate

based on anyone’s personal belief system.” The statement of company values contains a link to

“more information about our mission and values.”

22.

OIH’s “Explanation of Mission & Values” posted on its website begins with a direct

quotation from Ephesians 6:1-9, and proceeds to list the following company goals.

* For all of OIH’s employees to have the ability to own their own home accomplished through each employee’s personnel’s pay and an annual profit sharing bonus;
* For all of OIH’s employees to have the ability to send their children to college, accomplished through a generous company scholarship program.
* For all of OIH’s employees to have the opportunity to retire with dignity through participation in a 401(k) profit sharing plan.

23.

OIH explains its mission of “enriching society” by stating that OIH and its

subsidiaries “pledge to tithe on the earnings of the Companies.” Part of the tithing is

accomplished through a “St. Nicholas Fund,” named for the fourth century bishop of Myra. OIH

asks its employees to “keep their eyes open” for situations where “a little monetary help may

1 Catholic devotion to the Sacred Heart of Jesus is focused on Christ’s love, of which his Heart is said to be the living and expressive symbol. Some Catholics display images pertaining to this devotion in their homes and workplaces.

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make a big difference to someone” and to contact the company’s St. Nicholas Committee. The

committee investigates such referrals and responds to them anonymously.

24.

OIH and its subsidiaries currently have 87 employees. The employees are covered

by a group policy of health insurance offered and underwritten by United Healthcare Insurance

Company. The plan’s annual renewal date is January 1. Like its profit sharing, retirement plan,

and scholarship program and tithing efforts, Plaintiffs consider the provision of employee health

insurance an integral component of furthering the Company’s mission and values.

25.

Plaintiff O’Brien holds to the teachings of the Catholic Church regarding the sanctity

of human life from conception to natural death. He believes that actions intended to terminate an

innocent human life by abortion are gravely sinful. Further, O’Brien adheres to Catholic Church

teaching regarding the immorality of artificial means of contraception and sterilization.

26.

Plaintiff O’Brien believes that he cannot pay for and provide coverage for

contraceptives, sterilization, abortion or related education and counseling without violating his

religious beliefs.

27.

Since at least 1992, OIH and its predecessor companies have sought to exclude

contraceptive services from employee health plans. During most of that time period, the

company’s plan descriptions have indicated that the company does not provide coverage for

contraceptive services. Furthermore, during that period OIH has disqualified companies or other

insurance schemes that would not exclude contraceptive coverage.

28.

When OIH switched from a self-insured plan to a fully-insured plan several years

ago, coverage of contraceptive services was inadvertently included contrary to the company’s

longstanding practice and intentions, as well as the actual coverage request and without OIH’s

knowledge. Subsequently, the company has investigated ways to obtain new coverage that would

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exclude coverage for contraceptive services, as permitted by Missouri law, §376.1199, 4(1), R.S.

Mo., as well as federal law prior to the promulgation of the Mandate at issue herein.

29.

On information and belief, the Plaintiffs’ current employee health plan is

“grandfathered” as that term is used in PPACA and the regulations challenged herein.

APPLICABLE PROVISIONS OF THE MANDATE

30.

Under the Mandate or Final Rule being challenged herein, employers with more than

50 full-time employees are required to include in group health plans coverage for all FDA-

approved contraceptive methods, sterilization, and education and counseling for same.

31.

Plaintiff, OIH and its subsidiaries constitute a “single employer” for purposes of

PPACA as defined at 42 U.S.C. § 18024(b)(4)(A), and are, thus, subject to the Mandate.

32.

Plaintiff, OIH’s group health plan is due for renewal on January 1, 2013. Plaintiff

wishes to renew coverage for its employees while, at the same time, excluding coverage for all

FDA-approved contraceptive methods, sterilization procedures and patient education and

counseling regarding such procedures, consistent with the company’s longstanding policy.

33.

Under the terms of the Mandate, Plaintiffs will not be permitted to obtain coverage

that excludes the aforementioned drugs and services. On the contrary, the Mandate will require

that Plaintiffs provide their employees with coverage of those services that Plaintiffs consider

sinful and immoral, something the plaintiffs would not be required to do under Missouri state law.2

2 The State of Missouri has its own version of a contraceptives mandate. § 376.1199 R. S. Mo. Unlike the federal Mandate being challenged here, however, the Missouri statute contains a complete exemption — not limited to “religious” employers — for any employer for whom “the use of such contraceptives is contrary to the moral, ethical or religious beliefs or tenets of such person or entity.” § 376.1199, 4(1), R. S. Mo.
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34.

The Plaintiffs do not qualify for the “religious employer” exemption contained in the

Final Rule. See 45 CFR § 147.130 (a)(1)(A) and (B)

35.

Because Plaintiffs do not qualify for the “religious employer” exemption, they are

not permitted to take advantage of the “temporary safe-harbor” as set forth by the Defendants at

77 Fed. Register 8725 (Feb. 15, 2012).

36.

Plaintiffs are thus subjected to the Mandate now and are confronted with choosing

between complying with its requirements in violation of their religious beliefs, or paying ruinous

fines that would have a crippling impact on their ability to survive economically.

37.

The Mandate coerces Plaintiffs into complying with its requirements or abandoning

integral components of the Plaintiffs’ religiously inspired mission and values.

CAUSES OF ACTION

Count I

Violation of the Religious Freedom Restoration Act

38.

Plaintiffs incorporate by reference paragraphs 1-37 of this Complaint.

39.

Plaintiffs’ sincerely held religious beliefs prevent them from providing coverage for

“all FDA-approved contraceptive methods, sterilization procedures, and patient education and

counseling related to such procedures.”

40.

The Mandate/Final Rule, by requiring Plaintiffs to provide said coverage, imposes a

substantial burden on Plaintiffs’ free exercise of religion by coercing Plaintiffs to choose

between conducting their business in accordance with their religious beliefs or paying substantial

penalties to the government.

41.

The Mandate/Final Rule furthers no compelling governmental interest.

42.

The Mandate/Final Rule is not narrowly tailored to furthering any compelling

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interest.

43.

The Mandate/Final Rule is not the least restrictive means of furthering the

Defendants’ stated interests.

44.

The Mandate/Final Rule and the Defendants’ threatened enforcement of same violate

rights secured to the Plaintiffs by the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et

seq.

45.

Absent injunctive and declaratory relief against the Mandate/Final Rule, Plaintiffs

have been and will continue to be harmed.

Count II Violation of the First Amendment to the United States Constitution Free Exercise Clause

46.

Plaintiffs incorporate by reference paragraphs 1-45 of this Complaint.

47.

Plaintiffs’ sincerely held religious beliefs prevent them from providing coverage for

“all FDA-approved contraceptive methods, sterilization procedures, and patient education and

counseling related to such procedures.”

48.

The Mandate/Final Rule, by requiring Plaintiffs to provide coverage imposes a

substantial burden on Plaintiffs’ free exercise of religion by coercing Plaintiffs to choose

between conducting their business in accordance with their religious beliefs or paying substantial

penalties to the government.

49.

The Mandate/Final Rule furthers no compelling governmental interest.

50.

The Mandate/Final Rule is not narrowly tailored to furthering any compelling

interest.

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Case: 4:12-cv-00476-CEJ Doc. #: 19 Filed: 06/11/12 Page: 10 of 14 PageID #: 138

51.

The Mandate/Final Rule is not the least restrictive means of furthering the

Defendants’ stated interests.

52.

The Mandate/Final Rule is neither neutral nor generally applicable.

53.

The Mandate/Final Rule and the Defendants’ threatened enforcement of same violate

Plaintiffs’ rights to free exercise of religion as guaranteed by the First Amendment to the United

States Constitution.

54.

Absent injunctive and declaratory relief against the Mandate/Final Rule, Plaintiffs

have been and will continue to be harmed.

Count III

Violation of the First Amendment’s Establishment Clause

55.

Plaintiffs incorporate by reference paragraphs 1-54 of this Complaint.

56.

The First Amendment’s Establishment Clause prohibits the establishment of any

religion and/or excessive government entanglement with religion.

57.

The provisions of the Mandate, including the “religious employer exemption,”

require the government to examine and evaluate the religious beliefs of the plaintiffs, require the

government to discriminate among religious beliefs and organizations, and require the

government to adopt particular theological viewpoints and discriminate against others.

58.

The Mandate/Final Rule thus violates the Establishment Clause of the First

Amendment.

59.

Absent injunctive and declaratory relief against the Mandate/Final Rule, plaintiffs

have been and will continue to be harmed.

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Count IV Violation of the First Amendment to the United States Constitution Free Speech Clause

60.

Plaintiffs incorporate by reference paragraphs 1-59 of this Complaint.

61.

Plaintiffs believe that the aforementioned services covered by the Mandate/Final

Rule are contrary to their religious beliefs.

62.

The Mandate/Final Rule would compel the Plaintiffs to subsidize activities the

Plaintiffs believe to be immoral.

63.

The Mandate/Final Rule compels the Plaintiffs to pay for and/or provide education

and counseling related to contraception, sterilization, and abortion.

64.

Defendants’ actions thus violate the Plaintiffs’ free speech rights as guaranteed by the

First Amendment to the United States Constitution.

65.

Absent injunctive and declaratory relief against the Mandate/Final Rule, Plaintiffs

have been and will continue to be harmed.

Count V Violation of the Administrative Procedure Act

66.

Plaintiffs incorporate by reference paragraphs 1-65 of this Complaint.

67.

The Mandate/Final Rule is contrary to Section 1303(b)(1)(A) of PPACA which

provides that “nothing in this title” . . . “shall be construed to require a qualified health plan to

provide coverage of [abortion] services . . . as part of its essential health benefits for any plan

year.”

68.

The Defendants, in promulgating the Mandate/Final Rule, failed to consider the

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constitutional and statutory implications of the Mandate on for-profit, secular employers such as

Plaintiffs.

69.

The Mandate/Final Rule is contrary to existing law and is in violation of the

Administrative Procedure Act, 5 U.S.C. § 706(2)(A).

70.

Absent injunctive and declaratory relief against the Mandate/Final Rule, Plaintiffs’

have been and will continue to be harmed.

PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court: a. Declare that the Mandate/Final Rule and Defendants’ enforcement of same against the Plaintiffs violate the Religious Freedom Restoration Act; b. Declare that the Mandate/Final Rule and Defendants’ enforcement of same against the Plaintiffs violate the First Amendment to the United States Constitution; c. Declare that the Mandate/Final Rule and Defendants’ enforcement of same against the Plaintiffs violate the Administrative Procedure Act; d. Issue a permanent injunction prohibiting the Defendants from enforcing the Mandate/Final Rule against the Plaintiffs and others not before the court with religious objections to providing health insurance coverage for “all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling” for same; e. Award the Plaintiffs costs and reasonable attorney’s fees; f. Award such other relief as the court deems just.

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Submitted this 11th day of June, 2012.
/s/ Francis J. Manion Francis J. Manion (KY Bar No. 85594)* Geoffrey R. Surtees (KY Bar No. 89063)* AMERICAN CENTER FOR LAW & JUSTICE PO Box 60 New Hope, KY 40052 Tel: (502) 549-7020 Fax: (502) 549-5252 fmanion@aclj.org
Edward L. White III (MI Bar No. P62485)* AMERICAN CENTER FOR LAW & JUSTICE 5068 Plymouth Rd. Ann Arbor, MI 48105 Tel: (734) 662-2984 Fax: (734) 302-1758 Patrick T. Gillen (MI Bar No. 47456)* FIDELIS CENTER FOR LAW AND POLICY 1025 Commons Circle Naples, FL 34119 Tel: (239) 687-5311 Fax: (312) 276-5129 Attorneys for Plaintiffs *Pro hac vice granted
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Case: 4:12-cv-00476-CEJ Doc. #: 19 Filed: 06/11/12 Page: 14 of 14 PageID #: 142

CERTIFICATE OF SERVICE

I, Francis J. Manion, plaintiffs’ co-counsel, hereby certifies that on June 11, 2012, a true and correct copy of the foregoing was caused to be filed electronically with this Court through the CM/ECF filing system. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s CM/ECF system. Parties may access this filing through the Court’s CM/ECF system.

Eric H. Holder, Jr. U.S. Attorney General 950 Pennsylvania Avenue, NW Washington, DC 20530-0001

Timothy F. Geithner U.S. Department of the Treasury 1500 Pennsylvania Avenue, NW Washington, DC 20220

Kathleen Sebelius U.S. Depart. of Health & Human Services 200 Independence Avenue, SW Washington, DC 20201
Hilda Solis U.S. Department of Labor 200 Constitution Ave. NW Washington, DC 20210

Richard Callahan
U.S. Attorney Thomas Eagleton U.S. Courthouse 111 South 10th St., 20th Floor St. Louis, MO 63102

/s/ Francis J. Manion Francis J. Manion (KY Bar No. 85594)* Geoffrey R. Surtees (KY Bar No. 89063)* AMERICAN CENTER FOR LAW & JUSTICE PO Box 60 New Hope, KY 40052 Tel. (502) 549-7020 Fax (502) 549-5252 fmanion@aclj.org

Edward L. White, III (MI Bar No. P62485)* AMERICAN CENTER FOR LAW & JUSTICE 5068 Plymouth Rd. Ann Arbor, MI 48105 Tel. (734) 662-2984 Fax (734) 302-1758

*Pro hac vice granted

14

 
 Case: 4:12-cv-00476-CEJ Doc. #: 39 Filed: 08/23/12 Page: 1 of 38 PageID #: 316

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

FRANK R. O’BRIEN JR.,

)

O’BRIEN INDUSTRIAL HOLDINGS, LLC,

)

)

PLAINTIFFS,

)

)

vs.

)

)

)

UNITED STATES DEPARTMENT

)

OF HEALTH AND HUMAN SERVICES;

)

KATHLEEN SEBELIUS, in her official capacity )

as the Secretary of the United States Department )

of Health and Human Services;

)

UNITED STATES DEPARTMENT OF

)

THE TREASURY; TIMOTHY F. GEITHNER, )

in his official capacity as the Secretary of the

)

United States Department of the Treasury;

)

UNITED STATES DEPARTMENT OF LABOR; )

and HILDA L. SOLIS, in her official capacity as )

Secretary of the United States Department of Labor, )

)

DEFENDANTS.

)

_________________________________________ )

CASE NO. 4:12-cv-00476-CEJ

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF PRELIMINARY INJUNCTION

Case: 4:12-cv-00476-CEJ Doc. #: 39 Filed: 08/23/12 Page: 2 of 38 PageID #: 317
TABLE OF CONTENTS Page
INTRODUCTION .......................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................... 2 THE REGULATION BEING CHALLENGED............................................................... 4 I. PLAINTIFFS SATISFY THE STANDARD FOR INJUNCTIVE RELIEF ................. 7 II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. .............................. 7
A. Plaintiffs Are Likely To Succeed On The Merits Of Their RFRA Claim............... 7 1. The Mandate Substantially Burdens Plaintiffs’ Exercise of Religion................. 8 2. Three Anticipated Objections ......................................................................... 12 3. RFRA Imposes Strict Scrutiny........................................................................ 13 4. The Defendants Cannot Demonstrate a Compelling Governmental Interest ........................................................................................................... 14 5. The Mandate is not the Least Restrictive Means ............................................. 17
B. Plaintiffs Are Likely to Succeed on the Merits of their Free Exercise Claim .................................................................................................................. 19 1. The Mandate is Not Neutral............................................................................. 20 2. The Mandate is Not Generally Applicable ....................................................... 21
C. Plaintiffs Are Likely to Succeed on the Merits of their Establishment Clause Claim........................................................................................................ 23
D. Plaintiffs Are Likely to Succeed on the Merits of their Free Speech Claim ................................................................................................................... 26
III. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT AN INJUNCTION .................................................................................................. 27
IV. AN INJUNCTION WOULD CAUSE NO HARM TO DEFENDANTS.................. 28
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Case: 4:12-cv-00476-CEJ Doc. #: 39 Filed: 08/23/12 Page: 3 of 38 PageID #: 318 V. THE PUBLIC INTEREST FAVORS A PRELIMINARY
INJUNCTION......................................................................................................... 28 VI. THIS COURT SHOULD NOT IMPOSE A BOND ON PLAINTIFFS.................... 28 CONCLUSION............................................................................................................. 29
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Case: 4:12-cv-00476-CEJ Doc. #: 39 Filed: 08/23/12 Page: 4 of 38 PageID #: 319
TABLE OF AUTHORITIES
CASES
Page Anderson v. Celebrezze, 460 U.S. 780 (1983)................................................................ 17 Braunfeld v. Brown, 366 U.S. 599 (1961).................................................................12, 13 Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011)...........................................15, 17 Cantwell v. Connecticut, 310 U.S. 296 (1940)............................................................... 26 Church of the Lukumi Babalu Aye v. City of Hialeah,
508 U.S. 520 (1993).......................................................................................13, passim City of Boerne v. Flores, 521 U.S. 507 (1997)............................................................... 13 Citizens United v. FEC, 130 S. Ct. 876 (2010) .............................................................. 12 Commack Self-Service Kosher Meats, Inc. v. Hooker,
800 F. Supp. 2d 405 (E.D. N.Y. 2011)........................................................................ 12 Consol. Edison Co. v. Public Serv. Comm’n,
447 U.S. 530 (1980)................................................................................................... 15 Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987) .............................................. 25 Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109 (8th Cir. 1981) ............................... 7 EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610
(9th Cir. 1988) ......................................................................................................12, 13 Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................. 27 Employment Div. v. Smith, 494 U.S. 872 (1990)........................................... 19, 21, 22, 23 Fraternal Order of Police v. City of Newark, 170 F.3d 359
(3d Cir. 1999)............................................................................................................. 22 Frazee v. Employment Security Dept., 489 U.S. 829 (1989) .......................................... 20
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Case: 4:12-cv-00476-CEJ Doc. #: 39 Filed: 08/23/12 Page: 5 of 38 PageID #: 320
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).................................................................................. 13, 14, 15, 16
Harrell v. Donahue, 638 F.3d 975 (8th Cir. 2011)........................................................... 8 Hernandez v. Comm’r of Internal Revenue,
490 U.S. 680 (1989)................................................................................................... 26 Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,
515 U.S. 557 (1995).................................................................................................... 27 Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ...................................................... 27 Larson v. Valente, 456 U.S. 228 (1982)....................................................................23, 24 Lemon v. Kurtzman, 403 U.S. 602 (1973)...................................................................... 26 McDaniel v. Paty, 435 U.S. 618 (1978)......................................................................... 20 Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835
(D. Colo. July 27, 2012)............................................................................... 1, 15,16, 18 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ........................................ 4 Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008)............................................................ 14 Phelps-Roper v. City of St. Charles, 782 F. Supp. 2d 789
(E.D. Mo. 2011).................................................................................................7, 28, 29 Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008) .................................................... 28 Planned Parenthood of MN v. Rounds, 530 F.3d 724 (8th Cir. 2008) .............................. 7 Primera Iglesia Bautista Hispana v. Broward Cnty., 450 F.3d 1295
(11th Cir. 2006).......................................................................................................... 12 Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984)...................................................... 14 Sherbert v. Verner, 374 U.S. 398 (1963) ................................................................7, 8, 14 Stockslager v Carroll Elec. Coop. Corp., 528 F.2d 949 (8th Cir. 1976) ......................... 29 Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009)..........................................12, 13 Thomas v. Review Bd., 450 U.S. 707 (1981).................................................................... 9
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Case: 4:12-cv-00476-CEJ Doc. #: 39 Filed: 08/23/12 Page: 6 of 38 PageID #: 321
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 624 (1994)................................................... 27 United States v. Ali, 682 F.3d 705 (8th Cir. 2012) ........................................................... 8 United States v. Lee, 455 U.S. 252 (1982) ..................................................................... 13 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803
(2000) ........................................................................................................................ 19 United States v. Robel, 389 U.S. 258 (1967).................................................................. 19 Weir v. Nix, 114 F.3d 817 (8th Cir. 1997)........................................................................ 8 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943) ...................................................................................................................24, 27 Wisconsin v. Yoder, 406 U.S. 205 (1972) ...............................................................7, 9, 14 Wooley v. Maynard, 430 U.S. 705 (1977)...................................................................... 27
STATE CASES Catholic Charities of Sacramento, Inc. v. Superior Court,
85 P.3 67 (Cal. 2004) ................................................................................................. 25 McClure v. Sports & Health Club, Inc., 370 N.W.2d 844
(Minn. 1985).............................................................................................................. 12 Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474 (2008) ..............................................12, 13
FEDERAL STATUTES Pub. L. No. 111-148, 124 Stat. 119 (2010) ...................................................................... 4 26 U.S.C. § 4980D.......................................................................................................... 9 26 U.S.C. § 4980D(b) ..................................................................................................... 6 26 U.S.C. § 4980H........................................................................................................ 10 26 U.S.C. § 4980H(a)(c)(1)............................................................................................. 6 26 U.S.C. § 4980H(c)(2) ............................................................................................... 15
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26 U.S.C. § 4980H(c)(2)(A)............................................................................................ 6 26 U.S.C. §§ 5000A(d)(2)(a)(i), (ii), (b)(ii) ............................................................... 6, 21 29 U.S.C. § 1132(a) ........................................................................................................ 9 42 U.S.C. § 300gg-13(a)(4)............................................................................................. 4 42 U.S.C. § 18011........................................................................................................... 5 42 U.S.C. § 2000bb......................................................................................................... 7 42 U.S.C. § 2000bb-1(a) ................................................................................................. 8 42 U.S.C. § 2000bb-1(b) ........................................................................................... 8, 13
FEDERAL REGULATIONS 26 C.F.R. § 54.9815-1251T............................................................................................. 5 29 C.F.R. § 2590.715-1251 ............................................................................................. 5 45 C.F.R. § 147.130.................................................................................................. 5, 26 45 C.F.R. § 147.130(a)(iv)(B) ................................................................................... 5, 21 45 C.F.R. § 147.140........................................................................................................ 5 75 Fed. Reg. 34538 (June 17, 2010) ................................................................................ 5 75 Fed. Reg. 41726 (July 19, 2010)........................................................................... 5, 16 76 Fed. Reg. 46621 (Aug. 3, 2011) ................................................................ 5, 10, 20, 26 77 Fed. Reg. 8725................................................................................................5, 10, 20 77 Fed. Reg. 16501 ....................................................................................................... 11
STATE STATUTES Mo. Rev. Stat. § 376.1199, 4(1) ...................................................................................... 3
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Case: 4:12-cv-00476-CEJ Doc. #: 39 Filed: 08/23/12 Page: 8 of 38 PageID #: 323 MISCELLANEOUS
Application of the New Health Reform Provisions of Part A of Title XXVII of the PHS Act to Grandfathered Plans, http://www.dol.gov/ebsa/pdf/grandfatherregtable.pdf................................................... 5
Guidance on the Temporary Enforcement Safe Harbor, at 3 (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/ Files2/02102012/20120210-Preventive-Services-Bulletin.pdf ..................................... 10
Guttmacher Institute, Fact Sheet: Contraceptive Use in the United States, July 2012, http://www.guttmacher.org/pubs/fb_contr_use.html ................................ 17
Staman & Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) ............................................................................................................ 6
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Case: 4:12-cv-00476-CEJ Doc. #: 39 Filed: 08/23/12 Page: 9 of 38 PageID #: 324
INTRODUCTION Plaintiffs, Frank O’Brien, Jr., and O’Brien Industrial Holdings, LLC (hereinafter “OIH”) are asking this Court for preliminary injunctive relief in order to be able to run their business in a manner consistent with the religious values and beliefs that have shaped the company from its start. Absent such relief, by January 1, 2013 at the latest, O’Brien — OIH’s Chairman and Managing Member — will face a stark choice: abandon his beliefs in order to stay in business, or abandon his business in order to stay true to his beliefs. That is a choice no government bound by the First Amendment and the Religious Freedom Restoration Act (“RFRA”) may lawfully impose upon him. This is especially true because the choice the government imposes on O’Brien and OIH is a choice the government has decided not to impose on thousands of other employers who share O’Brien’s view, and tens of thousand more employers (of 100 million employees) who may or may not share O’Brien’s views. Such massive under-inclusiveness in rules purporting to further what appears to be a remarkably non-compelling “compelling interest” has already led the first court to consider this issue to enjoin the same regulations challenged here. See Newland v. Sebelius, 2012 U.S. Dist. LEXIS 104835 (D. Colo. July 27, 2012). There is immediacy to this matter that will not abide the ordinary time frame of litigation. O’Brien and OIH must begin planning in the next few weeks in order to have a new health care policy in place by the plan renewal date of January 1, 2013. Right now, solely because of the Defendants’ Mandate — a Mandate which, as will be proven herein, is a constitutional and statutory train wreck — the Plaintiffs are faced with a number of unacceptable, and inescapable, choices. They could drop health coverage for their 87 employees and, in so doing, incur astronomical fines, hurt their business and — even more — hurt the 87 people who work for
1

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them. The Plaintiffs could go out of business entirely, again hurting both themselves and their employees not to mention the local economy. Or, the Plaintiffs could do something no American government has the right to require of them: abandon their beliefs as part of the cost of doing business.
This Court should act to protect these Plaintiffs by granting the requested Preliminary Injunction and, thus, protect O’Brien and OIH from this unlawful and unprecedented government coercion at least until the matter can be fully adjudicated.
FACTUAL BACKGROUND O’Brien Industrial Holdings, LLC, has always had an employee benefits program that reflects the religious beliefs of the company’s Chairman and Managing Partner, Frank R. O’Brien, Jr. Perhaps unusual for a secular, for-profit business, the first thing that visitors to the company’s website see is a statement of OIH’s “Mission”: “Our mission is to make our labor a pleasing offering to the Lord while enriching our families and society.” Decl. of Frank O’Brien (“O’Brien Decl.”) (Exh. 1) ¶ 8. This mission statement is followed by a statement of OIH’s “Values” that cites the Golden Rule and the Ten Commandments. Id. at ¶¶ 9-10. The company’s McCree Avenue office displays a statue of the Sacred Heart of Jesus. Id. at ¶ 7. Frank O’Brien, Jr., a Catholic, strives to run the company in a manner consistent with the principles of his faith. Id. OIH’s website lists the company’s “Goals”: (1) for OIH’s employees to have the ability to own their own home (through wages and an annual profit sharing plan); (2) for OIH’s employees to be able to send their kids to college (through the company’s college scholarship plan); and (3) for OIH’s employees to be able to retire with dignity (through OIH’s retirement
2

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plan). Id. at ¶ 11. OIH also pledges to “tithe”1 on the company’s earnings through a “St. Nicholas Fund.” Id. at ¶ 12. This fund encourages employees to “keep their eyes open” for situations where “a little monetary help may make a big difference to someone” so that the company can respond to such needs anonymously. Id.
In addition to these things, of course, OIH provides health insurance benefits to its employees. Throughout his tenure, O’Brien has sought to ensure that the health plan — like the rest of OIH’s benefits package — is consistent with Catholic teachings. Id. at ¶¶ 14-15. Currently, OIH employees have available to them a number of options ranging from a health plan 100% paid for by OIH to options partly paid for by the employee based on variables such as deductibles and specific coverage choices. Consistent with O’Brien’s adherence to his church’s teachings on issues surrounding the beginnings of human life, OIH’s health policies have normally expressly excluded coverage for abortion, contraception, in-vitro fertilization and vasectomies. Id. at ¶ 16; Exh. C to O’Brien Decl. And while, in the company’s most recent plan coverage for contraceptives was included, this was inadvertent and contrary to OIH’s request. Id. at ¶ 17. Since the discovery of this mistake, (a mistake apparently connected with Missouri’s adoption of its own contraceptive mandate)2, the company has been seeking to undo it and return OIH’s health plan to a policy consistent with the values that, historically, have informed all of its benefits programs. Id. ¶¶ 18.
1 “Tithing” — originally, a Biblical term referring to the setting aside of the first 10% of one’s agricultural produce as an offering to God. See, e.g., Gen. 28:22; now commonly used to denote the setting aside of 10% of one’s income to charity.
2 The State of Missouri has its own version of a contraceptives mandate. Mo. Rev. Stat. § 376.1199. Unlike the federal Mandate being challenged here, however, the Missouri statute contains a complete exemption — not limited to “religious” employers — for any employer for whom “the use of such contraceptives is contrary to the moral, ethical or religious beliefs or tenets of such person or entity.” Mo. Rev. Stat. § 376.1199, 4(1).
3

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OIH wishes to continue to provide health coverage for its 87 employees. It wishes to do so in a way that will be consistent with the values and beliefs that have always guided the company. But for the regulations at issue in this case, OIH would be free to obtain a new health plan excluding the services to which it objects, or even set up a self-insurance program. Id. at ¶ 18. The company’s plan renewal date is January 1, 2013. Id. at ¶ 20. In order to have a new plan in place by then, OIH needs 60-90 days to explore whatever options do exist and secure an acceptable new plan. Id. The regulations at issue here, however, stand in OIH’s way.
THE REGULATIONS BEING CHALLENGED On March 23, 2010, the Affordable Care Act (“ACA”), Pub. L. No. 111-148, 124 Stat. 119 (2010), became law.3 ACA requires group health plans to provide no-cost coverage for the preventative care and screening of women in accordance with guidelines created by the Health Resources and Services Administration (“HRSA”). 42 U.S.C. § 300gg-13(a)(4). The HRSA guidelines include, among other things, “the full range of Food and Drug Administrationapproved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” HRSA, Women’s Preventive Services: Required Health Plan Coverage Guidelines available at http://www.hrsa.gov/womensguidelines/ (last visited August 21, 2012). On August 1, 2011, Defendants promulgated an interim final rule (“the Mandate”), requiring all “group health plan[s] and . . . health insurance issuer[s] offering group or individual health insurance coverage” to provide coverage for all FDA-approved contraceptive methods and
3 In Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), the Court upheld the so-called “individual mandate” of the ACA under the Constitution’s taxing power. In so doing, the Court did not rule on the constitutionality of the Mandate challenged herein. In fact, as Justice Ginsburg observed, “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.” Id. at 2624 (Ginsburg, J., concurring in part, dissenting in part).
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sterilization procedures as well as patient education and counseling about those services. 76 Fed. Reg. 46621, 46622 (Aug. 3, 2011); 45 C.F.R. § 147.130. This interim rule, along with the religious employer exemption described below, was adopted as final, “without change,” on February 15, 2012. 77 Fed. Reg. 8725, 8729.
Not all employers are required to comply with the Mandate. Grandfathered health plans, i.e., a plan in existence on March 23, 2010, and that has not undergone any of a defined set of changes,4 are exempt from compliance with the Mandate. See 75 Fed. Reg. 41726, 41731 (July 19, 2010).5 HHS estimates that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” Id. at 41,732. Even though the Mandate does not apply to grandfathered health plans, many provisions of ACA do. 75 Fed. Reg. 34538, 34542 (June 17, 2010).6
Also exempted from the Mandate are “religious employers,” as defined at 45 C.F.R. § 147.130(a)(iv)(B). To be eligible for the exemption, such employers must “meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.” 76 Fed. Reg. 46621, 46626 (Aug. 3, 2011); 77 Fed. Reg. 8725 (Feb. 15, 2012).
In addition, because employers with fewer than 50 full-time employees have no obligation to provide health insurance for their employees under the ACA, they have no
4 See 26 C.F.R. § 54.9815-1251T; 29 C.F.R. § 2590.715-1251; 45 C.F.R. § 147.140. 5 See also 42 U.S.C. § 18011; 76 Fed. Reg. 46621, 46623 (“The requirements to cover recommended preventive services without any cost-sharing do not apply to grandfathered health plans”). 6 A summary of which ACA provisions apply to grandfathered health plans and which do not, can be found here: Application of the New Health Reform Provisions of Part A of Title XXVII of the PHS Act to Grandfathered Plans, available at http://www.dol.gov/ebsa/pdf/grandfatherregtable.pdf (last visited August 3, 2012).
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obligation to comply with the Mandate. 26 U.S.C. § 4980H(c)(2)(A). Finally, under the ACA, individuals are exempt from the requirement to obtain health insurance if they are members of a “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds or are members of a “health care sharing ministry.” 26 U.S.C. §§ 5000A(d)(2)(A)(i), (ii), (B)(ii).
Non-exempt employers who fail to provide an employee health insurance plan will be exposed to annual fines of roughly $2,000 per full-time employee. See 26 U.S.C. §§ 4980H(a), (c)(1). Additionally, failure to provide certain required coverage may be subject to an assessment of $100 a day per employee. See 26 U.S.C. § 4980D(b); see also Staman & Shimabukuro, Cong. Research Serv., RL 7-5700, Enforcement of the Preventative Health Care Services Requirements of the Patient Protection and Affordable Care Act (2012) (asserting that this tax applies to employers who violate the “preventive care” provision of the ACA).
In summary, the Defendants have written into the challenged regulations categorical exemptions that exclude — literally — upwards of 100 million Americans from “preventative services” coverage. The exemptions apply to both for-profit, secular employers (“grandfathered” plans) as well as non-profit religious employers and, in addition, small employers (fewer than 50 employees) and a number of miscellaneous categories.
Given such massive under-inclusiveness, OIH’s entitlement to at least preliminary injunctive relief is clear. For purposes of this motion, Plaintiffs will rely on Counts I (RFRA), II (Free Exercise), III (Establishment Clause) and IV (Free Speech) of the First Amended Complaint. By doing so, Plaintiffs do not abandon any of the other claims contained in the First Amended Complaint.
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ARGUMENT I. PLAINTIFFS SATISFY THE STANDARD FOR INJUNCTIVE RELIEF.
This court may properly exercise its discretion and grant Plaintiffs injunctive relief under Fed. R. Civ. P. 65. In exercising that discretion, this court considers “(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 113, 114 (8th Cir. 1981) (en banc); accord Phelps-Roper v. City of St. Charles, 782 F. Supp. 2d 789, 791 (E.D. Mo. 2011). “At base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.” Dataphase Sys., 640 F.2d at 113. “The equitable nature of the proceeding mandates that the court’s approach be flexible enough to encompass the particular circumstances of each case.” Id. “In balancing the equities no single factor is determinative,” id., but the movant must make a threshold showing of being likely to prevail on the merits. Planned Parenthood of MN v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008) (en banc). II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
A. Plaintiffs Are Likely To Succeed On The Merits Of Their RFRA Claim. Plaintiffs’ first claim is that the Mandate is a violation of rights secured to them by the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq. The Act has the following two purposes: (1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374
U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
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(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
42 U.S.C. § 2000bb(b); see Harrell v. Donahue, 638 F.3d 975, 984 (8th Cir. 2011) (explaining that RFRA restored “the pre-Smith status quo of requiring the Government to show a compelling interest for any law that substantially burdened the free exercise of religion”).
Under RFRA, the “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb1(a). The only time the federal government may substantially burden a person’s exercise of religion is 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) (emphasis added).
As argued herein, the Mandate imposes a substantial burden on the religious exercise of Plaintiffs, and Defendants cannot demonstrate that the Mandate is in furtherance of a compelling interest and is the least restrictive means of furthering that interest.
1. The Mandate Substantially Burdens Plaintiffs’ Exercise of Religion. To trigger the protections afforded by RFRA, Plaintiffs must first show that a federal governmental policy or action substantially burdens their sincerely held religious beliefs. United States v. Ali, 682 F.3d 705, 709 (8th Cir. 2012) (citing Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997)). Under RFRA, “a rule imposes a substantial burden on the free exercise of religion if it prohibits a practice that is both sincerely held by and rooted in [the] religious belief[s] of the party asserting the claim” Id. (citation and internal quotation marks omitted). Several Supreme Court cases are illustrative of what a substantial burden involves in the freedom of religion context. In Sherbert v. Verner, 374 U.S. 398 (1963), the Court held that a state’s denial of unemployment benefits to a Seventh-Day Adventist employee, whose religious
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beliefs prohibited her from working on Sunday, substantially burdened her exercise of religion. The regulation “force[d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” Id. at 404. In Thomas v. Review Bd., 450 U.S. 707 (1981), the Court held a state’s denial of unemployment compensation benefits to a Jehovah’s Witness employee, whose religious beliefs prohibited him from participating in the production of armaments, substantially burdened his religious beliefs. “[T]he employee was put to a choice between fidelity to religious belief or cessation of work.” Id. at 717. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court held that a state compulsory school-attendance law substantially burdened the religious exercise of Amish parents who refused to send their children to high school. The Court found the burden “not only severe, but inescapable,” requiring the parents “to perform acts undeniably at odds with fundamental tenets of their religious belief.” Id. at 218.
O’Brien and OIH face the same inescapable burden faced by the religious claimants in these cases. Prior to the Mandate, Plaintiffs were free to fashion a health plan for OIH employees consistent with their religious, specifically Catholic, beliefs and principles, including the choice to exclude services that the Catholic Church deems to be immoral, i.e., abortion, contraception, and sterilization. Now, in the wake of the Mandate, and beginning on January 1, 2013, Plaintiffs must either pay for a health plan that includes drugs and services to which they religiously object or suffer severe penalties. There is no escape; there is no way of avoiding this conflict. Should Plaintiffs exclude contraceptive services in a health plan for OIH employees, OIH will face substantial penalties as set forth in 26 U.S.C. § 4980D, in addition to potential lawsuits by plan participants, plan beneficiaries and the Secretary of Labor. See 29 U.S.C. § 1132(a). Should Plaintiffs drop health insurance for OIH employees altogether, OIH will face
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substantial penalties as set forth in 26 U.S.C. § 4980H, in addition to losing good will with its
employees and losing a competitive edge in the employment marketplace. In short, Plaintiffs
cannot create a health plan for OIH employees consistent with their religious beliefs and
consistent with longstanding company practice without incurring substantial penalties of some
kind.
Defendants cannot deny that the Mandate implicates the religious beliefs and practices of
numerous employers. On the contrary, the Defendants themselves have expressly acknowledged
the burden on religious beliefs presented by the challenged regulations. Recognizing that paying
for, providing, or subsidizing contraceptive services would conflict with “the religious beliefs of
certain religious employers,” Defendants have granted a wholesale exemption for a class of
employers, i.e., churches and their auxiliaries, from complying with the Mandate. 76 Fed. Reg.
46621, 46623 (Aug. 3, 2011); 77 Fed. Reg. 8725 (Feb. 15, 2012). In addition, the government
has provided a temporary enforcement safe harbor for any employer, group health plan, or group
health insurance issuer that fails to cover some or all recommended contraceptive services and that is sponsored by an organization that meets certain criteria.7 During the time of this
temporary safe harbor, Defendants are considering ways of “accommodating non-exempt, non-
profit religious organizations’ religious objections to covering contraceptive services [while]
7 The criteria are as follows: (1) The organization is organized and operates as a non-profit entity. (2) From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan sponsored by the organization, consistent with any applicable state law, because of the religious beliefs of the organization. (3) The group health plan sponsored by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) provides to plan participants a prescribed notice indicating that the plan will not provide contraceptive coverage for the first plan year beginning on or after August 1, 2012. (4) The organization self-certifies that it satisfies the three criteria above, and documents its selfcertification in accordance with prescribed procedures. Guidance on the Temporary Enforcement Safe Harbor, at 3 (Feb. 10, 2012), available at http://cciio.cms.gov/resources/files/Files2/02102012/20120210-Preventive-Services-Bulletin.pdf (last visited August 22, 2012)
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assuring that participants and beneficiaries covered under such organizations’ plans receive contraceptive coverage without cost sharing.” 77 Fed. Reg. 16501, 16503. Defendants are even considering whether “for-profit religious employers with [religious] objections should be considered as well.” Id. at 16504.
Indeed, Defendant Sebelius herself has publicly acknowledged that the Mandate raises religious concerns. In the press release issued on January 20, 2012, announcing the finalization of the Mandate and the temporary safe harbor period for non-profit entities that object to contraceptive services, Defendant Sebelius opined that the temporary reprieve “strikes the appropriate balance between respecting religious freedom and increasing access to important preventative services.”8 Subsequently, in a press release issued on July 31, 2012, Sebelius stated that “[t]he Obama administration will continue to work with all employers to give them the flexibility and resources they need to implement the health care law in a way that protects women’s health while making common-sense accommodations for values like religious liberty.”9
In short, the Defendants cannot make a straight-faced argument in this litigation that the Mandate does not impose a substantial burden on the exercise of religious beliefs. Indeed, the Defendants have postponed for a year the application of regulations that purportedly advance a compelling governmental interest solely because of the burden the Defendants themselves recognize that these regulations impose on the exercise of religion. Clearly, nothing but a burden of a “substantial” nature could justify such postponement.
8 Press Release, A 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 Aug. 12, 2012).
9 Press Release, Health care law gives women control over their care, offers free preventive services to 47 million women, July 31, 2012, http://www.hhs.gov/news/press/2012pres/07/20120731a.html (last visited Aug. 21, 2012).
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2. Three Anticipated Objections. Nor can the Defendants make convincing arguments against Plaintiffs’ entitlement to relief in this case based on the status of OIH as a corporation, the status of Frank O’Brien as an individual, or the company’s status as a for-profit employer.10 That corporations are legal “persons” who enjoy First Amendment rights worthy of protection cannot be gainsaid. Citizens United v. FEC, 130 S. Ct. 876, 899 (2010). The cases also make clear that the First Amendment rights enjoyed by corporations include the right to the free exercise of religion. Braunfeld v. Brown, 366 U.S. 599 (1961) (adjudicating, inter alia, free exercise claims of secular, for-profit businesses); Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009) (adjudicating free exercise claim of for-profit pharmacy corporation); Primera Iglesia Bautista Hispana v. Broward Cnty., 450 F.3d 1295 (11th Cir. 2006) (“corporations possess Fourteenth Amendment rights” including, through incorporation doctrine, “the free exercise of religion.”); EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) (for profit corporation could assert free exercise rights of owners); Commack Self-Service Kosher Meats, Inc. v. Hooker, 800 F. Supp. 2d 405 (E.D. N.Y. 2011) (adjudicating corporation’s free exercise challenge). Two state’s Supreme Courts have also recognized that for-profit, secular corporations have free exercise rights deserving of protection. See, e.g., Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474 (2008) (corporate pharmacy had standing to bring, inter alia, federal free exercise claim); and McClure v. Sports & Health Club, Inc., 370 N.W.2d 844, 850 (Minn. 1985) (Minn. 1985) (the “conclusory assertion that a corporation has no constitutional right to free exercise of religion is unsupported by any cited authority”).
10 For a more complete response to these objections, see Plaintiffs’ Memorandum in Opposition to Dismiss Case, at 7-17. (Doc. 31.)
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That Frank O’Brien’s individual free exercise rights are burdened by the Mandate is also beyond serious questioning. See, Townley, supra. (recognizing that business owner’s free exercise rights are impacted by burden on corporation); also, Stormans, supra. (corporation had standing to assert free exercise rights of owners); and Morr-Fitz, supra. (Plaintiffs were both corporations and individual owners).
Finally, there is no merit to any argument that one abandons the right to free exercise upon entering the commercial marketplace. See Braunfeld, supra. (adjudicating free exercise claims of retail store owners). United States v. Lee, 455 U.S. 252 (1982) is not to the contrary. In Lee, while ultimately finding that a compelling governmental interest outweighed the free exercise rights of an Amish farmer and carpenter, the Supreme Court acknowledged that — even though he had entered the commercial marketplace — the social security regulations of which he complained were indeed a burden on his free exercise rights.
In short, none of these anticipated objections11 to Plaintiffs’ likelihood of success on the merits is valid. Thus, strict scrutiny applies under RFRA.
3. RFRA Imposes Strict Scrutiny. RFRA requires application of the “strict scrutiny test.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430 (2006). This test, which requires “the most rigorous of scrutiny,” Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993), “is the most demanding test known to constitutional law,” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). The government must demonstrate that the challenged law serves “a compelling governmental interest” and is the “least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b).
11 See Defendants’ Memorandum in Support of Motion to Dismiss, at 13-20. (Doc. 26.)
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As described above, the strict scrutiny test imposed by RFRA must be conducted “through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro Espirita, 546 U.S. at 43031. Indeed, in both Sherbert and Yoder the Court “looked beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants.” Id. at 431. It is therefore not enough for the government to describe a compelling interest in the abstract or in a categorical fashion; the government must demonstrate that the interest “would be adversely affected by granting an exemption” to the religious claimant. Id.; see also Olsen v. Mukasey, 541 F.3d 827, 831 (8th Cir. 2008) (under RFRA, “the compelling interest of a challenged law must be evaluated with respect to the particular claimant whose religious exercise is substantially burdened”).
In other words, in this case the government must demonstrate that exempting Frank O’Brien and OIH from the Mandate is necessary to advance its compelling interest even while the same government willingly exempts thousands of other employers who employ nearly 100 million employees.
4. The Defendants Cannot Demonstrate a Compelling Governmental Interest. A compelling governmental interest involves “only those interests of the highest order.” Quaring v. Peterson, 728 F.2d 1121, 1126 (8th Cir. 1984). In fact, in this context, “only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” Sherbert, 374 U.S. at 406. The government must demonstrate “some substantial threat to public safety, peace, or order” in not exempting the claimant. Yoder, 406 U.S. at 230.
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Just last term, the Supreme Court described a compelling state interest as a “high degree of necessity,” Brown v. Entm’t Merchs. Ass’n, 131 S.Ct. 2729, 2741 (2011), noting that “[t]he State must specifically identify an ‘actual problem’ in need of solving, and the curtailment of free speech must be actually necessary to the solution.” Id. at 2738 (citations omitted). The “[m]ere speculation of harm does not constitute a compelling state interest.” Consol. Edison Co. v. Public Serv. Comm’n, 447 U.S. 530, 543 (1980). As such, the government’s invocation of the promotion of health and equality as compelling interests, without more, is insufficient to meet the demands of strict scrutiny. While recognizing “the general interest in promoting public health and safety,” the Supreme Court held in O Centro Espirita that “invocation of such general interests, standing alone, is not enough.” Id. at 438.
In its Motion to Dismiss Plaintiffs’ First Amended Complaint, the government proffered two compelling governmental interests: (1) increased access to FDA-approved contraceptive services serves the health and well-being of women, and (2) the equalization of health care between men and women. (Doc. 26, at 20-22.) What radically undermines the government’s claims of compelling interests is the massive number of employees, millions in fact, whose health and equality are completely unaffected by the Mandate and therefore not served by the government’s alleged interests. See Newland, 2012 U.S. Dist. LEXIS 104835 at *23. For example, the government cannot explain how its alleged interests can be compelling when employers with fewer than 50 employees12 have no obligation to provide health insurance for their employees and thus no obligation to comply with the Mandate.13 With respect to Plaintiffs, it cannot sufficiently explain how there is a compelling interest in coercing OIH and O’Brien,
12 According to the United States census, more than 20 million individuals are employed by firms with fewer than 20 employees. “Statistics about Business Size (including Small Business) from the U.S. Census Bureau,” available at http://www.census.gov/econ/smallbus.html (last visited August 3, 2012).
13 Under 26 U.S.C. § 4980H(c)(2), employers are not subject to penalties for not providing health insurance coverage if they have fewer than 50 full-time employees.
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with their 87 employees, into violating their religious principles when businesses with fewer than 50 employees can avoid the Mandate entirely by not providing any insurance at all.
Defendants also cannot explain how these interests can be of the highest order when the Mandate does not apply to plans grandfathered under the ACA. The government itself has estimated that “98 million individuals will be enrolled in grandfathered group health plans in 2013.” 75 Fed. Reg. 41,726, 41,732 (July 19, 2010). When this figure is added to the number of employees of businesses with fewer than 50 employees, it is fair to say that well over 100 million employees are left untouched by the government’s claim of compelling interests. “It is established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547 (citations and internal quotation marks omitted). Because there is little that is uniform about the Mandate, as demonstrated by the massive number of employees that are untouched by it, we do not have an instance here of “a need for uniformity [that] precludes the recognition of exceptions to generally applicable laws under RFRA.” O Centro Espirita, 546 U.S. at 436.
It is the existence of these enormous loopholes in the Mandate that, just last month, led Judge Kane in Newland v. Sebelius, to issue a preliminary injunction: the “massive” number of employees untouched by the Mandate “completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs.” Newland, 2012 U.S. Dist. LEXIS 104835 at *23.
Moreover, the fact that contraceptive services are widely available throughout the country further undercuts the government’s assertions that its interests are compelling. The government describes its asserted interests as though a vast majority of citizens forego contraception or that
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no one has ready access to it. But the facts simply do not support the government’s cry of alarm as attested to by the statements of the Defendants themselves as well as sources upon which the defendants rely.14 In fact, even if the government could show that the Mandate has the potential to increase the availability of contraceptives to some degree, “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Brown, 131 S.Ct. at 2741, n.9.
In sum, the government cannot demonstrate a “paramount” interest or “interest of the highest order” in requiring OIH to comply with a mandate for its 87 employees that does not apply to the employers of over 100 million employees nationwide. It cannot demonstrate a “substantial threat to public safety, peace, or order” should OIH be exempt from the Mandate.
5. The Mandate is not the Least Restrictive Means. The existence of a compelling interest in the abstract does not give the government carte blanche to promote that interest through any regulation of its choosing particularly where, as here, the government’s attempt at regulation runs up against what the government itself recognizes is the exercise of a fundamental right. If the government “has open to it a less drastic way of satisfying its legitimate interests, it may not choose a [regulatory] scheme that broadly stifles the exercise of fundamental personal liberties.” Anderson v. Celebrezze, 460 U.S. 780, 806 (1983).
14 Guttmacher Institute, Fact Sheet: Contraceptive Use in the United States, July 2012, http://www.guttmacher.org/pubs/fb_contr_use.html (last visited Aug. 3, 2012) (“Nine in 10 employer-based insurance plans cover a full range of prescription contraceptives”).
Also, Press Release, A 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 Aug. 3, 2012), noting that “contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.”
And also, Guttmacher Institute, Fact Sheet: Contraceptive Use in the United States, July 2012, http://www.guttmacher.org/pubs/fb_contr_use.html (last visited Aug. 3, 2012) (“Among women who are at risk of unintended pregnancy, 89% are currently using contraceptives.”).
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Assuming arguendo that the interests proffered by the government are compelling, the Mandate is not the least restrictive means of furthering those interests. If the government wishes to further the interests of health and equality by means of free access to contraceptive services, it could do so in a myriad of ways without coercing OIH and O’Brien, in violation of their religious exercise, into doing so.
First and foremost, the government could provide these services to citizens itself. In fact, the government already provides the needy with free access to contraceptives through Medicaid. (See Doc. 26 at 19.) It could similarly do so for all citizens, without a showing of need.
Second, in an effort to meet its compelling governmental interests, the government could reimburse citizens who pay to use contraceptives, allowing citizens to submit receipts to the government for payment.
Third, the government could offer tax deductions or credits for the purchase of contraceptive services. The government already offers deductions and credits for such things as educational expenses and child and dependent care expenses. It could similarly do so here.
Fourth, the government could impose a mandate on pharmaceutical companies that manufacture contraceptives to provide such products through pharmacies, doctor’s offices, and health clinics free of charge.
Each of these options would further the government’s proffered compelling interests in a direct way that would not impose a substantial burden on persons such as OIH or O’Brien. See Newland, 2012 U.S. Dist. LEXIS 104835 at *23-27 (rejecting government’s claim that the Mandate furthers a compelling governmental interest through the least restrictive means.) Of the various and sundry ways the government could achieve its interests, it has chosen a path with
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clear and undeniable adverse consequences to employers with religious objections to contraceptive services, such as Plaintiffs.
While the government may contend that any or all of these options would prove difficult to establish or operate, “least restrictive means” does not mean the most convenient way for the government. Even if the government claims these or other options would not be as effective or efficient as the Mandate, “a court should not assume a plausible, less restrictive alternative would be ineffective.” United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 824 (2000). In fact, if a less restrictive alternative would serve the government’s purpose, “the legislature must use that alternative.” Id. at 813. The asserted interests of health and equality “cannot be invoked as a talismanic incantation to support any [law].” United States v. Robel, 389 U.S. 258, 263 (1967).
It is clear that Plaintiffs have a strong likelihood of success on their RFRA claim. B. Plaintiffs Are Likely to Succeed on the Merits of their Free Exercise Claim. In addition to violating Plaintiffs’ rights under RFRA, the Mandate operates to deny Plaintiffs their right to the free exercise of religion even under the analytical framework announced in Employment Div. v. Smith, 494 U.S. 872 (1990). “A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Lukumi, 508 U.S. at 546. “Neutrality and general applicability are interrelated” and “failure to satisfy one requirement is a likely indication that the other has not been satisfied.” Id. at 531-32. Here, because the Mandate is not neutral or of general application, strict scrutiny applies — a demanding standard the government cannot survive.
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1. The Mandate is Not Neutral. It goes without saying that the government may not discriminate among classes of religious believers based on their status as institutions, organizations, or preferred denominations. See, e.g., Lukumi, 508 U.S. at 533; McDaniel v. Paty, 435 U.S. 618 (1978). Using its “discretion,” the government has exempted from the Mandate non-profit entities that have as their purpose the “inculcation of religious values,” “primarily employs persons who share its religious tenets” and “primarily serves persons who share its religious tenets.” 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011); 77 Fed. Reg. 8725 (Feb. 15, 2012). Thus, under the Mandate, some religious organizations and institutions, like churches and their “integrated auxiliaries,” id., enjoy a wholesale exemption from compliance, but other entities with religious principles and beliefs, like OIH, for example, are subject to them. Such a discriminatory system gives obvious preference to the religious beliefs and practices of certain religious institutions over those who do not satisfy the government’s definition of “religious employer”; it gives a religious preference; a preference for entities that practice their religion according to standards set out by the government, over those who do not. The Mandate thus fails the test of religious neutrality by granting a blanket exemption to religious institutions while leaving other religious employers unprotected — the very kind of “religious gerrymander” which demonstrates a lack of neutrality. Lukumi, 508 U.S. at 534 (“The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders”) (citations omitted). In Frazee v. Employment Security Dept., 489 U.S. 829 (1989), the Court definitively dismissed the idea (implicit in the Mandate and its narrow religious exemption) that institutionalized or organized religion is somehow entitled to greater deference than individual beliefs: “we reject the notion that to claim the protection of the Free Exercise Clause, one must
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be responding to the commands of a particular religious organization. Here, Frazee’s refusal [to work on the Sabbath] was based on a sincerely held religious belief. Under our cases, he was entitled to invoke First Amendment protection.” Id. at 834.
Finally, there can be little doubt that the Mandate targets religiously-motivated conduct. “[T]he effect of a law in its real operation is strong evidence of its object.” Lukumi, 508 U.S. at 535. Prior to the Mandate, religious employers like Plaintiffs were permitted to fashion their health insurance plans according to their religious, moral, and conscientious beliefs. Now, in the wake of the Mandate, religious employers like Plaintiffs must either abandon these religious, moral, and conscientious beliefs or pay substantial penalties. Given the widespread use and availability of contraception, not to mention the fact that 90% of employers already include contraceptive services in employee health plans, there is strong evidence to suggest that a principal object of the Mandate is to coerce those “hold out” employers, like Plaintiffs, who object to providing contraceptive services on religious grounds.
2. The Mandate is Not Generally Applicable. Because the Mandate does not apply to grandfathered health plans or religious employers as defined at 45 C.F.R. § 147.130(a)(iv)(B), and because employers with fewer than 50 employees can avoid the Mandate entirely by dispensing with health insurance altogether, the Mandate is not generally applicable.15 Unlike in Smith, which involved “across-the-board criminal prohibition on a particular form of conduct,” 494 U.S. at 1603, the Mandate is not an “across-the-board requirement” that all employers nationwide include contraceptive services in health plans for employees. The Mandate substantially burdens the religiously motivated
15 Individuals who are members of a “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds or are members of a “health care sharing ministry” are also exempt from the ACA and therefore the Mandate. See 26 U.S.C. §§ 5000A(d)(2)(a)(i), (ii), (b)(ii).
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conduct of OIH and O’Brien while, at the same time, exempting a sizable population that either has nothing to do with religion or that does not meet the government’s definition of a “religious employer.” Such a scheme can hardly be described as generally applicable.
There can be no merit to an argument that, because these exemptions do not create a subjective, case-by-case inquiry into the reasons for an employer’s objection to covering contraceptive services, strict scrutiny cannot apply. Smith and Lukumi do not support this view. As now Justice Alito wrote for the Third Circuit in Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999), holding that a police department violated the free exercise clause when it refused religious exemptions from prohibition against officers wearing beards while allowing medical exemption from same prohibition:
While the Supreme Court did speak in terms of “individualized exemptions” in Smith and Lukumi, it is clear from those decisions that the Court’s concern was the prospect of the government’s deciding that secular motivations are more important than religious motivations. If anything, this concern is only further implicated when the government does not merely create a mechanism for individualized exemptions, but instead, actually creates a categorical exemption for individuals with a secular objection but not for individuals with a religious objection. Id. at 365 (emphasis supplied). In other words, categorical secular exemptions make a law even less generally applicable than individualized secular exemptions. And, in this case, there is something even more egregious than a categorical preference for secular exemptions over religious ones: it is a categorical exemption for one class of religious objectors over another class of religious objectors. In addition, recognizing a categorical exemption for employers with grandfathered health plans but not employers with a religious objection to contraceptive services like Plaintiffs, belies any assertion that the Mandate is generally applicable. By exempting some religious objectors, but not others, and exempting some employers for secular reasons but not religious
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ones, the regulations at issues are “sufficiently suggestive of discriminatory intent so as to trigger heightened scrutiny under Smith and Lukumi.” Id.; see also Lukumi, 508 U.S. at 542 (1992) (“All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice. The Free Exercise Clause protect[s] religious observers against unequal treatment”) (citation and internal marks omitted).
Where the government “has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardships’ without compelling reason.” Lukumi, 508 U.S. at 568 (quotations and internal citations omitted). Similarly, because the government under ACA and the Mandate has in place a system of categorical exemptions, it may not refuse to exempt entities that demonstrate religious hardship, like OIH, “without compelling reason.” As previously explained, the government cannot satisfy the demanding standard of strict scrutiny.
Thus, O’Brien and OIH are likely to succeed on the merits of their Free Exercise claim. C. Plaintiffs Are Likely to Succeed on the Merits of their Establishment Clause
Claim. In addition to violating RFRA and the Free Exercise Clause, the Mandate violates the Establishment Clause for two reasons. First, the Mandate is subject to strict scrutiny under Larson v. Valente, 456 U.S. 228 (1982) — which it cannot survive as explained previously — because it differentiates between various religious organizations based upon whether they adhere to a particular theological viewpoint. Second, the Mandate fosters excessive entanglement with religion by authorizing government officials to decide whether an objecting organization’s mission, values, and activities are truly religious or secular in nature and whether an organization and the individuals that it employs and serves share the same religious tenets. In Larson, the Supreme Court applied strict scrutiny to a statute that imposed requirements upon religious organizations that solicited over half of their funds from non-
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members. Id. at 246-47. Although the government argued that it was “a facially neutral statute, the provisions of which happen to have a ‘disparate impact’ upon different religious organizations,” id. at 246 n.23, the Court concluded that the statute “makes explicit and deliberate distinctions between different religious organizations” and had the effect of distinguishing between established religious organizations and new ones. Id. This differential treatment gave rise to the application of strict scrutiny. Id. at 246-47.
The Mandate is similar in key respects to the law at issue in Larson. Both provisions “make[] explicit and deliberate distinctions between different religious organizations.” See id. at 246 n.23. Both provisions disproportionally burden certain religious denominations and organizations while benefiting others.16 The government cannot expressly single out one type of religious organization for disfavored treatment when it enacts statutes or rules, as it did here and in Larson, and then claim that it has not done so in litigation.
In addition, while the differential treatment of religious organizations in Larson reflected the theological view that soliciting funds from members of one’s own faith is preferable to soliciting funds from non-members, the differential treatment of religious organizations in this instance reflects the theological view that religious organizations that emphasize religious education of members of their own faith are more truly religious, and deserving of an exemption, than faith-based organizations that pursue any other religious mission. This governmentimposed orthodoxy runs counter to the longstanding principle that “no official, high or petty, can prescribe what shall be orthodox in . . . religion, or other matters of opinion.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
16 For example, various religious employers who employ and serve only members of their own faith are exempt from the mandate, which will benefit employers of some faiths more (e.g., Old Order Amish and Orthodox Jewish groups), while employers who employ and serve members of the broader community are subject to the mandate.
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Contrary to the theological position reflected in the Mandate, many organizations are not engaged in proselytizing when they deliver social, medical, and other services, yet the very provision of these services is itself a fulfillment of their religious mission. See Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 106 (Cal. 2004) (Brown, J., dissenting) (“[A] crabbed and constricted view of religion . . . would define the ministry of Jesus Christ as a secular activity”). In addition, some business leaders, such as Frank O’Brien, sincerely view the operation of all aspects of their business as a divinely-inspired calling and a way to share their faith through their example. See generally Corp. of the Presiding Bishop v. Amos, 483 U.S. 327, 345 n.6 (1987) (Brennan, J., concurring) (“It is . . . conceivable that some for-profit activities could have a religious character”). The theological line drawn by the Mandate between religious organizations that primarily share their faith through words and “less” religious organizations that primarily share their faith through actions is no less suspect than the line drawn in Larson.
The second reason the Mandate violates the Establishment Clause arises from the Mandate’s partial religious employer exemption, an exemption that requires a government review of an organization’s purpose(s), values, and activities so that the government may decide whether the organization has the inculcation of religious values as its purpose and whether the individuals employed and served by the organization share its religious tenets. This review runs afoul of two key principles set forth in cases that examined whether the government had become excessively entangled with religion. First, the government violates the Establishment Clause (and other First Amendment provisions) when it seeks to decide which of an organization’s activities are truly religious and which are secular. Second, courts have often examined whether
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a law fosters more or less entanglement than an alternative approach would and have favored the less problematic option.
More than seven decades ago, the Supreme Court held that a law empowering a government official to determine whether a cause for which donations were solicited was truly a “religious” cause was unconstitutional. Cantwell v. Connecticut, 310 U.S. 296, 305-07 (1940). The Court reiterated this point in Lemon v. Kurtzman, 403 U.S. 602 (1973), when it held that a law providing a salary supplement to private school teachers that taught only secular courses created an excessive entanglement with religion. Id. at 617-20. The Court explained:
[T]he program requires the government to examine the school’s records in order to determine how much of the total expenditures is attributable to secular education and how much to religious activity. This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. Id. at 619-20; see Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 694 (1989). Both because it is clear that the Mandate deems some religious believers to be more religious than others and, thus, worthy of exemption; and because the Mandate requires those seeking exemption to pass some sort of bureaucratic “religiousness” test; all of which violates decades-old Supreme Court jurisprudence in this area, it is likely that Plaintiffs will succeed on the merits of their Establishment Clause claim. D. Plaintiffs Are Likely to Succeed on the Merits of their Free Speech Claim. In addition to paying for coverage of services they find religiously objectionable, the Mandate requires O’Brien and OIH to pay for “patient education and counseling” about those services. See 76 Fed. Reg. 46621, 46622 (Aug. 3, 2011); 45 C.F.R. § 147.130. This is an example of the kind of coerced speech that the Free Speech Clause of the First Amendment forbids. The Supreme Court has long held that the “right to speak and the right to
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refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Wooley v. Maynard, 430 U.S. 705, 714 (1977) (quoting West Virginia State Bd. of Educ. V. Barnette, 319 U.S. 624, 637 (1943)). Put more succinctly, the First Amendment protects the right to “decide what not to say.” Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 573 (1995). Thus, “[l]aws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny,” as those “that suppress, disadvantage, or impose differential burdens upon speech because of its content.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 624, 642 (1994). The “First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way [the government] commands, an idea they find morally objectionable.” Wooley, 430 U.S. at 715.
Requiring O’Brien and OIH to pay for “education and counseling” in favor of services they find morally objectionable runs afoul of core Free Speech rights. As such, Plaintiffs are likely to succeed on the merits of their Free Speech claim. III. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT AN
INJUNCTION. An injunction should be issued because Plaintiffs’ First Amendment and RFRA rights are being violated by the Mandate as discussed supra. The deprivation of First Amendment freedoms even for a short period of time constitutes irreparable harm, Elrod v. Burns, 427 U.S. 347, 373–74 (1976), and “a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA.” Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001). O’Brien and OIH must act as soon as possible to have a new health plan in place by the plan renewal date of January 1, 2013. The fact that the company cannot today purchase new
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coverage or amend its current coverage to exclude the objectionable services because of the Mandate is proof that the Plaintiffs are — at this moment — suffering irreparable harm. IV. AN INJUNCTION WOULD CAUSE NO HARM TO DEFENDANTS.
Any argument that the Defendants would be harmed by the issuance of a Preliminary Injunction in this case would be frivolous. The Defendants themselves have already stayed their hand for thousands upon thousands of employers of 100 million employees! An order requiring them to refrain from applying the Mandate to O’Brien and OIH while this case is pending could not conceivably be said to cause harm to any of the Defendants’ interests. Moreover, there is no legitimate governmental interest to be furthered by Defendants’ infringement of Plaintiffs’ constitutional and statutory rights. See Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) (“The balance of equities, too, generally favors the constitutionally-protected freedom of expression.”); accord Phelps-Roper v. City of St. Charles, 782 F. Supp. 2d 789, 794 (E.D. Mo. 2011) (“The injunction will not cause substantial harm to others and the public is served by the preservation of constitutional rights. Nixon, 545 F.3d at 694. Thus, the balance of harms requires the issuance of the requested preliminary injunction.”). V. THE PUBLIC INTEREST FAVORS A PRELIMINARY INJUNCTION.
As discussed supra, the Mandate violates Plaintiffs’ constitutional and statutory rights. The public has no interest in having Defendants violate those rights and, as such, an injunction will not negatively impact the interests of the public. Nixon, 545 F.3d at 690 (“it is always in the public interest to protect constitutional rights.”). VI. THIS COURT SHOULD NOT IMPOSE A BOND ON PLAINTIFFS.
According to Fed. R. Civ. P. 65(c), this court “may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs
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and damages sustained by any party found to have been wrongfully enjoined or restrained.” “The amount of the bond rests within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of that discretion.” Stockslager v Carroll Elec. Coop. Corp., 528 F.2d 949, 951 (8th Cir. 1976). In this case, a bond requirement would further harm Plaintiffs’ constitutional and statutory rights by causing them to have to pay to assert and defend their rights. Moreover, enjoining the enforcement of the Mandate as to Plaintiffs will not impose any monetary requirements on Defendants. Consequently, Plaintiffs request that no bond be imposed should an injunction issue. See City of St. Charles, 782 F. Supp. 2d at 794 (not requiring a bond).
CONCLUSION Because the Plaintiffs have shown that they are currently suffering irreparable harm, that they are likely to succeed on the merits of their claims, that the balance of harms favors the Plaintiffs, and that no harm to the public interest would result from the issuance of the relief requested, this Court should grant Plaintiffs’ motion for a Preliminary Injunction against Defendants’ requirement that Plaintiffs include in their employee health plan coverage for contraceptives, sterilization and patient education and counseling for same. A proposed form of Order is attached. Respectfully submitted on this 23rd day of August, 2012.
/s/ Francis J. Manion Francis J. Manion (adm. pro hac vice) Geoffrey R. Surtees (adm. pro hac vice) AMERICAN CENTER FOR LAW & JUSTICE PO Box 60 New Hope, KY 40052 Tel: (502) 549-7020; Fax: (502) 549-5252 fmanion@aclj.org, gsurtees@aclj.org
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Edward L. White III (adm. pro hac vice) AMERICAN CENTER FOR LAW & JUSTICE 5068 Plymouth Rd. Ann Arbor, MI 48105 Tel: (734) 662-2984; Fax: (734) 302-1758 Email: ewhite@aclj.org Patrick T. Gillen (adm. pro hac vice) FIDELIS CENTER FOR LAW AND POLICY 1025 Commons Circle Naples, FL 34119 Tel: (734) 355-4728; Fax: (312) 276-5129 Email: ptg.gillen@gmail.com
CERTIFICATE OF SERVICE I hereby certify that on August 23, 2012, the foregoing was filed electronically with the Clerk of Court to be served by operation of the Court’s electronic filing system upon the following: Michelle R. Bennett United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7310 Washington, D.C. 20530 michelle.bennett@usdoj.gov
/s/ Francis J. Manion Francis J. Manion (adm. pro hac vice) Attorney for Plaintiffs AMERICAN CENTER FOR LAW & JUSTICE PO Box 60 New Hope, KY 40052 (502) 549-7020
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 Case: 4:12-cv-00476-CEJ Doc. #: 35 Filed: 08/15/12 Page: 1 of 14 PageID #: 295

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

)

FRANK R. O’BRIEN, JR., and

)

O’BRIEN INDUSTRIAL HOLDINGS, LLC,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; KATHLEEN

)

SEBELIUS, in her official capacity as the

)

Secretary of the United States Department of

)

Health and Human Services; UNITED STATES )

DEPARTMENT OF THE TREASURY;

)

TIMOTHY GEITHNER, in his official capacity )

as Secretary of the United States Department of )

the Treasury; UNITED STATES DEPARTMENT )

OF LABOR; HILDA SOLIS, in her official

)

capacity as Secretary of the United States

)

Department of Labor,

)

)

Defendants.

)

)

Civil Action No. 4:12-cv-00476-CEJ

BRIEF OF THE AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL LIBERTIES UNION OF EASTERN MISSOURI IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT
The American Civil Liberties Union and the American Civil Liberties Union of Eastern Missouri (collectively “ACLU”) submit this amicus brief in support of the government’s motion to dismiss the Plaintiffs’ complaint. The right to practice one’s religion, or no religion, is a core component of our civil liberties and is of vital importance to the ACLU. For this reason, Amici routinely bring cases designed to protect individuals’ right to worship and express their religious beliefs. The ACLU is also fiercely committed to fighting discrimination and inequality,
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including discrimination based on gender. Indeed, since 1972, the ACLU has been working to secure gender equality and ensure that all women and girls are able to lead lives of dignity, free from violence and discrimination. An important component of gender equality is the ability of women to have full control of their reproductive lives, and to be able to decide whether and when to have children.
Amici do not repeat the arguments presented by Defendants. Rather, Amici submit this brief to provide historical context for Plaintiffs’ claims. The claims raised by Plaintiffs – that they have a right to discriminate against women and deny them benefits because of Mr. O’Brien’s religious beliefs – are, unfortunately, not new. Regrettably, not so very long ago, businesses similarly claimed that their right to religious liberty entitled them to discriminate against African-American customers in public accommodations; universities claimed a religious liberty right to discriminate against African-American students; and employers claimed their right to religious freedom entitled them to pay men – who they considered to be the head of household based on their religious beliefs – more than women. Fortunately, in each of these cases, the courts squarely rejected the claims, recognizing that the right to religious liberty does not encompass the right to discriminate against others. This Court should come to the same conclusion here. Indeed, acceptance of Plaintiffs’ claims would not only contravene this clear and consistent precedent, but would also open the door for arguments that countless antidiscrimination statutes should be unenforceable in the face of a claim that the discrimination is mandated by a religious belief.
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FACTUAL BACKGROUND
The Patient Protection and Affordable Care Act (“ACA”) provides that certain preventive services must be provided in health insurance plans without cost-sharing. Pub. L. No. 111-148, sec. 1001, § 2713(a), 124 Stat. 131 (2010). In an effort to help eliminate some forms of gender inequality by equalizing men and women’s health care coverage, Congress added the Women’s Health Amendment (“WHA”) to the ACA which requires health insurance plans to cover additional preventive services for women. Pub. L. No. 111-148, sec. 1001, § 2713(a)(4), 124 Stat. 131 (2010).
The WHA was crucial to ensuring that women receive coverage for preventative services. Indeed, prior to its introduction, coverage for these services was absent from the ACA. See 155 Cong. Rec. S11979, S11987 (daily ed. Nov. 30, 2009) (statement of Sen. Mikulski) (noting that the ACA did not cover key preventive services for women). In passing the WHA, Senator Reid explained that the WHA was necessary for “millions of women who are being discriminated against . . . .” 155 Cong. Rec. at S12020 (daily ed. Dec 1, 2009) (statement of Sen. Reid). As Senator Mikulski noted: “Often those things unique to women have not been included in health care reform. Today we guarantee it and we assure it and we make it affordable by dealing with copayments and deductibles . . . .” 155 Cong. Rec. at S11988 (daily ed. Nov. 30, 2009) (statement of Sen. Mikulski) (emphasis added). In particular, Congress intended to address gender disparities in out-of-pocket health care costs, much of which stem from reproductive health care:
Not only do [women] pay more for the coverage we seek for the same age and the same coverage as men do, but in general women of childbearing age spend 68 percent more in out-of-pocket health care costs than men. . . . This fundamental inequity in the current system is dangerous and discriminatory and we must act. The prevention section of the bill before us must be amended so coverage of preventive services takes into account the unique health care needs of women throughout their lifespan.
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155 Cong. Rec. at S12027 (daily ed. Dec. 1, 2009) (statement of Sen. Gillibrand). To implement the WHA, the Institute of Medicine (“IOM”), an independent, nonprofit
organization that works outside of government to provide unbiased and authoritative advice to decision makers and the public, “review[ed] what preventive services are necessary for women’s health and well-being” and developed recommendations for comprehensive guidelines. INSTITUTE OF MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS 1 (prepublication ed.) (2011) (“CLOSING THE GAPS”). Among other things, the report recommended that the preventative services include “the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Id. at 94. On August 1, 2011, the Department of Health and Human Services (“HHS”) adopted these recommendations, including the recommendation on contraceptive services. See 45 C.F.R. § 147.130(b)(1); Health Resources and Services Administration, U.S. Dep’t of Health & Human Services, Women’s Preventive Services: Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines/.
In announcing the final rule, the government recognized that the ability to access contraception plays is essential to women’s ability to participate fully in society. Indeed, as the government explained, the inability of women to access contraception
places women in the workforce at a disadvantage compared to their male co-workers. Researchers have shown that access to contraception improves the social and economic status of women. Contraception coverage, by reducing the number of unintended and potentially unhealthy pregnancies, furthers the goal of eliminating this disparity by allowing women to achieve equal status as healthy and productive members of the job force. . . . The [federal government] aim[s] to reduce these disparities by providing women broad access to preventative services, including contraceptive services.
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77 Fed. Reg. 8725, 8728. In addition, the government recognized that cost is a real barrier to contraceptive access. The IOM found that “[d]espite increases in private health insurance coverage of contraception since the 1990s, many women do not have insurance coverage or are in health plans in which copayments for visits and for prescriptions have increased in recent years.” CLOSING THE GAPS at 94. Contraceptive copays can be so expensive that women can pay almost as much out-of-pocket as they would without coverage at all. Su-Ying Liang et al., Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills between 1996 and 2006, 83 Contraception 491, 531 (June 2010). Cost barriers are aggravated by the fact that women “typically earn less than men and [] disproportionately have low incomes.” CLOSING THE GAPS at 19. Women who lack access to contraception face “barriers . . . that prevent women from achieving health and well-being for themselves and their families.” Id. at 20. The federal contraception rule, if undisturbed, will ensure that millions of women have access to contraception without cost barriers, thereby equalizing the health insurance costs between women and men and ensuring women’s ability to equally participate in society.
ARGUMENT The question in this case is whether a secular, for-profit corporation can discriminate against its female employees by denying to them the benefits the government has found to be a critical means of helping to promote women’s equality and eradicating discrimination. While today’s controversy centers around health insurance benefits for contraception, the fundamental question – whether religious objections can trump neutral laws designed to promote equality – is not unique to this context. Indeed, it has arisen in numerous other contexts over the last five decades. For example:
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● In 1966, three African-American residents of South Carolina brought a suit against Piggie Park restaurants, and their owner, Maurice Bessinger, for refusal to serve them. Bessinger argued that enforcement of the Civil Rights Act of 1964’s public accommodations provision violated his religious freedom “since his religious beliefs compel[ed] him to oppose any integration of the races whatever.” Newman v. Piggie Park Enter., Inc., 256 F. Supp. 941, 944 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968).
● In 1976, Roanoke Valley Christian Schools added a “head of household” supplement to their teachers’ salaries – but only for heads of household as determined by scripture. For Roanoke Valley, that meant married men. According to the church pastor affiliated with the school, “[w]hen we turned to the Scriptures to determine head of household, by scriptural basis, we found that the Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.” Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392 (4th Cir. 1990). When sued under the Equal Pay Act, Roanoke Valley claimed a right to an exemption from equal pay laws because its “head-of-household practice was based on a sincerely-held belief derived from the Bible.” Id. at 1397.
● In the 1980s, Bob Jones University, a religiously affiliated school in South Carolina, wanted an exemption from a rule denying tax-exempt status to schools that practice racial discrimination. The “sponsors of the University genuinely believe[d] that the Bible forbids interracial dating and marriage,” and it was school policy that students engaged in interracial relationships, or advocacy thereof, would be expelled. Bob Jones Univ. v. U.S., 461 U.S. 574, 580 (1983). Bob Jones’s lesser known co-plaintiff, Goldsboro Christian Schools, even opposed integration of the classroom. According to their interpretation of the Bible, “[c]ultural or
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biological mixing of the races is regarded as a violation of God’s command.” Id. at 583 n.6 (citations omitted).
In each of these cases, entities and individuals tried to invoke the mantle of religious freedom to avoid compliance with laws designed to advance equality, and each time their claims were rejected. As these cases recognized, the right to religious liberty is not absolute. It does not give businesses or individuals carte blanche to discriminate against others or deny others their rights. As the District Court in South Carolina explained in rejecting the free exercise claim of a restaurant owner who refused to serve African-American customers:
Undoubtedly defendant . . . has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs. Newman, 256 F. Supp. at 945. One of the ways in which religious liberty is not absolute, as these cases make clear, is that religious liberty must yield to laws that were passed to further a compelling government interest, including the promotion of equality and the eradication of discrimination. See, e.g., Shenandoah Baptist Church, 899 F.2d at 1398 (religious school must comply with the Equal Pay Act, which was passed to address “serious and endemic problem of employment [gender] discrimination,” which is a compelling government interest); Bob Jones Univ., 461 U.S. at 604 (religious school could not be exempt from IRS policy that required such schools to have nondiscriminatory policies, because eradication of racial discrimination in education is a compelling government interest). The same is true here. As discussed above, and as the government points out in its brief, in passing the Women’s Health Amendment, Congress sought
7

Case: 4:12-cv-00476-CEJ Doc. #: 35 Filed: 08/15/12 Page: 8 of 14 PageID #: 302
to eradicate gender discrimination in the context of the provision of health care. See Defs.’ Mem. of Law in Supp. of Their Mot. to Dismiss the First Am. Compl. (“Def.’s Br.) at 21-23. Women of child-bearing age pay more for out-of-pocket health care than their male counterparts, in part because of the costs of contraception. As Congress recognized, women of childbearing age pay 68% more for out-of-pocket health care than men. See supra at 5. These costs are not insignificant, are a true barrier to women’s access to effective birth control, and the financial barriers are aggravated by the fact that women typically learn less than men. Id. As Congress found, ensuring women receive the same benefits as men, and equalizing the existing health care disparities between men and women, is crucial. Id.
This is particularly true where, as here, the benefit at issue is part and parcel to women’s equality in other aspects of their life. The impact of the inability to access contraception falls primarily on women. Access to contraception gives women control of their fertility, enabling them to decide whether and when to become a parent, allowing women to make educational and employment choices that benefit themselves and their families. For example, researchers have found that the availability of oral contraception has played a significant role in allowing women to attend college and choose post-graduate paths, including law, medicine, dentistry, and business administration. See Claudia Goldin & Lawrence F. Katz, The Power of the Pill: Oral Contraceptives and Women’s Career and Marriage Decisions,110 J. of Pol. Econ., 730 (2002), available at http://www.nber.org/papers/w7527. Indeed, professional degree programs saw a sharp increase in women applicants around the time that oral contraceptives became widely available in 1970. Id. The ability to enter into these and other professions because of the ability to control whether and when to have children significantly closed the wage gap between men and women. One study attributes the pill to one-third of the total wage gains for women born in the
8

Case: 4:12-cv-00476-CEJ Doc. #: 35 Filed: 08/15/12 Page: 9 of 14 PageID #: 303
mid-1940s to early 1950s. Martha J. Bailey, et al., The Opt-In Revolution? Contraception and the Gender Gap in Wages, 26 (2012), available at http://wwwpersonal.umich.edu/~baileymj/Opt_In_Revolution.pdf. Succinctly put, “[w]omen cannot participate in society, learn, earn, govern, and thrive equally without the abilty to determine whether and when to become mothers.” Cornelia T.L. Pillard, Our Other Reproductive Choices: Equality in Sex Education, Contraceptive Access, and Work-Family Policy, 56 Emory L.J. 941, 976 (2007); see also id. at 975 (recognizing the importance of accessing contraception on the ability to participate in the work force, and without “the means to control and limit reproduction, the average woman would bear twelve to fifteen children in her lifetime”). The Supreme Court has also recognized the direct relationship between women’s reproductive health decisions and their equal participation in society: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992).
The federal government is not the only one to recognize and act on these gender disparities and the importance of access to contraception to women’s equality. Indeed, 28 states have passed laws requiring employers to cover contraception. 77 Fed. Reg. at 8728. Two of those states, California and New York, faced legal challenges similar to the one at issue here. The high courts of both states rejected those challenges in part because the laws were designed to eradicate gender discrimination. See Catholic Charities of Sacramento, Inc. v. Superior Court, 85 P.3d 67, 92 (Cal. 2004) (recognizing that the statue was passed to equalize health insurance costs between men and women); Catholic Charities of Diocese of Albany v. Seri , 859 N.E.2d 459, 461, 468 (N.Y. 2006) (noting that the purpose of the statute was to advance equal treatment of women). Those courts acknowledged legislative history similar to that here: that women pay
9

Case: 4:12-cv-00476-CEJ Doc. #: 35 Filed: 08/15/12 Page: 10 of 14 PageID #: 304
as much as 68% more than men in out-of-pocket health care costs, due in part to the cost of prescription contraception. See Catholic Charities of Sacramento, Inc., 85 P.3d at 92; Catholic Charities of Diocese of Albany, 859 N.E.2d at 468. Eradicating gender discrimination and disparities in health costs is undoubtedly a compelling government interest, as recognized by the line of cases discussed above.1 See also EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) (holding that insurance plan offered only to “head of households,” namely men or single persons, violated Title VII and the Equal Pay Act, and rejecting the school’s free exercise claims because of the compelling government interest in eradicating gender discrimination).
Not only do these neutral anti-discrimination laws further a compelling government interest, but as courts have held, they also minimally – if at all – burden religion. For example, in Shenandoah, the court recognized that it would be – at most – a “limited” burden to require the school to comply with the Fair Labor Standards Act (“FLSA”) and pay their female teachers the same as men. As the court recognized, “[t]he fact that [the school] must incur increased payroll expenses to conform to FLSA requirements is not the sort of burden that is determinative in a free exercise claim.” 899 F.2d at 1398. So too here. Requiring Plaintiffs to provide their employees with a health plan that includes contraception coverage does not burden Plaintiffs’ religious exercise. The link between the contraceptive coverage requirement and the religiously prohibited behavior is simply too attenuated to amount to a substantial burden. See Defs.’ Br. at 18-20. The contraceptive coverage requirement does not require that Plaintiffs physically provide contraception to their employees nor does it require them to endorse the use of contraception. It merely requires Plaintiffs – like the employer in Shenandoah – to provide a nondiscriminatory benefit to its employees.
1 As the government discusses, the rule also furthers the compelling interest in ensuring that women have appropriate health care. Defs.’ Br. at 20-21.
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Case: 4:12-cv-00476-CEJ Doc. #: 35 Filed: 08/15/12 Page: 11 of 14 PageID #: 305

Furthermore, another line of cases makes clear that Plaintiffs’ claimed injury – an objection to contributing to a health plan that provides coverage for a health care services that they find objectionable – is not cognizable. In Goehring v. Brophy, for example, the court addressed a RFRA claim similar to Plaintiffs’ claim here. 94 F.3d 1294, 1297 (9th Cir. 1996), overruled on other grounds by City of Boerne v. P.F. Flores, 521 U.S. 507 (1997). In that case, public university students objected to a university’s requirement that they pay a registration fee on the ground that it was used to subsidize the school’s health insurance program, which covered abortion care. Id. The court rejected the plaintiffs’ RFRA and free exercise claims, reasoning that the payments did not impose a substantial burden on the plaintiffs’ religious beliefs. Id. at 1300. Moreover, in Tarsney v. O’Keefe, the Eighth Circuit affirmed the dismissal of a free exercise challenge by taxpayers who objected on religious grounds to the state’s use of their tax dollars to pay for Medicaid recipients’ medically necessary abortions. 225 F.3d 929, 932 (8th Cir. 2000). The payment of taxes that may ultimately subsidize other individuals’ Medicaid abortion coverage, the court explained, was too remote an injury even to accord standing upon the plaintiffs to assert a free exercise claim. Id. at 936; accord Erzinger v. Regents of Univ. of Cal., 137 Cal. App. 3d 389, 393 (Cal. Ct. App. 1982) (“[T]he fact [that] plaintiffs may object on religious grounds to some of the services the University provides is not a basis upon which plaintiffs can claim a constitutional right not to pay a part of the fees.”). Accordingly, just like those who have objected to paying insurance premiums for an insurance plan that others may use to access abortion care, or taxes that pay for Medicaid, which may be used to cover another’s abortion, Plaintiffs here cannot claim any cognizable injury by providing their employees with a health plan that covers contraception, which some employees may use.

*

*

*

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Case: 4:12-cv-00476-CEJ Doc. #: 35 Filed: 08/15/12 Page: 12 of 14 PageID #: 306
History has a way of repeating itself. Plaintiffs are attempting to resurrect the longdiscredited notion that religion can be used to trump anti-discrimination laws. Unfortunately, others have recently tried to do so in other contexts. For example, much like the restaurant in Piggie Park, an inn recently cited their religious objections to same sex marriage when it refused to rent a reception hall to a same-sex couple for their wedding reception in violation of a state anti-discrimination law. Baker v. Wildflower Inn, No. 183-7-11 (Vt. Super. Ct.).2 In another case, a religious school claimed that firing a teacher for asking to take maternity leave was justified by its religious beliefs that she should not have conceived a child outside of marriage. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316 (11th Cir. 2012). Each of these arguments is based on the incorrect notion that religion can be used as a license to discriminate. This Court should follow the wise words from the district court in South Carolina five decades ago, and refuse to “lend credence or support” to the position that entities have a constitutional right to refuse to comply with laws designed to eradicate discrimination. Newman, 256 F. Supp. at 945.
2 See http://www.aclu.org/lgbt-rights/baker-and-linsley-v-wildflower-inn-third-amended-complaint. 12

Case: 4:12-cv-00476-CEJ Doc. #: 35 Filed: 08/15/12 Page: 13 of 14 PageID #: 307

CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss should be granted. Respectfully submitted,

/s/ Anthony E. Rothert Anthony E. Rothert Bar No. 44827MO Grant R. Doty Bar No. 60788MO ACLU OF EASTERN MISSOURI 454 Whittier Street St. Louis, Missouri 63108 Telephone: (314) 652-3114 Facsimile: (314) 652-3112 Email: tony@aclu-em.org

Brigitte Amiri Pro hac vice pending AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Telephone: 212-549-2633 Facsimile: 212-549-2650 Email: bamiri@aclu.org

13

Case: 4:12-cv-00476-CEJ Doc. #: 35 Filed: 08/15/12 Page: 14 of 14 PageID #: 308 CERTIFICATE OF SERVICE
I hereby certify that on August 3, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system and a copy was made available electronically to all electronic filing participants.
/s/ Anthony E. Rothert
14

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

FRANK R. O’BRIEN, et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

UNITED STATES DEPARTMENT OF

)

HEALTH AND HUMAN SERVICES, et al., )

)

Defendants.

)

Case No. 4:12-CV-476 (CEJ)

MEMORANDUM AND ORDER

This matter is before the Court on defendants’ motion to dismiss plaintiffs’

amended complaint pursuant to Rules 12(b)(6) and 12(b)(1) of the Federal Rules of

Civil Procedure. Plaintiffs oppose the motion, and the issues are fully briefed.1

Plaintiffs bring this action for declaratory and injunctive relief, claiming that

regulations promulgated under the Patient Protection and Affordable Care Act (ACA)

Pub. L. No. 111-148, 124 Stat. 119 (2010), violate plaintiffs’ statutory and

constitutional rights. Specifically, plaintiffs allege violations of the First Amendment,

the Religious Freedom Restoration Act (RFRA), and the Administrative Procedure Act

(APA).2 Defendants move to dismiss the entire amended complaint for failure to state

a claim upon which relief can be granted and to dismiss the Administrative Procedure

Act claim for lack of subject matter jurisdiction.

I. Background

1The American Civil Liberties Union has submitted an amicus curiae brief in support of defendants’ motion to dismiss.
2 This suit is one of over 30 cases filed challenging the constitutionality of the ACA regulations. See The Becket Fund for Religious Liberty - HHS Mandate Information Central, http://www.becketfund.org/hhsinformationcentral/ (last visited September 24, 2012).

The plaintiffs in this case are Frank O’Brien and O’Brien Industrial Holdings, LLC
(OIH), the limited liability company in which he holds the sole voting interest and of
which he is the chairman and managing member. OIH is a secular, for-profit company
in St. Louis, Missouri, that is engaged in the business of mining, processing, and
distributing refractory and ceramic materials and products. Frank O’Brien is Catholic and tries to manage and operate OIH in a manner consistent with his religion.3
Defendants are the U.S. Department of Health and Human Services (HHS),
Kathleen Sebelius in her official capacity as Secretary of HHS, the U.S. Department of
Treasury, Timothy F. Geithner in his official capacity as Secretary of the Treasury, the
U.S. Department of Labor (DOL), and Hilda L. Solis in her official capacity as Secretary
of the DOL. Collectively, defendants are the departments and officials responsible for
adopting, administering, and enforcing the regulations to which plaintiffs object.
The ACA contains a preventive services coverage provision which provides:
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. 42 U.S.C. § 300gg-13 (a).4 The Health Resources and Services Administration
3 In OIH’s main lobby is a statue of the Sacred Heart of Jesus. OIH’s mission, as it appears on the company website, is “to make our labor a pleasing offering to the Lord....” OIH’s statement of values includes references to the Golden Rule and the Ten Commandments, and OIH’s “Explanation of Mission & Values” includes a direct quotation from the New Testament. Finally, OIH and its subsidiaries “pledge to tithe on the earnings of the Companies.” Am. Compl. ¶¶ 20-23, [Doc. #19].
4 This provision was added as the “Women’s Health Amendment” to the ACA during the legislative process.
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(HRSA), an agency within HHS, commissioned the Institute of Medicine (IOM) to

conduct a study on preventive services necessary to women’s health. The IOM, in a

report entitled “Clinical Preventive Services for Women: Closing the Gaps,” issued

recommendations that HRSA adopted on August 1, 2011. The HRSA guidelines include

“[a]ll Food and Drug Administration approved contraceptive methods, sterilization

procedures, and patient education and counseling for all women with reproductive

capacity.” Women’s Preventive Services: Required Health Plan Coverage Guidelines,

HEALTH RESOURCES AND SERVICES ADMINISTRATION, http://www.hrsa.gov/womensguidelines/

(last visited Sep. 18, 2012). Among the FDA-approved contraceptive methods are

diaphragms, oral contraceptive pills, emergency contraceptives, and intrauterine

devices.

Birth Control Guide, FDA OFFICE OF WOMEN’S HEALTH,

www.fda.gov/downloads/ForConsumers/ByAudience/ForWomen/

FreePublications/UCM282014.pdf (last updated Aug. 2012).

HHS, the Department of Labor, and the Department of Treasury published rules

finalizing the HRSA guidelines on February 15, 2012. 77 Fed. Reg. 8725, 8726.5

Employers must provide group health plans with coverage conforming with the

guidelines for plan years beginning on August 1, 2012. 75 Fed. Reg. 41726, 41729.

Several exemptions and safe-harbor provisions excuse certain employers from

providing group health plans that cover women’s preventive services as defined by

HHS regulations. First, religious employers are exempt from providing plans covering

contraceptive services. Religious employers are defined as employers meeting all of

the following criteria:

5 This regulation is referred to by plaintiffs as “the Mandate” or “the Final Rule.” Am. Compl. ¶ 2, [Doc. #19], and by defendants as “the preventive services coverage regulations.”
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(1) The inculcation of religious values is the purpose of the organization; (2) The organization primarily employs persons who share the religious tenets of the organization;(3) The organization serves primarily persons who share the religious tenets of the organization; (4) The organization is a nonprofit organization as described in [provisions of the Internal Revenue Code referring to churches, associations of churches, and exclusively religious activities of religious orders]. 45 C.F.R. §147.130(a)(1)(iv)(B); 76 Fed. Reg. 46621-01, 46623 (Aug. 3, 2011). Second, “grandfathered” health plans (plans in which individuals were enrolled on March 23, 2010, the date the ACA was enacted) are not subject to the preventive services provision of the ACA. 75 Fed. Reg. 34538-01 (June 17, 2010). Third, a temporary enforcement safe-harbor provision applies to certain non-profit organizations not qualifying for any other exemption. The safe-harbor provision ensures that no department will take enforcement action against non-profit employers and their group health plans that “on or after February 10, 2012 do not provide some or all of the contraceptive coverage otherwise required, consistent with any applicable State law, because of the religious beliefs of the organization.” 77 Fed. Reg. 16501, 16502 (March 21, 2012); 77 Fed. Reg. 8725 (Feb. 15, 2012). The safe-harbor “is in effect until the first plan year that begins on or after August 1, 2013.” 77 Fed. Reg. 16501, 16503 (March 21, 2012).6 Finally, employers with fewer than 50 employees need not provide employees with any health insurance plan. 26 U.S.C. §4980(H)(c)(2)(A) (defining a large employer subject to fines for failing to provide a plan to employees as “an employer who employed an average of at least 50 full-time employees on business days during the preceding calendar year.”)
6 The departments have issued an advanced notice of proposed rulemaking (ANPRM), stating that during the safe-harbor, the departments will consider amending the definition of “religious employer.” 77 Fed. Reg. 16501, 16504 (March 21, 2012).
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Plaintiffs do not qualify for any of these exemptions.7 As a secular, for-profit employer, OIH does not satisfy the definition of “religious employer,” and is ineligible for the protection of the temporary enforcement safe-harbor. The grandfathered plans provision also does not assist OIH, because the current group health insurance policy OIH provides to its employees covers contraceptives. “When OIH switched from a selfinsured plan to a fully-insured plan several years ago, coverage of contraceptive services was inadvertently included contrary to the company’s longstanding practice and intentions, as well as the actual coverage request and without OIH’s knowledge.” Am. Compl. ¶ 28 [Doc. #19]. Finally, OIH employs 87 individuals; therefore, if plaintiffs do not provide employees with any group health insurance plan, plaintiffs will be subject to fines. Likewise, fines may be imposed if plaintiffs provide a group plan, but the plan excludes coverage for contraceptives and other women’s preventive care.8
The OIH health plan is due for renewal on January 1, 2013. Plaintiffs state they face a choice between “complying with [the ACA’s] requirements in violation of their religious beliefs, or paying ruinous fines that would have a crippling impact on their ability to survive economically.” Am. Compl. ¶36 [Doc. #19]. The regulations creating this choice, plaintiffs argue, violate their rights under RFRA and the First Amendment to the United States Constitution and run afoul of the APA. Before the Court is defendants’ motion to dismiss plaintiffs’ claims pursuant to the Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). Plaintiffs have also moved for a preliminary
7 This distinguishes the current case from other similar cases against HHS that have been dismissed for lack of Article III standing or ripeness. See, e.g., Wheaton College v. Sebelius, Civ. A. 12-1169 ESH, 2012 WL 3637162 (D.D.C. August 24, 2012); State of Nebraska v. HHS, 4:12cv3035, 2012 WL 2913402 (D. Neb. July 17, 2012).
8 Employers failing to meet the group health plan requirements will face a $100/per day tax for every employee. 26 U.S.C. §4980(D). Employers failing to provide any group health plan face annual fines of $2000 for every employee. Id. at (H)
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injunction, to prevent defendants from enforcing the challenged regulations against plaintiffs as they select a new employee health plan before January 1, 2013. [Doc. #38].
II. Legal Standard The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test the legal sufficiency of the complaint. The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, “even if it strikes a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) citing Swierkiewicz v. Sorema N.A., 534 U.S.506, 508 n.1 (2002); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (a wellpleaded complaint may proceed even if it appears “that a recovery is very remote and unlikely”). The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of his claim. Id. A viable complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp., 127 S. Ct. at 1974; See also id. at 1969 (“no set of facts” language in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), “has earned its retirement.”). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965. Dismissal under Rule 12(b)(1) of the Federal Rules of Civil Procedure is appropriate if the plaintiff has failed to satisfy a threshold jurisdictional requirement. See Trimble v. Asarco, Inc., 232 F.3d 946, 955 n.9 (8th Cir. 2000). A dismissal for
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lack of subject matter jurisdiction requires that the complaint be successfully challenged on its face or on the factual truthfulness of its averments. Titus v. Sullivan,4 F.3d 590, 593 (8th Cir. 1993). In a facial attack, the court restricts itself to the face of the pleadings, and all of the factual allegations concerning jurisdiction are presumed to be true. Id. However, in a factual challenge, the court considers matters outside of the pleadings, and no presumptive truthfulness attaches to the plaintiff’s allegations. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). Furthermore, the existence of disputed material facts does not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Id. at 729. “Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction – its very power to hear the case – there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id. The burden of proving that jurisdiction exists rests with the plaintiff. Id.
III. Discussion A. The Religious Freedom Restoration Act The Religious Freedom Restoration Act (RFRA) forbids government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §2000bb-1(a), (b). RFRA was enacted by Congress in response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 879 (1990) (holding that, under the First Amendment, “the right of free exercise does not relieve an individual of the obligation to comply with a valid
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and neutral law of general applicability”) (internal quotations omitted). Congress intended RFRA “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. §2000bb(b)(1).
In order to state a prima facie case under RFRA, plaintiffs must allege a substantial burden on their religious exercise. RFRA defines the “exercise of religion” broadly as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §2000bb-2(4); 42 U.S.C. §2000cc-5. In the instant case, the Court does not doubt the sincerity of plaintiffs’ beliefs, nor does the Court question the centrality of plaintiffs’ condemnation of contraception to their exercise of the Catholic religion. Indeed, as plaintiffs note, “[j]udging the centrality of different religious practices is akin to the unacceptable business of evaluating the relative merits of differing religious claims.” Employment Div. v. Smith, 494 U.S. at 886 (quoting United States v. Lee, 455 U.S. 252, 263 (1982) (internal quotations omitted)).
Defendants assert that OIH, as a secular limited liability company, by definition cannot “exercise” a religion, and therefore cannot assert claims under RFRA or the First Amendment Free Exercise Clause. A district court in Colorado, currently considering another case in which a secular, for-profit corporation and its managers bring First Amendment and RFRA challenges to the coverage regulations, accurately noted that, “[t]hese arguments pose difficult questions of first impression. Can a corporation exercise religion?” Newland v. Sebelius, 1:12-cv-1123, 2012 WL 3069154, at *6 (D.
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Co. July 27, 2012) (granting plaintiffs’ motion for preliminary injunction, and enjoining the enforcement of the preventive services coverage regulations against plaintiffs).
Plaintiffs in this case argue that the Court should presume corporations are included within the word “person” in RFRA, and that it would be unreasonable to conclude that secular corporations cannot exercise religion after the Supreme Court’s application of the First Amendment Free Speech Clause to corporations in Citizens United v. Fed. Election Com’n, 558 U.S. 310 (2010). According to plaintiffs, there is no principled reason to apply one clause of the First Amendment to corporations but not another. Because this Court finds that the preventive services coverage regulations do not impose a “substantial burden” on either Frank O’Brien or OIH, and do not violate either plaintiffs’ rights under the Free Exercise Clause, this Court declines to reach the question of whether a secular limited liability company is capable of exercising a religion within the meaning of RFRA or the First Amendment.
Assuming, arguendo, that OIH can exercise a religion within the meaning of RFRA, the burden on that exercise is too attenuated to state a claim for relief. The term “substantial burden” is not defined by RFRA or the Religious Land Use and Institutionalized Persons Act (RLUIPA), which adopted RFRA’s same “substantial burden” test. 42 U.S.C. §§ 2000cc et seq. However, the plain meaning of “substantial” suggests that the burden on religious exercise must be more than insignificant or remote, and case law confirms this common-sense conclusion. E.g., Midrash Shephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (“a substantial burden must place more than an inconvenience on religious exercise; a substantial burden is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.”)
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Courts frequently look to free exercise cases predating Employment Div. v. Smith to determine which burdens cross the threshold of substantiality. See, e.g., Goodall by Goodall v. Stafford Cnty. School Bd., 60 F.3d 168, 171 (4th Cir. 1995) (“since RFRA does not purport to create a new substantial burden test, we may look to pre-RFRA cases in order to assess the burden on the plaintiffs for their RFRA claim.”) See also Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 736 (6th Cir. 2007) (“Congress has cautioned that we are to interpret ‘substantial burden’ in line with the Supreme Court’s ‘Free Exercise’ jurisprudence, which suggests that a ‘substantial burden’ is a difficult threshold to cross.”) Laws substantially burdening the exercise of religion often discourage free exercise by exacting a price for religious practice: plaintiff must forfeit a benefit, pay a fine, or even face criminal prosecution.
Especially relevant are Sherbert v. Verner and Yoder v. Wisconsin, the cases presenting the test that RFRA was intended to restore. In Sherbert v. Verner, plaintiff’s religious exercise was impermissibly burdened when plaintiff was forced to “choose between following the precepts of her religion [by resting, and not working, on her Sabbath] and forfeiting [unemployment] benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” 374 U.S. at 404. Similarly, in Wisconsin v. Yoder, members of the Amish religion were forced to select between educating their children as their religion demanded and facing criminal prosecution, or sending their children to school in contravention of their religious beliefs. 406 U.S. at 218. (“The impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under
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threat of criminal sanction to perform acts undeniably at odds with the fundamental tenets of their religious beliefs.”) More recently, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 426 (2006), the government conceded that the Controlled Substances Act imposed a substantial burden on the religious exercise when the Act prevented a religious sect from engaging in their traditional communion using a hallucinogenic tea.
Plaintiffs allege that the preventive services coverage regulations impose a similar ultimatum, and therefore substantially burden their free exercise of religion “by coercing Plaintiffs to choose between conducting their business in accordance with their religious beliefs or paying substantial penalties to the government.” Am. Compl. ¶ 40 [Doc. #19]. However, the challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.
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RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.
Indeed, if the financial support of which plaintiffs complain was in fact substantially burdensome, secular companies owned by individuals objecting on religious grounds to all modern medical care could no longer be required to provide health care to employees. A district court has already rejected a RFRA challenge to the individual mandate of the ACA as applied to plaintiffs whose religion forbids seeking medical care. “[T]he conflict between the [ACA’s] requirements and Plaintiffs’ Christian faith does not rise to the level of a substantial burden... Plaintiffs have failed to allege any facts demonstrating that this conflict is more than a de minimis burden on their Christian faith.... Finally... Plaintiffs routinely contribute to other forms of insurance, such as Medicare, Social Security, and unemployment taxes, which present the same conflict with their belief that God will provide for their medical and financial needs.” Mead v. Holder, 766 F.Supp.2d 16, 42 (D.D.C. 2011).
Just as in Mead, plaintiffs must contribute to a health care plan which does not align with their religious beliefs. In this case, however, the burden on plaintiffs is even more remote; the health care plan will offend plaintiffs’ religious beliefs only if an OIH employee (or covered family member) makes an independent decision to use the plan to cover counseling related to or the purchase of contraceptives. Already, OIH and
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Frank O’Brien pay salaries to their employees---money the employees may use to purchase contraceptives or to contribute to a religious organization. By comparison, the contribution to a health care plan has no more than a de minimus impact on the plaintiff’s religious beliefs than paying salaries and other benefits to employees.
Under plaintiffs’ interpretation of RFRA, a law substantially burdens one’s religion whenever it requires an outlay of funds that might eventually be used by a third party in a manner inconsistent with one’s religious values. This is at most a de minimus burden on religious practice. The challenged regulations are several degrees removed from imposing a substantial burden on OIH, and one further degree removed from imposing a substantial burden on OIH’s owner and manager, Frank O’Brien. Because there is no substantial burden imposed on either plaintiff’s religious exercise, plaintiffs have failed to state a claim under RFRA. Count I of the Amended Complaint will be dismissed.
B. The Free Exercise Clause of the First Amendment The Free Exercise clause of the First Amendment states, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” Under the Free Exercise Clause, an individual’s freedom of religious belief is absolute, but freedom of conduct is not. E.g., Bowen v. Roy, 476 U.S. 693, 699 (1986). A neutral law of general applicability that incidentally burdens religious exercise need only satisfy rational basis review, not strict scrutiny. Employment Div. v. Smith, 494 U.S. 872 (1990). Because the challenged regulations are both neutral and generally applicable, the Court again will not address the question of whether OIH, a secular limited liability company, can claim free exercise rights under the First Amendment.
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“Neutrality and general applicability are interrelated...” Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 532 (1993), and a deficiency in one prong suggests a deficiency in the other. A law is not neutral “if the object of the law is to infringe upon or restrict practices because of their religious motivation.” Id. at 533. An impermissible object may be discerned through the law’s text, legislative history, and the actual effect of the law in operation. Id. at 533, 535, 540. A law is not generally applicable if it “in a selective manner impose[s] burdens only on conduct motivated by religious belief.” Id. at 543.
In this case, the Court finds that the preventive services coverage regulations are neutral. The regulations were passed, not with the object of interfering with religious practices, but instead to improve women’s access to health care and lessen the disparity between men’s and women’s healthcare costs. This is evident from both the inclusion of the religious employer exemption, as well as the legislative history of the ACA’s Women’s Health Amendment. See, e.g., 2009 WL 4405642; 155 Cong. Rec. S12265, S12271 (daily ed. Dec. 3, 2009) (statement of Sen. Franken) (“The problem [with the current bill] is, several crucial women’s health services are omitted. [The Women’s Health Amendment] closes this gap.”) See also 2009 WL 4280093; 155 Cong. Rec. S12021-02, S12027 (daily ed. Dec. 1, 2009) (statement of Sen. Gillibrand) (“... in general women of childbearing age spend 68 percent more in out-of-pocket health care costs than men... This fundamental inequity in the current system is dangerous and discriminatory and we must act.”)
Plaintiffs argue that, because many employers already provide coverage for women’s preventive services, the law must have been purposefully targeted at religious objectors. However, a neutral and perfectly constitutional law may have a
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disproportionate impact upon religiously inspired behavior. For example, a law requiring pharmacists to fill contraceptive prescriptions may be neutral although it primarily impacts pharmacists refusing to provide the contraceptives for religious reasons. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1131 (9th Cir. 2009). “The Free Exercise Clause is not violated even though a group motivated by religious reasons may be more likely to engage in the proscribed conduct.” Id. See also American Life League, Inc. v. Reno, 47 F.3d 642, 654 (4th Cir. 1995) (upholding the Freedom of Access to Clinic Entrances Act against a Free Exercise Clause challenge, despite a disparate impact on religious opponents of abortion; the Act “punishes conduct for the harm it causes, not because the conduct is religiously motivated. By necessity, then, the Act does not punish religious belief.”)
Also, contrary to plaintiffs’ assertion, the religious employer exemption does not compromise the neutrality of the regulations by favoring certain religious employers over others. Rather, as explained above, the religious employer exemption presents a strong argument in favor of neutrality, demonstrating that the “object of the law” was not “to infringe upon or restrict practices because of their religious motivation.” Lukumi, 508 U.S. at 533. In Catholic Charities of Diocese of Albany v. Serio, 7 N.Y. 3d 510 (2006), cert. denied, 552 U.S. 816 (2007), which involved a Free Exercise Clause challenge to a state law requiring employers to provide health care covering contraceptives, the New York Court of Appeals wrote:
The neutral purpose of the challenged portions of the [health care law] to make contraceptive coverage broadly available to New York women is not altered because the Legislature chose to exempt some religious institutions and not others. To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions - and thus to restrict, rather than promote, freedom of religion.
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Id. 7 N.Y. 3d at 522. Additionally, the regulations are generally applicable, as they do not “in a
selective manner impose burdens only on conduct motivated by religious belief.” Lukumi, 508 U.S. at 543. The exemptions, for grandfathered plans, religious employers, and non-profits under the safe-harbor do not undermine the general applicability of the regulations within the meaning of Free Exercise Clause jurisprudence. “General applicability does not mean absolute universality.” Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008). In Olsen, the Eighth Circuit held that the Controlled Substances Act was generally applicable despite exemptions for alcohol, tobacco, certain medical uses of marijuana, and sacramental use of peyote. Id. Instead, exemptions undermining “general applicability” are those tending to suggest disfavor of religion. For example, the ordinance regulating animal slaughter in Lukumi was not generally applicable because it applied only to animal sacrifice and not to hunting, or other secular practices in which the alleged concerns of animal cruelty and public health applied in equal force. 508 U.S. at 542-46. “The ordinances ha[ve] every appearance of a prohibition that society is prepared to impose upon [Santeria worshipers] but not upon itself. This precise evil is what the requirement of general applicability is designed to prevent.” Id. at 545-46. The regulations in this case apply to all employers not falling under an exemption, regardless of those employers’ personal religious inclinations.9
9 Furthermore, the system of exemptions which exists under the ACA is categorical, and not individualized, so plaintiffs cannot claim a Free Exercise Clause violation under the unemployment insurance benefits cases. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707 (1981); Hobbie v. Unemployment Appeals Comm’n of Florida, 480 U.S. 136 (1987); Sherbert v. Verner, 374 U.S. 398 (1963).
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For the reasons discussed above, the Court concludes that the regulations at issue in this case are neutral and generally applicable, and do not offend the First Amendment’s Free Exercise Clause. Therefore, Count II of the Amended Complaint will be dismissed for failure to state a claim.
C. The Establishment Clause of the First Amendment The “clearest command of the Establishment Clause” is that the government must not treat any religious denomination with preference over others. Larson v. Valente, 456 U.S. 228, 244 (1982). See also Gillette v. United States, 401 U.S. 437, 449 (1971) (“... perhaps the central purpose of the Establishment Clause [is] the purpose of ensuring governmental neutrality in matters of religion.”) The Establishment Clause also guards against “excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 613 (1971) (quoting Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 674 (1970)). Plaintiffs claim that the preventive services coverage regulations, in conjunction with the religious employer exemption, create both an impermissible government preference in favor of organized religion over less formal manifestations of religious practice and excessive entanglement as the government evaluates religious beliefs to determine whether an organization qualifies for the exemption. 1. Government Neutrality The religious employer exemption does not differentiate between religions, but applies equally to all denominations. If the employer’s purpose is to inculcate religious values, the employer primarily employs and serves persons sharing those values, and is a nonprofit religious organization as defined in certain provisions of the Internal
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Revenue Code, then that employer is eligible for the exemption, regardless of denomination. 45 C.F.R. §147.130(a)(1)(iv)(B).
Yet, plaintiffs claim that the government has departed from the neutrality the Establishment Clause requires. First, plaintiffs believe the religious employer exemption embodies the government’s “theological position” that “religious organizations that emphasize religious education of members of their own faith are more truly religious, and deserving of an exemption, than faith-based organizations that pursue any other religious mission.” Pls.’ Memo. Opp. Defs.’ Mot. Dismiss, at 32 [Doc. #31]. Second, plaintiffs suggest that, because the exemption applies to organizations primarily employing persons sharing the same faith, certain denominations, such as Old Order Amish and Orthodox Jewish groups, will benefit from the exemption more than others. Id. at 31-32, n. 19 [Doc. #31].
Plaintiffs’ first argument fails, because while the Establishment Clause prohibits denominational preferences, it does not prohibit the government from distinguishing between religious organizations based upon structure and purpose when granting religious accommodations. See Walz, 397 US 664 (1970) (rejecting an Establishment Clause challenge to New York’s property tax exemption for property of religious organizations used solely for religious worship). See also Droz v. Comm’r of IRS, 48 F.3d 1120, 1124 (9th Cir. 1995) (upholding a Social Security tax exemption for only members of organized religious sects, because the exemption’s purpose was not to discriminate among religious denominations.) Plaintiffs’ reliance on Larson v. Valente, 456 U.S. 228 (1982), is misplaced. In Larson, the Supreme Court struck down a statute that exempted from income-reporting requirements only those religious organizations that received more than half of their total contributions from members.
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Although neutral on its face, the Court found that the law effectively distinguished between “well-established churches” and “churches which are new and lacking in a constituency, or which, as a matter of policy, may favor public solicitation over general reliance of financial support from members.” 456 U.S. at 247, n.23 [quoting Valente v. Larson, 637 F.2d 562, 566 (8th Cir. 1981)]. This was constitutionally problematic, not because the law discriminated between religious organizations based upon their structure, but because the law had both the purpose and the effect of discriminating against certain denominations. “This statute does not operate evenhandedly, nor [as its legislative history reveals] was it designed to do so: The fifty percent rule... effects the selective legislative imposition of burdens and advantages upon particular denominations.” Id. at 253-54. The exemption in this case, unlike the exemption in Larson, was not designed as a “religious gerrymander,” but as a permissible religious accommodation.
The religious employer exemption in the ACA is one of a number of instances of government accommodation of religion.10 As the Supreme Court has frequently articulated, there is space between the religion clauses, in which there is “room for play in the joints;” government may encourage the free exercise of religion by granting religious accommodations, even if not required by the Free Exercise Clause, without running afoul of the Establishment Clause. See, e.g., Walz, 397 U.S. at 669; Locke v. Davey, 540 U.S. 712, 718-19 (2004); Cutter v. Wilkinson, 544 U.S. 709, 713-14 (2005). Accommodations of religion are possible because the legislative line-drawing to which the plaintiffs object, between the religious and the secular, is constitutionally
10 Just last term, the Supreme Court recognized the existence of the “ministerial exception,” barring “ministers’” Title VII suits against their religious employers. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012).
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permissible. The religious employer exemption, by necessity, distinguishes between religious and secular employers, and HHS has selected a logical bright line between the two. Surely many secular employers, like OIH, follow the “Golden Rule,” contribute to charities, or consider their secular labors to be pleasing to a higher power. If the Constitution required Congress to provide exemptions for such employers whenever an exemption was also allowed for churches organized specifically for the purpose of promoting a religion, the accommodation would swallow the rule.
The highest state courts of New York and California have addressed arguments similar to the plaintiffs’ when rejecting Establishment Clause challenges to their respective state health care laws, and the reasoning of those courts is instructive:
Plaintiffs’ theory 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. But... legislative accommodation to religious believers is a long-standing practice completely consistent with First Amendment principles. A legislative decision not to extend an accommodation to all kinds of religious organizations does not violate the Establishment Clause. Catholic Charities of Diocese of Albany v. Serio, 7 N.Y. 3d at 529 (2006). Similarly, the California Supreme Court explained, “Such legislative accommodations would be impossible as a practical matter if the government were, as the Catholic Charities argues, forbidden to distinguish between the religious entities and activities that are entitled to accommodation and the secular entities and activities that are not.” Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal.4th 527 (2004), cert. denied, 543 U.S. 816 (2004). This Court agrees, and therefore rejects plaintiffs’ primary argument, that the government adopts a “theological position” when granting an exemption to religious employers but not to secular employers maintaining religious values like OIH.
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Plaintiff also suggests that certain denominations, such as Old Order Amish and Orthodox Jewish groups, may incidentally benefit from the exemption more frequently than other denominations. Even if this were true, it does not alter the fact that the exemption does not purposefully discriminate between religious sects. In Gillette, the Supreme Court rejected the argument that a conscientious objector statute, allowing for religious objections to war in general but not to particular wars, violated the Establishment Clause because it disproportionately excluded objectors from certain sects that did not condemn all war, but distinguished between just and unjust wars. 401 U.S. at 452-54. That religious exemption, like this one, had “nothing to do with a design to foster or favor any sect, religion, or cluster of religions.” Id. at 452.
2. Excessive Entanglement When analyzing a law for entanglement, “the questions are whether the [government] involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement.” In this case, there can be no entanglement as applied to these particular plaintiffs, since neither satisfies the non-profit criteria required for religious employer status. Thus, the government would not reach an assessment of whether O’Brien and OIH’s purpose is to inculcate religious values, and whether they primarily employ and serve persons sharing those values. Still, such an assessment would not rise to the level of impermissible entanglement, and is relatively unintrusive compared to many government inquiries into religious practices upheld by the Supreme Court. See, e.g., Bowen v. Kendrick, 487 US 589 (finding no excessive entanglement when government monitored religious organizations’ use of federal grants); Roemer v. Bd. of Pub. Works of Maryland, 426 US 736 (holding no excessive entanglement resulted
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from state’s annual audit of teaching materials in religious colleges, to ensure state grants were not used for “sectarian purposes”); Agostini v. Felton, 521 US 203 (1997) (concluding that unannounced monthly visits to religious schools to monitor content taught by public employees in those schools did not amount to excessive entanglement). In these cases, distinguishing the secular from the religious was not excessively entangling, nor is distinguishing secular employers from religious employers under the ACA’s religious employer exemption.
The plaintiffs have failed to state a claim under the Establishment Clause, because the religious employer exemption is a neutral religious accommodation for all denominations, and does not excessively entangle government and religion. Thus, Count III of the Amended Complaint will be dismissed.
D. The Free Speech Clause of the First Amendment The Supreme Court has long recognized that the First Amendment protects both the freedom to speak and the freedom from compelled speech. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (holding a statute requiring recitation of the pledge of allegiance unconstitutional). Free speech also encompasses the right to donate funds to support the speech of others, Buckley v. Valeo, 424 U.S. 1 (1976), or to refuse financial support to causes with which one disagrees. United States v. United Foods, Inc., 533 U.S. 405 (2001) (holding unconstitutional a statute requiring mushroom producers to contribute towards advertisements promoting mushroom sales).
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It is clear that the preventive services coverage regulations do not require plaintiffs to speak, in a literal sense. Plaintiffs remain free to express their views and to discourage their employees from using contraception. However, plaintiffs argue that the regulations require plaintiffs to subsidize other private individuals’ speech and to subsidize “conduct [that] is inherently expressive.” Pls.’ Memo. at 36 [Doc. #31]. Plaintiffs encourage the Court to apply the strict scrutiny review that the Supreme Court has used “in cases involving expression by groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity.” United Foods, 533 U.S. at 412; Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234 (1977) (declaring agency shop agreements unconstitutional when they require workers to subsidize unions’ spending “to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative”); Keller v. State Bar of California, 496 U.S. 1, 5 (1990) (finding mandatory bar association dues unconstitutional when, using those dues, the bar association “lobbied the Legislature and other government agencies, filed amicus curiae briefs in pending cases, held an annual conference of delegates at which issues of current interest are debated and resolutions approved, and engaged in a variety of education programs.”)
There is an important distinction between the instant case and the Supreme Court’s compelled speech subsidy cases: plaintiffs in this case are not subsidizing speech. The plaintiffs’ contribution to their employees’ receipt of health care benefits (as required by the regulations) is conduct, not speech. It is true that the receipt of health care benefits often includes a conversation between a doctor and a patient, and the preventive services coverage regulations encompass “patient education and
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counseling for all women with reproductive capacity.” Women’s Preventive Services: Required Health Plan Coverage Guidelines, HEALTH RESOURCES AND SERVICES ADMINISTRATION, http://www.hrsa.gov/womensguidelines/ (last visited Sep. 18, 2012). However, this speech is merely incidental to the conduct of receiving health care. See, Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 62 (2006) (finding compelled speech incidental to the conduct regulated by the Solomon Amendment; reasoning that “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.”)
Also, unlike the unconstitutional speech subsidies in United Foods, Abood, and Keller, the regulations here do not require funding of one defined viewpoint. “First Amendment values are at serious risk if the government can compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side it favors...” United Foods, 533 U.S. at 411 (italics added). In this case, the speech subsidized is an unscripted conversation between a doctor and a patient, not political propaganda in favor of one candidate, an amicus brief espousing one side of an issue, or advertisements in favor of a particular product. As the defendants correctly point out, adoption of plaintiffs’ theory would mean that an employer’s disagreement with the subject of a discussion between an employee and her physician would be a basis for precluding all government efforts to regulate health coverage.
Finally, the Court rejects the argument that “to the extent Plaintiffs are being compelled to fund conduct, that conduct is inherently expressive” Pls.’ Mot. at 36 [Doc. #31]. Conduct is inherently expressive when “[a]n intent to convey a particularized
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message was present, and... the likelihood was great that the message would be understood by those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. State of Washington, 418 U.S. 405, 410-11 (1974)). Neither the doctor’s conduct in prescribing nor the patient’s conduct in receiving contraceptives is inherently expressive. Giving or receiving health care is not a statement in the same sense as wearing a black armband (see Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)) or burning an American flag (see Texas v. Johnson).
Here, the government has not compelled plaintiffs to speak, to subsidize speech, or to subsidize expressive conduct. Because plaintiffs have failed to state a claim under the Free Speech Clause of the First Amendment, Count IV of the Amended Complaint will be dismissed.
E. Administrative Procedure Act Finally, plaintiffs claim that defendants violated the Administrative Procedure Act (APA), 5 U.S.C. 706(2)(A), by promulgating regulations contrary to existing law, and by arbitrary and capriciously failing to consider the impact of those regulations on secular, for-profit employers such as O’Brien and OIH. 5 U.S.C. 706(2)(A) (the “reviewing court shall hold unlawful and set aside agency action, findings, and conclusions founds to be arbitrary capricious, an abuse of discretion, or otherwise not in accordance with law.”) Plaintiffs argue that the preventive services coverage regulations conflict with RFRA, the First Amendment,11 and a provision of the Affordable Care Act, stating that “nothing in this title... shall be construed to require a qualified health plan to provide coverage of [abortion] services... as part of its essential health
11 Because the Court has found plaintiffs failed to state a claim under RFRA and the First Amendment, the Court will not address these arguments again.
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benefits for any plan year.” 42 U.S.C. §18023(b)(1)(A)(i). Defendants argue that plaintiffs lack prudential standing to bring suit under the APA, and therefore their claims should be dismissed for lack of jurisdiction. In the alternative, defendants maintain that plaintiffs have misconstrued the phrase “abortion services,” and thus the regulations are in accordance with existing law, and are neither arbitrary nor capricious.
1. Prudential Standing and the Zone of Interests The APA grants standing to persons “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. In addition to Article III standing, plaintiffs must also satisfy the requirements of prudential standing. As initially articulated by the Supreme Court, a plaintiff satisfies prudential standing if the plaintiff is “arguably within the zone of interests to be protected or regulated by the statute” that he says was violated. Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970). Subsequent cases reveal that this standard is not particularly stringent. Instead, “we have always conspicuously included the word ‘arguably’ in the test to indicate that the benefit of any doubt goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band of Pottowatomi Indians v. Patchak, 132 S.Ct. 2199, 2210 (2012). In Clarke v. Securities Industry Ass’n, 479 U.S. 388 (1987), the Supreme Court emphasized the expansive nature of the “zone of interests” when challenging administrative action. “In cases where the plaintiff is not itself the subject of the contested regulatory action the [zone of interest] test denies a right of review if the plaintiff’s interests are so marginally related or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The test is not
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meant to be especially demanding; in particular there need be no indication of congressional purpose to benefit the would-be plaintiff.” Id. at 399-400. See also DeLoss v. Dep’t of Housing and Urban Dev., 822 F.2d 1460, 1463 (8th Cir. 1987) (“The test is satisfied if a plaintiff’s asserted interest has a ‘plausible relationship’ to a general policy implicit in a relevant statute.”)
As explained above, plaintiffs wish to proceed on the merits of two separate APA claims: first, that the regulations violate a separate provision of the ACA, and second, that the regulations are arbitrary and capricious. In this case, plaintiffs have prudential standing under the APA to challenge the HHS regulations as arbitrary and capricious. Plaintiffs’ selection of health care plans for their employees will be altered by the ACA, and the ACA imposes penalties on non-complying employers. However, plaintiffs lack prudential standing to claim that the regulations conflict with an existing provision of the ACA, 42 U.S.C. §18023(b)(1)(A)(i) (as quoted above). Plaintiffs are not within the zone of interests protected under that provision, since it applies only to qualified health care plans available through Exchanges.12 42 U.S.C. §18021(a)(1)(A) (defining the term “qualified health plan”). Exchanges will not begin until 2014, 42 U.S.C. §18031(b), and even then qualified health plans will only be available to individuals and small employers (potentially excluding OIH) until 2017. 42 U.S.C. §18032(f)(2).
2. Arbitrary and Capricious
12 Exchanges are forums through which individuals and small businesses will be able to compare and purchase qualified health insurance plans. Affordable Insurance Exchanges, http://www.healthcare.gov/law/features/choices/exchanges/index.html (last visited September 28, 2012). Exchanges will operate via toll-free telephone hotlines and internet websites, providing standardized information about qualified plans, and tools to help consumers calculate the costs and benefits of each plan. See 42 U.S.C. §18031(d)(4) (describing the functions of Exchanges).
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Plaintiffs allege that the defendants arbitrarily and capriciously ignored the impact of the regulations upon secular, for-profit employers maintaining religious values. Review under the “arbitrary and capricious” standard is akin to rationality review:
an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). See also Cent. S.D. Co-op, Grazing Dist. v. Sec’y of Dep’t of Agric., 266 F.3d 889, 898 (8th Cir. 2001) (“When an agency has considered relevant evidence and arrived at a rational result, a party’s mere dissatisfaction with the agency’s decision does not entitle it to relief.”) Contrary to plaintiffs’ assertions, defendants considered all religious objections to the regulations and arrived at a solution “intended to reasonably balance the extension of any coverage of contraceptive services... to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.” 76 Fed. Reg. 46621, 46623 (August 3, 2011). The temporary enforcement safe-harbor demonstrates that defendants considered and accommodated religious objections from organizations falling outside the definition of “religious employer.” Finally, as explained in the departments’ advanced notice of proposed rulemaking (ANPRM), during the temporary safe-harbor “the Departments seek comment on which religious organizations should be eligible for the accommodation and whether, as some religious stakeholders have suggested, for-
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profit religious employers with such objects should be considered as well.” 77 Fed. Reg. 16501, 16504 (March 21, 2012).
The challenged regulations are neither arbitrary nor capricious, and therefore Count V of plaintiffs’ Amended Complaint will be dismissed.
****** For the reasons set forth above, IT IS HEREBY ORDERED that the defendants’ motion to dismiss all counts of plaintiffs’ Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) is granted. An Order of Dismissal will be filed separately.
___________________________ CAROL E. JACKSON UNITED STATES DISTRICT JUDGE Dated this 28th day of September, 2012.
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 UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

ORAL ARGUMENT ACCESS

Appeal No. 12-3357 Frank O'Brien, Jr., et al v. Department of HHS, et al

Date:

October 24, 2013

Oral arguments are available in MP3 format. If the case is argued in St. Louis or St. Paul, recordings of the arguments will be available within 1-2 hours after the case has been argued before the Eighth Circuit. If the case is argued at a location other than St. Louis or St. Paul, the argument will be available in a few days.

Click the link to the right to play the oral argument: PLAY ARGUMENT

 
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Case: 4:12-cv-00476-CEJ Doc. #: 58 Filed: 09/08/14 Page: 2 of 8 PageID #: 570
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Case: 4:12-cv-00476-CEJ Doc. #: 58 Filed: 09/08/14 Page: 3 of 8 PageID #: 571
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Case: 4:12-cv-00476-CEJ Doc. #: 58 Filed: 09/08/14 Page: 4 of 8 PageID #: 572

Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

September 08, 2014

Mr. Francis J. Manion AMERICAN CENTER FOR LAW & JUSTICE Midwest Division 6375 New Hope Road New Hope, KY 40052-0000
RE: 12-3357 Frank O'Brien, Jr., et al v. Department of HHS, et al
Dear Counsel:
The court today issued an opinion in this case. Judgment in accordance with the opinion was also entered today. The opinion will be released to the public at 10:00 a.m. today. Please hold the opinion in confidence until that time.
Please review Federal Rules of Appellate Procedure and the Eighth Circuit Rules on postsubmission procedure to ensure that any contemplated filing is timely and in compliance with the rules. Note particularly that petitions for rehearing and petitions for rehearing en banc must be received in the clerk's office within 45 days of the date of the entry of judgment. Counsel-filed petitions must be filed electronically in CM/ECF. Paper copies are not required. No grace period for mailing is allowed, and the date of the postmark is irrelevant, for pro-se-filed petitions. Any petition for rehearing or petition for rehearing en banc which is not received within the 45 day period for filing permitted by FRAP 40 may be denied as untimely.
Michael E. Gans Clerk of Court
MDS
Enclosure(s)
cc: Ms. Michelle R. Bennett Ms. Lisa Schiavo Blatt Ms. Gretchen Borchelt Mr. Dorinda Bordlee Ms. Kimberlee Wood Colby Mr. Charles E. Davidow Ms. Deborah Jane Dewart Mr. Steven W. Fitschen Mr. Noel Francisco Mr. Patrick T. Gilllen

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Case: 4:12-cv-00476-CEJ Doc. #: 58 Filed: 09/08/14 Page: 5 of 8 PageID #: 573 Ms. Andree J. Goldsmith Ms. Marcia D. Greenberger Benjamin N. Hazelwood Mr. Adam C. Jed Ms. Ayesha N. Khan Ms. Alisa Beth Klein Mr. Gregory J. Linhares Mr. Gregory M. Lipper Ms. Emily J. Martin Ms. Martha Jane Perkins Mr. Anthony E. Rothert Ms. Mailee R. Smith Mr. Mark B. Stern Mr. Geoffrey R. Surtees Mr. Ilana D Waxman Ms. Judith G. Waxman Mr. Edward Lawrence White District Court/Agency Case Number(s): 4:12-cv-00476-CEJ
ß°°»´´¿¬» Ý¿-»æ ïîóííëé Ð¿¹»æ î Ü¿¬» Ú·´»¼æ ðçñðèñîðïì Û²¬®§ ×Üæ ìïçíçïë

Case: 4:12-cv-00476-CEJ Doc. #: 58 Filed: 09/08/14 Page: 6 of 8 PageID #: 574

Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

September 08, 2014

West Publishing Opinions Clerk 610 Opperman Drive Building D D4-40 Eagan, MN 55123-0000
RE: 12-3357 Frank O'Brien, Jr., et al v. Department of HHS, et al
Dear Sirs:
A published opinion was filed today in the above case.
Counsel who presented argument on behalf of the appellant was Francis J. Manion, of New Hope, KY. The following attorney(s) appeared on the appellant brief; Edward Lawrence White, of Ann Arbor, MI., Geoffrey R. Surtees, of New Hope, KY., Patrick T. Gilllen, of Naples, FL.
Counsel who presented argument on behalf of the appellee was Adam C. Jed, of Washington, DC. The following attorney(s) appeared on the appellee brief; Mark B. Stern, of Washington, DC., Alisa Beth Klein, of Washington, DC.
The following attorney appeared on the amicus brief of Liberty, Life, and Law Foundation: Deborah J. Dewart of Swansboro, NC.
The following attorney appeared on the amicus brief of American Association of Pro-life Obstetricians & Gynecologists, Association of American Physicians & Surgeons, Catholic Medical Association, Christian Medical Association, National Association of Pro Life Nurses, National Catholic Bioethics Center and Physicians for Life: Mailee R. Smith of Washington, D.C.
The following attorneys appeared on the amicus brief of Catholic Online, LLC, Common Good Alliance, Common Good Foundation, Mr. Bradley P. Jacob, Charles E. Rice and David M. Wagner: Steven W. Fitschen of Virginia Beach, VA and John P. Tuskey of Mishawaka, IN.
The following attorneys appeared on the amicus brief of the Archdiocese of St. Louis: Noel J. Francisco of Washington, DC; Rayan D. Newman of Washington, DC; David T. Raimer of Washington, DC; and Jennifer Bradley Lichter of Washington, DC.
The following attorney appeared on the amicus brief of Association of Christian Schools International, Association of Gospel Rescue Missions, Christian Legal Society, Council for

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Case: 4:12-cv-00476-CEJ Doc. #: 58 Filed: 09/08/14 Page: 7 of 8 PageID #: 575
Christian Colleges & Universities, Institutional Religious Freedom Alliance, National Association of Evangelicals, Patrick Henry College, Prison Fellowship Ministries and Ethics and Religious Liberty Commission of the Southern Baptist Convention: Kimberlee Wood Colby of Springfield, VA.
The following attorneys appeared on the amicus brief of Bioethics Defense Fund, Life Legal Defense Foundation and Women Speak for Themselves: Nikolas T. Mikas of Scottsdale, AZ; Dorinda C. Bordlee of Scottsdale, AZ; and Catherine W. Short of Ojai, CA.
The following attorney appeared on the amicus brief of National Health Law program: Martha Jane Perkins, of Carrboro, NC.
The following attorneys appeared on the amicus brief of American Public Health Association, Ms. R. Alta Charo, Guttmacher Institute, National Family Planning & Reproductive Health Association, National Latina Institute for Reproductive Health, National Women's Health Network, Physicians For Reproductive Choice and Health, Reproductive Health Technologies Project, The Center for Reproductive Rights, Mr. James Trussell and Ms. Susan F. Wood: Julianna S. Gonen of Washington, DC; Lisa S. Blatt of Washington, DC; Robert J. Katerberg of Washington, DC; Isaac B. Rosenberg of Washington, DC; and Andrew S. Macurdy of Washington, DC.
The following attorneys appeared on the amicus brief of Americans United for Separation of Church and State, Central Conference of American Rabbis, Union for Reform Judaism and Women of Reform Judaism: Ayesha N. Khan of Washington, DC; Gregory M. Lipper of Washington, DC; and Benjamin N. Hazelwood of Washington, DC.
The following attorneys appeared on the amicus brief of American Civil Liberties Union, American Civil Liberties Union of Eastern Missouri, Anti-Defamation League, Hadassah, the Women's Zionist Organization of America, Inc., Interfaith Alliance Foundation, National Council of Jewish Women, Religious Coalition for Reproductive Choice, Unitarian Universalist Association and Unitarian Universalist Women's Federation: Anthony Rothert of St. Louis, MO; Grant R. Doty of St. Louis, MO; Brigitte Amiri of New York, NY; and Daniel Mach of Washington, DC.
The following attorneys appeared on the amicus brief of the National Women s Law Center: Charles E. Davidow of Washington, DC; Ilana D. Waxman of Washington, DC; Andree J. Goldsmith of Washington, DC; Marcia D. Greenberger of Washington, DC; Judith G. Waxman of Washington, DC; Emily J. Martin of Washington, DC; and Gretchen Borchelt of Washington, DC.
The judge who heard the case in the district court was Honorable Carol E. Jackson. The judgment of the district court was entered on September 28, 2012.
If you have any questions concerning this case, please call this office.
Michael E. Gans Clerk of Court
MDS
Enclosure(s)
ß°°»´´¿¬» Ý¿-»æ ïîóííëé Ð¿¹»æ î Ü¿¬» Ú·´»¼æ ðçñðèñîðïì Û²¬®§ ×Üæ ìïçíçïë

Case: 4:12-cv-00476-CEJ Doc. #: 58 Filed: 09/08/14 Page: 8 of 8 PageID #: 576 cc: Lois Law
MO Lawyers Weekly District Court/Agency Case Number(s): 4:12-cv-00476-CEJ
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 Case: 4:12-cv-00476-CEJ Doc. #: 62 Filed: 11/10/14 Page: 1 of 3 PageID #: 584

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

__________________________________________

)

FRANK R. O’BRIEN, JR., and

)

O’BRIEN INDUSTRIAL HOLDINGS, LLC,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; SYLVIA M.

)

BURWELL, in her official capacity as the

)

Secretary of the United States Department of

)

Health and Human Services; UNITED STATES )

DEPARTMENT OF THE TREASURY;

)

JACOB J. LEW, in his official capacity

)

as Secretary of the United States Department of )

the Treasury; UNITED STATES DEPARTMENT )

OF LABOR; THOMAS E. PEREZ, in his official )

capacity as Secretary of the United States

)

Department of Labor,

)

)

Defendants.

)

__________________________________________)

Civil Action No. 4:12-cv-00476-CEJ

JOINT MOTION FOR ENTRY OF INJUNCTION AND JUDGMENT
In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), the parties jointly agree that judgment should be entered in favor of plaintiffs on their Religious Freedom Restoration Act claim, that a permanent injunction should be entered, that all other claims against defendants should be dismissed, and that the deadline for any petition by plaintiffs for attorneys’ fees or costs should be extended to 60 days after judgment is entered. Accordingly, the parties respectfully request that the Court enter the attached Injunction and Judgment, which has been agreed to by all parties.
The parties further request that the Court vacate the deadlines set forth in the October 31, 2014 Order Setting Rule 16 Conference (ECF No. 61).

Case: 4:12-cv-00476-CEJ Doc. #: 62 Filed: 11/10/14 Page: 2 of 3 PageID #: 585
Respectfully submitted this 10th day of November, 2014,
Attorneys for Plaintiffs
_/s/ Francis J. Manion_____________ Francis J. Manion Geoffrey R. Surtees AMERICAN CENTER FOR LAW & JUSTICE PO Box 60 New Hope, KY 40052 Tel: (502) 549-7020; Fax: (502) 549-5252 fmanion@aclj.org, gsurtees@aclj.org
Edward L. White III AMERICAN CENTER FOR LAW & JUSTICE 3001 Plymouth Road, Suite 203 Ann Arbor, MI 48105 Tel: (734) 680-8007; Fax: (734) 680-8006 ewhite@aclj.org
Attorneys for Defendants
JOYCE R. BRANDA Acting Assistant Attorney General
RICHARD G. CALLAHAN United States Attorney
JENNIFER RICKETTS Director
SHEILA M. LIEBER Deputy Director
_/s/ Michelle R. Bennett MICHELLE R. BENNETT (CO Bar No. 37050) Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7310 Washington, D.C. 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov
Attorneys for Defendants.
2

Case: 4:12-cv-00476-CEJ Doc. #: 62 Filed: 11/10/14 Page: 3 of 3 PageID #: 586

CERTIFICATE OF SERVICE I hereby certify that on November 10, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to all parties.

s/ Michelle R. Bennett

_

MICHELLE R. BENNETT

3

Case: 4:12-cv-00476-CEJ Doc. #: 62-1 Filed: 11/10/14 Page: 1 of 3 PageID #: 587

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

__________________________________________

)

FRANK R. O’BRIEN, JR., and

)

O’BRIEN INDUSTRIAL HOLDINGS, LLC,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; SYLVIA M.

)

BURWELL, in her official capacity as the

)

Secretary of the United States Department of

)

Health and Human Services; UNITED STATES )

DEPARTMENT OF THE TREASURY;

)

JACOB J. LEW, in his official capacity

)

as Secretary of the United States Department of )

the Treasury; UNITED STATES DEPARTMENT )

OF LABOR; THOMAS E. PEREZ, in his official )

capacity as Secretary of the United States

)

Department of Labor,

)

)

Defendants.

)

__________________________________________)

Civil Action No. 4:12-cv-00476-CEJ

[PROPOSED] INJUNCTION AND JUDGMENT In light of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and upon the parties’ Joint Motion for Entry of Injunction and Judgment, it is hereby ORDERED that defendants, their employees, agents, and successors in office are permanently enjoined (a) from enforcing
(1) the “June 30, 2014 Contraceptive Coverage Requirement,” defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiff O’Brien Industrial Holdings,

Case: 4:12-cv-00476-CEJ Doc. #: 62-1 Filed: 11/10/14 Page: 2 of 3 PageID #: 588
LLC to provide its employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(1)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 45 C.F.R. § 147.130(a)(1)(iv); and (2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132 and 1185d; and (b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement against plaintiff O’Brien Industrial Holdings, LLC, its employee health plan(s), the group health coverage provided in connection with such plan(s), and/or O’Brien Industrial Holdings, LLC’s health insurance issuers and/or third-party administrators with respect to O’Brien Industrial Holdings, LLC’s health plan(s); and it is further ORDERED that judgment is entered in favor of plaintiffs and against defendants on plaintiffs’ claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is further ORDERED that all other claims against Defendants are DISMISSED; and it is further ORDERED that any petition by plaintiffs for attorneys’ fees or costs shall be submitted on or before 60 days (or the next business day if that day falls on a weekend or court holiday) from the date this judgment is issued; and it is further ORDERED that this Injunction and Judgment does not apply with respect to any changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents plaintiffs from filing a new civil action to challenge any such future changes.
2

Case: 4:12-cv-00476-CEJ Doc. #: 62-1 Filed: 11/10/14 Page: 3 of 3 PageID #: 589

Date: ____________

________________________________ The Honorable Carol E. Jackson United States District Judge

3

 
 Case: 4:12-cv-00476-CEJ Doc. #: 64 Filed: 11/12/14 Page: 1 of 3 PageID #: 591

4:12-cv-00476-CEJ Doc. 62-1

11/10/14

1of3

D

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

)

FRANK R. O'BRIEN, JR., and

)

O'BRIEN INDUSTRIAL HOLDINGS, LLC,

)

)

Plaintiffs,

)

)

v.

)

)

UNITED STATES DEPARTMENT OF HEALTH )

AND HUMAN SERVICES; SYLVIA M.

)

BURWELL, in her official capacity as the

)

Secretary of the United States Department of

)

Health and Human Services; UNITED STATES )

DEPARTMENT OF THE TREASURY;

)

JACOB J. LEW, in his official capacity

)

as Secretary of the United States Department of )

the Treasury; UNITED STATES DEPARTMENT )

OF LABOR; THOMAS E. PEREZ, in his official )

capacity as Secretary of the United States

)

Department of Labor,

)

)

Defendants.

)

Civil Action No. 4: 12-cv-00476-CEJ

INJUNCTION AND JUDGMENT In light of the Supreme Court's decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), and upon the parties' Joint Motion for Entry oflnjunction and Judgment, it is hereby ORDERED that defendants, their employees, agents, and successors in office are permanently enjoined (a) from enforcing
(1) the "June 30, 2014 Contraceptive Coverage Requirement," defined here to include those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiff 0 'Brien Industrial Holdings,

Case: 4:12-cv-00476-CEJ Doc. #: 64 Filed: 11/12/14 Page: 2 of 3 PageID #: 592
LLC to provide its employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs object on religious grounds, e.g., 26 C.F.R. § 54.9815-2713(a)(l)(iv); 29 C.F.R. § 2590.715-2713(a)(l)(iv); 45 C.F.R. § 147.130(a)(l)(iv); and (2) any penalties, fines, or assessments for noncompliance with the June 30, 2014 Contraceptive Coverage Requirement, including those found in 26 U.S.C. § 4980D and 29 U.S.C. §§ 1132andl185d; and (b) from taking any other actions based on noncompliance with the June 30, 2014 Contraceptive Coverage Requirement against plaintiff O'Brien Industrial Holdings, LLC, its employee health plan(s), the group health coverage provided in connection with such plan(s), and/or O'Brien Industrial Holdings, LLC's health insurance issuers and/or third-party administrators with respect to O'Brien Industrial Holdings, LLC's health plan(s); and it is further ORDERED that judgment is entered in favor of plaintiffs and against defendants on plaintiffs' claim under the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.; and it is further ORDERED that all other claims against Defendants are DISMISSED; and it is further ORDERED that any petition by plaintiffs for attorneys' fees or costs shall be submitted on or before 60 days (or the next business day ifthat day falls on a weekend or court holiday) from the date this judgment is issued; and it is further ORDERED that this Injunction and Judgment does not apply with respect to any changes in statute or regulation that are enacted or promulgated after this date, and nothing herein prevents plaintiffs from filing a new civil action to challenge any such future changes.
2

Case: 4:12-cv-00476-CEJ Doc. #: 64 Filed: 11/12/14 Page: 3 of 3 PageID #: 593
Date:/.)~ 1z,z..011'
3

 
 Case: 4:12-cv-476 As of: 03/15/2017 09:29 PM CDT 1 of 8
CLOSED,R16,REOPEN
U.S. District Court Eastern District of Missouri (St. Louis) CIVIL DOCKET FOR CASE #: 4:12−cv−00476−CEJ

O'Brien et al v. U.S. Department of Health and Human Services et al Assigned to: Honorable Carol E. Jackson Cause: 28:1331 Fed. Question
Amicus

Date Filed: 03/15/2012 Date Terminated: 11/12/2014 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

American Civil Liberties Union − Eastern Missouri

represented by Anthony E. Rothert AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION 960 Olive St. Suite 1130 St. Louis, MO 63101−1448 314−669−3420 Fax: 314−652−3112 Email: trothert@aclu−mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brigitte Amiri AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 212−549−2633 Fax: 212−549−2650 Email: bamiri@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant R. Doty U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1222 Spruce St. Room 8.100 St. Louis, MO 63103 314−539−7918 Fax: 314−539−7895 Email: grant.doty@eeoc.gov ATTORNEY TO BE NOTICED

Amicus American Civil Liberties Union

represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brigitte Amiri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant R. Doty (See above for address) ATTORNEY TO BE NOTICED

Case: 4:12-cv-476 As of: 03/15/2017 09:29 PM CDT 2 of 8

Plaintiff Frank R. O'Brien, Jr.
Plaintiff O'Brien Industrial Holdings, LLC

represented by Francis J. Manion AMERICAN CENTER FOR LAW AND JUSTICE P.O. Box 60 New Hope, KY 40052 502−549−7020 Fax: 502−549−5252 Email: fmanion@aclj.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick T. Gillen FIDELIS CENTER FOR LAW AND POLICY 1025 Commons Circle Naples, FL 34119 734−355−4728 Fax: 312−276−5129 Email: ptg.gillen@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward L. White , III AMERICAN CENTER FOR LAW AND JUSTICE 5068 Plymouth Road Ann Arbor, MI 48105 734−680−8007 Fax: 734−680−8006 Email: elwhite3@yahoo.com ATTORNEY TO BE NOTICED
Geoffrey R. Surtees AMERICAN CENTER FOR LAW AND JUSTICE P.O. Box 60 New Hope, KY 40052 502−549−7020 Fax: 502−549−5252 Email: gsurtees@aclj.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Francis J. Manion (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick T. Gillen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward L. White , III (See above for address) ATTORNEY TO BE NOTICED
Geoffrey R. Surtees (See above for address) ATTORNEY TO BE NOTICED

Case: 4:12-cv-476 As of: 03/15/2017 09:29 PM CDT 3 of 8

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

represented by Michelle R Bennett U.S. DEPARTMENT OF JUSTICE − CIVIL DIVISION Federal Program Branch 20 Massachusetts Avenue, NW P.O. Box 883 Washington, DC 20530 202−305−8902 Fax: 202−616−8470 Email: michelle.bennett@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle R Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/15/2012
03/15/2012 03/15/2012

# Docket Text
1 COMPLAINT against defendant All Defendants with receipt number 0865−3191080, in the amount of $350 Non−Jury Demand,, filed by Frank R. O'Brien, O'Brien Industrial Holdings. (Attachments: # 1 Civil Cover Sheet, # 2 Original Filing Form, # 3 Summons, # 4 Summons, # 5 Summons)(Manion, Francis) (Entered: 03/15/2012)
2 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Plaintiffs Frank R. O'Brien, O'Brien Industrial Holdings. Parent companies: N/A, Subsidiaries: N/A, Publicly held company: N/A,. (Manion, Francis) (Entered: 03/15/2012)
3 MOTION for Leave to Appear Pro Hac Vice Francis J. Manion (Filing fee $100 receipt number 0865−3191171) by Plaintiffs Frank R. O'Brien, O'Brien Industrial Holdings. (Manion, Francis) (Entered: 03/15/2012)

Case: 4:12-cv-476 As of: 03/15/2017 09:29 PM CDT 4 of 8

03/15/2012 03/15/2012 03/16/2012 03/16/2012 03/27/2012 03/27/2012 03/27/2012 03/27/2012
03/29/2012 03/29/2012 03/30/2012 04/02/2012 04/04/2012
04/04/2012 05/21/2012

4 MOTION for Leave to Appear Pro Hac Vice Geoffrey R. Surtees (Filing fee $100 receipt number 0865−3191188) by Plaintiffs Frank R. O'Brien, O'Brien Industrial Holdings. (Surtees, Geoffrey) (Entered: 03/15/2012)
5 MOTION for Leave to Appear Pro Hac Vice Edward White (Filing fee $100 receipt number 0865−3191812) by Plaintiffs Frank R. O'Brien, O'Brien Industrial Holdings. (White, Edward) (Entered: 03/15/2012)
Case Opening Notification Judge Assigned: Carol E. Jackson. (SAJ) (Entered: 03/16/2012)
Summons Issued as to defendantTimothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Attorney and U.S. Attorney General. The summons was emailed to fmanion@aclj.org. (SAJ) (Entered: 03/16/2012)
6 NOTICE OF PROCESS SERVER by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC Process Server: U.S. Mail (Manion, Francis) Modified on 3/28/2012; Document deleted; filed incorrectly; See 8 ; [(DJO). (Entered: 03/27/2012)
7 MOTION for Leave to Appear Pro Hac Vice Patrick T. Gillen (Filing fee $100) by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC. (KXS) (Entered: 03/27/2012)
Receipt 4644027473 in the amount of $100.00 for PRO HAC VICE on behalf of Patrick T. Gillen (CCAM) (Entered: 03/28/2012)
8 SUMMONS Returned Executed (by certified mail) filed by O'Brien Industrial Holdings, LLC, Frank R. O'Brien, Jr. defendant U.S. Department of Health and Human Services, United States Department of Labor and United States Department of the Treasury served on 3/22/2012 by serving U.S. Attorney, answer due 5/21/2012. (Replaces document 6 which was filed incorrectly; ) (DJO) Modified on 3/29/2012 to edit text (DJO). (Entered: 03/28/2012)
9 SUMMONS Returned Executed filed by O'Brien Industrial Holdings, LLC, Frank R. O'Brien, Jr. defendantKathleen Sebelius served on 3/23/2012, answer due 5/22/2012; U.S. Department of Health and Human Services served on 3/23/2012, answer due 5/22/2012. (Manion, Francis) (Entered: 03/29/2012)
10 Docket Text ORDER: Re: 7 MOTION for Leave to Appear Pro Hac Vice Patrick T. Gillen (Filing fee $100) by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC.; ORDERED GRANTED; Signed by Honorable Carol E. Jackson on 03/29/2012; (DJO) (Entered: 03/30/2012)
ORDER RECEIPT: (see receipt) Docket No: . #10 to parties not notified electronically Fri Mar 30 08:28:20 CDT 2012 (O'Leary, Deborah) (Entered: 03/30/2012)
11 SUMMONS Returned Executed filed by O'Brien Industrial Holdings, LLC, Frank R. O'Brien, Jr. defendantHilda L. Solis served on 3/26/2012, answer due 5/25/2012; United States Department of Labor served on 3/26/2012, answer due 5/25/2012. (Manion, Francis) (Entered: 04/02/2012)
12 Docket Text ORDER: Re: 3 MOTION for Leave to Appear Pro Hac Vice Francis J. Manion (Filing fee $100 receipt number 0865−3191171) by Plaintiffs Frank R. O'Brien, O'Brien Industrial Holdings, 4 MOTION for Leave to Appear Pro Hac Vice Geoffrey R. Surtees (Filing fee $100 receipt number 0865−3191188) by Plaintiffs Frank R. O'Brien, O'Brien Industrial Holdings, 5 MOTION for Leave to Appear Pro Hac Vice Edward White (Filing fee $100 receipt number 0865−3191812) by Plaintiffs Frank R. O'Brien, O'Brien Industrial Holdings; ORDERED GRANTED; Signed by Honorable Carol E. Jackson on 04/04/2012; (DJO) (Entered: 04/04/2012)
ORDER RECEIPT: (see receipt) Docket No: . #12 to attorney not electronically notified Wed Apr 4 09:18:52 CDT 2012 (O'Leary, Deborah) (Entered: 04/04/2012)
13 MOTION for Leave to File in Excess of Page Limitation by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 05/21/2012)

Case: 4:12-cv-476 As of: 03/15/2017 09:29 PM CDT 5 of 8

05/21/2012 05/21/2012 05/22/2012 05/23/2012 05/24/2012 06/11/2012 06/12/2012 06/28/2012 07/11/2012 07/13/2012
07/16/2012 07/16/2012 07/16/2012

14 MOTION to Dismiss Case by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 05/21/2012)
15 MEMORANDUM in Support of Motion re 14 MOTION to Dismiss Case filed by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 05/21/2012)
16 Docket Text ORDER: Re: 13 MOTION for Leave to File in Excess of Page Limitation by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury ; ORDERED GRANTED. Signed by Honorable Carol E. Jackson on 5/22/12. (KXS) (Entered: 05/22/2012)
17 Joint MOTION for Extension of Time to File Response/Reply by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC. (Surtees, Geoffrey) (Entered: 05/23/2012)
18 Docket Text ORDER Re: 17 Joint MOTION for Extension of Time to File Response/Reply ; ORDERED GRANTED; Response due 6/15/2012; Reply due 7/10/2012. Signed by Honorable Carol E. Jackson on 5/24/2012. (KMS) (Entered: 05/24/2012)
19 AMENDED COMPLAINT against defendant All Defendants Amendment to 1 Complaint, , filed by O'Brien Industrial Holdings, LLC, Frank R. O'Brien, Jr. Related document: 1 Complaint, filed by Frank R. O'Brien, Jr., O'Brien Industrial Holdings, LLC.(Manion, Francis) (Entered: 06/11/2012)
20 RESPONSE to Motion re 14 MOTION to Dismiss Case filed by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC. (Manion, Francis) (Entered: 06/12/2012)
21 Joint MOTION for Extension of: Time and Briefing Schedule by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 06/28/2012)
22 Consent MOTION for Extension of: Time to File Motion to Dismiss by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 07/11/2012)
23 ORDER: IT IS HEREBY ORDERED that defendants motion for an extension of time until July 16, 2012 to file a motion to dismiss the amended complaint [#22] is granted. IT IS FURTHER ORDERED that plaintiffs shall have until August 7, 2012, to file a memorandum in opposition to defendants motion to dismiss. IT IS FURTHER ORDERED that defendants shall have until August 24, 2012, to file a reply. IT IS FURTHER ORDERED that the motion for an extension of time to respond to plaintiffs amended complaint [#21] is denied as moot. ORDER denied as moot 21 Motion for Extension ; granting 22 Motion for Extension Signed by Honorable Carol E. Jackson on 7/13/2012. (KMS) (Entered: 07/13/2012)
24 MOTION for Leave to File in Excess of Page Limitation by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 07/16/2012)
25 MOTION to Dismiss Case by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 07/16/2012)
26 MEMORANDUM in Support of Motion re 25 MOTION to Dismiss Case filed by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department

Case: 4:12-cv-476 As of: 03/15/2017 09:29 PM CDT 6 of 8

07/17/2012
08/03/2012 08/03/2012 08/03/2012 08/06/2012 08/06/2012 08/07/2012 08/07/2012 08/15/2012 08/15/2012 08/15/2012 08/15/2012
08/20/2012 08/21/2012 08/23/2012

of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 07/16/2012)
27 Docket Text ORDER: GRANTING 24 MOTION for Leave to File in Excess of Page Limitation by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury.. Signed by Honorable Carol E. Jackson on 7/17/12. (KKS) (Entered: 07/17/2012)
28 MOTION to File Amicus Brief by Amicus Parties American Civil Liberties Union − Eastern Missouri, American Civil Liberties Union. (Attachments: # 1 Proposed Brief of Amici)(Rothert, Anthony) (Entered: 08/03/2012)
29 MOTION for Leave to Appear Pro Hac Vice Brigitte Amiri (Filing fee $100) by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (KJS) (Entered: 08/03/2012)
Receipt 4644029993 in the amount of $100.00 for PRO HAC VICE on behalf of Brigitte Amiri (CCAM) (Entered: 08/05/2012)
30 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC. (Manion, Francis) (Entered: 08/06/2012)
31 MEMORANDUM in Opposition re 25 MOTION to Dismiss Case filed by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC. (Manion, Francis) (Entered: 08/06/2012)
32 Docket Text ORDER Re: 30 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC ; ORDERED GRANTED. Signed by District Judge Carol E. Jackson on 8/7/2012. (KMS) (Entered: 08/07/2012)
ORDER RECEIPT: (see receipt) Docket No: 32. sent to parties not set up for electronic notification Tue Aug 7 10:46:54 CDT 2012 (Scheele, Kara) (Entered: 08/07/2012)
33 Docket Text ORDER Re: 29 MOTION for Leave to Appear Pro Hac Vice Brigitte Amiri (Filing fee $100) by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri ; ORDERED GRANTED. Signed by District Judge Carol E. Jackson on 8/15/2012. (KMS) (Entered: 08/15/2012)
34 Docket Text ORDER Re: 28 MOTION to File Amicus Brief by Amicus Parties American Civil Liberties Union − Eastern Missouri, American Civil Liberties Union; ORDERED GRANTED. Signed by District Judge Carol E. Jackson on 8/15/2012. (KMS) (Entered: 08/15/2012)
ORDER RECEIPT: (see receipt) Docket No: 33, 34. sent to parties not set up for electronic notification Wed Aug 15 07:40:29 CDT 2012 (Scheele, Kara) (Entered: 08/15/2012)
35 Brief of the Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Eastern Missouri in Support of Defendants' 25 motion to Dismiss Plaintiffs' First Amended Complaint filed by Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (KMS) (Entered: 08/15/2012)
36 ENTRY of Appearance by Grant R. Doty for Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (Doty, Grant) (Entered: 08/20/2012)
37 ENTRY of Appearance by Brigitte Amiri for Amicus Parties American Civil Liberties Union, American Civil Liberties Union − Eastern Missouri. (Amiri, Brigitte) (Entered: 08/21/2012)
38 MOTION for Preliminary Injunction by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC. (Manion, Francis) (Entered: 08/23/2012)

Case: 4:12-cv-476 As of: 03/15/2017 09:29 PM CDT 7 of 8

08/23/2012 08/23/2012 08/24/2012 08/24/2012 08/27/2012
08/28/2012 08/29/2012
09/14/2012 09/14/2012 09/17/2012 09/24/2012 09/28/2012

39 MEMORANDUM in Support of Motion re 38 MOTION for Preliminary Injunction filed by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC. (Attachments: # 1 Affidavit Declaration of Frank O'Brien, Jr., # 2 Text of Proposed Order Proposed Order)(Manion, Francis) (Entered: 08/23/2012)
40 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC. (Manion, Francis) (Entered: 08/23/2012)
41 MOTION for Leave to File in Excess of Page Limitation by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 08/24/2012)
42 REPLY to Response to Motion re 25 MOTION to Dismiss Case filed by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 08/24/2012)
43 Docket Text ORDER Re: 41 MOTION for Leave to File in Excess of Page Limitation by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury, 40 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC. ; ORDERED GRANTED. Signed by District Judge Carol E. Jackson on 8/27/2012. (KMS) (Entered: 08/27/2012)
44 Consent MOTION for Extension of Time to File Response/Reply as to 38 MOTION for Preliminary Injunction by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 08/28/2012)
45 Docket Text ORDER Re: 44 Consent MOTION for Extension of Time to File Response/Reply as to 38 MOTION for Preliminary Injunction by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury ; ORDERED GRANTED. Signed by District Judge Carol E. Jackson on 8/29/2012. (KMS) (Entered: 08/29/2012)
46 MOTION for Leave to File in Excess of Page Limitation by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 09/14/2012)
47 RESPONSE in Opposition re 38 MOTION for Preliminary Injunction filed by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Bennett, Michelle) (Entered: 09/14/2012)
48 Docket Text ORDER Re: 46 MOTION for Leave to File in Excess of Page Limitation by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury ; ORDERED GRANTED. Signed by District Judge Carol E. Jackson on 9/17/2012. (KMS) (Entered: 09/17/2012)
49 REPLY to Response to Motion re 38 MOTION for Preliminary Injunction filed by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC. (Manion, Francis) (Entered: 09/24/2012)
50 MEMORANDUM AND ORDER − IT IS HEREBY ORDERED that the defendants motion to dismiss all counts of plaintiffs Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) is granted. An Order of Dismissal will be filed separately. Signed by District Judge Carol E. Jackson on 9/28/12. (KJS) (Main Document replaced on 9/28/2012 to correct PDF, NEF regenerated) (KJS). (Entered: 09/28/2012)

Case: 4:12-cv-476 As of: 03/15/2017 09:29 PM CDT 8 of 8

09/28/2012
10/01/2012 10/02/2012
10/04/2012 10/04/2012 10/11/2012 07/06/2013 09/08/2014
09/08/2014 10/30/2014 10/31/2014 11/10/2014 11/12/2014 11/12/2014

51 ORDER OF DISMISSAL − IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this action is dismissed for failure to state a claim upon which relief may be granted and for lack of subject matter jurisdiction. The plaintiffs shall bear the costs. Signed by District Judge Carol E. Jackson on 9/28/12. (KJS) (Entered: 09/28/2012)
52 NOTICE OF APPEAL as to 50 Memorandum & Order, 51 Order of Dismissal (case − Stipulation of Dismissal), by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC. Filing fee $ 455, receipt number 0865−3488658. (Attachments: # 1 Attachment Form A, # 2 Attachment Form B) (Entered: 10/01/2012)
53 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by clerk to USCA regarding 50 Memorandum & Order, 51 Order of Dismissal (case − Stipulation of Dismissal),. Notice of Appeal filed on 10/1/12. NOTIFICATION TO COUNSEL AND PRO SE PARTY: FILE REQUEST FOR TRANSCRIPT WITH DISTRICT COURT CLERKS OFFICE. SUBMIT FORM A & B TO EIGHTH CIRCUIT CLERKS OFFICE(BAK) (Entered: 10/02/2012)
54 LETTER from USCA re 52 Notice of Appeal, : USCA Appeal #: 12−3357; (DJO) (Entered: 10/04/2012)
55 Initial Notification and or Briefing Schedule from USCA for 52 Notice of Appeal, filed by Frank R. O'Brien, Jr., O'Brien Industrial Holdings, LLC USCA Appeal Number: 12−3357 Method of Appendix due: 10/18/2012 Notice of Appeal forwarded to panel: No Designation of record due: 10/18/2012; (DJO) (Entered: 10/04/2012)
56 NOTICE No Transcript Order: by Plaintiffs Frank R. O'Brien, Jr, O'Brien Industrial Holdings, LLC re 52 Notice of Appeal, 53 Notification of Appeal and NOA Supplement, (Manion, Francis) (Entered: 10/11/2012)
57 NOTICE of Change of Address filed by Edward L. White, III (White, Edward) (Entered: 07/06/2013)
58 OPINION from USCA re 52 Notice of Appeal, : USCA Appeal #: 12−3357 We reverse the Federal Rule of Civil Procedure 12(b) (6) dismissal of the appellants' RFRA claim, vacate the dismissal of the appellants' remaining claims without expressing any view on the merits, and remand for further proceedings consistant with Hobby Lobby. (KJS) (Entered: 09/08/2014)
59 USCA JUDGMENT as to 52 Notice of Appeal, filed by Frank R. O'Brien, Jr., O'Brien Industrial Holdings, LLC (KJS) (Entered: 09/08/2014)
60 MANDATE of USCA as to 52 Notice of Appeal, filed by Frank R. O'Brien, Jr., O'Brien Industrial Holdings, LLC USCA #:12−3357(KJS) (Entered: 10/30/2014)
61 RULE 16 ORDER Rule 16 Conference set for 11/24/2014 02:00 PM in Telephone before District Judge Carol E. Jackson. Joint Proposed Scheduling Plan Due: No later than seven days before the scheduling conference. Signed by District Judge Carol E. Jackson on 10/31/2014. (KMS) (Entered: 10/31/2014)
62 Joint MOTION to Approve Consent Judgment by Defendants Timothy F. Geithner, Kathleen Sebelius, Hilda L. Solis, U.S. Department of Health and Human Services, United States Department of Labor, United States Department of the Treasury. (Attachments: # 1 Text of Proposed Order)(Bennett, Michelle) (Entered: 11/10/2014)
63 ORDER: IT IS HEREBY ORDERED that the parties joint motion for entry of injunction and judgment [Doc. # 62] is granted. IT IS FURTHER ORDERED that the Rule 16 scheduling conference is cancelled. Signed by District Judge Carol E. Jackson on 11/12/2014. (KMS) (Entered: 11/12/2014)
64 INJUNCTION AND JUDGMENT; SO ORDERED. Signed by District Judge Carol E. Jackson on 11/12/2014. (KMS) (Entered: 11/12/2014)